A recent victory by Raleigh white collar criminal defense lawyer Elliot Abrams in an asset forfeiture case was the subject of a front page article in NC Lawyers Weekly last month.
As Elliot Abrams and his co-counsel Samuel Hartzell told Lawyers Weekly, “Th[e] ruling will protect innocent people and businesses and is a strong step toward restoring the balance of power between
the government and the accused.”
The decision was issued by the entire Fourth Circuit sitting en banc. (Full text of opinion). It overruled decades’ old precedent that allowed the government to seize assets from individuals even though the government acknowledged that those assets were not earned illegally.
Cheshire Parker Raleigh Family Law Attorneys named 2017 Top 100 North Carolina Super Lawyers and Rising Star
Family Law Attorneys John Parker and Kimberly Bryan were also named 2017 Top 100 North Carolina Super Lawyers.
CPSB is pleased to announce that Family Law Attorney Amy Britt has been named 2017 North Carolina Rising Star, six years in a row.
Congratulations to this years recipients!
Election season has just ended, so investigations into campaign donations are likely to begin. Politically-active people and companies should be aware that these investigations often result in serious federal criminal charges.
Elections laws are complex, and even perfectly legal conduct can carry the appearance of corruption, particularly when people with business interests donate money to politicians.
Therefore, if you are approached or contacted an investigator about your campaign donations, assume that you are suspected of a serious crime and contact an experienced election law & campaign finance criminal defense lawyer immediately. Making an unrepresented statement could ruin your future and your livelihood.
At Cheshire Parker, we have decades of experience representing individuals under investigation for suspected political crimes. If you have questions or concerns about your donations or other election-related activity, contact us today.
You know it from television, if nothing else: As a criminal suspect, you have the right to remain silent. Whether or not you know it by name, you are probably also familiar with what is known as the Miranda warning, which is the statement police read to suspects in their custody along the lines of, “You have the right to remain silent. Anything you say can and will be used against you in a court of law . . . .”
But, do you know how these important Constitutional principles protect you? Do you know what it means if the police fail to read you the Miranda warning? Understanding your rights and hiring a criminal defense lawyer who knows how to use them to protect you could mean the difference between walking free and facing a guilty verdict at trial.
The Protection Against Self-Incrimination
The right to remain silent in criminal cases comes from the Fifth Amendment to the U.S. Constitution. The Fifth Amendment protects all citizens against self-incrimination, and as a criminal suspect, the government cannot compel you to make statements that implicate your involvement in a crime.
In order to make sure criminal suspects understand this right, in a 1966 case known as Miranda v. Arizona, the U.S. Supreme Court held that prosecutors and law enforcement officers must employ safeguards “effective to secure the privilege against self-incrimination.” More specifically, the Supreme Court instructed the police to warn suspects of both (i) their right to remain silent, and (ii) their right to have an attorney present during interrogations. This is where we got the “Miranda warning” that we have today.
Understanding When Your Rights Apply
Importantly, while the Fifth Amendment’s protections apply at all times, the police are only required to read the Miranda warning to suspects who are in custody. If you are not in custody, the police do not have to read you your rights, but you also do not have to say anything that could be used against you regardless of where you are. As a result, if you have been pulled over, if you are facing a search warrant, or if the police simply stop you to ask some questions, you can (and often should) stay silent in order to protect yourself.
What if the police interrogate you without giving you the Miranda warning? If the police interrogate you in custody without reading your rights, then any self-incriminating statements you make may be inadmissible in court. Any evidence the government obtains acting on your statements could be inadmissible as well.
However, if you are not read your rights and you volunteer information while in custody—as opposed to in response to interrogation—your voluntary statements are likely admissible against you.
These are important protections and understanding when they apply, when they do not apply, and how to enforce them will be critical to asserting the strongest possible defense.
The safest bet when the police are asking you questions, regardless of where you are, is to politely decline to answer questions and demand an opportunity to call a criminal defense lawyer.
Learn More about Your Rights – Contact Cheshire Parker Schneider & Bryan, PLLC, a Raleigh Criminal Defense Law Firm
The defense attorneys at the law firm of Cheshire Parker Schneider & Bryan, PLLC provide experienced representation for criminal suspects in the Raleigh, NC area. If you have been arrested or are under investigation for any state or federal crime, we invite you to contact us immediately to discuss your case.
Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
Congratulations Joe and Brad! If you need representation, contact one of our award-winning Raleigh criminal defense lawyers today.
We are honored that Raleigh Family Law Attorneys John Parker, and Kimberly Bryan, have again been named Super Lawyers by Superlawyers.com. We are proud that Kimberly Bryan has been named to the North Carolina Top 50 Women Super Lawyers two years in a row. In addition, Raleigh Family Law Attorney Amy Britt was named 2016 North Carolina Rising Star.
Super Lawyers explains the selection process as follows:
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who attain a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Rising Stars explains the selection process as follows:
The selection process for the Rising Stars list is the same as the Super Lawyers selection process, with one exception: to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less.
Congratulations to this years recipients. For more information regarding North Carolina’s laws and requirements, contact one of the Raleigh Family Law Attorneys at Cheshire Parker Schneider & Bryan for a consultation today.
As a follow up to this post, the Supreme Court has granted review of the question of the scope of the term “official act” in federal bribery law. This is an important question for white collar defense lawyers, particularly those who deal with allegations of public corruption. This case and the Fourth Circuit’s ruling upholding it seriously blurred the line between typical political activity and illegal federal bribery, and reversing the conviction would go a long way toward giving fair notice to public officials regarding what conduct they can engage in without fear of a federal bribery or honest services wire fraud conviction.
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.