Articles Posted in Federal Crimes

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Social Security, Disability Insurance and Supplemental Security Income

Social Security benefits are paid to eligible individuals that have attained the minimum retirement age, 62 or older. To be eligible for Social Security, an individual must have the requisite number of credits. Social Security credits are calculated based on an individual’s earnings and number of working years. A person is required to have 40 credits which are earned over a period of 10 year period. A person can earn no more than 4 credits a year. In 2021, a person may earn one Social Security or Medicare credit for every $1,470 in covered earnings each year. A person must earn $5,880 to get the maximum four credits for the year. The amount of earnings it takes to earn a credit may change each year.

Social Security Disability Insurance benefits are paid to individuals that have earned the required amount of credits for Social Security but have not reached the minimum retirement age and have become disabled.

Supplemental Security Income benefits (SSI) is a Federal program which is not funded by Social Security taxes. It provides monthly benefits to individuals to meet basic needs for food, clothing, and shelter. The base monthly federal amount varies depending on your living arrangement and income.

Social Security Benefits are Suspended During the Months of Imprisonment

Social Security retirement benefits, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are not payable during the months that an individual is imprisoned for conviction of crime. All benefits, except Medicare and Medicaid, are suspended upon imprisonment for more than 30 continuous days.  Benefits can be reinstated starting with the month following release from any further incarceration. Although you can’t receive monthly Social Security benefits while you’re incarcerated, benefits will continue to your spouse for children that remain eligible. SSI benefits are also suspended during a period of incarceration for more than 30 continuous days.

Social Security Benefits are Resumed Upon Release from Jail or Prison

Social Security benefits, including SSI and disability benefits, will resume in the month that a person in released from jail or prison.  The payments will not start automatically. If benefits have been suspended,  a request must be made to have them reinstated. In addition, a copy of release documents must be obtained to facilitate coverage without any lapse.

Medicare or Medicaid Benefits 

Eligibility for Medicare Part A (Hospital Insurance) continues without any gap in coverage while you’re in prison. On the other hand, to keep Part B (Medical Insurance) activated, monthly premiums must be paid or coverage will be terminated.  If coverage is interrupted because of incarceration and non payment of Medicare premiums, an application may be filed during the subsequent General Enrollment Period.

Avoiding Criminal Convictions and Jail

If you are charged with a crime, don’t expect the police, the prosecutor or court employees to help you. They do not represent you and unless they advise you to hire a lawyer, you may end up steering yourself into a brick wall. The good news is that most judges in the State of Michigan do not impose jail for the most prevalent crimes. A skilled criminal defense lawyer can explain how a misdemeanor or felony conviction and jail can be avoided. There are also special provisions of law to protect the rights of first time offenders and even for those with a prior criminal record.

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What does it mean to provide cooperation, snitch or be an informant for the police?

Cooperation, using the little fish to get the big fish, is a major law enforcement tactic utilized everywhere and every day in the United States to gain information that would otherwise be next to impossible to obtain. This practice is also used extensively in the County of Macomb as a means to frustrate illegal drug activity. An offer to cooperate can arise during a criminal investigation or following an arrest or at any stage of a criminal case.

The concept of “cooperation” with the police (also called “snitching” or “acting as an informant”) occurs when the police utilize an individual to obtain information that would otherwise be difficult to discover.  Those asked to provide cooperation are usually in trouble with the law (busted for a drug crime) and are promised consideration in the legal system in return for providing assistance. Assistance is expected to be substantial and typically involves undercover work with narcotics agents or special units. The informant is rarely advised of his or her rights and other options. The informant may later be required to testify as a witness in subsequent court proceedings unless given protection as a confidential informant (CI).

The use of informants by the government has existed for more than a 1,000 years and remains widely used today by the government and the police to:

  • Make other busts, raids, seizures,
  • Support an arrest or search warrant
  • Bolster connections to infiltrate criminal enterprise(s),
  • Flush out targets or bigger fish, and,
  • Make progress in an investigation that is stuck in the mud.

Getting into Something that is Over Your Head

As we explain in this publication, cooperation or snitching, is a tool used by law enforcement officers to combat criminal activity and is most often associated with drug crimes.  Cooperation with the police is seldom ever considered because drug crimes, especially for first offenders, can be resolved with excellent results in most cases without working with the police. In addition, you need the advice of an attorney to explain your legal rights and all of the possible risks associated with cooperation, including the following:

  • Your safety is not assured
  • Your assistance may be declared insufficient by the police
  • Criminal charges may still be pursued against you
  • Cooperation ends when the police say it ends
  • Cooperation may require engaging in bigger drug deals than justified under the circumstances to get a deal in the legal system

Cooperation (snitching) is usually arranged while the accused person is caught red handed while engaged in illegal activity or in police custody for a criminal offense. Unfortunately, the police may use these scenarios as opportunities to take advantage of the situation by threatening prosecution or by persuading the party with incentives to cooperate that include: immediate release from jail and consideration to get all criminal charges dropped. Upon being released from jail, the unwary person will be instructed to contact an undercover officer for further instructions and discouraged from contacting a criminal defense lawyer. An individual that immediately chooses this route is placing his or her trust with the same law enforcement officers that will be testifying for the prosecution should criminal charges later be pursued.

