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Is the Federal Prosecution Being Fair In the College Admission Scandal Cases?

Posted By admin 2019-11-13 17:56:01

The current college admission scandal involving several wealthy and even celebrity defendants is an example of the media and wider conversation turning true legal matters into a sort of public soap opera. These federal crime cases deserve more than a predictable punchline. Let’s talk about the moral messages and fairness regarding the prosecution strategies and sentencing in the federal cases.

The Story So Far
There are 52 defendants who were federally indicted in this case, most of them parents who tried to get their children into college through fraudulent test scores or paying to have them recruited into college athletic programs. The defendants have faced federal charges of bribery, conspiracy to commit mail fraud, money laundering, and honest services mail fraud. This also means they could face double digit prison sentences in federal prison.
The most famous of the defendants in the federal cases are actors Felicity Huffman and Lori Loughlin; they both represent the different defense routes taken in these cases. Huffman is an example of someone having taken a plea deal. She already served time for pleading guilty to paying for altered test scores. She was sentenced to 14 days but served 12 days in prison. Another defendant was sentenced to one month in prison for paying for a better ACT score for his child.

And this begs the age old question: is it fair that white collar offenders tend to receive more lenient sentences than other types of federal defendants and other types of federal crime cases? As a federal crimes lawyer in Los Angeles, it is readily apparent that defendants tend to receive more severe prison sentences for drug trafficking, child pornography, and/or RICO charges. Is this fair?

Strategy and Ethics
This question must be considered in the context of prosecutorial discretion and ethics. Federal prosecutors routinely threaten to add new charges to a defendant’s federal case as what some have called a scare tactic. It is a way to try to scare defendants into taking plea deals they didn’t want or maybe don’t deserve to take.

Despite these scare tactics, Loughlin has taken the bolder route of pleading not guilty to her criminal charges and, therefore, awaiting trial. This defense strategy could lead to no prison time if she is found not guilty during trial. The other side of that coin is a guilty verdict, which without a plea deal, could mean much more prison time than several days. And as a result of this decision, she may experience what criminal defense lawyers in Los Angeles refer to as a “trial tax.” – facing increased penalties (more charges, a lengthier prison sentence) simply for exercising her constitutional right to trial.

Has Advantage Become Disadvantage For Defendants?
Cases like this college admission scandal become widely known not just because they involve the wealthy and the famous. There is usually an underpinning of larger legal and societal themes at the core of the issue. In this case, the theme is the societal advantage of wealth.
First, there is the societal advantage that these wealthy parents have and allegedly used their money to secure their kids a leg up into school and the world thereafter. The money helped them help their kids in ways less affluent parents can’t help their own.

Their money helps these same people afford a criminal defense that will more likely help them avoid a conviction or severe sentencing. Less wealthy parents charged with varying types of crime throughout the country deserve a proper criminal defense but can’t always afford to fight like those in these cases.

The judge in this case, Judge Indira Talwani, however, seems set on making an example of the defendants in the college admission cases. She says she hopes incarcerating the men and women will serve as a deterrent for others out there who might be tempted to engage in this same “entitled” behavior. This also begs the question: is it fair to make an example of these defendants just because they are wealthy and famous?

Conclusion
Through today’s constant media buzz, it is easy to think of certain so-called “scandals” as mere pop culture conversation. But these “scandals” are not a joke to the people involved, and they are not a joke in terms of the bigger picture of the ethical, legal matters the notorious cases present.

As a criminal defense lawyer who handles lots of cases involving federal fraud crimes, I have seen how these cases can be twisted to bully defendants. An experienced defense lawyer like me can help see through the prosecution’s strategy in order to best identify the wisest route for my client.

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California Bail Reform Act (Senate Bill 10) Will Not Protect Against Preventative Detention

Posted By admin 2018-08-27 01:50:51

The California Bail Reform Act, Senate Bill 10, proposes to eliminate the bail fee system, but could replace one harmful system with another. The money bail system must be stopped: it undermines the presumption of innocence, leads to false guilty pleas, and disproportionately affects racial minorities and indigents. However, Senate Bill 10 is unlikely to promote pretrial justice and proscribes procedures that could violate due process.

First, Senate Bill 10 excludes broad categories of people from release from custody pre-arraignment. This includes low-level violations if the person has a pending case, and persons arrested for restraining order violations (even if the arrest turned out to be wrongful or the restraining order invalid). Further, the bill would give local courts practically unlimited power to carve out other exclusions from release, resulting in county courts having the ability to detain practically anyone accused of a crime. These overbroad categories render meaningless the presumption in favor of releasing all but a specified few defendants before trial.

Second, the bill provides unfettered discretion for judges at arraignment to order preventative detention. For instance, a court would be able to order detention if the defendant has a pending case or is on probation, regardless of how minor the previous and new charges are. The new system would allow judges to inappropriately hold people in preventative detention without having to set a bail amount.

