At the Houston Texas Law Offices of Richard Kuniansky we have committed our entire practice to criminal defense. Richard Kuniansky has over 30 years experience in criminal law, the majority of which have been dedicated to defending clients charged with serious federal criminal offenses.
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.
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.
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
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
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.
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.
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.
Many people assume that marijuana-related charges are not as serious other drug charges; however, marijuana possession is not decriminalized in Texas and even a miniscule amount can land you 6 months in jail. Texas also does not recognize any form of medical marijuana, so a medical card or doctor's note will not be a valid defense. If you have been arrested in Texas for a marijuana crime it is very important to contact a Texas criminal law attorney immediately.
Texas has a well earned reputation as being extremely severe in its imposition of penalties for drug use and possession.
Like most states, Texas determines punishment based on the weight or amount of the drug in question. Possession of any amount up to one pound of marijuana (including very small quantities for personal use) will generally carry a sentence of 6 months to 2 years in a state jail and a $2,000 - $10,000 fine. If you have no prior felony convictions and are arrested with a small quantity, the judge still must impose a sentence of probation with drug treatment, although he/she has discretion over the length of probation and whether or not to impose or waive the fines.
But any leniency on the judge's part ends there. For possession of 1-5 lbs. there is no probation and a minimum sentence of 6 months will be imposed. This is also now considered a "state jail felony" which means it will count as a felony on your record, but you will be sentenced to a minimum security prison with non-violent offenders.
For anything over the five pound limit the court will automatically assume you are a major trafficker, and the penalties increase rapidly. You will now be charged with a regular state felony, and likely sentenced to state prison:
5 - 50 lbs: 2-10 years, $10,000 fine
50 lbs to 1 ton: 2-20 years, $10,000 fine
1 ton or more: 5-99 years, $50,000 fine
Texas law also does not recognize "gifts" under simple possession laws. This means that if you simply give somebody a joint, that action carries the same 6-month $2,000 fine as simple possession, but without the probation requirements (i.e. you will likely serve time). If you sell them that same amount, the penalty jumps to 1 year. Penalties for the sale or delivery of marijuana are also assigned by weight in Texas:
1/4 oz - 5 lbs: 6 months - 2 years, $10,000 fine
5 lbs - 50 lbs: 2 - 20 years, $10,000 fine
50 lbs - 1 ton: 5 - 99 years, $10,000 fine
1 ton or more: Mandatory minimum of 10 - 99 years, with a $100,000 fine
If the delivery or sale is to a minor (in ANY amount), punishment automatically increases by an additional 2-20 years in prison. Also, any sale within
1,000 feet of a school or within 300 feet of a youth center, public pool
or video arcade increases the penalty classification to the next
highest level (in some cases a difference of several years). These sentences are for either sale or delivery, meaning that it is irrelevant whether or not you receive compensation or just give it to someone.
As of June 2014, 23 states have legalized cannabis for medical use with three more states pending legislation. Texas does not recognize any form of medical marijuana, so even if you have a doctor's prescription for marijuana issued in your home state, it will become invalid once you cross the Texas state line and all the laws above apply to you.
If you are arrested with marijuana in your possession a medical card or doctor's note will not provide ANY defense. Also, because federal law also does not recognize medical marijuana (even in your home state), carrying medical marijuana over state borders may become a federal trafficking offense.
The laws in this field are extremely harsh and frequently changing, so having up to date facts and advice can be the difference between a minor hassle and a prison sentence. If you have been accused of marijuana possession or distribution, visit www.drug-trafficking-attorney.com or contact the office of Richard Kuniansky at 713-622-8333 for a free consultation.
When a person has been charged with "conspiracy to possess with intent to
distribute" it is not just one offense he is fighting against:
several different violations are involved. As one of the most frequently
charged drug offenses, conspiracy to possess with the intent to
distribute involves taking an active role in planning with others to
possess or distribute an illegal controlled substance.
While possession of a controlled substance is difficult enough to battle
anytime, the collaboration between two or more people in planning or
executing the crime causes the addition of a conspiracy charge. The problem with a conspiracy charge is that there does not have
to be an actual crime committed; prosecution only has to show the
intent to commit a crime for the charges to stick. For anyone facing any of these types of drug charges it is absolutely necessary to obtain experienced representation in order to protect your
rights. There are many variations of cases involving controlled
substances that make it difficult to find a common thread that one can
rely on as a defense. An experienced lawyer will be familiar with how to
handle such cases, and by examining other factors involving the case they can
identify the weaknesses and perhaps have the
charges reduced or even dismissed.
Unlike other drug charges, a conspiracy is merely about entering into
an agreement to break the law. There are several factors that a
prosecutor must prove in order to obtain a conviction. The government must prove two basic elements; first, that there was an agreement between two or more people to
violate a federal drug law. Second, it must be shown that each alleged
conspirator knew of the agreement and joined it.
