Houston Lawyer Charles Johnson
Tag Archive for white collar crimes
The Federal crime of Money Laundering is traditionally understood to be the practice of filtering “dirty” money, or ill-gotten gains, through a series of transactions until the funds are “clean,” or appear to be proceeds from legal activities. The United States Criminal Code takes a broader stance towards money laundering, and criminalizes knowingly engaging in a broad array of financial transactions that involve money either derived from or meant to promote various illegal activities, or that involve certain elements of deception. While money laundering charges are often perceived as related with drug crimes, they are more frequently related with business-related crimes. For example, money laundering charges may be associated with illegal funds obtained through business fraud, mortgage fraud/real estate fraud schemes or other white collar crimes.
The Charles Johnson Law Firm represents individuals and institutions in matters such as:
- Hiding money
- Failing to file require cash transaction reports
- Making multiple cash withdrawals or deposits slightly below the $10,000 reporting threshold
- Evading taxes by underreporting income
- Alleged Patriot Act violations
- Illegal wire transfers
- Financial transactions involving proceeds of unlawful activity
- Other illegal transactions
- Federal criminal appeals involving money laundering
Such activities are often viewed by federal prosecutors as indicators of money laundering. Houston Money Laundering Lawyer Charles Johnson will provide a vigorous defense of clients who have drawn scrutiny from the federal government for their financial transactions. If the government is able to make the case that your financial transactions were an effort to “launder” money received from criminal activities such as drug trafficking or weapons trafficking, you will face forfeiture of your assets. Houston Lawyer Charles Johnson is available to speak with you directly about your case, anytime night or day, at (713) 222-7577 if you have been charged with or are being investigated for Money Laundering.
Overview of Money Laundering in Texas
Although money laundering can be a complex process, it usually involves three distinct steps that can occur simultaneously or sequentially. These steps are referred to as (1) Placement, (2) Layering, and (3) Integration.
- Placement is the initial process of getting illegal funds into “the system,” or placing unlawful proceeds into legitimate financial institutions. A common technique used for placement is structuring, or “smurfing,” which involves dividing the funds into multiple deposits of cash that are below reporting thresholds and then depositing the funds at one or more institutions, using one or more individuals to make the deposits. Placement may also be accomplished by purchasing money orders or travelers checks at one institution and depositing them into accounts at other institutions.
- Layering is the process of converting funds after they have entered the legitimate system. This step involves a series of complex financial transactions that move the funds in order to distance them from their illegal source. For example, dirty money may be converted to clean money through the purchase and sale of stocks, bonds, art, or jewelry. It may also be wired as payment for non-existent goods, disbursement to a non-existent borrower, or simply a transfer to another account.
- Integration is the process in which the illegal funds re-enter the legitimate economy and become virtually indistinguishable from legal funds. The newly cleaned funds, often commingled with legitimate funds, are then ready for use, be it in investing in real estate, purchasing luxury items, or financing business ventures.
Common elements that drive the efforts of money launderers throughout this three step process include “the need to conceal the origin and true ownership of the proceeds, the need to maintain control of the proceeds, and the need to change the form of the proceeds in order to shrink the huge volumes of cash generated by the initial criminal activity.” It is important, when reviewing literature on money laundering, to be aware that a conviction for the crime of money laundering may not necessarily reflect activity that would traditionally be understood to constitute money laundering. For example, someone who buys legitimate goods online commits money laundering, under the federal statute, if the supplier is outside of the country and the supplies are intended to facilitate one of several crimes — even if the product is itself legal and is being used in a legal way. (For example, purchasing napkins in such a way would be money laundering, if they were to be used by an illegal casino.)
Identifying and verifying money laundering is a difficult task, partly because of the complexities of the multi-transactional process but also because of the legal, political, and economic barriers that interfere with and often completely prevent investigation or enforcement of U.S. law outside of U.S. borders. Some of these barriers are reduced through the use of “memoranda of understanding” (MOUs), or mutual agreements — between agencies or officials of different nations — to exchange information and cooperate in criminal investigations. However, not all nations enter into these or other cooperative agreements. Examples of these instances include Nauru, Myanmar, and Nigeria.
Costs and Statistics
There is no clear picture of the actual amount of money laundered globally. Estimates based on reported crimes will tend to underestimate the figure, and estimates based on the size of the underground economy will tend to overestimate the actual amount. Synthesizing a variety of sources, the International Monetary Fund cites figure of between ¾ of a percent to 2 percent of the world’s gross domestic product, when using the reported crime method and 5 to 85 percent of a nation’s economy (depending on the nation) when using the underground economy method. These two figures can be found in other sources, roughly combined to give a range of 2-5 percent of the world’s GDP. In 1996, the 2-5 percent formula yielded between 590 billion and 1.5 trillion dollars. This figure is relatively often quoted as being the range of the magnitude of the money laundering problem (sometimes “rounded up” to 600 billion)- such as by the FBI. The U.S. Department of the Treasury has also been quoted as estimating that “$600 billion represents a conservative estimate of the amount of money laundered each year.” Using 2005’s world GDP of 59.6 trillion, the 2-5% approach would give one a figure of between 1.2 and 3 trillion dollars. Of course, the research that provided the main support for the 2-5% figure is itself a decade old, and money laundering has become an issue commanding much greater legislative, regulative, and law enforcement attention in the wake of September 11th. In fiscal year 2001, federal law enforcement agencies in the U.S. seized more than $300 million in criminal assets that were attributable to money laundering. In 2001, U.S. district courts completed 1,420 money laundering cases and convicted 1,243 individuals, or more than 87 percent of the defendants prosecuted. Some of these cases involved more than $100 million in laundered funds, and one-fifth of the cases involved more than $1 million. Of the Money Laundering Control Act charges made in 2001, 63 percent involved fraud, bank embezzlement, transporting stolen property, and counterfeiting, and 16 percent involved drug trafficking. Almost half (44 percent) of the money laundering cases referred to U.S. Attorneys in 2001 occurred in the six geographic areas designated by the U.S. Departments of Justice and the Treasury as areas of high risk for financial crimes and money laundering activity (High Intensity Financial Crime Areas or HIFCAs). These areas are (with the year designated a HIFCA)
- New York and Northern New Jersey – (2000)
- Los Angeles – (2000)
- San Juan, Puerto Rico – (2000)
- The southwest Texas and Arizona/Mexico border – (2000)
- The northern district of Illinois (Chicago) – (2001)
- The northern district of California (San Francisco) – (2001)
- Southern Florida (Miami) – (2003)
High Profile Examples/Case Studies
