Texas Criminal Lawyer Blog

Drug related violence has claimed the life of yet another Northern Mexican Mayor. Last Saturday, Rito Grado Serrano, the Mayor of Praxedis Guerrero, and his son were murdered by unidentified gunmen in their home - presumably men associated with Mexican drug cartels. Mr. Serrano's death marks the 12th Mexican Mayoral death this calendar year, and the violence has shocked this small town, which sits just across the border from El Paso.

If you've been accused of a federal drug crime in West Texas recently, you are not alone. 2010 has seen a veritable explosion in drug related mayhem on both sides of the border. For instance, Ciudad Juarez, a town right across from El Paso on the Mexican side, has reported 500 killings likely related to the drug trade in just the past two months alone. Last month, Mexican authorities found 72 bodies at a ranch in San Fernando - again, right across from Texas - also the result of drug related violence. Violent actions and counter-reactions among Mexican cartels have ratcheted up the stakes in the Mexican drug war, and most analysts have no idea how or when the ongoing violence will be contained.

If you've been hit with federal drug charges stemming from an arrest at the West Texas border (near El Paso or elsewhere), prosecutors can seek serious jail time, fines, and other punishments. And if you participated in a criminal conspiracy with others charged with federal drug crimes, you could face criminal penalties for wrongdoings your conspirators committed - even if you had nothing to do with their actions.

Given the stakes for you and your future, and given all of the complexities and nuances of the federal drug laws, it behooves you to retain a competent, resourceful, and experienced Board Certified criminal defense attorney to develop a plan of action. The counsel you choose matters. A smart and experienced attorney -- someone who understands how West Texas and federal criminal prosecutors operate -- can help you develop a realistic approach to respond to the charges and get your life back on track.

Earlier this week, Mexican police netted 105 tons of marijuana after a decisive confrontation with drug smugglers in three operations in and around the city of Tijuana. According to Mexican Army officials, the drugs had a street value of over 4 billion pesos - approximately $340 million.

The big bust happened after local police got into a shootout with a local gang riding in a convoy. The officers called in help from the military, and the subsequent gun battle led to injuries on both sides as well as to further raids on a nearby home and ranch, where more marijuana was found and seized. All told, police arrested 11 people and found 10,000+ color coded packages of drugs. Different packages featured different labels, depending on their ultimate intended destination in the United States. Some packages were decorated with pictures of Homer Simpson saying "Voy De Mojarra Y Que Wey!" - which essentially means "I'm gonna get high dude!"

Drug related violence south of the border has led to the deaths of nearly 30,000 people since Mexican President Calderon initiated action against the powerful Mexican drug cartels in 2006. To put that in perspective, around 50,000 Americans died in total in the Vietnam War - so the number of deaths in Mexico's drug war is already equal to more than half the number of Americans killed in Vietnam.

This border violence has ramped up the enforcement on the Texas side of the border, resulting in more highway stops, more vigorous random patrols, and in a considerable increase in law enforcement presence, both federal and state, in the border regions of Texas, New Mexico, and Arizona.

If you've been accused of a federal drug crime -- such as possessing, manufacturing, or transporting drugs; or collaborating in a criminal conspiracy related to illegal narcotics -- you could face sweeping punishments according to US law. These could include (but will not necessarily be limited to) jail time, fines, mandatory repayment to victims of your crime, suspension of your driver's license, loss of certain rights, strict terms of probation and release, and secondary consequence of your conviction, such as the degradation of your professional reputation and a more difficult time getting loans or leases.

If you've been arrested in West Texas on federal criminal drug charges, money laundering charges, or weapons violations, a Board Certified criminal defense attorney can provide a strategic, results-oriented plan to fight back against prosecutors and reduce or potentially even eliminate your punishments.

If you have been convicted of a federal crime in West Texas (such as a drug related crime or a crime like money laundering or illegal possession/use of a firearm), the law allows you to appeal your conviction to another court. This post and a subsequent one will explain the basics of federal criminal appeals.

