Archive for the 'Criminal Law' Category

The Right to Lease or Rent Foreclosed Property

The Right to Lease or Rent Foreclosed Property

Who has the right to lease a foreclosed property? One guess might be the owner, depending on the stage of the foreclosure process. Another answer may be the bank or financial institution that owns the property after the foreclosure is complete. According to Earl Johnson, a Goose Creek, South Carolina resident, he had the right to lease foreclosed property. However, police claim the Johnson never owned the house, and that Johnson had conned tenants into renting foreclosed property.

What Was Johnson’s Defense?

Earl Johnson claims he has a legal right to lease foreclosed property that he didn’t own under the Declaration on the Rights of Indigenous People signed by President Barack Obama.

Before focusing on who is right or wrong, let’s define foreclosure. Foreclosure is a process where a county or financial institute takes a property from a property owner and sales it. Foreclosures typically occur after a property owner defaults on a mortgage loan or property taxes. Mortgage holders, usually a bank, sell the property to pay off the remaining debt on the loan or taxes.

The right to lease or sell a foreclosed property depends on the stage of the foreclosure. A property owner can avoid foreclosure via a short sale, short refinance, loan modification, repayment plan, or by challenging the foreclosure. A mortgage holder can sell the property through an auction. In many situations, the former homeowner moves out and the property is left vacant until the bank or county sells it. Earl Johnson

Earl Johnson wasn’t in either category. He never owned the property or was a lender holding a mortgage on it. Yet, he leased the property in question to two sisters, Tina Capreole and Nancy Bowman. They paid Johnson $1200 and moved in on August 1, 2015. A couple days later, a realtor dropped by the property to show it to prospective buyers. That is when the new tenants discovered the man they’d leased the home from didn’t own the property. In fact, the property was in bankruptcy.

Typically, a tenant has some rights in a foreclosure when a landlord defaults on his mortgage or taxes. For example, the Mortgage Reform Act passed by Congress in 2009 gives tenants living in foreclosed property 90 days to find a new place to live. This Act and many other tenant rights weren’t available to the tenants living in the “leased” foreclosed property in South Carolina. The bankruptcy trustee, a court appointee who oversees bankruptcies, told the tenants they had to move because the tenants were living there illegally.

It’s a Crime to Lease Property a Person Doesn’t Legally Own

It’s a crime to lease property without the permission of the property owner. Illegally leasing property that one doesn’t own is a repeatedly occurring scam which occurs across the country. For instance, in 2013 a Florida woman was accused of leasing her neighbor’s foreclosed home to tenants for more than one year. Tenants allegedly paid her about $13,000.

In Goose Creek, Johnson was arrested and charged with:

  • Burglary in the third degree
  • Obtaining signatures under false pretenses
  • Operating a business without a license

Burglary is the criminal act of breaking and entering into a structure for the purpose of committing a crime thereafter. The entry doesn’t require the use of force. Johnson is accused of breaking and entering into the property prior to leasing it. According to the tenants, he even gave them keys to the home and made some home improvements to the property.

Obtaining property by false pretenses is a crime when someone makes misrepresentations or lies to get property. In this case, Johnson is accused of misrepresenting himself as the property owner to illegally obtain the tenants’ rent.

A business license is required to operate a business in a particular area. Failure to have a proper or valid license is a crime.

Is the Declaration on the Rights of Indigenous People signed by President Obama a Valid Defense?

The Declaration is a statement addressing the human rights indigenous people have. It was formally adopted by the United Nations in 2007 and formally endorsed by President Obama in 2010. The purpose of the Declaration was to emphasis the fact that indigenous people have the right to enjoy all human rights and fundamental freedoms recognized in the United Nation’s Charter.

Notably, the United States originally voted against the Declaration when the U.N. initially voted on it. Since the Senate has yet to ratify it, the Declaration isn’t legally binding and not a part of U.S. criminal laws. The Declaration doesn’t create new rights for indigenous people. It is unlikely that Johnson will succeed with this defense.

Legal Basis for Prosecution of Killing of Cecil the Lion

Much to the chagrin of animal lovers the world over, the 13-year-old Zimbabwean lion named Cecil is now dead. William Palmer, a dentist from Minnesota, has admitted to killing Cecil. In June of 2015, Palmer lured Cecil out of his sanctuary and then shot Cecil with an arrow. 40 hours later, the dentist killed Cecil with a rifle. Afterward, Palmer decapitated and skinned Cecil.

