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 and had 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 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.
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.
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
(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.
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 subparagraph (B), the defendant’s knowledge may be established by proof that a law enforcement officer represented the matter specified in subparagraph (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. * * *
3. 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 Table is set forth below.
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SENTENCING TABLE
(in months of imprisonment)
|
|
Criminal History Category (Criminal History Points)
|
|
|
I
|
II
|
III
|
IV
|
V
|
VI
|
|
ZONE
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Offense Level
|
(1 or 2)
|
(3 or 4)
|
(4,5,6)
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(7,8,9)
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(10,11,12)
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(13 or more)
|
|
Zone A
|
1
|
0 - 6
|
0 - 6
|
0 - 6
|
0 - 6
|
0 - 6
|
0 - 6
|
|
2
|
0 - 6
|
0 - 6
|
0 - 6
|
0 - 6
|
0 - 6
|
1 - 7
|
|
3
|
0 - 6
|
0 - 6
|
0 - 6
|
0 - 6
|
2 - 8
|
3 - 9
|
|
4
|
0 - 6
|
0 - 6
|
0 - 6
|
2 - 8
|
4 - 10
|
6 - 12
|
|
5
|
0 - 6
|
0 - 6
|
1 - 7
|
4 - 10
|
6 - 12
|
9 - 15
|
|
6
|
0 - 6
|
1 - 7
|
2 - 8
|
6 - 12
|
9 - 15
|
12 - 18
|
|
7
|
0 - 6
|
2 - 8
|
4 - 10
|
8 - 14
|
12 - 18
|
15 - 21
|
|
8
|
0 - 6
|
4 - 10
|
6 - 12
|
10 - 16
|
15 - 21
|
18 - 24
|
|
Zone B
|
9
|
4 - 10
|
6 - 12
|
8 - 14
|
12 - 18
|
18 - 24
|
21 - 27
|
|
10
|
6 - 12
|
8 - 14
|
10 - 16
|
15 - 21
|
21 - 27
|
24 - 30
|
|
Zone C
|
11
|
8 - 14
|
10 - 16
|
12 - 18
|
18 - 24
|
24 - 30
|
27 - 33
|
|
12
|
10 - 16
|
12 - 18
|
15 - 21
|
21 - 27
|
27 - 33
|
30 - 37
|
Zone D
|
13
|
12 - 18
|
15 - 21
|
18 - 24
|
24 - 30
|
30 - 37
|
33 - 41
|
|
14
|
15 - 21
|
18 - 24
|
21 - 27
|
27 - 33
|
33 - 41
|
37 - 46
|
|
15
|
18 - 24
|
21 - 27
|
24 - 30
|
30 - 37
|
37 - 46
|
41 - 51
|
|
16
|
21 - 27
|
24 - 30
|
27 - 33
|
33 - 41
|
41 - 51
|
46 - 57
|
|
17
|
24 - 30
|
27 - 33
|
30 - 37
|
37 - 46
|
46 - 57
|
51 - 63
|
|
18
|
27 - 33
|
30 - 37
|
33 - 41
|
41 - 51
|
51 - 63
|
57 - 71
|
|
19
|
30 - 37
|
33 - 41
|
37 - 46
|
46 - 57
|
57 - 71
|
63 - 78
|
|
20
|
33 - 41
|
37 - 46
|
41 - 51
|
51 - 63
|
63 - 78
|
70 - 87
|
|
21
|
37 - 46
|
41 - 51
|
46 - 57
|
57 - 71
|
70 - 87
|
77 - 96
|
|
22
|
41 - 51
|
46 - 57
|
51 - 63
|
63 - 78
|
77 - 96
|
84 - 105
|
|
23
|
46 - 57
|
51 - 63
|
57 - 71
|
70 - 87
|
84 - 105
|
92 - 115
|
|
24
|
51 - 63
|
57 - 71
|
63 - 78
|
77 - 96
|
92 - 115
|
100 - 125
|
|
25
|
57 - 71
|
63 - 78
|
70 - 87
|
84 - 105
|
100 - 125
|
110 - 137
|
|
26
|
63 - 78
|
70 - 87
|
78 - 97
|
92 - 115
|
110 - 137
|
120 - 150
|
|
27
|
70 - 87
|
78 - 97
|
87 - 108
|
100 - 125
|
120 - 150
|
130 - 162
|
|
28
|
78 - 97
|
87 - 108
|
97 - 121
|
110 - 137
|
130 - 162
|
140 - 175
|
|
29
|
87 - 108
|
97 - 121
|
108 - 135
|
121 - 151
|
140 - 175
|
151 -188
|
|
30
|
97 - 121
|
108 - 135
|
121 - 151
|
135 - 168
|
151 -188
|
168 - 210
|
|
31
|
108 - 135
|
121 - 151
|
135 - 168
|
151 -188
|
168 - 210
|
188 - 235
|
|
32
|
121 - 151
|
135 - 168
|
151 -188
|
168 - 210
|
188 - 235
|
210 - 262
|
|
33
|
135 - 168
|
151 -188
|
168 - 210
|
188 - 235
|
210 - 262
|
235 - 293
|
|
34
|
151 -188
|
168 - 210
|
188 - 235
|
210 - 262
|
235 - 293
|
262 - 327
| |
