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.

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.

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.

Below is a list of resources that provide useful information regarding theft crimes.

• Federal Trade Commission: The U.S. Government’s central Web site for information about identity theft includes government reports and Congressional testimony, law enforcement updates, consumer alerts, and links to other sites with helpful information.
• U.S. Secret Service Financial Crimes Division: The Secret Service investigates crimes associated with financial institutions, including bank fraud, access device fraud, telecommunications and computer crimes, fraudulent government and commercial securities, and electronic funds transfer fraud.
• U.S. Postal Inspection Service: the Identity Theft pages provide consumer tips, instructions on how to get off mailing lists and how to report unsolicited e-mail (“spam”), and links to information about identity theft and fraud.
• National Check Fraud Center
  The center provides assistance, information, and crime reporting information for counterfeit checks, forgery, check fraud, bank fraud, and white collar crimes.
• Equifax
  Equifax provides information on protecting yourself from identity theft and related resources, including Credit Watch, a credit monitoring program.
• TransUnion
  TransUnion provides credit and fraud-prevention data, including tips for avoiding fraud and fraud victim contact and reporting information.
• Experian
  Experian’s Consumer Knowledge Center includes fraud prevention information and resources.