FEDERAL CRIMINAL LAWYER http://www.federalcriminallawyer.us Sami Azhari, Attorney at Law Sat, 27 Feb 2016 15:46:32 +0000 en-US hourly 1 https://wordpress.org/?v=4.6.7 Violence Against The Police in Illinois http://www.federalcriminallawyer.us/2016/02/27/violence-against-the-police-in-illinois/ Sat, 27 Feb 2016 15:46:32 +0000 http://www.federalcriminallawyer.us/?p=1784 Defenses to Charges By Police

If you are a criminal defendant that has been accused of violence or other misconduct against a police officer, it is important to recognize the severity of the crimes filed against you. Even in a time such as now where the media is emphasizing a general mistrust of police officers, police officers are government employees that have many legal protections afforded to them, particularly in the line of duty.  Some common crimes against police officers include resisting arrest, disorderly conduct, assault, battery, or harassment.

Evidence

Violence against the police allegations usually arise during the course of an arrest for another crime. The arrestee is frustrated by the circumstances and may act out accordingly. It can be difficult for anyone to remain level-headed during this emotionally-charged time, especially if you are a victim of police misconduct or harassment. Luckily, in the technological age we live in, there are more protections available to criminal defendants than ever before to ensure that police acted within the bounds of the law and their discretion during a stop, questioning, or arrest. Consider that most police vehicles are equipped with audio and/or video equipment that can come to your aid in determining the circumstances of an arrest now, which greatly improves your chances of proving the alleged misconduct against you. Physical evidence, photographic evidence, and witness testimony may also prove helpful in your defense.

The more amount of time that passes between your arrest and your trial, however, the less resources will be available. Tapes get discarded. Witnesses forget important details. This critical evidence can be preserved only with quick action and being proactive in hiring an experienced defense attorney immediately after your arrest will ensure that pertinent evidence is maintained and that your legal rights are protected.

Defenses

Officers acting outside the scope of their employment with the government, or acting off-duty, are generally not protected by the many legal provisions afforded to on-the-job officers. Therefore, if an officer was not acting in the scope of his or her duty, some protections may not apply and the officer may be found personally liable for their egregious actions. Second, self-defense is often a valid defense in these cases as well. If you have been threatened, injured, or felt that your safety was in jeopardy, you often have a right to protect yourself (yes, even against police officers). While fighting back might not have been the best decision, it does not necessarily mean that you did something wrong in the eyes of the law.

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Understanding White Collar Crime http://www.federalcriminallawyer.us/2016/02/23/understanding-white-collar-crime/ Tue, 23 Feb 2016 22:44:45 +0000 http://www.federalcriminallawyer.us/?p=1781 Federal White Collar Crimes

“White collar crime” is traditionally recognized as a financially-motivated crime committed by people at large companies or those in power positions. While this is often the case, white collar crimes can be committed by anyone. These crimes range from misallocation of client funds to unlawfully usurping government benefits such as Social Security or Unemployment.

White collar crimes are charged almost exclusively at the federal level. The differences between the state and federal court systems are vast, but federal crimes are generally far more severe and carry much greater punishments than state crimes. A criminal can be charged at the federal level if the underlying crime involves anything that spans across state borders, such as a crime scheme organized via the internet, the telephone, or physical transportation over state lines (consider: child pornography online, drug trafficking across state or federal borders). With the vast information accessible via the Internet, many federal crimes also arise out of unlawful action taken online. Some of the primary white collar crimes today include:

  • Commingling client accounts
  • Wire fraud
  • Insider trading
  • Computer crimes
  • Mortgage fraud
  • Credit card fraud
  • Identity theft
  • Evading taxes
  • Bank Fraud
  • Price gouging
  • Any other fraud or impropriety regarding funds or identity

As you can see, most of the above crimes involve some form of dishonesty in financial settings that can be accomplished via the internet or telephone. Most of these crimes also involve misrepresentation (such as identity theft) and impropriety (such as price gouging). The underlying trend of dishonesty in these crimes, in addition to the large amounts of money often at stake in these matters, demonstrate the reasons these charges are so severe and charged at the federal level.

The victims of these crimes are often innocent third parties that are seeking justice for alleged wrongdoing; however, there are many defenses available to those accused of white collar crime that vary depending on the charges filed against you and the circumstances of the case. If you were working at the direction of someone else, for example, or if you did not know or have reason to know that your actions were contributing to unlawful activity, you may have a valid legal defense.

