Articles Posted in Federal Crimes

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As every criminal defense lawyer knows, there are some very draconian minimum mandatory sentences in Federal criminal court.  There are federal minimum mandatory sentences for certain drug offenses, firearm offenses, and for defendants who have certain convictions.   There are two ways to break the minimum mandatory sentence, which then allows a judge to sentence you below the minimum mandatory.  The first is called “substantial assistance.”  Basically, if you snitch and the government wants your information, uses your information, and they determine that it was worthy of a sentence below the minimum mandatory, they can file a substantial assistant motion and if granted by the judge, the minimum mandatory would no longer apply.  You can only get less than the minimum mandatory sentence if the prosecutor files the motion.  If they decide not to file the motion, the judge must sentence you to the minimum mandatory sentence up to the maximum sentence.  But what if you don’t want to snitch? What if you don’t have any information that the government is interested in?  There is one more option that will allow the judge to sentence you below the minimum mandatory sentence: Safety Valve.

What is Safety Valve?

The “Safety Valve” provision is a provision of law codified in 18 United States Code §3553(f).  It specifically allows a judge to sentence you below the minimum mandatory required by law.  However, you must be eligible.  There is also a two level reduction in the sentencing guidelines under United States Sentencing Guidelines §2D1.1(b)(17).

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adobe-spark-post-10A Federal Grand Jury is an integral part of almost any federal criminal case.  Grand jury testimony often becomes a key issue in a federal criminal trial.  But what is a Grand Jury exactly?  How is it different than any other jury?  How is the federal system different than in the Florida criminal justice system?   What are your rights when it comes to a Grand Jury?

What is a Federal Grand Jury?

A Federal Grand Jury is a group of citizens that come together to determine whether there is probable cause to issue an indictment in federal court.  An indictment is the charging document that lays out the crime or crimes that a person is being charged with.  A Grand Jury must have between 16-23 people.  The Grand Jury will generally meet over the course of several months and will sit for many cases.  The court will appoint one foreperson to serve as a type of chairperson who organizes and leads the discussions.

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Bernandino Bolatete has been arrested and charged by criminal complaint in federal court in Jacksonville, Florida after threatening to a mass shooting at a local mosque.  But what he has initially been charged with might surprise you?  Rather than a charge related to a terroristic threat, Mr. Bolatete has been charged with knowingly receiving and possessing a silencer that was not registered to him in the National Firearms Registration and Transfer Record.  26 U.S.C. §5861(d) makes it a federal offense to receive or possess certain unregistered firearms.  Included in the definition of a firearm under the applicable section is a silencer.  Mr. Bolatete is charged with receiving and possessing a firearm provided to him by an undercover officer.

What is the National Firearm Registration and Transfer Record (NFRTR)

The National Firearm Registration and Transfer Record (NFRTR) is a national registry of certain firearms that are subject to the National Firearms Act.  It is a federal criminal offense to possess or receive certain firearms that have not been registered to you in the NFRTR.  The Act only applies to certain firearms.  The registry includes:

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The Department of Justice (DOJ) and a state attorney’s office in New York recently obtained a settlement with BNP Paribas, a large bank based out of France that resulted in a huge fine against the bank. The bank was charged with falsifying bank records to allow it to use the American banking system to do business with forbidden countries such as Iran, Sudan and Cuba. The United States forbids companies from transacting with countries listed as rogues states by the United States government. The government was able to have BNP Paribas sanctioned with a significant fine- about $9 billion. However, BNP indicated it would easily be able to absorb the fine, continue to operate as usual and even continue paying its dividend for 2014. BNP Paribas reported approximately $50 billion in revenue last year, and while the stock price has declined since the announcement of the settlement, it is still well above its 52 week low.

Clearly, this was a significant fine, but BNP Paribas will come out just fine. However, it is important to note that no individual was indicted for this criminal activity. While the company’s conduct was serious enough to warrant an unprecedented fine, apparently it was not serious enough to charge any individual with a crime. Alternatively, when individuals are caught committing similar crimes outside the context of a well-capitalized company, they are most likely going to face criminal charges and prison time. As an example, last year an individual defendant was sentenced to federal prison for helping someone wire a few thousand dollars to an unknown recipient in a restricted Middle East country. The rules for corporations and individuals are still drastically different when it comes to committing major crimes.

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The federal wire fraud statute is very broad and used often by United States Attorneys offices in presenting indictments to grand juries. Essentially, a person commits wire fraud when he/she uses a wire communication (i.e. a telephone, among other methods) to defraud someone out of money or property using false statements or pretenses. The crime carries a maximum penalty of up to twenty years in federal prison.

