Tampa Federal Criminal Defense Attorney was just informed that a Florida Lawyer’s Mail Fraud conviction in a United States District Court in Florida was eviscerated by the 11th Circuit:
“A jury convicted Joseph T. Lander on mail fraud and money laundering charges related to two separate fraudulent schemes, and he appealed. The Eleventh Circuit held in the resulting appeal that the material variance between the proof offered by the Government at Lander’s trial and the allegations in support of Count Two of the indictment substantially prejudiced Lander’s ability to prepare his defense. It reversed Lander’s conviction and vacated his sentence on that count, and reversed as well his convictions on eleven money laundering counts, as they depended on conviction on Count Two. It affirmed Lander’s convictions as to the other scheme to defraud, and rejected Lander’s other assertions of error.
Lander worked as an attorney in Dixie County, Florida, where he practiced law and served as the county attorney. A group of real estate developers planning a project called River Shores at Jena in Dixie County retained Lander to help guide their project through the county’s regulatory process.When they initially met Lander they did not know he was the county attorney, but they quickly became aware of this fact through their meetings with him. In order to “give a level of security to the prospective buyers that [the developers] would finish the development,” the developers gave Lander $820,000 in August of 2005 to be held in trust to draw against as the developers incurred infrastructure expenses.
Lander then opened an account called the “Lander Law Firm—Special Account”to hold the developers’ funds. But, not all of these funds helped complete River Shores. For example, Lander made a $140,980 withdrawal from the account to buy an island off the western coast of Florida. He also used the money for various other personal expenses. These personal withdrawals continued until December of 2007 when Lander depleted and closed the account.
While Lander was making personal draws on the account, he also fulfilled two of the requests from the developers for money from the account. Lander mailed a $200,000 cashier’s check drawn from the account on August 17, 2005. In early 2006, Lander fulfilled another request for $300,000.According to one of the developers, he did not question that Lander still held the other $320,000 because Lander remitted these two requests in a timely manner. When the developers made a third request for funds, Lander denied it and informed them that the county commissioners were not comfortable with the project and the rest of the money would be released when they finished the project.
This scheme was the basis for Count Two of the indictment, which charged a violation of the mail fraud statute. The indictment met the requirement for a material misrepresentation by alleging that Lander “falsely represented to certain developers having business before Dixie County that the developers were required to pay a performance bond to Dixie County.”
The Eleventh Circuit held, however, that the evidence at trial disproved that Lander made this misrepresentation. For example, when one of the developers was asked whether Lander ever represented to them that Dixie County required a performance bond, he responded: “Not that I recall.”Another one of the developers stated that Lander never told her that the developers needed to post a performance bond. And he Government could point to no place in the record where the evidence at trial supported the charge that Lander misrepresented to the River Shores developers that they needed to post a performance bond.
Without this misrepresentation to support the River Shores scheme to defraud, the Government shifted its trial strategy. During its closing argument, it appeared to rely on Lander’s representations to the developers that he could make sure their project moved through the regulatory process.The Eleventh Circuit held, as a result, that the misrepresentation the Government relied on did not coincide with the allegations of the indictment and represented a material variance from the indictment. The Court concluded moreover that this variance substantially prejudiced Lander, in that he was not informed of the charges against him and was unfairly surprised by the evidence offered at trial.”Thanks to the FPD Orlando Office for the tip.
“The grand jury returned a twenty-one count superseding indictment against Lander. Sixteen of those counts concern us here. Count Two of the indictment relates to the River Shores Scheme and is explained more fully below. CountsFour through Fourteen charge Lander with money laundering by engaging in a monetary transaction in property of a value greater than $10,000 derived from mail fraud, in violation of 18 U.S.C. § 1957. These counts are based on various withdrawals Lander made from the Lander Law Firm – Special Account.”
“Lander argues before this court, as he did in his Motion for Judgment of acquittal, that the facts proved at trial to support the River Shores mail fraud charge (Count Two) materially varied from the allegations of the superseding indictment. According to Lander, this variance substantially prejudiced his rights and his conviction on this count should be reversed. We agree.”
“The standard of review for whether there is a material variance between the allegations in the indictment and the facts established at trial is twofold: First, whether a material variance did occur, and, second, whether the defendant suffered substantial prejudice as a result.” United States v. Chastain, 198 F.3d 1338, 1349(11th Cir. 1999) (citing United States v. Prince, 883 F.2d 953, 959 (11th Cir.1989)).”
“We have called an allegation of a variance in essence “one form of challenge to the sufficiency of the evidence.” United States v. Jenkins, 779 F.2d606, 616 (11th Cir. 1986). “A ‘variance’ occurs when the evidence at trial establishes facts materially different from those alleged in the indictment.” UnitedStates v. Caporale, 806 F.2d 1487, 1499 (11th Cir. 1986) (citing United States v.Johnson, 713 F.2d 633, 643 n.9 (11th Cir. 1983)).”
“To find substantial prejudice, we have ordinarily considered whether “the proof at trial differed so greatly from the charges that appellant was unfairly surprised and was unable to prepare an adequate defense.” United States v. Calderon, 127 F.3d 1314, 1328 (11th Cir.1997) (citations omitted).”
“Next, we must decide whether this variance substantially prejudiced Lander. We hold that it did. As our precedent explains, the rationale behind the material variance rule is that the accused be informed of the charges against him and that he not be surprised by the evidence offered at trial. Thompson v. Nagle, 118 F.3d1442, 1453 (11th Cir. 1997) (citing Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630 (1935)). This justification is grounded in the fundamental requirement that an indictment “apprise the defendant of what he must be prepared to meet.” Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038,1047 (1962) (citations omitted) (quotation marks omitted). “
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