Articles Posted in Federal Criminal Defense

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IMG_1145-300x212What Do I Do After I’m Arrested In Miami Florida?  Part One of Three Part Series.

This three part series: What Do I Do If I Am Arrested in Miami Florida,  is a complete run-through of the criminal court processes from arrest through final disposition of a Miami criminal case.

Part One Of Three:

You have been arrested in Miami (by a Florida  police officer or deputy sheriff), this starts the criminal court process. Bienvenidos a’ Miami!  I will lead you through the mine-fields after your arrest in South Florida, and there are many.

Posting A Bond:

In all cases, you are entitled to a reasonable set of pre-trial release conditions, or bond, unless it is a capital charge, or you are currently on pre-trial release in Florida or any other jurisdiction.  Generally, this requires that you post a bond with the court.  A bond is a binding agreement to pay, or deposit money to the court to assure the Court  that you will appear for your scheduled court dates.  This holds true regardless of whether you are arrested in Miami, Florida, or anywhere else in  Florida.  A bond is intended to assure your appearance in the case.  Your bond may either be a cash bond in smaller cases, or a surety bond in larger cases.  To post a surety bond you will need the assistance of a bondsman who will file a bond  with the court on your behalf, guaranteeing your appearance at all scheduled court dates.  The bond is a conditional release.  Therefore, if you are arrested for a subsequent offense while you are out on bond, your original bond may be revoked by the court without notice.  If you cannot afford to post the bond that is set by the court it may be necessary to request a bond reduction hearing with the court.  I can move the court on your behalf quickly for a bond reduction.  Depending on the severity of the allegations made against you, the court may also impose other conditions of your pre-trial release, which could include many other restrictive conditions, such as electronic monitoring.

Magistrate  Court:

Once  you  are  arrested,  you  are  entitled  to  a  magistrate  hearing  within 24 hours if you are still in custody for a determination of whether probable cause exists for your arrest.  I have represented thousands of clients in magistrate court.  Probable cause for an arrest are facts and circumstances, which would lead a reasonably prudent person to believe that a crime has been committed.  If no probable cause is found for your arrest, you can be released on your own recognizance.  In the majority of cases, probable cause is found by the magistrate judge and the bond amount is generally set by the Clerk of Courts, as a standard bond amount.  If your arrest stems from an arrest warrant (a court order by a judge commanding your arrest), the judge signing the arrest warrant will set the bond amount, which is typically higher than a standard bond amount for the same offense.

Tracking Your Case:

Within a day or two, the probable cause affidavit or initial arrest report on your case, will filter it’s way to the Clerk’s Office from the booking desk at the jail.  You will be assigned a case number and judge by random assignment.  This information  is normally viewable online at  the  Clerk Of  Court’s Website.  You can track certain information about your case, including court dates and case status from the same site once it is logged online.

Part Two Of Three we will discuss what happens during and after a criminal case filing decision is made by the Miami State Attorney’s Office.

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This article by Miami Federal Criminal Defense Lawyer Ralph S. Behr is for informational purposes only and should not be construed as constituting  legal  advice.  You should consult  with your attorney to determine the best course of action to take on  your  case. For consultation regarding the specific facts of your case and arrest please contact Miami Criminal Lawyer Ralph S. Behr.

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MxDnDcp7TuChwQ9W1RAkVQ_thumb_27e8-300x187Money Laundering in the High-End Super-Rich Luxury Home Market

