Can I Get Probation Instead of Prison for EIDL Fraud??

There are two significant misunderstandings that have circulated regarding federal EIDL fraud charges. The first is the idea that there is an “average sentence” for an EIDL fraud conviction. While there are several common criminal offenses the government can choose to pursue, there is no “EIDL fraud” crime with a single sentence. There is simply no reliable “average sentence” because the sentence will differ from case to case. The second misunderstanding is the idea that the statutory maximum sentence for any of these crimes reflects what you will actually face in court. The statutory maximum is not a prediction of the sentence you will receive; it is simply the upper limit on what the court can impose.

How Does the Federal Government Determine Your Sentence?

The court determines your sentence by taking a number of factors into account. As the federal sentencing materials indicate:

• The specific conviction you are facing
• The applicable sentencing rules and the sentencing factor calculation in your specific case
• Other unique circumstances of your case

Federal sentencing guidelines also play a significant role. Along with the statutory limits (the maximum sentences imposed by law), judges will consider these guidelines when determining a defendant’s sentence. With this in mind, if you are facing criminal charges related to EIDL fraud, you should engage an experienced defense team to ensure that the court is fully cognizant of all factors and mitigating circumstances, as these have the potential to work to your advantage.

Is Prison Mandatory Following an EIDL Fraud Conviction?

Following an EIDL fraud conviction, it is not guaranteed that you will have to serve time in prison. The provided materials do not identify a general minimum prison term for any of the offenses involved in EIDL fraud. This means that probation is on the table. As the federal sentencing materials explain, probation is possible in certain cases and can serve as an alternative to prison depending on the circumstances involved and other factors.

Which EIDL Charges Make Probation Legally Available or Unavailable?

Under federal law, probation is generally unavailable in cases in which the defendant is convicted of a Class A or B felony offense. Additionally, 18 U.S.C. § 3561 lists various statutory bars to probation. Depending on the specific charges involved in your case, probation may be available or unavailable. For example:

• Bank Fraud: Bank fraud carries a statutory maximum sentence of thirty years. It is a Class B felony, and it is subject to statutory bars to probation. As a result, probation is usually unavailable.
• Section 1040 Fraud: Section 1040 fraud also carries a thirty-year statutory maximum sentence. It is also classified as a Class B felony, and it is subject to statutory bars to probation. As a result, probation is generally not available for Section 1040 fraud.
• Wire Fraud: Ordinary wire fraud carries a statutory maximum sentence of twenty years, but wire fraud involving a major-disaster benefit such as EIDL funds carries a thirty-year maximum. Accordingly, probation may be legally available for ordinary wire fraud, but it is generally unavailable for wire fraud involving EIDL funds.
• Making False Statements: Making false statements involves various federal criminal offenses. Some false-statement offenses carry a five-year statutory maximum sentence, while others carry different maximums. Because classification depends on the maximum term authorized by the particular statute, these offenses are not all necessarily classified as Class D felonies. Probation may be available in some cases involving making false statements, depending on the statute of conviction and the applicable sentencing range.

While probation is legally available in some cases and not in others, this does not mean that judges will always impose probation when it is available. Judges have broad discretion in deciding what sentence is appropriate in each case. When we represent our clients at Spodek Law Group, we focus on demonstrating why probation is appropriate for our clients. This includes highlighting factors like:

• The amount of loss involved in the alleged fraud scheme
• The defendant’s lack of criminal history
• The defendant’s intention (or lack thereof) to defraud the government
• The defendant’s efforts to correct the harm resulting from their conduct
• The defendant’s otherwise exemplary background and character

Ultimately, the specific charges involved in your case will play a significant role in determining whether probation is available. Our federal defense attorneys and criminal judges can help ensure that you receive a fair sentence.

Todd Spodek represented the juror at the centre of the challenge to the Ghislaine Maxwell verdict.

How Do EIDL Loss, Repayment, and Multiple Counts Change the Consequences?

