August 15, 2010 in Criminal Defense, Legal Articles by jferris

Car Dealer Selling Total Loss Vehicles as Clean Sentenced to 53 Years

High end car scheme involving 52 vehicles nets perpetrator 53 years behind bars and an order of restitution for $584,000.

Creative would be a mild word when applied to this recent court case that involved a local Colorado car dealer. “Seems he was selling total loss vehicles to customers without telling them. His scam was in operation for four years, from 2005 to 2008 and covered 52 vehicles. Evidently, the man made it a habit to buy wrecks, repair them and sell them – but did not tell the customer the true extent of the previous damage,” remarked Miller Leonard, a Denver federal criminal defense lawyer and Denver state criminal defense attorney.

Over the four years the dealer told buyers the vehicles had a full factory warranty. Investigators indicated warranties on total losses were voided. In plain English, the cars this man sold should have had salvage branded titles but instead, the dealer was alleging the titles were clean. At the end of the investigation, the car dealer was charged and indicted with conspiracy to commit bribery, commercial bribery and theft.

“It seems the man paid two insurance adjusters to help him along with his scheme and in the process they also wound up being charged. No one had a good day when the case wrapped up. Adjuster number one was charged with a second-degree misdemeanor and handed one year probation and ordered to pay $3,200 in restitution. Adjuster number two pled to commercial bribery (Class 6 felony) and was handed a four year deferred jail term and must pay $12,300 in restitution,” outlined Leonard.

The two adjusters would refer salvage or total loss vehicles to the car dealer who would in turn hand them money and gifts. They would then send him clean titles, not salvage titles. This means the dealer could raise the prices on the resale of the vehicles. What’s the lesson to be learned here? “A couple of things come to mind,” indicated Leonard, “and the first one would be that he needed a compliance program to avoid the very situation he ultimately found himself in. Now, supposing that he was not interested in or didn’t think he needed a compliance program, then he would be entitled to a well thought out criminal defense on his behalf,” he added.

Just because someone is charged and indicted with an offense, does not always mean they are indeed guilty of that offense. While things may look one way on the surface, we rarely know the complete story until the whole case unfolds. “If you do criminal defense for a living, you rarely jump to conclusions about anything until you have spoken to the accused and found out all of the circumstances. In any event, those charged have a right to a criminal defense just as the plaintiff has a right to file a case against them,” Leonard observed.

To learn more, visit http://www.fedcrimdef.com or call 303.623.2721.

August 15, 2010 in Criminal Defense, Legal Articles by jferris

Deceptive Trade Practices Nipped in the Bud in Colorado

Mortgage companies need to note their bottom line does not take precedence over the law.

In the current economic climate, there are unfortunately so many financial scams, schemes and rip-offs that it’s hard to keep track of who is doing an honest day’s business anymore. One of the worst practices relates to negligent and exceedingly deceiving lending practices. In fact, there are a number of companies that have helped the foreclosure crisis along simply by following less than legal avenues to wring money out of unsuspecting homeowners.

A recent settlement, announced by the Colorado Attorney General, illustrates the way abuse can occur. Colorado Springs Independence Planning, doing business under the name Alternative Lending of Colorado, had two top employees called on the carpet for deceptive trade practices that now face an order to repay more than $78,000 in fines and restitution.

The two company officers will also have to surrender their mortgage loan originator licenses and inform the office of the Attorney General if they plan to work in any type of mortgage related business again. One will be paying $16,885 in restitution and $14,000 in civil penalties, while the other will be paying $33,700 in restitution and $14,000 in penalties. If both comply with the terms of the settlement, their totals will be reduced.

For example, all but $10,800 of the grand total for the female company officer will be suspended if she complies with the terms of the settlement and in the other’s case, all but $7,200 of his grand total will be suspended on compliance. This does, of course, raise some questions about the victims of their deceptive trade practices, a point the Attorney General’s office is endeavoring to address by arriving at a settlement with these two individuals that will see them exit the mortgage lending industry.

Two down and a few more to go. There is a warning inherent in this settlement that is intended to impress upon mortgage lenders that their financial bottom line should not be put ahead of the law.

One officer was cited for quoting monthly mortgage payments that didn’t include taxes and insurance, misrepresenting loan interest rates, and dragging out closings to pressure buyers into signing a mortgage. In addition, she worked with appraisers to over-value homes, meaning borrowers would owe more than their home was actually worth. She wasn’t present at closings which denied the borrower the chance to question their loan terms; over inflated applicant’s incomes, and did not offer complete and accurate disclosure to home buyers. It seems that the boss, while he knew what his employee was doing, allowed it to happen in the name of the company – bottom line.

