Articles Posted in Federal Criminal Defense

PillFentanyl, a very addictive and dangerous narcotic, continues to rise in popularity among the United States.  On October 05, 2017, two people were arrested and charged with a 24-page federal indictment, along with seven others, of distributing the imitation opioid fentanyl through the United States, especially through states such as Florida where drug abuse has always been an issue.  According to the Sun Sentinel, Anthony Santos Gomes and Lisa Gomes, told the judge they were trying to hire attorneys to represent them but most likely both will be transferred to North Dakota to face the charges against them in that state.

According to the officials of the Drug Enforcement Administration, Internal Revenue Service, and the Department of Homeland Security the Gomes are being charged with five different counts in the indictment.  The indictment explains that Anthony Santos Gomes and Lisa Gomes were running a conspiracy to possess with intent to distribute…controlled substances and controlled substance analogues resulting in seriously bodily injury and death. The indictment also explains that they did all this knowingly and intentionally with the purpose of distributing the drug.

The National Institute of Drug Abuse, describes fentanyl as a powerful synthetic opioid that is very similar to morphine, but 50 to 100 times more potent. If prescribed, it is given to patients with severe pain or to manage severe pain after surgery.  The way drug abusers use this new dangerous imitation of fentanyl is swallowing it in solid form, snorting it in powder form, or by burning it and then injecting it or having it absorbed by the mucous membrane. Similar to heroin and morphine, fentanyl works by binding to the body’s opioid receptors, which are found in areas of the brain that control pain and emotion.  Then they drive up dopamine levels in the brain’s reward areas, producing a state of euphoria and relaxation.  On the streets this drug is combined with cocaine or morphine, making it more addicting and requiring higher dosages which usually lead to overdoses and killing those who consume it.

According to the Florida Sun Sentinel, the indictment explained that the drug ring was operated from January 2013 through August 2016 with two organizers participating from a Canadian prison and another operating out of China. The ring moved more than 400 grams of fentanyl and more than 100 grams of a fentanyl analog online using internet sites designed to be hidden from the public. The drugs were obtained from China and Canada, records show, and distributed in Florida, California, Colorado, Georgia, Maryland, North Carolina, North Dakota, New Jersey, Ohio, Oregon and South Carolina where records also show that the drug has been the cause of many deaths in those states due to drug overdose.

Both Anthony and Lisa Gomes and the other members of their drug trafficking ring could be punished with life sentences or a fine of up to 8 million dollars due the alleged charges on the indictment.

Increasingly the U.S. Attorney’s office has been actively pursuing men and women who were placed on Federal probation but have either stopped checking in or have violated their probation with a new arrest.   Federal probation is a sentence, just as is Florida state probation.  Violations of probation are most frequently one of the following:

  • Failing to report a change of address or get approval to move from the probation officer
  • Failing to follow the terms of current probation
  • Committing another crime while still on probation
  • Failing to pass or submit a urinalysis
  • Failing to pass or submit a drug analysis
  • Failing to pay for restitution
  • Failing to report to the probation officer

5aebe3eb57581e1d811f05221f078474-300x199Probation is often part of a sentence and follows incarceration.  Violating probation has severe consequences.  If you are currently on probation, make certain that you are aware of all the terms and conditions. Please see 18 U.S. Code §3563, for the terms and conditions of federal probation. Florida Statute § 948.03 is the statute that contains the basic elements of what probation requires in Florida state court.

When and if one is placed on federal probation one is informed by a probation officer at the time of sentencing immediately after the federal judge imposes the sentence in open court.  You and your attorney will go from the courtroom to the Probation Office in the courthouse where you will be instructed.

If you have a violation of probation warrant, contact a criminal defense attorney.  Depending on your state or federal jurisdiction, the warrant can be handled in several ways.  One way is to appear before a judge and explain why you failed to appear (i.e. if the service was to a wrong address or you were hospitalized or incarcerated most judges will set aside the warrant).

