Federal Sentencing Guidelines
Federal Fraud Sentencing Guidelines
To be charged of a federal false statement means you have violated title 18 of the United States Code, section 1001 whose penalty is a prison sentence not more than 5 years and a fine of $250,000. If the false statement charge is terrorism related the conviction can go up to 8 years. This charge is commonly used by prosecutors to throw a spanner in the works of federal criminal proceedings so they can have a bit more leverage.
A federal false statement means any information that you willfully or knowingly falsify, conceal or cover up by use of trickery, device or scheme. It also states that material fact or making material false, or makes a fraudulent or fictitious statement or misrepresents with an aim to deceive. Subsection (b) of that section however does not apply to any other party to the proceeding or that party’s counsel. Even if the defendant gave misleading information to safeguard another person’s rights, its interpreted as concealing information and many notables have faced jail time in that respect.
Making use of a document that with an absolute knowledge that its contents stand contrary in falsity, fiction and fraud to a federal proceeding; using that document to then mislead any federal jurisdictional official falls under the charge of federal false statements. Any written or spoken communication to a federal judge therefore, such as a written notice or a motion to suppress evidence; needs to be looked at for any falsity or interference that may be construed as deceiving.
Federal Fraud Sentencing Guidelines
There exists a lesser offence known as giving a false report which; depending the authority you are dealing with, e.g. police or fire services, can be tried as a misdemeanor or an infraction. However, giving false statements under oath to any federal agent or in a federal courtroom for that matter is a serious federal crime. This is called Perjury; which is a felony contrary to federal law 18USC §1621. Perjury as a separate crime is punishable with a fine or an imprisonment of up to 5 years. www.wikipedia.org states that ‘perjury is an intentional act of swearing a false oath or falsifying the truth, whether in writing or spoken; concerning matters material to an official proceeding.’
If you are under a federal investigation, the sensible thing to do when under the interrogation is refer all questions to a criminal defense attorney. All federal agents by rule; work in pairs, one of whom subjects the interviewee to a barrage of questioning while the other records it. They may strike with a house visit, or call at your place of work; warrants and all. The defendant is however within their rights if they keep quiet or refer to legal counsel; they can also plead the 5th Amendment of the US Constitution. The amendment go the Bill of Rights states in partiality that; ‘no person shall be held answerable for infamous or capital crimes unless on presentment or indictment of grand jury; except in a military, militia or active duty capacity’.
The prosecution of federal false statements may hit a legal snag if there are issues with proving that the falsity and deception lies within the content of 18 U.S.C § 1001. If it was given in simple denial of guilt i.e. in a commission of inquiry or a senate committee hearing; then it cannot be tried under section 1001. Before an amendment to this section in 1996, it stated broad that; ‘within a US departmental or agency’s jurisdiction if whoever knowingly or willfully’… therefore any voluntarily given information to a federal agent applies to this section.
Rulings by some courts however, have upheld than the refusal to accept responsibility, has no impairment on the effectiveness of the investigating agency. This is known as the ‘exculpatory no’; a doctrine that’s not applicable in cases where the aforesaid statement go further to mislead affirmatively, a federal investigation. United States v. North, 708 F. Supp. 364,369 (DDC 1988)
All information that you are about to give an official from any federal jurisdiction must not be false or fraudulent in any way to ovoid the charge of federal false statements. Think carefully if confronted by a Federal Bureau of Investigations agent or an Inland Revenue Service investigator. Consider the fact that if you say something false or provide altered material evidence and it falls under the broad scope of section 1001; you risk a large fine or a very long federal penitentiary visit.
What Happens Before A Sentence Is Imposed In Federal Court?
Prior to a sentence being imposed in a federal criminal or white-collar crime case, there’s a lot that happens. The judge, prosecutor, your attorney, a probation officer, and other parties are all involved. It can take several months before the convict’s sentencing hearing. It may be a period of exceptional stress due to the very nature of the process and the potential results of such. Depending on the type of crime committed, background, and other aggravating or mitigating factors, the sentence can vary considerably. In some scenarios, there may not be any jail time at all.