In 2006, Charles E. Edwards was sentenced to 13 years in prison and was ordered to pay $320,397,837 in restitution following his September conviction on charges of wire fraud, money laundering, and conspiracy to commit money laundering. The evidence showed that from 1996 through September 2000, Edwards, the founder of ETS Payphones, Inc. (ETS), raised capital to grow his coin-operated payphone business by using a network of independent insurance agents to sell payphones to investors throughout the United States for $5,000 to $7,000 per phone. Edwards convinced investors to buy payphones and lease them back to ETS for what Edwards claimed would be a guaranteed profit of approximately 14 percent per year. The scheme defrauded approximately 12,000 nationwide investors out of more than $400 million. Edwards siphoned off approximately $21 million of the fraud proceeds for himself and his wife. In addition, the evidence showed that Edwards engaged in a series of unusual and convoluted financial transactions, which served no legitimate business purpose and were intended solely to conceal and disguise the source, location, ownership, nature, and control of the proceeds involved in those transactions.In 2006, Edmundo P. Rubi was sentenced to 70 months in prison for conspiracy to commit mail fraud and money laundering. Rubi previously pled guilty to the charge that he conspired to conduct a scheme to defraud investors out of more than $12 million using his companies, Knights Express, Ltd. and Djmler Enterprises, Inc. Rubi was also ordered to pay restitution in the amount of $12,483,000. According to the plea agreement, beginning in 1999 and continuing up to October 31, 2001, Rubi formed and operated Knights Express Ltd. and Djmler Enterprises, Inc. for the purpose of soliciting investments from members of the public. In connection with his guilty plea, Rubi admitted that he made fraudulent representations that investor funds would be used to purchase and resell Federal Reserve notes in an international trading program. In actuality, no such international trading program existed. Millions of dollars of investor funds were used instead to pay the periodic returns that investors received and to make unsecured investments. Rubi also intentionally concealed from investors the fact that millions of dollars of investor funds were converted for his own personal use and benefit.The Drug Enforcement Agency (DEA) and U.S. Attorney’s Office in New York completed in 2002 a “long-term investigation targeting the money laundering and narcotics activities of the Khalil Kharfan Organization operating in Colombia, Puerto Rico, Florida, and the New York Tri-State area.” Initial statements by the agencies indicated that more than $100 million in narcotics proceeds were laundered in the scheme. The organization used members to open fictitious businesses, which they used for the deposit and transfer of money between countries. Approximately $1 million has been recovered.In 2002, a California jury convicted two principals in a Costa Rican tax evasion-money laundering ring. Wayne Anderson, 62, and Richard Marks, 58, were arrested in one of the largest undercover stings in IRS history. The two men were charged with conspiracy to launder $470,000, mostly through offshore trusts that concealed millions of dollars for U.S. taxpayers who wanted to evade U.S. taxes. The case resulted in seven federal convictions. “A Nashville, Tennessee man was sentenced to 20 years in jail for his three-year role in a large-scale cocaine distribution and money laundering organization in the Nashville area. The individual pled guilty to conspiracy to commit money laundering and conspiracy to distribute cocaine. The defendant used several vehicles with sophisticated hidden compartments to transport the cocaine and the proceeds to pay for it back and forth between Chicago and Nashville.” “On June 21, 2002 a federal jury in North Carolina convicted Mohamad Hammoud and his brother Chawki, Lebanese immigrants, for providing material support to the terrorist group Hezbollah through racketeering, conspiracy, and conspiracy to commit money laundering by funneling profits from a cigarette smuggling operation. In March 2002, several of the Hammoud’s co-defendants pled guilty in North Carolina federal court to racketeering, conspiracy, and conspiracy to commit money laundering for funneling profits from their cigarette smuggling operation to purchase military equipment for the Hezbollah terrorists. The case began when the West Virginia State Police seized a significant quantity of contraband cigarettes. The Federal indictment alleged that millions of dollars worth of cigarettes were smuggled out of North Carolina to resell in States, including Michigan, where higher State taxes greatly increase the sales price.”
The Response/Current Efforts
Legislation and Regulation The U. S. has imposed a number of legislative and regulatory standards to deter money laundering. The most significant of these are the following:
- The Bank Secrecy Act (BSA), signed into law in October 1970, implemented a reporting system for large financial transactions (over $10,000) to monitor and deter the flow of criminally obtained proceeds. (Codified 31 U.S.C. §§ 5311-5330)
- The Money Laundering Control Act of 1986 amended the BSA and specifically made money laundering – spending, saving, transporting, or transmitting proceeds of criminal activity – a federal felony. (Codified 18 U.S.C. §§ 1956 and 1957)
- The Anti-Drug Abuse Act of 1988 increased the penalties and sanctions for money laundering crimes and amended the money laundering provisions of 18 U.S.C. § 1956 to include financial transactions with the intent to violate § 7201 (attempted tax evasion) or § 7206 (false tax return) of the Internal Revenue Code of 1986 (26 U.S.C.). (Pub. L. 100-690)
- The Racketeer Influenced and Corrupt Organizations (RICO) Act identified violations of money laundering statues as “predicate offenses” that constitute racketeering activity and provided for both civil and criminal actions against violators. (Codified 18 U.S.C. §§ 1961-1968)
- The Money Laundering and Financial Crimes Strategy Act of 1998 required that the Secretary of the Treasury coordinate and implement a national strategy to address money laundering. (Pub. L. 105-310)
- The USA PATRIOT Act of 2001 established new rules and responsibilities affecting financial institutions and commercial businesses to prevent, detect, and prosecute terrorism and international money laundering. For example, the Act required banks to actively monitor customer transactions, expanded the ability of public and private institutions to share information, and increased civil and criminal penalties for money laundering. (Pub. L. 107-56)
Current Efforts To Reduce Money Laundering In 2005, the Drug Enforcement Agency (DEA) completed Operation Mallorca, an investigation into the use of the Columbian Black Market Peso Exchange to launder drug money. Operation Mallorca resulted in the arrest of 36 individuals and the seizure of 7.2 million dollars, 947 kilograms of cocaine, 7 kilograms of heroin, and 21,650 pounds of marijuana. In 2005, the multinational Organized Crime Drug Enforcement Task Force completed Operation Cyber Chase, an investigation that targeted illegal Internet pharmacies. These pharmacies used more than 200 websites to sell controlled substances internationally and to launder the proceeds. Just one of the organizations involved used this system of web-based distribution to move approximately 2.5 million dosage units of Schedule II-V pharmaceuticals (including Vicodin, amphetamines, and anabolic steroids) permonth. “Operation Wire Cutter,” a two and a half year joint effort of U.S. and Colombian law enforcement, uncovered a massive money laundering operation for several Colombian narcotics cartels that channeled money through New York, Miami, Chicago, Los Angeles, San Juan, and Puerto Rico using the Black Market Peso Exchange. The efforts resulted in 37 arrests – 29 in the U.S. and eight in Colombia – as well as the seizure of more than $8 million, 400 kilos of cocaine, 100 kilos of marijuana, 6.5 kilos of heroin, nine firearms, and six vehicles. Since the attacks of September 11, 2001, efforts to reduce money laundering – throughout the world – have increased significantly, with particular attention paid to associations with terrorist activities. Effective September 24, 2001, for example, President Bush issued Executive Order 13224, “blocking property and prohibiting transactions with persons who commit, threaten to commit, or support terrorism.” Initially, 27 individuals and organizations were identified as Specially Designated Global Terrorist (SDGT) entities under Executive Order 13224. By June 6, 2003, 282 individuals and organizations had been identified as SDGTs, and over $137 million in associated assets had been frozen worldwide. In July 2002, the second National Money Laundering Strategy issued by the U.S. Department of the Treasury pointedly addressed the issue of money laundering as “integral to the war on terrorism.” Specifically, the strategy (1) presented “government’s first plan to attack financing networks of terrorist entities” and (2) focused on “the use of charities and other non-governmental organizations to raise, collect, and distribute funds to terrorist groups.”
Penalties for Money Laundering Charges in Texas
Money laundering refers to the process of concealing financial transactions. Various laundering techniques can be employed by individuals, groups, officials and corporations. The goal of a money laundering operation is usually to hide either the source or the destination of money in connection with a criminal act.
Money laundering is a white collar crime that will be investigated by many different sources including: local, state and federal investigators that may also include the Department of Justice, the State Department, the Federal Bureau of Investigation (FBI), the Internal Revenue Service (IRS) and the Drug Enforcement Agency (DEA). A person can be charged with money laundering if suspected of receiving, concealing, possessing, transferring, transporting or having any interest in the proceeds of criminal activity. In fact a money laundering charge can be filed against a person that has almost anything at all to do with the proceeds of a criminal act. In Texas, money laundering charges have varied penalties depending on the amounts involved:
- Value from $3000 to $19,999 = third degree felony (2-10 years in prison plus a hefty fine if convicted)
- Value from $20,000 to $99,999 = second degree felony (2-20 years in prison plus a hefty fine if convicted)
- Value from $100,000 and up = first degree felony (5 to life years in prison plus a hefty fine if convicted)
There are several different types of money laundering charges you can face. Some are more serious than others and could result in severe punishments and steep fines. In fact, if you are convicted of money laundering, you could be forced to pay a fine up to twice the amount of the total dollar amount of funds involved in the illegal activity.
