Posted on January 28, 2015 in Criminal Defense

A frequently overlooked consequence of federal criminal charges is civil forfeiture. In fact, a person does not even need to be charged with federal crimes in order to find his or her property subject to seizure by state or federal law enforcement agencies. Civil forfeiture laws are, in theory, designed to prevent a criminal from profiting from his or her criminal acts. For example, a drug dealer who uses a particular vehicle to transport drugs into and out of Illinois should not be able to keep the car or any of the money connected with that illegal activity.

However, since such laws were first reformed in the mid-1980s, there have been numerous stories of abuses of these forfeiture laws by law enforcement officials. Mothers have had their homes taken away under forfeiture laws because their children were found in possession of drugs; a nursery owner had $9,600 in cash seized by law enforcement because he took a “suspicious” trip to Houston to buy plants even though the man never faced any drug dealing charges.

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 Posted on January 26, 2015 in Criminal Defense

Recently a San Francisco plainclothes police officer was found guilty of federal criminal charges after it came to light that he illegally searched the rooms of suspected drug users and then falsified police reports afterwards. The charges stem from an incident in 2010 when the officer got a tip that two suspects were in a particular hotel room with a large quantity of heroin. Rather than obtain a search warrant (which is what the Constitution would require), federal prosecutors argued the officer entered into a conspiracy with others to violate the civil rights of the hotel room occupants by entering the hotel room without a warrant.

Federal Statute Prohibiting Conspiracy Against Rights

The federal law under which the officer was charged makes it unlawful for two or more persons to conspire together to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege that person enjoys under the Constitution or federal law. If found guilty, a defendant can be sentenced to pay a fine or serve a term of imprisonment of up to 10 years; additional penalties can result if death results, or if certain other violent crimes are committed.

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 Posted on January 21, 2015 in Criminal Defense

It is a fact that most of the criminal cases in the United States (over 90 percent, according to some estimates) are resolved through a plea agreement, an agreement between the prosecution and the defendant wherein the defendant typically acknowledges responsibility for some crime in return for the prosecution recommending a lighter sentence. But whereas some criminal defendants acknowledge that a plea agreement is probably the best way to resolve their charges, other defendants balk at the idea of confessing to a crime that they believe they did not commit.

Regardless of one’s personal feelings on the topic, criminal defendants who are considering a plea agreement may want to ask themselves the following questions:

1. How persuasive is the evidence against me? This requires the defendant to look objectively at the evidence the prosecution has and ask whether he or she believes the prosecution has a “good” case. While in general no one should plead guilty to a crime he or she did not commit, an individual who insists she did not drive while intoxicated but looks and sounds drunk on a police car camera may wish to think about trying to reach a plea agreement in order escape some of the more detrimental consequences of a conviction.

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 Posted on January 19, 2015 in Criminal Defense

A man previously considered a threat to the nation and a radical eco-terrorist was released on Thursday, January 8, after the FBI admitted it had withheld thousands of pages of evidence. The man had served about nine years in custody for plotting to bomb or torch the Nimbus Dam, a U.S. Forest Service lab and cellphone towers near Sacramento, California. But it came to light recently that prosecutors had inexplicably withheld a substantial number of documents and evidence during trial despite requests from defense counsel for some of this evidence. The release of the man was part of an agreement between defense counsel and the government to resolve the issue of the material not turned over at trial.

Discovery Obligations of the Government

As in civil trials, in a federal criminal trial the parties engage in an exchange of information and evidence before the case proceeds to trial. This exchange of information (called “discovery”) is meant to reduce the chances of the other party being surprised at trial. More importantly, a complete and open discovery process allows the defendant the opportunity to learn not just what the government is charging the defendant with but what testimony and evidence these charges are based upon.

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 Posted on January 14, 2015 in Criminal Defense

In the wake of police shootings and retaliatory attacks on police officers, the National Fraternal Order of Police is pushing for a change to the statutory definition of a “hate crime” to include crimes committed against police officers. Presently, a “hate crime” is a criminal offense committed against another person or person’s property when the crime is motivated by the victim’s race, religion, disability, ethnic origin, or sexual orientation. A conviction for a hate crime generally results in much more serious penalties for the offender.

Is the Hate Crime Statute Due to be Changed?

At first blush, police supporters may celebrate and support the FOP’s legislative push to change the hate crime statute. Designating something as a hate crime communicates to society that the action or behavior is particularly reprehensible and deserving of greater punishment than other crimes. Changing the hate crime statute to include crimes against law enforcement officers is a strong way to show the nation stands behind its officers.

