COMMON QUESTIONS

The following are some of the most frequently asked questions by clients:

1. How can this be happening to me and how do I select the right attorney?

This is the question most people ask themselves upon learning that allegations have been made against them. This period of disbelief is usually followed by retaining the services of an attorney. The name of the attorney is often provided by well meaning friends and/or relatives usually with little or no legal background, let alone criminal trial experience. Most business people do not know that many criminal attorneys have never successfully completed a full federal criminal trial inn which the jury return NOT GUILTY verdicts as to their client on all counts. Reference books which rate attorneys such as Martindale-Hubbell and the Bar Register of Pre-eminent Lawyers are available to be consulted before a decision is made. It is important to remember that the selection of an attorney is an important decision which should not be made solely based upon an advertisement. Additional information, concerning qualifications, education, and trial experience should be sought and are available upon request.

2. What are the important factors in determining the proper attorney for my case?

There are several factors that should be taken into consideration when selecting an attorney. These factors include:

1. Trial experience and results;

2. Certifications as specialist;

3. Rating by publications and peers;

4. Awards and membership recognition;

5. Years of practice; and

6. Performance in law school.

3. What is the definition of my offense?

Depending upon the offense in issue the client often asks what is the definition of the offense. The following text defines several of the customarily alleged violations of federal law.

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Income Tax Violations

[Caution: See 18 U.S.C. § 3571, under which
a larger fine may be imposed with respect to Section 7201.]

Attempt to Evade or Defeat Tax
(26 U.S.C. § 7201)

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.

Willful Failure to Collect or Pay Over Tax
(26 U.S.C. § 7202)

Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.

Willful Failure to File Return, Supply Information, or Pay Tax (26 U.S.C. § 7203)

Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution. In the case of any person with respect to whom there is a failure to pay any estimated tax, this section shall not apply to such person with respect to such failure if there is no addition to tax under section 6654 or 6655 with respect to such failure. In the case of a willful violation of any provision of section 6050 I, the first sentence of this section shall be applied by substituting “felony” for “misdemeanor” and “5 years” for “1 year”.

Fraud and False Statements
(26 U.S.C. § 7206)

Any person who -

(1) DECLARATION UNDER PENALTIES OF PERJURY. - Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter; or

(2) AID OR ASSISTANCE. - Willfully aids in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document; or

(3) FRAUDULENT BONDS, PERMITS, AND ENTRIES. - Simulates or falsely or fraudulently executes or signs any bond, permit, entry, or other document required by the provisions of the internal revenue laws, or by any regulation made in pursuance thereof, or procures the same to be falsely or fraudulently executed or advises, aids in, or connives at such execution thereof; or

(4) REMOVAL OR CONCEALMENT WITH INTENT TO DEFRAUD. - Removes, deposits, or conceals, or is concerned in removing, depositing, or concealing, any goods or commodities for or in respect whereof any tax is or shall be imposed, or any property upon which levy is authorized by section 6331, with intent to evade or defeat the assessment or collection of any tax imposed by this title; or

(5) COMPROMISES AND CLOSING AGREEMENTS. - In connection with any compromise under section 7122, or offer of such compromise, or in connection with any closing agreement under section 7121, or offer to enter into any such agreement, willfully-

(A) CONCEALMENT OF PROPERTY. - Conceals from any officer of employee of the United States any property belonging to the estate of a taxpayer or other person liable in respect of the tax, or

(B) WITHHOLDING, FALSIFYING, AND DESTROYING RECORDS. - Receives, withholds, destroys, mutilates, or falsifies, any book, document, or record, or makes any false statement, relating to the estate of financial condition of the taxpayer or other person liable in respect of the tax; shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 (%00,000 in the case of a corporation) or imprisoned not more than 3 years, or both, together with the costs of prosecution.

Attempts to Interfere with Administration of Internal Revenue Laws (26 U.S.C. § 7212)

(A) CORRUPT OR FORCIBLE INTERFERENCE.- Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letters or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both, except that if the offense is committed only by threats of force, the person convicted thereof shall be fined not more than $3,000, or imprisoned not more than 1 year, or both. The term “threats of force”, as used in this subsection, means threats of bodily harm to the officer or employee of the United States or to a member of his family.

