Mortgage fraud investigations have increased dramatically over the past five years, for obvious reasons.  Mortgage fraud contributed significantly to the collapse of the housing loan market several years ago, which touched off the tailspin our economy has been in since then.  The Federal Bureau of Investigation has increased its investigations into this area, and has consolidated much of its investigations in this area into its Financial Institution Fraud Unit.

The general definition of mortage fraud is ”the material misstatement, misrepresentation, or omission relied upon by an underwriter or lender to fund, purchase or insure a loan.” Federal Bureau of Investigation, Financial Crimes Report to the Public, at 20 (Mar. 2007).  Mortgage fraud is sometimes confused with “predatory lending,” but the difference is that the victims of mortgage fraud are banks and lending institutions, and the victims of predatory lending are the borrowers.  Although it has been discussed, there is not currently a federal statutute specifically addressing mortgage fraud.  Instead, in federal courts mortgage fraud is prosecuted under the wire fraud, bank fraud, mail fraud, and money laudering statutes, with penalties of up to thirty years imprisonment for each count.

Mortgage fraud schemes are generally complex.  The government spends tons of money investigating and prosecuting these crimes, and so if you are caught up in a mortgage fraud investigation or case you can expect to have the weight of the federal government against you.  Some common examples of how mortgage fraud schemes work are:

• Foreclosure scheme – a person’s home is in danger of foreclosure, and someone convinces that person that the home can be saved by transferring the deeds and paying some fees.  The home is then mortgaged again, and the fees get put in someone’s pocket.
• Property flipping or shotgunning – a property is purchased through a sham indentity or shell company and then the price is artificially inflated through false appraisals. The inflated valued properties are then repurchased several times for higher prices by associates of the “flipper.” Following three or four “sham sales,” the properties are foreclosed on by victim lenders.
• Equity skimming – occurs when someone figures out how to get a loan for more than a home’s value.  The homeowner is then convinced to sign over the deed to the home.  This is a popular method to dupe homeowners and investors out of the equity they may have built up in their home.
• Nominee loans/straw buyers – borrower’s identity is concealed through use of nominee who allows borrower to use nominee’s name/credit history to apply for a loan.
• Fictitious/stolen identify – Occurs when a person steals the identity of another and uses that identity to obtain a mortgage without that person’s knowledge.
• Appraisal Fraud – Occurs when an appraiser provides a lender with an inaccurrate and misleading report that inflates the property’s value.  Or, in reverse, the property’s value is understated in order to get a lower price on a foreclosed home. 

Indictments for mortgage fraud are on the rise, and Mississippi is not immune from this increased level of prosecution for these crimes.  If you would like more information, even on Mississippi cases, The Mortgage Fraud Blog, published by a lawyer and mortgage broker in California, does a very good job of keeping up with this area of law.

Any person involved in a mortgage transaction may be subject to investigation and charges of mortgage fraud, and could be subject to both civil and criminal penalties.   This would include the lender, mortgage broker, the homeowner, and any others accused of misrepresenting a material fact on a mortgage application or bank document.  Remember that you may be prosecuted not only on the actual loss amount, but also on the intended loss.  The government is going to try as hard as they can to increase the intended loss in these cases, and you will need a lawyer experienced in federal court challenge the valuations and minimize the intended loss, reducing your exposure in these types of cases.

On April 13, 2010, the U.S. Sentencing Commission voted to amend the Federal Sentencing Guidelines Manual by deleting §4A1.1(e) (recency points).  This paragraph of the Manual increased the number of “points” in determining a defendant’s criminal history category by 2 if the defendant committed the instant offense less than two years from release from imprisonment or on escape status from a prior offense.  What this means is that, in federal court, you were looking at more punishment if you committed a crime not long after being released from prison for another crime.

The Sentencing Commission has decided to remove this provision from the guidelines, ostensibly because points added for recency do not accurately serve the intended purposes of the criminal history calculation of Chapter Four of the Federal Sentencing Guidelines Manual, which is “first, to predict recidivism, and second, to reflect offender culpability.”  The recency provision was included in the 1980s by the original Commission without the benefit of data, with the Commission “assuming” that “recency of the defendant’s prior record” was a “reliable predictor of future criminal conduct” because it was “very similar” to those included in the Salient Factor Score of the United States Parole Commission and the Inslaw Scale.”  See Written Statement of Margy Meyers, Incoming Chair, Federal Defender Sentencing Guidelines Committee and Marianne Mariano,  Federal Public Defender for the Western District of New York On Behalf of the Federal Public and Community Defenders Before the United States Sentencing Commission Public Hearing on Proposed Amendments for 2010 Re: Alternatives to Incarceration, Specific Offender Characteristics, Application Instructions, and Recency, March 17, 2010. 