In Miami and New York City, federal anti-money laundering agencies have launched a major effort to end buying high end housing with laundered money.  These are apartments in multi-million-dollar condominiums, waterfront high end homes in Palm Beach, Boca Raton, Los Angeles and D.C.  The Task Force is now operating full steam!  Take note that there are Federal Grand Juries actively investigating money laundering in New York and Florida.   Government money laundering federal prosecutors have begun a campaign to take down lawyers and real estate agents who facilitate these money laundering transactions.  How?  First there now is a push to emphasize the “know your client” rule.  The American Bar Association has published an attorney’s best practices pamphlet http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2014oct_abaguide_preventingmoneylaundering.authcheckdam.pdf which is a must-read for lawyers in New York, Miami, and now Boca Raton Florida who have clients from outside the U.S. who purchase expensive homes with cash.   “Know Your Client” means… the true beneficial party must be known by his or her government issued identifier.  Identifiers are tax identification number(s).   For U.S. citizens? — a social security number.  For non-U.S. nationals?  –Their citizen identification is now required: passports are acceptable citizen identifiers.  A Beneficial Owner, or true equity-owner- person, is a living human being.  Best practices are to not accept transactions where the buyer is a business or a partnership or an entity: that is no longer good enough to shield you from a major problem.  You should (read that must) know the name of a living, breathing person.  It’s best to actually have personal contact with the beneficial owner(s).  If you don’t , and the government looks at the transaction and begins a money laundering investigation you (Real Estate broker or salesman, or Mr. or Ms. Attorney), will have a visitor from the Treasury Department, or the FBI and then it’s off into a major kettle of woes.  First thing is hiring your friendly federal criminal defense attorney.  Or responding to a Grand Jury subpoena.  Or a meet with the FBI investigator, or the U.S.  Attorney’s case agent.  It gets worse.  Think about the Bar, or your practice partners, or your clients who read about you being indicted in federal court on a wire fraud, or money laundering charge.  https://www.southfloridacriminaldefenselawyerblog.com/

Is it worth the aggravation to explain to your golfing buddies in Boca Raton about your miseries?  How about your friends in Miami who thought you were at the top of your game and now you’re playing hardball with the U.S. Attorney’s Office in New York.  So, what to do?  Here’s a few things to do:

  1. Remember that 78% of all real estate transactions in Miami and Boca Raton require compliance with the Bank Secrecy Act.  https://www.fdic.gov/regulations/safety/manual/section8-1.pdf

If you’re not familiar with it then call your malpractice underwriter and get the protocol for a closing.

  1. Learn and learn well, that starting today you have to (must) monitor, identify, know and name all parties to the transaction. Find and identify (with numerical identifiers) the true beneficial persons of interest: the buyer who walks and talks and will live in the five-million-dollar waterfront townhouse in Palm Beach.
  2. Go online and read the first page of the U.S. Treasury’s Department of Financial Crimes Enforcement Network (FinCEN).  https://www.fincen.gov/
  3. Or call your federal criminal defense lawyer in Fort Lauderdale, or Miami, or New York. Don’t be bashful it’s a call that can save you money and maybe your license!
  4. Again, go online and read about Suspicious Activity Reports (SAR’s) what they are and how attorneys and real estate agents and brokers can be tagged for not making a SAR report.
  5. Refamiliarize yourself with the definition of Willful Blindness.
  6. Go online to the website of the Association of Certified Anti-Money Laundering Specialists (ACAMS) or go online to find the local Chapter of ACAMS and call one of the names on the registry of members.
  7. Ask a banker for a contact in their internal Anti Money Laundering Compliance department.

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Money Laundering “Red Flags”

Questions to ask and

Things to be alert and mindful of….

