Federal Drug Trafficking amendment voted unanimously to be retroactive

The United States Sentencing Commission voted unanimously to make the “drug minus 2” amendment retroactive with a single condition – no order reducing a sentencing can take effect until November 1, 2015.  So long as Congress allows the guidelines changes to stand and the legislation is in effect as of November 1, 2014.  In April of this year, the Commission voted unanimously to amend the guidelines to lower the base offense levels in the drug quantity table across drug types, which should mean lower sentences for most drug offenders going forward.

While the drug quantities for certain base offense levels were raised, some offenders will still not be eligible for relief because their drug quantities were still very high.  For example, the existing lower threshold for base offense level 38 is 150 kilos of cocaine.  With the new guideline, the minimum is raised to 450 kilos.  Unfortunately for most Panama Express Defendants, the quantities of cocaine typically are in excess of450 kilos and thus no guideline reduction will benefit them.  As with all drug offenders, statutory minimum mandatory penalties still apply.

The Commission estimates that over 46,000 offenders would have their case reviewed to see if they are eligible for a reduction.  This is very good news for all federal drug offenders across the nation.

United States Supreme Court limits search of cell phone data incident to arrest

The United States Supreme Court in a unanimous decision has held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested incident to a lawful arrest.  A search of digital information on a cell phone does not further government interests in officer safety and preventing evidence destruction and implicates substantially greater individual privacy interest than a brief physical search of the contents of an individual’s pockets.  That is not to say that evidence existing on a cell phone taken from an arrested person is immune to search, it is that law enforcement will have to apply and meet the requirements of probable cause to get a search warrant from a judge.

DOJ Changes Position on False Statements Prosecutions

The federal government will frequently charge individuals with a violation of 18 USC 1001 for giving a False Statement to a Government Agency.  To be convicted under that section, a person must act “willfully” in making false statements to investigators.  Recently, the U.S. Department of Justice (DOJ) has quietly adopted a more defense-friendly position on such prosecutions.  Federal prosecutors are now told that in order to prove a person acted willfully in providing a false statement to a federal agency, they must prove beyond a reasonable doubt that the defendant knew that making the statement was unlawful – not just that the statement was false.  This is a material change in the government’s charging decisions that could affect future white collar investigations and prosecutions under Section 1001.

Such prosecutions have ensnared such high-profile defendants as Martha Stewart and former Illinois Governor Rod Blagojevich.  In short, the government must now prove that the statement was false and the person making the false statement knew that making a false statement was unlawful.

 

Julie Scheckner will use Insanity Defense

On Friday, the criminal defense attorneys representing Julie Scheckner indicated their intent to use the insanity defense. Scheckner is accused of shooting and killing both of her children this past January, but her defense claims that she suffers from “bipolar disorder with psychotic features.”

An ABC Action News article claims that Scheckner told authorities she killed her children because they were being disrespectful and “mouthy”. Scheckner allegedly did not only struggle with a mental illness, but substance abuse as well.

In order for Scheckner to be found not guilty by reason of insanity, the jury must be convinced that she did not know right from wrong. Although it may be true that she suffers from bipolar disease, it has to be proven in court that because of her disease, she did not think she did anything wrong. With statements from Scheckner that she shot her children because of their behavior, her defense is facing quite a challenge to prove that she is not guilty by reason of insanity.

Restoration of 1 Civil right not enough for Felon in Possession of Firearm

The Eleventh Circuit Court of Appeals in US v. Thompson found that in a case involving felon in possession of a firearm in violation of 18 U.S.C. section 922(g)(1), the Defendant must have had at least two of the three “civil rights” restored to not be in violation of the statute. Thus, when Thompson was charged with being a felon in possession of a firearm based on a 1994 state conviction, he defended the case claiming that his civil rights had been restored in 2005. In actuality, Thompson only regained his right to vote, but not to serve on a jury or to hold public office. The Eleventh Circuit held that because Thompson had only 1 or his 3 civil rights restored, he was still in violation of the statue for possessing a firearm.

Palmieri Law Voted Best Law Firm of North Tampa

The Tampa Tribune Reader’s Poll of 2012 has rated Palmieri Law as the Best Law Firm in its Reader’s Poll of 2012. This was a result of countless reader’s voting and confirming the hard work that Lori Doganiero Palmieri and her staff has worked hard to achieve over the last 9 years in private practice.  If you or a loved one is in need of criminal defense representation in state or federal court, why not go to the best – the expert in Criminal Trial Law – Palmieri Law.

