In Diveroli v. United States, the U.S. District Court for the Middle District of Florida recently explained the basic requirements that prosecutors must satisfy in bringing a criminal information against a defendant. The bar is not a high one: essentially, the government must simply allege that the defendant committed the crime. But just because this basic pleading requirement is met does not mean the person charged will ultimately be convicted.
Efraim Diveroli was among a number of defendants indicted on 85 counts of conspiracy to make false statements, to commit major fraud against the United States, and to commit wire fraud. He plead guilty to these charges in August 2009 and was sentenced by the U.S. District Court for the Southern District of Florida two years later.
Meanwhile, Diveroli was separately charged with a federal offense of possession of firearms by a convicted felon in October 2010. The criminal information against him stated that Diveroli was convicted on the conspiracy charges in August 2009 and found in possession of guns after that time. He later entered a plea agreement, under which Diveroli plead guilty to the charge and was sentenced to four years in prison with half of the sentence running concurrently with his prison time on the conspiracy charges.
Diveroli later filed a motion to dismiss the information on the weapons charge, claiming that he was not a convicted felon at the time he was in possession of the guns and therefore could not be charged with the crime. The court, however, ruled that this was a factual matter that must be decided at trial, rather than on a motion to dismiss. “In ruling on a motion to dismiss for failure to state an offense, a district court is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes,” the court explained, citing the Eleventh Circuit’s 2006 decision in United States v. Sharpe. Here, the information sufficiently alleged on its face that Diveroli had been convicted prior to the charge, according to the court.
Furthermore, the court found that the conspiracy convictions did not fall under the so-called “business practices exception” to the federal law prohibiting gun possession by felons. The exception removes criminal offenses requiring the government to prove an effect upon competition or consumers as an element of the offense from the felonies for which those convicted are banned from possessing firearms. Here, Diveroli obtained money by fraudulent means, but none of the charges for which he was convicted required prosecutors to show that his actions affected competition or consumers.
As a result, the Court denied Diveroli’s motion to dismiss the information.
TheSouth Florida criminal defense attorneys at Anidjar & Levine are experienced in handling a wide range of criminal cases, including those related to gun possession, throughout the state. Contact us to schedule a confidential consultation and discuss how Anidjar & Levine can aggressively defend your rights in court.
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