Texas Criminal Lawyer Blog

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.

In my experience, Expunction of a criminal record requires a great deal of care. First of all, the facts must be exact: exact date of arrest, date of offense, and place where the offense was filed. Once those details are determined, then all lesser offenses, if any, must be tracked down and identified.

For instance, I have had a number of cases where a client was arrested on a drug charge and the cops filed a class C misdemeanor Possession of Narcotics Paraphernalia along with a State Jail Felony Possession of Controlled Substance. The Class C rested comfortably in the files of the Sheriff's Department, while the Felony charge travelled across to the District Clerk's Office and emerged as an Indictment. Unless the misdemeanor was discovered, one charge would be ordered expunged, but the other would stay and would remain as an arrest. So all records must first be searched--local Police, District Clerk, District Attorney, and the County Sheriff. Cops like to charge as many offenses as they can out of one arrest--its like looking for a mouse-there is never just one.

A Hearing cannot be set less than thirty days from the date the Motion for Expunction is filed. And guess what? The DPS doesn't have to show up at the hearing or even file an answer-- but nevertheless, they can still appeal the judgment! So, I try the case as if the DPS is looking over my shoulder. Because they are.

Most hearings are not contested; that is, the District Attorney rarely objects and the Department of Public Safety never shows up anyway. For that reason, these hearings rarely take long and should be granted as soon as a well-prepared lawyer puts on the proof. But remember, the DPS can file a motion for a new trial or appeal until the records are actually destroyed.

It should not matter to the client how far his lawyer has to go to get to the hearing as long as the lawyer knows what to do when he gets there. That is a lot more important than having a lawyer who offices right across the street from the courthouse but doesn't know how handle an expunction properly; that is, carefully, thoroughly, and in great detail.

Texas Motions for Nondisclosure are only available to those who have been granted Deferred Adjudication by a Texas judge. Deferred Adjudication means that a judge will defer, or put off, finding the defendant guilty and will place him on probation or community supervision for a period of time. Deferred Adjudications are not expungable. They can only be nondisclosed; that is, be made unavailable to any entity other than law enforcement. This requires that a Motion for Nondisclosure be filed and usually involves a hearing in front of the convicting court.

Motions for Nondisclosure of Criminal Records became necessary as a response to the barrage of internet sites whose purpose was to make criminal records available to the general public. For many years before the internet explosion, the average client, as well as his lawyer, was secure in the assumption that upon successful completion of deferred adjudication any record would remain private. Some even mistakenly believed that an individual who had completed deferred was eligible for expunction of the arrest and conviction.

Unfortunately, this was not the case, and with the onslaught of internet providers,such records formerly kept hidden away in the courthouse were being placed on internet sites, and thus became easily available to potential employers, apartment complexes, schools, and even little league sports organizations doing background checks on potential coaches or volunteers.

With the support of the Texas Criminal Defense Lawyers Association, a bill was finally passed by the Texas Legislature addressing the disclosure problems brought on by the internet age. The original bill has since been amended to shorten waiting periods for felony deferred adjudication, and to allow most misdemeanors to be nondisclosed immediately upon successful discharge of the deferred sentence.

There is a procedure available in Texas which is short of Expunction, but which limits the disclosure of a criminal record to law enforcement agencies only.

A person placed on Deferred Adjudication probation who is discharged after having successfully completed the term of community supervision may be eligible to petition the supervising court to order criminal justice agencies not to disclose the public criminal history record information related to the offense giving rise to the deferred adjudication.

In Texas, Deferred Adjudication is a term of community supervision imposed without a finding of guilt by the court. The defendant is later discharged without a final conviction upon successfully completing the terms and conditions of community supervision. It is distinguished from probation, as probation involves a final conviction and is not able to be expunged or nondisclosed.

There is no time period for filing a Motion for Nondisclosure of Criminal Record in most misdemeanor cases. Felonies have a 5 year wait after discharge by the court. Offenses involving family violence and sex offenses are not eligible for nondisclosure.

Most courts require a hearing, and rule on each case on its own individual merits. I do many of these for younger offenders who need clean records to go to school or find good jobs. It is such a good idea that I am surprised that our Legislature passed it.

There is some good news and some bad news about the Expunction of criminal records in Texas. The good news is that a person placed under a custodial or noncustodial arrest for the commission of a felony or misdemeanor is entitled to have all records and files relating to the offense expunged. This procedure is complete, thorough, and final. It results in the total erasure of everything relating to the expunged arrest.

The bad news is, it is hard to get. A person has to have been either acquitted by a judge or jury, or if convicted, subsequently pardoned. Or, an indictment or information has either not been presented or, if presented, was dismissed or quashed. Further, if these conditions for expunction do exist, the statute of limitations has to have already expired, or a court has to have found that such indictment was presented by fraud or by mistake.

