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Howard J. Weintraub
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Howard Weintraub’s Answers

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  • I attended a magistrate court case with my attorney to plead not guilty on a misdemeanor shoplifting charge.

    He attorney came out and saidthey were trying to find my case and couldnt. She stated they may find it and call her in a couple of weeks...i they dont find it it will be dismissed. Does this happen often?

    Howard’s Answer

    You need to speak with your attorney. I feel that it is inappropriate for a lawyer to advise you on your options while this defendant is being represented by counsel. Should you desire an opinion from another attorney, the appropriate procedure would require you to have the defendant's current attorney advise the other attorney that it is permissible for the other attorney to speak with you and to render an opinion regarding your question.

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  • How many years do you get for conspiracy to commit medicare fraud can you get probation

    can you get probation for conspiracy to medicare fraud

    Howard’s Answer

    I have reviewed my earlier answer to your question and I want to elaborate upon the information previously given to you. There are three potential conspiracy statutes that can be utilized by the federal government in prosecuting someone for medicare or health care fraud, each of which statute has its separate term of imprisonment.
    The general conspiracy statute is 18 U.S.C. Section 371. This statute provides: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both." The penalty for an individual for violating this statute is a fine of up to $250,000 or imprisonment of not more than 5 years, or both.
    Another conspiracy statute is 18 U.S.C. Section 1349. This statute provides: "Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy."
    The phrase "this chapter" referred to in the above statute includes the substantive offense of health care fraud set forth in 18 U.S.C. Section 1347. This statute provides in relevant part: "Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice - (1) to defraud any health care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both.
    The penalty for an individual violating this statute is a fine of up to $250,000 or imprisonment of not more than 10 years, or both. Therefore, in accordance with Section 1349 a conspiracy charged under that statute to commit health care fraud under 18 U.S.C. Section 1347 carries a penalty of a fine of $250,000 or imprisonment up to 10 years, or both. The phrase "this chapter" also includes mail fraud and wire fraud and the government could elect to charge this as a mail fraud and /or wire fraud case, depending on the facts and circumstances of the case. In this situation, the government could bring the charge as a conspiracy to commit mail and/or wire fraud in violation of the substantive statutes of 18 U.S.C. Section 1341 (mail fraud) and Section 1343 (wire fraud). Inasmuch as each of these statutes has a maximum sentence of 20 years, a conspiracy to commit medicare fraud through the use of mail and/or wire, radio, television and computer communication in interstate commerce, will carry a maximum penalty of a fine up to $250,000 or imprisonment of not more than 20 years or both.
    Finally, this alleged medicare fraud coud involve violations of the money laundering statutes set forth in 18 U.S.C. Sections 1956 and 1957. 18 U.S.C. Section 1956(h) provides that "Any person who conspires to commit any offense defined in [Section 1956] or Section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." Inasmuch as a money laundering offense, in violation of Section 1956, carries a sentence of imprisonment for not more than 20 years, a conspiracy to commit such money laundering of funds derived through the medicare fraud exposes that defendant to 20 years. A money laundering offense, in violation of Section 1957, carries a sentence of not more than 10 years imprisonment. Thus, a conspiracy to commit money laundering transactions, as prohibited by Section 1957, when the funds are derived from the medicare fraud, exposes the defendant to 10 years of imprisonment.

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  • Would it still be considered statutory rape if the act was in a state where the younger person is above the age of consent

    Could someone who is above 21 be charged with statutory rape if the younger person involved is 16 and from Missouri, where the age of consent is 17, but the act took place in a state, say Minnesota where such person would be above the age of conse...

    Howard’s Answer

    In answering your question, I am assuming that there will not be any production of pictures, videotapes, etc. and that this will only involve interstate travel by the 21 year old male from Georgia to Minnesota and interstate travel of the 16 year old female from Missouri to Minnesota. You should read Title 18, United States Code, Sections 2421, 2422 and 2423, which are the federal statutes governing the interstate travel and transportation involved in your question. Also, Section 2422(b) could involve the use of cell phones, text messaging, computer transmissions, etc. between the participants in setting up this rendezvous. Use of the terms "sexual activity" and "illicit sexual conduct" would encompass the act of sexual intercourse that appears to be the object of this rendezvous. Although I have not researched the cases involving your question, it appears to me that an Assistant United States Attorney (especially if the parents of the female are vocal and insistent) may take the position that the 16 year old female was incapable of deciding to have sexual intercourse and, therefore, her decision to travel to Minnesota resulted in the 21 year old male engaging in a sexual act with another person when that person was "incapable of appraising the nature of the conduct", as the 16 year old female was legally incapable of consenting to said act. See Title 18, United States Code, Section 2242 (2)(A), which needs to be consulted in defining "illicit sexual conduct" as set forth in Section 2423 (f)). However, it may be argued that inasmuch as the "sexual act with another" occurred in Minnesota, where the age of consent is 16, the female would in fact be deemed to be capable of "appraising the nature of the conduct", and the legal fiction imposed by the law in Missouri should not make this a federal offense. As I have stated, I have not researched this answer and you should definitely seek the advice of an attorney, You are free to call my office in Atlanta and consult with my staff. Finally, as to any potential violations of state laws, it seems that there would not be any violations as the female was above the legal age of consent in Minnesota where the act is to take place.

