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prison groupWith over 200,000 inmates in the Federal prison system and a Congress poised to make changes in the harsh sentencing rules for drug offenses, clemency is under consideration by the office of the President. At the time of this posting the criteria for consideration of clemency can cover about 2,000 federal inmates. Civil rights groups and prison reform organizations are skeptical of how many will be granted clemency.The office of the President explains that the process has become bogged down and expects only 200 will be considered as eligible during this round of inmates being reviewed.

The president of the National Association of Criminal Defense Lawyers issued a statement that this is the beginning of the end of mass incarceration for drug offenses. Others are doubtful as the politics of prosecution and confusion over criminality and drug addiction stifle debate and freeze legislatures.   Across the United States a debate is in process, but the process is frozen. President Obama’s clemency program is a case in point and illustrates that the reality of reform and the process of clemency are at odds. Families Against Mandatory Minimums is a major force in the movement to reconsider the long sentences meted out for drug offenses, and announced it welcomes the clemency program of president Obama.

For more information contact the Office of the President of the United States and the U.S. Department of Justice.  The clemency process starts with a formal request for clemency. Filing instructions and information are available on the U.S. Department of Justice website. Clemency considerations include the following factors:

  • The applicant must be a low-level non-violent offender.
  • The applicant must not have a criminal history of any significance
  • The applicant must have been sentenced to a prison term that is longer than the current guidelines ranges.
  • The applicant must have served at least ten years in federal detention and have demonstrated good conduct while incarcerated.
  • Further, the applicant must have no history of violent behavior while in federal detention.

Most of those under consideration in the President ‘s clemency initiative are serving sentences for crack cocaine possession and delivery who were sentenced under the “old” crack cocaine sentencing guidelines, the one that was modified and reduced by the sentencing commission last year. There is a “push” politically that has gained momentum and is supported by both conservative republicans in the House and Senate as well as the Federal criminal bar (attorneys) and both conservative and liberal “think tanks.”

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mortgage fraudUnited States District Courts were, until recent years, required to strictly and mechanically follow the sentencing guidelines propounded by the U. S. Sentencing Commission. With the changes of the past eight years, the Courts have been largely permitted to vary or depart from the guidelines. Nonetheless, the U.S. Sentencing Commission still maintains a powerful influence on what Judges can and cannot do in deciding what is a guideline or “legal” sentence under federal criminal law.

From time to time we have seen substantial changes in the published sentencing guidelines, and 2015 is a banner year for change. Changes approved by the U.S. Sentencing Commission outlined in this report will be effective on November 1, 2015, unless the Congress acts to overrule, repeal or modify the new guidelines.

This blog entry deals only with the new guidelines affecting white collar crimes. These include money laundering, fraud, currency violations, mortgage fraud and securities law violations. The Commission explained in its proposed changes that it wants to more fairly balance harm suffered by victims and the intent and actual participation of the defendants, as well as updating the realities of the monetary ranges which were last set in 1988.  The criticism which prompted these changes comes from criminal lawyers and judges, as well as prosecutors in the Justice Department and the U.S. Attorneys Office that the current (soon to change) guidelines have produced overly severe sentences in some cases and inappropriately light sentences in others. Additional changes, particularly in mortgage fraud cases, emphasize the actual knowledge and acts of defendants and cuts the link that equates a conspirator with no actual knowledge, no intent and no participation in the actual acts. This comes up often when one of the conspirators who by his/her actions assists or provides the opportunity for mortgage fraud but does not or is not involved in the structuring and savaging of victims.

This came up in a recent federal mortgage fraud case I was defending in the Miami Federal court. My client, who had an ownership interest in a title company and had the duty to supervise employees was sentenced under the same guidelines as the bad actors. Imagine if you owned a bank or title company or mortgage brokerage firm and while you were hospitalized and removed from the day to day operations, your employees concocted and executed acts of fraud and deceit, hid them from you and changed records such that even with a serious due diligent effort to uncover the fraud you could not have found the bad acts of your employees. In this case the fraud only became known when defaults resulted in foreclosures and then the banks saw that they had lent monies far in excess of the values fraudulently assigned to the properties and that the owners were never financially qualified from the get-go.

