Anatomy of a Federal Criminal Law Case – Part One: Investigation

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A federal criminal law case starts with an investigation, triggered in one of a number of ways: unlike a bank robbery where the event itself triggers the investigation, in most white collar criminal cases a federal regulatory (the SEC, one or another Medicare program safeguard contractor, the IRS, etc.) gets wind of improper conduct, or a federal criminal law investigative agency – FBI, DEA, ATF, ICE, etc. – comes across information about criminal conduct. That can happen in one of a number of ways. First, some citizen might see or hear about criminal conduct and report it. Sometimes federal criminal law cases begin with the arrest of someone caught engaging in a criminal act and, in order to save himself, he tells the authorities that he knows of some far more serious criminal conduct.

Example: police stop a man for a traffic violation and discovery he has several prescriptions or bottles of prescription narcotics in other people’s names in his car. Right away, he wants to make a deal. Equally quickly, most local agencies realize there may be far more to the circumstances than just a few bottles of narcotics. So they call in the “feds.” Most police agencies maintain close working ties with federal agencies, often through ongoing local, state and federal task forces.  Turns out maybe that Mr. Traffic Stop got those medications through a health fraud scheme involving doctors and other health professionals, and the narcotics were the “payoff” for the runner (Mr. Traffic Stop) who brought “patients” to unscrupulous doctors or clinics. The “patients” agree to pretend they received all manner of medical treatment from or through the doctors in exchange for cash kickbacks and/or narcotics prescriptions, which they share with the “runner.”

The agent assigned is then assigned to the appropriate Assistant U.S. Attorney. The two work together from then on through the investigative stage and prosecution.

During this process, several investigative techniques are employed: first, public records are researched to find out everything about the targets (the people Mr. Car Stop says were involved), including criminal records and health licensing and discipline (if any). Internal federal computers are employed to cross-check the names against other convicted criminals (or even just acquaintances of accused criminals). Then the investigative activities take off, including trash pulls; surveillance; interviews; search warrant executions, etc. Once the government, in the person of the assigned Assistant United States Attorney, decides there is enough to charge one or another target, either a criminal complaint is issued and the target arrested, or an indictment is obtained from the grand jury. More on all thais to follow in Part 2.

The DOJ’s Newest Attack on the Fourth Amendment

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Remote Digital Searches: Your Computer is Totally Not Private if Federal Criminal Law changes for the worst.

This news was brought to light by the Gizmodo Federal Criminal Law Blog, describing the Justice Department’s continuing attack on the Fourh Amendment – the constitutional right to be free from unreasonable searches and seizures:

A new proposed rule change will make it far easier for federal agents to obtain warrants to hack a computer from basically anywhere was just approved by a US Court committee, bringing all of us one step closer to having what little is left of our digital privacy rights destroyed in the name of federal “investigative need.”

In only very rare cases historically have agents been able to get permission to legally conduct remote computer searches, outside of the issuing judge’s jurisdiction. To make it easier for the FBI to conduct these sorts of remote hacks and track down criminals who use anonymizing software, the DOJ would now like to expand that power, resulting in a massive repudiation of the Fourth Amendment. Not only would the rule change permit judges to authorize FBI agents to surveil and grab any suspect’s digitally-stored information anywhere and from anywhere, but the vague language of the rule can (and, if history is any guide, will – remember the Patriot Act?) make it totally acceptable in certain cases to search our computers without ever telling us.

For example, the change would excuse territorial limits on the use of warrants to conduct “remote access” searches where the physical location of the media is “concealed through technological means.” The proposed change does not define what a “remote search” is or under what circumstances and conditions a remote search can be undertaken; it merely assumes such searches, whatever they may be, are constitutional and otherwise legal. It carries with it the specter of government hacking without any Congressional debate or democratic policymaking process.

The USA Patriot Act is a perfect example of what happens when the government is given unusual authority to “cross the line”  for a specific threat – all in the name of catching terrorists who might otherwise hit America again.

