It’s Time to Open these Gates!
The U.S. Sentencing Commission (USSC) voted in favor of making new federal drug guideline sentence reductions retroactive.
Most of you know by now, our country is in the midst of an incarceration crisis. Our great nation locks up more, per-capita, than any other nation. Many of these inmates are victims of harsh sentencing initiatives resulting from the failed war on drugs.
Last week, we received good news from Washington. Nearly, 46,000 federal drug offenders (25% of BOP population) will be able to file a motion in court to have their sentence reduced by an average of 2 years. This will only apply for those sentenced before November 1, 2014. The average sentence reduction for those who qualify will be two years!
Those of you with loved ones in federal prison may be asking, “Now what?”
Remember: not all federal drug offenders sentenced before November 1, 2014, will be eligible for a sentence reduction, and the reductions are not automatic.
Who won’t be helped by this decision?
1. Prisoners sentenced for other than a drug offense.
2. Prisoners serving a mandatory minimum for a drug offense.
3. Prisoners sentenced as Career Offenders.
While courts can begin considering and granting motions for sentence reductions starting on November 1, 2014, prisoner releases will not begin until November 1, 2015. The Commission is giving courts and probation officers a chance to handle the big influx of motions for sentence reductions before probation officers must turn their attention to supervising the prisoners upon release.
If you are wondering if your loved one qualifies for this sentencing reduction, contact Federal Criminal Defense Attorney Elizabeth B. Carpenter.
FACTS, LIES and VIDEOTAPED INTERROGATIONS
The Justice Department recently said that the F.B.I. and other federal law enforcement agencies are encouraged to videotape interviews with suspects in most instances. This new policy does not apply in cases where agents need urgent national security-related information that could expose sources or methods or where the interviewed subject request to not be videoed. This is one of the most significant changes in F.B.I. policy under James B. Comey, who took charge as the bureau’s director in September. Mr. Comey’s predecessor, Robert S. Mueller III, and senior bureau officials had once opposed the video requirement, saying the tapes could reveal agents’ interrogation tactics and discourage witnesses from talking.
The new policy, which goes into effect in July 2014, applies to the F.B.I., the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration and the Marshals Service. These federal law enforcement agencies are also encouraged to use electronic recording in other parts of their investigations, like witness interviews.
The former official, Paul K. Charlton, said federal prosecutors were unnecessarily losing cases because they were unable to present to jurors the most damning evidence available to them: videotaped confessions.
“The most difficult part of proving a crime involves the state of mind, and that is almost always obtained through a statement of the suspect.“
I think this is one of the most significant improvements in the criminal justice system in a long time. Cameras are on neighborhood poles, the corner of big box stores and spread all throughout modern society. Cameras help cops when stops are made. Many Officers now must wear a mini camera on their person. Why would anyone suggest a video-taped interview, hot after a crime would not provide a closer look at the truth, is beyond me.
Of course, I could see how law enforcement would not like the eye in the sky recording their “strategic approach” to obtaining information, confessions and what-have you. Now, the very first time an interviewee asks for a lawyer, the agents can’t just offer the subject a cigarette, cup of bad coffee and hit it again an hour later with some new angle. Now the interview will actually be over. “I want my lawyer…I don’t want to talk anymore!” ACTUALLY means that.
That is Power- and that is good for justice
Mail Fraud: Fictitious Name or Address – 18 USC § 1342
What is Federal Mail Fraud?
Conducting, promoting, or carrying on by means of the Postal Service, any scheme, fraud, artifice or any other unlawful business, uses or assumes, or requests to be addressed by, any fictitious, false, or assumed title, name, or address or name other than his own proper name, or takes or receives from any post office or authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name.
The term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.
What is the penalty for Federal Mail Fraud?
Fined under this title or imprisoned not more than 5 years, or both.
The mail and wire fraud statutes are essentially the same, except for the method associated with the offense – the mail in the case of mail fraud and wire communication in the case of wire fraud. As a consequence, the interpretation of one is ordinarily considered to apply to the other. As a consequence there seems to be little dispute that conviction requires the government to prove the following elements:
- the use of either mail or wire communications in the foreseeable furtherance
- of a scheme to defraud
- involving a material deception
- with the intent to deprive another of
- either property or honest services.
If you or a loved one has been indicted for mail fraud or any other federal white collar crime, contact our law firm for a consultation. Let us start working for you today!
Federal Criminal Defense Attorney Louisiana
Fraud By Wire, Radio, or Television – 18 USC § 1343
Devising or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice.
