FORT MYERS — Federal prosecutors arguing for a second trial of former real estate agent Samir Cabrera on fraud and money laundering charges were met with pointed questions during a crucial Friday hearing.
U.S. District Judge John E. Steele originally sentenced Cabrera to 10 years in prison following his 2009 conviction. With those convictions now vacated following a U.S. Supreme Court ruling in 2010, Steele appeared skeptical of the prosecution’s request for a second chance to imprison Cabrera.
During 90 minutes of oral arguments on the matter, prosecutors contended the verdict form completed by jurors was flawed, as were instructions Steele gave to jurors.
“If the verdict form was wrong, why did your prosecutors not tell me that (during the trial)?” Steele asked Assistant United States Attorney Judy K. Hunt.
The hearing was the latest step in a series of turnarounds in Cabrera’s case. Released from a Pensacola prison last fall, he could remain a free man should Steele agree with the defense position, that a retrial would amount to double jeopardy.
Steele is expected to release an order in the coming days.
Cabrera, 34, was seated next to his attorneys in the courtroom. Dressed in a dark suit and visibly slimmer than he was in 2009, he did not speak during the hearing.
Jurors convicted Cabrera in January 2009 of six counts of fraud and five counts of money laundering stemming from a pair of failed south Fort Myers land deals from 2006. Prosecutors say Cabrera used investor money to flip the properties between two companies he owned, netting him and associates $2.8 million in “kicker fees.”
A federal appeals court reversed his convictions earlier this year after a 2010 U.S. Supreme Court ruling redefined the statute underlying the wire fraud guilty verdicts.
That statute, defining a concept known as ‘honest services fraud’, was one of two theories of guilt presented for each wire fraud count in the verdict form. Jurors were asked to decide if Cabrera was not guilty of fraud, guilty of defrauding investors of his honest services or guilty of defrauding them of money. Steele told jurors they could select both guilt theories, but that they must be unanimous in whatever they chose.
When jurors chose only honest services fraud with each of the six wire fraud counts, neither the prosecution nor defense raised an issue. Yet when the Supreme Court released its ruling in Skilling v. United States a year and a half later, both sides looked toward the empty blanks.
“Isn’t that the same as the jury finding him not guilty?” Steele asked Hunt on Friday, referring to the blanks.
“No your honor,” she replied. “We don’t know... The only thing we do know is that they did not find him guilty (of money fraud).”
Hunt argued that because jurors made no clear expression of acquittal on the theory, Cabrera must be retried for money fraud. She called the verdict form “legal error” that amounted to a mistrial, and she said Steele’s instructions to jurors confused them into believing they could choose one theory while neglecting the other.
Yet jurors had only one way to acquit Cabrera of money fraud while convicting him of honest services fraud, both Steele and Cabrera attorney Russ Rosenthal noted — by completing the form exactly as they did.
“Didn’t they do just what I told them to do?” Steele asked Hunt. “And they were unanimous to both (theories)?”
The judge also challenged Hunt’s assertion that both sides had to “bear the brunt” of their failure to clarify the verdict form with jurors, noting that a retrial would clearly be in the government’s favor.
Hunt also argued that five money laundering counts weren’t necessarily tied to the wire fraud counts, meaning Cabrera could be retried on each even if Steele decided that jurors indeed acquitted on the money fraud theory.
Rosenthal emphasized that prosecutors never asked jurors about the empty blanks when the verdict was released, and he said the defense had no reason to do so, as Cabrera believed the blanks expressed acquittal.
“Everyone agreed this verdict form was sufficient to cover all contingencies,” Rosenthal told Steele. “There was no other way for them to express (acquittal on money fraud) except exactly as they expressed it in the verdict form.”
He argued that because Cabrera was accused of laundering the proceeds of the fraud, if Steele determined jurors acquitted Cabrera on the money fraud theory, the money laundering counts could not be retried.
Steele had few questions for Rosenthal beyond asking him to rebut Hunt’s assertions.