The information concerning the settlement was obtained by reviewing the news releases from the Attorney General of Colorado. The lesson: companies need strict compliance programs to avoid abuses that can lead to potential civil and criminal penalties.

Miller Leonard is a Denver federal criminal defense lawyer and Denver state criminal defense attorney. To learn more, visit Fedcrimdef.com or call 303.623.2721.

August 15, 2010 in Criminal Defense, Legal Articles by jferris

When the Law Gets Cut Down to a Different Size

When many laws are passed into existence, the wording isn’t always clear. The courts are tuning things up.

When laws are passed in the first place, they are generally drafted, read, molded, mashed, squashed and mauled about until they “sound” like they are what the legislators want. Having said that, you can bet your bottom dollar that in many cases, the legislation isn’t that clear and therein lies the legal dilemma.

The law is mostly about precise wording because if it wasn’t, you could drive a truck through some of the holes that exists in legislation today. And in fact, this is what this article is about – the paring back or down of a section of law that was broadly interpreted to mean something it does not. This whole new development came about thanks to federal prosecutors chasing down corruption cases; cases brought against public officials and others in the public sector.

In a nutshell, here is what happened recently when it came to dealing with white collar crime. The Supreme Court took a paring knife to the “honest services law” and cut it right back to the core – call it the very essence of the original law. Now, as a result of this ruling, this law may “only” be used to prosecute kickbacks or bribery. You may be wondering why the courts would cut a law back; a fair question.

The Supreme Court took exception to the way the honest services law was being interpreted by federal prosecutors in corruption cases, largely because it was so vaguely worded that it was used often, expansively and rather creatively by some in a rush to obtain a conviction. In its most recent ruling, the Court also hinted rather broadly, that Congress might want to take another crack at how far the law actually reaches. They didn’t do that without adding a word of caution though; caution as it would apply to constitutional matters.

The interesting rulings did not stop there. Another one handed down by the Court now makes it much more difficult for criminal defense attorneys handling high profile cases to tank guilty verdicts handed out in a hostile community awash with media reports tainting the jury pool. The Court said it would only find those verdicts questionable in a situation that was found to be “extreme.”

So much for the discretion government prosecutors have been using to apply the honest services fraud law; a law initially brought into being in 1988 to try and overturn a 1987 Supreme Court ruling. You may recall the case – Skilling v. U.S. – which involved a former Enron official convicted in one of the largest corruption cases the nation has ever seen. In any event, the net upshot of these latest rulings is that three very recent high profile cases involving corruption must now return to lower courts for another look. Those cases are Black v. U.S., Weyhrauch v. U.S., and Skilling v. U.S. (yes, it will be revisited as well).

The major problem here is and has been the wording of the honest services law. Congress enacted it saying that fraud may be committed by denying someone the “intangible right to one’s honest services.” For many, this created a “Huh?” moment and courts struggling to define the kind or type of crime or wrongdoing that fits into that notion. Suffice it to say that the attempts have not been successful and that is the reason the Supreme Court finally shot an opening volley across the bow of that sinking ship in order to clear the decks – hopefully. So what we have left is a ruling that says bribes and kickbacks are criminal – period. From this point on, it will be interesting to see what develops.

Miller Leonard is a Denver federal criminal defense lawyer and Denver state criminal defense attorney. To learn more, visit Fedcrimdef.com or call 303.623.2721.

July 13, 2010 in Criminal Defense, Legal Articles by jferris

White Collar Crime Not Cut and Dried

White collar crime means an act took place. It doesn’t always mean it was a crime.

The first reaction a lot of people have when they read that someone was indicted for a crime is that they are guilty – otherwise they would not have been indicted. Therein lies the conundrum of the criminal justice system. “Just because a person was indicted for an act, doesn’t mean it was a crime. White collar crime is not like your typical street crime. The issue you’re dealing with for street crimes is whether or not the person charged is the person who committed the crime,” noted Miller Leonard, a Denver federal criminal defense lawyer and Denver state criminal defense attorney.

Let’s take a look at an interesting case about to make its way through the Denver courts. It deals with three men suspected of running a $5.7 million investment fraud scheme. The gist of the case is that the three allegedly defrauded 70 investors with promises that their investments in certain companies would be risk-free and pay off handsomely. “It appears, from the indictment, that they may have also neglected to tell their customers precisely how the money would be invested and used,” noted Leonard.

The government also alleges that the main perpetrator in this scam didn’t mention the investments were used to fund unsecured promissory notes and to pay legal fees when the notes went into default. The individual further, according to the indictment, did not disclose personal loans made directly to himself or commissions paid. The other two members are suspected of not telling investors how their funds would be used.