Now, some 25 years later, the Commission has had time to gather data and has done some studies, and apparently has determined that the “recency” of committing a “new” crime really has no predictive quality in determining whether any given defendant is “more culpable.”  Therefore recency points will be eliminated on November 1, 2010, if nothing happens in the interim.  In the meantime, as always, federal judges are free to sentence you independently of the Federal Sentencing Guidelines, so your lawyer should already be arguing against any calculations based on “recency” points.

All of this may not mean much to you, but suffice it to say that if you are like me you wouldn’t want your federal sentence determined by “assumptions” based on incomplete data.  As I’ve said, the current structure of federal sentencing is incredibly complex, and if you are charged in federal court you will want a lawyer that keeps up with the frequent changes in this area of law, and can use them to your benefit.

Yes.  Most certainly.

I have discussed the distinction between federal and state crimes here.  As you see, the state of Mississippi is divided into two federal districts, and your lawyer must be admitted to practice before the federal court in the district where your case is pending, or at least must get permission to practice there.  More importantly, however, your lawyer must understand the significant distinctions between the federal and state systems.  It is helpful to be represented by a lawyer that is familiar with the federal rules of criminal procedure, federal rules of evidence, federal trial procedure, and the federal court system in general, all of these of which are different than Mississippi state court.  It is even better when your lawyer is familiar with the U.S. Attorney’s office that is prosecuting your case, the Clerk’s Office and Court Administrators, and the federal law enforcement agency that has handled the investigation.

Finally, perhaps the most ominous distinction between state and federal court is the application of the federal sentencing guidelines.  Although these sentencing “guidelines,” which assist judges in determining a sentence for each crime, were originally mandatory and binding on judges (they couldn’t deviate from them; you got what you got), the U.S. Supreme Court made them only “advisory,” rather than mandatory, in 2005.  A federal judge can sentence you to whatever the judge believes is appropriate, up to the statutory maximum for each offense.  But the federal sentencing guidelines are still there, albeit only advisory in nature, and a judge must consider them in determining your sentence.  The guidelines are extremely complex, and are concerned with the characteristics of the offense(s) of which you are convicted, your criminal history, if any, and a number of other factors.  The guidelines themselves come in a thick volume, with two appendices, and are revised each year.  And each day more and more federal cases are published that apply them, interpret them, or change them, and it is important that your lawyer is up-to-speed with the latest law in order to be the most effective advocate for you. 

I’ve been in federal court with criminal cases almost constantly since I left active duty five years ago.  I am confident I can help you with your case.  If you need my assistance please give me a call at 601-991-1099.  I am here to help.

When you are arrested on federal charges, one of the first things that will happen to you is that you will be taken in front of a federal magistrate judge for an “initial appearance.”  If the government wants to keep you in jail until your trial, the prosecutor will ask the court to detain you – to keep you in jail.  A detention hearing will then take place, usually immediately, but sometimes it is delayed for 3-5 days.  The issue before the judge then becomes:

1. whether you are a serious flight risk, and
2. whether you are a danger to the community.

At the detention hearing, if the government is trying to show that you are a “flight risk” (that you’ll run and won’t come back for trial), then it must prove it by a “preponderance of the evidence.”  If the government is trying to show that you are a danger to the community, then it must prove this by “clear and convincing” evidence.  The rules of evidence do not apply at detention hearings, and so the judge can consider almost anything. 

The government has the benefit of a presumption that you need to stay in jail in certain cases, including certain types of drug cases, certain types of firearms cases, terrorism cases, any crime involving a minor victim, and in certain cases where you have been previously convicted of a felony and the alleged offense was committed while on bail or within five years.  You need to think of this presumption as a “head start” for the government, but this head start can be overcome by you and your attorney with any type of credible evidence, including the pretrial services report, cross-examination of government witnesses, documentary evidence that may be available, etc.  This is where a good lawyer can help you. 

The judge will consider the following factors when making the determination regarding letting you out:

1. the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics);
2. the weight of the evidence against you;
3. your history and characteristics, including your physical and mental condition, family ties, employment, financial resources, length of time in the community, community ties, past conduct history relating to drug or alcohol abuse, criminal history, record of court appearances; and whether, at the time of the current offense or arrest, you were on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law;
4. the nature and seriousness of the danger to any person or to the community that would be posed by releasing you.

