Federal Defense Attorney John Teakell

In yet another interesting decision regarding federal sentencing, the United States Supreme Court dropped the hammer again and added another awkward twist to an already tangled sentencing regime.

The Decisions Below

The decision came in the case of Richard Irizarry, who threatened to kill his ex-wife and her relatives. After pleading guilty to making a threatening interstate communication, Irizarry was sentenced to 60 months in prison, which was actually 9 months longer than the federal guidelines’ maximum. The sentencing judge said the extra prison time was based on Irizarry representing a future danger to his ex-wife and family.

The judge that sentenced Irizarry also noted that the advisory status of the guidelines means federal courts are no longer required to give defendants and prosecutors advance notice. Irizarry appealed his sentence seeking relief but the Eleventh U.S. Circuit Court of Appeals agreed with the sentencing judge.

Federal Rule of Criminal Procedure 32(h) does not require Notice of Contemplated Variance

In Irizarry v. United States, No. 06-7517 (June 12, 2008), the United States Supreme Court held that Federal Rules of Criminal Procedure 32(h), which requires a sentencing court to give the parties advance notice that it is contemplating a departure from the Guidelines, does not require the court to give notice of a contemplated variance from a recommended Guideline range.

The Supreme Court further noted that Rule 32(h) was based on protecting a defendant’s expectation that his sentence would be within the applicable Guideline range. However, the Court noted that after United States v. Booker, a federal defendant no longer has the kind of “expectancy” that required notice. Furthermore, the Court was very specific to point out that Rule 32(h) itself referred to “departures” not “variances.”

In somewhat of a contradiction to the ruling, the Supreme Court did note that that district judges should consider granting a continuance of the sentencing when a party has a legitimate basis for claiming that it was illegitimately surprised by a contemplated variance.

Not all of the Justices Agree

In dissent, Justice Stephen Breyer adamantly disagreed with the majority’s decision and declared that “fairness justifies notice.” Breyer quoted Federal Rule of Criminal Procedure 32(h) which  reads:

Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.

Breyer criticized the Court’s finding that the intent of notice can produce unnecessary lengthy delays in sentencing and wrote that notice is “essential to assuring proce­dural fairness.” He further noted that the term variances are consistent with the ordinary meaning of the term “departure” and that the Court’s ruling is contrary to recent precedent.

The United States Sentencing Commission has recently voted to amend several sentencing guidelines, commentary and policy statements. The amendments were sent to Congress on May 1, 2008 and, assuming Congressional approval, will take effect on November 1, 2008.

Introduction to Chapter One

In this amendment, the Sentencing Commission characterizes the role of the guidelines, their evolution, and their relevance in light of recent Supreme Court rulings in Booker, Rita, Gall, and Kimbrough.

Immigration Guideline (USSG §2L1.2)

This amendment alters the definitions of “crime of violence” and “drug trafficking offense” as described in §2L1.2. The amended definition of crimes of violence added an explanation to the definition of forcible sex offenses which reads “including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” The amendment also adds to the definition of drug-trafficking an “offer to sell.” It is believed that both amendments run afoul to several court of appeals decisions. In addition to the changes in definitions, the amendment also includes an upward or downward departure for situations where the guideline offense level overstates or understates the seriousness of the enhancing prior conviction.

Disaster Fraud (amending USSG §2B1.1)

This amendment makes changes to §2B1.1 as it relates to fraud offenses involving disaster relief or emergency benefits, and adds a downward departure provision where a defendant is also a victim of a major disaster or emergency.

New Crack-Marijuana Equivalency Table (commentary to USSG §2D1.1 and §1B1.10)

The amendment to §2D1.1’s commentary changes a section that was created by the former Amendment 706. It proposes a change to the drug equivalency table to provide that 1 gram of crack cocaine is equal to 20 kilograms of marijuana, and then calls for a two-level decrease in the resulting offense level. The Sentencing Commission also proposes that this change be retroactive.

Additional Guideline Amendments

The Commission proposed five additional amendments:

·        It voted to reference offenses under the new 18 U.S.C. § 227 (part of the Honest Leadership and Open Government Act of 2007) to §2C1.1.

