| Read Time: 2 minutes | Federal Crimes

Recent trends in white collar crime prosecutions and defense

In recent years, the Obama administration has spent considerable time and effort in reforming the Justice Department’s approach to low-level drug offenders. In addition, state legislatures nationwide have begun to crack down on sex offenders even more harshly than they had before. These shifts in criminal prosecutions and defense have been fairly clear and straightforward. However, the federal government’s approach to prosecuting white collar crime has been less cut and dry than other prosecutorial trends have been in recent years. Some white collar crimes are treated as serious offenses, while others are treated inconsistently. It has therefore been difficult to craft criminal defense approaches accordingly. In 2014, this hodge podge approach to white collar prosecutions may shift in favor of clear priorities. As a result, criminal defense attorneys and white collar suspects alike will need to be on their guard in a few particular areas. According to the Wall Street Journal, it seems that attorneys at both the Securities and Exchange Commission and the Department of Justice are gearing up to focus on a few white collar priorities in particular during 2014. These priorities include accounting fraud, insider trading and enforcement of the Foreign Corrupt Practices Act. Why are these particular offenses sudden priorities? It seems that the Justice Department has had some recent significant prosecutorial victories in regards to these crimes and so it wants to crack down even more on violators in order to keep up momentum and institute a real shift in how it approaches these kinds of cases. As a result of this looming trend, it is important that you contact an experienced criminal defense attorney as soon as you suspect that you may be under suspicion for any of these crimes. Source: Wall Street Journal Law Blog, “Law 2014: In White Collar Crime It’s Déjà vu All Over Again,” Christopher M. Matthews, Dec. 31, 2013

Continue Reading

| Read Time: 2 minutes | Federal Crimes

Federal Asset Seizure Challenged at the Supreme Court

Should the Federal government be able to seize the assets of a defendant without a preliminary hearing and thereby infringe on the ability of a defendant to hire the lawyer of his choice?  That is the question that the United State Supreme Court will answer after oral arguments on Wednesday.  It is a question that has conflicting answers depending upon the Circuit in the United States and is a hot button issue in Federal Court cases. At this time the government must merely allege that the defendant’s assets are “traceable” to property involved in the alleged crime.  Currently the Judges do not look behind the Grand Jury’s finding that probable cause exists and will allow for the seizure to take place.  There is no vehicle for the defendant to challenge the validity of the evidence to support the asset freeze. So why is this important?  The asset seizure occurs before a person is found guilty or enters a plea of guilt.  The seizing of a defendant’s assets can prevent them from having the ability to hire the legal counsel of their choice and therefore infringes upon their Fifth Amendment right to counsel.  The ability to have counsel appointed or retain alternative counsel still infringes on their right to retain the counsel of their choosing. The government is arguing that the right to a preliminary hearing to challenge the seizure does not exist under the constitution and therefore the petition should be denied. The government’s position is not unexpected.  Their ability to curtail the choice of a defendant’s attorney leads to many guilty pleas.  Jay Weaver notes in article that there have been many high profile cases where a defendant’s ability to retain the counsel of their choice was stymied due to the federal government seizing that money. It will be interesting to see if the Supreme Court requires the government to make a showing at a preliminary hearing that there is traceable evidence that the property in question was involved with the alleged crime.

