teakelllawcom – Page 10 – Law Office of John R. Teakell

What is your unique experience that sets your law firm apart from other Texas criminal defense?

teakelllawcom on July 25, 2019

SHOULD I DO A PROFFER SESSION?

teakelllawcom on July 11, 2019

Federal Investigation – Proffer

“Proffer” is information given by a target/defendant to assist prosecutions or to show the target/defendant’s limited involvement. In federal criminal investigations, “proffers” are sometimes made in order to try to convince the U.S. Attorney not to prosecute. If a person is a target of an investigation, or has been charged, then a proffer might be advantageous. Proffers are also made to minimize the client’s exposure by providing information that shows lesser involvement in criminal activity. Proffers are given pursuant an agreement with the U.S. Attorney for client immunity while in the proffer session. The proffer session allows the client to “open up” and give statements that the attorney would not normally allow.

Proffer Agreement

The proffer agreement is between the U.S. Attorney and the client, represented by his/her attorney. The U.S. Attorney agrees that the answers given from their questions are considered part of plea negotiations. If these are considered plea negotiations, then the substance of the session cannot be revealed beyond the parties. So, the incentive for the government is to obtain information from the client, such as details of transactions. The incentive for the client is to speak without fear of theinformation being used against him/her. The client agrees to truthfully answer all questions asked in the proffer session.

Immunity

Although federal prosecutors do not normally give immunity to prosecution, a proffer agreement gives limited immunity. The immunity from a proffer agreement is for the subject questions and answers during the proffer session. Again, proffer agreement gives both parties incentives to participate in the proffer session. The client’s proffer may contain information that the prosecution may not be able to obtain otherwise.

Upside to a Proffer

The possible upside to giving a proffer is the possibility of convincing the U.S. Attorney to not charge the client. Alternatively, an upside could be to convince the prosecution that the client’s involvement is less than the prosecution believes.

Potential Downsides

A proffer has basically two (2) potential downsides.

The client is “locked in” to his/her answers given to questions in the proffer session. This may not present any problem, presuming the client will tell the truth. Nonetheless, the client may later recall information that he/she left out when answering questions. Note that if a client proffers then later testifies inconsistently, an agent can state client’s answers from the proffer session.
Although client’s answers cannot be used against the client, the prosecution can use answers to independently develop other evidence. So, you potentially could give the prosecution ammunition against your client, or reveal your trial evidence.

Decision as to Whether to Proffer

The decision to proffer should be made by weighing factors in the investigation. That is, the amount of evidence against the client versus the possible outcome you could achieve by answering questions. If you believe you have a good chance to dissuade prosecution by proffering, or to reduce criminal exposure, then proceed. Never provide statements to investigators or prosecutors in a federal investigation or case without a proffer agreement.

Action in an Investigation

If you are under investigation or have been charged in a federal case, call federal defense attorney John Teakell. Mr. Teakell will evaluate the evidence against you and guide you through a possible proffer, as well as your defense.

CONSPIRACY TO COMMIT FRAUD – WHAT IS IT AND HOW TO REACT IF UNDER INVESTIGATION

teakelllawcom on July 10, 2019

Conspiracy to Commit Fraud

A conspiracy is basically an agreement to commit a crime, with at least one act or step taken to try to commit the crime. The more formal definition is: an agreement between two or more persons to commit an illegal act, with at least one conspirator attempting to commit an overt act that would further the object of conspiracy.

Traditionally the use of the conspiracy statute is much more common in federal court, mostly due to the fact that federal prosecutions are more complex and involve many defendants. Some state statutes provide state prosecutors with a conspiracy-type charge, and in Texas this charge is “Engaging in Organized Criminal Activity.”

How A Conspiracy Charge Works

By definition, a conspiracy is an agreement, but merely being present is not sufficient to find a conspiracy, even if the persons just present know each other and have criminal records. A persons involved have to agree with the other co-conspirator(s), instead of just having knowledge of the conspirators’ plan or intention. There does not have to be any formality in creating a conspiracy, nor does a prosecutor have to prove that all conspirators formally agreed. The proof usually comes in the form of evidence that shows the persons’ planning and/or involvement.

The government may prove a conspiracy by words or active evidence, such as negotiations, documents of transactions, appearances at transactions, responsibility for collecting monies, photographs of the conspirators meeting, recorded conversations, etc.