Is it still wire fraud if a person uses false statements to obtain property but does not actually defraud the other party out of money? That is not a question often asked in a wire fraud or mail fraud case because the object of the scheme is normally to defraud someone out of money or out of property without paying for it. However, in a recent case out of Ohio, the government charged two people who were operating an illegal pain clinic with wire fraud under such questionable circumstances. We had a lot of these pain clinic cases here in Florida with the federal and state law enforcement agencies shutting down a lot of so called pain clinics they claimed were distributing pain pills to people en masse without conducting proper medical evaluations and diagnoses. In the Ohio case, those issues were present, but the government also charged the defendants with wire fraud for telling their supplier, a pharmaceutical company, that they were prescribing the pain pills for low income patients. That misrepresentation allowed them to obtain the pills from the pharmaceutical company, but the defendants paid full price for the pills.

The government alleged this was wire fraud because the defendants made false statements to get the pharmaceutical company to sell them the pills. The criminal defense lawyer defended the case by arguing that the pharmaceutical company was not defrauded because it received full compensation for the pills. The fact that the pharmaceutical company received false information should not be the basis for a wire fraud conviction.

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E-cigarettes are often marketed as a safer alternative to regular tobacco cigarettes. There are many new companies, some of them public, that are manufacturing e-cigarettes and making a lot of money doing so. E-cigarettes are different from traditional cigarettes in that they are battery operated and heat a liquid that contains nicotine and turns it into vapor that can be inhaled and exhaled. While an e-cigarette often looks like a traditional cigarette and a person smoking one looks like he/she is exhaling smoke, it is actually vapor. E-cigarette proponents say since the e-cigarette user is not burning tobacco which is a carcinogen when inhaled, e-cigarettes are much safer. Others say that a person smoking an e-cigarette is still inhaling harmful substances and it is too soon to tell what the long term effects might be.

As expected, the federal government has decided to get involved. The Food and Drug Administration has proposed some rules to regulate e-cigarettes. They have proposed banning sales to minors, requiring warning labels on the packages and requiring approval for new products. These are similar to rules governing the sale of traditional cigarettes. Of course, as we learn more about e-cigarettes, more regulations may follow such as banning flavored e-cigarettes that might be more tempting to kids or banning Internet sales that make it easier for kids to buy them.

As these regulations and laws go into effect, it is important for retail store owners to be aware of them. As the police have done and continue to do with what they call “synthetic marijuana”, we would expect law enforcement to go to certain places that sell e-cigarettes and start making arrests if and when e-cigarettes are sold in violation of the laws and regulations.

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It is not always clear when a criminal case will be handled by the federal government, i.e. the United States Attorney’s Office, or the state or local government, i.e. the state attorney’s office here in Florida. For drug cases, the federal government typically likes to handle the bigger cases, and the cases that involve small amounts of drugs normally stay on the state or local level. If drugs and guns are involved, the federal government often likes to handle those cases because the federal statutes and sentencing guidelines have harsh penalties for people convicted in those cases.

Whether a defendant is better off in state court or federal court depends on a lot of factors such as the nature of the case, the defendant’s criminal history, the judge, the county and other factors. The federal system does have fairly severe potential penalties for all varieties of drug cases, but again, whether a defendant actually gets a severe penalty depends on many factors. However, in federal cases, hopefully help is on the way for those people charged with non-violent drug offenses. We have discussed at length how our prisons are full of non-violent drug offenders. This isn’t just an enormous waste of taxpayer money, but it is also counterproductive if the idea is to help people get off of drugs.

Some government officials seem to finally acknowledge this problem and are doing something about it. Attorney General Eric Holder recently announced proposed reductions to the federal sentencing guidelines for non-violent drug offenders. The federal sentencing guidelines are guidelines that judges strongly consider when sentencing a defendant for any crime in federal court. These new guidelines would apparently reduce prison sentences by eleven months, on average. This, of course, would also reduce taxpayer expenditures going towards the housing of non-violent drug offenders. It is expected that these new, more lenient guidelines would go into effect later in 2014.

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As we have discussed several times on this site in the past, minimum mandatory sentences are among the most counterproductive and just plain stupid ideas our government has come up with, and that is saying a lot given the state of our government these days. Among other problems, they are basically laws created by people who have no idea about the details of the particular cases, and they take the discretion away from the people who know the facts of the case the most and the circumstances of the parties the most. They also give tremendous power to the police and the prosecutor that can be abused to leverage pleas and harsh sentences in cases and against people who do not deserve them.

