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

The problem with over generalizations is - they are in fact over generalizations! Guilty. I may have suggested recently that your likelihood of getting relief on appeal is about the same as coming up with a perpetual motion machine; or a little less than winning that $200 million Power Ball; or swimming from Los Angeles to San Diego - even if you have spent years doing those "Total Immersion" drills. Just not very likely!

Turns out I may have been wrong again. The Idaho Supreme Court has reversed a district judge who summarily dismissed a case in which a criminal defendant claimed that his right to the effective assistance of counsel was denied by both his trial and appellate lawyers. 

I also told you (when you called me from Michigan asking for the names of those appellate attorneys) that Dennis Benjamin was simply a Genius Appellate Defender. And he is. Exhibit A offered in support of that proposition: McKay v. Idaho.  There, Justice Jones (W, not J) showed us once again that the Supremes will, indeed, go analytically into that dark night and turn a case around when the interests of justice require. The right to the effective assistance of counsel for a criminal defendant lives here. At least it lives long enough to grant a hearing on the question.

If you are a criminal defendant you have the right to expect that lawyer sitting next to you will do more than fog up a mirror thrust under his or her nose to establish he or she is living. If you are a criminal defendant in any Idaho case - state or federal - I want you to stop and go read this case. I mean it. Now. It is a good reminder of just how important an effective advocate can be for you in court.

Here's the bottom line - the district court that considered McKay's ineffective assistance of counsel claims granted summary dismissal of the case by which McKay wanted to show his lawyer did not do everything needed to protect his right to due process at trial and on appeal. Specifically, the lawyer failed to object to the jury instructions that arguably lessened the elements required to prove that McKay had committed vehicular manslaughter. McKay had struck a motorcycle from behind while he was (the State argued) drunk. Idaho law requires the State prove that the operation of his vehicle was "a significant cause contributing to the death" of the motorcycle rider. The jury instructions failed to require consideration of the question of whether McKay's drinking and driving was a significant cause. McKay claimed that the motorcycle's tail light was out and regardless of driving or drinking he would not have seen the rider, negating causation.

Dismissal of the post-conviction petition without a hearing was an error. This does not mean that McKay's conviction is vacated, but rather that the district court will have a hearing to determine if the other requirements for an ineffective assistance of counsel claim are present.  

Look - we miss stuff in trials. Most criminal defense lawyers work hard and do a good job. But we are human and we do not always get it right. So McKay has Dennis Benjamin to thank for some great work on his appeal of the denial of the petition for post-conviction relief. 

And what about your case? Have an ineffective assistance claim? Jump in here and tell us your experience. And go read my post "Three Things Clients Need From Their Lawyers" for information you need from your lawyer. Assistance requires communication and we do not always get it right. Coming soon here - Three Things Lawyers Need from Their Clients.

• Email This
• Print
• Comments
• Trackbacks

 I had a really nice woman in my office today who wanted to hire me to be her lawyer in a felony case. Her biggest block was, well - money. She said she had been "hoping to avoid all those hearings" and thereby make it possible to hire me. Fewer hearings means less time spent on the case and less cost. At least that was her perception, and to some extent she was right. More work costs more. That simply does not change the reality of the court appearances in a felony case.

A person charged with a felony in an Idaho court will make a first appearance before a magistrate judge, generally after having been booked into jail on the charge. That first appearance provides the opportunity for the court to advise you of your rights, appoint counsel if needed and set or reconsider a bond that has already been set. The court will then set a date for a preliminary hearing - usually within 21 days. That preliminary hearing is a chance to see the evidence relied upon by the state to establish probable cause. If the State uses a grand jury and obtains an indictment, the right to have a magistrate judge consider the issue of probable cause goes away. 

If the magistrate finds probable cause to believe you have committed a felony offense or if you have been indicted, your next appearance is before the district court judge assigned to your case for an arraignment. Usually your lawyer will enter a plea of not guilty, and the judge will set dates for discovery, filing and hearing motions, and perhaps a pretrial conference. 

And of course there is the main event - the trial. The court will set that date too at the arraignment. Generally your trial date will be 90 to 180 days out from arraignment, depending on the complexity of the case and the trial court's schedule. If you need more time the court may grant a motion to extend the time to prepare for trial.

So there you have it: Felony Court Appearances 101. But the preparation of a criminal case is so much more than just showing up for trial. There are investigative reports to be read and analyzed and legal motions to consider. And of course there is the story. 

The story is everything. Check out prior posts on the importance of telling your story.

More time does cost more money - but more time means "more prepared." More prepared means more likely to get it done at trial. And the trial is a war. I mean that. War. Battle. Fights. Blood and guts and throbbing headaches for you and your lawyers. Even if you do it all right you may still lose. I know it doesn't happen on TV but in real life it does - we lose cases we think we cannot lose and we win cases we think we are likely to lose. Often time spent on the case is the difference.