Meeting with a probation officer is the first step:
A probation officer prepares a presentencing report. This report is a comprehensive listing of the subject’s background. It takes many different factors into consideration such as social background, work history, criminal background, financial status, and potentially more.
After the presentencing report is completed:
The presentencing report is distributed to everyone involved in the matter including the convicted party. The convicted patty and their attorney will review the report together, typically. This is to determine if the report is accurate and if any objections need to be raised. This is a very important step as it is one of the biggest determining factors in the convict’s sentencing.
Behind the scenes:
There’s a lot that’s happening behind the scenes. The judge works with assistants to research past sentences in similar court cases. The judge tries to gather this information from as many sources as possible to ensure that they have a fair and objective understanding. The judge also takes into consideration the testimony that’s been given in court. He or she reviews the documents, evidence, and anything else that would help in determining what type of sentence would be appropriate.
The death sentence:
The death sentence is reserved for cases that warrant it such as capital murder. It’s only given if a jury decides it’s an appropriate consideration. Other factors that are considered include whether the convicted party is mentally competent and if they’re over the age of 18. Otherwise, the death sentence is a form of “cruel and unusual punishment.” Protections against this type of practice are guaranteed by the US Constitution.
The sentencing memorandum:
A sentencing memorandum is a comprehensive document that’s composed by the convict’s attorney. The document speaks to the character of the convicted and their reputation in general. It may also include references by the convict’s friends, family members, coworkers, members of the community, and more. The intent of this memorandum is to give the judge and everyone else involved one last push for a more lenient sentence. This technique has been highly successful in many cases.
The sentencing trial:
During the sentencing trial, the judge will announce the sentence that is to be imposed. The judge has already done their homework; however, the final sentence isn’t set in stone quite yet. The judge will listen to the prosecution, the convict’s attorney, and the convicted. It’s important that the convicted work with their attorney to prepare what is to be said and rehearsing it prior to the sentencing trial. This gives the greatest chance of success in getting the most lenient sentence. After the information is presented, the judge will then speak on the matter. He or she will also announce the final sentence. If the attorney and the convicted disagree with the sentence, they may file post-trial motions or an appeal, depending on the particular action requested and the circumstances. The Department of Justice, Offices of the United States Attorneys website offers great insight on the sentencing process and much more. Click here to visit the Department of Justice’s website.
Selecting an attorney or hiring a new attorney:
If you’re in need of an attorney or were dissatisfied with your old attorney, it’s imperative that you seek one out. An attorney is an absolute necessity in any federal court matter and especially during the sentencing process. During this time, they’ll help you more than ever before in getting you the best possible sentence and terms. A no-risk consultation will give you the chance to ask questions and have your questions answered. We’re available whenever you happen to need us. Get in touch online or by telephone to get the representation you want and deserve, today.
How Can You Challenge A Federal Criminal Conviction?
When you or your loved one have been charged with a federal crime, you may want to know your options in appealing the conviction. You may feel that the judge or jury made an improper decision based on the evidence presented, and you want to overturn the case. It could be your lawyer that made a mistake, and you want to have a fresh set of eyes look at your situation and appeal of the matter.
Your Rights to Appeal A Federal Crime
Under the United States Constitution, you have the right to appeal any decision that was handed down. You must show that you were not given a fair trial due to one or more factors. It can be because the judge or jury was given information that was false, or you could have been given a court-appointed or had another attorney that did little to help you.
You, also, have the right to competent counsel in any crime. If you feel that your rights have been infringed upon due to the trial’s outcome, then you can try to get your conviction overturned under code 28 U.S.C. § 2255, a petition can be filed for an appeal.
Two Ways to Overturn A Conviction in Federal Court
Two basic appeals can be filed in a federal court to have the appellate court review your case. The circumstances will depict if it’s best to file a direct appeal or a 2255.
