Category: Arrests

Reputed Mob Boss Found Not Guilty of Conspiracy

Many ask how they can be charged with an offense that someone else committed. If the government can’t prove that the defendant agreed to commit the criminal act with the other person, a jury may find the accused not guilty. This is what happened in a recent case where an alleged mob boss was recently found not guilty in a Federal racketeering case. The government alleged that the Defendant had conspired with others to commit a variety of crimes. You can read about the case of George Borgesi and his release from custody after 13 years by clicking here

In Federal Court, 18 U.S. Code § 371 creates an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.” In many conspiracy cases the accused must not only agree to commit the crime, but at least one of the conspirators must commit an overt act to accomplish the crime. This is not always a requirement. Furthermore, there is no requirement that the accused knows of the others involved in the conspiracy.

A conspiracy is often confused with aiding and abetting. 18 U.S. Code § 2 defines aiding and abetting as “ (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” With aiding and abetting there is no requirement that an agreement to commit the crime was reached between the accused and the actor. In such a case, if a defendant counseled, gave advice on how to commit the crime or assisted in the completion of the crime, the defendant is may be charged as though the defendant committed the actual crime.

Conspiracy as well as aiding and abetting charges may seriously effect how to best prepare a defense for your trial. Be certain to retain a lawyer to assist you with these charges. Contact Attorney Patrick Flanagan at 651-200-3484 or at PatrickFlanagan@Flanaganlawsit.com if you have questions about your criminal case.

Fish scares away burglar

If you live near a lake, or know someone who does, you may have have come across the talking bass that hangs on the wall known as Billy Bass. While this wall mount has been know to annoy people, this may be the first time it has scared someone. The police in Minnesota believe the talking fish scared away a would be burglar. You can read the story here.

The would be burglar should still be careful. Even though he/she may not have taken anything, the crime may have already occurred. Minnesota Statute Section 609.582 defines Burglary. Burglary in the first degree, which is what the Bill Bass allegation is if this was a dwelling and the homeowner or another person was inside the house somewhere, is outlined in Subdivision 1: “Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to a payment of a fine of not more than $35,000, or both if: (a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building; (b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or (c) the burglar assaults a person within the building or on the building’s appurtenant property.

If you have been charged with a crime, call the Flanagan Law Office at 651-200-3484 for a free consultation

Woman makes sexual advances toward airline passenger

Recently a woman flying from Baltimore to Salt Lake City, Utah had a few too many drinks before boarding a plane. The woman allegedly asked the man seated next to her for sex. The woman became belligerent and abusive when the man turned her down. The plane made an emergency landing at the Minneapolis/St. Paul International airport where she was turned over to airport police. A passenger with a cell phone captured the scene on video. You can read about the incident and watch the video by clicking here.

With Spring break around the corner and people looking to escape the winter, it is important for airline passengers to remember that being disruptive on a plane may result in federal charges. Federal law makes it illegal to interfere with the flight crew. Assaulting a crew member is governed by 49 U.S.C. § 46504.

Actions that do not amount to a physical assault may still result in significant civil penalties. Such actions may be offensive or disruptive behavior, blocking a flight attendant from walking down the aisle, failing to return to your seat, or a variety of matters. Disruptive behavior is covered under 14 C.F.R. §§ 91.11, 121.580, 135.120.

The safest way to avoid criminal charges while on a plane is to obey the crew member’s instructions. Do not raise your voice at a crew member, or make threats. Ask to speak to the flight attendant in charge if you believe that the crew member you are dealing with is in the wrong. Finally, unless rendering aid, never touch a crew member. If you believe that you were treated unfairly, or the crew was out of line, wait until the end of the flight and you may then file a complaint against the crew member with the airline, or at this site with the Department of Transportation’s Aviation Consumer Protection Division.

Here are a few of penalties disruptive passengers expose themselves to:

Assault. Assaulting a crew member is punishable by up to 20 years’ imprisonment, and a fine of up to $250,000. If a dangerous weapon is used, the defendant can be imprisoned for life. 18 U.S.C. § 3571, 49 U.S.C. § 46504.

Interference. The maximum civil penalty for interfering with a crew member is a fine of up to $25,000. 49 U.S.C. § 46318.

Expungements

Sometimes people make poor decisions. What if you make one very poor choice, or if you make a choice you believe is the only choice you have to make at the time, but it turns out to be illegal? That choice may effect your life for years if you are convicted of a crime. What if you turn your life around, or there are circumstances about the decision you made that can be rectified with some sort of rehabilitation? What if the Judge who heard your case believes that you deserve a second chance after you have paid your debt to the community? If that conviction can’t be sealed, the information, especially in today’s cyber world, will haunt you when you apply for student loans, apply for schooling, apply for housing, or try to find work. Even if the Court seals its records, the law as it is now states that the Court can’t tell the executive branch – law enforcement – to seal their records. Even if it is in everyone’s best interests that the records be sealed. Thankfully, Rep. John Lesch, D – St. Paul, has drafted a bill that would allow the Courts to determine when the records should be sealed, even in the executive branch. Sealing does not mean erasing. The information would simply not be public.

