Skip to main content
John R. Osgood

John Osgood’s Answers

8 total

  • If a person is cought selling drugs to a undercover cop and snitch.what happens to the person he snitchs on?

    If a person gets cought selling cocain to a under cover cop 3 times and then finally gets indicted after a year .When he gets indicted he snitchs and says i got these drugs from this other person.what happens to the other person.even tho the other...

    John’s Answer

    This was posted as a "Missouri" question. You indicated there was an indictement. Most drug cases in Missouri of any magnitude are turned over to the US for prosecution, particularly in the meto areas such as Kansas City where I practice. In KC cases do not proceed by indicment in State Court unless the defendant refuses to waive preliminary hearing. This is rare simply because there is always a state grand jury in session and most counsel have their clients waive for that reason. So presuming a federal indictment it would appear that the person indicted has decided to become a cooperating witness in an attempt to obtain what is called a downward departure of the sentence he would otherwise face. This means he must provide full and truthful information. If he gets caught lying to the authorities his deal will not be honored by the US Attorney. This is a pretty strong incentive not to lie if he has a good attorney and is following that attorney's advice. Typically he will provide a proffer (a meeting where he tells all he knows) and that information will be evaluated for further use. If it is historical information of past durg dealings the agents will then attempt to corroborate the information through further investigaton. As the information is digested and followed up on at some point a decision will be made by the agents and the prosecutor working in concernt as to whether there is sufficeint evidence to support additional indicments. Consquently, under the facts as stated above it is far to premature to prdict what will or will not happen. Sorry but that's the best that can be said.

    See question 
  • What are the statue of limitation on fraud cases

    is it 3 yr 5yrs or more

    John’s Answer

    This will vary from state to state. If it is a federal prosecution, it is five years. Be aware, however, if the defendant was charged within the 5 year period and his identity known and he simply could not be arrested for whatever reason, the statute of limitations is tolled and does not apply

    See question 
  • Have you heard of the diversion program?

    For white collar crimes where a person can work out a way to dismiss a felony charge against them by pleading guilty & agreeing to certain terms, not getting in trouble again, etc? Can this be done through the Judge or does the prosecutor have to...

    John’s Answer

    Mr. Barron’s answer is 100% on the mark. I would only add the following. I represented a client in the district of Kansas, Kansas City, Kansas Division, on a federal gun charge. He had successfully completed diversion in the Western District of Missouri, Kansas City Davison, on a federal gun charge. He was offered diversion frankly because the government could not prove the case. As part of the diversion he was required to sign a diversion agreement that admitted guilt in the Missouri case. In the Kansas case the government attempted to put the Missouri diversion agreement and some of the underlying 404(b) facts into evidence during trial. I successfully kept the actual agreement and 85% of the facts surrounding that case out of evidence though motions in limine and objections. Obviously, the defendant did not testify as that would have opened the door to further 404(b) evidence from the Missouri case. Fortunately, the defendant was acquitted after 20 minutes of deliberation in the Kansas case. I mention this only to alert anyone entering into such agreements (which Mr. Barron correctly points out are rare anyway) to be extremely careful of the language in the agreement, particularly with respect to the factual recitations. The agreement in the Missouri case stated that the document could only be used against the defendant in a subsequent prosecution for the Missouri case. This was the basis for keeping it out of the Kansas prosecution. Needless to say I was informed by the Missouri AUSA that this language is now being modified in future diversion agreements. I argued that the Kansas prosecution was frivolous and an attempt to convict the defendant as punishment in part for his original Missouri misconduct. This case is now pending at the 10th Circuit on a claim for attorney fees under the Hyde Amendment and will be argued in March 2011.

    See question 
  • Can a judge dismiss the indictment counts the jury found defendant guilty/not guilty of then sentence on different indictment?

    The trial transcript records that the jury found the defendant guilty of counts 1-4 and not guilty of count five of the superseding indictment. the judge then dismissed all of the superseding indictment counts except count three, then sentenced t...

