South Carolina Criminal Lawyer Blog

An attorney in South Carolina was arrested for soliciting a client to commit murder. Irby Walker has been arrested for trying to have another attorney killed. The case is being prosecuted in Horry County, South Carolina. Mr. Walker has been suspended by the South Carolina Bar and can no longer practice law. This is a classic example of making attorneys look like scum bags in the eyes of the public. There are some many law jokes based on factual scenarios. Mr. Walker is alleged to have been audio recorded by one of his clients paying for the first part of the murder conspiracy. Myrtle Beach is a high area for violent crime, but this is a bit unusual for sleepy South Carolina. Mr. Walker will most likely higher a good attorney in Myrtle Beach to represent him in his case. Most Myrtle Beach Law Firms handle some type of criminal defense cases. This case will be a highly publicized case and will be tough for anyone to handle. Mr. Walker is facing a substantial amount of prison time for this charge and he will most likely have to go to trial.
Although no one was actually killed in the case, the government may treat the case very seriously in court. Being that Mr. Walker was an attorney in South Carolina, he will be held to a higher standard than the average defendant. The system is less forgiving for those that know the rules and have participated in the system for many years. It is surprising that the Federal Bureau of Investigation was not brought into the case at some point. Many FBI agents have experience with murder for hirer investigations.

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Time is of essence when reviewing a case for a federal criminal appeal. Our federal appellate attorneys are experienced with handling these cases on a daily basis. Hiring the right attorney at his level is your last chance at freedom and your last chance to get back into the justice system. In the Federal Court System the time period to file just the notice of appeal will begin the moment one is sentenced by the court. A good appellate attorney knows these timelines by heart and will be ready to get the preliminary issues related to your case underway. Court reporters and clerks must be contacted and directed to provide specific material to our law firm in order to get the appeal underway. Appeals can range in size from 10 pages up to over 40 depending on the issue presented in the trial or hearing. Every pages can represent a full day or more of legal research and writing. They can expand if there are issues that need extensive attention based on a constitutional violation. Our appellate attorneys in South Carolina are available many times during the week to discuss any appellate issue you or your family may want to discus.

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The Fourth Circuit Court of Appeal recently made a new ruling on the use of recorded telephone calls made by a non law enforcement agent. The case was based on a violation of supervised release by a federal defendant. The defendant was living with his girlfriend, who had some suspicious as to the defendants' relationship with his ex-wife. The girlfriend recorded the defendants' telephone calls and turned them over to his Federal Probation Officer. In the recordings, the defendant threatens to burn down the girlfriends home after she makes him leave. The district court allowed these telephone calls to be introduced as evidence during the defendants' violation hearing. The defendant objected to this evidence and was overruled by the District Judge. The defendant was sentenced to 24 months in prison.
The Fourth Circuit Court of Appeal held that, much like many other Circuits, there is a "Clean Hands" exception to the exclusionary rule. This falls under 18 U.S.C. Sec. 2518. In other words the complain-taint cannot set the defendant up for the violation. The Appellate court held that the the introduction of this evidence was improper. It did not matter that the girlfriend was not acting as a government agent at the time. This is a rare opinion out of the Fourth Circuit. It is the correct decision. The federal appellate attorney for this case should be extremely happy with the result for this Circuit.

Continue reading " Federal Supervised Release " »

In recent news, the Myrtle Beach police announced that they issued over 45 citations and made seven arrests at a checkpoint set up on 17 business near highway 15 in Myrtle Beach on Wednesday morning. Five cars were towed from the scene, and the citations ranged from insurance violations, to driving under suspension, and vehicle registration violations.

The Myrtle Beach and Horry County police have also been setting up additional checkpoints and roadblocks at night to conduct sobriety tests as well as other illegal activity in an attempt to enforce South Carolina's DUI laws. Myrtle Beach attorneys have learned from the local police that an effort is being made across the state to crack on on drunk drivers as a result of the number of deaths associated with drinking and driving in the state last year.

The local police have also cracked down on other offenses related to drugs and alcohol by conducting checkpoints near popular nightclubs in the area. This has resulted in many arrests of tourists, students and locals for disorderly conduct, minors in possession of alcohol, resisting arrest, drug possession, simple assault and battery.

When charged with a crime, including a misdemeanor, it is important to consult with a Myrtle Beach lawyer or a criminal attorney in the area to discuss your options. By pleading guilty to one of these offenses, it could impact your future employment. Additionally, if you are student and you are convicted of a criminal offense, you could be expelled from school.

