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Case o' The Week: Novocaine OK, Cocaine Not So Much - Mancuso, Continuing Offenses, and Drug Distribution

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“Mancuso was a dentist who distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana.” Great first line in a good new case on federal drug distribution. United States v. Mancuso, 2010 WL 1811276 (9th Cir. May 1, 2013), decision available here.Players: Decision by Judge Bea, joined by Judge Clifton and DJ Mahan.Facts: Mancuso was a dentist in Billings, Montana. Id. at *1. He was charged in one count (Count II) with distributing over 500 grams of cocaine, beginning in 2002 through 2009. Id. He was also charged with using his home and office as places maintained to distribute cocaine. Id. “Friends” and suppliers testified at trial about Mancuso buying and sharing cocaine over the seven years, in his home, office, and at bars and ski resorts Id. at *2. “I’ll buy and you fly,” was Mancuso’s motto: he would bankroll the cocaine and share it with those who purchased it for him. Id. at *2. Mancuso was convicted after trial, after having made an unsuccessful duplicity challenge to the distribution charges in Count II.Issue(s): “Mancuso’s duplicity claim with respect to Count II, which charged him with a single continuing offense of distributing cocaine between . . .  2002 and . . .  2009 is much stronger. Unlike possession of controlled substances with intent to distribute, it is unclear whether actual distribution may be charged as a continuing offense. This circuit has never addressed directly whether distribution is a continuing offense, although other circuits have held that it is not.” Id. at *7.Held:We agree with the reasoning of the Second Circuit: separate acts of distribution of controlled substances are distinct offenses under 21 U.S.C. §b841(a), as opposed to a continuing crime, and must therefore be charged in separate counts. The government argues that charging all of the acts of distribution in a single count was permissible because these acts ‘could be characterized as part of a single continuing scheme.’ We disagree. Mancuso’s various acts of distribution to random friends and acquaintances, unassociated with each other in any venture or pursuit, over the course of several years and in various locations are not sufficiently related to justify charging him with one count alleging a continuing distribution offense, as opposed with distinct counts for each act of distribution. For these reasons, we vacate Mancuso’s conviction on Count II on the grounds that it was duplicitous.” Id. at *8.Of Note: There’s a surprising number of issues in this sole-defendant case (and not all are as nicely resolved as this “continuing offense” claim). One good result is Judge Bea’s reversal for plain error when the jury wasn’t instructed that they must find a primary purpose of Mancuso’s residence and dentist office was to distribute drugs. Id.at *8-*9. It is an honest and robust reading of the requirements for a “maintaining a place to distribute cocaine” charge (21 U.S.C. § 856(a)(1)). Worth a close read in § 856(a) cases.  How to Use: Judge Bea’s new rule is welcome. Most obviously, it prevents the government from insulating old distribution charges from a statute of limitation challenge by lumping the offenses together as a single-count “continuing offense.” In some cases, it may also permit the defense to “throw” a hopeless distribution count at trial, focus the fight on another distribution charge, hope for a compromise verdict, and try to get under a mandatory-minimum triggering amount. Of course, the new rule doesn’t apply to conspiracy charges, or RICO, or “possession with intent to distribute,” id. at *7, but any win in the drug context is a victory worth trumpeting.                                                   For Further Reading: Former SD Ohio Fed. Public Defender Steve Nolder recently fired himself to save staff from furloughs or lay-offs. Steve was recently featured on the Daily Show, as an example of the impact of sequestration. See video here.  Last week, another Federal Defender joined the ranks of the departed. Respected Missouri Defender Ray Conrad retired years early, to lessen the financial impact of sequestration on his staff. See article here.    Meanwhile, no federal prosecutor in the country will be furloughed. See article here. And Justice is spending $165 million to purchase a new federal prison (so more federal inmates can be incarcerated). Id. Image of cocaine toothache drops from http://www.npbdentist.com/blog/post/and-you-think-you-hate-going-to-the-dentist-now.htmlSteven Kalar, Federal Public Defender N.D. Cal. FPD. Website at www.ndcalfpd.org.

