Drug Felony Possession Charge Reduced to Class C Misdemeanor
Felony drug possession charged prosecuted in Dallas, County got reduced to a Class C misdemeanor.
Shavon Randle’s Case: All You Need to Know About Relevant Conduct
Thirteen-year-old Shavon Randle was kidnapped from a Lancaster home on June 28 after a dispute over $150,000 in stolen drugs that she had nothing to do with. She was found dead four days later, shot in the head and torso, at a house in east Oak Cliff, Dallas. Five people were arrested on various charges connected to her disappearance.
“Multiple defendants are charged in the case and the office is preparing for trials beginning in the fall. These are 1st degree felonies for which punishment includes potential life sentences. This is still a very active and intense investigation,” the DA’s office said. The main suspect in Shavon Randle’s 2017 killing, Darius Fields, was never charged with her murder. However, the feds have other ways to hold him accountable.
It’s called relevant conduct. It’s a unique feature of federal sentencing law, and it can tack on many additional years to an existing sentence. Darius Fields was convicted on unrelated firearms offenses last year, and prosecutors plan to introduce evidence of his involvement in Shavon’s murder during his sentencing this April. This is when they will ask the judge to give him the maximum possible penalty under the law–25 years in prison.
Connected through relevant conduct, federal sentencing law allows defendants to be held accountable for cases not proven, but connected with reasonable doubt. By bringing in conduct that was not charged due to lacking evidence, but including it for current sentencing, is using relevant conduct to make a charge. In this case, the goal would be to increase the “points” towards Field’s sentencing guidelines, and ultimately, his prison time.
Determining Relevant Conduct
While the exact definition of relevant conduct is complicated, in drug cases, uncharged crimes are considered to be relevant conduct if they are:
- A conspiracy scenario or a crime committed with other people, all other crimes that are committed by those other people that furthered or related to the crime of conviction; and
- Whether or not the conviction is for a conspiracy, any additional crime that is “part of the same course of conduct or common scheme or plan as the offense of conviction.”
Relevant Conduct Put into Perspective
Courts nationwide have given broad interpretations to the phrase “course of conduct.”
Case example: Someone is arrested on a street corner after delivering a half gram of powder cocaine to an undercover officer. A snitch tells the police that the person has been selling cocaine on that corner for six months and has probably sold a total of a half kilogram of cocaine.
Unlike state sentencing, federal sentencing can use relevant conduct to further enhance a defendant’s charge. Because relevant conduct refers to the motivation behind the crime and not the crime itself, it allows a federal court to consider the intent behind the crime and make an appropriate charge, given the situation.
Theoretically, a skilled prosecuting attorney should be able to lessen the use of presenting relevant conduct against a defendant in a case. On the contrary, a criminal defense attorney can file a motion to suppress the evidence of relevant conduct, stating that the officer violated the defendant’s Fourth Amendment right: the protection against unjust search and seizure. However, if said defendant is convicted because of the remaining drugs, the uncharged crime–that was illegally siezed–can still be considered during sentencing.
Why it Matters
In the case of Shavon Randle’s murder and Darius Fields, The Dallas County district attorney’s office said, in a written statement, that it remains “focused on vigorously pursuing justice” in the case.
“Punishment for this charge [aggravated kidnapping] carries the same penalty range as murder, and holds these defendants responsible for their actions that led to her death. However, this is still an active and ongoing investigation and more charges could be filed.” Said Allenbaugh, the former sentencing commission lawyer. He also called relevant conduct “an end run around the constitution.”
“All you have to do is convince the judge,” he said in an interview with The Dallas News.
“Defendants don’t realize this when they go to trial or plead guilty,” Allenbaugh said.
He added that if the evidence against Fields is strong enough, the government should charge him and let a jury decide, rather than slip it in during sentencing. “You want to make sure you get the right guy,” he said.
Understandably, relevant conduct is highly controversial. Critics call it an “unconstitutional short-cut.” That could make sense, since government prosecutors can introduce evidence of a crime the defendant was never initially charged with. A judge alone decides if the defendant is guilty—typically, in one day—and based upon a prevalence of the evidence.
