Jacksonville Criminal Lawyer Blog

As we have discussed several times in the past, the old laws dealing with prison sentences were very different for crack cocaine crimes as opposed to powder cocaine crimes. Basically, a person charged with an amount of crack cocaine often faced a much more severe prison sentence than a different person charged with the same amount of powder cocaine. After years of incredibly disparate sentences for similar drug crimes, quite often detrimentally affecting African-Americans, Congress finally acted to minimize the difference with the Fair Sentencing Act of 2010. The difference was not eliminated altogether. However, because the differences were so tremendous before, there was room to make significant changes. The ratio of prison sentences for crack cocaine crimes versus powder cocaine crimes went from 100 - 1 to 18 - 1. There is still a pretty big difference, but it is much better than before.

The new rules are now in effect for federal crack cocaine and powder cocaine crimes. Anyone who is charged with a crack cocaine crime going forward will benefit from the less stringent sentencing rules. Due to a United States Sentencing Commission decision, the new rules are also being applied retroactively, which means people who were arrested and convicted for crack cocaine crimes in the past and sentenced to prison under the old rules can challenge that sentence and request a modified sentence more in line with the new rules. Many people have recently been successful with that challenge.

Statistics show that approximately 1,800 people in federal prisons on crack cocaine charges are eligible for immediate release under the new sentencing rules. Additionally, about 12,000 federal inmates convicted of crack cocaine charges are eligible for reduced prison sentences.

The FBI is using more aggressive means to get personal emails and information about internet usage. In the past, the FBI was permitted to use administrative subpoenas that were not initially presented to a judge for review. These administrative subpoenas, or national security letters, were sent to internet service providers at the discretion of the FBI asking internet service providers to disclose information about personal emails and what websites the targets of the subpoenas had visited. Upon receiving the national security letters, the internet providers were obligated to refrain from alerting its customers that the FBI was requesting the information and the internet service provider was providing the information.

More recently, perhaps due to backlash from the secret disclosure of this private information, the internet service providers were limiting the information they would provide to the FBI in response to these national security letters. As a result, the FBI has shifted its strategy and asked the courts for orders, called business records requests, that require the internet service providers to release the extensive private information previously obtained by the national security letters. According to a recent article, in the first few months of this year, more than 80% of the business record requests made by the FBI were for internet records, and the FBI made more than four times as many business record requests in 2010 compared to the prior year.

A postal supervisor with the United States Postal Service was arrested for stealing merchandise that was ordered from online stores and shipped through the mail. The defendant was sentenced to three years in federal prison for stealing over $150,000 in merchandise. One of the ways the defendant was tracked was through pawn shops in Florida and Georgia where the defendant sold the stolen merchandise. When a person pawns an item at a pawn shop, the pawn shop will keep identifying information about the person such as a picture, signature and fingerprint card.

Normally, the theft of store merchandise and most other items will be a crime charged in state court. However, the theft of mail comes under the jurisdiction of the federal government and will be prosecuted by the United States Attorney's Office. Therefore, a person charged with a mail theft charge will face an entirely different criminal system with a different way of determining a proper sentence, if convicted. While this case involved more than $150,000, theft of any mail can still be a federal crime. When a defendant is charged with a federal crime in federal court, the rules are quite different from the majority of cases that end up in state court. When charged with any federal crime, it is important to seek the advice and counsel of criminal defense lawyers who are familiar with the different system and rules involved in the federal system.

if you have been arrested for a federal crime and would like to know your rights in the federal system, feel free to contact us for a free consultation.

Over the last several years with the ever-increasing deficit becoming more and more of a issue in the media, the federal and state governments have focused more on crimes that involve fraud, including fraud that involves government benefits. There may be no bigger crime involving fraud and government benefits at any time in our history than Medicare fraud.

Medicare is a government funded insurance program that assists approximately 46 million of the elderly and disabled with health care. One report estimated the total amount of Medicare fraud at $60 billion as of 2009. We have seen many cases where state and/or federal law enforcement officials have investigated and arrested doctors, medical center owners, executives and employees and patients for allegedly committing various versions of Medicare fraud. One of the most common methods of committing Medicare fraud occurs when a doctor or other employee sends a Medicare reimbursement form to the government for medical services or equipment that were unnecessary or never provided.