Do Jurors Use Google During Trial?

A federal district judge in Manhattan says she is “keenly aware” of convictions set aside because jurors have looked up information on the Internet during trial, the New York Times reports. Judge Shira Scheindlin suggested a way to combat the problem by requiring jurors to sign a pledge promising they will not look up case related information online until the case is over. Violations of the pledge could bring perjury charges against jurors who fail to comply.
As most jurors have iPhones or Blackberrys with them when reporting for jury duty, how often do jurors fail to adhere to the admonition by the trial judge not to watch the news, read newspapers or surf the web during the trial? Because trials are only fair if the only evidence considered by the jury is what is presented in court, looking up information on the internet clearly requires reversal if it occurs and is known. Particularly in cases with a great deal of news coverage, it could certainly affect the outcome of the case should outside infomation infiltrate the jury’s deliberations. Consider making this request during jury selection of the trial judge in your case should you be a criminal defendant, particularly in a case with excessive media coverage.

South Florida Judge says Florida’s Drug Law is Constitutional

A circuit court judge in Palm Beach Florida, unlike Miami-Dade Judge Milton Hirsch, upheld the constitutionality of Florida’s drug statute. In a 16-page opinion, Judge Kastrenakes blasted U.S. District Judge Mary Scriven and Circuit Judge Hirsch arguing they disregarded a plethora of appeals court decisions to reach their erroneous conclusion that the law is unconstitutional because prosecutors don’t have to prove that a person knew he possessed illegal drugs to get a conviction. Mere possession is enough, the judge wrote. Their rulings, he claimed were “fatally-flawed” and “just plain inaccurate.”

Judges in Hillsborough and Pinellas Counties have thus far denied all motions to dismiss 893.13 charges. Appeals have been taken from Judge Scriven’s ruling as well as in South Florida. This issue will have to end up before the Supreme Court to decide.

11th Circuit Court of Appeals lifts Valle Execution Stay

 
The United States Court of Appeals for the Eleventh Circuit in Atlanta lifted the stay of execution order in the case of Manuel Valle, allowing Valle’s twice-delayed execution to move forward. This paves the way for Governor Rick Scott to reschedule Valle’s execution. Scott has 10 days to order the execution after a stay is lifted.
 
Valle is still hoping that pleadings pending in federal court in Jacksonville and before the U.S. Supreme Court will delay his execution yet again.
 

Operation Rainmaker: A Tax Fraud Epidemic

Earlier this year, Tampa police detectives realized a decrease in the amount of drug dealers on street corners. Instead of feeling relieved, detectives became worried – this was the first red flag that something was up.

Where was everyone? How were they making money? According to a recent investigation, they were allegedly involved in a money-spinning tax fraud business bringing in $130 million. Instead of putting themselves in danger on street corners, the individuals involved could do this job from the comfort of their own homes; all they needed was a laptop.

As reported by the Seminole Heights Patch, a suspect told Tampa Police Detective Sal Augeri, “Why would I take the risk to sell drugs and get busted when I can put $10,000 on a card and do it all day long from home while the cartoons are on?”

The operation was not sophisticated. The suspects allegedly would log onto sites like Ancestry.com, dig up information on victims (living and deceased) and eventually steal their identity. Another workaround was to buy the information from people who had access to social security numbers (prisons, businesses etc.).

After the information was obtained, the suspect could go to electronic tax filling applications like TurboTax, file a fraudulent claim and have the refund sent somewhere that was untraceable to the individual. Taxpayers soon discovered they could not claim their tax refunds because one had already been filed – this was the second red flag.

The third red flag, and the one that led to the entire investigation, was the fact that police officers were pulling over suspects and finding laptops and Green Dot credit cards.

Making any moves in the investigation was difficult because of the restrictions set by the IRS. The police had to find a way around the obstacles under a federal law that prevents law enforcement from gaining access to tax returns.

Tampa Police Department has joined forces with the Hillsborough County Sheriff’s Office, the Secret Service, the US Postal Inspection Service, the State Attorney’s Office 13th Judicial Circuit and the US Attorney’s Office for the Middle District of Florida. The investigation, named Operation Rainmaker, has resulted “…in $100 million in intercepted taxes, $5 million in recovered taxes and assets, and $25 million in stolen taxes.”

Although we are making progress in the Tampa area, Tampa Police Chief Jane Castor said, “My gut feeling is that this is happening throughout the United States.” This case is a classic example of why citizens must be vigilant in the protection of their personal identification information, especially for the elderly and their children.

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