Los Angeles Criminal Defense Attorney

Archive for the ‘Federal Crimes’ Category

Robel Phillipos False Statement Charge Could Have Been Avoided

Wednesday, May 1st, 2013

By now you probably heard that three more people were charged in connection with the Boston Marathon bombing.  As Huffington Post reports:

Federal prosecutors allege that Dias Kadyrbayev, 19, and Azamat Tazbayakov, 19, tried to conceal and destroy a laptop computer and backpack full of fireworks belonging to Tsarnaev, a friend from the University of Massachusetts Dartmouth, where all three were students at one time. They were charged with conspiracy to obstruct justice by the U.S. Attorney’s office in Massachusetts.

A third man, Robel Phillipos, 19, was accused of lying to law enforcement officials, who questioned him about the bombing.

According the federal complaint filed against Phillipos, he initially told investigators that he never went to alleged bomber Dzokhar Tsarnaev’s dorm room after the bombings.  He later told federal agents that he lied to them earlier and that he actually had gone to Tsarnaev’s dorm room. 

So, you may be thinking what’s the big deal?  This is a 19 year old kid who was scared, he was friends with Tsarnaev, but wasn’t involved in the planning of the bombing, didn’t know about Tsarnaev’s involvement until after the photos were released, and when the FBI started to question him about whether or not he had contact with Tsarnaev after the bombing, he got scared and lied.  After some more questioning, he told the truth.

I agree with you. Unfortunately, that’s not the way the government or the law sees it.  Under 18 USC 1001(a)(2) , Phillipos is accused of making a “materially false, fictitious, or fraudulent statement or representation” to the federal agents during questioning. It does not matter if he was under arrest or whether or not his Miranda rights were invoked, the government believes he lied.  He’s facing a maximum sentence of 8 years in federal prison.  Usually the maximum penalty for this offense is 5 years in federal prison, but because this involves a terrorism investigation, the maximum imprisonment is increased to 8 years.

What is so sad about this is that this all could have been avoidedThe feds didn’t charge Phillipos with any other crime other than lying to the FBI. That means if he had an experienced federal investigation defense attorney representing him BEFORE he talked to the FBI, all of this could have been avoided.

It’s likely that the FBI initially believed that Phillipos was involved in the destruction of the evidence, which he wasn’t  but if he wanted to give an exculpatory statement, his lawyer very well could have advised his client not to lie or possibly negotiated a limited immunity agreement with the federal prosecutor on the case.  Of course, this is easier said than done in a case as serious and high-profile as the Boston bombing case.  The federal government wants as much leverage as possible over anyone they believe to be involved with the attack, but a scared young man like Phillipos didn’t stand a chance on his own when faced with highly trained and highly skilled FBI agents in this case.

Moral of the story:  Even if you are 100% innocent, never talk to federal investigators without talking to an attorney first.

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Notre Dame Football Icon “Rudy” Caught Up In Federal Money Laundering Scheme

Wednesday, August 8th, 2012

Money laundering is one of the least understood federal crimes.  That ignorance can come with a heavy price.  As a criminal defense lawyer in Los Angeles, I know that it can be shockingly easy to violate federal money laundering laws.

A recent case out of the federal court in Santa Anashows how money laundering prosecutions unfold.

The primary actor in this saga is Chad Peter Smanjak from Long Beach, California.  He pled guilty to securities fraud charges involving the shares of a sport and nutrition company headed by Daniel E. Ruettiger.  If that name doesn’t ring a bell, you may have heard of Ruettinger under a different name—Rudy.

Ruettiger was the pint-size player who won the hearts of [Notre Dame] Fighting Irish fans in the 1970s by walking on to the then-dominant football team.  His story inspired the 1993 film “Rudy.”

Ruettiger served as the CEO of Rudy Nutrition, which prosecutors said “purported to sell health-conscious beverages as an alternative to high-sugar soda and sports drinks.”

But the venture attracted the attention of the Securities and Exchange Commission, and in 2008, the agency revoked the registration of each class of registered securities of Rudy Nutrition for failure to make required periodic filings with the commission.

In December 2011, the agency filed a complaint against Ruettiger and 12 others based upon the Rudy Nutrition scheme.

That same month, Ruettiger agreed to pay federal regulators $382,866 to settle claims that he and 12 others crafted the stock scheme related to the now-defunct sports drink company. He did not admit or deny the allegations.

