Articles Posted in Federal Criminal Charges

Americans value their privacy. It is considered a right. Americans especially value the right to privacy from government intrusions. The Constitution’s 4th Amendment, which requires probable cause for a warrant to search or seize a person’s belongings, has been interpreted to include this right to privacy. This Constitutional protection against unreasonable searches and seizures applies to governmental actions. But what about the actions of private companies? Can private companies search our stuff?

For private companies to be able to search our stuff, they generally get our permission. Many people don’t realize they’re giving permission for their computers and phones to be searched because the permission is couched in the fine print of the terms and conditions of the product they’re using. And to be able to use the product, the terms and conditions must be agreed to. For example, when someone sets up a new iPhone, accepting Apple’s terms and conditions is required for the phone to be used.

Included in Apple’s new terms and conditions for its iPhone will be a term allowing a program to search phones for child pornography. The program that will search iPhones for child pornography (called Child Sexually Abusive Material in Michigan) is called NeuralHash. This program will search the phone’s contents for hash values that indicate child pornography. Hash values are essentially digital fingerprints of files. NeuralHash will search hash values as opposed to actually viewing the files. If the hash values indicate child pornographic images as defined in the National Center for Missing and Exploited Children’s (NCMEC) database, NeuralHash will alert the NCMEC. From there, law enforcement could be alerted, a warrant obtained, the devices seized and searched, and criminal charges filed.

Your lawyer may ask you to obtain a character letter for court purposes.  This article explains how to format and write such a letter. You can share a link to this article with those you ask to write such letters. While there are many suggestions here, what’s missing is a sample character letter or a form character letter.  This is because utilization of a form will cause all character letters to look substantially the same, and this defeats the whole purpose and is counter-productive.  Use of such forms is strictly discouraged.

Also, for many people, being involved in the Michigan criminal justice system is a new experience, so let’s start with some basics and a discussion of how such letters might be used by your lawyer.

Character Letters for Use During Plea Negotiations

To complete an investigation and, ultimately, file charges for child pornography, law enforcement will almost always attempt to seize and search the electronic devices they believe could contain illegal material. The way police gain access to these devices can be an important issue in child pornography cases (called Child Sexually Abusive Material in Michigan). There are three categories in which police can seize electronic devices to search for evidence of a crime: with consent, with a warrant, without a warrant or consent.

Consent

The easiest way for police to get access to phones and computers in a child pornography investigation is to get consent from the person they’re investigating. If police come to your home and ask to see your electronic devices without a warrant, you should respectfully decline and call the Michigan sex crimes lawyers at the Barone Defense Firm immediately.

Charges for criminal sexual conduct cases, more commonly called sex crimes or sexual assault, are often based only on the memories of the complaining witness. This is especially true for sexual assault that allegedly took place when the adult victim was a child.  In these sex crimes cases there is no physical evidence, and the guilt of the accused rests entirely on the veracity of the witness’s statements and testimony. The problem is that the allegations of criminal sexual conduct can be based on totally false memories.

A new article written by an international team of researchers suggests that false memories can be reversed.  According to the article, false memories cause many problems, not the least of which is false criminal allegations.  The existence of false memories has been shown by many prior studies, and the contribution of this new study is that with the right kind of interviewing false memories can be supplanted by true memories.

To understand how this would all play out in a Michigan sex crimes case, the investigation of a sex crime usually begins with a report made to a police department.  The initial report will inevitably be based on a recollection of past events, in this case some kind of sexual trauma or abuse. The case might then be assigned to a detective, who is likely to seek a second interview of the complaining witness, a/k/a victim. Depending on the age of the complaining witness, a forensic interview may follow.

A psychosexual evaluation (PSE) is a psychological assessment administered by a licensed psychologist that collects information about one’s biographical and sexual history.  In addition to the clinical interview, the therapist will also administer several related psychometric tests, and based on both, will provide an opinion relative to the propensity one might have to commit a future criminal sexual act. Beyond the evaluation and determination of criminal recidivism, the PSE should also provide, if necessary, a treatment plan to give the person the tools to control sexual urges and avoid potentially criminal situations in the future.

What subjects are covered in the PSE?

The PSE is lengthy and can take several hours to two days to complete. Questions are centered around the client’s social and sexual history ranging from simple biographical information to very specific and detailed sexual encounters. Questions of a sexual nature will include topics like sexual fantasies, sexual relationships, and masturbation.

In most situations the answer is no, but the most complete answer is “it depends.”   First, it is important to know that restitution is different from fines and costs.  Fines are defined by statute and meant to be punitive. For example, if you were convicted of prescription fraud under 18 USC § 841, you could be fined up to $10,000,000. Costs are generally discretionary and are meant to reimburse the government for the expenses involved in prosecuting you.  Both fines and costs are paid to the government.