It is important that you contact Houston White Collar Crimes Lawyer Charles Johnson as soon as you are aware of charges against you or a loved one. If you are confronted with federal charges, you will want an experienced attorney who is familiar with federal court procedure as it is quite different from the state court process. Attorney Charles Johnson is well-versed in both federal and state law and court procedure. No matter what your money laundering charges or other white collar crime charges entail, you can trust that he will prepare a solid defense on your behalf.
Defenses for Money Laundering Charges in Texas
- Absence of intent to commit a crime — Most crimes require intent to commit the crime. In terms of money laundering, people who are accountants, bankers, or others who deal with large amounts of money are often charged with money laundering without even knowing they committed a crime. If you can prove you were unaware the money obtained was illegal, then there is no way you can have intent to commit money laundering.
- Duress — Duress occurs when a person truly believes there will be some danger or harm if they do not participate in the crime. In money laundering, criminals often force accountants or bankers to launder illegally obtained money or else be subjected to harm. If this is the case, you will have a good duress defense (as the banker or accountant).
- Insufficient evidence — A criminal charge can be dismissed if there is insufficient evidence to prosecute. In money laundering, an intention to prevent illegally obtained funds from being traced to its origin is required for a conviction. A conviction also requires proving the money laundered came from a specific illegal activity. If one of these two things is missing, then there is a possibility this defense will work.
The main defense to Money Laundering is the defendant’s lack of knowledge that the funds were from an unlawful activity. Attorney Charles Johnson may be able to establish that you did not intend to promote unlawful activity or that the transaction was not designed to conceal the unlawful activity. This is usually a valid defense when a person is merely an employee of a business, or a non-involved partner who is basically “duped” into managing a business whose proceeds are the result of an illegal activity. This defense can be supported with evidence from the company’s financial statements or accounting records showing material misrepresentation or omissions, committed by someone else other than the defendant. Many times one devious business partner will ask another partner to “sign off” on certain loan documents or tax returns without telling the defendant that the information contained therein is false misleading. Just because a defendant has signed off on paperwork that might be designed to cover up the source of money or funds does not mean the defendant actually knew about the source of the funds. It is important to interview all of the parties involved to ascertain the defendant’s good character and honesty and lack of control over this area of the company’s finances, and to emphasize the partner’s bad character. Another defense is tracing the funds involved in the transactions and proving that these specific funds did not fund, nor were the proceeds of, any unlawful activity. The defenses for Money Laundering are quite complex (as are all white collar cases) and involve many hours of records research by attorneys and expert witnesses. It is often beneficial to utilize a “forensic accountant” to also go through the documents in order to defend against the Government’s allegations.
Additionally, because the Charles Johnson Law Firm fights conviction from all angles, they will assert a wide range of defenses and challenges to constitutional violations that apply in all criminal cases. The possibilities are numerous and diverse. One of those is the “denial of right to Counsel”. This occurs when a suspect is in custody and requests to speak to their attorney, but is denied and questioning continues. Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what else you have been charged with, this could include exposing flawed procedures regarding fingerprints analysis; computer analysis/cloning hard drive procedures; GPS tracking monitors; forensic financial accounting reviews; etc.. Lastly, one of the most common defense tactics is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled Money Laundering lawyer to defend you who has knowledge of all the possible defenses to assert in your case. While related charges can further complicate a money laundering defense or other type of case, it is important to remember that just because you have been accused, doesn’t mean you are guilty. Contact Houston White Collar Crimes Lawyer Charles Johnson immediately for your free phone consultation. Attorney Johnson will take your call 24/7 365 days/year at (713) 222-7577 to discuss your case. Put his knowledge to work for you.
Hire the Best Houston Money Laundering Lawyer: Houston White Collar Crimes Lawyer Charles Johnson
At the Charles Johnson Law Firm, our attorneys possess the necessary skills and knowledge to successfully defend individuals facing federal money laundering charges. Unless you retain counsel who will aggressively investigate the matter on your behalf, you may have a poor chance of avoiding a lengthy prison term among other severe consequences. Money laundering is a serious offense with potential long-term consequences including jail time.When your future is at stake, contact the Leading Houston Criminal Lawyer at the Charles Johnson Law Firm. You can reach Attorney Johnson directly anytime night or day at (713) 222-7577.
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Embezzlement or Misappropriation of Funds Can Be a Serious Crime in Texas Federal Courts. Embezzlement is considered a white collar crime in the state of Texas and is almost always charged as a felony. Punishment can be severe depending on what was done and how the funds were misappropriated. The criminal could face fines in the million of dollars and many months in prison. If you’re being charged with Embezzlement, you will need an experienced criminal defense lawyer on your side. Contact Houston Embezzlement Lawyer Charles Johnson to speak with an experienced legal professional about what you can do to protect your name and reputation. Attorney Johnson will travel to any state court in the State of Texas and to any Federal Court in the United States of America to fight for your freedom. Contact him directly around the clock, 7 days/week at (713) 222-7577.
The Federal Bureau of Investigation (FBI) defines embezzlement as the “misappropriation or misapplication of money or property entrusted to one’s care, custody, or control.” What distinguishes embezzlement from other types of theft is the violation of financial trust between the owner of the money or property and the offender.
Theft by employees is one of the most prevalent and costly problems faced by today’s business, either private or public. It includes, but is not limited to, “the removal of products, supplies, materials, funds, data, information, or intellectual property.” The estimated annual costs of all forms of embezzlement are up to $400 billion.
The ways that an employee can steal from an organization depend on a number of factors, including that type of money or properties that have been entrusted to the individual, and the access to company funds that the individual might be allowed because of their position. For example, a department store cashier might steal from a cash register, fail to ring up purchases, or take merchandise from storage rooms or receiving areas. Other employees with more access within the company might cheat on expense accounts, or misappropriate funds through billing, inventory, or payroll schemes.
While some research has found that theft by employees is typically a solitary event, the influence of co-workers on theft behavior has been shown to have an enormous impact on such deviant behavior. A strong argument is also made for the effects of informal sanctions; those that did not comply with the theft culture were often ostracized and pressured to leave the job.
The “typical” embezzlement scheme occurs at companies with fewer than 100 employees. The average amount stolen is $120,000 versus just $10,000 for Fortune 500 companies. Small businesses, defined as employers with less than three bookkeepers, are 100 times more likely to experience employee fraud than larger companies. The crime is often carried out over a number of years and has forced many small companies into bankruptcy.
Common Embezzlement Schemes
Bogus loan schemes include cases in which fraudulent loans are created or authorized by the perpetrator from which funds are taken for their own benefit.
Credit card/account fraud cases involve the fraudulent or unauthorized creation and/or use of company credit card or credit accounts.
Forged/unauthorized checks cases are those in which company checks are forged or issued without authorization for the benefit of the perpetrator.
Fraudulent reimbursement schemes include expense report fraud and other cases in which a bogus submission for reimbursement is made by the perpetrator.
Inventory/equipment theft schemes include employee theft of inventory and supplies, and the unauthorized use of equipment.
Payroll shenanigans cases include all forms of manipulation of the payroll systems in order for the perpetrator to draw additional income.
Theft from tax or benefit accounts include cases in which the perpetrator manipulates company accounts meant to pay corporate taxes or employee benefits to siphon these funds off for themselves.
Theft/conversion of cash receipts cases involve the simple taking of cash or checks meant for company receipts and pocketing or converting them for one’s own benefit.
Unauthorized electronic funds transfers cases apply to anyone who uses or attempts or conspires to use any counterfeit, fictitious, altered, forged, lost, stolen or fraudulently obtained debt instrument to obtain anything of value.
Vendor fraud schemes include those where either a bogus vendor is created by the perpetrator to misappropriate monies or a real vendor colludes with the perpetrator to siphon funds from the company.