The substantive elements of a violation of probation are two: a willful act which substantially violates the terms and conditions of probation.  Rule 32.1 of the Federal Rules of Criminal Procedure contains the post incarcerate laws on modifying probation or supervised release.

Upon being summoned, the Rule requires the federal judge or magistrate to advise you of what you did in violation of your probation or supervised release, and your right to be represented by an attorney.  If you cannot afford a private attorney, the federal judge will appoint a federal public defender.

You are entitled to a preliminary hearing, and at the federal preliminary hearing, the issue of jurisdiction (are you in the correct federal district), is primary.  If you are being held in the wrong federal district the court will transfer you to the jurisdiction of your conviction.  The magistrate can detain (keep you in custody) or release you.  If you are released, you must appear within a few days in the correct federal court.  The purpose of the hearing then becomes a court inquiry.  Taking documents and allegations of fact into consideration the magistrate must determine if probable cause exists to support the allegations of violation.  The federal magistrate must provide you with written accusations specifically identifying what conditions of probation or supervised release were allegedly violated.  The disposition is covered by 18 U.S. Code § 3565 and 18 U.S. Code § 3583.

If after an evidentiary hearing the magistrate makes a finding based on the evidence that a violation has occurred, one of three things can occur:

  1. The federal magistrate can return the probationer to probation without modification.
  2. The second option is to modify the terms of probation by adding new terms, extending the probation or requiring some prison time.
  3. Lastly, the federal judge or magistrate can impose a prison sentence.

The only limitation on the length of any extension or probation or any term of incarceration is the maximum sentence under the Federal Sentencing Guidelines for the crime of conviction for which you were placed on probation.  Time served can and often is granted or credited toward any new prison sentence.  A sentence imposed by a magistrate can be reviewed by a federal judge.  If you are before a magistrate and not a federal judge your criminal defense attorney can follow the procedure to have the findings and rulings of a federal magistrate reviewed by a federal judge.

The U.S. Department of Justice announced on July 22, 2016 the unsealing of what will be an epic Medicare fraud sweep involving members of the South Florida community, both in Miami and Fort Lauderdale.  This is the largest Medicare Fraud crime federal indictment in the history of the U.S. Department of Justice.  It involves a network of doctors, hospitals, health care providers, adult living facilities (ALF’s), nursing homes, and private physicians and health care providers who have collectively, (allegedly) fraudulently billed Medicaid and Medicare in excess of one billion dollars.

Named in 300px-FBISealthe unsealed indictment is the owner of a business that owns and operates over 30 facilities for profit that provide nursing and assisted living services.  The allegations include conspiracy, bribery, kickbacks and fraudulent billing of services either not provided or, as some unconfirmed reports indicate; provided to dead people.  The unsealed indictment is one of many that the joint task force anticipates will be bring dozens of people to court as criminal defendants in federal court in South Florida.  The Office of the Inspector General of the U.S. Department of Health announced it believes in excess of $2.5 Billion of fraudulent charges are paid out every year by Medicare and Medicaid fraudulently and that South Florida is the focus of the task force.  Also named in the unsealed indictment is Odette Barcha, 49, and Arnaldo Carmouze, 56, all of Miami-Dade County.

Philip Esformes, the owner of more than 30 facilities, was named as the “mastermind” of the conspiracy.  He is represented by attorney Marissel Descalzo and Michael Pasano of the Carton Fields law firm.  In 2013, Attorney Michael Pasano  also represented Karen Kallen-Zury who was convicted and found guilty,  along with others, of running a $70 million Medicare fraud and bribery scheme involving mental health hospitals.  Also convicted in the Southern District of Florida in that case was Daisy Miller of Hollywood and Michele Petrie of Fort Lauderdale.

The Miami Herald wrote that Philip Esformes, age 47, is one of the richest men in Miami and his involvement in the one billion dollar scheme is the source of his accumulated wealth. According to the government, hospitals owned and controlled by the conspirators referred some of the thousands of Medicare patients (whose names are not revealed because of HIPA regulations) for outreach mental health care.