One of the most common methods of appealing your case is called a direct appeal. After sentencing has been handed down, you have fourteen days to file the documents for this type of appeal. To have sufficient grounds, you must be able to prove one of the following:
You can’t just say that they didn’t like you or other things of that nature. You must prove to a federal judge that they didn’t act within the law and did you wrong. Establishing what happened in the courtroom can be quite challenging, especially when you are saying that the judge or jury was biased or not following legal protocol.
A habeas petition is called a 2255, and it gets its name from the section of the Constitution where it originates. You can find this at 28 U.S.C. section 2255. When you have an attorney file this petition on your behalf, it means that you have been locked up unjustly. It means that something has occurred that has violated your rights. The most common reason to file this appeal is because of a lack of effective legal representation.
If your lawyer didn’t conduct a proper investigation of the evidence, didn’t file necessary documents or motions, and messed up your chances of a fair trial, then you may consider submitting a 2255.
You must keep in mind that using a 2255 is a very different kind of appeal than going about it directly. In a direct appeal, you are stating that the court or its agents did something wrong in your case, but when you file a 2255, you are blaming everything on the lawyer that represented you.
Deciding the Proper Method To File Your Appeal
When it comes to the legal system and most courts, the timing of the appeal means everything. Traditionally, you file a direct appeal followed by a 2255. However, when you are dealing with the federal court circuit, everything is different. You and your attorney must figure out what you want the court to address, and then you can file the appropriate documentation. The “vehicle” you use in your appeal can mean everything to the outcome. Before slinging accusations at the judge, jury or an attorney, you must have sufficient evidence to back up your statements.
Having a crime on one’s record can have far-reaching negative consequences for the private life and career of the convicted person. And this is especially true for people indicted for federal crimes, as they are frequently harsher and therefore are punished more severely. Check out this article written by federal criminal defense attorneys at Spodek Law Group to learn about the peculiarities of this type of offenses, how they differ from state ones, what consequences and penalties they may result in, and what a person should do if investigated or charged with a federal-level offense.
Definition and Types of Federal Crimes
A federal offense is a violation of the U.S. federal legislation. These are the crimes committed against all U.S. citizens, citizens of two and more states, and the U.S. federal government.
For example, tax fraud and evasion results in all U.S. taxpayers getting overbilled, and thus the crime is considered federal. Similarly, fraud and abuse of federally funded healthcare programs results in a waste of all the U.S. taxpayers’ money, and thus Medicaid and Medicare fraud is not just a state-level offense. Other types include the following:
Difference between state and federal offenses
State-level criminal offenses are prosecuted by the local and state law enforcement authorities. Mostly, these are the crimes committed within the boundaries of a single state and they do not relate to the citizens of other states, at least not directly. Federal crimes in their turn, as it has already been said in this article, are the crimes committed against all U.S. citizens or citizens of two and more states. Sometimes the two types of crimes overlap, in which case the federal government is most likely to take over the case.
Consequences and Penalties for Federal Offenses
State and federal offenses differ in the way they are prosecuted and penalized. First of all, the federal government has much more resources to investigate crimes, and in some cases several investigative agencies will join forces to investigate a charge. Therefore, the more investigators working on the case, the more evidence collected, and thus the prosecution case is likely to be very strong and extremely difficult to challenge.
Secondly, federal and state judges have a different level of discretion when determining penalties and sentences. In federal courts, judges use special sentencing guidelines, which are quite strict and straightforward and among other things have a point system to determine the impact of the person’s previous criminal history on the current sentence and additional punishment enhancements. In state courts, a judge may be guided by either sentencing guidelines or by sentencing ranges with no specific guidelines, depending on the legislation of a particular state.
Thirdly, state and federal legislatures have different sentencing laws for similar crimes, and the latter has harsher and higher maximum penalties.
What to Do If You’re Investigated or Accused of a Federal Offense?