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In 2007 the Federal Bureau of Investigation had around 120 agents working on Mortgage Fraud. That number is currently over 250 agents, 18 task forces, and 47 working groups. What does that mean? It means that the Bureau has been directed to focus on the mortgage industry. There will be innocent people taken down with the rest of the individuals who will be indicted in the coming months and years. These investigations take a considerable amount of time to investigate because of the paper trail needed to prove the case. Most of the fraud cases require some type of document confirmation. Usually this entails a mortgage application with false information, falsified tax returns, or lying about assets in order to get a mortgage. The problem with most mortgage fraud cases is not all the guilty parties are charged. For instance, the mortgage broker who tells you what to write on your application, the property appraiser who takes a little extra money to up the value of the home, or the bank who could care less about the application as long as they make money.

Defending a mortgage fraud indictment is document intensive. You must have an attorney that is familiar with the application process and the necessary elements the government must prove in order to convict.

Mortgage Fraud is actually one or a combination one or more of the following:
-Bank Fraud
-Mail Fraud
-Wire Fraud
And the fraud must have impacted a federally insurance bank. This means that the bank needs to be part of FDIC (Federal Deposit Insurance Corporation). Many credit unions and other investment houses cannot complain that they are a victim of fraud because they lack the FDIC requirement. The government has continually taken the position that they will not prosecute fraud cases that are against non-FDIC companies. This policy may change as more and more mortgage fraud cases are brought to light.

Continue reading " FBI Mortgage Fraud Task Force " »

The Fourth Circuit is widely considered as the most conservative appellate court in the United States. However, it is also the most efficient, the Fourth Circuit usually issues its decisions within seven months after the initial brief and the government's answer brief is filed.

The court hears appeals from the District of Maryland, Eastern District of North Carolina, Middle District of North Carolina, Western District of North Carolina, the District of South Carolina, Eastern District of Virginia, Western District of Virginia, Northern District of West Virginia, and the Southern District of West Virginia. The Courthouse is located in Richmond, Virginia. There are 15 judgeships, 10 active judges, one senior judge who continues to hear cases part time, and two retired judges who no longer hear cases.

When an appellate attorney receives oral arguments on a case, each side gets twenty minutes to argue their side to a panel of three Judges, and each Judge may ask questions relating the issues presented in your brief. A three light timer is used to monitor each side. When the light is green, counsel may begin, when only five minutes remain, the green light is changed to a yellow light, when the five minutes expire, the red light appears, signaling that counsel is out of time.

As a mater of tradition, the Fourth Circuit Judges come down from the bench after each oral argument to greet the appellate lawyers and to thank them for their advocacy.

Continue reading " Oral Arguments in the U.S. Court of Appeals for the Fourth Circuit " »

The Fourth Circuit has recognized that alienage is an improper basis for a sentence and violates due process. The Sentencing Guidelines also expressly prohibit a sentencing court from considering a defendant's national origin when calculating a term of imprisonment. In U.S. v. Salama, the Fourth Circuit held that it was harmless error for district court to comment about the defendant's alien status based on the particular facts of the case, however, the appellate court did note that the remarks were inappropriate. In U.S. v. Munoz, the United States Court of Appeals for the Fourth Circuit determined that a district court could consider a defendant's background, characteristics and conduct, thus, a court may refer to a defendant's alienage. For example, a court may make a reference to a defendant's national origin to deter similar criminal conduct by others of the same ethnic background, as long as alienage is not the basis of the sentence. The Munoz Court held that the connection between the targeted group for deterrence and the individual being sentenced must be the offense conduct and not the individual's national origin.

This issue will again be examined by the Fourth Circuit Court of Appeals in its December 2009 term. It will be interesting to see how the appellate court treats alien status as a factor in sentencing proceedings in light of the Supreme Court's decision in Booker. Other Circuit Courts, like the Second Circuit and Eighth Circuit Court of Appeals, have held that even the appearance that a sentence reflects a defendant's race, national origin, or alienage requires that the sentence be reversed. In the initial brief and reply brief, the appellant argues that the Fourth Circuit should adopt a similar rule. The government argues in its appellate brief that any error was harmless.

In Federal cases, a defendant is sentenced in a separate court hearing that is set well after a guilty plea or guilty verdict after a jury trial. During this hearing, the district court calculates a defendant's guideline range, address objections to the pre-sentence investigation report, decides whether any sentencing enhancements are appropriate, and if a downward or upward departure should be granted. Federal sentencing proceedings are complicated and as a result, the District Court often commits reversible error during these proceedings. The appellate court will reverse a defendant's sentencing when the District Court improperly applies the law or violates a defendant's constitutional rights.