  • Beneficial owners are in the “background” and you are, or should be, aware
  • Buyer and property are a mis-match
  • Buyer’s agent responses do not meet your due diligence requirements
  • Buyer’s income is inadequate to pay an 80% financed deal
  • Cash Deal? (remember: if there is a mortgage the lender always asks for a AML letter)
  • Client asks to use a Third Person nominee
  • Client is vague and reluctant to reveal the “person of interest” in the transaction
  • Deposits come from more than three banks
  • Income sources go back less than three years
  • Know Your Client: it’s the law!
  • Money Broker is involved
  • Money coming in from three sources and/or payment amounts (in dollars) are similar
  • Money instruments are used for any cost or payment
  • Non customary agents, payees, or persons appear on or at the closing
  • Notarized documents are not U.S.A. in origin
  • Off record payments or things of value are exchanged between parties
  • Payments of any kind are from more than three individuals or sources
  • Purchase is made without viewing the property or without inspection
  • Re-sold at the closing
  • Residential property is titled in a third person party
  • Rushed purchases or rushed sales
  • Sale price is high or low by a significant amount or percentage
  • SAR? Know what it is and who can and does make them…
  • Structuring? Be familiar with what structuring can look like
  • Third party names appear on monetary instruments
  • Transaction costs are unusual and the buyer doesn’t care
  • Trust but verify
  • Trust is the buyer and the Trustee is a non-U.S.A. resident
  • Vague or minimal information about a party participating in the transaction
  • Willful Blindness? Know what it is…..
  • Witnesses on documents are not U.S.A. residents

 

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rsw_1280-300x225How to get a Federal Judge to dismiss your indictment if you are charged with Human Trafficking and the charge involves sex with a minor and there was in fact no minor

If you have an attorney, you should share this blog with him/her.  If you are representing yourself (no lawyer) look at some of my cases in federal court in Tampa and Miami and New York.   In all events, do not try to do this alone: you need an attorney.  Here’s how I set the legal stage for a dismissal of the charges:  Step One:  file the motion pursuant to Rule 12 of the Federal Rules of Criminal Procedure. Step Two:  inform the federal judge your challenge the Indictment by pretrial motion. (cite this case: United States v. Spero, 331 F.3d 57 (2d Cir. 2003). Step Three:  argue that the Indictment is defective and fails to properly and fully charge an offense under 18 U.S.C. 1591. (cite:  United States v. Fern, 155 F.3d 1318 (11th Cir. 1998) and United States v. Chilcote, 724 F.2d 1498 (11th Cir. 1984). Step Four:  Argue that the defect in the Indictment is the Indictment does not contain language that the alleged victim was a “victim of human trafficking”.

Tough argument to make? Not really.  Prior to 2015, a majority of the Federal Appellate Courts ruled that you can be arrested and convicted as a Human Sex Trafficker even if the government did not have a live human being victim.  That is now under attack and here is how I do it:  You argue that in 2015 Congress amended 18 U.S.C. § 1591.

Inform the federal Judge that the legislative history of the amended statute shows that it was the intent of the Congress to prosecute criminals “who purchase sexual acts from human trafficking victims”.  [ Specifically, this language can be found in the May 29, 2015, Pub. L. No. 114-22 § 109, 2015 (129 Stat. 227, 239), 18 U.S.C. § 1591 (2012)]   Next throw in a paragraph or two and argue that Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, (If you want to really nail this argument throw a reference to these cases and watch the Assistant United States Attorney who is prosecuting you throw a temper fit… Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975);*581 NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09 and cases cited (4th ed. 1973).  I then throw into the stew (my motion) something about the fact that the new amended 18 U.S.C. § 1591incorporated sections of prior law.   Everyone one has to agree that Congress can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute and… Congressional intent is clear from the official record of Legislative Intent and purpose.  Congress acted in 2015 and spoke to this issue.  For a little legal spicing you can include the wording of the Statement of Congressional Intent it becomes clear that the purpose and intent of the 2015 amendments to 18 U.S.C. § 1591 was, in the words of the Congress “… to correct the courts, prosecutors and law enforcement agencies and to require they comport with 18 U.S.C. § 1591 and its purpose and correct application in arresting and prosecuting individuals who seek to obtain or obtain sexual relations with and from individuals who are in fact victims of human trafficking.”   Still with me on this?….. I continue to argue that Congress in 2015 is bell-clear in instructing and correcting courts that 18 U.S.C. § 1591 requires the government allege and prove that persons, such as the defendant, can only be convicted when the government alleges in the Indictment and proves by evidence that the defendant sought to obtain sexual concourse with a minor who was and is in fact the victim of human trafficking.