Got a question about your case? Go ahead and call - the first call is free.

• Email This
• Print
• Comments
• Trackbacks

 This week's first call from a potential client posed the question: Why do federal investigations take so long? Long is right! I am involved in a fraud case in federal court (potentially) that began nearly 5 years ago, and like that rabbit it just keeps going and going and going and - well you get it. Federal prosecutors are like great gift givers at Christmas. By the time you get their "package" it is so tightly "wrapped" (resulting from a long, thorough investigation) that you seldom have a chance to get to the goods in one piece. Those long, thorough investigations result in very thorough indictments, and complex trials in federal court.

Federal investigators have unlimited investigative resources when investigating federal crimes. They use wiretaps, surveillance, monitoring of computer and banking records, and they love informants. As a result, federal investigations frequently take months and years and seldom involve mistakes or sloppy work, unless those informants have gotten sloppy.

And let's not forget the darling of every federal prosecutor - conspiracy. In almost every federal criminal case you will find a conspiracy charge, to give the feds even greater investigative leverage. A charge of conspiracy changes the rules. That out of court statement made by your brother is suddenly admissible at trial because of the co-conspirator exception to the hearsay rule. Other defendants making plea bargains may claim you are guilty of crimes you did not commit or are only partially responsible for, based on hearsay and their motive to avoid a stiff sentence.

So what to do if facing a federal investigation? Here are my top three tips:

First - hunker down and be willing to endure. You can seldom change the course or scope of a federal investigation, whether you are suspected of some type of fraud or an obscure federal criminal tax violation. So settle in and hope to wait them out. It happens! Sometimes they find a bigger fish to follow and lose interest in your problems.

Second - get the best legal help you can afford. ONLY hire an experienced criminal defense lawyer who has spent time trying criminal cases in federal court. Ask him or her specifics about federal criminal trials and do not settle for someone who has never WON a federal criminal trial.  You do not need a novice or a generalist - your life and liberty are on the line.

Federal criminal trials are different from state or local criminal prosecutions. They are more complex, they take longer to get to trial and you start at an investigative disadvantage because of the length of time the United States has taken to investigate before filing that criminal case.

Finally - do not talk about the case with others. There is no "frightened potential criminal defendant - old college room mate" privilege. There is that attorney - client privilege that allows us to hear the whole story in complete confidence so that we can give you reasoned advice. Real advice on what to do next.

And do not talk to the investigators.  I suppose that is technically my fourth tip. But I mean it!

So hang in there and get ready for that long ride if the feds are after you. Start with these ideas, but if you need to talk to someone right now - pick up the phone and call your favorite lawyer. 

• Email This
• Print
• Comments
• Trackbacks

 I was struck by the irony of it all - abandoned and orphaned children being delivered to another orphanage by apparently well meaning Americans - while the government of Haiti cannot deliver even the most basic essentials to its people. They cannot take so much as water to their own but they presume American missionaries are trafficking in children. Sick. That is the single word to describe their miserable failure. And these missionaries who have traveled from thousands of miles away and were simply taking helpless children to another orphanage are - by the government of Haiti - presumed to be criminals. Here is how it was reported:

"But the prime minister said some legal system needs to determine whether the Americans were acting in good faith - as they claim - or are child traffickers in a nation that has struggled to fight exploitation of children."

I will not presume the guilt of Americans who spent their own money to go to the aid of children, and neither would our judicial system. Not in our country. Not in America. And that is just one of the important differences between the greatest justice system in the world and every other. We do not presume guilt, we require proof. And no criminal defendant in this country has to prove innocence. We presume you are innocent unless proven otherwise in a court of law. Yes - people are arrested and held before trial, but they are not used by the government to shift focus away from their own failings.

America. Filled with people who would give up their money for others and travel to tragedy to try and save children. We do not have to apologize here.  And maybe the government of Haiti should spend a little more time trying to save its own children.

• Email This
• Print
• Comments (2)
• Trackbacks

 In another one of those confusing 9th Circuit fraud decisions - the Court of Appeals has upheld the convictions and sentences of three men who summoned the likes of Charles Ponzi and swindled 1700 investors out of $40 million. In US v. Treadwell the Court upheld an instruction  that “intent to defraud is an intent to deceive or cheat,” and that “a defendant’s belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime.”

The Court goes on to draw an analogy to embezzlement. It is not a defense to embezzling money from your employer that you intended on returning the money to him someday - even if you honestly believed you could, with interest! That makes sense to me because fraud is simply theft - if you get the money by lying it is not a defense that you may someday give the money back, or the investor may someday get the investment back. Bernie Madoff's investors got money back, from other investor money!

And if someone was to sweet talk my wife into "giving" them my MacBook Air on the premise that we would get two new ones back in a few months, I wouldn't care whether he or she had the good faith belief that they could get me a 100% return on my bride's "investment." My computer would be gone - just like the investor's $40 million. 

