Drug Crimes Sentencing: Houston Criminal Attorney

Texas sentences for drug crimes depend on the type and quantity of the drugs, as well as the location of where the drugs were possessed. Sentences are increased if the government believes the drugs were being delivered or manufactured. 
Texas has broken all controlled substances into four penalty groups and sentences range from a Class B misdemeanor up to a First Degree Felony.  There is an enhancement to the next higher penalty level if the government believes the drugs were possessed within 1000 feet of a "drug free zone" which includes the areas around a school or playground.  In addition, there is an enhancement if a child is present while drugs are being manufactured.

In the federal system, sentences for drug crimes are severe and depend on type and quantity of drugs alleged.  The sentence will be determined based on any applicable statutory mandatory minimums, the United States Sentencing Guidelines, and statutory factors found under 18 U.S.C. 3553(a).  In addition, there are other factors, such as possession of a firearm, and a prior drug conviction, that can be used to enhance the sentence. 

In the 30 years since the ill-conceived War on Drugs began and the overly harsh mandatory minimum sentences imposed for low-level offenses were enacted, the prison population has exploded.
While judges have discretion to depart from guidelines, they must still stay within the mandatory minimum and maximum terms specified by statute. 

If you have been arrested in a case involving illegal drugs, it is vital that you retain an attorney with experience in these cases. Call 713-622-8333 or visit www.kunianskylaw.com for a free consultation.

Durable Equipment: Medicare Fraud: Houston Criminal Lawyer

An estimated ten percent of Medicare billings are inflated or fraudulent, and durable medical equipment fraud (DME fraud) is a big culprit. Delivering or providing unnecessary medical equipment wastes Medicare funds and even limits the availability of medical supplies and equipment for those in need.
DME fraud includes fraudulent billing of all types of durable medical equipment such as wheelchairs, prosthetic devices, portable oxygen tanks, and orthotics, just to name a few.

There are many fraudulent schemes by durable medical equipment companies. One common form of DME fraud is providing unnecessary equipment to Medicare recipients/patients. In order to bill Medicare or Medicaid for durable medical equipment the company must certify that it was medically necessary; it is not enough that the equipment is convenient or useful, it must actually be medically necessary for the Medicare recipient to be reimbursed by Medicare. If the DME company lies or provides false information about the medical necessity, it is considered durable medical equipment fraud.

Another common form of DME fraud is billing Medicare for DME not actually provided. Some companies obtain names and addresses of Medicare recipients and bill Medicare for equipment it never sends, knowing that Medicare does not audit or verify that the DME was actually delivered. Variations of this scheme include providing the equipment to those not eligible for Medicare or Medicaid, but still billing the government.

Other durable medical equipment fraud schemes include paying kickbacks or referral fees for patients. Many DME companies pay hospitals, doctors, nursing homes and other healthcare providers a finder’s fee or referral fee if they refer Medicare patients to them; even though the Medicare or Medicaid recipient may need DME, it is unlawful to pay kickbacks or referral fees to gain new customers. Paying a referral fee or giving anything of value in exchange for a referral is considered Medicare fraud.

Medicare reimburses durable medical equipment companies based upon the item provided to Medicare recipients. Medicare has a code system with different rates for different models or types of durable medical equipment. The DME company must certify as to the code being used that reflects the actual DME provided. Billing for a higher code or grade of equipment than actually provided, a practice known as "upcoding", often goes undetected because the Medicare recipient may actually receive equipment without knowing that the DME company has billed for more expensive equipment than delivered.

If you believe you may be under federal investigation for a Medicare Fraud Case, it is critical that you hire a qualified criminal defense attorney right away. Do not risk having your rights violated by neglecting to retain a skilled, experienced criminal defense attorney.
The Houston, Texas law office of Richard Kuniansky will work diligently to ensure your rights are protected.