For example, suppose a high school senior, who is 18, gets arrested with 33 grams of marijuana in his possession. That is a felony. Just over one ounce. Suppose this 18 year old is a straight A student and for all other discussions is a great kid. The arrest records fall under the executive branch, law enforcement. Even if the prosecutor offers to resolve the case in a manner that will ultimately result in the matter being dismissed, the current law only allows for the court records to be sealed. The arrest records and police reports will still be open and available through the executive branch. That is why employment agencies, housing agencies and others simply take a trip to the BCA, the local Sheriff’s Department or the Police Department to obtain records on people even if the case was dismissed.

This bill, if it passes, should allow the Court to properly seal all the records that hinder a person’s ability to be successful after they have paid their debt to the community for their wrongdoing. Click here to read an article about the process.

Mandatory Minimums on illegal drug cases

In 2013 United States Attorney Eric Holder sent a memo to his Assistant United States’ Attorneys noting that not all illegal drug cases should demand mandatory minimum sentences. If you have a case drug case in Federal Court or Minnesota State Court, please contact Patrick Flanagan at 651-214-7209 to discuss your case

Click here to read more about the Holder memorandum

Or watch the news conference on the subject here http://www.youtube.com/watch?v=CcuzCNwFktA”>Holder Conference

Search warrant needed before searching cell phone contents

The Minnesota Court of Appeals finds that we do have an expectation of privacy for the contents of our cell phones.  This requires law enforcement to obtain a search warrant before looking at our cell phone’s contents.

Click here to read the case in its entirety.

State v Barajas (Minnesota Court of Appeals, 07-23-2012, A11-0983, Clay Co)

The Police went to a vacant apartment and found Defendant trespassing on the property.  After search, Police found methamphetamine in the apartment, a cell phone on the kitchen counter and two cell phones on the defendant’s person.   Police took the cell phones and looked at the photographs on the cell phone without first obtaining a search warrant.  After finding the photographs, law enforcement then decided to seek a signed consent to search, a waiver of the search warrant requirement.

At the trial, the prosecution was allowed to introduce photographs taken from the cell phones.  The photographs showed defendant with a lot of money. Defendant was convicted and sent to prison for First Degree possession with intent to sell.

Defendant appealed the decision.  The Court of Appeals decided that Defendant has an expectation of privacy in the contents of the phone.   This does not end the analysis as to whether a search warrant is required.  The Court then considers whether that expectation of privacy is recognized as reasonable by society. The Court analyzes that while the Defendant did not have an expectation of privacy as to himself since he was a trespasser, he still had an expectation of privacy in the concealed contents of the phone.  In other words, the discovery of the telephones does not need a search warrant, but in order to look at the telephone’s contents, a warrant is required.  The Court says a cell phone that conceals its contents is consistent with constitutionally protected containers. Therefore, the police were required to get a search warrant to get the photographs.

The Court then discussed the Consent to search element.  Consent to search is an exception to the warrant requirement. The State argued and the trial court found that the unlawful search of the telephone without a warrant was cured by the consent the Defendant signed. The Appellate court disagreed with the trial court and found that the consent was not freely and voluntarily given in these circumstances.

This is all great news for making the sure the government does not invade our privacy without their actions being reviewed and not allowing the government to violate our 4th amendment Rights.  However, it was not enough for Defendant Barajas to have his conviction overturned, as the Court found there was enough other evidence to convict him.

 

Former wrongfully Convicted Inmate creates Foundation to help other wrongfully convicted inmates

In 2012 Jeff Deskovic was released from prison after serving 15 years for a crime he did not commit.  Mr. Deskovic reached an $8 million dollar settlement for his wrongful incarceration against the State.  Mr. Deskovic then set up a foundation to help other wrongfully convicted inmates.  Click here to read about an inmate Mr. Deskovic’s foundation assisted and caused a Federal Judge to state: “The result is that a likely innocent man has been in prison for over 23 years. He should be released with the state’s apology,” the judge wrote.

Knowledge that you are carrying a gun into a public place required before a conviction

Most people assume that in order to commit a crime the person must have knowledge that their act is criminal.  This criminal intent is known as mens rea in Latin.  Without such knowledge, the crime is essentially strict liability.  Do the act, even if you had no idea that you were committing a criminal act, and you are guilty.    While this does not seem fair, our legislature to show they are tough on crime has created several crimes where knowledge of a certain element is not required for a conviction.  In the Minnesota Supreme Court case of State v. Ndikum, The Court noted that such statutes that do not require criminal intent are disfavored.  Furthermore, where a statute does not specifically exclude criminal intent, then the State is required to prove knowledge of the criminal act with proof beyond a reasonable doubt before a Defendant may be convicted.  Read below for a summary of this case and click here to read the entire opinion.

