They’re Arresting Him!

It is always hard to find out a friend or a loved one has been arrested or is in jail. Watching it happen can be even worse. Some of us will be lucky enough to avoid that experience, but for many people it is a reality that they will have to face not only once but multiple times. Too often this situation can get out of hand, especially if alcohol or controlled substances are involved, and can even lead to charges of those who are around when the arrest happens. This post is a breakdown on how an arrest can happen, and what you can, and cannot, do as a bystander.

The Arrest

Police contact and an arrest are two different things. Police contact might be an officer asking an individual questions, taking down information, or simply following up on past contact. An arrest occurs when an individual is taken into custody. This will typically involve the person being handcuffed, searched and brought into custody. Regardless of an individual’s guilt or innocence, when a person is being arrested he or she needs to be cooperative. If an individual who is being arrested attempts to flee, is verbally or physically abusive, or resists the arrest, that individual is running the risk of additional charges, such as obstructing, resisting, battery to an officer, or disorderly conduct.

If you are present when an individual is being arrested, you should remain as calm as possible. Yelling at an officer, attempting to free or prevent an individual from being taken away, or any other behavior similar to this makes the officer’s job much more difficult and dangerous and can quickly land you in a squad car as well. While it can be extremely frustrating to watch, the more civil and polite you are with the officer, the better of you are in this situation. For example, you may be able to ask what the individual is possibly being charged with, what jail they are being taken to, and whether the individual will be able to get out on bond.

At the time of the arrest, you may feel that you have important information relating to the case someone is being arrested for. While you may in fact have helpful information, the time of the arrest is not the time to try and give it. If possible, try to find out the officer’s name, or get his or her card, and contact them later to give a statement. It is unlikely that an officer will be able to talk with everyone, especially if there are multiple people around or if anyone is causing a scene. The officer may simply be focused on detaining an individual, taking an individual into custody, or otherwise restoring order and making sure the situation is safe.

What Now?

Now that the individual has been arrested, there are several options that exist. Typically, the best thing you can do for the individual who was arrested is contact a defense attorney. A defense attorney can help determine what exact charges the individual may be facing, attempt to arrange for bond, and go over the different outcomes and possibilities with you.

Treatment and Sentencing

Nicholson & Gansner handles a large number of drug cases, from simple possession to conspiracy and/or intent to distribute. Commonly the defendant in the case has become a heavy user of a controlled substance, whether that is THC, heroin, cocaine, methamphetamine, or prescription medication. Many of these individuals would like to seek treatment, and a frequent question that we get is: what part does treatment play in the sentence of my case?

As a Defense

Often times someone who is a substance abuse addict will do things that they would normally not do. Addiction drives some people to steal, some people to sell drugs, while others may commit a violent offense or simply drive while intoxicated. No matter what the case, most people want to know whether or not they can go to some sort of treatment as part of the sentence for their case. The short answer is that, except in the most rare of circumstances, seeking out or attending treatment will not be sufficient as a sentence. To clarify, simply attending, or agreeing to attend alcohol or drug treatment will almost never be the sentence that you receive in a case. This does not mean that treatment cannot be part of your sentence, but you will likely be looking at additional consequences such as probation, fines, and/or incarceration.

Simply being addicted to alcohol or drugs is not a defense of a criminal action, meaning that it is almost impossible to have a criminal charged dropped simply because it was an action fueled by addiction. However, this can be a factor in plea negotiations and sentencing.

Prior to Sentencing

While obtaining treatment will usually not be sufficient to having your charges dropped, it can be helpful during negotiations to receive a lesser charge or sentence. Attending AA or NA regularly, or treatment with a provider that is more easily documented, for an extended period while your case is ongoing can demonstrate a commitment to sobriety. If you seek out a private facility for treatment, a defense attorney can submit documentation of your progress, as well as potentially call on the treatment providers to testify on your behalf. Some times people ask if the State will pay for someone to go to inpatient treatment, and the answer is that this option generally will have to be sought out and paid for privately by the individual or their family and friends.