The changes in the guidelines now state that the defendant be proven by the prosecutor to have actual knowledge and proven intent to cause the losses before their sentence can be increased by the actual dollar amounts. Nothing changes a defendant’s criminal liability as a conspirator.  You have the duty to supervise and the duty to know of the fraud: the proposed guidelines instructions do not release you from guilt as a conspirator, but your sentence is not tied to the actual amount of the loss. And the losses are also subject to changes in computational and analytical approach. This makes more sense when you actually read the proposed changes.

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Harry Truman never completed law school but he did attend for two years. He lived a few miles from Kansas City, which recently became renown in the history of lawyers and lawyer jokes. It all began on April 14th when legal secretary Monica Hastings opened her boss’s office and was greeted by a

Source: wgnradio.com

Source: wgnradio.com

Turkey…an “involuntary intruder” as she reported it to her boss, lawyer Jeffrey Tonkin. She reported to a local news station “I opened up the door and I saw a little turkey tail go past his desk”. The “intruder” Turkey left a hole in Tonkin’s window when it was, by current police suspicion, propelled into the office through a glass window by “unknown and unseen forces.” This challenges the popular belief that Turkeys’ can’t fly. But perhaps the bird needed legal representation and wanted to talk turkey with the lawyer and entered after hours for a discount. Now displaying his practice as “ a Turkey At Law” local lawyers are trying to capitalize on a new area of constitutional law protecting Turkey’s travel and air rights. More to come in future postings…..

Source: ABA Journal

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Real Housewives of Beverly Hills star Kim Richards was arrested in California in the Beverly Hills Hotel and charged with trespassing, public intoxication and resisting an officer and battery on an officer.  Early morning Thursday, April 16, 2015 Kim Richards was arrested on the grounds of the Beverly Hills Hotel. Reportedly, the staff contacted the Beverly Hills Police reporting a “possible fight” and “an intoxicated female causing a disturbance” in an on site restaurant, most likely the posh and very famous Polo Lounge.

Source: EOnline.com

Source: EOnline.com

According to the police report, Kim Richards, the Real Housewives of Beverly Hills starlet was in the process of being escorted off the property of the hotel when she asked for a detour to use a bathroom before she left. Once in the loo, she refused to leave and the police entered the bathroom to take her into custody. The police report continues: “Ms Richards was displaying symptoms of alcohol intoxication including slurred speech and belligerent insolent behavior cursing at the offices and passively resisting arrest.” Once off to jail it was reported she kicked an officer in the leg. Kim Richards was released at 10:30 the next morning and issued a notice to appear citation requiring her to appear before the Los Angeles County Superior Court on May 10th, 2015.

Co-Star, Dr. Paul Nassif, reportedly told BravoTV.com that Kim Richard’s behavior was the result of a combination of medications that Ms. Richard’s had been properly prescribed, but had the effect of causing her to appear intoxicated, and, reportedly, alcohol was not involved. Below is some tweet activity from cast mates on the very popular real life show:

Lisa Rinna: “I was sad to hear about Kim’s incident and I wish her and her family the best.”

Lisa Vanderpump: “U can’t help somebody til they want to help themselves,I know for sure that the sisters will always support each other when the time comes.”

Brandi Glanville: “Real friends are their in the good times, the bad times &especially the worst times. I am blessed with real friends & am a real friend myself.”

Eileen Davis: “I feel badly for Kim Richards and her family my thoughts and prayers are with them during this difficult time.”

According to RadarOnline.com, Kim’s sister Kyle is still refusing to speak to her following their “RHOBH” reunion blowup.