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Keeping your record clean after an arrest for retail theft http://www.federalcriminallawyer.us/2014/10/19/keeping-your-record-clean-after-an-arrest-for-retail-theft/ Sun, 19 Oct 2014 18:42:38 +0000 http://www.federalcriminallawyer.us/?p=1776 Illinois Retail Theft Laws

Getting arrested for retail theft can have serious consequences on someone’s future. If someone is caught committing retail theft, they will typically be approached by a loss prevention specialist or an agent of the store after they have completed a purchase of any other items, or walked by the registers without paying. Store agents will wait until the suspect has walked past the registers because they are the “last point of sale,” and the suspect’s last chance to pay for the stolen merchandise. After being approached the defendant will be asked to accompany the store agents to a back room and empty out their pockets or purse. Once an item of the store is discovered, the police will be contacted. It is best not to say anything or make any unnecessary admissions, as those could be damaging in the criminal case.

The retail theft statute is 720 ILCS 5/16-25. It provides that retail theft is a Class A misdemeanor, punishable by up to 364 days in jail and a fine of up to $2,500. However, if the value of the stolen merchandise exceeds $300, then the charge becomes a Class 4 felony, punishable by 1 to 3 years in the Illinois Department of Corrections. The higher the value of the stolen merchandise, the more serious the charges become. Once charged a defendant will be given a court date.

The best resolution to a retail theft case, like any other criminal case, is a dismissal. Thankfully, certain counties have a theft diversion program, which allows the defendant to complete a theft school program, or perform community service. Once the program or the community service is complete, the defendant must return to court and show proof of completion. The charges against the defendant are then dismissed. This is also known as deferred prosecution. It allows the court to suspend the case while the defendant completes the required program or community service.

Regardless of the dismissal, the arrest remains on the defendant’s record. For a clean record, the defendant must file a petition for expungement. A judge will then have the ability to grant or deny that request.

 

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Summary suspension of a driver’s license after DUI arrest: an explanation of Illinois law http://www.federalcriminallawyer.us/2014/10/05/summary-suspension-of-a-drivers-license-after-dui-arrest-an-explanation-of-illinois-law/ Sun, 05 Oct 2014 19:15:44 +0000 http://www.federalcriminallawyer.us/?p=1770 Statutory Summary Suspension After DUI Arrest

Getting arrested for a DUI can be a scary ordeal. In most cases, a driver is driving late at night and suddenly pulled over for a traffic violation. Once the police officer approaches the vehicle and detects even a slight odor of an alcoholic beverage, a DUI investigation begins. In all likelihood, once the DUI investigation begins, the officer has already made up his mind as to impaired driving due to bloodshot and glassy eyes, and an odor of alcohol.

Once placed under arrest, a driver faces severe penalties of their driving privileges, most of which will depend on whether it is their first or subsequent DUI, and whether or not they refused to take a breath, blood, or urine test. Contrary to popular belief, there is no penalty for refusing the field sobriety tests at the scene, or the portable breath test. The suspension on the driver’s license occurs only with the chemical testing after the arrest, usually by way of a breathalyzer. The suspension is known as a Statutory Summary Suspension and automatically begins 46 days after the arrest. Regardless of what happens with the actual criminal charge, the suspension remains in effect.

A driver charged with a first DUI will face a 6 month suspension if they choose to take the breathalyzer test. In the event they refuse, they are threatened with a 12 month suspension instead. A driver charged with a second or subsequent DUI will be faced with a 12 month or 3 year suspension if they take or refuse to take the test, respectively. Therefore, the penalties are far different depending on which offense a driver is facing.

A driver should keep in mind that the license suspension has nothing to do with the criminal charges they are facing. It is important to have an attorney file a petition to rescind the statutory summary suspension as it may be the driver’s only method of getting any kind of driving relief.p[

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Driving under the influence of alcohol: a summary of Illinois law http://www.federalcriminallawyer.us/2013/12/22/driving-under-the-influence-of-alcohol-a-summary-of-illinois-law/ Sun, 22 Dec 2013 16:36:17 +0000 http://www.federalcriminallawyer.us/?p=1671 Chicago DUI

While driving under the influence is a misdemeanor offense, the consequences may be more serious than a felony. This is because a conviction has additional penalties not seen for other crimes.