As Part of a Sentence

When you are sentenced for a criminal case, part of what a defense attorney does is attempt to limit your exposure to penalties, whether that is probation, or simply less lengthy terms of incarceration. If your charges are a result of a substance abuse issue, that may be a mitigating factor for sentencing purposes. In some cases, a prosecutor may agree that treatment is among the rehabilitative or treatment needs of a defendant. There are different ways treatment can be worked into a sentence. On more serious cases, a defendant may be made eligible for treatment programs in jail or prison while he serves his sentences. In less serious situations, seeking out and providing proof of ongoing treatment may be a condition of probation.

While the State or Federal government may make someone eligible for a program, or agree that they can seek treatment at an impatient facility as part of their sentence, the government has extremely limited resources. This means that most programs are in institutions, and there is often an extensive waiting list. While someone may be approved for a program, they may have to wait for an opening, which can take weeks or months. Private treatment may be more intensive, and quicker to get a spot in, but the government will not pay for a defendant to attend a private facility like Hazelton. Private treatment facilities typically are only options for those who have the financial resources to pay for the treatment themselves.

Treatment

There are several different types of treatment, such as outpatient, intensive outpatient, inpatient and follow up treatment. It is important to discuss all possible options and weight the positives and negatives of each. Because addiction can only be managed and not cured, some individuals benefit from follow up treatment for years after their initial treatment. Addiction is a frightening thing and is a factor in a large percentage of criminal cases. If you or someone you love is currently facing criminal charges and addiction issues, contact our office for a free consultation and let us see what we can do to help you.

All About Probation

nickgansner —  July 22, 2014 — Leave a comment

Probation Basics

When an individual is convicted of a crime, there can be many outcomes, including probation. Probation is a disposition ordered for a set period of time during which the person convicted of a crime is supervised by the Department of Corrections. Probation can be ordered by the court in two different ways. First, the court can withhold any sentence and place the person on probation. If sentence is withheld, the person would be brought back before the judge to be sentenced if he/she is ever revoked from probation. Second, the court can impose a sentence (of jail or prison time) but stay it for a period of probation. If sentence is imposed but stayed for probation, the person would automatically receive that sentence if he/she were revoked from probation.

Some types of offenses, like sex offenses, have unique rules of supervision that are different from the normal rules of supervision in place for other offenders. There are also different levels of supervision, with meetings with the supervising agent or visits to the offender’s home being more or less frequent. One common trait of all probation is that you will have the standard set of rules, which include things such as not using a controlled substance, no new additional charges, and keeping the probation officer apprised of your current address and employment.

Regardless of what your rules are, if you are on probation the agent supervising you will go over your rules with you, require you to sign a document acknowledging that you understand the terms and conditions of your probation, and you will be expected to follow them. While we all may have the best of intentions, things don’t always work out the way we plan. That can be frustrating under normal circumstances, but for a person on probation it is a more serious problem. You will be held in jail on a probation hold if there is suspicion that you have violated a condition or rule of your supervision. You will be taken into custody, typically in the county jail, and you will be held while an investigation in conducted.

How Do I Get Out?

Almost everyone’s immediate question upon being thrown in jail is the same: How do I get out? In the prosecution of a criminal case, you would often have a bond that could be posted. Bond, however, is not available to you when you are on a probation hold. The truth of the matter is that you can sit for a long time of a probation hold, and you are simply stuck waiting. There are three possible outcomes that can happen next.

Release

A good attorney can help speed up the process of having you released if there has not been a rule violation, if there has been a mix up in the system, or, occasionally, if the infractions are small. Out of the three typical outcomes, this is the most unlikely. A defense attorney can get in contact with your probation officer and attempt to negotiate your release.

ATR

ATR stands for an Alternative To Revocation and is sometimes a possibility for someone on a probation hold. There are many different kinds of ATR’s and the possibility of receiving one depends on several factors, such as what offenses you are on probation for, the type of rule violation, and your criminal history. In some situations a sanction is possible. A sanction is a jail sentence, and they come in different increments, such as thirty, sixty, or ninety days. Other types of ATRs might include alcohol or drug treatment, anger management counseling, domestic violence treatment, or some other form of treatment.

