Bank Theft, Embezzlement

Legal Brief

Bank Theft, Embezzlement

BANK THEFT AND EMBEZZLEMENT

By John Teakell

Attorney-at-Law

Dallas, Texas

Thefts and embezzlements from banks are often prosecuted by the U.S. Attorney’s Office in federal court, although the dollar amounts sometimes are lower than a federal criminal case might involve. This is especially true if the allegation concerns a bank teller or lower lever employee, who may not be able to access larger amounts of money during the ordinary course of employment. The opposite would be a bank officer who engaged in transactions or withdrawals from lines of credit without authorization when the loss amount may be a high-five figure amount (e.g., $90,000) or a six-figure amount (e.g. $500,000).

The federal stature governing this conduct, Title 18 U.S. Code §656 reads:

Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, depository institution holding company, national bank, insured bank, branch or agency of a foreign bank, or organization operating under section 25 or section 25(a) [1]of the Federal Reserve Act, or a receiver of a national bank, insured bank, branch, agency, or organization or any agent or employee of the receiver, or a Federal Reserve Agent, or an agent or employee of a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank, branch, agency, or organization or holding company or any moneys, funds, assets or securities intrusted to the custody or care of such bank, branch, agency, or organization, or holding company or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both; but if the amount embezzled, abstracted, purloined or misapplied does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

Prescription Fraud

Legal Brief

Prescription Fraud

Prescription Fraud Prosecutions

By: John Teakell

Attorney-at-Law

Dallas, TX

Charges in both State and Federal courts where a person fills a forged prescription, phony prescription, or chooses to change what they were prescribed.

I. Generally

“Prescription Fraud” as it is commonly known, is obtaining controlled substances (illegal drugs) in a fraudulent manner by the use of a doctor’s prescription. Prescription fraud cases can be prosecuted in state or federal court depending on the complexity of the underlying activities, yet most of these cases are prosecuted in state court as a charge of obtaining controlled substances by fraud or a similar charge.

More complex fraudulent prescription fraud cases, such as a continual scheme to obtain controlled substances, or large volumes in numbers of prescriptions used, could result in a conspiracy charge or fraud scheme charged in federal court. These federal cases are to be distinguished from large numbers or unnecessary prescriptions given by a physician, known as “pill mill” cases. A pill mill is the name given to a physician’s office or clinic wherein doctors and other health care workers are accused of providing prescriptions for pain medications where there is no medical necessity.

II. Typical Prescription Fraud

The more-common prescription fraud case involves an individual who obtains controlled substances without a legitimate prescription, or the individual obtains more controlled substances than his/her prescription allows.

Another common variation of these prescription fraud cases includes obtaining prescriptions that, by themselves, would be legitimate; however, the patient obtaining the prescriptions is seeing several or numerous doctors, obtaining numerous prescriptions for the same, or same type of, substance without telling all the other doctors that he/she is seeing numerous doctors at the same time. Thus, the patient obtains numerous prescriptions that are issued by a physician, and the patient can obtain a lot more substances to feed his/her addiction, to create a high, or to sell the excess controlled substances. Often, the substances here are pain medication.

III. Types of Fraudulent Prescriptions

  • Altered prescriptions, that is, legitimate prescriptions with altered (increased) amounts of the substance to obtain additional amounts of legitimately prescribed drugs.
  • Stolen prescription forms from physicians’ offices that are written for fictitious patients.
  • Prescriptions to the real individual with forged doctor’s names.
  • Legitimate prescription forms from a physician with a different callback number where a co-conspirator “verifies” the prescription.
  • Calling in own prescriptions with their telephone number for a callback confirmation.
  • Computer-generated prescriptions for fictitious physicians.

IV. Indictments

Indictments charging criminal cases of prescription fraud are commonly prosecuted in state court as referenced above, and more complex schemes can be prosecuted in federal court.

The federal cases are charged as a violation of Title 21 of the United States Code, and state prosecutions are accomplished by a charge of Obtaining Controlled Substances by Fraud, or a similar charge. In state court in Texas, the statutes used for this prescription fraud are found in the Texas Health and Safety Code, §489.129.

