In State court, Florida Statutes § 921.186 allows the prosecutor to file a motion with the court seeking to reduce or suspend a sentence already imposed in a felony case based on the defendant’s cooperation with the state. That cooperation has to lead to the “identification, arrest, or conviction of any of the defendant’s accomplices, accessories, coconspirators, or principals, or of any other engaged in criminal activity that would constitute a felony. This gives defendants serving jail time two bites at the sentencing reduction apple. First, they can cooperate against anyone who was involved in the same criminal activity that resulted in their conviction and sentence. Second, they can provide information about different or new crimes. Section 921.186 is very similar to Federal Rule of Criminal Procedure 35.
Monday, August 24, 2015
GETTING A REDUCTION OF SENTENCE AFTER IMPOSITION OF SENTENCE BASED ON SUBSTANTIAL ASSISTANCE -State
In State court, Florida Statutes § 921.186 allows the prosecutor to file a motion with the court seeking to reduce or suspend a sentence already imposed in a felony case based on the defendant’s cooperation with the state. That cooperation has to lead to the “identification, arrest, or conviction of any of the defendant’s accomplices, accessories, coconspirators, or principals, or of any other engaged in criminal activity that would constitute a felony. This gives defendants serving jail time two bites at the sentencing reduction apple. First, they can cooperate against anyone who was involved in the same criminal activity that resulted in their conviction and sentence. Second, they can provide information about different or new crimes. Section 921.186 is very similar to Federal Rule of Criminal Procedure 35.
GETTING A REDUCTION OF SENTENCE AFTER IMPOSITION OF SENTENCE BASED ON SUBSTANTIAL ASSISTANCE
Many times clients and their families call our office seeking to get a sentence reduced after a sentence has already been imposed. In both federal and state court, it is very difficult to do unless the judge made a mistake in imposing the sentence, which is rare.
In federal court, a defendant may be able to get a sentence, that has already been imposed, reduced under Federal Rule of Criminal Procedure 35. Rule 35 allows for the correction of any error in the imposition of sentence within 14 days, and if the defendant cooperates with the prosecutors, and also allows the prosecutors to file a motion to reduce a sentence based on the defendant’s substantial assistance within 1 year, or under certain circumstances, more than 1 year.
In order to take advantage of either Federal Rule 35 or State Statute 921.186, a defendant seeking to reduce a sentence based on substantial assistance will have to work with the prosecutors, and should have experienced legal representation to make sure the sentence reduction is properly presented to the court and in fact given. Both the prosecutors and the court have broad discretion under these provisions to seek any reduction in the case of the prosecutors, or to grant a reduction in the case of the court, and a defendant may not get a second chance if the request is unsuccessful.
In federal court, a defendant may be able to get a sentence, that has already been imposed, reduced under Federal Rule of Criminal Procedure 35. Rule 35 allows for the correction of any error in the imposition of sentence within 14 days, and if the defendant cooperates with the prosecutors, and also allows the prosecutors to file a motion to reduce a sentence based on the defendant’s substantial assistance within 1 year, or under certain circumstances, more than 1 year.
In order to take advantage of either Federal Rule 35 or State Statute 921.186, a defendant seeking to reduce a sentence based on substantial assistance will have to work with the prosecutors, and should have experienced legal representation to make sure the sentence reduction is properly presented to the court and in fact given. Both the prosecutors and the court have broad discretion under these provisions to seek any reduction in the case of the prosecutors, or to grant a reduction in the case of the court, and a defendant may not get a second chance if the request is unsuccessful.
What is Pretrial Discovery
Pretrial discovery is what happens after the
charges are filed, and the parties exchange the evidence each side will use
such as the names and addresses of witnesses and copies of all written
statements, police reports, and copies, pictures, or descriptions of other
physical evidence such as firearms, weapons, drugs (in drug cases),videos, tape
recordings, etc. the prosecutor also has a duty to reveal any favorable
evidence that can be used to show that the defendant is not guilty.
