Articles Posted in Federal Offenses

Under 18 U.S.C. § 3564(c), a federal court may modify or terminate a term of probation, or supervised release, that has been previously imposed. For a federal misdemeanor, a term of probation can be modified or terminated at any time. For felonies, however, the defendant must have completed at least one year of their federal probation before the Court may modify or terminate the sentence.

In deciding whether to terminate probation early, the Court will consider the factors set forth in 18 U.S.C. 3553(a). The 3553(a) factors include: the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, the need for the sentence imposed to afford adequate deterrence to criminal conduct, the need for the sentence imposed to protect the public from further crimes of the defendant, the need for the sentence imposed to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment, and the need for the sentence imposed to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.

After a defendant files a petition to have their sentence modified or terminated, it is the Judge’s decision whether probation should be terminated early. This judge will often be the same judge that imposed the original sentence. In most cases, judges deny requests; however, certain factors can strengthen a defendant’s request for early termination of probation. Overall, to successfully terminate a term of probation, the defendant must show that they have earned it through good conduct, and it would be in the interests of justice.

The PSR interview consists of meeting with the assigned probation officer for about two hours, and you have the right to have your attorney present during the interview. The probation officer will ask you about, among other things: your childhood, any abuse you have gone through, family members and their support of you, places you have lived, marriages, divorces, children, medical history, mental health, education, military service, any drug problems, your past arrests and convictions, any terms of probation or parole, and, about how you got involved in the offense.

Your probation officer will also ask you about how you’ve accepted responsibility for breaking the law. It is important to be aware that, in the federal system, defendants who do not clearly accept responsibility for their actions can receive harsher sentences than those who admit they broke the law, follow the rules of the Court, and continue to follow the law.

Your probation officer will also ask you about the assets you and your spouse own, any cash you have, and any debts you owe. This is because in some cases the Court is required to determine if you have the ability to pay a fine or, in some cases, restitution to victims. Restitution can be mandatory, and the financial information you provide will be used to determine monthly payments. Because of this, and because your officer will investigate and confirm the information you provide, it is very important you give truthful information about your financial situation. You may also be asked to provide documents such as, but not limited to, statements, deeds, and titles, which support the information you provide verbally, and on a variety of financial forms. Finally, you will be asked to sign a variety of release forms that will allow your officer to access government records, as well as educational, medical, psychiatric, and employment information about you.

A Presentence Investigation Report, often abbreviated as “PSR” or “PSI”, is a document created by the United States Probation Office after an individual has been convicted of a felony in federal court. The PSR documents the convicted individual’s life history and background and is provided to the Court to assist in determining a fair sentence.

After a defendant pleads guilty (or is found guilty by a jury or judge), the judge will order the probation officer to create the PSR. The assigned probation officer will conduct a PSR interview with the defendant as well as an independent investigation into the offense to gather information.

Once the initial PSR is complete, the report is sent to your attorney, the Government’s attorney, and the Court. Once disclosed, your attorney is required to review the report with you. If you see any information that is incorrect, or if you disagree with how the guidelines are computed, your attorney can file objections to the PSR. The final PSR will make any corrections and note any objections in the PSR Addendum. If there are still any unresolved objections by the day you are sentenced, the Judge will resolve any disagreements before pronouncing your final sentence.

The Department of Justice investigates and prosecutes cases where large amounts of money is alleged to have been taken. Examples of white collar crimes are money laundering, bank, wire and mail fraud, tax evasion, insider trading, insurance fraud, mortgage fraud, bribery and embezzlement.  Of course Homeland Security, the FBI, the IRS, Customs and Border Patrol and SEC can also investigate and prosecute cases of fraud as well.  

The government has a special United States Guideline Chapter dedicated to “basic” economic offenses.  For purposes of this blog, this chapter will be discussed in more detail below.  As with anything involving federal criminal litigation, nothing is crystal clear in the law. Therefore, there is also a chapter in the United States Guidelines dedicated to tax offenses, election fraud, gambling, and money laundering in the United States Sentencing Guidelines.  

This USSG chapter DOES cover extortion, bribery, kickbacks, counterfeiting, embezzlement, health care fraud, computer fraud, insurance fraud, securities fraud, mortgage fraud, identity fraud, bankruptcy fraud, etc.   What is most important in this chapter is the loss amount.   All charges start off with a base offense level of  6 or 7 depending on the statutory max of the offense charged. Then, you look at what the “loss amount” is using the below table.

Loss (apply the greatest) Increase in Level
(A) $6,500 or less no increase
(B) More than $6,500 add 2
(C) More than $15,000 add 4
(D) More than $40,000 add 6
(E) More than $95,000 add 8
(F) More than $150,000 add 10
(G) More than $250,000 add 12
(H) More than $550,000 add 14
(I) More than $1,500,000 add 16
(J) More than $3,500,000 add 18
(K) More than $9,500,000 add 20
(L) More than $25,000,000 add 22
(M) More than $65,000,000 add 24
(N) More than $150,000,000 add 26
(O) More than $250,000,000 add 28
(P) More than $550,000,000 add 30.

The loss amount is a pandora box of confusion and the government is able to add all kinds of relevant conduct and intended loss conduct to inflate these numbers.

To further make things complicated, there are enhancements in this section that permit the government to add levels for things such as the use of sophisticated means, role in the offense, number of victims, a defrauding a charity, mass marketing, among others.

Navigating the federal criminal system is a task that should not be endured alone. Contact our team today for more information about we can protect your rights and your freedom.

By Brandon Fitz

Wire Fraud is a serious white-collar crime and is defined under 18 USC §1343 and states:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. 18 U.S.C.A. § 1343.