Revocation

Regardless of how hard a defense attorney negotiates, your agent and the Department of Corrections may choose to pursue revocation of your probation. Factors that go into the determination of whether to pursue revocation include whether you are being charged with new crimes, if you have been put on probation holds on previous occasions, if you have been given sanctions or ATRs before, or if you have absconded from probation. Your agent and the Department of Corrections cannot unilaterally revoke you, however. If they make the decision to pursue revocation, you are entitled to a hearing. A revocation hearing is held in front of an ALJ, or an administrative law judge, typically in the jail where you are being held, during which your probation agent would attempt to prove that you violated the conditions or rules of your probation. You are your attorney can contest the alleged rule violations, cross examine witnesses, and argue to the ALJ that the violations don’t warrant revocation or that alternatives to revocation should be considered. If the ALJ determines that you did violate the rules of your supervision and that you should be revoked, you will either be returned to court for sentencing or the previously imposed but stayed sentence will be imposed.

What An Attorney Can Do For You

Hiring a defense attorney can be very helpful when you are placed on a probation hold. For some people, being revoked from probation means losing the opportunity to have a conviction expunged from their record. For others, it can mean a lengthy prison sentence. A defense attorney can help navigate the process, help you to reach a desirable solution, or help you contest the allegations. In many cases, an attorney can negotiate more effectively with a probation agent, or propose options for an ATR. It is also easier for a defense attorney to get in contact with and receive calls back more quickly from the district attorneys office. While the process can be frustrating, the weeks that a probation hold can last have the potential to save you months or years in your future. If you have questions about a probation hold, ATR, or revocation case, contact our office for a free consultation.

Quantity & Quality

As with many commodities, quantity and quality are the two standard areas to determine value, and drugs are no different. Cocaine that is nearly pure is much more valuable than the average gram of cocaine sold at the street level where it is typically only 17% pure. The more pure the form of a drug, the more expensive that it is, and there is typically a greater demand. But how does this effect charging of someone who is caught with a controlled substance? The answer is complicated.

Charging

When the government charges someone for possession, or possession with intent to distribute, it does so by a set of guidelines set forth in the jurisdictional statues, federal or state. These guidelines are relatively similar, in that they both focus on the weight, or the quantity, of the controlled substance involved. In Wisconsin the levels of charging look like this:

Cocaine Possession W/Intent                         Heroin Possession W/Intent

1 Gram or less Class G Felony                       3 Grams or less Class F Felony
1-5 Grams Class F Felony                              3-10 Grams Class E Felony
5-15 Grams Class E Felony                           10-50 Grams Class D Felony
15-40 grams Class D Felony                          Over 50 Grams Class C Felony
Over 40 Grams Class C Felony

The way the charging is structured is similar for THC with intent to distribute, as well as other drugs such as crack, methamphetamine, and other drugs. At this point in time, the purity level of the drug has little bearing on how it is charged by the government.

Argument By Your Attorney

Once you are charged with a crime, it is time to hurry up and wait; the legal process has been started, and while it will continue forward, it will do so over the next six months or more. The earlier on in this process that you can hire a defense attorney, the greater chance you have at getting a more favorable outcome. One of the first things that a defense attorney might argue is whether or not the facts of the case truly constitute distribution, or if the controlled substance could be argued as personal use. There are certain limitations to this defense, for example, marijuana is typically divided into three categories on the street: Schwag , middies, and dro/headies. The difference between the different types of weed is partly in appearance, but largely in the THC levels. While there is no differentiating the types of most controlled substances, these differences are typically known to both law enforcement officers and prosecutors. An individual who has an ounce of schwag, or ditch weed, may have an argument that the amount was for personal use, rather than distribution. Similarly, having a gram of heroin, or a few grams of cocaine, may constitute as a personal use amount, and thus a charge could be amended to a possession rather than a distribution charge.