Everyone in the government admits there has been no specific terrorist act or plan identified or thwarted through the use of the Patriot Act privileges – but there have been plenty of “ordinary” criminal cases that were made by the use of that Act’s authority – something the Bush DOJ promised it would not use the Act for.

Federal Criminal Law – FBI Hair Comparison “Experts” – Part One

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Finally, after years of federal criminal law (and state) defense lawyers’ complaints that the FBI hair analysis “experts” used in state and federal prosecutions for decades, were making it up as they went along, the truth is out: they were making it up as they went along. Now they have admitted it, though very reluctantly.

Turns out that all but two of the 28 examiners in the FBI’s hair comparison unit “overstated” forensic matches which always – surprise – favored the prosecution’s case 95% of the time.  The NACDL and the Innocence Project (Barry Scheck, Peter Neufeld, and their band of renowned) finally succeeded in exposing the dirty tricks that were used on, often, innocent defenants.

Incredibly, 32 such defendants were sentenced to death based due in no small measure to this phony junk “science” perpetrated on unwitting jurors by the FBI and prosecutors all over the country, half of whom have already been executed (or died in prison waiting for their lethal injection).

Just like the finally repudiated “bite mark” comparison pseudo-science, which also sent men to their deaths and to prison for decades, hair analysis “experts’ from the FBI were making it up, or exagerating it, as they went along. Federal criminal law was turned on its head.

Sen. Richard Blumenthal of Connecticut, said, “These findings are appaling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongfully imprisoned and even executed, but for prosecutors who relied on fabricated and false evidence despite their intentions to faithfully enforce the law.”  And all too many prosecutors knew all along that what they were presenting to the jury was phony, pure junk science.

Stand by for Part 2.

Federal Criminal Law – FBI Hair Comparison “Experts” – Part 2

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More on FBI misdeeds in the realm of junk science in federal criminal law. These so-called experts claimed at trial after trial that the hair comparisons were near-certain “matches” to defendants charged in the cases.  To make matters worse, to butress their phony testimony, they described misleading statistics culled from their own work.  In other words, they claimed the hairs matched, and used their own history of “matching” samples as support for their own – self-seving – conclusions.

The truth is, there is no legitimate research that supports the FBI experts’ claims of how often hairs from different people may appear to be the same. Federal criminal law has been abused before, but this raises it to new levels.

In Washington DC federal criminal cases, 3 of 7 defendants (43%) whose trials included such nonsense FBI “expert” claims were ultimately completely exonerated by DNA comparisons, which is anything but junk science.  But those FBI experts had claimed that the “hairs matched” and were the defendant.

In all, when all the cases these “experts” testified in are counted, the FBI itself now admits that the examiners “made statements exceeding the limits in 90%” of the cases, including a staggering 34 death penalty cases.

If this weren’t bad enough, along the way these same “experts” were teaching state and local crime labs workers across the country in their so-called “techniques,” and how to testify effectively just as the FBI agents were doing.  So, worse than anything, they have also contaminated untold numbers of state and local “experts” to do the very same scheming, lying and perjuring themselves – all in the name of getting convictions.  Innocence doesn’t matter to them – close the case, convict someone – even better if it’s someone they don’t like in the first place.  Horrid abuse of the criminal justice system.

Thank you also to the Washington Post for pushing the FBI and the government into looking and admitting:

http://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html

Federal Criminal Law – The Federal Code – Money Laundering

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The federal criminal law is sometimes a very dangerous, and absurd beast.  In the federal criminal code, Title 18, Sections 1956 and 1957, the goverment has convinced Congress over the years to make it very easy to convict someone of “laundering” proceeds of what used to be certain criminal offenses, but which has expanded to cover virtually every single federal crime.

