United States v. Cabrera

• Decision Date: 11 July 2011
• Docket Number: No. 2:08–cr–94–FtM–99DNF.,2:08–cr–94–FtM–99DNF.
• Citation: 804 F.Supp.2d 1261
• Parties: UNITED STATES of America v. Samir Nel CABRERA.
• Court: U.S. District Court — Middle District of Florida

804 F.Supp.2d 1261

UNITED STATES of America

v.Samir Nel CABRERA.

No. 2:08–cr–94–FtM–99DNF.

United States District Court, M.D. Florida,Fort Myers Division.

July 11, 2011.

Jeffrey Michelland, Robert P. Barclift, Yolande G. Viacava, Judy K. Hunt, U.S. Attorney's Office, Ft. Myers, FL, Patricia A. Willing–Flu, U.S. Attorney's Office—FLM, Tampa, FL, for U.S.

OPINION AND ORDER

JOHN E. STEELE, District Judge.

This matter comes before the Court on remand from the Eleventh Circuit Court of Appeals. Based upon Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), the Eleventh Circuit vacated all counts of conviction and remanded the matter to the district court “to consider whether granting the government's request for a new trial on the wire fraud and money laundering charges would violate Cabrera's Fifth Amendment rights.” United States v. Cabrera, 418 Fed.Appx. 896, 897 (11th Cir.2011). Pursuant to the briefing schedule established by the Court, the government filed its Memorandum (Doc. # 215) on April 8, 2011, and defendant filed his Memorandum (Doc. # 217) on April 25, 2011. The Court heard oral arguments on May 6, 2011. (Doc. # 218.) For the reasons set forth below, the Court concludes that granting the government's request for a new trial on the wire fraud and money laundering charges would violate Cabrera's Fifth Amendment rights.

I.

On August 27, 2008, defendant Samir Nel Cabrera (defendant or Cabrera) was named in a twelve-count Superceding Indictment (Doc. # 24). Counts One, Two, Three, Four, Five, and Six charged wire fraud in violation of 18 U.S.C. §§ 1343, 1346, 1349 and 2, alleging that defendant devised “a scheme and artifice to defraud certain persons and entities ... and to deprive them of the intangible right of honest services, and to obtain monies by means of materially false and fraudulent pretenses, representations, and promises.” ( Id. at ¶ 26.) Count Seven charged mail fraud in violation of 18 U.S.C. §§ 1341, 1346, 1349, and 2, incorporating the same scheme to defraud allegations as in the wire fraud counts. Count Eight charged money laundering in violation of 18 U.S.C. §§ 1957 and 2, alleging criminally derived property from wire fraud. Counts Nine, Ten, Eleven, and Twelve charged money laundering in violation of 18 U.S.C. §§ 1957 and 2, alleging criminally derived property from wire fraud and mail fraud. Before the case was submitted to the jury, the government dismissed the mail fraud charge in Count Seven and the mail fraud aspects of the money laundering counts. (Doc. # 120, p. 239.)

There were no material objections to the relevant final jury instructions or verdict form utilized by the Court. (Doc. # 120, pp. 236–46; Doc. # 121, pp. 82–83.) As to the wire fraud counts, the jury was instructed that the scheme to defraud had two objectives, one to defraud another of money and one to defraud another of the intangible right of honest services. (Doc. # 121, p. 160.) The “scheme to defraud” component of the wire fraud elements was defined as “any plan or course of action intended to, one, deceive or cheat a person of ordinary prudence and comprehension out of money by means of false or fraudulent pretenses, representations, or promises; or, two, to deceive or cheat someone of the intangible right to honest services.” ( Id. at 161.) The Court further instructed that:

[t]o deprive another of the intangible right of honest services means to violate, or to cause an agent of another person to violate, the agent's duty to provide honest services to another person or entity. The government must prove that the defendant owed a fiduciary duty to another person or entity, intended to breach the fiduciary duty, and that the defendant foresaw, or reasonably should have foreseen, that the person or entity to whom the defendant owed the fiduciary duty might suffer an economic harm as a result of that breach.

( Id. at 162.) Notably, as it turns out, the Court did not limit this component of the wire fraud counts to acts of bribery or kickbacks. Additionally, the Court instructed the jury that:

Where a statute specifies several alternative objects of a scheme to defraud, the superseding indictment may allege the objectives in the conjunctive; that is, by using the word “and.” However, the applicable statutes in Counts 1 through 6, are worded in the disjunctive; that is, the objectives of the scheme to defraud are separated by the word “or.” So if you find, beyond a reasonable doubt, that any one object of the scheme to defraud occurred, that is sufficient, so long as you agree unanimously as to the particular object involved.

