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The demise of the mandatory federal sentencing guidelines in 2005 has given rise to amazing opportunities for skilled federal criminal defense attorneys to achieve tremendous results for their clients. Nowhere is this truer than in federal bank fraud, mail fraud, and wire fraud investigations and prosecutions. Federal “white collar” fraud prosecutions typically involve persons with little or no criminal background and with substantial ties to the community and strong family support. Surprisingly, many federal criminal defense attorneys do not take advantage of these factors in defending their clients. Under the old mandatory federal sentencing guidelines, family circumstances, family support, and community ties were generally prohibited as bases for sentencing reductions. Such circumstances were only to be considered if they were “extraordinary” and, even then, federal judges were hesitant to reduce sentences by any significant amount based on these factors.

In 2005, the United States Supreme Court, in United States v. Booker invalidated the mandatory federal sentencing guidelines and changed the federal sentencing dynamic forever. In the Booker case, the Supreme Court made it clear that federal judges must impose sentences that are “reasonable” and consistent with the goals of federal sentencing as set forth in 18 U.S.C. 3553 (a). Many federal judges have come to realize that the protection of a defendant’s family is, in the right situation, a proper basis to impose probation instead of incarceration. But yet many federal defense attorneys are unaware of this powerful and emotional weapon to fight off prisons sentences in federal courts.
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I recently had a criminal case in federal court where the Assistant US Attorney was arguing that the bouncing of checks by the defendant constituted federal bank fraud.

The Law:

18 U.S.C. § 1344 states that a person commits bank fraud when she knowingly executes, or attempts to execute, a scheme or artifice:

1. To defraud a financial institution; or
2. To obtain any of the moneys, funds, credits, assets, securities or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.

Federal Case Law:

To obtain a conviction for bank fraud, the government must prove the following elements:

1. Defendant knowingly executed or attempted to execute a scheme or artifice to defraud a financial institution,
2. Defendant had the intent to defraud a financial institution, and
3. The bank involved was federally insured.

In U.S. v. Orr, the Court of Appeals for the Fourth Circuit held that the federal bank fraud statute is not intended to create a federal “bad check” law. A routine bad check case does not fall under § 1344, but under the relevant state law. Mr. Orr, the defendant, opened a checking account under a false name and negotiated bad checks to merchants in exchange for merchandise. The bank subsequently dishonored the checks for insufficient funds. The court emphasized the fact that the bank was not defrauded when Mr. Orr wrote the bad checks because the bank did not suffer a loss, but that the losers were the payees. Additionally, the prosecution failed to show that Mr. Orr opened the bank account under a false name with the intent to defraud the bank.

However, courts have construed the rule in Orr narrowly. Orr establishes only that a “routine bad check” case is not within the scope of § 1344 when the defendant passes a check to a merchant from an account where the defendant is an authorized signatory and the bank dishonors the check for lack of sufficient funds. Orr has been distinguished in cases where the defendant artificially inflated his account balance through check kiting, and where the defendant negotiated stolen checks to merchants in exchange for merchandise. In U.S. v. Brandon, the defendant, Ms. Brandon, stole checks from legitimate account holders and negotiated the checks with forged endorsements. The court found that, in this instance, the bank was exposed to a risk of loss, which was sufficient to meet the elements of bank fraud.
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Today the Maryland Court of Appeals issued an opinion on the proper use of voire dire in Maryland criminal trials.

Facts: Charles & Drake were tried together on charges stemming from the death of Bryant Jones. Both were convicted of second degree murder. Prior to the trial, the State submitted 3 voir dire questions concerning “CSI type” scientific evidence. Over defense counsel’s objection, the trial judge asked a single question which he drafted stating that he assumed the jurors watched TV such as CSI and Law and Order and that those shows relied on scientific evidence to convict- therefore, if “you are currently of the opinion or belief that you cannot convict a defendant without scientific evidence, please rise.” The Court of Special Appeals ruled that the question was appropriate. The Court of Appeals reversed.

Ruling: The Court noted that the language of the voir dire question suggested that the jury’s only option was to convict, regardless of the evidence presented. This suggestive question poisoned the jury thereby depriving the defendant of the right to a fair trial.

Maryland Criminal Attorney reviews Miranda decision by Supreme Court. In its recent decision in Berghuis v. Thompkins the Supreme Court, in what some view as a paradoxical ruling, ruled that a defendant must affirmatively invoke his right to remain silent or his right to an attorney after being advised of his Miranda Rights. In other words, the Court ruled that a defendant must speak in order to invoke his right not to speak.

