Texas Criminal Lawyer Blog

According to the Fifth Amendment of the U.S. Constitution: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

That grand jury referred to in the Constitution must consist of between 16 and 23 people empanelled to listen to evidence presented by a federal prosecutor to determine whether evidence exists to charge a person with violation of a federal crime. (Typically a felony).

Basic differences between grand juries and trial juries

o Unlike trial juries, also known as petit juries, grand juries do not determine whether as person is innocent or guilty of the crime. All they do is determine whether the prosecution has shown there is “probable cause” that a crime was committed and that a particular person or person probably committed it.

o Jurors are not screened for biases like they are in typical trials.

o Also, unlike in typical trials, jurors themselves can ask questions to witnesses. Sometimes the jury foreperson will ask questions after a prosecutor has finished with a witness. Other times, jurors will ask prosecutors to ask questions for them.

o With grand jury proceedings, the prosecuting attorney presents evidence directly to the jurors -- there's no judge around, so no objections can be raised.

o The deliberations are done in secret. The only people generally allowed inside the grand jury room include: the prosecutor, the witness being examined, the jurors and a court reporter (and, possibly, an interpreter).

o If the jury finds that there is a probable cause that you did commit the crime, they issue what’s known as an indictment. This is a piece of paper prepared by the prosecutor which sets forth the legal charges against the person indicted.

o A grand jury indictment is needed before someone can be prosecuted for a federal criminal charge. Grand juries also exist in states, but only about half of states use grand jury systems.

The Prosecutors’ Ballgame

In may ways, it’s the prosecutors’ ballgame. The prosecutor gets to pick what witnesses will be called and what kind of evidence to show the jury. The witness’s attorney will have to wait outside the room. The witness can consult with his or her attorney.

Prosecutors can subpoena nearly anyone to go before a grand jury -- even without probable cause that that person has significant information about the case. And the person subpoenaed must answer questions asked by either the prosecutor or the jurors, unless the person can invoke a privilege, such as Fifth Amendment self-incrimination protection; lawyer-client privilege; or marital privilege.

There is no attorney allowed in the Grand Jury room. In federal cases, the attorney may wait outside the Grand Jury room and the witness may leave the room to confer with his or her attorney during the proceedings.

Help with Federal Criminal Charges

If you or a loved one stands accused of a federal crime, you must to find an experienced federal criminal defense attorney to represent you and advise you about how to best handle these very serious charges.

Posted by Michael J. Brown | Permalink | Email This Post

Posted In: Federal Crimes

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Five Common Types of Internet Crimes

Internet crimes run the gamut from dizzyingly technical phishing attacks to salacious matters involving pornography and online sex.

This article will examine Five common types of online crimes.

1. Fraud schemes

According to the Internet Crime Complaint Center (also known as the IC3), the biggest web fraud crime (44%+ of fraud cases) is auction fraud. This involves duping victims through services like eBay. Other kinds of fraud include:

o Confidence fraud
o Online bank fraud
o Credit card fraud
o Failure to deliver merchandise

2. Sexual/pornographic Internet crimes

Possessing, distributing or producing sexual images of children under the age of 18 can be punished swiftly and brutally. Prosecutorial crackdowns do catch legitimate offenders; however, innocent people who make small errors in judgment and wind up in possession of illegally obscene material can get caught up in the net as well.

3. Identity theft-related Internet crimes

Spam and scam artists siphon tens of millions of dollars from web users annually. One popular crime is called spoofing (a.k.a. phishing). In this crime, a person sends a fake e-mail that appears to be from a legitimate business to trick the victim into giving away personal information, such as a Social Security or credit card number.

Hacking is another kind of identity fraud. A malicious user breaks into a computer system and uses the unauthorized access to commit further crimes, such as stealing from an online bank account.

