Author Archives: Bill Kellum

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Mail and wire fraud statutes make it crime for any one to use the mails or wires in furtherance of a scheme to defraud. The fraudulent statements themselves need not be transmitted by mail or wire; it is only required that the scheme to defraud be advanced, concealed or furthered by the use of the U.S. mail or wires. 18 U.S.C. §§ 1341, 1343. Because every business or corporation in the United States uses the mails or wires to make money, any business who allegedly engages in common law fraud arguably violates the federal mail and wire fraud statutes. 

In order to commit mail fraud, the defendant must:

  • Have devised some sort of scheme to defraud others; and
  • Used the mail to advance the efforts of that fraud

The penalties for a conviction of mail fraud can be quite severe.  A convicted defendant can face up to 20 years in prison and substantial fines.  However, if a financial institution is defrauded, a maximum prison term of 30 years and a fine of up to $1,000,000.00 could be imposed.

 

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§ 97-21-63. Will, deed, certificate of acknowledgment or proof of recordable instrument.

Every person who shall be convicted of having forged, counterfeited, or falsely altered any will of real or personal property, or any deed or other instrument, being or purporting to be the act of another by which any right or interest in real or personal property shall be or purport to be transferred, conveyed, or in any way changed or affected; or any certificate or indorsement of the acknowledgment of any person of any deed or other instrument which by law may be recorded, made or purporting to have been made by any officer duly authorized to make such certificate or indorsement; or any certificate of the proof of any deed or other instrument which by law may be recorded, made or purporting to have been made by any officer duly authorized to make such certificate, with intent to defraud, shall be guilty of forgery.

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Title insurance provides protection for buyers in a home sales transaction. The insurance policy will usually provide limited coverage for issues such as a transfer of a defective title, or a breach of contract terms by the seller.  As with other types of transactions, the risk of fraud exist in title insurance and is often difficult to detect.

Some common title insurance fraud methods include:

  • Using fake, misleading, or intentionally deceiving legal documents
  • Misrepresentation of professional credentials and licensing
  • Overcharging for policy rates
  • “Rush deals” – using pressure and coercion to force the person into purchasing a policy
  • Absentee deals – many fraudsters target situations wherein true owner of the home is not physically present in the country or is unavailable
  • Intentional withholding of title insurance benefits
  • Unreasonably low payouts, or refusal to make payouts to the policy holder

Title insurance fraud may result in various legal remedies such as monetary damages against the defendant. Damages are paid to the plaintiff as compensation for losses that directly attributable to fraud.

Criminal charges may result where an insurance broker has engaged in activities such as forgery and mail fraud.  If you believe you may have become the victim of insurance fraud, you should contact and attorney to protect your rights

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18 U.S. Code § 3559 – Sentencing classification of offenses

(a) Classification.— An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—

(1) life imprisonment, or if the maximum penalty is death, as a Class A felony;
(2) twenty-five years or more, as a Class B felony;
(3) less than twenty-five years but ten or more years, as a Class C felony;
(4) less than ten years but five or more years, as a Class D felony;
(5) less than five years but more than one year, as a Class E felony;
(6) one year or less but more than six months, as a Class A misdemeanor;
(7) six months or less but more than thirty days, as a Class B misdemeanor;
(8) thirty days or less but more than five days, as a Class C misdemeanor; or
(9) five days or less, or if no imprisonment is authorized, as an infraction.
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Most criminal cases in federal court are resolved not by trials, but by plea bargains. In order to negotiate a successful plea agreement, defense counsel must understand what kind of agreements can be made and the effect of each kind on the client s sentencing exposure. Although plea agreements are generally referred to and treated as contracts, they are like contracts in a heavily regulated industry. Rights and responsibilities under these contracts are controlled by layers of statutes, rules, guidelines, Department of Justice (DOJ) policies, and case law. Regardless of the type of plea agreement, counsel must understand the impact of all these layers of regulation in order to know what the provisions of the agreement will mean to the client. The Department of Justice Manual the blue looseleaf standard reference manual for all U.S. Attorney s offices, cited herein as the DOJ Manual requires that plea agreements for all felonies and misdemeanors negotiated down from felonies be in writing and filed with the court. (DOJ Manual 9-27.450) Some U.S. Attorney s offices have standard plea agreement forms, others give individual assistants more leeway in what can or must be in plea agreements. Some agreements cover the basics in a couple of pages, others extend to ten or twenty pages. For some time the trend seemed to be toward longer and more complex agreement forms.