Third, the incarceration decision is influenced by profile-based risk assessment tools that are not objective assessors of risk. These risk assessment tools take limited information about an individual—including arrest and conviction history—to create a profile, then make a statistical estimate of the likelihood that individual will get re-arrested or miss a court date based on data about other people with similar profiles. These tools tend to reinforce the system’s ingrained biases and lack transparency.

The risk categories required in the proposed legislation are policy choices, meaning that whoever controls the implementation of the tools can decide how broad to make each category. This adjustability of scoring is significant given the proposed scheme in which anyone labelled “high risk” cannot be released pre-arraignment and will have a presumption of preventive detention.

Fourth, the bill would make the probation department responsible for recommending release or detention and conditions of supervised release, while allocating supplemental funding for probation departments depending on how many people they supervise and what level of supervision.

Senate Bill 10 must be reformed to provide for community oversight. It should also include rules requiring judges to look at each defendant’s unique circumstances, and limit the power of county courts to create overbroad categories for presumptive detention.

In the meantime, defense lawyers should continue to thoroughly interview clients about their backgrounds and present detailed, individualized submissions on bail. For instance, if a client falls within a high-risk category for absconding, the defense lawyer should be prepared to show the court that this client has never missed a court date and has strong ties to the community.

Thorough preparedness will also strengthen a client’s chances at release. In my practice in Los Angeles, I prepare both written and oral submissions whenever possible so that I have already presented my client in a favorable light to the judge before the bail hearing. This upfront work will help ensure the court and prosecution are aware of the factors favoring release in spite of the problems with the new bail system.

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U.S. Supreme Court Will Review the Problematic Separate Sovereigns Exception

Posted By admin 2018-07-10 20:48:09

The United States Supreme Court agreed recently to consider whether to overturn a longstanding rule that allows federal and state prosecutions for the same offense. The cert petition filed on behalf of Terrance Gamble was granted, allowing the Court to decide “[w]hether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”

Mr. Gamble is challenging his prosecution by federal officials for possessing a firearm as a felon after Alabama state had already convicted and sentenced him for the same offense. The Double Jeopardy Clause forbids the government from prosecuting a person more than once for the same offense, but courts have long held that this only bars reprosectution by the same sovereign. Put simply, under what is known as the “separate sovereign” exception, the federal government may reprosecute a person after a state prosecution (and vice versa). A defendant can therefore be prosecuted by both the state government and the federal government for the same offense.

My firm in Los Angeles practices criminal law at both the state and federal levels, giving me a unique opportunity to observe how the separate sovereigns exception is applied in California. I have noticed (and been disturbed by) duplicative federal-state prosecutions becoming increasingly common. This trend is in part because of the growing scope of federal criminal law. In addition, I think that states are benefiting from the exception to help fill investigative gaps, or refine legal arguments, that led to exoneration at the federal level. (The same goes for the federal government). Furthermore, the separate sovereigns exceptions appears to be applied more frequently in high profile cases, and/or cases involving serious charges that carry serious social stigma. For instance, the Justice Department recently brought charges against alleged Charlottesville attacker James Fields Jr., who is already awaiting a state trial in Virginia.

Mr. Gamble’s case is instructive on why the separate sovereigns exception raises serious constitutional issues and is ripe for challenge. For defendants like Mr. Gamble, the separate sovereigns exception can result in a lengthier time in custody. As a result of the duplicative conviction, Mr. Gamble must spend an additional three years of his life behind bars. This result is incompatible with the text of the Double Jeopardy Clause, and with the original purpose of the Clause and federalism more broadly. As Mr. Gamble’s petition for a write of certiorari explains:

The court-manufactured “separate sovereigns” exception— pursuant to which [Mr. Gamble’s] otherwise plainly unconstitutional duplicative conviction was upheld— is inconsistent with the plain text and original meaning of the Constitution, and outdated in light of incorporation and a vastly expanded system of federal criminal law.

I agree with Mr. Gamble’s position. The purpose of the Double Jeopardy Clause is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to stigma, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. The separate-sovereigns exception cannot be reconciled with this purpose.

That the separate sovereign exception has drawn scrutiny from liberal and conservative justices alike points to its fundamental unfairness. UCLA law professor Eugene Volokh noted that both Justices Ruth Bader Ginsburg and Clarence Thomas recently questioned the doctrine’s viability. While I am disturbed that the separate sovereigns exception is being applied more readily, I am optimistic that the Supreme Court will find that the exception cannot be squared with the Double Jeopardy Clause and should no longer apply.

