Articles Posted in Federal Crimes

Published on:

Darth Vader of Death Star, Space, 45 years old, was indicted last week in the Middle District of Florida for allegedly violating the RICO act, Conspiracy, Committing Acts of Terrorism Transcending National Boundaries, Murder, loitering and prowling, and finally, wearing a mask on a public way. Mr. Vader has long been thought to be a vital cog in the “Dark Side” organization but has to date avoided capture or criminal charge, instead going unscathed while various ranking storm trooper underlings faced a variety of criminal charges including trespass and drunk and disorderly conduct. While the Federal Bureau of Investigation and the United States Attorney’s Office have remained tight-lipped with respect to the evidence against Vader, many believe this could be it for the Dark Lord.

While it may seem to many a slam-dunk to earn a conviction against Mr. Vader, Mr. Vader’s legal counsel doesn’t think so. When asked, Mr. Vader’s lead defense counsel, Tampa criminal attorney Jason Mayberry indicated that while it may indeed be more difficult to defend against the loitering and prowling charge, it may prove to be an uphill battle in proving the terrorism charge, given a lack of eyewitnesses to Mr. Vader himself ordering or committing any act of terrorism under 18 USC 2332b. With respect to a potential conspiracy charge under 18 USC 371, Mayberry points out that there are no known remaining witnesses to attest that there was agreement to achieve an unlawful objective, that Mr. Vader knowingly and voluntarily participated in the conspiracy, and that Mr. Vader committed an overt act in furtherance of the conspiracy. United States v. Brenson, 104 F.3d 1267 (11th Cir. 1997); United States v. Suba, 132 F.3d 662 (11th Cir. 1998); United States v. Hansen, 262 F3d 1217 (11th Cir. 2001).

As to a murder charge for the death of Obi-Wan “Ben” Kenobi, Mayberry cites a claim for self-defense within one’s home. According to Mayberry, “it appears clear that Mr. Kenobi entered Mr. Vader’s home with the intent to use deadly force against him. It was Mr. Kenobi who was committing the crime of burglary against Mr. Vader, who was simply using deadly force to defend himself and his friends against the deadly force planned against him by Mr. Kenobi and his lightsaber. Furthermore, there appears to be an argument for a motion to dismiss for lack of jurisdiction in the middle district.” To Mayberry’s point, there are no known treaties between the United States and the Death Star, nor does there appear to be any enabling statutes, akin to the United States Coast Guard patrolling international waters for narcotics, in effect. A quick review of past police reports find that Obi-Wan Kenobi does have a history of brutally attacking Darth Vader leading to severe injury.

Published on:

The St. Louis Cardinals baseball team is under investigation by the FBI and Unites States Attorney’s Office in Houston, Texas for allegedly hacking an Astros player database. The New York Times reports that FBI and Department of Justice officials have evidence that Cardinals officials tapped into a database created by a current Astros exec and former Cardinals exec. According to the Times report, the database contained information on player statistics, scouting information, and internal discussions about players, trades, and other proprietary information. Thus far, both the Cardinals and Astros have been served with subpoenas but no formal charges have been returned against the Cardinals officials responsible for the breach. It is believed that Cardinals officials “gained access to the Astros’ database by using a list of passwords associated with Astros general manager Jeff Luhnow dating to his tenure with the Cardinals from 2003 until he left for Houston after the 2011 season,” according to ESPN reports. Surprisingly, these databases were allegedly accessed using this information from the homes of the Cardinal executives involved.