For a plan to be a “conspiracy,” there has to be at least one “overt act” that is attempted. In other words, at least one person in the conspiracy has to try to complete an act that would further the conspiracy. One such act could be making plans with other conspirators, purchasing necessary equipment for the job, scheduling a meeting with others to complete an illegal act, making a financial transaction, etc.

If evidence is present that persons formed a conspiracy, then prosecutors can charge all “conspirators” involved, even if some persons have very little involvement, or a one-act involvement.

Whether or Not the Conspiracy is Successful Does Not Matter

If a prosecutor can prove that two or more persons agree to commit a crime, and they attempt at least one overt act, then these people can be charged with the crime of conspiracy. Even if the step, or overt act, taken to go forward with the conspiracy plan fails, the persons could be prosecuted for conspiracy because a conspiracy case
does not depend on whether or not the persons actually complete the intended result.

Types of Fraud

The federal code that contains most federal criminal offenses, Title 18, lists Attempts and Conspiracy at Section 1349. That section reads that any person who conspires to commit any federal offense is guilty. This means that the government can charge a person for conspiring to commit another offense, such as mail fraud. The charges brought by the federal prosecutor, the U.S. Attorney, for conspiracy to commit fraud are most usually a conspiracy to commit bank fraud, mail fraud, wire fraud, securities fraud, or health care fraud.

Sometimes you hear about a person who may have committed insurance fraud, or another supposed fraud. Federal charges in those instances are usually fit into one of the statutes listed here, that is, mail fraud, bank fraud, or wire fraud.

The other type of federal conspiracy to commit fraud is Conspiracy to Defraud the United States. To conspire to defraud the United States usually means to cheat the U.S. government out of property or money, and it also can mean to obstruct a lawful governmental function by some type of misrepresentation or fraudulent act. This type of charge is often used for fraudulently using federal program monies, fraud involving a federally insured bank, or fraud related to federal land or other property.

Active Defense

A person under investigation needs to present favorable evidence to the U.S. Attorney in order to try to prevent prosecution or to question the government’s evidence. Contact former federal prosecutor John Teakell, who can defend you against any fraud investigation or charge brought against you.

FELON IN POSSESSION OF FIREARM PROSECUTIONS

teakelllawcom on June 26, 2019

Generally

“Felon in Possession of a Firearm” is very often used when someone with a felony conviction simply possesses a firearm. It is regularly referred to for federal prosecution when police find a handgun or rifle near a person arrested or detained. There often is not a federal investigation underway that leads to a Felon in Possession of a Firearm charge. This charge can be referred to federally when the detained person appears to be in possession of the weapon.

One key requirement for prosecution is that the person has a felony conviction. This means that the person had a conviction of record for a felony case when he possessed the firearm. The felony can be any type of felony crime – drugs, violence, fraud, computer crimes, or any other felony. The felony conviction can be from either federal court or state court. The person convicted of a felony charge is known as a “felon.”

The other key requirement for this charge is possession and not ownership. That is, a person with a felony conviction can be prosecuted for simply possessing a firearm, not owning one. So, a person who borrows a firearm or has one in his possession for another reason can be prosecuted.

Firearm

A “firearm” is what we commonly call a “gun” or a “weapon.” It can be a handgun or rifle, and it must be capable of expelling a projectile (bullet) when “fired.” The firearm must be considered in operable condition when the felon possesses it in order to support a charge.

Many Are Prosecuted in Federal Court

Possessions of firearms are commonly referred for federal prosecution, even when there had not been a federal investigation. This is because these cases are relatively easy to investigate, and they are not factually complex. Also, cases overall in federal court can produce harsher sentences due to the U.S. Sentencing Guidelines. The U.S. Sentencing Guidelines is a point system that recommended a range of imprisonment for federal convictions. “Felon in possession” cases usually carry lower sentences than most federal cases. Nonetheless, like just about all federal prosecutions, the Sentencing Guidelines recommend some amount of prison time. Occasionally, a federal investigation will result in a felon in possession case, submitted as one of the various charges.

ATF Investigates Local Arrests

The Bureau of Alcohol, Tobacco, and Firearms (“BATF” or “ATF”) regularly identifies persons arrested with a weapon. ATF agents do this to determine if the arrested person is a felon. If so, the ATF can make a federal case by referring the arrest to the U.S. Attorney for federal prosecution. Although ATF agents refer to these as federal cases, local police can also refer felon in possession cases for federal prosecution.

