ATLANTA (CN) — An attorney for a former business executive sentenced to two decades in prison for tax and wire fraud asked an 11th Circuit panel Wednesday to reinstate his habeas petition claiming his bipolar disorder rendered him unable to legally form the intent to commit the crimes.
Frank Amodeo, the former head of Mirabilis Ventures Inc. and Presidion Solutions Inc., was sentenced to 22 years in prison in May 2009 for his role in a scheme to divert his clients’ payroll taxes to his companies’ bank accounts instead of the IRS.
Amodeo pleaded guilty to conspiring to defraud the IRS, conspiring to commit wire fraud, obstructing an agency proceeding and failing to collect and remit payroll taxes. He was ordered to pay $181 million in restitution to the IRS, the amount he owed in payroll taxes.
On Wednesday, Amodeo’s attorney told a three-judge 11th Circuit panel that a Florida federal judge unfairly dismissed his petition for habeas relief and argued that he is “factually innocent” of the crimes to which he pleaded guilty.
Amodeo claims that he suffers from “a rapid-cycling variant of Bipolar 1 Disorder that includes [a] psychotic feature and chronic delusions.”
He alleged in his petition that his disease “manifests itself in a manner that negated his intent to commit the crimes and likely makes it impossible for him to form intent.”
In a two-page ruling, Senior U.S. District Judge William Hodges held that the “very narrow grounds” for which relief might be available in the 11th Circuit were “not present in this case.”
Arguing on behalf of Amodeo on Wednesday, attorney Raechel Kummer of Morgan Lewis & Bockius told the Atlanta-based appeals court that her client’s claim of “actual, factual innocence” is “meritorious” under the law.
“Our view is that a freestanding claim of actual innocence has to be cognizable under [the writ of] habeas corpus because justice demands that we protect the scope of constitutional protections for the innocent,” Kummer said. “Truly, the point of habeas corpus is that if someone is factually actually innocent, not legally actually innocent, of a crime, he shouldn’t be held in prison for a crime that he didn’t commit.”
Kummer urged the panel to “carefully scrutinize and narrowly construe” the writ of habeas corpus and noted that Hodges, a Richard Nixon appointee, had dismissed Amodeo’s petition before considering the merits of his claim.
Arguing on behalf of the government, Assistant U.S. Attorney Roberta Bodnar told the panel that Amodeo’s mistake was in waiting too long to make his claims.
“There was no impediment preventing him from arguing in his first [habeas] motion, his second, or his third, that he was actually innocent because his bipolar disorder prevented him from making, performing criminal intent,” Bodnar said, adding that Amodeo’s claim of factual innocence is “foreclosed” because it is not “newly discovered.”
Wednesday’s oral arguments marked the second time Amodeo has challenged his convictions before the 11th Circuit.
In January 2019, Amodeo’s attorneys asked the appeals court to reverse a ruling dismissing his challenges to the modification of a forfeiture order that required him to give up several properties, luxury cars, a Lear jet, and the assets of 11 companies. The 11th Circuit dismissed that appeal in February 2019 for lack of jurisdiction.
The panel hearing Amodeo’s latest appeal did not indicate when it would reach a decision in the case.
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