Category : Firm Articles

Plea-bargaining and Guilty Pleas: A Curse or an Answer to a Defendants Prayer?

By: Vince Imhoff, Attorney at Law & Helen O. Kim

Plea-bargaining and guilty pleas are a critical element of the criminal legal system.  Plea-bargaining is a process in which a defendant negotiates the terms of punishment in exchange for a guilty plea or a no contest plea. Many times the prosecutor will offer to dismiss some criminal counts or reduce the maximum punishment. There are different reasons why defendants decide to plead guilty or plead no contest and avoid going to trial. Some of the reasons include lower sentencing, lack of evidence to support their case, less costly, and personal desire to confess guilt.  Whatever the reasons are, the practice of plea-bargaining is very common.  Ninety-four percent of felony convictions nationwide are obtained by guilty pleas.  Even convictions for more serious crimes are also commonly obtained by guilty pleas.  The criminal court system is dependant on the practice of plea-bargaining. Under the current structure of the criminal court system it would be impossible to try every case that is filed This raises fundamental concerns to ensure procedures that are necessary to make pleas sufficiently fair and accurate to justify dispensing with the trial process.

Is a Plea Agreement in Your Best Interest?

Unfortunately, while some defendants are making a wise choice to agree to a plea bargain to limit their punishment, many defendants decide to enter plea agreements out of frustration, delays, pressure and lack of faith in the trial system. Therefore, it is the duty of a defense lawyer to make certain that a plea agreement is truly in the best interests of a client and carries out the best wishes of a client.

Guilty Pleas in State Courts

Rule 11 of the Federal Rules of Criminal Procedure defines the basic shape of the guilty plea process in federal courts.  Although most guilty pleas take place in state courts, most states have similar rules to Rule 11.  The purpose of Rule 11 is to establish a predicate for valid pleas.  A guilty plea is valid if it is 1) voluntary 2) intelligent, and 3) has a factual basis.  When a defendant pleads guilty under Rule 11, the defendant gives up certain rights such as the right to a jury trial, the right to be represented by counsel, and any mandatory minimum penalty.  Sentencing is left to the judges discretion.  Furthermore, the defendant gives up the right to appeal or to attack the sentencing.  Guilty pleas are almost never challenged on direct appeals because guilty pleas are consensual.  For the same reason, defendants and their attorneys rarely object to errors in a guilty plea proceeding.  All jurisdictions require that claims or challenges to criminal proceedings be raised in a timely fashion.  If timely objections are not made, the claims are deemed procedurally defaulted and they cannot be raised later.  However, when the defendants object to errors in guilty plea proceedings, they almost always raise their claims on habeas corpus many years later.  Habeas corpus (you may have the body) is a writ requiring the production of the prisoner so that the judge may inquire into the fundamental justice of the detention.  Habeas corpus preserves individual liberty and vindicates the rule of law.  It has certain claims you can raise; one is why the defendant did not raise a certain issue until on appeal.  In this situation, the defendant must show 1) cause as to why the defendant did not raise the issue before the appeal and 2) prejudice the defendant experienced because of failure to raise the certain issue.  If the defendant wins the habeas corpus, a new trial is granted.

Guilty Plea to Avoid Death Penalty

In Brady v. United States, 397 U.S. 742 (1970), Brady sought relief under the habeas provision claiming his guilty plea was involuntarily given.  The petitioner claimed that his guilty plea was coerced by the threat of a death penalty, his counsel exerted impermissible pressure upon him, and his plea was induced by representations with respect to reduction of sentence and clemency.  The Supreme Court held that the petitioners plea was not extracted by any sort of threat or violence, or any improper influence, thus the defendants guilty plea was voluntary and valid.  The petitioner was competently counseled, properly advised, and informed of the plea bargain, and thus the Court found that the petitioner acted voluntarily and made an intelligent choice.  The Court noted that just because there are incentives within the criminal system to induce defendants to participate in plea-bargaining and guilty pleas, such incentives do not function as coercion or threats that result in involuntary pleas.  However, the Court is merely concerned with physical coercion and states that there was no physical harm or mental coercion overbearing the will of the petitioner.  Yet, in reality, it is very possible that an individuals will is overborne by the threat of a death penalty, making the plea involuntary.  An innocent defendant, in fear of the threat of a death penalty, may plea guilty to escape such a risk.

In North Carolina v. Alford, 400 U.S. 25 (1970), the defendant alleged that he pled guilty to second degree murder in order to avoid a possible death penalty although he was innocent of the charges.  The Supreme Court found that the defendant clearly expressed his desire to enter into a guilty plea despite his professed innocence.  The Supreme Court stated that the defendant voluntary pled guilty and the lower court did not coerce or force the defendant to plead guilty.  Rather, the Supreme Court stated that the defendant was not deprived of his free choice to evaluate the situation and determine for himself, whether to go to trial and risk the possibility of a death penalty or waive the trial and plead guilty.