Palmer stated through his publicist that he believed the hunt was legal, and that he “deeply regrets” killing Cecil. Although he has not faced charges in Zimbabwe, a government minister described him as a “foreign poacher” and stated that he should be extradited. The U.S. Fish and Wildlife Service said that it was contacted by Palmer’s representative, and that it is conducting an investigation.

According to a source connected to the investigation, the agency is seeking potential violations of the Lacey Act, a 115-year-old U.S. law that was enacted to prevent unlawful animal trafficking. The purpose of the law has since been extended, and it currently forbids one to import, export, sell, acquire, or purchase animals that are protected by the laws of the U.S. or foreign countries.    Cecil-the-Lion

However, legal experts claim that the case could prove challenging to prosecute. The Lacey Act has seldom, if ever, been used against hunters who do not bring animal parts back into the U.S. There is, thus, a weak link between the hunt in Zimbabwe and the U.S. According to Zimbabwe’s national parks authority, the local police have confiscated Cecil’s remains, including his skin and head. Since Cecil’s parts are still in Zimbabwean, it will be difficult to charge Palmer under the Lacey Act and other anti-poaching laws.

Alternative Charges

The Fish and Wildlife Service is attempting to discover whether Palmer was engaged in a conspiracy to import animal parts into the U.S. In order to charge him with conspiracy, the government will likely be looking at transfers of funds, telephone calls, and other types of communication as evidence of his plan to import animal parts into the U.S. Two officials at the Justice Department stated that the case is unprecedented in that there are no known cases against American hunters who did not import animal parts.

In 2014, conspiracy charges were brought against a safari group called Out of Africa, which was engaged in the sale of illicit hunts of rhinoceros in South Africa, while maintaining an office in Alabama. Currently, the U.S. is in the midst of extraditing two defendants named Dawie and Janneman Groenwald, who are from South Africa. They face 17 counts of charges, one of which is for conspiracy, and six of which are for illicit wildlife trafficking in transgression of the Lacey Act.

In regard to the hunt that killed Cecil, charges have already been filed in Zimbabwe against Theo Bronkhurst, who has been indicted for neglecting to supervise, control, and implement measures to avoid an illicit hunt. He entered a plea of not guilty. The owner of the game park, Honest Ndlovu, who has also been implicated for the role he played in assisting Palmer, has not yet been charged. Park officials stated that he would initially testify for the state, and face charges at a later date.

Regardless of whether or not Palmer violated the Lacey Act, there should be consequences under the law for having killed Cecil the Lion. Otherwise, there may be more needless, illegal killings of rare animals by hunters.

Accidental Drowning or Purposeful Murder: The Hudson River Incident

Angelika Graswald, 35, is charged with the second-degree murder and second-degree manslaughter of her late fiancé, Vincent Viafore, 46. She faces 25 years to life for the first charge and 15 years for the second. On April 19th, Graswald and Viafore took a kayaking trip on the Hudson River. Graswald is accused of tampering with Viafore’s kayak plug, causing the kayak to fill with water.

Angelika Graswald stands in court with Michael Archer a foresnsic scientist and her attorneys Jeffrey Chartier and Richard Portale ask for bail and to unseal the indictment against her at her bail hearing in Goshen, NY on May 13, 2015.  Ms. Graswald has b

Graswald’s Arrest
Graswald was charged with the death of Viafore 11 days after the incident. Police say that she was arrested based on the inconsistency of her statements that led investigators to be suspicious. Graswald reportedly made statements that implicated herself in the crime, which gave investigators probable cause to make an arrest.

Despite Graswald admitting to investigators “it felt good knowing he was going to die,” she is pleading not guilty. Part of her defense will center around an allegation that Viafore was intoxicated at the time of his death. Autopsy results are still pending.

Admissibility of Graswald’s statements
Graswald’s lawyer, Richard Portale, is skeptical about Graswald’s statements to investigators and will look into whether they were voluntary. If Graswald’s statements to police investigators were not made voluntarily, her Miranda rights may have been violated. Statements made orally or in writing in violation of a person’s Miranda rights must be suppressed and are inadmissible as evidence for trial. Graswald claims that after being read her Miranda rights, she made the mistake of continuing to speak to law enforcement officials and feels she was tricked into divulging information. Portale further claims Graswald, a Latvian native, still struggles with English and may not have understood her rights.

The right to remain silent during criminal interrogation is derived from the Fifth Amendment. A waiver of Miranda rights requires the act to be done knowingly, intelligently and voluntarily. Portale is likely to argue that his client’s limited English prevented her from properly waiving her rights because she was unable to understand her rights and consequences of waiving them.

