Articles Posted in White Collar Crimes

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It was only $23 worth of merchandise. The very charge has the word “petit” in it. Why is this a big deal? The State as offered an adjudication of guilt and nominal court costs, shouldn’t I just accept that and walk away? Not only no, but hell no. Petit theft, or any other variety of crime of dishonesty are snakes in the grass that keep biting long after resolution if not handled correctly. Far too often I receive calls from individuals who resolved a theft allegation to a nominal direct penalty in Court, only to have that decision haunt them for the rest of their lives. Anything an individual does that calls on credibility will be affected by a criminal history reflecting a crime of dishonesty. For that reason, it is absolutely imperative to retain a criminal lawyer well versed with not only the direct consequences of a theft crime, but also the collateral consequences often overlooked.

A common Petit Theft charge is either classified as a first or second-degree misdemeanor, depending on the value of the item alleged to have been taken. If the property is between $100 and $299.99 the petit theft will be classified as a first-degree misdemeanor punishable by up to 11 months, 29 days in county jail and a $1000 fine. If the value is less than $100 the second-degree misdemeanor is punishable by up to six months in the county jail and a $500 fine. For all intents and purposes the State Attorney’s Office will treat petit theft in the same fashion regardless of its misdemeanor level. What often gets overlooked is the fact that an adjudication of guilt to a petit theft could result in a driver’s license suspension and such conviction will remain the basis for disappointment for years to come. Any job application that triggers a criminal background check will yield a reflection that the applicant has a crime of dishonesty. Employers are very hesitant to hire one with a theft conviction in their past for fear that the person will steal from them, or worse, steal from a customer resulting in reputation damage or the threat of a lawsuit. Obtaining a mortgage or housing as a renter could be made exponentially harder if a background check reveals a theft charge. Any lender or landlord must rely on the credibility of the individual tasked with paying a loan or rent. The simple fact is, those with criminal histories involving theft crimes are going to have a hell of a lot harder time finding housing due to potential issues with credibility. For those that seek higher education and an ultimate licensure, having a crime of dishonesty on your record could inhibit or delay that process.

At the end of the day people may make youthful mistakes or mistakes of desperation that are aberrant and out of character. I believe that the sum of an individual is not their worst deed and hate when I see someone who is suffering from a mistake made years ago or worse, from a choice to resolve a charge based upon poor legal advice. It is critical if charged with any variety of theft crime, regardless of severity, to consult with a Tampa theft attorney well versed in both the direct and collateral effects of crimes of dishonesty. Jason Mayberry has protected his clients in the Tampa area for over ten years. Call on his experience to help you on your case now and to ensure an isolated charge doesn’t haunt you for years down the road. Contact us today at 813-444-7435 for a free consultation.

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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.

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Oh Florida, here we go again. Generally it’s the average Joes and Janes making the news for crazy allegations, now it’s the cops. 32-year-old Broward County Sheriff’s Deputy Ted Arboleda is accused of foregoing a legitimate arrest of a woman in exchange for her offer of oral sex. Arboleda is said to have made routine contact with the woman at a local gas station where he found her to be without a valid driver’s license, in possession of marijuana, and in possession of an unlabeled bottle of prescription medication, all while on felony probation. According to news reports, initially the woman tried to bargain with the good deputy with cash in exchange for him to look the other way, though that wasn’t convincing. Allegedly, in the course of the course of the skillful negotiation it was decided that not only would Arboleda not arrest the woman, he would drive her home where the oral sex is alleged to have occurred. According to news reports, Arboleda told the woman this was his first time in this kind of rodeo and that he ultimately, “could not believe he agreed” to what he’d done and told her not to tell anyone.

Yes, Ted. Good strategy. Tell the lady with the drug problem who just agreed to tune you up (allegedly) to keep quiet. No doubt she is the one you can rely upon to keep your dirty little secret. In all seriousness, Ted Arboleda is entitled to the same deference anyone else is when accused of a criminal offense. He is entitled to be considered innocent until proven guilty, just as his accuser was when she was initially charged with her crimes. The reality of this situation is that it could come down to a he said she said incident, unless there is video footage, reliable eyewitness testimony, some type of GPS tracking system on his car, or Deputy Arboleda ignorantly elected to talk to the police. If none of that exists, if it comes down to his word against hers, chances are his word will prevail and I believe that’s how many criminal attorneys would handle this case, at least in part.
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Dr. Farid Fata recently pled guilty to 16 Federal criminal counts including 13 counts of healthcare fraud, two counts of money laundering and one count of receiving kickbacks. In a disturbingly unusual case involving a doctor fraudulently submitting requests for reimbursement from several healthcare organizations, Dr. Farid Fata went so far as to knowingly misdiagnose several patients with cancer and subsequently ordering that they receive cancer treatments, including chemotherapy. In doing this he was able to bilk several healthcare organizations out of a ton of money to his benefit. In spite of only 10 patients being named in the indictment, US Attorney Barb McQuade believes there to be many more patients affected and misdiagnosed in a similar capacity. At least one patient died while under the care of Dr. Fata though a murder charge is unlikely at this time.