The elements of of this offense are directly parallel those of the Mail Fraud Statute, but require the use of an interstate telephone call or electronic communication made in furtherance of the scheme.
A fine or imprisonment of not more than 20 years, or both.
If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency, or affects a financial institution.
Fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
If you have been indicted for a federal crime, contact our law firm for a consultation. We are ready to start building your defense today!
What Is the Crack Cocaine Amendment to the Federal Sentencing Guidelines?
Historically, federal law treated those convicted of crack cocaine offenses much more harshly than those convicted of offenses involving cocaine. This is despite the fact that chemically the substances are very similar and physiologically they react with the body in the same way. The sentencing disparity between crack cocaine and cocaine offenses was originally 100 to 1. This means that if a conviction for 100 grams of cocaine would result in a 30 year sentence, it would only take 1 gram of crack cocaine to get a 30 year sentence.
The difference in the law had an enormous effect on who gets the harsher punishments, as crack cocaine is found more often in neighborhoods that are predominantly occupied by African Americans and cocaine is generally found in more affluent, White areas. This resulted in the over incarceration of African Americans in the United States.
Over the years, civil rights advocates and criminal defense attorneys called for a more fair sentencing structure that treats the two drugs more similarly. Lawmakers eventually realized that this distinction was not scientifically supported and had contributed to the over criminalization of African Americans over the years. A few years ago, the federal government took a step in the right direction and decreased the disparity between the two drugs. In 2010, lawmakers reduced the crack/cocaine disparity to about 18 to 1. While still far from equal, this was a welcome step by many because it showed willingness to compromise on the issue. These changes went into effect on November 1, 2011.
Retroactivity of the Amendment
Once the lawmakers decided that the sentencing scheme was not fair as written, and that it needed to be rewritten to reduce the disparity, that raised another question: Can it be retroactively applied?
Unfortunately, despite the passage of the Fair Sentencing Act, there are thousands of people — the vast majority of whom are African American — still in prison serving excessive sentences based on the discredited 100:1 sentencing disparity. In May of this year, a majority panel of the Sixth Circuit concluded that it was unconstitutional to allow thousands of already incarcerated offenders to continue to serve extremely long sentences based on the 100:1 disparity, while allowing offenders – who have committed identical crimes – to receive significantly shorter sentences, based on the 18:1 sentencing calculation, simply because they were sentenced later.
However, this decision has been appealed. We are still awaiting a decision. I am wondering if the 6th Circuit overstepped its power. I seem to remember congress being the only branch of government with the power to retroactively apply a statute.
To find out if you are eligible for a sentence reduction, you should contact an experienced criminal defense attorney to discuss the specific facts of your case.
Have You Been Charged With the Possession of Crack or Cocaine Base?
If you have been charged with a federal drug offense, you are facing some serious jail time. The best thing to do is to ensure that you have the assistance of an experienced New Orleans federal criminal defense attorney as soon in the process as possible. The longer your attorney is able to work on your case, the better the chances are of negotiating the case out of court and avoiding the expense and stress of trial.
New Orleans Federal Defense Attorney
This past week, a former LSU football player pled guilty to Bank Fraud in the US Court for the Eastern District of Louisiana. Lucky for him, Robert Packnett avoided jail time and was sentenced to 5 years federal probation. He was also ordered to pay approximately $233,000 in restitution. His indictment to Bank Fraud arose from the practice of Mortgage Fraud. According to the indictment, between 2011 and 2012 he submitted doctored documents to First NBC Bank overstating his income. He also applied for at least six mortgages, refinanced mortgages and commercial lines of credit. In order to qualify for these mortgages, Packnett had to submit proof of income; he submitted documentation overstating the monthly rental payments he received from tenants, as well as claiming income from properties that were in fact vacant.
Bank Fraud – 18 USC § 1344
What is Federal Bank Fraud?
Whoever knowingly executes, or attempts to execute, a scheme or artifice-
(1) to defraud a financial institution; or
The criminal law elements of a violation of 18 U.S.C. § 1344 (1) bank fraud which must be contained in an indictment and must be proved by the government beyond a reasonable doubt are as follows:
- The defendant knowingly executed or attempted to execute a scheme or artifice to defraud.
- The defendant did defraud or attempt to defraud the financial institution.
- The defendant used a material misrepresentation or concealment of a material fact as part of the scheme or attempted scheme.
- The financial institution was insured or chartered by the federal government.