Securities Fraud

PROSECUTION OF CRIMINAL SECURITIES FRAUD OFFENSES IN FEDERAL COURT

By John Teakell
Attorney-at-Law
Dallas, Texas

I. Generally

“Securities fraud” and other criminal offenses involving securities are prosecuted in federal court as felony offenses, 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. When people hear the word “securities,” they often think of stock in a company. Stock would be considered a security, but the term “security” has a very broad definition in both state and federal statutes, so that investigations in either State court initiated by the State Securities Board, or an equivalent state agency, or by the U.S. Securities and Exchange Commission can cover incidents that involve shares of company stock, promissory notes, bonds, and investment contracts. Criminal investigations can result in Indictments as in any other criminal case.

These investigations can be lengthy, and they are document and financial transaction intense, and/or they focus on fraudulent sales by the targets of the investigations.

II. Charges and Indictments

Securities fraud and criminal securities offenses in federal cases are found in Title 15 of the United States Code, although many federal criminal offense statutes are listed in Title 18 of the U.S. Code. Charges in Indictments brought by the U.S. Attorney include: 1) Securities Fraud; 2) Misrepresentation or Omission of Material Facts in the Sale of Securities; 3) Sales of Securities Without a License; 4) Sales of Unregistered Securities; 5) Insider Trading; and/or 6) Money Laundering.

III. Investigations

Investigations focus to a large extent on financial documents, trading records, and statements and depositions of targets of the investigation. Often, targets of the investigation will have given statements or depositions to the U.S. Securities and Exchange Commission or the State Securities Board prior to a criminal investigation. Administrative subpoenas by the government agencies involved in administrative or civil actions may yield records or written communications from the targets of the investigation that is used in the criminal investigation.

IV. Illegal Acts Leading to Charges

The following is a list of allegations and activities that may be the basis for counts in an Indictment in a criminal securities case:

  • Misrepresentation of company’s financial status and/or stock values.
  • Misrepresentations in sales of stocks or other securities.
  • Stock manipulation schemes.
  • Insider trading (unauthorized information that allows a person to benefit from the purchase and/or sale of stock, stock options or other securities).
  • Investment contract schemes.
  • Prime bank note schemes.
  • “Pump and dump” schemes regarding penny stocks or low value stocks.
  • Sale of unregistered securities.
  • Sale of securities by an unlicensed broker

V. Results in Addition to Sentencing in Criminal Cases

In addition to sentencing in a criminal case regarding securities fraud or related securities charges, the following may occur in a related or parallel securities enforcement action by the U.S. Securities and Exchange Commission or the State Securities Board:

  • Temporary Restraining Orders and Asset Freezes
  • Permanent Injunctions Against Securities Fraud, Illegal Sales of Securities, or Other Similar Prohibitions
  • Disgorgement of ill-gotten gains
  • Civil Money Penalties

Extortion and Federal Threat Crimes

Legal Brief

Extortion and Federal Threat Crimes

THREATENING COMMUNICATIONS, EXTORTION, BLACKMAIL AND OTHER THREAT CRIMES IN FEDERAL COURT

By John Teakell Attorney-­‐at-­‐Law

Dallas, Texas

I. Generally Title 18 of the United State Code contains several federal crimes of extortion, communicating threats, and similar federal offenses, whether the communication is via “wire” or mail. Sections 871 through 880 of Title 18, U.S. Code, list these federal crimes: §871. Threats Against the President §872. Extortion by U.S. Officers or Employees §873. Blackmail §874. Kickbacks from Public Works Employees §875. Interstate Communications §876. Mailing Threatening Communications §877. Mailing Threats from Foreign Country §878. Threats Against Foreign Officials §879. Threats Against Former Presidents §880. Receiving Proceeds of Extortion

Generally, the crime of “blackmail” has become more known as “extortion.” Extortion is essentially threatening to do something, or disclose something, that will in some manner harm the potential victim of the threat. Often, the threat of the potential harm is done in attempts to obtain something of value, whether it is money or some non-­‐tangible benefit. It is a federal crime pursuant to the use of interstate or foreign communications (see Title 18, U.S. Code, §875, Interstate Communications), or the use of the mail (see Title 18, U.S. Code §876, Mailing Threatening Communications). A federal threat crime can also be prosecuted pursuant to the requirement that it involve a violation of federal law (see Title 18, U.S. Code, §873, Blackmail).

