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Arizona Criminal Defense Attorney Procedure in Detention and Preliminary Hearings

The client of a criminal defense attorney in Arizona is usually brought to federal criminal prosecution by indictment, although occasionally, law enforcement officers will initiate the process through a criminal complaint. For his initial appearance, the client and his criminal defense attorney must be brought before the US Magistrate Judge in the district where the offense is alleged to have occurred, or in the district where the defendant was found and arrested. This must be done without “unnecessary delay,” which is generally within 5 days or less. The magistrate informs the client of his rights and sets the case for bail hearing and preliminary hearing.

The preliminary hearing
When a complaint is filed, the client of a criminal defense attorney is granted the right to a preliminary hearing, which must be within 10 days if the defendant is under government custody. The detention hearing is often consolidated with the preliminary hearing, allowing the judge the judicial economy of hearing testimony regarding the weight of the evidence in a single hearing, rather than stretching it out between 2 hearings.

Frequently, a federal indictment will arise out of a case that originally started at the state level. In these cases, a preliminary hearing was already likely held at a state court. The testimonies of these hearings are of critical importance to the criminal defense attorney in defense of the federal indictment. Whenever a criminal complaint is filed at the federal level, defense counsel has a similarly excellent opportunity to gather information that may prove useful to the case.

Detention hearings
The prosecution may request pretrial detention and a hearing for that purpose in the event of an alleged crime of violence, an alleged drug offense carrying a potential of 10 or more years in prison, an alleged felony if the defendant has prior violent or drug felonies carrying 10 or more years, an alleged crime with a punishment of life imprisonment or death, cause to consider the defendant a flight risk or may obstruct justice.

If the government requests the defendant to remain in custody, it may seek up to a 3 day continuance of the detention hearing. A criminal defense attorney may also request continuance to obtain witnesses or to prepare for the detention hearing. If the prosecution seeks pretrial detention, the defendant is usually held in detention pending the bail hearing. A removal hearing may even precede the detention hearing if the defendant is an illegal alien.

A criminal defense attorney in Arizona appointed according to the Criminal Justice Act is frequently arranged immediately following the defendant’s appearance before the magistrate judge, with the detention hearing being only a few days away. This time will be spent with the criminal defense attorney speaking to the client and his or her family and discussing options in the steps of the legal process ahead of them.

The steps of the legal process are scheduled according to a time line designed to be expedient while allowing the defense plenty of time to consider its case. Both prosecution and defense need to prepare to make their case. Time is of the essence, as an extensive trial can be considered cruel and unusual punishment.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona criminal defense attorney, visit our site.

Arizona Sex Crimes Lawyer and the Interstate Commerce Element of Child Pornography

A sex crimes lawyer in Arizona defending clients charged with receipt or possession of child pornography faces unique challenges. Aside from the mental health issues their clients may be facing, as well as the visceral reaction judges and juries have to these types of cases, many pornography charges are fraught with damaging admissions, forensic reports from government computer experts, as well as garner draconian penalties. However, a sex crimes lawyer can gain leverage by focusing on the frequently overlooked interstate commerce element of the receipt and possession statutes.

It is important to understand that the interstate commerce defense a sex crimes lawyer can make has nothing to do with the power of Congress under the Constitution interstate commerce clause to criminalize receipt or possession of pornography, as that authority cannot be easily disputed. Rather, the defense can make an argument based on the interstate jurisdictional elements in the statutes themselves.

For example, the prosecution must prove that the pornography crossed state lines. In the case of Internet pornography, proving that is open to debate. It is in this blurred area of distinction that a sex crimes lawyer can use to his advantage.

Congress’s narrow jurisdictional element
It is important to recognize that by requiring that elicit images were moved or transported across state lines, Congress enacted a relatively narrow jurisdictional element that is of interest to the sex crimes lawyer. If Congress was chiefly interested in extending federal authority to prosecute as far as possible, it would have adopted wording that merely required proof that the defendant used “an instrument of interstate commerce” while committing a receipt or possession offense. If this had been the wording, merely downloading the images on the Internet would have been enough to prove the interstate element.

Congress probably realized that most states already had child pornography statutes in place, and only sought to create legislation that covered pornography cases across a large region that involved a multitude of states and jurisdictions where interstate activity is clearly involved.