However, in Henderson v. Morgan, 426 U.S. 637 (1976), the defendant pled guilty to a second-degree murder where the trial judge failed to describe the intent term of that crime.  The Supreme Court held that this error denied the defendant his due process rights, regardless of whether the state was able to prove that the killing was intentional, because the defendant did not waive his rights voluntarily.  The failure to inform the defendant of the terms of the crime rendered the defendants plea invalid because he was not informed of all the necessary facts.  Similarly, in United States v. Bushert, 997 F.2d 1434 (11th Cir. 1993), the Court of Appeals found that because the district court failed to specifically question the defendant concerning the waiver of sentence appeal provision, the defendant was not deemed to have knowingly and voluntarily made the waiver, and withdrew the provision from the defendants guilty plea.

Both the prosecution and defense are encouraged to participate in plea-bargaining and avoid going to trial for the interest of the overall justice system. A guilty plea may result in a lighter sentence and avoid costly litigation.  However, at the same time, a defendant waives many important rights when she chooses to plea guilty.  It is strongly encouraged that a defendant contemplating a guilty plea consults an attorney immediately

No Contest Plea

A no contest plea is a plea where the defendant does not admit that he/she committed the crime, but does concede that the government has evidence against her that could result in a guilty verdict. The court treats a no contest plea identically to a guilty plea in terms of finding the defendant guilty of the crime. In some jurisdictions a no contest plea may limit civil exposure to the defendant based on solely on the plea.

Health Care Fraud Through Identity Theft and Impersonation

By Brian Barrido, Attorney at Law and Jay Mykytiuk

Health care fraud is committed when someone intentionally submits, or causes someone else to submit, false or misleading information for use in determining the amount of health care benefits payable.  One of the most common varieties of health care fraud is perpetrated through medical identity theft.  Medical identity theft occurs when someone uses another person’s health insurance card or identification with or without her permission to obtain medical services.  An insured person commits fraud when he lends his health insurance card to another, who then impersonates the insured in order to receive free care.  An uninsured person commits fraud when she impersonates the insured to receive benefits she is not entitled to.  Sometimes the imposter has permission from the insured.  Other times, the imposter has stolen the insureds insurance information and used it without permission.  Each activity is a crime.

Consequences of Health Care Fraud

Health care fraud is not a victimless crime.  Medical identity theft can have dire consequences for the individual whose identity is fraudulently used.  It sometimes results in erroneous entries on that persons current medical records or the creation of brand new, fictitious medical records in the victims name.  For the victim, this may mean that a false medical and financial history that follows them around for years.  Imagine failing a physical required for employment due to a disease in your records that does not belong to you, or receiving a co-pay bill for a surgery that you never underwent.  These are only a sample of the personal consequences of medical identity theft.

Beyond the personal effects, health care fraud, including medical identity theft, also has a negative impact on the healthcare system as a whole.  It is estimated that losses due to fraud add $100 billion to the annual cost of health care in the United States. For most employers, fraud increases the cost of providing benefits to their employees and, therefore, their overall cost of doing business. That translates into higher premiums, taxes, and out-of-pocket expenses as well as reduced benefits and diminished quality of care.

Allowing Others To Use Your Health Care Information Could Lead to Prosecution

Whether you allow someone to use your health care information, or you wrongfully use some elses information, you can be prosecuted for fraud.  Health care providers and law enforcement have begun to aggressively pursue those who commit health care fraud. Health care fraud can be prosecuted both civilly and criminally under a variety of statutes and regulations.  The nations largest healthcare network, Blue Cross/Blue Shield estimates that they pursued more than 20,000 cases of health care fraud last year, with 606 cases referred to law enforcement agencies. Of the referrals, 206 resulted in criminal convictions (see http://www.bcbs.com/antifraud).

Too many people do not realize the cost to individuals and the health care industry, which are incurred through health care fraud. For this reason many people do not believe health care fraud to be a serious crime. Penalties for health care fraud can be severe.  Depending upon which statute an offender is prosecuted under, each count could carry a maximum penalty of 10 years.  Fraud resulting in bodily injury to the insured carries a penalty of up to 20 years.  If authorities or a private insurer wants to investigate you for health care fraud, you should immediately contact an attorney.

Breathtaking – Uncertainty and the Breathalyzer

By Vince Imhoff, Esq. & Dan Rhoads

A group of judges in New Hampshire was served several alcoholic drinks as part of an experiment that was intended to demonstrate the effectiveness of the Breathalyzer. One judge was given so many drinks that he became visibly intoxicated. When the judge blew into the Breathalyzer, the machine registered a score of 0.0. After a few more tries, the Breathalyzer gave the same result. Following the demonstration, at least one police jurisdiction in the state ceased using the Breathalyzer in favor of blood tests. (See Margaret Graham Tebo, New Test for DUI Defense, ABA Journal (Feb. 2005).)

Breathalyzer Less Accurate Than Blood Test

The Breathalyzer is less accurate than a blood test. Whereas a blood test actually measures blood alcohol concentration (BAC), the Breathalyzer merely estimates it. In recognition of this fact, South Dakota relies entirely on blood tests.

What the Breathalyzer attempts to measure is the presence of chemicals found in alcohol. But the machine often measures chemicals with molecular structures similar to those found in alcohol. According to Dr. David Hanson, Over 100 compounds can be found in the human breath at any one time, and 70 to 80 percent of them contain [a] methyl group structure and will be incorrectly detected as ethyl alcohol. (See David Hanson, Ph.D., Breath Analyzer Accuracy, at http://www2.potsdam.edu/hansondj/DrivingIssues/1055505643.html.) As a result, false positives can occur for a plethora of reasons.

