Troy, Michigan Criminal Law Blog

Mr. Freeman was interviewed by CBS Radio in New York and the Detroit Free Press after the infamous underwear bomber, Umar Farouk Abdulmutallab, plead guilty to eight charges that will send him to prison for life. 

Mr. Freeman says that the guilty plea probably came as a relief to prosecutors.  "Anytime you put a case in front of a jury, there always are risks," Freeman said. "I've seen plenty of cases where you were expecting a certain result and the jury surprised everyone in the courtroom." 

To read the entire article please visit the Free Press online.

Whether you are on Facebook, MySpace or Twitter, law enforcement agencies are focusing on social media as a source for criminal activity. The NYPD has implemented a new social media unit to track leads and suspicious activity on sites such as Facebook. They look for things such as out-of-control house parties and unsolved crime. Law enforcement has found that people tend to brag about criminal activity through Facebook posts and Tweets.

Recently, a federal court held that Facebook posts and information is admissible in court, and can be used against you. The case involved a plaintiff claiming damages from a car accident. The court allowed information from his Facebook page, such as status posts and pictures, to be used to prove that the plaintiff wasn't suffering from the damages he claimed. He claimed he could not walk, sit, stand or ride in a vehicle. The information from Facebook revealed the plaintiff was going on motor cycle trips and "riding a mule."

The Pennsylvania Federal District Court acknowledged that the discovery into social media sites "requires the application of basic discovery principles in a novel context" and that "the challenge is to define appropriately broad limits ... on the discovery ability of social communications." The Court held that the information from the plaintiff's Facebook was discoverable material.

Bottom line, be careful what you post on the internet. Whether its Facebook or Twitter, understand that there is a chance this information may be used against you. Remember the internet is an open, public forum, and you never know who is following your news feed.

Just a few miles may make a difference on whether you are sent to jail or on probation for a first-time drunk driving offense.

A recent drunk-driving case in West Bloomfield demonstrated the discretion that District court judges have in sentencing offenders. Defendant, and former NBA star, Jalen Rose was arrested in West Bloomfield for drunk driving. The district court judge sentenced him to 20 days in jail.

Just a few miles away in Pontiac, Michigan state statistics show Rose's chance of being sentenced to jail in a Pontiac court is almost 0.

For misdemeanors, including first-offense drunk driving there are no guidelines. This means judges have the discretion to sentence offenders as they choose within the statute. For example, an offender who's blood alcohol content was double that of another offender could possibly receive a lesser sentence. Unlike felony cases, offenders are not categorized or scored a guideline range based on their culpability, impact on the victim, or previous character.

Additionally, states like Alaska, Tennessee and Georgia require mandatory jail time for first time drunk driving offenders. While California, Connecticut and Indiana don't require jail for first time offenders. And in Wisconsin, first-offense drunk driving isn't even a crime. It's a civil infraction that results in a ticket, with no potential for any jail time.

While Michigan law allows a first-offense drunk driver to be sentenced to up to 93 days in jail, District court judges have discretion. So, depending on which city you are in, minor in possession consequences can range from jail time to community service. Similarly, other misdemeanors have statutory limits but judges are free to punish offenders within those limits. Therefore, consequences for offenses including retail fraud, assault and battery, assault and battery, larceny, destruction of property, minor in possession of alcohol and other state misdemeanor offenses may depend on where events occur.

Whether you were arrested in West Bloomfield, Pontiac, or miles away in Detroit, your sentence for the same offense may be different. You need an experienced criminal defense attorney to fight for your rights and freedom.

In a recent Detroit Free Press article, Attorney John Freeman commented on the Skelton plea deal.

John Skelton pleaded no contest to unlawful imprisonment after his three young sons disappeared last November. Under the plea deal, the charges of kidnapping -- punishable by up to life in prison -- were dismissed, however Skelton may face up to 15 years in prison on the unlawful imprisonment charge.

Mr. Freeman commented on the plea deal:

"John Freeman, a defense attorney and former federal prosecutor based in Troy, said the prosecutor has now left the door open to charges that could lead to a mandatory life sentence.

