Last month, on February 16, 2016, the U.S. Government asked a California federal court to compel Apple to assist the FBI in the search of the San Bernardino shooter,Syed Rizwan Farook’s, iPhone.  Apple has objected to doing so, claiming it has “…done everything that is both within our power and within the law to help them.”

Apple vs. FBIIn the past, Apple has complied with government search warrants, under its prior operating system, bypassing its passcode and unlocking some of its content pursuant to the warrant. But under Apple’s new encrypted software, the data is encrypted automatically using a digital key that can only be accessed by the user and not by Apple or anybody else.  And since developing the new iOS8 operating system, Apple claims in its policy that it can no longer bypass the passcode, “…and therefore it is not “technically feasible” for Apple to respond to government search warrants.  For this reason, the government’s already obtained search warrant has not been very useful and under the All Writs Act, the government is seeking assistance from Apple because they state, “Apple has the ability to modify software” to disable the auto-erase function only on Malik’s iPhone.

U.S. Magistrate Judge Sheri Pym issued an order approving the government’s petition and in response, Apple issued a statement outlining their reasons for refusing to cooperate with the FBI, stating the FBI is asking Apple to “build a backdoor” to its products, thus setting a dangerous precedent.

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.



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.

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.”

Bill Cosby was dealt a stunning setback and a legal major rebuke by a Pennsylvania state court judge this week. His lawyers filed court papers asking the judge to stop the newly renewed prosecution of three sexual assault charges filed against Mr. Cosby in Montgomery County, Pennsylvania. His argument was based in equity and basic estoppel contract law.



Twelve years ago the prosecutor from Montgomery County announced that he would not prosecute Bill Cosby on the charges.  The allegations of sexual abuse in 2004 were and are the same Mr. Cosby is currently facing. Relying on the prosecutor’s statements that no prosecution would be undertaken, Mr. Cosby moved on with his life, responded to lawsuits in civil court, made statements in that lawsuit as required, and did nothing to preserve defenses, evidence, and witnesses which he could have used in this defense had he been prosecuted 12 years ago.  Now, 12 years later, the recently elected prosecutor Mr. Kevin Steele announced that he was reopening the case. Mr. Steele in his campaign to get elected as the prosecutor in Montgomery County, Pennsylvania, featured his intent to prosecute Bill Cosby.



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.

Earlier this month, over 275,000 signed a petition and sent it to President Obama requesting a pardon for Steven Avery, the main character of the real life Netflix mini series. The Netflix ten-part series, Making of a Murder, has brought forward a public outcry and has motivated a great many U.S. Citizens to voice their lack of faith in the criminal justice system in the United States.

Making-a-MurdererThe series is about Steven Avery’s rape conviction, eighteen-year incarceration, subsequent exoneration and release, the wrongful incarceration law suit and finally a murder conviction following hard upon his release and lawsuit.  The story of Mr. Avery’s rape conviction, incarceration and subsequent murder conviction has spotlighted what has been portrayed as corruption and a venal manipulation of evidence, and the courts by the police to silence a wrong by imposing an additional wrong.. In what is an epiphany for many, the criminal justice system is seen as a system that is criminal in what it does to any concept of justice.

In response to the Petition, the White House, said:

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.

Yesterday, on January 12th, 2016, the U.S. Supreme Court ruled that a portion of Florida’s capital punishment system is unconstitutional.  The Supreme Court, in striking this portion, found that only a jury can make the necessary findings that the defendant’s taking of the life of the victim was cruel, unusual, or heinous.



Under Florida’s capital punishment system, the jury is not required to make findings or required to make the vote unanimous and instead the judge makes the findings of fact required by the U.S. Constitution before the death penalty could be imposed.  But now the Supreme Court’s ruling has rendered this procedure in Florida unconstitutional.

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.



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.

Ethan Couch, the teen dubbed as the ‘Affluenza Teen,’ arrested in Texas and placed on probation in 2013, is still months away from removal from Mexico back to Texas for sentencing after having fled Texas for violating his probation.



Extradition to Texas