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  • Why can't the defense give evidence to a grand jury?

    Why can't the defense be present when the DA gives the evidence to the grand jury? If a judge wants a grand jury to make the decision on weather there is enough evidence to go to trial, will all the evidence he herd go to the grand jury? If there ...

    Howard’s Answer

    In answering your question I am assuming that the defendant had a preliminary hearing and the judge found probable cause and bound the case over to superior court. When the district attorney presents your case to the grand jury be advised that it is not the role of the grand jury to determine whether the defendant is innocent or guilty, as that is the function of the trial jury. Rather, the role of the grand jury is to decide whether the State has presented probable cause for bringing the charges, that is, whether there is an adequaqte basis for the charges and the defendant's involvement in the alleged misconduct. Except in cases involving public officials and peace officers a defendant does not have any right to offer any evidence to the grand jury or to be present when the grand jury hears testimony. As to whether the grand jury will hear evidence from the preliminary hearing depends upon whether the prosecutor decides to make such known to the grand jury. The failure of the prosecutor to present exculpatory evidence to the grand jury or to call witnesses who would have testified favorably to the defendant normally will not result in any relief for the defendant. That is, although the prosecutor has a constitutional obligation to disclose exculpatory evidence to a defendant for his use at trial, this duty in the trial context does not generally apply to the grand jury. Nonetheless, if it can be shown that exculpatory evidence was not presented to the grand jury (a burden that is very difficult to satisfy), an attorney may decide to file appropriate motions or a plea in abatement with the trial judge after the returning of the indictment.

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  • Armed robbery with bb gun $130 taken

    defendant robbed gas station with bb gun $130 taken, wore no mask, attendant did not get a good look, police entered defendant's home while 13 yr old nephew was home (unsure if entry was forced) found bb gun under defendant's bed. defendant robbed...

    Howard’s Answer

    • Selected as best answer

    This answer assumes that the defendant has been formally charged by way of an Accusation or an Indictment pursuant to O.C.G.A. Section 16-8-41. All pretrial motions, demurrers and special pleas are required to be filed within ten days after the date of arraignment, unless you have the court extend this time for filing. Preliminary discovery motions need to be filed wherein you elect to opt into discovery under O.C.G.A.Section 17-16-2; you request a copy of the Indictment or Accusation and a list of the State's witnesses pursuant to O.C.G.A. Section 17-16-3; you request the items of discovery as set forth under O.C.G.A. Section 17-16-4; and you request the names, current addresses, dates of birth, and telephone numbers of the State's witnesses. I am assuming inasmuch as you are a pre-law student you have access to these above code sections. If not, they can easily be retrieved through legal research resources on the internet. Also, you should file a motion to suppress any and all physical evidence retrieved from the search of the residence, as well as any statements that may have been obtained from the defendant during the search (be mindful of issues such as whether the minor nephew is alleged to have given supposed consent to the police to search the home or whether the search was conducted pursuant to a search warrant). Further, you should file a motion under Jackson v. Denno seeking to have the court exclude any statements made by the defendant. Also you should file a motion seeking to exclude any in-court identifications of the defendant. Depending on other facts in your case, additional motions may be appropriate. Also, keep in mind that although the State will have to show that the defendant took the $130 from the person of the attendant by use of "an offensive weapon, or any replica, article, or device having the appearance of such weapon", the defendant's use of the bb gun can be deemed to be an offensive weapon depending on the circumstances of your case. Whether or not the bb gun was such a weapon would not be the subject of a pretrial motion as it would be an issue to be resolved by the jury. The fact that the robbery was done to pay gambling debts probably will not generate much sympathy from the prosecutor as you explore the possibilty of a plea. Your final question of whether the defendant can be "charged with armed robbery" is answered YES. Try to have the charge reduced to robbery under O.C.G.A. Section 16-8-40, which upon conviction carries no mandatory minimum sentence, whereas a conviction for armed robbery carries a mandatory minimum sentence of 10 years. Such a reduction to the offense of robbery more likely than not would only be accomplished (assuming the prosecutor was willing to do such) with the defendant pleading guilty. A plea of guilty under the First Offender Act would be possible (if the prosecutor and court were agreeable) as the defendant has no prior record.

