Idaho Criminal Defense Blog : Boise Idaho Criminal Lawyer & Attorney : Chuck Peterson Law Firm : Civil Rights, Trial, Felonies, Assaut, DUI : Boise, Idaho Falls, Pocatello, Idaho

I love to check out the "Case o the Week" over at the 9th Circuit Blog to see just what little gem of a case makes the grade - and this week the Court did not let me down. At issue - what does possession mean? In United States v. Nevils, __ F.3d __, 2008 WL 4937030 (9th Cir. Nov. 20, 2008), the Court of Appeals had to decide whether the Appellant's conviction for possession of a gun would stand in the face of his claim that he had not knowingly possessed the firearms. Sounds like the usual stuff - cops chase some other guy into an apartment complex in a high crime area. They see Nevils through an open door, sleeping on a couch. Leaning against his leg - a gun. In his lap - another gun. Also present and unaccounted for - baggies of dope and ecstasy. Only weeks before Nevils had unfortunately been arrested for a parole violation, associating with known gang members. Hey, these things happen! Once Mr. Nevils awoke (surrounded by the cops), he protested his innocence: “I don’t believe this sh.. Those m....rf....rs left me sleeping and didn’t wake me.” At his trial, Nevils produced evidence (including a witness other than himself) that he had gone to a party, got so drunk he passed out, and his "friends" had taken him home and left him on a couch to sleep it off.  The witness testified that the drugs and guns were NOT there when they left Nevils, passed out in the apartment. Implication? The SODI defense (Some Other Dude Did It) - which the jury rejected in favor of a finding of guilt. Not so fast Tonto - that possession of the gun has to be knowing and voluntary. This is no big surprise really, but put this case in context. A trial judge gets reversed for not granting that Rule 29 motion. (For a description of one of my cases last summer in which a judge GRANTED a Rule 29 motion for judgment of acquittal go here).  The decision puts it this way:

“On this record, we hold that the Government failed to produce evidence that would have allowed a rational jury to infer knowing possession beyond a reasonable doubt. It may be natural to assume that somebody must have possessed the weapons because they were there, but the Government did not offer sufficient evidence to prove that the ‘somebody’ was Nevils.”

Think about this decision in the context of other cases charging possession - like possession of drugs, or stolen property.  The case reminds us that innocent possession is not enough, the proof that is required for conviction goes beyond allowing for the probability that you knew, there must be proof that you knew what you possessed. As our friends at the 9th Circuit Blog remind us:

The case is a must-read for “knowing” possession drug and gun cases. The decision rejects “mere presence” and Nevils’ “general character and history as a gang member” as sufficient evidence for the “knowing” mental state (despite the fact the gun was in his lap!)