Plea Negotiation & Sentencing

The quality of the controlled substance can come into play during the negotiation of a plea agreement as well as at sentencing. During a plea negotiation, the quality of the drugs, heroin, cocaine, etc., can potentially something that can hurt a defendant or help. A case during which a defendant had, for example, very pure heroin that was being sold at a street level to individuals who later overdosed, the purity level of the heroin could be used against the defendant, the argument by the government being that it would be reasonable to assume that it would be more likely to induce an overdose. One way that a high purity level of a drug may benefit a defendant would be to serve as credibility. If a defendant is willing to cooperate with the government and asserts that he is a high level distributor, having controlled substances that are largely pure, would serve to reinforce this statement, possibly making the defendant a more valuable asset to have cooperate.

In general, the quantity of the controlled substance will have more of an effect on your case than the quality of it, however there are exceptions. If you have been charged with possession, or possession with intent, you should immediately contact a criminal defense attorney to discuss the charges against you, as well as options that you have available to you.

Every Day Drug Paraphernalia

A frequent charge we see is possession of drug paraphernalia, especially in conjunction with other drug charges or arising out of traffic stops. In Wisconsin, a conviction for possession of drug paraphernalia, or PDP as it is sometimes calls, commonly carries a maximum punishment of 30 days in jail and/or a $500 fine. Possession of drug paraphernalia related to methamphetamine has more severe consequences: it’s a Class H felony, carrying a maximum punishment of 6 years of imprisonment and/or a $10,000 fine.

The term drug paraphernalia may bring specific images to mind: glass pot pipes with swirls of color, marijuana grinders, or dirty needles for intravenous-use drugs like heroin or meth. What people don’t often realize is that everyday items—items that you might normally have in your pocket or your car—can also be charged as drug paraphernalia. Examples include straws, credit cards/ID cards, razor blades, spoons, cotton balls, and even an apple.

How Can They Do That?

The first step to answering that question is to define drug paraphernalia in the context of a potential criminal charge. The Wisconsin Statues define the crime of “Possession of drug paraphernalia” this way: “No person may use, or possess with the primary intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog,” which is a long-winded, legalistic way of saying that the object has something to do with a controlled substance of some sort.

“Intent” is an important word in that definition. Unless a person is actually caught using the alleged paraphernalia to (most commonly) inject, ingest, or inhale a controlled substance, the government has to prove that you intended to use the object in one of those specific ways. Circumstances may provide defenses to a possession of drug paraphernalia charge. For example, if you are arrested with a gram of cocaine, and next to it, or in the same pocket, was a driver’s license with cocaine residue on it, it is easy to infer or conclude that you used the license to cut lines of cocaine. However, if the driver’s license was elsewhere in your home or car, or in a different pocket, the inference is more difficult to make, and the likelihood of successfully defending the charge is greater.

These days, drug paraphernalia is perhaps most commonly seen with drugs such as marijuana/THC, cocaine and heroin. One case that we have seen involved an individual who was found smoking marijuana outside. He had taken an apple and through a series of quick cuts, was able to use it to smoke his marijuana, and in doing so he had turned a normal piece of fruit into drug paraphernalia. Instances of homemade devices are less common with smokers of THC: the typical types of possession of paraphernalia charges are from grinders, devices used to break down buds of marijuana, and glass or metal pipes.

The process of using cocaine or heroin can be labor intensive and may provide the potential for additional criminal exposure. For example, someone who injects heroin is often found to be in possession of the “works” or “gear,” which often includes cotton balls, a syringe, and a spoon. The heroin is placed on the spoon with a tiny amount of water to cook the heroin before injecting it. A prosecutor might charge each individual item as drug paraphernalia, instead of just one count for all of it. Items typically associated with cocaine use, such as razor blades, straws, or tiny measuring spoons can be charged together or individually.