Causes of False Positive Breathalyzer Tests

Body chemistry is one factor that can lead to false positives. People with diabetes, acid reflux disease, or some cancers can fail Breathalyzer tests even if their bloodstreams are perfectly free of alcohol. Diabetics, for example, have extraordinarily high levels of acetone, a substance that some breath machines mistake for ethyl alcohol.

Police recognize that regurgitation can render unreliable the results of a Breathalyzer. Thus, most departments require that the arresting officer observe the subject of a breath test for twenty minutes before its administration. Regurgitation includes any instance of fluids or gases that rise through the esophagus.

Breath Test Ruled Inadmissible in Court

In 2004, the Illinois Supreme Court ruled inadmissible the results of a breath test where the defendant presented evidence of gastroesophageal reflux disease (GERD). In People v. Bonutti, 817 N.E.2d 489 (Ill. 2004), the defendant had blown a BAC of 0.174 after being stopped and showing outward signs of intoxication. Defendants motion to suppress the Breathalyzer evidence was granted because the court found that the results could have been compromised by a silent, unobservable episode of reflux.

Non-alcoholic substances that people commonly ingest can register on the Breathalyzer. Smokers are often told to wait after consuming a cigarette because chemicals in the smoke can trick the machine. See, e.g., Ind. Admin. Code, tit. 260, r. 1.1-4-8 (providing that the subject of a Breathalyzer test must not smoke within 20 minutes prior to the time a breath sample is taken.) Some non-intoxicating, over-the-counter medications can do the same thing. Even various types of breads can account for BAC levels up to 0.05.

The Breathalyzer is also susceptible to error caused by environmental factors. If a driver has recently pumped gasoline, the alcohol in the fuel can remain on the drivers hands or clothes and can waft into the machine. Compounds that contain the methyl group structure appear in everyday chemicals, such as those found in paints, paint removers, and cleaners. Even electrical interference from cell phones and police radios can disturb the machine.

Women Face Higher Risk of False Positive Breath Tests

Women tend to be at a higher risk of registering a false positive than men. Some breath analysis machines presume a specified hematocrit, which is the percentage of whole blood that is composed of red blood cells. Men naturally have higher hematocrit values than women, but the machines do not adjust according to the sex of the subject. A person with lower hematocrit might have an artificially high BAC reading. Thus, women as a class are in jeopardy of this kind of error. (Hematocrit values can also fall due to blood loss; so, a person tested after being in an accident can register a false positive, adding insult to injury.)

Breathalyzers as Court Evidence

Portable Breathalyzers, which are utilized at traffic stops, are even less reliable than their stationary counterparts. In most jurisdictions, the results from a portable Breathalyzer machine merely provide probable cause to arrest drivers. These machines are susceptible to inaccuracy for reasons as simple as the administering officers improper calibration or carbon monoxide emissions from passing cars. But states are increasingly allowing those results to be used as evidence at trial.

Traditionally, defending a DUI case consisted of attacking the arresting officers probable cause, the officers training in recognizing intoxication, and the polices chain of custody for physical evidence. But as the state relies increasingly on technology to prove its cases, defense attorneys must stay a step ahead in their understanding of the equipment and its shortcomings.

Likewise, a criminal defendant should not concede the accuracy of a Breathalyzer but should hire an attorney who has the time and energy to ensure that dubious test results do not become evidence at trial.

Occupational Hazard: False Allegations of Child Abuse Against Educators

By Brian Barrido, Esq. and Jay Mykytiuk

A school custodian was accused of sexual abuse by five girls. The charges were later dropped when the girls admitted that they had fabricated the story because the custodian had reported them for vandalizing a restroom. An Assistant Superintendent jumped off a bridge to his death after being accused of abusing a student. He had been cleared of any wrongdoing earlier that day. A social studies teacher was accused of molesting a student during a school field trip. Eleven months later, his name was cleared when his accuser recanted. A nine year-old girl offered to pay each of her friends one dollar if they would accuse her teacher of abuse.

False allegations of child abuse against teachers and other school employees can be economically, emotionally, and financially devastating. It can lead to criminal prosecution and long jail terms. And it is a real phenomenon. One school administrator claims to receive 10-12 false accusations of abuse against teachers every year. Multiplied across the country, this number is staggering and disturbing.

Sexual Abuse Allegations Used Against Teachers

Because crimes against children are so horrific, naturally accusers are taken seriously. What this means for accused teachers, is that they are usually presumed guilty presumption that can be very difficult to overcome. The most common motive of students who falsely accuse their teachers is to punish teachers who either disciplined them or give them poor grades. A false accusation of physical or sexual abuse will usually ensure that the targeted teacher is, at the least suspended or fired, and at worst, brought up on criminal charges. If an investigation is not properly handled, or the accused educator is not adequately represented by legal counsel, they may lose their careers and their freedom.

Some schools are addressing the issue before the problem arises. School handbooks advise teachers not to have any physical contact with students. Others discourage teachers from ever being one-on-one with a student in a classroom. But despite these precautions, educators remain vulnerable to abuse charges due to the nature of their positions.

