GRAND JURY INDICTS TAMPA BAY DETECTIVES: USING POLICE DATABASES TO COMMIT TAX & IDENTITY FRAUD

For several years the federal government has declared the Tampa Bay area to be the national hotbed of tax fraud even to the extent that a drug search once instead yielded a $500 million dollar tax fraud scheme in Tampa. But no wonder tax fraud continues to blossom in the bay area, if it's true that Tampa police detectives were in on the creation and manipulation of false tax returns. 

Even disgraced Detectives need money now & then.

A Middle District of Florida grand jury in Tampa recently indicted two detectives who allegedly disgraced not only their badges but their marriage by using the official police database to give a third person information used by that person to make fake tax returns. The tax refund money was then used according to the indictment by the married Tampa police detectives to pay down credit cards and repair their swimming pool. Apparently their combined salary of well over $150,000 just wasn't enough to live in the style they felt they deserved as detectives. Under federal criminal law the use of the databases could add two years to the federal sentence if convicted. 

Among the databases allegedly abused during the course of the criminal conduct was the Florida state driver and motor vehicle records from which provided relevant protected private information such as social security numbers, dates of birth, full names and addresses. The fraudulent tax refund requests could then be made to look genuine. 

One victim of the tax fraud was a witness to an attempted murder. This is especially shameful and disappointing if proven true. Within a week of his data being mined by sign-on logins from the two married detectives a fake bank account was opened in the witness's name, eventually filling the account with money from the fraud. Even good citizens might justifiably be reluctant to be involved in the criminal process if their vital personal information isn't safe and secure even from the police who conduct investigations. But in the Tampa Bay area police conduct has repeatedly been questioned such as when a Pinellas Sheriff's Detective resigned incident to an internal affairs investigation after being accused of using fake subpoenas, donning the clothes of utility workers to avoid applying for proper search warrants and possibly committing burglary and armed trespass. Instead of just allowing officers to resign or firing them, officers must be held to the same standards as the citizens they are sworn to protect. Perhaps if these earlier insidences of clear police misconduct had been followed with indictments of police officers, these two detectives would not have given into temptation.

Among the other charges the former detectives face are money laundering, obtaining information from a protected computer, aggravated identity theft, wire fraud, theft of government property and of course conspiracy since it would seem there was allegedly an agreement by the couple to carry out a plan to conduct criminal activity. One can't help but wonder where it went wrong for these two people. Were they fundamentally corrupt? Or were they good detectives who became jaded by the the day to day corruptions one often sees from police, and which are tolerated by not only the Tampa Police Department but by the Pinellas Sheriff's Office, the Clearwater Police Department and the Largo Police Department, such as when an officer tells a lie while on the witness stand. The truth as any prosecutor, judge or defense attorney will tell you is that officers often have incentives to commit perjury. Maybe if police departments took every incidence of police misconduct seriously these larger problems of police integrity and honesty would be almost unheard of.

AMERICAN INJUSTICE - THE FORMER HOUSE SPEAKER'S GUILTY PLEA IN HUSH MONEY CASE SHOWS FBI FAILURE

It may not be a problem a typical American daily faces, yet providing hush money, lying to the FBI about it and then being subjected to criminal prosecution for encroaching on the $10,000 bank limits is a signal that in the United States our Federal prosecutors and FBI agents have far too much leverage to force guilty pleas in questionable cases. I'm referring of course to former house speaker Dennis Hastert's plea of guilty in federal court this morning. My hope was that somehow this train wreck would be avoided and that better minds in search of authentic American justice, perhaps even a federal judge, would prevail in stopping his change of plea to guilty.

An American flag smothers Speaker Hastert 

This case stinks. Let's count the ways. First, federal prosecutors and/or federal agents broke federal law by leaking information about the case to taint the defense and benefit the federal prosecution. When Hastert was arrested, law enforcement let it be known that $3.5 million in hush money had been paid by Hastert to keep a long ago possible victim of child abuse from publicly identifying him as a former sexual batterer or predator of children. Why the leak by the feds? Because someone desperate enough to pay that kind of hush money, would do anything to avoid a public trial that airs out everything.

Second, Hastert foolishly talked to the FBI agents without a federal criminal defense attorney being present. The indictment details the essence of the actual provable crime established by the government - that Hastert lied to FBI agents about why he was taking out large sums of cash in $50,000 increments. He stated that he didn't trust the banking system when in truth he was paying hush money. So what does the FBI do? Rather than investigate the possible blackmail Hastert was subjected to, it pulled out the infamous Martha Stewart option of charging federal felonies for not being honest with FBI agents. When one ponders the Stalinist aspect of these statutes how can one help but think they are un-American. No wonder as a condition of his change of plea to the more substantial charges this one was dropped as a condition of the change of plea and the federal plea agreement. But make no mistake this was the dagger that with the leaked publicity of the hush money forced Hastert to change his plea to guilty.

Third, the federal prosecutors and the FBI have placed themselves in the unfortunate position of appearing to condone blackmail. Whatever Hastert did or didn't do the FBI investigation revealed that he broke the banking law in order to provide a substantial amount of money to keep a dark secret hidden. 

As for the alleged blackmailer, did he report this windfall of cash as income and pay proper taxes on it? Did he place the cash in banks under the $10,000 limit in an attempt to skirt the banking law, thus breaking it? Was the alleged blackmailer as direct and honest with the FBI agents as Hastert was when they came to say hello? Was the agreement of payments between the alleged blackmailer and the congressman simply a cover for another crime? 