As you see, federal criminal charges are much more challenging to handle and therefore require the expertise of an attorney who has years of experience in the law area your case belongs to. However, even before a lawyer sets to your case, there are some things you can do to make it easier for the legal counsel to build a strong defense. If you need help with federal appeals, our federal appeals lawyers can assist with this as well.
- Don’t talk to the government officials before talking to your lawyer. In most cases, by the time the person learns that he or she is under investigation, the agents have already gathered an extensive amount of evidence, and anything you say may serve as proof of whatever information they already have. Sometimes the agents may tell the interrogated person that it’s not he or she who is targeted and that they’re asking for information about some other individual. This may also make you tell the officials some incriminating information.
- Don’t talk or write or text to anyone about the case except for a lawyer who’ll be handling your defense. The investigators have the authority to review your online activity and your phone may be wiretapped.
- Always ask for a search warrant or a subpoena. Without these documents the agents can’t force you to give them any papers or search your home or office.
- Call an attorney who specializes in your kind of cases as soon as possible.
Prompt assistance of an experienced legal counsel can help you get the dismissed, lower criminal penalties, change the degree of the crime you’re charged with to a less severe, even change the court your case will be prosecuted at from federal to state.
How Do The Federal Sentencing Guidelines Work?
It’s very crucial that you familiarize yourself with the federal sentencing guidelines if you are having been convicted of a federal crime. It’s also just as important if you have a friend, loved one or family member who is awaiting sentencing. These guidelines form the basis of the range of months one can be sentenced to for every crime.
The guidelines were created by Congress and are issued out by the United States Sentencing Commission. The Congress comes up with the maximum penalty, and at times the minimum penalty an offender of a federal crime should be handed. The United States Sentencing Commissions mandate is to look at the circumstances of an offence and create guidelines for sentencing. The goal of these sentencing guidelines is to ensure that there is consistency in federal sentencing nationwide. This translates to ensuring that offenders with similar criminal records and convicted of similar crimes get to serve similar sentences. For an overview of the guidelines, click here.
There are two major frameworks under which the federal sentencing guidelines work. The frameworks are;
The offender’s criminal history
The offender’s criminal history is a significant part of how the federal sentencing guidelines work. It would be unfair to punish a first-time offender the same as a chronic offender in some instances. If the offender has a clean criminal record and has never committed any crime, then they are put under criminal history category one. If the offender has committed many crimes before the one that they are being convicted for in the present, they are placed in the criminal history category six. The higher the criminal history of the offender, the more the months of sentencing they will face in a federal prison. This first framework of federal sentencing guidelines is meant to discourage convicted felons from committing another crime.
The crime committed
Different crimes have different levels of severity. It would be very unfair if a murderer was sentenced for less time than the common thief. The federal sentencing guidelines analyze the crime committed and its severity in determining the appropriate sentencing for it. The offense level of a common thief is much much lower than that of a murder according to these guidelines. When we add bank fraud to the equation, it takes a position in the middle of common thievery and murder. Since they have a higher offense level, a murderer will spend much more months in a federal prison than the person who committed bank fraud and that who committed common thievery. Despite bank fraud and common thievery both being forms of thefts, the former is a much more severe crime than the latter. This means that a person who is convicted of bank fraud will spend more months in federal prison than the common thief.
The departures and exceptions in the guidelines
You should first note that the Supreme Court clarified that judges do have to make their sentencing adhering to the guidelines. There are numerous departures and exceptions from the guidelines both out and within the guidelines to the framework mentioned above. These departures and exemptions are:
According to the federal sentencing guidelines, if an offender pleads guilty to the offense, they get some leniency. Some levels are taken off their offense level which means they will get a slightly reduced sentencing. This departure is meant to help discourage guilty offenders from wasting the courts time by pleading innocent.