·        It implemented the Animal Fighting Prohibition Enforcement Act of 2007 (which creates a new offense and increases penalties for existing offenses) by creating an additional offense level and setting forth a new ground for upward departure in §2E3.1

·        It implemented the Court Security Improvement Act (which creates two new offenses) by adding enhancement provisions to §2A6.1 and §2H3.1. It also adds upward departure and cross-reference provisions to §2A6.1, and cross-reference and definitional instructions to §2H3.1.

·        It created in §2N2.1 an enhancement applicable when a defendant has a prior conviction for an offense under either the Federal Food, Drug, and Cosmetic Act or the Prescription Drug Marketing Act. It also amended this guideline provision to recommend an upward departure where the offense “created a substantial risk of bodily injury or death.”

·        It proposed a number of technical corrections to various guidelines.

The federal government seems to be as relentless as ever in its pursuit to prosecute individuals that are involved with the BALCO steroid investigation. If one is not familiar with the details of the investigation they may think that the government is actually targeting the dealers of steroids. However, this is simply not the case. Nearly every prosecution thus far involving the BALCO investigation has been as a result of the individuals making false statements to the investigators. Lying to a federal agent is a violation of 18 U.S.C. § 1001 and is punishable by up to five years in federal prison and a $250,000 fine.

An Anonymous Tip Backfires

The latest to feel the brunt of the federal government’s wrath regarding the BALCO case is whistle blower Trevor Graham. The investigation at BALCO was actually launched after Graham tipped authorities with an anonymous package containing a used syringe full of a mysterious substance. After an investigation, agents later traced the package back to Graham.

Graham was indicted for making false statements after federal investigators said he lied to them in an interview in 2004 concerning contact he supposedly had with a confessed steroid dealer. On May 29, 2008, Graham was convicted on one count of lying to investigators, but the jury deadlocked on two other charges of making false statements. Graham is scheduled to be sentenced on September 5.

Ironically, Graham was the coach of convicted ex-gold medalist Marion Jones is currently serving a six month prison term for false statements she made to federal investigators involving her use of steroids.

A Star Falls

Perhaps the most notable defendant of the BALCO scandal is baseball homerun king Barry Bonds. A federal grand jury indicted Bonds in November 2007 on four counts of perjury and one count of obstruction of justice, claiming that he lied when he told the grand jury that he did not knowingly use performance-enhancing drugs. On May 13, 2008, federal prosecutors filed an additional 15 felony charges against Bonds in a new superseding indictment featuring 14 perjury counts and one count of obstructing justice. Bonds, has pleaded not guilty to the charges, denied any wrongdoing and has never tested positive for steroids or other banned drugs.

Despite the greater number of counts, the superseding indictment alleges no other false statements than the original indictment. Bonds faces a maximum sentence of five years if convicted but with the way federal sentencing guidelines are structured, it is doubtful that he would serve any additional time if found guilty on the greater number of counts. Bonds trial date has not been formally set but is expected to take place in late 2008 or early 2009.

With the NBA Playoff Finals in full swing, the league is now dealing with accusations that previous playoff games were tainted by referees fixing the outcomes. In a document filed in federal court on June 10, 2008, the attorneys of Tim Donaghy made the claim that a number of NBA referees were in cahoots with each other by altering games. The news leaves many wondering if Donaghy is being truthful just how many games were affected by rogue referees.

The Federal Investigation

Donaghy is a former professional basketball referee who worked in the NBA for 13 seasons from 1994 to 2007. He resigned from the league on July 9, 2007 after the FBI conducted an investigation into allegations that he bet on games which he officiated. Information also surfaced that he made calls affecting the point spread of games. Donaghy was eventually charged by federal prosecutors for a number of crimes related to the FBI investigation.

On August 15, 2007, Donaghy appeared in a Brooklyn federal court and pleaded guilty to conspiracy to engage in wire fraud and transmitting wagering in violation of 18 U.S.C. § 1084(a). During the plea colloquy, Donaghy informed the court that he would tip mafia members to players’ physical condition and player/referee relations. Donaghy also admitted that he had a severe gambling addiction, and is currently seeking treatment for the problem.

Donaghy Cooperates in hopes of receiving Leniency

Donaghy is scheduled to be sentenced on July 14, 2008, and faces up to 33 months in federal prison. However, his attorneys have made a deal with federal prosecutors in hopes of keeping the disgraced former ref out of prison. As part of the deal, Donaghy provided the FBI with information about colleagues who ignored NBA guidelines by wagering on games in casinos and on other sporting events. Donaghy also recently provided information to federal investigators claiming that NBA officials altered the outcomes of playoff series in 2002 and 2005.

