Los Angeles Criminal Defense Attorney

Posts Tagged ‘Los Angeles Criminal Lawyer’

Proposition 36 Gives Inmates Serving Life In Prison A Chance At Reducing Their Sentence

Thursday, November 8th, 2012

On Tuesday November 6, 2012, almost 70% of California voters supported Proposition 36, which changes how California administers it’s three strikes law.  Under that law, a person convicted of three felonies is sentenced to life in prison.  Proposition 36 changes that process with the respect to the third strike.  Specifically, California law now requires the third strike to be a serious or violent felony in order to trigger the life sentence.

The most immediate impact of the new law is to give an estimated 2,800 inmates who are serving a life sentence a chance to petition a judge to have their sentence reduced.  The right to seek a reduced sentence is limited to those inmates whose third strike was not a serious or violent felony.  In other words, if you or someone you know is serving a life sentence under the old version of the three strikes law, and their third conviction was NOT for a violent or serious felony, they have a right to ask a judge to reduce their sentence.  The technical name of the request that is filed with the court is a “petition for recall of sentence.”

Proposition 36 includes an important deadline.  For inmates who are currently serving life sentences because of the old version of the three strikes law, the petition to “recall a sentence” must be filed on or before November 7, 2014. That’s two years from the date Proposition 36 went into effect.

What’s A Serious or Violent Felony?

California law includes two somewhat overlapping lists of felonies.  Section 1192.7 of the Penal Code lists 42 crimes that are defined to be “Serious Felonies.”  Section 667.5 of the Penal Code includes 23 crimes that are defined to be” Violent Felonies.”

For the purposes of Proposition 36, an inmate serving a life sentence under the three strikes law may seek a reduction of their sentence only if their third strike DID NOT involve a conviction for any of the following crimes.

Serious Felonies

(1) Murder or voluntary manslaughter;

(2) mayhem;

(3) rape;

(4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;

(5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and

unlawful bodily injury on the victim or another person;

(6) lewd or lascivious act on a child under 14 years of age;

(7) any felony punishable by death or imprisonment in the state prison for life;

(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in

which the defendant personally uses a firearm;

(9) attempted murder;

(10) assault with intent to commit rape or robbery;

(11) assault with a deadly weapon or instrument on a peace officer;

(12) assault by a life prisoner on a non-inmate;

(13) assault with a deadly weapon by an inmate;

(14) arson;

(15) exploding a destructive device or any explosive with intent to injure;

(16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;

(17) exploding a destructive device or any explosive with intent to murder;

(18) any burglary of the first degree;

(19) robbery or bank robbery;

(20) kidnapping;

(21) holding of a hostage by a person confined in a state prison;

(22) attempt to commit a felony punishable by death or imprisonment in the state prison for life;

(23) any felony in which the defendant personally used a dangerous or deadly weapon;

(24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1)of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code;

(25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;

(26) grand theft involving a firearm;

(27) carjacking;

(28) any felony offense, which would also constitute a felony violation of Section 186.22;

(29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220;

(30) throwing acid or flammable substances, in violation of Section 244;

(31) assault with a deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245;

(32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5;

(33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;

(34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;

(35) continuous sexual abuse of a child, in violation of Section 288.5;

(36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100;

(37) intimidation of victims or witnesses, in violation of Section 136.1;

(38) criminal threats, in violation of Section 422;

(39) any attempt to commit a crime listed in this subdivision other than an assault;

(40) any violation of Section 12022.53;

(41) a violation of subdivision (b) or (c) of Section 11418;

(42) any conspiracy to commit an offense described in this subdivision.

 

Violent Felonies

(c) For the purpose of this section, “violent felony” shall mean any of the following:

(1) Murder or voluntary manslaughter.

(2) Mayhem.

(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.

(4) Sodomy as defined in subdivision (c) or (d) of Section 286.

(5) Oral copulation as defined in subdivision (c) or (d) of Section 288a.

(6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.

(7) Any felony punishable by death or imprisonment in the state prison for life.

(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.

(9) Any robbery.

(10) Arson, in violation of subdivision (a) or (b) of Section 451.

(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289.

(12) Attempted murder.

(13) A violation of Section 12308, 12309, or 12310.

(14) Kidnapping.

(15) Assault with the intent to commit a specified felony, in violation of Section 220.

(16) Continuous sexual abuse of a child, in violation of Section 288.5.

(17) Carjacking, as defined in subdivision (a) of Section 215.

(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.

(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.

(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.

(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.

(22) Any violation of Section 12022.53.

(23) A violation of subdivision (b) or (c) of Section 11418.

Thus, if the third strike conviction was for a crime that is not on the list above, a petition can be filed to reduce the life sentence.