Expunction is also available if the Defendant was released with no final conviction, and without having served any period of probation. Expunction is not available to anyone who received Deferred Adjudication or any form of Probation.

I get a lot of calls for Expunction these days, as criminal records are more public than ever before, and public records searches are commonly done by employers, apartment management, colleges, trade schools, and other such entities.

But the bottom line is this: if you were arrested and never went to court, chances are good you may be eligible for an Expunction of the arrest; if you went to court, however, you are probably out of luck, unless the case was dismissed.

Black's Law Dictionary defines "Capital" as "affecting or relating to the head or life of a person; entailing the ultimate penalty.....A Capital Crime or Case is one for which the death penalty may, but need not necessarily, be inflicted."

In Texas, more people are killed by the state than in all the western and "first world" or modern countries, combined. It is only when we take into consideration 'third world" countries, in which human life is considered cheap and expendable, that the Lone Star State is eclipsed in its zest for the ultimate punishment.

Capital cases are prosecuted at the sole discretion of the local District Attorney, upon whom the decision lies whether to present a case as a death or non-death case. The most common Capital case is one involving a murder committed in the act of committing another felony;such as, robbery, sexual assault, or burglary, Later modifications of the law included serial killings and murder of a police officer or prison guard.

Harris County (Houston), America's 4th largest city, is the first city of the death penalty, "the capitol of capital cases". The Houston District Attorney's office had 6 death cases lined up and ready to go after the Supreme Court of the United States upheld the constitutionality of the practice of "lethal injection" used by Texas and other states.

Title 18, Section 371 of the United States Code sets forth a separate crime for Conspiracy to commit any offense listed in the U.S. Penal Code. Conspiracy has a maximum punishment of Five years.

So if someone is charged with the Bank Fraud, for instance, that person can also be charged with Conspiracy to commit Bank Fraud.

Conspiracy requires that two or more people conspire to commit a Federal crime, and that one or more of these individuals do any act (sometimes referred to as an overt act) to effect the object of the conspiracy.

To be charged with Conspiracy, therefore, two or more individuals must not only discuss,scheme, or otherwise plan to commit a Federal Crime, but one or more of them must do something to accomplish the goal or object of the conspiracy.

Federal Conspiracy Laws are a powerful tool in "White Collar" cases involving multiple parties and complex financial transactions.

The term "White Collar crime" is a generic one; that is, it refers generally to crimes committed by the use of the pen rather than the sword. There is no legal definition of the word, whose origin is probably journalistic in nature.

Most people think of street crimes such as murder, robbery, theft, burglary, assault, sexual assault and the like when the term "Crime" is used. "White Collar" crimes usually refer to embezzlement, mail fraud, wire fraud, money laundering, mortgage fraud, bank fraud, and many Federal conspiracy crimes.

Article 21.01 of the Texas Code of Criminal Procedure states that an indictment "is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense."

Black's Law Dictionary further defines an indictment as "an accusation in writing found and presented by a grand jury, legally convoked and sworn, to the court in which it is impaneled, charging that a person therein named has done some act, or been guilty of some omission, which by law, is a public offense, punishable on indictment."

Old Constitutional law distinguished an indictment as being " preferred at the suit of the government, and is usually framed in the first instance by the prosecuting officer of the government, and by him laid before the grand jury, to be found or ignored."

In Texas, the District Attorney prepares the accusation and presents it to the Grand Jury through a state's witness, usually a law enforcement officer. The Grand Jury only has to find that a crime was probably committed, and that the person accused (in the written accusation prepared by the prosecutor) probably did it.

The Indictment is the first step into the system for a person accused of a crime. The process has begun whereby the case goes to a District Court, attorneys are retained or appointed by the court, and the person becomes a "Defendant" to be tried by a jury or a judge.

Subpoena comes from the Latin "Sub" (under) and "poena" (penalty). Black's Law Dictionary defines the word as " A process to cause a witness to appear and give testimony, commanding him to lay aside all pretenses and excuses, and appear before a court or magistrate therein named at a time therein mentioned to testify for the party named under a penalty therein mentioned."

A subpoena is issued by the clerk of the court where the appearance of the witness is required, upon the application of the attorney for the party requesting the subpoena.

Hearsay is what somebody else told the witness. "She told me that...." I heard that...." Simply put, hearsay is something somebody else said, rather than what the witness saw or did. It can be quite complicated, and many volumes have been written about it. I always tell a witness not to testify what somebody else said, but just tell the jury what he/she witnessed, not what somebody else told them about what happened.