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Earlier this month, The International Consortium of Investigative Journalists (ICIJ), published reports on their ongoing investigation into the 2.6 terabytes of data leaked from Mossack Fonseca, a Panamanian international law firm.  The ICIJ, a global network of over 190 journalists from more than 65 countries, came in contact with the leaked data through a German newspaper, Süddeutsche Zeitung, who iSource: www.worldpropertyjournal.comn turn received the data early last year from an anonymous source.  The leak was far too big for the German newspaper to handle on its own and enlisted the ICIJ to aid in the investigation of the leaked documents.

What is so important about The Panama Papers?  The leak, in what is now considered the biggest data leak in history, was dubbed the “Panama Papers” and applies to the 11.5 million documents with detailed information on more than 214,000 offshore companies listed in the firm’s files.

Offshore companies are entities incorporated in offshore jurisdictions, usually in places with: 1) Little to no local taxation; 2) Stable banking centers; and 3) Strict banking secrecy laws.  The offshore companies are then used to establish offshore bank accounts, and although they are not illegal, the accounts are used by non-residents to move wealth without any disclosure to the nation of origin, the source of the money, or the business or transactional history whereby the funds came under the control of individuals seeking a “tax haven” for the money acquired.  The main issue with these dealings is that the obscure and secretive nature of these accounts easily lends itself to illegal activities, such as money laundering and tax avoidance.

For the past few decades, Panama’s offshore financial center has been catering to an “A list” of bank clients that are now under the microscope for being tied to the offshore accounts in some form or fashion.  The leaked documents name real people and their names, including names of shareholders, directors, depositors and owners of interest in funds stowed away beyond the purview of policing agencies and bank regulators…..until now..

The Panama Papers name 140 prominent politicians from more than 50 countries, including the former Prime Minister of Iceland, Sigmundur Davíð Gunnlaugsson.  Gunnlaugsson, who became the first “victim” of the scandal, resigned earlier this month for failing to disclose offshore accounts he co-owned with his wife.

The law firm founders, maintain their firm did nothing illegal and issued a detailed statement in response to the scandal on their website. Finely attired in two thousand dollar suits, the attorneys from Panama walked out of a press interview when a Swedish reporter asked an uncomfortable question which our well suited Panamanian lawyer decried as “totally inappropriate.”  More creativity would be appreciated by the thousands of victims of the thefts and diversions of public money and illicit transactions funded into the trust account transactions emerging from the “Panama Papers” scandal.  More than a scandal it is a horror-show reminder that continued, and will continue, until international bankers see that their true interests are in stopping money laundering rather than pandering to bad actors.  But don’t hold your breath: I will keep breathing and writing, so standby!

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Last month, on February 16, 2016, the U.S. Government asked a California federal court to compel Apple to assist the FBI in the search of the San Bernardino shooter,Syed Rizwan Farook’s, iPhone.  Apple has objected to doing so, claiming it has “…done everything that is both within our power and within the law to help them.”

Apple vs. FBIIn the past, Apple has complied with government search warrants, under its prior operating system, bypassing its passcode and unlocking some of its content pursuant to the warrant. But under Apple’s new encrypted software, the data is encrypted automatically using a digital key that can only be accessed by the user and not by Apple or anybody else.  And since developing the new iOS8 operating system, Apple claims in its policy that it can no longer bypass the passcode, “…and therefore it is not “technically feasible” for Apple to respond to government search warrants.  For this reason, the government’s already obtained search warrant has not been very useful and under the All Writs Act, the government is seeking assistance from Apple because they state, “Apple has the ability to modify software” to disable the auto-erase function only on Malik’s iPhone.

U.S. Magistrate Judge Sheri Pym issued an order approving the government’s petition and in response, Apple issued a statement outlining their reasons for refusing to cooperate with the FBI, stating the FBI is asking Apple to “build a backdoor” to its products, thus setting a dangerous precedent.

Although this specific case does not seek protection under the Fourth Amendment, which which protects people from unreasonable searches and seizures, Apple supporters use the Fourth Amendment to support their argument.

Amid the tsunami of reporting and op-ed opinions on this issue, it’s important to remember a key component of the 4th Amendment is the Expectation of Privacy Rule.  This standard, established in Katz v. United States is fundamental in analyzing whether a search under the 4th Amendment is reasonable or not.