Wednesday, August 12, 2015
Burden of Proof: Guilty or Not Guilty
Tuesday, February 25, 2014
Dismissing Federal Charges Based on the Statute of Limitations
There is a five year statute of limitations for most federal crimes. See, 18 U.S.C. § 3282. However, some federal crimes, like murder and other federal crimes punishable by death, 18 U.S.C. § 3286(b), and certain sex offenses, 18 U.S.C. § 3299, have no statute of limitations. Some federal crimes have there own longer statute of limitations. See e.g., 18 U.S.C. § 3294 (20 years -Theft of Art Work); § 3295(10 years - Arson); § 3293(10 years - Fraud Affecting Financial Institutions); §3286(a) (8 years - Terrorism Related Offenses Not Involving Violence); § 1031(6-years-Major Fraud Against United States); § 15 U.S.C. § 77x (6 years- Securities Fraud)26 U.S.C. § 6531 (6 years - Tax Crimes); 18 U.S.C. § 402 1 year-contempt of Court). This list is not exhaustive by any means, and is meant to be a sampling of the different types of statutes of limitations contained in the federal code.
However, the law applicable to the federal statutes of limitations and arguments seeking the dismissal of charges based on violations of the statute of limitations is straight forward and well settled.
The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.
Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970).
When evaluating a motion to dismiss a criminal indictment based on the statute of limitations, the indictment is examined "solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Reitmeyer, 356 F.3d 1313, 1316-17 (10th Cir. 2011). "[C]riminal statutes of limitations are to be liberally interpreted in favor of repose," and ought not be extended unnecessarily. United States v. Marion, 404 U.S. 307, 323 n. 14, 92 S.Ct. 455, 465 n.14, 30 L.Ed.2d 468 (1971).
A superseding indictment filed while the first indictment is still validly pending relates back to the original indictment and is not barred by the statute of limitations unless it broadens or substantially amends the charges in the first indictment. United States v. Davis, 953 F.2d 1482, 1491 (10th Cir.), cert. denied, 504 U.S. 945, 112 S.Ct. 2286, 119 L.Ed.2d 210 (1992). As such, the date of the original indictment tolls the limitations period as to alleged charge. Id.
As a general matter, the statutes of limitations clock begins to run when the crime is complete. Reitmeyer, 356 F.3d at 1316-17. A crime is complete as soon as every element necessary to commit the crime has occurred. Id. Once a criminal scheme is "executed," the crime is complete and has ended, and additional conduct in furtherance of the criminal scheme does not extend the statute of limitations for that particular "execution." Reitmeyer, supra at 1323 (Discussing application of statute of limitations to the Major Frauds Act, 18 U.S.C. § 1031, which provides fines and imprisonment for fraudsters perpetrating schemes to defraud the United States or engaged in other fraudulent schemes, and rejecting the government's arguments to extend the statute of limitations for major frauds prosecuted under the Act, affirming dismissal of charges as beyond the applicable statute of limitations).
In certain limited cases, Courts have recognized that certain crimes involve a "continuing offense" which may extend the statute of limitations, but only if the explicit language of the charged substantive criminal statute compels such a result, or if the nature of the crime is such that "Congress must assuredly have intended it to be treated as a continuing one." Toussie v. United States, 397 U.S. at 115, 90 S.Ct. at 860; accord, Reitmeyer, 356 F.3d at 1321-22. Such is not the case with § 1955. Iannelli, supra. In Toussie the Supreme Court again held that "criminal limitations statutes are to be liberally interpreted in favor of repose," and instructed that the doctrine of continuing offenses should be applied sparingly and in only limited circumstances noting that ". . . [t]he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent. Id. The former fixes a time limit by which the government must prosecute an individual following the occurrence of a criminal act, and "the latter, for all practical purposes, extends [this time limit] beyond [the statutory] term." Id.(quotation marks and citation omitted). As such, as a general matter, such the latter is to be eschewed.
H. Manuel Hernández has been an attorney for over 34 years. He was a federal prosecutor for ten years before opening his own practice 24 years ago.
Federal Grand Jury
The federal grand jury is a group of ordinary citizens who are summoned to serve on the grand jury, not unlike citizens are commonly summoned to serve on juries in criminal and civil cases. The grand jury is composed of not less than 16, but not more than 23 members. Fed. R. Crim. P. 6 (a)(1). The federal grand jury serves two main functions. First, it returns indictments against those person who have allegedly committed federal crimes. In this regard, the grand jury decides if there is probable cause to believe that a defendant committed a federal crime. Probable cause is one of the lowest standards of proof the law recognizes. Second, because federal grand juries have subpoena powers through the court, they are used as a tool by federal prosecutors to investigate alleged federal crimes. They can subpoena business records, bank records, witnesses to testify about facts, and the target of the investigation themselves to testify about what they did if they are foolish enough to do so. Although all proceedings before the grand jury, except deliberations and voting, are recorded, with limited exceptions, grand jury proceedings are generally secret and a court order is required to reveal proceedings before the grand jury. Fed. R. Crim. P. 6 (e)(1) through (3).
