Posted On: November 20, 2009

Consecutive Sentences for Multiple Victims Upheld, No Mitigation without Justification on Record

The Superior Court of Pennsylvania decided the case of Commonwealth v. Garcia-Rivera earlier this month, in which Melvin Garcia-Rivera had entered an open plea of guilt and was sentenced to two counts of involuntary manslaughter. Garcia-Rivera was charged in connection with a motor vehicle accident in which his two passengers were killed. The standard sentencing guideline for involuntary manslaughter is nine (9) to twenty-three (23) months imprisonment, which is increased or decreased based on aggravating or mitigating circumstances respectively.

Garcia-Rivera entered an open guilty plea submitting to sentencing by the Cumberland County Court of Common Pleas. At sentencing, his lawyers argued he was extremely remorseful, fully employed, cooperating with the victims’ attorneys in the civil trials and cooperating with the state Attorney General’s office in an ongoing investigation. The trial court sentenced Garcia-Rivera to the standard nine (9) to twenty-three (23) months incarceration for the first count, to be followed by a consecutive twenty-three (23) month period of probation for the second count. The court, on record, stated that Garcia-Rivera did not have a criminal record or troubled history, thereby meriting probation for the second count rather than consecutive prison terms. However, the court reasoned that the twenty-three (23) month probation, to be served consecutively with the prison term, still fell within the standard sentencing range.

On appeal by the Commonwealth, The Superior Court remanded the case for sentencing, finding the twenty-three (23) month probation actually fell in the mitigated sentencing range for involuntary manslaughter. The opinion referenced all of the mitigating factors discussed on record during Garcia-Rivera’s sentencing hearing, however found that the trial court based its decision solely on his not having a criminal record; a factor already considered in standard sentencing guidelines versus increased sentencing. Therefore, the Court found the sentencing judge was not justified in sentencing the defendant to probation and remanded the case for resentencing; for either mitigating factors to be considered on record in sentencing, or for a second consecutive prison term to be served.

Garcia-Rivera counter-argued that the trial court erred in sentencing him to consecutive sentences for the same act. Counsel for Garcia-Rivera argued that because both victims were killed in the same accident, the defendant should not be sentenced for each death but rather have two deaths factored into his one sentence. The Superior Court based their decision on Pennsylvania’s REAP statute, which states a person is guilty of reckless endangerment when s/he put another person in danger of death or serious injury. The Supreme Court has held the REAP statute could be used to impose multiple sentences for multiple victims, in a case where defendant recklessly drove his vehicle into a crowd of people. In the case of Commonwealth v. Frisbie, the Supreme Court reasoned that if the REAP statute provided for one sentence where multiple victims were put in danger, the statute would read another person or persons, rather than just a single person.
Sentencing

A sentencing hearing is held following a plea of guilt or a finding of guilty at trial. The purpose of the hearing is to hear both mitigating and aggravating factors, which may affect the duration of a defendant’s sentence. Some crimes carry mandatory minimum sentences, while others use guidelines which are advisory. Often times, a defendant can lower the level of his offense through mitigation; for example, cooperating with and assisting Police in an on-going investigation. There are other mitigating factors which are used to reduce a defendant’s sentence as well. An experienced criminal defense attorney is well versed in these mitigating factors, and can assist the defendant in reducing a potential sentence. If you have been charged with, or believe you are under investigation for a crime, please do not hesitate to contact the Law Offices of Marc Neff for a confidential consultation.

Posted On: November 16, 2009

Attorneys Not Subject to Criminal Penalties under Federal Money Laundering Statute

The United States Court of Appeals for the Eleventh Circuit held attorneys cannot be penalized criminally for accepting tainted money from clients, under a Federal money laundering statute. The Federal statute, 18 U.S.C. § 1957, excludes “any transaction necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution” from criminal penalties associated with money laundering; knowingly engaging or attempting to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity. The funds remain subject to civil forfeiture, but attorneys who accept such funds for attorney fees, in accordance with legal representation, have not committed a crime.