To learn more about this topic please visit http://www.fd.org/docs/select-topics/pleas/making-your-deal-with-the-devil-plea-agreements-under-the-federal-rules-federal-sentencing-guidelines-and-department-of-justice-policies.pdf?sfvrsn=4

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The laws governing the execution of Wills and Codicils are very specific and governed by§ 91-5-1. Who may execute; signature; attestation.

Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

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 The United States Code Controlled Substances Act

Part D — Offenses And Penalties

§841. Prohibited acts A

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

(b) Penalties

Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:(1)(A) In the case of a violation of subsection (a) of this section involving—

(i) 1 kilogram or more of a mixture or substance containing a detectable amount of heroin;

(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of—

(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III);

(iii) 280 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;

(iv) 100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);

(v) 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

(vi) 400 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide or 100 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide;

(vii) 1000 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 1,000 or more marihuana plants regardless of weight; or

(viii) 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both. If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence. Notwithstanding section 3583 of title 18, any sentence under this subparagraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.

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The use of wire taps by federal agents for purposes criminal investigations are admissible only if a warrant was issued to do so.  Because of their similarity to searches and seizures, the fourth amendment warrant clause applies to electronic surveillance as well. Obtaining a warrant for electronic surveillance requires showing probable cause to a Judge, describing in particularity the conversation to be intercepted, providing a specific time period for the interception of the communications device, and noticing the property owner unless law enforcement can show “exigent circumstances”.

As with routine searches and seizures, exigent circumstances may serve as grounds for law enforcement to dispense with first obtaining a warrant. if law enforcement encounters a situation threatening a person’s life, a conspiracy threatening the national security, or a conspiracy suggesting organized crime, then law enforcement may proceed without first acquiring a warrant.

 Title III requires Federal, state and, other government officials to obtain judicial authorization for intercepting “wire, oral, and electronic” communications such as telephone conversations and e-mails. It also regulates the use and disclosure of information obtained through authorized wiretapping. 18 U.S.C. §§ 2516-18.

Under § 2516. 18 U.S.C. § 2518(3), a judge may issue a warrant authorizing interception of communications for up to 30 days upon a showing of probable cause that the interception will reveal evidence that “an individual is committing, has committed, or is about to commit a particular offense” listed in .

18 U.S.C. § 2517 provides that a law enforcement or investigating officer may use, disclose to another law enforcement or investigating officer, or disclose during testimony information obtained in authorized wiretapping, provided the use or disclosure “is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.” .

18 U.S.C. § 2517 provides that any Federal official who “receives information pursuant to this provision may use that information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.” .

Federal wiretaps implement any issues including the the fourth amendment right against search and seizures.  Many attorney’s argue that there need not be a physical intrusion into a tangible area in order to constitute a search. The Court already has recognized that certain “constitutionally protected areas” fall under the Fourth Amendment’s protections. The trespass doctrine results in an overly literal reading of the Fourth Amendment. The objective of a wiretap is the same as a physical search — to provide evidence that a crime has been committed.  Therefore, the full protections of the Fourth Amendment should apply to wiretaps as well as searches.

 

 

 

 

 

 

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A “plea bargain” is an agreement between the prosecutor, the defendant’s attorney and the defendant. In return for the defendant entering a plea of guilty to a criminal charge, the prosecutor agrees to recommend to the judge a particular penalty. Plea bargaining allows the prosecutor to obtain guilty pleas in cases that might otherwise go to trial. The prosecution is relieved of the burden of proving the case beyond a reasonable doubt at trial and the defendant receives a specific resolution of the charges against him.

Plea agreements in Federal criminal cases are addressed in Rule 11 of the Federal Rules of Criminal Procedure:

(c) Plea Agreement Procedure.

(1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:

(A) not bring, or will move to dismiss, other charges;

(B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or

(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.

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The Federal Sentencing Guidelines are non-binding rules that set out a uniform sentencing policy for defendants convicted in the United States federal court system that became effective in 1987. The Guidelines provide for “very precise calibration of sentences, depending upon a number of factors. These factors relate both to the subjective guilt of the defendant and to the harm caused by his facts.” Payne v. Tennessee, 501 U.S. 808, 820 (1991).

The Guidelines are not mandatory, because they may result in a sentence based on facts not proven beyond a reasonable doubt to a jury, in violation of the Sixth Amendment. United States v. Booker, 543 U.S. 20 (2005). However, judges must consider them when determining a criminal defendant’s sentence. When a judge determines within his or her discretion to depart from the Guidelines, the judge must explain what factors warranted the increased or decreased sentence.When a Court of Appeals reviews a sentence imposed through a proper application the Guidelines, it may presume the sentence is reasonable. Rita v. United States, 127 S.Ct. 2456 (2007).