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Fifth Amendment Right Not to Incriminate Oneself Also Applies to Post-Arrest Silence
Posted by: euser
June 19, 2009
Topic: Fifth Amendment Rights

The Fifth Amendment to the United States Constitution contains a right basic to our criminal justice system. It provides that no person can be compelled to be a witness against himself.

Many believe that this right is meant to protect only the guilty; this, however, is wrong. The Supreme Court of the United States has on more than one occasion spoken out against this improper assumption. In the case of Ohio v. Reiner, 532 U.S. 17, 21 (2001), the Supreme Court set forth the reasons why the Fifth Amendment is not meant to protect only the guilty.

We have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's basic functions ... is to protect innocent men ... who otherwise might be ensnarled by ambiguous circumstances.

Grunewald v. United States, 353 U.S. 391, 421 (1957) (quoting Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 557-558 (1956). Prosecutors often seek to introduce silence of the defendant as an admission of guilt. In the case of Cowan v. State, 3 So. 3d. 446 (Fla. 4th DCA 2009) a conviction for burglary was reversed because of the prosecutor's improperly exploring the defendant's right to remain silent after arrest.

In Cowan, the defendant was arrested with another person suspected of burglary, and both men were placed in the back seat of the police car. As is the common practice of most police departments, the police car had a device to record any conversations.

In this particular case the prosecutor sought to admit excerpts of the recording. In the tape that was played, the person arrested with the defendant was heard to be saying, "Damn, you think they caught us for the home invasion, home burglary?" and also saying "Hey, we did not leave anything in there?" The prosecutor argued that the defendant's lips seemed to be moving and that he appeared to say, "They've got it. They've got it."

Later the defendant testified in his own defense, denying any involvement in the burglary. He testified that he did not say anything while seated in the police car and, on cross-examination as to why his mouth seemed to be moving as in speech, he denied his lips were moving. He also denied ever saying, "They've got it. They've got it." The defendant explained that he remained silent in spite of his companion's declarations, because he was angry at being arrested. The prosecutor then asked the following questions:

Q Did you at any point say to him: "What are you talking about ? What burglary?"

A No, because I was mad and he got me arrested.

Q How come you didn't say: "What burglary are you talking about?" How come you didn't say that?

A I don't know what you're talking about.

The defense counsel had objected to this line of questioning.

In closing argument the prosecutor argued to the jury that it would have been a reasonable reaction for a normal person to deny that statement or least to say that he didn't burglarize anybody, or why are you including me, or what burglary - anything along those lines indicating that the defendant was not part of the burglary.

The court ruled that the tape recordings might have been legally admissible on the issue of refuting the defendant's testimony that he did not say "They've got it" since that was a matter for the jury. The court wrote:

But we do not agree that any attempt at impeachment justifies cross-examination about things he did not say and corresponding argument set forth above. In other words, we draw a distinction between evidence of voluntary inculpatory comments by a defendant under arrest, on the one hand, and defendant's silence - the absence of speech - on the other. The comments would be admissible because declarations by an accused then could be deemed his own voluntary statements. The video record would therefore be admissible to show actual speech by defendant but not for any purpose involving an exercise in silence.

Cowan, 3 So. 3d at 449.

The court went on to state that post-arrest custodial silence of a defendant is simply not admissible as evidence of guilt and is not the proper subject of argument. The court cited to the Supreme Court, to the case of Doyle v. Ohio, 426 U.S. 610 (1976).

The U.S. Supreme Court, in Doyle v. Ohio, noted that, in light of the Miranda warnings that are required to be given to an arrested person, every post-arrest silence is "insolubly ambiguous because of what the state is required to advise the person arrested." Doyle v. Ohio at 618.

This is but one example of many instances in which prosecutors attempt to introduce post-arrest silence as a means of establishing guilt. Defense counsel must always stay alert to ensure that this violation of the basic constitutional right is not allowed to happen.

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Florida Appellate Court Reverses Two Life Sentences for Charges of Sexual Battery Upon Two Minors Under 12 Years Old.
Posted by: euser
June 03, 2009
Topic: Rape / Conviction Overturned

The court's ruling establishes important guidelines for jury instructions in rape cases. 