Clearly the most common form of embezzlement, by nearly a two-to-one margin, is the forgery or unauthorized use of company checks for one’s own benefit. Almost 40 percent of all major embezzlement cases are principally the result of this type of scheme. The next three most common forms of embezzlement are theft/conversion of cash receipts (20.5%), unauthorized electronic transfers of funds (13.4%) and payroll shenanigans (8.7%).
Examples of Embezzlement Schemes
- The bookkeeper pays him/herself – The bookkeeper simply takes a business check, makes it payable to him/herself and signs it.
- Duplicate payments to phony accounts – The bookkeeper pays an invoice with multiple checks over time and creates a phony bank account to deposit the second check. By the way, it is very easy to open a phony account.
- Check alteration – The bookkeeper either alters checks paid to you by customers, or creates a phony bank account to deposit checks.
- Double billing – The bookkeeper re-bills customer twice for the same work and deposits check in a phony account. It is surprising how often businesses will pay twice for the same invoice.
- Duplicate checks – The bookkeeper orders a duplicate set of checks mimicking your account and then proceeds to write duplicate checks to vendors – only the duplicate checks are deposited into the phony account. The business owner may be too busy to notice this deception.
- Credit card transactions – An employee makes a credit card sale, then issues a credit for that item back on to their own credit card.
- Petty cash expenditures – A business does not closely review the petty cash expenditures, unknowingly creating an opportunity for theft.
FBI – Financial Crimes
The Federal Bureau of Investigation (FBI) investigates matters relating to fraud, theft, or embezzlement occurring within or against the national and international financial community. These crimes are characterized by deceit, concealment, or violation of trust, and are not dependent upon the application or threat of physical force or violence. Such acts are committed by individuals and organizations to obtain personal or business advantage.
Theft, Embezzlement or Misapplication by Bank Officers or Employees
Title 18, Chapter 31 of the U.S. Code contains sections that deal with the various forms of embezzlement and their penalties. For example, Section 656 covers theft, embezzlement, or misapplication by a bank officer or employee.
Motivating Factors for Embezzlement
While a large number of crimes can be attributed to opportunity or the economic need of the offender, loss incurred through the actions of employees can also be a response to poor working conditions, dissatisfaction with management or compensation, or pressure from co-workers. The following are some of the primary motivating factors for Embezzlement:
- Entitlement belief
- Financial need
- Lavish lifestyle
- Gambling issue
- Shopping addiction
- Substance abuse
- Support a personal business
- Support significant other
In the overwhelming number of cases, excessive greed or the desire to live a relatively more lavish lifestyle appears to be the key motivating factor for major embezzlers – not to alleviate personal financial problems, as some might expect. Gambling continues to be a factor for many embezzlers. In some cases, the gambling problem was also part of an overall extravagant lifestyle.
The underlying question remains, however, why do these embezzlers steal so much over such a long period of time from employers who trusted them so implicitly? The classic fraud triangle theory holds that there generally must be three basic elements to exist for fraud to occur: opportunity, incentive/pressure and attitude/rationalization. For embezzlement, the opportunity factor is present in organizations in which business controls are weak and specific individuals, principally those with fiduciary duties, can exploit those weaknesses. For fraud in general, the incentive/pressure factor is often suggested to be financial woes. However, for embezzlers, other factors exist, such as a substance abuse problem, a gambling problem, a perceived need to support a loved one and, a desire to live an extravagant lifestyle or a desire to support a personal or family-owned business.
Rationalization is the most elusive segment of the fraud triangle. Researchers have suggested that one or more of the following attitudes or beliefs exist for embezzlers to engage in illicit activities:
- They believe they are entitled to the money;
- They believe they must save a family member or loved one who is perceived to be in dire circumstances;
- They believe they are in a desperate financial situation and all could be lost;
- They believe that no external or other help exists;
- They believe they are only “borrowing” the money;
- They do not understand the consequences of their actions; and,
- They do not believe or understand that what they are doing is wrong.
Costs and Statistics
While many think of the workplace as insulated from the questionable behavior found elsewhere in society, the statistics can be quite alarming. It is estimated that losses due to employee theft can range from $20 to $90 billion annually to upwards of $240 billion a year when accounting for losses due to intellectual property theft. This makes theft by employees two to three times more costly than all of the nation’s Type I index crimes combined, and accounts for approximately 30 to 50 percent of all business failures. In addition, it is estimated that as many as three-quarters of all employees steal from their employers at least once and some employees may engage in theft behavior as a regular part of their lives on the job.
Employee theft does not occur in a vacuum, but is often found in conjunction with high rates of other workplace deviant behavior. The financial impacts of such behavior, when coupled with the indirect costs of higher levels of stress, increased absenteeism, higher turnover, raised insurance premiums, an increased number of lawsuits, and lower morale, make workplace deviance a problem for businesses of all sizes that can reach an annual price tag hovering in the billions of dollars.
How has the widespread infusion of technology into the workplace impacted issues of embezzlement and employee theft? One result has been the dramatic increase in costs associated with a given offense. Not only can technology facilitate larger transactions that are illegal in nature, but when coupled with poor controls it can be manipulated to make detection much more difficult. Furthermore, the types of theft in the workplace appear to be changing. In addition to cash, materials, and merchandise, employees are increasingly finding value in company-owned software and intellectual property. In 2004, it is estimated that Fortune 1,000 companies sustained losses of more than $59 billion from theft of proprietary information, with insiders to the organization being seen as a higher than average threat.18 Borrowing software from work for personal use accounts for some of the $33 billion lost to software piracy worldwide.
The Response/Current Efforts
Traditionally, organizations did not want the public stigma of being known as an “easy target” or a company that harbored embezzlers and other types of dishonest employees. Most matters were handled internally, if they were handled at all. Some organizations viewed theft as a cost of doing business. In recent years, companies have stepped forward and begun to address the reality that they have dishonest employees who are causing significant economic losses. Studies have shown that there has been an increase in the use of deterrence and apprehension strategies and an increase in the severity of sanctions brought against someone accused of theft. In 1997, retail companies alone spent over $5 billion to combat inventory losses, with theft by employees seen as accounting for the largest share of those losses. These expenditures in formal social control can be seen in both investments in security technology and loss prevention personnel. Additionally, over 40 percent of employees caught stealing is referred for prosecution and 20 percent is required to make some form of restitution.28 So while the problem of employee theft still exists within organizations, some employers have taken important steps towards acknowledging and combating the problem.
Penalties for Embezzlement
Under Texas law, Embezzlement falls under the law criminalizing theft. Embezzlement is essentially financial theft by an employee. It can be considered white collar crime in some instances but it does not have to be only a white collar offense. It occurs when the defendant is entrusted with his or her employer’s money or goods and then steals those money or goods.
In a criminal case involving employee embezzlement, the state must show beyond reasonable doubt that the employee had possession of the assets by “virtue of his/her employment”. If their position did not provide them with control of the missing assets, they would not be able to be charged with this type of crime. There are many situations where it can be a difficult task to determine if the offense can be classified as embezzlement or larceny.
Texas offers a wide variety of penalties for the crime of Embezzlement. The factor that determines the severity of the punishment if convicted on a charge of Embezzlement is the amount or value of the goods, services or cash stolen. For the smallest amounts ($50 and under), the charge will be a “Class C” misdemeanor carrying a penalty of a simple fine of up $500. The most serious charge will be for stealing $200,000 or more in goods, services or cash. This is considered a first degree felony and can be punishable by five to ninety-nine years in prison and/or a fine of up to $10,000.
White collar crimes may be charged as misdemeanors or as felonies. The charges depend on the type of crime, the severity of the crime, and the amount of money that is involved in the crime, among other things In general, the more severe a crime the more harsh the potential punishment if convicted. While white collar crimes don’t involve physical violence, they can still be serious. Houston White Collar Crimes Attorney Charles Johnson will help guide you through the legal process and will advocate for your rights every step of the way. If you are in jail, Attorney Johnson will assist in getting your bail reduced if possible so you can be released on bond until your trial date.