While the admission by Dr. Farid Fata that he knowingly administered chemotherapy to those not in need of it is no doubt disgusting, US Attorney Barb McQuade’s effort to earn a life sentence on Dr. Fata could fall short. Healthcare fraud, as charged under 18 USC 1347 typically carries with it a 10 year maximum penalty unless serious bodily injury occurred as defined in 18 USC 1365(h)(3). An issue will be whether improperly administering chemotherapy, which is poison, involved a substantial risk of death, extreme physical pain or a protracted loss or impairment of the function of a bodily member, organ, or mental faculty. In spite of the maximum penalty, sentencing guideline 2B1.1, amongst others, dictates aggravating factors that could drive the guidelines to a level suggesting more time be served than a statutory maximum. If the guidelines suggest a higher sentence than allowed by a statutory maximum on a singular count, the court can run the sentences for multiple counts consecutively, “but only to the extent necessary to produce a combined sentence equal to the total punishment.”
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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.
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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.
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  A South Florida woman, or man, depending on how you classify it was sentenced to 366 days in a Florida Prison this month for injecting several individuals in the butt with a toxic mix of Fix-A-Flat and super glue. Ron Oneal Morris, born as a man but who now considers herself a woman, “helped” those in need of a bigger butt by conducting several procedures where a tube was inserted into the buttock of the patient allowing for Morris’ toxic concoction to be pumped in. In spite of every client seeking her services voluntarily and knowingly allowing her to perform her procedure, Morris was charged with and convicted of the criminal act of practicing healthcare without a license. In spite of a more serious sentence being possible, Morris’ criminal lawyer convinced prosecutors to offer the fairly lenient deal citing a lack of physical evidence and a failure of witnesses to come forward. No surprise there as I’m sure it’s a bit embarrassing to admit you’ve allowed some quack to inject you with a Molotov Cocktail of doom. Ironically, Morris isn’t the only person on planet earth to offer these services as Padge Victoria Windslowe was charged in the death of a young woman for her version of this type of injection in Philadelphia in 2012.

For this particular allegation, Morris was likely charged with the third degree felony version of this offense under Florida Statute 456.065(2)(d)(1). If one is charged with practicing healthcare without a license under this statutory subsection they will face a minimum fine of $1,000 and a minimum mandatory prison term of 1 year. In Morris’ case, under the statute she received the most lenient sentence available. In spite of the nice deal worked out by her Florida criminal lawyer, Morris’ troubles are far from being behind her as she faces Manslaughter charges in Broward County for the death of one of her “patients.” Shatarka Nuby was injected by Morris in 2007 and later died of “massive systemic silicone migration” while serving a sentence in a Tallahassee prison.
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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.
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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.”
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60 year old pornographic filmmaker Ira Isaacs was sentenced on January 17, 2013 in the Central District of California for the Federal crime of producing and selling obscene videos and distributing obscene videos. Isaacs is known as a “shock porn” director and has routinely made videos depicting bestiality and sexual conduct involving feces. One such video was known as “Two Girls, One Cup” and involved a sexual encounter with two women eating human waste. Isaacs’ criminal defense attorney argued that despite the horrific nature of the videos that they are protected speech under the First Amendment of the United States Constitution. This argument fell on deaf ears when a federal jury convicted Isaacs on April 27, 2012 of a superseding indictment involving several counts. Pursuant to his sentencing Isaacs was ordered by Federal District Court Judge George H. King to serve 48 months in the Federal Bureau of Prisons, be subject to supervised release upon his release from prison for three years and pay a $10,000 fine. Isaacs was tried previously, both ending in mistrials. In 2008 his initial trial ended in mistrial when presiding Judge Alex Kozinski was forced to recuse himself after it was found that he possessed pornographic material on a personal website. Later, during a trial on March 6, 2012 a jury deadlocked at 10-2 resulting in a second mistrial.

As best as I can tell Isaacs was indicted for violations of 18 USC 1465 for Production and Transportation of Obscene Matters for Sale and Distribution, 18 USC 1462(a) for Importation or Transportation of Obscene Matters and lastly 18 USC 2257(f)(4) for failing to keep records of actors and actresses involved in his movies. The applicable language or gist of the statutes of which Isaacs was charged is as follows:

18 USC 1465- Whoever knowingly produces with an intent to distribute into interstate or foreign commerce for the purpose of sale or distribution, any obscene material, would be guilty of 18 USC 1465 and subject to a five year term in the bureau of prisons and a fine.

18 USC 1462(a)- Whoever brings into the US or uses an express company for carriage in interstate or foreign commerce any obscene, lewd or lascivious motion-picture film shall be subject to a five year term in the bureau of prisons and a fine.

18 USC 2257(f)(4)- It is unlawful for one to produce any motion picture as described in the preceding statutes without creating an individual and identifiable record pertaining to each performer in the motion picture. In essence this law is aimed at preventing minors from engaging in such movies.
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