The prosecution is likely to call attention to Graswald’s possible motives and to her erratic use of social media following the death of her fiancé. Prosecutors allege Graswald’s motive for killing Viafore was “…her only way out,” and to collect from his $250,000 life insurance policy. Graswald’s social media use consisted of posting selfies, playing with her cat and visiting an animal shelter in the days after Viafore’s death.

Decriminalization of Marijuana in Delaware

The governor of Delaware, Jake Markell, recently signed a bill that decriminalizes possession and private use of miniature quantities of marijuana. The maximum amount of marijuana you can legally possess and use is one ounce. However, police can still seize the drugs.

According to the statute, the penalty for using marijuana publicly will be reduced to a fine of $100. Previously, possession of marijuana was a misdemeanor for which you could face up to six months in jail, and be fined up to $1,150. However, simple possession of marijuana is still a criminal offense for anyone who is under age 18. In addition, if you are caught using marijuana in a moving vehicle, in a public place, or within 10 feet of property that is open to the public, you will be charged with a misdemeanor.

Governor Markell signed the bill into law on Thursday, June 19th, and the law becomes effective six months from then. The bill passed the Senate and the House of Representatives, both of which are controlled by Democrats, and was opposed by Republicans, who claim that the bill sends the wrong message to youth.   Marijuana

A lobbying group called the National Organization for the Reform of Marijuana Laws has said that 18 states, including Delaware, have enacted laws decriminalizing personal use and possession of marijuana in small quantities. There are 23 states, including Delaware and the District of Columbia, that permit the use of marijuana for medical reasons. Ballot measures legalizing marijuana for recreational adult use were approved by voters in Washington, D.C., Colorado, Oregon, Washington state, and Alaska. Nevertheless, marijuana is still an illegal narcotic under federal law.

The Dark Side of Marijuana Legalization

Despite the growing popularity of marijuana, I am inclined to agree that legalizing the drug sends the wrong message to young people, who are very impressionable, and will be more likely use, and even abuse, the drug. According to the National Institute on Drug Abuse, marijuana can have adverse effects on the brain, such as impaired memory, altered senses,  altered sense of time, mood changes, and impaired body movement. Marijuana can also make it harder to think clearly and solve problems.

Marijuana also has long-term adverse effects on the development of the brain, especially when people start using the drug during their teenage years. Use of the drug can diminish thinking, memory, and learning functions, as well as impact the ways in which the brain forms connections between the areas needed for these functions. The effects of marijuana on these abilities may be lengthy or could even be permanent.

Other health effects of marijuana include lung irritation, which can lead to breathing problems; increased heart rate, which can give rise to heart attacks; and child developmental problems during and after pregnancy. Use of marijuana on a long-term basis can cause mental illness, including temporary hallucinations, temporary paranoia, and aggravated symptoms in patients who have been diagnosed with schizophrenia.

Thus, with the exception of medical marijuana, I think that legalization of the drug can only lead to an increasing lack of awareness concerning its ill effects, and a rise in the use among young people. There may also be an increase in the number of people who suffer from the above-mentioned health problems.

Does the U.S. Have Legal Jurisdiction over the FIFA Officials?

Fourteen FIFA officials are being charged for allegations of racketeering, conspiracy, and corruption. The U.S. Department of Justice indicted all fourteen this past Wednesday and the officials were arrested at a hotel in Zurich, Switzerland. The arrests are a product of a three year investigation into the multi-billion dollar organization.

fifa briberyAccording to the 47-count indictment, the officials have immersed themselves into a 24-year long plot to self-benefit and grow richer. Four FIFA officials and 2 corporations plead guilty to similar charges years back.

Does the U.S. Have Legal Jurisdiction over the Officials?

Some FIFA officials have argued that the U.S. has no legal jurisdiction into the indictment of the non-USA officials. But, U.S. federal officials are allowed to charge foreigners abroad if there is a connection to the U.S., and in this case, there is.

Attorney General Loretta Lynch states that the indicted “abused the U.S. financial system and violated U.S. law.” Notably, the illegal payments were transacted through U.S. banks.

In addition to the U.S. charges, the Office of the Swiss Attorney General opened a case on the suspicion that FIFA officials were participating in “criminal management” and “money laundering” regarding the location of the 2018 and 2022 World Cups.

All fourteen officials are facing either 10 to 20 years in prison, mandatory restitution, forfeiture, and fines.