(B) FORCIBLE RESCUE OF SEIZED PROPERTY. - Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than 2 years.

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FRAUD

Frauds and Swindles
(18 U.S.C. § 1341)

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimidated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which
it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title of imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

Fraud by Wire, Radio, or Television
(18 U.S.C. § 1343)

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

Bank Fraud
(18 U.S.C. § 1344)

Whoever knowingly executes, or attempts to execute, a scheme or artifice -

(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;

shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

Health Care Fraud
( 18 U.S.C. § 1347)

Whoever, knowingly and willfully executes, or attempts to execute, a scheme or artifice -

(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program,

in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such personal shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

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RACKETEERING

Laundering of Monetary Instruments (Money Laundering) (18 U.S.C. § 1956)

(a)(1) Whoever, knowing that the property involved in a financial transaction
represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity -
(A)(i) with the intent to promote the carrying on of specified unlawful activity; or

(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or

(B) knowing that the transaction is designed in whole or in part -
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under State or Federal law,

shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.

(2) Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States -

(A) with the intent to promote the carrying on of specified unlawful activity; or

(B) knowing that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity and knowing that such transportation, transmission, or transfer is designed in whole or in part -

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under State or Federal law,

shall be sentenced to a fine of not more than $500,000 or twice the value of the monetary instrument or funds involved in the transportation, transmission, or funds involved in the transportation, transmission, or transfer whichever is greater, or imprisonment for not more than twenty years, or both. For the purpose of the offense described in sub-paragraph (B), the defendant’s knowledge may be established by proof that a law enforcement officer represented the matter specified in sub-paragraph (B) as true, and the defendant’s subsequent statements or actions indicate that the defendant believed such representations to be true.

(3) Whoever, with the intent -

(A) to promote the carrying on of specified unlawful activity;
(B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; or

(C) to avoid a transaction reporting requirement under State or Federal law,

conducts or attempts to conduct a financial transaction involving property represented to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity, shall be fined under this title or imprisoned for not more than 20 years, or both. For purposed of this paragraph and paragraph (2), the term “represented” means any representation made by a law enforcement officer or by another person at the discretion of, or with the approval of, a Federal official authorized to investigate or prosecute violations of this section. (b) Whoever conducts or attempts to conduct a transaction described in subsection (a)(1) or (a)(3), or a transportation, transmission, or transfer described in subsection (a)(2), is liable to the United States for a civil penalty of not more than the greater of –
(1) the value of the property, funds, or monetary instruments involved in the transaction; or
(2) $10,000. * * *

Engaging in Monetary Transactions in Property derived from Specific Unlawful Activity (18 U.S.C. 1957)

(A) Whoever, in any of the circumstances set forth in subsection (d), knowingly engages or attempts to engage in monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity, shall be punished as provided in subsection (b).

(b)(1) Except as provided in paragraph (2), the punishment for an offense under this section is a fine under title 18, United States Code, or imprisonment for not more than ten years or both.

(2) The Court may impose an alternate fine to that imposable under paragraph (1) of not more than twice the amount of the criminally derived property involved in the transaction.

(c) In a prosecution for an offense under this section, the Government is not required to prove the defendant knew that the offense from which the criminally derived property was derived was specified unlawful activity.

(d) The circumstances referred to in subsection (a) are -

(1) that the offenses under this section takes place in the United States or in the special maritime and territorial jurisdiction of the United States; or

(2) that the offense under this section takes place outside the United States and such special jurisdiction, but the defendant is a United States person (as defined in section 3077 of this title, but excluding the class described in paragraph (2)(D) of such section)

(e) Violations of this section may be investigated by such components of the Department of Justice as the Attorney General may direct, and by such components of the Department of the Treasury as the Secretary of the Treasury may direct , as appropriate, and, with respect to offenses over which the Department of Homeland Security has jurisdiction, by such components of the Department of Homeland Security as the Secretary of Homeland Security may direct, and, with respect to offenses over which the United States Postal Service has jurisdiction, by the Postal Service. Such authority of the Secretary of the Treasury, the Secretary of Homeland Security, and the Postal Service shall be exercised in accordance with an agreement which shall be entered into by the Secretary of Homeland Security, the Postal Service, and the Attorney General.

