Federal Crimes

Officers Didn’t Read Me My Miranda Rights!

Published on: May 31, 2024 | by Lasnetski Gihon Law

Everybody has heard of Miranda rights, but few actually understand what they are and what they do. You may be surprised to learn that police officers do not always have to read you your Miranda rights when they are questioning or even arresting you? Sounds crazy, but it’s true.

The name “Miranda” came from the landmark United States Supreme Court case Miranda v. Arizona in 1966. The issue was whether police officers had to advise a person of his or her Constitutional rights before questioning them about a crime. What constitutional rights? The Fifth Amendment to the Constitution provides the constitutional right against self-incrimination. In other words, the government can’t make you tell them anything that may incriminate you. And the person must be told that he or she has the right to consult with an attorney to discuss the Fifth Amendment right. So, out of the Miranda case, came the Miranda rights or warnings that we all have become accustomed to when someone is arrested.

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But Miranda rights only relate to custodial interrogation and the right against self incrimination. So, if you don’t incriminate yourself, no Miranda rights are required. And law enforcement must only advise you of your Miranda rights before interrogating you in a custodial setting. Whether a person is in custody depends on what a reasonable person in the person’s place would believe that they were in custody. So if officers don’t interrogate you or it’s not in a custodial setting, then they don’t have to read you your rights.

Federal Safety Valve: The Supreme Court Dramatically Reduces Eligibility For Sentences Below the Minimum Mandatory in Federal Drug Offenses

Published on: April 3, 2024 | by Lasnetski Gihon Law

In federal criminal courts, when a person is convicted of a drug offense with a minimum mandatory sentence provision, there are only two ways that allow a federal judge to go below that statutory minimum mandatory sentence: a 5K motion filed by the federal prosecutor if the client provides substantial assistance to the government or the safety valve provision of 18 U.S.C. §3553(f). Congress recently broadened the safety valve provision and one particular section has been subjected to intense litigation resulting in varying outcomes from the various circuits.

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If otherwise qualified under different subsections, a person is eligible for the safety valve, and therefore a sentence below a statutory minimum mandatory sentence under §3553(f)(1) if:

The defendant does not have –

Supreme Court adopts broad interpretation of “different occasions” provision under the Armed Career Criminal Act

Published on: March 8, 2022 | by Lasnetski Gihon Law

The Supreme Court handed down an important federal criminal law decision on March 7th, 2022 involving the interpretation of the “different occasions” language in the Armed Career Criminal Act. The Armed Career Criminal Act, 18 U.S.C. s.924(e), provides for a 15 year minimum mandatory sentence for any defendant convicted of possession of a firearm by a convicted felon if that defendant has three prior convictions for a violent felony or a serious drug offense, if those three prior offenses were committed on “occasions different from one another.”

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In Wooden v. United States, the Supreme Court addressed what the term “occasions different from one another,” which is often referred to as the “different occasions” provision, means. In 1997, Wooden broke into a storage facility and burglarized ten different storage units. He was arrested and pled guilty to ten counts of burglary and was sentenced to eight years in prison. In 2014, Wooden answered the door to his house and a police officer asked to speak to his wife. The officer asked if he could step inside due to the chill outside and Mr. Wooden agreed. When the officer entered, he observed firearms in plain sight. The officer had previous knowledge that Mr. Wooden was a convicted felon so he arrested Mr. Wooden for Possession of a Firearm by a Convicted Felon. Mr. Wooden was indicted in federal court and convicted.

In his federal case, the federal prosecutors argued that Mr. Wooden was an Armed Career Criminal because each burglary to each storage unit happened successively and therefore were separate occasions. That is, he completed each burglary before beginning the next burglary of the next unit. Mr. Wooden’s attorney argued that all ten burglaries occurred on one occasion. AdobeStock_462414486-300x169 The District Court agreed with the government and sentenced Mr. Wooden to 16 years with the 15 year minimum mandatory sentence as an Armed Career Criminal. Without the Armed Career Criminal status, Mr. Wooden was looking at a maximum sentence of 10 years, with guidelines of around 21 months. Mr. Wooden appealed to the Sixth Circuit Court of Appeals, which agreed with the District Court. The Supreme Court granted certiorari based on a conflict between various circuits.

What is “Safety Valve” in Federal Criminal Court?

Published on: February 20, 2018 | by Lasnetski Gihon Law

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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).

What Is A Federal Grand Jury And What Is It’s Purpose?

Published on: December 14, 2017 | by Lasnetski Gihon Law

adobe-spark-post-10 A 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.

When Do You Have To Register Your Firearms? Bernandino Bolatete Has Been Arrested In Jacksonville After Making Terroristic Threats, But He Was Only Initially Charged With Possession of An Unregistered Silencer

Published on: December 6, 2017 | by Lasnetski Gihon Law

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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:

Large Bank Receives Significant Fine But Still Clearly Getting Preferential Treatment Over Individuals

Published on: July 7, 2014 | by Lasnetski Gihon Law

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.

Wire Fraud Conviction Reversed Where “Victim” Was Not Financially Defrauded

Published on: May 8, 2014 | by Lasnetski Gihon Law

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.

Federal Government Looking to Regulate E-cigarettes

Published on: April 28, 2014 | by Lasnetski Gihon Law

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.

Federal Government to Propose Lighter Sentences for Non-Violent Drug Offenders

Published on: March 13, 2014 | by Lasnetski Gihon Law

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.