Frank A. Rubino: Florida Criminal Offense Lawyer, Fraud, Tax Fraud, International Crime

Federal Criminal Defense Attorney

     White Collar Crime
     Internet Crime
     Drug-Related Crime
     International Crime

White Collar Crime - An Overview

Crimes that do not involve physical violence, and that relate largely to financial matters, are often called "white collar crimes". People charged with white collar crimes have the same rights and protections as defendants accused of other crimes, but white collar offenses are often very complex, and involve numerous complicated legal and factual issues.

Unlike many criminal offenses, individuals charged with federal white-collar crimes often know that they are under investigation. Federal authorities often spend a year or more investigating white collar crime cases prior to filing charges. It is important to hire a federal white collar criminal defense attorney as soon as a criminal investigation is underway as often charges can be reduced and sometimes federal white collar criminal charges can be avoided. When Frank Rubino handles a federal white collar crime case, he begins working with authorities before charges are filed.

Fraud – Fraud is a very serious and broadly defined criminal offense, usually defined as an intentional deception, or false statement, that is meant to injure a person. The injury in fraud usually deprives a person of money or other property that rightfully belongs to that person.

Criminal fraud is a charge that can be brought against a business, as well as against an individual (a business cannot be put in prison, but can be hit with substantial fines). Fraud charges implicate one of the most important assets a business or a person can have: a reputation for honesty and fair dealing. Fraud crimes are classified according to the type of transaction in which the deception occurred. Examples of fraud crimes include:

Bankruptcy fraud,
Credit card fraud,
Securities fraud,
Tax fraud and
Telemarketing fraud.

In addition, in the federal system, the fraud charge may depend on how the deception or false statement was communicated to the alleged victim. If the communication was done by mail, the charge could be mail fraud. If the communication was done by telephone, telegraph, or over the Internet, the charge could be wire fraud.

Fraud charges can taint the reputation of a person or a business for a long time after the formal criminal charges have been dealt with. Accordingly, if you or someone you know has been accused of criminal fraud, now is the time to consult an experienced criminal defense attorney.

Insider Trading – Insider trading is a type of securities fraud. The markets for publicly traded securities operate on the notion that no one trader is supposed to have an advantage over another trader; all trading is supposed to be based on information available equally to all participants. Insider trading occurs when a person - an "insider" - uses information that is not available to the general public and that could affect the price of a company's stock "inside" information as the basis for making securities trades. Regardless of whether the “inside information” comes from direct dealings or indirectly such as a "hot tip" from someone else who has direct dealings, the defining and essential consideration is the use of information that is NOT available to the public at large.

The Range of Possible Penalties for White Collar and Serious Felony Crimes – The most frightening part of being a defendant in a white collar criminal case - or any criminal case - is the potential penalty involved. Most white collar defendants have no prior experience with the criminal justice system, and the question of what could happen looms understandably large in their minds.

The penalties for white collar crimes vary. Most of the laws authorize a monetary fine, a prison sentence, or a combination of the two. In some cases, the convicted person(s) may be required to forfeit profits resulting from illicit actions and to pay restitution to the victims. The criminal laws authorize maximum penalties, which are often quite severe but which are seldom imposed. Most defendants receive a lesser sentence which may, depending on the jurisdiction, be calculated according to sentencing guidelines intended to ensure that criminal sentences are uniform and which permit very little discretion on the part of the sentencing judge. The guidelines take into account the crimes for which the defendant has been convicted and any prior criminal record of the defendant. There are cases in which the court may consider factors that will allow it to depart from the guidelines and to impose a different sentence.

There is a common belief among many members of the public that defendants convicted of white collar crimes get to do "easy time” served in comfortable, minimum-security institutions that are more like country clubs than prisons. This belief is a myth. While many sentences for white collar crimes are served in minimum-security institutions, there is no guarantee that this will happen. In addition, no matter how minimal the security, prison is still an unpleasant place. A person sent to prison is separated from his or her home, family and friends, and forced to live behind bars for a period of time. There is also the social stigma of incarceration. There is no such thing as "easy time."