 

What Happens After a Petition for a Reduced Sentence is Filed?

Proposition 36 gives judges discretion whether to reduce a life sentence. It is not automatic.  Judges are supposed to look at three factors to determine whether the life sentence should be reduced: (1) The inmate’s criminal conviction history, including the extent of injury to victims, and how long ago the crimes took place; (2) The inmate’s disciplinary record and record of rehabilitation while in prison; and (3) Any other evidence the judge thinks is relevant  to determining whether a lower sentence would result in an unreasonable risk of public safety.

At this stage, it is hard to predict how judges will apply these factors.  Proposition 36, however, makes clear that an inmate cannot get a higher sentence as a result of filing a petition.  As a criminal defense lawyer in Los Angeles, I know that any inmate who thinks that they may be able to benefit from seeking a reduction of a life sentence under California’s three strikes law should contact an experience criminal defense lawyer to determine whether the changes made by Proposition 36 apply to them.

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Three Arrested On Suspicion Of Violating Federal Smuggling Laws

Wednesday, October 31st, 2012

According to The Los Angeles Times, three individuals were arrested last night (October 30) in the Palos Vedes Peninsula on suspicion of trying “to smuggle contraband.”

A Coast Guard helicopter and two Coast Guard vessels were involved in the events that led to the arrest, which took place after the boat landed near Malaga Park.

Federal authorities did not indicate what kind of contraband was involved.  As a Los Angeles criminal defense attorney, I know that most such arrests involve the alleged smuggling of illegal drugs or their precursor chemicals.  Specifically, under 21 U.S.C. Sections 955 and 959, possession, manufacture, and distribution of a controlled substance applies to a boat, aircraft or other vessel that is within 12 miles of the coast of the United States or is intended to be with in the territorial waters of the United States.

Contrary to what many people believe, however, in ths context contraband can involve a wide array of substances that are generally legal to possess. For example, the United States Food Drug and Cosmetic Act (21 U.S.C. Section 331) prohibits the importation of unapproved new drugs,.  Federal law also prohibits importation of certain firearms and even perscription drugs.

Given that a small vessel was involved here, it is likley that the authorities are trying to collect information that would help them tie this isolated act to a broader network or conspiracy.  That is one avenue of the questioning that is likely being directed to the three individuals who were arrested.  It is also possible that federal authorities may be trying to gain the cooperation of those arrested by emphasizing the lengthy prison sentences thay will face if convicted of violating federal smuggling laws.

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Los Angeles County Assessor John Noguez, Bail, and the Forfeiture Laws

Tuesday, October 23rd, 2012

Los Angeles is known for high-profile celebrities and high-profile criminal prosecutions.

Currently, Los Angeles County Assessor John Noguez is attracting more than his share of headlines and media attention.

Last week, he and a few others were arrested and charged with accepting more than one million dollars in bribes in exchange for agreeing to reduce tax property assessments for certain tax payers.

According to the prosecutors, Ramin Salari, a tax consultant, bribed Noguez on behalf of his wealthy clients. Prosecutors claim that this criminal conspiracy cost tax payers 1.16 million dollars.

As a criminal defense lawyer in Los Angeles, I know that most people, including lawyers who are not familiar with the criminal justice system, don’t realize just how important the prosecution’s charges are in a case involving fraud or other financial crimes.

Most people believe that the presumption of innocence applies to this aspect of the charges. After all, the prosecutors haven’t proven that Noguez and Salari have done anything criminal, and they certainly haven’t proven the specific dollar amounts of the harm caused by this alleged crime.

In reality, however, the allegation that Noguez and Salari fraud caused $1.16 million in damages has two immediate practical consequences. First, the judge set bail for Noguez and Salari in the amount of $1.16 million. This is the amount they need to produce to get out of jail pending trial.  Second, and perhaps more importantly, California forfeiture laws provide that the accused must show that the money they use to pay for bail wasn’t tainted by the allegedly criminal conduct.  This leads to the following anomalous situation, as described by The Los Angeles Times:

Salari is a multimillionaire, court records show. But since he has to prove that the money he uses for his defense is not tainted by the alleged criminal conspiracy, his mother and sister are putting up their Encino homes as collateral for the bail, [according to Salari’s lawyer.]

Noguez isn’t as fortunate.  According to his lawyer, Noguez doesn’t have the money to pay for bail. That is why since his arrest he has spent almost a week in jail.

This in turn makes it harder for Noguez or any person in his situation to fully defend himself.  It may turn out that the prosecutors’ charges are exaggerated or totally erroneous.  But at this stage of the proceedings, a good criminal defense lawyer focuses on getting his client out of jail on bail. The forfeiture laws complicate this process, which is another reason why it’s critical to work with an experienced criminal defense lawyer.