What the Police Won’t Tell You about Cooperation Can Hurt You

The police are not required to give legal advice or explain every other possible option when attempting to engage an individual to become an informant.  The police will not tell you that your case can be worked out without cooperation or that an attorney can fight the case if it is based upon an illegal search. Here are just a few other legal rights that you forego when you agree to cooperate with the police:

In addition to the above, the police won’t tell you that most drug crimes are manageable in the court system with the services of a criminal defense lawyer. Scare tactics are not uncommon as a means to harvest an informant who is lead to believe that there is no hope in the legal system without providing cooperation.  In fact, the majority of offenders are not looking at jail, may be eligible to get a felony reduced to a misdemeanor and have other excellent options to get the charge(s) dismissed pursuant to MCL 333.7411 or HYTA without providing any cooperation whatsoever to the police!

Cooperation in the Federal Court System

Federal criminal prosecutions are handled in a much more formal manner. In the Federal court system, the issue of cooperation is much different than what we see at the state court level. In the Federal system, special formalities and agreements exist. They involve both the District Attorney and at least one law enforcement agency; usually the Federal Bureau of Investigation (FBI) or the Drug Enforcement Agency (DEA). In the Federal arena, cooperation is prevalent and can be a factor to avoid a mandatory minimum sentence. The following language is contained within a Federal Plea and Cooperation Agreement:

“If the defendant commits any crimes or if any of the defendant’s statements or testimony prove to be knowingly false, misleading, or materially incomplete, or if the defendant otherwise violates this Plea and Cooperation Agreement in any way, the government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein.”

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Every element of a crime must be proven beyond a reasonable doubt

Every crime is made up of parts that are called elements. When a person is charged with a crime, the prosecutor is saying that there is sufficient evidence to establish each and every element of the crime beyond a reasonable doubt. The prosecutor does not always get it right.  Many criminal cases result in an acquittal because an essential element of a crime has not been established beyond a reasonable doubt. In this ABDO LAW publication, the element of “possession” is explained in relation to drug crimes.

Illegal possession of drugs may constitute a felony

Possession is a necessary element in drug crimes and property crimes (receiving and concealing stolen property). For a person to found guilty of a drug crime, the prosecutor must establish that a person intentionally and knowingly possessed the illegal drugs in question. Most drug crimes are felonies that carry serious criminal penalties which can include possible jail, substantial fines and driver license suspension:

Drug Crime Maximum Jail Maximum Fine
Possession of MDMA 10 years $2,000.00
Possession of methamphetamine 10 years $2,000.00
Possession of heroin or cocaine 4 years $25,000.00
Possession of analogues 2 years $2,000.00

 

In another article, we explain how drug possession crimes in Michigan (including all Macomb County District Courts) can be dismissed pursuant to MCL 3333.7411.

“Possession” is a necessary element in drug crimes

The term possession has different meanings in the criminal justice system. A person may be charged with possession of drugs if he or she has “actual possession” or “construction possession”. Because the term “possession” has different meanings and the potential for different interpretations, it is often the subject of legal arguments in criminal cases.

Historically, actual possession was required for a conviction of a criminal case with the element of possession. In other words, a person could not be charged with a crime unless he was “caught red handed” with the illegal property. In the 1920s era of liquor prohibition, courts expanded criminal possession to include “constructive possession”.  Constructive possession does not require an individual to have the physical possession of the illegal property.

Possession does not require ownership: Possession is not the same as ownership. Several criminal laws make it a crime to “possess” something that is forbidden or illegal.

Actual possession is what most of us think of as possession, that is, having physical custody or control of an object. Actual possession, also sometimes called possession in fact, is used to describe immediate physical contact. Frequently, a set of facts clearly indicate that an individual has possession of an object but that he or she has no physical contact with it (constructive possession). To properly deal with these situations, courts have broadened the scope of possession beyond actual possession.

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Constructive possession is frequently used in cases involving drugs, guns and stolen property in Michigan criminal cases. Constructive possession, also sometimes called “possession in law,” exists where a person has the ability to control the object even if the person has no physical contact with it. For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them.

Michigan Cases: Interpretation of constructive possession

People v Nunez (2000):  In this case, police a large stash of cocaine in a home occupied by several individuals. Although Mr. Nunez didn’t have the cocaine on his person, he was charged and convicted of possession of cocaine. The police arrived at their conclusion by observing the apartment and its contents. Mr. Nunez had a key for the apartment and stayed at the apartment most of the time. His name was also found on bills within the apartment.