Finally, Hastert is 73 years of age and does not appear to be in good health. A reasonable prosecution and investigation would take his age, health and the underlying facts of his situation into account in making a finding that it would be in no ones best interest to prosecute Hastert least of all whoever it was who was  blackmailing him. Congressman or Blackmailer balance the words on your tongue till they both come spitting out. 

And now what will happen to Hastert? Isn't it punishment enough that this man must admit he was once a Congressman and was even elected their speaker? Under the Federal Sentencing Guidelines that the Federal sentencing judge must use in determine a fair sentence for Hastert he could receive up to five years for the crime, but more likely under the prevailing federal sentencing scoresheet a sentence of between zero to six months is likely.

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.

BEST EARLY RELEASE STRATEGY IN FEDERAL CRIMINAL SENTENCING IN THE MIDDLE DISTRICT OF FLORIDA

After the initial sentencing in federal court it is still possible to secure a second sentencing to obtain a better sentence under Rule 35. This is true even if your client has already received a lower sentence under the 5K provision for co-operation. Typically in the Middle District of Florida the Government will not file for a Rule 35 sentencing departure unless there has been extraordinary work from the defendant on the Government's behalf. 

A typical example of extraordinary co-operation after conviction and sentencing for a federal crime would be the giving of testimony to a grand jury or federal trial jury against a fellow co-conspirator in a complex criminal case that results in an indictment or a conviction of a federal crime. In one significant federal criminal case in the Middle District of Florida that I handled a defendant was well rewarded by prosecutors after he lured a co-conspirator from a country without an extradition treaty with the United States to a country with an extradition treaty. 

Federal Prison Drug Program for early release?

Another significant way to reduce the release date after sentencing is for the defendant to successfully complete the federal drug program while in federal custody. Typically there is a long waiting list for acceptance into the program. The federal inmate drug program itself includes classes that must be taken over the course of about eighteen months or so while in custody. The benefit is an entire year early of the sentenced release date. 

Unfortunately, because of the time it takes to complete the course and the waiting list, the beneficiaries of this federal prison program tend to be those defendants convicted of drug trafficking cases. Also, the program is open only to those federal prisoners who have established a drug problem with addictive behavior at sentencing or thru the Pre-sentencing Report. All too often defendants will mischaracterize and minimize their addiction problems to the probation officer assigned to conduct and complete the Pre-sentencing Report (PSR) with the result that the Bureau of Prisons (BOP) as directed by federal law will not grant access to the drug treatment program.

If the PSR does not reference any addictive behavior that can be proven, then the initial sentencing should include evidence to the federal district judge of addiction thru the testimony of the defendant, family, friends, psychiatrist or therapist for the judge to make an informed finding on the record that the addiction exists and recommend the drug program. It's also important to formally request that the judge amend the PSR to include the reference to the formal finding of addiction. Otherwise the BOP may not have ready access to the judge's decision that overruled the probation officer's assessment in the PSR.

These examples show that it's necessary to have an effective strategy before the initial sentencing which successfully will lay the groundwork for either a more beneficial second sentencing or early release thru Bureau of Prisons programs. Because the vast majority of federal defendants are forced to plead guilty, effective defense lawyers should plan early release strategies within and outside the federal sentencing guidelines well before sentencing in federal criminal in the Middle District of Florida in Tampa. 

PINELLAS POLICE ADMIT INCOMPETENCE & FAILURES OF COLLECTION, STORAGE & ANALYSIS OF EVIDENCE

Integrity, Fidelity & Faulty Evidence

The St. Petersburg Police Department has cut a deal to pay the far better trained and equiped Pinellas County Sheriff's Department (PCSO) for help in collecting, storing and analyzing evidence gathered at crime scenes. Even when evidence was properly collected the police department no longer had room to properly store the evidence possibly tainting the forensic laboratory work. Oddly the cash agreement only involves "significant criminal cases" such as sexual battery, aggravated battery, burglary, firearm cases, murder, DUI manslaughter and child pornography. 

The problem with this reasoning by the St. Petersburg Police Department (SPPD) is that every allegation of criminal misconduct is very significant to the person whose life, property and reputation are at risk. That allegation of grand theft or even petty theft case can still ruin someone's life. As a fundamental right of justice every defendant within Pinellas County should always have access to only the very best possible collection, storage and analysis of all the evidence in his or her case. Yet the reliability of Tampa Bay expert forensic testimony even in fingerprint cases has been in doubt for years.

In a deep moral sense the plea for help to PCSO is a commendable admission of failure that attempts to remedy past incompetence. The new Chief of Police is cleaning up the problems he inherited; problems he clearly did not cause. The police department should be lauded not attacked for it's new found honesty as to it's current inabilities. 

Yet one wonders how many times SPPD officers have taken the stand and testified under oath about evidence that was improperly seized, collected or tested. The act of asking for help from the Pinellas County Sheriff's Department begs the question of when exactly that help was needed. When did the SPPD find that the threshold of honest evidence was not met? Shouldn't a grand jury be convened to find out?

No wonder so many defendants refuse jury trials because they believe that the criminal justice is rigged to find them guilty. But what about those defendants already arrested or convicted by false or faulty forensics? Shouldn't doubtful cases dependent upon the St. Petersburg Police Department's admitted forensic failures be reopened? Shouldn't collected evidence be reexamined and reanalyzed by the more competent PCSO?

Prosecutors and the SPPD have a moral responsibility to dig deep, reviewing every trial, checking each conviction and rewinding any forced changes of plea to bring the facts to judges so that false charges are dismissed and those awaiting justice in prison are finally freed.