When filing a federal appeal, an appellate lawyer uses case law precedent of the Circuit Court and U.S. Supreme Court to argue the defendant's position. However, in cases that present an issue that has not been addressed in that particular court of appeals, a federal appellate attorney will cite cases from other circuit courts to support their argument. It will be interesting to see what questions the Fourth Circuit will ask at oral arguments in Richmond, VA in December, and whether the Fourth Circuit will join the Second and Eighth Circuit in holding that even the appearance of ethnic or racial bias by a district court when imposing a sentence is unconstitutional, which would require a reversal and remand for a new sentencing hearing.

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In these difficult economic times, more americans have been filing for bankruptcy under Chapter 7 and Chapter 11 compared to previous years. As a result, the government has increased the number of bankruptcy fraud indictments in South Carolina. Bankruptcy fraud is covered in 18 U.S.C. section 152 and includes a variety of offense conduct, including concealment of assets, lying during a bankruptcy proceeding, false claims, knowingly receiving property from the debtor and omission of assets on a bankruptcy petition.

The corresponding United States Sentencing Guideline is 2B1.1(b). Under this guideline, the amount of loss is an important sentencing factor because it can greatly increase a defendant's base offense level. For example, the base offense level for bankruptcy fraud is a level 6, however, a ten-level increase is applied if the amount of loss is more than $120,000.00. The amount of loss is the amount of loss caused by the fraud. A federal defense attorney will want to calculate this figure as early as possible in the case so that it can be decreased or capped at a certain amount. When calculating an offender's amount of loss, the sentencing court considers the amount of debt discharged or the amount that was intended to be discharged, as well as the value of any concealed or omitted assets from the bankruptcy proceedings. In certain circumstances, the district court may also consider intended loss when calculating this figure.

Other sentencing enhancements for bankruptcy fraud include the use of sophisticated means, multiple victims affected by the fraud and misrepresentation during the course of a bankruptcy proceeding, which is almost always applied in these types of cases. If the offense involved 10 or more victims, a two-level enhancement is applied to a defendant's base offense level. Victims may include creditors. If a defendant uses sophisticated means to perpetrate the fraud, another two-level increase is applied during the sentencing hearing. Sophisticated means is especially complex acts or methods which assist in concealing the offense conduct. This includes using offshore accounts or shell corporations as well as setting up fictitious entities.

A federal attorney will object to these enhancements which are listed in a offender's pre-sentence investigation report. A probation officer prepares the pre-sentence investigation report, but the ultimate decision to apply these enhancements rests with the District Court judge. Therefore, an experienced federal lawyer will file written objections to these enhancements in order to save their clients substantial prison time at the sentencing.

Continue reading " Indictments for Bankruptcy Fraud in South Carolina " »

Although the United States Sentencing Guidelines are now advisory, they are still an important part of all federal sentencing proceedings, including drug crimes. Drug offenses are routinely prosecuted in federal court. Theses offenses can involve a variety of conduct, including drug conspiracies, federal drug trafficking, possession with intent to distribute, and possession of drug paraphernalia. Drug conspiracies may be proven through the use of circumstantial evidence, however, the following elements must be met: an agreement between two or more persons to possess or to possess with intent to distribute some kind of illegal drug or controlled substance, including cocaine, cocaine base, know as "crack", heroin, methamphetamine, or marihuana, the defendant must know of the conspiracy, and must also be knowingly and voluntarily part of the conspiracy.

Drug quantities are an essential part of sentencing in Federal Court. For example, a person convicted of drug conspiracy is not only sentenced based on his own conduct, but also on the basis of the conduct of his co-conspirators that was known to the defendant or was reasonably forseeable to him. This may even include uncharged drug amounts as well as all amounts charged in dismissed counts. This concept is known in the sentencing guidelines as relevant conduct. However, after the Supreme Court's decision in Apprendi, drug quantities which increase the statutory maximum penalty are elements of the offense which must be charged in the indictment and presented to a jury for proof beyond a reasonable doubt.

A federal lawyer may attempt to have the government stipulate to a specific amount of drugs before the sentencing hearing to minimize the potential guideline range. Additionally, a federal defense attorney will almost always file objections to the pre-sentence investigation report and a sentencing memorandum to highlight any mitigating factors to the court.