Look at the following language - it pulls together the key stuff here:

"According to the federal wire fraud statute, 18 U.S.C. § 1343, any person who “having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be trans- mitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice,” is guilty of wire fraud. Conviction under § 1343 means a defendant must have intended “to defraud” his victim. See United States v. Oren, 893 F.2d 1057, 1061 (9th Cir. 1990). “To defraud” under § 1343 encompasses “any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises.” Carpenter v. United States, 484 U.S. 19, 27 (1987); see also United States v. Ciccone, 219 F.3d 1078, 1082 (9th Cir. 2000) (“[T]he offense’s specific intent element . . . require[s] proof of intent to deprive the victim of money or property.”). It means to “wrong[ ] one in his property rights by dishonest methods or schemes, and usually signif[ies] the deprivation of something of value by trick, deceit, chicane or overreaching.” Carpenter, 484 U.S. at 27 (internal quotation marks omitted)"

It's the scheme that is the key - if you get the money by lying and scheming the law will be at your door. Or maybe - it will be some lawyer in a nice suit looking to collect back that "investor" money from you in a civil suit. Either way, this case is fair warning that the scheme imposes liability - both civil and criminal. 

Have a question about an investment "opportunity" that seems too good to be true? Get some advice before you give away the farm.

• Email This
• Print
• Comments
• Trackbacks

Reversing a conviction for rape this week, the Idaho Court of Appeals reminded all of us that the system works when the rules leveling the playing field are enforced. That applies to defense lawyers and prosecutors alike. As Judge Gutierrez noted: "While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he is nevertheless expected and required to be fair."

So the case of State v. Troutman takes another turn down the road of justice.  Noting that a "fair trial is not always a perfect trial," Judge Gutierrez finds that the error here interfered with the right to a fair trial and results in giving Mr. Troutman another day in court. If you are facing any criminal charge, you need to read this case. Go do it now.  

The decision is a great reminder of the complexity of criminal trials, and it reminds me of the following THREE TRUTHS about the criminal justice system.

FIRST TRUTH - every lawyer in that trial has duties that he or she must oblige. Judge Gutierrez noted the prosecutor's duties to the people of the state, including the duties to the defendant. Hard blows are fine in the courtroom, but they must be fair blows. Mischaracterization of the evidence or the defense theory is not permitted. And mischaracterization is so easy to do in the heat of the battle in the courtroom. We are advocates in there, fighting for our client, and the fight gets hot sometimes and it is largely unscripted. When I read something that I have written here and reflect that it goes too far or misses the mark, I simply correct and re-save. There are no "re-do" buttons in an argument before that jury, so remarks need to be carefully considered. But none of us - not the best lawyers I know (Nevin or Spence) nor the best prosecutors for the State or the United States (hard to choose here) - none of us - gets it right everytime. We make mistakes and we fight too hard. In closing arguments we get going a hundred miles an hour and turn facts into stone when really the world is far more mud than rock. I won't cast stones at the prosecutor here, and neither did the Court, for I too have taken arguments at trial too far.

But the difference is critical - and the SECOND TRUTH - prosecutors have a higher duty than simply fighting the good fight. 

"The role of the prosecutor is to present the government’s case earnestly and vigorously, using every legitimate means to bring about a conviction, but also to see that justice is done and that every criminal defendant is accorded a fair trial."

When I get it wrong in pursuit of an acquittal I may affect the outcome of the trial, but my duty rests solely with my client. The prosecutor must temper his or her role in the battle against a higher calling - to make sure every defendant has a fair day in court. Maybe this decision will cause prosecutors to stop and reflect on that duty as they go about their duties.

The  THIRD TRUTH is that sometimes you need that review by another judge or higher court to save the day. As I said above, lawyers often get it wrong in the heat of the battle, and there is no immediate review as in a football game. We don't go to the referee upstairs with instant replay for a quick review. Judges sometimes get it wrong too. Here the appellate court thought the trial judge failed to adequately protect the defendant's rights. It happens. Thankfully the Court of Appeals was there to review the case and make it right.

So what does all this mean to you as a criminal defendant heading to trial? Get the best lawyer you can afford. Let your lawyer work hard to win your case. Trust him or her but remember - something will go wrong at trial. It always does. Hopefully your judge will catch it but maybe not. So be prepared to fight to the death to clear your name. And hope for one of those appellate miracles if that is all there is left to hope for.

• Email This
• Print
• Comments
• Trackbacks

In a decision by the Idaho Court of Appeals, it may be that evidence of a child's prior exposure to sexual behavior is admissible to answer the implicit question in every sexual prosecution: "how would a ten year old kid know about that sexual behavior?" If you have to defend against such charges, evidence that the child knew from a source other than the alleged sexual act may be proof that the child has fabricated the allegations.  Still, whether the evidence will actually be admitted will depend upon the facts specific to the case.