Consequences of a Child Abuse Conviction

The consequences of a guilty plea or conviction for physical or sexual abuse are potentially disastrous. Besides substantial jail time, the convicted abuser will lose his teaching license. If convicted of sexual abuse, one must register as a sex offender, and have their name and residence publicly posted. The convicted abuser will be barred from certain types of jobs, and will often be forced to undergo psychological treatment. This adds up to a steep price for simply choosing a career in education.

An educator accused of physical or sexual abuse against a child should seek counsel immediately. A competent attorney will investigate your case, gather character witnesses, and argue your case to the District Attorney. Your attorney should secure expert witnesses in the area of child psychology. In general, it is crucial that your attorney prepare a comprehensive legal strategy to combat the false accusations and prove your innocence.

False Child Abuse Allegations in Custody Battles

By Vince Imhoff, Attorney at Law and Jay Mykytiuk

Few experiences are more traumatizing than divorce proceedings.  When children are involved, anger and hurt feelings can lead to poor judgment and dangerous decisions. False child abuse often sexual abuse allegations are sometimes the result. When it comes to child abuse, innocent until proven guilty, can give way to a powerful societal urge to protect children.  Sadly, this fact makes child abuse accusations a very powerful weapon in custody battles.

Child abuse is certainly a serious and pervasive problem.  In most situations, abuse allegations are made responsibly and based on actual abuse.  But in the context of divorce proceedings or custody battles, there is a greater chance that an abuse allegation made by one spouse against another is without merit.  While different studies have produced different results, many experts estimate that between 75 and 80 percent of divorce-related child abuse allegations are completely false.  In most cases, the abuse allegations are made by the woman against her ex-husband.

Why Are Child Abuse Allegations Common in Divorce Cases?

There are a variety of reasons one parent makes a false allegation of child abuse against their ex-spouse.  Sometimes, the allegation is simply based on a misunderstanding caused by the increased sensitivity resulting from the divorce.  Individuals going through a divorce often feel victimized, and their hostility and anger may cause them to think the worst about their former spouses.  For example, following a visit, the parent may react to the childs anxious behavior any physical blemish by immediately concluding that the other parent has physically or sexually abused the child.

Often, however, a spouse makes a false allegation deliberately, either to hurt the other parent or to obtain custody of the child.  The vindictive spouse will coach the child to make allegations against the accused spouse, and then attempt to find a doctor or therapist who will support the false claim.  Mandatory reporting laws, requiring health and educational professionals to report all child abuse claims to child welfare agencies or law enforcement who impose penalties on teachers, doctors, nurses, therapists, and other licensed professionals for not reporting the allegations.  Consequently, proving ones innocence can be an uphill battle.

Consequences of Child Abuse Allegations

The consequences of child abuse allegations can be devastating.  While child abuse and sexual abuse allegations are usually difficult to prove, the mere accusation guarantees a protracted and difficult legal battle.  This battle often concludes with the loss of custody of the child, and imprisonment of the accused.  Your best chance to successfully defend a false child abuse allegation is to retain qualified legal counsel.  Even when you know that you have done nothing wrong, you must take your defense seriously.  Because the consequences of a child abuse conviction are so costly, you will need an attorney skilled in representing people in this type of case.

State Court Misdemeanors and Felonies

By: Victor Comstock, Attorney at Law and Jay Mykytiuk

The vast majority of defendants are prosecuted in State courts. All states (excluding the District of Columbia) have their own criminal code, and defendants who violate this code are tried in the state in which the violation occurs.

Both misdemeanor and felony offenses may be tried in State court. If you have been arrested or are under investigation by a local police department, you will most likely be prosecuted in a State court. State court crimes are violations of State and local statutes or ordinances. They are prosecuted in either Municipal or Superior Courts in the county in which the charges are filed, by either City Attorneys or District Attorneys.

Misdemeanors

Misdemeanors are generally considered lesser criminal acts. They are usually punishable by a maximum fine of $1000 and a county jail term of one year or less. Misdemeanor convictions may also result in loss of privileges, such as professional licenses, public offices, or public employment. Examples of misdemeanor violations include:

• Petty theft
• Prostitution
• Vandalism
• Drunk driving
• Simple assault
• Trespass

Felonies

Felony crimes are more serious, and are generally punishable by a state prison term or, in certain instances and States, death. Typically, felony convictions also result in a forfeiture of certain civil rights, including the right to vote. Examples of felony crimes include:

• Murder
• Burglary
• Possession of dangerous drugs for sale
• Robbery
• Rape
• Assault and Battery

The process of bringing a defendant to trial in State court varies from state to state, but the general steps in each state include:

• Investigation and Arrest
• Booking
• Preliminary hearing
• Indictment or Information
• Arraignment
• Adjudication
• Sentencing
• Appeal

For a more detailed explanation of the criminal process, see the page on Criminal Case Process.

Criminal laws, penalties, and procedure vary from state to state, and it is important to obtain an attorney who is knowledgeable of the law in the state where you will be tried.