“There are seven counts involved in this case: five counts of securities fraud – material fact, one count of securities fraud – course of business and one count of theft, all of which are class 3 felonies. Now on the surface, this case sounds pretty much like a done deal. However, the question, again, is whether or not those actions are crimes,” Denver federal criminal defense lawyer and Denver state criminal defense attorney Leonard remarked.

In cases like this, the defense may make a case that the defendant’s actions were legitimate business ventures; ones that carried a significant risk for a large reward. “They may argue that there was no crime that took place, that the whole affair was nothing more than a case of buyer’s remorse when people lost money. Put another way, it is best to remember that there are two sides to every story or case, and that the person charged has the right to a vigorous defense,” stated Leonard.

To learn more, visit http://www.fedcrimdef.com or call 303.623.2721.

July 13, 2010 in Criminal Defense, Legal Articles by jferris

Colorado Gets New DUI Law

Colorado has taken a giant step forward in imposing jail sentences for repeat drunk drivers.

“The law Colorado just brought into being mandates jail sentences for repeat drunk drivers – a minimum 10 day stint for a second offense and 60 days for third infractions and further offenses. The bill allows for work release programs but won’t permit in-home detention for a second offense within 5 years of the first,” explained Miller Leonard, a Denver federal criminal defense lawyer and Denver state criminal defense attorney.

The main reason Colorado took this step forward to hand out harsher penalties to drunk drivers is because they were rotating them in and out of the system like a revolving door. This did absolutely nothing to protect the public from drunk drivers who continually climbed behind the wheel and drove recklessly time and time again. Whether they were caught or not, convicted or not, they were always put right back out on the streets.

Lawmakers finally took a stand to deal with the issue when it came to light in the media that some repeat offenders – on their 4th, 5th and 7th offenses – were not sentenced to jail time. It wasn’t just that issue that prompted a closer scrutiny of the penalties handed out for drunk driving. It was the fact that sentences were wildly disparate in all the courts, and that drivers who killed someone while DUI didn’t do jail time. “Why didn’t they do jail time? They didn’t tend to do time in jail because Colorado didn’t have a felony law for repeat drunk drivers,” said Leonard.

The new law mandates that repeat offenders will be on probation for two years and take alcohol education and treatment programs. This is certainly a step in the right direction in terms of attempting to get control over the number of drunk drivers on the roads.

Along with the DUI bill, the state also signed in two other pieces of legislation: the first will cut down on the number of prisoners in jail and divert them to treatment and supervision options. Think, someone caught with illegal drugs but who does not sell them. Those tagged with less than 2 ounces of MJ face what is called a petty offense, whereas prior to this change, more than an ounce was a first degree misdemeanor.

This law will also cut down on prison time for possession of small amounts of illicit prescription drugs, heroin, cocaine and meth – a step toward acknowledging drug addiction is a disease, not a severe crime.

To learn more, visit http://www.fedcrimdef.com or call 303.623.2721.

July 13, 2010 in Criminal Defense, Legal Articles by jferris

An Element Related to Jury Proof or a Sentencing Factor

It seems there is a difference between an element that is to be proven to a jury and a sentencing factor.

While it may seem like a moot point – whether or not there is a difference between an element to be proven to a jury beyond a reasonable doubt and a sentencing factor – the difference is quite crucial in some cases in terms of federal criminal defense. Witness a recent trial (United States v. O’Brien et al) where the courts held that in a prosecution under 18 U.S.C. §924(c) the fact that a firearm was a machine gun was an element that needed to be proved to a jury beyond a reasonable doubt and was not a sentencing factor for a judge at sentencing time.

Let’s back up a few steps and take a quick look at the precursor to this particular case, Bailey v. United States (1995). That particular case focused on an often used section of the federal criminal code utilized by federal prosecutors. At that time, 18 U.S.C. §924(c) handed out a mandatory, consecutive five-year jail sentence to those who used a firearm during a drug trafficking crime. The lower court defined use to mean just possession. The Supreme Court said “use” meant active use of a firearm. In the final analysis, Congress amended the statute to expressly include possession of a firearm as requiring the five year jail sentence.

Flash forward to today and what is now in the applicable statute: 18 U.S.C. §924(c) bans using or carrying a firearm relating to a violent crime or drug trafficking crime or the possession of a firearm to further those crimes. 18 U.S.C. §924(c)(1)(A) metes out a mandatory minimum of 5 years in jail. However, if the firearm is a machine gun, the statute spells out a mandatory minimum of 30 years sentence, §924(c)(1)(B)(ii). 