In Idaho vs Molen, the Petitioner complained that the trial court had twice rejected his offer of evidence that the purported victim had been exposed to sexual behavior by her mother, thus making it more likely that she made up the story and had its building blocks from that prior exposure. To be clear, Molen's defense at trial rested on his assertion that the victim "SZ" made it all up, perhaps at her mother's insistence. The Court stated:

"Molen's offer of proof does not demonstrate that S.Z. had previously observed such conditions or behavior. The offer of proof indicated the evidence would show that S.Z.‟s mother exposed S.Z. to “a constant, graphic, sexually charged lifestyle . . ., including openly having sex with multiple partners with [S.Z.] in the home, openly discussing sex toys and pornography in front of [S.Z.], and openly disrobing in front of other family members in the presence of [S.Z.]” These assertions are too vague and general to establish an alternate source of knowledge from which S.Z. could have fabricated her description of Molen‟s acts.

So Molen's evidence, according to the Court, was not relevant - because it was not specific enough to meet the prosecution's allegations. I suppose this means that when a child alleges intercourse, evidence of prior exposure to intercourse would be admissible but not evidence of some other sexual act. 

But the rules provide that any evidence making the existence or nonexistence of a fact in issue is relevant evidence. Isn't it relevant evidence if it answers the underlying "how would she know about that" question? Apparently not - according to the Court of Appeals.  

There is one other nugget to mine in this decision - the Court held that the prosecutor erred by commenting on the Defendant's invocation of his right to remain silent when she asked him if he had waited to tell his story until after he had heard all the witnesses testimony.  Error? Yes. Result in reversal? No. The error was deemed to be harmless so the Petitioner did not get a new trial.

Whether you agree or disagree, this most recent decision is important to any defendant facing an allegation of sexual battery or lewd acts. These charges are so difficult to defend against that your lawyer needs to read this case - and soon!  Call your lawyer and tell him or her about this decision. 

• Email This
• Print
• Comments
• Trackbacks

 If you are charged in a criminal case, you have a story. You know intuitively that you have to answer that "what happened" question, if only to yourself, your family and your lawyer. You understand that your freedom depends on the answer and ultimately, your story. And you likely understand that you should have a good lawyer to help you communicate the facts that you hope will keep you free. Believe me, you will not likely do it by yourself. That is the situation whether your case is civil (only money involved) or criminal.

Your story has to be refined, and a third person - your lawyer - is most likely equipped to do this. You need to define its core message and fight against the extraneous. Most people who call me about their situation have a core message, but it is lost in the detail they think is important. It goes something like this: 

"They arrested my son, but didn't read him his rights. Then they took him to jail because he wouldn't tell them who stole the car and then they put him in solitary confinement and won't let him out until he tells them the names of the other guys who really did this. He was not the driver..."

A good lawyer will help you get through the extraneous and direct you to the core message - whatever that might be. Maybe the core (facts that make up the defense) is as simple as "I didn't steal the car." Maybe it is more. In any case, an experienced criminal defense lawyer should be able to help you tell your story. Now you have to trust that lawyer to get to the stuff that matters.

And how do we do that? It's not an easy thing to do sometimes. I am in a fraud case right now (a civil case) where the other lawyer submitted an eleven page brief that really got to the core. Mine was thirty pages and it wandered. So I kept refining the message until I was happier with the work, but in the end, I was amazed that anyone could cut through the clutter like the lawyer who was opposing our position.

How do we cut through that clutter and get to the core?

Write. Re-write. Refine. Cut. Re-write and do it all over again. 

I think the real answer is that we help you cut to the core by learning your story, and then working on how we tell it to the jury. So tell your lawyer your story, and let him or her cut it apart.

• Email This
• Print
• Comments
• Trackbacks

 In a decision handed down on December 30, the Idaho Court of Appeals vacated a conviction for robbery in State vs Faron Hawkins because the district judge did not sua sponte (on his own without a motion from the defendant) order a mental health evaluation during the trial of the case. Hawkins had contacted an FBI agent concerning his fear for the safety of his sons who were in prison in Colorado. The agent told Hawkins he could not help, but offered to put him in touch with another agent. The following day Hawkins robbed a bank in Portland, and an employee identified him. The FBI agent he had contacted tried to locate Hawkins without success, and 6 months or so later he robbed another bank, this time in Boise. As he left the bank he told tellers his name and said the robbery was "all because of George Calley (the FBI agent)."  

Fast forward to trial. Hawkins has proceeded pro se, but a public defender is acting as standby counsel. Hawkins and the public defender do not get along. Hawkins fires him, then later asks that the PD argue his post trial motions - including a motion for a new trial because Hawkins says he was delusional. At the hearing the PD says that if he was going to argue the motion, he would have to argue that it lacked merit. So the lawyer says his client is not delusional (impliedly) and the court orders a mental evaluation for the purpose of sentencing - not for the purpose of determining whether the Defendant could have assisted in his own defense at trial.  