Smanjak pled guilty to using Rudy’s name to drive up the price of the stock and then dump the stock on the market—at a substantial profit.  This maneuver, which is often called a “pump and dump,” is reported to have generated 5 million dollars in profits.

So what do you do with that kind of money? You can’t just put in a mattress, and it’s tempting to move that money, or at least part of it, so it will be harder to trace back to the pump and dump scheme.

That’s where money laundering comes into play.

In 1986, Congress passed the Money Laundering Control Act, which specifically makes it a crime to move money with the intent of hiding the results of a broad range of criminal activities.  Under 18 U.S.C. Section 1856, the key element of money laundering is making a transaction with the intent to conceal the source, ownership, location, or control of funds related to criminal activity.

Although some money related crimes require the money to pass through a financial institution such as a bank before it can be money laundering, Section 1856 does not.  You can violate Section 1856 just by handing money to someone with the intent to conceal its source.  Moreover, under Section 1856 there is no minimum dollar threshold.  So long as someone is found to have committed specific underlying crimes, any amount of money transferred with an intent to conceal can be prosecuted as money laundering.

In the case of Mr. Smanjak, prosecutors focused on the federal securities crime.  Money laundering was an additional charge.  Specifically, Smanjak was charged with laundering $1 million of the $5 million in profits generated by the pump and dump scheme.

This is a fairly typical way for federal prosecutors to use money laundering charges.  They act as an additional penalty for someone who is already facing other charges.  These penalties can, however, be severe.  People convicted of violating federal money laundering statutes face both hefty fines and lengthy prison sentences.  Under Section 1856, the monetary fine can be up to twice the amount of money that was laundered and the prison sentence can be as much as 20 years.

Money laundering may not sound like a very serious or dangerous crime.  But with these kinds of potential penalties, make no mistake.  People facing federal money laundering charges need a criminal defense attorney who knows how such cases are handled in the specific federal court in which their case will be prosecuted.

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How Federal Marijuana Prosecutions Are Different Than California Cases

Monday, July 30th, 2012

A recent marijuana seizure off the coast of Southern California is a good example of how federal marijuana cases differ from marijuana prosecutions in California courts.  Most notably, the amount of marijuana seized by the Coast Guard was more than four tons.

Crew members on a U.S. Coast Guard cutter on Wednesday seized 8,500 pounds of marijuana worth an estimated $7.7 million.

The pot was confiscated from a Mexican “panga” boat about 160 miles west of Los Angeles by crew members of the San Francisco-based cutter Aspen, the Coast Guard said.  The drug was packaged in more than 340 bales.

You almost never see these kinds of quantities involved in state court marijuana cases in Los Angeles County Superior Court.  And this is no accident.  Federal prosecutors and federal criminal law generally focuses on big fish.  Rather than go after street-level distributors, the DEA, FBI, Coast Guard and other law enforcement agencies prefer to go after the leaders of large-scale drug conspiracies.

The Federal Sentencing Guidelines also provide extremely long sentences for a wide range of drug-related charges.  Moreover, additional penalties are imposed on people who are perceived to be leaders.  Here, for example, everyone arrested on the boast is facing a ten-year minimum sentence, plus huge enhancements for the quantity of marijuana seized on the boat.  For example, a first-time offender on the boat who was not the captain is facing up to an additional 151-188 months in prison.  The captain of the vessel as well as anyone who is charged with having greater involvement is facing even longer prison sentences.

And unlike sentences given out in some states, federal sentences cannot be reduced greatly for good behavior in prison. Generally, someone who is sentenced to 20 years in federal prison will serve at least 17 years of actual jail time.  Thus, in a case involving this much marijuana, everyone charged is facing decades in prison.

Even lawyers sometimes underestimate just how different federal court is when it comes to criminal law.  The law is different, as are prosecutors, judges, and juries.  Federal law operates by its own set of rules, which why it is critical to work with a criminal defense lawyer who is experienced in federal law and federal courts.

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Is Heroin More Dangerous Than Marijuana?

Saturday, June 23rd, 2012

This is one of the questions that Drug Enforcement Agency Administrator Michele Leonhart refused to answer directly when she testified before Congress this week

This is hardly a difficult question, especially for anyone who knows anything about how drugs are regulated in the United States.  Ms. Leonhart has received a tremendous amount of criticism for dancing around this question while under oath.  Thousands of people have commented online, pointing out what pretty much everyone already knows: In terms of its addictive properties, physiological effects, and overall impact on human health, heroin is much more dangerous than marijuana.