Continue Reading

| Read Time: 2 minutes | Federal Crimes

Mandatory Minimum Sentences, Child Pornography, and Adolecents

The Second Circuit Court of Appeals overturned Judge Weinstein’s sentence of a 19 year old for distribution of child pornography.  The Circuit Court’sdecision found that the mandatory minimum five year sentence did not violate the Eighth Amendment of the Constitution prohibiting cruel and unusual punishment and required Judge Weinstein to, at a minimum, sentence the defendant to the required five years in prison. The facts and circumstances of the case are not important for my discussion.  All that really needs to be understood is that there was child pornography (lots of it) and it was shared over the internet.  Nobody, not me, nor Judge Weinstein, is justifying his possession or believing that punishment was inappropriate.  However the case does touch on a number of hot topics.  The draconian sentencing guidelines associated with federal possession and distribution of child pornography, mandatory minimum sentences without a safety valve for judicial discretion, and how do we treat young adults sentenced for certain crimes. The idea that the federal sentencing guidelines as applied to child pornography cases are too extreme has been gaining steam for years.  In fact on March 5, 2013 the Department of Justice recommended a revision to the sentencing guidelines.  The Justice Department’s recommendation accounted for new technology and how offenders obtain child pornography collections.  Additionally a 2010 survey of federal judges conducted by the United States Sentencing Commission found that 70 percent of the respondents believed the guidelines were too high for possession and found that trial judges were using their discretion to go below the guidelines. However, the “C.R.” case was different.  Judge Weinstein, after hearing extensive testimony, attempted to go below the mandatory minimum for distribution of child pornography.  He attempted to argue that the mandatory minimum statute was cruel and unusual.  It was Judge Weinstein’s only way of trying to craft a sentence that was “sufficient, but not greater than necessary.”  Unfortunately the Second Circuit did not agree and found that a minimum five year sentence for distribution of child pornography was not “inherently barbaric” and “disproportionate to the crime”. I believe that Judge Weinstein was trying to push the envelope, and rightly so, on the law that prohibits capital punishment for juvenile offenders and life without parole for juvenile’s convicted of non-homicide cases.  By requiring a judge to impose a mandatory minimum sentence on a teenager and not allowing for any discretion on that sentence is extremely harsh.  Even Florida, not exactly known for going easy on crime, allows for a Judge to waive a mandatory minimum sentence under the Youthful Offender statute. I think the only way a Judge is going to regain their discretion is for Congress to give them the sentencing power that Judges were empowered with for centuries.  Until then, mandatory minimum will continue to be the norm and young adult offenders will continue to waste away in our prisons.

Continue Reading

| Read Time: < 1 minute | Federal Crimes

Study reveals benefits of federal drug sentencing reform efforts

Last week, we discussed the news that several Florida legislators are determined to strengthen sex crimes sentencing laws during the next legislative session. In that post, we explored why subjecting low-level offenders to even stricter sentencing laws would neither be in the best interests of Florida’s taxpayers nor the public generally as longer imprisonment terms for low-level offenders are unlikely to reduce recidivism rates. Additional evidence that applying shorter sentences for low-level offenders does not increase recidivism rates was released a few weeks ago by the United States Sentencing Commission. The commission issued a report indicating that offenders convicted of federal drug crimes who had their sentences shortened under the Fair Sentencing Act did not re-offend at rates any higher than those who had served far lengthier sentences for the same crimes. According to the report, over 7,300 offenders have had their incarceration terms shortened by an average of 29 months since the law went into effect. In addition to the fact that shorter prison terms have yielded no increase in recidivism rates, the government has saved roughly half-a-billion dollars annually by releasing these prisoners earlier than the time period that their sentences originally mandated. It is time for Florida to embrace the approach that the federal government has already begun to take. Longer incarceration terms harm taxpayers and do not benefit society in terms of recidivism rates. Reducing incarceration minimums for low-level offenders in Florida is a goal worthy of pursuit, as is a measure designed to reduce overinflated sentences for existing prisoners. Source: The New York Times, “Sentencing Reform Starts to Pay Off,” Editorial Board, Aug. 1, 2013

Continue Reading

| Read Time: 2 minutes | Federal Crimes

Cases involving possible FBI errors are being scrutinized

The American public has become increasingly fascinated with criminal science and forensic evidence analysis over the past decade or so. A staggering number of popular television programs and bestselling books focus on the impact that these processes have on both the prosecution of accused persons and the criminal defense strategies of those who have been accused. As interesting and captivating as these processes can be in a fictional context, accurate analysis of forensic evidence is anything but entertaining in real life. Proper collection, handling and analysis of forensic evidence can lead to justified acquittals and proper convictions. Mishandling, improper collection and errors in forensic evidence analysis can lead to wrongful convictions and other devastating, unjust consequences. Recently, the Justice Department and the Federal Bureau of Investigation (FBI) initiated a review of closed criminal cases in order to achieve a variety of objectives. Many in the criminal justice community are anxiously awaiting a final report on the effort, which is scheduled to be released later this summer. In all, more than 21,000 FBI Laboratory files are being examined. Preliminary results indicate that at least 120 wrongful convictions may have occurred as a result of exaggerated scientific testimony. Among the 120 potentially wrongful convictions identified so far, 27 are death row cases. The Justice Department and FBI review of closed cases will hopefully shed light on the ways in which our criminal justice system is serving the public as well as the ways in which it is certainly not. The initial problematic cases identified by the review suggest that serious gaps in our system exist. Hopefully this analysis will lead to solutions so that no future wrongful convictions are ever again allowed to occur. Source: The Washington Post, “U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors,” Spence S. Hsu, July 17, 2013

