The Texas “Value Ladder” for Punishment

November 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Many criminal offenses in Texas are based on a monetary amount of loss or amount in controversy.  The more money we are dealing with, the higher the charge.

All of these offenses contain the possibility of probation subject to a person’s previous criminal history.

The Value Ladder:

  • Less than $100 – Class C Misdemeanor
    • No Jail
    • Fine not to exceed $500
  • Between $100 and $750 – Class B Misdemeanor
    • Up to 180 days county jail
    • Fine not to exceed $4,000
  • Between $750 and $2,500 – Class A Misdemeanor
    • Up to 1 year county jail
    • Fine not to exceed $4,000
  • Between $2,500 and $30,000 – State Jail Felony
    • Between 180 days and 2 years in State Jail Facility
    • Fine not to exceed $10,000
  • Between $30,000 and $150,000 – 3rd Degree Felony
    • Between 2 years and 10 years prison
    • Fine not to exceed $10,000
  • Between $150,000 and $300,000 – 2nd Degree Felony
    • Between 2 years and 20 years prison
    • Fine not to exceed $10,000
  • Over $300,000 – 1st Degree Felony
    • Between 5 and 99 years or life in prison
    • Fine not to exceed $10,000

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

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What is Mortgage Fraud?

November 6, 2020

By Criminal Defense Attorney Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Mortgage fraud is committed where someone lies to a bank to get a real estate loan.  Mortgage loans are heavily regulated by the US government as evidenced by the mountain of paperwork you do when taking out a mortgage on a house.  Mortgage fraud is prosecuted by the federal government and the controlling statute is 18 U.S.C. Section 225.  The punishment for mortgage fraud can be up to 30 years of prison but as with other federal offenses – the more indicative indicator is the federal sentencing guidelines for any given case. 

Common Types of Mortgage Fraud Schemes:

  • Appraisal fraud – where an appraiser or other party is paid to falsify the value of property to the bank;
  • “Air Loans” – where the borrower basically falsifies everything and pockets the bank’s cash;
  • Occupancy fraud – where the buyer certifies the house is not an investment property but a homestead;
  • “Straw Man” – where a person cannot qualify for a loan (or is barred from receiving a loan) and instead uses another “straw man” to complete the transaction.
  • Underwriting fraud – where phony assets or other falsification occurs when the bank is trying to verify assets.  Examples would be moving chunks of money around to fool a bank into thinking a person has assets when they really don’t.

Any type of falsification you can think of to a bank in the process of a real estate or home loan can probably be characterized as mortgage fraud with the key qualification the mis-representation is “material” in nature.

Conspiracies to Commit Mortgage Fraud

Remember – the federal government is keen on prosecuting what they characterize as conspiracies.  So people such as appraisers, builders, and even the bank employees themselves can be investigated and prosecuted for mortgage fraud if the government thinks they played a role.

Defenses to Mortgage Fraud

Lack of intent – or misrepresentations being a mistake are a main defense to mortgage fraud.  To help show a misrepresentation was an honest mistake and not part of a larger and more sinister plot – the government and potentially a jury need to be shown the broader picture including perhaps forensic accounting of the persons assets and portfolio and the person’s sophistication level when it comes to taking out loans.

As with all federal cases – mitigation and reducing liability also commonly include cooperation with the government if necessary, the amount of the alleged fraud in question, and the scope and degree of the person’s involvement if it is a conspiracy.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

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What is Money Laundering?

November 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Money laundering is the safekeeping of illegal proceeds.  People tend to think of it as actually trying to cleanse money by having an elaborate scheme of putting up a fake business front so law enforcement can’t trace illegal proceeds – but in reality it’s much simpler (at least under Texas State Law).

My experience is that rarely is money laundering a stand alone charge.  It is typically either brought along with other – often more serious charges – or it is a charge brought against someone when other charges may be more difficult to prove.

Money Laundering:  Texas vs. Federal Law

Money laundering can be charged in either state or federal court.  State court uses a value ladder to determine the punishment range and the federal sentencing guidelines are also contingent on the amount alleged to be “laundered.”

The federal government has a much more complex definition and categorization of money laundering than Texas does.  You can read the federal statute here.  You can read the state statute here.

Examples of Money Laundering

Example 1:

Let’s say the person is accused of having a business where they advertise widgets on the internet.  People pay online for the widgets, but after they pay – the person just pockets the money and never sends out a widget in return.  It’s obviously theft and/or fraud.  Also the person is committing money laundering by putting the money in his bank account.  You would think the prosecutors would only charge defendant for theft here, and they might.  They also have the option of money laundering too.  Maybe they throw it in for plea bargaining leverage.

Example 2:

Someone is involved in a retail theft ring. They steal from retail stores and re-sell the items.  They take the money they get from the reselling and put it into their bank account.  It’s money laundering even though there are additional steps.

Conspiracies and Party Liability with Money Laundering

Where money laundering can get somewhat gray is in the case of multi-person conspiracies.  The way a conspiracy works under the law – a person doesn’t have to have full knowledge of the entire scheme to be guilty of taking part of the conspiracy.

Tweaking the facts of example #2, let’s say the bank account the money ultimately goes in to is a joint account between spouses – with the other spouse not involved in the ring at all.  This would be an instance where the state or federal government could either charge or threaten that spouse with money laundering – typically in an attempt to get them to spill their guts and cooperate about what they know of the entire illegal operation.