Continue reading " Federal Drug Offenses and the Sentencing Guidelines " »

Federal crimes are offenses that are made illegal by the United States Code or are committed on U.S. property. In this state, Federal crimes are prosecuted in the District of South Carolina. Federal courthouses are located in multiple cities throughout South Carolina, including Florence, Charleston, Columbia, Aiken, Anderson and Spartanburg. Common federal crimes include tax evasion, mail fraud, and interstate drug trafficking.

In South Carolina, one of the most common federal crimes charged is Felon in Possession of a firearm or ammunition, a violation of 18 U.S.C. section 922(g). In order to prove this offense, the government must prove beyond a reasonable doubt that the defendant had previously ben convicted of a crime punishable by a term of imprisonment of more than a year, the defendant knowingly transported, possessed, shipped, or received a firearm, and the possession was in or affected interstate commerce. Actual possession does not have to be proved, instead, constructive possession is sufficient. In order to prove constructive possession, the government must prove that the defendant had the power to exercise dominion or control over the firearm, this can be shown through circumstantial evidence as well.

There are many sentencing issues that relate to firearms offenses which carry high penalties. For example, under 18 U.S.C. section 924(e), anyone convicted of a 922(g) violation, felon in possession or a firearm or ammunition, who has three prior convictions for a violent felony of serious drug offense, or both, is subject to a mandatory minimum sentence of fifteen years. This statute is known as the Armed Career Criminal Act, or the ACCA. A federal attorney must examine a defendant's criminal history outlined in the pre-sentence investigation report to determine whether the ACCA was appropriately applied. Crimes of violence include an offense that presents a serious risk of injury to others or is arson, burglary, extortion, and crimes involving the use of explosives. Serious drug offense include possession with intent to distribute, offense that carry a maximum term of imprisonment of ten years or more, but does not include simple possession.

Under 18 U.S.C. section 924(c), a defendant who uses, possesses, or carries a firearm during or in furtherance of a crime of violence or drug trafficking crime is subjected to a mandatory consecutive term of imprisonment of five years. If convicted under 924(c), five years is added to a defendant's sentence, it can not be served concurrent with other counts. f the firearm is 'brandished' the mandatory minimum consecutive penalty is seven years, and if the firearm is 'discharged', the mandatory minimum penalty is increased to ten years. It is therefore important to consult with a criminal attorney who has handled Federal gun cases to learn what penalties you could be facing.

Continue reading " Felon in Possession of a Firearm is a Common Federal Crime Charged in South Carolina " »

In a recent opinion out of the District of South Carolina in Charleston, Chief Judge Norton issued an opinion stating that Failure to Stop for a Blue Light is not a crime of violence, even if the state court indictment includes the word "intentional" or "willful." Most appellate attorneys practicing in the Fourth Circuit Court of Appeals agree this opinion appears to conflict with the Roseboro decision decided this past January in the Fourth Circuit. In that case, the appellate court determined that failure to stop for a blue light was not a crime of violence when applying the test established in Begay because the statute included negligent and intentional conduct. However, the Fourth Circuit in Roseboro also held that a district court in a federal sentencing could find that South Carolina's failure to stop for a blue light was a crime of violence if based on willful conduct. The Court of Appeals concluded that intentionaly failing to stop after being signaled to do so was inherently dangerous and could qualify a crime of violence for sentencing purposes pursuant to the ACCA and the career offender provision of the United States Sentencing Guidelines.

In the Johnson opinion, Chief Judge Norton argues that failure to stop for a blue light does not qualify as a crime of violence under the Armed Career Criminal Act ("ACCA") in light of the Supreme Court's decision in Begay. When examining the South Carolina statute, it does not require intentional conduct and is closer to a strict liability crime, a defendant's mens rea is not an element of the crime. Failure to stop for a blue light is also not similar in degree and risk to the crimes of burglary, extortion, arson, or crimes involving explosives. The offense does not always involve purposeful, aggressive, and violent.

This opinion could greatly affect federal sentencing in the District of South Carolina. Many federal attorneys in South Carolina have clients who have pled guilty to failure to stop for a blue light. Federal criminal lawyers know that if a defendant has three or more prior convictions that constitute a serious drug offense or a violent felony could possibly be sentenced as an armed career criminal, and as a result, could face a mandatory minimum sentence of fifteen years in prison. A good criminal attorney will now argue at sentencing that failure to stop for a blue light no longer qualifies as a predicate offense under the ACCA, even if the state court indictment includes the word 'intentional' or 'willful.'

Continue reading " Chief District Judge Addresses Failure to Stop for a Blue light under Begay " »