The first, and tougher, money laundering offense, Sec. 1956, requies to get a conviction that the government prove, first, that the financial transaction involves the “proceeds” of some form of unlawful activity – anything from bookmaking to drug dealing to RICO to Medicare fraud.  To be convicted under this federal criminal law, then the government must prove that the defendant was doing what he did to “promote the underlying unlawful activity;” and that he knew the assets came from some illegal conduct; that he tried to “conceal or disguise the nature, location, source, ownership or control” of those illegal proceeds or tried to avoid an otherwise legally mandated “financial transaction report,” as from a bank, or a car dealership, jewelry store, or airplane sales company, etc.

The penalty on conviction is up to 20 years in prison.  If the girlfriend of a drug dealer takes some cash from him and goes out and buys a bunch of “throwaway” cell phones for her boyfriend’s associates to use in selling the drugs, she can be convicted and sentenced to prison of a long time.

But then there is Sec. 1957, the second tier money laundering statute, and really the most devious.  It “only” carries a maximum of 10 years in prison, but the trade-off is that the government has very little to prove:

The government must prove that the funds came from some illegal activity and that ther person using those fuds knew it, it does not have to prove she or he tried to conceal or disguise the nature, location, source, ownershipor control of thopse proceeds to be convicted. Incredibly, all the government has to prove is that the person engaged in a financial transaction of any kind, knowing where the money came from. Nor is proof required that the transaction was engaged in to promote the underlying criminal activity – only that it was engaged in!

So, if an on-line bookmaker uses his earnings to pay his ex-wife the alimony or child support ordered by a divorce judge, as long as she knows that’s where it came from, just accepting the alimony or child support qualifies as “engaging in a financial transaction with illegal proceeds.”

She can go to prison for 10 years just for accepting the child support obligation to feed her children.  Is it likely that the government would often go that far? No, unless it wanted to press the bookmaker to plead guilty to something, under the threat of his ex-wife’s prospect of prison.  Or unless the government wanted to squeeze some money from the ex-wife and needed a wedge to threaten her with.

I know, because it happened to a client of mine.

Federal Criminal Law – RICO (Racketeering)

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In all of Federal Criminal Law, one of the toughest statutes is the one referred to as Racketeering(Title 18 §1962) is one of the most burdensome of all federal criminal laws, in that it operates more than anything to dramatically increase sentencing guidelines.

Clearly, the use of RICO can earn an individual a sentence of 20 years in prison (or for life if the violation is based on racketeering activity for which that maximum penalty is life in prison, even if the sentencing guidelines call for a much lower sentence – more about sentencing guidelines coming soon).

Any activity that results in any kind of interference (actual or theoretical) with interstate commerce by threats or violence, brings a potential prison sentence of up to 20 years under § 1962.

Participating in the operation of a business (even an orignally legal one) which is involved in some way in “interstate commerce,” that is, activities; taking over a legitimate business through racketeering (such as extortion, threats of violence, etc.); or conspiring to do any of these things.  (Stand by for information from Burdick Law, P.C. with definitions of conspiracy – a very troubling concept.)

Or just distributing or investing the proceeds of any unlawful activity (such as selling televisions in one state that were stolen in another state), or investing illegally earned money in stocks and bonds, results in the same enormous penalty if the government can prove the elements of racketeering.

When Congress enacted the Racketeer Influenced and Corrupt Organizations Act, many states started to follow with similar laws. In order to convict someone under RICO, it’s no longer necessary to prove the suspect personally committed any of the illegal activity. Instead, prosecutors only need to prove:

· The defendant owns and/or manages an organization which is operated illegally, the “enterprise,” in the jargon of the statute;

· The defendants engaged in at least two or more “predicate offenses” (which now includes pretty much all serious federal crimes) and . . . and which were connected to each other by a common scheme or plan, and committed within 10 years of each other.

Although RICO was initially created to prosecute infamous crime rings such as the “Mafia” and similar gangs of organized criminals, it was soon stretched to cover many other criminal activities. For example, RICO charges were brought against pro-life activists for illegally blocking the entrance to abortion clinics.

All in all, RICO is a very tough law, one which is being used more than it should if for no other reason than to ratchet up the potential sentencing a defendant faces, to thereby coerce him to plead guilty to something lesser.

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