My motion goes on a bit.  If you want a copy of my pleadings, you can email me, and I’ll discuss it with your federal public defender or your private federal criminal defense lawyer (if you have hired one).  In the end the motion to dismiss the indictment for  Human Trafficking  [where your charge involves allegations of negotiating to have sex with a minor and there was in fact no minor (just a lot of “dirty talk” with a federal case agent posing as a pimp)] can  get the case tossed.

 

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5aebe3eb57581e1d811f05221f078474-300x199HOW TO REDUCE YOUR FEDERAL PRISON SENTENCE IF THE GUIDELINES CHANGED

The Guidelines Commission has closed the comment period for a proposed rule change on how to reduce your federal prison sentence IF a revision to the Guidelines is in your favor: That means, IF you were before a federal judge for sentencing and the Sentencing Guidelines now are lower than when you were originally sentenced, you may get a “do-over”.  The case that changed all this came out in June 2018:  Koons v. United States, 138 S. Ct. 1783 (June 4, 2018).

What’s important here is that the sentencing guidelines commission proposed amendments which assure a process for sentence reduction.  The take away is this: if your federal prison sentence would have been scored differently and the new sentencing exposure range is less than what it was at the time of sentencing, you can ask for a new sentencing hearing.  At this new hearing, you can reargue all of the section 3553 sentencing considerations.  This is a very big deal. It gets bigger if your zone changes.  Since another rule amendment from the guidelines commission tells us that if you’re in zone A or B and you have no prior felony convictions, the recommendation is for a non-prison sentence.

So, here’s the sweet spot if you fit:  If your sentence was within zone A or B and if the guidelines changed since your sentencing, you can under Koons, and soon using a proposed sentencing guideline rules change, have an entirely new sentencing hearing before your federal judge.  Lots of people have called or written asking about the step-down act and its changes.

In a previous blog posting, I discussed the statute. The new statute really only helps the population of federal prisoners who have a low recidivism rate.  The new statute, effective January 2019, tells us that you can get your sentence reduced if you are evaluated and determined to be at a very or reduced lower risk of recidivism.  Recidivism means the likelihood that you’ll do the same crime again.

As a practical matter, when the sentencing guidelines commission proposed a rule change because of a Supreme Court decision, judges are more likely to travel down that road.  Again, the take away is this.  If your score is in zone A or B, you have no priors, it’s a nonviolent crime, and you’re in federal prison, you should contact your federal criminal trial lawyer and ask him to review your situation.  A proposed rule is just that, a proposed rule…. but since the close of the comments, the likelihood that the rule will be promulgated before the end of 2019 is very high.  You can see the sentencing guidelines commission proposed rule change as well as the case that started all this by pressing on the links embedded in the blog or you can contact me.

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overcriminalization-300x191What to know if you are in inmate in a Federal Prison: The New First Step Act of 2018                                        

For those who have family members or friends serving federal time the newly passed FIRST STEP ACT OF 2018 has now been reviewed for its projected population impact on current federal detainees.  The new Act was signed and enacted on December 21, 2018.  The impact of the act has been delayed because of the federal furloughs due to the impasse that affected federal employees during the Christmas 2018 three weeks federal shutdown.  Now the U.S. Sentencing Commission has issued a projected population impact on prison populations.  The Sentence and Prison Impact Estimate Summary can be found at: ussc.gov/…/January_2019_Impact_Analysis.pdf

What I have prepared is a summary of the population numbers which can and may be impacted.  Heralded as a major change in policy and implementation of release conditions for inmates the First Step Act of 2018 deals with six major subjects.  First it creates a new approach to Risk and Needs Assessments.  The Act creates a formula to reduce sentences served based on evaluation of the inmate’s likelihood of recidivism.  The Sentencing Commission and the Federal Bureau of prisons estimates that 106,114 inmate/offenders currently in custody can or will be impacted.   Section 102(b) increases good time credit available to currently in-custody offenders.  The estimate of the Sentencing Guidelines Commission is that 142,448 inmates are eligible for increases in good time credit.