II. Commonly Used Charges

The most common extortion or extortionate threat prosecuted by a United States Attorney’s Office or by the U.S. Department of Justice is for Interstate Communications, which involves threats of harm (can be physical, economic, or other) that are carried out by the use of wire transmissions, such as emails, faxes, computer chats or messages, wires, or other interstate or foreign communications. Mailing threatening communications would have been considered a common method of communicating threats that violate federal criminal law several years ago, but with technological advances with computers and communications, more such threats are commonly communicated by an interstate transmission than by using the mail system.

A less-­‐commonly charged federal crime than threats by interstate communication, but probably more known by the public, is the federal offense of Threats Against the President. The U.S. Secret Service commonly investigates leads of persons who may appear to have made threats against the President of the United States, yet a small percentage are actually formally charged through the U.S. Attorney’s Office.

III. Threatened Harm

The threat has to be an actual threat, and the potential or threatened harm can be economic, but it does not have to be so. A threatened harm can be to reputation or to any information that would negatively affect a person or his/her business.

Title 18 U.S.C. §875, Interstate Communications, references a potential, or threatened: 1) kidnapping; 2) harm/injury to a person; 3) harm to the property of a person; or 4) harm to his reputation.

Title 18, U.S.C. §876, Mailing Threatening Communications, lists the same potential harms from a threat as the subject of prosecution: 1) kidnapping; 2) harm to a person; 3) harm to property; or 4) harm to reputation.

Note that Title 18, U.S.C. §873 contains the phrase “under a threat of informing, or as a consideration for not informing.” This is the classical blackmail/extortion situation, wherein a person would threaten to inform people or the public of a wrongdoing or an embarrassing matter, in order to obtain a payment for not disclosing such information. Such information could be the subject of a legitimate prosecution for criminal activity, yet the “blackmailer” or person making the extortionate threat, would still be guilty of committing the crime of extortion or blackmail (or making threatening communications, depending on how the prosecution charged the case).

IV. Extortionate Credit Transactions

Title 18 of the U.S. Code makes it illegal to make extortionate lending of credit, which is, in general terms, making loans with rates of interest in excess of 45%. These types of transactions are historically associated with organized crime figures and/or “loan sharking.”

Extortionate lending offenses are found at 18 U.S.C. §891, et seq., specifically at §§892 and 893.

V. Investigations

Investigations of threatening communications are often started by a complaining person, who claims to have been threated by email, text, mail, or some other manner. The Federal Bureau of Investigation, U.S. Postal Inspectors, U.S. Homeland Security and the U.S. Secret Service can investigate these complaints of threats or extortion. The U.S. Secret Service becomes aware of letters written to the President or other communications to the President or White House due to their monitoring for security reasons.

These federal investigations, like all other federal investigations, would be prosecuted by a United States Attorney’s Office in the district where the offense occurred, or it might be prosecuted by the U.S. Department of Justice. Some threats could be prosecuted in the District of Columbia, such as a threat against the President.

VI. Sentencing

Any person convicted in federal court of extortionate threats, blackmail, or threats against the President, is subject to the type of sentencing as in other federal cases. That is, such sentencings are guided by the U.S. Sentencing Guidelines, taking into consideration the recommendation punishment range from the calculations of the U.S. Sentencing Guidelines. These calculations depend on the base level of the particular guideline, plus the enhancements for factors that address the egregiousness of the incident(s). See the U.S. Sentencing Guidelines and U.S. Sentencing Guidelines Manual.

Counterfeit Goods

FEDERAL PROSECUTION OF COUNTERFEIT GOODS/PRODUCTS

By John Teakell
Law Office of John R. Teakell Dallas, TX

I. INTRODUCTION

When a person hears the word “counterfeit,” he/she usually thinks of counterfeit “money” or counterfeit “currency” or counterfeit “bills.” Although there are indeed federal prosecutions for counterfeit currency possessions and counterfeit currency trafficking, many other forms of counterfeiting have risen to affect the economy of the United States in recent years. Prosecutions of these cases is usually federal prosecutions, that allege violations of Title 18, U.S. Code, §2320, known as the Trademark Counterfeiting Act of 1984. The business of counterfeit goods and products is of course driven by the desire to make a profit by using a brand name of merchandise, while providing a “knock off” or artificial brand of merchandise that is inferior and/or less desirable than the popular brand.