If you have entered a guilty plea or you have gotten convicted at trial, you may appeal your sentence to a Federal Court of Appeals. These appellate courts are divided geographically by numbers into "Circuits". For instance, West Texas appeals go to the 5th Circuit Court of Appeals in New Orleans. Different rules govern federal appeals. Instead of being called a "defendant," you will now be called an "appellant." You will not go before the court. Your federal criminal defense attorney may present oral arguments -- but not necessarily. The appellate court will review the transcript of your trial, but you cannot get new evidence admitted. If you don't have money to pay for your appeal, in many cases you can have counsel appointed to represent you.

What Happens on Appeal

Instead of reviewing your guilt or innocence, the appellate court analyzes whether legal errors or other mistakes occurred during your trial. If your attorney can prove that mistakes were made - and that they impacted your sentencing or prejudiced the judge or jury - your case can be sent back down to the lower court to be retried. Or the charges can even be completely dismissed. If the reviewing court finds that an error was made in the sentencing, a "resentencing" may be in order.

Issues Your Attorney Can Raise on Appeal

Your West Texas federal criminal attorney can argue that certain evidence should not have been included - (e.g. the evidence got admitted improperly and thus shouldn't have been considered.) Your attorney can appeal the pretrial rulings the judge made, contest how jury selection was done, and object to the formulation of your sentence.

Even assuming that you can establish that the lower court made a legal mistake doesn't mean you will get a retrial or that your sentencing will be reconsidered. Essentially, the appellate court needs to be convinced that the error prejudiced the case or impacted your sentencing. If the error didn't have an effect, proving it won't help you.

That said, Constitutional errors have more bearing than mere procedural errors. If you can show that an error of constitutional dimensions occurred, you would have a better chance for reversal. The government has the onus to prove that such an error was harmless.

Whether you have just been arrested for a federal crime (such as possession, distribution, or selling illegal narcotics), or you want help appealing a lower court decision that you thought was unfair or too harsh, connect with a reputable West Texas federal criminal defense attorney (ideally someone who is Board Certified) to help you design and execute a principled appeal.

Congress passed the Controlled Substances Act (CSA) in 1970 to regulate the possession and distribution of drugs. The CSA - also known as the Comprehensive Drug Abuse Prevention and Control Act - created five so-called "schedules" of controlled substances classified according to a I to V scheme. Let's review these:

Schedule I

Illegal possession and distribution of these drugs can constitute a serious offense and could lead to more severe penalties under the United States Sentencing Guidelines. These drugs are thought not to have any legitimate medical use (according to the law) and can cause harm even if the user gets supervision. Examples of Schedule I drugs include:

• LSD
• Ecstasy
• Heroin
• Mescaline
• Peyote
• DMT
• Marijuana

Of course, marijuana does have medical uses and such uses are recognized in the state of California. However, Federal Law does not recognize such uses, and people on federal probation are not allowed to use marijuana, whether prescribed or not.

Schedule II

These drugs do have some medical use, but they have an extreme potential for being addictive - either physically or psychologically. Examples include:

• Cocaine
• Amphetamines
• PCP
• Methadone
• Opium
• Methamphetamines
• Methadone

Schedule III

Schedule III drugs also have a so-called accepted medical use, and while they do have the potential to be addictive - psychologically or physically - there is less "potential for abuse" for these drugs than there is for Schedule II drugs. Examples include:

• Naline
• Anabolic steroids
• Codeine
• Other kinds of steroids

Schedule IV

Schedule IV drugs are less easily abused than Schedule III drugs and can include:

• Sedatives
• Meprobamate
• Certain tranquilizers
• Certain barbiturates
• Certain products made with opium or codeine
• Valium
• Xanax

Schedule V

These drugs have the least potential for abuse and psychological/physical dependency and include:

• Cough medicines that contain codeine
• Other medications prepared with opium or codeine

Since its inception in 1970, the Controlled Substances Act has been amended to come into compliance with conventions established internationally. States have their own drug sentencing laws, which often mirror the federal laws. Certain states do diverge, however. For instance, California and 11 other states allow medical marijuana use. (According to the federal scheme, marijuana is a Schedule I drug.) In a 2005 Supreme Court case, the High Court ruled that the US government can bring federal criminal charges against marijuana users, irrespective of their state protections, since the sale of marijuana is often done on an interstate basis.

