Federal Crimes Defense in San Diego County

Federal Fraud

Federal fraud cases are primarily white-collar crimes, comprising three interrelated statutes:

• Mail fraud, a crime under 18 U.S.C. § 1341
• Wire fraud, a violation of 18 U.S.C. § 1343
• Bank fraud, a crime per 18 U.S.C. § 1344

Those laws are frequently combined in more complicated cases to secure a conviction because they encompass various fraudulent practices.

The scheme or artifice to defraud is the common element that forms the basis of all three acts. This is the main, underlying concept. It does not have to be a complicated, elaborate scheme. It can be a mere lie or misrepresentation with the intent of defrauding a person out of money or property. The prosecution does not need to show that the scheme was successful, but that you intended to defraud someone.

This expansive definition provides prosecutors with broad latitude in pursuing various deceptive practices, whether they involve investment schemes and corporate accounting fraud or simpler con games. This shared element is what makes the statutes so adaptable and interchangeable.

Although the criminal intent behind each is similar, each statute contains different issues, determining which law is applicable. How you conduct the fraudulent scheme is the distinguishing factor, enabling prosecutors to select the most appropriate statute to fit the case’s facts.

• Mail fraud—You commit this offense when you use the U.S. Mail or any other interstate commercial carrier, like FedEx or UPS, to further or execute a fraudulent scheme. The mail does not need to include the fraudulent information itself, but any use of the mail, however slight, in furtherance of the scheme will do.
• Wire fraud—This offense is the modern equivalent of mail fraud that relies on interstate electronic communications schemes. This includes phone calls, emails, faxes, text messages, and bank wires. Its wide coverage makes it a vital tool in prosecuting fraud in the digital age. Like mail fraud, an email or phone call that crosses state lines is sufficient to make the offense fall under federal jurisdiction.
• Bank fraud—This statute is aimed explicitly at schemes to defraud a federally insured financial institution, like a bank or credit union, or to obtain money or property through its control. 18 U.S.C. § 1344 is more specific and aims to safeguard the banking system’s integrity. The critical factor is that your fraudulent scheme targets a bank.

The punishments of these federal fraud statutes are harsh and reflect how seriously the government takes these crimes.

• A mail or wire fraud conviction could lead to a 20-year sentence and a fine.
• When the fraud involves a financial institution, the penalties are significantly increased. In schemes that involve bank fraud or mail or wire fraud that involves a financial institution, the prison sentence is extended to 30 years, with a potential fine of up to $1 million.

Drug Trafficking

The federal law, namely, 21 U.S.C. 841, provides that nearly all penalties for drug trafficking are predetermined by the type and weight of the substance in question. This law makes it a crime to manufacture, distribute, or possess with intent to distribute controlled substances and is the most commonly used instrument in the hands of federal prosecutors in drug cases. The system imposes harsh mandatory minimum sentences depending on specific quantities of drugs, no matter what your role or purpose was in the plan.

The strongest aspect of this legislation is the application of mandatory minimums, which are determinate prison sentences that judges are required to sentence you to once you reach a given threshold of the quantity of drugs. This eliminates judicial discretion and provides a uniform, severe penalty for trafficking specific amounts of controlled substances.

The statute creates two broad mandatory minimum categories: a 5-year and a 10-year sentence. For example, trafficking in 100 grams of heroin, 500 grams of cocaine, 28 grams of crack cocaine, 5 grams of actual methamphetamine, 40 grams of fentanyl, or 100 kilograms of marijuana triggers a 5-year mandatory minimum sentence.

It rises to a 10-year mandatory minimum on 1 kilogram of heroin, 5 kilograms of cocaine, 280 grams of crack cocaine, 50 grams of actual methamphetamine, 400 grams of fentanyl, or 1,000 kilograms of marijuana.

Penalties can be even more severe depending on circumstances.

• A drug offense conviction under this statute may lead to a jail term of up to 20 years and hefty fines.
• The minimum sentences are 5 or 10 years, depending on the quantity of drugs.
• When your use of a controlled substance you manufactured, distributed, or possessed with intent to distribute causes death or serious bodily injury, a first offense can be punished by a mandatory minimum of 20 years in prison. The maximum punishment will be life imprisonment.
• A death or serious bodily injury that results in a death or serious bodily injury may result in a mandatory life sentence if you have a prior felony drug conviction.

Although marijuana is legal in California, it is a controlled substance at the federal level, so you could potentially be charged with a federal crime. The conflict arises because federal law and state law are independent. Marijuana is a Schedule I drug under the federal Controlled Substances Act (CSA), which means that it has a high potential for abuse and no accepted medical use.