The number of victims
Let’s go back to the banking fraud scenario. If an offender is accused of defrauding just one financial institution, it will be unfair to hand them the same sentencing as an offender how has defrauded numerous financial institutions. In this case, the less the number of victims, the less the offence level one has. This means a little less time in a federal prison. This departure aims to discourage and offender from committing more offenses.
For more insight into the departures from the sentencing guidelines, click here.
According to statistics, more than 75% of federal criminal case rulings in the last quarter of 2014 adhered to the federal sentencing guidelines. This means that despite it not being mandatory for judges to make their verdict according to the guidelines, most rulings still follow it. This is why it’s essential you understand how the guidelines work.
Financial fraud: Definition and Types of Fraud
Financial fraud is a white-collar crime that is defined as a form of theft committed by an individual or a business when they either take resources or use them illegally in order to obtain profit. Often those who commit financial fraud act deceitfully and abuse the position they hold at work, and that is what makes this type of crimes different from robbery and theft.
Types of financial fraud:
- securities and investment fraud;
- credit or debit card fraud;
- money laundering;
- tax fraud;
- bank fraud;
- accounting fraud;
- pyramid schemes;
Tips on How to Avoid Financial Fraud
Most victims of related crimes have a distinctive feature – a desire to accumulate wealth quickly and effortlessly. Unscrupulous investment advisers, stockbrokers, insurance agents and pyramid schemes have a nose for such persons’ naivety. And the Digital Revolution has made it easier than ever for a scammer to take advantage of people. The means by which fraudsters contact their victims are plentiful: from door-to-door sales and cold calls to social media and email. And with all the technologies available, sometimes deceived people won’t even be able to learn the real name and the location of the criminal, making it difficult and in some cases impossible for law enforcement authorities to track down the fraudster.
So in order not to become end up in such a situation, we recommend that you follow these guidelines:
- Be wary of anyone promising you investment returns and other benefits that sound too good to be true. Never trust salespeople who rush you into making an investment or a purchase immediately.
- Always double-check before making a decision. Take your time to learn more details about the salesperson, the firm they represent, and the venture they are trying to convince you to invest your money in. A simple Google check can save you from becoming a victim. Other sources include the finra (Financial Industry Regulatory Authority) BrokerCheck online service and the SEC (Securities and Exchange Commission) website. You have all the right ask for records of the person’s professional conduct, inquire into the company’s background, audits, investigations, lawsuits and other details.
- Ignore unsolicited emails, messages, phone calls and Internet banners asking you to invest your money in some venture or to wire money as a processing fee for a lottery you won but had never signed up for. Set up spam filters for your email box and install an ad blocker in your browser to save you the trouble of even paying attention to such things.
- Never provide your personal financial information, your ID, Social Security card number, PINs, etc. and stay alert when using your credit card in public. Regularly check your credit card charges for transactions you never did.
What to Do If You Become a Financial Fraud Victim
Sadly, despite the informative measures the government takes in order to prevent people from falling victims to financial fraud and all the media coverage about scandalous Ponzi schemes, people are still largely exposed to such crimes. This is especially true about senior people. Moreover, the elderly frequently feel embarrassed about reporting crimes, as they are afraid to come across as not capable of managing their finances. Therefore, it is advisable that young people educate their elderly relatives about the guidelines mentioned above.
If you or someone you know still ended up falling for a scam, it is necessary that you report the crime right away. You can find the contacts of the authorities charged with attending to your specific type of situations on government websites, for example, you can visit the stopfraud.gov website. And in case the scammers have done their homework and it seems like there is no chance that you can prove that a crime has been committed against you, hire a legal counsel immediately. Timely and competent assistance of an experienced financial fraud lawyer can make all the difference and help you get your money back.
Steps for People Investigated or Accused of Financial Fraud
A recent spike in financial crimes and their scale has put law enforcement authorities on guard against such crimes. This has given way to a large number of investigations and prosecutions against business professionals and companies that provide services related to investment, securities, insurance, etc., who meant nothing but good to their clients. If you have found yourself under investigation or someone you know was arrested for this crime, you should hire a financial crimes attorney as soon as possible. Mind that you should avoid speaking to the enforcement officers without legal representation as any details provided may be used to incriminate you. This will make it much more complicated for your securities or bank fraud defense lawyer to defend your case successfully.