Penalties

Different offenses merit different penalties. Simple possession is generally the least serious charge. Possession with the intent to distribute the drug carries higher penalties. If you get into manufacturing or distributing or selling illegal narcotics, your punishment can be greater still. And if you engage in a criminal conspiracy to manufacture, distribute, and sell drugs to generate a serious income stream, you could wind up with a severe sentence, depending upon the degree of participation in the conspiracy.

Depending on the nature of the charges, your criminal history and whether any co-conspirators committed additional crimes (such as burglary, assault and battery, or even murder), your penalties could range from a minimum of 10 years up to life imprisonment.

A federal criminal defense attorney who is familiar with the Controlled Substances Act can help you put together a vigorous defense. In some cases, your attorney may be able to challenge the evidence that prosecutors have assembled through Fourth Amendment objections (protecting you against unreasonable search and seizure).

If you have been arrested for drug charges pursuant to the Controlled Substances Act in West Texas, it's a good idea to consult with an attorney who is Board Certified and deeply familiar with the Federal Sentencing Guidelines.

The United States Congress enacted the Controlled Substances Act in 1970 to expand and define the federal government's powers to regulate medications, narcotics, stimulants, hallucinogens, and other drugs which can be addictive or harm society if abused.

The Act created five different classifications of drugs and established policy by which medications can be imported, manufactured, distributed, and used. Both the Food and Drug Administration (FDA) and the Drug Enforcement Administration (DEA) can add or remove drugs from the different classifications, which are technically known as schedules.

The U.S. Congress can also add substances to schedules -- for instance, in 2000, Congress added the date rape drug gamma hydroxybutyrate to schedule 1 -- the most highly controlled schedule.

Over the past 4+ decades, the Act has been amended multiple times. For instance, in 1978, the Psychotropic Substances Act helped define how certain psychotropic drugs should be regulated.

The Five Schedules

Schedule 1

These substances do not have a legitimate medical use in the United States, and they can be quite addictive. Examples include: LSD, heroin, and gamma hydroxybutyrate.

Schedule 2

These are substances that can be used medically but can also be quite addictive. Examples include: morphine, methadone, Demerol, pure codeine, cocaine, Ritalin.

Schedule 3

Schedule 3 substances are drugs that have a medical use that lead only to a "moderate or low physical dependence" and are less likely to be abused than drugs in schedules 1 and 2. Examples include: ketamine, Vicodin, and anabolic steroids.

Schedule 4

Schedule 4 drugs have a currently medical accepted medical use in the US and a lower chance of abuse. Examples include certain barbiturates and benzodiazepines like Klonopin.

Schedule 5

These drugs have a clear medical use, low potential for abuse and limited psychological and physical dependence. Examples include: cough medications that have a small quantity of codeine and some anti-diarrhea medications and anticonvulsants.

Penalties

If you violate the Federal Controlled Substances Act -- Title 21, Chapter 13 of the US Code -- you can face a gamut of penalties, including Jail time, fines, strict probation terms, loss of a license, and many secondary and tertiary problems -- such as trouble getting a job and loss of the right to vote in elections.

Your punishments will depend on a variety of factors, including whether you distributed, manufactured, or possessed a controlled substance; the classification of the substance you used/possessed/distributed; whether you provided drugs to minors; whether you acted in a criminal conspiracy; and whether you've been arrested/convicted previously of Federal criminal drug charges or other felony or misdemeanor counts.