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New Ninth Circuit ruling paves way for defense lawyers to argue that prior felony convictions for robbery under California statute should not be treated as “crimes of violence”

Posted By admin 2018-06-11 04:51:01

The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors under the United States federal courts system. The Guidelines determine sentences based primarily on two factors: (1) the conduct associated with the offense; and (2) the defendant’s criminal history. I spend a considerable amount of time on each of my federal cases strategizing how to arrive at the most favorable sentence for my clients under the Guidelines. The Guidelines involve a complex series of rules, and it is important for defense lawyers to stay on top of how federal courts interpret controversial areas of these rules.

Thankfully, the Ninth Circuit provided helpful guidance for the defense this past week on cases involving prior felony convictions for robbery. Under the Guidelines, the base offense level for offences can vary depending on whether the defendant has one or more prior felony convictions for a “crime of violence.” The Guidelines define the term “crime of violence” as any offense under federal or state law, punishable for a term exceeding one year, that either: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) falls within certain enumerated violent offences.

In Edling, the Ninth Circuit found that the district court erred in treating the appellant’s previous robbery and coercion convictions under Nevada law as a crimes of violence. Accordingly, it vacated a sentence for being a felon in possession of a firearm and remanded for resentencing.

In essence, the Ninth Circuit ruled that robbery, under Nevada law, is not a crime of violence because it can be accomplished by instilling fear or injury to property alone. The panel found that Nevada’s robbery statute sweeps more broadly than the Guidelines’ definition of a crime of violence, which requires physical force against a person. The panel further found that the robbery under Nevada law is unlike generic robbery, listed as an enumerated offence clause for crimes of violence, because generic robbery requires danger to the person, not merely danger to property. Similarly, the panel concluded that the new Guideline definition of extortion, also listed as an enumerated offence in the crimes of violence clause, does not include a threat to property.

I view the Edling decision as an exciting win for California, especially for federal clients with prior felony convictions for robbery under California statute. The Edling holding on robbery under Nevada law will likely control the question for robbery prior convictions under California law. The Ninth Circuit has previously ruled in a few cases that Nevada’s robbery statute is materially indistinguishable from California’s robbery statute. Accordingly, the Ninth Circuit should rule in future cases that robbery, under California law, is not a crime of violence. Going forward, defense lawyers should fight against any prosecutor’s claim that robbery in California is a crime of violence.

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Public Facebook Communications Deemed Disclosable to the Defense, and There May Be a Constitutional Argument to Obtain Private Facebook Communications

Posted By admin 2018-05-28 19:55:11

The Supreme Court of California found this week that public Facebook communications are disclosable to the defense pursuant to a lawful subpoena. Criminal lawyers have circulated this ruling, Facebook v. Supreme Court, widely in the Los Angeles defense community that I am part of. However, another important course of argument for the defense to pursue that has not received as much attention is also alluded to in the Facebook decision. In my view, the defense may also be able to argue that federal limits on disclosure of private or restricted electronic communications are unconstitutional when they undermine Fifth and Sixth Amendment rights.

The Stored Communications Act (SCA) imposes a federal limit on compelled disclosure from Internet sites, including Facebook. The SCA declares that, generally, service providers like Facebook may not disclose stored electronic communications except under specified circumstances. Exceptions include when a social media user consents to production of communications that she posted, and when such communications are compelled by law enforcement through search warrants or prosecutorial subpoenas. The defense, until this week, was long at a disadvantage when it came to obtaining production of electronic communications from servers like Facebook.

This week, the California Supreme Court ruled in Facebook v. Superior Court that public posts fit the SCA’s lawful consent exception, and that a provider must disclose public communications pursuant to a subpoena that is authorized under state law. Private or restricted communications between Internet users are deemed protected. There is some ambiguity to this ruling. For instance, how does a court distinguish public and private? Does a user need to set her entire profile as “public” in order for the communication to fall within an exception? Is there a limit on the number of people a communication can be sent to before it falls within the exception and can be compelled? The Court also left open whether accounts that were public and then changed to private could be subpoenaed. These issues are ripe for litigation.

Importantly, the Court also did not resolve the issue of whether the SCA is unconstitutional to the extent that it purports to afford providers a basis to refuse to comply with defense subpoenas. The defendants in the Facebook v. Superior Court matter argued that the SCA infringed their federal constitutional rights under the Fifth and Sixth Amendments to a fair trial, to present a complete defense, and to cross-examine witnesses support their subpoenas. No court has ever found the SCA to be unconstitutional on this ground. The Court of Appeal rejected this argument on the basis that a criminal defendant’s right to pretrial discovery is limited, though it has observed that the SCA might eventually need to be declared unconstitutional to the extent that it precludes enforcement of such a trial subpoena issued by the trial court itself, or by defendants, with production to the court.

Given the Court of Appeal’s observations, and the Supreme Court of California’s decision to decide the case on other grounds, it seems that defendants may be able to raise this constitutional argument when electronic communications are treated as restricted or private and thus not producible. I seek production of social medial communications in many of the criminal cases that I defend, and I am very excited to litigate this issue in the future.

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