Post-Verdict Rule 29 Motions and Rule 33 Motions

In a post-verdict motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c), the Court, in assessing the sufficiency of the evidence, must review the evidence considered as a whole, including all inferences that may be reasonably drawn from it, in the light most favorable to the jury’s verdict, and decide whether a rational trier of fact could find guilt beyond a reasonable doubt. The motion must be filed within 7 days after the jury returns its verdict, or any additional time period allowed by the Court within the 7 days provided by the rule.

The verdict of a jury must be sustained if there was substantial evidence to support it. Thus, a criminal defendant has a "heavy burden" in requesting that his jury conviction be overturned based on insufficient evidence. However, although the standard of review for claims of insufficient evidence is stringent and a difficult one to meet, this does not mean that the reviewing court’s role is one of a perfunctory rubber stamp. Rather, the court's responsibility is to ensure that the government has shouldered its burden and adequately proved its case. In this regard, the government must do more than prove that the defendant's participation in the crime charged is possible or even plausible. It must prove the defendant's guilt beyond a reasonable doubt. For example, a criminal conviction based upon piling inference upon inference cannot stand. And while the evidence need not exclude every reasonable hypothesis of innocence in order to sustain a guilty verdict, a conviction predicated on conjecture cannot be sanctioned by the court. Thus, in spite of the stringent standard of review, if the government fails to meet its heavy burden of proof, the reviewing court must set aside the verdict.

Rule 33 Motions

A motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 is addressed to the sound discretion of the district court and is reviewed on appeal under the abuse of discretion standard. The motion must be filed within 7 days after the jury returns its verdict, or any additional time period allowed by the Court within the 7 days provided by the rule. On a motion for a new trial based on the weight of the evidence, the court need not view the evidence in the light most favorable to the verdict. Unlike a motion for a judgment of acquittal made pursuant to Rule 29, the district court may weigh the evidence and consider the credibility of the witnesses. If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury. However, motions for new trials based on the weight of the evidence are not favored, and courts are to grant them sparingly and with caution.

For more information visit H. Manuel Hernandez, P.A.

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553   

Aiding and Abetting - 18 U.S.C. § 2

The government can also convict a defendant for a substantive offense under the aiding and abetting statute -18 U.S.C. § 2. There is no separate penalty for § 2. To prove a substantive charge under a theory of aiding and abetting, the government has to prove that the defendant knowingly associated himself with the criminal venture and sought to make the venture a success. Judge Learned Hand set out the classic definition of aiding and abetting more than half a century ago when he explained that in order for a defendant to be liable as an aider and abettor, he must "in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, [and] that he seek by his action to make it succeed." As such, the crime of aiding and abetting does not require proof of an agreement to break the law like a conspiracy charge does. However, it does require knowledge of the crime being aided and abetted. The legal axiom "Actus non facit reum, nisi mens sit rea, "the act alone does not amount to guilt; it must be accompanied by a guilty mind" applies to this analysis

For more information visit H. Manuel Hernandez, P.A.

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553   

A Short Summary of the History of Federal Sentencing Laws

Federal sentencing law has experienced many changes during the last quarter century, and an often unsettling evolution during the past decade. This was not always the case. For the better part of the twentieth century, punishment in federal criminal cases was imposed under an indeterminate sentencing scheme. Statutes specified the penalties for crimes, but the sentencing judge had broad discretion to incarcerate a defendant and determine the length of the term of imprisonment, or impose probation or some other form of lesser restraint, and decide whether a fine should be imposed and how much. See, Mistretta v. United States, 488 U.S. 361, 363, 109 S.Ct. 647, 650, 102 L.Ed.2d 714 (1989). Federal sentencing was designed then on the premise that defendants convicted for criminal conduct could be rehabilitated and then returned to society with a minimal risk of recidivism. Id.

Eventually, "[r]ehabilitation as a sound penological theory came to be questioned and, in any event, was regarded by some as an unattainable goal for most cases." Mistretta, 488 U.S. at 365, 109 S.Ct, at 651. See, Senate Report on Sentencing Reform Act of 1984, S.Rep. No. 98-225 (1983), U.S. Code Cong. & Admin. News 1984 at p. 3182 (Referring to the "outmoded rehabilitation model" for federal criminal sentencing, and recognizing that the efforts of the criminal justice system to achieve rehabilitation of offenders had failed). Also, the broad discretion given sentencing judges under this system led to perceptions that "federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances." Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 2043-44, 135 L.Ed.2d 392 (1996).

To be continued

For more information visit H. Manuel Hernandez, P.A.

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553   

Criminal Appeal Time Limitations

Florida Appeals in Florida State Cases¹(A judgment and sentence "become final" within meaning of rule that requires motions to be filed within two years after judgment and sentence become final, when direct review proceedings are concluded, and jurisdiction to entertain motions for post conviction relief returns to the trial court). A defendant may, however, attack his or her conviction and sentence at any time if the defendant alleges and can establish 1- newly discovered evidence that was not known to the defendant or the defendant’s attorney previously and could not be ascertained by the exercise of due diligence; 2- a fundamental constitutional right asserted was not established during the 2-year time limitation and has been found to apply retroactively; and 3- that the defendant retained an attorney to timely initiate the collateral proceeding attacking the conviction and sentence and the attorney, through neglect, failed to act. Fla. R. Crim. P. 3.850(b)(1)-(3).Generally speaking, under Florida law a defendant has 30-days to file a direct appeal of his or her criminal conviction and sentence. Fla. R. App. P. 9.140(b)(3). A defendant may also file a collateral proceeding trying to set aside his or her conviction based on, among other things, ineffective assistance of counsel, within 2-years of the conclusion of any direct appeal in a non-capital case, and 1-year in a capital case. Fla. R. Crim. P. 3.850(b). The time period begins to run after the Florida Supreme Court has either ruled on any appeal, or in non-capital cases, has refused to consider an appeal, or after the 30-day time period has expired to appeal to the Florida Supreme Court from any adverse decision of the District Court of Appeals that considered the direct appeal, including any motions for rehearing.