The U.S. Constitutional protections against unreasonable searches and seizures and recognizes as fundamental that there is a consensus among people of what the government cannot go beyond. For example, it is reasonable to believe that what I write in my personal diary is safe from governmental intrusion.  It is not reasonable to believe that what I say on the street in an open public place is beyond the reach of a government search and cannot be used by a prosecutor in court.

So, the question here is whether it is reasonable to believe that whatever information issue on an Apple device is beyond the reach of the government’s reasonable intrusion by law enforcement agencies?  What is it about an Apple device that makes it different, constitutionally different, than, for example, cloud-based data, a physical hard drive, or a cell phone made by anyone other than Apple?  The gloss, but also correct answer is nothing makes it different.  This stands opposite to the myopic Apple world viewpoint pressed by Chief Executive Officer, Timothy Cook, from Apple.

Apple knows that it can comply with the court’s order, but is using this battle as a platform to posture itself as a champion of personal security. This an interesting, but flawed stance, since the courts will ultimately win in the battle with Apple and there is no one who can reasonably believe that a cell phone’s memory is, like a paper diary, or a conversation with one’s lawyer, beyond compromise or the reach of a warrant based on a reasonable need for law enforcement to know what a mass murdered stored in their personal iPhone.

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Most U.S. taxpayers do not run afoul of the Internal Revenue Service’s Criminal Investigation Division.   Known as the CID, it has special agents who work either with other criminal prosecution agencies, in or with inter-agency task forces, or are assigned on a case by case basis to a U.S. Attorney office.  Understand that the Internal Revenue Service does not commonly begin a taxpayer collection action with a Criminal Investigation Division special agent.  The most common I.R.S. taxpayer recovery begins with a telephone call to the target.  The caller is an I.R.S. collection agent, not a C.I.D. agent.

golden-badge

Source: bragertaxlaw.com

If your first contact from the I.R.S. is a C.I.D. agent call you know that the ultimate outcome is most likely a criminal prosecution.  It is best to retain a criminal defense attorney if you are called by a C.I.D. special agent.  All customary investigations begin with a request for production.  The request is either by letter or by verbal communication from an I.R.S. agent.  Compliance is not voluntary but is mandatory so do not disregard an IRS request for production of records.  You can negotiate the time and delay factor but you cannot fail to comply.  Additionally, be very aware that your response must include all records requested.  Any selective response by you, or any omission of records is an open door to a criminal prosecution.  When we look over our law office records of criminal prosecutions for tax evasion it is common that the prosecutor includes several counts of obstruction of justice for failure to provide complete tax records.  If the first contact  you have with an IRS agent is a subpoena then you can conclude for certain that you are the subject of a criminal investigation.  Anyone whose first contact from the IRS is from a CID special agent would be well advised to retain a criminal defense lawyer at the outset.  The investigatory phase can last as long as six months.  As the subject of an IRS review you are entitled to be represented by an attorney, but it is not always needed.  Most if not all IRS inquiries resolve with an agreed resolution requiring payment of back taxes, fines and interest.  Very few IRS contacts resolve with a criminal prosecution.

You must keep in mind that IRS compliance actions are entirely paper based and records based.  An inculpatory statement  (admission of guilt) is rarely a part of an IRS criminal prosecution so be candid and open in your conversation with counsel and, if so advised, with the IRS agent.  Unlike most other criminal prosecutions, the government does not have to establish beyond a reasonable doubt the elements of the crime of tax evasion.  The standard is willfulness and intent; and your tax filings are almost always sufficient to establish all the legal elements the government must prove up in a tax evasion prosecution.

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This week the Security and Exchange Commission (SEC) announced that E.S. Financial Services, a Miami based brokerage firm, settled what could have been a major criminal case with an agreed $ 1 million penalty payment to settle the charges and possibly avoid criminal prosecution.

The SEC issued a press release which suggested that the E.S. Financial, now known as Brickell Global Markets, Inc., committed acts that substantially violate anti-money laundering statutes and related rules.  The agreed allegations are that the brokerage firm allowed non-U.S. individuals to sell and buy securities without revealing the people who are the beneficial owners.

The SEC’s continued investigation led to their issuance of an order, which instituted a settled administrative proceeding, in lieu of a criminal indictment.  And while no fraud occurred in this case, the SEC investigation concluded that there were significant “holes” or shortcomings in the framework and implementation of the firm’s customer identification program (CIP), which required brokers to, “…at a minimum…, implement reasonable procedures to verify the identity of any person seeking to open an account.”