When the courts took a closer look at the facts in the United States v. O’Brien et al matter, it reviewed their previous decision in the case of Castillo v. United States (2000) where it had determined that the machine gun requirement under the pre-amendment version of the statute “was” an element of the offense itself. Based on the factors outlined in Castillo, the court discarded the government’s assertion that the 1998 amendments to section 924(c) altered the machine gun provision and turned it into a sentencing factor.

The bottom line: you need a criminal defense attorney who is up-to-date on current case law to protect your rights.

Miller Leonard is a Denver federal criminal defense lawyer and Denver state criminal defense attorney. To learn more, visit Fedcrimdef.com or call 303.623.2721.

July 13, 2010 in Criminal Defense, Legal Articles by jferris

Civilly Committing Dangerous Sexual Offenders a Federal Government Power

The federal government has the power to civilly commit dangerous sexual offenders (DSO) under a clause in the Constitution.

In a highly controversial area of the law relating to dangerous sexual offenders and the government’s ability to commit them, a recent case has made the issue a whole lot clearer. In United States v. Comstock, the courts said the federal government does have the power to civilly commit DSOs under the correct clause of the Constitution. The decision spelled out just what the power of the correct clause is in circumstances where a DSO is committed.

In the first instance, the court found that the relevant clause for committal offers a broad delegation of legislative authority. Secondly, the relevant portion of the code relating to committal (18 U.S.C. § 4248) is considered to be a relatively humble addition to prison related mental health statutes, largely unchanged for decades – like a small rock in a deep pond.

The court went further and also indicated they felt it was reasonable for Congress to continue its civil commitment system to deal with mentally ill and DSO offenders already in prison, even if it kept them in jail past the end date of their federal sentence. Having said that, the court also articulated that the statute in is line with states’ interests and that what is necessary and proper may be based on a series of inferences. The statute is not considered to be too sweeping since very few people or offenders have fallen under its provisions.

Criminal defense attorneys need to keep in mind that the court did not expressly deal with the issue of whether or not this statute denies equal protection of the law, other rights guaranteed by the Constitution or substantive and procedural due process.

Miller Leonard is a Denver federal criminal defense lawyer and Denver state criminal defense attorney. To learn more, visit Fedcrimdef.com or call 303.623.2721.

June 3, 2010 in Criminal Defense, Legal Articles by jferris

Colorado to Receive Large Medicaid Fraud Settlement

The attorney general for Colorado announced a settlement for $79,208 for fraudulent Medicaid claims.

Colorado isn’t the only state to receive a settlement for fraudulent Medicaid claims. In fact, the total settlement nationwide was $19.2 million, with Colorado’s share being $79,208. Still, it’s a settlement that makes a point and puts a stop to fraud in the health care system.

“The nationwide agreement was recently reached with Alpharma, Inc. (a pharmaceutical company) with the purpose of settling allegations of fraudulent Medicaid claims that were put forward for a drug called Kadian – a painkiller that was supposed to be for moderate to severe pain,” outlined Miller Leonard, a Denver federal criminal defense lawyer and state criminal defense lawyer.

Since this wound up being a class action lawsuit pursued by several states attorneys general, it was a multistate lawsuit. The drug company was supposedly offering and paying for training programs, research grants, speakers’ bureaus, consulting forums, and made false statements about the safety of Kadian and how well it was supposed to work. There was evidence this happened from January 2000 to December 2008.

“Evidently, an investigation revealed that physicians wooed by Alpharma got a variety of indirect forms of kickbacks from the company, prescribed higher quantities of Kadian than doctors who were not courted. The result was the Colorado Medicaid program got billed for drugs it otherwise would not have been billed for but for the actions of Alpharma,” explained Leonard.

There are at least 700,000 recipients of Medicaid in Colorado and every year, the government pays out close to $4 billion for their medical care. The Medicaid Fraud Control Unit will respond by investigating and prosecuting any health care providers suspected of defrauding the Medicaid program.

“It’s really important for any company engaged in business that involves Medicare or Medicaid to have a robust compliance training program. Many violations of the Anti-Kickback Statute happen because businesses and their employees do not properly understand the law,” advised Miller Leonard, a Denver federal criminal defense lawyer and state criminal defense lawyer.

Statutes like the Anti-Kickback Statute are in place for a reason, and that reason is to prevent instances of fraud such as this case outlines. If you don’t know what the Anti-Kickback Statute means or involves, contact me and I can give you the complete run down. It makes sense to know what you’re dealing with ‘before’ the fact of a breach, rather than later, when it’s too late,” added Leonard.

