Articles Posted in Florida Criminal Defense

MxDnDcp7TuChwQ9W1RAkVQ_thumb_27e8-300x187Money Laundering in the High-End Super-Rich Luxury Home Market

In Miami and New York City, federal anti-money laundering agencies have launched a major effort to end buying high end housing with laundered money.  These are apartments in multi-million-dollar condominiums, waterfront high end homes in Palm Beach, Boca Raton, Los Angeles and D.C.  The Task Force is now operating full steam!  Take note that there are Federal Grand Juries actively investigating money laundering in New York and Florida.   Government money laundering federal prosecutors have begun a campaign to take down lawyers and real estate agents who facilitate these money laundering transactions.  How?  First there now is a push to emphasize the “know your client” rule.  The American Bar Association has published an attorney’s best practices pamphlet http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2014oct_abaguide_preventingmoneylaundering.authcheckdam.pdf which is a must-read for lawyers in New York, Miami, and now Boca Raton Florida who have clients from outside the U.S. who purchase expensive homes with cash.   “Know Your Client” means… the true beneficial party must be known by his or her government issued identifier.  Identifiers are tax identification number(s).   For U.S. citizens? — a social security number.  For non-U.S. nationals?  –Their citizen identification is now required: passports are acceptable citizen identifiers.  A Beneficial Owner, or true equity-owner- person, is a living human being.  Best practices are to not accept transactions where the buyer is a business or a partnership or an entity: that is no longer good enough to shield you from a major problem.  You should (read that must) know the name of a living, breathing person.  It’s best to actually have personal contact with the beneficial owner(s).  If you don’t , and the government looks at the transaction and begins a money laundering investigation you (Real Estate broker or salesman, or Mr. or Ms. Attorney), will have a visitor from the Treasury Department, or the FBI and then it’s off into a major kettle of woes.  First thing is hiring your friendly federal criminal defense attorney.  Or responding to a Grand Jury subpoena.  Or a meet with the FBI investigator, or the U.S.  Attorney’s case agent.  It gets worse.  Think about the Bar, or your practice partners, or your clients who read about you being indicted in federal court on a wire fraud, or money laundering charge.  https://www.southfloridacriminaldefenselawyerblog.com/

Is it worth the aggravation to explain to your golfing buddies in Boca Raton about your miseries?  How about your friends in Miami who thought you were at the top of your game and now you’re playing hardball with the U.S. Attorney’s Office in New York.  So, what to do?  Here’s a few things to do:

  1. Remember that 78% of all real estate transactions in Miami and Boca Raton require compliance with the Bank Secrecy Act.  https://www.fdic.gov/regulations/safety/manual/section8-1.pdf

If you’re not familiar with it then call your malpractice underwriter and get the protocol for a closing.

  1. Learn and learn well, that starting today you have to (must) monitor, identify, know and name all parties to the transaction. Find and identify (with numerical identifiers) the true beneficial persons of interest: the buyer who walks and talks and will live in the five-million-dollar waterfront townhouse in Palm Beach.
  2. Go online and read the first page of the U.S. Treasury’s Department of Financial Crimes Enforcement Network (FinCEN).  https://www.fincen.gov/
  3. Or call your federal criminal defense lawyer in Fort Lauderdale, or Miami, or New York. Don’t be bashful it’s a call that can save you money and maybe your license!
  4. Again, go online and read about Suspicious Activity Reports (SAR’s) what they are and how attorneys and real estate agents and brokers can be tagged for not making a SAR report.
  5. Refamiliarize yourself with the definition of Willful Blindness.
  6. Go online to the website of the Association of Certified Anti-Money Laundering Specialists (ACAMS) or go online to find the local Chapter of ACAMS and call one of the names on the registry of members.
  7. Ask a banker for a contact in their internal Anti Money Laundering Compliance department.

PillsOwner and president of a New Port Richey pharmacy, Nicholas A. Borgesano, plead guilty to two counts of conspiracy in the Middle District of Florida on October 30th, 2017, for being at the center of a multi-million-dollar mediation fraud scheme.  Mr. Borgesano is 45 and his sentencing will be scheduled in federal court before United States District Judge James S. Moody Jr. and is facing a maximum of 15 years in prison.  Count one is for conspiracy to commit health care fraud and count two is for conspiracy to engage in monetary transactions involving criminally derived property.

According to the Department of Justice, the fraud ran from October 2012 to December 2015 and it impacted private insurance compaies, Medicare, and Tricare a health care program for the military.  Before him, seven others had plead guilty in connection to the scheme.  As part of his testimony, Mr. Borgesano explained that him and his co-conspirators owned and operated numerous pharmacies and shell companies to execute a fraud scheme involving prescription compounded medications. Per the Tampa bay Business Journal, compounding is when pharmacists or physicians combine drug ingredients to create another medication in order to attend to individual needs.