It is easy to ridicule Ms. Leonhart’s testimony as ignorant and misguided. Many people have done so.  This criticism, however, fails to recognize an important connection between her words and the DEA’s actions with respect to marijuana.

As a criminal defense lawyer in Los Angeles, I come across lots of otherwise well-informed people who don’t fully grasp that in many respects the DEA actually treats marijuana as if it was a much more dangerous drug.  Her testimony wasn’t just words.  We are all aware of situations where, for political reasons, elected and appointed public officials say things they know aren’t true.  You might be tempted to conclude that the head of the DEA had some political reason for not providing the right answer to an easy question.

Here, however, her testimony genuinely reflects DEA policy that marijuana is dangerous.  This attitude helps explain why DEA agents have raided many marijuana dispensary in Los Angeles. Ms. Leonhart’s position also squares with the stepped-up enforcement against marijuana dispensaries and landlords who lease commercial space to dispensaries.   Federal law enforcement agents are increasingly threatening everyone with seizure and forfeiture actions, money laundering charges, etc.

Factually and scientifically, equating the dangers of heroin and marijuana is absurd.  Unfortunately, it is also consistent with the DEA’s recent actions.

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Getting Your Gun Rights Back After A Felony

Wednesday, May 30th, 2012

As a Los Angeles criminal defense lawyer, I know that federal law makes it very difficult for a convicted felon to possess or use a fireman.

That’s what former Congressman Randy “Duke” Cunningham found out the hard way.

Mr. Cunningham is not a sympathetic figure.  He was elected to Congress 8 times.  For some, that by itself is reason not to like him.  But what really sets Mr. Cunningham apart is that in 2006 he was convicted in federal court of accepting $2.4 million in bribes and evading more than $ 1 million in taxes.  For his actions, he received an eight year sentence, which he has been serving in federal prison in Arizona.  It is hard to overstate the extent to which Mr. Cunningham ruined his reputation.  One book that chronicled his demise refers to him as “History’s Most Corrupt Congressman.”

Mr. Cunningham recently asked the judge that sentenced him to restore his right to carry and use a gun. He wants to enter shooting contests and hunt after he is released from prison.

In a letter to District Judge Larry Burns, Cunningham said that he will be 71 when he’s released from prison in December to a halfway house in Little Rock, Ark., and that he has cancer. As a convicted felon, he is barred from possessing firearms.

“I flew aircraft that could disintegrate your building with a half-second burst and now can’t carry a .22-caliber,” wrote Cunningham, a decorated Navy pilot in the Vietnam war. “Pls help me your honor.  I don’t have much left but this little thing is a big thing to me.”

There is every reason to believe that Mr. Cunningham is not likely to use a gun to commit a crime.  I take him at his word when he says he will live quietly in Arkansas with his 99 year-old mother.

But that is not how federal law treats convicted felons who want to get their gun rights back.  Judge Burns responded to Cunningham’s letter by noting that he lacks authority to restore his gun rights, even though the United Supreme Court has recognized that the Second Amendment confers a personal right to bear arms.

I haven’t seen the text of Judge Burns’ letter, but his interpretation of federal law appears to be sound.  Specifically, 18 USC 922 (g)(1) makes it pretty clear that if you are convicted of a federal felony, no guns for you.

18 U.S.C. § 922(g) prohibits specified categories of persons from shipping, transporting, or receiving any firearm or ammunition.

18 U.S.C. § 922(g) states:

It shall be unlawful for any person–

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

Courts have interpreted this language to mean that you can be denied the right to have a gun even if you served less than a year in federal prison.  Your gun rights will be denied if you were convicted of a felony that carries a maximum sentence of a year or more, even if you actually served less than a year.  Given that a vast array of federal crimes are subject to prison sentences that exceed one year, in practice, a majority of people who are convicted of federal felonies are permanently deprived of their gun rights.

My guess is that the many people aren’t troubled by this deprivation of a constitutional right.  But they should be.  Many felonies, such as those that Mr. Cunningham committed, did not involve violence or even the threat of violence.  So why should someone who serves his or her time in prison forfeit their gun rights forever?

Still unconvinced?

Would your opinion change if the constitutional right in question was not the right to carry a gun but the right to vote?

The unfortunate fact is that many thousands of people have lost their right to vote because they were once convicted of a felony.

That is too high a penalty.  Mr. Cunningham may have set a new standard for political corruption, but he and other felons who have served their time should not be permanently deprived of their constitutional rights.

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