The appeals court says that there were plenty of reasons for the trial judge to have ordered - before trial or during - a mental status evaluation, to see if Hawkins could assist in his own defense. Case reversed, start all over folks.  The decision as to whether to order the mental status evaluation is one of discretion as to the trial court, and here, there was an abuse of discretion when viewed in the totality of Mr. Hawkins' bizarre behavior and representations (for example, he claims the government implanted a chip in his ear and controlled his thoughts, he claims he worked for the CIA). 

Two things I take away from this case:  

First - if the defendant acts like he has mental issues, the lawyers and judges need to take a time out and get an evaluation. Strange behavior comes from somewhere and everybody needs to know where before spending days in trial. Stop the bus and get a psych eval!

Second - the US Supreme Court held that the test is different to determine competency when the defendant is represented as opposed to proceeding without counsel. To spare all the details, the test is understandably more rigorous if the defendant is pro se. So the judge has to be more attuned to the bizarre behavior and make the tough call. That is why he/she has the black robe and the impossible hours and caseload. If the court fails to order the evaluation, the right to due process is violated that the case gets reversed.

And this says nothing about the conduct of the defendant's advocate. We are advocates - and the mentally ill make that job extremely tough. Still, we have to work on their behalf. Make their argument. It might be a winner!

Someone needed to argue this guy's rights. Thankfully on appeal that happened. Nicely done Dennis Benjamin - Appellate Superlawyer!

Have an issue you want to talk about? Send in a comment and we'll send it around the horn.

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

Here's how the New York Times announced it:

"Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four other men accused in the plot will be prosecuted in federal court in New York City, a federal law enforcement official said early on Friday."

And of course the talking heads will be weighing in on how this course of action will impact on other Gitmo detainees.  Four others are reportedly also headed to NY to face trial, but some of those prosecutions may still occur before military commissions.  The biggest concern for prosecutors has reportedly been the fact that KSM has been water-boarded some 170 times.  Evidence (confessions) that is the result of torture is generally not admitted in criminal trials, and any defense lawyer tasked with defending the man accused of killing 3000 people will have to make the government meet its burdens under the Constitution.  Still, a show trial in NY seems right to me.  The towers came down in NY.  New Yorkers lived with the terror.  Ground Zero remains a work in progress. The federal courts there are used to handling big cases and providing great security.  And this is a country dedicated to the proposition that we try these cases in public, before the people of this country.  And did I mention the 3000 or so who died that day in NY?  Their children, spouses and families deserve the chance to see the system at work.  That won't make the case easy for the United States - quite the contrary.  That collision of personal rights and public anger will lead to hours of interesting "education" for Americans and others as they watch the court system in action. 

• Email This
• Print
• Comments
• Trackbacks

 In United States vs Hickey, the 9th Circuit Court of Appeals affirms the conviction of another real estate developer who made big promises to investors but failed to deliver.  Defendants Hickey and Tang induced over 700 investors to invest over $20 million in two real estate developments.  The plan was straight forward enough - you give me money, we buy land and develop it for resale at a profit. You profit too - just trust us. As I mentioned, investors dumped money into the "development" as they often do, even in Idaho. As the Ninth notes: 

As it turned out, however, the investors were duped by false representations regarding land title, guarantees, and securitization of the funds. Forensic accounting also showed that Hickey and Tang appropriated money from the funds for personal use.

What a shock!  Real estate developers who made false representations about owning the land, "guaranteed" returns to investors and security of the investments? And then they used some of that $20 million for themselves? The scheme ultimately turned into the classic Ponzi scheme, leaving later investors empty.  OK - enough of my shock and horror. 

The interesting issue for me was the Court's holdings concerning the use of an expert witness to testify that all of this was reasonable and the standard course of such proceedings.  He wanted to go further and testify that if Defendants had not been stopped, their efforts would have produced a return for investors. To that the Court said "NO."  Here is the part that I do so love:

To begin, loss to investors is not an element of either mail fraud or securities fraud, nor is an intent to cause loss. See United States v. Utz, 886 F.2d 1148, 1151 (9th Cir. 1989) (for mail fraud, “[i]t is enough . . . that the government charge and the jury find either that the victim was actu- ally deprived of money or property or that the defendant intended to defraud the victim of same.”) (emphasis in original); United States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986) (actual loss is not an element of securities fraud). Although Hickey is entitled to advance the claim that he did not intend to defraud the victims, his argument misunderstands the relevant intent—“[w]hile an honest, good-faith belief in the truth of the misrepresentations may negate intent to defraud, a good-faith belief that the victim will be repaid and will sustain no loss is no defense at all.” Benny, 786 F.2d at 1417. In other words, even if Hickey genuinely believed his investment scheme would be profitable and would result in gains for his investors, he would still be guilty of securities fraud and mail fraud if he knowingly lied to investors about the risks associated with his plan.