In the case of Brown v. State, 34 Fla. L. Weekly D1016a, 2009 WL1424047 (Fla. 2d DCA May 22, 2009) the court reversed two life sentences for sexual battery committed upon two persons under the age of 12. The court was called upon to answer a significant question concerning proper jury instructions in rape cases.

Sexual battery, especially of a minor under 12 years of age is one of the most serious crimes for which a person can be convicted. It not only carries a life sentence, but even the stigma of being accused of such a charge has a devastating impact. While such a crime is reprehensible, it is also subject to false allegations by alleged victims for many different reasons.

I have on numerous occasions been involved in cases where minor children have made allegations of sexual abuse that have been shown to be untrue. Such false allegations can be caused by any number of reasons, including the desire to live with the non-custodial parent after a divorce and the dislike of a stepparent; the remarriage of both parents; discipline which a child resents; and the failure of a parent, stepparent or relative to provide certain gifts or things which the child wants.

Unfortunately, those who investigate these crimes often believe that whatever the child says is true. I have actually been told by sex crimes investigators that victims do not lie. This obviously is incorrect.

Mr. Brown was sentenced to two life sentences for sexual battery on his two nieces. The crimes were alleged to have occurred between 1983 and 1987. In 2006, over 20 years after the alleged crimes started, the two sisters reported the matter to law enforcement officers.

There was absolutely no corroborating evidence to support the allegations, nor any admissions of guilt by Mr. Brown, nor any evidence of other crimes committed by Mr. Brown.

The court noted that in addition to no corroboration there had been no complaints of sexual abuse by either of the alleged victimsuntil 2006, and no other witness corroborated their testimony, nor was there any physical evidence of any type introduced.

The prosecutor asked the court to give an instruction based upon section 794.022(1), Florida Statutes. This statute provides that the testimony of the victim need not be corroborated in a prosecution under section 794.011, Florida Statutes (the sexual battery statute).

The defendant's attorney objected to the instruction however, the court overruled the objection and gave the following instruction to the jury "the testimony of the victim need not be corroborated in a prosecution for sexual battery." This was the issue which the court considered. The defendant raised no other issue in the appeal.

The court then analyzed the jury instruction and noted that it was a comment on the evidence.

Florida discourages judicial comment on the evidence by the trial judge to the jury. It has long been recognized in Florida that great care should always be observed by the judge to avoid any remark to the jury that is capable directly or indirectly of conveying what view the judge takes of the case, or that states the judge's opinion as to the weight, character, or credibility of any evidence of testimony. Raulerson v. State, 102 So. 2d 281 (Fla. 1958).

Section 90.106, Florida Statutes, also limits the judge from commenting on the evidence, wherein it states that "a judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused."

The court then goes into the history of section 749.022(1). This statute originated in 1974 as part of a change to the sexual battery statute. The statute set forth that testimony of the victim need not be corroborated in prosecutions under the sexual battery statute.

When this change was made to the standard jury instruction on rape in Florida it contained the following:

"If the testimony of the female is not supported by other evidence, her testimony should be rigidly examined, especially as it relates to the nature and extent of the force used and as it relates to the question of whether consent was ever finally given...."

This instruction was omitted from the standard jury instructions following a change in the statutes. Also, in 1983, section 794.022(1) was amended to delete the clause authorizing the trial court to instruct the jury on the weight of the evidence and was later confirmed by a Florida Supreme Court opinion, Marr v. State, 494 So. 2d 1139 (Fla. 1986).

The court in Marr noted that the credibility of witnesses is a proper subject for argument by the attorneys, but not comment by the court.

The appellate court in Brown concluded that the special instruction given was likely to confuse and mislead the jury. It also noted that section 794.022(1), Florida Statutes was directed at appellate review of convictions and the sufficiency of evidence in sexual battery cases. This is an entirely separate question from whether the jury should accept the uncorroborated testimony; and, therefore, the instruction should not have been given to the jury.

The court reversed both convictions.

This case is not unique in Florida or other states. Here, a prosecution was based upon allegations that were not made until 19 years after the alleged criminal conduct ended. Such a case involves problems for both the state as well as the defense. In order to avoid conviction of an innocent person jury instructions which unfairly tilt the case to the state's advantage should be avoided. The jury instruction in this case is an example of when an improper jury instruction can lead to an improper conviction.