( Id. at 164.) In explaining the verdict form as to wire fraud, and using Count One as an example, the Court advised the jury:

Remember, earlier in the instructions, I told you that the scheme to defraud was two objects: One is to defraud of money, and one is to defraud of honest services.

You may find the defendant not guilty, of course, or you may find him guilty of scheming to defraud of money, or of scheming to defraud of honest services, or both money and honest services. If it's both, you check two boxes for guilty. If it's neither, obviously, you check not guilty.

Your verdicts must be unanimous. What that means is, if you find guilty, if six of you think it's money, and six of you think it's honest services, that's not unanimous. It has to be all of you, with regard to any check you make, as to the guilt, or to not guilty.

(Doc. # 121, pp. 172–73.)

As to the money laundering counts, the Court instructed the jury that the fourth element was that “the property was, in fact, derived from wire fraud, as alleged in the superseding indictment; ...” ( Id. at 165.) The only options on the verdict form as to the money laundering counts were “Not Guilty” or “Guilty.”

The jury announced an impasse (Doc. # 122, p. 6), and the Court gave the jury the modified Allen¹ charge. ( Id. at 7–9.) Three and one-half hours later the jury found defendant guilty of all wire fraud counts based upon a scheme to defraud investors of the intangible right to honest services. (Doc. # 86; Doc. # 122, pp. 9–11.) For example, the Verdict form as to Count One stated:

1. As to Count One, which charges that on or about January 27, 2006, Defendant Samir Nel Cabrera committed wire fraud, we the jury unanimously find Defendant Samir Nel Cabrera,

____________ NOT GUILTY

____________ GUILTY, scheme to defraud investors of money

____________ GUILTY, scheme to defraud investors of the intangible right to honest services

The jury checked only the third option on all six wire fraud counts, leaving the other two options blank. The jury also found defendant guilty of all of the money laundering counts, checking the “GUILTY” option for those counts. ( Id.)

The Court polled the individual jurors, and each confirmed the verdicts; the jury was then discharged. ( Id. at 9–10.) The Court thereafter advised the defendant that “based upon the jury's verdicts, the Court would adjudicate you guilty of Count 1, 2, 3, 4, 5, and 6, of a scheme to defraud investors of the intangible right to honest services, and guilty of Count 8, 9, 10, 11 and 12.” ( Id. at 13.)

In a Sentencing Memorandum filed prior to the sentencing hearing, the government acknowledged that the jury had not convicted defendant of a scheme to defraud investors of money. (Doc. # 134, p. 17.) The government argued, however, that this conduct had been proven by a preponderance of the evidence and was thus relevant conduct under the Sentencing Guidelines. ( Id.) The government cited a line of cases dealing with the court's ability to consider acquitted conduct when imposing sentence, including United States v. Watts, 519 U.S. 148, 156, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). ( Id.) Cabrera was sentenced to 120 months imprisonment, followed by 60 months of supervised release.²

II.

After defendant was sentenced, the Supreme Court decided Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). In Skilling, the Supreme Court held that, properly interpreted, the honest-services provisions of 18 U.S.C. § 1346 criminalizes only conduct involving bribes and kickbacks. Id. at 2931. Skilling was charged with a conspiracy which had three objects—honest services wire fraud, money-or-property wire fraud, and securities fraud. Because only a general verdict was used, i.e., the jury simply found defendant guilty without specifying which object, the Supreme Court found the conviction was “flawed.” Id. at 2934 (citing Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) (finding that constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory)). This “flaw” did not necessarily require reversal of the conviction because it could have been harmless error. Id. at 2934. That issue was left for resolution on remand.³

Under Skilling it is now clear that the honest services portion of the jury instructions in Cabrera's case was incorrect because it did not limit the jury's consideration to bribes or kickbacks. Thus, the government conceded in the Eleventh Circuit “that the jury instructions given by the district court were erroneous ...” Cabrera, 418 Fed.Appx. at 896. The government also conceded “that the evidence presented did not involve criminal conduct under 18 U.S.C. § 1346 as interpreted by Skilling. Accordingly, the government concedes in its brief that all counts of conviction should be vacated.” Id.

The parties disputed, however, “whether Cabrera can be retried on the wire fraud and money laundering charges under the theory that he defrauded investors in light of the Fifth Amendment's prohibition of Double Jeopardy.” Id. The matter was therefore remanded with instructions for “the district court to consider whether granting the government's request for a new trial on the wire fraud and money...