A Sign Of Something Bigger

In many cases, drug paraphernalia is a sign of drug use, however this is not always the case. Some items that can be charged as drug paraphernalia are indicative of the manufacture or sale of drugs, and these counts are used to increase the number of charges against alleged drug dealers. Some examples of this type of paraphernalia include digital or beam scales, packaging materials (quantities of baggies or vials), razor blades, mortar & pestles, and blenders. While many of these items may be normal household objects, the likelihood of their being considered as drug paraphernalia increases with how close the objects are to the actual drugs, the circumstances of the discovery, and whether or not there is any drug residue in, on, or around the object.

How It Effects You

Being convicted of a possession of paraphernalia charge carries potentially significant consequences, including incarceration. If convicted, this will be available for the world to see, including potential employers and landlords. If you have been charged with possession of drug paraphernalia, you need to speak with an attorney to discuss potential defenses to your case. If you or someone you know has been charged with possession of drug paraphernalia, call our office for a free consultation and find out what options are open to you.

One of the most common questions we hear when people call our office for advice is: “I have a pre-trial conference next week, what is going to happen?” It is a great question, and like many great question, the answer is: “It depends.”

The purpose of a pretrial conference is to allow the prosecutor and the defense attorney to sit down and discuss whether a case is going to go to trial or, instead, if it can be resolved through a plea bargain. This usually involves the prosecutor making an offer to settle the case short of trial, and the defense attorney discussing this offer with the client to help him or her decide whether or not it is an acceptable way to resolve the case. While each county has slightly different procedures, most counties, including Dane, tend to schedule a pre-trial conference about 4—6 weeks after the initial appearance (or the arraignment in felony cases).

In many instances, the prosecutor will have provided the defense with all the relevant documents and police reports ahead of a pre-trial conference so that the two can have a meaningful conversation. If not, police reports or other information will generally be provided to the defense attorney at the pre-trial conference, and then a second court date will be scheduled where the defense will have to decide whether or not they will accept the prosecutor’s settlement offer or instead want to proceed to trial.

If the two sides do reach an agreement, it can be possible in some cases–particularly those involving less serious misdemeanor charges–to resolve the case at the pre-trial conference. In such cases a judge will permit the Defendant to enter a plea at the pre-trial conference and will sentence him or her at that time. In more serious cases, where additional time is needed to prepare sentencing arguments, the court will generally schedule a plea and sentencing hearing for a later date.

If you are facing a criminal charge, and have a pre-trial conference coming up, it is crucial that you get an experienced attorney to assist you. This is the stage in a criminal case where deals are worked out, and having someone who understands the strength of the evidence in a given case, as well as how prosecutors, judges and juries are likely to view such evidence, is crucial to getting the best result. If you are in this position, make sure to contact a local attorney before your pre-trial conference so that they can review the evidence in your case and work with you to get the best outcome possible.

Dirty Money

nickgansner —  July 3, 2014 — Leave a comment

What Do People Do With Dirty Money?

They turn it into clean money, and the way that they do that is through money laundering.

“Dirty money” is money that is earned through illegal means, such as drug dealing, prostitution, or gambling. In the past, money laundering has typically been done, at least at some point in the process, with cash; however with the increased use of electronic banking, and digital currencies, such as bitcoins, there has been an increasing shift in trends in which cash plays no role.

Why Do People Launder Money?

People launder money for a variety of reasons. Some people launder money because they want to avoid paying taxes on that money. Other people launder money that has been earned through illegal fashions, and want to have a way to show legitimate earnings, while others still launder money for drug or terrorist organizations. No matter the reason, money laundering is a criminal activity.

How Do People Launder Money?

There are countless ways to launder money and there are new ways to do so popping up every day. Part of the way to effectively launder money is to do so in ways, or areas, that draw little to no speculation from government agencies or law enforcement authorities. Some methods are extremely complex, such as round tripping, which involves a complicated series of transfers through multiple countries and bank accounts, or require vast sums of money, such as capturing a bank, where criminals, typically in countries with lax banking laws, will buy up controlling interest of a bank and manipulate the accounts and documents from the inside. While these strategies abound, they are much more uncommon and deal with resources on a vast level. The two forms of money laundering that we are going to discuss in this blog are much more prevalent and on a scale that doesn’t involve millions of dollars a month in transactions. Those two forms are Smurfing and through primarily cash intensive business.