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April 6, 2015 marks the closing arguments in the Boston Bomber case being played out in Federal court in Boston. The Federal criminal trial of Mr. Dzhokhar Tsarnaev, the sole survivor of the pair that is accused of planning, preparing and detonating an anti-personnel destructive device at the finish line at the 2013 Boston Boston-bomber-trial-300x217Marathon, is at its finish this week.

Survivors and family members heard the Assistant United States Attorney, Mr. Chkravarty, make his closing arguments. His remarks described a deliberate and well planned attack in retaliation for the perceived harm the two men endured as a result of the U.S. led military actions in Iraq and Afghanistan. The second man, Tamerlan Tsarnaev was killed during his escape.

Some of the Assistant United State’s Attorneys closing remarks are as follows: “The evidence here speaks for itself,” he said Immediately after that he showed to the jury several still images and a video of the victims before the bomb was detonated. He went on to say the the Tsarnaev brothers knowingly and intentionally targeted innocent civilians including children. Mr. Chakravarty walked over to Mr. Tsarnaev and said while pointing at him, “He thought his values were more important than anyone else’s.”

Most commentators and observers of the trial agree that the jury can and will convict. There are a total of thirty counts in the Federal criminal indictment. The total number of victims killed is three and 264 people were wounded. The lead prosecutor, Assistant United States Attorney William Weinreb went to great lengths to emphasize that the two brothers were equal partners in their crimes and the law holds them equally liable. The defense attorneys during the trial argued that the surviving brother, Dzhokhar, was duped and brought into the conspiracy by submitting to his brother’s overwhelming willpower. The prosecutor’s case took over fifteen days of testimony from ninety-two witnesses. The prosecutors case opened with images of the gruesome death of an eight year old child who was watching the finish line of the Boston marathon with his parents. The defense called four witnesses and took a little more than five hours. Defense attorney Clark emphasized in her opening and closing that the dead brother was the driving force and the planner and initiator of all the acts, from the planning to the construction of the bomb.

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Today in Alaska, an amendment permitting recreational marijuana use goes into effect. In November, 2014, the citizens of Alaska in a statewide vote to amend the Alaska constitution voted 53% for and 47% against this amendment. The vote, a majority, prevailed and the new amendment became fundamental law for Alaska. This makes Alaska the third state in the United States to legalize recreational use of marijuana.  The new status of marijuana makes it legal for people over the age of twenty-one to consume personal use amounts of cannabis. It is still illegal to sell marijuana and illegal to purchase marijuana.  Read the full text of the amendment here.

Alaska-amendmentPrior to the Alaska amendment, Washington and Colorado were the only states permitting recreational use of marijuana. Medical use is different and requires a bona fide medical need before it can be dispensed. Alaska now must implement the amendment and deal with the issues of public consumption, intoxication, and removing criminal sanctions for possession and use of marijuana.

The initiative in Alaska left many issues to be resolved. For example, the initiative and amendment does not permit smoking marijuana in public. Smoking in public does not deal with the consumption by other means in public, such as drinking fluids containing marijuana and cannabis extracts. Nor does it deal with eating consumables containing cannabis.  The City of Anchorage, Alaska, has an ordinance punishable by a fine of one hundred dollars if cannabis is smoked in public, but no definition of what the word public means. Reportedly, police in Anchorage are ready to issue citations, but the officers have not been instructed on what constitutes a violation of the city ordinance. Alaskan lawmakers have to define the scope of permitted consumption and any criminal violations which involve the abuse of the right to consume marijuana. The State board regulating alcohol has been delegated authority to regulate but the empowering statute under administrative law is open to interpretation and challenge, and so most of these issues will be resolved in proposed legislation and in criminal courts.

