Author Archives: tmonfort

Fraud

A claim of fraud may be made either in Civil or Criminal proceedings. While the elements of each are similar, there are differences between the two. Civil Fraud is generally a common law claim. Criminal Fraud is usually charged pursuant to a criminal statute.

Under Virginia law, the elements of Civil Fraud are: (1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to him. A verdict in favor of a Civil Fraud provides for money damages to be paid to the damaged party.
Criminal Fraud is addressed under a variety of statutes, both federal and state, and includes charges of bank fraud, tax fraud (tax evasion), identity theft, mail fraud, wire fraud, credit card fraud and securities fraud, among other species of Criminal Fraud. Federal courts have stated that criminal fraud statutes do not incorporate all the elements of common-law fraud. For example, the criminal mail fraud statute applies to anyone who, having devised or intending to devise any scheme to defraud for the purpose of executing such scheme or artifice or attempting so to do, places in any post office any matter or thing whatever to be sent or delivered by the Postal Service. By prohibiting the ”scheme to defraud,” rather than the completed fraud, the element of reliance as applied to a Civil claim is not required to complete a successful Criminal prosecution.

A general rule for Criminal Fraud may be stated as (1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead. You must view the general rule with caution, however. Criminal Fraud is statute specific. With the numerous criminal statutes that apply to a charge of fraud, each fraud charge must be examined for its specific elements. Consult a competent criminal attorney to determine these specific elements.

Dealing with Notice of Seizure and Notice of Forfeiture

Notice of Seizure and Notice of Forfeiture

If you have had property, including cash, seized from you by the United States Government, there are certain procedures that you must follow to attempt to recover your property. Numerous agencies are empowered to seize property under United States law. While the basic procedures for seizure, forfeiture and ultimate recovery of property are similar, most authorized agencies’ procedures vary. For the purposes of this entry, I will examine the procedure regarding seizures by the Drug Enforcement Administration of cash in the possession of certain persons traveling.

The Drug Enforcement Administration often seizes property under the auspices of 21 U.S.C. § 881. For many years, DEA has operated task forces at various travel terminals such as airports. When an agent assigned to such a detail receives intelligence regarding a certain traveler, or observes behavior by a traveler that is considered suspicious, the agent may intercept that person and question them regarding the circumstances of their travel. That questioning may result in either a consent search or a “probable cause” search of an individual and his or her belongings. If the agent identifies a large sum of cash that the agent reasonably believes is a result of illegal activity such as drug trafficking, the agent may seize the cash and give the suspect a receipt for the cash.

The seized cash is then transferred to the custody of the United States Marshall Service and the agent will inform the DEA Forfeiture Counsel of the facts and circumstances of the seizure. DEA must then issue, within 60 days of the seizure, a “Notice of Seizure” to the person who was in possession of the cash. The person who possessed the cash may then respond to the Forfeiture by filing a Petition for Remission or Mitigation of the seizure, which must be filed within 30 days of the date of the Notice. In addition to, or in lieu of the Petition, the person may also file a formal claim with the Forfeiture Counsel in the form of a sworn statement by a date certain which is shown on the Notice. Should the person file a formal claim, Forfeiture Counsel then must forward the claim to a United States Attorney for a determination as to whether to proceed with the forfeiture in the appropriate U.S. District Court. The United States Attorney must make that determination within 90 days of the date the claim Forfeiture Counsel received the claim. If the US Attorney does not act within the 90 day period, the cash must be returned to the claimant. If the US Attorney decides to proceed, he will file a formal action in federal court. The claimant then has the right under the Federal Rules of Criminal Procedure to obtain detailed information regarding probable cause for the seizure and the case will proceed to a trial to determine whether the asset must be returned.

The asset seizure laws tend to be onerous to the person whose property is seized. The government liberally applies those laws and procedures to routinely seize property. Those challenging actions have been mitigated somewhat with the passing of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), which more clearly defines the limits to the government’s powers and has also provided the defendant the opportunity to recovery attorney fees and costs when the government has wrongly seized assets. There also have been a number of court cases since 2000 interpreting CAFRA to make such seizures and proof to retain the assets more burdensome on the government. If you have had assets seized by the government, you should contact counsel proficient in seizure matters to determine your rights under the law.