Defenses to Embezzlement Charges
When you are responsible for handling corporate finances and assets, errors may occur. A bookkeeping mistake or oversight could lead to an investigation. The minute you are notified of any potential allegations of embezzlement is the time to retain experienced legal counsel.
Embezzlement is a crime, so all the defenses available for other crimes can be used. Common defenses include:
Insufficient evidence – A criminal charge or case can be dismissed if there is insufficient evidence to prosecute. This defense will not work as long as a jury can find you guilty without a reasonable doubt. However, 40% of federal embezzlement cases are dropped because of insufficient evidence, so it can be worth pursuing.
Duress – Duress occurs when a person is situated where he/she truly believes they will be in some danger or harm if they do not participate in the crime. Common duress defenses in embezzlement cases that generally do not work include embezzling money to satisfy an addiction (drugs, alcohol, gambling) or to prevent family hardship. A duress defense will more likely work in cases where you would lose your job unless you participated in an embezzlement scheme.
Entrapment – Entrapment occurs when the government compels an innocent person to commit a crime they would have otherwise not committed. Stings are generally exempt. However, setting up “bait” to get you to commit embezzlement can be entrapment. When bringing an entrapment defense, the prosecution will usually contend you were inclined to commit the offense anyway.
Absence of intent to commit a crime – Most crimes require an intention to commit the crime. Embezzlement requires that you intended to take money or property from others. Without the required intent, the embezzlement charge may be dismissed. For example, maybe you thought you were the true owner of the money or property that you are accused of embezzling.
Insanity – Insanity is always a possible defense, but it is a “tough sell”in any court for any crime. This defense allows you to claim you were either insane at the time of the offense or during trial. The success rate of an insanity defense is low and it would most likely be ineffective in embezzlement cases.
Incapacity – This is different from insanity. In embezzlement cases, this defense may work only if you can show you were somehow mentally incapacitated at the time of committing the embezzlement. An example would be if you were under heavy medication and didn’t realize you deposited company money into your own account.
Intoxication – Voluntary intoxication is almost never a defense to a crime. If you drink voluntarily, you should realize the risks of doing so. This defense rarely comes up in embezzlement case.
Embezzlement charges can be quite complex. In many cases there may be many items that must be reviewed in order to determine the best defense. Some crimes may be a result of miscommunication or deception. It is important to get your story out. There are many ways that a defense attorney will be able to help you protect your rights. The goal of your attorney is to not only help you defend against the charges but to also help you guard your professional reputation. A conviction on these types of charges can be detrimental to your career so it is important to defend the charges as vigorously as possible. Houston Criminal Lawyer Charles Johnson will review all aspects of your case in depth to provide a complete defense of the charges.
If you have been charged with Embezzlement, you are probably facing stress at your home and workplace. Houston Lawyer Charles Johnson can help relieve that stress by ensuring that you are protected by the best Texas embezzlement lawyer available. If you want the best in knowledgeable legal representation & a criminal law firm that will treat your case with consideration and concern, please contact us 24/7 at (713) 222-7577 for a FREE confidential consultation. Your initial consultation can be done over the phone, and will be free and completely confidential. During this consultation you will be informed about the law, your rights and your legal options, with a reliable idea of how much an effective embezzlement defense may cost. Rest assured that The Charles Johnson Law Firm will zealously defend you against any type of White Collar Crime accusation.
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Download “The Consequences of An Allegation of Embezzlement: Hire the Right Houston White Collar Crimes Attorney” in PDF Format
Ex-Houston banker gets 3 years for embezzlement
A federal judge in Houston on Wednesday sentenced 39-year-old Shawn Nelson. The former executive at Members Choice Credit Union in June pleaded guilty to embezzlement. Nelson must also repay the money. Prosecutors say Nelson from 2001 through 2010 opened ...
abc13.com - Dec 05 2013
Texas Credit Union Official Guilty Of Embezzlement
A former executive with a Houston credit union faces up to 30 years in prison for embezzling about $340,000 through bogus loans in other people’s names. Prosecutors say 39-year-old Shawn Nelson opened signature loan accounts in the names of his family ...
CBS Local Houston - Jun 28 2013
Manhunt for escaped killers shifts after possible sighting
not the University of Houston. A year after a felony charge of embezzlement was filed against a Merrill woman, the case has been dismissed. Mount Pleasant Police have found the body of a man who was reported missing Wednesday after last being seen in the ...
Midland Daily News - Jun 21 2015
Letter: Unequal sentencing
In the past several months, I have read about several incidences of people stealing money from religious organizations here in the Houston County ... to a grand jury receive more punishment than embezzlement/theft of church funds? This is not equal ...
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Conspiracy is one of the most often used crimes in the arsenal of the United State’s Attorneys Office.
This all encompassing charge has the ability to touch almost every Federal Crime. Common conspiracy charges include:
- Conspiracy to deal in illegal narcotics,
- Conspiracy to possess with intent to distribute Cocaine, Crack Cocaine, Marijuana, or Methamphetamine.
- Conspiracy to commit Mail Fraud, Wire Fraud, Health Care Fraud, and Tax Fraud and other White Collar Crimes
If you are charged with conspiracy to commit an offense in Federal Court, your rights and your future are in jeopardy. Choosing the right criminal defense attorney to defend your case and protect your rights is critical. If you have been charged with conspiracy, or if you have reason to believe you are under investigation by law enforcement agents, the sooner you hire a criminal defense lawyer, the better positioned you will be. Houston Criminal Lawyer Charles Johnson provides a strong defense to conspiracy charges at both the state and federal level.
It is important to speak to an experienced federal criminal defense attorney as soon as possible if you are being investigated or have been arrested for any federal offense. Why?
- Federal authorities tend to spend a lot of time and money investigating a suspect before they make an arrest.
- They frequently have tape of your telephone conversations with an informant. Both can present significant challenges for the defense.
- Conviction for a federal offense can have extremely serious consequences, including long periods of incarceration and huge fines.
Time Is Not on Your Side
Don’t delay. The earlier you retain legal counsel, the more options we will be able to pursue. For example, we may be able to negotiate with the prosecutor to get the charges dismissed or reduced before a grand jury convenes to issue an indictment. Houston Federal Criminal Lawyer Charles Johnson may be able to intervene on your behalf even before an arrest is made. If you believe you are the target of an investigation by any federal authority, please contact our office immediately.
Effective Defense Against Federal and Conspiracy Charges
In order to prove conspiracy, the government must prove each of the following elements beyond a reasonable doubt:
- An agreement between at least two parties to achieve an illegal goal
- That the defendant became a member of the conspiracy knowing at least one of its goals and intending to accomplish it
- At least one conspirator committed an act to further the conspiracy.
As you can see, you can be charged with conspiracy even if you did nothing to actually commit a crime. The “crime” itself does not even have to be completed. In many cases, individuals with a limited role, or no role whatsoever in a criminal scheme, are charged with conspiracy. Suddenly even someone with a minor role in a broader conspiracy may be facing extreme consequences if convicted.
The Charles Johnson Law Firm will fight every aspect of these charges. We will hold the government to its burden of proof and will find any potential evidentiary or Constitutional violations in your case. You can contact Attorney Johnson anytime day or night and talk with him directly about your case. He can be reached at (713) 222-7577 around the clock.
Federal Conspiracy: Summary
Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and some of the former Enron executives have at least one thing in common: they all have federal conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to engage in some form of prohibited misconduct. The crime is complete upon agreement, although some statutes require prosecutors to show that at least one of the conspirators has taken some concrete step or committed some overt act in furtherance of the scheme. There are dozens of federal conspiracy statutes. One, 18 U. S. C. 371, outlaws conspiracy to commit some other federal crime. The others outlaw conspiracy to engage in various specific forms of proscribed conduct. General Section 371 conspiracies are punishable by imprisonment for not more than five years; drug trafficking, terrorist, and racketeering conspiracies all carry the same penalties as their underlying substantive offenses, and thus are punished more severely than are Section 371 conspiracies. All are subject to fines of not more than $250,000 (not more than $500,000 for organizations), most may serve as the basis for a restitution order, and some for a forfeiture order.