With this scheme they generated more than $100 million in fraudulent proceeds.  Mr. Borgesani owned and controlled A to Z Pharmacy, Havana Pharmacy, Medplus/Newlife Pharmacy, and Metropolitan Pharmacy, Jaimy Pharmacy, and Prestige Pharmacy.  It was in these pharmacies where he created the submission of false and fraudulent reimbursement claims for prescription compounded medications, pain creams, scar creams, and private insurances.  They all manipulated billing codes, paid for kick backs and bribes to further the exchanging and signing of prescriptions for patients he never saw.   The disbursement of all the money was done through wire transfer to the co-conspirators, by assets, or checks.

Most of all their properties will be forfeited including 50-foot racing boat, expensive cars, and houses which equal to over 7.6 million dollars. The total amount that will be forfeited is the result of everything that was purchased with income from the fraud scheme.

The investigation of this fraud scheme was part of the Medicare Fraud Strike Force conducted by the FBI and with the assistance of HHS-OIG and DCIS.  According to the Department of Justice, The Fraud Section leads the Medicare Fraud Strike Force, which is part of a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country.  They operate in nine different locations in the United States and since it’s creation on March 2007, it has charged over 3,500 defendants who have falsely billed the HealthCare system for $12.5 billion.

HorseOn November 4, 2017, Donna Byrne, was seen riding a horse while under the influence of alcohol on a busy highway on Combee Road near North Crystal Road in Lakeland, which is 35 miles east of Tampa.   Byrne was found around 3 PM, smelled like alcohol, her eyes were watery red, and she got off the horse she was moving from side to side.  She had ridden the horse for a stretch between 10-15 miles long in Polk County, described a spokesman for the Polk County Sheriff’s Office.

According to The Orlando Sentinel, Sheriff Grady Judd explained that Ms. Byrne was not in any condition to be on the road at all. He also explained that she put both her life and the life of the horse in danger and of anyone who driving on the road during the time of the incident because that highway is known to be extremely busy.   When she was finally taken of the horse and was administered a sobriety test, Byrne alcohol levels were of .157 and .161, which is twice the state’s legal limit of .08.

In 1993, an appellate court in California ruled in People vs. Fong that people riding animals on the highway are subject to the same rules as the drivers of automobiles, meaning people must ride their animals at a reasonably safe speed and avoid reckless behavior. In Florida, several criminal defense lawyers explained to The Washington Post that they are doubtful that the DUI charge will hold up in Florida court. This is supported by Florida law which states that people riding animals on roadways or shoulders are treated as pedestrians, and are not subject to the same rules as automobile drivers.  According to these lawyers, if charged, a person riding a horse drunk might be charged with disorderly conduct, similarly to a publicly intoxicated pedestrian.

The Polk County Sheriff’s Department spokesman explains that the road where Ms. Byrne stopped on is a very busy road and that if someone would have hit the horse then that person would be in danger. Therefore, making Ms. Byrne a danger to herself.  Based on her actions before and after the police officers arrived at the scene, the officer had sufficient probable cause to arrest her and consider the horse a vehicle. The officer further explains that this is also considered a vehicle because the woman put a saddle and bridle on this horse and was riding it to get from point A to point B, while drunk.

The laws on whether a person horseback riding can be charged with a DUI or DWI varies from state to state but, CBS News confirmed that Ms. Byrne has been charged with a DUI and animal neglect for endangering and failing to provide proper protection for the horse.  Ms. Byrne’s past criminal history consist of five felony charges and ten misdemeanors, which include animal cruelty, drug possession, violation of probation, and criminal traffic.

CollegeAt the beginning of this year CBS News reported that there were more than 300 open investigations of sexual violence at colleges and universities across the country according to the Department of Education.  They also explained that of the 223 schools under investigation, five are located in Florida.  The five schools are Full Sail University, Stetson University, the University of South Florida, the University of Miami and Florida State University.

The Orlando Sentinel also states that many Florida residents believe that no one ever gets convicted of rape on Florida’s public universities.  According to police records, in 2012 and 2013 55 rapes were reported on between different campuses but only five arrests were made and of those five cases, three have already been dismissed.

The parents of these victims feel that there is something wrong with the way universities and colleges are handling sexual assault and rape cases, they want law and regulations changed.  They also feel that there are hidden reasons why the schools handle these cases the way do and those hidden reasons are usually funding, student attendance, and the school’s reputation.