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Internal Revenue Service Amnesty Program
Posted by: euser
May 14, 2009
Topic: I.R.S. Amnesty Program

The I.R.S. has announced an amnesty program that allows U.S. citizens and residents to avoid criminal prosecution and reduce civil penalties for unreported offshore accounts.

Many Americans have offshore accounts with banks and other financial institutions. While it is legal to have offshore accounts, a person must report all accounts over $10,000.00 to the I.R.S.. The reporting requirements include the yearly filing of Report of Foreign Bank and Financial Accounts, Form 90-22.1 (also known as FBAR). In addition, the personal income tax return Form 1040 requires disclosure of foreign accounts over $10,000.00. Failure to file the FBAR, if done willfully, is a crime punishable by imprisonment of up to five years, or under certain circumstances, ten years (31 U.S.C. § 5322). Each year the FBAR is not filed, constitutes a separate crime.

This willful failure to disclose the foreign account on the personal income tax return can result in imprisonment up to three years as a false statement on the return in violation 26 U.S.C. § 7206.

In addition to the criminal punishment of imprisonment and criminal fines up to $500,000.00, the I.R.S. also has significant civil penalties which range from $10,000.00 per violation for non-willful violations, to $100,000.00 or 50 percent of the amount in the account at the time of the violation for a willful failure to file the FBAR.

Since each year is a separate violation, the amount of the civil penalties can be staggering. These civil penalties may be only part of the account holders problem if the yearly earnings on the account were not disclosed on the tax returns. Civil penalties may be as high as 75 percent of the unpaid tax on the unreported income, together with the 50 percent additional interest penalty.

Faced with potential incarceration and massive financial penalties, a person should seriously consider the I.R.S. amnesty program that was announced on March 23, 2009. Under the amnesty program, a person must file FBAR's and amended returns for the last six years and pay tax on the unreported income. In addition, there will be an accuracy or delinquent penalty on all years, together with a penalty equal to 20 percent of the amount in foreign accounts in the year with the highest aggregate value. Under certain circumstances the penalty will be reduced to 5 percent of the highest amount in the foreign account.

A comparison of the civil penalties and taxes under the amnesty program with the penalties and taxes that a taxpayer could be facing if the I.R.S. discovers the existence of a foreign account reveals that serious consideration should be given to taking advantage of the amnesty program which is scheduled to end on September 23, 2009.

The financial benefit of the amnesty program can be seen in this hypothetical example:

A foreign bank account was opened with $250,000.00 in 2000, earning 5 percent per year. No taxes were paid on the $250,000.00 in 2000 when it was earned. Under the amnesty program, the person must file amended returns for the last six years. The income taxes, delinquency penalties and penalties for not filing the FBAR, total approximately $113,000.00 with an assumed tax rate of 33 percent.

Without the amnesty program, the taxes will be assessed from the opening of the account, the civil fraud penalty will probably be imposed and the FBAR penalties will be imposed at the rate of 50 percent for each year. The approximate total of taxes and penalties will, without the amnesty program, be $1,680,000.00.

According to the Commissioner of the I.R.S. the amnesty program is designed to offer Americans an opportunity to "come clean" with the government. This opportunity not only avoids huge civil penalties, but also the potential conviction of a crime and imprisonment.

The I.R.S. amnesty program requires the utmost care in preparing the required returns and FBARs. Contacts with the I.R.S. should be through a representative. Because of the possibility of criminal prosecution, if the terms of the amnesty program are not properly complied with, that representation should be by an attorney experienced in the defense of criminal tax matters.

For more information, visit the section on Federal Criminal Tax Evasion on our website.

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F.B.I. And Other State And Local Officials Putting an Emphasis on Investigating Mortgage Fraud
Posted by: euser
May 11, 2009
Topic: Mortgage Fraud

Law enforcement officials, including state police authorities, the F.B.I. and state authorities, have given a high priority to mortgage fraud investigations.

One area of interest to authorities is the purchase of multiple properties using false statements to financial institutions to obtain a loan. Investigations target mortgage brokers, real estate appraisers, purchasers, and banking officials who have engaged in conduct that involves knowingly taking part in false loan applications.

Certain conduct raises a red flag including; (1) multiple purchases in which the buyer represents each house as the principle residence; (2) using a straw purchaser to get credit; and (3) mortgage brokers or real estate brokers improperly colluding with real estate appraisers to over-inflate real estate appraisals.

