Man’s Best Friend and Crime

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Man’s best friend has begun to play a huge role in law enforcement and criminal investigations. On any given day, you could see a drug dog, a bomb dog, a cadaver dog, and a dog that will protect its handler at the expense of your arm, leg, or otherwise. But what kind of role do dogs play in the justice system, particularly when it comes to evidence?

Dogs can be crucial when it comes to finding a victim or a body. Cadaver dogs sniffed out four missing young men in Pennsylvania this month – buried over 12 feet in the ground. While it was a good find, the dogs had help as the investigators had narrowed the perimeter of search to the property owned by the folks who eventually confessed to the four murders.

The use of dogs for sniffing out drugs can be somewhat more problematic. Studies have shown that only 44 percent of a dogs’ positive signals actually led to the discovery of drugs or drug paraphernalia. Likely, that is because a dog is trained to signal when they pick up the scent of a drug. Very often, that is all that remains of the contraband – the scent. Regardless, the use of drug dogs to allow a more invasive search of someone’s vehicle or person came before the U.S. Supreme Court in 2013 in the case of Florida v. Harris. The issue in the case was whether law enforcement’s assertions that the dog is well-trained to signal the existence of a drug is enough to establish probable cause to search a vehicle under the 4th Amendment of the Constitution.

In the case, a Sheriff and his drug detection dog, Aldo, were on patrol, when the officer stopped someone for expired tags on his vehicle. The defendant refused a search, and thus, Aldo was deployed. He signaled at the driver’s side door handle. The officer then searched the vehicle, finding 200 pseudoephedrine pills, 800 matches, and various other items that are consistent with the production of methamphetamine. About two months later, the same defendant was stopped by the same officer, using the same dog who alerted to the same place – but this time, no drugs were found. Harris moved to suppress the evidence, which was denied.

At oral arguments before the Supreme Court, the defendants relied on studies showing that drug detection dogs were largely ineffective, while the prosecution said that ‘false positives’ mean nothing, arguing that the drugs could have been there previously, or just extraordinarily well-hidden. In fact, the Attorney General of Florida wrote, in his reply brief, that it was similar to walking into a room after someone made popcorn – but there was no bag or other evidence that popcorn had been cooked. This did not change the fact that you still smelled popcorn.

In a unanimous opinion, the court held that the dog’s certification and continued training are an adequate indication of his reliability, sufficient to presume the alert is enough to provide probable cause to search further, particularly under the ‘totality of the circumstances’ test. However, the court did reserve future issues, such as where the dog’s reliability could be questioned when there are specific grounds present to the case at hand.

Overall, the court appears to be sympathetic to a well-trained, certified drug-sniffing dog when it comes to 4th Amendment rights. However, it has trimmed up the ability of officer’s to use the dog in the Rodriguez matter, wherein Justice Ginsburg wrote that without reasonable suspicion to begin with, extending a traffic stop to conduct a dog sniff is against the Constitution’s prohibition on unreasonable seizures. There will likely be several more ‘dog’ cases in the future. Just remember – if you are pulled over and asked to search your vehicle, it is within your rights to say no.

Hate Speech

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In light of Kathy Griffin’s latest ill-advised photo shoot of her posing with a fake decapitated head with signature Trump hair-style, several debates and questions have arisen concerning ‘hate speech’ in this country, and whether or not it can be criminalized.

First – in the United States of America, there is absolutely no ‘hate speech’ exception to the First Amendment. This country is unique in that the right to free speech is one of the most important and fiercely protected Constitutional rights. Other countries, like the United Kingdom, do allow crimes to be prosecuted on the basis of words. (Or images). That’s why you get so many crazies on your Facebook news feed spouting off horribly racist things and why we have such a variety of ‘news’ shows on YouTube. The exceptions to the First Amendment are few: ‘fighting words’ are not protected. Fighting words are words designed to incite a fight, and are typically face-to-face personal insults directed at a specific person. But these words are not always racial or religious abuse – and sometimes it doesn’t even cover these kinds of statements. Take the R.A.V. v. City of St. Paul case before the Supreme Court, for example. The city tried to punish fighting words that were bigoted in nature, and SCOTUS held that this would be constitutional, even though a broad ban on all fighting words is permissible.

