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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What is a Writ of Habeas Corpus?

November 4, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

There are few more confusing terms in criminal law.  Basically a writ of habeas corpus is a petition to undo something “unlawful.”  A writ of habeas corpus could be to over-turn a decades old conviction or a demand bond be set for someone arrested earlier the same day.  The latin translation is “we command you have the body” which doesn’t help at all.

Usually a writ of habeas corpus is filed to undo a conviction in Texas.  Today, I’ll be discussing the post-conviction aspect of habeas corpus.

Indirect Appeal

Writs of Habeas Corpus often get confused with appeals.  They are really not the same thing.  An appeal (or direct appeal) is based solely on what happened in the courtroom.  Examples of issues covered on direct appeal would be rulings by the judge, testimony of a witness, or error in a jury charge.

Habeas corpus is what is known as an “indirect appeal.”  They are often based on new or unknown facts which were not known at the time of the trial.

Indirect appeals usually require new facts to be investigated, developed and then ultimately reported to the Court.  Most topics which were already appealed from the original courtroom proceedings cannot be the subject of writs of habeas corpus.

Texas Codes Control Writs of Habeas Corpus

Chapter 11 of the Texas Code of Criminal Procedure is called “Habeas Corpus.”  It proscribes the different types of habeas proceedings:

  • 11.07 writs – felony writs for inmates in TDC;
  • 11.071 writs – death penalty writs;
  • 11.072 writs – felony writs for probationers;
  • 11.073 writs – writs related to scientific evidence;
  • 11.09 writs – writs for misdemeanor convictions (probation or not).

Typical Examples of How Post Conviction Habeas Corpus Works

Example 1:

Let’s say a persons put on trial for sexual assault and is convicted then sent to prison or put on felony probation and required to register for life as a sex offender.  The defendant appeals and loses those appeals in the months and years after the trial.  A decade passes and word leaks out to Defendant or his family the accuser admitted to her college roommate the allegations were not true.  Defendant could then file an 11.07 (or 11.072) writ based on the newly discovered facts.

Example 2:

Lawyer advises defendant to plead guilty to assault/ family violence and defendant is not a full US Citizen – and the lawyer did not give appropriate immigration advice to Defendant.  The defendant completes probation successfully but then petitions to have his Visa renewed to stay in the US.  He is then denied his visa and faces deportation proceedings.  In this instance an 11.09 writ of habeas corpus might be appropriate.  Defendant could allege ineffective assistance of counsel and potentially have the guilty-plea set aside.

As you can see – each example consists of entirely new facts unknown at the time of conviction.

You Only Get One!

You only get one Habeas Proceeding in Texas absent bizarre circumstances.  A criminal defendant considering filing a writ of habeas corpus whether in jail or not should absolutely consult a lawyer first.  If a criminal defendant does their own writ and it is unsuccessful – they can spoil future writs.  When filing a writ of habeas corpus – it is important to include all potential grounds for relief for this reason.

*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 Crime: Securities Fraud

November 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Securities fraud has to do with false claims, statements and the inducement of investments in things such as stocks and bonds which then result in loss.  Often times with security fraud there are also claims of issues with improper or absence of appropriate licensing.

What is a Security?

Securities can be confusing and there are different types.  A security is defined generally as a right to own or trade an interest – typically something like a stock, bond or derivative.  The lynchpin of what makes something a security versus simply an investment is with a security, your interest is passive.  In other words, your ownership gives you limited rights and ability to control how the business is run unlike if you were to enter into a partnership for a business or for real estate.

Today we’re not talking about security as in collateral such as a house or car.  That, too can trigger criminal prosecution but that’s another topic.

Types of Criminal Prosecutions Involving Securities

Federal and State authorities both prosecute securities fraud.  The Security and Exchange Commission (“SEC”) is the federal enforcement agency and in Texas, we have the State Securities Board which has a prosecutorial team.  You can read generally about the differences between state and federal prosecutions here.  The SEC and State Securities Board may also sue civilly instead of or in addition to criminal prosecution.

Securities Fraud

Securities fraud happens where someone sells stock or interests in something via fraud.  In those types of prosecutions there is normally a business venture which goes belly-up.  Later, many of the investors complain the statements made to sell them the stock were false.  Perhaps they claim they were guaranteed profits.  Perhaps they claim the investment was based on a non-existent or highly speculative innovation or invention.  The accusers may claim they were otherwise lied to, intimidated, or defrauded into making the investment.

Several issues come to mind in defending securities fraud charges.

First – what types of admonishments, disclosures and warnings were given to investors — and just as importantly – can those warnings be proven?  How prominent were the admonishments relative to everything else?

Second – just because a project failed doesn’t mean it was fraudulent.  Projects and investments fail.  The type of project or business venture needs to be re-examined to see if it failed for other reasons such as poor management, a bad economy, better competitors, etc. The project also needs to be re-constructed based on it’s over-all viability and how realistic it was in the first place?  Was it based on impossible science such as a machine which makes water flow uphill? Or, was it based on wishful thinking like a speculative product?

Third – Even if one person associated with a venture was fibbing and defrauding folks that doesn’t mean everyone else on the project was too.  Were the folks making the fraudulent statements executives and directors or were they sweeping the floors?

Selling Securities Without a License

FINRA, or the Financial Industry Regulation Authority is an independent agency which handles licensing while the SEC is the actual federal arm charged with enforcement.  FINRA issues what is known generally as a Series 7 license common in the securities industry.

A person needs to be licensed to sell securities.  You can read a detailed list of SEC regulations on that here.  Texas State Securities Board has information on dealers and advisors here.

Selling securities without a license commonly accompany charges of securities fraud.

Penalties for Securities Fraud

Penalties for both State and Federal securities fraud typically depend on the amount alleged to have been lost.  Those amounts can often be aggregated.  So the range of potential jail varies widely in any given case but in both State and Federal Court, Securities Fraud is a felony.

*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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