Choosing an Attorney – A Former Prosecutor’s Perspective

Charles Maddox

No one ever thinks he is going to need a criminal defense attorney because, with few exceptions, no one ever plans on going out and committing a crime or being the object of a law enforcement investigation. If circumstances arise when you need a criminal defense attorney often the decision whether to hire an attorney or who to hire is made swiftly and with only enough thought allowed by time. As a former prosecutor I have seen both great defense attorneys and those who were so unskilled that I wondered what they said during the initial consultation to instill enough confidence in the defendant to hire them. As a defense attorney, I have strived to take the qualities I saw in the great defense attorneys and incorporate it into my own practice. Here are a few thoughts to keep in mind if you are faced with needing to find a criminal defense attorney.

1. Trust

You are charged with a crime that, if you are convicted, could have lasting implications on your future, your liberty, and your wallet. Choosing an attorney who will represent you is highly personal. You need to be able to trust your attorney and work with him/her. Your attorney is not a magician, a mind-reader, or endowed with supernatural powers to travel back in time and observe the incident that resulted in your being charged. If you don’t trust your attorney enough to be able to speak to him/her openly and honestly about your case and provide him/her with the information necessary to adequately represent you, you are wasting your money.

2. Personality

Everyone has his/her own personality, and it doesn’t always mesh with another’s. Often being able to trust your attorney is a question of whether your personalities mesh. If you do not feel like you can get along with your attorney, how can you work with them? If you can’t work with them, how can you trust them?

3. Experience matters

The criminal justice system is a complex one that few people deal with on a daily basis. Those who do deal with it on a daily basis are law enforcement, prosecutors, probation officers, etc. Good criminal defense attorneys are the ones who are just as familiar with the players as well as the criminal justice system itself. As a prosecutor, there were defense attorneys I enjoyed working with and those who I cringed when I saw their name on an entry of appearance. The ones I enjoyed working with were the ones who had worked in the system enough to know the strength of the charges their client was facing and appropriately and effectively represented them. Those who adopted a position the state was automatically trampling on an individual’s constitutional rights and approached negotiations and hearings with an air of righteous indignation were the hardest to work with. While the posturing and shouting may have satisfied the client the fee was money well spent, it did little toward resolving a case.

At Ex-Feds we have been on both sides of the equation. We are former federal agents and federal and state prosecutors. We know what goes into prosecuting a case against someone because we have done it ourselves many times over. We will be able to give you an honest assessment of your situation and discuss options to resolve your case. Often a plea bargain or negotiated settlement of the charges may be your best option, but rest assured if a trial is your best option you will be represented by seasoned and experienced litigators.

Conspiracy

Taylor Monfort

There are numerous species of conspiracy. Broadly speaking, conspiracy is an agreement between two or more people to commit an offense. There is a general federal conspiracy statute, 18 U.S.C.S. § 1349. In some cases, other specific federal statutes cover specific types of conspiracy. There are at least 22 such statutes. The general conspiracy statute does not require an overt act by a conspirator to make that conspirator liable for the crime. Some specific conspiracy statutes, such as conspiracy to commit mail fraud, do require an overt act for the statute to apply.

A conspiracy charge itself generally carries no specific criminal penalty. The conspiracy law is used by law enforcement and prosecutors to apply the specific crime, such as drug distribution or bank fraud, to the co-conspirator. It is not necessary to prove a formal agreement to establish a conspiracy in violation of federal law; a tacit or mutual understanding among or between the parties will suffice. In addition, the government is not required to prove that a defendant knew all his co-conspirators or all of the details of the conspiracy. Although a knowing and voluntary agreement is an element of the crime of conspiracy, conspirators need not know all of the details of the conspiracy as long as they know the conspiracy’s essential object.

As an example, the drug conspiracy statute, 21 U.S.C. § 846 provides that any person who attempts or conspires to commit any offense defined in the subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. To convict a defendant of conspiracy under this statute, the government must establish three essential elements: (1) an agreement to unlawfully distribute controlled substances existed between two or more persons; (2) defendants knew of the conspiracy; and (3) defendants knowingly and voluntarily became a part of this conspiracy. A drug conspiracy conviction requires only “a slight connection between a defendant and the conspiracy. A defendant may be convicted of conspiracy without knowing all of its details and even if he plays only a minor role.

Conspiracy in the Commonwealth of Virginia

In Virginia, conspiracy is defined as an agreement between two or more persons by some concerted action to commit an offense. Without the essential element of an agreement, a defendant may wittingly aid a criminal act and be liable as an aider and abettor, but not be liable for conspiracy. In order to establish the existence of a conspiracy, as opposed to mere aiding and abetting, the Commonwealth must prove the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting.