Recently the federal government announced that 91 people in eight different cities were charged with committing Medicare fraud in an amount totaling approximately $300 million. Among those charged were many doctors accused of seeking reimbursement for medical services that were never provided. As an example, one doctor is accused of billing Medicare for medical services allegedly provided to dead people.

The Attorney General's office has indicated that Medicare fraud investigations are a critical part of President Obama's healthcare reform. As the government spends money and tries to deal with the runaway deficit problem, attacking the billions of dollars lost through Medicare fraud appears to be an area ripe for attention from state and federal law enforcement officials.

A federal judge recently declined to sentence a defendant with ecstasy charges within the federal sentencing guidelines because he felt the federal sentencing guidelines punish ecstasy crimes too harshly and are not scientifically justified.

In federal court, when a defendant pleads guilty or is convicted at trial, the judge will determine his/her sentencing guidelines prior to sentencing. The ultimate guideline range takes several factors into consideration including, for drug cases, the type of drug and the quantity of the drug. Crimes involving some drugs result in higher sentencing ranges than others. A person's criminal history and the circumstances of the crime are also factors in determining one's sentencing guidelines range. Ultimately, a guideline range for the crime that is measured in months will be established which suggests that the judge should sentence the defendant somewhere within that range. Federal judges are not required to sentence the defendant within that range; they can depart above or below that range based on the nature of the criminal activity and the particular defendant and other factors.

In this case, the defendant pled guilty to conspiracy to possess and distribute ecstasy. His sentencing guidelines range was 63 - 78 months in federal prison. The judge, however, departed well below that guidelines range and sentenced the defendant to 26 months in prison. At the sentencing hearing, the judge was presented with testimony about the relative safety of ecstasy, including testimony from a Harvard psychiatrist who referenced a five year study that found long term recreational ecstasy use did not cause clinically significant damaging effects. The judge concluded that the harshness of the ecstasy sentencing guidelines did not have a rational relationship to the effects of the drug and a sentence within the guidelines range would be greater than necessary to achieve the objectives of sentencing.

In the past, we have discussed the unequal treatment given to defendants who have been arrested for drug crimes where the primary difference was whether the illegal drug was crack cocaine or powder cocaine. Under the old federal criminal laws, people arrested and charged with crack cocaine crimes faced much stiffer penalties and prison sentences than those charged with similar powder cocaine charges. As an example, someone caught with 5 grams of crack cocaine could face a mandatory minimum prison sentence of five years while it would take 500 grams of powder cocaine to subject a defendant to the same mandatory minimum prison sentence.

Under the Fair Sentencing Act, Congress acted to bridge the gap between sentences for crack cocaine crimes and powder cocaine crimes. While the two crimes are still not considered equal for sentencing purposes, the large disparity between crack cocaine and powder cocaine crime sentences has diminished to some degree. The disparity was reduced from 100-1 to 18-1.

One question that remained when Congress decided to bring sentences for crack cocaine and powder cocaine crimes closer together was whether defendants convicted of crack cocaine crimes sentenced under the old, harsher laws could petition the courts for a modified, lesser sentence considering the new law. There are thousands of federal inmates who have been convicted of crack cocaine crimes that would have greatly benefited had Congress decided to fix this disparity sooner.

The United States Sentencing Commission recently unanimously voted to apply this new law retroactively. This means that people who were convicted before the Fair Sentencing Act became effective can petition the court to have their sentences reduced consistent with the changes made in the law. It is estimated that this will affect more than 12,000 prison inmates and reduce prison sentences by an average of three years. It is also expected to save the government approximately $200 million.

Twenty-one people were charged with conspiracy to distribute cocaine and marijuana in Brunswick, Georgia federal court, according to an article on News4Jax.com. A few of them were also indicted on related weapons charges. The indictments were the result of a lengthy investigation by the Drug Enforcement Agency (DEA), the Georgia Bureau of Investigation (GBI), the Glyn Brunswick Narcotics Enforcement team and the FBI. According to the article, each of the twenty-one defendants faces a minimum 10 year prison sentence and up to life in prison along with significant fines and forfeiture of their property.