Continue Reading

| Read Time: < 1 minute | Federal Crimes

Why the Justice Safety Valve Act should be made law

When national crime rates reach all-time lows, one would expect that America’s federal prison population rate would similarly be situated at an all-time low. On the contrary, federal prisons are currently operating at a rate nearly forty percent above their capacity, despite record lows in national crime rates. Partially in response to this gross inconsistency, Congress has created an overcriminalization bipartisan task force. This new task force held its first hearings in June of this year. In those first hearings, the task force focused its attention on mandatory minimum imprisonment sentencing trends. At present, over half of federal inmates affected by mandatory minimum imprisonment sentences have been convicted of drug crimes. It has been determined that mandatory minimum sentencing was a primary driving force behind the federal prison population increase of 37,091 in 1995 to 76,216 in 2011, according to the New York Times. A bill entitled the Justice Safety Valve Act could help to reverse this disturbing trend currently being studied by the overcriminalization task force. The bill would allow judges greater discretion in certain cases that would ordinarily be subject to mandatory minimum sentencing. In these certain cases, convicted persons could be granted lesser sentences at a judge’s discretion, subject to specific criteria. The federal prison population is exploding at a time when crime rates are plummeting. In order to move away from a one-size-fits-all approach to criminal sentencing, the Justice Safety Valve Act should be passed. Once passed, judges could more fairly and proportionately sentence low-level offenders and keep the prison population manageable at the same time. Source: New York Times, “Needed: A New Safety Valve,” June 23, 2013

Continue Reading

| Read Time: 2 minutes | Federal Crimes

Supreme Court limits the power of Miranda-related silence

Thanks to a startling number of references in television, books and movies, most American adults understand their basic Miranda rights, even if they are unsure of what they are called. Generally, exercising one’s “right to remain silent” is perhaps the single-most well understood response to being arrested behind calling an attorney. Unfortunately, the United States Supreme Court recently handed down a decision that limits the ability of one’s Miranda rights to have the weight and power that they once did. Many individuals are arrested after committing no criminal wrongdoing, while others are fully aware that they have broken the law. For example, if an individual is aware that he has committed a federal drug crime, it would generally be against his best interests to answer questions posed by law enforcement until he was arrested and had retained a criminal defense attorney, correct? The Supreme Court’s decision makes the answer to this question complicated. Generally, Miranda rights are only read to an individual and strictly applied after an arrest has been made. However, the courts have often upheld the right of individuals to remain silent during questioning pre-arrest under various circumstances. The Supreme Court’s most recent decision makes the expectation clear that if an individual fails to answer questions pre-arrest that that silence can be used against that individual should his or her case come to trial. One’s Fifth Amendment protections against self-incrimination are complicated and nuanced. The Court’s recent ruling makes it all the more critical that individuals concerned that they have become suspects in a case retain experienced criminal defense counsel prior to arrest. The actions an individual takes prior to arrest can greatly impact the outcome of his or her case. Source: The New York Times, “A 5-4 Ruling, One of Three, Limits Silence’s Protection,” Adam Liptak, June 17, 2013