The judge can then do one of four things:

1. Release you on your own recognizance or on an unsecured bond (where you won’t put up any money, but you will lose money if you don’t show back up);
2. Release you on certain conditions – (get a job, stay in school, stay away from certain people, check in with pretrial services, submit to drug testing, ankle bracelets, etc.)
3. Temporarily detain you until certain other things can happen (you get deported, your existing bond gets revoked, etc.); or
4. Detain you until trial, or until conditions change enough to warrant reconsideration of the detention decision.

Statistically, if the government wants to detain you, you are likely to be detained.  But, contrary to what some will tell you, it is not a foregone conclusion, and you should fight it almost every time.  Why?  Because a detention hearing usually happens very early in the case, and you and your attorney need to take every chance you can get to find out as much as possible as soon as possible.  But, more importantly, it’s your freedom.  Never, ever give up a chance to fight for your freedom.

The Assimilative Crimes Act (18 U.S.C. § 13) is the law that allows the federal government to use state law to prosecute offenses committed on federal government land or in federally owned buildings. 

When a criminal offense has been committed on land or buildings that have been reserved or acquired by the federal government, and the offense is not defined under federal law, state law will apply to the offense under the Assimilative Crimes Act.  When the federal government decides to prosecute the offense – through the U.S. Attorney’s office - it is not enforcing the state law.  It is enforcing federal law and order by applying the state law to the offense.

State law is applied under the Assimilative Crimes Act only when the U.S. Congress has not enacted a statute that prohibits a criminal offense.  For example, generally there is no federal crime of murder, but each state, including Mississippi, has enacted laws providing the legal elements of murder, manslaughter, etc.  If you were to kill someone on federal land in Mississippi, you would likely be prosecuted in federal court, but that court would apply, or “incorporate,” Mississippi’s definition of murder.  The federal court would require the prosecutors to prove all of the elements of your charged offenses according to Mississippi law.

Under the ACA, the federal government may not apply state regulatory laws to a criminal offense.  Also, the federal government may not incorporate state administrative penalties to a criminal offense, such as the suspension of a driver’s license or any other state license.  When a federal court applies state substantive law, and possibly federal procedural law and the federal sentencing framework, it can make even the most mundane criminal matter complex and confusing.  It is not a place to be without competent advice.  If you find yourself in federal court charged with an offense defined by state law, give us a call.

No.

A ”plea bargain” is an agreement between you and the government where you agree to plead guilty to all or some of the charges against you, and the government agrees to drop some charges, reduce some charges, or recommend a reduced sentence to the judge.  There are dozens of different ways to work out a criminal case, all the way from your lawyer talking the prosecutor into dropping your case, to your case going to trial in front of a jury to be decided.  Statistics show that over 90% of criminal convictions come from negotiated pleas, so less than 10% result in trials.  Your lawyer is under an obligation to explain all of your options to you so you can understand them, and to advise you as to the best course of action.

In Mississippi specifically, plea bargaining is government by Rule 8.04(B) of the Uniform Circuit and County Court Rules.  This rule encourages plea bargaining, stating:

“The prosecuting attorney is encouraged to discuss and agree on pleas which may be entered by the defendant. Any discussions or agreements must be conducted with defendant’s attorney, or if defendant is unrepresented, the discussion and agreement may be conducted with the defendant.”

But understand this:  No one can force you to accept a plea bargain.  Not the judge, not the prosecutor, not your lawyer, and certainly not Clarence Guthrie.  Rule 8.04 goes on to state:

“Defense attorneys shall not conclude any plea bargaining on behalf of the defendant without the defendant’s full and complete consent, being certain that the decision to plead is made by defendant. Defense attorneys must advise defendant of all pertinent matters bearing on the choice of plea, including likely results or alternatives.”

Your lawyer is also under an ethical obligation to let you make the decision on the most important aspects of your case, including the decision on whether to accept a plea bargain.  Mississippi Rule of Professional Conduct 1.4 states “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

So the ultimate decision on whether to accept a plea bargain, pleading guilty in exchange for reduced charges or a reduced sentence, is yours and yours alone.  A good lawyer is going to size up the evidence in the case, advise you to as to any defenses you may have, make a recommendation, answer any questions you have, and then let you make the call.  Once you have made the call, the lawyer has their marching orders.  

Here is my take on it:  In my opinion the worst reputation that a criminal defense lawyer can have is to be known as a “plea machine” – a lawyer who takes money from his clients and then encourages them to accept a plea at the earliest opportunity.  This type of lawyer will breeze over the evidence, and will not try your case if it needs to be tried. 