A larger question remains as to federal criminal law and their enforcement in states such as Colorado, Washington and now Alaska. Federal criminal law clearly identifies cannabis as a controlled substance, and federal laws regulate all controlled substances.  The possession, sale and transportation of marijuana is a crime under federal law. States cannot overrule federal laws and the conflict creates very real problems. For example, can a resident of Alaska purchase recreational marijuana using a credit card without exposing the credit card company to criminal charges?  If one writes a check, and thereby uses interstate commerce banking channels, is the bank subject to criminal prosecution for processing a check? If one mails marijuana within Alaska, or uses a commercial shipper such as FedEx, does that expose the carrier to arrest and prosecution under federal law? The answer is clearly YES. The question is whether or not the U.S. Attorney will prosecute under federal law, and that is a policy and political question for the federal government to resolve.

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Mortgage fraud in South Florida continues to be in the news, as a multi-agency task force involving both federal agencies and local law enforcement continues to file criminal cases in both state and federal Courts. South Florida federal courts are known to be especially focused on sex crimes and white collar fraud, while medicare fraud and mortgage fraud criminal prosecutions are leading the headlines. When looking at the convictions, specifically for mortgage fraud, Florida has a reputation for long prison sentences.

mortgage-fraud-300x300So, is it true that federal criminal judges in Miami and Fort Lauderdale sentence longer than other districts? A lot more?… Well…in a word, yes, a lot more. More than other parts of the U.S.? Yes. More in the Southern District of Florida (i.e. Miami), than in other parts of Florida? In a word, Yes.  This can be seen in the numbers of mortgage fraud cases filed by the U.S. Attorney in Florida, the total number of defendants charged with mortgage fraud, the number of defendants that decide go to trial and the total amounts of money lost by banks in Miami, Fort Lauderdale and Palm Beach.

Most people who are arrested for mortgage fraud and prosecuted in federal court want to know the sentencing risks: The risk of long sentences if the case results in a conviction, the risk of harsh sentencing by federal judges in Florida for those defendants that plead “open” to the court, and the range of sentences for mortgage fraud by defendants who do substantial assistance, that means agree to testify against other defendants.  It is smart to know your exposure before deciding on a strategy.

Sentencing exposure can be guessed at by the criminal lawyers who do mortgage fraud cases, but it is usually a “seat of the pants” estimate, although there is no need to guess, however, because sentences are compiled by the Sentencing Commission and available online.  Here is what the Sentencing Commission found: t

  • Twice the number of mortgage fraud cases are filed and prosecuted in the Eleventh Circuit, i.e. in Florida than in any other federal district.
  • Nationally, 9.8 % of federal cases involved fraud, and in Florida 18.2 % of the cases involve fraud, which is double.
  • Nationally, 3.1 % of federal criminal cases go to trial, and in Florida double the number of cases go to trial, which is 5.6 %.
  • Prison sentences (in years) are longer in Florida than in other parts of the U.S. Nationwide, as 71.5 % of those charged with fraud go to prison, while in the Southern District of Florida (Miami, Fort Lauderdale and Palm Beach) it is a little higher,  74.0 % of criminal defendants facing fraud charges go to prison.

The reason Florida has a reputation for longer sentences is, firstly, Florida has more mortgage fraud/white collar prosecutions than other parts of the U.S.  Secondly, as the nature of the cases seem to follow a pattern, so does the outcome. It’s not that Florida federal judges give longer sentences than federal judges in other districts, that is simply not the case. What you are seeing is a greater number of fraud cases with outcomes that are above the median. Florida also has more egregious and offensive operators in the housing sector. We see more double HUD form frauds, more dishonest appraisals, more bank employees willing to be a part of fraudulent loans, and more small offices that are not supervised by a compliance officer. That being the case here in Miami, attorneys who do mortgage fraud cases are more experienced and are flown all over the U.S. to represent defendants in other cities.

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The Obama administration  has announced that it is expanding the Center for Strategic Counterterrorism Communications efforts to “countermessage” terrorists groups. Propaganda has a long history of use as a governmental tool to enlist public support and oppose groups that disagree with State policies.