What this means to you as an investor is simple - it is not a defense that the defendant thought ultimately his lies to others would produce profits for you and others.  It's the lies, half-truths and omissions that make it fraud. That someone actually lost money is relevant, not the half-hearted and misguided attempt to prove the defendants "might" have made the money they promised as guaranteed returns.  

That this is a criminal case changes nothing - the basic elements of fraud (civil or criminal, securities or otherwise) are essentially the same.  This is a very important case for a plaintiff or a defendant in a civil or criminal case. These situations almost always ultimately involve both civil and criminal liability. 

So if you think you have been defrauded, or if someone (like a government agency or prosecutor) says that he or she is charging you with fraud, get some good legal help and get it quick.  Last week a guy called me to talk about a federal indictment which he claimed was "no big deal - I have been talking to the feds about this for the past year."  Another excellent idea - after you commit the fraud, spend a lot of time with the feds trying to talk your way out of it. 

No Mr. Defendant, this is no big deal alright - if you like tan jumpsuits, Club Fed accommodations, dark dank holes and lots of time to read the classics while carefully watching your cellie's next moves!  No big deal at all - number 7651991!

No big deal either "Ms. Moneybags are now empty." Not if you don't mind giving back everything you own and want to spend the rest of your life working to pay off that non-dischargable debt for a couple cool million dollars.

No big deal at all.

• Email This
• Print
• Comments
• Trackbacks

 First the disclosure - I have known John Tiemann for twenty years and when he was involved in an automobile accident several weeks ago he called me.  I represent him.  If he is ever charged with a crime as a result of the accident, I will be there beside him as his lawyer.  The accident happened on August 19th, and two equally wonderful people were killed.  John was driving his car to work at the same time James and Mary Woychick were on their way home from Mass.  They were well known and loved by the community and their deaths were tragic.  While I did not know them personally, I had seen Jim at the YMCA as I tried to learn to swim.  He slid through the water without effort.

So when I opened the Idaho Statesman this Sunday to read the report that John had tested positive for alcohol and drugs, I knew there had to be something wrong.  John had assured me that he had nothing to drink that morning, and the idea that this gentle man was under the influence of drugs was equally ridiculous.  I knew that if he had failed the field sobriety tests or the breathalyzer he would have been arrested on the scene.  He did not fail either and he was not arrested.  

So I wondered about the basis for the claim by the Statesman - their answer - the Idaho Vehicle Collision Report.  

The problem is the Report does NOT say John was positive for either alcohol or drugs.  It says that he was given a blood and urine test and that the results of NEITHER is known.  In other words - the story is false. The Report does NOT say that John Tiemann tested positive for anything. The reporter, Cathy Sewell, did not apparently understand the Report.  When it said "-U indicates Unknown" she apparently thought that meant "-U indicates he was drunk and on drugs!"

In fairness to her, the report contains a "block" for "Alcohol / Drug Involvement" that indicated both blood and urine tests had been done.  The results are not back from the lab - but I am convinced that John was not operating the car under the influence of either drugs or alcohol.

I have asked the Statesman editors to correct the story.  Some of John's closest supporters had doubts.  Had the Statesman simply waited for the results, the truth would have been known and not misreported.  They say they want to make it right.  I hope they do. I have simply asked them to do what is right - admit you got it wrong. 

It must have been even more terrible to be in the Woychicks' family, which has endured so much with the loss of James and Mary, to read that story on Sunday that the driver had both drugs and alcohol in his system at the time of the accident. Someone last week told me that the Woychicks' children were trying to not hate the man who collided with their parents.  

The Statesman undoubtedly made that worse without any reason to do so. 

Like I said, I have known John Tiemann for twenty years. He says the lab results will prove he had neither drugs nor alcohol influencing his driving that terrible morning.  Even if I did not believe him I would wait to see the test results.  The Statesman should have done the same.  But I do believe him, and I want to believe the Statesman will correct the story.  

• Email This
• Print
• Comments
• Trackbacks

 In an article appearing online in the Statesman it appears that DBSI president Douglas Swenson will have to answer questions under oath in the DBSI Bankruptcy case now pending.  Here is the classic dilemma - answer the questions and face the use of your testimony in an all but certain criminal case, or refuse to answer and invoke the constitutional protections afforded against self incrimination and watch the civil case wilt on the vine.  The law is difficult in such cases because DBSI has sought PROTECTION against its investors through the use of the bankruptcy courts. But should it lose the protections afforded there because its president wants to shield himself personally from a potential criminal case?

You can smell the blood in the water here - just look at some of the comments added to the Statesman story.  Many in the community have tried and condemned DBSI and its officers without having any real knowledge of what went on in the business.  And of course DBSI has added to the problem by appearing to run from its losses without giving a full accounting of what happened, under oath.

