Gentle readers, As you know, we’ve had precious little content here at the Federal Criminal Appeals Blog. So, starting this week, we’re trying something new – having other folks write posts. Please let us know how we’re doing with this. Feel free to send me an email with feedback. Please let me know what you think. And you’ll see bio information for the authors who are writing here – feel free to reach out to them as well. It’s an experiment. Sometimes they work, sometimes they don’t. I’m hopeful on this one. And it’s better than the blank space this blog has been. Enjoy!
New Authors
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HOW PROSECUTORS CONTROL & DIRECT AMERICAN FEDERAL GRAND JURY INDICTMENT DELIBERATIONS
In a well-known yet hidden truth of federal criminal law, federal grand jury's don't indict people - federal prosecutors do. It's the United State's prosecutors aided by government agents from the FBI, the DEA and fraud inspectors from a variety of Government agencies who bring cases to American grand jurors and direct the deliberations until the desired indictment is delivered. Grand Jury with victorious Prosecutor after delivering IndictmentThe grand jury hears only the evidence deemed worthy by the government. In practical terms this means that unless the prosecutor does not want an indictment, little or no evidence that could help the defendant will ever be given to members of the grand jury. It's an unfair process, but of course it's meant to be. The objective of an effective prosecutor is first to mold the charging document or indictment. During that process the prosecutor seeks to iron out or at least gain useful knowledge of…
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NON-CITIZEN DEFENDANTS, BEWARE! COURTS NEED NOT WARN YOU ABOUT THE IMMIGRATION CONSEQUENCES OF YOUR GUILTY PLEA
Decades ago, when a non-U.S. citizen was convicted on a charge such as DUI, their lawyer could tell them not to worry about their immigration status. It was highly unlikely that the government would bother to deport you. Those times have changed. Now, the potential for deportation must always be considered before making a guilty plea. A recent Illinois court decision has underscored this issue. In People v Guzman, a defendant pled guilty to firearm charges. The trial court asked if defendant was a citizen but did not warn defendant about the immigration consequences of his guilty plea. Defendant later tried to withdraw his plea arguing it was not voluntary or knowing and intelligent because the trial court failed to warn him. The defendant appeared to be supported by Illinois statute, which requires a judge to state: “If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the…
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Dewey & LeBoeuf Case to be Retried
Not surprisingly, New York County District Attorney Cyrus Vance's office has announced it will after a hung jury retry, albeit in slimmed-down form with fewer defendants and counts, the criminal case involving the defunct firm of Dewey & LeBoeuf's alleged...
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Theft Charge Dismissed For Woman Seeking U.S. Citizenship
Attorney Daniel Sabol recently represented a middle-aged woman after she was charged with shoplifting from a department store in Columbus. The woman was not a United States citizen but was seeking citizenship in the very near future. However, the woman knew that her request would likely not happen with a shoplifting conviction on her record. [...]The post Theft Charge Dismissed For Woman Seeking U.S. Citizenship appeared first on Columbus Criminal Attorney.
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Prosecuting Farook’s Mother and Others Who Remain Silent
There is public demand that family members, neighbors, and those in the Muslim community who were aware of the preparations by Syed Rizwan Farook and his Pakistani wife Tashfeen Malik, should be prosecuted. If those who knew of the preparations, plans, weapons stashes and accumulated pipe bombs had come forward, this massacre may have been averted. Future mass killings could be stopped if people with actual knowledge were prosecuted for failing to alert the police. It should be public policy to prosecute those who knew or were willfully blind to acts of preparations for domestic terrorism. Many people who were near and part of the lives of Syed Rizwan Farook and his Pakistani wife Tashfeen Malik may have known, had actual knowledge, or constructive awareness of the predicate acts to their mass killing. Federal Prosecutors and California authorities are looking into filing charges, but they hesitate. Farook’s live-in mother may not be…
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SPRINGFIELD COURT RULES THAT DRUGS WILL NOT BE SUPPRESSED IN SEARCH AND SEIZURE MOTION
You know the scene. Law enforcement smells illegal drugs, guns or even child pornography. Something illegal. Maybe they are right…and maybe they are wrong. The authorities are banging on your door to check it out. You demand to see a warrant. They don’t have one. You tell them that they are not coming in without a warrant. They beg to differ. Attorney Sam’s Take On Police Intrusion Without A Warrant. “Hey, Sam, this is a ‘no brainier’ for even your most casual reader! Without a warrant, they cannot come in, right?” Well, realistically speaking, no. As a practical matter, should you refuse to open the door, the officers may well simply force their way in whether or not they have a right to do so. “That’s where a motion to suppress evidence come in, right? If the police charge in without a warrant and without consent, then the Commonwealth cannot use whatever evidence they find! Right?” Not necessarily. …
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Texas Executes Raphael Holiday – the 13th Inmate of 2015
The number of executions carried out in Texas has been declining at the same time as the rest of the nation. However, Texas still executes far more prisoners than any other state. When inmate Raphael Holiday was put to death last month, he was the 13th convicted killer to be executed in the state this year. Texas has accounted for ... Read More The post Texas Executes Raphael Holiday – the 13th Inmate of 2015 appeared first on .