The Obama administration has not put forward a legal basis for the use of the internet as an extension of the War Powers Act. In fact, the Obama administration has not stated any legal basis for the use of government speech to obstruct ISIS and other extremist groups from their use of the internet to recruit.   There has been little or no attention to the legal basis upon which the Obama administration is using, and now expanding, governmental presence on internet media, from Tweets, and Facebook to internet chat rooms.

Source: www.theguardian.com

Source: www.theguardian.com

In an article in the New York Times (dated February 16, 2015), it was reported that the Executive Branch is expanding  funding for ‘countermessaging’ recruitment by groups the government considers terrorist enterprises. At the center of the funding is a governmental agency The Center for Strategic Counterterrorism Communication, currently run by Alberto Fernandez, a career foreign service officer and Middle East expert. Mr. Fernandez has announced his retirement and will be replaced by Rashad Hussain, a Muslim-American with reported close ties to the Obama Administration. Funding, currently at five million dollars annually, soon will be increased significantly.   Reportedly the current 350 Twitter accounts used to moderate and infiltrate the “terrorist community” will be expanded. The new plan, it has been announced, will use “digital outreach teams” in an “Information Coordination Cell” to mitigate extremist violence.

The Administration  has stated that “We’re getting beaten on volume” and that to compete with the enlistment efforts of terrorist groups the government will expand exponentially governmental presence in Internet media. The government’s decision to increase funding and expand the use of internet channels and media to influence the enlistment efforts of Muslim extremists is reportedly tied to and a response to, the shootings in France and most recently in Copenhagen.

Administration officials said a recent conference on effective use of social media to blunt extremists as the prompt to the expanded use by the Obama Administration. What has not been reported  is a legal basis for the federal government to use social media as an arm of the executive branch’s powers to act in matters of foreign policy. The issue is not whether it is an effective method to counter the use of social media by extremists groups. The issue is the use of social media by the government to advance policy goals. Policy goals are just that, policy goals and not governmental powers.   As important as it may be in the public arena for the government to effectively respond to domestic and international acts of terrorism against civilians, the lawful exercise of governmental actions to use propaganda as an extension of war powers must be questioned. That the constitution empowers the federal government to field armies in times of war does not empower governments to influence the process of public debate.

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Prosecutors have charged “Suge” Knight with one count of Murder and one count of attempted Murder. Reportedly he drove his vehicle at and killed a business associate and nearly killed another man. All this took place in a parking lot in Compton, California.

Authorities at first considered the act as a hit-and-run: it was and is re-filed as murder and attempted murder. The charges were filed against Knight, the owner of Death Row Records, a prominent rap artist promoter and producer. Marion “Suge” Knight was out on bail at that time on felony robbery charges in Los Angeles. Many of you know Suge Knight from his professional football career of twenty-five years ago. Since leaving professional football Mr. Knight (age 49) has been in and out of prison, shot six times last summer and has pending robbery charges.

Marion "Suge" KnightHis lawyers have provided authorities with copies of a video recording of the events, which took place in a “burger” restaurant parking lot. Knight’s lawyers said the video showed that Knight was trying to escape an attack. Authorities, after reviewing the tape, indicated that the video shows him deliberately driving his car over the two men, killing one of the two. Knight faces a prison term of 50 years to life in California under the State’s three-strikes-and-you’re-out Statute. Details of the event indicate that Suge Knight was on a movie set for the movie “STRAIGHT OUTTTA COMPTON” when the events occurred.   Knight’s lawyer, Mr. James Blatt said that Knight “accidentally” ran over the two men, killing one of them, as he (Knight) was trying to escape a “vicious attack.”