In addition, the use of false Social Security numbers, inflated representations of income, false tax returns, and other documentation falsely exaggerating income, are all items which may lead to an investigation and prosecution.

A person may have intentionally provided false information or may have unintentionally been used by others in the real estate, mortgage, or banking businesses who seek to receive their bonuses or commissions.

Likewise, those in the real estate and banking profession sometimes are the subject of unscrupulous buyers and borrowers.

Because federal sentencing guidelines are driven by the amount of potential loss to a bank or lending institution in determining the sentence, a first-time offender may find themselves facing incarceration, even though they have no prior criminal record.

It is important to treat all allegations of mortgage or bank fraud seriously since, even if incorrect, without proper representation, a criminal prosecution may occur.

This firm has seen a significant increase in mortgage fraud investigations and an aggressive stance being taken by all law enforcement officials. Early representation by an attorney experienced in mortgage and bank fraud defense is important to protect against investigations, prosecutions, and imprisonment for mortgage and banking fraud.

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Criminal Tax / Failure of Employer to Collect Withholding Tax
Posted by: Mark Horwitz
April 16, 2009
Topic: Criminal Tax / Failure of Employer to Collect Withholding Tax

Failure to collect and pay over federal withholding tax if done willfully, constitutes a crime punishable by up to five years imprisonment. Defending such charges may involve proof of reliance by the business owner upon the advice of an accountant.

The Internal Revenue Service, through its special agents, investigates crimes involving taxes, including the willful failure to collect and pay over what is commonly known as withholding taxes. Title 26 U.S.C. § 7202 provides imprisonment for up to five years plus a fine of up to $10,000.00 upon conviction. If the IRS believes that it can prove that the defendant acted willfully, it will submit the case to the United States Justice Department for prosecution.

The criminal punishment, including up to five years imprisonment per charge, is in addition to the civil liability upon the business, as well as the person individually. Civil liability includes payment by the business of the amount of tax that should have been withheld from the employees, together with the contribution due from the employer, plus penalties (additional money). The civil impact is that the employer winds up having to pay significantly more money then if the taxes had been properly collected and paid over originally. The business owner and responsible person will also be personally responsible. If prosecuted criminally, the defendant loses his liberty.

Last year, I defended Robert Bishop who was tried on 12 felony counts of willful failure to collect and pay over withholding tax. Each count represented the failure to collect and pay over taxes during a 3 month period. Mr. Bishop did in fact collect and pay over taxes, however, he did not collect and pay over the proper amounts. Because of the 12 felonys, Mr. Bishop potentially could have been sentenced to 60 years imprisonment. Under federal sentencing guidelines if convicted, he would have been in a range of 5 to 6 years of imprisonment.

The defense was based upon a lack of willfulness, that is, Mr. Bishop did not understand his legal duty and therefore, did not intentionally violate that duty as it pertained to the collection and paying over of withholding taxes.

While Mr. Bishop did pay over everything that he collected, he did not collect the right amounts and furthermore, did not collect on certain employees whom he believed to be temporary employees and therefore, incorrectly thought were not subjected to withholding. During the trial the defense was that Mr. Bishop relied totally upon his accountant as to which workers were subjected to withholding and the amounts of withholding to be applied to workers from whom he had to withhold taxes.

What made the defense difficult was the accountant's denial of the advice to Mr. Bishop.

The defense was able to convince the jury that Mr. Bishop did rely on the accountant by discrediting the accountant through cross examination.

The end result of the trial was that Mr. Bishop was acquitted by the jury on all 12 of the felonys. He still faces significant civil penalties, that is the payment of taxes, interest and penalties. He was not however, convicted of a crime and sent to prison.

A lesson that all business owners who are involved in the collection and paying over of taxes and the related filing of quarterly 941 tax returns, must be sure that their accountant is well trained, knowledgeable and has all pertinent information. To protect oneself the business owner should be able to establish what information was provided to the accountant. An accountant may later contend that he or she did not receive all information necessary to prepare the returns properly and did not advise the client as to the withholding issues.

The cross examination of the accountant in the Bishop case by Mark L. Horwitz was included in the publication: Criminal Trial Techniques authored by F. Lee Bailey and Kenneth Fishman and published by Thompson West. The cross examination was included in the yearly supplement and commented on by Mr. F. Lee Bailey.

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