Section 401 of the Act will only impact a very small number of inmates, estimated at only 56 offenders.  See the 851 enhancements for a fuller understanding of this reform or speak with a defense attorney specializing in federal matters.  The Act also broadens the existing Safety Valve departure but is limited to inmates with up to and less than four criminal history points in the pre-sentence report.  The estimate is that 2,045 inmates will benefit from this modification of sentence.  Section 403 impacts a very small number of inmates as if affects some, very few, firearms convicted detainees: an estimated 57 offenders convicted of a very limited list of firearms possession statutes.  The fact that the House, Senate and President Trump allowed any firearms to be included is a statement of how powerful the gun lobby is in the process of modifying federal sentences.  Even more to the point is the fact that this new Act exists at all.  If sentencing reform has any political will behind it then it should address a much broader pallet of issues and matters than the Act actually addresses.   Going further: Section 404 deals with aspects of the Fair Sentencing Act retroactively.  This section (404) affects 2,660 inmates in the custody of the Bureau of Prisons.  Lastly, the report covers Section 603, the Federal Prison Reentry Initiative Reauthorization Act.  This affects the status of 1,882 inmates.  By way of an overview: The First Step Act is not a reform of federal sentencing and terms served.  It does not claim to be such and is not a true nor comprehensive sentencing reform statute.  It does not deal with Sentencing Guidelines, nor sentencing policy considerations.  It is not a reform in that it only brings some modifications to existing policies and programs.  Recidivism recognition, that is that inmates who are not a risk to return to criminal ways, has always been a major consideration in all aspects of sentencing.  The First Step Act does set up a structure for evaluating inmates even if the sentencing considerations of their individual cases were addressed by the federal judge at sentencing.  If anything, the importance of the new law is that it states that the purpose of the Act is to assist inmates returning from prison to society have a better opportunity to successfully transition from inmate to non-inmate status.  Maybe.

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THE TEN COMMANDMENTS OF FEDERAL SENTENCING

 

FIRST COMMANDMENT

“THOU SHALT HAVE NO OTHER JUDGES BEFORE ME”

“Thou shalt love and Honor Thy Judge with all thine heart, and with all thy soul, and with all thy oral argument.”  A blessing is a Sentencing Judge whom knowest and desires what is best for your Client.  Thou shalt not commit the sin of speaking dicta from any other Judge before Him in your oral argument.  To so Speaketh doth hinder your judge’s ability to bless your Client with a Variance.  Your Judge knoweth that a Variance alone can save your client; nothing else has that power.  Of your Judge you shall worship upon His/Her thinking first.

 

SECOND COMMANDMENT

“THOU SHALT NOT MAKE ANY GRAVEN ARGUMENTS TO THY JUDGE”

Bear not a likeness of anything that is not in the heaven of Loadstar cases above or sentencing law below.  Nor any likeness of anything that is not in the Presentence Report or that is not in the Guidelines beneath. To not so speaketh of that which is in the Loadstar waters and thoust client shall be as dust to the wind in a Federal Detention Center and shall not reside in a Federal Camp nor in Home Detention nor Probation. Thou shalt bow down thyself before thy Judge and serve him Sentencing Commission statistics, Sentencing Commission Comments and Sentencing Commission Studies and the fruits thereof. Nothing more nor less.

 

THIRD COMMANDMENT:

“THOU SHALT NOT TAKE THE  SENTENCING GUIDELINES IN VAIN”

Know Well the Loadstars and caselaw from your district that show the path for your Judge to leave the safety of the Presentence Report and its homage to the recommended Guidelines Sentence.  A Departure is a blessing and a Variance is a Miracle.  Speaking the prayer for a Variance before thy Judge shall be an abomination in his eyes without a pocket full of Loadstar.