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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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Modern Day Debtors Prisons in Los Angeles

Friday, July 6th, 2012

As a criminal defense attorney in Los Angeles, I sometimes feel that I live in an alternate reality.  On a weekly basis, I experience things that most well-educated and well-read people are confident don’t exist anymore.  One of those is debtors’ prisons.  Surely, you are thinking to yourself, they are a relic of the past.  And officially they are.  But in practice many court systems, including Los Angeles Superior Court, impose fines and penalties on indigent defendants and those who have been convicted of minor offenses that have the effect of imprisoning them for failing to pay their debts.

The New York Times reported on July 2 about for profit companies that help generate revenues for court systems by collecting fines.  The article, entitled, “Poor Land in Jail as Companies Add Huge Fees for Probation,” focuses on Alabama, and details the flight of Gina Ray, who was fined $179 for a speeding ticket, but three years later, after the imposition of a variety of fines and penalties, owes more than $3,000.

Three years ago, Gina Ray, who is now 31 and unemployed, was fined $179 for speeding. She failed to show up at court (she says the ticket bore the wrong date), so her license was revoked.

When she was next pulled over, she was, of course, driving without a license. By then her fees added up to more than $1,500. Unable to pay, she was handed over to a private probation company and jailed — charged an additional fee for each day behind bars.

For that driving offense, Ms. Ray has been locked up three times for a total of 40 days and owes $3,170, much of it to the probation company. Her story, in hardscrabble, rural Alabama, where Krispy Kreme promises that “two can dine for $5.99,” is not about innocence.

It is easy to dismiss what happened to Ms. Ray as a by-product of living in Alabama.  But this is also a problem throughout California and in Los Angeles in particular.  Faced with budgetary pressures, state and local governments are increasingly turning to fines and penalties as a way to finance court systems.  A report from the Brennan Center for Justice entitled, “Criminal Justice Debt: A Barrier To Reentry” details disturbing practices in 15 states including California.  For example, California Penal Code section 1214.1(A) authorizes courts to impose a $300 civil assessment for people who fail to appear in court or who fail to pay a fine ordered by the court.  Los Angeles Superior Court imposes this civil assessment.

If you’re wondering about the wisdom of imposing fines on poor people for their failure to pay existing fines, you aren’t alone.  Unfortunately, this isn’t a question of sound public policy or wisdom.  Too often, a financial incentive exists to create a cycle that makes it hard for the poor to escape the criminal justice system.  The New York Times article describes Judicial Correction Services, Inc., a Georgia-based company that, according to its website, helps provide courts with “a comprehensive solution to recidivism or just a boost in the fine collections.”

The company claims but there efforts impose costs on tax payers, but this seems to be true only in the narrowest sense.  Much of the fines imposed on Gina Ray were payable to this for profit company. So what do you suppose happens when people faced with ever increasing fines have to decide whether to decide whether to pay their fines or the child support obligations?  Who bears the cost of that?  The community at large, which, of course, includes tax payers.  And what happens when people can’t pay their debt burden.  Some, as outlined in the Brennan Center report, “choose” to go to prison as a way of paying off their debts.

People who are on probation are faced with a cycle of fines and penalties that can land them in prison. Yes, this is really going on in the United States in 2012.

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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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Lessons From Amanda Bynes’ Arrest: Don’t Talk, Squawk, or Tweet

Monday, June 11th, 2012

“Anything you say can or will be used against you.”

How many times have we all heard these words when someone is arrested on a TV show?  It’s almost become a cliché.

As a criminal defense lawyer in Los Angeles, I know that many people who are arrested don’t fully appreciate that, in the context of talking after you have been arrested, anything really does mean anything.  Even the most innocuous-sounding language can come back and hurt a person who has been arrested.

A recent example involving a celebrity illustrates the point.

On April 6, Amanda Bynes, who starred in the Nickleodeon show, “All That,” and later appeared in the film version of the musical “Hairspray,” was arrested in West Hollywood for hitting the corner of a sheriff’s vehicle with her BMW.  Approximately seven weeks later, she was charged with driving under the influence and for refusing to take a Breathalyzer or blood-alcohol test.

After finding out that she is facing these charges, Byrne sent out the following message via Twitter to President Obama and her more than 250,000 followers:

“Hey @BarackObama… I don’t drink. Please fire the cop who arrested me. I also don’t hit and run. The end.”