So go check it out here! Read it and weep prosecutors - we shall not go quietly into that dark night.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It's that time again - when lawyers have to renew their yellow pages advertising. I have joined with my pals over at Gerry Spence's law firm, the Spence Law Firm to change the focus of our advertisement. For years we have advertised our work in Idaho and Wyoming on catastrophic accident and wrongful death cases. If you are cruising down the highway and get into a collision with an eighteen wheeler, you will almost certainly lose. It's that physics thing - weight and speed combine to create a monster of a force that may cut your car in half and seriously injure you and your passengers - if you have any luck at all. I am lucky indeed to combine with the great lawyers there on trucking and other accident or wrongful death cases.  So here is the new ad - before it appears in the yellow pages. Hopefully it conveys the message that we all need to slow down, avoid accidents and their tragic consequences.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 In an article today in the Idaho Statesman, a federal agency the investigates transportation accidents says Idaho could do better fighting drunk drivers if it would adopt its eleven (11) "best practices."  The bottom line - the law and its enforcement would get tougher making the crime even more - well - criminal. DUI laws in Idaho are tough, and prosecutors have the upper hand in plea negotiations, evidence that is permitted to be offered at trial and available expert witnesses. As I have written here before, you are at a huge disadvantage if charged because the deck is already stacked against you!  Idaho already uses many of the "best practices" it says make for tougher enforcement. Could Idaho get tougher? Sure. If the state wanted to make it illegal to ever drink and drive it likely could pass a law to ban any level of alcohol in the blood of drivers. So what do you do as a driver - simple - DON'T DRINK AND DRIVE. What if you are charged with DUI? Isn't everyone charged guilty? Of course not! Regardless of their zeal to get every drunk driver off the road, not everyone arrested is over the limit (.08). The field sobriety tests relied on by the police are NOT necessarily evidence that you are over the limit. The Breathalizer 5000 is not fool proof either - it does not measure breath alcohol at all. It measures the passage of light through a sample of breath that may contain alcohol and then converts the data (speed) into a breath alcohol level. Bottom line - Idaho may get even tougher on persons charged with driving under the influence of alcohol or drugs, making it more difficult for the innocent person to get his or her day in court. Just remember - you are presumed innocent unless and until there is proof beyond a reasonable doubt of your guilt. So don't go this one alone - find a good lawyer to help you through the process.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Tis the season for increased traffic patrols - and DUI arrests in Boise, Idaho.  The Statesman reports that between Friday night and Sunday afternoon forty-nine persons were arrested and charged with driving under the influence of alcohol or drugs. Suppose for a minute that you are one of those forty-nine. Any criminal charge is expensive and the outcome important enough to give serious consideration. Pick the wrong lawyer and you become a statistic. Miss an opportunity to defend yourself and you lose - your case and the money that such a conviction costs in fines, time lost to court hearings and jail, alcohol education classes, alcohol evaluation fees, drivers license reinstatement fees, court costs (those judges have got to be able to retire and you get to pay for this with your court cost check) and that lost job opportunity. Need a ride to work? Hire a cab or have a friend drive you, even if you are innocent.  That's right - innocent. The myth is that everybody charged with a crime (whether DUI or racketeering) is guilty, regardless of the presumption of innocence.  So as you think about who you will hire to keep you free - let me give you FIVE QUICK QUESTIONS TO ASK EVERY  LAWYER YOU THINK YOU MAY HIRE:

FIRST - how many years have you been in practice.  New lawyers know almost nothing about practicing law (sorry, but its true). If it was your MOM who was charged with a crime, would you want an inexperienced lawyer who just passed the bar to handle the case? No way!  There is no substitute for experience.

SECOND - how many criminal trials have you done and with what results?  Your case may not go to trial, but ask this question.  Has the lawyer WON a criminal trial this year?  Ever?  And by WON, I mean heard those two magic words: "NOT GUILTY!"  If the lawyer has not won a case this year - ask for an explanation. And ask the lawyer if HE OR SHE was the responsible or lead lawyer on the case.  Some lawyers have never been the lead counsel in a case and WON it on their own, they have only done so with someone else at the helm. You only want the lawyer who has actually stood up and argued the case as THE lawyer, not the second. If the lawyer you are talking to has never personally had an acquittal as the lead lawyer - MOVE ALONG TO THE NEXT LAWYER.

THIRD - who in your office will actually handle my case? Your freedom is too valuable to trust your case to some rookie associate who has not been there before. Can that young associate help and make your case more likely to be a winner? ABSOLUTELY! Young lawyers have brains and recent case information that will help to build a winning strategy, but that young, inexperienced lawyer needs time in court to become a winner. So if the lawyer you are hiring is not going to be personally responsible - MOVE ALONG!

FOURTH - how will you keep me informed about my case? You are buying advice and you are paying for someone to keep you informed about how the case is going and where it is going, so how will you get information? I have seen lawyers who were "not in" more than they were, at least when it came to talking to them. Get a lawyer who is going to take your calls and be around to talk when you need to talk. In our office we use Basecamp to keep our clients up to date - actually building a private website for the client where his or her case documents and calendar are always available. Just how will that lawyer get information to you?

FIFTH - how much will this really cost? Let me be honest here, a simple DUI case might cost you $1000 or $10,000 depending on how the case is handled. Will you be charged a "flat fee" covering all the work or will you pay by the hour? There are options that you should decide. Deciding how the case will be handled will also help you decide how much it will cost. Having money to defend a criminal case is like that "Rainy Day" fund the State has been building up, "just in case."  If you have been charged with a crime, follow this one rule above all others: HIRE THE BEST LAWYER YOU CAN AFFORD. Period. Your life and liberty depend on that decision.

Hope this helps - now get out there and find someone who can fight for you. Every criminal case is a war, every motion a battle.