Drug cases such as these are not uncommon in federal court. Many drug conspiracy cases involve multiple defendants because of the way the crime is charged. We see conspiracy charged in federal court quite often in drug cases because it can be an easier charge to prove. In order to prove conspiracy to distribute or manufacture illegal drugs, the federal prosecutors do not have to prove that each defendant actually sold the drugs, was involved in manufacturing the drugs (in methamphetamine cases) or actually grew the drugs (in marijuana cases). The federal government merely has to prove that the particular defendant knowingly and intentionally agreed or worked with at least one other defendant to distribute, manufacture or grow the drugs. Depending on the case, this can be a lot easier to prove than proving actual drug selling, drug manufacturing or drug growing on the part of each person charged. A conspiracy to commit a federal drug crime can involve significantly more conduct than just selling, manufacturing or growing, and the conspiracy charge can cover a lot of different people that had some known relationship to the operation, even when that person's relationship to the operation is minor.

While the evidence that is needed to prove a conspiracy can be less than what is required to prove an actual hands-on drug charge, the penalties are often the same. As the article indicates, the conspiracy charge can come with severe penalties just like drug selling, manufacturing and growing charges. As a result, a person who was only tangentially involved (i.e. just handled the money or provided some of the materials used to set up the operation) can face a 10 year minimum prison sentence just like the person who actually sold the drugs.

If you have questions about a drug case, whether it is a federal felony drug conspiracy charge or a state drug charge, the law office of Shorstein & Lasnetski, LLC in Jacksonville, Florida handles all criminal cases in Florida and Georgia. Feel free to contact us for a free consultation.

As criminal defense lawyers in the Jacksonville, Florida area who handle all criminal cases in state and federal courts, we have seen how people convicted of crack cocaine crimes can receive much higher sentences than those convicted of powder cocaine crimes where the amount of powder cocaine was similar to or even less than the crack cocaine in the related case. The unfairness of these sentencing rules, which disproportionately punished people involved with crack cocaine over those involved with powder cocaine, has been discussed by prosecutors, criminal defense lawyers, federal judges and even the Congress and the president.

Finally, new rules bringing sentences for crack cocaine cases and powder cocaine cases closer together have been enacted. The Fair Sentencing Act, which will permanently become the law next year, is now in effect.

The old federal sentencing guidelines would provide that a person caught with as few as 5 grams of crack cocaine would receive a five year minimum mandatory prison sentence. However, it would take at least 500 grams of powder cocaine to get the same minimum mandatory sentence. That was quite a disparity. With the new law and federal sentencing rules, it will now take 28 grams of crack cocaine to trigger the five year minimum mandatory prison sentence. The threshold for the ten year minimum mandatory prison sentence has been increased from 50 grams of crack cocaine to 280 grams of crack cocaine.

Under the new federal criminal sentencing rules, the sentences for crack cocaine and powder cocaine crimes are not equal, and not really close to being equal. However, they are now much more similar than they were in the past prior to the Fair Sentencing Act.

The federal government recently obtained an indictment against a St. Augustine woman claiming she was running a Ponzi scheme through her investment company in St. Augustine, Florida, according to an article on News4Jax.com. The woman was charged with 14 counts of wire fraud, mail fraud and conspiracy to commit wire fraud and mail fraud in federal court in Jacksonville, Florida for allegedly stealing more than $100 million from investors. The federal government claims that the suspect told investors they were investing money in high interest loans and would be assured of a 15% - 20% return on their money. The federal government alleges that she was actually running a Ponzi scheme with the investment funds.

A Ponzi scheme involves a person soliciting funds from investors and promising that the money will be allocated into legitimate investments. The person also typically promises unrealistically high returns. Once the investments start coming in, the person will pay the prior investors with some of the new money coming in and call the payments the returns which ostensibly confirm the promise of the great investment. Ultimately, when new investors run out, there is not enough money to pay off the existing investors and the people start asking questions.

The term "overcriminalization" refers to the government creating laws that make certain conduct a crime when that conduct is more appropriately addressed with less serious sanctions such as a fine, or perhaps not at all. A recent article on the Miami Herald's website discusses this overcriminalization issue and provides a very good example. In 1999, Abner Shoenwetter, a 64 year old seafood importer with no prior criminal record, was charged with smuggling and conspiracy after he agreed to buy lobsters from a supplier he had used many times in the past. Apparently, these particular lobsters were caught in violation of regulations in Honduras, even though it was later determined that the Honduras regulations did not apply to the lobsters. The alleged violations related to how the lobsters were packaged and the size of the lobsters. In any case, Mr. Shoenwetter served six years in federal prison for agreeing to buy these lobsters.