Federal Sentencing Guidelines for Criminal Copyright Cases
You could go to jail for violating copyright law especially if the violation is willful and involves certain kinds of infringement. The copyright owner, on the other hand, benefits more when more people are facing penalties for breaking this law. A recent study found out that the number of people getting convicted of intellectual property violation has increased to 61% for the past ten years. On another thought, it is highly unlikely for one to go to jail for copyright infringement. The numbers of those who go to jail for this crime is significantly low even with the cases being on the rampant. Take an example of 2010; there were a paltry 200 criminals who were convicted for intellectual property violation, some of those cases being trademark cases.
What is Criminal Copyright Violation?
If you infringe the copyright laws, you will be sued civilly and at times prosecuted criminally for the infringing act. The civil statute of limitation is up to three years; however, there is also a five years statute of limitations for the federal prosecutor to bring the case against the offender. For one to successfully bring the copyright infringement suit, they must have registered the copyright. The prosecutor needs to table evidence that the accused knowingly infringed for their commercial advantage or to gain financially. The prosecutor should demonstrate that the offender distributed one copy or more, or phone records of more than one copyrighted work with a total retail value exceeding $1000 in the past year. They may also have distributed works that were being commercially being prepared for commercial distribution. Therefore they made the work publicly accessible on a computer network even though they know that the work was for retail distribution by the owner.
Evidence of “willfulness”
Courts say it is willfulness when a person charged with infringing copyright is given legal notice that his conduct was infringing the law. Also, if they knew that his conduct was illegal but went ahead to do it. You would be committing a crime when you pull out your phone or camera and start screening movies and recording what is playing on the screen then upload it online while ignoring many desist warnings that screening and sharing it is illegal. In such a case, the court will see that your conduct was willful.
How federal Governments Decide to Criminally Prosecute Copyright Offenders
If you have ever received the cease letter that notes criminal penalties for willful infringement you may wonder how the federal court would prosecute you for copyright infringement. You need to understand that the federal court makes these rulings carefully. All meritorious cases which fall within the parameters of the statute are seriously considered for trial. The courts more seriously consider the seriousness of the offense and if they can be a successful trial.
To know whether the offense is serious, they consider the number of copies you distributed and their worth. Federal prosecutors usually give special attention to offenders who are successfully charged civilly but continue to violate the law. If the case is to be prosecuted successfully, it will depend on the existence of legal issues or evidentiary. The prosecutor, on the other hand, needs to explain the evidence and legal issues and advocate them despite them.
You could refer here for some terms that may find hard to comprehend.
(a) Base Offense Level: 8
(b) Specific Offense Characteristics
1) If the violation amount (A) is over $2000 but did not exceed $5000, by the increase of levels, property destruction, theft and fraud corresponding to the amount.
2) If the crime involved publication, display, performance, reproduction or distribution of the work that is being prepared for commercial distribution, increase by two more levels.
3) If the offense, (A) involved importation, uploading, manufacture of the infringing items, or (B) the defendant would be convicted under 17 USC. The resulting offense is less than 12 levels, increase to twelve levels.
4) If this crime was not committed for commercial advantage or private financial gain, decrease by two levels but should not be less than level 8.
5) If this crime involved (A) the risk of death or bodily harm, or (B) possession of a dangerous weapon, e.g., firearm, together with the offense increase by two levels. If the new offense level is less than 14, make it level 14.
Do you need A Lawyer?
You need a federal defense lawyer by your side when you are charged with copyright violation. They will explain the law on copyright infringement much better and represent you in court. They know their way around this law and will do everything to ensure you get a fair trial, less harsh penalty or equally negotiate for an out of court settlement.