 

FOURTH COMMANDMENT:

“REMEMBER THE PRESENTENCE REPORT FOR IT IS HOLY”

Knoweth by heart the words of your Presentence Report for it is holy.  Of the days ordained by Rule shalt thou labour, and do all thy work between Submission to the Court of the Presentence Report and your Objections to the Presentence Report.  But the seventh day is the sabbath of the Lord thy God.  God sayeth to you to set aside one day a week to worship and rest.  The Sabbath is an opportunity to withdraw from worldly pursuits and focus on your SENTENCING MEMORANDUM.  Spiritual growth and observing the Sabbath is a sign to the Judge that you remember and love thy Judge.

 

FIFTH COMMANDMENT

“HONOR THY PROBATION OFFICER FOR OFTEN HE HATH THE EAR OF YOUR JUDGE”

Seek and speak thy prayer that the days of your client may be not long upon the land of A federal detention facility or a federal camp which the Lord thy God and your Federal Judge may giveth thy client.  Prayer that He/She may dwell in the land of home confinement or probation, thou shalt honor your in-court probation officer for He/She speaketh last upon and in the ear of your judge before the judge enters the courtroom.

 

SIXTH COMMANDMENT

“THOU SHALT NOT BEG”

Do not commit the sin of begging for leniency in the name of no prior convictions, good deeds or good character.  Alas you want not to hear before pronouncement of Sentence the A.U.S.A. speaketh thus: “Counsel knows full well that the Guidelines factor-in acceptance of responsibility, and the defendant has cooperated with the government and has no prior convictions.”  FOR THY CLIENT MAY NOT REPENT OR RECOVER FROM SUCH WORDS.

 

SEVENTH COMMANDMENT

“THOU SHALT NOT COMMIT THE SIN OF FALSE FACT”

Of the first instructions that God and Judges intoned and gave Adam and Eve was not to dispute stipulated facts as contained in the Indictment or Information, the Letter agreed upon between the Prosecutor’s office and your client, the transcript of your plea hearing or the Presentence Report.  And thou shall cleave unto the INDICTMENT and they shall be one flesh.  When a Defendant’s counsel is faithful to the above, he shall have an ear that is open and a Judicial mind that is in search of a lawful sentence as bequeathed by section 3553(a).

 

EIGHTH COMMANDMENT

“THOU SHALT NOT BY STEALTH ARGUE CASELAW FROM ANOTHER DISTRICT”

Honor this commandment for it encompeth more than the focus of case law and dicta shall be at all times that of your Judge, your District or your Court of Appeal.  Wandering off to the 9th is as a curse.  Yea, California is a land of Democrats, Liberal Judges and is as a blaspheme in ANY FEDERAL COURT NOT IN CALIFORNIA.

 

NINTH COMMANDMENT

                               “THOU SHALT NOT BEAR FALSE WITNESS AGAINST THY                                      ASSISTANT UNITED STATES ATTORNEY

Speak the truth as contained in your Plea Agreement Letter, your Plea Colloquy and the report of the Case Agent.  Wherefore thou shalt put away lying.  Speak every man truth as it is known and stipulated upon by thy Assistant United States Attorney.  For his or her wrath shall be visited upon thy client as a plague from the heavens at sentencing should thou distort fact or commit the sin of misstatement.

 

TENTH COMMANDMENT

            “THOU SHALT NOT COVET THE WORD OF ANOTHER JUDGE IN YOUR            COURTHOUSE AT SENTENCING ”

“Anything that is thy neighbor’s sentence is not yours.”  A person who covets or so desires a thing excessively a Variance is cursed without a Loadstar argument and caselaw and its progeny in THY APPELLATE DISTRICT.  Coveting a Departure or a Variance is not a sin, but a bespoken prayer for a Variance without a Loadstar case shall be a curse upon thy client and shall be the doom of same.  “Let your conversation with the Judge be without covetousness but it shall be of Loadstars, Variances and Sentencing Guidelines Commission Statistics”  and be content with such things as ye have for oft thy Judge hath said, “I will never leave thee O Guidelines nor forsake thee without a path of caselaw, statistics and Comments from the Holy-of-Holies the Sentencing Guidelines Commission of the sacred City of Washington, D,C.”