    John’s Answer

    • Selected as best answer

    SEEKING ADVICE AND WHERE TO TURN: This too is a specific question about a federal prosecution. Mr. Robinson’s answer needs serious clarification. First, his suggestion that the defendant contact a former “law secretary for a judge in the county in which this occurred” suggests an utter unfamiliarity with federal practice. This case was prosecuted in a “federal judicial district” with the 4th Circuit US Court of Appeals. No county judge was involved and it was not a state prosecution so seeking out a “law secretary” for a state judge seems absurd to me. Secondly, the case was prosecuted by the United States Attorney for the district involved. Generally, appeals at the Circuit level are handled by the AUSA who was the trial prosecutor. In some larger districts, the US Attorneys office will have an in-house appellate supervising attorney who will coordinate with the AUSA on the brief. If Mr. Robinson is suggesting that you seek out a former Assistant US Attorney, this is good advice as former AUSA such as myself are going to be intimately familiarly with federal practice and are the best qualified to do these types of cases. It is best to avoid state practitioners who dabble in general practice and have little real experience in federal court as they will generally make many mistakes.
    THE SUPERSEDING INDICTMENT ISSUE: The question is a bit confusing. Superseding indictments are routinely sought and obtained in federal cases, particularly where there are multiple defendants and the litigation is complex. The superseding indictment will often add or delete counts and add or delete defendants for various reasons. The last superseding indictment entirely replaces the original indictment and any earlier superseding indictments. Trial will be on this last indictment. Typically the prior indictment will be dismissed by the Court at the conclusion of the case. They are not dismissed however as a matter of law. It requires a court order. Here the questions indicates conviction on Counts 1 through 4 and not guilty on count five. Assuming these five counts are the same five counts contained in the earlier indictments, disposition by jury trial constitutes absolute double jeopardy with respect to the earlier counts contained in the original indictments which will be eventually also dismissed.. It sound like from the question that the judge dismissed everything except count three of the superseding indictment and the defendant was sentenced on that count. When the question suggests that the defendant was then sentenced on other counts here is what probably happened. The Court likely relied on criminal allegations in those counts (this is called relevant conduct and may involve such things as controlled substance quantities or dollar amounts in fraud prosecutions, and so on) to enhance the sentence. This unfortunately is legal and often occurs in federal cases. This can occur even where there were no counts in the indictment covering the conduct. For example if a fraud case where the indictment contains 10 named victims who lost a total of $100,000 dollars the government can at sentencing produce an additional victim or victims not named in the indictment at sentencing and argue for upward departure from the recommend sentence. Once again, these are highly complex federal sentencing issues that are best addressed by someone who regularly practices federal criminal defense – not a state practitioner who is a general practitioner.

    See question 
  • Will you have an idea at the US Probation Presentence

    Report what your sentence will be or what the Probation Dept is suggesting for your sentence, alternative sentencing, probation, etc?

    John’s Answer

    I disagree with Mr. Robinson’s answer which in my opinion is incomplete and to some extent seriously in error. This question was listed as a federal prosecution question. The defendant receives a "draft copy" of the presentence report. He has 10 days to file any objections to the federal sentencing guideline calculations. The Probation Officer will then address these objections in a "final" presentence report which will contain an addendum. He may or may not conceded objections which will normally appear verbatim in the addendum. If there are open unresolved objections at sentencing the court must then rule on the objections after conducting a hearing. The court may not legally simply rely on the presentence report. The burden is on the prosecution to substantiate the calculations and appropriateness of the enhancement under the guidelines and the judge must make a finding that they are applicable using a "beyond a reasonable doubt" standard unless the plea agreement provides that such findings can be made by preponderance which by the way is a standard recommended inclusion that the Justice Department wants in plea agreements. The latter is a good reason in some cases to plead blind without a plea agreement, particularly if there are issues of "relevant conduct" enhancements or disputes over relative culpability i.e. whether the defendant is a minor participant as opposed to being a leader or manager. The guidelines were mandatory until the Supreme Court finally ruled they are truly only advisory. Judges still tend to rely heavily on them though. However, the defendant may now argue that a variance is applicable and that the numbers should not apply even if they are correctly calculated and instead argue to the court that it should sentence under the factors dealing with individual sentencing considerations under Title 18, Untied State Code. Once again, government boiler plate language in a plea agreement will often contain a paragraph limiting the right of the defendant to seek a variance from the guidelines. Sentencing in a federal case is highly complex and requires the services of a defense attorney who has considerable experience in federal criminal cases. Sentencing considerations must be a part of the strategy from the very beginning. As you can see, there are many pitfalls that the unwary can encounter in federal practice if that individual is not an active "federal" criminal defense attorney.