Felony Convictions From Years Ago Can Be Used

Any conviction, even one many years old, can be used as the basis for a felon in possession charge.

Interstate Nexus from the Firearm

The U.S. Supreme Court has affirmed that the subject firearm has to have traveled in interstate commerce for federal cases. Interstate travel does not have to occur at the same time of the charge. The firearm has to have moved in interstate commerce at some remote time.

Gray Areas

Whether the person possessed the firearm or intended to possess it, often depends on the circumstances. A question may exist about possession if a weapon is found in someone else’s car in which he is riding. Another such question comes from the
subject person being in another person’s residence where there are firearms. Another example of questionable intent is when the subject person demonstrates that he did not know the firearm was near.

A felon can be near a firearm and not know it, or not have the intent to possess the firearm. The prosecution has to prove beyond a reasonable doubt that the subject person had the intent to possess the firearm.

State Cases for Firearm Possession After Felony Conviction

States have their own firearm laws, including a version of Felon in Possession of a Firearm. Texas law is similar to federal law that prohibits a person convicted of a felony from possessing a firearm. The Texas state law is titled “Unlawful Possession of a Firearm.” This law makes it unlawful for possession of a firearm within five years of release from custody or supervision.

Contact Attorney John Teakell

If you have been arrested, or if you are under investigation for firearm charges, contact former federal prosecutor John Teakell. Mr. Teakell will use his experience to defend against firearm charges or any criminal case.

Federal Drug Trafficking Resulting in Serious Bodily Injury or Death

teakelllawcom on June 19, 2019

Federal Prosecutions

Much of the drug trafficking in the United States consists of methamphetamine, cocaine, marijuana, and heroin. Federal prosecution for trafficking of illegal drugs also includes synthetic drugs. Large drug trafficking cases are prosecuted as federal cases by the U.S. Attorney’s Office. Most drug cases prosecuted in federal court are
charged as conspiracy, distribution of a controlled substance, possession of a drug with intent to distribute, and importation of a controlled substance. There are enhanced penalties if previous convictions exist, and if bodily injury results or if death results.

Conspiracy

Conspiracy is a charge that you expect to find in a federal drug trafficking Indictment. This charge gives federal prosecutors the ability to include other persons of a lesser role. A lesser participant can still be charged with a serious charge that alleges the trafficking of illegal drugs.

A conspiracy is an agreement to do an illegal act that must contain these three elements:

1) Two or more people agree to participate in criminal activity (transporting and selling drugs for a profit, making deliveries of the product, storing the product, and/or making financial transactions with drug proceeds).

2) One or more conspirators attempt to carry out the purpose and goal of the conspiracy.

3) Even if the conspiracy plan fails, the conspirators can be prosecuted regardless.

Who Can Be Named as a Conspirator?

A person can be labeled by investigators as being part of a “DTO,” meaning a drug trafficking organization. This is true even if he is a marketer, or a person who provides storage space for the product, or a person who provides financial assistance. Those who are not “hands-on” can be included in a conspiracy charge, if they participate in these realistic situations. That is, a person who does online marketing, website hosting, or Internet optimization can conceivably be prosecuted. An example is if a person markets a group’s “spice,” which is synthetic marijuana sprayed with chemicals for enhancement. A marketer may even be told that the product is safe and legal. Another example is a person managing storage space for a company claiming the need for products to be loaded and unloaded. The person who arranges for storage and rentals could be charged with conspiracy. This is true even if he/she is not aware that products are illegal substances. This is where the government has to prove the person’s criminal intent of his/her actions.

Resulting in Serious Bodily Injury or Death

The added allegation of “causing serious bodily injury or death” is usually based on a customer’s use of drugs sold. Whether heroin, fentanyl, “spice,” or some other drug, a person’s injury or death will increase penalties for trafficking.

Cause of Death

If the prosecution can prove that the injury or death was from the drugs sold, then the increased penalties apply. If the drugs contributed to the injury or death, then persons involved could be convicted with increased penalties.

Participation

In determining whether a participating person is guilty, a person can be responsible for the acts of the co-conspirators. That is why it is important to show the prosecutor that you were not acting with criminal intent. That is, you either did not know what the product contained, or you were told that it is legal.