While this incident is being compared immediately to the Spygate scandal involving the alleged videotaping by the New England Patriots of opponents’ practices, under the surface there is potential that this incident could have far more severe implications through the federal criminal justice system. 18 U.S.C. 1030(a)(4) makes it a federal crime for anyone to knowingly and with intent to defraud, access a protected computer without authorization…. and by means of such conduct further the intended fraud and obtain anything of value. One potential issue that could be raised by a federal criminal lawyer is the element requiring something of “value.” In essence, the question would be is there a value that can be said to be attached to a baseball team’s database compiling information important to the game as it’s played on the field? I would think a federal prosecutor would answer in the affirmative and would consider the information accessed to be congruent to a major corporation’s trade secret. 18 U.S.C. 1839 defines a trade secret, in relevant part, as business information, tangible or intangible, that the owner has taken a reasonable measure to keep secret, and the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by the public. Bringing this all together, under this theory I believe the federal prosecutor would argue that this information is a trade secret, value of which is in the potential for the Astros to properly scout and prepare for their opponents in order to win and ultimately, very likely be more profitable. Essentially, if there is any way the information accessed could contribute to value, it could very likely be considered a trade secret. Conversely, I think a Federal criminal attorney could argue to a jury that there is no way to assign a value to the information as the leap from the information accessed to actual profitability of the team is too far to make it a legitimate trade secret. In other words, what was accessed was not the recipe for Coca Cola or Chic Fil A’s delicious chicken sandwiches. 18 U.S.C. 1030(a)(5)(c) criminalizes the intentional access of a protected computer without authorization, and as a result of such conduct, causes damage and loss. I believe the same argument for both sides would apply here.

What about the good old sweeping charge of wire fraud? Generically, government must prove beyond a reasonable doubt that a defendant (1) used either mail or wire communications in the foreseeable furtherance, (2) of a scheme to defraud, (3) involving a material deception, (4) with the intent to deprive another of, (5) either property or honest services. Bingo! Yet again, the federal prosecutor’s best friend makes a conviction a little easier.

Published on:

Just about every Federal felony carries behind a term of incarceration a period where one is on a probation like status called supervised release. For all intents and purposes supervised release is just like probation in that you will be monitored by a Federal probation officer, will forego certain rights while on supervision, and will have to meet certain requirements laid out by the Court specific to your case in addition to those general requirements for anyone on supervised release. For the most part as long as you mind your P’s and Q’s you won’t have an issue with a potential violation. Should you slip up, depending on the severity of the slip up, you could receive anywhere from nothing more than a stern coming to Jesus conversation from your Federal Probation Officer all the way up to several more years in a Federal prison. Regardless of your violation, because you were on Federal probation, you need to speak to a Federal violation of supervised release attorney quickly to generate a strategy.

A violation of Federal Supervised release occurs when you commit a new crime or you technically violate your supervised release by dropping a dirty urine, miss a meeting with your Federal probation officer, or some other minor type of conduct that technically violates the terms of your supervised release. As with any criminal offense, the sentencing potential is related to the seriousness of the alleged violation. The severity levels are classified as follows:
Continue reading →

Published on:

Kosovo born and now Tampa Bay area resident Sami Osmakac was found guilty last week of the federal crime of attempting to use weapons of mass destruction and knowingly possessing a firearm not registered to him in the National Firearms and Transfer Record. Osmakac’s case received national attention in 2012 when he was indicted after posting videos on YouTube, declaring his intention to blow up highly populated Tampa areas including Hyde Park and Ybor City and then subsequently purchasing non-functioning weapons from undercover FBI agents. According to Tampa news reports, Osmakac claimed to want to set off a car bomb near Macdinton’s Irish Pub in south Tampa as he claimed the area of Macdinton’s is a stomping grounds for sinners and homosexuals. Osmakac cited revenge for the deaths of Osama bin Laden and Anwar al-Awlaki as his rationale for his planned destruction. In spite of his Tampa Federal criminal lawyer’s argument at trial that Osmakac was an easy target for an overzealous law enforcement agency and that he was entrapped as a result, the Tampa federal jury came back guilty on both counts in the 2012 indictment.

