The last time Samir Cabrera entered the federal courthouse in Fort Myers, he left shackled through a back door.
Friday, the former real estate agent convicted of multiple fraud and money laundering counts can enter and exit the front door a free man. And if Cabrera’s attorneys sway a U.S. district judge during oral arguments, he could maintain his freedom for the indefinite future.
The morning hearing is the latest step in Cabrera’s roller coaster appeal of his 2009 jury convictions and a pivotal moment for both sides.
Last year, the U.S. Supreme Court all but invalidated the jury’s verdicts and placed Cabrera’s 10-year prison sentence in question with a ruling that redefined the federal statute under which he was convicted,
Government prosecutors soon joined defense attorneys in requesting his convictions be vacated, and they agreed to his September 2010 release pending appeal.
In March, a federal appeals court in Atlanta formally vacated the convictions, but it declined to decide if the government can again prosecute Cabrera, or if doing so would amount to double jeopardy, as Cabrera’s attorneys claim.
That decision is now reserved for U.S. District Judge John E. Steele in Fort Myers, the same judge who sentenced Cabrera to prison in September 2009.
Cabrera, 34, is accused of defrauding investors in a pair of south Fort Myers land deals by using their money to purchase properties flipped from another company he owned. He and his associates kept the difference, some $2.8 million in “kicker fees.”
Prosecutors contend Cabrera intentionally concealed both maneuvers. Cabrera told jurors he believed the flips were disclosed.
Now living and working in Miami, Cabrera will be represented by federal defenders Russ Rosenthal and Donna Elm. Judy K. Hunt will argue for the government.
In briefs submitted to the court over recent weeks, both sides have focused on the six-page verdict sheet from Cabrera’s trial and the intentions of the jurors who completed it.
The document gave the panel three options for each of the six wire fraud counts. They could find Cabrera not guilty, guilty of the scheme to defraud investors of their money or guilty of a scheme to defraud investors of “the intangible right to honest services.”
Steele instructed jurors at the time on both guilty theories:
“If it’s both, you check both boxes. If it’s neither, obviously, you check not guilty.”
The panel of eight women and four men chose only the honest services theory in each count, leaving an empty blank by each line for money fraud.
That posed a problem when the Supreme Court ruling in Skilling v. United States narrowed the definition of honest services fraud to acts involving bribes or kickbacks, neither of which were alleged in Cabrera’s case.
With the conviction in each fraud count invalidated, attorneys returned to the verdict form and the empty blanks—had jurors acquitted Cabrera of the theory or had they simply ignored it?
Defense attorneys argue the former. They note the only way a jury could have convicted Cabrera of honest services fraud and acquitted him of money fraud was to complete the verdict form exactly as they did.
“The verdict form is clear on its face,” Elm wrote in a brief to the court. “Marking one object, but not the other, reflected a conviction on one object and an acquittal on the other.”
An acquittal on the money fraud theory would mean Cabrera could not be tried a second time due to the constitutional protection against double jeopardy.
Prosecutors argue the empty blanks amount instead to a mistrial, as both the verdict form and the jury instructions were unclear. The court correctly informed jurors they needed to be unanimous when choosing a theory, Hunt wrote in the government brief.
“It did not, however instruct the jury that it had to unanimously decide on both theories, instead plainly indicating that a decision of guilty on one theory was sufficient,” she wrote.
In 2009, Cabrera jury foreman David Dyson told the Daily News that jurors never agreed on the money fraud issue.
“We all agreed on the intent that there were no services provided (to investors),” Dyson said at the time. “We all agreed with that. But there was no unanimous agreement on the money issue.”
Yet attorneys for neither side asked jurors to explain the form at the time it was presented in court. Established law prohibits the court from asking them now, more than two years after the fact.
Daniel Richman, a Columbia University School of Law professor familiar with honest services cases, said jurors often view such verdict forms as a menu, stopping once they see something they like.
In fact, critics of the honest services statute long claimed its power was its use as a vague back door for prosecutors to convict in complex cases.
Richman was skeptical that a judge would view an empty blank as an implicit acquittal.
“Certainly where you can’t show the jury necessarily decided in favor of the defendant, a defendant has a hard time claiming acquittal,” he said.
Whether Steele agrees remains to be seen.