If you are arrested for violation of a State law, a criminal defense attorney may:

• Advise you of your rights and of what lies ahead in the criminal process
• Contact the police and/or prosecution to negotiate dropping charges or filing a lesser charge
• Arrange bail
• Make a motion for your release
• Make a motion to suppress illegally obtained evidence
• Examine prosecution witnesses at your preliminary hearing
• If necessary, represent you at trial

Imhoff & Associates, P.C. Criminal Defense Attorneys represents clients nationwide in State Courts. You can assist in your defense by:

• Gathering documentation of your good character (reference letters, employment history, community service, etc.)
• Exercising your right to remain silent
• Retaining qualified counsel as soon as possible
• Keeping a diary of all significant events and potential witnesses (this information will help your attorney prepare the best possible defense)

DRUGS: The Differences Between Sales, Manufacturing, Trafficking and Distribution of Drugs

By Mitch Nelson, Attorney at Law and Natalie Banach

$321 Billion. —That is the cursory estimate of the value of the international drug trade, according to the United Nations 2005 World Drug Report. What’s more, about 200 million people (5 percent of the population ages 15-64) are thought to have consumed illegal drugs at least once in the last year. It is undeniable that the global drug trade is large, widespread and deadly.

The high demand for illegal drugs and paraphernalia has led to the emergence of complex black markets all over the world. As with legal commerce, the illegal drug trade is multi-layered with manufacturers, processors, distributors, wholesalers and retailers all caught up in the mix. These international networks also deal in smuggling and trafficking.

Severity of Drug Offenses

In addition to being widespread and complex, however, the drug trade is also highly fragmented. It is the particular nature of production and manufacture of the different drugs that accounts for this. One of the most popular illegal substances, cannabis, is usually grown and sold locally. On the other hand, substances such as cocaine and heroin usually require either large swaths of land to grow or elaborate labs to manufacture. For this reason, large organized drug cartels are often behind the distribution of these drugs. The different offenses associated with the drug trade are as far-reaching as the trade itself. A drug offense can refer to anything from the possession, to the use, to the sale or to the furnishing of any drug or intoxicating substance that is prohibited by law. Most of these offenses are felonies and the penalties can be severe. Some of the factors that determine the severity of a sentence include the quantity of the drug, its classification and the purpose of the possession (for personal use or sale). In addition, factors such as weapons possession or having large amounts of money on one’s body, can also affect the ultimate punishment for a drug offense. In the United States, the foundation for the government’s fight against the abuse of drugs is the Controlled Substance Act. This law was put into affect in 1970 and is a consolidation of the various laws regulating the manufacture and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and chemicals used in the illegal production of controlled substances. The following article will outline the differences between the sale, manufacturing, trafficking and distribution of drugs.

Drug Manufacturing

The manufacture of an illicit drug or substance is defined as the either the preparation or completed acts to produce, propagate, compound or process that drug or substance. According to the Controlled Substances Act, this process can be done directly, indirectly, by the extraction of substances of natural origin, or by means of chemical synthesis. In addition, the term manufacturer refers to the person who manufactures the drug or substance. The manufacture of illegal drugs can be broken down into two classes: those extracted from plants and those synthesized through chemical processes. Drugs such as cannabis and cocaine, where farming is needed for mass production, fall under the first class. In the second class such as methamphetamines, the chemical processes associated with manufacture are more important. In general, penalties for the manufacture of illegal drugs or substances can include imprisonment, anything from a term of years to life, and substantial fines. The severity of the penalties can depend on the amount being manufactured, prior convictions and the type of drug being manufactured.

Trafficking of Drugs

The term drug trafficking refers to the illegal commercial activities associated with the participation in an illegal drug network. Often thought of as smuggling, drug traffickers seek to transfer illegal drugs and substances across jurisdictions, whether it is state or national borders. According to the U.S. Customs Services, each year about 60 million people enter the country via more than 675,000 commercial and private flights. In addition, another 6 million people come by sea, and 370 million by land. More than 90,000 merchant and passenger ships dock at U.S. ports. Amidst all this travel and commercial activity, drug traffickers conceal cocaine, heroin, marijuana and methamphetamines for the subsequent distribution of the drugs in U.S. neighborhoods. Penalties for the trafficking of illegal drugs and substances can include substantial fines in the millions of dollars, as well as imprisonment. Again, the severity of the penalties can depend upon whether or not death or serious injury occurs (in the case of “mules”), the type of drugs being smuggled, the amount and prior convictions.

Drug Distribution

The term distribution means to deliver (other than by administering or dispensing) an illicit drug or substance. In addition, delivery includes both the actual or attempted transfer of a controlled substance. The difference between the sale of an illegal drug and the distribution of an illegal substance is that with distribution the substance does not necessarily have to be sold to the user. In regards to the illegal drug trade, there are two primary means of distribution: a hierarchy and a hub-and-spoke layout. A hierarchal arrangement refers to a system in which the manufacturer uses their own men to smuggle, distribute and store the narcotics. A hub-and-spoke layout, conversely, uses local gangs and crime organizations to distribute and sell the drugs. At the center of the hub-and-spoke layout may be cartel, which dictates how the product of the manufacturers gets to the distributors. In general, penalties for the distribution of illegal drugs are severe and can include substantial fines and even life in prison with no parole. However, the penalty can depend upon prior convictions, the amount being distributed, the type of drug and the extent of the network.

