Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

TRAFFICKING IN ILLEGAL DRUGS

To prove this the state must prove all of the following:

  1. The defendant knowingly sold, purchased, manufactured, delivered, or possessed
  2. A controlled substance (or a mixture containing a controlled substance)
  3. The weight of which is more than 5 grams (Federal) most States’ trafficking charges start at 28 grams for ‘controlled substances’. Trafficking in some pills can be as few as ONE pill!
  4. Knowing the substance or mixture contained a controlled substance
  5. With the intention to sell, purchase, manufacture or deliver the controlled substance.

The State does not have to prove a sale.  Giving drugs (at a party for example) is trafficking for some pills.

 

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50 ‘most charged’ crimes defined

MURDER

The unlawful and premeditated killing of a human being.

Killing with premeditation is killing after consciously deciding to do so.

The decision must be present in the mind at the time of the killing.

The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing.

The period of time must be long enough to allow reflection by the defendant.  The premeditated intent to kill must be formed before the killing.

Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

MONEY LAUNDERING

A Defendant can be found guilty of this offense only if all of the following are proved beyond a reasonable doubt;

  1. The defendant knowingly engaged, or attempted, to engage in a monetary transaction.
  2. The defendant knew the transaction involved criminally derived property.
  3. More than $10,000.00 was involved (federal).
  4. The property was, in fact, derived from an unlawful activity, which must be proven.
  5. The transaction occurred in the United States.

The term “monetary transaction” means the [deposit] [withdrawal] [transfer] or [exchange], in or affecting interstate commerce, of funds or a monetary instrument by, through, or to a financial institution obtained by some criminal offense.

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rsw_1280-300x225How to get a Federal Judge to dismiss your indictment if you are charged with Human Trafficking and the charge involves sex with a minor and there was in fact no minor

If you have an attorney, you should share this blog with him/her.  If you are representing yourself (no lawyer) look at some of my cases in federal court in Tampa and Miami and New York.   In all events, do not try to do this alone: you need an attorney.  Here’s how I set the legal stage for a dismissal of the charges:  Step One:  file the motion pursuant to Rule 12 of the Federal Rules of Criminal Procedure. Step Two:  inform the federal judge your challenge the Indictment by pretrial motion. (cite this case: United States v. Spero, 331 F.3d 57 (2d Cir. 2003). Step Three:  argue that the Indictment is defective and fails to properly and fully charge an offense under 18 U.S.C. 1591. (cite:  United States v. Fern, 155 F.3d 1318 (11th Cir. 1998) and United States v. Chilcote, 724 F.2d 1498 (11th Cir. 1984). Step Four:  Argue that the defect in the Indictment is the Indictment does not contain language that the alleged victim was a “victim of human trafficking”.

Tough argument to make? Not really.  Prior to 2015, a majority of the Federal Appellate Courts ruled that you can be arrested and convicted as a Human Sex Trafficker even if the government did not have a live human being victim.  That is now under attack and here is how I do it:  You argue that in 2015 Congress amended 18 U.S.C. § 1591.

Inform the federal Judge that the legislative history of the amended statute shows that it was the intent of the Congress to prosecute criminals “who purchase sexual acts from human trafficking victims”.  [ Specifically, this language can be found in the May 29, 2015, Pub. L. No. 114-22 § 109, 2015 (129 Stat. 227, 239), 18 U.S.C. § 1591 (2012)]   Next throw in a paragraph or two and argue that Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, (If you want to really nail this argument throw a reference to these cases and watch the Assistant United States Attorney who is prosecuting you throw a temper fit… Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975);*581 NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09 and cases cited (4th ed. 1973).  I then throw into the stew (my motion) something about the fact that the new amended 18 U.S.C. § 1591incorporated sections of prior law.   Everyone one has to agree that Congress can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute and… Congressional intent is clear from the official record of Legislative Intent and purpose.  Congress acted in 2015 and spoke to this issue.  For a little legal spicing you can include the wording of the Statement of Congressional Intent it becomes clear that the purpose and intent of the 2015 amendments to 18 U.S.C. § 1591 was, in the words of the Congress “… to correct the courts, prosecutors and law enforcement agencies and to require they comport with 18 U.S.C. § 1591 and its purpose and correct application in arresting and prosecuting individuals who seek to obtain or obtain sexual relations with and from individuals who are in fact victims of human trafficking.”   Still with me on this?….. I continue to argue that Congress in 2015 is bell-clear in instructing and correcting courts that 18 U.S.C. § 1591 requires the government allege and prove that persons, such as the defendant, can only be convicted when the government alleges in the Indictment and proves by evidence that the defendant sought to obtain sexual concourse with a minor who was and is in fact the victim of human trafficking.