One of the hospitals not named in the indictment is the Larkin Community Hospital in South Miami.  The Justice Department alleged in the indictment some of the kickbacks were ‘disguised’ as payments for “escort services” provided to Mr. Esformes as well as related travel and hotel expenses reportedly billed to Medicare for providing mental health services to Medicare and Medicaid patients, all of whom remain unnamed.

The press release from the U.S. Department of Justice stated, “This is the largest single criminal healthcare fraud case ever brought against individuals by the Department of Justice.”  Mr. Esforme’s criminal defense lawyers Marissel Descalzo and Michael Pasano issued a statement that their client committed no wrongdoing, further saying, “Mr. Esformes is a respected and well-regarded businessman.”  The attorneys did not elaborate on the full scope of their client’s business activities, and did not comment on the allegations that escort and hotel services were allegedly paid for by Medicare and Medicaid in connection with services provided to patients.

Slavery and trafficking are synonymous.  Human trafficking includes Philippine young women who are transported to Saudi Arabia and confined as domestic servants, as well as commercial sex operations.  Human trafficking is defined as the use of fraud, coercion or force to exercise physical and psychological control of an individual to purpose the victim into commercial sex acts, confined labor or both.  For more a world-wide perspective on human trafficking, go to: National Human Trafficking Resource Center and the UN Office on Drugs and Crime. Defining criminality and prosecutions under federal laws is a three step analysis beginning with: 1) The act; 2) The means; and 3) The purpose.

Florida has a sex trafficking and human trafficking criminal statute which is quite comprehensive.  In Florida, local jurisdictions, such as Miami and Fort Lauderdale, prosecute sex trafficking and human trafficking cases under Florida criminal law.  Often, the scope of commercial sex trafficking operations crosses city and county jurisdictional lines.  A prosecutor in Fort Lauderdale cannot successfully prosecute a sex trafficking operation that is outside Broward County.  Because commercial sex operators are inter-jurisdictional operations, there is a federal task force in place.  The task force is active in Tampa, Orlando, Miami, West Palm Beach, and Fort Lauderdale.  Federal prosecutions are often undertaken when local state prosecutors decline to prosecute or refer a sex or human trafficking case to a federal task force.

Federal criminal codes 18 U.S.C §§ 1591 and 1594 are the most commonly used criminal cases filed in Federal Court.  The White-Slave Traffic Act of 1910, known as the Mann Act, outlawed prostitution and unlawful sexual activities which “cross state lines.”  Historically, the Mann Act was used to arrest and prosecute men, and women, who crossed from one state to another, and who were either unmarried or engaging in commercial sex.   The Mann Act has penalties of ten years.  The Human Trafficking Federal Statutes (18 U.S.C § 1591) prosecutions are more targeted to incarcerate operators of commercial sex enterprises in which prostitutes, both male and female, of age 14 or under are held as sex workers.  The age of the person providing commercial sex and the age of the “John” place different sentencing schemes to defendants.  The statute begins with a mandatory minimum of ten years to a 15 year minimum mandatory to life in prison.  If the age of the “John” is under 21 and the age of the sex partner is under 14, the 15 year minimums apply.   The Sentencing Guidelines provide for enhancements and a recommended sentencing range.  Please seek out more information on the guidelines for more insight into the sentencing exposure of defendants.

We have seen in recent months that increasingly the federal sex trafficking and human trafficking laws have been applied to “Johns” in greater and greater numbers.  As a criminal defense attorney, my office sees this as a disturbing trend in law enforcement.  Human trafficking and the forced enslavement of victims is a problem of international scope.  It is appropriate for federal criminal authorities to use prosecutorial resources to impact on sex traffickers.  It is an unwise allocation of federal resources to arrest individuals who respond to internet ads for escorts and are swept into the federal system.

mateenNoor Zahi Salman, (the second and current wife of the Orlando shooter, Omar Mateen),  told the FBI she knew of Mateen’s plan for a mass murder shooting, accompanied him to scout out potential targets, went with him to the Pulse Club in Orlando, and accompanied him to buy a holster and ammunition.