Nevertheless, regardless of Congress’s intentions, the court is required to interpret and construe judicial elements in a narrow light. When it comes to proving interstate activity, prosecutors often offer no proof that the visual depictions were transmitted onto the defendant’s computer from a different state or other location in the country.

For this very reason, a sex crimes lawyer should focus on the sufficiency of proof related to the interstate elements. Most interstate evidence, or lack of, that is offered by the government is typical. In more cases than not, the shaky evidence won’t stand up under scrutiny in court.

The challenges of a sex crime lawyer in Arizona are great. Often, there is little to work with as the evidence presented can be quite conclusive. In addition to the stigmatized nature of sex crimes, the client faces increased prejudice from the jury as well as the bench. It is only in the interstate commerce clause that an attorney gets much leverage to give his client any favor. By hiring a lawyer specialized in sex crimes and the unique issues involved, a client can get a better judgment from the court that results in a more desired outcome.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona sex crimes lawyer, visit our site.

How an Arizona Sex Crimes Attorney Client Can Be Affected by the Adam Walsh Act

Ask any sex crimes attorney in Arizona. The Adam Walsh Act, enacted in 2006, is the most complex, progressive and punitive sex offender law ever enacted. It was done in response to the public outcry as well as political outcry over sexual offenders and the threat they present to society. The law was grounded in conception by several noteworthy child sexual homicides, and in fact, names a handful of these children. In essence, the statute enhances penalties for already existing sexual federal offenses as well as creates new federal sexual offenses that the client of a sex crimes attorney may be charged with.

Most importantly, the act establishes the Sexual Offender Registration and Notification Act, creating a national registry of sexual offenders that law enforcement officers may use to access information about sexual offenders in order to efficiently track them throughout the country. The law delineates risk levels for community registration and notification on a 3 tiered system that is offense based rather than risk based.

Essentially, the AWA requires stricter juvenile sexual offender notification elements that can conflict with the rehabilitative process of the client of a sex crimes attorney. The law also restricts the ability of a sex crimes attorney to access evidence regarding computer pornography crimes, which can affect their ability to prepare for trial.

AWA Sexual Offender Civil Commitment Statute
The AWA also created the Jimmy Ryce Civil Commitment Program that established civil commitment procedures for federal sexual offenders. This may be in fact the most castigating feature of the law, considering the reality of life commitment for some sexual offenders. The commitment clause had 2 primary objectives: assist funding for states that don’t have such legislation, and mandate the civil commitment of sexually dangerous federal offenders.

About 20 states entertain civil commitment statutes to confine sexually violent predators. Many states reject such legislation, primarily for funding reasons. The AWA provides grants for states to meet these financial needs.

AWA Limitations
The AWA managed to leave many areas unresolved, much to the frustration of many a sex crimes attorney in Arizona. It failed to establish a standard or burden of proof for risk to reoffend and does not permit a jury trial. The law does not conclude whether the respondent has the right to remain silent, nor does it compel him to participate in a court ordered examination. It also does not provide for a provision that compromises the possibility that disclosures about sex offending behaviors during treatment will not be used against the offender by the government to procure more commitment.

The AWA also fails to resolve discovery procedures related to the client of a sex crimes lawyer.

Most civil statutes include a “likely to reoffend” component. The AWA fails to have such a distinction. Instead, the law incorporates a volitional mandate. The definition only calls for a “serious difficulty restraining from sexually violent conduct or sexual molestation if released.”

The AWA is a harsh law that can impose significant confinements on the client of a sex crimes lawyer in Arizona. Most importantly, it presents roadblocks in the road to rehabilitation. Punishment becomes the solution while rehabilitation becomes an impossibility.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona sex crimes attorney, visit our site.

The Advantage of a White Collar Attorney in Arizona

Ask any white collar attorney in Arizona. Ever since the Enron Scandal, prosecutors have become more sensitive to white collar crimes and have begun to prosecute them more vehemently. While your average district attorney may not prosecute cases as complex and far reaching as the Enron debacle, even straight forward white collar cases can present defense challenges for the white collar attorney.

While public defenders and private defense firms may cover a broad spectrum of crimes, the experience of a white collar attorney is dramatically different from that of any other. The defense counsel are often overwhelmed by the amount of paperwork a prosecutor can produce, especially if the counsel typically deals with narcotics, violent crime or other criminal specialties. Ideally, it’s best to go with a white collar attorney who knows the ins and outs of white collar criminal cases and can handle the sheer amount of paperwork that’s involved.