He speculates that if prosecutors thought they could prove murder, they would not be satisfied with a 15-year-sentence -- so they may have concluded that the strongest evidence they have is on the charge he pleaded to.

"They simply don't want to run the risk of letting somebody, who they believe may be responsible for the death of three young children, they just don't want to see him walk," Freeman said."

Click here for the full story

According to a recent article by the Detroit Free Press, Detroit has become a major supplier of OxyContin - also known in the street as Blue, Kicker, and Hillbilly Heroin - to states as far away as Maine. According to a veteran Assistant U.S. Attorney in Detroit, who works in the same office that Mr. Freeman worked in from 2000 to 2007, Detroit has been a source of supply of OxyContin down the I-75 corridor.

Law Enforcement officials claim that OxyContin dealers have been traced back to Detroit on numerous occasions from states such as West Virginia, Ohio, Kentucky, Alabama, and Maine. In particular, the U.S. Attorney's Office in West Virginia has handled more than a dozen prescription pill cases since the first of the year-and all of them involved a Detroit defendant.

The metro Detroit connection isn't all that complicated. According to the Free Press, Detroit does not have a larger supply of pills, or pill-pushers, rather it all begins with the prescribers. Dealers say that they spend a few days in Detroit hustling scripts from local doctors and pharmacists, and get people to go to the doctor. Then they bundle up the pills and head south where pills can sell in other states for roughly $100 per pill. The U.S. Attorney's Office in West Virginia isn't the only one claiming a Detroit link. Other states such as Maine and Ohio claim to see the trend.

Law enforcement's publicly proclaimed strategy is not complicated - attack the supply (and forget about treatment and demand reduction). Indeed, prosecutions are beginning to focus on the local doctors and pharmacists responsible for converting a prescription into an actual pill. "We're trying to attack from the top as much as we possibly can," said Rich Isaacson of the DEA's Detroit office.

The DEA is targeting doctors and pharmacies that prescribe and sell large quantities of OxyContin. Recent prosecutions range from doctors, pharmaceutical suppliers, physicians, and even pharmacists.

With Detroit as a major focus for federal law enforcement regarding illegal prescription drugs, I anticipate we will begin to see an increase of criminal prosecutions. Not only will hand-to-hand sellers begin feeling the heat from the government, but local physicians and pharmacies will be under the microscope. If you are being investigated by the government you need to contact an experienced criminal defense attorney.

While certainly a politically charged and divisive issue, immigration has been at the top of the federal government's priority list, particularly since the terror attacks of September 11. Recently, the government is spending more resources to catch illegal immigrants living in the United States. Because of our border with Canada, Michigan has become a hunting ground for US Immigration and Customs Enforcement (ICE) officials. The number of prosecutions related to illegal immigrants has tripled in the last 3 years.

The federal government is taking a stronger stand on prosecuting immigrants who are in the United States illegally by charging them with felonies in federal court, which, if convicted, will prevent them from obtaining legal status as a US citizen in the future.

The maximum penalty for illegally re-entering the U.S. ranges from two years for first offenders to 20 years for those deported after convictions for a serious felony in the U.S.

Recently, the U.S. Attorney in Detroit, Barbara McQuade reportedly said "When people are here illegally and engaging in criminal behavior, or repeatedly disregarding deportation orders, we have an obligation to enforce and promote respect for the law."

However, many criminal defense attorneys and some judges feel that the federal government is wasting resources and space in the jails. Many of the illegal immigrants now being prosecuted are those who are here to work, have minor run-ins with the police, and face six months or less in federal custody. Critics say these types of individuals should be deported quickly, not prosecuted.

Some legal experts say prosecuting illegal re-entry cases is an easy way for authorities to make the public think they're combating illegal immigration. "On paper, it looks great, but in reality, who are they prosecuting? And what are they prosecuting them for?" said David Leopold of Cleveland, president of the American Immigration Lawyers Association. "I'm not sure this kind of use of tax dollars is making America safer."

Detroit's Chief Federal Defender, Miriam Siefer told the media recently that "The vast majority of these cases involve guys who have gotten picked up on traffic offenses and have nothing to do with national security."