A conviction for DUI results in a revoked driver’s license. And a revoked license can, hypothetically, last forever.

The offense of DUI is codified in the Illinois Vehicle Code at 625 ILCS 5/11-501. The statute provides that an individual can be guilty of driving under the influence of alcohol in Illinois in two ways:

First, a person is guilty if the alcohol concentration in his blood or breath is 0.08 or higher. See 11-501(a)(1). This section is known as DUI per se in the respect that regardless of whether the driver is impaired, if his BAC is 0.08, he is guilty. Section (a)(1) enforces the legal limit.

The State’s Attorney will use the results of a breathalyzer test or blood test to prove the defendant’s guilt in these cases. The Illinois State Police have a practice of certifying breathalyzer machines for accuracy. Nonetheless, the practice is prone to error. The defendant can question the accuracy and reliability of the testing methods.

Second, a motorist is guilty of the offense of DUI if he is ‘under the influence of alcohol.’ See 11-501(a)(2). Under Section (a)(2), the accused is guilty if he is impaired.

The Illinois Supreme Court has defined ‘under the influence’ in its pattern jury instructions.

23.29 Definition Of Under The Influence Of Alcohol

A person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care.

And so, the issue is whether the prosecution can prove beyond a reasonable doubt that the accused was so impaired that he couldn’t exercise ordinary care.

To prove its case, the prosecution will have the arresting officer testify that the defendant failed standardized field sobriety tests. These tests were developed by the National Highway Traffic Safety Administration (NHTSA). While the tests are standardized, they are not always administered properly. If the police officer fails to follow protocol, the accuracy of the tests are compromised.

In all prosecutions, the defendant can contest whether the police had probable cause to make the arrest. If there is a finding of no probable cause, the case will be dismissed.

For example, the arresting officer must have reasonable suspicion that the defendant violated the law, or was about the violate the law, before making a traffic stop. If the officer cannot articulate a basis for stop, the court will quash the arrest.

Each case should be reviewed carefully for probable cause and evidentiary issues.

One thing I am fond of saying is, ‘It’s not what you know, it’s what you can prove.’ When people come to my office after getting arrested for DUI, I remind them, ‘I don’t care whether you’re guilty. The question is whether the prosecution can prove it.’

If there is any cause for optimism after getting arrested for DUI, it’s the fact that the prosecution has to prove it. The accused, on the other hand, doesn’t have to prove anything. The accused is presumed innocent.

The rules favor the defendant.

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Illinois domestic battery prosecutions: reviewing the law and penalties http://www.federalcriminallawyer.us/2013/03/13/domestic-battery-prosecutions-reviewing-the-law-and-penalties/ Wed, 13 Mar 2013 20:02:56 +0000 http://www.federalcriminallawyer.us/?p=1637 Chicago Domestic Battery

Domestic battery is one of the most common criminal charges prosecuted in Illinois courts. The number of arrests is so large that most courthouses have a courtroom that is dedicated to hearing these cases only.

All courthouses in Cook County have one or more courtrooms dedicated to hearing these cases. For examples, all Chicago arrests for domestic battery are assigned to 555 W. Harrison St, known as the Domestic Violence Courthouse. The building hears the following cases:

  • orders of protection filed where no criminal charges are pending (750 ILCS 60/101 et seq)
  • orders of protection filed along with criminal charges (725 ILCS 5/112A-1 et seq)
  • stalking no contact orders under 740 ILCS 21/1 et seq
  • all criminal cases involving a family or household member defined under the Illinois Domestic Violence Act, 725 ILCS 5/112A-3(3)
  • Class 1, 2, and 3 felony matters involving a family or household member up to arraignment
  • Class 4 felony cases involving a family or household member through trial and sentencing
  • misdemeanors in which the victim is a family or household member
  • stalking (720 ILCS 5/12-7.3)  and aggravated stalking (720 ILCS 5/12-7.4)

Arrests in suburban Cook County are assigned to one of the municipal districts (Skokie, Rolling Meadows, Maywood, Bridgeview or Markham). All the judges presiding over these matters come from the Domestic Violence Division.