In Darius Field’s case, the results and penalties of presenting relevant conduct into the case of Shavon Randle’s murder will be determined this upcoming April.
Read The Fox News Story
Manufacturing and Selling Firearms Without a License
Generally
A person has to obtain a license as a federal firearms dealer if he/she is engaged in the business of selling firearms, see an experienced firearms attorney. Title 18 U.S. Code §921 contains various definitions of engaging the business of selling / being a dealer, engaging in the business of manufacturing firearms, and exceptions to being engaged in such a business. An experienced firearms attorney can clarify these laws for you.
Often, persons who casually make sales, or sell from their collections, become subject to licensing and federal criminal prosecution if they sell weapons, or “manufacture” weapons. “Manufacture” can include simply assembling legal weapons parts, which results in a completed weapon that an operable firearm.
The “gray area” is, or can be, where a person assembles parts (including receivers, uppers, etc.) into a completed weapon, but only does this on a limited basis. Another area that can be considered “manufacturing” weapons without a license, is when he/she is paid a fee to assemble the parts into a weapon but then returns the completed weapon to the person who paid for the assembly, rather than keeping the completed weapon to sell it himself/herself.
If enough weapons are sold where it appears that the person is doing more than enjoying a hobby, then he/she could be subject to prosecution for sales of weapons without a license (dealing without a license). The same can apply when the person is making more than casual, limited sales.
The same concept can apply to manufacturing weapons. That is, if enough weapons are created, or “manufactured” from weapon parts, then the person could be under investigation and prosecuted for manufacturing weapons without a license.
Again, the number of sales or assemblies may determine whether or not the person was engaged in the business of either sales or manufacturing.
Definitions of Dealer, Manufacturer, and Engaged in the Business
Note that a number of the definitions of Title 18 U.S. Code §921 are particularly significant for discussions and advocacy concerning whether a person is indeed a “dealer” within federal firearms law, or whether he/she is not a dealer requiring a firearms license, but rather a collector or hobbyist:
(3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
(10) The term “manufacturer” means any person engaged in the business of manufacturing firearms or ammunition for purposes of sale or distribution; and the term “licensed manufacturer” means any such person licensed under the provisions of this chapter.
(11) The term “dealer” means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term “licensed dealer” means any dealer who is licensed under the provisions of this chapter.
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(13) The term “collector” means any person who acquires, holds, or disposes of firearms as curios or relics, as the Attorney General shall by regulation define, and the term “licensed collector” means any such person licensed under the provisions of this chapter.
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(21) The term “engaged in the business” means–
(A) as applied to a manufacturer of firearms, a person who devotes time, attention, and labor to manufacturing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms manufactured;
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(C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;
(D) as applied to a dealer in firearms, as defined in section 921(a)(11)(B), a person who devotes time, attention, and labor to engaging in such activity as a regular course of trade or business with the principal objective of livelihood and profit, but such term shall not include a person who makes occasional repairs of firearms, or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms;
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(22) The term “with the principal objective of livelihood and profit” means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection: Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. For purposes of this paragraph, the term “terrorism” means activity, directed against United States persons, which…
Occasional Sales
It appears that “occasional sales” are not enough to require a federal dealer’s license. The Fifth Circuit concluded “…the Government must show a greater degree of activity than the occasional sale of a hobbyist.” (quoting U.S. v. Masters, 622 F.2d 83 (4th Cir. 1980). However, it need not prove that the defendant’s primary business was dealing in firearms or that he necessarily made a profit from dealing. United States v. Wilmoth, 636 F.2d 123, 125 (5th Cir. 1981)
In Wilmoth, the defendant’s sales where found to be beyond “occasional” in part because he sold approximately seven (7) guns within a one-month period. Also, and perhaps even more importantly, he had lots more guns available for sale, and he held them out as being for sale.