• Email This
• Print
• Comments (1)
• Trackbacks (1)
• Share Link

If you think that white colar crime results in a slap on the wrist, consider the recent sentencing decision in a case of mortgage fraud, in Georgia.  The Georgia United States Attorney reports that last week Adriene Newby-Allen was sentenced to 135 months imprisonment and ordered to pay $5,278,703 in restitution. Newby-Allen pled guilty in July to charges arising from a multi-million dollar mortgage fraud scheme. She was alleged to have conducted a mortgage fraud scheme from which she and others fraudulently obtained millions from mortgage companies through inflated mortgage loans obtained by straw purchasers, including her husband and another co-defendant. Newby-Allen herself received approximately $1 million in loan proceeds. She allegedly inflated the sales price of real estate and caused the submission of false loan applications and other documents. At the closings on the properties, Newby-Allen and her co-conspirators caused lenders through false representations to disburse millions to a shell company she created.

The use of "straw purchasers" is neither new nor unique to Georgia. In Idaho we have seen similar allegations in real estate and mortgage fraud cases in federal and state court. I represented clients this past year in a case that alleges the defendants used "straw purchasers" to obtain favorable loans from a local bank, hoping to quickly flip the properties and then pay off the loans from the profits.  Trouble (in the form of civil lawsuits and criminal charges) usually follows such schemes.  The declining real estate market left the "straw purchasers" holding the debts, even though they never intended to own the properties.  My clients were not indicted but were actually victims of that scheme.

Consider the penalty imposed by the federal district judge in Georgia - time and money. Lots of time and lots of money, the latter of which the defendant likely does not have. The federal sentencing guidelines continue to guide the courts as they consider an appropriate sentence in any federal case.  The amount of the loss is one of the factors used by the guidelines in calculating an appropriate sentencing range.  What struck me about this case was the amount of time - 135 months. That is hardly a slap on the wrist. Eleven years sitting in a federal prison should give Adriene Newby-Allen ample opportunity to mull over the choices she made. Just so you know - she will likely serve ten years or more before any release - and that early out will only occur if Adriene Newby-Allen demonstrates good behavior. Look for similar fraud cases to come throughout the United States as the nation demands an accounting for white collar crime. 

It goes without saying that if you are contacted by authorities wanting to know about any role you may have had with respect to a mortgage loan or banking transaction - get a lawyer immediately. There is no substitue for good counsel in such circumstances.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 As reported here DBSI, a locally prominent real estate investment company is in serious financial trouble, having been named a defendant in civil lawsuits alleging fraud.  Investors yesterday were dealt the next card in this hand - the BK card.  DBSI has now filed for protection under the bankruptcy laws in hopes of keeping its fiscal head above water.  The Idaho Statesman reports today that the filing is in response to ten lawsuits filed by investors who have lost money.  Describing the company and its investment methods, the Statesman reported:

"Helped by the real estate boom, profits for DBSI and its investors grew effortlessly - and fast. The value of its assets grew from several million dollars in 2002 to $2.6 billion in 2008, said Paul Mangiantini, a Boise lawyer who represents investors.

But the mirage evaporated this year as the economy soured. This fall, the company began delaying payments to 12,000 investors around the globe, saying income from some rental properties is no longer enough to cover debt payments. It suspended all sales activity, closed sales offices around the country and laid off most of its staff."

Still, the final issue DBSI and its officers may have to face is the real possibility of criminal charges by either state or federal prosecutors.  The mechanism used by DBSI to provide investors with the profits they wanted and DBSI had apparently promised, sounds a lot like a "security."  If it sounds like a duck ... well you  get the point.  I said the last time that there are no guaranteed investments - and that is the case.  Ask the folks who trusted giants like AIG, Fannie Mae and Freddie Mac.  When good opportunities go bad and people lose money the tendency is to blame someone - and DBSI may find itself on the receiving end of that fickle finger.  When the checks were coming in, DBSI and its officers were financial wizards and their investors happily received their money.  But did DBSI engage in a "ponzi" scheme?  Was their investment method real or imagined?  Was it more or less than say - the Social Security "trust fund?" Only time will ultimately tell the story - but the battle lines are starting to be drawn, and the BK filing is just a defensive move.  In the Army we dug in for a fight. Looks like DBSI is doing the same.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