Other Consequences – If your conviction is for a felony, you may suffer other consequences besides the criminal sentence. Depending on the state you live in, you may lose the right to vote, or to possess a firearm. You may lose the right to practice your profession. An experienced criminal defense attorney can give you advice regarding the other consequences you may face.

Civil Consequences of White Collar Crime – A prosecution for a white collar crime can lead to more than criminal penalties, giving rise to civil lawsuits that may be brought either by the federal or state government, or by the victims of the offense. Any civil liability imposed is in addition to, and not a substitute for, the penalties imposed in the criminal case and is a troublesome factor to consider when preparing to defend a white collar criminal prosecution. An experienced white collar crime attorney can give specific advice on the possible civil liability in a particular case.

A civil case is different and separate from a criminal case, even if the two cases are based on the same set of facts. Unlike a criminal case, a civil case does not have to be proven beyond a reasonable doubt. The standard of proof a civil case is lower in most states, requiring only a "preponderance of the evidence." This means that you may be found liable even if the jury has some doubts about your guilt. If you have been convicted of the crime that leads to the civil suit, the fact of your conviction alone may be enough evidence to impose civil liability on you.

In addition, the rights you have come to expect in criminal cases do not apply in civil cases. You have no right to remain silent, which means the other side may be able to force you to testify, even if testifying would harm you or your case. You also have no right to have an attorney appointed for you if you cannot afford to hire one on your own.

Attorney Frank Rubino has gained a reputation as an aggressive criminal defense attorney with the skill and knowledge to bring about positive results for his clients. If you have been charged with or are under investigation for a serious crime in Florida or for any federal criminal charge, contact Frank A. Rubino, Esq. at (866) 435-1623 or email him using the contact form in the left-hand column. In criminal defense cases, experience makes the difference.

White Collar Crime Resource Links

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Internet Crime - An Overview

The Internet has changed everyday life in ways too numerous to count. Instantaneous communication with people all over the world has become commonplace. The new technology has also created new legal issues, particularly in the criminal law area.

Internet Fraud – The Internet is used to commit different types of fraud. New types of fraudulent schemes have become increasingly common, including

Nigerian "4-1-9 scams," asking for bank account information and cash payments to move a large amount of money out of the country;
"Phishing," or impersonating a legitimate business or governmental agency, in order to obtain bank account or credit card information; and
Identity theft, in which a person's Social Security number, bank account numbers, and credit card numbers may be taken and used or sold by another person.

Tracking down and prosecuting the party who engages in fraud online is complicated. The Internet offers anonymity that can make it difficult to find the person committing the crime. Prosecution is also complicated by the reluctance of many victims to come forward and report the crime, due to their embarrassment at being taken in by a swindler.

Identity Theft – “Identity theft" is the use of someone else's personal information without his or her permission. The theft can happen when a wallet or purse is stolen, or when a person's mail is diverted or stolen, or by a dishonest employee who steals information gathered for a legitimate transaction. Many victims have found their credit rating ruined by thieves who run up immense debts in the victim’s name. Identity theft is a growing problem, and prosecutors and law enforcement are growing more aggressive in their efforts to fight it.

Federal law makes identity theft a felony. The maximum punishment is imprisonment for up to fifteen years, plus forfeiture of all assets obtained through fraud. A fine also may be imposed. Identity theft may also be prosecuted under other federal laws, such as the laws against Social Security fraud, or credit card fraud.

Most states have enacted criminal laws against identity theft. In the states that do not have a specific law against identity theft, the crime may be prosecuted under other laws, such as laws against fraud, or theft of personal property. Some states have also enacted laws that provide for a civil suit by the victim against the thief.

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Drug-Related Crime - An Overview

Drug charges cover a broad range of offenses, from the less severe, like simple possession of a small amount of certain drugs, to the more serious, such as participation in an ongoing drug-related criminal enterprise or manufacturing and distributing drugs. Even minor charges can be terrifying, however, and carry the risk of serious penalties upon conviction; the more serious charges, of course, can give rise to even graver consequences.