4. Cyberstalking/harassment

Cyberstalking can be considered legally equivalent to real world stalking -- and can be punished accordingly. The following could constitute cyberstalking:

o Sending unwanted e-mails to a person
o Impersonating someone in a forum or chat room
o Spreading lies or rumors about someone on the web

Online harassment is a sister crime. The following could constitute harassment:

o Sending repeated annoying emails to someone
o Threatening someone physically in an e-mail or chat room

5. Online investment fraud

Online fraud crimes can get very creative. A famous example is the Nigerian Letter Scam. The scam artist e-mails a victim, claiming to be a foreign businessperson or benefactor (e.g. a high-up in the Nigerian government). The rich foreigner is in desperate need of a small amount of cash to get out of a jam. The victim is encouraged to send that cash to an overseas bank account -- in exchange for a promise (never delivered, of course) of a big reward later on. Thousands of variations on the Nigerian letter scam exist.

If you or a loved one has been arrested for an internet crime (or any other federal crime), you may need experienced legal counsel to craft a savvy defense.

I am board certified in criminal law by the Texas Board of Legal Specialization. I has tried over 150 criminal cases -- in both federal and state courts. As a former prosecutor and FBI agent, as an experienced Federal Criminal Lawyer, I understand how prosecutors and judges think, and I use this perspective to develop powerful and surprising strategies for my clients.

Please read my website at www.micjbrownlaw.com to learn more about my credentials and philosophy.

Don’t let those burning questions keep you up at night. Get good answers and peace of mind - contact me at 325/574-2000.

Posted by Michael J. Brown | Permalink | Email This Post

Posted In: Federal Crimes

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All about Federal Income Tax Crimes

The Internal Revenue Service Code 7201 defines income tax fraud as a felony punishable by fines, prison time, and other penalties. Tax fraud is just one of a diverse list of potential income tax crimes pursued by the IRS’s Criminal Investigations division.

Basic types of income tax crimes include:

• Failure to file a tax return
• Intentionally submitting false information on a tax return
• Taking more deductions than you are allowed
• Falsifying financial statements or other documents
• “Laundering” money so as not to have to report it to the federal government
• Claiming personal expenses as business deductions
• Storing money that should be taxed in accounts overseas and not reporting that money
• Collecting income taxes from employees and then not giving this money to the IRS

How and why the government fights back so hard against income tax crimes

According to an independent Cornell University-sponsored inquiry, income tax crimes cost the federal government close to $350 billion a year, annually. Thus, the government obviously has a huge motivation to go after individuals whom the government thinks are shirking their tax responsibilities.

To this end, the IRS runs a dedicated branch called Criminal Investigations (CI), which tracks down delinquent taxpayers. The biggest CI program is the General Tax Fraud Program, which investigates instances of money laundering, evasion, and similar crimes. Criminal Investigations also looks into allegations of financing narcotics or terrorism.

Criminal and civil penalties possible:

Taxpayers can be hit with both criminal and civil charges.

Criminal charges can lead to prison time, if a suspect is convicted. In addition, someone who fails to file an income tax can be subjected to fines of $25,000 for every year that he or she failed to file -- going back a full six years from the time that a tax return should have been submitted. For instance, if someone failed to file for tax year 2007, the government can look all the way back to 2001 in his or her records. Further, the Federal Sentencing Guidelines are based primarily upon the amount of income not claimed.

Civil charges can be similarly severe. The penalties for failing to pay can accumulate indefinitely -- as opposed to getting cut off after six years -- and perpetrators also have to pay interest on the taxes owed, which can really add up. If convicted of a federal income tax crime, you may also have to pay fines and other penalties.

Famous tax evaders

The most famous tax evader of all time is the Chicago gangster Al Capone, who was busted after investigators spent years trying to arraign him for more serious charges pertaining to his criminal enterprises. Famous modern tax evaders have included entrepreneur Martha Stewart, country musician Willie Nelson, and President Obama’s Treasury Secretary, Timothy Geithner.

If you or a loved one has been charged with a federal income tax crime, it behooves you to speak at once with a competent and trial-proven federal criminal defense attorney.

Posted by Michael J. Brown | Permalink | Email This Post

Posted In: Federal Crimes

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What Is the United States Sentencing Commission?
Why Might It Be Important To Your Case?