A West Texas criminal defense attorney can help you develop and execute a strategic defense and ensure that your rights under the law are fully protected.

If you work for a bank, or public institution, and you wrongfully use money or other assets entrusted to you, you can get arrested and face charges under Title 18, Chapter 31 of the US Code.

The definition of this crime of embezzlement -- which is essentially the intentional misuse of funds, assets, or other property put under an employee's trust -- can be quite broad. According to Section 656 of the US Code, different kinds of embezzlement carry different penalties. Federal, state, and local authorities can all pursue action against you and your associates.

Most embezzlement cases (approximately 4 out of 5, according to some surveys) involve the misuse of money, supplies, or inventory. But you can get charged for embezzlement for doing other things. For instance, if you steal letters or packages entrusted to your care by the bank or public agency or institution, that can be classified as embezzlement.

Embezzlement almost always charged as a felony , and punishment can be severe. Depending on what you did and how you misappropriated funds, you could face fines in the million of dollars and many months in prison, followed by a period of supervised release and mandatory restitution to the victim banks or institutions.

If convicted, the Court will look at (among other factors):

* criminal history
* the amount embezzled
* role in the offense, whether a leader or organizer
* whether you have a criminal record

If you've been accused of embezzlement or appropriating funds from a business, public institution, private charity, or other organization, whose funds are insured by the Federal Government, you may need a Texas Federal Criminal Attorney who is familiar with White Collar crime defense. Given the potential consequences for your freedom, bank account, and professional reputation, you want the highest quality defense possible.

Whether you got charged in Texas Federal Courts for participating in a complicated money laundering scheme that involved millions in cash, half a dozen offshore accounts and multiple steps -- or just got involved with money laundering charges involving drug transactions -- you may need a sophisticated federal attorney to defend yourself against the charges.

An array of international, federal, state and local law enforcement organizations can prosecute money laundering as a crime. Anti-money laundering institutions (at home and abroad) include:

* The Financial Action Task Force on Money Laundering (FATF)
* International Monetary Fund
* World Bank
* United Nations
* Drug Enforcement Agency (DEA)
* Internal Revenue Service (IRS)
* Federal Bureau of Investigation (FBI)
* The State Department
* The Department Of Justice (DOJ)

Whether you got arrested for money laundering related to a simple drug crime in West Texas or a complex international scheme, prosecutors will strive to trace and reconstruct what you and your associates did. Most money laundering schemes operate over an extended period of time and involve numerous transactions.

Placement

Usually the first step is "placement," during which the launderer deposits cash into a bank or other financial institution. In the United States, banks must report deposits in excess of $10,000 to the government. So launderers typically break up large sums into smaller installments when depositing them.

Layering

The next stage, technically known as "layering," essentially allows the launderer to change the form of the money and remove it from its illicit source. For instance, the money may be transferred to an offshore account in the Cayman Islands, Singapore, Hong Kong, or another place where anonymous banking is allowed/encouraged. Or the money may be invested in a front, such as a "shell company," a business that looks like a legitimate business but really exists for the sole purpose of laundering money. Alternatively, the money can be funneled into a reputable business -- such as a car wash or bar -- and then cleaned that way.

Integration

Lastly, the laundered money gets "integrated" back into the legitimate economy. For instance, the money funneled into an account in the Caymans may be invested in a legitimate business and then transferred back into an above-the-board bank account in the US.

United States Code Sections 1956 and 1957 (Title 18) define money laundering as a federal offense and stipulate that those convicted can face serious prison time, as well as high fines and other penalties.

To defend yourself against charges of drug money laundering in West Texas, consult with an attorney who is Board-Certified in criminal law and who understands how to construct a potent defense on your behalf.

If you stand accused of a federal crime, a representative of the US government will make two big decisions that could affect your future: 1) how to charge you, and 2) what to charge you with.