In another case, the Fifth Circuit again concluded “It is true that the government must prove both willingness to deal and more than an occasional sale in order to prove the status of the accused as one engaged in the business of dealing in firearms.” United States v. Berry, 644 F.2d 1034, 1037 (5th Cir. 1981)
Now turning to a more recent case, the Fifth Circuit observed “Individuals without licenses may make periodic sales of firearms from their personal collections, although they may not engage in the regular business of dealing firearms for profit.” United States v. Shipley, 546 Fed. Appx. 450, 452 (5th Cir. 2013)
Also in Shipley the Fifth Circuit (in analyzing the “engaging in business”), wrote:
To determine whether the defendant unlawfully engaged in the business of firearms dealing, as so defined, the jury ‘must examine the intent of the actor and all circumstances surrounding the acts alleged to constitute engaging in business.’ United States v. Tyson, 653 F.3d 192, 201 (3d Cir.2011) (citation omitted). The evidence at trial showed that Shipley did not have a license and that he nevertheless engaged in a regular course of dealing firearms for profit for a number of years, and that evidence was sufficient to support the jury’s verdict. Shipley’s primary argument for why this result should not follow is that he presented evidence at trial showing that, contrary to the government’s contentions and evidence, his firearms transactions actually caused him to suffer a net loss. The jury, however, was entitled to disbelieve that evidence. Furthermore, a conviction requires that the defendant had the ‘principal objective’ of making a profit, but it does not require that he succeeded in that endeavor.
United States v. Shipley, 546 Fed. Appx. 450, 454 (5th Cir. 2013)
The U.S. Supreme Court case decided in 1998, (Bryan v. U.S., 524 U.S. 184 (1998), concluded that a conviction for dealing in firearms without a federal license requires a showing of willful conduct on the part of the defendant. However, it also held that the term “willfully” in Title 18 U.S. Code §924(a)(1)(D) requires proof only that the defendant knew his conduct was unlawful, not that he also knew of the federal licensing requirement.
In Bryan, the trial judge refused to instruct the jury that he could be convicted only if he knew of the federal licensing requirement, instructing, instead, that a person acts “willfully” if he acts with the bad purpose to disobey or disregard the law, but that he need not be aware of the specific law (federal firearms law and licensing requirements) that his conduct may be violating.
Manufacture
The Fifth Circuit does not go into great detail about whether merely assembling parts is manufacturing. But a Fourth Circuit case (Broughman) addresses this. In that case, the court analyzed the word “manufacture” and wrote,
“We therefore conclude that manufacturing firearms under §923(a) entails assembling a firearm’s individual components so as to render the firearm ‘suitable for use.'” Broughman v. Carver, 624 F.3d 670 (4th Cir. 2010) Applying said meaning under the facts of Broughman, said court wrote:
The manner in which Broughman conducts his gun business; i.e., ‘build[ing] custom bolt action rifles’ by threading and chambering barrels to fit firearms actions, bluing the actions, and making and fitting stocks to the actions and barrels; undoubtedly places him within the statutory category of a firearms ‘manufacturer.
Your Status
The government has to prove that you had more activity than an occasional sale or more activity than a hobbyist to show that you were engaged in the business of dealing firearms. If so, then you would need a federal firearms license to sell (deal). The argument by the government will be that several sales in a relatively short period of time constitutes “selling,” and therefore you need a dealer’s license.
Although legally-obtained parts are used, if the end product is a firearm, then your status of your assembly work being considered “manufacture” is certainly a realistic probability. Consult a firearms attorney to discuss these potential issues.
Federal defense attorney John Teakell can advise you as to your hobby or business, and any potential investigation that comes from your activities.
Cell Phone Prosecutions – What to Know
Fraud Schemes Related to Cell Phones
Cell phone prosecutions are commonly prosecuted in federal court by the U.S. Attorney’s Office, meaning that there are charges for fraud related to cell phone sales, or charges for selling stolen cell phones. Fraud prosecutions are often based on allegations of misrepresentations about the age and model of the phones, or that the phones were refurbished. An experienced federal criminal lawyer can help with any cell phone case investigation or charges.
Federal charges for misrepresentations about large sales of cell phones, or for sales of stolen phones, are often charged as Conspiracy to Conspiracy to Commit Fraud, or Conspiracy to Transport Stolen Goods in Interstate Commerce. A conspiracy is basically an agreement to commit a crime, with at least one step taken to try make the conspiracy successful.
