Articles Posted in Federal Crimes

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The United States Department of Justice (DOJ) recently issued a statement indicating what everyone else already knows- continuing to increase prison populations is getting extremely expensive and is unsustainable in the current economic environment (or any other realistic environment for that matter). The DOJ asked the United States Sentencing Commission to try to reduce the costs associated with federal prisons. The report did not, however, indicate how they expected the costs to be reduced.

The report did come with some sobering statistics about our federal prison population. The conclusion is that regardless of whatever our politicians want to tell us about how conservative they are and how they want to reduce the size of government, government keeps getting bigger and bigger and more and more money is wasted.

In 1980, there were only 19,000 prisoners with fewer than 25% there for drug crimes. By 2010, there were 190,000 federal prisoners with more than 50% being there for drug crimes. That is what happens when you wage a wasteful and self-defeating war on drugs. The other thing that happens is the government, i.e. the taxpayers, pays a lot of money to keep this ineffective system going. Expenditures on the state, local and federal levels increased from $32.6 billion in 1984 to $186.2 billion in 2006. We are not asking anyone to hold his/her breath, but with the country in debt and terrible shape economically, maybe someone somewhere will understand that spending so much money on ineffective policies is not the best use of taxpayer money.

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As we have discussed on our criminal defense lawyer blog in the past, the federal sentencing guidelines, which play a significant role in the ultimate sentence a federal criminal defendant will receive, used to be much more severe for crack cocaine cases as opposed to powder cocaine cases. They still are, however the wide gap has been narrowed to some degree. A couple of years ago, the rules for crack cocaine and powder cocaine sentencing in federal court changed to make sentences somewhat more comparable for powder and crack cocaine cases involving similar amounts (basically, the sentencing disparity went from 100-1 to 18-1).

The new rules clearly apply for the benefit of anyone with a new crack cocaine case. One question was whether the lesser crack cocaine guidelines apply to people who pled guilty or were convicted at trial prior to the new rules but were scheduled to be sentenced after the new rules went into effect in 2010. The United States Supreme Court recently decided that the lesser crack cocaine sentencing rules do apply to people in the pipeline at the time, i.e. people who were convicted prior to the rules going into effect but sentenced after the rules went into effect. As a result, there are thousands of defendants who were convicted of crack cocaine crimes who could have their sentences reduced under the new crack cocaine sentencing rules.

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A defendant from California who was accused of practicing law as a criminal defense lawyer without a license was charged with a variety of federal crimes, including mail fraud and wire fraud, and ultimately convicted and sentenced to nine and a half years in federal prison. The defendant never went to law school and never took any bar exams. However, he managed to get admitted to several federal courts by filing false admission applications to those federal courts, and he handled many criminal cases as a criminal defense lawyer in several states.

In court, defendant’s real criminal defense lawyer argued that the federal government did not establish all of the necessary elements of wire fraud and mail fraud. In order to commit the federal crime of wire fraud, there must be some aspect of the crime that is transmitted by wire to a different state for the purpose iof executing a scheme to defraud another. In order to commit mail fraud, a defendant must use the mail system to further the scheme to defraud.

For the wire fraud charge, the government focused on the defendant’s website which he used to promote his fraudulent criminal law practice. The government called a witness from the defendant’s website hosting and domain name registration company. That witness testified that the server, which processes and stores data for the website, was located out of state in Virginia and anyone in any state could and did view the website. The court went into a lengthy and technical discussion about how internet content crosses state lines when people from other states view it. At the end of the discussion, the court ruled that posting a website that was hosted in a different state and viewed by people in different states was sufficient to satisfy the interstate requirement for a wire fraud conviction.

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The federal Computer Fraud and Abuse Act (CFAA) was intended to be an anti-hacking criminal statute to go after people who hack into databases and computer systems without authorization to misappropriate data. However, certain prosecutors have attempted to expand their powers under the Act and use the Computer Fraud and Abuse Act to prosecute people who were not intended to be covered by the law

In a federal criminal case out of California, prosecutors charged a defendant for violating the Computer Fraud and Abuse Act for violating certain computer-related policies of his employer. In this case, the defendant was an employee of an executive recruiting company named Korn/Ferry. He left the company to start a competing company. The defendant contacted some of his former co-workers who were still working at Korn/Ferry and asked them to download confidential information from the Korn/Ferry computer system to assist the defendant with his new company. The employees were allowed to access the Korn/Ferry computer database because they still worked there. However, Korn/Ferry’s policies did not allow them to use the information in the database to help a competing business.

The United States Attorney’s Office charged the defendant with violating the Computer Fraud and Abuse Act for aiding and abetting the Korn/Ferry employees in exceeding their access to the Korn/Ferry computer system to defraud the company. The criminal defense attorneys moved to dismiss the CFAA charges. They argued that the CFAA was intended to punish hackers who access computer databases without authorization, not people who have authorization to access a computer database but misuse the information in violation of company policy.

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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.

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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.

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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.

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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.

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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.

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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.