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The Beauty and Ugliness of Guantanamo
This week I traveled to Guantanamo naval station, on the southeastern tip of Cuba, to observe the military commission proceedings. So far, the thing that surprises me most about Guantanamo is how beautiful it is. On the beaches here, stones crackle like fireworks as the waves recede over them. Green hills are dotted with yellow flowers. The breeze is the kind that gently stirs your appetite, or tempts you to nap in the shade. But there is an ugliness here. This was a “battle lab” for torture. It remains a place where 107 individuals are held indefinitely, nearly all without charge. And there is a perversity to the fact that in my first full day here, I swam in the water and felt the sun on my face. In as many as 14 years here, these individuals have never experienced this. Last night there was a Christmas parade for the military personnel and their families stationed here. It made me think of men like Toffiq al-Bihani, held not very far from us, but very far from…
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Vehicular Homicide in Florida Can be Committed with Reckless Driving Irrespective of Alcohol or Drugs
In Florida, vehicular homicide is a very serious felony offense that normally results in a prison sentence if the state can prove its case. Most of these cases deal with someone who is driving while impaired from alcohol and/or drugs and causes a traffic crash that results in the death of another person. If the state can prove that the driver was impaired so that his/her normal faculties were compromised, such as sight, judgment, coordination, and the driver causes a crash that results in a death, a vehicular homicide charge will likely follow. There are serious traffic crashes that occur every day in Florida. Most of them are the result of one or more people driving poorly and violating some traffic law causing a crash. People speed, change lanes without looking, run red lights and commit other traffic infractions that result in serious crashes. It is always a judgment call, but if the person who causes the crash commits a routine traffic infraction, criminal charges are…
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Ohio OVI: What Are The Legal Limits?
In Ohio, an OVI refers to the charge of operating a vehicle while impaired by drugs or alcohol. If your Blood Alcohol Content (BAC) and breath alcohol content (BrAC) is .08 or greater, you are considered to be “operating a vehicle impaired.” The .08 figure refers to the concentration of alcohol in your breath or in your blood. There are also “legal limits” for the concentration of alcohol in a person’s blood serum or plasma and urine. For a urine sample, you will be over the “legal limit” if the alcohol concentration in your urine sample is .11 or greater. While Ohio still considers this a valid way to determine alcohol content, many states have done away with urine testing because handling and testing procedures have produced errors. If a blood serum or plasma sample is taken, the legal limit is .096. A test of blood, whether whole blood, serum or plasma, is the most accurate, but such tests must be completed according…
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Indiana Exonerees Struggle Post-Release
Monday’s edition of The Indianapolis Star’s “Stolen Freedom” series focused on the plight of Indiana exonerees who often struggle upon release from prison. No programs currently exist in the state to assist wrongfully convicted residents as they adjust to life on the outside, and the state has no compensation statute. Indiana exonerees must rely on family and friends for help during this challenging transition and must resort to civil litigation for compensation for their years of wrongful incarceration. Kristine Bunch served 17 years in prison for arson and murder until forensic evidence proved she did not set the fire that killed her son. After her release in 2012, she was tasked with restarting her life from scratch. Fortunately, Bunch had help from family and friends but, as she told the Star, a little help from the state would have been appreciated. “It would’ve been really cool to have, you know, a session or two to learn how to…
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It's Not Just Trump -- The Entire GOP Field Is Comprised Of Xenophobic Bigots
Has Donald Trump finally gone too far in calling for a “total and complete shutdown of Muslims entering the United States?” When the likes of Dick Cheney -- the torture-loving, fear-mongering war criminal himself -- thinks this is an inappropriate response to domestic terrorism, it should give one pause. But, really, Trump has done nothing more than take well-honed Republican talking points to their logical ends. His exploitation of the public's fear in the wake of the violence in Paris and San Bernardino (but not Colorado Springs) to fire up Republican voters with hateful, xenophobic rhetoric is right out of the standard Republican playbook.Trump's latest comments are perfectly consistent with his campaign strategy that seeks to appeal to the worst aspects of the American psyche and are of a piece with his other abhorrent proposals -- building a wall between the U.S. and Mexico,…
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Justice Department announces $3.5 billion in False Claims Act recoveries for 2015
On December 3, the Department of Justice announced that during 2015, it had recovered more than $3.5 billion under the False Claims Act. According to DOJ’s press release: The Department of Justice obtained more than $3.5 billion in settlements and judgments from civil cases involving fraud and false claims against the government in the fiscal year ending Sept. 30, Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department’s Civil Division, announced today. This is the fourth year in a row that the department has exceeded $3.5 billion in cases under the False Claims Act, and brings total recoveries from January 2009 to the end of the fiscal year to $26.4 billion. * * * Of the $3.5 billion recovered last year, $1.9 billion came from companies and individuals in the health care industry for allegedly providing unnecessary or inadequate care, paying kickbacks to health care providers to induce the use…
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'Tis the season for DUI checkpoints