When analyzing a case with a client, I can’t help but fall back on the things I learned in the Marine Corps, and I wind up referencing the teachings of Sun Tzu:

• He will win who knows when to fight and when not to fight.
• If equally matched, we can offer battle; if slightly inferior in numbers, we can avoid the enemy; if quite unequal in every way, we can flee from him.
• If you know the enemy and know yourself, you need not fear the result of a hundred battles.  If you know yourself but not the enemy, for every victory gained you will also suffer a defeat.  If you know neither the enemy nor yourself, you will succumb in every battle.

If you come to me with your criminal issue, after we investigate the case, analyze the evidence until you understand it, and I make a recommendation, then if you ultimately want the case to be tried, it will be tried.  It is a fact that most cases, civil and criminal, settle short of trial.  But I have found myself in court a pretty good bit lately, and that is fine with me.

I received a very interesting call about a month ago.  It seems that the National Rifle Association needed a lawyer in Mississippi experienced with firearms and familiar with gun laws to refer litigation to on an “as needed” basis.  The NRA’s Office of Legislative Counsel ran across my website, and we quickly formed a great relationship.

The NRA has since named me its “referral counsel” in Mississippi for NRA members that need help with gun issues, etc.  I’m not a “gun nut,” but I’ve been around firearms my entire life.  I can still field strip an M16A2 service rifle with the best of them, and so I gladly accepted the honor and responsibility of helping people with legal issues regarding firearms in the state of Mississippi.

Firearms are a part of our culture in this state.  You don’t have to be in Mississippi long to know that it embraces the hunting/sporting ethos with great enthusiasm.    And so the U.S. Supreme Court’s decision last year in District of Columbia et al. v. Heller met with little dissent in these parts.

After decades of speculation by analysts and court-watchers, the U.S. Supreme Court finally held that the Second Amendment to the Constitution protects an individual’s right to possess a firearm that is unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

The Second Amendment reads “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”  Gun control advocates have maintained forever that the second clause of the sentence is dependent on the first, so that the individual right to possess firearms is dependent on the existence of, or participation in, a militia.

The Court finally put an end to this long debate, holding that the Amendment’s first clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.  See District of Columbia et al. v. Heller, 128 S.Ct 2783 (2008).

So, for now, it looks as if it will quite literally take an amendment to the Constitution in order to “pry [a Mississippian’s] cold dead fingers” from their favorite beloved firearm.  Praise the lord and pass the ammunition.  With that issue somewhat resolved, what kinds of trouble can you still get into with a firearm?

This is a partial list of crimes that have to do with possessing a firearm or explosive device:

• Carrying a concealed weapon
• Assault with a deadly weapon
• Possession of an unregistered gun
• Brandishing a firearm
• Unlicensed firearms
• Felon in possession
• Possession by a minor
• Unlawful discharge of a weapon
• Unlawful sale of firearms
• Carrying a concealed and loaded firearm in a vehicle
• Federal firearms violations, including possession of a machine gun or silencer
• Possession of assault weapons

These crimes can generally be pursued in both federal and state court.  Some of these crimes are stand-alone offenses, and some are “enhancements” to other offenses.  The penalties tacked on in the federal system for using a firearm in the commission of certain crimes are especially brutal.

A lawyer that knows about firearms can also help you with the loss and restoration of firearms possession rights, which can be forfeited as the result of a felony conviction, a domestic violence conviction, or other crimes.  Your firearm itself may also be forfeited as the result of criminal charges, and a knowledgable firearms lawyer can help you with forfeiture issues as well.

So in summary I am proud that the NRA found me and has expressed their confidence in me to litigate firearms issues in this state.   This will certainly irritate some of my more liberal friends, but I know they can get past it.  If you find yourself in trouble, and there is a firearms issue with your case, call me and we’ll work the problem together.

If you or a family member have been arrested, or are under investigation  in the state of Mississippi and you need help,  give me a call at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.

I am in the middle of a jury trial in federal court this week, and I obviously can’t say anything about it, other than to say it is one of the biggest I’ve ever tried.

I am writing this post as a “note to self” more than anything else, because every time I get to trial I realize how important the competing motivations of the prosecution, the court (i.e., the judge), and the defense are to the eventual outcome of the case.  In summary, the prosecution wants to present the evidence flawlessly, the defense wants to defend the client’s interests, and the court wants to protect the record.

A successful prosecution involves marshalling all of the available evidence together, and coordinating with law enforcement, victims, and (unfortunately) political influences to present the evidence in a manner that will be coherent and believable to the jury.  This can be a large and expensive logistical burden, and the nitnoid details of putting the case together can sometimes interfere with a prosecutor’s strategic legal thinking.