A lack of statutory and case law guidance on white collar crimes issues in regards to discovery matters  presents considerable challenges to both prosecutor and white collar attorney alike. Researching federal cases law relating to white collar criminal discovery gives judges guidance at the state level. While state case law if preferable, a white collar attorney has the opportunity to educate the judiciary on discovery issues unique to white collar crime, as the judiciary may be willing to incorporate federal case law in their decisions, particularly that requiring prosecutors to disclose the documents they intend to use during trial.

Document dump is a frequent tactic used by public prosecutors in an effort to overwhelm the defense. A prosecutor may present literally thousands of pages of documents, even when she knows that only 10 or so of those pages are actually pertinent to the case and the rest is mere filler. The defense counsel team often has limited resources and can get bogged down simply combing through the vast amount of information.

It is critical that a white collar attorney in Arizona understand the business internal controls and their role in defending the client accused of fraud, know the best type of expert to hire, be able to argue the best cases about discovery issues related to white collar crime that are in the best interest of the client.

A Common Misconception
Most white collar crimes at the state level involved bookkeeping fraud, rather than the intentional misapplication of accounting rules, known as Generally Accepted Accounting Principles (GAAP). One example of a GAAP violation is a company overstating revenue by claiming revenue that has not been earned. A bookkeeping example of fraud would be when an employee has been charged with embezzlement from a business that the prosecution claims the employee used to funnel funds into their own private account. In the latter case, the individual circumvented an internal control procedure to protect the organization’s assets in order to access the illegal funds.

The challenges of document review inherent in white color crime require the expediency of a white collar attorney. He or she will be more familiar with the issues and know what it comes to expedient document review to prepare the best case for the most desired outcome.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona white collar attorney, visit our site.

How a Good White Collar Lawyer in Arizona Can Leverage “Puffery”

The recent economic roller coaster face experienced by many corporations around the world has resulted in an unprecedented numbers of people in need of a white collar lawyer in Arizona. As the director of the FBI confirmed last fall, 24 large financial institutions have been investigated for some type of alleged fraud. Whether or not these investigations will result in a filing of charges, it is clear that the current financial crisis will bring about a wave of violations and civil suits alleging violations of the Security Exchange Act of 1934 based on purported material misstatements about a public company’s performance. These companies will soon become the clients of a white collar lawyer.

While these new cases may be bigger and have a higher profile than cases in the past, the legal issues are no different than those faced by any case involving a white collar lawyer. Most of the current cases center themselves around classic securities fraud. So while they may be bigger and more extensive, they involve the same basic issues as any other white collar crime.

A white collar lawyer in Arizona is likely to argue that the alleged statements were in fact not material, and therefore cannot form the basis of a legal liability. What counts as a material statement? Statements are considered material when there is a substantial likelihood that a reasonable shareholder would consider the matter relevant enough to affect his or her vote.

A white collar lawyer is also likely to argue that his or her client’s statements were mere “puffery,” or vague statements of opinion that are more like sales talk than legally binding material. Just because a stereo salesman talks up the latest gadgetry does not make him guilty of stereo fraud, for example.

In the context of civil securities fraud cases, defendants have increasingly used puffery statements successfully to obtain dismissals. These are sober times, however, and juries and judges are less likely to overlook statements that could be seen as having fooled people into making decisions that only made the crisis worse.

Recent court decisions raise questions as to how courts will interpret the extent to which puffery can be argued by a white collar lawyer. It is quite natural, especially in times of financial chaos, to look on the bright side. When times get most challenging is when we need to put our best foot forward, and that starts with appearances. When does optimism become a misstatement of fraud that can lead to being found guilty of a white collar crime?

To what extent do those who run a business risk in the statements they make giving financial hindsight? This is a recurring issue that will play itself out in the courts. One recent case involved wire fraud where a client had stated that certain funds provided an “awesome opportunity,” and another that offered the statement that said, “I think this is a good opportunity.” In hindsight, these opinions turned out not to be true. That doesn’t make them fraud, however if the statements were made in good faith. A good white collar lawyer can make protective arguments that their client was only making asides or statements they thought to be true in good faith.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona white collar lawyer, visit our site.

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