You might call them roadblocks, license checks, safety checks but to me, they’re checkpoints. In Georgia, the police can set them up virtually anywhere, any time. This time of year, metro-Atlanta agencies will be checking you like Santa is checking his naughty/nice list. If you see what looks like an accident at an intersection up ahead, it may be a checkpoint. Before you get discouraged at the slow-moving traffic and you make a safe U-turn, understand that the police probably have a “chase” car watching for you, and they will pull you over if it looks like you’re avoiding the checkpoint. When you go through the checkpoint, have your license ready. Be polite and calm and since you haven’t been drinking anything, Officer Friendly will waive you through. If you have been out and have been drinking alcohol, Officer Friendly can probably smell it before you admit imbibing. This is when it’s important to exercise your constitutional right to…
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The Job of an Orange County DUI Attorney Gets More Difficult
Driving under the influence (DUI) is a crime that most of us associate with alcohol. As anyone who has ever had experience with alcohol knows, the symptoms of alcohol intoxication are easy to spot: problems with balance and coordination, slurred speech, and bloodshot and watery eyes. The familiarity that we have with these symptoms makes DUI cases involving alcohol easy for any prosecutor to explain to a jury. This is not the case with DUI involving drugs (DUID). California Vehicle Code Section 23152(e) makes it a crime to drive while under the influence of drugs. While that seems simple enough, the truth is that there are countless ways that drugs can affect your ability to drive. This law applies to both legal and illegal drugs, meaning that the number of substances for which you can be prosecuted for driving while under the influence is virtually limitless. However, unlike alcohol, there is no corresponding “legal limit” that measures the amount of drugs in your…
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Lack of Front Tires Gives DUI Driver Away
Note to drivers who want to overindulge and drive anyway: If you are trying to avoid getting nabbed on a Los Angeles DUI charge, make sure that all the important parts of your vehicle are intact before you head down the road. If police spot you driving a vehicle without some vital part—like, say, front tires(!!)—they just may get suspicious and pull you over. To wit, Fox 32 in Chicago recently reported about the arrest of Marco A. Nieves, who hails from the northwest side of the Windy City. A police officer in the suburb of Riverside spotted Nieves around 4 a.m. on the morning of November 29th. Nieve’s car had heavy front-end damage and was missing the two front tires. Although Nieves allegedly had been traveling slowly, the metal rims of the car were throwing sparks. When the officer pulled Nieves over, the 46-year-old reported, in slurred speech, that he had been in an accident. Blood on his shirt seemed to confirm the story. Police, noting his glassy eyes…
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Is A Rising Blood Alcohol A Defense To DUI In California
THE “RISING BLOOD ALCOHOL” DEFENSE If you are arrested for driving under the influence of alcohol and your blood alcohol level is only slightly above the legal threshold of 0.08%, your attorney might consider what is called the “rising blood alcohol” defense. Without getting into the scientific details, this defense asserts that at the time you were driving, your blood alcohol level was lower than the level you registered at the time of your arrest. Depending on a number of circumstances including your weight, whether you were drinking on an empty or full stomach, and other factors, the alcohol you imbibe can take 30 minutes to an hour or more to rise to its peak blood alcohol level in your body. Using a hypothetical example: A 180-pound man has 3 drinks over the course of a two-hour meal. Immediately after his last drink, he gets in his car and after driving for five minutes is stopped by the police. About 20 minutes after the stop, the police arrest…
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THE CRIME RATES CONTINUE TO DECREASE IN CALIFORNIA
The California Attorney General is responsible for collecting and analyzing yearly crime data for the State of California. Guess what? Crime is down in California – way down! According to the Attorney General’s statistics for the most recent year studied (2014) crime has decreased in number and rate in almost every category. Some crimes have seen big rate decreases (per 100,000 population) from 2013 and when compared to earlier, the declines are even more pronounced. In fact, 2014’s violent crime rate is at its lowest since 1967! If we compare the crime rates from 2009 to 2014, the decreases in some categories are dramatic. For example, the homicide rate has decreased 17 percent from 2009 to 2014, robbery has decreased in the same years by a whopping 26.8percent! In fact, for all the major violent crime categories (homicide, rape, robbery, and aggravated assault) and major property crime categories (burglary, motor vehicle theft, and larceny) the rates…
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Minnesota May Increase First Responder Inference Penalties
A Minnesota lawmaker plans to submit a new proposal during the next legislative session that would increase penalties for individuals who interfere with medical personnel and first responders rendering aid. Rep. Pat Garofalo, R-Farmington said the Public Safety Personnel Protection Act will be the first bill he’ll submit when the next legislative session opens on March 8. Garofalo’s proposal would make it a felony for anyone to interfere with emergency medical services, even if the altercation does not involve a physical assault. “Emergency responders should not have to fear for their safety when responding to a medical emergency,” Garofalo said. “Under this proposal, there will be zero tolerance for jeopardizing public safety. Zero.” Under the current law, anyone who interferes with emergency responders or an ambulance crew can be charged with either a misdemeanor, gross misdemeanor or felony depending on the specific circumstances of the…
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