Florida Romeo and Juliet Law Could Get Certain People off the Sex Offender List

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It is certainly not a popular thing to say that the Florida sexual molestation crimes are too severe. However, there is a certain category of sex offender cases that result from overzealous and misguided prosecutions. Consider a situation where an eighteen year old kid, considered an adult under the law, is dating a girl in his school. Maybe they have a class or two together and eat lunch together. They have an open relationship at school and go to the prom together. And then they break up, the girl's parents get mad, the boy gets arrested and charged with a serious felony sex offense, becomes a convicted felon and has to report as a sex offender for the rest of his life and live by the very strict sex offender rules. This has happened in two cases we are aware of. In both cases, the boy and girl were high school students going to the same school. They saw each other in class, in the hallways, at lunch and at school functions. They started relationships openly at school, and none of the teachers, the principal nor any other school personnel had any issue with it. However, both relationships ended, as high school relationships typically do, and someone got the police involved after the fact. The police, and then the state, using poor judgment, decided to arrest the boys for lewd and lascivious molestation based on these open high school relationships. The problem was that in both cases, the boys had just turned 18 years old and were about three and a half years older than their younger, high school girlfriends. In both cases, the boys decided to plead guilty to the lewd and lascivious molestation charges because they got an offer of probation that sounded pretty good when they considered that they faced serious prison time if they went to trial and were found guilty. However, the problem was that both kids were considered to be sex offenders which meant they had to report as sex offenders every year for the rest of their lives. They also had to comply with very strict requirements that are put in place to supervise real sex offenders. In both cases, the defendants came to us well after their cases were finished to see if there was anything we could do to get them off of the sex offender list. In both cases, the boys had graduated high school and gone on to have wives and children. However, they and their families were constantly being harassed due to their very public status as sex offenders. They were adults that had difficult times keeping jobs and owning homes in nice neighborhoods. Fortunately, Florida enacted a law in 2007 to address this situation where young kids in normal high school relationships get permanently thrown into the mix with the kind of real sex offenders the sex offender laws were designed to address. This law is called the Romeo & Juliet law. It says that a person can be considered for removal from the sex offender list under certain circumstances. The person must not have any other sex offense cases on his/her record or anything else causing him/her to register as a sex offender, the age difference in the relationship must not have been more than four years and the younger person must have been at least fourteen years old at the time of the alleged lewd and lascivious act. This Romeo and Juliet law does not cover a lot of sex offender situations. It clearly was not passed to give relief to people who were adults and were convicted of engaging in illegal sexual conduct with children. However, it does provide some sanity to situations where two high school kids get into a relationship and the older one gets arrested and labeled a sex offender for his/her entire life because someone gets angry and the police and the state do not know how to use discretion in their jobs. One other thing of note, while the Romeo & Juliet law was passed in 2007 it applies to anyone who was required to register as a sex offender, even if the incident, the case and the sentencing occurred prior to 2007. If you were convicted of a sex crime under these circumstances in Florida and believe you may fall under the Romeo & Juliet law, feel free to contact us for a free consultation to see if you are eligible for removal from the sex offender registration requirement.

Martin Anthony Brown, Broward County, Florida High School Teacher, Arrested for Having Sex with Student

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Martin Anthony Brown, a Broward County, Florida high school teacher, was arrested Wednesday after he was accused of carrying on a sexual relationship with a then 17-year-old student, news sources report. Brown, 33, was booked into the Broward County Main Jail on one count of contributing to the delinquency of a minor and four counts of sexual assault. A judge ordered that he be held in lieu of $20,500 bail bond. Press sources indicate Brown has hired an attorney. Sources say Brown initially started working for the Broward County School District in August 2007. He started out as a music teacher at Plantation High and began working for Stranahan High as a band director and music teacher in 2010, reports indicate. A spokesperson for the district said Brown has been moved to an administrative role pending trial. "He's not been at the school or around students in recent weeks," the spokesperson said. Reports say Brown and the victim began contacting each other outside of school during a summer vacation; the girl was allegedly 16 at the time. Her identity has not been released to the public. According to reports, the relationship between Brown and the victim appeared to be consensual. However, the age of consent in Florida is 18. School guidelines also restrict teachers from becoming intimately involved with their students. The relationship allegedly started out via text message, which eventually turned sexual. Brown purportedly told the victim in a message that he wanted to "grab her [butt]" and "kiss [you] all over your body." The messaging turned into phone calls sometime later, sources indicate. The first alleged sexual encounter occurred right after the victim's 17th birthday. The pair reportedly had sex at Brown's home on Oak Garden Lane in Hollywood. Following the encounter, the victim claims she would skip classes to spend time with Brown in his classroom during school hours. The victim said her and Brown would occasionally "make out" in Brown's classroom. School officials first learned of the relationship on March 15 and began their own investigation, reports say. Police learned of the alleged offenses on April 2 and arrested Brown on Wednesday. During a court hearing following his arrest, a judge ordered that Brown stay off school grounds. Sources say around 12 teachers from Broward and Palm Beach counties have been arrested for alleged sexual affairs with students since 2010. "It's devastating. It's a violation of boundaries. It's a violation of trust and power," a psychologist spokesperson said. "Parents trust that their children are going to be safe when they go to school."