Drug conspiracy charges are often leveled against individuals who
possess drug paraphernalia, scales, baggies or a substantial amount of
cash; although minor crimes in and of themselves, this evidence may be used by the prosecutor to argue the case that
the intention was to distribute the drugs to another individual or
party.
Even if an individual does not know who the other individuals involved
in the alleged conspiracy are and has no knowledge of the details of the
illegal scheme, he or she may become a member of the conspiracy.
Willfully joining the unlawful scheme, even on only a single occasion
can be sufficient for a conviction.
If you have been charged as a drug dealer or facing serious drug trafficking charges, you need an attorney who is proficient in federal drug law. Trust our experience: visit drug-trafficking-attorney.com or contact Richard Kuniansky at (713) 622-8333 for a free consultation.
If you have had a drug arrest and are subsequently found guilty of possessing or trafficking a controlled substance, the sentence can range from a fine and counseling to years of incarceration in prison. The factors determining the outcome depend upon the amount and kind of drug as well as the quality of your legal representation.
In Texas state court, felony drug cases are classified as first degree, second degree, third degree, and state jail felony. The first degree is the most serious and carries a maximum sentence of imprisonment for life.
Drug crimes are aggressively prosecuted in Texas. All too often individuals are convicted of a drug crime despite the fact that the state has little evidence to hold down the charge. In addition, the alleged offender’s constitutional rights may have been violated during the arrest, thereby nullifying the charges.
Possession with the intent to distribute drugs, sometimes called possession with intent to sell or possession for sale, involves
two basic elements; possession of the drug itself, and evidence of the intent to sell or distribute the illegal substance. Constructive possession can be shown simply by incriminating circumstances.
It is not necessary for the prosecution to show that the accused had actual
knowledge of the presence of the drugs; it is only necessary to show that the defendant
should have known that the drugs were present.
The second element to a charge of drug possession with intent to
sell, is the actual "intent". This is generally demonstrated by circumstantial evidence, although an attempt to sell to a
police officer or evidence obtained from buyers may be used as direct
evidence of intent. Circumstantial evidence of intent to sell narcotics
or other drugs may include having a quantity of the drug greater than
would be reasonable if the drug was for personal use, having possession
of paraphernalia used for packaging or distributing drugs such as scales, large amounts of cash, or behaviors such as multiple brief meetings with visitors to your home. A defendant need notactually have sold anything in
order to be charged with possession with intent to sell. The mere fact
of intending or planning to sell/distribute the drug - even for free -
may be sufficient as long as the prosecutor can
show convincingly that you had the intention to do so.
Texas state
law does not distinguish between transporting drugs and distributing drugs.
If you are charged with delivering drugs, even if they aren't yours, you
will be facing the same penalties as someone charged with selling
drugs. Depending on the amount of illegal substance involved, you could
be charged with the more serious crime of drug trafficking.
The factors
influencing which sentence will be imposed are: (1) the amount of the
drug being distributed or delivered; and (2) the type of drug and which
of the four groups of drugs it is classified under. The smaller the
amount of a drug in a certain group, the lighter the sentence may be. The drug distribution and delivery laws can be found in § 481.112-481.114 of the Texas Controlled Substances Act.
Texas has some very heavy penalties for drug trafficking. Sentences involved may range anywhere from 180 days to two years
in state jail and/or a fine of no more than $10,000 for a state jail
felony, to life in the Texas Department of Criminal Justice or a term of
15 to 99 years in prison and/or a fine of not more than $250,000 for
the heaviest first degree felony. The harshness of the sentence imposed
depends on how much of the drug is being trafficked. For example,
trafficking or distributing less than one gram of a substance in the
first grouping of drugs carries a state jail felony charge, whereas
trafficking 400 grams or more of any one of the same drugs carries a
first degree felony charge that may include a life sentence.
Because the drug distribution statute requires knowledge and intent to
constitute an actual offense, your attorney may be able to prove that you had a lack of knowledge or were forced to distribute or deliver the drug. Proving either of these
could be enough to get your charges reduced or dismissed outright. There
is also the possibility of accepting a plea bargain in your drug
delivery case: agreeing to plead guilty to a lighter
offense or reduced sentence.
"Drug Distribution" charges can be filed even in cases involving small amounts of controlled substances. 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.
Mandatory Sentencing isthe
automatic imposition of a minimum number of years in prison for specific
crimes. By design, mandatory sentencing laws
take discretion away from prosecutors and judges so as to impose harsh
sentences, regardless of circumstances.
As the "War on Drugs" reached its peak in the 1980s, the U.S. government began to set mandatory minimum sentences in place for federal drug crimes. This concept of mandatory minimum sentences has also been incorporated into the laws of many, if not most, states. As a result they have led to a trend of overly harsh sentencing for individuals who are convicted of federal and state drug crimes.