Is that enough to charge Mateen’s wife as aiding and abetting the murders?  Can the law support a conviction?  Is arresting her a public relations issue or a law enforcement issue? These are all questions that investigators will be looking to answer in the next few days.

Decide for yourself. But first understand the law.  Aiding and abetting means “assisting in the commission of someone else’s crime.”  According to 18 U.S. Code § 2, Salman, if convicted of aiding and abetting, could be punished as a principal.

Jury instructions are the place to start reading about the elements of crimes.   I always work with clients at the start by reading jury instructions. Jurors hear the instructions at the conclusion of criminal trials.  Jury instructions are the court’s distillation of statutes and case law of the crime(s) defendants are indicted.

Read the Manual of Model Criminal Jury Instructions, 5.1 Aiding and Abetting. There are four elements that must be proven beyond a reasonable doubt. In Salman’s case, to be found guilty of aiding and abetting Mateen of murder, the first thing that must be proven is that the crimes occurred, which they did.

Second, that Salman aided in at least one element of the crime. This may be provable, if it’s true that Mateen’s wife helped him scout out the scene of the crime and went with him to procure things he needed to murder all those people.

Third, that Salman acted with the intent to facilitate the crime. What does “facilitate” mean?  Mateen’s wife must have not only associated with the person who committed the crime, but she must have helped Mateen, knowing he intended to commit a crime.  You decide if Mateen’s wife acted knowing that Mateen intended to use guns to kill people and that there still was a realistic opportunity for him to withdraw from the crime.

The fourth element to be proven is whether Salman acted before the crime was completed.

As more facts become known, you can weigh what you read in the papers and see on TV.  You can mull it over and come to your own conclusion.  But, if you are a prosecutor, you don’t mull and consider if it is a politically popular thing to do. The decision to prosecute is a decision by the U.S. Attorney and the State Attorney in Orlando.  What the prosecutor looks for is sufficient evidence to survive a judgment of acquittal at the conclusion of the government’s case.  Juries decide if the evidence meets the government’s burden of proof beyond a reasonable doubt.  Can prosecutors prove the elements of aiding and abetting the charge of murder, the murder of 49 people?  That is a jury question and that’s what jury trials do: They weigh evidence.  If you believe it is a question of proof, then you should encourage the U.S. Attorney and the State Attorney (the prosecutor’s office in Orlando) to charge Mateen’s wife with aiding and abetting.   Let the proof come out in a trial.  A jury can decide if it meets the test of proof beyond a reasonable doubt.

Most U.S. taxpayers do not run afoul of the Internal Revenue Service’s Criminal Investigation Division.   Known as the CID, it has special agents who work either with other criminal prosecution agencies, in or with inter-agency task forces, or are assigned on a case by case basis to a U.S. Attorney office.  Understand that the Internal Revenue Service does not commonly begin a taxpayer collection action with a Criminal Investigation Division special agent.  The most common I.R.S. taxpayer recovery begins with a telephone call to the target.  The caller is an I.R.S. collection agent, not a C.I.D. agent.