Victor Vidal of Boynton Beach, Florida Arrested for Traveling to Meet a Minor for Sex

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Victor Vidal of Boynton Beach, Florida was arrested Thursday for allegedly trying to meet a 16-year-old for sex, news sources report. Vidal, 31, was booked into the Palm Beach County Jail on charges of traveling to meet a minor for sex, child exploitation, computer pornography, and transmitting harmful material to a minor. It is unclear whether he qualified for bail bond. Reports did not specify a lawyer for Vidal. The investigation began on January 22 and involved an undercover officer posing as a 16-year-old boy on a social networking site, sources say. Vidal sent an undercover officer a message on a social networking site and, during conversations that occurred over a two-week period, Vidal allegedly sent the undercover office images of himself and asked personal questions. Over time, the conversations turned sexual in nature, reports say. Vidal allegedly sent photos that depicted men in sexual situations with one another, as well as other pornographic images. On Thursday, Vidal allegedly agreed to meet the "teenager" at an undisclosed meeting spot. When Vidal got to the specified meeting point, however, he was met by detectives instead of a minor. Following his arrest, Vidal admitted that he arrived at the location to meet a minor, sources say. Vidal also reportedly admitted to sending pornography to someone he thought was a teen. Detectives say Vidal is the second person arrested this past week on similar charges. Julian J. Frankel of Boynton Beach was arrested Tuesday after he attempted to solicit a minor for sex using the Internet, reports say. The "minor" in that case was also an undercover detective. Frankel was booked into the Palm Beach County Jail on unspecified charges. It is unclear whether he qualified for bail or hired legal representation. Further information on the case is pending. In other news, Daylen E. Holloman of Daytona Beach was arrested Wednesday after he allegedly stripped naked in the presence of a police officer. Holloman, 20, was booked into police custody on charges stemming from the incident. It is unclear whether Holloman qualified for bail or hired legal representation. According to reports, the incident occurred around 12:30 early Wednesday morning at a 7-Eleven in Daytona Beach. Police responded to the scene after receiving a call about a suspicious person at the store. A responding officer asked Holloman to sit on the curb while he questioned him.

Fatal Injury Crash in American Falls, ID

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IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- Idaho State Police District 5 5205 South 5th Ave. Pocatello, Idaho 83204-2299 (208) 236-6466 FAX: (208) 236-6068 For Immediate Release: 5/5/2013 at 6:45 p.m. Please direct questions to the District Office On May 5, 2013, at approximately 6:44 a.m., Idaho State Police investigated a fatal injury crash near Falls Ave. and Bridge St., in American Falls, ID. Phillip J. Pena, 28, of Poctello, ID., was driving west on Falls Ave. in a 1992 Toyota Previa van. The van struck a rock barrier. Pena was not wearing a seatbelt. Pena was pronounced dead at the scene. Next of kin has been notified. The investigation is continuing. -------------

Texas House edging toward prison closures but doesn't want data on mentally ill in solitary confinement