People v Meshell (2005):  In this case, police observed a man emerging from a garage in which they later discovered methamphetamine. Upon entering the area, police noticed a strong chemical odor coming from the garage. Mr. Meshell was the only person in the area of the garage and when police ran his record, they discovered past issues with methamphetamine. Because Mr. Meshell had past issues with meth, it was obvious that he knew the smell. He was also the only one in the area at the time police observed him exiting the garage.

People v McKinney (2003): In this case, police entered a home and discovered a large amount of cocaine. Police found crack in drawers containing women’s clothing, and linked the drugs to Ms. McKinney because she was frequently staying at the apartment. By using the drug’s location as evidence, the police were able to successfully charge and convict Ms. McKinney of possession of cocaine.

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As an active criminal defense attorney in Macomb County, our firm is frequently asked whether a criminal record can be totally erased, disappear or vanish. Unfortunately, the answer is no.


The Michigan Law Enforcement Information Network (LEIN)

The moment an arrest occurs, or a warrant is issued by a court, a record is generated on the Michigan Law Enforcement Information Network (LEIN). Only criminal justice agencies or other authorized agencies (courts) are granted access to the LEIN. A law enforcement officer or court employee who abuses the system faces discipline. This link provides a list of entities who are authorized to utilize the LEIN system.

COURTROOM SCENE.jpgThis blog is part of a series of blogs which explores some frequently asked criminal law questions.

I cannot believe how many times I have been asked this question: Do court appointed lawyers work for the police and prosecutor?

Answer: ABSOLUTELY NOT.

fbi-4-30-09[1].jpgIn the United States, there are crimes which may be prosecuted at the State level based upon violations of State laws. A Federal crime is one which involves a violation of a Federal law. Many criminal offenses may fall under the jurisdiction of both the State and Federal laws and either or both branches of government may prosecute. The doctrine of double jeopardy does not preclude both State and Federal prosecutions under the doctrine of dual sovereignty.

There are literally thousands of Federal laws. Many Federal crimes are listed in Title 18 of the United States Code. In addition, there are several Federal agencies with authority to investigate Federal offenses including: Federal Bureau of Investigations (FBI), Drug Enforcement Agency (DEA), Alcohol Tobacco and Firearms (ATF), United States Marshal Service (USMC), United States Secret Service, Immigration and Customs Enforcement, United States Postal Inspection Service and Homeland Security. Postal Inspectors investigate any crime in which the U.S. Mail is used to further a crime by use of the mail, telephone, or on the Internet (mailfraud).

In Michigan,United States Districts Courts (Federal courts) are located in Detroit (Eastern District), Lansing, Grand Rapids, Ann Arbor, Port Huron, Flint and the upper peninsula. Federal criminal defense attorneys are required to adhere to the Federal Court Rules. The formalities, procedure, sentence guidelines and process of the Federal courts are inherently stricter than the State courts. All of this means that anyone faced with a Federal criminal investigation or Federal criminal charge(s) should retain a qualified Federal criminal defense lawyer.

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All drug crimes require the element of possession. This publication will examine the applicable Michigan laws which pertain to the issue of “possession” as an element of a crime.

Many Michigan criminal laws, especially drug crimes and stolen property laws, contain an element or requirement of “possession”. Possession of child pornography cases invariably involves legal arguments by criminal defense lawyers and prosecutors regarding the issue of possession. In this regard, specialized computer forensics or other technical evidence is used by law enforcement to establish the element of “possession” and by criminal defense attorneys to contest the issue. Michigan laws which make possession in and of itself the crime allows for arrests and convictions without proving the use or sale of a prohibited item.

There are several terms which are used to describe different types of possession such as actual possession, constructive possession, joint possession, or sole possession. Historically, actual possession was required for a criminal possession conviction to stick. In other words, a person could not be charged with a crime unless he was “caught red handed” with the illegal property. In the 1920’s, courts expanded criminal possession to include “constructive possession”.

Possession versus Ownership: Possession is not the same as ownership. The phrase “possession is nine-tenths of the law,” is often used to suggest that someone who possesses property, other than the lawful owner, can face legal consequences.

Actual possession is what most of us think of as possession-that is, having physical custody or control of an object” (United States v. Nenadich, 689 F.Supp. 285 [S.D. N.Y. 1988]). Actual possession, also sometimes called possession in fact, is used to describe immediate physical contact. Frequently, a set of facts clearly indicate that an individual has possession of an object but that he or she has no physical contact with it. To properly deal with these situations, courts have broadened the scope of possession beyond actual possession.

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Constructive possession is frequently used as a legal theory in the prosecution of crimes involving drugs, guns and stolen property. Constructive possession, also sometimes called “possession in law,” exists where a person has the ability to control the object even if the person has no physical contact with it. For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. For legal purposes, they are considered to have constructive possession of the contents of the safety deposit box.

Link to Blog: Proving Possession In Drug Crimes
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