The Arizona Supreme Court’s holding in State v. Geeslin was a rare event. In most circumstances, when a court makes a mistake, a formal objection to the court’s ruling must be found in the record. Put another way: if you fail to object to a court’s decision, you waive your right to appeal the ruling. However, as shown in Geeslin, there are some exceptions.

In Geeslin, the defendant was arrested for putting shoplifted goods in a stolen vehicle and was charged for Theft of a Means of Transportation (car theft.) The car theft charge may also have what is known as “a lesser included” charge of “Unlawful Use of a Means of Transportation” (joy riding.) Thus, if you take the car and intend to keep it, then it is considered car theft. If you take the car, without permission, but intend to return it is considered an “unlawful use” of the car. “Unlawful use” of the car is a lower level felony than “Theft” of the car. It is a common defense for someone accused of “theft” of a car to claim they intended to return it (i.e. “it was only a joyride”).

Here, the defendant’s attorney asked for a specific jury instruction regarding the charge of “Unlawful Use of Means of Transportation.” The judge denied the request and the attorney objected. However, something unusual occurred: the “record on appeal did not contain Geeslin’s requested instruction.” Thus, The Arizona Court of Appeals presumed that the missing record supported the trial court’s decision and denied the appeal.

The Arizona Supreme Court reversed the decision. The Court stated that fairness and due process required the trial judge to instruct the jurors of all offenses “necessarily included” in the offense charged. The court held that the jury must know exactly what is included in the charge in order to successfully fulfill their roles as finders of fact.

Although seeming insignificant at times, proper objections presented by an attorney may be critical to winning a case – even if it is on appeal. Here, the Defendant was extremely fortunate that the Court “overlooked” the absence of a formal record. While sometimes a court will resort to looking at what’s “fair,” those cases are few and far between.

If you have a specific question, please contact The Koplow Law Firm Online or by phone at 602.494.3444.

Lawrence Koplow

Asset forfeiture occurs when the government claims someone has profited from criminal activity.  The government will then attempt to seize the proceeds of that criminal conduct.  However, law enforcement often seizes money and property well beyond what the law allows.  Common scenarios include a person who was not involved in a crime yet has their property taken; or when there has been a minor crime, but there is substantial overreaching by the government in what they take from the person.

Below are answers to several of the questions I am often asked about government seizure and forfeiture.

1.  May law enforcement simply take my assets if they think I committed a crime?

No, the asset (usually, cash, bank accounts, jewelry, real property, automobiles, etc…) must be seized through the judicial process. Arizona has laws that dictate specific procedures the government must follow to seize property.  Generally, if the government can make a showing of probable cause that the assets were obtained as fruits of criminal activity, or “traceable” to the criminal activity, the courts will allow the seizure.

Then, the government has to prove in a civil, administrative or criminal proceeding that the asset was used to facilitate criminal activity (i.e. fraud or drug trafficking), or was derived from criminal activity, for it to be forfeited to the government.

2.  How are assets seized?

Assets are seized by law enforcement incident to arrest, a search warrant, consent or with a seizure order.

3.  What type of assets can be seized?

Contraband (i.e. illegal drugs and illegal weapons) is the most well known type of property seized by the government.  Obviously, this type of property does not cause many disputes.

Beyond contraband, the government may take alleged proceeds from criminal activity such as vehicles, houses, funds in bank accounts, cash, or an entire business enterprise.

4.  After my property is seized, what happens to it?

When an asset (such as cash, a home, or a vehicle) is seized by the government, it is stored in the same manner as evidence in a criminal case. Departmental reports are drafted indicating the identity of the property owner, an estimated value and a description of the asset.  Moreover, any liens are also recorded.

5. What law enforcement agencies are involved in seizures and forfeiture proceedings?

State, Municipal and Federal law enforcement all regularly conduct seizure and forfeiture actions.  Some of the agencies involved are the Arizona Attorney General’s Office, the Maricopa County Attorney’s Office, the Pinal County Attorneys’ Office, the Pima County Attorneys’ Office, the Coconino County Attorneys’ Office, The Yavapai County Attorneys’ Office, etc…  Moreover, most federal agencies, such as the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS) also conduct these proceedings.

6. Does law enforcement have to prove I committed a crime prior to seizing my assets?

Surprisingly, the government need not obtain a criminal conviction prior to taking a person’s assets.  Seizure and forfeiture proceedings are considered civil (non-criminal) matters. Thus, law enforcement need merely meet the civil standards to take property, and not the more stringent criminal standards.  The procedures for taking property are specified in Arizona Revised Statutes, Section 13-4310.

7. Can you fight the forfeiture?

Yes. Arizona law permits a person whose property has been seized to contest the government seizure.  Arizona law specifically provides that certain property is not subject to forfeiture.  It is common that law enforcement fails to observe these statutory requirements when they take property.  Thus, a person may be able to recover their property if the government did not observe these laws or follow the proper procedure.