Domestic battery is a Class A misdemeanor offense. The potential penalty is up to one year in jail and a maximum fine of $2,500. The offense itself is found in the Illinois Criminal Code at 720 ILCS 5/12-3.2.

The statute reads as follows:

A person commits domestic battery if he or she knowingly without legal justification by any means:

(1) Causes bodily harm to any family or household member;

(2) Makes physical contact of an insulting or provoking nature with any family or household member.

Prosecutors with the Cook County State’s Attorney charge domestic battery under both sections, 720 ILCS 5/12-3.2(a)(1) and 720 ILCS 5/12-3.2(a)(2).

The bodily harm charge is especially serious, because if found guilty and sentenced to jail, the defendant is not eligible for early release. While other offenders can receive day-for-day credit reducing their sentences, offenders who are convicted of an offense causing bodily harm receive no day-for-day credit under the County Jail Good Behavior Allowance Act, 730 ILCS 130/3. This statute says: “a person who inflicted physical harm upon another person in committing the offense for which he is confined shall receive no good behavior allowance.”

A battery is charged as a domestic when there is a relationship between the defendant and the victim. That relationship is defined in the following way:

“Family or household members” include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers as defined in Section 12-4.4a of the Criminal Code of 2012. For purposes of this paragraph, neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship. In the case of a high-risk adult with disabilities, “family or household members” includes any person who has the responsibility for a high-risk adult as a result of a family relationship or who has assumed responsibility for all or a portion of the care of a high-risk adult with disabilities voluntarily, or by express or implied contract, or by court order.

See 725 ILCS 5/112A-3(3).

Domestic battery is one of the very few misdemeanors for which the court cannot give the defendant supervision. See 730 ILCS 5/5-6-1(c). Supervision is not a conviction and the record of supervision can be expunged. It is usually the preferred outcome in a criminal case.

But in a domestic battery case, the defendant has to be sentenced to a conviction. This is a mandatory minimum penalty. The conviction cannot be expunged or sealed. See 20 ILCS 2630/5.2(a)(3)(C)(iii). It is defined as a crime of violence under the Crime Victims Compensation Act, 740 ILCS 45/2(c), and such offenses are barred from expungement and/or sealing.

The conviction for domestic battery will also disqualify the defendant from ever possessing a firearm. The State Police will reject an application for a Firearm Owners Identification Card (FOID) pursuant to 430 ILCS 65/4(2)(ix).

The possession of a firearm by a person convicted of domestic battery can result in federal prosecution:

Upon conviction of domestic battery, the court shall advise the defendant orally or in writing, substantially as follows: “An individual convicted of domestic battery may be subject to federal criminal penalties for possessing, transporting, shipping, or receiving any firearm or ammunition in violation of the federal Gun Control Act of 1968 (18 U.S.C. 922(g)(8) and (9)).”

720 ILCS 5/12-3.2(d).

As you can see, the law is not on the defendant’s side in these cases. It is crucial to retain an attorney with knowledge and experience.

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Investigative alerts allow Chicago police to make false arrests without warrants or probable cause http://www.federalcriminallawyer.us/2013/03/06/investigative-alerts-allow-chicago-police-to-make-false-arrests-without-warrants-or-probable-cause/ Wed, 06 Mar 2013 19:17:31 +0000 http://www.federalcriminallawyer.us/?p=1627 Investigative Alert Arrest

With the help of local media, the public is learning more about a dubious practice by the Chicago Police Department of making warrantless arrests based on questionable information.

The Tribune reported the story of Frank Craig, an Army veteran who sued the City of Chicago for his arrest in 2006. Police officers arrested him inside his residence without a warrant, but justified the arrest on the basis of an ‘investigative alert.’

Craig filed a civil rights lawsuit and reached a settlement with the City of $570,000 in 2011.

The use of investigative alerts is legally questionable at best, and a flagrant violation of the constitution at worst. Anyone who was arrested pursuant to an investigative alert may have a cause of action against the City of Chicago and the arresting officers for violation of his civil rights under 42 USC 1983.

The investigative alert is an intra-department notice that police officers rely on to take someone into custody. It is not an arrest warrant. Rather, it is a administrative order to arrest a person based on information that they were involved in a crime at some point in time.

An arrest warrant is obtained through a judge. In order to get one, a police officer would submit an application along with a sworn statement and the judge would review it for probable cause. If the judge finds probable cause, an arrest warrant is issued.