 Once in a while a lawyer blogger needs to talk about something besides lawyering - so I confess: I am a Mac, not a PC. Truth is I have always used Macs to make it easier to organize for trial. I think I am a better lawyer because I have an easier time with the technology. I am not alone - consider Ben Stevens' post in The Mac Lawyer - one of the most popular law blogs in the nation. Apparently our new President, his VP, the Russian Prez and Swedish Foreign Minister are all Macs. If you're a PC don't worry about it - it's the work, not the computer that makes you a great lawyer. Lots of America's top lawyers are PCs including some of my best friends, but the Mac just gives you a little different feel when it comes to representing your clients. If you're a client or a potential client - rest easy. Technology is a great thing and defense lawyers are generally years ahead of the prosecutors when it comes to technology.  

NOW the point to all of this - your case is your story, which is your case!  And the lawyer who can use the computer to help tell your story is the lawyer you want to fight for you.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

  An article in the Idaho Statesman describes a pending lawsuit against DBSI and its officers that alleges the real estate investment company illegally collected $500 million in profits.  According to the paper, the lawsuit alleges conduct that is frequently the subject of criminal charges.  The lawsuit says DBSI was involved in a "ponzi scheme" in which new investor dollars were used to pay "guaranteed interest payments" promised to earlier investors.  Did it happen? Time will tell I suppose, but this lawsuit reminds us that there are remedies out there for investors who may have been told one thing and now face another and there are dangers out there for employees and officers of investment companies. Persons in their shoes are frequently sued and sometimes made defendants in criminal cases.

Now I do not represent anyone in the DBSI lawsuit, nor do I know anything about it. Real estate investing is risky stuff, just ask anyone who ever tried to "flip" a house. There are other investment fraud cases pending in Boise in civil and criminal court cases.  I have been involved in these cases before (and currently) so I have seen how they progress.  Investors who believe they were promised a particular rate of return frequently find themselves on the losing end of that "promise" when the underlying investment goes south, or when there never was an underlying property.

Imagine Joe Investments promises you 15% return on your money and you invest $100,000 expecting the money is going to be pooled with other investor money to buy a commercial building. The commercial building was supposed to be rented out, but now it is empty.  When the first interest payment is due to you, Joe uses some other investor's money to pay your 15%.  Of course that may mean that Joe has used your $100,000 to pay the promised interest to some other investor. When you want your money back - it isn't there, and neither is the investment that it was supposed to be used for. In the classic "ponzi scheme" there never was any intent to use investor money to buy the underlying investment (sometimes real estate, sometimes something else). I have represented investors who lost money, and people who were part of the investment company that is alleged to have "stolen" the money. Sometimes there is a real explanation - like the investment lost all its value - so it is seldom clear from the outside.  A claim that a company has "engaged in securities fraud, banking fraud and tax fraud" is the worst kind of publicity its investors could get. Whether true or not, finding new investors will be almost impossible, increasing the risk of the investment promise.

Here's the other thing we need to remember - there is no "guaranteed investment."  Any investment carries risk, and risk makes "promised returns" nearly impossible to count on. So be careful out there as you invest. If you buy a "share" of a promise, make certain that the promise could be fulfilled. The federal government is not going to step in and bail out every investment gone bad.

Of course there is the "other shoe" waiting to drop in any securities, banking or tax fraud case. Many times the civil case sets the scene for another case, brought by your friends at the federal government.

If you even think that you could be a potential defendant in a criminal case, get a criminal lawyer now! I am representing a defendant in a crop insurance fraud case where the federal government simply sat back and let the civil lawyers do all the work to build its case. We have given them the transcripts from the depositions which include the other parties' answers under oath. This past week the other side flinched - demanding that the civil case THEY BROUGHT against my defendant be stayed because of a "pending criminal investigation." Yes indeed - there is a pending criminal case for those folks - but not my client. Do not go to a deposition in one of these cases (as a defendant or plaintiff) without your own criminal lawyer, and remember - your answers there may be scrutinized later by a prosecutor.  And yes, those answers WILL BE USED AGAINST you - maybe in a criminal case.

• Email This
• Print
• Comments (4)
• Trackbacks (1)
• Share Link