Medicare Crime: Houston Criminal Lawyer

Most Medicare payment errors are simple mistakes and are not the result of physicians, providers, or suppliers trying to take advantage of the Medicare system. However, there are a few individuals who are intent on abusing or defrauding Medicare, cheating the program (and in some cases the people with Medicare who are liable for co-payments) out of millions of dollars annually.

The federal government is vigilant in trying to catch institutions trying to bill for services not rendered, creating fraudulent cost reports, making kickbacks or self-referrals, etc. They frequently assemble thorough, well-researched health care fraud cases. You need an attorney with a proven record of success defeating federal charges.

 As health care becomes an increasingly prevalent concern, more lawsuits are filed against health care providers. Meanwhile, laws pertaining to such lawsuits are constantly changing. Any health care provider accused of fraud must hire the best defense attorneys available or risk losing their business to spurious charges.
Richard Kuniansky has successfully represented clients in a number of Medicare and Medicaid fraud cases across the country. If you have been charged with fraud, you need an attorney who is proficient in federal drug law. Trust our experience: these are serious charges that require active and immediate attention. Call us at 713.622.8333 today

Federal & Texas Grand Jury System: Houston Criminal Lawyer

In certain federal crimes, a grand jury is convened to review evidence and hear witness testimony in order to determine if an individual should be indicted for a crime. In Texas, all felonies are charged by an indictment in front of a grand jury. The prosecutor presents the state's evidence to the grand jury, which then decides whether there is enough probable cause to believe that a crime took place.
This process is a mystery to most defendants, and even many attorneys are unfamiliar with how to handle the grand jury process. But even though defense attorneys are not allowed in the room while the prosecution presents their evidence, the grand jury process still presents many opportunities for the defense to influence the proceedings.

The "grand jury", which seems to have been instituted in England about the middle of the twelfth century, is intended to determine cause for criminal prosecution. Though instituted to hold the local community responsible for bringing its malefactors to justice, it has come to be regarded over the centuries as a safeguard against unwarranted prosecution and, as such, was incorporated in the Fifth Amendment to the United States Constitution. This provision has not been made applicable to the states by the doctrine of selective incorporation; however, a provision in the Texas Constitution of 1876 requires grand jury indictment for prosecution of any state felony.

In a Texas grand jury proceeding, a district judge appoints three to five citizens of the county to be jury commissioners, serving either during the current or succeeding term of court. These commissioners then select fifteen to twenty additional citizens of the county to be summoned as grand jurors for the next term of court. Commissioners must, to the fullest extent possible, select jurors who represent a broad cross-section of the population of the county and consider the factors of race, sex, and age. Potential jurors must also meet certain other qualifications, including the ability to read and write.
 Before the grand jury has been impaneled, any person may challenge the entire jury or anyone presented as a grand juror. The term of the grand jury is the same as that of the district court that organized it, with some provision for extension at the judge's discretion. Once twelve qualified jurors are present, the court impanels them as a grand jury, with one juror appointed as foreman.

The grand jury's investigation of any matter may be initiated by the court, the district attorney, its own members, or any credible person. They may summon witnesses by subpoena and examine them under oath. On completion of an investigation the grand jury determines by vote whether or not an indictment should be presented to the court; nine votes are necessary for a decision to indict, and nine members also constitute a quorum.
The grand jury may also make reports to the district court on conditions in the county or the misconduct of an individual. A grand jury indictment is called a "true bill" against a prisoner; a decision not to indict is considered a "no bill."