Counterfeit products include expense luxury items to batteries and cigarettes. Other counterfeited goods and products sold in violation of the U.S. Code are pharmaceuticals, hair products, clothing, and a variety of other merchandise. Known prosecutions have included counterfeit guitars that were represented to be the original brand of choice of those persons seeking the popular guitar. Manufacturers, ironically, have developed a demand for such desirable products. For example, luxury items commonly counterfeited are purses and handbags. Such companies as Coach and Gucci, are imitated through their counterfeited products found in and out of stores and malls.

II. VIOLATIONS OF THE COUNTERFEITING STATUTE

The Trademark Counterfeiting Act of 1984, found in Title 18 of the United States Code, Section 320, titled as “Trafficking in Counterfeit Goods or Services, makes it illegal for any person to intentionally traffic in good or services, and to knowingly use a counterfeit trademark in doing so. Using a counterfeit trademark is usually achieved by an illegal/counterfeit label, or the packaging used for the counterfeit goods. The counterfeited trademark is a mark that is identical, or almost identical to, the trademark that is registered with the U.S. Patent and Trademark office.

III. OTHER FEDERAL STATUTES USED FOR COUNTERFEIT GOODS

Conspiracies or schemes to counterfeit items and traffic them can also be prosecuted under Title 18, U.S. Code, §371, Conspiracy/Conspiracy to Defraud the United States, or Money Laundering, Title 18 U.S. Code, §§1956 and 1957.

IV. TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES STATUTE

The statute commonly used in prosecutions in U.S. District Court is listed here as printed in 18 U.S. Code §2320.

(a) Offenses. — Whoever intentionally—

  1. (1) traffics in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,
  2. (2) traffics in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive,
  3. (3) traffics in goods or services knowing that such good or service is a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death, the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or to national security, or
  4. (4) traffics in a counterfeit drug, or attempts or conspires to violate any of paragraphs (1) through (4) shall be punished as provided in subsection (b).

(b) Penalties.

(1) In general.— Whoever commits an offense under subsection (a)—

  • (A) if an individual, shall be fined not more than $2,000,000 or imprisoned not more than 10 years, or both, and, if a person other than an individual, shall be fined not more than $5,000,000; and
  • (B) for a second or subsequent offense under subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned not more than 20 years, or both, and if other than an individual, shall be fined not more than $15,000,000.

(2) Serious bodily injury or death.—

  • (A) Serious bodily injury.— Whoever knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned for not more than 20 years, or both, and if other than an individual, shall be fined not more than $15,000,000.
  • (B) Death.— Whoever knowingly or recklessly causes or attempts to cause death from conduct in violation of subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned for any term of years or for life, or both, and if other than an individual, shall be fined not more than $15,000,000.

(3) Counterfeit military goods or services and counterfeit drugs.— Whoever commits an offense under subsection (a) involving a counterfeit military good or service or counterfeit drug—

  • (A) if an individual, shall be fined not more than $5,000,000, imprisoned not more than 20 years, or both, and if other than an individual, be fined not more than $15,000,000; and
  • (B) for a second or subsequent offense, if an individual, shall be fined not more than $15,000,000, imprisoned not more than 30 years, or both, and if other than an individual, shall be fined not more than $30,000,000.
  • (C) Forfeiture and Destruction of Property; Restitution.— Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.

(D) Defenses.— All defenses, affirmative defenses, and limitations on remedies that would be applicable in an action under the Lanham Act shall be applicable in a prosecution under this section. In a prosecution under this section, the defendant shall have the burden of proof, by a preponderance of the evidence, of any such affirmative defense.

(E) Presentence Report.—

(1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim.

(2) Persons permitted to submit victim impact statements shall include—

  • (a) producers and sellers of legitimate goods or services affected by conduct involved in the offense;
  • (b) holders of intellectual property rights in such goods or services; and
  • (c) the legal representatives of such producers, sellers, and holders.
  • (F) Definitions.— For the purposes of this section—

(1) the term “counterfeit mark” means—

  • (A) a spurious mark—
  • (i) that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature;
  • (ii) that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered;
  • (iii) that is applied to or used in connection with the goods or services for which the mark is registered with the United States Patent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office; and
  • (iv) the use of which is likely to cause confusion, to cause mistake, or to deceive; or

(B) a spurious designation that is identical with, or substantially indistinguishable from, a designation as to which the remedies of the Lanham Act are made available by reason of section 220506 of title 36; but such term does not include any mark or designation used in connection with goods or services, or a mark or designation applied to labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hang tags, documentation, or packaging of any type or nature used in connection with such goods or services, of which the manufacturer or producer was, at the time of the manufacture or production in question, authorized to use the mark or designation for the type of goods or services so manufactured or produced, by the holder of the right to use such mark or designation;

