FLORIDA PROSECUTORS MAY PURSUE CRIMINAL CHARGES TO TRIAL EVEN WHEN VICTIMS DON'T

Florida prosecutors often proceed toward a full prosecution even when the victim does not want to cooperate. In some crimes such as sexual battery on a minor or child pornography this makes sense because the victim isn't in a position to reliably gauge the full consequences of the prosecution. In other cases such as spouse battery the state has an interest in making certain that in the future the family unit is not subject to violent behavior. 

Prosecutor & Defendant at Trial

In fact in most cases that allege violent behavior such as aggravated battery or assault the state of Florida will look at the victim's desire to pursue prosecution as little more than a recommendation. In other violent acts such as murder, vehicular manslaughter or DUI manslaughter the desires of the deceased victim's family are considered only very late in the process after a plea or conviction and before sentencing to determine not whether charges should be pursued but how much prison time, if any, the family wants the presiding sentencing judge to give.

But why does the state sometimes prosecute nonviolent crimes such as scheme to defraud, fraud or grand theft even when a victim does not want to proceed? In truth in these cases the lack of victim cooperation can prove insurmountable to proving the case before a jury so are much less likely to be pursued by Florida state prosecutors who believe civil remedies are therefore sufficient. But even here it would depend on the nature of the theft. For example, someone found to have embezzled the youth baseball players fund is apt to be prosecuted despite unanimous victim support for non-prosecution as even prosecutors are arguably human and apt to want to throttle the perpetrator despite the wishes of the victims.

In Florida victims can't force dismissal of criminal charges by signing requests not to prosecute the defendant and delivering that request timely to the prosecutor. Instead the request is kept by the state attorney to help justify a no filing of the criminal charges or as evidence of the victim's possible lack of enthusiasm should things go wrong later. Nor can a victim control the outcome of a criminal case by trying to evade a witness subpoena for testimony at trial with much hope of success since occasionally judges punish the victim with jail after citing contempt of court where proof of evasion is evident.

WHY FEDERAL ECONOMIC CRIMES UNDER SECTION 2B1.1 SHOULD NOT BE DRIVEN BY VICTIM LOSS CALCULATIONS

Despite entrenched opposition from the Department of Justice and other prosecutorial organizations the United States Sentencing Commission's new changes for federal economic crimes (also known as white collar crimes) will take effect on November 1, 2015. Because federal sentencing for these crimes is driven almost entirely by dollar amounts of victim loss, many years of inflation made it far easier for federal prosecutors to demand hefty sentences in these cases with many federal judges lacking the courage to go under the sentencing guideline ranges.

Inflation Adjusted Victim Loss but no Common Sense

The new inflation adjusted victim loss amounts will reduce guideline ranges for most federal defendants facing these economic crimes that include scheme to defraud, fraud, embezzlement, theft and tax evasion. Yet the underlying problem in federal sentencing for these Section 2B1.1 economic crime cases has not changed in that the dollar amount of loss still drives the federal guideline range sentencing structure to the belittlement of other factors that should be relevant in sentencing. This is absurd. Although the dollar amount is important and a wise judge should certainly give it some consideration, in many cases the dollar amount alone dictates a long prison term. 

In fact many first time nonviolent offenders are sent to federal prison for hefty terms for these economic crimes, thus denying the defendants the ability to ever make restitution to their victims. Since federal sentencing is rigged so that the amount of loss is the over-riding factor in these cases, you'd think some consideration might be given to those who actually suffered the monetary loss. What do the victims actually want? Isn't it likely that most victims would prefer defendants to make restitution than languish in prison? In a just society it should be a very rare thing to punish any first time nonviolent economic crime offender with prison.

Clearly Federal Judges (rather courageous or not) should be given an array of sentencing options in these federal criminal cases based on the entire criminal conduct including factors such as the number of victims, the average loss per victim, the likelihood of restitution and the period of time over which the crime occurred. These factors combined with any prior history of criminal conduct and personal characteristics of the defendant should then be weighed by the judge in forming the sentence without the judge forced to give undue consideration to the total loss amount as delineated in the Section 2B1.1 federal sentencing guideline amendment. 
Ultimately fair sentencing should be about more than merely adding up a list of losses to place nonviolent economic criminals in federal prison, it's about doing what's right for the victim, for the defendant and for society.

MAKING VIABLE JUDGMENT OF ACQUITTAL ARGUMENTS IN FEDERAL SCHEME TO DEFRAUD & EMBEZZLEMENT TRIALS

Here is a question often faced by lawyers while in federal trial. The question deals with whether the Government presented enough evidence to the federal jury to survive a contemplated Rule 29 motion.

Heads I win; tails you lose!

A Federal Rule 29 motion is a federal motion for a Directed Verdict also known as a Judgment of Acquittal which is made after the Government has rested (presented it's entire case in chief); the defense may renew the motion once it rests. If at the end of it's case in chief the Government has not established all of the elements of the charged offense, then the Judge grants the Directed Verdict in favor of the Defense - except of course for courts in Florida, where it's normally handled by a fair flip of the coin.

The basic theory of the government’s case in a wire fraud trial is that the defendant embezzled money from his employer's bank account. The government introduced a number of e-mails sent from the defendant's e-mail account to the employer's broker. In the e-mails the employee seeks to have the broker send money into the employer's bank account, but without any false statements actually being made. Aren't false material statements necessary for the Government to survive a Rule 29 motion?

The four essential elements which the federal government must prove to establish wire fraud are the following:

First, that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money. 

Second that the defendant acted with the intent to defraud. 

Third, that it was reasonably foreseeable for the Defendant that interstate wire communications would be used during the course of the scheme.