State v Ndikum (SUP CT, 07-11-2012, A10-1728, Hennepin Co)

Possession of Pistol, Elements, Knowing Possession, MS 624.714

Defendant is an attorney who lawfully purchased a pistol. As instructed, he only carried the pistol between office and home. However, one day he went to court and the pistol was in his briefcase.

At trial, the Defendant said he didn’t know the pistol was in the briefcase.  The Defendant asked for a jury instruction that required the State to prove he had knowledge that the gun was in his briefcase when he brought the brief case to court.

The Trial court granted the jury instruction on the felony count, but refused to give the instruction on the gross misdemeanor count.  After jury deliberations, the Defendant was found not guilty on the felony, but guilty on the gross misdemeanor count.

On appeal, the court of appeals reversed the conviction and the State appealed the reversal to the State Supreme Court.  The Minnesota Supreme Court affirmed the  reversal of conviction. In their Opinion, the Minnesota Supreme Court notes that offenses that do not require no mens rea are disfavored.   (As a side note, Mens Rea means “guilty mind” Latin.  In more common language, As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and willfulness.) In making its decision, The Minnesota Supreme Court also notes that when a statute is silent as to mens rea, as the statute is here, that is not enough to not require mens rea as an element for the State to prove beyond a reasonable doubt at trial.

Report all income when receiving benefits from an injury at work to avoid prison

When you receive payments for injury while at work, there are certain requirements that must be followed regarding income received from other sources.  It is important that these regulations be adhered to.  If these are not adhered to, the government will not only seek restitution, but may also seek criminal penalties, including prison.  Read the case summary below for an example.  Click here to read the Court Opinion in its entirety.

 

United States v. Danny Dillard Case No: 10-2672. E.D. AR

Defendant Dillard pled guilty to four counts of knowingly filing false statements
with the Railroad Retirement Board (RRB). District court sentenced Dillard
to 2 months imprisonment and ordered him to pay $52,691.47 in restitution
to the RRB under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §§
3663A-3664 . Dillard appeals the order of restitution.

Defendant Dillard suffered injuries while working for Union Pacific Railroad. After
determining that Defendant Dillard could no longer perform his work as a conductor, the RRB awarded him an occupational disability annuity. As a condition of receiving the annuity, Defendant Dillard was required by law to report certain
information regarding any employment and income while on disability. Defendant Dillard failed to disclose to the RRB that he owned a business, occasionally undertook additional employment, and received income from these ventures. The
district court ordered Defendant Dillard to pay restitution of $52,691.47—the aggregate amount of benefits the RRB paid to Dillard during 2005 and 2006.

Ordinarily, when the defendant receives benefits from a government agency
through fraud, the “actual loss” to the agency “is the amount paid minus
the amount that would have been paid in the absence of fraud.” Defendant Dillard
argues this amount should have been 0 because had he not filed the a false
statement, the agency would have paid him the same amount. This may have
been true, except that when he failed to comply with the RRB regulations,
he benefits ceased to exist. AFFIRMED.

How do I earn acceptance of responsibility to reduce my federal sentence?

One way to receive a lower sentence in Federal Court is to receive “acceptance of responsibility” from the Court.  Acceptance of responsibility may result in a 2 or 3 level decrease in the sentence guideline calculation.  However, it is important to remember that simply entering a guilty plea does not necessarily mean that the Court will grant the acceptance of responsibility decrease.  See the summary below and link to the complete case on how acceptance of responsibility works in federal sentencing.

 

United States v. Noel Jackson, No: 09-3433 Western District of
Arkansas

 

Syllabus: Guilty verdict to two counts of bank robbery and one count of
brandishing a firearm during a crime of violence. Sentenced to 420 months.
Jackson argues procedural err in denial of his request for a two level
reduction for acceptance of responsibility and declining to depart from the
career-offender Guideline. Jackson entered into the plea agreement only on
the morning of trial. The probation who interviewed Jackson for the PSR
testified Jackson denied committing one of the bank robberies.

Held: Affirmed. (1) a defendant is not entitled to the reduction “as a
matter of right” simply because he enters a guilty plea. “The key issue is
whether the defendant has shown a recognition and affirmative
responsibility for the offense and sincere remorse.” United States v.
Wineman, 625 F.3d 536, 539 (8th Cir. 2010). District court did not err in
denying Jackson acceptance credit because evidence showed that Jackson
never fully accepted responsibility for one of the robberies. In his PSR
interview Jackson said he entered his plea “not because he acknowledged his
guilt but because he lacked confidence in his attorney’s trial skills.”
Court also properly considered Jackson’s delay in pleading guilty until the
day of trial after the government had prepared for trial. (2) No appellate
review of a district court’s “denial of a request for a downward departure
unless the district court ‘had an unconstitutional motive in denying his
request’ or failed to ‘recognize[] that it had the authority to depart
downward.’ United States v. Anderson, 570 F.3d 1025, 1034 (8th Cir. 2009).”
Jackson made neither argument. Careful review of the sentencing record
reveals no unconstitutional motive by the district court or failure to
recognize its discretionary authority to depart.

 

Click here to read the entire opinion