Some of you might be thinking:  “What’s the big deal?”  It’s not as if she admitted to something or said something incriminating.  True.  The most important reason for not talking to the police or making a public statement relating to charges is that people can and often say something that directly implicates their guilt.  It’s shockingly common for people to admit to committing a crime (or what they think is a crime) or to provide information that either corroborates some other incriminating evidence, or provides the basis for cross-examination at trial.  Here, Ms. Bynes stated that she doesn’t drink, thereby indirectly affirming her innocence.  Her statement could have been worse.

But for several reasons she still would have been better off keeping quiet.  First, being charged with DUI hardly makes someone appear likeable.  Contacting the President and asking him to fire a local police officer isn’t a great popularity move either.  Should this case ever go to trial, prosecutors have an incentive to try to get the tweet admitted into evidence.

Second, the message on Twitter generated much more media attention than the original arrest or the decision to press DUI and related charges.  When news of the tweet spread, so did the picture of the mug shot.  This isn’t the kind of attention that most people, even celebrities, need.  It’s also possible that this kind of media attention may subtly bias the pool of potential jurors.

Third, and most importantly, the press attention may make it much harder for the prosecutors to accept a plea deal.  They may be more motivated than they otherwise would have been to try Ms. Bynes.  Although it’s premature to tell, it’s certainly plausible to believe that the ill-advised tweet could actually increase the punishment Ms. Bynes ultimately receives for allegedly hitting a sheriff’s patrol car back in April.

Admittedly, a certain amount of speculation is involved when determining how a certain public disclosure impacts how a particular case will be defended.  Nonetheless, if you are arrested, the safest course of action is to stay quiet and let an experienced criminal defense lawyer do the talking for you.

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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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Medicare Fraud Arrests in Los Angeles

Thursday, May 3rd, 2012

The feds are getting serious about Medicare fraud.

More than 100 people have been charged in connection a Medicare fraud conspiracy that is alleged to span eight cities. Eight of the suspects are in Los Angeles, including two doctors.

According to news reports, more than $20 million in fraudulent medical expenses were billed just by the defendants in Los Angeles:

“All told, 108 doctors, nurses and other healthcare providers from around the nation were charged. In Los Angeles, authorities said defendants had filed $20 million in false claims.

Bolademi Adetola, owner of the Latay Medical Services company in Gardena, was charged with billing Medicare for power wheelchairs that never were purchased. The Greatcare Home Health group allegedly paid “kickbacks” to recruiters to find “patients” who were in good health, and then arranged to have doctors knowingly write phony prescriptions for them.

In addition, [two doctors]  were among four individuals connected with a Southern California medical care group that authorities say billed Medicare for feeding tubes for patients who did not need them.”

The allegations described above may sound extreme, but as a criminal defense lawyer, I can sssure that they are fairly typical for Medicare fraud cases.  Medicare fraud is a specific form of lying.  It is motivated by a desire to obtain reimbursement for medical expenses to which one is not entitled.  One common way to do this is to submit claims for medical procedures or services that were not performed.  Another involves paying third parties to find patents who then seek medical treatments that they don’t need.  A third involves submitting claim forms that identify a higher-cost service than was actually performed.

Medicare is a program that is administered by the federal government. Medicare fraud cases, unlike the vast majority of crimes, are therefore handled in federal court, which has its own rules, judges, prosecutors, and juries.  That’s why it’s imperative that you work with a lawyer who is experienced in defending criminal cases in federal court.

Unlike many criminal cases, Medicare fraud cases can also be document intensive.  Prosecutors often rely on written evidence –the claim forms submitted to Medicare—to try to prove guilt beyond a reasonable doubt.  In a case with more than 100 defendants, prosecutors may try to get lower-level individuals to testify against perceived ring leaders.  It is also possible that law enforcement may have obtained recording of certain conversations.  Thus, when defending a Medicare fraud case, particular attention needs to be given to the evidence that the prosecutors use with respect to every claim submitted to Medicare.

The penalties for Medicare fraud can be severe.  If someone is found guilty of intentionally providing false information in violation of The False Statements Act (18 U.S.C. 1001), they can face up to five years in jail as well as a sizeable fine.  Under the federal sentencing guidelines, the prison time can be higher depending on the amount of loss.  Likewise, the Social Security Act contains an anti -kickback provision, which makes it a felony to pay kickbacks, refunds, or bribes to seek Medicare reimbursement. Penalties for violating the anti-kickback provision include up to a five-year prison sentence and up to a $25,000 fine. People charged with Medicare fraud may also be charged with violating the federal wire and mail fraud statutes, which carry their own prison sentences and fines.

Given the number of people arrested in this particular case, it is likely that the prosecutors will be seeking extremely long prison sentences against the people who they perceive to be the ”big fish.”

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