Under the investigation completed by the Orlando Sentinel, four of every five campus-rape cases were actually considered date rapes and three of every four of those cases, the alleged victim was extremely drunk or on drugs.  Alcohol and drugs created more complicated issues when the perpetrator and the victim are actually acquaintances at a social event, rather than when the perpetrator is a stranger.  Recently, the White House and Congress have declared that campus sexual assault and rape is a widespread issue and that colleges are doing too little to stop it.

According to the FCASV ( Florida Council Against Sexual Violence), the State of Florida university police departments say they take rape allegations seriously. They usually have several officers investigate. Then the victims are referred to victim’s advocates; witnesses and suspects are interviewed; security-camera videos and entry card-readers are checked; and clothing and other evidence are sent to the Florida Department of Law Enforcement for DNA tests.

Universities have also created noncriminal student-discipline programs that victims can use instead of courts. They offer a lower standard of proof and no criminal punishment to certain students. This is because a sexual-battery conviction in Florida carries a prison sentence of up to 15 years and it also establishes the lifelong stigma as a sex offender, which many parents do not wish for their children.  State attorneys offer very few plea bargains for cases of this matter, most of them only offer a misdemeanor battery that doesn’t carry a sex-offender identification and no prison time.

Therefore, who is to blame for the lack of safety the students encounter on a daily basis? Are the schools doing a good enough job to keep the students safe and are they providing enough information on their campuses’ that explain where help could be found for those types of situations? Why are certain cases publicized and others are not? How are schools planning to fix these issues? These are a few of the many questions that parents and the Department of Education have for those in charge of the universities and colleges dealing with these types of crimes. According to the DOE, the number of victims of sexual assaults in college should be decreasing with how advanced criminal technology is nowadays, not increasing.

Sexual AssaultSexual assault cases are on the rise in the United States because victims are finally opening up about it after allegations against Hollywood movie producer, Harvey Weinstein. Sexual assault, according to the Bureau of Justice is a wide range of victimizations, separate from rape or attempted rape. These crimes include attacks or attempted attacks generally involving unwanted sexual contact between victim and offender. Sexual assaults may or may not involve force and include such things as grabbing or fondling. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling verbal threat, and attempted rape.

On October 5th, 2017, the New York Times published the initial article that opened the door to the Weinstein sexual harassment epidemic and those of other Hollywood artists.  According to the Rolling Stones, the article from the New York Times revealed allegations of many women who explained that Mr. Weinstein has been sexually harassing women in the industry for decades.  The allegations of these women went into deep patterns of intimidation and even rape.  This event is just one of the thousands of situations that happen around us everyday but the victims decide to suffer through it alone due to fear.

According to RAINN (Rape, Abuse, and Incest National Network), every 98 seconds, another person is experiencing sexual assault.  The number of people victimized each year is composed in the following way: 80,600 inmates were sexually assaulted or raped, 60,000 children were victims of “substantiated or indicated” sexual abuse, 321,500 Americans 12 and older were sexually assaulted or raped, and in the military 18,900 experienced unwanted sexual contact.  The majority of sexual assaults occur at or near the victim’s home, a public place, a relative’s home, parking lots or garages, or on school property.

The Rolling Stones explains that Weinstein’s victims date incidents back to 1984 and since then almost 30 reports followed into 2015.  The investigations have been able to reveal the pattern he had when committing these crimes.  Weinstein would invite younger women to his hotel room or apartment on a professional pretense, appear in a bathrobe or completely undressed, and request a massage and/or sexual favors, either implicitly or explicitly offering the exchange for career advancement. Many of the victims refused to speak about these incidents in public due to fear of jeopardizing their careers.

Many of these cases are not reported in a timely manner because woman believe that they live in a society where they are discouraged from coming forward with stories of harassment and rape.  According to the National Institute of Justice 9 out 10 victims of rape are females and only these statistics have not changed since 1998.  When these types of crimes are committed it is important to report them as soon as possible because each state has different statutes of limitations.

Since statutes of limitations vary from state to state it is important for victims to understand that the sooner they report these crimes the quicker the police will catch these perpetrators. This is crucial when there is DNA involved.  When conducting an investigation DNA evidence can make or break the outcome of the alleged crime. These types of forensic exams are beneficial in three ways:  it increases the likelihood of identifying the perpetrator, it increases the likelihood of holding them accountable, and it prevents them from committing future sexual assaults.

CrashThe State of Florida continues with its operations to crack down on Personal Injury Protection (PIP) fraud and it has encountered two more cases in the past two weeks. One of the PIP kickback schemes discovered totaled in $2 million and the other one totaled in $23 million dollars.  Attorneys, chiropractors, and clinic owners are all being charged with auto insurance fraud, mail fraud, wire fraud, and health care fraud.