According to the SEC’s order, E.S. Financial maintained a brokerage account for a bank from Central America that was trading for its own benefit.  It went on to say that 13 non-United States entities, involving 23 non-U.S. citizens, were the beneficial owners of the securities involved and that more than $23 million of securities transactions were involved in the allegations.  These actions were in violation of Section 17(a) of the Securities Exchange Act of 1934. Specifically:

  • Rule 17a-3, which requires exchange members, brokers, and dealers to make and keep certain all books and records relating to its business.
  • Rule 17a-4, which requires exchange members, brokers, and dealers to preserve such required records for a prescribed period of time.
  • Rule 17a-8, which requires every broker to comply with the reporting, record keeping, and record retention requirements in regulations implemented under the Bank Secrecy Act, including the requirements in the CIP rule applicable to broker-dealers.

The anti-money laundering statutes require that non-U.S. citizens who buy, sell or beneficially own securities in the U.S. must reveal and verify their names.  This applies to any individual who is the beneficial owner or ultimate person who will own the securities.

The SEC identified that in examining the books and records of the firm, there was a failure to provide and produce the records identifying the foreign customers the firm was soliciting and or providing financial advice.

Under the SEC rules cited above, financial institutions must maintain records which adequately identify their customers.  To ensure that money launderings statutes are followed, FINRA published the Know Your Customer Rule (FINRA Rule 2090), which requires regulated brokerage firms to know with whom they are dealing.   The “Know Your Customer” Rule imposed upon financial institutions is intended to eliminate or reduce money laundering.

As part of the agreed settlement, E.S. Financial Services agreed and confirmed to the SEC that a complete review of their internal policies, practices and procedures over the next two years would be undertaken, which is in addition to the $1 million fine they agreed to pay.

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Bill Cosby was dealt a stunning setback and a legal major rebuke by a Pennsylvania state court judge this week. His lawyers filed court papers asking the judge to stop the newly renewed prosecution of three sexual assault charges filed against Mr. Cosby in Montgomery County, Pennsylvania. His argument was based in equity and basic estoppel contract law.

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Source: Denverpost.com

Twelve years ago the prosecutor from Montgomery County announced that he would not prosecute Bill Cosby on the charges.  The allegations of sexual abuse in 2004 were and are the same Mr. Cosby is currently facing. Relying on the prosecutor’s statements that no prosecution would be undertaken, Mr. Cosby moved on with his life, responded to lawsuits in civil court, made statements in that lawsuit as required, and did nothing to preserve defenses, evidence, and witnesses which he could have used in this defense had he been prosecuted 12 years ago.  Now, 12 years later, the recently elected prosecutor Mr. Kevin Steele announced that he was reopening the case. Mr. Steele in his campaign to get elected as the prosecutor in Montgomery County, Pennsylvania, featured his intent to prosecute Bill Cosby.

Mr. Cosby’s arguments which were grounded in contract and equity law did not resonate with Judge Steven O’Neil. Judge O’Neil denied Bill Cosby’s motion to stop the prosecution and gave the prosecutor a green light to proceed in the criminal courts. The incident in question arose in 2004. The allegations are that Mr. Cosby provided unidentified mood altering or intoxicating pills to a Temple University basketball employee, a female, and then allegedly penetrated her with his fingers. Mr. Cosby maintained then, and now, that the sexual contact was consensual, willing and voluntary on the part of both him and the purported victim.

The defense argues that former prosector, Bruce Castor, made an oral agreement not to prosecute Bill Cosby.  In argument, Mr. Cosby’s attorney prominently displayed a newspaper press release by the then prosecutor clearly announcing his intention not to prosecute Mr. Cosby. The prosecutor, Mr. Castor, actually wrote the release himself in his capacity as district attorney.

Legal observers believe that this situation and its current resolution are ripe for appeal. Prosecutorial discretion is a historically protected power and has been largely exempted from judicial review.  The exceptions, where a court will intervene and bar or stop a prosecution, are for bad faith prosecutions and those which are motivated by malice or pursued for improper purposes.  The politics of prosecution argument which is highlighted here, opens the door to arguments of abuse of discretion and improper motivation. The next step in the process of the now active prosecution, is a preliminary hearing.  In this hearing, the state must put forward testimony and evidence to establish a pattern of such behaviors by Mr. Cosby, and to demonstrate a good faith fact based prosecution is being undertaken.  The prosecutor must present competent evidence to prove the charges. This next step will be the focus of future reviews by this writer. There are significant implications and issues in play here.  The focus is on whether a person who is accused in the public domain of a crime who relies on statements of a prosecutor can bar  future  prosecution.  Where it ends is anyone’s guess but it certainly will make new law.