(2) the term “financial gain” includes the receipt, or expected receipt, of anything of value;

(3) the term “Lanham Act” means the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes”, approved July 5, 1946 (15 U.S.C. 1051 et seq.);

(4) the term “counterfeit military good or service” means a good or service that uses a counterfeit mark on or in connection with such good or service and that—

(A) is falsely identified or labeled as meeting military specifications, or

(B) is intended for use in a military or national security application;

(5) the term “traffic” means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of; and

(6) the term “counterfeit drug” means a drug, as defined by section 201 of the Federal Food, Drug, and Cosmetic Act, that uses a counterfeit mark on or in connection with the drug.

(G) Limitation on Cause of Action.— Nothing in this section shall entitle the United States to bring a criminal cause of action under this section for the repackaging of genuine goods or services not intended to deceive or confuse.

(H) Report to Congress.—

(1) Beginning with the first year after the date of enactment of this subsection, the Attorney General shall include in the report of the Attorney General to Congress on the business of the Department of Justice prepared pursuant to section 522 of title 28, an accounting, on a district by district basis, of the following with respect to all actions taken by the Department of Justice that involve trafficking in counterfeit labels for phonorecords, copies of computer programs or computer program documentation or packaging, copies of motion pictures or other audiovisual works (as defined in section 2318 of this title), criminal infringement of copyrights (as defined in section 2319 of this title), unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances (as defined in section 2319A of this title), or trafficking in goods or services bearing counterfeit marks (as defined in section 2320 of this title):

(a) The number of open investigations.

(b) The number of cases referred by the United States Customs Service.

(c) The number of cases referred by other agencies or sources.

(d) The number and outcome, including settlements, sentences, recoveries, and penalties,of all prosecutions brought under sections 2318, 2319, 2319A, and 2320 of title 18.

(a) The report under paragraph (1), with respect to criminal infringement of copyright, 5 shall include the following:

  • (i) The number of infringement cases in these categories: audiovisual (videos and films); audio (sound recordings); literary works (books and musical compositions); computer programs; video games; and, others.
  • (ii) The number of online infringement cases.
  • (iii) The number and dollar amounts of fines assessed in specific categories of dollar amounts. These categories shall be: no fines ordered; fines under $500; fines from $500 to $1,000; fines from $1,000 to $5,000; fines from $5,000 to $10,000; and fines over $10,000.
  • (iv) The total amount of restitution ordered in all copyright infringement cases.

(b) In this paragraph, the term “online infringement cases” as used in paragraph (2) means those cases where the infringer—

  • (i) advertised or publicized the infringing work on the Internet; or
  • (ii) made the infringing work available on the Internet for download, reproduction,performance, or distribution by other persons.

(c) The information required under subparagraph (A) shall be submitted in the report required in fiscal year 2005 and thereafter.

  • (i) Transshipment and Exportation.— No goods or services, the trafficking in of which is prohibited by this section, shall be transshipped through or exported from the United States. Any such transshipment or exportation shall be deemed a violation of section 42 of an Act to provide for the registration of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes, approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946” or the “Lanham Act”).

Counterfeit Currency Charges

Prosecution of Counterfeit Money Possession and Passing Counterfeit Monies

By John Teakell
Attorney-at-Law
Dallas, Texas

I. OVERVIEW

Prosecutions in federal district courts in the United States (U.S. District Courts) for violations of counterfeit currency are prosecuted by the United States Attorney’s Office, and usually are investigated by the federal investigative agency known as the United States Secret Service (“Secret Service” or “USSS”). These federal violations start when persons create or print counterfeit currency (money or cash) to imitate genuine currency authorized and printed by the U.S. Treasury Department. Some counterfeit currency printers have sophisticated operations that produce counterfeit currency bills that are difficult to distinguish from genuine United States currency. Others can produce counterfeit bills from home printers that are more readily distinguished from genuine currency.

Commonly, these charges include:

  • Possession of counterfeit currency (sometimes known as “funny money”);
  • Manufacture of counterfeit currency;
  • Passing counterfeit currency or sale of counterfeit currency;
  • Possessing counterfeit currency plates or electronic images for counterfeiting;
  • Conspiracy to manufacture, possess and pass counterfeit currency.

