Category: Legal Education

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.

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

When is a Juvenile Certified as adult?

imagesParents and children under the age of 18 are surprised when they find out a person under the age of 18 can go to trial as an adult for a crime.  So, when may a juvenile be required to appear in adult court for trial?  The court may order that a juvenile who was age 14 or older at the time of the offense and who is charged with certain felonies, be certified as adult and tried in adult criminal court.

Juveniles convicted of an offense in adult court receive adult sentences. Juveniles charged with first degree murder, who were age 16 or 17 at the time of the offense, are required by Minnesota Statutes to be certified as adults and sent to adult court.

Below is a summary of a juvenile matter certified as an adult.Click here if you wish to read the entire opinion.

State v. Grigsby (SUP CT, 08-01-2012, A10-1686, Ramsey Co)

Certification, Minnesota Statute Section 260B

Defendant was 15 years of age when had a petition filed against him charging him with Murder in the second degree- Intentional and was certified to stand trial as an adult. The Complaint was then amended to include Murder in the second degree Felony Murder. Defendant was found guilty of murder in the second degree – Felony murder and manslaughter in the second degree;  and found not guilty of murder in the second degree, Intentional murder. He was sentenced to 180 months.

Defendant appeals on the ground that certification is offense specific. The Defendant argued that charges not included in the certification order cannot be charged in the adult court proceeding. The Supreme Court rejects this argument and says the juvenile court certifies proceedings and those proceedings include offenses not mentioned in the certification order.

Defendant also states that he could not be sentenced as an adult for the adult convictions because he was found not guilty of the offense that he was certified as an adult for. The Supreme Court also rejects this position holding that once a juvenile is certified to stand trial in adult court, the juvenile may be sentenced as an adult for any offenses he is convicted of in adult court.

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.

 

Insanity Defense for killing wife’s lover

There have been some infamous cases surrounding the insanity defense.  One of the first occurred in 1859 and involved Defendant New York Congressman and Civil War General Dan Sickles, and victim Washington D.C. District Attorney Philip Barton Key, the son of poet Francis Scott Key who wrote the Star Spangled Banner.  The temporary insanity defense worked, Defendant Sickles was found not guilty and applauded by the community at the time for protecting the women from an adulterer the likes of victim Key.  Click here to read the details of this case.

An insanity defense is admitting to the physical act of the crime, but then the defendant asserts they are not responsible for their actions due to mental health problems.  This assertion takes place at the trial to a jury.  Minnesota does not recognize an insanity defense, but instead does allow for a defense of mental illness or deficiency.  There are differences between the two forms of defense.  The burden is on the Defendant to prove the mental illness or deficiency to the jury by a preponderance of the evidence.  The actual defense, if the case goes to trial, and notice requirements are noted in Criminal Rules of Procedure 9.02, subd. 1(5).

Minnesota Rule of Criminal Procedure 20.01 and 20.02 cover acts the defendant claims are the result of mental health issues.  Rule 20.01 covers whether a person is competent to participate in the proceedings, or assist in their defense. If a person is not competent to proceed and the case is a felony or gross misdemeanor, the case is then stayed for a period of time to see if competency is restored.  If competency is restored, the case then proceeds to trial.  If competency is not restored, the government must file a motion within the time lines prescribed to extend the commitment of the Defendant pursuant to the rule.  Rule 20.01, is about whether the case can proceed.

Rule 20.02, addresses the issue of proceeding to trial on the defense of mental illness or deficiency.  This rule covers the medical examination reports and the commitment proceedings if a person is found not guilty by mental illness or deficiency.

If you have any questions as to how mental illness is addressed in our Courts, please give me a call at 651-200-3484

 

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.

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