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The big news out of the vote on yesterday's TDCJ Sunset bill, reported the Texas Observer was an amendment related to prison closures:on Saturday an amendment by conservative Weatherford Republican Phil King will require the department to prioritize closing the most costly private prisons over less-expensive ones (in a “cost-benefit analysis,” as King put it).Quite a few Republicans have embraced a smart-on-crime approach and believe that mass incarceration, especially of nonviolent offenders, is not only fiscally irresponsible, but doesn’t reduce crime. Tan Parker (R-Flower Mound), chair of the House Corrections Committee, said, “It is our intention here to be fiscally responsible. … I believe it is very important that we close at least two facilities, if not more.” “Thankfully, it’s a good situation that we find ourselves in Texas, that crime is on the decline,” he said.That vote on its face seems to contradict the decision by House budget writers not to close prisons this year and in fact to purchase an extra unit the state doesn't need. Chairman Parker's call for closing "at least two facilities" makes Grits optimistic that the conference committee on the budget will side with the Senate side to close two prisons.Rep. King's amendment, I suppose, could complicate which units get closed. Senate Criminal Justice Committee Chairman John Whitmire has argued for closing the Dawson State Jail in Dallas and a pre-parole facility in Mineral Wells. There are several elements to consider when judging which units to close: Not just cost is important but also the ability of the agency to adequately staff the unit (many rural units are chronically understaffed), which units deliver inadequate medical care, which ones have the most heat-related deaths, whether the unit has suffered chronic contraband or corruption problems, and whether there are higher, better uses for the existing property, among others. There's nothing wrong with using cost as guidance but it shouldn't be the sole factor. To me, closing Dawson and Mineral Wells should be a foregone conclusion and by now we should be discussing which units to close next.Not all went smoothly yesterday, though. The El Paso Times has the story of another amendment that regrettably didn't get on in a blog post titled, "House doesn't want to know about mentally ill in solitary." Here's the gist:Rep. Marisa Marquez, D-El Paso, proposed an amendment requiring the department to report the cost and other informaion regarding prisoners in solitary. The amendment failed 59-68. Clearly outraged, Marquez told her colleagues that solitary confinement is one of the most expensive, least effective ways to treat mental illness. Didn't legislators  realize that these same inmates are being released into their constituents' neighborhoods - usually with no assurance that they're getting care they need, she demanded. After the vote, Marquez fumed that so many of her colleagues claimed to be fiscally conservative, yet they didn't want to know more about a major expenditure by a prison system that is the third-most expensive item in the state budget.RELATED: A plea to Texas budget conferees: Close two prison units, don't buy empty cells we don't need.

Special Considerations for Business Owners Going through Divorce

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Today’s guest blogger is Scott Morgan, a Texas divorce attorney. Scott is the founder of the Morgan Law Firm and is board certified in family law by the Texas Board of Legal Specialization. Today he shares his thoughts on the special issues business owners face in a divorce case. It goes without saying that when [...]

How long does the prosecutor have to file charges on Boating Under Influence charges in Washington State?

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The State of Washington or Municipal Prosecutor has one (1) year from the date of the incident to file charges. Boating Under the Influence (BUI) is a misdemeanor with a maximum ninety (90) days jail and one thousand ($1000) in...

Top-Ten Recent SSRN Downloads

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in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 4420 The Dangers of Surveillance Neil M. Richards, Washington University in Saint Louis - School of Law, Date posted to database: March 25, 2013 2...

NY - New York Needs a Gun Offender Registry

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Original ArticleIf the online sex offender hit-list is "constitutional," then we should have an online registry for all criminals, but simply owning a gun is not a reason to put someone on the registry.05/03/2013By Ruben Diaz Jr.The following op-ed is co-authored by City Council Member Peter F. Vallone of Queens, who serves as that body's chair of the Public Safety Committee From Newtown, Conn., to Aurora, Colo. -- and all the way to the Bronx, Queens and the other boroughs of this great city -- gun violence is a plague on our communities. During the past several months since the tragedy at the Sandy Hook Elementary School, leaders from across the city, state and nation have been offering ideas to combat gun violence and restrict access to military-style assault weapons. The majority of these ideas have focused on changing the laws regarding legal gun ownership. But we must be willing to take a different step -- one that will target and help combat the threat of illegal guns used by violent criminals to terrorize our neighborhoods. We must keep the spotlight of the law on these offenders, even after they are released by the court system. That is why we have joined together to support the creation of a statewide gun offender registry, which would be an expansion of the one created in New York City in 2006 by Mayor Bloomberg, Speaker Quinn and Council Member Vallone -- the first ever of its kind. This measure would provide police across New York with one of the resources the NYPD and Commissioner Ray Kelly have used to bring murders in the City to the lowest recorded number in history. The statewide registry would include similar reporting requirements to New York State's existing sex offender registry. It would keep the names of people convicted of crimes involving guns on the registry for at least 10 years, and require offenders to check in regularly with local police. Failure to perform any of the registration obligations would be considered a felony level crime.- Why not for life like ex-sex offenders, who by the way, have a lower re-offense rate!Continue reading...© 2006-2013 | Sex Offender Issues

