Federal Crimes

Supreme Court Ruling Makes Convictions for Crime of Aggravated Identity Theft More Difficult

Published on: June 4, 2009 | by Lasnetski Gihon Law

A U.S. Supreme Court ruling on the federal crime of aggravated identity theft makes it harder for the government to obtain a conviction for that crime. Several months ago, we wrote about how the U.S. government was using the federal crime of aggravated identity theft as a tool to deport illegal immigrants who often obtain fake social security numbers and cards when they enter the country. The federal crime of aggravated identity theft occurs when a person knowingly and without authority uses a means of identification of another person. For instance, law enforcement officials often arrest suspected illegal immigrants for using or possessing fake social security cards with fake social security numbers on them. However, since this criminal law requires that a person “knowingly” use the identification card of another, there was a question as to whether the law required a person to know that the social security number actually belonged to another person. The government’s position, of course, was that the law did not impose such a requirement for a conviction. Criminal defense attorneys argued that the government must prove that the defendant knew the social security number actually belonged to another person.

The U.S. Supreme Court appears to have sided with the criminal defense lawyers. If a person is arrested for the federal crime of aggravated identity theft for possessing or using a fake social security card, the government must prove that the defendant knew the social security number belonged to another person. Now, for a person who has a specific victim in mind and obtains his/her social security number and/or other personal information, this ruling may not be of much benefit. However, for someone, such as an illegal alien, who comes into the country and purchases a fake social security card with nine random numbers on it with no conception of whether they form an actual, assigned social security number, this ruling makes it very difficult to convict that person of the federal crime of aggravated identity theft. It also makes it difficult for law enforcement authorities to charge illegal immigrants with a serious felony that makes it easier to deport them.

New Law May Eliminate Differences in Sentencing Between Crack Cocaine Cases and Powder Cocaine Cases

Published on: June 2, 2009 | by Lasnetski Gihon Law

The U.S. Department of Justice under the Obama administration has indicated an opposition to the current disparities between sentences in crack cocaine cases versus powder cocaine cases in the federal criminal system. Currently, as a result of the Anti-Drug Abuse Act of 1986, mandatory sentences in federal criminal cases are harsher for crack cocaine cases than powder cocaine cases. This is true even though crack cocaine and powder cocaine are basically the same. The primary difference is that crack comes in a form that is smoked while cocaine comes in a form that is snorted.

The difference in federal sentences for these two drug crimes has had a major effect on who has been going to prison for long periods of time as opposed to getting relatively minor sentences. For instance, a person convicted of the crime of distributing 5 grams of crack cocaine faces a mandatory sentence of 5 years in prison while it would take the distribution of 500 grams of powder cocaine to get the same mandatory sentence in federal court. Studies show that crack cocaine is more often used by lower income individuals and minorities. In fact, more than 80% of the people prosecuted for crack cocaine charges in federal court are African-American, according to the U.S. Sentencing Commission.

No law has yet passed to address the difference in sentencing between crack cocaine crimes and powder cocaine crimes in federal court. However, there is clearly a shift in criminal and sentencing policies with the Obama administration and some indication that a new law will be passed to eliminate this difference.

Federal Prosecutors Say Florida is “Ground Zero” for Mortgage Fraud Crimes

Published on: May 17, 2009 | by Lasnetski Gihon Law

On the Lasnetski Gihon Law criminal law blog, we have discussed on several occasions the trends we have noticed with federal investigations and prosecutions of various crimes depending on what seems to be the prevailing issues of the day. One trend we have noticed recently is the increased focus by federal law enforcement officials on mortgage fraud crimes. This is obviously due to the massive collapse of the housing market and the number of foreclosures that resulted.

To further underscore this point, federal prosecutors in Florida have called Florida “ground zero” for mortgage fraud cases in the United States and are organizing their resources accordingly, according to a recent article on the Tampa, Florida news website. The Tampa, Florida article indicates that federal law enforcement officials in that area expect to have approximately 100 mortgage fraud cases charged or under investigation by the end of 2009. Because of the long time it takes to investigate and prosecute mortgage fraud cases in federal court, the U.S. Attorney for the Middle District of Florida said he expects each of his 105 assistant U.S. attorneys to handle the added workload.