In the case of U.S. v. Velez, Kuehne, and Ochoa, a Miami attorney, Benedict Kuehne, was hired by the defense team of a reputed Columbian drug lord to examine the source of funds used to pay Defendant’s legal fees. Kuehne enlisted the assistance of a Columbian attorney and a Columbian accountant, to help examine the money trail. After careful examination, Kuehne wrote opinion letters finding the money was legitimate and forwarded the $5.3 million which had been paid to him, as an intermediary, to the defense team. The Government alleged Kuehne had used falsified documents in determining the legitimacy of Defendant’s funds.

The District Court dismissed the count of the indictment relating to money laundering, holding transactions made for the purpose of securing legal representation were exempt under Federal statute. On appeal, the Circuit Court affirmed the ruling, differentiating the criminal statute from civil forfeiture. The statute governing civil forfeiture, 21 U.S.C. § 853, contains no exemption for funds paid for legal representation. In Caplin & Drysdale, Chartered v. U.S., the Supreme Court of the United States refused to read into the statute an exemption for criminal proceeds used to pay attorneys’ fees, stating Congress has the authority to legislate such a clause should they so choose. 18 U.S.C. § 1957, rather, explicitly exempts such transactions from criminal penalty.

Velez exemplifies the exemption in the Federal money laundering statute for transactions relating to legal representation. Although funds accepted for legal representation may be forfeited civilly if investigation reveals those funds are tainted, an attorney is not subject to criminal penalties for accepting those funds. The Sixth Amendment’s guaranteed right to legal representation in criminal proceedings should not be infringed upon by attorney apprehension of criminal penalty, solely for acceptance of payment.

For a confidential consultation in matters involving money laundering or serious felony drug crimes, contact the Law Offices of Marc Neff at (215) 563-9800 or email Marc@nefflawoffices.com.

Posted On: November 12, 2009

Police Cannot Prolong Investigations for Purpose of Increasing Potential Penalties

The Pennsylvania Superior Court decided the case of Commonwealth v. Smith lat month, remanding the case back to the trial court in order to determine proper sentencing. Smith was arrested and charged with four counts of possession of cocaine, four counts of intent to deliver cocaine, and three counts of delivery of cocaine. The arrest occurred following a prolonged police investigation, during which the defendant, Smith was observed committing four separate narcotics transactions. Smith was sentenced in the Court of Common Pleas, Allegheny County, to seven to fourteen years imprisonment, in accordance with Pennsylvania’s mandatory minimum sentencing statute.

Smith appealed his sentence to the Pennsylvania Superior Court, arguing the police purposely manipulated their investigation in order to increase the mandatory minimum associated with his sentence. In fact, a first offense carries a mandatory minimum of three years, five years for a second conviction, and ultimately seven years for subsequent convictions. Smith’s position was that the police could have arrested and charged him following the first or even second observed offense, rather than allowing him to continue his illegal activity. Judge Klein wrote the opinion of the Superior Court, remanding Smith’s case to the trial level for further examination. In the opinion, Judge Klein explained that police are well within their powers to delay making an arrest, if the purpose of prolonging their investigation is for example, to determine a supplier or a more important member of a criminal conspiracy. However, if the purpose of the prolonged investigation is merely to increase the potential sentence associated with a conviction, the Court must impose the mandatory minimum sentence associated with the initial count.

The Superior Court remanded the case for determination of whether the prolonged investigation had purpose or was rather an abuse of police discretion. It is important to note that even in the scenario outlined in Smith, a prior conviction will automatically bump the mandatory minimum sentence to the higher level. If charged with a narcotics offense, it is imperative you contact an experienced criminal defense attorney immediately. Attorney Marc Neff has over twenty years of experience successfully defending clients charged with narcotics, and all other criminal violations. If you have been charged with a crime or believe you are under investigation and could potentially be charged, there are defenses available to you. All consultations are confidential. Contact the Law Offices of Marc Neff as soon as possible, at (215)563-9800 or via e-mail at Marc@nefflawoffices.com.