Articles Posted in Federal Criminal Law

While this type of conduct is not necessarily the Lindbergh baby kidnapping or the OJ Simpson murders, people have had their careers ruined and regularly faced at least misdemeanor prosecution for these types of violations.   The Hillary Clinton email articles which I have read have focused on two federal statutes regarding mishandling of classified information.   There are two statutes that are normally in play regarding the actual classified information, and which are most commonly used in similar national security breach/leak prosecutions.

18 USC section 798 states:  “(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—  (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3)  concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—  Shall be fined under this title or imprisoned not more than ten years, or both.”  Here, the unsecured server made classified information available to anyone with access to the server and also hackers.  The details have not been brought forward on how many people had such access, but it is common sense that at least the host of the server had unauthorized access.   The details of the emails are also sketchy (and will not be detailed due to national security), but it is likely that the emails contained at least the type of information found in (3) and (4) of the statute.   However, the statute not only requires this crime to be committed “knowingly,” but also “willfully,” which requires that a person know they are violating the law and intend to violate the law in doing the conduct.  It is targeted for intentional espionage cases.

As the information in the public goes, Hillary Clinton maintained her State Department emails and conducted State Department business on a private, nonsecure server.  She then wiped (or had her people wipe) at least part of the server, including many emails, before handing them over for investigation.   Many people want her prosecuted for mishandling classified information, but from the facts as provided by the media (reliable or not) there are several federal statutes that could be involved, including other felonies.   This article does not express judgment on Ms. Clinton’s guilt, but attempts to correct or expand on previous articles and information disseminated in the media.

Many people have been prosecuted for similar acts which Hillary Clinton might have committed.   We all know about Iraq War Hero General David Petraeus being prosecuted for allowing his mistress access to classified information.  But, less famous people have been recently prosecuted for similar conduct. Bryan Nishimura of the Naval Reserve was placed on two years of probation for downloading classified material to a personal electronic device, without any intent to distribute it.  Chief Petty Officer Lyle White pled to a 60-day sentence for downloading classified material to a nonsecure device.  The Blaze has a good article at  http://www.theblaze.com/stories/2015/08/14/if-hillary-clinton-mishandled-classified-information-heres-what-it-could-mean/.

The presumption of detention is rebuttable, but very daunting. A person charged with a presumption case offense must rebut the presumption by clear and convincing evidence. This is the second most onerous burden in our law, right below proof beyond a reasonable doubt. Release is obviously far less common in these cases, but people with minor (or unprovable or nonexistent) roles in the offense with minimal criminal history who have a third party custodian stand a chance, and should not simply waive the detention hearing. In fact, the only time a person should waive their detention hearing is when they are being held outside the Federal courts: i.e., they would not be getting double credit for the holds if released, or people who have immigration holds. Even in these cases, the court can reopen the detention hearing if circumstances materially change, such as making bond on state charges (common) or getting the immigration hold lifted (rare).

Detention hearings are great opportunities not only for release but for discovery. The government begins with the burden in every case, so their agent must testify. Your attorney can cross examine the agent on key facts and circumstances of the case. You can dig for critical pieces of evidence relevant to the hearing, since the weight of the evidence is a factor the judge must consider. For this reason alone, a waiver should be avoided if no outside holds exist.

If the court denies release and orders detention pending trial, a person has the right to appeal the decision to the Article 3 federal judge. The presiding judge hears the case de novo, which means they make their own ruling on the evidence. The percentages of detentions getting reversed by the District Court is very low, and the subsequent successful appeal to the Fifth Circuit is virtually nonexistent, so it is very important to hire a lawyer who knows how to most effectively present your case for release in the magistrate court.

Community and family ties are very important in the Eastern District of Texas Sherman Division. The judges give lots of weight to whether a third party custodian exists: i.e. a responsible family member or very close friend who can supervise the defendant and report any violations to the court. The toughest problem detainees face in this District is the “presumption” case. In drug conspiracy and other serious offenses, a rebuttable presumption exists that no set of conditions exists to ensure the safety of the public or the appearance of the defendant. These cases by statute include: “(1)…(A) a crime of violence, a violation of section 1591, or an offense listed in section 2332b (g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed; B) an offense for which the maximum sentence is life imprisonment or death; (C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46; (D) any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or (E) any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921), or any other dangerous weapon, or involves a failure to register under section 2250 of title 18, United States Code…” Probably 90 percent or more of drug conspiracies allege a drug weight amount high enough to trigger the ten to life sentencing range.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

At the detention hearing, the judge determines according to statute whether any “condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of such person as required and the safety of any other person and the community.” 18 USC 3142(b). Basically, will you show up to court and not commit any other offenses? The statute lists factors the judge shall consider: ” (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including– (A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release…”

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

Unlike in Texas state courts, where upon arrest a (normally) affordable surety bond amount is set by a magistrate, in Federal court in the Eastern District of Texas Sherman Division there is no “bail bond” procedure. Instead, when arrested for a federal offense, you are taken before a magistrate judge, a judge who basically works for the Presidentially appointed Article 3 Federal Judge. This magistrate determines whether you are released on “conditions of release” or are held pending trial.