If you are the subject of a grand jury investigation, Richard Kuniansky knows the challenges the state must overcome to get an indictment: he will use his unique understanding of the Texas grand jury system to build the best possible defense for his clients. For more information visit Kunianskylaw.com

Texas Fraud Charges: Houston Criminal Lawyer: State Law

While federal laws concerning fraud cover virtually any situation involving "misrepresentation to induce one to part with money or property", Texas state laws are more specific and address particular actions such as credit card fraud, forgery and identity theft. Texas state fraud laws are outlined in Penal Code Title 7, Chapter 32, Section 32.31. This section of law specifically addresses Forgery, Credit Card or Debit Card Abuse, Computer Crimes, Telecommunications Crimes, Money Laundering, Insurance Trust and other deceptive practices.
In addition, the Identity Theft Enforcement and Protection Act (SB122) grants the Texas Attorney General's office more authority to file suit against those who commit identity theft, including restitution to victims and fines up to $50,000 per violation. It requires businesses to implement and exercise reasonable procedures to safeguard their clients' information. If an information security breach occurs, they must notify Texans whose sensitive personal information was, or was reasonably believed to be, acquired by an unauthorized person.Section 32.51 of the Texas Penal Code covers fraudulent use or possession of identifying information.

Anyone in Texas who obtains, possesses, transfers, or uses a person’s identifying information without that person’s consent and with the intent to harm or defraud someone commits the crime of fraudulent use or possession of identifying information. Depending on the circumstances of the crime, fraudulent use or possession of identifying information in Texas is either a state jail felony, felony of the third degree, felony of the second degree, or felony of the first degree.

People in Texas commit the crime of unauthorized acquisition or transfer of certain financial information when they, without authority to do so, obtain payment card or financial sight order information by use of any type of electronic, photographic, or recording device; or when they transfer such information to others. Financial sight order information is information contained on a check, debit card, credit card, or the magnetic strip of those cards, such as account numbers, routing numbers, date of card issuance, and similar information.
Obtaining such information is a Class B misdemeanor offense, while transferring such information to a third party is a Class A misdemeanor offense.

Performing fraudulent acts in connection with a credit card amounts to the crime of credit card fraud in Texas, a felony offense carrying a penalty of 180 days to two years in a state prison and/or a fine of no more than $10,000. However, if the offense was committed against an elderly person, the charge may be increased to that of a third degree felony. A third degree felony carries a penalty of two to ten years in a state prison and/or a fine of no more than $10,000.

If you believe you may be under investigation for fraud it is critical to your case that you hire a qualified criminal defense attorney right away. Do not risk having your rights violated by neglecting to retain a skilled, experienced criminal defense attorney. The Houston, Texas law office of Richard Kuniansky will work diligently to ensure your rights are protected.

Fraud Charges: Houston Criminal Attorney: Federal Law

Any criminal activity that involved the United States mail or electronic/digital communications, or both, is considered Mail or Wire Fraud. Many acts that fall under this definition actually use mail, television, radio, or the internet in order to transmit false or fraudulent promises or advertisements to the unsuspecting public. The Federal Government deals very harshly with this violation, being able to fine the violator up to $1,000,000 and send that person to prison for up to 30 years.
It is important to note that a victim does not need to actually be deprived of property or deceived for a conviction under the mail fraud or wire fraud statutes. The intent to deprive a victim of property is enough to convict. It also generally does not matter if the property in question is tangible or intangible. It can be enough to convict someone who intends to deprive a victim of their intangible right to control their assets. Each separate use of wire communication or the mail in furtherance of a scheme generally constitutes a separate offense.

If you viewed the records of all people in prison for drug conspiracies, major fraud, corruption and other non-violent felonies, a surprising number would be convicted of nothing more than wire fraud or mail fraud.
In white collar crime investigations, it's not uncommon for conspiracy charges to be introduced in order to widen the scope of an investigation. Once conspiracy charges are levied against the accused, the hearsay rules that protect a defendant against unsubstantiated claims outside of court, are suspended. This is often used to extract plea bargains from suspects in order to charge others in a crime. With hearsay rules suspended, those who had little - if any - knowledge of mail or wire fraud can find themselves targeted as a prime suspect.

In addition, state and federal authorities commonly seize or freeze the assets of someone indicted on charges of mail or wire fraud. Since a criminal forfeiture is a civil proceeding separate from the accused's criminal trial, the outcome of the one does not effect the other. However, initiating a criminal forfeiture can make if difficult for the accused to provide for his or her defense.