This blog post will provide basic information about who federal prosecutors are, how they relate to one another, what powers they have, and how they decide to take the kinds of action they do against criminal defendants like you.

First, we will look at the roles of three key players:

* United States Attorneys
* Assistant U.S. Attorneys (AUSAs)
* Federal agencies

United States Attorneys

Top federal prosecutors are known as United States Attorneys. They are appointed by the President with the approval of Congress. In other words, it is a political appointment. In fact, the United States Senator from the majority party in power has the last say-so as to the President's choice. This is a matter of protocol, but it is usually followed by the President.(The same selection process occurs with Federal Judges.) 93 United States Attorneys serve at any given time -- one for each federal district.

Assistant United States Attorneys

Assistant United States Attorneys (AUSA's) are hired by the U.S. Attorney. They are the ones who actually do the work. Rudy Gulianni made his career as a United States Attorney with a high-profile assault on the Mafia in New York. But his AUSA's did all the work. AUSAs are heavily involved in doing things like:

* Calling witnesses before the Grand Jury
* Issuing subpoenas for financial records
* Utilizing a federal grand jury as an investigative tool for the prosecution.

Federal Agencies

Many Federal agencies investigate criminal cases. These include the FBI, DEA, Secret Service, Customs, and Border Patrol. Each agency has its own bureaucracy, and each has a different responsibility for investigating violations of the Federal Criminal Code. For instance, the FBI has general jurisdiction over most Federal Crimes as set forth in Title 18 United States Code. Secret Service, in addition to protection of the President, has investigatory authority over counterfeiting and forgery & passing of U.S. Treasury checks. The DEA has authority over federal drug offenses, although it shares responsibility with the FBI. Border Patrol & ICE (Customs Enforcement) share illegal immigration duties. AT&F handles firearms violations, while the Postal Inspectors investigate illegal activities concerning the U.S. mail.

Choosing Which Cases to Prosecute

At some point, a federal agent will involve an AUSA in an investigation -- sometimes sooner, sometimes later. When a case is at the point where charges are ready to be brought, the case agent presents the case to an AUSA, who either authorizes or declines prosecution. In some cases, the AUSA gets involved earlier -- for instance, when a drug buy is being set up. In other cases, the AUSA isn't in it until he decides there is a case with merit (or there is not). Many cases are declined at the presentation level. Often, the AUSA sends the agent back to do more work.

In larger drug conspiracy cases, the AUSA works closely with the DEA/FBI and makes the call on search issues, etc. In some cases, like white collar crimes, a Federal Grand Jury aids the investigation.

Charging the Crime

The AUSA chooses how to charge the case: what violations of the Federal Criminal Code, how many "counts" should be in the indictment, and so forth. These choices can have a profound impact on you -- particularly on how much prison time you might face. For instance:

* one count could have a mandatory minimum of 10 years
* another count could have a 5 year minimum
* yet another could have a maximum of 5 years and no minimum

Congress sets the statutory minimums. But the AUSA chooses what to charge.

Perhaps most importantly, the AUSA has discretion as to which counts to allow the Defendant to plead to. The rest is up to the Federal Sentencing Guidelines. Keep in mind, also, that all AUSA's answer to a higher power: their own bosses up the chain of command.

Factors That Can Influence How a Prosecutor Might Charge You

These include: the nature and quality of the evidence the government has assembled against you; the severity of the crime you allegedly committed; whether you worked in collaboration with others (a so-called "conspiracy"); whether you have a prior criminal record -- and, if so, what exactly did you get convicted of; whether you may have committed additional crimes for which you were not convicted.

Prosecutors can be influenced by things like politics, department resources and even personal philosophies and biases. In short, dozens of factors go into determining whether a prosecutor will charge you -- and, if so, what punishments he/she will seek.

Given the dynamic, hard to predict nature of federal cases, it behooves defendants to retain a top caliber lawyer. A board certified criminal defense attorney can push back against charges and help you develop a strategy to get maximum results.