The United States Sentencing Commission (USSC) is an independently operated judicial agency that does several things:

1. It sets sentencing policies for federal criminal offenders.
2. It advises lawmakers about effective anticrime policy.
3. It collects and processes information about federal crimes and sentencing and serves as a general resource.

The Commission creates what are known as sentencing guidelines. Federal judges must consult these guidelines when determining sentencing.

Congress created the Commission as part of the 1984 Comprehensive Crime Control Act to make sure that sentencing for federal crimes would be more structured and fair.

How the Guidelines Work

The guidelines are designed to take into consideration two key questions:

1. How serious was the crime committed?
2. What kind of criminal record (if any) does the defendant have?

Federal crimes are categorized into one of 43 categories, also known “offense levels.” Defendants are also categorized according to their criminal history into six categories.

The United States Sentencing Commission advises judges to use these categories to determine appropriate sentencing. Judges have discretion and may depart from the recommended guidelines, but they must at least consult them.

What should you do if you’ve been accused of a federal crime?

Find a lawyer with years of experience in Federal Courts who knows the guidelines and how they are applied by the particular Federal Judge in the U.S. District Court before whom you are going to appear.

Posted by Michael J. Brown | Permalink | Email This Post

Posted In: Federal Crimes

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The defense of Federal Criminal cases in the Western and Northern Districts of Texas requires a careful study of the Federal Sentencing Guidelines at the very beginning of the defense of a Federal case. Despite the U.S. Supreme Court's decision in U.S. v. Booker which held that the U.S. Sentencing Guidelines were "advisory" in nature, the judges in the Western and Northern Districts still rely on the Guidelines for sentencing in the great majority of cases.

Because the guidelines are so crucial to the outcome of a Federal Criminal case in this area, I immediately look into the guidelines as soon as I am hired and go over the facts of the case with the client and compare them with the Indictment and then with the Federal Criminal Statutes. If at all possible, I want to have an idea of the best and worst case scenario before I attend the first preliminary hearing and prior to uttering a single word in defense of my new client.

For someone charged with a federal crime, the U.S. Sentencing Guidelines contain what I like to call "taxes"; that is, penalties for exercising constitutional rights most people take for granted. For example, if my client refuses to talk to the FBI or the DEA, such failure may later be penalized in the guidelines as "obstruction". On the other hand, if an accused does give a statement to the government agents which later proves to be false, he can be subject to the same penalty by the addition of "levels"; the higher the level total, the higher the sentence.

In addition to the "taxes" found in the Federal Sentencing Guidelines, further ambushes await within the Federal Criminal Statutes in the form of statutory mandatory minimum sentences. The most common types of mandatory minimums exist in three types of federal prosecutions: drugs, firearms, and child-sex offenses.

In drug cases, these mandatory minimum sentences can be based on the amount of drugs involved, as well as on the criminal history of the defendant.

Firearms cases can have mandatory minimum sentences ranging from 5 years up to life imprisonment, depending on the type of firearm, how the firearm was used, and whether the defendant has other firearms-related convictions. The use of fire or explosives in the commission of an offense can raise the minimum penalty to 10 years.

Child and sex offense penalties can be among the most severe in the federal system, due to the Adam Walsh Child Protection and Safety Act of 2006, which added or increased both maximum and mandatory minimum penalties for sexual offenses involving children.

A single count in a multi-count federal indictment involving a mandatory minimum sentence can raise the stakes for the defendant so as to invoke the final "tax" in the federal system: the "Trial Tax". That is, the mandatory minimum count can be used by the Assistant U.S. Attorney as a plea bargaining tool-- the government offers to dismiss the count with the mandatory minimum in return for a guilty plea by the defendant to some or all of the other counts in the indictment. In most cases, the defendant would be "taxed" for exercising his right to a jury trial by the specter of a much heavier sentence with the addition of a lengthy mandatory minimum sentence should the defendant be found guilty by a jury.