The criminal law elements of a violation of 18 U.S.C. § 1344 (2) bank fraud which must be contained in an indictment and must be proved by the government beyond a reasonable doubt are as follows:
- The defendant knowingly executed or attempted to execute a scheme or artifice to obtain the money (or other property) owned by, or under the custody or control of, a financial institution.
- The defendant used materially false or fraudulent pretenses, representations, or promises in the execution or attempted execution of the scheme.
- The financial institution was insured or chartered by the federal government.
There are a number of other federal statutes prohibiting fraud against banks or other similar financial institutions, including, but not necessarily limited to, the following:
- 18 U.S.C. § 1004. Certification of checks.
- 18 U.S.C. § 1005. Bank entries, reports and transactions.
- 18 U.S.C. § 1006. Federal credit institution entries, reports and transactions.
- 18 U.S.C. § 1007. Federal Deposit Insurance Corporation transactions.
- 18 U.S.C. § 1013. Farm loan bonds and credit bank debentures.
- 18 U.S.C. § 1014. Loan and credit applications generally; renewals and discounts; crop insurance.
- 18 U.S.C. § 1029. Fraud and related activity in connection with access devices.
- 18 U.S.C. § 1032. Concealment of assets from conservator, receiver, or liquidating agent of financial institution.
If you or a loved one has been indicted for Bank Fraud call White Collar Defense Attorney.
Federal Trafficking Penalties for Schedule II Cocaine
FOR: Schedule II Cocaine — 500-4999 grams mixture Or
Schedule II Cocaine Base – 28-279 grams mixture
First Offense: Not less than 5 yrs. and not more than 40 yrs. If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $5 million if an individual, $25 million if not an individual.
Second Offense: Not less than 10 yrs. and not more than life.
If death or serious bodily injury, life imprisonment. Fine of not more than $8 million if an individual, $50 million if not an individual.
FOR: Schedule II Cocaine – 5 kilograms or more mixture Or
Schedule II Cocaine Base – 280 grams or more mixture
First Offense: Not less than 10 yrs. and not more than life. If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $10 million if an individual, $50 million if not an individual.
Second Offense: Not less than 20 yrs, and not more than life. If death or serious bodily injury, life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.
2 or More Prior Offenses: Life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.
If you are facing federal drug trafficking charges, contact Attorney Elizabeth Bagert Carpenter. She is a highly skilled New Orleans Drug Crimes Attorney. We are ready to fight for you!
What To Do After Receiving a Federal Indictment
A federal indictment is a formal legal document that charges an individual with a federal crime. Usually, an indictment is issued after a grand jury convenes and determines that there is probable cause to believe that the subject of the indictment committed the crime in question.
This is slightly different than in state court, where a judge usually determines if there is probable cause. Prosecutors actually have a harder job in federal cases, because, instead of convincing one judge that there is probable cause, the prosecutor must convince an entire jury. With that said, because federal indictments are difficult to obtain, often they are only sought by federal prosecutors when they think that they can obtain one, i.e, when they have a strong case. Because of this, criminal cases in federal court have an extremely high conviction rate, above 90% in most jurisdictions.
If You Have Been Federally Indicted…
Have you been issued a federal indictment? If so, this is an extremely serious time in your life. Many federal crimes have the potential to result in long prison sentences. Combine that with the high conviction rate in federal court and it equals a serious situation for the federal criminal defendant. Everything must be done to increase your chances acquittal or, if that is not an option, create a strong case for mitigation.
Receiving a federal indictment, while serious, does not mean that one should give up hope and succumb to the wishes of the prosecutor. There is always something to benefit from having an experienced federal defense attorney at your side throughout the entire federal criminal proceeding.
First, an experienced federal defense attorney can determine what defenses may be applicable in your specific circumstance. For example, evidence seized illegally under the 4th Amendment must be suppressed and cannot be considered by the court. In many cases where evidence is suppressed, the charges get dropped. Other cases may hinge on the reliability of scientific evidence; so even if it seems like hope is lost, that isn’t necessarily the case.
In some cases the prosecutors have a strong case. In these situations, an experienced attorney can create a strong case for mitigation, hoping to convince the sentencer to be lenient and sentence the defendant in the lower range of the sentencing guidelines.
The bottom line is that being federally indicted is a serious matter, but not so much that one should give up hope. There is always something that can be done to increase the chances of acquittal or at least the opportunity to convince the court to implement a fair sentence.