The article notes that there are more than 4,450 federal crimes in existence to go along with more than 300,000 federal regulations for which one can be punished with criminal sanctions. Between 2000 and 2007, Congress created 452 new crimes, an average of more than one per week. One problem, it seems, is that our reactive government has a natural tendency to get bigger, with new laws, but no one seems to take the time to assess the state of the old laws to eliminate those that may be unnecessary, out of date, too ambiguous or just plain wrong.

A federal grand jury recently indicted a group of people based on prosecutors' allegations that they participated in a scheme to defraud mortgage brokers out of $1.8 million in thirteen different real estate transactions. The charges allegedly involve Access E-Mortgage, Inc., a company out of St. Augustine, Florida. Based on a recent article, the prosecutors are using the federal mail and wire fraud statutes to charge the individuals. The indictment charges a total of sixteen individuals allegedly involved in the scheme. According to the indictment, the scheme involved recruiting straw buyers who would give false information to the mortgage brokers to obtain loans. The loaned funds would then allegedly be stolen by the people involved in the scheme.

We have handled several recent cases involving alleged mortgage fraud over the last several months. As we discussed on our website before, the federal government has taken a greater interest in these cases and attributed more time, manpower and other resources to make mortgage fraud cases. This appears to be a reaction to the publicity the failing housing market and numerous foreclosures have had over the last couple of years. With the federal government, and the state and local government to a lesser degree, it seems like prosecutions in a particular area often follow the news of the day. As the housing market and foreclosures have become more of an issue in the media, the number of mortgage fraud cases have increased. Sometimes, this reaction to newsworthy issues can result in people being arrested and charged with crimes who have little to no involvement in the criminal activity. When the government casts a wide net, some innocent people often get caught.

Eight employees of the U.S. Postal Service were arrested by federal agents for opening and stealing mail, according to a recent Jacksonville news article. The postal employees were accused of opening the mail and stealing the contesnts such as gift cards, debit cards and other items of value. Because the U.S. mail comes under the jurisdiction of the Office of the Inspector General, a federal department, the suspects were all indicted for mail theft and other charges in federal court. Mail theft in federal court carries a maximum penalty of five years in prison for each count.

Many of the crimes we see that involve computer or networking technology and criminal activity of a sexual nature deal with people in possession of child pornography on their computers. Law enforcement officials are able to track these photos and videos and find them on just about any computer. People need to understand that connecting a computer to the internet is like opening a door to the harddrive through which the government can freely walk, with the appropriate search warrant or permission, of course.

However, another crime we are starting to see more often in Florida deals with a new term called sexting. Sexting, which is derived from the word texting, involves sending sexually suggestive, and sometimes illegal, picture via text messages, which can be done on most cell phones these days. Some kids may think that sending a naked picture to a friend of similar age is a joke. In fact, sending a sexually suggestive picture of a minor to another person over the internet or via text message can be a serious crime in Florida. Police in the Jacksonville area are receiving more complaints about such activity and following up with arrests. When a person uses a cell phone or computer to send such a picture, it can be a federal crime. One twenty-four year old kid was recently sentenced to twenty years in federal prison for violating federal criminal laws by sending naked pictures of a minor over the internet and by cell phone. Everyone should be aware, and adults should tell their kids, that it can be a very serious crime to send nude and other sexually suggestive pictures by text message or over the internet, regardless of how harmless it may seem.

In federal criminal cases charging a defendant with fraud relating to the operation of a business, a common defense is asserted that the defendant relied upon the advice of a professional or other advisor, such as an accountant, and had the right to assume his/her conduct was legal. In a federal criminal trial where the defendant is charged with fraud or a related crime and the defense is a good faith reliance upon such advice, the judge should normally allow the defendant to assert such defense and should normally instruct the jury that such good faith reliance upon an advisor is a valid defense if supported by the facts.