Synthetic Marijuana and Spice Prosecutions

Synthetic cannabinoids are also called synthetic marijuana. Often synthetic marijuana is sprayed or laced with various chemicals to increase the psychoactive characteristics of the drug. This results in product often known as “spice” or “K2.” It also can be an herbal blend or similar, that is sprayed with chemicals to give a “high.”In addition to psychoactive results, these synthetics may cause other symptoms.These include:

increased blood pressure
Increased heart rate
hallucinations

The unknown chemicals in and on the synthetics can harm a person, or even contribute to death. Persons who were involved in the chain of distribution of the synthetics can be prosecuted for conspiracy to traffick drugs. In this type of case, the persons involved are alleged to have caused serious bodily injury or death.

Increased Penalties

When serious bodily injury or death occurs from the use of illegal drugs that were trafficked, then penalties increase. Under the drug trafficking statutes, the penalties significantly increase for serious bodily injury or death.

Title 21 of the U.S. Code contains the federal laws against drug trafficking. Generally, the larger the quantity of drugs involved, the higher the penalties. When injury or death results from the use of a drug sold, then those penalties are double or more.

When penalties for drug quantity levels are 10 years to life, then the maximum penalty becomes 20 years to life. Title 21 U.S. Code, Section 841 reads that 10 years – life increases to 20 years – life for death or serious bodily injury. For drug trafficking penalties of five (5) to forty (40) years, injury or death increases the range to 20 years – life.

Action

If you are under investigation for trafficking or any other federal case, contact former federal prosecutor John Teakell. Mr. Teakell can advise you about your investigation and navigate the federal criminal process. Mr. Teakell will submit information to the prosecution and form the strategy for your defense.

Identity Theft and Identification Fraud Charges in Federal Court

teakelllawcom on May 4, 2019

What are Identify Theft and Identity Fraud?

Identity theft and identity fraud are crimes in which a person uses another’s personal information for economic gain or for taking on the identity of another. These activities necessarily involve fraud, deception, false statements, and/or misrepresentations. This is because the perpetrator steals another’s identifying information, uses stolen identities, or copies someone’s information without consent to do so.

Common examples of identity theft and identity fraud include the use of someone else’s information for identity or credit. Common ways to use someone’s identity are from credit cards, Social Security numbers, account information, and obtaining credit.

Identification Fraud Charges

Identity fraud is referred to in the federal charges as “identification fraud.” This is fraud and related activity with identification documents, authentication features, and credit information.

Here are the prohibited acts in this federal identification fraud charge statute:

Using an identification document or a false identification document (18 U.S.C. § 1028(a)(1));
Transferring an identification document or a false identification document (18 U.S.C. § 1028(a)(2));
Possessing with intent to use unlawfully five or more identification documents or false identification documents (18 U.S.C. § 1028(a)(3));
Possessing with intent to transfer unlawfully five or more identification documents or false identification documents (18 U.S.C. § 1028(a)(3));
Possessing an identification document or a false identification document with the intent to defraud the United States (18 U.S.C. § 1028(a)(4));
Possessing a stolen identification document that is issued by the United States (18 U.S.C. § 1028(a)(6));
Possessing an identification document that appears to be an identification document of the United States, which was fraudulently produced (18 U.S.C. § 1028(a)(6));
Producing, transferring, or possessing a false ID document-making implement (18 U.S.C. § 1028(a)(5));
Transfers, possesses, or uses the identification of another (18 U.S.C. § 1028(a)(7));
Traffics in authentication features for use in false ID documents (18 U.S.C. § 1028(a)(8)).

In summary, you can be charged for possessing, using, or transferring identification documents, or using a false identity document machine.

Identity theft or identification fraud can result in other charges, such as mail fraud, wire fraud, bank fraud, or credit card fraud.

Aggrivated Identity Theft

Title 18 U.S. Code, Section 1028A is the “aggravated” identity theft statute that is used to charge persons for using or transferring the specific identity information. It reads:

Whoever knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

The two (2) years sentence in federal court is in addition to any U.S. Sentencing Guidelines sentence for other charges in the Indictment. There is no parole in federal court. For example, if an Indictment alleges conspiracy, wire fraud, and aggravated identity theft, then any Guidelines sentence from a conviction of conspiracy and wire fraud, will be determined. Then, the Aggravated Identity Theft conviction will add an additional two years to the total imprisonment sentence.

