In 2014, a federal jury convicted the former mayor of New Orleans (2002-2010) of twenty federal white-collar felonies including bribery, honest service wire fraud, conspiracy to commit money laundering, and filing false tax returns. (Here’s the opinion). The mayor appealed his conviction for honest service wire fraud as well as the judge’s imposition of a money judgment for forfeiture.
The appeal of the honest service wire fraud conviction was a long shot. He argued that the judge misstated the law when it instructed the jury that it could convict the mayor of honest service wire fraud for accepting a post-mayoralty employment contract in exchange for performing official act of supporting a city contract for the future employer even if the jury found that the mayor would have supported the contract even if he was not promised employment later. The mayor argued that he could only be convicted of honest service wire fraud if the government proved that he was influenced in his official action by the promise of future employment. But bribery is complete as soon as a person accepts a payment knowing that it is being given by the payor with the intent that the payment influence an official act–the act need never be completed. Therefore, the Fifth Circuit rejected this argument.
The asset forfeiture portion of the appeal is more interesting. The mayor argued that the judge erred by issuing a money judgment for forfeiture, instead of tying the forfeiture to certain assets that were obtained illegally.
The asset forfeiture laws operate through tainted property analysis. A piece of property obtained through an illegal transaction is tainted property and is subject to forfeiture. Any property later acquired with tainted property is also tainted and is similarly subject to forfeiture. Moreover, if the government proves that the defendant placed certain property beyond the reach of the government, the government may be able to take other “substitute property” in criminal asset forfeiture proceedings. However, each of these asset forfeiture analyses–directly tainted property, indirectly tainted property, and substitute asset theory–rely on some tracing of the illegally obtained property. On the other hand, the government has begun arguing that all it must do is prove the amount of money or property that the defendant received illegally and ask for a “money judgment for forfeiture” in that amount. Nothing in the asset forfeiture statutes authorizes this procedure. But, unfortunately, courts have routinely accepted it.
The Fifth Circuit relied on prior cases to uphold the money judgment for forfeiture in this case. However, it left the door open for later defendants to make the argument that money judgments for forfeiture are only appropriate where the government can prove that the property it seeks to forfeit is substitute property under 21 U.S.C. 853(p). The circuits disagree on this point, and it is an issue that should be taken to the Supreme Court for resolution.
This case shows how complicated and confusing asset forfeiture law is, and illustrates why people facing public corruption and other economic or white-collar offenses must hire an experience asset forfeiture defense lawyer when facing investigation or criminal prosecution. Our Raleigh asset forfeiture lawyers have developed substantial experience in this area of the law. If you are facing prosecution, contact us today.
We are proud to announce that Business North Carolina‘s 2016 Legal Elite has named four of Cheshire Parker’s Raleigh criminal defense lawyers as Legal Elite in the field of criminal law.
Elliot Abrams, Bradley Bannon, and Collin Cook have been named as current Legal Elite in the criminal law field. Joe Cheshire has been named in the Legal Elite Hall of Fame, which means that he previously received the most votes in the criminal law Legal Elite balloting and is no longer eligible for the annual list.
Business North Carolina explains the meaning of the rankings as follows:
Making the Legal Elite means a lawyer has been recognized by his or her peers as one of the state’s top practitioners. Even more elite are those who receive the most votes in each category. Since 2004, they have been elevated into the Hall of Fame and are no longer eligible for the annual list. There is no Hall of Fame for Young Guns winners, but they can only be elected in another category. Unless otherwise requested, Hall of Fame members are listed by their firm at the time of their selection.
Business North Carolina explains its methodology:
Since 2002, Business North Carolina magazine has honored Tar Heel lawyers by publishing Business North Carolina’s Legal Elite, a listing of the state’s top lawyers in business-related categories. Winners are chosen not by BNC editors but by the state’s lawyers. Business North Carolina’s Legal Elite has become the model for other awards and lists, but it remains unique as the only award that gives every active lawyer in the state the opportunity to participate. Business North Carolina’s Legal Elite includes the top lawyers chosen using this statewide ballot.