Sale of Drugs

The legal definition of a sale entails an agreement where one party, the seller, gives full possession of something, in exchange for a certain amount of money, to the other party, the buyer, who agrees on that price. In terms of a drug offense, the “thing” being handed over will be the controlled or intoxicating substance. For a sale to be proven four elements need to be met. (1) The presence of a buyer and a seller, (2) the existence of the controlled substance to be sold, (3) an agreed upon price, (4) the consent of both parties and the performance of certain acts necessary to complete the transaction, such as the actual handing over of the object. In regards to the illegal drug network, the sale is often the ultimate transfer. It is the sale that transfers the illicit drug into the hands of the user.

Federal Crimes: Criminal Court Jurisdiction

By Brian Barrido, Attorney at Law and Jay Mykytiuk

Most criminal offenses are charged under state laws, investigated by local and state law enforcement agencies, and tried in state courts. However, a crime is a federal offense if it is made illegal by statute or if it occurs on U.S. federal property. These crimes are investigated by the federal agencies such as the FBI, and prosecuted in federal courts.

More Crimes Considered Federal Offenses

Historically, almost all crimes were handled by the states. Only a small number of crimes involving offenses against the country, such as treason or bribery of federal officials, were prosecuted under federal law. But in recent years Congress has passed numerous statutes that mandate long federal prison terms for crimes ranging from drug dealing to kidnapping. There are now over 100 categories of offenses that are considered to be federal crimes. This includes over 4000 individual offenses. Examples include:

• Counterfeiting
• Drug Manufacturing
• Drug Possession/Sales
• Drug Trafficking
• Gun Law Violations
• Health Care Fraud
• Immigration Law Violations
• Kidnapping
• Mail Fraud
• Money Laundering
• RICO Crimes
• Securities Fraud
• Social Security Fraud
• Tax Crimes
• Terrorism
• Weapons Charges
• Wire fraud

Crimes Committed on Federal Property

In addition to the long list of specific federal crimes, any crime that is committed on federal property is subject to federal prosecution and comes under the jurisdiction of the federal court system. This includes crimes committed in government buildings, airports, national wildlife refuges, national forests, military installations, and Veteran Affairs medical centers. For example, an assault committed in a post office will be prosecuted under federal law, even though there is no federal assault law.

Federal Sentencing Guidelines Harsher than State

Whether a crime is prosecuted under state or federal law is important, mostly due to differences in sentencing guidelines. Federal sentencing is controlled by the United States Code and the Federal Sentencing Guidelines. Under the Guidelines, a federal judge is required to sentence according to a formula, which consists of a combination of the offense and the defendant’s criminal history. Judges must impose pre-determined minimum mandatory sentences and they have virtually no authority to deviate from sentencing guidelines even if they feel that the sentence is excessive.

Partly due to the federal sentencing guidelines, federal sentences are often considerably harsher than the equivalent state sentence. For instance, a United States Sentencing Commission study found that drug offenders prosecuted in federal court served approximately 84 months in prison, while those prosecuted in state courts usually serve an average of 20 months.

Because navigating federal law can be challenging, it is important that you are represented by an attorney who is familiar with federal court procedures. An attorney who can navigate the complicated federal sentencing guidelines may be able to obtain a reduced sentence or even dismissal.

The Obstacle in Empanelling an Impartial Jury in a High-Profile Case

By Tony Partipilo, Attorney at Law and Helen O. Kim

Sixth Amendment: Defendant Rights Jury Trial

In Duncan v. Louisiana, 391 U.S. 145 (1968), the Supreme Court recognized that the Sixth Amendment right to a jury trial in criminal cases is fundamental to the American scheme of justice. The purpose of a jury trial is to (1) prevent oppression by the government, (2) provide a safeguard against a corrupt or overzealous prosecutor and/or a biased or compliant judge, (3) give defendants the opportunity to be tried by his or her peers, and (4) reflect reluctance to entrust the liberty and life of an individual to one judge. See id. Unfortunately, there are also drawbacks to being tried by a jury. The role of a jury is to remain impartial and apply the facts of a given case to the law. However, a jury is often composed of individuals with various backgrounds and experiences who have pre-formed judgments and opinions about an issue even before entering the courtroom. It is difficult for individuals to abandon their life-long belief systems in the courtroom simply because they are instructed by a judge to remain neutral. Thus, jury selection is an important screening process to ensure that a cross-section of the community is represented in a jury to provide the defendant with a fair trial by his peers.

Jury Selection

Jury selection is comprised of several stages. First, a large master list of prospective jurors is compiled. This list is usually derived from a combination of public and governmental sources, such as telephone books, DMV records, and voter registration lists. The master list is narrowed down to a smaller list, or venire, through random selection. These prospective jurors are asked to supply basic information about themselves, and may be disqualified or exempted based on the information. Prospective jurors may be disqualified based on lack of citizenship, underage status, and felony convictions while prospective jurors may be excused due to personal hardships, such as financial and physical infirmities. After the venire has been finalized, the next stage of jury selection consists of voir dire.