In criminal fraud cases in federal court, the government normally must prove that the defendant intended to defraud the victim. In other words, the government must prove beyond a reasonable doubt that the defendant's purpose in performing the acts that constitute the fraud crime was to defraud another person out of services, money and/or other property. As a result, a logical defense to criminal fraud would be that the defendant had no ill-intent, but rather thought he/she was acting lawfully based upon the advice of an advisor. This is why good faith reliance upon the advice of a professional can be a valid defense in federal criminal fraud cases. Of course, whether the defendant acted with intent to defraud someone or was honestly and innocently relying upon an advisor is a matter for the jury to decide.

However, in order for the jury to properly understand and evaluate this defense when deliberating, the judge in the case must instruct the jury about this good faith reliance defense. If the judge rejects the federal criminal defense lawyer's request to instruct the jury about the defendant's good faith reliance upon an advisor defense, the jury cannot consider it when deciding the case. Under federal law, the judge does not have the authority to decide what the defendant's defense is and instruct the jury accordingly. Likewise, the federal judge in a criminal case does not have the authority to decide that the defendant's defense of good faith reliance upon an advisor is weak or lacking in credibility and therefore refuse to instruct the jury about the defense.

The threshold to allow a jury to consider that defense is low. If there is any foundation in the evidence for the defense that the defendant relied upon the advice of an advisor, then the judge must instruct the jury to consider that defense. If the jury finds that the defendant did rely in good faith upon the advice of such a professional, it should be a complete defense to a fraud charge in federal criminal court and result in a not guilty verdict.

As the Internet becomes more popular and more accessible through portable and handheld devices, more people are sending sexually explicit pictures in violation of state and federal laws. These pictures are also being sent as attachments to text messages to and from cell phones. What one person thinks is a harmless or funny text or email may actually be a serious felony crime.

Federal law enforcement authorities have noted an increase in such online criminal behavior. One area that is specifically of note is the crime of sexual extortion. Sexual extortion may result when a teenager sends a naked or suggestive picture of herself over the Internet, and someone threatens to expose her behavior to family or friends unless she sends more such pictures or more sexually explicit pictures. One federal criminal affidavit labeled this kind of crime as sextortion, according to an article on SFgate.com. The article provides several examples of recent, high-profile cases involving sexual extortion over the Internet, and the punishments some of these defendants are getting are severe, including lengthy prison sentences. Some people, particularly young people, may assume that sending sexually suggestive pictures over the Internet or via text message is fun or a harmless prank. However, depending on the circumstances, state or federal law enforcement officials may consider it a serious crime with serious consequences. And emails and text messages are often easy to trace back to the sender. The best course of action is to not post any suggestive pictures of oneself or anyone else on the Internet or send them via email or text message to anyone. Once they get posted or sent, they can end up anywhere.

For a long time in federal criminal court, sentences for crimes involving crack cocaine were much harsher than sentences for crimes involving powder cocaine. In fact, all other things being equal, a person with 100 grams of powder cocaine may likely receive the same sentence as a person with 1 gram of crack cocaine. The Obama administration has discussed changing this system so that crack cocaine crimes are punished more in line with powder cocaine crimes in federal court.

Congress recently passed a law to help accomplish that goal, at least partially. The law does not equalize powder cocaine and crack cocaine sentences, but it significantly lowers the sentencing ratio. Now, all things being equal, 1 gram of powder cocaine is punished the same way as 18 grams of crack cocaine in federal criminal cases. Additionally, 28 grams of crack cocaine will trigger the 5 year minimum mandatory prison sentence while 280 grams of powder cocaine will trigger that 5 year minimum mandatory federal prison sentence.

Now, the question for many people who are serving sentences for crack cocaine crimes in federal prison, or have pending crack cocaine cases in federal court, is whether this new law applies to them. Can a person who is serving a sentence for a crack cocaine crime who was sentenced pursuant to the 100-1 ratio go back in front of a federal judge to get his/her sentence reduced? Can a person with a pending crack cocaine case be sentenced pursuant to the new 18-1 ratio? The new law does not address these questions, i.e. when the law becomes effective, or whether the law is retroactive. Normally, when a law does not address this issue of the effective date or retroactivity, it does not apply to prior or existing cases. Normally, it would only apply to cases where the date of the offense occurred after the date the law was officially passed. However, that issue will likely be argued and litigated in federal criminal cases going forward.