For more information visit H. Manuel Hernandez, P.A.

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553  

Drug Offenses - Conspiracies

To prove the existence of a drug conspiracy under 18.U.S.C.§ 846, the government must prove beyond a reasonable doubt that there was an agreement between the accused and at least one of the other alleged conspirators to violate the narcotic’s laws as set out in the indictment. The existence of a conspiracy can be established by either direct evidence or circumstantial evidence, such as inferences drawn from the conduct of the defendants. Id.   Unlike the general federal conspiracy statute, 18 U.S.C.§ 371, the government is not required to prove the commission of an overt act.

However, as in the case with non-drug conspiracies, showing that a defendant has a general knowledge about drug activity does not prove that he or she agreed to become part of the conspiracy. The law is clear that mere presence at the scene of a crime or conspiratorial activity, or mere association with a co-conspirator, is not enough to establish a defendant's knowing and intentional participation in criminal activity, even if the defendant is aware of the criminal activity.

To establish a violation of 21 U.S.C. § 841, the government must prove that defendant: (1) possessed or distributed the controlled substance charged in the indictment either actually or constructively, (2) did so with a specific intent to distribute the controlled substance and (3) did so knowingly and intentionally.

For more information visit H. Manuel Hernandez, P.A.

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553   

Federal Child Pornography Statutes and Prosecutions

The elements of proof for most of the federal child pornography statutes are very similar, and with regards to the mens rea showing required regarding knowledge about whether what is being received, possessed or distributed is child pornography, the statutes are essentially identical.  For example to prove a violation of § 2252A(5)(B), the basic violation providing the lowest sentencing exposure for mere receipt or possession of child pornography,  the government must prove all of the following essential elements beyond a reasonable doubt:

First: That the Defendant knowingly received or possessed an item or items of child pornography, as charged;

Second: That such items of child pornography had been transported, shipped or mailed in interstate or foreign commerce, including by computer, as charged; and

Third: That at the time of such reception or possession the Defendant believed that such items constituted or contained child pornography . . .

For more information visit H. Manuel Hernandez, P.A.

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553   

General Conspiracy - 18 U.S.C. § 371

A conspiracy is considered a separate and distinct offense from the underlying substantive offense contemplated by the conspiracy.    To prove a conspiracy under 18 U.S.C. § 371, the government must prove beyond a reasonable doubt (1) an agreement among two or more persons to achieve an unlawful objective; (2) knowing and voluntary participation in the agreement; and (3) an overt act by a conspirator in furtherance of the agreement. . A violation of § 371 is punishable by a fine and imprisonment of up to five years, or both.

Since the offense of conspiracy is a specific intent crime, “[t]he government must . . . prove beyond a reasonable doubt that each defendant had a ‘deliberate, knowing, specific intent to join the conspiracy.’”  To establish this requisite intent, the evidence of knowledge must be substantial, clear and unequivocal, not slight.   In other words, the government must prove that a defendant knowingly and intentionally joined the charged conspiracy, knowing the conspiracy’s aims and intending to achieve them. Id. 

However, showing that a defendant has a general knowledge about criminal activity does not prove that he or she agreed to become part of the conspiracy. The law is clear that mere presence at the scene of a crime or conspiratorial activity, or mere association with a co-conspirator, is not enough to establish a defendant's knowing and intentional participation in criminal activity, even if the defendant is aware of the criminal activity.

For more information visit H. Manuel Hernandez, Attorney at Law

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553   

Understanding the Elements of Federal Criminal Cases

Every case must be viewed through the prism of its own facts and applicable law at the time those facts occurred. In most cases, that view changes as the case progresses, and the attorney becomes more familiar with the facts, the evidence, and the applicable law. The goal, however remains constant-avoiding the charges in the first instant and, if necessary, an acquittal of the client if charges are filed. Thus, understanding any case is an evolving process requiring repeated examination and reexamination of the evidence, the law, and the options available based on the evidence and the law as they are known to exist at the time.

What will follow in my future blogs is a brief discussion of the elements of offenses to many of the most commonly prosecuted federal criminal statutes. It is extremely useful to examine all potential charges, the elements of each, and the facts as they are known at the time, to help determine any real exposure to potential criminal charges. Doing this will also help in the defense investigation and review of the facts, documents, and other possible evidence, and in preparing any planned attempt to convince the prosecutor and the agents that there was no crime intentionally committed by anyone, and, if necessary, in eventually preparing the defense for trial.

I will also review many Florida state crimes and procedures such as: obtaining bail, appeals, post-conviction proceedings, forfeitures, and more.

For more information please visit H. Manuel Hernandez, Attorney and Counselor at Law

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553