Voir Dire: Voir dire provides judges, prosecutors, and defense attorneys with information that allows for the exclusion of prospective jurors based upon bias. During voir dire, the trial judge, prosecutor, and defense attorney ask prospective jurors questions in person. Depending on the jurisdiction, voir dire may be conducted by only the prosecutor and the defense attorney, only the trial judge, or all three. During voir dire, each party may introduce prospective jurors with the issues that pertain to a particular case in order to determine their personal opinions. The prosecutor and the defense attorney may challenge for cause against prospective jurors they believe to be biased. The trial judge then grants or denies the challenges based upon the information obtained from the prospective juror. The prosecution and the defense are also granted a certain number of peremptory challenges, which they can use to dismiss potential jurors without any explanation. Once both parties have exhausted their challenges, a jury is sworn in.

High-Profile Cases

In high-profile cases, it is difficult to find a potential juror who has not been exposed to the case at hand and has not already formed an opinion about the case or the parties involved. In such cases, extensive voir dire is conducted to choose an impartial jury. In ABC, Inc. v. Stewart, 360 F.3d 90 (2nd Cir. 2004), there was a two-part voir dire process because of the difficulty in impaneling an unbiased jury due to the high level of media attention and publicity. In Stewart, the district court issued an Order excluding the media from attending the voir dire process and prohibiting the media from publishing or otherwise disclosing the identity of prospective jurors. Instead, the Order granted public access to the transcripts of each days voir dire, with the names of prospective jurors and their personal information omitted. The rationale for the media exclusion during the voir dire process was to encourage juror candor since there was a possibility that prospective jurors would not be entirely upfront in the presence of the press and media. Id.

In Stewart, ABC, Inc. and other news organizations argued that voir dire transcripts were insufficient substitutes for personal attendance since visual and audible emotions and gestures were lost in transcripts. Thus they argued that the Order was an infringement on their First Amendment right to access criminal proceedings since criminal trials are open to the press and the general public. Open criminal trials ensure safeguards for the defendant by providing public scrutiny of the criminal process. The Supreme Court has recognized that the guarantee of open public proceedings in criminal trials extends to the voir dire process. However, a proceeding will be closed if there is finding of (1) substantial probability that public will prejudice the defendants right to a fair trial, and (2) there are no reasonable alternatives to protect the defendants right to a fair trial. Id., at 98.

The court in Stewart concluded that an open voir dire proceeding would not prejudice the defendant because (1) members of the media had not conducted themselves improperly in covering the case; (2) prospective jurors were likely to have preconceptions about the defendants in any high-profile criminal case with or without the presence of the media; (3) the defendants were to be present in the voir dire process and if prospective jurors did not have problems being candid in the presence of the actual defendants, then they would not have problems revealing their biases in the presence of reporters as well; and (4) there werent any controversial issue to be probed in voir dire that might impair the candor of prospective jurors. Id., at 101.

On the other hand, in United States v. King, 140 F.3d 76 (2d Cir. 1998), the court decided differently in the issue of an open voir dire process. The Court issued an Order providing the press with limited access to the voir dire proceeding (the press was denied access to transcripts of individual voir dire questioning of prospective jurors until the jury was impaneled as well as the transcripts of voir dire from the first trial, which resulted in a mistrial). Id., at 78. In King, the Court reasoned that juror candor regarding the attitude toward the defendant was of particular importance because of the delicate issue area of possible racial bias. Id., at 83. While a prospective juror in Stewart would have no reason to shy away from showing bias and distaste against insider trading, a prospective juror in King would have reason to hide personal racial biases in the presence of media during voir dire, making the entire process ineffective and depriving the defendant of a fair trial by an impartial jury.

Safeguards

There are few remedies against prejudicial pretrial publicity. See Studebaker & Penrod, Pretrial Publicity: the Media the Law, and Common Sense, 3 Psychol. Pub. Poly. & L. 428 (1997.) First, a court may grant a continuance of a case in the hope of dissipating publicity over time. However, with a continuance, there is a risk of losing evidence, especially evidence pertaining to the memory of an eyewitness. Another option is to conduct an extensive voir dire process to weed out prospective jurors who show great influence from publicity. However, having an open voir dire proceeding may influence potential jurors to be indirect and insincere in their answers. Other possibilities include a change of venue (move the trial to another location) or a change of venire (bring in jurors from another jurisdiction), but a majority of the American public is exposed to high-profile cases such as the Stewart and King cases, regardless of where the alleged crime actually took place.

Conclusion: Sixth Amendment Right Threatened

In todays world always around-the clock news coverage and advancements in the media, the American public is within arms reach to any type of news, anywhere. Such developments in the media can pose a threat to a defendants Sixth Amendment right to a fair trial by influencing the jury pool with premature information.

Bail Issues: Can You Bail Me Out of Jail?

By Colin McKibbin, Attorney at Law and Helen O. Kim

Timeline of an Arrest

• An individual is arrested and charged with an offense.
• The defendant makes an initial appearance where either the defendant is released on her own recognizance or bail is set.
• Defendant either pays bail with a bond and is released pending trial or remains detained until trial.
• If the Defendant appears for trial. Then the bond money is returned to the defendant or his surety.
• If the Defendant fails to appear for trial. Then court keeps the bond money.