Mandatory minimum sentences are designed so that individuals who are convicted of certain types of drug crimes (or those who have certain mitigating factors in their federal drug cases) cannot have their prison terms set lower than a specific threshold, even if a judge believes the pre-set sentencing standards to be too severe for a particular case. There have been many cases in which lower-level, nonviolent drug offenders are slapped with extreme sentences simply because of the technicalities of the mandatory minimum sentence system that is in place.
According to Human Rights Watch,
almost half (48%) of defendants who are charged with federal drug
crimes are those who carry out "low-level functions." These are roles
such as couriers or street-level drug dealers. Yet, three-fourths of
those defendants receive convictions that make them subject to mandatory
minimum sentences.
Texas is well known for its strict controlled substance and
narcotics drug possession laws. A conviction possession of any illegal drug can mean that you face jail time, probation, fines, and a mandatory 6 month loss of your driver’s license. Although all states regulate the possession of controlled substances and the
penalties for illegal possession, Texas not only classifies commonly abused
drugs like marijuana, heroin, and cocaine but also the compounds
used to manufacture them and, in many cases, the paraphenalia used to ingest them.
The Texas Controlled Substances Act provides
for the finer points of law to be applied in cases of possession of
illegal drugs. This act separates most controlled substances into different groups and assigns the penalties for possession. In most cases minimum sentences are outlined based on the quantity of drugs in your possession. For instance, Texas State Law dictates that possession of more than 5 lbs. of marijuana is a Third Degree
felony punishable by a mandatory minimum sentence of no less than 2
years in prison.
While change is being proposed concerning mandatory minimum
sentences, defendants today still have to deal with the reality of these
overly severe penalties for federal drug crime convictions.
Federal and State laws still require mandatory minimum sentences for first time offenders in many drug cases, sentences that are often disproportionate to the crimes they are charged with. 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.
Methamphetamine (also known as “crystal meth”) is a significant drug threat in Texas and throughout the USA. High purity, low
cost methamphetamine has become readily available and widely abused,
particularly in rural areas. Over the last two decades meth use has increased dramatically, resulting in what is now referred to as a “meth epidemic.”
Although meth produced in Mexico is still predominant in Texas, methamphetamine production is increasing despite the number of illegal labs seized by law enforcement officials. Both criminal groups and
independent laboratory operators produce methamphetamine in ounce quantities using the Birch reduction
method. Street and prison gangs also distribute wholesale quantities of the drug.
The ready availability of precursor chemicals and reagents used
in methamphetamine production contribute to the threat posed by methamphetamine.
Laboratory operators in the state commonly extract ephedrine or pseudoephedrine
from over-the-counter medications and purchase other
chemicals such as iodine, lithium, and ether from businesses that distribute
these products for legitimate purposes. Methamphetamine producers in Texas also
obtain large quantities of precursor and essential chemicals in Mexico. They
typically smuggle these chemicals through the Texas POEs in private vehicles.
They also smuggle or transport chemicals into Texas by bus, train, commercial
and private aircraft, package delivery services, and couriers on foot. Methamphetamine producers in the state also steal anhydrous
ammonia, a common farm fertilizer, from farm supply stores and farmers' fields.
While methamphetamine may be used legally when obtained with a
prescription, it is otherwise considered a “controlled substance” whose
possession, sale, or manufacture is against the law (21 U.S.C. § 844(a)). Meth is a particularly dangerous drug, causing many health and
safety problems in those who use or manufacture it. In response to this threat both State and Federal laws have been passed carrying increasingly severe penalties for persons convicted of offenses involving illegal possession, sale, or manufacture of methamphetamines.
Federal courts have deemed methamphetamine a schedule II drug along with PCP and cocaine; penalties for possession of five to 49 grams of pure meth or 50 to 499 grams of methamphetamine mixture include prison sentences between
five and 40 years for the first offense, and a minimum of 20 years to life in prison if death or serious bodily injury is
involved. In addition, fines of up to $25 million may be imposed.
If you are convicted of a second
federal meth offense you face between 10 years and life imprisonment.
If death or serious bodily injury occurs during your crime, you are
sentenced to life imprisonment. Fines go up to $50 million.
Through the Texas Controlled Substances Act (TCSA), the Texas Legislature has also criminalized the possession of a variety of materials associated with the possession, distribution and manufacturing of methamphetamine. While punishments under the TCSA vary according to the type and amount of materials associated with methamphetamine possessed, almost all punishments involve more than one year of imprisonment.
Texas assigns methamphetamine to
penalty group 1. The punishment for mere possession of methamphetamine
varies according to the aggregate weight;
Possession of less than 1 gram is punishable by between
180 days and two years of imprisonment.
1 - 4 grams is punishable by between two to 10 years
4 - 200 grams is punishable by two to 20 years of
imprisonment
200 - 400 grams is punishable
by five to 99 years of imprisonment
400+ grams
carries a punishment of between 10 and 99 years of imprisonment.
