Articles Posted in Federal Crimes

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.

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.

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.

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.

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.

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