Texas Criminal Lawyer Blog

The federal government has changed its approach to white collar crime, resulting in fewer criminal prosecutions in the corporate world. The Department of Justice has adopted new guidelines that support "deferred prosecutions": instead of going after a company immediately for wrongdoing, government prosecutors inform the company of the wrongdoing and make them clean it up first. This means that companies do an internal investigation, punish criminal conduct, pay fines, and "achieve these results without causing the loss of jobs, the loss of pensions and other significant negative consequences to innocent parties" in the company.

Though the Department of Justice has shied from aggressive prosecution since 2005, deferred prosecution agreements were not an official alternative until 2008. Naturally critics view it as a way for corrupt corporations to evade punishment. Some claim that it promotes an overly cozy relationship between the government and companies: the companies hire law firms to conduct the investigation and the firms report to the government. They point to one case involving Beazer Homes USA, where the zeal to make a deferred prosecution agreement led the Department of Justice to forcefully end another department's investigation. The Department of Justice first demanded that the Department of Housing and Urban Development not interview anyone at Beazer until its hired law firm had completed its investigation. Then it halted the HUD's investigation once a deferred prosecution agreement had been reached. Others argue that deferred prosecutions aren't useful for cleaning up companies when the executives being asked to investigate are themselves corrupt. Finally, even if the government does decide to prosecute, federal criminal defense attorneys find the charges easier to defend because the government lawyers often lack a thorough knowledge of the evidence, so dependent are they on the companies to investigate.

These are all serious issues, if they represent the norm and not the exceptions. An experienced criminal defense attorney always tries to prove that the evidence does not support a client's conviction; at the same time, it doesn't serve the justice system when the client wins because the government is too incompetent to prosecute a case. Still, the deferred prosecution arrangement as a whole sounds promising. Most people think that those caught up in a white collar crime investigation are already guilty. Cries of "Throw them in jail!" grow louder as the extent of the financial meltdown becomes known. Yet many people charged with a white collar crime are innocent of the charges, or not nearly as guilty as the government contends. But even though their involvement is minor and not worthy of a severe punishment, a government investigation can tie up their lives for months or even years. A system that allows a company to rid itself of corruption is probably more efficient and much less painful.

Of course it depends on company executives at the top being honorable and taking the investigation seriously. When they don't, the government ought to have the independence to step in and do its own investigation. If they can achieve a balance, we just might have a system in place where real corruption is rooted out, while good people are spared from having to spend months in legal limbo.

Willie Nelson was in the news again recently. As reported several months ago, the famous country singer was arrested in 2010 after a Sierra Blanca checkpoint search and seizure for possessing six ounces of marijuana. He was later charged with a misdemeanor. Most people in his position are turned over immediately to the Hudspeth County Sheriff's Office, where they might remain in the Hudspeth County jail for 48 hours before seeing a Justice of the Peace and having a bond set.

Nelson recently sought a plea deal, where he would plead guilty to the violation and pay a $500 fine for possession of drug paraphernalia. When the prosecutor floated this idea to Hudspeth County Judge Becky Dean-Walker, she rejected it. Willie Nelson shouldn't get special treatment, she said- claiming that County Attorney Kitt Bramblett wouldn't make this deal with anyone else. In fact, my experience has been that most people with a good lawyer don't end up with jail time, but rather pay a hefty fine and face conviction for a class B misdemeanor.

In Nelson's case, the ball is still in Bramblett's court, because it his responsibility to prosecute misdemeanors in Hudspeth County. That is, it is the County Attorney's job to see to it that the prosecution moves forward -- if not, the case could be dismissed in a few years for lack of prosecution. However, the notoriety of Willie Nelson's arrest makes that prospect a remote one indeed.

The continuation of Willie Nelson's story comes at an interesting time. The federal government recently declared that marijuana has no health benefits. The Department of Justice claimed that "marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision." This might come as a surprise to medical marijuana users in California and the 15 other states that have made it legal. A decade ago, medical marijuana supporters asked the federal government to reclassify cannabis, claiming that it helped treat glaucoma and ease the side effects of chemotherapy. In its latest decision, the government claimed that marijuana had "no accepted medical use" because no adequate studies had been performed of its health benefits. Well that settles everything.

The federal government is in an increasingly awkward position. For decades, it has been locked into the mentality that no drug is a good drug. Mild drugs like marijuana are just a gateway to more lethal drugs. Yet among the general public, acceptance of marijuana use is growing. Many of those who have smoked marijuana during a serious illness have testified to its benefits, while managing to not become serious drug abusers in the process. Many of those caught at border checkpoints like Sierra Blanca or in police raids on their homes did not pose a danger to anyone else. They were not violent or psychotic -- not even Willie Nelson. Yet the Drug Enforcement Administration and the Department of Justice can't just give up decades of strongly held belief. It is easier to force people who dabble in drugs to hire a federal criminal defense attorney to keep them out of jail than to rethink their punishment.