Further, in Virginia a conspiracy may be proved by circumstantial evidence. By the very nature of the offense, it often may be established only by indirect and circumstantial evidence. However, when the Commonwealth relies upon circumstantial evidence, the circumstances proved must be consistent with guilt and inconsistent with innocence. Circumstantial evidence is not viewed in isolation. While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind to a conclusion that a conspiracy exists, based on the “totality of the evidence”.

Conclusion

To navigate the varied common law and statutes regarding a charge of conspiracy, consult a competent criminal defense attorney with experience in both federal and state law.

Bail Bond Issues

Charles Maddox

 

WHAT ARE THE ISSUES A JUDGE CONSIDERS WHEN YOUR ATTORNEY FILES A BOND MOTION FOR YOUR RELEASE?

There are certain crimes for which there may be a” Presumption” against granting a bond for your release. That means the Court is of an opinion that previous criminal history and the nature of the charges for which you are now being held, represents a danger to yourself and the community in which you reside.

An ordinary “Presumption” once made and proved, may be rebutted or overcome through the introduction of contrary evidence. These competing facts are taken in consideration on their own merits by the Judge.

QUESTIONS YOUR ATTORNEY MAY NEED TO KNOW ONCE THE PRESUMPTION HAS BEEN SUCCESSFULLY REBUTTED.

1. Are there any pending charges or outstanding arrest warrants against you.
2. Do you have any adult convictions?
3. Have you ever failed to appear in court when ordered to do so?
4. Are you presently employed?
5. Do you have any history regarding drugs or alcohol abuse?
6. What are the most serious charges filed against you?
7. How long have you resided at your present residence? Less than 1 year?
8. Are you a citizen of the United States? If not, are you here legally?

IF BOND IS GRANTED, WHAT SHOULD YOU EXPECT?

1. The Prosecutor may ask the Judge to order a Pre-trial risk assessment. The purpose of this assessment is to determine the level of risk you may possess if bond is granted.
2. Based on your risk assessment, you may be released on your Personal Recognizes, Pre-trial Supervision, Secured/Unsecured Bond, or No Bond.
3. If No Bond is granted, you have a right to Appeal.

IS IT IMPORTANT TO BE TRUTHFUL WITH YOUR ATTORNEY?

1. Yes!
2. It doesn’t look good for you in the eyes of the Judge when your attorney, based on what you told him/her, argues that you should be released on bond; you have a clean record; no prior convictions; no failures to appear in court; all of which is a lie.
3. Prior felony and misdemeanor convictions remain a part of your criminal history no matter how long ago you were convicted.
4. It doesn’t look good for you if the Judge is led to believe that the Prosecutor knows more about the type of person you are than your attorney, because you have not been truthful with him/or her.
5. Remember, as your defense attorney, we do not make moral judgments on you, because you are charged with a crime. Guilty or innocent, we just want the truth so that we can defend you to best of our ability under the law.

Drug Possession and Distribution

Taylor Monfort

A charge of drug possession and distribution is a serious offense that carries with it significant penalties, including potential years of jail time.  In federal court, to convict a defendant of possession with the intent to distribute, the government must prove: (1) possession of a narcotic controlled substance; (2) knowledge of the possession; and (3) the intent to distribute. A determination as to whether the drugs are intended for distribution is fact specific. The federal courts have ruled that the intent to distribute can be inferred from a number of factors, including but not limited to: (1) the quantity of the drugs; (2) the packaging; (3) where the drugs are hidden; and (4) the amount of cash seized with the drugs.

A conviction of possession with the intent to distribute may be based on actual or constructive possession. A person may have constructive possession of contraband if he has ownership, dominion, or control over the contraband or the premises or vehicle in which the contraband was conceale. Proof of constructive possession requires proof that the defendant had knowledge of the presence of the contraband, but constructive possession may be established by either circumstantial or direct evidence. Either way, a fact finder may properly consider the totality of the circumstances surrounding the defendant’s arrest and his alleged possession.

State of Virginia Law

The law for possession with intent to distribute drugs in the Commonwealth of Virginia is similar to that of the federal law described above. Constructive possession may be established by evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and the character of the substance and that it was subject to his dominion and control. As with federal law, a determination of possession in Virginia is based on the totality of the circumstances.

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