Donaghy proffered the information in hopes of having prosecutors file a motion for a time reduction under the federal sentencing guideline Chapter §5K1.1. In a letter filed in Brooklyn federal court outlining Donaghy’s cooperation, assistant U.S. attorneys Jeffrey Goldberg noted to the court that Donaghy had in fact provided substantial assistance which had been valuable to the government’s investigation.

NBA Declines Widespread Misconduct amongst Refs

Shortly after news related to the document filed by Donaghy’s attorneys broke, NBA Commissioner David Stern denied that other NBA officials were involved. Stern hinted at the fact that Donaghy is now a convicted felon and he was merely biding to stay out of prison. “This is part of his desperate attempt to lighten the sentence that will be imposed for his criminal conduct. The NBA remains vigilant in protecting the integrity of our game and has fully cooperated with the government at every stage of its investigation. The only criminal activity uncovered is Mr. Donaghy’s”, Stern said.

If you or a family member have been accused of gambling, contact gambling charges defense attorney John Teakell.

In a pair of decisions issued on June 2, 2008, the United States Supreme Court narrowed the scope of the federal money-laundering statute, 18 U. S. C. §1956. According to reports, the federal government initiates money laundering cases against more than 1,300 people each year. The two decisions will significantly affect any future prosecutions and may impact a number of cases that are currently pending on appeal.

Cuellar v. United States

In the first case, Cuellar v. United States, Humberto Fidel Regaldo Cuellar was arrested on the Texas-Mexican border after agents searched his car and found $81,000 in cash bundled in plastic bags and duct tape. Cuellar was then tried, convicted and sentenced to 78 months in federal prison for his crime.

After an unsuccessful 28 U.S.C. §2255 petition to the district court, Cuellar appealed to the Fifth Circuit Court of Appeals. He claimed that the government did not meet its burden of proving that he possessed the money in an attempt to create the “appearance of legitimate wealth.” This argument was rejected and Cuellar then petitioned the Supreme Court for a writ of certiorari and the Court agreed to hear the case.

Cuellar’s attorneys again asserted the claim to the Supreme Court that the transportation of the money must be undertaken in such a way as to create the appearance of legitimate wealth. The Court did not waste time on this argument and stated that Congress had broad intentions when it created the law, and making funds look legitimate is just one way to launder money. However, the Court found that merely concealing money while transporting it to Mexico was not sufficient evidence of money laundering in and of itself. If it was sufficient to gain a conviction in this manner, then even small-time criminals who put money in their shoe before heading across the border for a night on the town could be charged with breaking the law, the Court added. “How one moves the money is distinct from why one moves the money,” Justice Clarence Thomas wrote in his opinion.

United States v. Santos

In the second opinion, United States v. Santos, the Court held that the statute applies only to transactions involving criminal profits, not necessarily all criminal receipts. The case against Santos originated after he was arrested for conducting an illegal lottery operation in Indiana. A jury found Santos guilty on two gambling counts in addition to the three money laundering charges which the Supreme Court considered. Santos was given five years in prison for his participation in the illegal gambling operation and nearly 18 years more for money laundering.

In its opinion, the Supreme Court noted that Congress did not clearly define in the statue what it meant by “proceeds,” and that it was not the high court’s role to “play the part of mind reader.” The Court ultimately held that the Government’s position that the “profits” interpretation hinders effective enforcement of the law is exaggerated and that the Rule of Leniency applies. The Court concluded: “We interpret ambiguous criminal statutes in favor of defendants, not prosecutors.” Both decisions are considered to be major blows to the federal government’s attempts to battle organize crime and the war on drugs.

If you or a family member has been accused of money laundering, contact federal Dallas money laundering defense attorney John Teakell.

A relatively new border enforcement strategy titled Operation Streamline has dramatically increased criminal prosecutions of immigration violators, pushing the numbers to an all time high. Under the program, federal law enforcement agencies are now prosecuting virtually every person caught illegally crossing some stretches of the United States - Mexico border, even though the charges may only amount to a misdemeanor.

Deterrence is the Goal

Before Operation Streamline was initiated, Mexican citizens caught at the border were usually just fingerprinted and sent back to their homeland without being charged with anything. With federal agents now taking a zero-tolerance approach, officials hope that by being imprisoned and getting a criminal record, a strong message will be sent for people to think twice before immigrating illegally. “The overall goal is to deter immigrants from entering the United States illegally and instead proceed through the proper channels,” said U.S. Secretary of Homeland Security, Michael Chertoff.