Federal and State Drug Laws and Penalties – The United States judicial system is divided into state and federal courts. Whether a person accused of a drug-related crime is prosecuted in the federal or state criminal system depends on what laws were violated and the policies and procedures of each court system. Often a particular criminal behavior will violate both a state and a federal law, and drug charges are no exception. Out of millions of felony prosecutions filed each year, only about three percent are filed in the federal system. In theory, the offender could be prosecuted in both systems for the same criminal activity, but in practice this rarely happens. Most federal and state prosecutors divide up criminal charges based on availability of resources, which statute most closely fits the criminal conduct, available punishment in each system and each system's policy considerations

The first narcotics laws began to appear in the early 1900s. In 1970, the federal government passed the Drug Abuse Prevention and Control Act, codifying federal drug law into a uniform system. The Act classifies drugs into five categories, listed in schedules, and establishes regulatory requirements and penalties for the misuse of the drugs on each schedule. The Act also allows the United States Attorney General to add drugs to the schedules as necessary. Most states have drug laws that mirror the federal act, but the penalties may be less harsh and more flexible under state sentencing schemes than under the federal sentencing guidelines. A conviction of simple possession, for example may receive a sentence under state law of drug treatment rather than jail time, and probation may be available to first-time offenders for even the more serious crimes.

The most severe legal restrictions and penalties involve Schedule I and II drugs as set forth in the federal law. Schedule I drugs are those with a high potential for abuse, with an absence of any medical use, and that are dangerous to the user even under medical supervision. The most well known of these drugs are heroin, LSD, mescaline, marijuana, and peyote. Schedule II drugs have a high potential for abuse and a high potential for severe psychological or physical dependency, but a currently accepted medical use. Schedule II drugs include opium, cocaine, methadone, amphetamines, and methamphetamines. Schedule III drugs, by comparison have less potential for abuse than Schedule II drugs, a potential for moderate psychological or physical dependency, and an accepted medical use. The most well known Schedule III drug is naline, which is used to detect narcotic use. Schedule IV drugs have less potential for abuse than Schedule III drugs, they have a limited potential for dependency, and they are accepted in medical treatment. These drugs include tranquilizers, meprobamate, chloral hydrate, most drugs that cause sleep, and sedatives. Schedule V drugs, which have a low potential for abuse, limited risk for dependency, and accepted medical uses, include drugs with small amounts of codeine or other narcotics in them.

The federal sentencing guidelines begin with forty-three base offense levels for drug charges and add or subtract a few levels depending on certain specified criteria. The higher the offense level, the harsher the sentence. The base offense level under the federal guidelines differs for different drugs and for different amounts of the same drug. For instance, if the conviction is for the crime of manufacturing 300 kilograms of heroin, the base offense level is forty-two. If the conviction is for manufacturing 300 kilograms of cocaine, the base offense level is thirty-eight. Crack is a form of cocaine and is listed on the same schedule of controlled substances, but the penalties for crack are more severe than for powdered cocaine. For example, a person convicted for delivering just five grams of crack will receive a sentence in the federal system of five to forty years, whereas an equivalent sentence on a cocaine charge would only apply if the conviction is for delivery of 500 grams of powdered cocaine.

The crime of "simple possession" requires that the offender knowingly and intentionally possess a scheduled drug without a valid prescription. The government must prove that the offender knew the drug was a controlled substance and that he or she had either actual possession of it or other control over it. The federal sentencing guidelines provide for a maximum of one year in prison for a first offender, a maximum of two years in prison for a second offender, and a maximum of three years in prison for a third or higher offender. The sentence for possession of more than five grams of crack cocaine, however, is increased to a minimum of five years in prison, even for first-time offenders.

Manufacturing, delivering, or possessing with intent to deliver a controlled substance is a crime with escalating penalties depending on the drug involved, the quantity of the drug, the offender's prior record and certain circumstances of the transaction. For example, three circumstances are penalty-enhancement crimes for which sentencing is double or triple what it would otherwise be: distributing controlled substances to persons under twenty-one years of age, distributing controlled substances near a school, and causing persons under age eighteen to violate drug laws.

The offense of "continuing criminal enterprise" is charged when the defendant commits a felony drug violation as part of a continuing enterprise or scheme with five or more individuals, and from which substantial income is derived. The penalty is twenty years to life in prison, or even the death penalty if the offender intentionally kills another in the course of the enterprise.