Another exception is actual, true threats, or words that are likely to incite imminent illegal conduct. Such as threatening to kill someone because he’s gay or Muslim, or intentionally inciting others to harm someone because they are Jewish or white. However, under no circumstances is it ‘hate speech;’ – it’s just because it’s illegal to make these kinds of threats of violence. Other kinds of speech are unprotected, such as libel or defamatory speech, or anything that is obscene (a discussion warranted for another time).

With that said, some actions that have an element of hate in them are crimes and carry heightened penalties – hate crimes. Lately there has been an increase in reported hate crimes – up 67% against Muslim Americans in 2015. Hate crimes are traditional offenses with an added element of bias (usually motivated by race, religion, disability, sexual orientation, ethnicity, gender or gender identity). As with the examples above, hate crimes are already a crime. The element of hate is simply an aggravating factor that often affects the sentencing of the crime.

The structure as it is now punishes bad behavior better than bad beliefs. The physical intimidation or assault is punished, and the hate element is simply an aggravating factor. After all, we do not live in an Orwellian world (yet), so not only are thought crimes nonexistent, they are pretty hard to regulate.

Kathy Griffin waving a disembodied prop of a Trump-esque head might be hateful, but it’s completely protected. As with anything, the devil is in the details. Introducing a hate speech exception into the First Amendment would be no different. It would involve an examination into the kinds of speech deemed ‘hateful.’ What perspectives and opinions does the government have an interest in suppressing and limiting? What points of views should be protected? How on earth are judges supposed to distinguish the two? America was founded upon the notions of free speech, free debate, and using parody (even if it’s shocking and offensive) to make a point. Trying to whittle that down into ‘acceptable’ points of view in the melting pot of society would be not only impossible, but would probably result in some pretty heated debates on its own.

Immigration & Crime in L.A.

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One of the most hot-button issues in Los Angeles and the U.S. lately has been the topic of immigration. Economic concerns are always viable, but the focus on developing stricter immigration laws has been on the risk of crime and preventing criminals from crossing our borders. But how big of a threat are undocumented immigrants when it comes to increasing criminal activity in the country?

According to the American Immigration Council, and FBI data, while the number of undocumented immigrations increased from 3.5 million to 11.2 million between 1990 and 2013, the rate of violent crime actually fell by 48% during the same time period. To put this into further context, another study by Bianca Bersani, a professor of sociology at the University of Massachusetts in Boston, finds that 17% of all first-generation immigrants who are 16 have committed a crime in the past year, while about 25% of native-born 16 year olds have. An second-generation immigrants commit crimes at about the same rights as native-born citizens – but the issue is really crimes committed by undocumented, first-generation immigrants – at least, according to the White House. After all, the White House plans to publish a list of crimes committed by undocumented immigrants in the sanctuary cities across the country. He also has ordered the Department of Homeland Security to create an office called VOICE – helping ‘victims of immigrant crime.’

But other studies reach similar conclusions about the reduced rate of criminal behavior amongst undocumented immigrants: Among people aged 18-54, 1.53% of the native population is incarcerated versus .85 percent of undocumented immigrants. Anecdotally, some opponents of Mr. Trump’s immigration policy argue that areas with high numbers of immigrants actually tend to have lower rates of crime, although it is difficult to prove this assertion. In fact, the only place where Mr. Trump might be correct is in looking at crimes related to poverty and theft when looking at potential increases in crime committed by undocumented immigrants. But the violent crimes are largely committed by the native population.

The rhetoric of fear concerning immigration deals with the threat of terrorism, too – two bans on residents traveling from certain countries emphasize this belief. Perhaps Mr. Trump’s information is more accurate in this realm? Not exactly. Thankfully, deaths due to foreign-born terrorism are incredibly rare, and aside from the attacks on 9/11, foreign-born terrorists have killed about one American per year. Americans are actually more likely to die from an animal attack than a foreign born terrorist.