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Source: irs.gov

On January 27, 2016, the Department of Justice Office of Public Affairs issued a press release announcing its victory in a Virginia federal court where a gas station owner pleaded guilty to a charge of conspiracy to defraud the United States in what appears to be a renewed effort to prosecute tax evasion cases by the Internal Revenue Service (IRS).

In this case, the defendant, Obayedul Hoque, owned a gas station and several Subway franchises in Alexandria and Arlington, Virginia, as well as in Washington, D.C. According to the criminal investigation division, the owner and co-conspirators, admitted to not depositing all of their gross receipts into the company accounts, and thus failed to report and pay taxes on a significant portion of their sales.

From 2008 to 2013, the co-conspirators falsely reported the franchise’s sales at $14,377,696, although the true and correct sales for the franchise were $20,805,667. The defendant admitted that as a result of the false reporting to the IRS, they failed to pay between $1.5 million and $3.5 million in taxes to the IRS.

The prosecution in this case proceeded under 26 U.S. Code § 7201, Attempt to Evade or Defeat Tax and the sentencing of the defendants has been put off to May 2016.  For this charge, the defendant faces a prison term of up to five years and a fine of up to $250,000 and under the plea agreement, he agreed to pay restitution to the IRS for the tax liability.

Under the federal criminal tax code, it is a felony for any person to willfully attempt to evade or defeat any tax imposed by or under relevant federal law. It is also a felony under federal criminal law to fail to collect, account for, and pay any tax imposed under the federal code. Federal tax fraud cases are also prosecuted for underpayment or failure to pay estimated tax as required by law.

The most important and most often cited federal court decisions concerning tax evasion in the United States define tax evasion and tax fraud in the same language. Tax evasion and tax fraud is the purposeful illegal attempt by the taxpayer to evade assessment or payment of any tax imposed by federal law. Tax evasion is different from tax avoidance. Tax avoidance is the legal utilization of the tax and taxation laws to one’s benefit. The reduction of tax liability through tax avoidance is not illegal. It is a federal criminal act to fail to report and or fail to pay taxes which are imposed by law.

Chief Richard Weber of the IRS Criminal Investigation Unit said, “Today’s plea of Obayedul Hoque for conspiracy to defraud the United States sends a clear message to would-be tax cheats.  U.S. citizens expect and deserve a level playing field when it comes to paying taxes and there are no better financial investigators in the world when it comes to following the money.”  And because of this apparent renewed effort by the IRS, regional U.S. Attorney offices, including here in Fort Lauderdale and in Miami, are under increased pressure to prosecute for tax fraud.

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Earlier this month, over 275,000 signed a petition and sent it to President Obama requesting a pardon for Steven Avery, the main character of the real life Netflix mini series. The Netflix ten-part series, Making of a Murder, has brought forward a public outcry and has motivated a great many U.S. Citizens to voice their lack of faith in the criminal justice system in the United States.

Making-a-MurdererThe series is about Steven Avery’s rape conviction, eighteen-year incarceration, subsequent exoneration and release, the wrongful incarceration law suit and finally a murder conviction following hard upon his release and lawsuit.  The story of Mr. Avery’s rape conviction, incarceration and subsequent murder conviction has spotlighted what has been portrayed as corruption and a venal manipulation of evidence, and the courts by the police to silence a wrong by imposing an additional wrong.. In what is an epiphany for many, the criminal justice system is seen as a system that is criminal in what it does to any concept of justice.

In response to the Petition, the White House, said:

Under the constitution, only federal criminal convictions, such as those adjudicated in the United States District Courts, may be pardoned by the President.  In addition, the President’s pardon power extends to convictions adjudicated in the Superior Court of the District of Columbia and military court-martial proceedings. However, the President cannot pardon a state criminal offense.

Mr. Avery was convicted of rape in 1985.  He served eighteen years in a Wisconsin prison and in 2003 he was released from prison when DNA evidence was brought forward to prove his innocence, which exonerated him of the rape conviction and set him free.  Upon his release, Mr. Avery sued the County of Manitowoc, Wisconsin, and the officials who convicted him of the rape.  His demand was for $36 million or two million dollars for each year he was wrongfully imprisoned.  After Mr. Avery filed his suit he was arrested and charged with a murder.  The ten-part series tells the story of Steven Avery’s murder conviction in 2005.