The law makes several exceptions for conspiracy because of its unusual nature. Because many united in crime pose a greater danger than the isolated offender, conspirators may be punished for the conspiracy, any completed substantive offense which is the object of the plot, and any foreseeable other offenses which one of the conspirators commits in furtherance of the scheme. Since conspiracy is an omnipresent crime, it may be prosecuted wherever an overt act is committed in its furtherance. Because conspiracy is a continuing crime, its statute of limitations does not begin to run until the last overt act committed for its benefit. Since conspiracy is a separate crime, it may be prosecuted following conviction for the underlying substantive offense, without offending constitutional double jeopardy principles; because conspiracy is a continuing offense, it may be punished when it straddles enactment of the prohibiting statute, without offending constitutional ex post facto principles. Accused conspirators are likely to be tried together, and the statements of one may often be admitted in evidence against all.
In some respects, conspiracy is similar to attempt, to solicitation, and to aiding and abetting. Unlike aiding and abetting, however, it does not require commission of the underlying offense. Unlike attempt and solicitation, conspiracy does not merge with the substantive offense; a conspirator may be punished for both.
Terrorists, drug traffickers, mafia members, and corrupt corporate executives have one thing in common: most are conspirators subject to federal prosecution. Federal conspiracy laws rest on the belief that criminal schemes are equally or more reprehensible than are the substantive offenses to which they are devoted. The Supreme Court has explained that a “collective criminal agreement – a partnership in crime – presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality.” Moreover, observed the Court, “group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked.” Finally, “combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed.” In sum, “the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.” Congress and the courts have fashioned federal conspiracy law accordingly.
The United States Code contains dozens of criminal conspiracy statutes. One, 18 U. S. C. 371, outlaws conspiracy to commit any other federal crime. The others outlaw conspiracy to commit some specific form of misconduct, ranging from civil rights violations to drug trafficking. Conspiracy is a separate offense under most of these statutes, regardless of whether conspiracy accomplishes its objective. The various conspiracy statutes, however, differ in several other respects. A few, including Section 371, require at least one conspirator to take some affirmative step in furtherance of the scheme. Most have no such overt act requirement.
Section 371 has two prongs. One outlaws conspiracy to commit a federal offense; a second, conspiracy to defraud the United States. Conspiracy to commit a federal crime under Section 371 requires that the underlying misconduct be a federal crime. Conspiracy to defraud the United States under Section 371 and in several other instances has no such prerequisite. Section 371 conspiracies are punishable by imprisonment for not more than five years. Elsewhere, conspirators often face more severe penalties.
These differences aside, federal conspiracy statutes share much common ground because Congress decided they should. As the Court observed in Salinas, “When Congress uses well-settled terminology of criminal law, its words are presumed to have their ordinary meaning and definition. When the relevant statutory phrase is ‘to conspire,’ we presume Congress intended to use the term in its conventional sense, and certain well-established principles follow.”
These principles include the fact that regardless of its statutory setting, every conspiracy has at least two elements: (1) an agreement (2) between two or more persons. Members of the conspiracy are also liable for the foreseeable crimes of their fellows committed in furtherance of the common plot. Moreover, statements by one conspirator are admissible evidence against all. Conspiracies are considered continuing offenses for purposes of the statute of limitations and venue. They are also considered separate offenses for purposes of sentencing and of challenges under the Constitution’s ex post facto and double jeopardy clauses. This is a brief discussion of the common features of federal conspiracy law that evolved over the years, with passing references to some of the distinctive features of some of the statutory provisions.
Although it is not without common law antecedents, federal conspiracy law is largely of our own making. It is what Congress provided, and what the courts understood Congress intended. This is not to say that conspiracy was unknown in pre-colonial and colonial England, but simply that it was a faint shadow of the crime we now know. Then, it was essentially a narrow form of malicious prosecution, subject to both a civil remedy and prosecution. In the late 18 and early 19 centuries, state courts and legislatures recognized a rapidly expanding accumulation of narrowly described wrongs as ” conspiracy.” The patchwork reached a point where one commentator explained that there were “few things left so doubtful in the criminal law, as the point at which a combination of several persons in a common object becomes illegal.”
Congress, however, enacted few conspiracy statutes prior to the Civil War. It did pass a provision in 1790 that outlawed confining the master of a ship or endeavoring revolt on board. This, Justice Story, sitting as a circuit judge, interpreted to include any conspiracy to confine the prerogatives of the master of ship to navigate, maintain, or police his ship. The same year, 1825, Congress outlawed conspiracies to engage in maritime insurance fraud. Otherwise, there were no federal conspiracy statutes until well after the mid-century mark.
During the War Between the States, however, Congress enacted four sweeping conspiracy provisions, creating federal crimes that have come down to us with little substantive change. The first, perhaps thought more pressing at the beginning of the war, was a seditious conspiracy statute. Shortly thereafter, Congress outlawed conspiracies to defraud the United States through the submission of false claim, and followed that four years later with a prohibition on conspiracies to violate federal law or to defraud the United States.
Subsequent conspiracy statutes, though perhaps no less significant, were more topically focused. The Reconstruction civil rights conspiracy provisions, the Sherman Act anti-trust provisions,and the drug and racketeering statutesmay be the best known of these. All of them begin the same way — with an agreement by two or more persons.
Two or More Persons
There are no one-man conspiracies. At common law where husband and wife were considered one, this meant that the two could not be guilty of conspiracy without the participation of some third person. This is no longer the case. In like manner at common law, corporations could not be charged with a crime. This too is no longer the case. A corporation is criminally liable for the crimes, including conspiracy, committed at least in part for its benefit, by its employees and agents. Moreover, a corporation may be criminally liable for intra-corporate conspiracies, as long as at least two of its officers, employees, or agents are parties to the plot. Notwithstanding the two-party requirement, no co-conspirator need have been tried or even identified, as long as the government produces evidence from which the conspiracy might be inferred. Even the acquittal of a co-conspirator is no defense. In fact, a person may conspire for the commission of a crime by a third person though he himself is legally incapable of committing the underlying offense.
On the other hand, two people may not always be enough. The so-called Wharton’s Rule placed a limitation on conspiracy prosecutions when the number of conspirators equaled the number of individuals necessary for the commission of the underlying offense. Under federal law, the rule “stands as an exception to the general principle that a conspiracy and the substantive offense that is its immediate end do not merge upon proof of the latter.” And under federal law, the rule reaches no further than to the types of offenses that birth its recognition — dueling, adultery, bigamy, and incest.
It is not enough, however, to show that the defendant agreed only with an undercover officer to commit the underlying offense, for there is no agreement on a common purpose in such cases. As has been said, the essence of conspiracy is an agreement, an agreement to commit some act condemned by law either as a separate federal offense or for purposes of the conspiracy statute. The agreement may be evidenced by word or action; that is, the government may prove the existence of the agreement either by direct evidence or by circumstantial evidence from which the agreement may be inferred. “Relevant circumstantial evidence may include: the joint appearance of defendants at transactions and negotiations in furtherance of the conspiracy; the relationship among codefendants; mutual representation of defendants to third parties; and other evidence suggesting unity of purpose or common design and understanding among conspirators to accomplish the objects of the conspiracy.”
The lower federal appellate courts have acknowledged that evidence of a mere buyer-seller relationship is insufficient to support a drug trafficking conspiracy charge. Some do so under the rationale that there is no singularity of purpose, no necessary agreement, in such cases: “the buyer’s purpose is to buy; the seller’s purpose is to sell.” Others do so to avoid sweeping mere customers into a large-scale trafficking operation. Still others do so lest traffickers and their addicted customers face the same severe penalties. All agree, however, that purchasers may be liable as conspirators when they are part of a large scheme.