There are increased penalties for the possession with the intent to manufacture
or distribute methamphetamine. Under the manufacture or delivery statute, possession of between 1 and 4 grams is punishable by
between two to 20 years of imprisonment; 4 -
200 grams carries five - 99 years of imprisonment, 200 - 400 grams carries 10 -
99 years imprisonment and a fine of up to $100,000, while the possession
of over 400 grams is punishable by between 15 and 99 years of
imprisonment and a fine of up to $250,000.
In addition, the TCSA criminalizes the possession of
large quantities of chemicals used in the production of methamphetamine,
such as anhydrous ammonia and pseudoephedrine. Specifically, a Texas
resident may not possess:
More than 300 tablets containing ephedrine or
pseudoephedrine,
Lithium metal removed from a battery and immersed in
mineral spirits or kerosene,
Any three of the following five categories
of substances used in the production of methamphetamine: lithium,
sulfuric acid, organic solvents, petroleum distillates and salt.
The
possession of precursor materials for the production of methamphetamine
carries a punishment of imprisonment of between two and 20 years.
Texas also criminalizes the possession of methamphetamine paraphernalia such as needles, bottle caps or
hollowed-out pens. If a person possesses methamphetamine paraphernalia
for her own use, the maximum punishment is a $500 fine. If a person
intends to deliver methamphetamine paraphernalia for the use of others,
the maximum punishment is between 90 days and one year of imprisonment.
Delivering methamphetamine paraphernalia to a juvenile carries a penalty of between
180 days and two years imprisonment.
If you are facing serious drug trafficking charges, you need an attorney who is proficient in federal drug law. Trust our experience: contact Richard Kuniansky right away at drug-trafficking-attorney.com or call (713) 622-8333 for a free consultation.
When most people think of illegal drugs, they think of heroin or
cocaine. However, illegal prescription drug use is on the rise: according to the National Household Survey on Drug Abuse an estimated 36 million U.S. residents aged 12 and older have abused prescription drugs at least once in their lifetime. Prescription Fraud encompasses a number of different offenses, including illegally obtaining prescription medications through "doctor shopping" or by creating fake prescriptions, and the possession of prescription drugs without a license or distribution to individuals not authorized to use them.
Although almost any illegally obtained prescription medication can
lead to arrest and prosecution for prescription fraud, painkillers and
steroid compounds are among the most commonly cited drugs in these
cases. Opium-based medications and psychoactive drugs such as Hydrocodone, OxyContin and Vicodin are especially
popular but lower-cost prescription drugs such as
Viagra are also sought out for resale.
Although many cases of prescription fraud are linked to criminals who seek to profit from the resale of the drugs or to people who take them for "recreational" purposes, thousands of people with legitimate needs for pain medication are also forced into forging prescriptions or shopping around for a doctor who
will renew a prescription illegally due to prohibitive healthcare costs or other extenuating circumstances. They don't particularly intend to commit a crime, they just want relief from the
pain.
There are many ways people might attempt to obtain prescription drugs, including:
Using someone else's prescription and ID to obtain drugs.
Altering the amount of an existing prescription to get a greater quantity.
Using a false registration number to call in a prescription.
Stealing a prescription pad from the doctor's office.
Using a computer to create a false prescription.
All of these activities are illegal, and could lead to charges of prescription fraud.
Texas Health & Safety Code § 481.129
explicitly outlaws the dispensing or prescribing of a controlled
substance when such prescription is not valid or required. This includes
issuing a prescription that is forged or that bears a forged signature;
using a prescription that was issued to another individual; and
possessing a prescription obtained through fraud or forgery. Whether the
deception was achieved orally, by telephone, or in by any other form of
communication, it is a felony punishable by a prison sentence and
thousands of dollars in fines.
It is also illegal to disguise or otherwise alter the labeling on a
drug, or to alter the appearance of a drug with the intent to make it
appear as a prescription-only drug. This is a Class A misdemeanor
punishable up to a year in jail, a fine of up to $4,000, or both. If
convicted of such an offense, you could suffer permanent consequences in
multiple areas of your life. Your career could be over -especially if
convicted of a felony- and your relationships with friends and family
could be ruined.
Internet prescription fraud typically involves international or
interstate trafficking. As a result, these cases are generally
investigated by federal agencies that include the U.S. Drug Enforcement
Agency. In some cases, the Federal Bureau of Investigation or U.S.
Postal Inspectors may also be involved in the investigation process.
The sentences and penalties for prescription fraud can vary depending
on which type of drug it is and the amount of drugs involved.
Prescription drugs are categorized into five different penalty
categories, schedule I and II being the most severe. Schedule I and II
substances include any opiates, Heroin, Morphine, Codeine, Hydrocodone,
oxycodone, Marijuana, Psilocybin, Aminorex, Cathinone, and depressants.