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El-Chapo-1-296x300NARCOTICS SMUGGLING HIGHLIGHTED IN THE EL CHAPO TRIAL IN FEDERAL COURT IN NEW YORK

The federal trial in New York of reputed Mexican drug kingpin Joaquin Guzman Lorea, best known in the public eye as El Chapo, has, for many, brought focus on what is new and upsetting information about the efficacy of border searches and the proposed border wall. Testimony about the method and manner in which narcotics were smuggled into the United States has upset major public information sources from CNN to Fox News, and as well to our president Donald Trump.

The persistent and repeated testimony of drug smugglers has provided examples of how massive amounts of narcotics are brought into the United States across from Mexico without difficulty. It repeatedly shows that a wall would have no deterrent effect for professional and skilled narcotics traffickers. They move their drugs through the border protected areas through inspections under the very watchful eye of border patrol agents. It was in cooking oil tractor-trailers, it was in bales of flowers flown into Kennedy Airport, it was brought in as presidential emblems made in Mexico City for the inauguration. It was in plastic bananas that looked like real bananas, it may have fooled border agents it may have fooled inspectors but it did not fool trained monkeys.

If there’s a double meaning there, and there is, they made a monkey out of our inspection services. It made into the punchline of a joke  what is commonly thought of as the porous border between the United States and Mexico that facilitates narcotics smuggling. The testimony revealed that operatives for the cartel created front companies. Those companies exported cooking oil from Mexico into the United States. The cooking oil trucks were floating in cocaine. Tens of millions of dollars in transactions from drug cartel operatives went through the most worldwide international banking institutions in the planet. The ongoing federal criminal trial is taking place in Brooklyn, NY in the federal courthouse in the Eastern District of New York. Channel 10 news has regular coverage, and tourists flock to the federal courthouse for a glimpse of a trial that is both enlightening and salacious. The trial focuses and highlights the sheer magnitude of narcotics trafficking into the United States.  Seizures of narcotics on the Mexican border totaled over one and one half-million pounds. Seizures of marijuana alone at the US borders total 8.2 million pounds. 32,600 pounds of cocaine, 34,000 ounces of heroin, and 17,600 pounds of methamphetamine. Mexico is the US largest supplier of methamphetamine and marijuana. But as highlighted in the trial, the methods and manner of crossing the border would not be affected by a physical barrier. The cost in human suffering is by most standards immeasurable.

But if measurement be had, the Congressional research service tells us that in 2016 there were an estimated 948,000 individuals, 0.4% of the population 12 years and older uses heroin in United States.

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prison-cells-jpg--300x169Federal sentencing was upset when the Supreme Court, in 2005, ruled that the Sentencing Guidelines are no longer mandatory but merely advisory.  What was then thought a landmark decision (taking sentencing from the heartland of the Guidelines back to judicial discretion) has been somewhat  illusory.  “Illusory”…yes as now a federal judge doing a sentencing of a federal criminal defendant now can sentence a non-guidelines sentence, if the judge desires.

Excerpt of the introduction of Federal Guidelines

This brief post is an introduction to the path from a sentence that is set by the Sentencing Guidelines Commission to a non-guidelines variance sentence.

First the court must determine what is the correct guidelines range, let’s use a level 21 Guidelines of 37 to 46 months and move forward.  First you must give a legal reason for the judge to pronounce a sentence that is non-guidelines.  There is a wealth of caselaw to use here.  In essence you are providing the judge, in a Defendant’s Sentencing Memorandum, the caselaw which supports a judicial finding that a non-guidelines sentence is appropriate.  All the arguments arise from federal statute  section 3553 which you find as 18 U.S.C. 3553(a)(1)-(7).  Read it.  You will see and you must be familiar with the four basics of sentencing policy created by the Congress in the statute  What follows is the basics, heartland and the entire world of sentencing: the 3553’s.  Read is slowly: The court must pronounce a sentence that is “sufficient but not greater than necessary” to achieve the goals of 3553. It must reflect the seriousness of the offense and at the same time promote respect for law.  The federal criminal sentence must also  provide a just, or appropriate punishment for the offense.  The sentence must provide adequate deterrence to any criminal conduct by others (future federal criminal defendants).