In addition, many circumstances involve a property owner that has no relation to the alleged crime.  This person may not have been present at the time of the alleged crime, nor even had any knowledge of it (i.e. loaning an automobile to someone who committed a crime.) The so-called “innocent” property owner has the legal right to contest the seizure of her property.

In sum, the mere fact that property has been seized by law enforcement does not mean that it was a lawful taking.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact the Koplow Law Firm online or by phone at (602) 494-3444.

According to the United States Department of Justice “Telemarketing Fraud” is:

any scheme to defraud in which the persons carrying out the scheme use[s] the telephone as their primary means of communicating with prospective victims and trying to persuade them to send money to the scheme.

Arizona has a unique history with the telemarketing industry. Many of the “pioneers” of mass telemarketing started in Arizona and it was a tremendously lucrative business.  However, once many of the people involved in the origination of this industry learned the business they spun off to start their own enterprizes.  Some started legitimate businesses and some started illegal schemes.  These fraud schemes included:

• Home Based Businesses
• Charity Schemes
• Credit-Repair Schemes
• Loan Schemes
• Credit Card Schemes
• Internet-Related Schemes
• “Business-Opportunity” Schemes
• Lottery Fraud
• Office-Supply Schemes
• Prize-Promotion Schemes
• “Recovery-Room” Schemes
• “Rip-and-Tear” Schemes

The problem is now law enforcement presumes that almost all telemarking businesses are fraud schemes.  I have seen every innocent fact turned into evidence of fraud.  The Arizona Attorney Generals Office handles many of these cases. In my experience many of the cases start as civil complaints.  Moreover, the government may release information that the business is a scam well before a conviction is obtained.  The result being that even if the business is legitimate the consumers now believe they have been defrauded.  If the civil case does not resolve, then the suit may result in a criminal prosecution.  Typically the individuals will be charged with Fraud Schemes and Theft.

These case are complex and and the evidence may include thousands of documents.  In order to defend these cases, an attorney must actually understand the business model and inherent dangers of the this type of business.  That is, many of these cases involve a person trying to develop a legitimate business, but employees making the sales calls go beyond what the business owner represents.  The government may attempt to hold the business owner/manager liable for something that they had no knowledge.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact the Koplow Law Firm online or by phone at (602) 494-3444.

Burglary is defined as entering onto the property of another with the intent to commit any theft or any felony thereon.  In Arizona, there are three separate degrees of burglary.

As defined in A.R.S. 13-1506, a person commits a third degree burglary by “entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein.”  Third degree is a class 4 felony in Arizona.

Second degree burglary, defined in A.R.S. 13-1507, is committed “by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.”  This is a class 3 felony in Arizona.  It is important to note that the only difference is that a second degree burglary is committed on a residential structure, such as a person’s home.

Lastly, a first degree burglary is committed when a person commits either a second or third degree burglary and knowingly possesses explosives, a deadly weapon or a dangerous instrument in the course of committing any theft or any felony as described in A.R.S. 13-1508.  If the burglary was committed in the third degree pursuant to A.R.S.  13-1506, then the charge is upgraded to a class 3 felony in Arizona.  If the burglary committed was second degree pursuant to A.R.S. 13-1507, the charge is upgraded to a class 2 felony.

It is also important to note that possession of burglary tools and criminal trespass may be charged in relation with these crimes.

Arizona Criminal Sentencing Chart

Arizona criminal convictions can result in many different penalties.  Some convictions require mandatory prison.  Some convictions may result in merely a term of probation.  While other convictions can result in both a term of probation and a term of jail.  Above is a partial copy of the Arizona Supreme Court’s Sentencing chart that shows the general sentencing ranges for a criminal conviction in Arizona.

In order to utilize the chart, you must understand a few basic principals.  First, you must know what class of felony you are charged with.  You can see on the left side of the chart there is heading titled “CLASS.”  Arizona felonies are given a class by our legislature. On the chart, you can see that a Class 6 felony carries the shortest terms of prison.  While a Class 2 felony requires the longest.

The next column on the chart is the sentencing ranges for first offenses criminal convictions in Arizona.  This section is shaded in blue.  The shading is to indicate that most first offenses in Arizona may result in probation.  That is, for most first time criminal convictions, the judge has the option to sentence you to probation.  The judge may also combine a term of jail with probation.  The maximum term of jail is one year for each count.

AN EXAMPLE OF A SENTENCE FOR A FIRST TIME OFFENDER

Let take the example of a first time forgery conviction.  In Arizona the crime of Forgery is a class 4 felony.  So you look on the chart at the number 4 under the CLASS column, and the sentencing rage will be to the right of it.  The sentencing range for a class 4 felony is a super-minimum of 1 year and a super-maximum of 3.75 years.  The presumptive term is 2.5 years.  That is, the judge is presumed to sentence you to 2.5 years (if she has chosen prison as the penalty.)  To sentence you to a term greater than 2.5 years, she must make a finding that aggravating factors exist.  To sentence you to a term less than 2.5 years, she must make a finding that mitigating factors exist.