This federal classification criminalizes the cultivation, possession, and distribution of marijuana at the federal level, irrespective of whether it is legalized in the state in which the activity occurs. Although the federal government has so far taken a policy of non-interference in state-legal marijuana operations, particularly in small-scale and personal use, it is within its discretion to re-enforce federal law at any time. This means that you might be convicted of a federal offense when you:

• Transport marijuana across state lines
• Possess it on federal land, like a national park, a military base
• Engaging in activities that a federal prosecutor decides to target

The state’s legalization laws offer no protection against these federal charges, creating a unique and risky legal gray area for you to navigate.

Federal Sex Crimes

Federal sex crimes are the most severe of all felonies in the country and usually result in rigorous punishment and lifelong implications. Federal authority over the offenses usually occurs when the crime:

• Crosses state or international boundaries
• Involves federal property or a federal institution
• Involves a minor

Various offenses, including sexual abuse, aggravated sexual abuse, and child pornography crimes, are punishable by a severe and uncompromising sentencing regime. Sex crimes are perceived as crimes against the victim and society by the law and are therefore punished accordingly.

For example, 18 U.S.C. 2241 deals with aggravated sexual abuse, which involves sexual intercourse through force or threat, or where the victim is unconscious or incapacitated by a drug. A conviction may result in years in prison or life imprisonment and/or both. Sexual abuse of a person under the age of 18 under 18 U.S.C. 2242 also carries a term of years or life imprisonment.

The penalties are especially harsh when it comes to child pornography. According to 18 U.S.C. 2252 and 2252A, the punishments for the crimes are as follows:

• Possession of child pornography—This may lead to a jail term of not more than 10 years. When the material is a prepubescent minor or a minor under 12, the maximum sentence may be 20 years.
• Distribution or possession of child pornography—The mandatory minimum sentence is 5 years, and the maximum sentence is up to 40 years in prison.
• Production of child pornography—This offence has a mandatory minimum sentence of 15 years and a maximum of 30 years in prison.

In addition to these penalties, a conviction of a federal sex crime virtually ensures that you will have to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). This requires lifetime registration and adherence, limits where you can live and work, and exposes you to continual surveillance by law enforcement. A federal sex crimes conviction is life-changing, with serious legal and personal consequences.

Federal Firearms Offenses

Federal firearms crimes are not a unitary category of crime, but rather a constellation of several statutes that are intended to provide substantial punishment for gun-related crimes. The laws apply to you in either of two ways:

• Either because you are prohibited from possessing a firearm or
• Because you used a gun to commit another federal offense

In many cases, the laws are often used together, forming a serious legal system that can result in many years in federal prison.

Status offenses are the first category of gun charges under 18 U.S.C. 922(g). This statute criminalizes your possession of a firearm or ammunition merely because you belong to a prohibited category of people. The most common type is a convicted felon. However, anyone with a conviction on domestic violence, a dishonorable discharge in the military, or who is adjudicated as mentally defective also falls under this category. The act of possession is the crime itself, whether you used the firearm to commit any other crime or not. The punishment for violating this statute is up to 10 years in federal prison.

However, the sentence may be much more serious under the Armed Career Criminal Act (ACCA) in 18 U.S.C. 924(e). Even without any other aggravating circumstances, you can be automatically subjected to a mandatory minimum of 15 years in prison as a prohibited person under the circumstances, should you have had at least three prior convictions of a violent felony or serious drug offense.

This means that your sentence would not be reduced by a judge even when the gun was discovered in your house and you were not actively using it. The ACCA is a powerful sentencing enhancement that drastically increases your time behind bars.

The other, possibly more dreaded, gun charge is a “stacking” statute under 18 U.S.C. 924(c). This statute makes it a criminal offense to use, carry, or possess a firearm in relation to a federal crime of violence or drug trafficking. This count is nearly always charged with the underlying offense, including bank robbery, carjacking, or a drug conspiracy.

The most important aspect of this statute is that, regardless of how much time you receive on an 18 U.S.C. § 924(c) violation, that sentence is to be served consecutively to your sentence for the underlying crime. This is to say that the time is layered on top of your other sentence, which significantly increases the total prison sentence.

The minimum sentencing provisions of 18 U.S.C. § 924(c) are not negotiable and include:

• A minimum of 5 years if you carried a firearm during the commission of the crime.
• An obligatory minimum of 7 years, provided that you brandished the firearm.
• A 10-year minimum sentence is required if you fired the gun.

Federal Conspiracy Law

The federal conspiracy law allows federal prosecutors to charge you for agreeing to commit a crime, even where the underlying crime did not occur. This legal construct aims to penalize the criminal plan, enable the prosecutors to cast a broad net, and make many individuals liable for one criminal scheme.