Each year, BNC sends ballot notices to every member of the N.C. State Bar living in North Carolina — asking each a simple question: Of the Tar Heel lawyers whose work you have observed firsthand, whom would you rate among the current best in these categories? Voters are not allowed to vote for themselves. They may select members of their firms only if they pick out-of-firm lawyers in the same categories, with the latter votes weighted more heavily. The top vote-getter in each category becomes a member of Business North Carolina’s Legal Elite Hall of Fame and is ineligible to win again.
Congratulations to this years winners! If you need representation, contact one of our award-winning Raleigh criminal defense lawyers today.
Virginia Governor Bob McDonnell was convicted last year of honest services wire fraud, a vague law that the Supreme Court saved from constitutional challenge by redefining it to outlaw bribery and kickbacks by public officials. Unlike the standard anti-political bribery statute, 18 USC 201, honest services wire fraud covers misconduct by state officials. (There was already a federal law that typically applied to state officials, 18 USC 666–but no matter, the Supreme Court did what it did.)
So Bob McDonnell was charged with the honest devices wire fraud, which required the government to prove that he corruptly accepted personal payments in exchange for his performance of an “official act.”
At trial, the government argued that the following acts were “official acts”:
- Asking an aide a question about research pertaining to a businessman’s company.
- Attending two receptions the businessman attended.
- Arranging a meeting with his staff and the businessman and suggesting another meeting to an aide.
The government argued that these acts were official acts because the governor’s ultimate aim was to obtain state government funding for the businessman’s business.
It bears mentioning that the businessman provided numerous things of value to the governor and his wife. But that alone is far from federal bribery. In fact, in Virginia, there is no prohibition on giving gifts to government officials.
So the issue is not whether the conduct is morally correct, but rather whether Mr. McDonnell could have reasonably foreseen that the acts listed above–setting up meetings an so forth–constitute “official acts” under federal bribery law.
A foundational principle of our democracy is that a person cannot go to prison for conduct if they could not have reasonably foreseen that the behavior was criminal. This fair warning requirement of due process is violated most often in public prosecutions, where prosecutors know that the public will find the political sausage-making distasteful. It is for this reason that Justice Scalia warned that honest services wire fraud statute “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.’s who engage in any manner of unappealing or ethically questionable conduct.”
Because Virginia law does not prohibit the payments in question, and because a reasonable person would not have fair warning that that above acts are official acts–like decisions to award a contract to a certain firm or to veto a law–31 current governors; 60 former state attorneys general; 13 former federal officials, including two former U.S. attorneys general and former legal counsels to every president starting with Ronald Reagan; and three law professors from Harvard University and the University of Virginia all have urged the Supreme Court to overturn McDonnell’s conviction.
We agree. The Supreme Court is poised to consider tomorrow whether to take up the case. We will continue to follow this important case in the area of political corruption law.
The Raleigh criminal defense firm of CHESHIRE PARKER SCHNEIDER & BRYAN handles all types of public corruption cases, including bribery and honest services wire fraud charges. If you are facing prosecution, contact one of our Raleigh criminal defense lawyers today.
In April 2015, the president created new rules allowing the federal government to freeze the assets of those suspected to be involved in high-level computer hacking. (Executive Order; RT.Com article).
On December 31, 2015, the Treasury Department published abbreviated rules for imposing these sanctions, indicating that a comprehensive set of rules will be published at a later date. (Federal Register).
The new regulations not only govern the blocking of transfers of funds by those suspected of computer hacking, but they also govern how those suspects can pay their lawyers. (Federal Register at § 578.506, 507). And lawyers who accept payment to represent suspects whose funds have been blocked must provide an annual report to the Department of the Treasury outlining “The individual or entity from whom the funds originated and the amount of funds received; and . . . (A) The names of any individuals or entities providing related services to the U.S. person receiving payment in connection with authorized legal services, such as private investigators or expert witnesses; (B) A general description of the services provided; and (C) The amount of funds paid in connection with such services.” (§ 578.507(b)).
The executive order and these rules indicate the increasingly drastic measures the federal government is taking to prevent computer hacking, cyberattacks, theft of trade secrets, and other computer crimes.