Sentencing guidelines are constantly being scrutinized and revamped. The guidelines have met with significant criticism for their imposition of "mandatory minimum" sentences. In 2004, the Supreme Court held that the sentencing guidelines were to be advisory, not mandatory.

Finally, much of criminal procedure is determined by the requirements of the Constitution. First and foremost, the Constitution requires that every person receive due process of law before his or her life or her life, liberty, or property can be taken. The Due Process Clause is the basis for the requirement that crimes be clearly defined and that the government must prove every element of the crime beyond a reasonable doubt. The Fourth Amendment protection against unreasonable searches and seizures is the basis of the exclusionary rule that keeps illegally seized evidence out of a criminal trial, and the Fifth Amendment's bar on self-incrimination gives offenders the right to remain silent and to choose not to take the stand in their own defense. The Sixth Amendment guarantees the accused a right to an attorney who is allowed to be present at all stages of the criminal proceeding, including during a custodial police interview. And the Eighth Amendment bans cruel and unusual punishment and has been used to invalidate harsh sentences and prevent abuses of prisoners.

Searches & Seizures in Drug Cases – The Fourth Amendment of the Constitution protects an individual against unreasonable searches and seizures of his or her person or property. A search may involve an inspection of the person or his or her surroundings or property, and seizure refers to taking the person or property into police custody. Usually, but not always, if a seizure is invalid, it is because the seizure was preceded by an invalid search.

In many drug cases, the arrest and evidence used to support a conviction generally results from a search and seizure. If constitutional protections were not applied to governmental conduct, the evidence may be deemed inadmissible and the charges may be dismissed or unprovable. An experienced criminal defense attorney can advise his or her clients on whether the evidence leading to a drug charge may have resulted from an improper search or seizure and answer all other questions regarding the criminal justice process in drug cases.

A "search" does not technically take place unless the investigation intrudes on a person's privacy. Thus, there generally is no search if the police find a bag of drugs lying on the sidewalk or hanging out of someone's pocket. On the other hand, if they look in a bedroom drawer to find the same bag of drugs, that conduct will generally be deemed a search. The distinction lies in the "reasonable expectation of privacy" involved. If someone has a reasonable expectation of privacy in an area of his or her person or property (such as in a house or vehicle), police investigation of that area is deemed a search. If there is no such expectation, or if the expectation is not reasonable, no search has been conducted for constitutional purposes.

Searches conducted pursuant to a judge-authorized warrant are generally deemed reasonable unless the warrant was improperly obtained. A search warrant must describe the area to be searched and what the police are searching for. The search must be reasonable in relation to the evidence sought. For example, if the police claim to be searching for a car, they can look in a garage but will not be able to look in a toolbox in the garage. Evidence gathered pursuant to a proper search can generally be seized if it relates to the crime being investigated.

Searches can also be valid if they are done with the consent of someone who has control of the property, which need not be the owner. During an arrest, however, consent to a search is not necessarily required; police can search the arrestee and the immediate surroundings for weapons or evidence that might be destroyed. Following similar reasoning, police may search without a warrant when the search is necessary to protect against destruction or removal of evidence. This is a commonly used exception to the warrant requirement. Police may also conduct searches to protect the public from imminent danger, such as the planting of a bomb, or to search for fleeing criminals.

There has been considerable litigation involving governmental (usually the police) restriction of someone's movement, known as "seizure." Police interactions with individuals may range from an investigatory stop to a full-blown arrest. The more freedom retained by the person when the police interact with him or her, the lower the level of suspicion required for the police to engage in that interaction. If there is no control and a person is really free to leave, there is no seizure. However, in many instances in which the police stop a person, that person has a reasonable perception that he or she is not free to leave.

If a person is subject to seizure, such as an arrest, that seizure can, like a search, be made pursuant to a warrant. Since a warrant is a court order authorizing an arrest or search, when there is a warrant the seizure is presumptively valid. The presumption of validity can sometimes be overcome, however. For example, a warrant may be invalid if it was obtained on the basis of false or misleading statements to the judge. If the police did not have a warrant, the burden is on them to show that the circumstances justified the seizure. In most instances, the police will have to demonstrate "probable cause," that is, a reasonable belief that a crime had been or was going to be committed and that the person seized was involved in the crime.