According to the Texas Controlled Substances Action, §481.129, any
person who willingly commits prescription fraud by selling or
trafficking prescription drugs could face the following penalties:
Selling or distributing a schedule I or II substance is a second
degree felony charge which is punishable for up to 20 years in prison
and/or a fine up to $10,000.
Selling or distributing a prescription drug found in schedule
III-IV is considered to be a third degree felony which carries a maximum
prison sentence of 10 years and/or a fine up to $10,000.
Selling or distributing a schedule V prescription drug will be
classified as a Class A misdemeanor and could lead to a 1 year jail
sentence and/or a fine of no more than $4,000.
If you or someone you care about has been charged with an offense
connected to prescription drug fraud or illegal possession or
distribution of prescription medications, you need the help of a
knowledgeable and aggressive Houston drug lawyer to ensure the best
possible defense against these serious federal and state charges. Call 713-622-8333 or visit http://www.kunianskylaw.com for a free consultation.
"No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use,
without just compensation." -U.S. Constitution: Fifth Amendment
Miranda v. Arizona:
In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody,
before being questioned he or she must be told of the Fifth Amendment
right not to make any self-incriminating statements. As a result of
Miranda, anyone in police custody must be told four things before being
questioned:
You have the right to remain silent.
Anything you say can and will be used against you in a court of law.
You have the right to an attorney.
If you cannot afford an attorney, one will be appointed for you.
The Court actually consolidated four separate cases regarding the admissibility of evidence obtained during police interrogations:
Ernesto Miranda was arrested for kidnapping and rape. Mr. Miranda was an immigrant, and although the officers did not notify Mr. Miranda of his rights, he signed a confession after two hours of investigation. The signed statement included a statement that Mr. Miranda was aware of his rights.
Michael Vignera orally admitted to the robbery to the first officer after the arrest, and was held in detention for eight hours before he made an admission to an assistant district attorney. There was no evidence that he was notified of his Fifth Amendment constitutional rights.
Carl Calvin Westove, arrested for two robberies, was questioned over fourteen hours by local police then was handed to FBI agents who took signed confessions from him. The authorities did not notify Mr. Westover of his Fifth Amendment constitutional rights.
The fourth Defendant, Roy Allen Stewart, was arrested along with members of his family (although there was no evidence of any wrongdoing by his family) for a series of purse snatches. There was no evidence that Mr. Stewart was notified of his rights. After nine interrogations, Mr. Stewart admitted to the crimes.
In the Miranda case the Supreme Court held that the Constitution’s Fifth Amendment prohibition against self-incrimination applied to an individual in police custody or ‘deprived of his freedom of action in any significant way.’ In order to safeguard this right, the Court ruled that prior to being questioned suspects have to be informed of their rights.
A statement obtained without compliance with these rules is inadmissible, as is the fact that a defendant has chosen to exercise the right to remain silent ‘in the face of accusation.’ Although waiver of these rights is possible, the Court emphasized that ‘a heavy burden rests on the government’ to prove that such a waiver has actually taken place.
The Court based its holding on an extensive review of actual police interrogation practices; in addition to outright physical abuse and the ‘third degree,’ the police had frequently obtained confessions through a variety of ploys and subterfuges, many of which were codified in police manuals and texts. The Court found that ‘the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.’ Hailed by civil libertarians as a victory for individual rights, the decision was attacked by conservatives as undermining the efforts of law enforcement officials.
Meanwhile, a series of post-Warren Court decisions have significantly limited the applicability of Miranda while not overruling the case outright. One of the more influential of these has been Salinas v. Texas decided on June 17, 2013.
Salinas v. Texas:
In 1992 Houston, Texas police were investigating the murders of two brothers, Juan and Hector Garza. There were no witnesses: only shotgun shell casings left at the scene. Police determined that Genovevo Salinas had been at a party at the brother's house the night before the shooting. Salinas lived with his parents, and upon visiting the home police received consent to search the premises. Salinas agreed to give the police his shotgun for testing, and voluntarily accompanied the officers to the police station for an interview.
Police did not read Salinas any Miranda warnings, nor were they required to do so, as he was not in custody. For almost an hour, Salinas answered a series of questions that the police posed. At one point, however, police asked him “if the shotgun [he had given them] would match the shells recovered at the scene of the murder.” At that point Salinas "stopped talking, shuffled his feet, bit his lip, and said nothing".
Lacking probable cause to arrest Salinas for murder, he was released.
The police subsequently received a ballistics report that did identify a match between the casings from the murder scene and the shotgun from Salinas’s house, and the State charged him with two counts of murder. However, the police were unable to locate Salinas for fifteen years. He was finally arrested on an entirely unrelated traffic warrant, at which time he was taken to trial for the murders. The first trial ended in a mistrial, and a second prosecution began.
In closing argument during Salinas’s second trial, the prosecution emphasized the fact that Salinas had remained silent when police asked whether the shotgun from his home would match the shells recovered from the murder scene. The government said the following to the jury:
“The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody -there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no. An innocent person is going to say: What are you talking about? I didn’t do that.. He didn’t respond that way. He wouldn’t answer that question.”