But an investigative alert completely bypasses the legal procedure for obtaining an arrest warrant. There is no application, no sworn statement, and no judge looking for facts that constitute probable cause. Instead, the police issue the alert and any officer who finds the suspect is ordered to take him into custody.

The Chicago Police Department is estimated to have more than 2,000 investigative alerts outstanding that would direct its officers to arrest a person. Under special order, the Chicago police have two forms of investigative alerts:

  1. Investigative Alert / Probable Cause to Arrest
  2. Investigative Alert / No Probable Cause to Arrest

See Chicago Police Department Special Order S04-16.

The names themselves are misleading because no judge has made a legal finding of probable cause. Instead, it was the police who made that determination independently. While the use of investigative alerts was in practice before the current special order, this order issued March 6, 2001 changed the name from ‘stop order’ to investigative alert, most likely to deflect the accusation that it is an order to arrest. Download CDP Special Order S04-16.

The investigative alert commands the officer to do the following:

Officers who run name checks on individuals who have an Investigative Alert / Probable Cause to Arrest on file will:

a. take the subject into custody if not already in custody.

b. process the arrestee in accordance with the procedures outlined in the Department directive entitled “Processing Persons Under Department Control.” Indicate on the Arrest Report (CPD-11.420) that the arrestee is the subject of an Investigative Alert / Probable Cause to Arrest.

See CPD Special Order S04-16.

As it stands, the investigative alert is a violation of the state constitution (Article I, Section 6) and federal constitution (4th Amendment), which both require a warrant based on probable cause to arrest. Basically, the only circumstance in which an arrest is legal without a warrant is when the police observe the suspect commit a crime. But investigative alerts concern alleged crimes that took place months and years earlier. They lie dormant in the Chicago police database until that person or someone matching his description is encountered by an officer.

The Illinois Code of Criminal Procedure would also ban an arrest made pursuant to an investigative alert:

Sec. 107-2. Arrest by Peace Officer.

(1) A peace officer may arrest a person when:

(a) He has a warrant commanding that such person be arrested; or

(b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction; or

(c) He has reasonable grounds to believe that the person is committing or has committed an offense.

See 725 ILCS 5/107-2.

Prosecutors have argued that investigative alerts give the police officer ‘reasonable grounds to believe that the person has committed an offense.’ But the alerts do not provide probable cause or even reasonable grounds. The information is old and vague. If the arresting officer were to make an application for a warrant based on the information in an investigative alert, the judge would deny it.

These alerts are so often criticized that the Federal Bureau of Investigation does not even include them in its nationwide fugitive database.

The victim of an investigative alert should consult with counsel about an action for false arrest and false imprisonment. Such an arrest is a violation of constitutional rights guaranteed by the 4th Amendment of the US Constitution, which prohibits unreasonable searches and seizures.

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Cook County jail overcrowding: inmate population almost at maximum capacity http://www.federalcriminallawyer.us/2013/03/03/cook-county-jail-overcrowding-inmate-population-almost-at-maximum-capacity/ Sun, 03 Mar 2013 18:36:54 +0000 http://www.federalcriminallawyer.us/?p=1601 Cook County Jail Overcrowding

Sheriff Tom Dart is concerned because the while the jail is not yet at capacity right now, the Cook County jail population swells during the summer months when more offenders are arrested.

The highest-ever number of prisoners was 11,000 in the year 2002. The overcrowding led to inmates sleeping on concrete floors and trading off sleeping times on beds.

Conditions at the jail are under monitoring by federal authorities. In the past, conditions were so deplorable that a federal judge ordered the sheriff to improve conditions at the jail. Inmates filed a class action lawsuit in 1974 complaining that the overcrowding violated their civil rights. It resulted in an order called the Duran consent decree binding all parties.

Inmates at the jail are held on bond set by judges in the Circuit Court of Cook County, or held on warrants from other jurisdictions while waiting for transport (eg, extradition). Defendants convicted of misdemeanors serve their sentences at the jail, but felony offenders serve theirs at the Illinois Department of Corrections.

US District Court Judge Virginia Kendall oversees the consent decree and has ordered the sheriff and Circuit Court of Cook County Chief Judge Timothy Evans to file statements on reducing the population through electronic monitoring.