Of course, these statistics do not mean that immigrants do not commit any violent crimes, and one common example used by anti-immigration advocates is the story of Kathryn Steinle’s murder, committed by a man who had been deported from the U.S. to Mexico five times. And the Federation for American Immigration Reform compiles a list of serious crimes committed by undocumented aliens. In 2016, the examples of crimes occurred at the rate of about once a month, with a significant number of immigrants belonging to gangs. Additionally, the Department of Public Safety in Texas has tracked an increase in drug smuggling, although these cases are likely committed by individuals with no intention of remaining and immigrating into the country. So, statistically speaking, these stories of crime, while tragic, are exceptions to the rule, and should not be heavily depended upon in developing and crafting policy for immigration.

Former Baggage Handlers Indicted on Federal Drug Charges for Using Credentials to Bring Cocaine Past Security

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3 individuals were arrested on federal charges of conspiracy for intent to distribute cocaine under 21 US 846, 841 a (1). Jet Blue flight attendant Marsha Gay Reynolds was caught with approximately 70 lb of cocaine during a secondary TSA random check at LAX airport. She tried to run up the escalator with her shoes off after they attempted to escort her to a secure area for further screening. She attempted to call someone on her cellphone while speaking in a foreign language as soon as she was informed that she was randomly chosen for a secondary TSA screening.

Also involved in this scheme are Adrian Ponce and Alberto Preciado Gutierrez. Ponce admitted to driving Gutierrez to the airport, whereby as part of a scheme involving illegal drug transport, they would pay a third party courier (a ticketed flight passenger) approximately $ 1500.00, and split the remaining money for transport of samples of approximately 1 kilo of cocaine. In December 2015, Gutierrez was caught with this amount in the terminal bathroom attempting to make an exchange with a third party courier. After being read their Miranda rights, they both provided statements revealing the scheme of transporting coke using commercial airlines. It is not uncommon for Transnational Criminal Organizations (TCO’s) to use air travel to smuggle drugs by paying off airport or airline personnel with access to sensitive areas of the airport and aircraft. Surveillance revealed the extent of these operations, with Preciado caught on video carrying a backpack containing goods in secure areas of the airport at times after his shift was done. The scheme was intended to provide a sample to customers, and if they were satisfied, the plan was to provide more drugs via hidden compartments of a bobtail truck.

Interesting to note, Ms. Marsha Reynolds is brought under separate complaint charges than Mr. Preciado. This may be a government strategy whereby there are cooperating witnesses and informants that may have impacted the decision to try the cases separately. In a multiple defendant case, it is possible that the co-defendants may be charged in the same formal charging documents thereby they would have a joint trial. In other cases, it may even be better for a defendant if other defendants are charged separately and proceed to trial in separate matters. This is called a motion to sever the trial, sometimes filed by defense attorneys.

Although Ms. Marsha Reynolds was arrested in April of 2015, it appears that the federal government had been investigating this type of scheme using the airport and airport employees since at least December 2015. Agents in charge of investigation are usually highly trained and have experience and certification through International and National narcotics interdiction, as well as professional experience in the commercial aviation industry. Transnational Criminal Organizations are constantly evolving to use different methods to transport and distribute drugs across the country.

Some defenses may include factual basis such as various degrees of participation in a conspiracy and various degrees of intent to distribute. This may be typically called a mistake of fact defense or factual impossibility. The difference is that it may be argued that a defendant made a mistake and therefore did not have the appropriate intent to commit the crime charged, whereas mistake of law defenses may include situations where the crime itself was impossible to carry out, even if the accused had the requisite intent.

US government seized more than $20 million in largest commercial fraud scheme ever in West Coast

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A massive shipment of apparel from Hong Kong was seized for being illegally imported into the US.  Commercial smuggling has greatly impacted US importation revenues and enforcement efforts have increased to try to stop undermining the US economy. The scheme involved false documents to customs that were fabricated to avoid import duties and quotas. Estimated losses in revenue are in excess of $600 million.

The documents claimed that the goods were being sold to companies in Mexico. In fact, they were to be distributed to customers in the United States. An owner of a Los Angeles based trucking company was federally charged in connection with this case and pled guilty in 2008. There are four other defendants that remain at large for making false customs declarations and smuggling.