Because the burden of proof is always on the prosecution to prove the case beyond a reasonable doubt, the defense is oftentimes afforded the opportunity for more strategy.  One strategy may be to scatter the seeds of doubt throughout the prosecution’s case by going after every witness, attacking all of the forensics, and generally wreaking havoc.  Another strategy may be to pinpoint one weak area and concentrate defense efforts to ensure one element can’t be shown (the stop was without probable cause, they had sex, but it was consentual, etc.). 

Finally, in trial one of the judge’s main concerns is to ensure that an adequate “record” of the proceedings is produced.  After the trial, physically the record is a big stack of paper consisting of the pleadings, the exhibits, and the trial transcript.  This record is all that history will have to reconstruct the trial, but more importantly the record is all the appellate court will have if any issues are taken up on appeal.  Judges do not like to be overturned for making incorrect legal decisions.  This is not necessarily because of their ego, but because when a case is returned from the appellate court it must be retried or reconsidered, and therefore for the reasons of judicial economy it is much better to do it right the first time.  This is why most good judges move at a deliberate pace once a trial is finally underway, slowly making sure that counsel have an opportunity to raise any legitimate issues, and stopping the trial if necessary to explore the latest law on said issues.

These three goals, although different, do not necessarily “compete,” as the title of this post suggests.  But understanding these goals helps to define the “box” that a defense counsel is working in, so that it may be easier to think outside of it to zealously represent the client.

If you are accused of committing a crime in Mississippi, you will be involved with the state court system, or the federal court system.  If you are having really bad luck, they will tag-team you and you will get to experience both at the same time.  Federal courts are very different than state courts.

Your court will be at a different place, and you will be dealing with different judges, different prosecutors (the U.S. Attorney’s Office), different law enforcement agencies (think FBI, ATF, etc.), and different laws and procedures during your case.  If you are charged or being investigated by the federal government, you need a lawyer experienced in federal criminal procedure, and you must be proactive in defending your rights.

If you or a family member has been arrested, or is under investigation for a Federal Crime in the state of Mississippi and you need help, give me a call at 601-991-1099. If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at give me call at clarence@guthriefirm.com.

Federal courts are organized into districts, and in Mississippi we have two, the Northern and Southern Districts.  The Northern District is organized into four divisions, and court is held in the federal courthouses in Oxford, Aberdeen, and Greenville.  The Southern District has five divisions, and court is held in the federal courthouses in Jackson, Natchez, Hattiesburg, and Gulfport.

You can be charged in federal court with any number of crimes, and I have defended most of them.  Here are a few areas that federal prosecutors and law enforcement have been focusing on lately:

• Mortgage fraud
• Bank Fraud
• Drug Crimes
• Firearms Offenses
• Internet Pornography and other Cyber Crimes
• Public Corruption and Bribery
• Tax Crimes

If you are under investigation by the federal government, or if you have already been charged with a federal offense, you need a lawyer immediately.  For more information about my federal criminal practice, please call and make an appointment.  Your initial consultation is always free.

Shortly after 10 a.m. today, a man with a red bandanna and hair net across his face entered the Citizens Bank branch in Forest, Mississippi, east of Jackson, and pointed a pistol at a teller.  The man had enough foresight to bring his own bag, and the teller filled it with money.  The man left the bank on foot, and police found the hair net on a trail in the woods behind the bank.  After running dogs through the woods, the police failed to apprehend the suspect.  They think he lives close to the bank due to his ability to slip through the area so easily.

Bank robbery has been classified as a federal crime since 1934.  It is defined as:

the taking or attempted taking of anything of value from a person or presence of another by the use of force and violence or intimidation when the property is insured by Federal Deposit Insurance Corporation and is the property of any bank, credit union or any savings and loan association that is a member bank of the Federal Reserve System or organized or operating under the laws of the United States.

I had a bank robbery case in federal court last year, and I’m likely to have another one soon.  Bank robbery is on the rise lately, according to the FBI.  These cases are always challenging.   Trying a case in federal court is very different than trying a case in state court, and the same attorney that did the closing on your house is probably not the right attorney for your case in federal court.

Federal criminal law is a specialized field that requires knowledge of federal rules of evidence, procedure, and the sentencing guidelines.  The sentences tend to be stiff, and convictions can result in imprisonment, restitution, large fines, community service, probation, and parole, among other things.  There are other nuances to federal criminal law and procedure, so if you find yourself in a tangle with the feds, give me a call before you do anything else, and we’ll get you through it.

If you or a family member have been arrested, or are under investigation for Bank Robbery in the state of Mississippi and you need help, give me a call at 601-991-1099. If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.