For instance, if a person is charged with committing certain crimes in Florida and fires a gun in the process, without hitting or injuring anyone, that person can face a minimum mandatory sentence of twenty years in prison. There are numerous cases, perhaps most cases, involving conflicts between people where there is a real gray area as to whether the suspect is guilty of a crime, fired a gun in self defense or did nothing wrong at all. Even where a person is guuilty of such a crime, there are often mitigating factors in the case that make it very clear that twenty years is way too harsh of a sentence. However, in these cases, the state can charge the twenty year mandatory minimum crime and because that gives the state so much leverage, it forces the defendant to agree to a deal and enter a plea, often receiving a lighter sentence. The state can always waive the minimum mandatory sentence. So, in many cases where the defendant has a valid self defense claim or other defense, the defendant may end up taking a year or two in prison or probation and become a convicted felon even though he/she may not be guilty. But because you never know what a jury would do, and you do know there is a twenty year mandatory minimum penalty if the jury finds you guilty, it is way too risky to fight it in court. In that sense, which is fairly common, the mandatory minimum law severely compromises, or even eliminates, a person’s constitutional right to trial.

Another case we see often where this is a serious problem is in prescription pill cases. The laws in Florida are very harsh for possession of pills such as Hydrocodone without a prescription. It does not take many pills to qualify for a trafficking charge. The low level trafficking charges come with a three year mandatory minimum prison sentence. And the mandatory minimum prison sentences go up from there. There are many people out there who have pain pills without a prescription who are not criminals and do not deserve a felony conviction and years in prison. In many cases, the only difference between a drug trafficker (under Florida law) and a law-abiding person with a legitimate medical prescription is being born to a rich family or having a job that offers decent health insurance. In other words, a lot of people have a need for prescription drugs due to auto accidents, workplace injuries and other problems. Not everyone has health insurance to pay for those drugs. However, because of the Florida drug laws and mandatory minimum prison laws, the less fortunate go to prison while the more fortunate are popping pills with impunity.

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As we have discussed on here several times, the federal government finally got around to reducing (not eliminating) the huge disparity between sentences for powder cocaine crimes and crack cocaine crimes. Under the old law, which was in effect for a long time, the difference between prison sentences for crack cocaine crimes versus powder cocaine crimes was about a 100-1 ratio. In other words, someone who possessed a quantity of crack cocaine was likely to get a much higher prison sentence than a similarly situated person who possessed the same quantity of powder cocaine.

It was clear that this sentencing disparity in federal drug cases was having a disproportionately negative effect on African-American defendants. There was no denying that they were the ones primarily serving these inflated sentences. There was also little to no justification for why crack cocaine sentences were so much worse than powder cocaine sentences.

Congress did change the law with the 2010 Fair Sentencing Act. While it did bring crack cocaine and powder cocaine sentences closer together, there is still a pretty large disparity between those cases. The ratio in sentences between crack cocaine and powder cocaine cases is now about 18-1.

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As the federal deficit skyrockets on a continuing basis, one area that is not discussed very often as a contributing factor is the amount of money allocated to the Department of Justice, the building of more prisons and the overcrowding of the prisons we already have. People may assume money going towards crime and punishment is well spent, but a quick look at the spectacular failure of the ongoing war on drugs should negate any such assumption.

According to a recent report from the Government Accountability Office (GAO), the growth in the number of federal prisoners is increasing faster than the country’s ability to house them. When one considers that it is expensive for taxpayers to pay for each federal prisoner, that growth adds up to an expensive problem. Even worse, the GAO noted that this rapid growth in federal prisoners is largely due to people being arrested, charged and sentenced for drug crimes. From 2006 to 2011, the federal prison population increased by 9.5%, which was 7% greater than the increase in prison capacity. As a result, the number of prisons that were overcrowded with federal prisoners increased from 36% to 39% during that time period. That percentage is expected to increase to 45% by 2018. Who are all of these prisoners packing the federal prisons and costing taxpayers millions of dollars? Last year, 48% of federal prisoners were drug offenders, and they were serving prison sentences that were 2.5 years longer than in the mid-1980’s on average.

The war on drugs is a colossal failure, and it is possibly the most expensive failure in the history of the country since there is no end in sight and it is only getting bigger. The war on drugs is expensive on so many levels. Overcrowded prisons is just one of them.