US Title 18 Section 545 prohibits smuggling of goods that should have been declared at customs. It also penalizes conduct for fabricating documents in connection with bringing in the smuggled goods.  The specific intent element of the crime is “knowingly” or fraudulently. It must be proven that the defendant knew the object was intended for export contrary to the laws of the United States.

Although the maximum term of imprisonment on this count may be 10 years, there may be additional sentencing enhancements based on the type, value and amount of the goods and fines typically range in the millions. Furthermore, the products can be permanently seized and confiscated by the government.

Collaboration among enforcement agencies such as ICE (Immigration and Customs Enforcement), Customs and Border Patrol, Homeland Security Investigations, and the US Coast Guard have led to zealous enforcement. In this particular case, these agencies seized over $20.5 million in assets. Some of the seizures included 100,000 square foot warehouses in Commerce and other businesses in Los Angeles and Texas.

There is an entire asset forfeiture branch of ICE that is dedicated to finding assets that are the proceeds of the smuggling or were used to facilitate breaking the federal smuggling laws. Their primary goal is to deter criminals from profiting from the property used in connection with the crime.  Once seized, the property is equitably shared with other local branches of government and internationally to facilitate law enforcement cooperation.

There has been noted asset forfeiture abuse and defense attorneys at the Blanch Law Firm are committed to fighting inequitable or illegal asset forfeiture actions. The government can seize a person’s property without notice or hearing by moving ex parte by merely showing probable cause that the property was involved in a crime. The property itself does not have to be illegal, it could be the proceeds of a crime or somehow facilitates the crime. The property may even end up in the hands of someone not even alleged to be connected to the criminal activity.  How broad is this reading of what constitutes the instruments or proceeds of a crime?

The government’s ability to extract fines is limited by the Excessive Fine Clause. In certain instances, an excessive fine or forfeiture violates the 8th Amendment. Indeed the forfeiture must be proportionate to the gravity of the offense. See United States v. Bajakajian, 524 U.S. 321 (1998) (failure to declare currency in excess of $10,000 did not justify forfeiture of $357,000 in cash that an international passenger was caught by Customs with when departing the US).

In fact, since that case there have been subcommittees established for oversight of federal asset forfeiture which can be administrative, civil or criminal. Limitations set by the federal government and arguments made by attorneys can help regulate and ensure that property seizures remain equitable and not excessive or illegal under the laws.

Seven California Residents Charged with Operating Boiler Room Mortgage Loan Modification Scheme

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Seven defendants arrested in California for allegedly falsely promising to provide home mortgage loan modification services in exchange for upfront fees ranging from $2,500 to $4,300. The indictment alleges that these individuals operated under a number of false aliases and under the names of at least 30 different California- based companies targeting individuals who had a rough time repaying their home mortgage loans. The boiler room scheme involved cold calling and impacted Connecticut residents and across the US. The alleged victims of this scheme were instructed to mail their checks to addresses set up in states other than California. One of the defendants already pled guilty to conspiracy to commit wire fraud. Each of the named defendants is facing a maximum term of 20 years per count with certain sentencing enhancements if convicted.

The mortgage loan modification scheme involved false misrepresentations of the following: home owners were already preapproved for loan modifications on amazing terms and that these terms had already been negotiated with the homeowners’ lenders. The alleged victims were also told they qualified to receive assistance from government mortgage relief programs (when in fact many of them did not) and that they would receive a full refund in they were not able to obtain a favorable mortgage loan modification.

The individuals indicted are also facing sentencing enhancements for participating in “telemarketing” fraud and what is known as “vulnerable victim enhancement.” Under USSG Section 3A1.1 (b),  a sentencing enhancement increase of 2 levels is mandated if the defendant knew or should have known that a victim of the offense was a “vulnerable victim”.

What is a vulnerable victim? It’s a person who is “unusually vulnerable” due to age, physical or mental condition, or is otherwise particularly susceptible to criminal conduct.”

Defenses in these types of enhancement may explore whether there was in fact a connection between the victim’s vulnerability and the crime’s ultimate success. The burden of proof on the government is that they must prove that the defendant knew or should have known that a victim of the offense was vulnerable, but not necessarily in every case must the defendant know of the vulnerabilities.