The Initial Appearance in Front of a Judicial Officer

After an individual is arrested and charged with a criminal offense, the defendant must make an initial appearance in front of a judicial officer. At this time, the judicial officer informs the defendant of the charges against her and of her rights, and either releases her on her own recognizance, sets bail, or other conditions of release pending trial. Bail, also known as pretrial release, prevents imprisonment of a defendant pending trial. A judicial officers decision to release the defendant before trial is based on the risk of the defendants nonappearance and the likelihood that the defendant will flee once she is released.

A defendant may be released on personal recognizance (the defendants pledge or promise to appear at all future court dates) or upon execution of a bond. 18 U.S.C.S. 3142(b). A bond is a written and sealed obligation of payment by the defendant or his surety to insure the defendants appearance in court. A bail bond is the most common form of pretrial release where the defendant avoids imprisonment by promising to pay a prescribed amount if he or she fails to appear in court.

The Bail Reform Act provides that a person may be released pending trial upon execution of a bail bond in an amount deemed reasonably necessary to assure the individuals appearance. In most cases, the bond amount depends on the nature of the defendants charge. The rationale for this practice is that the more serious the charge, the more reluctant the defendant will be to appear in court since the consequences are greater. In very serious crimes or cases where the defendant cannot be trusted to appear in court, the judicial officer intentionally sets the bond amount high so that the defendant will not be able to meet it and the defendant will be detained in jail until her trial date.

Reduction of Bail

In United States v. Lemos, 876 F. Supp. 58 (D.N.J. 1995), the defendant was charged with conspiracy to distribute cocaine. The magistrate set the defendants bail at $25,000 and the defendant moved for a reduction of the bail to $2,500 because he was not able to raise $25,000. The defendant stated that the Bail Reform Act of 1984 entitled him to bail at an amount he could afford. He argued that pursuant to 18 U.S.C.S. 3142(c)(2), [t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person. However, the court stated that under Section 3142(c) a judge may set the bail high if the judge believes that a high bail is the only means of assuring the defendants appearance. If the defendant is unable to post bail to insure his appearance, then the only assurance for the defendants appearance is detainment.

On the other hand, in United States v. Leisure, 710 F.2d 422 (8th Cir. 1983), the court granted the defendants motion for reduction of bail because a high bail was not the only means of assuring the defendants appearance in court. The defendants were charged with participating in racketeering activities that carried a maximum penalty of twenty years of imprisonment and a $25,000 fine. Their bail was set at $1 million and $2 million. The court reduced the defendants bail after considering the nature and extent of the circumstance. The court determined that the defendants would appear for trial after their release because they had resided in the city for a long time, their immediate families also resided in the city, they owned real property in the city, they were employed in the city, and they had a good track record of appearing in court for other criminal proceedings. Id.

Surety: Defendant’s Appearance in Court

In many instances, a defendant is released pending trial on a bond secured by property belonging to the defendants family members. The family member(s) act as a surety and are responsible for the defendants appearance in court. Pursuant to Federal Rules of Criminal Procedure 46(e)(1), once a defendant appears for trial, [t]he court must exonerate the surety and release any bail. The court must exonerate a surety who deposits cash in the amount of the bond or timely surrenders the defendant into custody. However, if the defendant flees upon release, the surety assumes the bond amount. In United States v. Nguyen, 279 F.3d 1112 (9th Cir. 2002), the defendant was convicted of loan fraud and sentenced to a thirty-month prison term. The district court increased his bond from $50,000 to $100,000 and released him pending appeal. The defendants sister and brother-in-law acted as the defendants sureties and secured the bail bond with their equity in residential properties. The defendant failed to appear in court due to various medical problems but the court stated that the defendants medical problems were not exigent circumstances and did not prevent him from appearing in court. The defendant was arrested and the district court entered judgment against the sureties for the entire bond amount of $100,000. The Court of Appeals affirmed the district courts decision and stated that as sureties, the defendants relatives had an obligation to assure the defendants appearance and to learn whether he was in violation of the bond requirement. The sureties were aware of the consequences when they entered the bond agreement and they needed to accept the cost. Id., at 1118.

In Bridges v. United States, 588 F.2d 911 (4th Cir. 1978), defendants were charged and convicted of violating narcotics law. Many of the defendants had secured money for the cash bond from their relatives and friends. The defendants satisfied the terms of the bond by appearing at trial and the defendants sureties sought a return of the bond money. Id., at 912. The controversy arose when the government moved to secure the bond money in a trust and use it to pay the defendants fines associated with their crime instead of returning it to the defendants relatives and friends. The court stated that such practice was allowed if the bond money belonged to the actual defendants and not their sureties. The court stated that there is a presumption that the money deposited by each defendant [as bail] was his own where the names of third party claimants to the money did not appear of record. Id. Thus the sureties needed to prove that they were entitled to a refund of the bond money because it belonged to them and not the defendants although their names were not on record.

Conclusion: Complications in Bail Setting

As the above cases indicate, bail setting may create complications to an already distraught defendant who is charged with an offense. A defendant should contact a defense attorney to represent the defendant in the initial appearance proceeding and bail setting hearing to avoid imprisonment before trial. Individuals who act as sureties to a defendant should also contact an attorney to discuss their responsibilities and possible consequences that may arise from their agreement.