While Osmakac wasn’t charged under a terrorism related statute, what he was indicted for is commonly used when one is suspected of committing or attempting to commit a terrorist act on American soil. Specifically a charge that one has attempted to use a weapon of mass destruction requires the Federal government to prove the following:

1. That the Defendant attempted to use a weapon of mass destruction against any person or property within the United States;

2. that the Defendant did not have lawful authority to use the weapon of mass destruction; and

3. the mail or any facility of interstate or foreign commerce was used to further the offense or the property was used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce or any perpetrator traveled in or caused another to travel in interstate or foreign commerce to further the offense or the offense, or the results of the offense, affected interstate or foreign commerce or the offense would have affected interstate or foreign commerce.
Continue reading →

Published on:

In nearly every Federal drug charge I’ve handled in Tampa, my client has been charged as part of a Federal drug conspiracy. Depending on my client’s role or position within the alleged conspiracy, he or she is often approached, through me, to cooperate with the United States Attorney’s investigation in an attempt to bolster their Federal prosecution of co-conspirators or to seek information on other conspirators higher up the in the criminal organization. Depending on the stage of the investigation and very likely my client’s role, the Feds may defer on seeking a Federal Indictment against my client. Considering the Indictment system of charging a crime is a mechanism meant to protect the suspect from unsubstantiated prosecution, there could be risk in waiving the right to a Grand Jury. That said, there could be benefit in waiving that right as well…

Federal Rule of Criminal Procedure 7 states that an offense other than criminal contempt must be prosecuted through a Grand Jury Indictment if the punishment for the offense is death or by jail for longer than one year. In other words, we the people have the right to have a Grand Jury hear charging evidence against us in all Federal felonies. Under Federal Rule of Criminal Procedure 7(b) a defendant may waive a Federal Indictment and be charged by an Information so long as that waiver is made in open court and the waiver of the indictment is made after the defendant has been advised of the nature of the charge against him or her and has been fully advised of their rights. This is generally accompanied by a written waiver of a Federal Indictment that is then filed with the applicable Court.
Continue reading →

Published on:

Many believe this week is the greatest week in all of sports. Work efficiency goes in the can, attention is diverted, and more than 50 million red blooded Americans will be living and dying on whether the sophomore shooting guard from Dingleberry Tech can finish the back half of his two free throws to knock out a national power like Duke or Michigan State. Hopes that are so high in the opening round are often crushed like an egg in round two or three. This, my friends is March Madness. The thrill of not only watching your team play for it all, but also having the chance to win a little cash in your local pool is, in my opinion, one of America’s greatest sports traditions. But are these sports pools legal? Like any other question to a lawyer, the answer is going to be a resounding and useless, “it depends.” Wa wa wa… In all actuality the answer hinges on whether you pay to play.

If you are in a pool where everyone just plays for “fun,” and submits a bracket with no hope of sweet, sweet, beer money victory then you’re going to be ok and you haven’t done anything wrong, other than maybe be a little boring. It is highly unlikely that in this situation you’ll need to buzz your criminal attorney friend after being arrested for violating a Federal or State law or gaming regulation. No reason to get your Mom jeans in a bundle. As a law-abiding attorney, I reside in the village of Mom jeans basketball brackets.

Now, if you, like the other 49,999,995 American basketball tournament fans drop at least a twenty spot in support of your favorite round ballers, you could be in violation of a few Federal and State laws. Back around 1961 our friends up in DC decided to poo in America’s cheerios yet again (see prohibition) by passing the “Interstate Wire Act of 1961” coded as 18 USC 1084. In passing this law, these boring folks made it illegal and punishable by up to two years in the Federal poke to engage in the business of betting or wagering by using a wire communication facility for the transmission into interstate or foreign commerce bets or information assisting a bet. What the hell does that mean? May need a Federal criminal lawyer to figure it out. Where could we find one of those? It means that if you get on the phone, dial up your interweb, shoot a text to your buddy, send an IM, tweet, Facebook a friend, or use any other electronic method that hasn’t been ruled out of this statute, that you could be getting a visit from Federal Officer Friendly. My definition could be a little over or underbroad in reality but you get the gist. Technically you OR your buddy running the pool could get popped under this statute. In all seriousness though, this act was aimed at organized crime to shut down their book making ventures. In all actuality it probably was a decent thing.

