Expansions of the RICO Statute

 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.

Influences of Peer to Peer Software in Child Pornography Cases

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.

Is Exporting Luxury Automobiles a Crime?

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.

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More information:
Mail and Wire Fraud Criminal Defense
Criminal and Civil Forfeiture Defense
New Hampshire case throws a wrench into auto export business (News Article)Don't Let The New Hampshire Export Case Throw A Wrench In Your Business (FaceBook Page)