Restitution on the other hand is meant to restore the victims of the crime to the place where they stood before the crime was committed. The legal phrase for this is to make the victim “whole.” Generally, the purpose of restitution is to compensate a person who, because of the criminal activity, suffers physical injury or property loss.  These losses may be proximally caused and are payable to the victim if you have been convicted of a qualifying offense.

Like fines, restitution in federal criminal cases is most often set forth in statutes. Examples of federal crimes where restitution would be ordered include crimes of violence crimes of fraud, and federal crimes involving child exploitation and child pornography. See 18 U.S. Code § 3663A. In these instances, the court is required to order restitution.

Prosecutors and investigators for the United States Department of Justice and the State of New York announced last week an indictment on federal health care fraud charges on a licensed pharmacist and business owner in New York. The basic allegations are that the pharmacy owner paid off customers (in other words, provided kickbacks) to fill fake prescriptions at his pharmacy. The pharmacy would then bill the prescriptions to Medicaid and Medicare. However, the government alleges that either prescriptions drugs were never actually given to the customers or that drugs of lesser value were given, and that it was a scheme to fraudulently get reimbursed by Medicaid and Medicare.

What is a kickback under federal law?

The prescription fraud lawyers at the Barone Defense Firm have provided a detailed discussion about the Federal Anti-Kickbacks Statute previously.  The statute refers to a kickback payment as “remuneration.” Remuneration basically means cash or anything else in value. For example, in this case, the government alleges that the pharmacy owner gave customers coupons valued up to $5,000.00 in exchange for customers submitting fraudulent prescriptions.

Once you have been arrested on a Federal Complaint and Warrant, the government must hold a preliminary exam with 14-21 days unless you consent, and good cause is shown. Otherwise, the rules require that you be released. However, you can only be held on a complaint. You cannot be prosecuted further on a complaint and warrant.  To prosecute you further, the government must either file an information or obtain an indictment.

To better understand this, it is helpful to consider that when the government believes that you have committed a felony over which the federal courts have jurisdiction, the prosecution for this crime may be initiated by the government in one of three ways. The most common of the three is the criminal indictment. However, in certain circumstances, the government may determine that there is a need to forgo the grand jury and instead will prepare and file a complaint. This procedure is governed by Rules 3-5.1 of the Federal Rules of Criminal Procedure.

A compliant, and the necessary probable cause to support it, may be based in whole or in part on hearsay. According to Rule 3 of the Federal Rules of Criminal Procedure, a complaint must contain the essential facts of the crime alleged, and must be presented to a magistrate judge, under oath. Rule 4 of the Federal Rules of Criminal Procedure provides that, in reviewing the warrant and deciding whether to issue an arrest warrant, the magistrate judge must determine whether the complaint establishes probable cause to believe 2 things; first that the crime alleged has been committed and that second that the defendant committed it.

President Biden recently signed an executive order seeking to have the rules applicable to sexual misconduct cases reviewed.  Previously, President Trump had increased the due process of rights of the accused, bringing them more in line with the constitutional rights afforded those accused of sexual assault crimes in state and federal courts.

What Happens if a Student is a Victim of Sexual Assault?

If a college student believes that they have been sexually assaulted and want to bring the perpetrator to justice, they have many choices.  They can go to the police just as with any other crime.  Alternatively, they can report it their school. Or they can do both. Or they can have both done for them. Much of this will depend on the particular school involved.

If you have been charged with a violation under Chapter 110 of the United States code for possessing, receiving, distributing, or producing child pornography, then pursuant to 18 USC 18 U.S. Code § 2259, you are likely to be ordered to pay restitution to the victims of the crime. The term “victim” refers to the individual who is harmed because of the child pornography related crime.

As a general concept, the purpose of restitution in a criminal case is two-fold.  Firstly, restitution is intended to make a person “whole” meaning reimburse them directly for losses suffered because of the crime committed. Secondly, restitution has a punitive function, it is intended to punish the wrongdoer for the crime.

If the crime involved the trafficking of child pornography, which in this context means a violation of 18 USC 2251(d), 2252, 2252A(a)(1) through (5), 2252A(g), then the specific law cited above applies. Under this law, the court is required to determine the full amount of losses that were actually incurred or that could be “reasonably projected.” Then, after this calculation, the court is required to order restitution in an amount that reflects the defendant’s “relative role” in causing the victims loses.  The minimum amount that must be ordered $3,000.

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