"Retroactivity and Crack Sentencing Reform"

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The title of this post is the title of this new paper by Harold Krent now available via SSRN. Here is the abstract: This article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme...

California Man Receives 10-Year Sentence for $17 Million Ponzi Scheme

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A California man was sentenced to ten years in prison for masterminding a Ponzi scheme that duped dozens of investors out of nearly $17 million.  Jeffrey J. Sykes received the sentence from a Texas federal judge after previously pleading guilty earlier this year to two counts of securities fraud.  U.S. District Judge John McBryde also ordered Sykes to pay nearly $17 million in restitution to his victims. Sykes operated Gemstar Capital Group ("Gemstar"), which solicited investors for what was billed as a U.S. Treasury Bill trading program.  In 2006, Sykes met an individual identified only as M.K. while at a golf tournament, telling him that Gemstar was looking to expand its operations by enlisting the services of a brokerage firm to buy and sell U.S. Treasury Bills.  M.K. agreed to assist Sykes, forming a limited liability company known as KCG in order to solicit investors.  Investors were provided with quarterly account statements purpritedly showing consistent account growth.  In total, M.K. and Sykes raised more than $45 million from dozens of investors. However, unbeknownst to investors, there was no U.S. Treasury Bill trading program, and Sykes did not use investor funds as represented.  Instead, Sykes operated a Ponzi scheme, in which money from newer investors was used to pay older investors in the form of interest and principal redemptions.  Additionally, Sykes used a great deal of investor funds for personal expenses.  In a fortunate stroke of luck for investors, at the time Sykes was arrested there remained a great deal of investor funds in money market accounts that allowed investors to receive some of their funds back.

Defendant Not Guilty for Carrying Dirk or Dagger in his Backpack

Notable new Judge Weinstein opinion on child porn sentencing for juve offender

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Over the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available...

Governor Signs Medical Marijuana And Other Bills Into Law

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1380109_the_maryland_state_house.jpgThe 2013 legislative session officially came to an end last month, but 265 bills still awaited Governor O'Malley's signature before they could make the transformation to state laws. The bills covered dozens of different fields of law including health care, environmental law, consumer regulations, education, and of course criminal law. The most notable bills that crossed the governor's desk happened to be right up our alley in the field of criminal law, so naturally those are the bills we will discuss. The blog has followed the progress of state marijuana reformation for the past year, and it seems for there is now a small amount of closure on the topic. The signing of the medical marijuana bill closed the debate until next year's session about how far Maryland was willing to move toward legalization. And to some up what this bill actually means for the state residents, it's safe to say the law is a lot of bark and a little bite.

Don't registered sex offenders need gun rights for personal self-defense more than others?

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The question in the title of this post is my initial reaction to this big newpaper story from Iowa, headlined "50 sex offenders have gun permits: Law enforcement is concerned that state law allows offenders to easily obtain permits." Here...