Authorities have released the name of the man who died as Terry Carter (age 55) and the injured man is reported to be Mr. Cle “Bone” Sloan (age 51). Details, which are not confirmed, are that after visiting the movie location (Straight Outta Compton), which is a film about the rise of N.W.A., a rap group, the men argued. Sheriff deputies who were there providing security, told Knight to leave. The men got together again in a nearby parking lot and the dispute resumed.  Reportedly punches were exchanged through a window of his pickup truck. Then, as the unconfirmed reports continue, Knight drove his pickup truck at the men, killing one and injuring the other.

Attorney Blatt disputes this report of the events. According to Blatt a group of people tried to kill Knight and were in the process of pulling him out of his pick-up truck when he regained control of his vehicle and ran over the two men while trying to escape the attack. The incident was originally handled by authorities as a hit and run case and Knight was issued bail of $2.05 million dollars. However, once his status as being out on bond for a robbery (involving a camera he took from a photographer who was taking photos of him last November in Los Angeles) was reviewed, and the charges re-filed as murder and attempted murder, authorities moved in court to have Knight remanded into custody without the opportunity to be released on bond. The reasons cited by the prosecutor’s office were his status as a convicted felon, the fact that the new charges arose while he was on bond for an unrelated felony charge, his ability to flee the jurisdiction and that he may try to tamper with evidence or witnesses in an effort to obstruct the government’s case against him.

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For fifty years, the policy of the United States was to permit Cubans convicted of deportable crimes to remain in the United States. This policy is coming under review and may be reversed. The United States has not deported Cuban nationals from the United States and the Cuban government has refused to accept their citizens who would be subjected to removal.

Alejandro Mayuorkas, the deputy secretary of the United States Department of Homeland Security has publicly stated that the issue will be discussed with Cuban authorities in the context of negotiations to normalize relations between the United States and Cuba. Of the approximately 34,500 Cubans who have been convicted of crimes which subject them to deportation, the overwhelming majority have not filed legal papers to stop their removal; assuming that their special status will not be modified.

U.S. / Cuban flagsImmigration lawyers throughout the United States, and particularly in Miami, where the largest number of Cubans subject to deportation reside, have been swamped with calls for help. Because those who have been issued deportation orders in past years have not elected to fight those removal orders in Federal Court they may have lost the right to object to their removal. As a result of their confused legal status: ordered to be removed but not removable due to U.S. policy, those individuals ordered to be removed may face removal in the coming year or two.

The United States Supreme Court, in rulings in 2001 and 2005, prohibited the detention of those immigrants who cannot be deported to Cuba pursuant to the policies of the U.S. Federal authorities. The rulings required that they be released into the community after serving their prison terms in the United States and were, and are, required to report in person or by mail to Immigration and Customs Enforcement agents (ICE). Knowing and monitoring their locations permits the ICE agents to find those individuals and begin removal if and when Cuban and United States negotiators resolve the question of removal.

As of the date of publication of this report (February 2015), ICE has not changed the policy as to the removal of Cubans residing in the United States who have been ordered to be deported. With the exception of 2,746 Cubans who were accepted by Cuba in 1984, there have been no Cubans removed to or accepted by Cuba. Of those 2,746 Cubans on the list, almost all of them arrived in the United States in 1980 on the legendary Mariel boatlift operation. The Mariel Boatlift of 1980 is reported to have brought 125,000 Cuban nationals in private boats to Miami, Florida. Many nations, other than Cuba, make it difficult or impossible to remove their citizens who are in the United States and commit deportable offenses. Among those nations listed by U.S. officials as “recalcitrant nations” are Iran, Vietnam, Cambodia, India, China and several other Caribbean nations.

The Sun Sentinel, a popular newspaper in Broward County and Miami (Florida) recently inflamed passions on this issue by publishing a series of reports about Cubans who have been convicted of Medicare fraud, rape, armed robbery, narcotics violations and violent crimes and who remain in the U.S. and flaunt their special status as non-removable aliens. This has brought about an increase in the tensions between Cubans who have the right to remain in the United States and citizens of other nations who are routinely and regularly deported from the United States to their country of origin.

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