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.

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.

 

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.

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.

Tampa Teen Arrested with Alleged Plans to Surpass Columbine Massacre

“I just did the dumbest thing ever [sic]” was 17-year-old Jared Cano’s Facebook status update hours before he was arrested for allegedly plotting to kill school officials and students with home-made bombs.

What Cano is referring to as “the dumbest thing ever” is unclear, but we do know that immediately after a anonymous tip came in about Cano’s plan, the bomb squad was at his Tampa apartment. It is likely that Cano had shared his plan, and that someone called the police. Some are calling this anonymous tipster a “local hero”.

Cano had a manifesto found by police that detailed his every move and motive. According to an ABC article, his goal was to surpass “the number of students who were killed and injured during the 1999 Columbine High School massacre.” With such serious claims found in Cano’s manifesto, it will be interesting to see what route his criminal defense attorney advises him to take.

With an existing criminal record to begin with, Cano has been accused of threatening to throw, project, place or discharge a destructive device, possession of bomb-making materials, cultivation of marijuana, possession of drug paraphernalia and possession of marijuana.

Cano currently sits in juvenile lockup while the state attorney’s office decides whether or not he will be charged as an adult. Given the seriousness of these allegations and the defendant’s age, he will likely face these charges in adult court.

How are you prosecuted for Mortgage Fraud if there is no Federal Statute?

While there is no federal statute that references “mortgage fraud” directly, recent news articles abound on the subject. In four separate cases in South Florida, the U.S. Attorney accuses 27 of mortgage fraud, according to an August 4th article posted on LoanSafe.org. On the same day, an Arizona builder pleads guilty to mortgage fraud, according to KTAR.com and fox news cited that 14 have been charged in a $60 Million mortgage fraud scheme. The list goes on…

Cases involving “mortgage fraud” are typically prosecuted under existing federal statutes involving conspiracy, wire fraud, bank fraud, false statements to an FDIC-Insured Bank and others. Ancillary offenses, including tax fraud and bankruptcy fraud can also be charged following a “mortgage fraud” investigation. Depending on the number of properties involved and the dollar amount of the loss, penalties vary widely and can involve real estate agents, mortgage brokers, real estate attorneys, title closers, appraisers, and straw buyers. Some of the schemes in the news are fairly elaborate, involving fraudulent mortgage applications, fake W-2s and tax stubs, fraudulent short sells and even arson and insurance fraud.

Sometimes innocent consumers unknowingly fall victim to unscrupulous real estate agents, bankers and brokers and may find that they are under investigation by the government for “mortgage fraud”. When this happens, it is critical to contact an experienced federal criminal defense attorney before speaking to the government.

Judge Declares Florida’s Drug Law Unconstitutional

Mary S. Scriven, United States District Judge for the Middle District of Florida, Orlando Division, held Florida Statute 893.13, Florida’s drug statute, unconstitutional in an order filed on July 27, 2011. In accord with Rule 57 of the Federal Rules of Civil Procedure, a Declaratory Judgment shall be entered separately, declaring Florida Statute, 893.13 unconstitutional. In her 43 page order, Judge Scriven granted Petitioner, Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus under 28 U.S.C. Section 2255.

Click for the full text of the opinion.

FAQ’s about the Federal 2011 Retroactive Crack Guideline Amendment

Overview: In 2010, Congress passed the Fair Sentencing Act (FSA) which increased the amounts of crack cocaine that triggered the mandatory minimum sentences for federal crack cocaine crimes. The effect was to lower crack cocaine sentences. The FSA also narrowed the ratio between the powder and crack cocaine offenses from 100:1 to 18:1. Under the old law, a five (5) year mandatory minimum sentence was in place for possessing with the intent to distribute 5 grams of crack or 500 grams of powder cocaine. Under the new law, 28 grams of crack and 500 grams of cocaine triggers the five (5) year minimum mandatory sentence.

Q. Will the 2011 crack cocaine guideline amendment be retroactive?

A. Yes. On June 30th, the Commission voted unanimously to make the amendment retroactive. This means approximately 12,040 federal crack offenders sentenced under the sentencing guidelines (U.S.S.G.) before November 1, 2010, may be eligible for sentence reductions.
Q. When does the retroactive crack amendment go into effect?

A. November 1, 2011

Q. How can federal prisoners serving time for crack cocaine offenses benefit from the amendment?

A. No one gets a sentence reduction automatically. A motion under 18 U.S.C. 3582©(2) must be filed in the court that sentenced the prisoner. The court will likely give the prosecutor the opportunity to oppose the reduction. The court can give all, part or none of the requested sentence reduction. There is no guarantee that any prisoner will receive a sentence reduction.

Q. Who is eligible to seek a sentence reduction based on the retroactive crack guidelines:

A. Prisoners are eligible to seek a sentence reduction if they:

  • were convicted in federal court – it will not benefit people convicted in state court for state violations of crack offenses
  • were sentenced before November 1, 2010
  • are serving a guideline sentence for crack cocaine – it will not benefit those serving a mandatory minimum sentence of five or ten years without any additional time under the sentencing guidelines.
  • are not on supervised release
  • are not in a federal halfway house – if you are already in a half-way house, you are likely to be released before the retroactive amendment goes into effect.

Q. Are career offenders eligible for sentence reductions?

A. Most likely no. Career offender sentences depend largely on the charge the person faced and the statutory maximum penalty that charge carries. A separate guideline section USSG 4B1.1 controls career offender sentences and was not reduced by this amendment.

Federal prisoners convicted for crack offenses and sentenced prior to November 1, 2010 should contact a federal criminal defense attorneyin the district where they were sentenced to see legal representation to determine if they are eligible to see relief under this retroactive crack guideline amendment.

You’ve Received a letter from the FBI about Mortage Fraud, What should you do?

If the FBI contacts you and they want to speak with you about your mortgage, the first order of business is to contact a Tampa Criminal Defense Lawyer . One that is experienced and Board Certified is even better. Speaking with the government about mortgage fraud before contacting a criminal defense lawyer is not in your best interest.

The government could be investigating you due to the real estate boom of the early 2000′s. Tampa Criminal Defense Lawyer, Lori D. Palmieri explains that,

“Although most people applied for mortgages completely and truthfully, some individuals were mislead by unscrupulous brokers. Some brokers falsified paperwork in order to expedite the loan approval.”

Many clients admit to not reading all of the documents that they signed at closing. Unfortunately, unscrupulous parties can take advantage of this and add, remove or falsify certain documents.

The most important thing you can do when in a mortgage fraudsituation is to contact a Tampa Criminal Defense Attorney before speaking to anyone. It is completely acceptable to tell the government that you would like to wait until your attorney is present before making any statements.

4th Amendment protects Email privacy

The Sixth Circuit Court of Appeals held today in United States v. Warshak that government agents violated the defendant’s 4th Amendment rights when they seized his stored emails from an ISP without a warrant. This ruling means that persons have the same right to privacy in their emails as they do in letters in their post office box. Just like agents cannot intercept phone calls or voice messages without a warrant, this opinion recognizes the same Fourth Amendment protection applies to email.

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