According to the court papers filed with U.S. District court in Miami, they are accused of orchestrating a kickback scheme to take advantage of the state’s mandatory personal injury protection car insurance program.   They are also accused of using chiropractors and tow truck drivers to solicit patients and clients.

The Florida Office of Insurance Regulation explains that the intent of the PIP program was to provide injured drivers up to $10,000 in immediate medical coverage in lieu of establishing fault through the court system.  Their goal was to reduce payment delay for injured drivers, as well as limit the utilization of the court system.  In the State of Florida, PIP coverage is required to be purchased by everyone who owns a motor vehicle that is registered in the state.

According to the Sun Sentinel, the state and federal government spent years and millions of taxpayer dollars wiring up witnesses and tapping phones thinking these clinics were leading a Russian organized crime network, instead they discovered a crime ring of corrupt clinic owners, chiropractors, and lawyers who operated in Miami, Broward, and Palm Beach County. Their operation was so elaborate that they defrauded the insurance companies more than $23 million between 2010 and this year.  If convicted the defendants could face 20 years or more in federal prison.

The crime investigators stated that kickbacks between $500 to $2100 per patient were given to tow truck drivers and body shop owners who would direct the accident victims to clinic that were owned by the defendants.  They would have the doctors and chiropractors register the clinics under their names to cover up their ownership.  The defendants would tell these doctors and chiropractors the treatment the victims were going to receive based on the amount of money they believed the case was worth and not the treatment the victim actually need it. The medical staff knew exactly what to write on the medical reports in order for the victim to qualify for the entire amount of benefits available based on the insurance policy.

The prosecutors on this case are calling these clinics “PIP mills” in relation to “pill mills” that have also under been under investigation because of insurance fraud.  The defendants are both being held in federal prison and without bond because of fear that they will flee the country because of ties and frequent travels to Ukraine and Israel.

 

OpioidsThe opioid crisis continues to worsen throughout the entire county, but in certain states more than others because the drug has become more accessible.  To makes matters worse, insurance companies are taking advantage of this situation by overcharging for the drug treatment needed by those who suffer from all types of drug addictions. One of the rehab capitals of the United States is Palm Beach County, Florida.  The state of Florida has a billion-dollar drug treatment industry that, according to an NBC investigation, is overwhelmed by clients who continue to overdose and increase in insurance fraud.

According to the National Institute of Drug Abuse, opioids are a class of drugs that include the illegal drug heroin, synthetic opioids such as fentanyl, and pain relievers available legally by prescription, such as oxycodone (OxyContin®), hydrocodone (Vicodin®), codeine, morphine, and many others. The reason why people are abusing the use of the drug is because not only does it relieve pain but it produces euphoria that many become dependent on. Overdoses on opioids have continued to severely increase since 2007, especially because the drug is now being mixed with other drugs to produce other addictive effects.  Family members of the drug abusers rely on drug treatment centers to save their loved ones but the outcome is the complete opposite.

Dave Aronberg, Palm Beach County’s top prosecutor and State Attorney, stated to the NBC News investigator that the entire drug treatment industry has been corrupted by the accessibility of easy money.  Mr. Aronberg also explains that, the actors of this industry have taken advantage of well-intended federal law, and a lack of any good law at the state level, to profit off people at the lowest stages of their lives.

The law he refers to is the Affordable Care Act, which along with the federal Mental Health Parity Act passed in 2008, was meant to ensure people suffering from addiction could get the care they needed. People saw this as an opportunity to make a lot of money and have taken advantage of desperate people, who are usually young or dependent on their families. These scammers have also made it difficult for genuine and ethical centers to prosper because people are losing faith in the credibility of these centers.

According to the investigation done by NBC News, within a few months of a drug abuser reaching the drug treatment centers, they would call their family members stating that they had transferred to another sober home. Bills from the insurance companies kept arriving to their homes with treatment worth thousands of dollars. The bills included from medical treatments, lab tests, chiropractic therapy, and counseling.  When they family members of these victims called the treatment centers to figure out why the bills were so high, the person on the other end of the phone would hang up. The insurance bills detailed charges of $5,000.00 for things like a urine test or $1,800.00 for one counseling session. One of the victims bills reached $1.2 million for only 15 months of treatment, even though they were bounced among nine different facilities.

Governor Rick Scott, officially declared Florida’s opioid crisis a state of emergency in May of 2017. Also, legislators recently passed a bill that would increase penalties for brokering. They believe this will give prosecutors sharper tools to crack down on what a grand jury last December found was rampant brokering and fraud across the insurance industry.