To learn more, visit http://www.fedcrimdef.com or call 303.623.2721.

June 3, 2010 in Criminal Defense, Legal Articles by jferris

The Warrant Isn’t Always Needed to Enter a Home

Police officers don’t always need a warrant to enter your home. Reality isn’t quite like TV.

“While many people enjoy watching police shows on TV that deal with how the cops apprehend a criminal and how they have to get a warrant to go to a person’s place to arrest them, etc., this isn’t always the reality,” said Miller Leonard, a Denver federal criminal defense lawyer and state criminal defense lawyer.

On TV the officers are usually greeted at the door by someone that says “Where’s your warrant?” It’s a fair question, because in ‘most’ circumstances, the police ‘do’ need a warrant to enter a person’s property. However, there are exceptions to this rule, as there are with most things that deal with legal matters.

One exception is something called an exigent circumstance and it lets the police enter without a warrant, or if they have a knock and announce warrant, go in without knocking and waiting for a refusal. However, the qualifier here is that they can only do this if people are in imminent danger, if a suspect will escape or if evidence may be destroyed. There isn’t a standard test for figuring out if those kinds of circumstances exist. In fact, exigent circumstance is pretty much determined on a case-by-case basis based on the information present at the time the decision needs to be made.

“What this really all boils down to is that if law enforcement thinks someone in a home needs assistance, and because of that emergency the officers didn’t have time to get to a judge to get a warrant, then that is acceptable. And no, police don’t need ironclad proof of a life threatening situation to go ahead and use the emergency aid exception,” added Leonard, a Denver federal criminal defense lawyer and state criminal defense lawyer.

The test, if one wants to call it that, is whether the police thought that there was an objective reason to believe that medical help was needed or that people were in danger. This particular test was affirmed in a recent Supreme Court decision in the Michigan v. Jeremy Fisher case. “Just goes to show you that you can’t always believe what you see on the tube,” commented Leonard, “ and when in doubt, that is the time to call a competent defense attorney and start asking some pointed questions.”

To learn more, visit http://www.fedcrimdef.com or call 303.623.2721.

June 3, 2010 in Criminal Defense, Legal Articles by jferris

Defense Counsel to Better Inform Immigration Clients About Consequences of Criminal Convictions

It was a decision many had been waiting for; the Supreme Court’s right to counsel decision in cases of criminal conviction linked to deportation issues.

While it took a while for the decision to be rendered, it came at a time when the country is still pondering what to do with its broken immigration system; to pass immigration reform or not. Part of the law as it deals with immigrants deals with what happens to them if they are convicted of a criminal offense.

The Supreme Court decision said due to the severity of deportation and the reality that immigration consequences attach to criminal convictions, that the Sixth Amendment requires defense counsel provide competent advice to a non-citizen (immigrant) about the repercussions of a guilty plea. If this advice is not given, the immigrant may raise an ineffective assistance of counsel claim. The Padilla v. Kentucky case may have some interesting fallout as time passes, particularly if the suggested comprehensive immigration reforms included in the proposed Act do get passed.

What do criminal defense attorneys need to know about this case? The most important point to note is that deportation is “not” a collateral consequence; it is a “penalty,” and as such it is considered to be very severe one. Simply put, the direct versus collateral distinction does not apply to immigration consequences and doesn’t prevent an ineffective counsel claim if the attorney fails to offer the correct advice about immigration consequences if the immigrant pleads guilty.

Be aware that the Supreme Court also zeroed in on professional standards for attorneys dealing with cases like this. In short, counsel is required to find out the citizenship status of their client(s) and to check further and advise them about what might happen to them (deportation) as a result of alternative dispositions of a criminal case.

Furthermore, the Sixth Amendment requires that proper advice be given about the immigration fallout in a criminal case and that silence doesn’t cut it. In other words, if a defense lawyer is silent about what may happen in the face of a guilty plea; this is ineffective advice of counsel. This applies even if the deportation consequences are not clear or are uncertain.

That last thing you should take away with you if you happen to be in the role of defense counsel, is that the Supreme Court gave the nod to informed consideration of deportation consequences by defense and prosecution while plea-bargaining. They also went one step further and indicated it would be appropriate of those participating in the plea bargain to factor immigration consequences into the negotiations to end up with a conviction and sentence that reduced the possibility of deportation, but yet still served the cause of justice being done.

Miller Leonard is a Denver federal criminal defense lawyer and Denver state criminal defense attorney. To learn more, visit Fedcrimdef.com or call 303.623.2721.