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

 Alan Ellis is well regarded as "THE" Federal Sentencing guru among those of us who spend time in federal court. An article he co-authored with John Steer and Mark Allenbaugh appears in the American Bar Association's Criminal Justice Magazine entitled At A Loss For Justice, Federal Sentencing For Economic Offenses.  A copy can be obtained from the author here.  If you are a lawyer who ventures into the guidelines arena with white collar clients, read the article.  If you are a person facing fraud charges, read the article!

Generally, our friends in the Ponzi and stock scheme business have brought a little heat to fraud offenses.  The government has modified the guidelines to "equalize" punishment for white collar and non-white collar theft and fraud offenses in light of Bernie Madoff and Bernie Ebbers and the like. The net effect is that white collar crimes are now likely to bring a bigger sentence than before.

In Idaho as in most other federal districts, fraud and other white collar crimes seem to net greater time in confinement than they did in the past. For that reason the preparation of these cases requires some serious consideration of how the "loss" will be calculated for the defendant, but more importantly, consideration of how best to achieve a more complete picture of the defendant so that the sentence achieves the § 3553(a) objectives. That means that we have to look beyond the numbers on the grid and place our client in the best light possible so that the amount of the fraud is less important in the complete picture.

Federal fraud cases are a challenge.  My best advice here is to hire the very best criminal defense attorney  you can afford, and always look for actual experience in this complex area of the law.

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Earlier today I was waiting for that jury to return.  

They're back...

John Tiemann had been through three weeks of trial on two felony charges of vehicular manslaughter.  The State said he was guilty of causing the deaths of Tom and Mary Woychick while driving while under the influence of drugs -  diphenhydramine (Benedryl) and phenytoin (Dilantin). Each of those charges carried 15 years in prison if he was convicted, or a possible 30 years. As an alternative the State argued he was grossly negligent by driving that morning since John knew that he was blind in one eye and had limited peripheral vision in the other. Those charges could have carried 20 years. Of course the State had given John a license to drive knowing he was disabled - and John had driven without any real problem for 20 years.  His medical problems precipitating that blindness were related to the removal of brain tumors in 1988.

The jury found John Tiemann not guilty of the felony counts.

It found that John had been negligent as he drove that morning - and ruled that he was guilty of two misdemeanor counts of vehicular manslaughter. John faces a potential year in jail for each count.

So was that a "win" asked the Idaho Statesman reporter.  

Let's see, the state charges you with two felonies that will subject you to up to 30 years in prison, spends three weeks in trial and argues that you committed two felonies.  I guess you have to decide what constitutes a win. 

I said in trial there could not really be any winner. That is true - the Woychicks were wonderful community leaders. They left behind terrific family members who undoubtedly continue to suffer a tragic loss. Nothing that would have happened in that court room could bring back Tom and Mary Woychick, but I understand the family wanted to feel that justice had been served. I remain terribly sorry for their loss.

John will be sentenced in July, and there remains much to do to prepare for that sentencing date, but for today I am relieved he will not face a potential prison sentence. 

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 After three weeks, I am finally out of trial. Well, out in the sense that I am waiting on a jury verdict. Waiting is a killer for everyone in this situation, and I don't write about cases while they are being tried. So more about that case soon, but this morning I read a little blurb about Boise soldier Andrew Holmes, who is undergoing a pretrial hearing at Joint Base Lewis-McChord, near Tacoma. I spent a little time at then Fort Lewis when I was in the Army ages ago, before austerity brought about its consolidation with McChord.

Last night a friend asked me what the hearing was akin to on the civilian side of the world. The military uses an Article 32 hearing like the grand jury proceeding in state or federal court. The focus of the hearing is to determine if there is probable cause to conclude that a crime was committed by the charged service member. In Holmes' case, additional evidence was ruled admissible by an Army Court, thereby allowing him to re-open his Article 32 hearing. He likely hopes the new evidence will create doubt as to his involvement and it will also lock in the testimony of those appearing.

But the bottom line is probable cause. If the presiding officer finds probable cause, the soldier is headed to trial.

Here's one more thing to think about - the fundamental rule our service members live by in conflict areas is this: we do not intentionally kill noncombatants. Civilians are never targets. That rule gets blurred in war generally and in the middle east perhaps more so because it is so difficult to pick out the bad guys. They don't always wear uniforms. That task is not easy but it is achievable. 

There is much to watch in Holmes' case. What happens at that Joint Base will speak to the difficult decisions our soldiers have to make every day they are at battle.  But don't judge this kid too quickly. Probable cause (if they find it was more likely that a crime occurred) is not the same as proof beyond a reasonable doubt.

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