Additionally, many critics are concerned that the government is using racial profiling to target illegal immigrants. Although they support the task of attacking illegal immigration in the United States, they are concerned that legal immigrants are being stopped in a search for illegal immigrants.

Hedge-Fund Mogul Raj Rajaratnam Sunk by Wiretap Evidence

Last month, a U.S. District Court jury in New York convicted Raj Rajaratnam, co-founder of hedge giant The Galleon Group, of fraud and conspiracy after two and one-half weeks of deliberation. As the principal player in the nation's largest illegal stock-tipping case since Ivan Boesky in the 1980s, Rajaratnam may be compelled to surrender millions in profits gained from his illegal activities. He also faces potentially 25 years in prison when he is sentenced on July 29.

A major player on Wall Street, Rajaratnam became the target of the government's latest concentrated effort to stop insider trading in large part because of his success. After graduating from the Wharton School at the University of Pennsylvania, Rajaratnam rapidly ascended the ranks of Wall Street. In 1997, at the age of 39, he founded The Galleon Group with three other colleagues from Needham and Company. The Galleon Group rapidly distinguished itself as an innovator. In its first year it managed $830 million in assets. At its zenith, it managed over $7 billion.

According to Rajaratnam, the distinguishing feature of his fund was the aggressive research performed by his analysts. While the government conceded the fund did perform extensive studies of the publicly traded companies it invested in, government lawyers disputed defense claims that Galleon's success could be entirely attributed to tracking down publicly available information. Galleon traders provided the prosecution with troubling testimony about the firm's practices and culture. The hedge-fund managers stated that they were pushed to do whatever was necessary to obtain information about a company's quarterly revenue, earnings, contracts and takeovers.

A major issue in the trial was the damaging admission into evidence of over 40 wiretapped telephone conversations Rajaratnam had with sources. Rajaratnam could be heard receiving confidential information from informants. The defense's motion to have the recordings excluded from trial was denied in November, setting the stage for Rajaratnam's eventual conviction. Jurors stated the recorded conversations significantly bolstered the prosecution's position and played a significant role in their deliberations.

The Basics of Wiretapping

Wiretapping has typically been used for building cases against organized-crime families and drug traffickers. The jump to white-collar crime marks a bold new direction in government prosecution.

With such a powerful tool, the government can be expected to use wiretapping extensively in future insider-trading investigations. Prosecutors should not expect this new tactic to go unchallenged. Wiretapping raises significant concerns over privacy rights. Defense attorneys are likely to heavily scrutinize and aggressively challenge the use of wiretap evidence in the white-collar criminal arena.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 is the existing law governing wiretapping. The law was created to help law enforcement officials fight crime effectively, while theoretically guarding an individual's right to be protected from unreasonable searches and seizures.

Before a judge may issue a wiretap order, he or she must be satisfied that all of the following requirements have been met:

• Sufficient probable cause exists to believe an individual is committing a prohibited offense.
• Sufficient probable cause exists to believe that communications about that crime will be obtained through the use of a wiretap.
• Traditional methods of investigation have either been unsuccessful, likely to fail or would be too dangerous to attempt
• Sufficient probable cause exists to believe the place or facilities where the wiretap will be utilized are being used or will be used to commit the crime stated.

Wiretap laws are also specific about the contents of the wiretap orders themselves. Orders must be narrowly tailored to the person being recorded, the location of the wiretap, the materials to be intercepted, the persons authorized to execute the wiretap and the length of time approved for gathering the evidence.

Recent Michigan Cases

White-collar cases are not confined to Wall Street. The government is aggressively pursuing purported Ponzi schemers in Michigan. According to the Securities and Exchange Commission, "A Ponzi scheme is an investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors."

John Bravata, a Brighton, Mich., entrepreneur, was arrested by federal agents in May. Bravata, who is currently facing allegations of fraud brought by the SEC, is being criminally charged by the U.S. Attorney's Office with one count of wire fraud stemming from an alleged Ponzi scheme he built with his real estate development business, BBC Equities.