If You Are Under Investigation

Before you consent to interviews with law enforcement, and before you consent to a search, know your rights. Contact an experienced attorney.

If you learn that you are under investigation for identity theft or identification fraud, contact former federal prosecutor John Teakell. Mr. Teakell will lead you through the decisions about whether to speak to investigators or prosecutors. He will help you gather information for prosecutors and investigators to try to stop formal charges. Mr. Teakell will assess your investigation and case in all aspects of defending it.

Health Care Fraud Prosecutions — Kickback Schemes

teakelllawcom on April 18, 2019

Health Care Fraud Cases

There are several fraud activities that are the basis for federal government investigations and prosecutions. Common prosecutions are for overbilling, upcoding, unnecessary procedures, procedures not performed, and prescribing treatments that are not “medically necessary.” Federal prosecutors also often charge physicians, their staff, and other medical professionals and employees with kickback schemes. These schemes are essentially bribes to medical professionals who are willing to refer the briber’s product to patients.

Various health care professionals are targets of investigation for health care fraud activities, including kickback schemes. They include doctors, chiropractors, nurse practitioners, nurses, medical staff, hospital administrators, pharmacists, and marketing persons.

“Kickback” Schemes and Conspiracies

What is a Kickback?

A “kickback” is a payment in exchange for receiving an award, contract, or something of value due to corrupt influences. The contract or award is from the person in a position to manipulate giving the contract or thing of value to the person who made the payment. The word “kickback” means that the person who receives the thing of value “kicks back” money or a portion of the earnings from the contract or other item of value. It is essentially a bribe to pay the person in authority to use his position. The person in authority ensures that the person paying the kickback will receive the contract or other thing of value.

Common examples of projects or contracts in which kickback schemes are used include contracts for construction projects, commissary / food contracts, maintenance contracts, and contracts for services, and medical products.

Payments and Things of Value

Payments as kickbacks, that is, the bribe to obtain a contract or award, is sometimes made in cash. Kickback cash payments are hidden from all other persons besides the participants. Often, payments are large, so they are made by checks or wire transfers and disguised as legitimate business payments. These type of payments could be in the form of:

Overpaying for assets;
Payments for bogus services or equipment;
Payments for “fees” or “commissions;”
Unnecessary leases;
Travel and entertainment expenses;
Payments to, or awarding contracts to, relatives of the person making the payment;
Undisclosed gifts.

Influence

The person in authority can rig the bidding process to ensure that his person or company will receive the contract. The person with authority can also leak information to assist the company that he wants to receive the contract. The person with authority can also change the bidding process to favor the company he wants to receive the contract.

These are examples of corruption in regard to carrying out a kickback scheme by receiving bribes to exert the influence needed.

How Do Kickbacks Come into Health Care?

The federal Anti-Kickback statute prohibits persons from paying or receiving things of value for referring patients, or prescribing certain drugs or products, for which they will be paid.

For example, a drug company or medical products company, or its marketing company, cannot pay doctors or other medical professionals. These payments would be to have patients, clinics, or hospitals use their product over others on the market.

Payments in kickback schemes are sometimes in cash, but also are often in the form of receiving referrals of patients to doctors from drug companies or marketing companies. The referrals of patients, of course, provides sources of business for the doctors, and is done so as an exchange for doctors to continue pushing the bribing company’s product on the patients.

What to Do If You Are a Target of the Investigation

Hire an experienced federal defense attorney who has been a federal prosecutor, and who is familiar the U.S. Attorney’s / Department of Justice’s health care prosecutions.

An experienced federal defense attorney can learn of the evidence that the U.S. Attorney and agents believe they have against you. An attorney may be able to delay formal charges by meeting with prosecutors and making presentations of potential evidence.

Pro-Active

You want to present your favorable evidence to the prosecutor, with a goal of avoiding formal charges. If your investigation is moving toward an Indictment (formal charges) regardless, you will still need to complete your own investigation. An experienced federal defense attorney can help you with these decisions.

Contact Attorney John Teakell

Mr. Teakell was a federal prosecutor for many years and has years of experience defending federal investigations and federal Indictments. This includes health care fraud, and if you are under investigation, call for help.

TAX PREPARATION SERVICE PROSECUTIONS IN FEDERAL COURT

teakelllawcom on March 19, 2019

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