At the end of the second trial the jury came back with a guilty verdict, and Salinas appealed claiming that the prosecution’s comment on the defendant’s silence unconstitutionally penalized Salinas’s exercise of his Fifth Amendment right to remain silent.
The Salinas case made it to the Supreme Court, where a 5-4 majority
spearheaded by Justices Alito, Kennedy, and Roberts ruled against him. The majority opinion states that Salinas' Fifth Amendment protection
claim failed because Salinas "did not expressly invoke" the Fifth
Amendment in response to the officer's question about the shotgun.
This isn't the first time that the Supreme Court has asserted the "use it or lose it" doctrine in Mirandacases; in Berghuis v. Thompkins (2010),
the Court ruled that a murder suspect who remained silent through 3
hours of police interrogation before breaking down and responding "Yes"
to the question, "Do you believe in God?" waived his right to remain
silent.
The difference in Salinas v. Texas is that Genovevo Salinas was never under arrest: he was under the impression that the police wanted him “to take photographs and to clear him as [a] suspect.” He volunteered to help the police in their investigation and exercised his right to remain silent.
In a vigorous dissent Justices
pointed out that the Court had repeatedly held that “no ritualistic
formula is necessary to invoke the privilege,” and that whether the
right was invoked turned on the circumstances. The particular
circumstances in this case -questioning of an unrepresented suspect in a
criminal investigation at the police station- made it obvious that
Salinas was invoking his fundamental Constitutional right to remain
silent.
As the Salinas dissent points out, because of its focus, the
plurality’s ruling seems to open up future dispute regarding whether the
individual’s words or actions are clear enough to invoke the
privilege. Decisions in this area suggest that if a witness mentions
the word “lawyer” in declining to speak to investigators, courts are
more likely to view that as an invocation that cannot be commented
upon. Future decisions might also limit Salinas’s
rule to cases where the witness was silent on only one question or a
limited number of questions in the midst of an interview, viewing an
express refusal to answer any further questions as clear enough notice
that the witness is invoking the Constitutional privilege.
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. For more information please visit www.kunianskylaw.com or contact us at 713-622-8333 for a free initial consultation.
Enacted in 1970, the federal Racketeer Influenced and Corrupt
Organization Act (RICO) was designed to combat organized crime. RICO was considered largely successful in contributing to the
dismantling of the country’s major Mafia organizations by attacking
their financial bases and making it more difficult for these groups to
infiltrate legitimate business organizations.
The RICO Act focuses specifically on racketeering, and it allows the leaders of a syndicate to be tried for the crimes which they ordered others to do or assisted them, closing a perceived loophole that allowed someone who told a man to, for example, murder, to be exempt from the trial because he did not actually commit the crime personally. RICO was enacted by section 901(a) of the Organized Crime Control Act of 1970 (Pub.L. 91–452, 84 Stat. 922, enacted October 15, 1970). RICO is codified as Chapter 96 of Title 18 of the United States Code, 18 U.S.C. § 1961–1968.
Under the close supervision of Senator John Little McClellan, the Chairman of the Committee for which he worked, G. Robert Blakey drafted the "RICO Act," Title IX of the Organized Crime Control Act of 1970, signed into law by Richard M. Nixon. Beginning in 1972, 33 States adopted state RICO laws to be able to prosecute similar conduct.
Under RICO, a person who has committed "at least two acts of racketeering activity" drawn from a list of 35 crimes—27 federal crimes and 8 state crimes—within a 10-year period, if such acts are related in one of four specified ways to an "enterprise," can be charged with racketeering. Those found guilty of racketeering can be fined up to $25,000 and sentenced to 20 years in prison per racketeering count. In addition, the racketeer must forfeit all ill-gotten gains and interest in any business gained through a pattern of "racketeering activity." RICO also permits a private individual harmed by the actions of such racketeers to file a civil suit; if successful, the individual can collect treble damages (damages in triple the amount of actual/compensatory damages).
When the U.S. Attorney decides to indict someone under RICO, he or she has the option of seeking a pre-trial restraining order or injunction to temporarily seize a defendant's assets and prevent the transfer of potentially forfeitable property, as well as require the defendant to put up a performance bond. This provision was placed in the law because the owners of Mafia-related shell corporations often absconded with the assets. An injunction and/or performance bond ensures that there is something to seize in the event of a guilty verdict. In many cases, the threat of a RICO indictment can force defendants to plead guilty to lesser charges, in part because the seizure of assets would make it difficult to pay a defense attorney. Despite its harsh provisions, a RICO-related charge is considered easy to prove in court, as it focuses on patterns of behavior as opposed to criminal acts.
While its original use in the 1970s was to prosecute the Mafia as well as others who were actively engaged in organized crime, its later application has been more widespread. Today, these laws are applied broadly to cover a wide range of crimes, especially those related to "street gang" activity.