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  • What will possibly happen if I fail a ua while on probation

    Remember that your question will be posted in a public forum for all to see. Include all relevant details, but please omit any personally identifiable information.

    Howard’s Answer

    As you are well aware, the purpose of requiring you to submit to random urine analyses is to determine if you are remaining drug free during your term of probation. The positive test analysis can result in your probation officer asking the Court to revoke your probation, or to modify the terms of your probation. Also, depending on your performance during your probation, whether there have been any other positive urine analyses, the relationship you have established with the probation officer, and many other factors, your probation officer may very well decide not to seek the intervention of the Court and to continue the probationary supervision under the conditions originally imposed by the Court. In other words, the consequences of your positive urine analysis cannot at this time be determined. It would be wise for you to report this to your attorney and seek his/her guidance.

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  • I got a dui in savannah ga.

    first offense with added driving in wrong lane with head phones. what can I expect

    Howard’s Answer

    I overlooked in my earlier response to you to state that the other two traffic tickets probably will be merged into the DUI offense, thereby permitting you to have those tickets dismissed. Whether this happens, however, will be up to the discretion of the solicitor handling your prosecution.

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  • I got a dui in savannah ga.

    first offense with added driving in wrong lane with head phones. what can I expect

    Howard’s Answer

    Assuming you were 21 at the time of your arrest and you were a licensed Georgia driver, here is a brief overview of the penalties you may be facing if you are found guilty of having a blood alcohol concentration of 0.08 grams or more at the time of the offense. If this is your first DUI conviction, with no prior DUI convictions within the previous ten years, as measured from the date of the arrest of your last DUI conviction to the date of the arrest of your present DUI offense, this is the punishment you will be facing if you are found guilty (or plead guilty) to the DUI: The judge must sentence you to 10 days in jail. All of this sentence can be waived or suspended by the judge if you plead to the offense of DUI-less safe, but if the plea is to the violation of having a blood alcohol concentration of 0.08 grams or more, you must do at least 24 hours in jail. Some judges will give you credit for the time you served prior to being released from jail following your arrest. You will be placed on probation for 12 months, crediting any jail time you have served. Whether any portion of this probation will be non-reporting rather than reporting is left up to the discretion of the judge. You will pay a fine of not less than $300.00 nor more than $1,000.00, plus court surcharges and assessments. Your Georgia driver's license will be suspended for a period of 12 months but the law allows you to obtain a limited driving permit. This permit becomes invalid upon the expiration of 120 days following your conviction. After this passage of 120 days, you can have your Georgia license reinstated if you have completed an approved driving school risk reduction course ("DUI School") and submit proof of such to the Georgia Department of Driver Services, and pay the reinstatement of license fee. As part of your sentence the judge will require you to attend the DUI Alcohol or Drug Use Risk Reduction Program. You also will be ordered to perform a minimum of 40 hours of community service and you will be ordered to undergo a clinical evaluation to determine if you have any alcohol and/or drug dependencies. If the evaluation indicates that treatment is warranted, you will be required to complete an appropriate substance abuse treatment program. The judge can impose additional conditions. What I have written is the penalty required by Georgia statute.

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  • How serious is a complaint filed against a minor by a school resource officer to the juvenile court, charge sexual battery.

    The school offficer filed a complaint in juvenile court against my child who touched a girls buttocks The girl in turn grabbed my son's penis. Should the officer have also complained against the girl in court? Also the girl did not complain about...

    Howard’s Answer

    I concur completely with the previous answer provided by my esteemed colleague, Phillip Kimbrell.

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  • How much time will a first time offender get for burglary at age 17

    burglary in a different city

    Howard’s Answer

    If the offender was 17 at the time of the offense, Georgia law deems that person to be an adult. O.C.G.A. Section 15-11-2(A). As to what sentence will be received depends on a multitude of factors: the background of the offender (even though he has not been convicted previously); how has the offender done in school; the facts of the burglary (residential vs. commercial); if the burglary was of a residence were the occupants home at the time; what was the intended crime inside the premises if the breaking and entry had been successful; the position of the prosecutor, etc.

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