(f) As used in this section-

(1) the term “monetary transaction” means the deposit, withdraw, transfer, or exchange, in or affecting interstate or foreign commerce, of funds or a monetary instrument (as defined in section 1956(c)(5) of this title), including any transaction that would be a financial institution (as defined in section 1956(c)(4)(B) of this title, but such term does not include any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution;

(2) the term “criminally derived property” means any property constituting, or derived from, proceeds obtained from a criminal offense; and

(3) the tern “specified unlawful activity” has the meaning given that term in section 1956 of this title.

(f) As used in this section-

(1) the term “monetary transaction” means the deposit, withdraw, transfer, or exchange, in or affecting interstate or foreign commerce, of funds or a monetary instrument (as defined in section 1956(c)(5) of this title) by, through, or to a financial institution (as defined in section 1956 of this title), including any transaction that would be a financial transaction under section 1956(c)(4)(B) of this title, but such term does not include any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth Amendment to the Constitution;

(2) the term “criminally derived property” means any property constituting, or derived from, proceeds obtained from a criminal offense; and

(3) the tern “specified unlawful activity” has the meaning given that term in section 1956 of this title.

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CONSPIRACY

Conspiracy to commit offense or to defraud United States (18 U.S.C. § 371)

If 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, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

HISTORICAL AND STATUTORY NOTES

Canal Zone

Applicability of section to Canal Zone, see § 14 of this title.

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4. What is the potential sentence for the offense alleged?

Criminal offenses generally fall into one of two categories – State or Federal. The State of Florida has developed guidelines which provide a range for the sentence. The guideline range is determined by the nature of the crime and the criminal history of the Defendant.

The United States has developed the Federal Sentencing Guidelines to promote uniformity in sentences brought in the Federal Courts. The offenses are divided by category such as offenses against persons, basic economic crimes, drugs, racketeering, taxation, etc. Each category of crime is contained in a designated part of chapter two of the Federal Sentencing Guideline Manual. Each particular crime is assigned a numerical base offense level. This offense level is increased as the amount in controversy increases. Many of the crimes have loss or weight tables that state the numerical increase to the base offense level.

Once the offense level is determined there are adjustments that may increase the offense level for factors such as multiple counts, multiple victims, sophisticated means, obstruction and the role in the offense (i.e. supervisor, manager, etc.). The offense level may be reduced for certain limited factors such as acceptance of responsibility and minor role. Once a final adjusted offense level is determined the Federal Sentencing Table provides the Court with a sentencing range.

The Federal Sentencing Guideline range is not mandatory however, the sentencing Court must consider the guidelines as well as the factors set forth in 18 U.S.C. section 3553 prior to rendering a sentence. A majority of the Courts render sentences within the recommended Federal Sentencing Guideline range. For further information please see U.S. Supreme Court decision in U.S. v Booker, 125 S.Ct. 738(2005).

The Federal Sentencing Table is

set forth below

The Defendant’s category is determined by his or her criminal history points. A person with no criminal history or only a prior misdemeanor receiving 1 point would be eligible for Category I. For example a person with a final offense level of 18 and no criminal history would fall into the 27 to 33 month sentencing range.

The Court may deviate from the guideline range in certain limit circumstances. However, upward and downward departures are the exception. To determine the sentencing guideline range in a case affecting you please consult an attorney.

The United States reports a conviction rate in excess of 90% in federal white collar crime cases and over 92% in federal criminal tax cases. It is estimated that less than 1% of all attorneys have successfully tried a federal criminal tax case. (Not guilty verdicts on all counts.) Before selecting an Attorney to represent you in a Federal white collar crime or criminal tax case it is important to ask for information concerning their complete trial experience.