We have seen similar articles and other evidence of an increase in mortgage fraud investigations and arrests in Jacksonville and other areas of Florida. We wonder if casting such a wide net for these cases and employing the efforts of law enforcement officials and prosecutors who may not have the experience handling mortgage fraud cases will result in a number of innocent people being caught up in this effort. We also wonder if the line between aggressive but legitimate business decision-making and criminal conduct will get blurred by such large scale investigative methods.

Jacksonville, Florida Company Lender Processing Services, Inc. Investigated by the DOJ

Published on: April 17, 2009 | by Lasnetski Gihon Law

Lender Processing Services, Inc. (LPS) is a company that provides technological and outsourcing services to mortgage lenders that is based out of Jacksonville, Florida. According to an article on www.Jacksonville.com, the U.S. Department of Justice has initiated an investigation of LPS. The article does not go into detail about the investigation but mentions that it may be related to services provided by LPS in bankruptcy and foreclosure proceedings.

We noted earlier how federal law enforcement authorities had noticeably shifted their focus towards mortgage fraud and securities fraud cases and away from immigration and more post-9/11 related criminal investigations which were more prevalent in the years following 9/11. Because of the government’s tendency to follow prevailing trends and move resources more towards issues they, or the media, consider timely, we expected to see more such investigations into companies and individuals who operate in the mortgage and securities industries. It appears from this article and other ongoing federal investigations that Jacksonville is falling in line with that trend.

Most Company Executives and Owners Cannot Challenge a Search of Their Business

Published on: April 15, 2009 | by Lasnetski Gihon Law

Federal law enforcement authorities show up at your company with a search warrant to search the entire premises of the business including computers, customer files, billing and accounts receivable information, internal memoranda, bank account information and training materials. They conduct an extensive search and seize a variety of materials from the business which leads to federal criminal charges against you, the company president, your vice president and the company itself. You retain a federal criminal defense attorney and attempt to have this evidence thrown out so it cannot be used against you in court because the search warrant was vague or overly broad, i.e. the search warrant was not limited to items for which there was probable cause to search and seize. Can you, the president of the company, challenge the search of your business? In most cases, the answer is no, according to a recent federal criminal case out of the U.S. Court of Appeals for the Ninth Circuit.

The Fourth Amendment to the Constitution protects citizens and companies against unreasonable searches and seizures. Fourth Amendment protections are realized in a couple of ways, one of which is the requirement that police and law enforcement authorities obtain a search warrant that must be signed by a judge before searching a person’s home or business. If the police obtain a search warrant, conduct a search of a business and seize evidence that results in criminal charges, a motion to suppress can be filed to suppress such evidence if it is determined that the search warrant was invalid, for instance because it was overly broad. The end result is that the evidence obtained pursuant to that invalid search warrant is thrown out and cannot be used against the defendant in the criminal case.

However, after a questionable search and seizure, a person or company can only move to suppress the seized evidence if he/she has standing. Standing relates to a person’s reasonable expectation of privacy in the place that is searched. A classic example is one’s home. Without legal standing, the judge will not even hear a defendant’s argument on a motion to suppress evidence. The question raised by this Ninth Circuit case, United States v. SDI Future Health, Inc., was whether a company president/part owner had standing to challenge a search of his business.

Obama Administration Looking to Protect Reporters Who Refuse to Disclose Confidential Sources

Published on: April 9, 2009 | by Lasnetski Gihon Law

Eric Holder, the new Attorney General under President-elect Obama, has indicated that the new administration is seeking to change the administration’s policy and federal law making it easier for reporters to maintain the confidentiality of their sources. Holder is reportedly in support of a law that would allow reporters and journalists to protect their secret sources and refuse to reveal information about them in court or in front of a federal grand jury. Such a law, commonly referred to as a shield law, was blocked under the Bush administration. Holder has also indicated that the new adimninstration plans to change the Bush administration’s policy of withholding federal records from the public if there is a plausible reason to do so. Presumably, under this “plausible reason” standard, a reason is plausible if those who want to keep the information from the public say their reasoning is plausible.

This issue of forcing journalists to reveal their sources or face severe penalties made the news fairly recently when a federal judge ordered two journalists for the San Francisco paper to reveal their sources relating to the Barry Bonds/BALCO steroids case or face up to 18 months in jail. However, under legislation supported by Obama, journalists would not be forced to reveal their confidential sources to a grand jury or in court unless a judge first determines that the information is required for national security.

