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.
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.