However, because this is a first time offense, the judge has the option to forgo a prison term and sentence you to probation.  A probation sentence can include incarceration.  The judge can sentence you to up to 1 year in the county jail (as opposed to the Arizona State Prison System) as a term of probation.  If jail is imposed, the judge has the discretion to allow you to participate in the work furlough program.  This program permits a person serving a jail term to be released on a limited basis to continue working.

EXCEPTIONS TO THE RULE

There are many first time offense that do require a mandatory prison sentence and fall outside the shaded area on the sentencing chart.  Dangerous offenses (as defined by the Arizona Legislature) and certain sex offenses require mandatory prison terms.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and the Koplow Law Firm.  Legal advice usually varies from case to case.

If you need legal advice for a specific problem, you must consult with an attorney.  For more information about Arizona Criminal Law, please contact the Koplow Law Firm.

The crime of Fraudulent Schemes is codified in A.R.S. Section 13-2310.  This crime requires proof that a person:

• Pursuant to a scheme or artifice to defraud;
• Knowingly obtains;
• Any benefit by means of false or fraudulent pretenses, representations, promises or material omissions

A person convicted of Fraudulent Schemes is guilty of a class 2 felony.  Furthermore, reliance on the part of any person is not a necessary element of the offense.

It is undisputed that Gerry Spence is one of, if not the, best trial attorneys on planet earth.  I don’t care what he is talking about, I am listening.

Mr. Spence represented a man named Brandon Mayfield. Mayfield, an American Lawyer, was accused of being connected with the deadly train bombing in Madrid, Spain. As it turns out, he was wrongly accused. As a matter of record, the government ended up paying Mr. Mayfield $2 million dollars in a civil settlement and also gave him a formal apology. Here are Mr. Spence’s thoughts on the case.

All criminal defense attorneys are asked the above question.  However, the answer will surely not be the same for every attorney.  Below noted criminal defense attorney Thomas Mesereau discusses the subject.  The next time I am asked the question “why do you defend criminals” I will simply adopt his answer.  Here it is:

So you posted your bond, you are ready to be released…ready to go home, but you are told the government will not let you go free until you have a Nebbia hearing.  In frustration, you ask “what is a Nebbia hearing?” 

What is a Nebbia hearing?

A Nebbia hearing, named after the case of U.S. v. Nebbia, 357 F.2d 303 (C.A.N.Y. 1966), is a hearing in which the court must decide whether or not the money or property posted as bail is the fruit of unlawful or criminal conduct.  In other words, did the money or property used to post bond come from legitimate sources?  The court may conduct a Nebbia hearing on its own motion.  However, the determination to hold a Nebbia hearing is left to the discretion of the court.  For example, in U.S. v. O’Brien, 895 F.2d 810 (1st Cir. 1990), the court held that even on motion by the government, the court ultimately retains discretion on whether or not to hold a Nebbia hearing.  Consequently, it is a not an automatic hearing that the State may invoke. 

Who bears the burden of proof?

The burden of proof in a Nebbia hearing is on the Defendant and his/her family to prove that the bail funds or collateral come from legitimate, honest sources.  The reasoning behind placing the burden on the Defendant in a Nebbia hearing is the belief that the Defendant is in a better position to prove the legality of the assets.   If the State had the burden of proof, the Defendant’s release could be delayed, as the prosecutor would have to gather all relevant and discoverable evidence to investigate the source of the funds. 

What kinds of cases involve Nebbia hearings?

Nebbia hearings are particularly common in narcotics and fraud cases, as the court is concerned that the bond money or collateral is coming from the very narcotics sales or fraudulent schemes that the Defendant is being charged with.   However, Nebbia hearings may come up in any criminal matter to ensure that the bond or conditions imposed will reasonably assure the defendant’s presence at trial.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and the Koplow Law Firm.  Legal advice usually varies from case to case.

If you need legal advice for a specific problem, you must consult with an attorney.  For more information about Arizona Criminal Law, please contact the Koplow Law Firm online or by phone at (602) 494-3444.  Moreover, please also visit our DUI and Vehicular Crimes Blog.

A person commits forgery in Arizona if, with intent to defraud, the person:

• Falsely makes, completes or alters a written instrument; or
• Knowingly possesses a forged instrument; or
• Offers or presents, whether accepted or not, a forged instrument or one that contains false information.

In addition, the possession of five or more forged instruments may give rise to an inference that the instruments are possessed with an intent to defraud. The Arizona legislature has made Forgery a class 4 felony. Consequently, if a person is sentenced to prison, the range of sentence is a minimum of 1 year and a maximum sentence of 3.75 years. The is a presumptive term of 2.5 years. However, it may be possible first time offenders to receive probation.