Posted by Michael J. Brown | Permalink | Email This Post

Posted In: Federal Crimes

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The Western District of Texas is one of four U.S. Judicial Districts in Texas. The Western District's main headquarters is in San Antonio. The Southern, Northern and Eastern Districts are located in Houston, Dallas, and Tyler, respectively. The Western District is divided into several divisions: El Paso, Del Rio, Pecos, Midland, and Waco, with one or more U.S. District Judges assigned to each division. The Midland and Pecos divisions are 300-plus miles from San Antonio. There is even a courthouse and U.S. Magistrate in Alpine, although the U.S. District Judge usually holds court in Pecos to consider Alpine cases. Waco is in the Western District only by chance, as it is in central Texas between Austin and Dallas.

Until the explosion of immigration and drug cases in far west Texas, there was only a Midland division and an El Paso division. In the nineties the Pecos U.S. Courthouse was built and a division created to deal with the highway drug stops, immigration cases, and U.S. Customs stops at the Sierra Blanca checkpoint on IH 10 west of El Paso.

There is now an imposing Federal Building and U.S. Courthouse in tiny Alpine, recently constructed to handle the onslaught of immigration (now under the lofty title of Homeland Security) and drug cases. The U.S. Attorney's office and Drug Enforcement Agency (DEA) are housed in a fortress-like building surrounded by a high wire fence, next door to the new courthouse.

I regularly appear in Alpine, Pecos, and Midland in defense of clients charged with federal
crimes. Immigration cases are usually handled by the public defender. But I often handle other federal cases in these areas, and have become quite familiar with these remote towns with the shiny new federal buildings.

Posted by Michael J. Brown | Permalink | Email This Post

Posted In: Federal Crimes

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A Federal Grand Jury can be used by a United States Attorney to return indictments on cases presented through agents of various Federal investigative agencies, such as the FBI, DEA, AT&F, Secret Service, and other agencies charged with the enforcement of Federal Criminal Statutes. They usually meet once a month, to hear evidence from the Federal agent in charge of the case. The cases are presented under the direction of an Assistant United States Attorney.

I presented hundreds of such cases in my 12 year stint with the United States Attorney's office in Houston. In these cases, evidence is presented in the form of "hearsay" testimony from a testifying agent with knowledge of the particular case. Many times in large jurisdictions such as the Southern District of Texas, over a dozen cases will be presented during a day's session. I have seen cases where over 35 indictments were returned at one session. These sessions are recorded by a court reporter; however, the accused is not entitled to a lawyer in the room during the presentation of evidence and certainly not during the Grand Jury's deliberation. The accused may request to be heard by the Grand Jury,but defense attorneys must wait outside. A helpful link to find a good outline of how a Federal Grand Jury works can be found at the University of Dayton's website entitled Federal Grand Juries.

A second purpose of a Federal Grand Jury is to serve as an investigative tool of the United States Department of Justice. Local United States Attorneys, as well as Justice Department prosecutors based in Washington, D.C., can utilize the Grand Jury process to conduct investigations of complex "white collar" crimes involving public corruption, Federal Mortgage Fraud (involving Federal agencies such as HUD or FHA or VA), as well as Mail Fraud, Money Laundering, Bank Fraud, and Conspiracy. A Federal Grand Jury has broad subpoena powers to compel the production of documents such as bank records, corporate records, ledgers, computer hard drives, and other materials in addition to live witnesses. The Government can extend the life of the Grand Jury if necessary to complete a lengthy investigation. Some of the cases in which I was involved lasted over two years. Sometimes prosecutors find it necessary to empanel a brand new Grand Jury and then present testimony in summary form from the last Grand Jury, in order to keep the investigation going forward after the term of the previous Grand Jury has expired.

Any individual who receives a subpoena from a Federal Grand Jury should contact an experienced Federal Criminal Defense Attorney immediately.

Posted by Michael J. Brown | Permalink | Email This Post

Posted In: Federal Crimes

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Along with the acceleration of foreclosures in the rapidly falling real estate market comes the inevitable increase in Mortgage Fraud Indictments by Federal Grand Juries in Texas and other Federal Districts throughout the United States.