These federal violations, or “counterfeit cases” as these are sometimes called, are found in Title 18, United States Code, Sections 470, et seq. Currency is referred to as “obligations or securities of the United States” in these federal statutes.

II. COUNTERFEITING CHARGES OFTEN USED IN INDICTMENTS

A. Making, Altering or Counterfeiting Obligations or Securities of the United States

  • “Obligations or Securities of the United States”
  • Title 18, United States Code, Section 471
  • “Manufacturing” or “making” counterfeit currency is commonly charged under this statute, as the statute wording clearly sets forth the violation. It is sometimes plead in the Indictment as:
  • “…with intent to defraud, falsely made, forged, and counterfeited obligations of the United States…”

B. “Uttering Counterfeit Obligations or Securities”

Title 18, United States Code, Section 472

Possessions of counterfeit money and sales of counterfeit monies are usually prosecuted under this statute. This statute reads:

“Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined under this title or imprisoned not more than 20 years, or both.”

Weapons Charges

Criminal with KnifeFederal Firearm & Weapons Charges

Federal firearms laws provide severe penalties for improper firearms use or possession. For example, possession of firearms by convicted felons or drug users can provide punishments of up to ten years imprisonment.  In fact, many don’t know this but the use of a shotgun or assault weapon adds ten years to a violent crime. If an automatic weapon, silencer or destructive device is used, thirty years imprisonment is added to the underlying charges.

The recent changes to conceal carry permits and open carry laws have really made the legal restrictions and implications confusing. One thing is for sure, the penalties for carrying a firearm by a violent offender, drug trafficker, or felon are much more severe.
These violations are found in Title 18 U.S. Code §922, et seq. These are the “prohibited persons” listing in Title 18 U.S. Code regarding firearms laws/violations. The most common offenses are as follows, which include well-known offenses of possession of a firearm by a felon, trafficking in firearms without a license, and possession or use of a firearm during a drug offense.

  • A. Possession of a Firearm by a Convicted Felon
  • B. Trafficking in Firearms by Non-Registered Dealer
  • C. Possession of a Non-Registered Automated Firearm (machine gun)
  • D. Possession or Use of a Firearm in Relation to a Drug Trafficking Felony
  • E. Possession of Body Armor by Violent Felons
  • F. Possession of a Firearm by an Illegal Alien
  • G. Possession of a Firearm by a Drug User or Addict
  • H. Violations of Interstate Transportation of Firearms
  • I. Prohibited or Restricted Ammunition
  • J. Possession of Firearms in a Federal Facility
  • K. Possession of a Firearm by a Mentally Defective Person
  • L. Possession of a Firearm by a Person Subject to a Court Order for Threatening, Harassing, or Stalking an Intimate Partner
  • M. Possession of a Firearm by a Person Convicted of Domestic Violence
  • N. Manufacture, Importation, Sale or Possession of a Firearm Not Detectable by Airport Security Devices

State Firearms Charges

While Texas is considered a state with fairly loose gun laws with wide latitude for legal gun owners, it is still surprisingly easy to be charged with a crime.  The Texas authorities do not take these offenses lightly, and you could easily end up facing serious felony charges if you are accused of violating many Texas weapon laws. Texas state charges sometimes are similar to a few of the federal firearms charges, and the ones usually seen or used are:

A. Felon in Possession of a Firearm

B. Weapon in a Prohibited Place (including the secured area of an airport)

C. Unlawful Carrying of a Weapon

Weapons aren’t limited to just guns under the Texas Penal Code. Illegal possession, carry and use offenses also apply to everything from clubs to chemical sprays to knives.

If you are charged with illegal possession or a weapons charge, you need a felony criminal defense lawyer who will be able to assess the evidence and either fight the charges, such as by trying to have the weapon suppressed as the fruit of an illegal search, or negotiate a plea deal to a lesser charge. Contact John Teakell’s Law Firm today for immediate help.

Unauthorized Access

 

OVERVIEW OF CRIMINAL PROSECUTIONS FOR UNAUTHORIZED ACCESS TO A COMPUTER AND EXCEEDING AUTHORIZATION TO ACCESS A COMPUTER IN VIOLATION OF FEDERAL LAW

By John Teakell
Attorney-at-Law
Dallas, Texas

What is Computer Fraud and Abuse?