It is important to note that the government cannot just presume vulnerabilities among broad classes of victims. This is incorrect and disfavored as a basis for the enhancement. Typically it must be shown that the victims’ vulnerability was known from the outset, or learned of in the course of the conduct deemed to be fraud.  An offender must have prior knowledge of his victims’ vulnerabilities.

Other enhancements faced by defendants could be for responsibility as a manager/ supervisor, or for mass marketing, or where the loss exceeded $1,500,000.

The government seeks to protect “vulnerable victims” such as senior citizens or as in this case those alleged over the age of 55, because they are most likely to own their own home, they consist of a generation that tends to be more polite or trusting and they are less likely to report fraud. Moreover, it may take this segment of the population more time to discover the fraud and when they do, they make poor witnesses because of deficiencies in memory.

Multiple Defendant Indictment in Tunnel and Drug Seizure, San Diego , CA

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Multiple Defendant Indictment in Tunnel and Drug Seizure, San Diego , CA

It may not be common knowledge that using a tunnel for illegal drug trafficking is a separate federal crime in and of itself. The crime carries with it a maximum sentence of 20 years under 18 US Code Section 555.

–          6 Defendants indicted in connection with building, financing and maintaining a 415 yard tunnel across the border to facilitate drug trafficking.

–           Defendants were using a tunnel that led from El Sarape Restaurant in Mexicali to a  2 bedroom house in Calexico, CA.Agents discovered a hole in the floor covered with tile to conceal the shaft underground.

– The tunnel is located about 300 yards north of the international border

In addition to charges for conspiracy to distribute over 1000 kilograms of marijuana (mandatory minimum of 10 years in federal prison), the crime involving the use of an international tunnel carries a maximum sentence of 20 years in prison

–          Defendants are also charged with maintaining and using the restaurant and 2 bedroom house as drug related premises. These charges also carry a maximum penalty of 20 years in prison.

–          Conspiracy is a specific intent crime. All the Defendants must be found to have been in agreement with respect to criminal conduct.

–          In practice, an indictment may name individuals that may not have actually physically handled or possessed drugs.

–          To succeed in a jury trial conviction, the prosecutor must prove the extent of the agreement among the named defendants and the understanding among them. This relates to the specific element of intent in the crime of conspiracy.

–          Only 5 of the defendants are charged with using a narcotics tunnel

–          The charges allow for punishment for “recklessly disregarding the use of a tunnel.” That means there had to be some level of knowledge or awareness that a tunnel was being used for this illicit purpose and that these individuals recklessly disregarded that information (or turned a blind eye).

–   Affirmative defenses can also include that they had insufficient involvement and knowledge about the tunnel and how it was used to be deemed “recklessly disregarding” any fact.

–   The question may turn on whether a reasonable person in that position would have known or should have known that a tunnel was used in illegal activity such as moving drugs across the border between this “restaurant” and the 2 bedroom house and whether these individuals knew that these premises were being used as a “front”.

–          Evidence of more than 1 ton of marijuana was recovered. A defense strategy may be employed to attack the conspiracy allegations which may undermine the determination that all Defendants should be charged with the entire amount of drugs recovered.

–          Affirmative defenses in conspiracy drug charges can be that the Defendants did not have the same agreement, understanding, or knowledge about the illegal conduct or drug trafficking.

–          Tunnels have been used to traffic humans and drugs. With strong implications for border security, the government has tightened its enforcement and prosecution of these crimes.

–          Only one defendant is alleged to be responsible for the conspiracy to construct and finance this international tunnel. It will be interesting to see how the complaint may be amended and what parties may be added as defendants as the investigation progresses and other defendants may choose to cooperate with the government in hopes of a favorable plea bargain.

Marsy’s Law in California

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When someone becomes a victim of a crime, life gets put on hold.  Lives are destroyed, hearts are broken, and nothing is ever the same.  The law is designed to keep innocent citizens from being convicted, but often it fails at protecting the victims after the initial crime.  In California a law was proposed and approved in 2008 entitled, “Proposition 9—the Victims’ Bill of Rights Act of 2008” or more informally as Marsy’s Law.  This act provides victims in the state of California with protection to ensure their rights to privacy and safety are guarded.

