South Carolina Criminal Lawyer Blog

There are several fraud investigations in the Myrtle Beach area regarding the real estate market. Many of these are mortgage fraud investigations related to large developments. The Federal Bureau of Investigation will control much of the investigation with the United States Attorney in Florence making the final decision on who will be indicted. The potential defendants range from several attorneys to individuals who simply held funds for particular company or group. Other possible targets of these investigations will be realtors, mortgage brokers, appraisers and what are referred to as straw buyers and straw sellers. Anyone indicted for fraud in federal court will be faced with some significant decisions and selecting a federal defense attorney should be at the top of the list. Federal defense requires experience with the federal sentencing guidelines and with the Justice Department.
A federal indictment carries with it significant penalties in almost every case. A mortgage indictment is based on MONEY. Who took it? Who lost it? Who lied? These are the central questions that are used in deciding who to indict. There are also individuals that will be indicted who did none of the above, but did nothing to stop a crime from occurring. This is called deliberate ignorance. In most state criminal cases there is no duty to report or stop a crime. In federal court a defendant can be convicted for participating in a crime even though they allege that they did not know a crime was even occurring. A good attorney in Myrtle Beach with significant federal experience should be consulted immediately if you feel you may be a target of any federal investigation.

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In United States v. Cameron, appellate number 08-4277, the defendant was convicted of three counts of uttering counterfeited obligations and one count of falsely making and counterfeiting obligations of the United States. The appellant, through his appellate attorney, challenged his conviction of falsely making and counterfeiting obligations in violation of 18 U.S.C. section 471. The defendant's appellate lawyer argued that the government failed to present an evidence that he actually used a computer to manufacture counterfeit bills, that there was no evidence presented at trial about the details of the counterfeiting operation, only one counterfeit image was found on his sister's computer, his sister's printer was never recovered, and that his fingerprints were found on a small portion of the evidence seized from his home.

The Fourth Circuit Court of Appeals relied on the circumstantial evidence presented by the government linking the appellant to manufacturing the bills, the testimony of an FBI agent who matched the serial number on the counterfeit computer image to a bill found in the defendant's home and held that there was sufficient evidence to sustain his conviction.

However, the Fourth Circuit reversed the appellant's sentence, finding that the evidence was insufficient to support the four level enhancement he received for being a leader or organizer of a counterfeiting operation. Pursuant to 3B1.1(a) of the United States Sentencing Guidelines, a person is subjected to this leadership enhancement if he was the leader or organizer of criminal activity that involved five or more participants or was otherwise extensive. The defendant must actual have a leadership role over another participant.

The Fourth Circuit noted that there was no evidence that the appellant planned, or organized the criminal activity, and more importantly, there was no evidence that he exercised any control or authority over the other participants, recruited other accomplices, or that he claimed any or a large share of the profits of the criminal activity.

This opinion suggests that a defendant must have more of a leadership role than manufacturing counterfeit bills to qualify for the four level enhancement. This opinion also reinforces the view that a sentencing court must usually find that a defendant actually had control over another participant in the criminal activity.

Continue reading " Printing Counterfeit Bills Insufficient to Support a Leadership Enhancement " »

In Ryan v. Ryan, the South Carolina Court of Appeals reversed a divorce case in which the family court failed to consider the husband's misconduct that contributed to the break up of the marriage. Both parties testified in court that the husband's misconduct led to the couples divorce. The husband specifically stated that he and his wife separated because their son had him arrested for assault and battery. The appellant wife had pursued restraining orders against her husband due to his abusive actions towards their son.

The South Carolina appellate court held that the family court should have taken into account the husband's fault when apportioning the marital property and when determining alimony, even though the husband's misconduct was not used as the basis for the separation or subsequent divorce proceeding.

Pursuant to South Carolina Divorce Law, evidence of fault should be considered by the family court judge when deciding issues relating to equitable apportionment and alimony. When addressing the issue of alimony, the court considers the need of the party asking for alimony as well as the other party's ability to pay.

