leifertlaw December 5, 2012 Courts
Our Fort Lauderdale criminal defense attorneys are committed to providing our clients with aggressive, knowledgeable representation the first time around. This is key in criminal cases because rarely will you get a second chance, as was illustrated in the recently-decided appeal of U.S. v. Murray illustrates.
This was a case out of a federal court in Texas.
Three men were federally charged and later convicted on dozens of counts of white collar crimes, including mail fraud, conspiracy to commit mail fraud, securities fraud and money laundering – all related to a Ponzi scheme.
The three were the previous owners of Premiere Holdings. The trio reportedly accepted millions of dollars from investors, and then took huge fees and paid those investors returns drawn from the principal of the investors’ own accounts. The actual investments were, in fact, in default, and while the company claimed a 1 percent fee, their actual fee was closer to somewhere between 15 and 25 percent.
The program went bankrupt back in 2001. Some investors lost hundreds of thousands of dollars, including entire life and retirement savings. All told, roughly $30 million was lost.
Two of the men declared personal bankruptcy after settling a lawsuit brought by the Securities and Exchange Commission in which one agreed to repay $700,000 and another $3.5 million.
However, the criminal investigation didn’t start until later. As a result of that, one man received 20 years. Two others pleaded guilty and received 3-year prison sentences. All were in prison by March 2010.
However, the validity of the actual convictions wasn’t what was in question upon appeal. It was the rather strange action by the district court to re-open the case after sentencing in order to impose restitution fees.
The pre-sentence Investigation report showed that for each of the men, restitution wasn’t able to be pursued according to 18 U.S.C. 3663A(c)(3). Therefore, none of the men were required to pay restitution upon sentencing and there was no mention of deferring a restitution announcement to a later date.
The cases were considered closed. However, two months later, prosecutors filed a motion seeking restitution under the Mandatory Victims Restitution Act of 1996. Under this act, victims of a crime for which the defendant was convicted may be entitled to an order of restitution for the following:
–Damage or loss to property;
–Loss of Life;
–Loss of Income.
In this case, in October of 2010, the trial court granted the prosecution’s motion and a hearing was scheduled for the next month to determine how much was owed. Several more hearings were held, and by August of last year, the district court had calculated that the total amount owed was $17.5 million.
Upon appeal, defendants argued that the court did not have the authority to issue the order at the time it did.
Ultimately, the appellate court ruled that trial judges do lack the authority to go back and correct a sentencing error unless Congress has provided otherwise (an unlikely scenario). As such, the appellate court reversed this restitution order.
The trial court in this case acted inappropriately by re-opening the case. It simply doesn’t happen very often and, as the appellate panel rightly determined, it shouldn’t happen.
Defendants who are not pleased at the outcome of a trial can always appeal the case on a number of legal grounds, but those proceedings can take many years and with limited success.
It’s far better to invest in a skilled criminal defense lawyer at the outset, and avoid the headache and heartache later. You have rights — even after conviction.
If you are charged with a crime in Palm Beach or Broward counties, contact the Law Offices of Leifert & Leifert, a Partnership of Former Prosecutors, for a free consultation to discuss your rights. Call 1.888.5.DEFEND.
U.S. v. Murray, et al, Oct. 30, 2012, U.S. Court of Appeals for the Fifth Circuit, Appeals from the U.S. District Court for the Southern District of Texas
More Blog Entries:
U.S. v. Peoples – Proper Courtroom Etiquette in Broward County, Nov. 13, 2012, Fort Lauderdale Criminal Defense Lawyer Blog
Florida Criminal Lawyers