Prior to the hearing, an Eastern District of Texas probation officer meets with you about your entire background, including any drug use, and makes a written report for the judge. Any drug use or habit admission substantially increases the likelihood of detention. The government has the option to move for detention or not. In many cases, such as white collar and other non-violent, non-drug cases (usually involving a single defendant), they don’t. However, upon the government’s motion, the judge sets the hearing as soon as possible. This motion is filed at the initial appearance before the judge, and the detention hearing within the next few days or a week after the initial appearance (your attorney and the government have the option to request a continuance).

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

The base offense level for a prohibited person in possession of a firearm is relatively low. Advisory Sentencing Guideline 2k2.1 calls for a base offense level of 14 if a person is prohibited by law from firearm possession, which along with a 3 point reduction for acceptance of responsibility yields an advisory base offense level of 11. With no criminal history (category I), that is an advisory guidelines range of 8-14 months in the federal penitentiary.

A common guidelines enhancement, however, is a 4 point enhancement for possession of the firearm “in connection” with another felony offense, which is large for an offense conduct enhancement. Courts have interpreted this enhancement very broadly, so if one were possessing felony drugs at the time of the firearm offense, or committing felony evading arrest, or committing any other felony offense in which a firearm would conceivably contribute, this enhancement applies. These 4 points alone could bump an 8-14 sentence to an 18-24 month sentence, more than doubling the lower end of the guidelines. These 4 points are even more costly for people with higher guidelines ranges.

Also, the price of poker goes up higher if you have one or two previous convictions for a “controlled substance offense” (drug delivery or possession with intent to deliver etc), or a “crime of violence” (a crime involving the use, attempted use or threatened use of physical force, or burglary of a dwelling, arson, extortion, uses explosives, or other conduct that presents serious risk of physical injury). One prior conviction for a crime of violence or controlled substance offense raises the base offense level to 20. Assuming a criminal history II category, although its likely to be III or higher, this yields a base sentencing range of 27-33 months, 30-37 months if category 3. (Assuming acceptance of responsibility points). Two prior convictions for a crime of violence and/or a controlled substance offense raises the base offense level to 24. At criminal history level III that yields a range of 46-57 months, 57-71 months for a category IV, and 70-87 months for a category V.

Mr. Hurd will have a tougher time in his detention hearing and his case because, by his own statements reported to the media, he is the man in charge of his conspiracy. The primo hombre, so to speak. The Federal sentencing scheme punishes this as a “leadership role,” which normally increases the amount of time one does in the penitentiary and can block one of the few four-leaf clovers in the Sentencing Guidelines, the “safety valve.” (It was reported that Mr. Hurd stated “…his co-conspirator is in charge of doing the majority of the deals as HURD focuses on the ‘higher-end’ deals. HURD subsequently inquired if the UCA (undercover operative) and the CI (confidential informant involved in the case) could provide him with Mexican cellular telephones, as HURD believed that law enforcement did not have the capability of ‘listening’ to Mexican telephones.”) I have no knowledge of Mexican cellular phones, and won’t attempt to go there.

The “safety valve” Guidelines provision allows a person to be sentenced to their actual guideline range, despite the mandatory minimums, if they meet certain criteria – i.e. no gun was involved and nobody got hurt, the person has virtually no previous criminal history, did not act in a leadership role, the person offers to speak with the government about all information you know about the case (an offer is enough, even if the government doesn’t take you up on it). This can make a big difference if the advisory Guidelines Range, which judges are not required to follow anymore but do normally follow, comes out around seven years. The “safety valve” allows the judge to go below the ten year minimum and sentence a person to seven years rather than being obligated by statute to sentence him to the ten year minimum.

The trump-card I am waiting to see the Feds play is them moving his case to the Eastern District of Texas, Sherman Division. Since acts in his case occurred in Dallas and likely moved through the Eastern District to Chicago, the Feds could (like they do in most cases), forum shop Mr. Hurd to the Eastern District, where it is far more likely that he would get an all-white jury on his case. However, I bet the Northern District of Texas keeps his case so they can look like they are doing something relative to the backlogged dockets of the Eastern District, a choice forum for prosecution if there ever was one.

Wide receiver Sam Hurd, a well-liked player whose hard work earned him a roster spot on the Dallas Cowboys a few years ago, and eventually landed him a $5.1 million contract with the Chicago Bears, decided to risk it all by investing his money not in the fickle stock market but in cocaine and marijuana. Now, according to the amounts of drugs being discussed on Yahoo and the Dallas Morning News, Mr. Hurd is facing ten to life in the Federal penitentiary for conspiring to distribute five kilograms or more of cocaine in the Northern District of Texas and elsewhere. The five kilograms of cocaine is an important amount as it triggers the mandatory minimum of ten years imprisonment (and up to life).

Mr. Hurd will most likely face a detention hearing in the next few days, at which he will almost certainly be detained due to the (relatively) large drug amounts. In Federal court, it is presumed that if you are dealing with an amount of drugs large enough to trigger the mandatory minimum statutes, that you are a danger to society and bond will be denied. This presumption can be rebutted by clear and convincing evidence to the contrary, which occasionally happens but it is the exception not the rule.