If DBSI wants the protection of the bankruptcy law, it must likely play according to the rules, but can the judge FORCE Swenson to testify under oath? I doubt it.  The remedy here may be that the bankruptcy petition is dismissed or the case converted to a liquidation, thereby depriving the company of the protection of the courts because its president cannot or will not answer the questions.

Learning point - if it looks like you are about to be charged with a crime, you only want to tell your story once. If Swenson is indicted his statements in the bankruptcy would certainly be used against him at a criminal proceeding. So why should he waive his 5th amendment rights now? 

Second learning point - when in trouble, get a good lawyer.  Swenson has Angelo Calfo - great lawyer and a great choice in this case.  We shall watch this one as it progresses. There is still that "ponzi scheme" claim underlying the entire DBSI mess.  Millions of investor dollars are gone and in today's climate that can only lead to more scrutiny.

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

 If you live in the Boise - Nampa - Caldwell, Idaho area you cannot have escaped the most recent news story on another apparent homicide by a fourteen year old Caldwell Middle School student. That's right friends - 14. As in "how many kids can you stuff in a VW Bug?"  Fourteen - if they are little Middle School kids.  As in two years older than 12.  And when the reports first surfaced in the local press, it was just another "bad kid gone horribly wrong" tale, this killing compared to other murder by adolescent kid accounts that have played out all over the land over in recent years. You know the type - sad, dark killer takes life of sainted parent. Those stories are truly tragic - but this is not that story. This is the other type of tragic - 

Zachary Neagle is charged with killing his dad - who "allegedly" had sexually molested Zachary and his sister.  

Check out today's coverage of the case, including this story describing the circumstances this kid was living through - sexual abuse by dad.  Here's the kicker:

"A close relative of the victim told investigators he suspected Jason Neagle sexually abused Zachary and that he had seen Neagle hit his son, (Investigator) Crawford said."

What kind of relative stands by and lets an adult sexually and physically abuse his kids? What kind of father molests his kids with apparent impunity?

While we are at it - what kind of prosecutor charges first degree murder for this kind of thing? John Bujak has "taken the death penalty off the table." Wonderful - at least this 5 foot 4 inch kid will not have to face the most extreme punishment available under the law. Bujak should do more - he should drop the charges based on the work of his investigators who appear to have the explanation - the kid was trying to protect himself and his sister. This kid needs help not a life sentence.

There is much interest in this case as the 85 comments to the story illustrate. Many (if not most) support the kid's actions to protect himself and his sister from the abuse. Zachary Neagle is the real victim. He needed the community's help before and he needs it now.

There are cases lawyers just need to take - causes so just they beg for an advocate. This seems like that type of case.

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

 I am working on my response to a motion to dismiss a civil case under Rule 12(c), which permits a judgment on the pleadings to be granted when, taking all the allegations as true, the moving party is entitled to judgment as a matter of law.  This is a civil case, and the practice in civil cases is different than in criminal cases.  In criminal cases I am often asked why the judge doesn't just dismiss the case. Many defendants are simply certain that the judge will read something and understand immediately that they have been unfairly charged. After that revelation it is only a short jump to certain dismissal. OK - here's the bad news - it doesn't work that way.

If you have been charged in a criminal case a court has already found that there is probable cause to believe you committed a crime.  In a felony case, a grand jury has found probable cause or a magistrate judge did at the preliminary hearing.  So it is pretty unlikely that the case will simply be thrown out before trial, but it actually could happen.  Rule 48 of the Idaho Criminal Rules permits a judge to dismiss a case in the interests of justice (which really does mean any reason) either on motion by the defendant or on his own motion. If the case is dismissed by the judge it may be re-filed if it is a felony, but not so if a misdemeanor.  If it gets dismissed as a misdemeanor, it is gone for good.

But does this happen? Not often. Judges presume that the prosecutor knows more about the case than he or she does, and that is usually the case.  So the Court is more likely to let the prosecutor try to prove the case. The best hope for a "dismissal" is the motion for Judgment of Acquittal based on Criminal Rule 28.  A judge can decide to dismiss after hearing the evidence and concluding that no reasonable trier of fact could conclude there is proof of guilt.  Last summer I had this happen twice - two different judges - acquitted my clients in criminal cases, one a felony and the other a misdemeanor.  If you go to trial you want to make certain that your criminal defense lawyer moves the court to order your acquittal at the conclusion of the State's case.  Just look at your lawyer and say "Rule 28?"  If he or she doesn't do it ask them why!