Charges
Conspiracy to commit fraud uses the misrepresentations made about the quality, model, life, and age of the cell phones being purchased/sold. The U.S. Attorney will charge of conspiracy to transport stolen goods in interstate commerce when defendants allegedly steal phones from a company warehouse or even a retail store. Usually, a stolen phone scheme includes stealing very large numbers of phones in order to ship them to customers who want new or good, reliable phones. People who steal phones on a wholesale basis do so to ship mass amounts of phones to buyers who often are overseas.
Sometimes the state prosecutor, or District Attorney, will charge persons for cell phone fraud or theft. For example, in Texas, District Attorneys have charged people with cell phone misrepresentations or theft, with the charge of Engaging in Organized Criminal Activity. This state charge, Engaging in Organized Criminal Activity, is the state’s version of a federal conspiracy charge.
Persons Involved in a Conspiracy
There are several types of persons who could be charged in a cell phone conspiracy, including solicitors, buyers, shippers, and persons who steal phones. A conspiracy is an agreement, and persons have to agree with the group plan, and make at least one act, in order to be guilty. The United States may prove the conspiracy by documents of transactions, surveillance or photographs, videos, evidence of contacts with buyers, recorded conversations, and testimony of cooperators.
Active Defense
Anyone who under investigation or who is charged should work to have evidence in his favor to either present to the federal prosecutor or present at trial. Contact former federal prosecutor and federal criminal lawyer John Teakell, who can defend you against any cell phone investigation or conspiracy charge against you.
Computer Crime Prosecutions for Intrusions and Malware
Federal Charges
The Computer Fraud Abuse Act lists the common computer crime charges Unauthorized Access of a Computer, and Exceeding Authorization to a Computer. These allegations basically include: (1) to obtain financial, credit or other sensitive information; (2) with intent to defraud; (3) to obtain something of value; or (4) to intentionally damage a computer.
An Indictment (formal charge) charges someone for exceeding the authority a person has for the computer or computer network. That is, even if a person was authorized to access information, he may be restricted from sensitive information or certain financial data. If a person does not have authorization to access certain information files, he could be prosecuted. This is true even though the person being investigated or prosecuted may have authorization to access the computer/network. A computer crime attorney who defends federal computer crimes can guide you through an investigation or case.
Fraud and Conspiracy
In addition to the offenses of Unauthorized Access to a Computer or Exceeding Access to a Computer, people can be prosecuted for Conspiracy to Commit Fraud. These prosecutions could allege Conspiracy to Commit Wire Fraud, or Conspiracy to Commit Bank Fraud if payments to or loans from a federally insured bank were involved.
Intrusion and Planting Malware
The federal fraud statute related to computers and “intrusions” is in Title 18 of the U.S. Code Section 1030. It reads that a person is guilty of an intrusion into a computer by planting “malware” or “spyware” in a computer network. An intrusion is an entrance into a computer or computer network without authorization, and the reasons can be several. Often, when people intrude into a computer network, they do so to obtain company or sensitive information from reports or emails. Also, people intrude into company computers or other persons’ computers to purposely damage the system, disable the computer system, or destroy files.
Intruders use malware to destroy information in a computer network, disrupt computer use, and disable a computer network. Intruders also plant spyware to access emails and updated communications.
Practical Aspects of Prosecution
The U.S. Attorney prosecutes people in federal unauthorized access to a computer when they access sensitive information, financial data, or confidential information. Usually, the person intruding into a computer network does so using a “spoofed” email address, so he does not reveal his identity. Spoofing is forging the email so that it appears that it came from someone or somewhere other than the forger. It is relatively easy to use another person’s IP or email address, making it appear that the action is from the legitimate addresses.
Federal agents investigating computer crimes have to approach them from the standpoint that the intruder is using a fake address or someone else’s address.
State Statute
A similar Texas state charge for unauthorized access to a computer, or exceeding one’s authorized access to a computer, is Breach of Computer Security from the Texas Penal Code.
What to Do If Charged with a Computer Crime
If your computer was seized as part of an investigation, or you are under investigation, contact an experienced federal defense attorney to represent you. If you are investigated or charged with computer access or computer intrusion, former federal prosecutor John Teakell can guide you through any computer crimes charges.