Continue Reading

| Read Time: < 1 minute | Federal Crimes

What privatizing Florida’s prison healthcare means practically

Several days ago, the First District Court of Appeals held that Florida may privatize its prison healthcare system. This broadly means that rather than assuming responsibility for the care of its prisoners, a private healthcare contractor or set of contractors will be tasked with that challenge. While this decision may ease certain budgetary burdens plaguing the state, it may truly imperil the ability of prisoners to receive the healthcare to which they are entitled. The criminal defense system operates in part to hold individuals accountable who have committed various illegal activities. However, those individuals do not lose their right to receive adequate healthcare if they are sentenced to any length of imprisonment. On the contrary, the law mandates that prisoners be granted access to a certain level of healthcare when they are imprisoned. Many individuals and organizations are expressing sincere concern that privatizing Florida’s prison healthcare system will lead to an unacceptable level of care for inmates. Private prison healthcare contractors have been criticized, fined and otherwise held accountable in other states for severely compromising inmate care in the interest of saving money. In some situations, the level of care inmates have received have inspired them to riot and otherwise react in dangerous ways in order to insist that their rights be enforced. Other private prison healthcare systems have been indicted for inhumane conditions and inmate deaths as a result of their approaches and practices. Though concerned Floridians may not have the power to reverse the court’s decision, they can remain educated about conditions as they evolve and demand reform if prisoners are denied access to adequate care in the future. Source: ThinkProgress, “Appeals Court Allows Florida To Privatize Prison Health Care, Ignoring Rampant Abuse Of Inmates,” Aviva Shen, June 5, 2013

Continue Reading

| Read Time: < 1 minute | Federal Crimes

Report calls for reform of compassionate release program

Both federal and state criminal laws often provide for certain release valves to be used in the event that it makes more sense from a values balancing standpoint to release a prisoner or mitigate his or her imprisonment terms than to keep that prisoner locked away. The criminal justice system seeks in part to balance the needs of public safety with the rights of prisoners. These release valves are employed when prisoners no longer pose any likely threat to public safety. According to federal sentencing guidelines, prisoners may be freed from the remainder of their prison sentences on a “compassionate release” basis under extraordinary circumstances. For example, if a prisoner is diagnosed with a terminal illness and no longer poses any likely danger to society, that prisoner may petition for compassionate release. This program serves the interests of taxpayer dollars and balancing the important interests of prisoners with public safety. Unfortunately, a recently released report authored by the independent inspector general at the Justice Department confirms that this release valve is being pulled far too infrequently by the federal Bureau of Prisons. The report also confirms that pulling this release valve more often would save valuable taxpayer dollars by reducing unnecessary overcrowding of prisoners who are only being sent home due to extraordinary circumstances. Over the five year period of 2006 to 2011, just 142 inmates were granted compassionate release status. The independent inspector general urges the federal Bureau of Prisons to reconsider its position on compassionate release and to reform its approach for the benefit of ailing prisoners and taxpayers alike. Source: New York Times, “More Releases of Ailing Prisoners Are Urged,” Charlie Savage, May 1, 2013

Continue Reading

| Read Time: < 1 minute | Federal Crimes

White collar sentencing guidelines now under intense scrutiny

A foundational principle of the American criminal justice system is predictability. Only when both crimes and punishment are clearly outlined and the law is applied similarly in similar situations may citizens make informed decisions about remaining inbounds of the law. When any necessary criminal law is predictable and universally applied, holding individuals accountable for breaking the law becomes less controversial and generally more beneficial for society as a whole. Unfortunately, mounting evidence suggests that federal sentencing guidelines for white collar crimes do not adhere to this foundational principle of predictability, nor are they often terribly proportionate to certain infractions committed by offenders. As a result, a highly influential judge is insisting that these guidelines be substantially reformed in the name of fairness and consistency. As they are currently constructed, federal sentencing guidelines for these offenses are set via a mathematical formula. One would imagine an arithmetic formula to be quite predictable. Unfortunately, the system is flawed in practice, producing highly illogical and irrational sentencing mandates. It is not the numbers themselves that are unpredictable but the ultimate sentences that they produce. For example, one fraudulent offense might be worth two points under the system and a very similar offense is worth four. In this scenario, two like-offenders will face very different sentencing mandates. Thus, the influential New York judge and many other criminal law experts are calling for a complete overhaul of the white collar sentencing guidelines. Because ultimately, only by ensuring predictability in sentencing on a practical level will the system operate justly.White collar sentencing guidelines now under intense scrutiny Source: Thomson Reuters News & Insight, “Rakoff says sentencing guidelines should be ‘scrapped’,” Nate Raymond, Mar. 11, 2013

Continue Reading