If an arrest or other seizure of the person is invalid, the person must be released. If the police obtained evidence as a result of the invalid arrest, the government may also be prohibited from using that evidence at the person's trial based on the "exclusionary rule." This rule also applies to evidence that was obtained as the result of an invalid search.

Why Treatment May Be Better than Incarceration for Drug Offenders – In some cases, the best solution for drug problems is not increased incarceration, but rather increased treatment. According to the Bureau of Justice Statistics, it costs a national average of over $20,000 per year to incarcerate a criminal offender. With about 150,000 inmates currently incarcerated on drug possession charges, the United States is spending nearly $3,000,000 each year to imprison these people. Further, research has indicated that every dollar invested in addiction treatment programs yields a return of between four and seven dollars in reduced drug-related crime, criminal justice costs and theft. Treatment programs also incorporate vocational and life skill training, thus enabling the drug user to become a productive part of society once again. With such impressive savings at stake, more courts are looking at drug treatment versus imprisonment when sentencing drug offenders.

The public stands to benefit from the financial and societal savings that result from treatment versus imprisonment for certain drug offenders, and the offenders themselves benefit from the training and rehabilitation afforded them in treatment centers.

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International Crime - An Overview

International criminal law refers to crimes that involve more than one country. It sometimes refers to crimes committed in one country that affect another country. It also deals with securing suspects, witnesses, and evidence from other countries to prosecute a crime.

International criminal defense is extremely complicated, often requiring specialized knowledge of laws in multiple jurisdictions and countries. Frank Rubino has gained acquittals for clients charged with crimes around the world.

Criminals in many different countries often target foreign tourists and other visitors. These criminals operate on the theory that a foreign visitor may not know how to deal with local law enforcement, or may be unable to make a meaningful identification of someone of a different race or ethnicity. Many foreign visitors often are reluctant to initiate proceedings out of a reluctance to return to a foreign nation to testify in a court proceeding.

If you are the victim of a crime while you are overseas, you should report the matter to local law enforcement officials. You should also contact the nearest U.S. embassy or consulate. Consular officers in over 250 cities around the world are available to assist Americans who are victims of a crime. This assistance may include

Contacting family, friends, and employers in the United States to let them know about your situation;
Helping to find medical care or other emergency assistance;
Explaining the local justice system to you;
Replacing a stolen passport;
Helping to find a local lawyer who speaks English; and
Providing information about victim assistance programs both in the foreign country and in the U.S., including victim compensation programs.

Consular officials may not provide legal representation. It is also beyond the scope of their duties to try to influence local officials to take action, or to speed the process.

International Cooperation in Criminal Law Matters – Advances in international communication, as well as the ease of traveling to foreign lands, make international crime a concern for everyone. Several treaties and international conventions exist to provide for cooperation between different countries in criminal matters. International travel and transactions have become commonplace, adding a new dimension to the enforcement of criminal laws. Increasingly, ordinary people are being victimized by crimes perpetrated from across international borders through the Internet, and the fight against global terrorism is not confined within the borders of any one nation. The multinational agency Interpol helps member nations share information and resources about criminal matters that involve more than one country.

With the exception of crimes prosecuted by international tribunals, like war crimes or genocide, criminal laws are enforced by the country that enacted them. Americans traveling in foreign countries are subject to the criminal laws of that country. If they break those laws, they are liable to prosecution in that country. Americans arrested abroad are to be treated no differently than anyone else arrested in that country and are NOT entitled to any special rights or privileges.

A crime committed in the United States may also take on an international character. Suspects frequently flee the U.S., hoping for a safe haven in some other country. This necessitates extradition proceedings, requesting the surrender of the suspect to U.S. authorities. Financial crimes may involve investigation and gathering evidence in foreign countries. Law enforcement agencies rely on intelligence from their foreign counterparts in investigating and preventing criminal activity in their own jurisdictions.