The grand jury is usually impaneled for 12 to 18 months, and may be extended for an additional 6 months if the court determines that an extension is necessary in the "public Interest. Fed. R. Crim. P. 6(g). Only the members of the grand jury, the court reporter, an interpreter, if needed, the prosecutors, and the witness being questioned may be present in the grand jury room while the grand jury is in session. Fed. R. Crim. P. 6(d)(1). No one but the members of the grand jury (or an interpreter needed to assist a hearing impaired grand juror) may be present when the grand jury is deliberating or voting. Fed. R. Crim. P. 6(d)(2).
There are generally two types of grand jury subpoenas, subpoenas to testify, and subpoenas duce tecum, which require the witness to produce documents or other items, and usually testify as well, at least about the documents and items being produced. When a person receives a grand jury subpoena, he or she must appear unless excused by the government’s prosecutor. A grand jury subpoena, like all subpoenas, are court orders, and if ignored, could subject the offender to possible prosecution for contempt and potential incarceration.
Many people subpoenaed to testify before a grand jury are merely witnesses. However, some people subpoenaed are "targets" or subjects" of the grand jury’s and the government’s investigation. These "targets" or "subjects" usually receive a "Target Letter" or "Subject Letter" informing them that they are targets or subjects, or put another way, the object, or one of the objects, of the grand jury’s and the government’s investigation. There is little difference between the term "target" and the term "subject" in the context of grand jury subpoenas. However, being identified as a "target" clearly means that the person is in the government’s cross-hairs.
The Fifth Amendment of the U.S. Constitution requires that anyone charged in federal court with "a capital. or otherwise infamous crime," which essentially means any felony providing for possible imprisonment of one year or more, must be charged by way of a grand jury indictment. An indictment is nothing more than a charging document which briefly states each alleged crime or crimes being charged separately. Each separate charge is referred to as a "Count" of the indictment. The indictment also cites to the federal statute or statutes the government is proceeding under at the end of each count. The indictment is presented to the members of the grand jury, who vote on it. There must be a "quorum" of at least 16 grand jury members present to consider any grand jury business, including the return of an indictment. . Fed. R. Crim. P. 6 (a)(1). If twelve or more grand jurors determine that there is probable cause to believe that the defendant or defendants listed in the indictment did commit the crime or crimes set out in the indictment, the grand jury returns a "True Bill," allowing the government to prosecute the defendant or defendants named in the indictment for the listed charges. Fed. Rule Crim. P. 6(f). The indictment is signed by the grand jury foreman, and at least one federal prosecutor. If 12 grand jurors cannot agree that there is probable cause to charge the target of the government’s investigation, a rare occurrence, to say the least, they return a "No True Bill." In contrast, Federal misdemeanors, crimes with possible sentences of less than one year, are charged by way of an information, which is essentially the same as an indictment, but is not presented to, or voted on, by a grand jury, and is not signed by the grand jury foreman. Instead, a federal prosecutor signs the information. The only way an information may be used in a case involving a felony is if the defendant waives his or her right to be charged by way of a grand jury indictment in open court and signs a written waiver. Fed. R. Crim. P. 7(b).
It is critically important that everyone receiving a grand jury subpoena consult with an experienced federal criminal defense attorney to discuss their situation and possible exposure to criminal charges. Even those who are not "targets" or "subjects" initially, can become so quite quickly. Often, this does not become clear until the person is sitting in the grand jury room testifying. Therefore, it is essential to consult with qualified legal counsel before responding to any grand jury subpoena. While the criminal defense lawyer cannot go into the grand jury room with the witness, the lawyer is allowed to remain immediately outside of the grand jury room. The witness may request to consult his or her attorney as often as needed while appearing before the grand jury, and must be excused and allowed a reasonable opportunity to consult with his or her lawyer while testifying before the grand jury. Very often, defense counsel can arrange to have the person receiving the grand jury subpoena meet with the government’s prosecutors and agents outside of the grand jury room for a oral proffer where defense counsel will be present to protect the witness and insure that the witness does not make things worse for themselves.