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Source: bragertaxlaw.com

If your first contact from the I.R.S. is a C.I.D. agent call you know that the ultimate outcome is most likely a criminal prosecution.  It is best to retain a criminal defense attorney if you are called by a C.I.D. special agent.  All customary investigations begin with a request for production.  The request is either by letter or by verbal communication from an I.R.S. agent.  Compliance is not voluntary but is mandatory so do not disregard an IRS request for production of records.  You can negotiate the time and delay factor but you cannot fail to comply.  Additionally, be very aware that your response must include all records requested.  Any selective response by you, or any omission of records is an open door to a criminal prosecution.  When we look over our law office records of criminal prosecutions for tax evasion it is common that the prosecutor includes several counts of obstruction of justice for failure to provide complete tax records.  If the first contact  you have with an IRS agent is a subpoena then you can conclude for certain that you are the subject of a criminal investigation.  Anyone whose first contact from the IRS is from a CID special agent would be well advised to retain a criminal defense lawyer at the outset.  The investigatory phase can last as long as six months.  As the subject of an IRS review you are entitled to be represented by an attorney, but it is not always needed.  Most if not all IRS inquiries resolve with an agreed resolution requiring payment of back taxes, fines and interest.  Very few IRS contacts resolve with a criminal prosecution.

You must keep in mind that IRS compliance actions are entirely paper based and records based.  An inculpatory statement  (admission of guilt) is rarely a part of an IRS criminal prosecution so be candid and open in your conversation with counsel and, if so advised, with the IRS agent.  Unlike most other criminal prosecutions, the government does not have to establish beyond a reasonable doubt the elements of the crime of tax evasion.  The standard is willfulness and intent; and your tax filings are almost always sufficient to establish all the legal elements the government must prove up in a tax evasion prosecution.

This week the Security and Exchange Commission (SEC) announced that E.S. Financial Services, a Miami based brokerage firm, settled what could have been a major criminal case with an agreed $ 1 million penalty payment to settle the charges and possibly avoid criminal prosecution.

The SEC issued a press release which suggested that the E.S. Financial, now known as Brickell Global Markets, Inc., committed acts that substantially violate anti-money laundering statutes and related rules.  The agreed allegations are that the brokerage firm allowed non-U.S. individuals to sell and buy securities without revealing the people who are the beneficial owners.

The SEC’s continued investigation led to their issuance of an order, which instituted a settled administrative proceeding, in lieu of a criminal indictment.  And while no fraud occurred in this case, the SEC investigation concluded that there were significant “holes” or shortcomings in the framework and implementation of the firm’s customer identification program (CIP), which required brokers to, “…at a minimum…, implement reasonable procedures to verify the identity of any person seeking to open an account.”

According to the SEC’s order, E.S. Financial maintained a brokerage account for a bank from Central America that was trading for its own benefit.  It went on to say that 13 non-United States entities, involving 23 non-U.S. citizens, were the beneficial owners of the securities involved and that more than $23 million of securities transactions were involved in the allegations.  These actions were in violation of Section 17(a) of the Securities Exchange Act of 1934. Specifically:

  • Rule 17a-3, which requires exchange members, brokers, and dealers to make and keep certain all books and records relating to its business.
  • Rule 17a-4, which requires exchange members, brokers, and dealers to preserve such required records for a prescribed period of time.
  • Rule 17a-8, which requires every broker to comply with the reporting, record keeping, and record retention requirements in regulations implemented under the Bank Secrecy Act, including the requirements in the CIP rule applicable to broker-dealers.

The anti-money laundering statutes require that non-U.S. citizens who buy, sell or beneficially own securities in the U.S. must reveal and verify their names.  This applies to any individual who is the beneficial owner or ultimate person who will own the securities.

The SEC identified that in examining the books and records of the firm, there was a failure to provide and produce the records identifying the foreign customers the firm was soliciting and or providing financial advice.

Under the SEC rules cited above, financial institutions must maintain records which adequately identify their customers.  To ensure that money launderings statutes are followed, FINRA published the Know Your Customer Rule (FINRA Rule 2090), which requires regulated brokerage firms to know with whom they are dealing.   The “Know Your Customer” Rule imposed upon financial institutions is intended to eliminate or reduce money laundering.

As part of the agreed settlement, E.S. Financial Services agreed and confirmed to the SEC that a complete review of their internal policies, practices and procedures over the next two years would be undertaken, which is in addition to the $1 million fine they agreed to pay.