How a Securities and Exchange Commission Case Can Become a Criminal Investigation
SEC Cases Generally
The U.S. Securities and Exchange Commission (“SEC”) has the authority to investigate civil fraud and other related matters concerning “securities” as they relate to investors and investments schemes. The SEC is authorized to seek: injunctions and cease-and-desist orders; disgorgement (return of monies); and denial of privileges, such as licenses. Parallel investigations, that is, criminal investigations resulting from the information in SEC cases, often come from SEC actions. If you are involved in an SEC case or criminal investigation, contact SEC attorney John Teakell to guide you through an investigation.
Parallel Investigations
“Parallel investigation” means that two or more government agencies are investigating the same matter at the same time. The phrase “parallel investigation” often means that a civil or administrative agency, like the SEC is investigating, or has filed a civil lawsuit, against people or their companies, while a criminal investigation is taking place at the same time. Usually a criminal prosecutor starts a criminal investigation of the same companies or conduct after receiving information from another civil agency, especially the SEC.
A person who has an SEC case, and who then becomes the target of a federal criminal investigation, should be concerned that information obtained by the SEC could be used in the criminal case. A person under criminal investigation cannot always be compelled to provide information to the investigators, but a civil agency such as the SEC can obtain statements and other information that a criminal investigator may not be able to obtain.
The SEC may issue subpoenas to compel testimony and produce documents. However, in a situation of invoking the Fifth Amendment privilege against self-incrimination, the SEC does not have the authority to grant immunity from criminal prosecution.
SEC Is Authorized to Share Information with the Department of Justice
The SEC’s powers are restricted to civil suits, although the SEC can share information obtained in its investigation or case with criminal prosecution authorities. These usually are attorneys for the U.S. Attorney’s Office or the U.S. Department of Justice, and investigative agents for them, such as the Federal Bureau of Investigation, or agents of the I.R.S. – Criminal Investigation Division.
Criminal Prosecutions
It is common for federal prosecutors to adopt the work of the SEC, using it to make criminal charges. During an SEC case, there will be statements, subpoenaed documents and records, depositions, and other material that can be adopted by prosecutors to make their criminal case.
Securities fraud charges are prosecuted in federal court, and these offenses are based upon allegations of fraud, sales of securities without a license, and omitting pertinent material in the sale of securities, or insider trading.
Action When Under Criminal Investigation
A person under investigation can try to stay the civil, SEC case while the criminal investigation is on-going. A person under investigation can petition the court in the pending SEC case to basically stop action in the civil case, as it would potentially put that person in the position of having to make statements or produce documents that he would not do in a criminal case or investigation.
Alternatively, when a person under criminal investigation is presented with civil case discovery requests, that is, requests for admission, depositions, etc., he needs to assert his privilege against self-incrimination. That means he can claim “the Fifth Amendment” privilege, saying that an answer could be used against him in a criminal matter. Even if you have not been involved in any criminal activity, you can still assert the Fifth Amendment privilege if the civil case covers the same allegations as the criminal investigation or case.
Hire Experienced Counsel to Address a Parallel Criminal Investigation
Anyone under investigation needs an experienced federal criminal defense attorney to guide you through a parallel investigation. Former federal prosecutor John Teakell, who is also a former trial counsel for the SEC, can defend you in any criminal investigation or SEC case filed against you.
Passport Fraud Prosecutions
Passports and Passport Fraud
The term “passport fraud” is a phrase that is used to generally describe misrepresentations in applications for a passport or visa, as well as some misuse of the passport or visa. Violations of federal law for passport fraud and related charges often are:
- False Statement in Application and Use of a Passport – A person submits false information on a passport application for his own use or use by another. 18 U.S.C. §1542;
- Forgery of False Use of a Passport – A person forges, counterfeits, or alters a passport, or gives a forged, counterfeited, or altered passport to another person for his use. 18 U.S.C. §1543;
- Misuse of a Passport – A person uses a passport designed for another person or uses a passport in violation of the restrictions on it. 18 U.S.C. §1544;
- Fraud and Misuse of Visas, Permits, and Other Documents – Whoever forges, counterfeits, or alters an immigration document for the use of entry into the United States. 18 U.S.C. §1546.