Asset seizures are allowed under the executive order whenever a person is suspected of any direct or indirect involvement in, responsibility for, or complicity in a cyberattack originating from outside the United States that has a significant impact on computer systems within the United States or involves the theft of trade secrets.
Although the executive order purports to limit the application of these rules to computer hacking that is “reasonably likely to result in, or have materially contributed to, a significant threat to the national security, foreign policy, or economic health or financial stability of the United States,” this language is vague enough to apply to virtually anyone suspected of any involvement in computer hacking that is believed to have an international component.
With this increased federal government focus on computer hacking and theft of trade secrets, it is important to contact a Raleigh white-collar defense lawyer immediately if you believe you are being investigated.
In the wake of strong criticism of the federal civil asset forfeiture program, the United States Department of Justice has announced that it has ended its so-called “Equitable Sharing” program that allows local police to seize property from people and businesses using the permissive federal asset forfeiture procedures. (WaPo).
This program led to widespread abuses of the already questionable area of civil asset forfeiture because it created a monetary incentive for police to seize property. It’s widespread use resulted in charges that law enforcement agencies were “policing for profit”–targeting people and companies in order to boost their departments’ budgets, rather than focusing primarily on protecting the public from crime. The fact that the Feds took more from people in 2014 than burglars did (CheshireParker) suggests that these incentives have significantly altered law enforcement priorities at the federal level. And it is reasonable to expect that the same has happened at local police departments under the Equitable Sharing program.
USDOJ has indicated that the shutdown of the program is only temporary. So it remains to be seen what long term impact the move will have. Hopefully, it will curb the abuses of asset forfeiture programs–although it may spur a call by local police to expand state civil forfeiture laws.
If the government has seized property from you or your business, contact one of our experienced Raleigh asset forfeiture lawyers today.
In 2014, the federal government took more property from American citizens through asset forfeiture than burglars did. According to the Washington Post (link), the federal government deposited more than $5 billion into their asset forfeiture funds, whereas burglary losses were only $3.5 billion.
The following is a Washington Post graph showing the tremendous growth of seizures through asset forfeiture over the last 10 years–from less than $1 billion seized in 2004, up to over $5 billion last year.
This tremendous growth in a particular area of criminal law is somewhat rare. And because asset forfeiture was largely an afterthought in criminal defense cases, few criminal defense lawyers have developed extensive experience handling these complex cases.
If your property has been seized by the government, or if you have received a notice of forfeiture, contact one of our experienced Raleigh asset forfeiture lawyers today.
The United States Supreme Court legalized same sex marriage in a landmark decision, and since then, many states have made changes to their existing marriage laws to accommodate this decision. With the legalization of marriage comes the legalization of same sex divorce, which has created challenges for lawmakers and attorneys nationwide as they determine how to best handle the split of a same sex couple.
North Carolina Criteria
In North Carolina, all divorcing couples are subject to the same laws. At least one person must have lived in North Carolina for at least six months, regardless of where the marriage license was issued. Each couple must go through one year of separation before they can file a petition for divorce, and at the time of separation, at least one person must have intended to make a permanent break in the marriage. However, you may resolve all other issues arising out of your marriage prior to your divorce.
It’s often difficult to determine who is the supporting spouse in today’s society, particularly where both partners hold jobs and contribute to the financial wellbeing of their household. If you are considered the supporting spouse, you may be required to pay alimony, so long as your ex-spouse is considered to be dependent and so long as there is the ability to pay alimony.
It is possible to resolve your separation without an alimony obligation if both parties agree in a Consent Order or a Separation Agreement. Additionally, some couples may have stipulations written into their prenuptial agreements that excuse each spouse from financial obligations to the other in case of a divorce.
Division of Property
In North Carolina, the marital dissolution laws allow the court to divide any property belonging to a divorcing couple if the couple cannot reach an agreement on their own. Although many people believe that a division of marital assets and debts is performed as an equal split between two spouses, this is not always the case, but it is the starting presumption.