Mr. Avery maintains, and the story line conveys, that Mr. Avery was framed by law enforcement officials who changed evidence, withheld facts and so manipulated the system that a jury convicted Mr. Avery of murdering a young woman.  The allegedly “cooked up” murder evidence and subsequent murder conviction in 2005 was done by the same public officials he was suing for his wrongful incarceration for rape.  It would appear that the murder case was concocted to punish him for seeking monetary damages for the eighteen years he was imprisoned for rape.

From the date of Avery’s arrest for murder in 2005 he maintains that he was “framed” for the murder.  At the murder trial, he claims in an appeal, the prosecution introduced a “phantom” key, a vial of Avery’s blood that had its evidence seal tampered, and extra-judicial involvement of the very policemen who worked to convict Avery in the rape case and who were respondents in his civil lawsuit for $36 million.

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Presentence reports are prepared by the probation officer assigned to the federal judge’s courtroom.  The judge looks to the report in making sentencing decisions and defendants’ attorneys can object or supplement the presentence report.  Here are some considerations on how to help yourself if you are being sentenced in a federal criminal court.

300px-FBISealAfter verdict, the judge orders the in-court probation officer to prepare a pre-sentence report (PSR), then you and your attorney meet with the probation officer who will be preparing the PSR for your judge.  Look over the worksheet you are asked to complete and bring it with you to the meeting with the probation officer.

What I do, and suggest you insist be done for you, is have the defense attorney prepare an entire PSR, just like the probation officer’s finished product, and send it to the probation officer before he/she files their own PSR.  You know that you have fourteen days to object to the officer’s PSR, but objections have to go to an error in fact, not that the presentation of the facts, which can be very damning and negative.   Your lawyer’s “suggested” PSR is often used, or parts of it is used, by the probation officer in his/her final and completed PSR.

When I submit my own memorandum, I am mindful that I cannot change facts, but you can change focus.  There may be no doubt that my client has a prior conviction for a drug offense, but it may not be that simple.  Some of my clients were assisting law enforcement after their initial arrest and that fact can and is a legal reason for the federal sentencing judge to depart from the sentencing guidelines and impose a sentence below the guidelines range.  Often, I have a client whose drug conviction occurred before an extensive and successful course of treatment for substance abuse.   Although there is a prior conviction,  the successful completion of a drug program may be reason to present in the PSR that the defendant no longer is a danger to the community, or has assumed responsibility for past bad acts.  Again, the assumption of responsibility and the fact that a defendant is no longer a danger to the community is and are legal reasons for a judge to impose a sentence that is a variance in that it is less than the guidelines suggested sentence.

The thing to remember is that sentencing guidelines are not mandatory and are only  advisory.  Also know that when a judge imposes a sentence that is below the suggested guidelines sentence, he or she must state that the sentence is a variance from the guidelines.  A variance must be supported by findings by the Court and if your PSR contains legally sufficient reasons for a sentencing judge to make a finding that the sentence imposed is a variance the judge will always and only look to the PSR for facts to support a variance.

Take a moment to re-read what you have learned about the federal sentencing system –  what the guidelines are, how they are used, what findings a judge must make before imposing a sentence that is greater than or less than the recommended sentence under the guidelines.  Writing your own PSR for the probation officer can and is often rewarded by finding your own words in the final PSR that the judge reads and relies upon in making sentencing decisions.

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Yesterday, on January 12th, 2016, the U.S. Supreme Court ruled that a portion of Florida’s capital punishment system is unconstitutional.  The Supreme Court, in striking this portion, found that only a jury can make the necessary findings that the defendant’s taking of the life of the victim was cruel, unusual, or heinous.

Source: theguardian.com

Source: theguardian.com

Under Florida’s capital punishment system, the jury is not required to make findings or required to make the vote unanimous and instead the judge makes the findings of fact required by the U.S. Constitution before the death penalty could be imposed.  But now the Supreme Court’s ruling has rendered this procedure in Florida unconstitutional.

The U.S. Supreme Court decision was rendered in Hurst vs. Florida, No. 14-7505, in which Timothy Lee Hurt was convicted and sentenced in 2000 for the 1998 murder of Cynthia Lee Harrison in Escambia County, Florida.

The Court took a look at Florida’s statutory set up and found it lacking.  This decision is one of a line of cases going back almost twenty years.  The Supreme Court is pushing States to require juries make findings of fact when those findings impose sanctions on defendants.