Critics Say the Program is consuming too many Resources

Not everyone is giving praise to the federal government for its implementation of the program. According to some critics, the program seems to be consuming too many resources. “Operation Streamline in its current form already strains the capabilities of the law enforcement system past the breaking point,” Melissa Wagoner, a spokeswoman for Sen. Edward M. Kennedy, said. Wagoner also pointed out that there is a huge shortage of jail beds and federal public defenders in areas where the program is operating.

Others note that it is simply poor policy by criminalizing illegal immigration and in turn ignoring the role of employers who provide the jobs that lure immigrants. “This strategy pretty much has it backwards,” T.J. Bonner, president of the National Border Patrol Council said. “It’s going after desperate people who are crossing the border in search of a better way of life, instead of going after employers who are hiring people who have no right to work in this country,” he said.

Expansion Intended

In one of the nation’s hotspots for illegal immigration, authorities in Tucson, Arizona have launched a modified version of the program that they hope to expand in coming months. Chief Judge John Roll of the United States District Court of Arizona said that since January, authorities from Homeland Security departments and the federal courts have worked closely to increase immigration prosecutions. They are currently prosecuting 70 cases a day and hope to reach 100 per day by September. Reaching the 100-case-a-day goal would nearly triple the court’s workload, to more than 20,000 cases. Despite the huge number of prosecutions that effort would address only about 5 percent of the apprehensions made in Tucson last year.

According to Homeland Security, Operation Streamline is now applied in parts of Texas and Arizona, but, it will be soon expanded across other parts of the border too.

The former attorney for assisted suicide doctor Jack “Dr. Death” Kevorkian has been acquitted of federal charges for violating campaign-finance laws. On June 2, 2008, after an eighteen day trial and nearly twenty hours of deliberation, a federal jury found Detroit attorney Geoffrey Fieger not guilty on all ten counts. Fieger’s law partner, Ven Johnson, was also acquitted on all counts.

Ignorance of the Law is an Excuse

The indictment against Fieger and Johnson was based on federal prosecutor’s accusations that both men had illegally funneled $127,000 to fellow Democrat John Edwards’ 2004 presidential campaign. Prosecutors said Fieger and Johnson would recruit employees and others to make contributions for which they later were reimbursed.

The campaign finance law 2 U.S.C. § 441 (f) reads:

No person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person.

Defense attorneys continuously asserted to the jury that their clients did not “knowingly” violate the statute. Although defense attorneys admitted that contributors were reimbursed, they argued to the jury that the pair did not know it was illegal.

Fieger testified at trial that that he and Johnson had no idea they were breaking the law when they recruited 64 people to contribute the funds to John Edwards’ 2004 presidential campaign and reimbursed them with law firm funds. Fieger also testified he researched the law before authorizing the campaign donation reimbursements and concluded that to do so was legal.

Politically Motivated?

Fieger concluded his testimony with a description of a November 30, 2005, raid which was conducted by more than 80 FBI and Internal Revenue Service agents. According to Fieger, the agents “terrorized” his employees and called attention to the raid by alerting local television stations, which he described as politically motivated “thuggery.”

Fieger, a 1998 Democratic candidate for governor, believed that he and Johnson were targeted because of their outspokenness of the Republican Party. After the verdict Fieger spoke, “I hope this puts an end to political prosecution in the age of Mr. Bush.”

Likewise, Johnson also expressed his suspicions that the government was politically motivated in the prosecution of the case. “I think this verdict sends a loud message to the Department of Justice that we know what’s going on … That it is prosecuting personal injury plaintiffs’ attorneys because we support Democrats.”

After the trial, a number of jurors told reporters that they also felt the charges were politically motivated and that federal prosecutors were not able to prove their case. Some said they were convinced Fieger and Johnson were targeted by the Republican-run Justice Department.

Assistant United States Attorney Lynn Helland, who headed the case for the government, disputed claims that the Justice Department targeted Fieger and Johnson. “This was not in the least a politically motivated prosecution,” Helland said. “The case was handled from the beginning by line level attorneys working with line level discretion and established guidelines. The judge found there was no evidence of improper prosecution,” Helland reiterated after the verdict.