Also, some property may have been inherited or given to only one spouse by a third party or some property may have mixed characteristics, as can often be the case with retirement accounts if they have been contributed to before and/or after the marriage. Debt may not be marital if it was not incurred for a marital purpose. Additionally, it may not be feasible, for economic reasons, legal reasons or business reasons, to divide certain items of property, such as a family business. In those cases, it may be more proper to offset the value of the business with other assets.
How is Custody Decided?
There is no presumption in North Carolina as to who shall be the primary custodian of a child. Instead, North Carolina uses a best interest determination between two legal parents. As a same –sex couple the landscape is still a bit complicated. If both of your names are on the child’s birth certificate, the same legal standard will apply in your custodial determination.
If the child is biologically your partner’s child, you will need to consider a step-parent adoption to be on the same legal footing as the biological parent. If you do not have your name on the birth certificate, there are precedent cases in North Carolina that may apply to your facts and allow you to seek custody/visitation based on the best interest of the child. This area of law can be very complicated, so please seek legal counsel prior to separating.
Call An Attorney
If you are considering divorcing your spouse, you need the help of a divorce attorney. At Cheshire, Parker, Schneider, and Bryan, our Raleigh divorce lawyers represent divorcing same-sex couples in North Carolina.
In light of an Ohio grand jury’s recent decision not to indict the police officer who shot and killed 12-year-old Tamir Rice in Cleveland, it’s worth revisiting a Letter to the Editor of the News & Observer from CPSB criminal defense attorney Bradley Bannon following the decision of a Missouri grand jury not to indict the police officer who shot and killed 18-year-old Michael Brown in Ferguson. While reasonable people can disagree about whether evidence supports probable cause for a criminal charge, it is beyond debate that prosecutors control the grand jury. As Brad wrote in the News & Observer in November 2014:
It is disingenuous for anyone familiar with modern American criminal procedure to maintain that the grand jury is, as intended, an independent check on government power. Quite the opposite, it’s an extension of that power.
This is no fault or criticism of the grand jurors themselves, who deserve respect for their sacrifice and service. But they can work with only what they’re given. And that is unilaterally controlled by prosecutors. In secret.
At least in federal court, there’s a transcript of that reality. In states like ours, there’s no record at all. Indeed, in some counties, where dozens of cases can be heard and indictments (drafted by prosecutors) signed by the grand jury in a mere couple of hours, who could type that fast?
So when a grand jury action is cited as if it’s entirely independent of the prosecution, we owe it to ourselves as a society to recognize that just isn’t true. The prosecutor controls the process, and it’s axiomatic that the person who controls the process often controls the outcome.
Domestic violence is much more than physical violence. Domestic violence is riddled with stereotypes.
When we think about domestic violence, we often focus on the violence which may consist of a husband lashing out at his wife, a girlfriend throwing a blender at her boyfriend, one spouse hitting the other with a baseball bat and other types of physical violence. These examples are more in line with stereotypical abusers.
Domestic violence is also sexual coercion; financial control; verbal abuse; isolation from friends, family, and co-workers; denigration; humiliation; controlling decisions; stifling independence; monitoring whereabouts and more. These are actions that are all about power and control.
Many Perpetrators of Domestic Violence Never Use Physical Violence
A string of controlling and domineering actions depletes a partner’s ability to develop individually; to improve education, financial independence, professional advancement or have much of a friend or support network. The abuser twists the partner’s mind, plays games and is confusing. The abuser breaks promises, switches tactics, makes excuses and blames the partner. One by one, a partner’s options for personal growth and independence are taken away or minimized – never once by using physical force.
There is public outrage about physical violence. Non-physical power and over-controlling abuse are invisible. There is less public understanding about non-physical domestic violence. This lack of understanding means the victim cannot define what is happening.
People who experience a systematic pattern of psychological abuse and control suffer from psychological wounds that can be longer-lasting than the wounds from physical violence. Commonly, where the dynamic of the relationship is about power and control without violence, there is no honeymoon period of remorse and renewed promises. Instead, there is a consistent effort at total domination.