StudentsAccording to the Florida Sun Sentinel in 2005, teacher Blake Sinrod, was accused of molesting four third grade students at Coral Sunset Elementary School.  He fondled the four girls in his classroom during their reading groups, a classroom movie, and he would also instruct them to touch his genitals or he would he would place their hands on his genitals over his clothes. After a 12-year-old lawsuit, the Palm Beach County School District gave the approval for a $3.6 million settlement.

Mr. Blake Sinrod was fired from Coral Sunset Elementary in 2006 and his teaching license was revoked in 2008.  Mr. Sinrod plead guilty in 2006 to molesting two of the four girls but the four families persisted in filing a joint civil suit against the school district.  According to file from 2006, the defense used by Mr. Dale Friedman, the defense attorney, was that the victims were old enough to understand the consequences of of their actions and conducted themselves in careless and negligent minor.  The parents of the four victims could not believe this was the defense tactic used by the school district.

Attorney Dale Friedman, told the Sun Sentinel that the district’s outrageous claim was used in an effort to reduce potential damages the district might have to pay out, a tactic she referred to as “comparative negligence.” Friedman insists, “We have never blamed the girls or given them the appearance of holding the girls responsible for what their teacher did.” But this defense only weakened the defense’s case further because it re-victimized the victims. According to Mr. Jeffrey Herman, an attorney who represents victims of sexual abuse, explained that he had never witnessed the use of such a defense and the fact that the school district was blaming the four girls of what happened to them would remain as permanent record of the case.

However, when the parents of the four third grade students filed a civil law suit in 2006, their lawyer at the time, Charles Bechert, said that the parents believed their children were preyed upon in part because they were immigrants and that perhaps the teacher thought their parents would not know how to report the crimes, or feel comfortable doing so.  This is something that continues to happen to children all over the world but children do not speak out about it because of fear of their families being deported or hurt in any form.

According to 7 News what infuriated the parents of the victims and their attorneys is that the school district failed to investigate or take proper action against Blake Sinrod in the sexual molestation incidents in 2003.  The Sun Sentinel reports that the school district also uses as its defense that Mr. Sinrod’s actions were unknown and beyond the foresight of a reasonably prudent person.  But this insufficient for both the parents of the victims and their attorneys because they do not understand how the School District did not think that this man was a danger to the students and why he was not revoked of his teaching license from that very moment.

MarijuanaAccording to ABC News a senior citizen and her son, in Pasco County Florida, explain that the nursing home where she lives is denying her potential pain relief, by refusing to allow her to have the medical marijuana she has a legal prescription to take. This seems to be an issue that is affecting Florida residents who live in long term care facilities throughout the state. Ms. Simpson, who is  attached to a wheelchair and suffers from Parkinson’s Disease, has tried everything she could have possibly tried to assist her with the medical conditions she suffers from, but medical marijuana  had given her faith in a new alternative that would allow to live a little more comfortably.

Medical marijuana legislation in the State of Florida was finally established by the governor on June 16, 2017 after years of Florida residents explaining to the government all its health benefits. In Amendment 2 of the Constitution of the State of Florida, patients with a debilitating medical condition will not be found subjects to criminal or civil liability for consuming medical marijuana.  Debilitating medical conditions mean cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.

Ms. Simpson’s son explains that after medical marijuana became legal in Florida, a doctor prescribed it for his mother and she applied for a compassionate use permit. When she was finally approved, and the medicine was delivered, they gave it to him and told him he had to take it home with him because it would not be permitted inside the nursing home. But according to a healthcare expert from the University of Florida, even though Ms. Simpson had a legitimate medical therapy reason for the use of medical marijuana and a prescription for it, it doesn’t mean they have to allow her to take it if they can provide her with other options for her pain.  This is one of the biggest dilemmas with the statue because it is not completely clear on the regulations of long term health care facilities and the acceptance of medical marijuana therapy.

States like California, Colorado, and other states have found other alternatives to balancing the use of medical marijuana in long term health care facilities.   Instead of having their patients, who suffer from chronic diseases, consume the marijuana inside the medical facilities, they offer to take the patients to close by dispensaries where they can practice this therapy without breaking the law. Unfortunately, medical marijuana is a scheduled narcotic and is considered a private business, therefore nursing homes can set their own rules regarding its use in their facilities, even if it causes their residents to live uncomfortably.  Issues such as this one will push the government to amend Section 381.986, F.S., or to create a brand new legislation that clarifies the rules and regulations of the use of medical marijuana with better ways of providing it to its consumer.

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.