The Computer Fraud Abuse Act (CFAA) is codified as Title 18 U.S.C Section 1030(a), and it lists offenses for federally-prosecuted computer crimes, with the common charges being Unauthorized Access to a Computer and Exceeding Authorization to a Computer. The allegations of accessing a computer without authorization can contain different variations within the charges. These include: (1) with the intent to harm the United States or for the benefit of a foreign country; (2) to obtain protected financial or credit information; (3) with intent to defraud; (4) to intentionally damage a computer; and (5) accessing a computer that is exclusively for government use.

An Indictment (formal charge) can be brought against someone also for exceeding the authorization a person has been given for the subject computer or computer network. That is, even though a person was authorized to access information in the computer system, he/they may be restricted from accessing sensitive information or certain financial data, and thus, they were not given authorization to access that information or certain files, even though the person being investigated or prosecuted may have been given general authorization and a log-in and password to access the computer/computer system.

An Indictment with the allegation of exceeding one’s authorization can be a specific allegation based upon the facts of the particular case, and it can contain the variations of alleged intentions of the defendant as listed in the first paragraph above, from 18 U.S. Code §1030.

Computer Fraud Charges

An offense of Unauthorized Access to a Computer, or Exceeding Access to a Computer would naturally be charged as such pursuant to 18 U.S. Code, Section 1030, although in theory it could be prosecuted also as a Conspiracy to Commit Fraud, or Wire Fraud, also.

Practical Aspects of Prosecution

People are prosecuted in federal court by the U.S. Attorney’s Office for Unauthorized Access to a Computer, and for Exceeding Authorized Access to a Computer, when a person accesses sensitive information, financial data, confidential company information, etc., when they are not given the authority to obtain or use this information. Also, hackers into a computer network who obtain these types of information are also prosecuted under this federal statute.

Statutes for Computer Fraud Violations

Part of the statute, 18 U.S. Code, §1030, used to prosecute access to computer violations in federal court, are listed here:

(a) Whoever—

(1) having knowingly accessed a computer without authorization or exceeding authorized access, and by means of such conduct having obtained information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—

(A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);

(B) information from any department or agency of the United States; or

(C) information from any protected computer;

(3) intentionally, without authorization to access any nonpublic computer of a department or agency of the United States, accesses such a computer of that department or agency that is exclusively for the use of the Government of the United States or, in the case of a computer not exclusively for such use, is used by or for the Government of the United States and such conduct affects that use by or for the Government of the United States;

(4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period;

(5)

(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;

(B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or

(C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.

V. Similar State Statute

A similar Texas state charge for unauthorized access to a computer, or exceeding one’s authorized access to a computer, is found in Title 7, Chapter 33 of the Texas Penal Code, titled “Computer Crimes.” Specifically, the similar charge as the federal statutes is Breach of Computer Security, §33.02 of Title 7, Texas Penal Code. This statute reads:

(a) A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.

(b) An offense under Subsection (a) is a Class B misdemeanor, except that the offense is a state jail felony if:

(1) the defendant has been previously convicted two or more times of an offense under this chapter; or

(2) the computer, computer network, or computer system is owned by the government or a critical infrastructure facility.

(b-1) A person commits an offense if with the intent to defraud or harm another or alter, damage, or delete property, the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.

(b-2) An offense under Subsection (b-1) is:

(1) a state jail felony if the aggregate amount involved is less than $20,000;

(2) a felony of the third degree if the aggregate amount involved is $20,000 or more but less than $100,000;

(3) a felony of the second degree if:

(A) the aggregate amount involved is $100,000 or more but less than $200,000;

(B) the aggregate amount involved is any amount less than $200,000 and the computer, computer network, or computer system is owned by the government or a critical infrastructure facility; or

(C) the actor obtains the identifying information of another by accessing only one computer, computer network, or computer system; or

(4) a felony of the first degree if:

(A) the aggregate amount involved is $200,000 or more; or

(B) the actor obtains the identifying information of another by accessing more than one computer, computer network, or computer system.

(c) When benefits are obtained, a victim is defrauded or harmed, or property is altered, damaged, or deleted in violation of this section, whether or not in a single incident, the conduct may be considered as one offense and the value of the benefits obtained and of the losses incurred because of the fraud, harm, or alteration, damage, or deletion of property may be aggregated in determining the grade of the offense.