Federal Mortgage Fraud ranges from deliberate overstatement of income by borrowers in order to qualify for larger mortgage loans, to complex schemes by multiple parties to defraud lenders of large amounts of cash. These indictments involve borrowers, lenders, appraisers, real estate brokers, loan brokers, bankers, and, yes, even attorneys.

Mortgage Fraud Rings will use a "straw borrower" with a good credit report together with an appraiser to overstate the value of the mortgaged property, along with a participating property owner and a dishonest attorney to prepare duplicate sets of HUD closing documents. Some of these complex white collar frauds can go on for a number of years and involve many different parties. For example, a recent case in California has resulted in a guilty plea by a mortgage company loan officer to lying under oath to a Federal Grand Jury in connection with a mortgage fraud investigation extending from 2001 to 2006. In that case, the loan officer had lied about taking over $100,000 from a mortgage broker to process fraudulent loan applications referred by the broker.

Some Federal Districts have been prosecuting cases involving multiple loans taken out by a buyer or buyers for the same house at the same time. After funding, the buyer often leaves the country with the money. This practice is often referred to as "Shotgunnning".

"Cash Back" schemes are another method of mortgage fraud where a buyer and seller or buyer and real estate agent conspire to deceive the lender as to the sale price of the mortgaged property, and then the buyer gets a cash kickback which of course is not disclosed to the lender.

Federal Mortgage Fraud cases can also involve failure to disclose liabilities and overstatement of income by mortgage applicants. These type cases can insnare the unwary applicant who might lack any criminal intent, but who might find himself the subject of a Federal Indictment because of a "puffed up" financial statement or a sloppy or inflated Mortgage application.

All of the Federal Judicial Districts in Texas have a number of these cases on their dockets, and the FBI is busily investigating many others. They are expensive to defend, and must have proper investigation and preparation by competent white-collar defense attorneys skilled and experienced in these areas. As is the case with all white-collar cases, a good lawyer should be contacted as soon as an individual thinks he or she may be a target of such an investigation.

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Posted by Michael J. Brown | Permalink | Email This Post

Posted In: Federal Crimes

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The United States Supreme Court returned two decisions this week which should result in more discretion for sentencing judges. Before these decisions, Federal District Judges were required to justify departure from The Federal Sentencing Guidelines, which were passed by Congress to limit the sentencing power of Federal Judges. One of the cases, Gall v. United States, involved a college student sentenced to 3 years probation for involvement in an ecstasy drug distribution ring. The Guidelines called for 30 to 36 months in prison. The United States Court of Appeals for the Eighth Circuit reversed this sentence, ruling that such an "extraordinary" variance required an equally extraordinary justification. Not so, said United States Supreme Court Justice John Paul Stevens; rather, he chided the court of appeals for failing to give deference to the District Court's "reasoned and reasonable decision." In other words, the Supremes told the lower appellate courts to lay off the trial judges and let them make their own sentencing decisions, and not to overrule them just because those decisions were outside the guidelines.

The other decision, Kimbrough v. United States, returned at the same time, overturned a 4th Circuit Court of Appeals' reversal of the sentencing District Judge's departure from the Guidelines based on his disagreement with the disparity in sentencing between crack and powder cocaine offenses. Justice Ruth Ginsberg reasoned that since Congress had not blocked recently amended guidelines lowering the penalty for crack cocaine, then judges should also have discretion to depart from the Guidelines themselves, and that it was not unreasonable for them to do so.

To add more to the mix, on Tuesday the U.S. Sentencing Commission voted to make retroactive their previous decision to lower the guideline sentences on crack cocaine offenders. This means that more than 19, 500 Federal prisoners will be free to seek reductions in their crack cocaine sentences.

I think these decisions will result in an increase in the ability of sentencing U.S. District Judges to sentence according to their own take on the entire set of facts before them; that is, the Guidelines will be but a single factor, and the judge can take many more factors into consideration in sentencing rather than blindly following the Guidelines.

Posted by Michael J. Brown | Permalink | Email This Post

Posted In: Drug Offenses , Federal Crimes

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