Electronic monitoring, called EM for short, is available for prisoners who cannot post bond on non-violent offenses. These inmates are released to home confinement with an ankle bracelet.

Cook County Board President Toni Preckwinkle wants more inmates to be placed on EM as a cost-saving measure. Preckwinkle has criticized judges for setting bond too high.

“The unfortunate truth is that our judges have shown a reluctance to set bond at an amount that people can actually pay,” she added.

Illinois law provides a procedure for the release of offenders prior to trial on recognizance (called an I-bond or signature bond):

When from all the circumstances the court is of the opinion that the defendant will appear as required either before or after conviction and the defendant will not pose a danger to any person or the community and that the defendant will comply with all conditions of bond, which shall include the defendant’s current address with a written admonishment to the defendant that he or she must comply with the provisions of Section 110-12 of this Code regarding any change in his or her address, the defendant may be released on his or her own recognizance.

See 725 ILCS 5/110-2.

When the judge determines that it is appropriate to require the offender to post bond (called a deposit bond or D bond), the court is guided by the following:

The amount of bail shall be:

(1) Sufficient to assure compliance with the conditions set forth in the bail bond, which shall include the defendant’s current address with a written admonishment to the defendant that he or she must comply with the provisions of Section 110-12 regarding any change in his or her address. The defendant’s address shall at all times remain a matter of public record with the clerk of the court.

(2) Not oppressive.

(3) Considerate of the financial ability of the accused.

(4) When a person is charged with a drug related offense involving possession or delivery of cannabis or possession or delivery of a controlled substance as defined in the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act, the full street value of the drugs seized shall be considered. “Street value” shall be determined by the court on the basis of a proffer by the State based upon reliable information of a law enforcement official contained in a written report as to the amount seized and such proffer may be used by the court as to the current street value of the smallest unit of the drug seized.

See 725 ILCS 5/110-5(b).

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Summary of aggravated identity theft under federal law http://www.federalcriminallawyer.us/2011/12/08/summary-of-aggravated-identity-theft-under-federal-law/ Thu, 08 Dec 2011 21:56:27 +0000 http://www.federalcriminallawyer.us/?p=1094 Agg ID Theft | Federal Felony

Federal law has two statutes that address the crime of identity theft. The first is 18 USC 1028. Congress passed this statute as part of the Identity Theft and Assumption Deterrent Act in 1998. This was the first federal statute concerning the crime of identity theft, which is a modern offense.

The offense of identity theft was established by section 1028(a)(7). That section provides that a person is guilty of identity theft if he uses the identifying information of another in connection with any federal crime or any state or local felony.

Thus, the federal crime of identity theft requires a predicate offense. This is to say that a person can only be charged with identity theft if he first commits another crime, and while doing so, he also commits identity theft.

Under section 1028(a)(7), a person is guilty of identity theft when he or she “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.”

Federal prosecutions for identity theft under 18 USC 1028 are probably rare. The reason is this statute has been replaced by a more severe statute prohibiting identity theft, the second statute, 18 USC 1028A.

18 USC 1028A establishes the offense of aggravated identity theft. This statute became law in the United States in 2004. It prohibits the use of identifying information belonging to another in two instances: first, in regards to certain federal offenses; and second, in relation to terrorism offenses.

The Department of Justice prefers to prosecute offenders under section 1028A because the penalties far exceed those that are available under the earlier law, 18 USC 1028.

Aggravated identity theft has a mandatory two-year sentence in the Bureau of Prisons. This sentence must be served consecutively to any other sentence.

Most sentences for various crimes run concurrently. This means that a person found guilty of two or more crimes will serve the sentence imposed on each crime simultaneously. For example, if a person receives a sentence of one year on the first crime, and three years on the second, he will serve a total of three years.

Compare this situation to someone who serves sentences consecutively. A defendant who is sentenced to one year on the first crime and three years on a second crime will serve four years total. Consecutive sentencing means that the sentences run one after the other.

The consecutive nature of sentencing for aggravated identity theft under 18 USC 1028A is important because the case always involves two sentences. Recall that identity theft generally involves two elements: first, the defendant used identifying information that belonged to another person; and second, the use of this information occurred during the commission of another crime. In this respect, identity theft consists of identity theft combined with another crime.