Again, in most cases the essence of conspiracy is agreement. “Nevertheless, mere association, standing alone, is inadequate; an individual does not become a member of a conspiracy merely associating with conspirators known to be involved in crime.”
One or Many Overlapping Conspiracies
The task of sifting agreement from mere association becomes more difficult and more important with the suggestion of overlapping conspiracies. Criminal enterprises may involve one or many conspiracies. Some time ago, the Supreme Court noted that “thieves who dispose of their loot to a single receiver – a single ‘fence’ – do not by that fact alone become confederates: They may, but it takes more than knowledge that he is a ‘fence’ to make them such.” Whether it is a fence, or a drug dealer, or a money launderer, when several seemingly independent criminal groups share a common point of contact, the question becomes whether they present one overarching conspiracy or several separate conspiracies with a coincidental overlap. In the analogy suggested by the Court, when separate spokes meet at the common hub they can only function as a wheel if the spokes and hub are enclosed within a rim. When several criminal enterprises overlap, they are one overarching conspiracy or several overlapping conspiracies depending upon whether they share a single unifying purpose and understanding—one common agreement.
In determining whether they are faced with a single conspiracy or a rimless collection of overlapping schemes, the courts will look for “the existence of a common purpose . . . (2) interdependence of various elements of the overall play; and (3) overlap among the participants.” “Interdependence is present if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged co-conspirators or facilitated the venture as a whole.”
If this common agreement exists, it is of no consequence that a particular conspirator joined the plot after its inception as long as he joined it knowingly and voluntarily. Nor does it matter that a defendant does not know all of the details of a scheme or all of its participants, or that his role is relatively minor.
Conviction under 18 U. S. C. 371 for conspiracy to commit a substantive offense requires proof that one of the conspirators committed an overt act in furtherance of the conspiracy. In the case of prosecution under other federal conspiracy statutes that have no such requirement, the existence of an overt act may be important for evidentiary and procedural reasons. The overt act need not be the substantive crime which is the object of the conspiracy, an element of that offense, nor even a crime in its own right. Moreover, a single overt act by any of the conspirators in furtherance of plot will suffice.
Conspiracy to Defraud the United States
Federal law contains several statutes that outlaw defrauding the United States. Two of the most commonly prosecuted are 18 U. S. C. 286, which outlaws conspiracy to defraud the United States through the submission of a false claim, and 18 U. S. C. 371, which in addition to conspiracies to violate federal law, outlaws conspiracies to defraud the United States of property or by obstructing the performance of its agencies. Section 371 has an overt act requirement; section 286 does not. The general principles of federal conspiracy law apply to both.
The elements of conspiracy to defraud the United States under 18 U. S. C. 371 are (1) an agreement of two or more persons; (2) to defraud the United States; and (3) an overt act in furtherance of the conspiracy committed by one of the conspirators. The “fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of the Government” by “deceit, craft or trickery, or at least by means that are dishonest.” The plot must be directed against the United States or entity; a scheme to defraud the recipient of federal funds is not sufficient. The scheme may be designed to deprive the United States of money or property, but it need not be so; a plot calculated to frustrate the functions of an entity of the United States will suffice.
In contrast, a second federal statute, 18 U. S. C. 286, condemns conspiracies to defraud the United States of money or property through submission of a false claim. The elements of a section 286 violation are that “the defendant entered into a conspiracy to obtain payment or allowance of a claim against a department or agency of the United States; (2) the claim was false, fictitious, or fraudulent; (3) the defendant knew or was deliberately ignorant of the claim’s falsity, fictitiousness, or fraudulence; (4) the defendant knew of the conspiracy and intended to join it; and (5) the defendant voluntarily participated in the conspiracy.” Conviction does not require proof of an overt act in furtherance of the conspiracy.
When Does It End
Conspiracy is a crime which begins with a scheme and may continue on until its objective is achieved or abandoned. The liability of individual conspirators continues on from the time they joined the plot until it ends or until they withdraw. The want of an individual’s continued active participation is no defense as long as the underlying conspiracy lives and he has not withdrawn. An individual who claims to have withdrawn bears the burden of establishing either that he took some action to make his departure clear to his co-conspirators or that he disclosed the scheme to the authorities. As a general rule, overt acts of concealment do not extend the life of the conspiracy beyond the date of the accomplishment of its main objectives. On the other hand, the rule does not apply when concealment is one of the main objectives of the conspiracy.
Imprisonment and Fines
Section 371 felony conspiracies are punishable by imprisonment for not more than five years and a fine of not more than $250,000 (not more than $500,000 for organizations). Most drug trafficking, terrorism, racketeering, and many white collar conspirators face the same penalties as those who committed the underlying substantive offense, e. g. , 21 U. S. C. 846 ( “Any person who . . . conspires to commit any offense defined in the Controlled Substances Act shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the . . . conspiracy” ); 18 U. S. C. 2339B ( “Whoever knowingly provides material support or resources to a foreign terrorist organization . . . . or conspires to do so, shall be fined under this title, or imprisoned not more than 15 years, or both” ); 18 U. S. C. 1962(d), 1963(a)( “(d) It shall be unlawful for any person to conspire to violate any of the racketeering provisions of subsection (a), (b), or (c) of this section. . . . (a) Whoever violates any provision of section 1962 . . . shall be fined under this title, or imprisoned for not more than 20 years. . . or both ” ); 18 U. S. C. 1349 ( ” Any person who . . . conspires to commit any offense under this chapter relating to mail fraud, wire fraud, etc. shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of . . . the conspiracy” ).
The United States Sentencing Guidelines greatly influence the sentences for federal crimes. Federal courts are bound to impose a sentence within the statutory maximums and minimums. Their decision of what sentence to impose within those boundaries, however, must begin with a determination of the sentencing recommendation under the guidelines. Reasonableness standards govern review of their sentencing decisions,and a sentence within the Sentencing Guideline range is presumed reasonable.
The Sentencing Guidelines system is essentially a scoring system. Federal crimes are each assigned a numerical base offense level and levels are added and subtracted to account for the various aggravating and mitigating factors in a particular case. Thus, for example, providing material support to a terrorist organization, 18 U. S. C. 2339B, has a base offense level of 26, which may be increased by 2 levels if the support comes in the form of explosives, U. S. S. G. §2M5. 3(a), (b) and may be increased or decreased still further for other factors. The guidelines designate six sentencing ranges of each total offense level; the appropriate range within the six is determined by extent of the offender’s criminal record. For instance, the sentencing range for a first-time offender with a total offense level of 28 would be imprisonment for between 78 and 97 months (Category I); while the range for an offender in the highest criminal history category (Category VI) would be imprisonment for between 140 and 175 months.
The base offense level for conspiracy is generally the same as that for the underlying offense, either by operation of an individual guideline, for example, U. S. C. §2D1. 1 (drug trafficking), or by operation of the general conspiracy guideline, U. S. S. C. §2X1. 1. In any event, conspirators who play a leadership role in an enterprise are subject to an increase of from 2 to 4 levels,
U. S. S. G. §3B1. 1, and those who play a more subservient role may be entitled to reduction of from 2 to 4 levels, U. S. S. G. §3B1. 2. In the case of terrorism offenses, conspirators may also be subject to a special enhancement which sets the minimum total offense level at 32 and the criminal history category at VI (regardless of the extent of the offender’s criminal record), U. S. S. G. §3A1. 4.
The Sentencing Guidelines also address the imposition of fines below the statutory maximum. The total offense level dictates the recommended fine range for individual and organizational defendants. For instance, the fine range for an individual with a total offense level of 28 is $12,500 to $125,000, U. S. C. §5E1. 2. The recommended fine range for an organization with a total offense level of 28 is $6,300,000 (assuming the loss or gain associated with the organization offense exceeds the usual $500,000 ceiling), U. S. S. G. §8C2. 4.