If you or your loved one is suspected of racketeering under the
Racketeer Influenced and Corrupt Organizations Act (RICO), obtain
experienced legal help. The federal government devotes substantial
resources pursuing additional penalties for individuals convicted at the
state level for criminal acts tied to a gang or a network of people.
Unlike state laws, which are designed mostly for addressing
individual crimes, the RICO law permits prosecution of gang members for
being part of an enterprise that commits a series of crimes. A
racketeering conviction involving murder carries a life sentence without
parole. Under the new Federal anti-crime legislation, some of those
convictions will carry a possible death sentence.
Also unlike
state courts, Federal courts permit wide use of uncorroborated testimony
from accomplices, which is often essential in proving a criminal
conspiracy. And prosecutors say it is easier to have a defendant held in
prison without bail before a trial in the Federal system than in the
state system.
Any agreement between two parties to commit a crime at a future time is considered conspiracy. Conspiracy and racketeering can sometimes be charged in conjunction and are both illegal in the United States. If you have been arrested for conspiracy or for racketeering and violating the RICO Act, contact us today at 713-622-8333 or visit www.kunianskylaw.com for a free consultation.
Child pornography is defined as “any image depicting a minor engaging in
sexual conduct”, with a minor being anyone under the age of 18. The
definition of “sexual conduct” is also very broad, with many acts
falling under the term’s umbrella. It illegal to possess, promote, distribute, manufacture, or
transmit these materials in the USA and most other countries. The distribution of child pornography has increased exponentially with the advent of the Internet. The governments and law enforcement on state, federal and international levels are active in their attempt to stop the creation and/or distribution of
illicit content on the web by enacting tough laws to imprison
and label persons convicted of its creation, distribution or
possession.
Charges of dissemination of child pornography require that
the person has the intent to distribute the images to others. These charges are often brought against individuals using file sharing
programs. Peer-to-peer (or P2P) file-sharing software allows computer users to
remotely share files, including images and videos, with other users
across the world who have the same software installed. The complex settings in P2P
software make it difficult for a user to know whether he or she has
turned off sharing of images, videos or other files.
These programs are enticing and free to download from any
number of internet sites, and they essentially network any computers on the
internet that use the same or similar programs. When these
programs are installed on a computer, by default they may allow others to view and access data contained in a file designated for
sharing on your computer. Without
knowing how the program defaults work, a person may easily disseminate
contraband images without the requisite intent to do so.
Law enforcement officers investigating child pornography monitor peer
to peer file sharing networks and look for illegal files available for
downloading and seek out those who may be downloading them. A large
number of movies and pictures of minors involved in sex acts have been
documented and victims identified which aides law enforcement in their
investigation, especially when it comes to peer-to-peer networks.
State and federal criminal laws differentiate between
possession of child pornography and distribution of child pornography. In the federal criminal justice system, a conviction for the
receipt of child pornography carries a mandatory five-year minimum
sentence. Both possession and distribution of child pornography average
an eight-year-prison sentence but often are 15 years or longer.
There are many ways a person can acquire images on a computer that do not mean that the user had the requisite intent or knowledge to
possess the image. Computers may have many users; that means
determining which user may have accessed, downloaded or disseminated
child pornography may be a significant defense issue.
Even a one-time user of a computer may contaminate its hard drive or
cache memory with illegal material: this is particularly true for computer
systems that share a network at
home or work.
Additionally, files may be downloaded blindly without knowing
specifically about their content. For example, images may be
downloaded by clicking on a link without first viewing the content of
the image being downloaded. Images can also be downloaded in
bulk where each image is not reviewed before the download; two simple
examples may be multiple images compiled in a
Zip or RAR file, or highlighting a series of links for download from file
sharing programs such as Limewire, MP3 Rocket or Kazaa. Anytime an image is viewed on a computer, that image is "cached" by
the web browser. That means it may exist on the computer without the
person ever making an attempt to download the image. Though the person
may have been aware of what they were viewing, they may have been
unaware that they were automatically downloading the image, and therefore didn't "knowingly possess" it.
There is no measure of the damage a child pornography
conviction could have on an individual for the rest of his or her life.
If you are in need of an experienced and effective criminal defense
lawyer for firm advocacy in a child pornography or Internet Crime
Against Children charge, contact us today at 713-622-8333 or visit www.kunianskylaw.com for a free consultation.
Federal agents in several states are investigating illegal luxury car exports that auto manufacturers claim are undermining the vehicle value and volume positioning in American and foreign markets. So far, Secret Service agents have seized luxury cars including BMWs, Audis, Ferraris and Porsches, along with millions of dollars from bank accounts that agents claim have been used to illegally sell vehicles in foreign markets by circumventing the legal export process.