Additional factors play a substantial role in determining the potential consequences for obtaining EIDL funds improperly. These include factors such as:

• Loss amount; and
• Repayment.

For example, the False Claims Act allows the federal government to seek treble damages and statutory penalties for certain knowing violations involving false claims, material false statements, or obligations to pay the government. Under the False Claims Act, treble damages are three times the government’s actual losses, plus statutory penalties, as a result of the alleged fraud. The False Claims Act statute is separate from the criminal statutes, though the federal government can file both civil and criminal charges. Loss amount also plays a significant role in determining the potential federal sentencing guidelines. With the Loss amount in mind, restitution and forfeiture are the two methods of recovering EIDL funds. Restitution is a court-ordered payment to a victim, imposed as part of a criminal sentence to compensate losses caused by the offense. In contrast, forfeiture is the government’s legal process for taking property linked to alleged criminal activity, and criminal forfeiture may be imposed as part of a sentence. Repayment is a method of voluntarily paying back the government in order to offset the financial losses it suffered. Repayment may also play a role in your case’s resolution. However, paying back the government is not a defense for fraud, and it does not wipe away any allegedly completed offenses.

Can Repaying EIDL Funds Get You Out of Trouble?

Repaying EIDL funds does not wipe away an alleged offense. Even though it may play a role in your case’s resolution, it is not a defense to allegations of fraud. Repayment is also not the same as restitution or forfeiture. Repayment is a voluntary action you take on your part, whereas restitution and forfeiture are sanctions the government imposes against you.

Can the Government Seek EIDL Recovery Without Filing Criminal Charges?

Yes, it is possible to seek EIDL recovery in cases where the government decides not to file criminal charges.

The U.S. Department of Justice (DOJ) can initiate civil litigation under the False Claims Act, and the civil litigation may include a demand for repayment, as well as a demand for additional statutory penalties and damages as well. With this in mind, if you received EIDL funds, you should speak with an experienced defense attorney promptly.

What Happens Before an EIDL Indictment, and How is Detention Different from Imprisonment?

Do I Need an Attorney Before an EIDL Fraud Indictment?

Do I need an attorney before an EIDL fraud indictment? Yes. If federal agents come knocking on your door or get in contact with you and ask to speak with you, they may be attempting to conduct an investigative interview. This can be the first sign of a federal investigation targeting you. If you speak with the federal agents, you can provide incriminating information; and, if you speak with them without your attorney present, you may not be able to present a convincing defense. For this reason, if federal agents come into contact with you, you should make sure to have your attorney present when you talk to them. While you do not have to talk to the federal agents, if they do knock on your door or get in touch with you, you can let them know that you are available to speak with them once your attorney is present.

What if I Say Something Incorrect to the Federal Agents?

You may have concerns about what you said to federal agents prior to your attorney getting involved. As a matter of course, federal agents will try to get you to incriminate yourself during their interviews, and they may try to entice you to talk by saying that your statements are not recorded or that they will not lead to criminal charges. However, if you speak with federal agents and say something false, this could potentially open you up to additional federal criminal exposure. Even if this is not the case, it will not necessarily be a defense to the federal charges that you say something that is not true.

How Long is the Investigation Process for EIDL Fraud?

The duration of the investigation process for EIDL fraud varies widely. The federal government can take as little as weeks or as long as several years to investigate potential criminal fraud. Of course, this does not always mean that a criminal case will be filed against you. To seek to pursue criminal charges, federal prosecutors have to file the charges within the statute of limitations. In order to do this, they have to investigate your case first. The ordinary statute of limitations period for federal fraud is five years from the date of the offense. However, this period varies depending on the case. For financial institutions, the ordinary period is 10 years. To learn more, you should reach out to an experienced defense attorney.

Calling About Someone You Love

Most first calls to a defense firm come from a family member rather than the person under investigation. If that is you, Spodek Law Group answers its phone at any hour, and families retain the firm on a relative's behalf every week. Reach it at 888 348 8028.