(d) A person who is subject to prosecution under this section and any other section of this code may be prosecuted under either or both sections.

(e) It is a defense to prosecution under this section that the person acted with the intent to facilitate a lawful seizure or search of, or lawful access to, a computer, computer network, or computer system for a legitimate law enforcement purpose

Transmitting a Malicious Code

 

TRANSMITTING MALICIOUS CODES AND HACKING COMPUTERS IN VIOLATION OF FEDERAL LAW

By John Teakell
Attorney-at-Law
Dallas, Texas

What is transmission of malicious code 0r hacking?

The Computer Fraud Abuse Act (CFAA) is codified as Title 18 U.S.C Section 1030(a), which includes several offenses for alleged computer crimes. These are: (1) unauthorized access of a computer to obtain national security information with the intent to harm the United States or for the benefit of a foreign country; (2) unauthorized access of a computer to obtain protected financial or credit information; (3) unauthorized access of a computer in use by the federal government; (4) unauthorized access of a protected computer with intent to defraud; (5) intentionally damaging a computer; (6) fraudulent trafficking in computer passwords and other information used to gain access to a protected computer; and (7) threatening a computer with the intent of extorting money or something of value.

A case of transmitting a malicious code to cause damage to a computer is prosecuted in federal court as a felony offense. Like all criminal cases, the United States has to prove knowing/willful intent to violate the law. It is a form of “hacking” into a computer in order to cause damage or to obtain information without authorization to do so.

These investigations can be time-consuming and they will focus on the activities shown on a server or computer network, often for a company or firm that is victimized. These cases may involve remote access to a system by a person who does or attempts to transmit a code that causes damage to a computer or computers. These cases can be investigated by a variety of agencies, and they prosecuted by the United States Attorney’s Office, the federal prosecutor’s office.

Charges for hacking

An offense of transmitting a malicious code, or submitting a virus or code to damage a computer system, could be prosecuted in federal court as Wire Fraud, 18 U.S. Code, Section 1343. It likely would be prosecuted as a violation of the CFAA, found at Title 18, U.S.C. Section 1030(a)(5)(A).

Investigations

Investigations will have documents and other evidence that includes computer logs, emails, work orders, password access, internal security measures, and modifications to computers.

Sentencing

A person convicted of transmitting a malicious code, or other computer crime charges in federal courts, will be subject to the U.S. Sentencing Guidelines, as is case for any federal prosecution. These sentencings are affected by the U.S. Sentencing Guidelines, which yields a recommended imprisonment range that the U.S. District Judge can follow or reject. If the judge wants to vary or depart from the recommended sentencing range of imprisonment, he/she can do so with an articulated reason for not sentencing within the recommended range of punishment.

 

Conspiracy To Commit Fraud

Conspiracy To Commit Fraud

A Frequent Charge Used In Federal White­‐Collar Cases

John Teakell
Law Office Of John R. Teakell
DALLAS, TX

I. Introduction

A conspiracy is defined as 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. The use of the conspiracy charge is much more common in federal court, as a lesser participant in a fraud scheme can be held criminally liable if there is less direct evidence of his/her involvement.

II. Federal Conspiracy For Fraud

The federal statute conspiracy statute specifically alleging fraud, that is, material misrepresentations of fact, is found in Title 18, specifically 18 U.S. Code §1349, Conspiracy to Commit Fraud. This statute provides three different underlying federal offenses as the object of the conspiracy. These underlying offenses/allegations in §1349 are:

  • 1) Bank Fraud, 18 U.S. Code §1344;
  • 2) Mail Fraud, 18 U.S. Code §1341; and
  • 3) Wire Fraud, 18 U.S. Code §1343.

Their respective statue of limitations is dependent upon the underlying fraud allegation statute, that is, these fraud states listed here. Bank Fraud has a statute of ten (10) years, which would then increase the statute of limitations under §1349 to ten (10) years, while Mail Fraud and Wire Fraud conspiracies alleged under §1349 are five (5) years for statute of limitations, because Mail Fraud and Wire Fraud have the five (5) years as a statute of limitations.

III. Traditional Conspiracy Charge

The Conspiracy practice area listed in this website lists the “traditional” or original conspiracy, charge used for drug trafficking cases and a variety of federal cases. It is found at Title 18, U.S. Code §371, and it can be used for all types of crimes where the prosecutor believes that there is evidence of a conspiracy.