International Intellectual Property Laws – International law protects the rights of intellectual property owners, even outside the borders of their home country. Most nations are member of the World Trade Organization (WTO) and, as a condition of membership, nations are required to ratify the Agreement on Trade-Related Aspects of Intellectual Property Rights.

The Agreement sets up a system of strict protection of all intellectual property rights. Exceptions to the protection of intellectual property (for example, fair use of copyrighted material) must be strictly construed, and limited in scope. Furthermore, the Agreement provides for a means of resolving disputes between member nations and makes subscribing nations subject to discipline by the World Trade Organization which could lead to the imposition of trade sanctions.

Piracy or theft of trademarks and copyrighted material is a growing concern. As improved communication methods make sending data across international boundaries a simple matter, theft of intellectual property has become a global affair. Cases that involve the piracy or theft of intellectual property are complex ones, and if you are involved in such a case, you should consult with an attorney with experience in the area.

Piracy and counterfeiting describe the sale of copies of products without the permission of the owner of the rights to those products. Piracy usually refers to the sale of unauthorized copies, without necessarily claiming that it is an authorized copy. An example of piracy would be selling a video recording of a movie made by someone sitting in a theater with a video camera. Counterfeiting means selling a copy that looks like an authorized copy and falsely claiming that it was authorized or licensed, such as selling unauthorized or unlicensed copies of software in a package that looks exactly like a legitimate package. Operating beyond the territorial reach of U.S. law enforcement, many unscrupulous vendors make or distribute unauthorized copies that find their way into the U.S. market. The authorities in the vendors' own countries often do not assign a high priority to catching or prosecuting intellectual property thieves.

Interpol: the International Criminal Police Organization – Interpol is an international agency set up in 1923 that provides its 181 member nations with assistance in law enforcement matters that cross international borders. It is headquartered in Lyon, France. It is not an agency of the United Nations, but does have a representative at the U.N. The United States joined Interpol in 1938.

Each Interpol member nation has police officers that staff an office known as the National Central Bureau, or NCB. The NCBs are located in each member nation, and are responsible for transmitting information and responding to requests from other member nations, and from local law enforcement agencies in that nation. The U.S. National Central Bureau is located in the Department of Justice in Washington, D.C.

The purpose of Interpol is to provide member nations with technical support in international criminal matters. The technical support takes three essential forms:

A secure communications system, to provide member nations with important information, such as wanted notices or terrorism alerts;
Databases of names, fingerprints, DNA, samples, and notices; and
Operational support.

Interpol has worked to develop initiatives to fight drug trafficking, terrorism, Internet crime, financial crimes, and the modern-day slave trade.

Contrary to what many people believe, Interpol does not dispatch agents to foreign countries to investigate crimes, or arrest criminals. Arrests and investigations are matters left entirely to local law enforcement authorities. Interpol also does not engage in the monitoring or observation of individuals or businesses. It does not request information about individuals. Information is supplied to Interpol by the law enforcement authorities of member nations, on the initiative of those agencies.

Extradition – Extradition is defined as the surrender of a person alleged to have committed a crime by the nation in which that person is located, to the nation that has the jurisdiction to prosecute the alleged crime. The surrender is done with or without the consent of the person surrendered.

Before a person may be extradited from one country to another, there must be a legal mechanism permitting the extradition. More than 100 countries have extradition treaties with the U.S. Some treaties set out the specific offenses for which extradition may be ordered or may list offenses for which extradition will not be allowed.

Some nations, such as France and Israel, refuse to surrender their citizens for prosecution in another country. In some circumstances, Israel will try Israeli citizens in its own courts for crimes committed abroad. Many nations also will refuse U.S. requests for extradition if the person being extradited could face the death penalty in the U.S., unless assurances are given that the death penalty will not be requested or imposed.

Most extradition treaties contain a provision known as the "rule of specialty." That rule provides that a person who has been extradited may be prosecuted only for the offense listed in the extradition request. The rule is to ensure that a person is not extradited on a pretext, only to be prosecuted for an offense for which extradition may not be allowed. The rule of specialty may be waived by the nation from which a person is extradited.

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