The issue may turn on whether the spouse was willfully ignorant of the scheme or not.  Did they realize the account seemed inflated often for no reason?  Did they check the bank account on a regular basis?  Did the other spouse conceal, hide and do everything possible to control the account?

In any regard – money laundering normally involves a complex factual scenario either in state or federal court.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

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Mail Fraud and Wire Fraud

November 2, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Mail and wire fraud are a frequent allegation in federal prosecutions.  The lynchpin of these charges is the utilization of interstate commerce to further whatever scheme the government is alleging is taking place.  The US Government obviously runs the postal service and heavily regulates other private postal carriers – and they also regulate interstate communications through instruments such as phones, fax machines and computers.

There are basically two components to both: a fraudulent scheme of some sort and then using the mail and/or wire as a furtherance to the scheme.  The Department of Justice has issued the following guidelines for mail fraud in 18 U.S.C. Section 1341 and you can read it here.  You can read the DOJ guidelines for Wire Fraud here, 18 U.S.C. Section 1343.

Why Does the Federal Government Care About the Mail So Much?

Because it gives them jurisdiction and because it allows them to have greater leverage in their prosecutions.

Mail and/or wire fraud prosecutions can often be a means to an end.  Let’s say the government thinks there is an illegal scheme of someone selling fake widgets in a newspaper ad.  It’s obviously a crime – but it may just be a State level offense.  But if that person is receiving payments in the mail, it allows the Federal government to step in and prosecute if they want.

Mail and wire fraud prosecutions also allows the government to potentially charge additional persons as conspirators if they choose if they had a part in the over-all scheme.

What is the Punishment for Mail or Wire Fraud?

The federal sentencing guidelines dictate potential punishment – as with all federal offenses.  The statutory punishment is punishment by fine and up to 20 years confinement, but this range is very deceptive.  Mail and wire fraud are often brought in multiple counts and often along with other charges.  The sentencing calculation will be unique in every case.

Are There Any Defenses?

You can always contest the search or manner in which the government attained the evidence.  If it was an illegal search you may be entitled to utilize the exclusionary rule to throw the evidence out of court.  Often intercepted mail or wire communications need federal authorization such as a search warrant.  The government is pretty good at this sort of stuff – but it’s always worth examining and evaluating.

If you had a good faith belief representations made by another person were true – it can be a defense if you are alleged to be a conspirator in mail or wire fraud.  But you can’t be willfully blind – that is – you can’t heavily suspect something is amiss and cross your fingers hoping what you were doing wasn’t helping do something illegal.

If you’re a minor player in the scheme – and were so minor as to not be “material” to the scheme, then this is a defense too.

You can also provide “substantial assistance” to the government as a way to lessen the potential penalties or avoid prosecution.  Providing assistance to the government isn’t necessarily a defense – but it can help you avoid or lessen charges in any event.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

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White Collar Criminal Defense – State Versus Federal Prosecutions

October 31, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

“White collar” crime typically refers to allegations about business related wrongdoings – frequently with accounting or other executive level indiscretions.

Both state and federal authorities police white collar cases.

Examples of white collar charges can be:

What is the Difference Between State and Federal Prosecution for White Collar Cases?

Sometimes it’s as simple as jurisdiction.  The federal government has jurisdiction over Medicare fraud and federal income tax evasion.  Other times, the criminal enforcement over-laps and either could prosecute if they wanted though they generally coordinate so as to not waste resources.

Why Does the Federal Government Prosecute Some Cases and Not Others?

The federal government tends to focus more on cases of higher financial value.  They also frequently prosecute cases where there are more potential guilty parties and co-conspirators.  You might see a state level prosecution with 3, 4 or 5 people involved in a white-collar conspiracy.  It’s not uncommon, though, to see the US Attorneys prosecution a crime ring with 20 suspects or more.

Differences in Investigation Resources and Capacity

The federal government is a very well oiled machine in terms of investigation and case work-up on pretty much every level.  The US attorney typically works hand-in-hand with agencies such as the FBI, DEA, ATF, homeland security and any other federal agency you can think of such as the SEC and IRS.

State level investigations can be excellent as well – but there is more of a hit and miss chance.  The state of Texas does have a State Securities prosecution team, for example, as well as the Texas Rangers.  At the same time, a smaller police agency officer or detective with far less training may try to put together a white collar case and not really have the best idea of what they’re doing.  Federal investigators can and often do help out state agencies – but state agencies might not always ask even when they should.

Differences in Trial

It’s far more likely in federal court – if you opt to have a trial – to be on trial with whatever co-defendants have not already plead guilty.  This could mean being on trial at the same time with the same jury as everyone else charged in the same conspiracy.

You can be put on trial with someone else in State Court – but it is less frequent and the rules make it easier for you to split the cases apart.

The rules of trial from State and Federal Court aren’t perfectly and completely aligned, but they are very similar.  The differences are a completely different topic which could probably be the subject of an entire law school class.  The differences, though, are pretty technical and can be somewhat minute.

Differences in White Collar Punishment: State vs. Federal

State level punishment can differ drastically from federal punishment.  Federal punishment tends to be dictated by the federal sentencing guidelines and will ultimately be decided by a judge.  Texas state courts give a defendant the option of having a judge or jury impose sentencing – and the sentencing is encompasses a far broader range of possible jail – and in many instances probation too.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

 

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