Texas House votes to require warrants for old emails stored with third parties

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Great news! This afternoon, Rep. Jon Stickland successfully attached a version of his HB 3164, requiring police to obtain warrants for emails stored with third parties (think cloud computing) older than 180 days, to legislation by Rep. John Frullo, HB 2268. Here's how the Dallas News' Karen Brooks Harper described the action, which Grits observed from the gallery:Frullo briefly tried to fend off an amendment by Bedford GOP Rep. Jonathan Stickland that requires law enforcement to get a warrant before they can get emails from an ISP that are over 180 days old. Currently law says that after an email has existed for 6 months, police no longer need a warrant to get it from the ISP – gmail or what have you.But that law was written in the 80s, Stickland pointed out – and a lot has changed since then.“At that time in our state’s history, no one imagined we would have the storage capacity and ability that we have today,” he said. “No one ever thought we’d keep an email for more than 180 days.”But we do, and after six months they become open season, and so Stickland and a handful of other reps pushed for a change that would require police to get warrants for that stuff no matter how old it is.Frullo tried to keep it off his bill simply because the language had already been agreed to by stakeholders and he wanted to keep it clean. But, sensing a revolt on the floor and bipartisan support for the amendment, he dropped his opposition and let it onto his bill to keep it from blowing up on the floor – a common tactic employed by this much-friendlier House.For more background, see a guest column Grits wrote supporting the bill that was published in the Dallas News back in March. The legislation was a key priority of the Texas Electronic Privacy Coalition, with which Grits has been working closely. Though I'm thankful Rep. Frullo accepted the amendment, part of me would have liked to have seen which members would have voted on the record to say police can read your email without a warrant. Apparently  Frullo, like me, suspected their number would be few. In the era of cloud computing, Stickland's amendment makes a lot of sense. Both it and the bill that mirrors it primarily delete and simplify the text of the search warrant section of the Code of Criminal Procedure on stored electronic communications, getting rid of an array of various, antiquated loopholes. Current Texas law (see CCP 18.21, Sec. 4) says police need only a subpoena to access emails older than six months if the target is notified, or if they don't want to notify the target they can get the information under a very permissive standard in federal law - "material" and "relevant." There's similar legislation moving at the federal level to require a warrant for old emails, though with Congress so dysfunctional there's no telling if it will pass. So Stickland's amendment is timely and may even help influence the natinoal debate on the topic. In the modern era, it's ridiculous to let police access old emails without demonstrating probable cause just because they're stored with Gmail instead of on my hard drive.The senate companion to Frullo's bill has already passed in the upper chamber and been referred to the House Criminal Jurisprudence Committee, but without Stickland's amendment. So there's still some i's to be dotted and t's crossed before the amendment is on the final, passed bill. And then the senate author, John Carona, must decide wither to concur. You never know, but my bet is that he spares his colleagues a vote that would put them on record saying police can read people's old email without a warrant and lets the amendment stay on.Congrats to Rep. Stickland and his staff. That's a nice achievement for a freshman legislator. I hope it stays on the bill. See related Grits posts:Protecting email from warrantless government searchesRequire warrants for police to read old email

DUI Crash at Egg & I Spotlights "Drugged Driving" Problem in Las Vegas

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Las Vegas Drugged DrivingLast month's infamous car crash into Las Vegas' Egg & I called public attention to the lesser-known DUI crime of "Drugged Driving." The teenaged driver reportedly took Xanax before passing out at the wheel and colliding into the restaurant, which injured ten people. Highway authorities say people grow tolerant to medication, which then causes them to increase the dosage, which in turn leads to drugged driving. The Egg and I reopened today. Nevada drugged driving laws makes it a crime to drive while impaired by narcotics or controlled substances. People suspected of drugged driving are required to submit to a blood test to determine drug content in his/her blood. Police may use "reasonable force" on suspects who resist taking a blood test.

Conspirators Hid Half-Billion Dollars from Mortgage-Related Losses

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Preet Bharara, the United States Attorney for the Southern District of New York, today announced the guilty plea of KAREEM SERAGELDIN, the former Managing Director/Global Head of Structured Credit in the Investment Banking Division of Credit Suisse Group (“Credit Suisse”). SERAGELDIN was extradited from the United Kingdom on Friday, April 5, 2013, to face charges [...]

After Being Sued, Man Arrested for Another Real Estate Scam

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A Century City man was arrested this morning by FBI special agents after he was charged with running a Ponzi scheme and then bilking another victim out of millions of dollars that he used to pay back earlier victims after the S.E.C. took him to court. Shervin Neman, whose given name is Shervin Davatgarzadeh, 31, [...]
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