Moving on, it must protect the public from any further crimes by the defendant before the Court and the sentence should provide the defendant with some of the needed educational and or vocational training while in custody.  The federal criminal court judge must balance the purposes, nature and circumstances of the offense with the history and characteristics of the Defendant.  Then, with a look over the judicial shoulder and a view into the future, the judge must fashion a sentence that avoids unwarranted differences or disparities of sentence for like-situated defendants and provide for restitution so the victim is compensated.

Your federal criminal attorney will argue some of the leading cases such as Gall vs U.S. 552 US and a host of other cases.  What appears like a confusing mess is very simple after you see the path for federal sentencing.  Step one: convince the judge to give a non-guidelines sentence by demonstrating that the guidelines are either out of date or have been eclipsed by new law, new studies and new sentencing laws.  Just this past year the Congress passed and President Trump signed a new sentencing statute that puts most of the past twenty years of caselaw and sentences in a new light.

If you, or a loved one or friend, is facing a federal sentencing then take the time to read over 18 U.S.C. 3553(a)(1)-(7) and sit with an experienced federal criminal defense attorney who knows your district court and it’s sentencing attitude.  Good luck!

 

 

 

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PillsOwner and president of a New Port Richey pharmacy, Nicholas A. Borgesano, plead guilty to two counts of conspiracy in the Middle District of Florida on October 30th, 2017, for being at the center of a multi-million-dollar mediation fraud scheme.  Mr. Borgesano is 45 and his sentencing will be scheduled in federal court before United States District Judge James S. Moody Jr. and is facing a maximum of 15 years in prison.  Count one is for conspiracy to commit health care fraud and count two is for conspiracy to engage in monetary transactions involving criminally derived property.

According to the Department of Justice, the fraud ran from October 2012 to December 2015 and it impacted private insurance compaies, Medicare, and Tricare a health care program for the military.  Before him, seven others had plead guilty in connection to the scheme.  As part of his testimony, Mr. Borgesano explained that him and his co-conspirators owned and operated numerous pharmacies and shell companies to execute a fraud scheme involving prescription compounded medications. Per the Tampa bay Business Journal, compounding is when pharmacists or physicians combine drug ingredients to create another medication in order to attend to individual needs.

With this scheme they generated more than $100 million in fraudulent proceeds.  Mr. Borgesani owned and controlled A to Z Pharmacy, Havana Pharmacy, Medplus/Newlife Pharmacy, and Metropolitan Pharmacy, Jaimy Pharmacy, and Prestige Pharmacy.  It was in these pharmacies where he created the submission of false and fraudulent reimbursement claims for prescription compounded medications, pain creams, scar creams, and private insurances.  They all manipulated billing codes, paid for kick backs and bribes to further the exchanging and signing of prescriptions for patients he never saw.   The disbursement of all the money was done through wire transfer to the co-conspirators, by assets, or checks.

Most of all their properties will be forfeited including 50-foot racing boat, expensive cars, and houses which equal to over 7.6 million dollars. The total amount that will be forfeited is the result of everything that was purchased with income from the fraud scheme.

The investigation of this fraud scheme was part of the Medicare Fraud Strike Force conducted by the FBI and with the assistance of HHS-OIG and DCIS.  According to the Department of Justice, The Fraud Section leads the Medicare Fraud Strike Force, which is part of a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country.  They operate in nine different locations in the United States and since it’s creation on March 2007, it has charged over 3,500 defendants who have falsely billed the HealthCare system for $12.5 billion.

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