While the response to the storm by the Federal Emergency Management Agency has been criticized b y many, FEMA did provide relocation assistance to some that were displaced. But now, authorities are apparently on the lookout for individuals they feel may have committed fraud in their receipt of these assistance funds.
]]> One man, who had move to Georgia from New Orleans, was recently sentenced to more than two years in prison and was ordered to pay $25,000 in restitution for assistance he received from FEMA. The man had filed an application for FEMA assistance, but authorities contend that the application was fraudulent because the man moved from New Orleans before the hurricane struck.It is not clear from news reports on this story exactly how long before the hurricane struck that the man moved to Georgia.
Federal fraud charges are often characterized as "white collar crimes." This sometimes conjures up images of million-dollar accounting schemes and private jets. It is likely that is what policymakers had in mind when implementing the harsh sentences that federal fraud charges can carry. But in many cases, the suspects are a far cry from these stereotypes and are instead just people who are down on their luck and out of options.
Source: Atlanta Journal Constitution, "Man gets prison for FEMA fraud after Hurricane Katrina," Angel Brooks, Feb. 2, 2012
]]>In 2005, the U.S. Supreme Court ruled that the federal sentencing guidelines were advisory rather than mandatory. This provided judges with additional leeway to use their discretion to consider the unique facts and circumstances of each individual case. But now, some members of Congress are seeking to change this and institute lengthy mandatory sentences.
]]> Proposing and advocating for severe federal sentences is almost always a sure-fire means of scoring political points. Politicians often argue in favor of harsher mandatory sentences with a dramatic anecdote of some horrible crime, thus attempting to shape an entire public policy based on a single abhorrent example. Rarely, if ever, do the facts of any specific criminal case stack up against the nightmare examples used to incite fear and influence politicians.In real life, criminal cases are much more nuanced and complicated. There may be any number of reasons why a severe mandatory minimum sentence would be inappropriate in a particular situation. It is important that courts have the ability to consider mitigating circumstances that justify a downward departure from the sentencing guidelines. When facing federal criminal charges, it is important to work with an attorney who has a comprehensive understanding of how to best inform the court of these mitigating circumstances if the need should arise.
Source: National Public Radio, "GOP Seeks Big Changes In Federal Prison Sentences," Carrie Johnson, Jan. 31, 2012
]]>Too often, when the rights of citizens bump up against the power of the police in a criminal investigation, the courts defer to the police. It is encouraging that not only did the Supreme Court uphold the protection from unreasonable searches, it did so unanimously.
]]> Looking more closely at the Court's reasoning in this case, not all the justices agreed as to why the use of the GPS tracking device constituted an illegal search. The majority opinion actually relied on an historic view of an illegal search based on trespass. Because the government intruded on the suspect's property, in the form of his car, in order to obtain information, this constituted a search that requires a warrant.The rest of the Justices agreed with the conclusion, but based their reasoning on the suspect's reasonable expectation of privacy. In 1967, the Supreme Court ruled that even where there was not a physical intrusion onto a suspect's property , it constituted a search if there was an invasion upon the suspect's reasonable expectation of privacy.
While this decision does serve to define the use of GPS tracking device as a search, the concurring opinion points out a problem with basing this decision on the trespass of property. If the car for some reason already had the capability to monitor its own position, without the need for the police to attach a device, the trespass rationale would not apply.
As our courts try to keep pace with our advancing technology, it is important that our fundamental rights do not suffer. In our modern connected society, we both knowingly and unintentionally create a wealth of information about our location and social interaction. Court decisions in the coming years may reshape our definition of a reasonable expectation of privacy. We can only hope that our courts properly focus on the protection of our rights rather than the priorities of our criminal prosecutors.
Source: Atlanta Journal Constitution, "Warrant needed for GPS tracking, high court says," Pete Yost, Jan. 23, 2012
]]>The "white cowboy hat" narrative not only fails because the bad guys are not always guilty, but also because the good guys aren't always good. The U.S. Attorney's Office recently announced that a former Fulton County Prison guard has pled guilty to federal charges related to bribery and drug distribution.
]]> According to a story in the Atlanta Journal Constitution, the former detention officer was charged with involvement in a scheme to distribute cocaine and marijuana inside the prison. The charges alleged that as part of this scheme the former guard accepted more than $20,000 in bribes. The prosecution alleged that an undercover FBI agent had provided money to the guard to smuggle the contraband.Of course, police officers and prison guards deserve the same constitutional protections against criminal prosecution as any member of the public, and are presumed innocent. But it is worth highlighting the conviction of law enforcement professionals simply to demonstrate the limits of the traditional narrative. Just as not everyone wearing a white hat is on the side of the law, not everyone suspected of a crime is guilty.