Domestic Violence Protective Orders
North Carolina law defines civil domestic violence as any instance where a person with whom you have had a personal relationship takes any of the below actions against you or a minor child:
- Causes or attempts to cause bodily injury, or
- Places you or your family members in fear of imminent serious bodily harm, or
- Continues to harass you to the point of substantial emotional distress, or
- Commits rape or sexual offenses.
A victim may obtain a Domestic Violence Protective Order against a partner who commits any act of domestic violence – physical or non-physical. A Domestic Violence Protective Order is a CIVIL remedy, although there may be related criminal penalties that go hand-in-hand with domestic violence.
“Harassment” for the purpose of obtaining a Protective Order, means: “knowing conduct, including written or printed communication or transmission, telephone, cellular, or other wireless telephonic communication, facsimile transmission, pager messages or transmissions, answering machine or voice mail messages or transmissions, and electronic mail messages or other computerized or electronic transmissions directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose such that a reasonable person in the victim’s circumstances would feel harassed; and that the victim suffer significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.”
In our age of electronics and technology, a perpetrator can commit acts of domestic violation by cyber harassment. A partner can be monitored electronically; harassed online through social media or via email or other means. North Carolina has additional remedies on the criminal law side for cyberstalking and revenge porn.
Protecting Against All Violence
Acts of non-physical abuse are just as dangerous and damaging as physical violence — sometimes even more so. Victims may feel like they have no options if they’re suffering from non-physical domestic violence, but they need protection all the same.
For more information on stalking, cyberstalking and family law, contact the Raleigh domestic violence attorneys at Cheshire, Parker, Schneider, and Bryan today. We represent anyone who has been a victim of domestic violence (physical and otherwise) and needs help getting justice. Call us today for a consultation on your case.
You may remember Silk Road, the “deep web” black market website where customers could purchase everything from drugs and guns to the services of hit men. Its founder, known as “Dread Pirate Roberts,” was a 29-year-old from Texas with an undergraduate degree in physics, who went to a prestigious graduate program in materials science at Penn State. (WaPo). He was ultimately convicted at a trial and sentenced to life in prison.
However, this conviction may be in question with the recent disclosure (known to the government at the time of the trial) that the lead DEA and Secret Service agents involved in the investigation extorted and stole hundreds of thousands of dollars worth of Bitcoins, and were also attempting to obtain employment from potential suspects and witnesses, all throughout the course of the investigation. (Forbes).
The federal criminal complaint by the Public Integrity Section of the Department of Justice alleges that these lead agents “abused their positions as federal agents and engaged in a scheme to defraud a variety of third-parties, the public, and the government, all for their own financial enrichment.” (Federal Criminal Complaint).
Specifically, as Forbes describes it:
The criminal complaint against former DEA agent Carl Mark Force IV and former Secret Service agent Shaun Bridges alleges money laundering, wire fraud, theft of government property, and more. But more shockingly, it tells the story of a sprawling case tainted by an unbelievable web of corruption. A state’s witness took the fall for an agent’s theft, thus becoming the target for a murder-for-hire—a murder that was then faked by the same agent. The Silk Road case was compromised again and again as Force and Bridges allegedly took every opportunity to embezzle and steal money. With so much bitcoin on their hands, the two had to coax various bitcoin and payments companies to help convert their ill-gotten gains to dollars. When companies resisted, investigations were launched, subpoenas were issued, and civil forfeitures were sought in retaliation.
This government retaliation targeted Venmo, among other companies, one of which received a note from Force after having their funds seized stating, “told you [you] should have partnered with me!”
Lawyers for Silk Road’s founder unsuccessfully moved for a new trial, arguing that much of the information alleged in the criminal complaint was exculpatory yet not disclosed to them sufficiently in advance of trial. His case in now on appeal. A website http://freeross.org/ has been set up to aid in his defense.
The information alleged in the criminal complaint against the former DEA and Secret Service agents, if true, shows the immense power federal law enforcement officers have and illustrates why, as Raleigh federal criminal defense attorneys, we dig deep to uncover any government misconduct that may have occurred in a federal criminal investigation. If you believe you have been wronged by government misconduct, call one of our Raleigh federal criminal defense attorneys at (919) 833-3114 to schedule an appointment.