What about your buddy that may think he’s a bookie or your favorite sports bar that hosts your favorite March Madness pool? Again, see above. They could also find trouble through the Professional and Amateur Sports Protection Act. This Federal law, codified at 28 USC 3701, makes it illegal for a private individual to run a betting scheme based on a competitive game in which a professional or amateur athlete plays. What this statute also did was fill in gaps left by the Interstate Wire Act of 1961 with respect to intrastate (occurring wholly within a State) gambling activities. The Interstate Wire Act of 1961 only dealt with interstate gambling activities. In other words, the Feds can now slap around those that run our pools for activity completely within our respective State of residence. Organized crime, blah blah blah.
Continue reading →

Published on:

The vast majority of the time if one is charged with a Federal crime they are very likely subject to a considerable amount of incarceration. In some situations it’s possible for a hard working Federal criminal attorney to try their client’s case and earn an acquittal. Unfortunately for a defendant, Federal criminal cases tend to be well investigated and by the time the individual is charged, the United States Attorney has a nearly airtight case with which to work. But what about the minor crime committed by one with a squeaky clean criminal history where the crime is seemingly victimless? State criminal courts have pretrial diversion but do our Federal courts? Surprisingly to some, the answer is yes. So what does it take to get into Federal Pretrial diversion?

As with many facets of a Federal criminal charge, the United States Attorney handling the case has a great amount of discretion as to whether to offer diversion. Should you be lucky enough to have a reasonable and compassionate US Attorney, you must still meet the criteria found within the United States Attorney Manual section 9-22.100. In order to qualify for Federal Pretrial Diversion the US Attorney must choose to divert you should you not: have two or more prior felonies, be a public official or former public official accused of an offense arising out of a violation of the public trust, accused of an offense related to national security or foreign affairs, be accused of an offense that under existing department guidelines should be diverted to the State criminal court system. Should you be lucky enough to get into diversion you will be there no longer than 18 months should you complete the program and will still be required to pay any restitution owed.
Continue reading →

Published on:

As criminal attorneys if we’ve heard it once, we’ve heard it a million times, “the defendant spontaneously admitted to the crime and also told me who is responsible for John F. Kennedy’s assassination.” Ok, maybe not to that extent, but I can’t tell you how many times I’ve read police reports, be it a DUI allegation or a Federal Wire Fraud report, where there is language that my client made admissions. Obviously many people get scared when they’re arrested and sing like canaries, but what about those that may be a little more “experienced” with the system and would never utter a peep to a police officer? What about those instances where a person “spontaneously” told the officer during a traffic stop that they have 14 tons of cocaine stashed in their garage 40 miles away? How can we as attorneys, or a jury really know what happened or what was said between the officer and the defendant without hearing a recording of the conversation?

I recently tried a Federal drug case where a DEA agent recorded in his written report that my client made certain statements that could be viewed as admissions and he later testified as to the same. Despite working for a Federal law enforcement agency with more than enough resources to buy recording equipment, this conversation was not recorded. As an attorney, without the luxury of any audio or video recordings to review, all you can do is try to chip away at the Agent or Officer for not making an effort to record despite the means to do so and attempt to the point across that one who is investigating a case certainly has an interest in the outcome and therefor has some bias. Unfortunately, often a showing of bias from the standpoint of a law enforcement officer and the fact that he didn’t record the conversation isn’t enough to combat Big Badge’s testimony. This happens every day in Courtrooms all across the country and the only way to combat it is to attempt to cross examine the witness and hope that they are taking their oath seriously. Sometimes they do, sometimes they don’t. I’m not alleging that this agent wasn’t truthful in his testimony, however had the conversation been recorded my job would have been that much more difficult as it’s a hell of a lot harder to impeach a recorded conversation than a conversation that’s retold by a witness.
Continue reading →

Published on:

35 year old Haider Zafar, formerly of south Florida is currently residing in Federal custody after being indicted in the Southern District of Ohio for 118 counts of Wire Fraud, 13 counts of money laundering, and one count of filing a false federal income tax return. The meat and potatoes of Zafar’s indictment alleges that he made false representations that his uncle was a high ranking political figure in the Pakistani government, and that Zafar and members of his family knew of several pieces of land in Pakistan that the Pakistani government planned to purchase in order to build military facilities. The nature of Zafar’s alleged scandal was that he told potential investors that they could supply the funds and that Zafar could swoop in and purchase the land prior to the Pakistani government and ultimately sell the land to the government for a very large profit. He would then share the profit with the investors. Things got really interesting at Zafar’s detention hearing earlier this week when investment attorney Andrew Fine testified that Zafar had bilked former and current Miami Heat players out of approximately 8 million dollars in addition to the existent allegation. Specifically, Mr. Fine mentioned former University of Florida star Mike Miller, Rashard Lewis and guard James Jones as victims of Zafar’s alleged impropriety.