Bravata is accused of lying to investors regarding how their investments would be used, how secure they were and how much profit could be expected. The criminal complaint alleges Bravata converted funds earmarked for real estate investment directly into his pocket. The prosecution believes Bravata paid himself approximately $3.5 million in wages and commissions between 2006 and 2009. Investors were supposedly told he would receive nothing. He is currently free on a $100,000 bond.

Two other Michigan men are similarly accused of running a Ponzi scheme. On June 3, 2011, the Securities and Exchange Commission filed civil charges against Ronald Abernathy and Arthur Weiss, alleging $560,000 in securities fraud violations. Abernathy and Weiss created an investment company, Sovereign International Group, LLC, which was supposed to invest in securities, art, precious metal ores and other capital ventures.

The complaint states the men baited potential investors with lies. Abernathy and Weiss allegedly told investors that they were going to be purchasing a Major League Baseball franchise with fellow investors, Ted Turner and Paul Allen. According to the filing, neither of the men invested any of the money they received from investors. They simply paid out the funds to other investors or used the money for their own personal expenses.

If you are being accused of creating a Ponzi scheme, insider trading or any other white-collar crime, it is crucial you receive good advice from an experienced attorney. You should contact a local criminal defense lawyer to discuss your alternatives.

Those familiar with the criminal justice system understand that what you see, isn't always what you get. Many people are charged with crimes, but often some of these people don't end up with convictions. There are statutes that allow for certain defendants, usually first time offenders, to escape a criminal conviction by successfully completing probation or other conditions set by the court.

On the state-level, typically such resolutions happen when the offender is young, or is alleged to have committed a first-time misdemeanor domestic-violence offense, or is charged with a first-time drug possession offense.

On the federal-level, such resolutions are generally reserved for low-level offenses where the person can make restitution and the prosecutor believes that justice does not require a felony conviction. On the federal-level, such a favorable negotiated outcome is typically not available in complex cases, or civil cases involving securities fraud and bribery - until now.

On May 17, 2011, the Securities and Exchange Commission changed the landscape for white-collar defendants. For the first time, the SEC entered into a deferral agreement with Tenaris, a company that was alleged to have been involved in bribery of Uzbekistan officials to win lucrative contracts in state-owned oil and gas industry.

A deferral agreement is an agreement between the government and the defendant in which the government agrees not to prosecute the defendant (with civil or criminal charges) if he complies with the conditions set by the government for a specific amount of time. The deferral agreement between the SEC and Tenaris is a two year agreement in which Tenaris agreed, among other things, to enhance its policies, procedures, training, and controls to strengthen compliance with anti-corruption practices. Once Tenaris complies with the terms of the agreement, and the two-year term is over, the SEC will refrain from prosecuting the company in a civil action for its violations.

This is the first time the SEC has employed any sort of deferral agreement. According to an article on Law.com, the SEC has been looking for the right case and company for its first deferred prosecution agreement. A spokesperson from the SEC said Tenaris was offered a deferral agreement after Tenaris discovered the bribes and voluntarily reported them to the SEC and the Department of Justice (DOJ), and then continued its cooperation.

These types of agreements allow the government to give offenders a second chance while the government oversees their actions for a probationary period. These agreements promote rehabilitation and seek to avoid lengthy and costly litigation. However, when working with these agreements it is important to understand which government entities are promising not to prosecute and what specifically they are agreeing to let go. In many cases, for example, the SEC may promise not to prosecute an offender on civil charges in exchange for cooperation. However, unless it is specifically stated in the deferral agreement, this does not guarantee that DOJ or other state or federal prosecution officials will honor the deferral agreement and decline to prosecute.

In the Tenaris case, Tenaris not only received a deferral agreement from the SEC that would preclude civil action against them, Tenaris agreed to pay a $3.5 million criminal fine and enter a non-prosecution agreement with the Department of Justice, which will protect them from criminal proceedings.

In short, the SEC's use of a deferral agreement in the civil arena is encouraging. However, caution must be exercised to ensure that any deferral agreement accounts for all possible adverse consequences, even at the hands of other agencies.