Source: Atlanta Journal Constitution, "Another ex-Fulton jailer pleads guilty to corruption," Angel Brooks, Jan. 20, 2012
]]>There is a story in the Atlanta Journal Constitution today about the owner of a medical clinic who apparently left the county shortly after federal investigators conducted a search of his business in relation to suspicions of Medicare fraud. Prosecutors will likely try paint this as an attempt to flee because the owner engaged in the alleged conduct. But it could also simply be a reaction to the feelings of helplessness and hopelessness that even an innocent person may feel when facing these types of charges.
]]> In the case described by the paper today, the clinic owner is accused of employing unlicensed massage therapists to treat patients and then submitting bills to Medicare that describe the treatments as physical therapy. While the suspect has left the country, no court date has yet been set in this matter, and he is not yet technically considered a fugitive.No matter the specific underlying facts in any criminal case, prosecutors, law enforcement, and even news outlets, are likely to depict the matter as if the suspect's guilt has already been established. But criminal suspects have a right to present their side of the story and explain their version of the events in question.
Source: Atlanta Journal Constitution, "U.S. Marshals: Indicted Doraville clinic owner on the run," Marcus Garner, Jan. 20, 2012
]]>While sentences for drug possession and possession with intent to distribute can be severe all on their own, many criminal suspects also face additional charges for a wide variety circumstances. These enhancements can exponentially increase the potential sentence in a case.
]]> Recently, a Georgia man arrested for felony possession of marijuana also faced a slew of secondary charges. He was also charged with possession of marijuana within 1,000 feet of a housing project, possession within 1,000 feet of a school, possession of a knife or firearm while attempting to commit a crime, and possession of a weapon in a school safety zone.This laundry list of charges stems from a single arrest in which the police claim to have discovered marijuana under the driver's seat of the suspect's car, and a weapon in a backpack that was in his car.
It is likely an easy and politically successful decision for legislators to enact these types of enhancements. But in practice, the enhancements are often used as nothing more than bargaining chips by prosecutors to attempt to pressure suspects into a plea deal. Prosecutors' ability to threaten an extreme sentence too often allows them to secure a conviction without ever even having to prove the primary underlying charge.
Source: Rome News Tribune, "Report: Atlanta man found with large amount of marijuana, pistol near Rome probation office," Kevin Myrick, Jan. 11, 2012
]]>When potential homeowners and lenders hit snags when attempting to qualify a buyer for a mortgage, the idea of contorting the numbers to make them fit the requirements may not have seemed out of line. But now, in the wake of the collapse of the housing market, law enforcement authorities are looking closely for instances of potential mortgage fraud.
]]> Earlier this week, the Atlanta Journal Constitution reported that two women, who had pled guilty to charges of mortgage fraud, were sentenced in Fulton County Superior Court.One of the women was sentenced to two years probation in connection with charges related to the sale of a home in South Atlanta in which the buyer of the property allegedly misreported his income to the lender. Charges are still pending against the buyer.
The other woman, pled guilty to receiving mortgage loans for two separate properties, both of which she claimed would be her primary residence. She was also accused of misrepresenting her income in her loan application. That woman was sentenced to three years probation and a $1,500 fine.
It is likely that many cases in which a potential buyer is accused of misrepresenting their income, both the broker and buyer assumed that the housing values would continue to rise and the residential property would be sound investment regardless of the buyer's income.
Source: Atlanta Journal Constitution, "2 women plead guilty to mortgage fraud," Joel Provano, Jan. 10, 2012
]]>In a decision yesterday, the U.S. Supreme Court overturned a conviction of criminal suspect because the prosecution in the case had not disclosed exculpatory material evidence. This was evidence that would have weakened the prosecution's case if it had been made available to the criminal suspect.
]]> In yesterday's decision, Smith v. Cain, the case against the criminal suspect was based almost completely on the testimony of a single witness. There were no other witnesses or physical evidence that linked the suspect to the crime. But this single witness had told the jury that he had "no doubt" that this suspect had committed the crime, and that he had stood "face to face" with the suspect during the encounter.On their own, those statements from the witness could sound compelling. But the prosecution knew that the witness had not always been quite as certain of the identity of the suspect. During the investigation, the police interviewed this witness. At that time, the witness said that he could not identify any of the perpetrators because he had not seen their faces. He also told the police investigators that he would not be able to identify the persons involved if he saw them.