Here is the definition from the statute, cut directly from the 11th circuit’s jury instructions:

It’s a Federal crime to commit aggravated identity theft.

The Defendant can be found guilty of aggravated identity theft only if all the following facts are proved beyond a reasonable doubt:

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The Fourth Amendment of the U.S. Constitution protects against unlawful searches and seizures by the government.  When the government wants to obtain a search warrant, an affidavit must be drafted and application must be made to a U.S. Magistrate judge (in federal matters).  The affidavit can be more than a hundred pages at the minimum in complex cases.  The affidavit will begin with an introduction and the background of the agent (his/her experience).  In this section, statements beginning with “Based on my training and experience” are plentiful.  The next section generally addresses probable cause and sets forth facts that show probable cause has been established to support the issuance of a search warrant and that items listed have a reasonable probability of being found during the search.  Finally, it will detail what needs to be searched and what items the government is seeking.  Law enforcement often request search warrants when seeking documents, electronic devices, money, drugs, paraphernalia, ledgers, photos, receipts etc.  A warrant can be requested for real property, a person, electronically stored information from your phone, iPad, computer, external hard drives, a tracking device on a car, the car itself, and/or other modes of transportation such as a boat.

Once the search warrant is signed by the judge, the search warrant will be executed.  Generally, the government will work to execute the warrant with local law enforcement officials. The search can take hours, and often times, questioning will occur at the same time.  NEVER SPEAK TO LAW ENFORCEMENT at this juncture without a lawyer.  This interview at your home or office is often recorded by body cam, audio, and other video devices.  It can be difficult to get those statements excluded at trial for a variety of reasons.

After the execution of the search warrant, a copy of the search warrant inventory will be left, and it will list out exactly what was seized.  In the case of the execution of the search warrant for Donald Trump, there is a search warrant, sworn affidavit, and application filed, but it is under seal.  Mr. Trump also received a search warrant inventory. Hopefully, these documents will be released to the public sooner than later.

The Residential Drug Abuse Program (RDAP) and the Non-Residential Abuse Program (NRDAP) are offered by the Federal Bureau of Prisons (FBOP) to assist inmates suffering from substance abuse issues.

RDAP consists of 3 intensive phases, totaling over 500-hours of voluntary individual and group treatment, and it is about 9-12 months long. This program offers prisoners to live in a modified prosocial community within the prison, separate from the general population. They split their day in half with vocational, work, or school activities and the other half in treatment/programs. Prisoners must meet specific requirements to be considered for this program, and space is often limited. The prisoner must have at least 24 months remaining in their sentence to complete the program.

Since some inmates may have less than a 24-month sentence, the FBOP also offers a Non-Residential Drug Abuse Program (NRDAP), where prisoners can participate in 12-24 weeks of Cognitive-Behavioral Treatment. This treatment consists of skill-building within communication, rational thinking, and institution adjustment. NRDAP is often offered in a group setting and is more accessible to prisoners because of the less strict qualifications. NRDAP differs from RDAP because offenders may join this program if they have short sentences, are not eligible for RDAP, or awaiting availability.

On April 11, 2022, the Northern District of Georgia in Atlanta announced the creation of a new pretrial diversion court, the Accountability, Treatment, and Leadership Court “ATL Court“. It is formed with the Northern District of Georgia, the U.S. Probation Office, the U.S. Attorney’s Office, and the Federal Defender Program, and  will be run by folks from each of these agencies who will be known as the ATL Court Team.  Please note: The ATL Court is in addition to, and not a replacement of, the Northern District of Georgia’s existing Pretrial Diversion Program.

“THE ATL COURT MISSION:  Our mission is to provide the opportunity to avoid some of the consequences of aberrant criminal conduct to certain individuals charged with non-violent crimes in the Northern District of Georgia who would most greatly benefit from intense supervision, education, or treatment.”

HOW ATL COURT WORKS

Manhattan federal agents arrested Archegos Capital Management founder Sung Kook “Bill” Hwang on April 27, 2022 on fraud charges, roughly one year after the investment firm’s huge losses back in March 2021.  Department of Justice prosecutors are charging both Hwang and Patrick Halligan, the firm’s chief financial officer, with racketeering conspiracy, securities fraud and wire fraud offenses as part of schemes allegedly designed to “unlawfully manipulate” the price of publicly traded securities.

The 59-page indictment, filed in federal court in Manhattan, alleges the men and others at Archegos sometimes timed their trades to drum up the interest of other investors, while borrowing money to make bigger and bigger bets. The Department of Justice states, “Hwang and his co-conspirators invested in stocks mostly through special contracts with banks and brokers called “swaps.” As alleged, these swaps allowed Hwang to cause massive buying of certain stocks, including at carefully selected days and times, to artificially pump up stock prices. Hwang, Halligan, and their co-conspirators lied to banks and used a series of manipulative trading techniques to keep those prices high and prevent them from falling. The lies fed the inflation, and the inflation led to more lies. The scale of this alleged fraud was stunning.  In one year, Hwang turned a $1.5 billion portfolio and fraudulently pumped it up into a $35 billion portfolio.” The effective size of the firm’s stock positions swelled to $160 billion — rivaling some of the biggest hedge funds in the world.  The case marks the biggest financial-crime charges to come out of the Southern District of New York under the leadership of Mr. Damian Williams, who was sworn in October 10, 2021.

The SEC has also filed a civil complaint stating that Mr. Becker, the former chief risk officer at Archegos, and Mr. Tomita, the firm’s former top trader, had led discussions with the banks about the firm’s trading positions but that Mr. Hwang and Mr. Halligan had directed and set the tone for those discussions.
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