Included Rights and Protections

The list of rights includes freedom from intimidation or abuse, a right to privacy and dignity, reasonable protection from the alleged perpetrator and anyone acting on his or her behalf, consideration in the decision of bail or release of the defendant, the right of refusal for interviews or depositions with the defendant’s attorney, reasonable notice of the defendant’s arrest, reasonable notice of any and all public hearings, the right to be heard at any of the proceedings, a prompt conclusion to the case, the right to compose a victim impact statement for sentencing considerations, a copy of the pre-sentencing report, to receive information on the defendant’s incarceration and release, restitution, the return of property after its use as evidence, reasonable notice of parole hearings, for safety of the victim to be weighed in parole considerations, and to be notified of all the rights described in the Victim’s Bill of Rights Act.

Significance and Impact

Though it may seem repetitive, Marsy’s Law covers quite a lengthy list of rights and guarantees to victims of crime in California.  It details several areas of law that apply to the victim, including rights to be informed about hearings and sentencing, rights to have a voice in the process along the way, and the right to be notified if and when the perpetrator is released back into society.

These may not sound significant, but if you’ve been through a traumatic experience, it becomes a big deal to know that you will not be blindsided by your attacker at the grocery store.  It can also be a major part of the healing process to reclaim your voice and take part in the trial and sentencing by verbalizing the effects of the crime.

Origins and Background

Marsy’s Law takes its name from Marsy Nicholas, a senior at UC Santa Barbara was stalked and eventually murdered in 1983 by her former boyfriend, Kerry Conley.  Though he was convicted and sent to prison, her family faced a frustrating lack of legal protection.  As a result, her brother Henry Nicholas, an executive of Broadcom Corporation, was influential in the organization and sponsorship of Marsy’s Law.

 

 

The Latest Trends in Crime in Los Angeles and Southern California

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Over the past several years’ crime rates in the Los Angeles, Southern California area have been reported as declining. Yet recently it has been reported by various sources that after several years of decline in crime in the Los Angeles area, the crime rates are once again on the rise.

In the past several months the Los Angeles Police Department has publically addressed this issue in the news media. The Department has recently spoken up and reported on an increase in crime for the beginning of 2015 of approximately 12.7%.

However other sources report that the increase in violent crime is up as much as 20%. The Department has addressed what they believe to be the various causes of this recent uptick in crime. According to the Los Angeles Police Department some of the factors contributing to this current increase appear to be attributable to possible misclassification of crimes committed, an increase in the gang population and the violence connected thereto, a forever widening economic gap, increased homelessness, and declining social services. These combined factors create a hot bed for an increase in criminal activity.

In addition to the social and economic factors stated above, the Los Angeles Police Department is also siting Proposition 47 as a contributing factor to the increase in crime rates. Proposition 47 was recently on the ballot in California. The voters approved Proposition 47, setting into motion a change in the classification of crimes.

Proposition 47 is also known as the Safe Neighborhoods and Schools Act. The proposition recategorized some of the non-violent crimes as misdemeanors, rather than felonies.

However the police department claims that none of the intervention programs promised by the proposition, to support the change in crime categorization, have been implemented. Therefor the community is lacking in the support that is needed to combat the recent recategorization.

In an effort to rise to the challenge the Los Angeles Police Department is putting officers through new training procedures. As a result of the increasing crime trend officers have been required to participate in additional training to prepare them to handle situations that escalate or involve the mentally ill. In addition, the officers are being increasingly trained in using “predictive policing”, a tool that enables them to use their current skills with greater efficiency, including being problem oriented, using greater community policing strategies, stronger intelligence information and being increasingly aware and alert for “hot spots.” It is hoped that using all of these combined efforts of increasing the predictive capabilities of the officers and elevating their on street skills, will contribute to stemming the increase in crime and eventually reducing the uptick in criminal percentages.

L.A. DA’s office warns seniors: thieves posing as debt collectors

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The Los Angeles County District Attorney’s Office issues out a press release on how thieves, claiming they are from collection agencies, are targeting and defrauding senior citizens.

 

 

 

 

 

These thieves will make threats to the victims unless a payment is made, as well as sell the senior’s information for further fraud.

 

 

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