During the first step of Florida’s process for imposing a death sentence, the jury has to make a determination on the evidence as to finding a defendant guilty or not guilty, which is called the “guilt phase.” If a jury finds a defendant guilty of a capital crime (a crime for which the imposition of death as a sentence is provided under the statute), the judge then tells the jury to hold their seats, or return the next day, for the “penalty phase,”

During this second phase of the trial, a determination will be made as to whether the defendant will be sentenced to death or sentenced to life in prison.  During this penalty phase, the prosecutor and the defendant have the opportunity to present arguments, call witnesses, introduce evidence, and bring on experts for opinions for subjects a judge finds can aide the jury in their determinations.   At the conclusion of the penalty phase, the jury will be sent to deliberate over the case.

The next and final step in this procedure is what was ruled unconstitutional in Florida by the Supreme Court.  As the law currently stands, juries in Florida vote (a majority vote is used, not a unanimous vote) on whether or not to “recommend” the imposition of death as a penalty and then their recommendation would be given in open court. Then, the judge makes the decision of whether to impose death or not.  So under this system, if the jury recommends a life sentence instead of the imposition of death, the judge can ignore the jury’s recommendation and impose death.  Now, juries in Florida will be required to vote and make their own finding of fact of whether or not the crime was cruel, unusual, or heinous, and if so, make the determination to impose the death sentence.

Supreme Court Justice, Sonia Sotomayor wrote that under the Sixth Amendment of the U.S. Constitution, the jury is responsible for making the necessary findings of fact, and not the judge. That “… a jury’s mere recommendation is not enough.”

While the death penalty still stands in Florida, the U.S. Supreme Court only addressed the manner in which Florida goes about deciding whether or not to impose a sentence of death for a capital crime.

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This past Saturday, January 9th, Sean Penn published an extensive article in Rolling Stone detailing his covert trip to Mexico to meet and interview the drug lord Joaquin Guzman Loera a/k/a El Chapo, along with Mexican actress Kate Del Castillo.  Sean Penn could now be the focus of a criminal investigation and may be charged with crimes in Mexico and possibly the United States because of these dealings.

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Source: Rollingstone.com

After reviewing Sean Penn’s article in detail, his actions could be characterized as aiding and assisting a fugitive or participating in a conspiracy to assist a fugitive. Sean Penn stated in his article all the steps he took to obscure the nature of his travel and its purpose. Under Anti-terrorist laws, a person who knowingly conceals the nature, or location of a terrorist, or who knowing or intending to conceal the whereabouts either assists in the concealment of an escape or conspires to do it can be prosecuted.

If Sean Penn was interviewed by U.S. federal agents and he somehow misleads them, then he could be charged with obstruction of justice.

Actors and movie producers do not have any immunity from criminal prosecution.  From Sean Penn’s perspective, he may have been pursuing a good story for a movie, but from law enforcement’s perspective, he may have aided a fugitive in flight, acted to assist in the concealment of a fugitive, or run afoul of U.S. laws criminalizing anyone who provides material support to a terrorist.  The United States has adequate legal basis to prosecute major drug traffickers as terrorist organizations.  Under U.S. criminal laws, particularly U.S.C 2339A, a person who attempts, conspires or actually provides material support or resources to a terrorist or a terrorist organization, can be prosecuted in the United States federal criminal courts under the anti-terrorist statutes.   Any group designated by the U.S. as a terrorist organization, comes under the umbrella of the U.S. Patriot Act and at this point in time, Sean Penn may be charged in the United States for violations of the Patriot Act.

Keep in mind that Joaquin Guzman Loera is a fugitive under U.S. laws and has been charged with an array of narcotics offenses including murder and gun law violations.  In his article, Sean Penn wrote among other things, “There is no question in my mind but that DEA and the Mexican government are tracking our movements.” And Sean Penn wrote that he communicated with “El Chapo” by employing ‘burner phones’ and there was “one per contact, one per day, destroy, burn, buy, balancing levels of encryption, mirroring through Blackberry Phones, anonymous email addresses, unsent messages accessed in draft form.

Sean Penn may well be prosecuted because “El Chapo” may try to lessen his criminal exposure by testifying as to what Sean Penn did and said. Testimony from a co-conspirator and the addition of evidence is sufficient for a conspiracy count.  A conspiracy requires an agreement between two or more people to commit a crime.  Here, El Chapo and Sean Penn acted in concert and with actual knowledge of what they were doing to avoid detection and arrest.

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