Fraud, Misuse, Forgery, and False Statements
Often, the person who is applying for a passport makes a false statement to obtain it for travel. This can be the basis for a criminal charge of passport fraud. Also, obtaining a passport for another person or group of persons with false statements about the identities, location, or criminal history can result in federal criminal passport charges.
Committing passport fraud to obtain a passport is done to conceal a person’s true identity to avoid detection or to ensure passage to another country. A person would commit passport fraud to conceal an identity if he has a criminal history or current criminal charge. Another reason would be if he has a status within the government that creates a hold or restriction on the person and his travel.
Practicalities
When using a passport that is the traditional book-type, do not alter it anyway, including the information inside. Removing stamps that have been placed on the passport can be the basis for an investigation into altering a passport. Also, you could be detained and prevented from traveling. That is because these stamps are considered part of the official record of the passport.
Trafficking in Passports
People who illegally traffick passports do so in order to fraudulently create a passport for someone who needs to travel out of the country. Those who traffick in passports also do so for people who want different identities. People who create and traffick in passports do so for money.
A person who trafficks in passports can be charged with Misuse of a Passport, or Conspiracy if there are two or more persons involved. A person can be charged with a Conspiracy to Commit Mail Fraud if the U.S. postal system or a common carrier are involved. A conspiracy charge for passport trafficking could also be Conspiracy to Commit Wire Fraud if wire signals are used, such as emails, wire transfers of money, or other electronic device transmittal.
Related to Drug Trafficking or Other Criminal Activity
In certain cases, these false representations may be tied to illegal drug trafficking or other illegal smuggling of goods, or even to terrorists. In that case, a federal prosecutor would likely enhance the case to a greater punishment, due to the Alternate Imprisonment Maximum to facilitate drug trafficking or terrorism. 18 U.S.C. §1547
Investigations
The U.S. Department of State issues and administers passports, so agents from the Department of State conduct passport and visa investigations. Federal agents investigating criminal violations related to passports or visas work with the federal prosecutor (U.S. Attorney) to obtain formal charges.
What to Do If Detained or Investigated
If you are detained at any airport while traveling, or at a consulate as you trying to enter a country or re-enter the United States, contact former federal prosecutor John Teakell. Mr. Teakell can determine actions that you or your family can take to 1) have you released from detention; and 2) work to stop any formal charges against you for passport misuse, alteration, or fraud.
Conspiracy to Commit Fraud – How to React If Under Investigation
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. A fraud conspiracy is a common charge in federal prosecutions.
Traditionally the use of the conspiracy statute is much more common in federal court. This is 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.” This Texas charge is the State’s version of a federal fraud conspiracy.
How A Conspiracy Charge Works
By definition, a conspiracy is an agreement, but merely being present is not sufficient to find a conspiracy. This is true even if the persons merely 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. This evidence includes negotiations, documents, 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. That is, 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 conspirators. Other acts can be purchasing equipment, scheduling a meeting 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. This is the reason that a conspiracy charge is popular with prosecutors. A prosecutor can charge someone even if the person has very little involvement, or a one-act involvement.
Whether or Not the Conspiracy is Successful Does Not Matter
If two or more persons agree to commit a crime and attempt at least one overt act, they can be charged with conspiracy. Even if the act to go forward with the conspiracy plan fails, the persons could be still be prosecuted for conspiracy. This is 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 fraud conspiracy 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. It also can mean to obstruct a lawful governmental function by some type of misrepresentation or fraudulent act. This type of fraud conspiracy is often used for fraudulently using federal program monies, fraud involving a federal 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.
What to Do If You Are Charged With Tax Evasion
What is Tax Evasion?
“Tax evasion” as it is generally called, is prosecuted in federal court as a felony offense that is either actually evasion of the payment of federal taxes, or the failure to file a federal income tax return. Charges sought by the U.S. Attorney that are prosecuted in federal court are often: 1) Tax Evasion; 2) Filing a False Tax Return; 3) Failure to File a Tax Return; 4) Conspiracy to File False Tax Returns; and/or 5) Money Laundering.