These statements, in which the witness indicated that he could not identify anyone involved in the crime, were taken down in notes by the investigators. These notes were not disclosed to the criminal suspect in this case until he was able to obtain them as part of an appeal after his conviction.
The Supreme Court ruled that because this evidence was improperly withheld, and could have changed the outcome of the case, the conviction must be overturned.
Source: ABA Journal, "Supreme Court Tosses Murder Conviction for Brady Violation by New Orleans DA," Debra Cassens Weiss, Jan. 10, 2012
]]>In the second part of this series we will look at some of the specific findings and recommendations of the Special Council appointed to consider this problem.
]]> In our current system, Georgia has some of the toughest penalties in the nation for repeat offenders. The average inmate released this year after serving a sentence for drug possession will have spent almost two years behind bars.The Special Council has recommended probation or shorter sentences for certain non-violent offenders. It also recommends increasing the alternatives to incarceration program. Some of these options have already demonstrated their capacity for success. "Accountability Courts" have shown remarkable success by treating underlying issues rather than relying solely on incarceration. The courts require offenders to undergo drug tests and rehabilitation, as well as requiring that they hold down a job.
Other recommendations include increasing the amount required for a theft to be considered a felony from $500 to $1,500. The current threshold was instituted almost 30 years ago. It would also reduce the sentences for burglaries of unoccupied structures such as sheds and barns. The new recommendations also call for increased discretion for judges to depart from the current mandatory minimums for drug trafficking.
Many other states, including Texas and the Carolinas, that instituted harsh sentencing reforms in previous decades have successfully increased their alternatives to incarceration programs. Georgia policy makers have made a great deal of hay from "tough on crime" rhetoric. But it seems that the state has now reached a point where it recognizes that simply locking everyone up for increasingly long sentences is not a viable public policy.
Source: The Atlanta Journal Constitution, "Georgia rethinks its prison stance," Carrie Teegardin and Bill Rankin, Jan. 3, 2011
]]>Without any meaningful rehabilitation, the individual soon finds himself charged with another non-violent offense. As the length of his criminal record grows, so does the length of his sentence. Not only is this an apparent waste of criminal justice resources, but also of the person's life, a person who may be able to become a contributing member of society if only the cycle could be short-circuited and the person given much-needed treatment. Georgia policy makers will soon consider a proposal to refocus the criminal code to encourage alternative sentences for non-violent offenders.
]]> Georgia currently spends more than $1 billion a year on state prisons. The inmate population has doubled in the last two decades. Many of these inmates are incarcerated for non-violent drug or property crimes. As you may know, Georgia has some of the strictest penalties of any state for these types of crimes.In our next installment of this series we will look at some of the specific findings and recommendations of the Special Council that was appointed last year to study the state's criminal code and resulting inmate population.
Source: The Atlanta Journal Constitution, "Georgia rethinks its prison stance," Carrie Teegardin and Bill Rankin, Jan. 3, 2011
]]>You may have heard news reports concerning the arrest, about 20 miles west of Atlanta, of the musician known as Soulja Boy. The local police chief has now indicated that the investigation into that case has now been turned over to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
]]> Law enforcement officials have stated that the arrest occurred when the vehicle in which the musician was an occupant was pulled over for an equipment violation. That traffic stop led to a search of the vehicle in which police claim to have found, cash, handguns, and more than five ounces of marijuana. The occupants of the vehicles were charges with various offenses including possession with intent to distribute.While local law enforcement officials claim that the case has now been turned over to the ATF, it appears that the case had been initially floated before the Drug Enforcement Administration. A spokesman for the DEA's Atlanta Field Division indicated that they had seen the case but that it did not meet the requirements for a federal drug investigation. He indicated that five ounces of marijuana would not even register on the federal level.
Source: Times-Georgian, "Police: ATF takes rapper's case," Kelly Quimby, Dec. 28, 2011
]]>There is, of course, a line between financial gymnastics and fraud. But while this line may be as clear as day in retrospect, in the heat of the moment, it can be hard to ascertain the difference between when you are close to the edge and when you are over it. Actions that may seem like the best business option at one point can look entirely different under a prosecutor's microscope.