General Conspiracy: 18 U.S.C. § 371

Federal conspiracy charges are based on the general federal conspiracy statute, 18 U.S.C. 371. To demonstrate that you have formed a conspiracy under this law, the government must prove three basic elements beyond a reasonable doubt:

• The agreement of two or more individuals—The government does not have to use a formal, written agreement to demonstrate this aspect. The agreement may be a mere meeting of minds to collaborate to accomplish a shared criminal objective. This agreement can be implied in your behaviors and the facts of the case, and it means that you may be responsible, even though you never explicitly talked about the plan with all other members.
• The agreement’s goal should be to break a federal statute—Your objective is what sets apart a federal conspiracy and a state-level conspiracy. The federal laws are comprehensive. Therefore, the objectives may differ significantly. For example, the purpose of your agreement could be to engage in mail fraud, wherein you use the postal service to perpetrate a scheme to defraud a person. Or, it may be a drug trafficking operation, where the aim is to produce, distribute, or possess a controlled substance in violation of federal law. The law does not demand that you carry out this objective. The crime is fulfilled as soon as you consent and take one step towards it.
• One overt act in furtherance of the agreement—Once the agreement has been made, there must be some overt act by one of the parties in the conspiracy to continue the criminal scheme. This action does not need to be a crime itself. It can be as basic as a phone call, email, or car rental. The overt act proves that the conspiracy went beyond talking and turned into a criminal action.

An important legal concept of conspiracy is that the intended outcome must not be achieved. The offense is in the contract itself.

Drug Conspiracy (21 U.S.C. 846)

The federal drug conspiracy statute, 21 U.S.C. 846, is separate and stronger than the general statute. It bears a significant difference, however, in that it does not need the government to prove an overt act, whereas it still needs an agreement to commit a drug trafficking offense.

That is, you can be charged with a conspiracy to distribute drugs at the moment of agreement, and the government does not have to prove that you did anything to implement the scheme. This critical distinction makes prosecuting far easier and enables prosecutors to enter a criminal enterprise earlier.

Pinkerton

The most dreaded feature of federal conspiracy law is Pinkerton liability, named after the Supreme Court case Pinkerton v. United States. This doctrine is that when you enter into a conspiracy, you are legally responsible for any reasonably foreseeable crime that any other conspiracy member might commit, whether you directly participated in or even knew of that particular crime.

For example, suppose you agree to join a conspiracy to distribute drugs and a co-conspirator uses a firearm in a drug transaction; you may be liable under 18 U.S.C. § 924(c) for a firearms offense even if you were miles away when it occurred. This means you might face an aggravated, consecutive five-year sentence, or more, on a crime you did not commit.

This expansive liability amount is a powerful deterrent, so prosecutors often prefer to bring conspiracy charges. It ensures that all criminal venture parties are responsible for the full enterprise.

1. The RICO and Hobbs Acts

The Racketeer Influenced and Corrupt Organizations (RICO) Act and the Hobbs Act allow federal prosecutors to weaken the criminal organization instead of prosecuting individual crimes. The laws enable the government to attack the structure and assets of an enterprise and essentially destroy it from top to bottom.

The RICO Act (18 U.S.C. 1962) is a complicated and potent instrument. It is aimed at charging you with participation in a criminal enterprise. The government has to show the following facts:

• Whether there was an enterprise—An enterprise is a formal or informal association of people united by a common purpose. This may be a classic organized crime family or even an ostensibly legitimate business.
• You must have engaged in a pattern of racketeering activity — You must have committed at least two predicate acts within 10 years. These predicate acts are a list of more than 30 enumerated state and federal offenses, including murder and extortion, drug trafficking, and wire fraud. It is this trend of operations that demonstrates the enterprise to be criminal.

The Hobbs Act (18 U.S.C. 1951) is one of the tools that can be effectively applied to demonstrate racketeering activity. This statute makes it a federal crime to rob or conspire to rob or extort, affecting interstate commerce.

Since nearly all modern-day commerce has a cross-state impact, the Hobbs Act allows the government to prosecute you in a wide variety of crimes, like robbing a store or extorting a business, which can then be used as a predicate act to prosecute you under a RICO charge.

There are peculiar and most severe punishments in these statutes, which are as follows:

• A conviction for an offense under the Hobbs Act leads to a maximum of 20 years of imprisonment
• The prison term that a RICO conviction brings is a maximum of 20 years, but the court can impose a sentence of years up to life in the case of a predicate offense that carries a life sentence.
• The government can also criminally forfeit under RICO, which allows the government to seize any assets that are the source of the criminal enterprise or used to facilitate the criminal enterprise, like houses, businesses, and bank accounts.