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 Posted on January 13, 2015 in Criminal Defense

A recent federal criminal trial was brought to an abrupt halt when the testimony for a key witness for the prosecution revealed some unsavory information about the defendant’s past. According to reports, the witness was asked how he recognized the defendant in a surveillance video when the witness “volunteered” that he recognized the defendant because of a previous incident when the defendant was arrested and convicted for burglary. This revelation – that the defendant was previously arrested and convicted of burglary – brought the trial to a halt.

Why Was the Trial Stopped?

In this particular instance the trial was stopped because the witness offered evidence that is generally not permitted in a criminal trial. According to federal rules that govern the conduct of criminal trials, the prosecution is generally not permitted to introduce evidence of prior crimes or “bad acts” the defendant committed as a way of suggesting that the defendant is more likely to commit the crime with which he or she is charged. For instance, a prosecutor prosecuting a charge of burglary against an individual generally cannot use the fact that the defendant committed other burglaries for the purpose of suggesting the defendant is more likely to have committed the present burglary. If such evidence comes out at trial, a mistrial can generally be achieved as the “prejudice” caused by the revelation of this information is usually so great that the defendant can no longer be guaranteed a fair trial.

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 Posted on January 08, 2015 in Criminal Defense

Two individuals were recently convicted of mail and wire fraud in the southern district of Illinois after pleading guilty to the offense. By pleading guilty to the offense, both men avoided a trial on these charges. While many who hear the charge “mail and wire fraud” rightly assume that the charges are serious, describing exactly what constitutes mail and wire fraud is a more difficult task.

Two Examples of Mail and Wire Fraud

The two individuals who recently pled guilty in Illinois serve as examples of what can constitute mail and wire fraud. The first man operated a scheme headquartered in Orlando, Florida, and involved telemarketers for the defendant’s various companies calling timeshare owners. The telemarketers would falsely represent to the owners that they knew of individuals interested in buying the timeshare properties and then demand that the owners front a certain amount of money for closing costs, which the telemarketers claimed would be refunded to them. Instead, however, the defendant and his cohorts simply pocketed the closing costs without selling a single timeshare.

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 Posted on January 05, 2015 in Criminal Defense

The justices of the Supreme Court of the United States recently heard arguments in an internet threat case that could have serious ramifications for First Amendment rights in our digital age. Anthony Elonis was convicted in 2011 of threatening his ex-wife and a kindergarten class (amongst others) through a series of Facebook posts. Some of these posts were rather graphic. According to his attorney, the posts were in the form rap lyrics and were a therapeutic exercise. The critical question for the U.S, Supreme Court to decide is whether Elonis’ statements violated laws against making criminal threats or whether his posts constituted free speech, and were therefore protected by the First Amendment.

Threat Laws in Illinois

Depending on the exact circumstances surrounding a communication such as Elonis’, a person who committed a similar act in Illinois could face charges such as cyberstalking (if the threat was communicated over the internet), stalking, or threatening a public official (for example). A “threat” can include any communication that indicates the speaker or communicator will:

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 Posted on December 30, 2014 in Criminal Defense

Sometimes a temptation is too much to bear: orange cones restricting Illinois drivers to a single lane of traffic, a speed limit set far below the normal limit for the road, and no one else around. Regardless of whether he is trying to reach his destination faster or she simply fails to see the traffic signage, an Illinois driver who is charged with speeding in a construction zone can face serious fines and administrative penalties.

What is a Construction Zone?

 Although most individuals are familiar with what a “construction zone” is, the term actually has a specific legal definition. A “construction zone” must meet the following characteristics:

• Be an area of roadway; and
• Have signage from the Department of Transportation, Toll Highway Authority, or other local agencies alerting drivers that a construction or maintenance speed zone is being approached; or

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 Posted on December 23, 2014 in Criminal Defense

Recently, the press has been regularly reporting on sexual assault allegations various women have leveled against comedian and actor Bill Cosby. With the stories about Cosby often come discussions of how statute of limitations will prevent him from being charged with some crimes in some jurisdictions. This has led to many discussions that use these allegations to argue that statutes of limitations should be eliminated. It is important to understand what the statutes of limitations actually are here in Illinois, and to understand why statutes of limitations are an absolutely essential part of any fair criminal justice system.

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