Several Employees of United Directories, a company located in Jacksonville Beach, Florida, were indicted in federal court for allegedly defrauding businesses out of more than $400 million by allegedly sending fraudulent bills for Yellow Pages advertisements. Federal law enforcement officials said United Directories and its employees sent the false Yellow Pages advertisement bills of several hundred dollars each to more than 100,000 companies across the country over a four year period.

Two of the charges include mail fraud and money laundering. The federal government will charge someone with mail fraud any time a person is alleged to have used the mail to commit or facilitate fraud. Using the mail as part of a scheme to defraud confers jurisdiction upon the federal government in a criminal case. Money laundering involves taking money that is known to come from illegal activity or an illegal source and mixing it with legitimate money in an attempt to conceal the source of the money, or clean it. When this kind of money is involved in an alleged fraudulent scheme, the potential penalties can be quite severe.

U.S. Attorney General Eric Holder recently issued a memorandum regarding the U.S. Attorney's Office charging of federal crimes and sentencing. The new memo basically supersedes the previous policy of former U.S. Attorney General John Ashcroft. Aschcroft's policies on charging and sentencing sought more uniformity and less discretion. Holder's policy appears to recognize that each case and each defendant are different so more discretion and "individual assessment" are appropriate when considering the charges and sentencing enhacements.

The prior policy of the government was to charge the most serious crime(s) that can be considered consistent with the defendant's conduct and likely to obtain a conviction. The new policy appears to encourage prosecutors to take a closer look into the characteristics of the individual defendant and the case to see if a departure from the most serious charges and sentencing enhancements may be warranted.

The U.S. Senate recently passed a bill that would make sentences for crack cocaine crimes more in line with sentences for similar powder cocaine crimes in federal courts. As it stands now, defendants can be sentenced much more harshly for crack cocaine crimes as opposed to equivalent powder cocaine crimes. In other words, a person can have a relatively small amount of crack cocaine and receive a much higher prison sentence than a person who has an equal or even lesser amount of powder cocaine. The unfairness of this system in federal courts has been discussed for years, and the Obama administration has given a clear indication of its intent to move towards equalizing the two crimes or at least pulling sentences closer together.

The bill that passed in the Senate does not go as far as making crack cocaine and powder cocaine crimes equal in terms of penalties, but it does reduce the disparity when a person is sentenced for crack cocaine crimes versus powder cocaine crimes. The bill also eliminates minimum mandatory sentences for people charged with simple possession of crack cocaine.

The bill making crack cocaine and powder cocaine sentences more similar, though not equal, is not yet the law. The bill still has to go through the normal legislative process. However, it is likely that at some point in the future, crack cocaine sentences and powder cocaine sentences will get in the same ballpark. But until that happens, the sentences for crack cocaine cases are much more serious than sentences for powder cocaine cases in federal courts.

Based on the tone and substance of a recent speech and press release from Eric Holder, the federal government plans to step up investigations and prosecutions of medical professionals for health care fraud. Mr. Holder made it clear that the government considers health care fraud one of the country's "most destructive" and "widespread" challenges. As a result, the federal government has created a couple of task forces specifically conceived to deal with health care fraud cases. Mr. Holder is also asking state and local law enforcement agencies to assist the federal government in making health care fraud cases and make their own cases.

Health care fraud, also referred to as Medicare or Medicaid fraud, can take several forms. Some of the more common accusations of health care fraud involve claims that doctors are charging the government for medical services or equipment that were not necessary or doctors are charging the government for medical services or equipment that were not provided. Investigators will look for what they consider to be excessive or unusual billing practices when investigating health care fraud cases.

According to the government, approximately $60 billion in public and private health care spending is lost each year to health care fraud. As a result, the government is increasing its budget to fight what they perceive to be health care fraud. In 2010, the federal government increased the health care fraud budget from $200 million to $300 million. As expected, health care fraud cases have increased. In the six months prior to the speech and press release, 60 health care fraud cases were filed and over 200 people were charged with health care fraud related crimes.

When the government focuses on a particular issue, they will pump more money into enforcement and increase arrests and prosecutions. Often times, the wide net cast by the government to make these cases crosses the line between illegal fraud and honest mistakes and aggressive but legal business practices.