]]> One former Atlanta area car dealer has learned this lesson the hard way. He was recently sentenced to serve in excess of seven years in federal prison related to charges of wire fraud, aggravated identity theft, and bank fraud, according to the Atlanta Business Chronicle.According to the news reports, while operating his car dealership he obtained a multi-million dollar business loan. But bank officials later discovered that the businessman was already several million dollars in debt. They further allege that he had used the loan to provide operational capital for a separate car dealership as well as to pay off other debts and finance his personal expenses. He was also charged with using an employee's name and identifying information to obtain an additional $175,000 in loans.
If you find yourself in a position where your business decisions are being investigated for potential criminal activity, it is important to consult with an Atlanta attorney who has experience defending federal fraud charges.
Source: Atlanta Business Chronicle "Atlanta car dealer sentenced in fraud scheme," Dec. 22, 2011
]]>The overarching issue of whether the sentencing reforms should be given retroactive effect is fairly clear, but it can become considerably more complicated in specific cases. In one recent case, the suspect was convicted on drug charges allegedly related to crack cocaine. During the initial sentencing, the court considered several factors.
]]> The suspect's criminal history and the amount of crack cocaine involved called for a sentence of between 30 years and life. But because the suspect had mental health issues, his sentence category was reduced by three levels, allowing for a minimum sentence of just over 24 years, which was the sentence he initially received.Subsequently, the suspect requested that his sentence be reduced based on the retroactive effect of the amended crack guidelines. The trial court refused to reduce the sentence reasoning that the length of the sentence for his initial category, before the reduction for mental health issues, was not reduced by the reforms. But the court of appeals disagreed with the trial court and instead determined that his sentence was based on the lower category. The sentence range for the lower category was reduced by the reforms. This resulted in a reduction of about three years in the minimum sentence allowable.
The law is not settled regarding the retroactive effect of the crack cocaine sentencing reforms. The issues involved are often complicated and require the assistance of a criminal attorney who is ready to break new ground in fighting for your rights.
Source: American Bar Association, "Second Circuit Finds Appellant, Previously Sentenced for Crack Cocaine Offense, is Eligible for Sentence Reduction Under Revised Sentencing Guidelines; Federal Circuits are Split," Elyse Diamond Moskowitz,
]]>The Fair Sentencing Act of 2010 greatly reduced this disparity. The new sentencing clearly applies to those who committed crimes after the law became effective last year. But it is not yet clear how the law should be applied to those who committed the crime prior to the enactment of the law, but were not sentenced until after it took effect. The U.S. Supreme Court is now poised to review a case on this issue.
]]> In the case of Hill v. United States, a suspect was convicted in 2009 of selling more than 50 grams of crack cocaine. The alleged offense took place in 2007, prior to the August 2010 enactment of the new law. But the suspect was not sentenced until December of 2010, after the new law was effective.Under the old law, in effect at the time of his offense, the mandatory minimum sentence would be ten years. Under the new law, the mandatory minimum would be only five years. The trial court used the old sentencing guidelines to hand down the longer sentence.
On appeal, the government prosecutors argued that the court should apply the sentencing guidelines as they existed at the time of the offense. The appeals court affirmed the longer sentence. The suspect next appealed to the U.S. Supreme Court. Two weeks after seeking review, the Justice Department sent a memo to all federal prosecutors explaining that the government's position had changed. They now agree with this suspect that any sentencing after the enactment of the law should utilize the new guidelines, regardless of when the offense occurred.
We will, of course, continue to monitor this case closely. In our next installment of this series we will look more closely at another case to see how the court viewed a downward departure from the old sentencing guidelines in light of the new guidelines.
Source: New York Times, "Justices to Decide on Fairness in Drug Sentences," Adam Liptak, Nov. 28, 2011
]]>In one recent incident, a student enrolled at the University of Georgia psychology doctoral program was sentenced for identity theft and fraud charges. The 25-year-old student received a sentence of approximately six years as part of a plea agreement in which he admitted to orchestrating a conspiracy to misappropriate credit card numbers from hundred of victims.
]]> According to the Atlanta Journal Constitution, law enforcement officials discovered the alleged scheme after the student had been stopped for a traffic violation. Investigators claim that they discovered credit card skimming devices in his car. There was no description in this article about how or why the traffic stop led to a search of his car and the alleged discovery of the skimming devices.Prosecutors say that the doctoral student supplied the credit card skimming devices to waitresses in restaurants across the region. The waitresses would then allegedly use the skimming devices to obtain credit card information from restaurant patrons. The student would then allegedly upload the credit card information to a re-encoding device that was used to create counterfeit credit cards that were used to make retail purchases.
Source: Atlanta Journal Constitution, "UGA doctoral student sentenced for credit card fraud," Dec. 12, 2011
]]>