According to an affidavit filed in federal court, auto manufacturers have contracts with U.S. dealerships allowing domestic-only car sales and transactions and specifically prohibit international sales. If vehicles are illegally exported, it causes "financial problems" for manufacturers. The federal government claims that businesses purchasing new
luxury cars from dealerships in the United States and selling them to other
companies, which then ship them to China, are potentially violating
customs laws and deceiving auto manufacturers which try to keep tight
control over sales to domestic dealers and to foreign countries.
In cases of illegal exporting, foreign brokers receive orders for specific cars or car types from potential buyers. The brokers then use the Internet to find "straw buyers," or people who use broker funds to buy the cars in exchange for small profits. The straw buyers then purchase the cars from dealerships, which are not told the vehicles will be exported, and the cars are then taken to ports and transported overseas.
Only two cases have been successfully
prosecuted: in one, two California men pleaded guilty in the spring to charges
of mail fraud and violating US customs law for planning to export 93
cars worth over $5.5 million, but they were not given jail time.
Unfortunately, the Government has concealed from the courts the fact that there is
ABSOLUTELY NOTHING illegal about exporting a vehicle, and they appear to be
choosing to treat the various car dealerships as “victims” in a victimless "crime".
Charges are based on the possibility of fraud, either through the use of "straw buyers" who misrepresent their intended use of the vehicle to the dealership, or through discrepancies in U.S, Customs law regarding the definitions of "new" vs. "used" in customs export declarations.
In the previously mentioned case, the mail fraud count apparently arises from allegations that the defendant caused straw buyers not only to purchase luxury cars for re-sale abroad but also had them register themselves as New Hampshire residents who then obtained New Hampshire driver's licenses under false pretenses. The fraudulent export declaration count arises, in part, from the defendant's representation on a shipper's expert declaration that the exported automobile was "used" as opposed to "new."
The export of any and all merchandise from the United States must comply with all United States statutes and regulations related to exportation. The relevant regulations do not prohibit the export of new cars. Instead, they establish rules for exporting used cars. According to these rules, a person attempting to export a used car must present to Customs certain enumerated documents that clearly identify the vehicle and the Vehicle Identification Number. The documents may be Certificates of Title or a Manufacturer's Statement of Origin. The regulations define the term "used" as "any self-propelled vehicle the equitable or legal title of which has been transferred by a manufacturer, distributor or dealer to an ultimate purchaser."
The Secret Service and Homeland Security have become involved in this so-called "scheme" with the intent of seizing millions of dollars worth of property and cash assets. It is anticipated that most defendants will be offered plea deals which allow the government to keep these assets in exchange for probation and small fines. If you or someone you know has been targeted by the federal government in a case involving Mail Fraud, Wire Fraud or U.S. Customs law you have constitutional rights that should be protected.
If you have had property seized by the police or other government agency it is critical to your case that you hire effective legal representation right away. Do not risk having your rights violated by neglecting to retain a skilled, experienced criminal defense attorney. Contact the Houston, Texas, law office of Richard Kuniansky today at 713-622-8333: we will work diligently to ensure your rights are protected.
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 their strong courtroom skills and extensive experience to effectively advocate on your behalf.
With more than a decade in prosecution
and over 30 years of criminal defense, Richard Kuniansky has the
experience to achieve results that are matched by few attorneys in his
field.
Richard Kuniansky believes that the most successful defense is comprised of a combination of elements:
First, the attorney must have a thorough understanding of how the Government intends to prove its case.
Second, the attorney must thoroughly prepare his case by investigating all of the facts as well as the applicable law.
Third, the attorney must have the trial skills necessary to
present this defense in the most forceful and successful manner
possible.
Mr. Kuniansky's experience and
hard work ethic allows him to combine all of these elements in
successfully defending his clients.
Mr. Kuniansky has both prosecuted and defended some of the largest fraud cases against the United States government. He was assigned to the Presidential Drug Task
Force as a prosecutor, and has defended major drug cases across the
country with over 100 cases going to trial. Mr. Kuniansky is admitted to
practice in the United States Supreme Court, Texas State and Supreme
Courts, the U.S. Court of Appeals for the Fifth and Eleventh Circuits,
all U.S. District Courts within Texas, the U.S. District Court for the
District of Arizona, the U.S District Court for the Northern District of
Georgia, and Georgia state courts.
Mr. Kuniansky is board certified in criminal
law by the Texas Board of Legal Specialization. He has been awarded the
Martindale-Hubbell AV rating for professional excellence and was named a
Texas Super Lawyer in 2004. He graduated from the University of Georgia
with a finance degree in 1975, and graduated Order of the Coif from
Emory Law School in 1978. Click here to learn more about him.
If you believe you may be under federal or state
investigation for a crime, it is critical to your case that you hire a
qualified criminal defense attorney right away. The law office of
Richard Kuniansky will work diligently to ensure your rights
are protected. Contact us today at (713) 622-8333 or visit www.kunianskylaw.com.