• Email This
• Print
• Comments
• Trackbacks

It is early on a Sunday morning and I am in my office working.  Sometimes this happens - I wake up and after fifteen or twenty minutes I know that I am not going back to sleep, so off I go to do a little work. Today I am listening to a tape recorded "interview" by a detective.  The suspect is charged with a sex crime.  The officer has been nice and comforting along the way - taking his time to eke information out of the defendant - and in the end the defendant has sealed his fate.  He has told the officer that he fell in love with a minor, and that of course led to sex, and that will lead ultimately to a criminal case.  Sex crimes are in the news here lately, as a prominent local business man is currently on trial for having a sex party with two minors.  I am not going to talk about his case - I did that under oath as a witness last week - but the question of just when it is permitted to have sex with a minor is frequently one I deal with.  The answer is - drum roll please - NEVER!  That's right friends and neighbors, not ever.

The law in Idaho FORBIDS a minor  from consenting to sexual contact.  Simply stated: a minor (someone under eighteen) cannot legally consent to any sexual contact.  Idaho Code § 18-1508 prohibits "lewd conduct" with a minor under 16 years of  age.  Penalty - LIFE.  And truly they mean it.  You may not go to prison for life (you might), but your life will forever be changed if convicted.  In addition to prison, sex offender treatment, victim restitution and lawyers fees, there is also a requirement that you REGISTER as a sex offender under Idaho Code § 18-8301 et. seq.  If the victim of the crime is 16 or 17, it is still a crime if you (as the defendant) are more than five (5) years older than the victim (Idaho Code § 18-1508A), and the maximum term of imprisonment is twenty-five (25) years.

So if you are being investigated for any sex crime remember that the investigators are playing for keeps.  Here are my top three rules if you are under investigation for any crime:

1.  Guilty or innocent you cannot talk your way out of the investigation, so shut up!  Remember that little "you have the right to remain silent" talk BEFORE the nice officer gets you the coffee.  Sure, you may be guilty and there may be a time to confess, but don't do so at the station to the officer who says he just wants to "get your side" so it can be included in his report to the prosecutor.  WAIT. Breathe deeply and tell him you do not want to make a statement.  There will be plenty of time to spill your guts later.

2.  The prosecutor is not your friend.  I know prosecutors, and like many of them. They are almost always believers in what they are doing, sometimes to a fault. The same is true of most defense lawyers.  Heck, my daughter is a prosecutor.  But as one of my clients says, prosecutors are just cops with nicer suits.  They are there as the state's lawyer in a case in which your liberty is very much at risk. Do not expect a break from the prosecutors.  They may decide that you are a nice person but that will not be enough to  convince them to "overlook" your indiscretion and dismiss the case.

3.  You know that money you saved for a rainy day? Get it out and buy the best lawyer you can afford because "it's pouring" outside.  Again this week I had the call from a young woman who is looking for an appellate lawyer because her husband is on his way to the big house.  Who was his lawyer, I ask. He had a public defender, she says. "We decided to wait and see how the trial went before spending our own money." Bad call. That public defender may have been great, but he also may have had 60 - 80 cases he was managing.  Money buys time - which is why I am here at 6:00 am on a Sunday morning.  Time is the difference between winning and losing, sometimes. Sometimes there is nothing the best lawyers can do to get you acquitted.  For example - if you are guilty of doing whatever they are investigating. But your money can buy that lawyer's time and effort to review the documents, learn the case, get to know you and your life and convey "you" to a judge or jury.  I may not be the right lawyer for your case, but somewhere there is a lawyer who will work for you - maybe just to lessen the time you face - hire the best lawyer you can afford.

There you have it - back in the saddle again and now it's time to get back to work.  Next time - what do we do about the confession?

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

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

 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)

I was just looking at Virginia Attorney Bob Battle's website, and his advice on choosing a lawyer to represent you if you are charged with driving under the influence.  The advice makes sense whether you are headed to court in the great South or the Northwest.  Survey says:  choose wisely!  As a client in a criminal case in Idaho, you want to hire an experienced lawyer.  Some Boise lawyers send out letters everyday to anyone charged with a crime.  They get that list of potential clients at the courthouse and then send off a FORM letter that may scare you into jumping into their caseload.  Don't jump. Think! Why are those lawyers "fishing" for clients anyway?  Successful and experienced lawyers (criminal and otherwise) get clients from their reputations and by referral.  Just how many TRIALS have they had this year?  What were the results?  And will they be handling the case or passing it off to an associate?  Look, it's your case, and your life.  Why would you entrust it to any lawyer who could not give you the answers you deserve?  Here's our pitch:  Hire me for the experience and you get just that; me and twenty-seven years in the courtroom. 

So what kind of cases have I handled?  In the past five years the cases have included murder, manslaughter, racketeering, drug possession and trafficking, fraud, medicaid fraud, illegal possession of guns and ammunition, sex offenses, DUI, domestic battery, assault, aggravated assault, and other misdemeanors.  Civil case?  Wrongful death, ski injuries, defective design of Ford Expedition, personal injury automobile accident, truck accidents, defamation, malpractice, breach of contract, fraud, and defective products.  Need a lawyer?  Like Bob Battle says, choose wisely.   

• Email This
• Print
• Comments
• Trackbacks