H. Manuel Hernández has been an attorney for over 34 years. He was a federal prosecutor for ten years before opening his own practice 24 years ago. Mr. Hernández has appeared before numerous federal grand juries around the country in countless cases as a federal prosecutor, and has represented both individuals and corporations who were subpoenaed by federal grand juries as a criminal defense counsel.
The grand jury is usually impaneled for 12 to 18 months, and may be extended for an additional 6 months if the court determines that an extension is necessary in the "public Interest. Fed. R. Crim. P. 6(g). Only the members of the grand jury, the court reporter, an interpreter, if needed, the prosecutors, and the witness being questioned may be present in the grand jury room while the grand jury is in session. Fed. R. Crim. P. 6(d)(1). No one but the members of the grand jury (or an interpreter needed to assist a hearing impaired grand juror) may be present when the grand jury is deliberating or voting. Fed. R. Crim. P. 6(d)(2).
There are generally two types of grand jury subpoenas, subpoenas to testify, and subpoenas duce tecum, which require the witness to produce documents or other items, and usually testify as well, at least about the documents and items being produced. When a person receives a grand jury subpoena, he or she must appear unless excused by the government’s prosecutor. A grand jury subpoena, like all subpoenas, are court orders, and if ignored, could subject the offender to possible prosecution for contempt and potential incarceration.
Many people subpoenaed to testify before a grand jury are merely witnesses. However, some people subpoenaed are "targets" or subjects" of the grand jury’s and the government’s investigation. These "targets" or "subjects" usually receive a "Target Letter" or "Subject Letter" informing them that they are targets or subjects, or put another way, the object, or one of the objects, of the grand jury’s and the government’s investigation. There is little difference between the term "target" and the term "subject" in the context of grand jury subpoenas. However, being identified as a "target" clearly means that the person is in the government’s cross-hairs.
The Fifth Amendment of the U.S. Constitution requires that anyone charged in federal court with "a capital. or otherwise infamous crime," which essentially means any felony providing for possible imprisonment of one year or more, must be charged by way of a grand jury indictment. An indictment is nothing more than a charging document which briefly states each alleged crime or crimes being charged separately. Each separate charge is referred to as a "Count" of the indictment. The indictment also cites to the federal statute or statutes the government is proceeding under at the end of each count. The indictment is presented to the members of the grand jury, who vote on it. There must be a "quorum" of at least 16 grand jury members present to consider any grand jury business, including the return of an indictment. . Fed. R. Crim. P. 6 (a)(1). If twelve or more grand jurors determine that there is probable cause to believe that the defendant or defendants listed in the indictment did commit the crime or crimes set out in the indictment, the grand jury returns a "True Bill," allowing the government to prosecute the defendant or defendants named in the indictment for the listed charges. Fed. Rule Crim. P. 6(f). The indictment is signed by the grand jury foreman, and at least one federal prosecutor. If 12 grand jurors cannot agree that there is probable cause to charge the target of the government’s investigation, a rare occurrence, to say the least, they return a "No True Bill." In contrast, Federal misdemeanors, crimes with possible sentences of less than one year, are charged by way of an information, which is essentially the same as an indictment, but is not presented to, or voted on, by a grand jury, and is not signed by the grand jury foreman. Instead, a federal prosecutor signs the information. The only way an information may be used in a case involving a felony is if the defendant waives his or her right to be charged by way of a grand jury indictment in open court and signs a written waiver. Fed. R. Crim. P. 7(b).
It is critically important that everyone receiving a grand jury subpoena consult with an experienced federal criminal defense attorney to discuss their situation and possible exposure to criminal charges. Even those who are not "targets" or "subjects" initially, can become so quite quickly. Often, this does not become clear until the person is sitting in the grand jury room testifying. Therefore, it is essential to consult with qualified legal counsel before responding to any grand jury subpoena. While the criminal defense lawyer cannot go into the grand jury room with the witness, the lawyer is allowed to remain immediately outside of the grand jury room. The witness may request to consult his or her attorney as often as needed while appearing before the grand jury, and must be excused and allowed a reasonable opportunity to consult with his or her lawyer while testifying before the grand jury. Very often, defense counsel can arrange to have the person receiving the grand jury subpoena meet with the government’s prosecutors and agents outside of the grand jury room for a oral proffer where defense counsel will be present to protect the witness and insure that the witness does not make things worse for themselves.