    See question 
  • Does a felony warrant have a statute of limitations?

    in the state of missouri does a felony warrant have a statute of limitations?

    John’s Answer

    Chapter 556, RSMO, sets out the statute of limitations in Missouri. For ordinary crimes the periods are: Time limitations. - (1) For any felony, three years; (2) For any misdemeanor, one year; (3) For any infraction, six months. This is just the starting rule. There are then a number of exceptions in 556. to the general rules that can extend the limitation periods. You should go to the chapter and read the various sections. They are not difficult to understand. A direct link to the Missouri Revised Statues on the official MO site and this chapter are at: http://www.moga.mo.gov/statutes/C556.HTM
    The arrest warrant after it is issued if issued within the period of limitations may or may not be valid depending on what the crime is and how it fits into the above sections. Limitations are really only significant insofar as the offense is concerned. If you are arrested on a bad warrant it may affect such things as whether a statement would be admissible, assuming you made one, and whether evidence was properly obtained; however, again the real issue is statutory limitations -- not warrant validity.

    See question 
  • My attorney and prob. officer told me that I legally do not have to say "yes" to any felony conviction or probation,but should I

    I have never been in trouble before. Not even a speeding ticket. In 2006 I was convicted of felony larceny with a S.I.S, do to the fact I had never been in trouble. I finished my sentence in 2009. I was told by my attorney and my probation officer...

    John’s Answer

    Revised Statutes of Missouri, Section 660.317 is captioned: "Criminal background checks of employees, required when - persons Criminal background checks of employees, required when - persons with criminal history not to be hired, when, penalty - failure to disclose, penalty - improper hiring’s, penalty - definitions - rules to waive hiring restrictions. –“

    There are a number of sections dealing with medical and health care related jobs that clearly and specifically require disclosure of SIS convictions. You should be extremely cautions here, read the statute which you can find at: http://www.moga.mo.gov/statutesearch/
    Many lawyers mistakenly overstate the net value of an SIS plea in Missouri and fail to explain the many exceptions to the general belief that if there is "no conviction" then there is no problem. Moreover, the federal courts in Missouri and at the 8th Circuit Court of Appalls have uniformly ruled that SIS pleas can be used to enhance sentencing in a subsequently federal prosecution. You should press you lawyer to fully explain all this to you before you make a decision.

    See question 
  • My attorney and prob. officer told me that I legally do not have to say "yes" to any felony conviction or probation,but should I

    I have never been in trouble before. Not even a speeding ticket. In 2006 I was convicted of felony larceny with a S.I.S, do to the fact I had never been in trouble. I finished my sentence in 2009. I was told by my attorney and my probation officer...

    John’s Answer

    Revised Statutes of Missouri, Section 660.317 is captioned: "Criminal background checks of employees, required when - persons Criminal background checks of employees, required when - persons with criminal history not to be hired, when, penalty - failure to disclose, penalty - improper hirings, penalty - definitions - rules to waive hiring restrictions. -

    There are a number of sections dealing with medical and health care related jobs that clearly and specifically require disclosure of SIS convictions. You should be extremely cautions here, read the statute which you can find at: http://www.moga.mo.gov/statutesearch/
    Many lawyers mistakenly overstate the net value of an SIS plea in Missouri and fail to explain the many exceptions to the general belief that if there is "no conviciton" then there is no problem. Moreover, the federal courts in Missouri and at the 8th Circuit Court of Applels have uniformly ruled that SIS pleas can be used to enhance sentencing in a subsequently federal prosecution. You should press you lawyer to fully explain all this to you before you make a decision.

    See question