Federal Government Will No Longer Raid Medical Marijuana Establishments

Published on: March 3, 2009 | by Lasnetski Gihon Law

The new U.S. Attorney General in President Obama’s administration stated that the federal government has changed its policy and will not raid medical marijuana establishments in states where selling marijuana for medicinal purposes is legal. Medical marijuana is legal in thirteen states. Florida is not one of them, and none of those states are in the South.

One might ask how law enforcement officials can legally raid a medical marijuana facility if the state has made it legal to sell marijuana with a doctor’s prescription. The reason is that the particular state’s law may say it is legal but federal law may say it is not. As a result, under the Bush administration, federal Drug Enforcement Agency agents and other federal law enforcement officials were directed to raid medical marijuana locations pursuant to federal drug laws despite the contrary state marijuana laws.

However, under Obama, that is expected to change. This should not directly affect residents of Jacksonville or other cities in Florida (unless and until Florida legalizes marijuana for medicinal purposes), but it does clearly indicate a shift in the priorities of the current federal government away from targeting and prosecuting marijuana users, at least in the states where medical marijuana is legal.

New Policies and Priorities Coming Regarding Federal Drug Crimes

Published on: February 17, 2009 | by Lasnetski Gihon Law

With the new administration, the federal government will shift its focus regarding federal drug crimes. It appears that the Obama administration will focus more on rehabilitation and be less stringent with nonviolent first-time federal drug offenders than the prior Bush administration.

Some of the highlights of the Obama administration’s policies on federal drug crimes include:

– increased efforts to end racial profiling by law enforcement who are investigating drug crimes;

Federal Law Enforcement Authorities and Prosecutors Are Focusing on Corporate Fraud and Mortgage Fraud Crimes

Published on: February 11, 2009 | by Lasnetski Gihon Law

I saw another article today commenting that the FBI and federal prosecutors are increasingly focusing on corporate fraud and mortgage fraud crimes, which are commonly referred to as white collar crimes. This is a reaction to the difficult economic times in general, and specifically, the alarming number of foreclosures, bankruptcies and investors who have lost money they thought was safely invested. According to the article, the FBI has indicated that they currently have 538 active corporate fraud investigations and more than 1,800 active mortgage fraud investigations. Clearly, the focus of the FBI and federal prosecutors has shifted away from immigration-related issues (which was popular after 9/11) and moved towards white collar crime related to the current economic turmoil.

As criminal defense attorneys who handle state and federal criminal cases including white collar cases, we try to monitor the direction and focus of state and federal prosecutors in the Jacksonville, Florida area and throughout Florida. We think this is an important part of advising and representing clients. Contrary to what some people might assume, police, the FBI and other law enforcement authorities are influenced by current events, the media and trends and shift their focus and resources accordingly. As a result, it is instructive for criminal defense lawyers to follow the same trends and corresponding reports of active criminal investigations an cases to determine upon which companies, individuals and issues the federal government is focusing now and will be in the future.

Who Makes Federal Criminal Policy?

Published on: February 9, 2009 | by Lasnetski Gihon Law

In the wake of the highly publicized scandal and alleged Ponzi scheme involving Bernie Madoff, U.S. lawmakers announced a proposed bill that would provide for an additional $110 million, 50 FBI agents, 100 SEC Enforcement Officials and 50 Assistant U.S. Attorneys to deal with federal securities fraud cases. The bill is called the Supplemental Anti-Fraud Enforcement Markets Act (“SAFE Markets Act”).

It is interesting how reactive our lawmakers and law enforcers are to major stories and so-called trends in criminal law. Not long ago, I wrote a post about how federal law enforcement authorities were prosecuting fewer white collar crimes and allocating their resources more towards immigration and terrorist-related issues. This was a reaction not only to 9/11 but also to the fact that illegal immigrants were coming over the border in droves to take advantage of the thriving U.S. economy and the numerous jobs made available by companies looking for cheap labor. At the time I wrote that post in May of 2008, prosecution of all federal white collar crimes was down 27% since President Bush took over in 2000.

More recently, the federal government’s focus shifted to mortgage fraud cases. The economy, and in particular, the housing markets, crashed, and several things happened. Immigration was still a concern, but those jobs that enticed illegal immigrants dried up to a large degree. Falling housing prices, untenable mortgages that were no longer supported by housing values and foreclosures captured the headlines. As a result, federal law enforcement officials increased their efforts to address mortgage fraud cases. As of late 2008, federal mortgage fraud cases more than doubled over the prior few years.