In this case, Thomkins was arrested for murder. He was taken into custody and read the Miranda Rights that are familiar to most all of us who have ever seen an episode of Law and Order. After being advised of his right to remain silent, Thomkins did just that; he remained silent throughout almost 3 hours of questioning by the detective. The detective finally broke Thomkins’ silence by asking him if he prayed to God to which he replied that he did. The Detective then asked him if he prayed to God for forgiveness for shooting the victim in this case and Thompkins answered in the affirmative.
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https://www.silvermanthompson.com/lawyer-attorney-1300820.htmlhttps://www.silvermanthompson.com/lawyer-attorney-1300820.htmlAs A Maryland Criminal Attorney I am often retained after a defendant has gone to court and received what they perceive to be an unjust result. Some of these clients were represented by other attorneys when the bad result was obtained and some were foolish enough to have attempted to represent themselves in criminal court which is always a bad idea. In criminal court, the State is represented by a trained prosecutor who has spent years studying and practicing the law and is intimately familiar with the Maryland Rules as wells as the Criminal Procedure Article. Why someone would go to court facing the possibility of large fines, probation or even the loss of one’s freedom without retaining an attorney who is as at least as knowledgable and experienced as the State’s Attorney, is incomprehensible to me. Yet, I see it almost every day, usually with very bad results for the defendant. I represented a defendant today who had recently made this mistake and as a result spent 10 days in jail in a case that never would have resulted in jail time had she been represented by an Aggressive Maryland Criminal Attorney. Here are the facts:

My client is a 19 year old young women with no prior record. She was the driver in a car when the police stopped her looking for her boyfriend for whom they had an arrest warrant. The police claimed that they saw a small amount of cocaine in plain view upon approaching the vehicle and based on that, searched the rest of the car. The police recovered 12 Oxycontin pills from my client’s purse. They placed her under arrest and charged her with possession of a controlled dangerous substance. A few months later she appeared in the District Court without an attorney. She requested a postponement which was denied. (Note: many clients express to me their belief that a person is always granted a postponement on their first trial date. While I believe that the law does require the court to grant a postponement on the first trial date in most circumstances, some judges view it differently and routinely deny these requests.) My client had no choice but to represent herself at trial. She was found guilty and sentenced to 6 months in jail – FOR HER FIRST OFFENSE!
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As a Maryland DUI/DWI Attorney I am often retained for representation by offenders who have been charged and or convicted repeatedly in the past. An offender with a prior history of multiple DUI/DWI convictions presents an entirely different problem than that which faces the average first or even second offender. As I have discussed repeatedly here in this blog, even first and second offenses present the potential for incarceration these days, but if the case handled correctly this result can usually be avoided.

Offenders with two or more prior convictions, however, face almost certain incarceration if convicted in any jurisdiction in the state. As any experienced Maryland DUI/DWI lawyer will tell you, Harford County is among the strictest (if not the strictest) jurisdictions in Maryland for these types of cases which makes the risk even greater than if the offender were charged elsewhere.
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As a Baltimore Maryland Criminal Attorney, I receive inquiries on a daily basis by people who want to have their criminal records expunged. Unfortunately, most of the people who contact me for this purpose are dissapointed to hear that they cannot have their records expunged. The rules in Maryland are relatively straightforward although they have been modified slightly a few times in recent years.

The first thing that everyone who is considering expungement needs to understand is that if the case at issue resulted in a criminal conviction, whether it be for a misdemeanor or a felony, that conviction is permanent and cannot be expunged from that person’s record without a pardon from the Governor. As I said, many people are extremely surprised and dissapointed to hear that they do not qualify for expungement even in cases in which the conviction was for a misdemeanor and occurred 15 or 20 years in the past, but that in fact, is the law in Maryland.
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As a Former Maryland DUI/DWI Prosecutor, I represent people charged with DUI/DWI at their bail review hearings on a regular basis. Many people don’t realize that at a bail review hearing the judge can raise the bail, not just lower it. This is why it is so important for a person who is charged with DUI/DWI to immediately contact an aggressive and experienced DUI/DWI Attorney.
Case in point: I was hired by a man who was charged in Baltimore City with his first DUI/DWI offense. After being arrested and charged he was taken to the Court Commissioner for his initial appearance. In spite of the fact that this arrest constituted his first DUI/DWI offense and that he had strong ties to the community, to include having a family, a steady job and owning his home, the Court Commissioner set his bail at a very high $27,000. The client rightly believed that this was an abnormally high bail and decided not to post the bail and instead to attend his bail review hearing the next day. The client chose not to consult an attorney at this point believing that the worst thing that could possibly happen at the bail review would be that the judge would refuse to reduce the bail, and that in all likelihood would substantially reduce it if not release him on his personal recognizance. Under most circumstances the client would have been correct; in this situation his decision turned out to be a very costly mistake that could have been avoided had he or one of his family members contacted an attorney immediately upon being arrested.
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