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Source: irs.gov

On January 27, 2016, the Department of Justice Office of Public Affairs issued a press release announcing its victory in a Virginia federal court where a gas station owner pleaded guilty to a charge of conspiracy to defraud the United States in what appears to be a renewed effort to prosecute tax evasion cases by the Internal Revenue Service (IRS).

In this case, the defendant, Obayedul Hoque, owned a gas station and several Subway franchises in Alexandria and Arlington, Virginia, as well as in Washington, D.C. According to the criminal investigation division, the owner and co-conspirators, admitted to not depositing all of their gross receipts into the company accounts, and thus failed to report and pay taxes on a significant portion of their sales.

From 2008 to 2013, the co-conspirators falsely reported the franchise’s sales at $14,377,696, although the true and correct sales for the franchise were $20,805,667. The defendant admitted that as a result of the false reporting to the IRS, they failed to pay between $1.5 million and $3.5 million in taxes to the IRS.

The prosecution in this case proceeded under 26 U.S. Code § 7201, Attempt to Evade or Defeat Tax and the sentencing of the defendants has been put off to May 2016.  For this charge, the defendant faces a prison term of up to five years and a fine of up to $250,000 and under the plea agreement, he agreed to pay restitution to the IRS for the tax liability.

Under the federal criminal tax code, it is a felony for any person to willfully attempt to evade or defeat any tax imposed by or under relevant federal law. It is also a felony under federal criminal law to fail to collect, account for, and pay any tax imposed under the federal code. Federal tax fraud cases are also prosecuted for underpayment or failure to pay estimated tax as required by law.

The most important and most often cited federal court decisions concerning tax evasion in the United States define tax evasion and tax fraud in the same language. Tax evasion and tax fraud is the purposeful illegal attempt by the taxpayer to evade assessment or payment of any tax imposed by federal law. Tax evasion is different from tax avoidance. Tax avoidance is the legal utilization of the tax and taxation laws to one’s benefit. The reduction of tax liability through tax avoidance is not illegal. It is a federal criminal act to fail to report and or fail to pay taxes which are imposed by law.

Chief Richard Weber of the IRS Criminal Investigation Unit said, “Today’s plea of Obayedul Hoque for conspiracy to defraud the United States sends a clear message to would-be tax cheats.  U.S. citizens expect and deserve a level playing field when it comes to paying taxes and there are no better financial investigators in the world when it comes to following the money.”  And because of this apparent renewed effort by the IRS, regional U.S. Attorney offices, including here in Fort Lauderdale and in Miami, are under increased pressure to prosecute for tax fraud.

Presentence reports are prepared by the probation officer assigned to the federal judge’s courtroom.  The judge looks to the report in making sentencing decisions and defendants’ attorneys can object or supplement the presentence report.  Here are some considerations on how to help yourself if you are being sentenced in a federal criminal court.

300px-FBISealAfter verdict, the judge orders the in-court probation officer to prepare a pre-sentence report (PSR), then you and your attorney meet with the probation officer who will be preparing the PSR for your judge.  Look over the worksheet you are asked to complete and bring it with you to the meeting with the probation officer.

What I do, and suggest you insist be done for you, is have the defense attorney prepare an entire PSR, just like the probation officer’s finished product, and send it to the probation officer before he/she files their own PSR.  You know that you have fourteen days to object to the officer’s PSR, but objections have to go to an error in fact, not that the presentation of the facts, which can be very damning and negative.   Your lawyer’s “suggested” PSR is often used, or parts of it is used, by the probation officer in his/her final and completed PSR.