Fourth, that interstate wire communications were in fact used.

Evidence of material false pretenses, representations, or promises must be introduced in order for the Government to establish that a  scheme to defraud has occurred. Even assuming that the Government did not admit further evidence that would establish the scheme to defraud, then the Rule 29 motion still likely would not be granted by the Federal District Judge. 

Most judges broadly construe criminal statutes and the evidence of possible guilt thus allowing the Government to make an argument to the jury that the emails themselves may establish guilt. The very act of requesting money to be sent may be sufficient to establish false pretenses and false representations. Clearly, if the money the employee asked for was not to actually be used by his boss, but by the employee, then the emails would seem to be useful in establishing his mens era (the mental state of the defendant), his criminal intent as well as his possible false representations all in furtherance of the scheme to defraud. 

Even if the judge isn't likely to grant the motion, or if it's not even a viable theory, it's clearly important to at least make an oral Rule 29 motion once the Government rests to preserve your client's appellant opportunities. It's also a good argument to make for the jury that there's reasonable doubt in the case especially if the Government failed to provide evidence of the money trail actually linking the defendant to it's use or enjoyment.

WHAT IS THE SURPRISING FEDERAL CRIME WOMEN COMMIT IN GREATER NUMBERS THAN MEN AND WHY?

While parsing thru the new fiscal year report from the Federal Sentencing Commission, your favorite Clearwater Criminal Defense Attorney found a surprising statistic struggling to be set free among the gender based findings. The report unexpectedly notes that women outnumber men in only one category of crime in Federal Criminal Sentencing, which crime do you think it is? 

Degas, Mary Cassatt & Cash, 1880

Here's a hint. It's not drug trafficking though at nearly 30% of all federal offenses women commit, it represents by far the highest number of women offenders. 

Yet the number of men committing federal drug trafficking far exceeds women who are often used by men as low level operatives or drug mules to transport or sell drugs.

So that leaves us with the intriguing question of which Federal Crime women commit in greater numbers than men. As the Sentencing Commission report notes it's embezzlement:

In the fiscal year 86.5 percent of all offenders were men, compared with 86.5 percent in fiscal year 2007, and 86.0 percent in fiscal year 2002. Among female offenders, the most common crime was drug trafficking (28.8% of all women offenders). Embezzlement was the only crime for which female offenders outnumber male offenders (50.3% to 49.7%)

Before you decide to hire only men to keep those accounts of your business safe, lets look at why women commit federal embezzlement more than men. 
A look at the Federal Code Chapter 31 for Theft and Embezzlement reveals that there's a blurred line between mere Theft and the more sophisticated theft within an Embezzlement. Embezzlement is a theft that also violates a fiduciary duty of trust to an employer or other entity. I suspect that women happen to be in greater positions of trust, not only because they're more trustworthy, but because their jobs may tend to place them in closer proximity to liquid assets, such as the teller's access to cash at a bank. 
A recurring problem in complex Federal Grand Jury Embezzlement Indictments of alleged white collar crime in Tampa Bay Florida Federal Court is over-broad statutes that result in over-criminalization where Defendants are charged with crimes such as embezzlement without proven criminal intent nor knowledge that what was done was illegal. For example, a company book keeper is ordered by the Company's Chief Financial Officer to keep a second set of books for unknown reasons. Should she be charged in a federal embezzlement scheme?
If you've been charged with a white collar crime such as fraud, forgery, theft or embezzlement, you should seek the advice of a Clearwater Criminal Defense Lawyer who will find the best possible solutions to protect your future.

TIME PERCEPTION & SENTENCING IN TAMPA BAY, FLORIDA

Remember the eternal bliss of summer vacation when you were a child, wearing your new yellow rain hat even on the brightest sunny day in Tampa Bay Florida because you were so proud of it - your favorite Clearwater Criminal Defense Lawyer doesn't remember that either but why should I be expected to remember something from your life as I can hardly recall mine? For your grandmother that summer was a prelude to her lonely gray winter ending as quickly as the bowl of melting ice cream you shared with her (make mine an Italian chocholate macadamia nut, please).

The passage of time is the very measure of our lives. As we age the perception of time passing speeds for each of us as the taper of our lives burns ever faster.

Since people at different times in their lives perceive the passage of time differently, doesn't that imply that say, a five year sentence of jail to a twenty year old man is, if not harsher, certainly felt subjectively as being in actual time longer, than the same five year sentence given to the sixty year old convicted of a white collar crime, scheme to defraud or embezzlement (who happily, unlike the twenty year old, can actually pay me)?

But what if the twenty year old is a new mother? How will those five years be felt by her and by her innocent child? And wouldn't incarceration affect a youthful offender or juvenile much differently than someone of another age. Yet the courts tend to treat everyone alike especially with Florida Sentencing Guidelines and Florida Sentencing Scoresheets controlling what Judge's will sentence and reducing judge's discretion. Shouldn't a judge be able at sentencing to take these factors into account? Don't we want our judges to have the ability to occasionally seek out the best solutions for each Defendant?

But today in St. Petersburg, Clearwater, Largo and Tampa Bay, Florida when a judge sentences a Defendant most of the decision-making process with which the judge ought to be entrusted has already been declared out of bounds by Florida Statutes and Federal law, that have made honest, fair, impartial judges subservient to minimum mandatory sentences, mathematical tables and immoveable sentencing guidelines.

Any civilized and rational legal system that even Clearwater Criminal Defense Attorneys could cherish, would allow a judge at sentencing to take many other considerations in hand with the traditional considerations that include the severity of the misconduct, any prior misconduct, and the likelihood of future misconduct.