Difference Between Tax Evasion and Owing Money
The government has to prove willful intent to evade taxes, and such a case is targeted and prosecuted not just because the Internal Revenue Service determines that a person owes more money in taxes than claimed. The evidence would have to prove that there is a large amount of income that the person did not report for tax purposes and/or there is a pattern of continued non-reporting a percentage of income that is more than small amounts.
Investigations
These investigations are time consuming and take months or years to complete. Tax evasion and related investigations are conducted by federal agents of the Internal Revenue Service’s Criminal Investigation Division. These cases are investigated and prosecuted by the United States Attorney’s Office, that is, the federal prosecutor’s office. The U.S. Department of Justice’s Tax Division may also be involved in the prosecution of some criminal tax cases.
What to Do If You Are Investigated for Tax Crimes
An experienced federal defense attorney who has defended many of the U.S. Attorney’s / Department of Justice’s tax prosecutions will be able to determine the government’s theory of prosecution. The experienced federal defense attorney can learn of the government’s evidence before you are formally charged. This is the preferred strategy, that is, to digest the government’s evidence against you so you can provide favorable evidence of which the government may not be aware. Providing evidence in your favor will show good faith to continue to keep formal charges off of you, while you are working to try to convince the federal prosecutor and agents that you should not be prosecuted.
Pro-Active Defense
You want to try to present evidence in your favor to the U.S. Attorney or the U.S. Department of Justice attorneys in order to try to prevent prosecution, and to lessen any charges. If the prosecution lessens charges but wants to proceed, your attorney can continue to try to have the investigation and case closed without criminal action against you. Contact former federal prosecutor John Teakell, who can determine the best approach with the government for your case.
Forfeiture of Property or Money
Tax evasion or tax fraud charges sometime contain forfeiture provisions, as do Indictments for other cases in federal court. A forfeiture provision provides that an order of forfeiture is granted if the defendant(s) are found guilty of the charges, thereby giving the U.S. Attorney’s Office or the U.S. Department of Justice the ability to seize and forfeit property that was purchased, or partially purchased, with illegally obtained monies. An experienced federal attorney can use this issue to help negotiate a favorable outcome.
What to Do If You Are Under Criminal Investigation
Target Status
A “target” of a criminal investigation is a person against whom the prosecutor and law enforcement are working to obtain formal charges, that is, an Indictment. It is a term that is used in both federal investigations and state investigations, although the term “target” is associated more with federal criminal investigations. If you are under criminal investigation, you should take action as described herein to protect yourself.
Need to Know Allegations Against You
If you learn that you are the target of an investigation, you need to learn all you can about the allegations of the wrongdoing, and the source of the allegations. This is done by having your attorney contact the prosecutor to speak with him. Generally, you can at least verify that an investigation is on-going, whether or not you are being targeted, and the focus of the investigation.
Defend / Push-Back
The reason you need to determine the allegation is so your attorney can develop a plan to discredit the allegations. You want to do this as much as possible to dissuade prosecution, prevent a Grand Jury Indictment (formal charges), learn of the charges that are coming, or to try to lessen any charges.
Statements / Interview
DO NOT MAKE A STATEMENT to the law enforcement about the subject area of investigation, whether you are in custody or not. There is no upside to it.
You can learn whether or not you are designated by law enforcement or the federal prosecutor as a target of their investigation by the following.
Interviews of persons who might have information about the areas of the investigation often announce the existence of the investigation. Often, these persons will call to advise that they were contacted by law enforcement.
Target letters are letters sent to a “target” of the investigation by federal prosecutors advising the person that he/she is a target, and furthermore, that he/she is invited to make a statement.
Eventually, if you do not hire counsel to speak to the prosecutor on your behalf, a federal agent will contact you with attempts to get a statement from you. This is usually an attempt to short-cut the investigation by hoping that you will make an admission of guilt.
Actions
You need to hire an experienced federal criminal defense attorney, who knows how to contact the U.S. Attorney’s Office to determine the evidence that exists. The process can often be a lengthy one, so you should not attempt to speak with the prosecutor or agents without experienced counsel. Contact former federal prosecutor John Teakell, who can guide you through the investigation and advise as to presentations of defense evidence, appearances at grand jury or in the federal prosecutor’s office, and case strategy.