South Carolina Family Courts also consider the age of the parties, the duration of the marriage, the educational background of the parties, employment history, potential income, the standard of living established during the marriage, current assets and expenses, child custody and support payments and finally, any other factor the court deems relevant.

There are different types of alimony available in divorce cases, so it is important to discuss these options with a family law attorney in South Carolina. These options include permanent and periodic alimony, lump sum alimony, temporary alimony and rehabilitative alimony.

Continue reading " Separate Support and Maintenance Evidence of Fault " »

An Horry County grand jury has indicted a teenage boy for assault and battery with intent to kill. This indictment is based on an incident that occurred earlier this year outside a store near Myrtle Beach. A myrtle beach attorney will most likely be appointed to represent the teen at his initial appearance. If he has already hired a myrtle beach lawyer, that attorney will have already started the defense of the case. The teen was shot in the incident, along with the other teen that was involved in the case. The teen will be facing prison time in relation to this case. Police have stated that the two boys knew each other. The boys may have already faced criminal charges and the solicitor's office has just now decided to take the case before the grand jury.

There have been several teens indicted in South Carolina this year for violent crime. This increase has pushed the criminal justice system in the state to the edge. With so many cases and so few public defenders, the system is almost at a stand still. Criminal defense attorneys cannot take cases for free and the clients are without financial resources to pay for private attorneys.

Continue reading " Horry County Grand Jury Indicts Teenager " »

In an unpublished opinion, Stiggers-Smith v. Smith, the South Carolina Court of Appeals per curiam affirmed a family court decision finding the parties entered into a common law marriage. The evidence included that the parties lived together in several states, the respondent used the appellant's last name once moving to South Carolina, and did not correct any lawyers, friends, salesmen, when they referred to the respondent as his wife. The South Carolina appellate court held the agreement to enter into a common law marriage was inferred by the actions of the parties and the circumstances.

Circumstantial evidence is often used to prove a common law marriage, especially evidence showing that the parties held themselves out to the public as husband and wife and lived together for a long period of time.

South Carolina is one of the few states that still recognizes common law marriages. Every South Carolina divorce lawyer knows that a common law marriage can not be proved merely by showing that a couple lives together. In Horry County family court, evidence that the parties actually held themselves out as a married couple is crucial. This evidence can include joint tax returns, joint checking accounts, using the same last name, and openly referring to each other as husband and wife.

Once a common law marriage is established in a South Carolina family court by a divorce attorney or family lawyer, it is given the same force and effect as a regular marriage in all family court proceedings. Therefore, a party that establishes a common law marriage is entitled to equitable distribution of the marital assets and potentially alimony. The Stiggers-Smith case shows that common law marriage is still a viable cause of action in South Carolina and can be proved through circumstantial evidence.

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A South Carolina attorney was disciplined by the South Carolina bar for his involvement in closings related to a federal mortgage fraud case. The bar stated that the attorney was unaware that the closing were part of a mortgage fraud scheme. However, the numbers involved with the closings were suspicious according to the bar. This is a bit of a jump. If the attorney had any involvement in the mortgage fraud scheme he would have been federally indicted for mortgage fraud in South Carolina. The large increase in mortgage fraud indictments throughout the country is due in part to the large number of home foreclosures that is occurring. The banks do not care how fraudulent a loan application may be as long as they make their money. Now with them losing money they are looking for someone to sue and they are using the federal government to go after the some small buyers and sellers that just could not make the payments on their home. A good mortgage defense attorney will be able to lower the exposure in the federal system.

Most closing attorneys will be safe from indictment because their involvement is limited to ensuring that clear title passes to the buyer. In South Carolina an attorney must perform the closing of real property. In Florida, there is no requirement of an attorney to perform the closing. Title companies in Florida handle the entire process. There will be some closing attorneys that will be indicted and this fraud indictment will be based primarily on the statements of others in the indictment. Realtors, mortgage brokers, and appraisers are just some of the common codefendants to a federal mortgage fraud indictment.

Continue reading " Attorney Discipline for Real Estate Closings " »