Smurfing

Smurfing, which is also known as layering or structuring, is a technique that involves breaking down larger sums of cash into smaller amounts. In the United States, anytime an individual deposits more than $9,999.00 into an account, the bank is required to fill out a form notifying the government. For a person who has a huge salary, or who has a legitimate reason for this deposit, this is nothing to worry about. However, if you are reporting little or no income, this typically can trigger an audit or investigation into the source of the money. By breaking down the amounts of deposit, you are less likely to trigger an audit or draw attention to yourself. This method can be effective, but only to a point, as to frequent deposits, or deposits that still reach high amounts, can still trigger concerns.

Smurfing is typically done by taking a sum of cash and purchasing money orders or other bearer instruments, such as bearer bonds, stocks, or titles, and using these to deposit into your bank account.

Another technique that can be used in conjunction with this is legalized gambling. A person who has, say, five thousand dollars from dealing cocaine can not deposit that profit into their account for very long without raising suspicions. Unless that individual has a legitimate job, they have no way to show any income and thus would be open to criminal prosecution if they were discovered. One way people have found around this would be to take the $5,000 and bring it to a casino and cash it in for chips. After a few hours, possibly playing with a small amount to avoid suspicion and detection, the individual cashes out, and can claim the cash as gambling winnings.

Another tactic that is used with gambling is sports betting. A small amount of money, say $50-100 is placed on several bets with long odds. If one of the long shots pays out, that amount of money can be said to be “earned”, while having a minimal investment. The bets that don’t win are thrown away as a cost of doing business.

After you reach a certain amount of winnings, a casino is also required to fill out paperwork but this creates a paper trail of legitimate earnings. One drawback to this is that this money will be taxed by the government, and “luxury taxes” are typically some of the highest taxes in the state.

Another technique used with smurfing is through buying and selling property or real estate. The individual who wants to launder the money pads the amount of the purchase/sale for more than the actual price. The other party will be in on the deal and often receives some type of additional compensation. This money again is declared and can be put into bank accounts, effectively washing part of the dirty money. This technique obviously requires some capital that is legitimate up front to procure the first piece of property or real estate, to begin padding sales with. There are limitations to this method as well, in the amount of money that can be padded in each transaction. The greater the number of transactions, or the larger the amount of dirty money funneled through the transaction, the greater the chance for detection.

Cash Intensive Businesses

A cash intensive business is a business that primarily deals with cash transactions and whose costs are subject to change. Car washes, strip clubs, and bars are all good examples of cash intensive businesses. These businesses are often referred to as “fronts”. A bar might serve one hundred drinks in a night, for example. However, each of those drinks is variable, it could be something that is inexpensive, say a whiskey and coke, or it could be a drink that is more expensive such as a Long Island Ice Tea or an Old Fashioned. Because most bars don’t keep detailed records on each drink ordered and sold, additional cash can be claimed as earnings from the bar. These earnings are taxed, recognized and can be used as the individual sees fit, whether that is buying a car, a home, another legitimate business or simply clothes and jewelry, without fear of being able to demonstrate where that money came from.

Dangers of Money Laundering

There are many dangers when you are involved in money laundering. Money laundering itself is an illegal activity and can result in criminal charges, regardless of if you are the individual directly benefiting from it. In recent years, money laundering has become a higher priority target for law enforcement officials. In addition to the criminal charges you can face for money laundering, failure to declare any of the money you laundered and to pay taxes on that money can result in charges for tax fraud and tax evasion. One of the most notorious examples of this is Al Capone.

If you are currently under investigation for, or have been charged with crimes relating to money laundering or tax fraud, call our office for a consultation. Our staff will work with you to dissuade any charging, and if that isn’t possible, we will do everything in our power to help defend the charges against you.