When I submit my own memorandum, I am mindful that I cannot change facts, but you can change focus.  There may be no doubt that my client has a prior conviction for a drug offense, but it may not be that simple.  Some of my clients were assisting law enforcement after their initial arrest and that fact can and is a legal reason for the federal sentencing judge to depart from the sentencing guidelines and impose a sentence below the guidelines range.  Often, I have a client whose drug conviction occurred before an extensive and successful course of treatment for substance abuse.   Although there is a prior conviction,  the successful completion of a drug program may be reason to present in the PSR that the defendant no longer is a danger to the community, or has assumed responsibility for past bad acts.  Again, the assumption of responsibility and the fact that a defendant is no longer a danger to the community is and are legal reasons for a judge to impose a sentence that is a variance in that it is less than the guidelines suggested sentence.

The thing to remember is that sentencing guidelines are not mandatory and are only  advisory.  Also know that when a judge imposes a sentence that is below the suggested guidelines sentence, he or she must state that the sentence is a variance from the guidelines.  A variance must be supported by findings by the Court and if your PSR contains legally sufficient reasons for a sentencing judge to make a finding that the sentence imposed is a variance the judge will always and only look to the PSR for facts to support a variance.

Take a moment to re-read what you have learned about the federal sentencing system –  what the guidelines are, how they are used, what findings a judge must make before imposing a sentence that is greater than or less than the recommended sentence under the guidelines.  Writing your own PSR for the probation officer can and is often rewarded by finding your own words in the final PSR that the judge reads and relies upon in making sentencing decisions.

This past Saturday, January 9th, Sean Penn published an extensive article in Rolling Stone detailing his covert trip to Mexico to meet and interview the drug lord Joaquin Guzman Loera a/k/a El Chapo, along with Mexican actress Kate Del Castillo.  Sean Penn could now be the focus of a criminal investigation and may be charged with crimes in Mexico and possibly the United States because of these dealings.

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Source: Rollingstone.com

After reviewing Sean Penn’s article in detail, his actions could be characterized as aiding and assisting a fugitive or participating in a conspiracy to assist a fugitive. Sean Penn stated in his article all the steps he took to obscure the nature of his travel and its purpose. Under Anti-terrorist laws, a person who knowingly conceals the nature, or location of a terrorist, or who knowing or intending to conceal the whereabouts either assists in the concealment of an escape or conspires to do it can be prosecuted.

If Sean Penn was interviewed by U.S. federal agents and he somehow misleads them, then he could be charged with obstruction of justice.

Actors and movie producers do not have any immunity from criminal prosecution.  From Sean Penn’s perspective, he may have been pursuing a good story for a movie, but from law enforcement’s perspective, he may have aided a fugitive in flight, acted to assist in the concealment of a fugitive, or run afoul of U.S. laws criminalizing anyone who provides material support to a terrorist.  The United States has adequate legal basis to prosecute major drug traffickers as terrorist organizations.  Under U.S. criminal laws, particularly U.S.C 2339A, a person who attempts, conspires or actually provides material support or resources to a terrorist or a terrorist organization, can be prosecuted in the United States federal criminal courts under the anti-terrorist statutes.   Any group designated by the U.S. as a terrorist organization, comes under the umbrella of the U.S. Patriot Act and at this point in time, Sean Penn may be charged in the United States for violations of the Patriot Act.

Keep in mind that Joaquin Guzman Loera is a fugitive under U.S. laws and has been charged with an array of narcotics offenses including murder and gun law violations.  In his article, Sean Penn wrote among other things, “There is no question in my mind but that DEA and the Mexican government are tracking our movements.” And Sean Penn wrote that he communicated with “El Chapo” by employing ‘burner phones’ and there was “one per contact, one per day, destroy, burn, buy, balancing levels of encryption, mirroring through Blackberry Phones, anonymous email addresses, unsent messages accessed in draft form.

Sean Penn may well be prosecuted because “El Chapo” may try to lessen his criminal exposure by testifying as to what Sean Penn did and said. Testimony from a co-conspirator and the addition of evidence is sufficient for a conspiracy count.  A conspiracy requires an agreement between two or more people to commit a crime.  Here, El Chapo and Sean Penn acted in concert and with actual knowledge of what they were doing to avoid detection and arrest.