H. Manuel Hernández has been an attorney for over 34 years. He was a federal prosecutor for ten years before opening his own practice 24 years ago. Mr. Hernández has appeared before numerous federal grand juries around the country in countless cases as a federal prosecutor, and has represented both individuals and corporations who were subpoenaed by federal grand juries as a criminal defense counsel.
Monday, February 17, 2014
What Your Criminal Defense Lawyer Should Do to Represent You
By H. Manuel Hernandez hmanuelhernandezlaw.com
In previous posts I have discussed how to go about hiring a criminal defense lawyer, and things the client should do to assist the criminal defense lawyer in representing the client. Here, I will discuss what the criminal defense lawyer should be doing while representing someone under investigation or charged with a crime. Of course, each case is different. What a criminal defense lawyer should be doing varies greatly depending on the type of case, whether the case in in the investigatory (e.g., grand jury) stage, or charges have already been filed. Someone under investigation for, or charged with, a major securities or Medicare fraud matter or capital murder for example, will need far different representation than someone charged with driving under the influence of alcohol, trespassing, or shoplifting. However, whatever the charge is, the criminal defense lawyer must understand that it is the most important case in the world for the client, requiring all the attention necessary to insure the best result possible under the facts and the law. The focus of this post is not the details of the substantive work a criminal defense counsel should be doing in different types of case, but rather, a general overview of the what a criminal defense lawyer should be doing to let the client know what is happening with their case or investigation.
The criminal defense lawyer needs to maintain good communications with the client. This means the criminal defense lawyer should spend the time necessary to familiarize himself or herself with the client's case, the charges or potential charges if the client is still under investigation, the potential penalties if the client is convicted, and potential collateral consequences, such as, for example, the impact on a client's immigration status if the client is not a U.S. citizen, see, Padilla v. Kentucky, 559 U.S. , 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)(U.S. Supreme Court finding that it was ineffective assistance f counsel for a criminal defense lawyer not to advise a non-citizen client of the mandatory deportation consequence of pleading guilty), suspension of driver's license, registration as a sex offender in cases involving sex crimes and child pornography.
Also, according to recent decisions by the U. S. Supreme Court, it is now clear that the criminal defense lawyer must communicate all plea offers made by the prosecutor to the client, see Missouri v. Frye,___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and must provide competent advice to the client about whether to accept or reject the offer, see, Lafler v. Cooper, U.S., ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) and Padilla v. Kentucky, supra. Most competent criminal defense lawyers were doing this well before the Supreme Court said it is required. Criminal defense lawyers should also provide the client with copies of all pleadings, motions and court orders filed in the client's case, including pleadings and motions filed by the prosecutor. In sum, the criminal defense lawyer should keep the client aware of all important communications and events occurring in the client's case.
While the criminal defense lawyer should, and based on recent decision of the U.S. Supreme Court, has an ethical obligation to do these things, the client should remember that although their case is the most important case in the world to them, it is usually the only case the client has to deal with. Most criminal defense lawyers have many cases they are responsible for, and often, the criminal defense lawyer spends a great deal of his or her time addressing urgent matters in one case or another that need immediate attention. As such, the client should keep in regular touch with his or her criminal defense lawyer to insure that everything is getting done, and that the client is aware of everything happening in their case. Of course this does not mean that the client should be constantly calling his or her criminal defense lawyer, or make unreasonable demands. Most criminal defense lawyers should have no problem answering client's questions, and updating the client on what is going on with their case, and should welcome the client's input as the case proceeds.
H. Manuel Hernández has been practicing criminal law for over 30 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell® Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
While the criminal defense lawyer should, and based on recent decision of the U.S. Supreme Court, has an ethical obligation to do these things, the client should remember that although their case is the most important case in the world to them, it is usually the only case the client has to deal with. Most criminal defense lawyers have many cases they are responsible for, and often, the criminal defense lawyer spends a great deal of his or her time addressing urgent matters in one case or another that need immediate attention. As such, the client should keep in regular touch with his or her criminal defense lawyer to insure that everything is getting done, and that the client is aware of everything happening in their case. Of course this does not mean that the client should be constantly calling his or her criminal defense lawyer, or make unreasonable demands. Most criminal defense lawyers should have no problem answering client's questions, and updating the client on what is going on with their case, and should welcome the client's input as the case proceeds.
H. Manuel Hernández has been practicing criminal law for over 30 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell® Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
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