A criminal defense attorney has many options in defending a mail fraud or wire fraud charge. First, the government must be able to prove every element of the crime beyond a reasonable doubt- otherwise there can be no conviction. The government will generally use circumstantial evidence to show a jury that the defendant knew of the fraud, and often the best way to counter such evidence is to introduce evidence of good faith: demonstrating to a jury that a defendant honestly believed that his or her actions were legitimate and sound.

If you believe you may be under federal investigation for a Mail or Wire Fraud Case, it is critical that you hire a qualified criminal defense attorney right away. Do not risk having your rights violated by neglecting to retain a skilled, experienced criminal defense attorney. The Houston, Texas law office of Richard Kuniansky will work diligently to ensure your rights are protected.

Marijuana: Texas Criminal Lawyer: Federal Law

As of this post 23 US states and the District of Columbia have passed laws allowing some degree of medical use of marijuana, and 14 states have taken steps to decriminalize it to some degree. Two states -Colorado and Washington- have legalized marijuana for adult, recreational use. Voters in three more states and our nation's capital will also decide on new marijuana laws in November 2014. Surveys across the country show that a majority of American adults support marijuana legalization in the United States, and that support appears to be growing.

However, under United States Federal law it is still illegal to possess, use, buy, sell, or cultivate marijuana. since the "Controlled Substances Act" of 1970 classifies marijuana as a Schedule I drug. The Federal government has also criminalized marijuana under the Interstate Commerce Clause.

On June 6, 2005, the United States Supreme Court decided Gonzales v. Raich,  which addressed the constitutionality of the federal Controlled Substances Act as applied to individuals who grow marijuana for personal and medical use under the then recently passed California Compassionate Use Act (CUA).
The court held that the federal government has the constitutional authority to prohibit marijuana for all purposes, even if they reside in a state where medical marijuana use is protected under state law.


The Raich decision does not say that state marijuana laws are unconstitutional; nor does it invalidate them in any way. Decisions about prosecution are still left to the discretion of the federal government, and in August 2013 the federal government announced that they would "...no longer actively pursue marijuana offenses taken place in those states that have legalized the small consumption and possession of marijuana." The Drug Enforcement Agency will only become involved if the offense involve violence or firearms, the proceeds go to gangs and cartels, or when marijuana is distributed to those states where it is illegal.

Under current federal law, possession of marijuana is punishable by up to one year in jail and a minimum fine of $1,000 for a first conviction. For a second conviction, the penalties increase to a 15-day mandatory minimum sentence with a maximum of two years in prison and a fine of up to $2,500. Subsequent convictions carry a 90-day mandatory minimum sentence and a maximum of up to three years in prison and a fine of up to $5,000.

• Manufacture or distribution of less than 50 plants or 50 kilograms of marijuana is punishable by up to five years in prison and a fine of up to $250,000.
• For 50-99 plants or 50-99 kilograms the penalty increases not more than 20 years in prison and a fine of up to $1 million if an individual, $5 million if other than an individual for the first offense. 
• Manufacture or distribution of 100-999 plants or 100-999 kilograms carries a penalty of 5 - 40 years in prison and a fine of $2-$5 Million. 
• For 1000 plants or 1000 kilograms or more, the penalty increases to 10 years - life in prison and a fine of $4-$10 Million.

Distribution of greater than 5 grams of marijuana to a minor under the age of 21 doubles the possible penalties; distribution within 1,000 feet of a school, playground, public housing or within 100 feet of a youth center, public pool or video arcade also doubles the possible penalties. Even the sale of paraphernalia is punishable by up to three years in prison.

When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to "life MMS" must serve a life sentence with no chance of parole.

If you have been charged with or are under investigation for a serious crime, we are entirely committed to protecting your rights. Richard Kuniansky will provide a thorough evaluation of all the facts of your case, prepare a powerful defense, and use our strong courtroom skills and extensive experience to effectively advocate on your behalf.