United States v. Lander: Convictions Reversed Because Facts at Trial Varied from Facts Alleged in Indictment

In United States v. Joseph Lander, the Eleventh Circuit reversed twelve of the defendant’s convictions for fraud and money laundering because the facts proved at trial materially varied from those alleged by the Government in the superseding indictment.

In this case, the defendant was convicted of mail fraud and money laundering charges related to two separate fraudulent schemes. The Eleventh Circuit upheld the convictions regarding one of the fraudulent schemes (misrepresenting expected returns on an investment in a vitamin company) but reversed the defendant’s mail fraud and money laundering convictions in the second scheme (involving the conversion of developers’ funds).

With regard to the latter scheme, the Eleventh Circuit held that the facts proved at the defendant’s trial for fraud materially varied from those alleged in the superseding indictment. The indictment itself alleged that Lander, a county attorney, misrepresented to developers that they were required to pay a performance bond to the county. At the trial, two developers stated that Lander either never instructed them about a performance bond or could not recall if he instructed them about a performance bond. Following this testimony, the Government adjusted its theory of the case and argued, in closing, that Lander misrepresented to the developers that he could make sure their project moved through the regulatory process. The court of appeals held that the misrepresentation that the Government ultimately relied on did not match the scheme to defraud which was set forth in the indictment, and was an essential element to the mail fraud charge. The court held that this material variance from the indictment substantially prejudiced Lander—by failing to “apprise the defendant of what he must be prepared to meet” and Lander’s mail fraud conviction was reversed.

Because the government based Lander’s money laundering charges on the aforementioned mail fraud charge—using the mail fraud to satisfy the “specified unlawful activity” element of money laundering—the court reversed Lander’s convictions on the money laundering charges as well.

Indictment Cures Any Defect in DUI Warrant

• STATE OF TENNESSEE V. GUY STEVEN CATHEY

Guy Cathey pled guilty to driving under the influence of an intoxicant (“DUI”), first offense, and reserved on appeal the following two certified questions: (1) “Whether a magistrate that conducts field sobriety tasks upon a defendant prior to issuance of a warrant is qualified as [a] ‘neutral and detached’ magistrate for purposes of the Fourth Amendment to the Constitution of the United States or its laws and/or in violation of the Constitution of the State of Tennessee and its laws”; and (2) “Whether the issuance of a warrant after the administration of field sobriety tasks by a magistrate to a defendant [was] in violation of the Constitution of the State of Tennessee and/or its laws.” After the challenged warrant was issued,the Grand Jury indicted the defendant, charging him with one count of DUI. The Court of Criminal Appeals held on Monday, Dec. 5, 2011, that the certified questions are not dispositive of the defendant’s case because the subsequent indictment cured any defects in the warrant. The appeal was dismissed.


How do you preserve a question on appeal?

Tennessee Rule of Criminal Procedure 37(b) sets forth the requirements for preserving certified questions for appeal from guilty pleas: The defendant may appeal from any judgment of conviction . . . on a plea of guilty . . . if . . . the defendant entered into a plea agreement under Rule11(a)(3) but explicitly reserved – with the consent of the state and of the court– the right to appeal a certified question of law that is dispositive of the case. . . .Tenn. R. Crim. P. 37(b)(2)(A). Strict compliance with Rule 37’s requirements is mandatory. See State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003)