This is not to say that marijuana is harmless and we shouldn't be cautious. Marijuana can have harmful effects on an individual -- but about how many over-the-counter and prescription drugs could we say the same? Studies crop up all the time showing how seemingly "safe" (DEA-approved) drugs harm our bodies. Before too long, there will be a study proving that illicit drugs are safer than some of the most common prescription medicines.

The U.S. Department of Homeland Security has decided to take a more active interest in cyber crime. Secretary Janet Napolitano has called for joint cooperation with Europe in battling international cyber crime, terrorism, and trafficking.

Cyber crime comes in various forms. Much of it comes in the form of attacks on individuals for financial gain, such as computer intrusion and identity theft. Meaning, someone could access your computer remotely and steal information such as a Social Security number, then use it to access your credit cards and run up an enormous bill without your knowledge. Cyber crimes also consist of Internet pornography and online sex trafficking. Now the Department of Homeland Security is focused on cyber crimes committed by terrorists with the potential to bring down governments.

Napolitano points to recent attacks on the International Monetary Fund, the Central Intelligence Agency, and the U.S. Senate. She notes that most countries lack a legal framework for dealing with cyber crimes, and have not kept pace with advances in online terrorist activity. Government and corporate computer systems may not have the security to withstand an attack.

Without a doubt, some cyber crimes have grown more brazen. Take, for example, the recent arrest of a 19-year old from the U.K., who was accused of bringing down the website for the U.K.'s version of the FBI, and having ties to hackers who targeted the CIA and U.S. Senate. Then there's the fact that cyber attacks are being used as a choice weapon by other national governments. But not everyone accused of a cyber crime is guilty of committing one. It's important to keep that distinction in mind.

Whether in a private home or in public, it is natural for several people to use the same computer throughout the course of a day. When the Department of Justice wants to investigate illegal activity, it may issue a subpoena to an Internet search engine company or an Internet Service Provider (ISP) to provide the online data of all of the users' activities. It can even require that the ISP hold on to the data for as long as two years. As disturbing as it may be to have your activities dissected -- activities that you may no longer engage in, because it was two years ago -- it is even more disturbing when you are charged with a crime that you did not commit. That is because the search engine company or ISP has information about your computer, but not the person who used it. The person who used your computer to commit the crime could have been a passing acquaintance, someone you no longer keep in contact with. Even so, you are charged with a federal crime and must find a strong federal criminal defense attorney to fight the charges.

Like drug smuggling, gun smuggling is a federal crime in the United States. However, law enforcement has tended to be less concerned with stopping guns from crossing the border than people or drugs. As a result, smugglers have taken advantage of some generous loopholes and have sent countless numbers of weapons into Mexico, into the hands of drug cartels. Now Congress is working on a law that could change that.

Congressman Elijah Cummings is proposing legislation that specifically targets weapons shipped into Mexico. This follows a period of increasing gun violence against Border Patrol agents -- from 773 attacks in 2005 to over 1,000 attacks in 2009. In particular, there was a memorable incident where the Bureau of Alcohol, Tobacco, and Firearms (ATF) allowed 2,000 guns to be smuggled into Mexico as part of its "Fast and Furious" program. The agents thought that it would lead them to cartel leaders and assassins. Instead, all but 600 guns slipped detection, and the guns were linked to 150 murders. One of the murders was of Border Patrol Agent Brian Terry in Arizona.

The new law would punish the intermediaries who purchase weapons for the cartels. It would tighten registration requirements for purchasing multiple guns, including AK-47 assault rifles. At present, arms dealers must report multiple purchases of handguns, but not assault rifles.

In light of the increasing violence, it is clear that something needs to be done to keep weapons out of the hands of drug cartel criminals. Whether the proposed law ever becomes an actual law remains to be seen: so far, there has been no mass movement to pass tougher gun laws in Congress even after it was revealed that Al Qaeda was encouraging its terrorists to purchase weapons at gun shows. If the proposal does become a law, it may distinguish between weapons for personal use and weapons that are part of a wider smuggling operation.

Even so, if the law is too broad, there is always the concern that it could lead to even more instances of illegal vehicle search and seizure at border check points than there are already. Currently, at the Sierra Blanca checkpoint, Border Patrol agents are likely to search a vehicle stopped at the border for reasons that don't even amount to reasonable suspicion, let alone probable cause. Reasonable suspicion is defined as more than an "inchoate and unparticularized suspicion or ‘hunch,'" while probable cause is stronger: "A reasonable belief that a person has committed a crime." If Border Patrol agents have yet another incentive to search vehicles -- preventing guns from being smuggled to drug cartels -- they could claim "probable cause" for searching a vehicle because the car was the same model as one owned by gun smugglers and the passengers the same ethnicity. They could claim the passengers exhibited suspicious behavior based on their justified feelings of nervousness. The result would be more people having their privacy infringed upon, and needing an experienced federal criminal defense attorney to defend them.