If you have been issued a federal indictment, you need to consult with an experienced federal criminal defense attorney. Doing so will ensure that you are well represented during what is likely going to be the most important, stressful time of your life.
Federal Cyber Crimes Defense Attorney
Federal Computer Crimes, Cyber Crime, Internet Crimes
Internet crimes are on the rise, and have been for years. Due to the popularity of this form of doing business, new forms of defrauding people through this medium have emerged. Since the crime can originate anywhere, these offenses are often considered to be federal offenses, which can have much harsher penalties. They are also pursued vigorously by law enforcement, due to the sharp increase in these types of crimes.
Some of the types of Federal Internet Crimes that we can assist you with include:
- Internet Sex Crimes
- Credit card fraud
- Illegal downloading
- Identity Theft
- Internet Fraud
- Computer Hacking
- Internet Pornography
- Computer Crimes against a Child
- Cyber stalking
The area of internet crimes is complex and can involve not only local authorities, but State and Federal as well. Depending on the crime you are charged with, there may be several counts of wrongdoing to contend with. The specific penalties that a defendant faces for a federal computer crime conviction will vary depending upon the particular offense. For example, while imprisonment may be a common denominator for all computer crimes, heavy fines and victim restitution are more likely in a case involving fraud and sex offender registration will likely be mandatory in a case involving child pornography. You will need the experience and expertise of a highly skilled criminal defense attorney to ensure your defense is properly formulated.
Explanation of DEA Controlled Substance Schedules
If you or a loved one has been arrested for a drug related crime, contact Elizabeth B. Carpenter — New Orleans Drug Crime Defense Attorney for a consultation.
The drugs and other substances that are considered controlled substances under the Controlled Substance Act (CSA) are divided into five schedules. A listing of the substances and their schedules is found in the DEA regulations. A controlled substance is placed in its respective schedule based on whether it has a currently accepted medical use in treatment in the United States and its relative abuse potential and likelihood of causing dependence. Some examples of controlled substances in each schedule are outlined below.
Schedule I Controlled Substances
Substances in this schedule have a high potential for abuse, have no currently accepted medical use in treatment in the United States, and there is a lack of accepted safety for use of the drug or other substance under medical supervision.
Some examples of substances listed in schedule I are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), peyote, methaqualone, and 3,4-methylenedioxymethamphetamine (“ecstasy”).
Schedule II Controlled Substances
Substances in this schedule have a high potential for abuse which may lead to severe psychological or physical dependence.
Examples of single entity schedule II narcotics include morphine and opium. Other schedule II narcotic substances and their common name brand products include: hydromorphone (Dilaudid®), methadone (Dolophine®), meperidine (Demerol®), oxycodone (OxyContin®), and fentanyl (Sublimaze® or Duragesic®).
Examples of schedule II stimulants include: amphetamine (Dexedrine®, Adderall®), methamphetamine (Desoxyn®), and methylphenidate (Ritalin®). Other schedule II substances include: cocaine, amobarbital, glutethimide, and pentobarbital.
Schedule III Controlled Substances
Substances in this schedule have a potential for abuse less than substances in schedules I or II and abuse may lead to moderate or low physical dependence or high psychological dependence.
Examples of schedule III narcotics include combination products containing less than 15 milligrams of hydrocodone per dosage unit (Vicodin®) and products containing not more than 90 milligrams of codeine per dosage unit (Tylenol with codeine®). Also included are buprenorphine products (Suboxone® and Subutex®) used to treat opioid addiction.
Examples of schedule III non-narcotics include benzphetamine (Didrex®), phendimetrazine, ketamine, and anabolic steroids such as oxandrolone (Oxandrin®).
Schedule IV Controlled Substances
Substances in this schedule have a low potential for abuse relative to substances in schedule III.
An example of a schedule IV narcotic is propoxyphene (Darvon® and Darvocet-N 100®).
Other schedule IV substances include: alprazolam (Xanax®), clonazepam (Klonopin®), clorazepate (Tranxene®), diazepam (Valium®), lorazepam (Ativan®), midazolam (Versed®), temazepam (Restoril®), and triazolam (Halcion®).
Schedule V Controlled Substances
Substances in this schedule have a low potential for abuse relative to substances listed in schedule IV and consist primarily of preparations containing limited quantities of certain narcotics. These are generally used for antitussive, antidiarrheal, and analgesic purposes.
Examples include cough preparations containing not more than 200 milligrams of codeine per 100 milliliters or per 100 grams (Robitussin AC® and Phenergan with Codeine®).