My motion goes on a bit.  If you want a copy of my pleadings, you can email me, and I’ll discuss it with your federal public defender or your private federal criminal defense lawyer (if you have hired one).  In the end the motion to dismiss the indictment for  Human Trafficking  [where your charge involves allegations of negotiating to have sex with a minor and there was in fact no minor (just a lot of “dirty talk” with a federal case agent posing as a pimp)] can  get the case tossed.

 

Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

MANSLAUGHTER

Manslaughter is killing a human being without malice, and without premeditation, and without justification or legal excuse. It is taking a human life by culpable negligence, but without the specific intent to cause death.

Manslaughter differs from murder: malice (evil intent) and premeditation is the essence of murder. Culpable negligence or the unintended causing of death is manslaughter.

Culpable negligence:  Everyone has a duty to act reasonably towards others.  If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.  But culpable negligence is more than failure to use ordinary care toward others.  In order for negligence to be culpable, it must be gross and flagrant.  Culpable negligence is a course of conduct showing reckless disregard of human life, or the safety of persons exposed to dangerous effects.

5aebe3eb57581e1d811f05221f078474-300x199HOW TO REDUCE YOUR FEDERAL PRISON SENTENCE IF THE GUIDELINES CHANGED

The Guidelines Commission has closed the comment period for a proposed rule change on how to reduce your federal prison sentence IF a revision to the Guidelines is in your favor: That means, IF you were before a federal judge for sentencing and the Sentencing Guidelines now are lower than when you were originally sentenced, you may get a “do-over”.  The case that changed all this came out in June 2018:  Koons v. United States, 138 S. Ct. 1783 (June 4, 2018).

What’s important here is that the sentencing guidelines commission proposed amendments which assure a process for sentence reduction.  The take away is this: if your federal prison sentence would have been scored differently and the new sentencing exposure range is less than what it was at the time of sentencing, you can ask for a new sentencing hearing.  At this new hearing, you can reargue all of the section 3553 sentencing considerations.  This is a very big deal. It gets bigger if your zone changes.  Since another rule amendment from the guidelines commission tells us that if you’re in zone A or B and you have no prior felony convictions, the recommendation is for a non-prison sentence.

So, here’s the sweet spot if you fit:  If your sentence was within zone A or B and if the guidelines changed since your sentencing, you can under Koons, and soon using a proposed sentencing guideline rules change, have an entirely new sentencing hearing before your federal judge.  Lots of people have called or written asking about the step-down act and its changes.

In a previous blog posting, I discussed the statute. The new statute really only helps the population of federal prisoners who have a low recidivism rate.  The new statute, effective January 2019, tells us that you can get your sentence reduced if you are evaluated and determined to be at a very or reduced lower risk of recidivism.  Recidivism means the likelihood that you’ll do the same crime again.

As a practical matter, when the sentencing guidelines commission proposed a rule change because of a Supreme Court decision, judges are more likely to travel down that road.  Again, the take away is this.  If your score is in zone A or B, you have no priors, it’s a nonviolent crime, and you’re in federal prison, you should contact your federal criminal trial lawyer and ask him to review your situation.  A proposed rule is just that, a proposed rule…. but since the close of the comments, the likelihood that the rule will be promulgated before the end of 2019 is very high.  You can see the sentencing guidelines commission proposed rule change as well as the case that started all this by pressing on the links embedded in the blog or you can contact me.

 

Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

LEAVING THE SCENE OF AN ACCIDENT

To prove the crime of leaving the scene of an accident the state must prove:

  1. Defendant was the driver of a vehicle involved in an accident resulting in property damage, (usually means over $100.00) injury (or death) to any person.
  2. Defendant knew, or should have known, that he/she was involved in an accident.
  3. Defendant knew or should have known, of the damage, injury or death.
  4. Defendant willfully failed to stop at the scene of the accident, or as close to the accident as possible, and remain there until he/she had given identifying information to the other driver, injured person, or police.
  5. Defendant willfully failed to render reasonable assistance to the inured. This means not taking steps to aid the person or minimize the amount of damage.

Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

What is a FELONY?

A felony is any crime which is punishable by one year or more in prison.

Felonies are divided into degrees.

Felonies also carry a loss of civil rights:

 

  • -the right to vote
  • -the right to hold elected office
  • -the right to own a firearm
  • -some require you register with the local sheriff
  • -some professions disqualify felons.

In several states, conviction of a sex crime or sexually motivated crime can result in civil commitment after incarceration. Civil commitment means you can be returned to prison for indefinite term if a jury finds you a continuing risk of recidivism for sex crimes.

Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

WHAT IS A MISDEMEANOR?

A misdemeanor is any crime which is punishable by a stay in the county jail of up to 364 days.

You go to jail for violating a misdemeanor statute.

You go to prison for violating a felony statute.

You do not loose your civil rights if you are convicted of a misdemeanor charge. Unless the misdemeanor a crime of dishonesty (such as theft) it does not affect your ability to obtain a license in most professions.

Although you can be placed on probation for misdemeanor, a maximum period of probation can not be greater than one year.

If you violate any conditions of misdemeanor probation the judge can send you to jail for a maximum of one year.

In most states conviction of two misdemeanor theft charges can result in a felony theft charge for any subsequent theft arrest.

rsw_1280-300x225DEVELOPMENTS IN FLORIDA CRIMINAL LAW: DISMISSING CASES DUE TO DELAYS BY THE PROSECUTION IN FILING AND ARRESTING DEFENDANTS

Good wine, good romances, good cheese, all improve with age.  It’s also true of criminal cases.  One of the least  used and least understood motions in Florida is a motion to dismiss, under a Due process argument.

You can dismiss cases that were delayed in arrest and in the filing of charges if you can demonstrate your defense has been compromised and the prosecutor has no good reason to justify the delay.  It’s not uncommon for some cases to be late in the docket, what is also uncommon, and was surprised to me, is how few attorneys understand how to dismiss the case that is” long in the tooth “which means in plain English: old.  A recent case in my office involved a traffic stop in which a controlled substance was found after a search.  The prosecutor’s Laboratory took six months to process the narcotics.  The prosecutor’s office delayed filing charges for another year because it would’ve interfered with an ongoing investigation.

The client was arrested and charged with a narcotics violation that was over a year and a half old, and the case was dismissed.  The dismissal is based on federal cases involving delays.  Understanding this due process motion to dismiss you could probably teach your own lawyer some new tricks.  So, let’s take a look at it.  The first step in the process is to file a motion to dismiss claiming that your case has been prejudiced by the delay. In the motion you argue to the judge that the overlong period of time between the initial alleged criminal act and the charge caused you to lose the ability to effectively defend yourself.  This is step one, and this is the keystone argument; the delay caused me to be prejudiced in my defense.  Some obvious and standard problems are witnesses are lost, disappeared, memories fade.  You can also argue that had I been arrested at the time, I would’ve found witnesses to testify that I was somewhere else (for an alibi) or, had a defense that although the contraband was there you had  lack of control because someone else was there.  That argument that the delay caused you to lose a witness or defense is the keystone in the beginning of a successful motion to dismiss for delay.  At that point, the judge sees and realizes that you been prejudiced.  Now the State of Florida, that is the prosecutor, has to put on a very convincing argument that the delay was reasonable.

Current case-law Florida makes a presumption of 18 months as unreasonable.  Prosecutors also have to convince the judge that there was good cause for the delay.  One reason is that there was an ongoing investigation that would be compromised had they gone ahead with the prosecution. At this point, the judge has an option to either dismiss the case because of the delay or do a totality of the circumstances analysis.  At this point, your best recourse is to find an experienced criminal defense attorney in Florida who’s been reading some cases, or done some cases as I have, that successfully resulted in dismissals due to delay.  In the federal criminal courthouse there is a wealth of cases that can be relied upon to argue this dismissal motion.  Florida has some cases but most of the cases referred to the federal criminal cases involving these motions.  If your case is more than a year old and you allege and prove prejudice, (that is you lost the ability to defend yourself), point this out to your criminal defense attorney. Even if you lose at the trial level most appellate courts in Florida are very open to these motions into these arguments.  I’ve had great success in having the fourth District Court of Appeals review and affirm these motions.