Haider Zafar is facing a typical allegation of white collar criminal conduct. As such, his potential sentence, should he ultimately enter a plea, would be driven primarily by the amount of money conned out of potential investors. As alleged thus far via indictment, Zafar is said to have scammed 10 million dollars out of a Washington DC business and if the allegations of his misgivings while living in Florida are true, he could have an additional 8 million dollars added via superseding indictment. Zafar will be facing up to 20 years in prison on his wife fraud counts and 10 years for his money laundering counts. The maximum prison term for his tax evasion allegations is only 3 years or 1 year respectively, depending upon the statute used. For purposes of example of how the Federal Sentencing Guidelines work for cases involving money, we’ll use the wire fraud guideline 2B1.1 as it could apply to Zafar. Because wire fraud has a maximum penalty of 20 years, the base offense level would be a 7. Next, in applying the specific characteristics of this alleged offense, we must attribute the monetary amount scammed. In this case, as it seems to stand currently, that number would be 8 million dollars. As such we must add 20 levels per Guideline 2B1.1(b)(K). Depending on the sophistication of Zafar’s scam, there could be an additional 2 level increase in total offense level under 2B1.1(b)(9)(C). As with any Federal case, should a plea ultimately be entered, the bulk of the work for a Federal criminal attorney is in a proper sentence calculation and the challenges that may accompany. For Zafar, based on the limited information we have, he could score out to 29 levels (87-188 months depending on criminal history category)
before any kind of acceptance of responsibility or other means of reducing his potential sentence. This number does not consider the Florida victims and could get higher should the US Attorney’s Office include them.
Continue reading →

Published on:

Since the beginning of time merchants of services or goods have been quick to toss a patron out of their premises and ask him or her to never come back if said person runs afoul of their rules. It’s common sense for most to know that if you get kicked out of a brick and mortar establishment there is a good chance that you will be “trespassed,” thereby giving you notice that if you come back, you could get arrested. As time passes and technology progresses, the law will have to evolve with it. To “trespass” in the time of our forefathers meant no more than to physically be where they aren’t invited after some form of notice. Back in those days the act of trespassing could upon one’s person, chattel, or physical property. Fast forward to now. With all things tech, a website becomes an interesting new forum for debate on whether or not one can “trespass” on the property of another.

I will preface this blog in that as a low tech criminal lawyer I know about as much about “tech” as I do brain surgery. I do understand that large and common websites like Craigslist can ban an IP range or individual IP address from coming to their site in much the same sense that an establishment can ban an individual or group of individuals from coming to their place of business. In my tiny tech brain I can only imagine a drunken bar patron being kicked out of a big bar in the sky and sent through some kind of multicolored warp tube into never-never land… I digress. So what happens when a person or group that has been trespassed or blocked from a website attempts to come back, using a different or cloaked IP address? As decided in the Craigslist v. 3Taps case, evidently now, at least in the opinion of one Federal District Court Judge, a person who does this runs afoul of the Federal Computer Fraud and Abuse Act (“Act”)! A potential Federal charge? This act is codified at 18 USC 1030. Judge Breyer opines that the Act was violated as applied to the 3Taps case in that 3Taps did intentionally access a computer without authorization and retrieved information from a Craigslist computer that was protected. In rendering his opinion, Judge Breyer compared a website trespass to trespass on private property in saying, “The law of trespass on private property provides a useful, if imperfect analogy. Store owners open their doors to the public, but occasionally find it necessary to ban disruptive individuals from the premises. That trespass law has enforced those bans with criminal penalties has not, in the brick and mortar context, resulted in the doomsday scenarios predicted by 3Taps in the internet context.”
Continue reading →