18 USC 1028A requires federal courts to sentence the defendant to two years prison to be served after the sentence for the underlying crime. Section 1028(b) provides rules for sentencing in these cases. The statute prohibits the judge from allowing the sentences to run concurrently. Instead, the court must sentence the defendant consecutively. And so, whatever the sentences for the underlying crime, a person charged with aggravated identity theft must serve two years after that.

In addition, federal law prohibits the judge from reducing the sentence on the underlying crime to account for the two-year consecutive add-on. The only situation in which the court may sentence the defendant to concurrent sentences for aggravated identity theft is where there are multiple convictions for aggravated identity theft. In this instance, each two-year consecutive sentence for aggravated identity theft may be served at the same time, but always after the sentence on the underlying crime.

18 USC 1028A provides that a person is guilty of aggravated identity theft where he or she commits a crime and also “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”

The crimes which trigger the aggravated identity theft statute are the following:

  • 18 USC 641 (theft of public money or property)
  • 18 USC 656 (theft, embezzlement, or misapplication by a bank officer or employee)
  • 18 USC 664 (theft from employee benefit plans)
  • 18 USC 911 (false personation of citizenship)
  • 18 USC 922(a)(6) (false statements made in connection with the acquisition of a firearm)
  • Any crime from Chapter 47 of the criminal code relating to fraud and false statements (e.g., 18 USC 1001)
  • Any crime from Chapter 63 of the criminal code relating to mail, bank, and wire fraud (e.g., 18 USC 1341, 1343, and 1344)
  • Any crime in Chapter 69 of the criminal code relating to nationality and citizenship
  • Any offense in Chapter 75 of the criminal code relating to passports and visas
  • 15 USC 6821 relating to obtaining customer information by false pretenses (see penalty provision at 15 USC 6823)
  • Violations concerning willfully failing to leave the United States after deportation and creating a counterfeit alien registration card (e.g., see penalty provisions at 8 USC 1253 and 1306)
  • Various immigration offenses (e.g., 8 USC 1321-1330)
  • False statements relating to Social Security programs (e.g., 42 USC 408, 1011, 1307(b), 1320a–7b (a), and 1383a)
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Overview of tax evasion and its elements http://www.federalcriminallawyer.us/2011/09/29/overview-of-tax-evasion-and-its-elements/ Thu, 29 Sep 2011 20:41:22 +0000 http://www.federalcriminallawyer.us/?p=1072 Tax Evasion | 26 USC 7201 Charge

In order to convict the accused during trial for tax evasion, the United States Attorney must prove beyond a reasonable doubt each and every one of the elements of the offense. Failure to prove any element beyond a reasonable doubt must result in an acquittal.

The crime of tax evasion is found at Title 26, United States Code, Section 7201. The statute provides the elements of tax evasion are the following:

  1. A tax deficiency.
  2. An affirmative act of evasion or attempted evasion of tax.
  3. Willfulness by the defendant.

The burden of proof is on the government, the defendant is presumed innocent, and the defendant need not prove his innocence.

The offense of tax evasion is a felony, not a misdemeanor. The fact that the amount owed in taxes is small does not make the crime any less serious.

Tax evasion can be punished by 5 years in prison and fines. The fines increase relevant to the amount that is owed, but this is determined by the Federal Sentencing Guidelines. The statute provides that the maximum fine is $100,000. If the defendant is a corporation rather than a person, the maximum fine is $500,000.

In addition to fines, the offender will be required to pay restitution (eg, the tax that was owed).

Some federal judges have required that the government must prove that the tax deficiency, or amount owed, is substantial. However, the statute does not have a requirement of a substantial amount owed in taxes.

That being said, the Department of Justice is typically not interested in cases where the amount owed is small. Some lawyers have estimated the US Attorney is only interested in cases where the deficiency is at least $70,000.

The fact that a person has unpaid taxes does not necessarily constitute tax evasion. The statute provides that a person with a tax deficiency is guilty of tax evasion only where that person committed some affirmative act to evade paying taxes. Moreover, the affirmative act must have been willful.

Federal courts have said that almost anything can constitute an affirmative act to evade taxes. For instance, keeping a double set of books, making false entries in records, altering records, generating false invoices or receipts, concealing assets or sources of income, or handling business in a way to avoid any records may all constitute an affirmative, willful act of evasion. And last, filing a false tax return can also constitute tax evasion.

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