A conspirator’s liability for restitution is a matter of circumstance. Most conspiracy statutes do not expressly provide for restitution, but in most instances restitution may be required or permitted under any number of grounds. As a general rule, federal law requires restitution for certain offenses and permits it for others. A sentencing court is generally required to order a defendant to make restitution following conviction for a crime of violence or for a crime against property (including fraud), 18 U. S. C. 366A(a), (c). Those entitled to restitution under Section 3663A include those ” directly and proximately harmed ” by the crime of conviction and “in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy or pattern,” 18 U. S. C. 3663A(b).
Otherwise, a court is permitted to order restitution (a) following conviction for an offense prescribed under title 18 of the United States Code or for drug trafficking, 18 U. S. C. 3663; (b) as a condition of probation or supervised release, 18 U. S. C. 3563(b)(2), 3583(d); or (c) pursuant to a plea agreement, 18 U. S. C. 3663(a)(3), 3663A(c)(2).
The treatment of forfeiture in conspiracy cases is perhaps even more individualistic than restitution in conspiracy cases. The general criminal forfeiture statute, 18 U. S. C. 982, authorizes confiscation for several classes of property as a consequence of a particular conspiracy conviction, for example, 18 U. S. C. 982(a)(2)(calling for the confiscation of proceeds realized from “a violation of, or a conspiracy to – (A) section . . . 1341, 1343, 1344 of this title relating to mail, wire and bank fraud, affecting a financial institution” ); 18 U. S. C. 982(a)(8)(calling for the confiscation of proceeds from, and property used to facilitate or promote, “an offense under section . . . 1341, or 1343, or of a conspiracy to commit such an offense, if the offense involves telemarketing” ).
In the case of drug trafficking, forfeiture turns on the fact that it is authorized for any Controlled Substance Act violation, 21 U. S. C. 853, of which conspiracy is one, 21 U. S. C. 846. The same can be said of racketeering conspiracy provisions of 18 U. S. C. 1962(d).
Relation of Conspiracy to Other Crimes
Conspiracy is a completed crime upon agreement, or upon agreement and the commission of an overt act under statutes with an overt act requirement. Conviction does not require commission of the crime that is the object of the conspiracy. On the other hand, conspirators may be prosecuted for conspiracy, for any completed offense which is the object of the conspiracy, as well as for any foreseeable offense committed in furtherance of the conspiracy.
Aid and Abet
Anyone who “aids, abets, counsels, commands, induces, or procures” the commission of a federal crime by another is punishable as a principal, that is, as though he had committed the offense himself, 18 U. S. C. 2. If the other agrees and an overt act is committed, they are conspirators, each liable for conspiracy and any criminal act committed to accomplish it. If the other commits the offense, they are equally punishable for the basic offense. “Typically, the same evidence will support both a conspiracy and an aiding and abetting conviction.” The two are clearly distinct, however, as the Ninth Circuit has noted:
The difference between the classic common law elements of aiding and abetting and a criminal conspiracy underscores this material distinction, although at first blush the two appear similar. Aiding and abetting the commission of a specific crime, we have held, includes four elements: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent to commit the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that the principal committed the underlying offense. As Lopez emphasized, the accused generally must associate himself with the venture . . . participate in it as something he wishes to bring about, and sought by his action to make it succeed.
By contrast, a classic criminal conspiracy as charged in 18 U. S. C. § 371 is broader. The government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. Indeed, a drug conspiracy does not even require commission of an overt act in furtherance of the conspiracy.
Two distinctions become readily apparent after a more careful comparison. First, the substantive offense which may be the object in a § 371 conspiracy need not be completed. Second, the emphasis in a § 371 conspiracy is on whether one or more overt acts was undertaken. This language necessarily is couched in passive voice for it matters only that a co-conspirator commit the overt act, not necessarily that the accused herself does so. In an aiding and abetting case, not only must the underlying substantive offense actually be completed by someone, but the accused must take some action, a substantial step, toward associating herself with the criminal venture. United States v. Hernandez-Orellana, 539 F. 3d 994, 1006-1007 (9th Cir. 2008).
Conspiracy and attempt are both inchoate offenses, unfinished crimes in a sense. They are forms of introductory misconduct that the law condemns lest they result in some completed form of misconduct. Federal law has no general attempt statute. Congress, however, has outlawed attempt to commit a number of specific federal offenses. Like conspiracy, a conviction for attempt does not require the commission of the underlying offense. Both require an intent to commit the contemplated substantive offense. Like conspiracy, the fact that it may be impossible to commit the target offense is no defense to a charge of attempt to commit it. Unlike conspiracy, attempt can be committed by a single individual. Attempt only becomes a crime when it closely approaches a substantive offense. Conspiracy becomes a crime far sooner. Mere acts of preparation will satisfy the most demanding conspiracy statute, not so with attempt. Conspiracy requires no more than an overt act in furtherance; attempt, a substantial step to completion. Moreover, unlike a conspirator, an accused may not be convicted of both attempt and the underlying substantive offense.
An individual may be guilty of both conspiring with others to commit an offense and of attempting to commit the same offense, either himself or through his confederates. In some circumstances, he may be guilty of attempted conspiracy. Congress has outlawed at least one example of an attempt to conspire in the statute which prohibits certain invitations to conspire, that is, solicitation to commit a federal crime of violence, 18 U. S. C. 373.
Section 373 prohibits efforts to induce another to commit a crime of violence “under circumstances strongly corroborative” of intent to see the crime committed, 18 U. S. C. 373(a). Section 373’s crimes of violence are federal “felonies that have as an element the use, attempted use, or threatened use of physical force against property or against the person of another,” id. Examples of “strongly corroborative” circumstances include “the defendant offering or promising payment or another benefit in exchange for committing the offense; threatening harm or other detriment for refusing to commit the offense; repeatedly soliciting or discussing at length in soliciting the commission of the offense, or making explicit that the solicitation is serious; believing or knowing that the persons solicited had previously committed similar offenses; and acquiring weapons, tools, or information or use in committing the offense, or making other apparent preparations for its commission.” As is the case of attempt, “an individual cannot be guilty of both the solicitation of a crime and the substantive crime.” Although the crime of solicitation is complete upon communication with the requisite intent, renunciation prior to commission of the substantive offense is a defense. The offender’s legal incapacity to commit the solicited offense himself, however, is not a defense.
Statute of Limitations
The statute of limitations for most federal crimes is five years, 18 U. S. C. 3282. The five-year limitation applies to the general conspiracy statute, 18 U. S. C. 371, and to the false claims conspiracy statute, 18 U. S. C. 286. Section 371 requires proof of an overt act; section 286 does not. For conspiracy offenses with an overt act requirement like those under Section 371, the statute of limitations begins with completion of the last overt act in furtherance of the conspiracy. For conspiracy offenses with no such requirement like those under section 286, the statute of limitations begins with the abandonment of the conspiracy or the accomplishment of its objectives.
The presence or absence of an overt act requirement makes a difference for statute of limitations purposes. For venue purposes, it apparently does not. The Supreme Court has observed in passing that “this Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense.” The lower federal appellate courts are seemingly of the same view, for they have found venue proper for a conspiracy prosecution wherever an overt act occurs — under overt act statutes and non-overt act statutes alike.
Joinder and Severance (One Conspiracy, One Trial)
Three rules of the Federal Rules of Criminal Procedure govern joinder and severance for federal criminal trials. Rule 8 permits the joinder of common criminal charges and defendants. Rule 12 insists that a motion for severance be filed prior to trial. Rule 14 authorizes the court to grant severance for separate trials as a remedy for prejudicial joinder.
The Supreme Court has pointed out that “there is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system. They promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” In conspiracy cases, a ” conspiracy charge combined with substantive counts arising out of that conspiracy is a proper basis for joinder under Rule 8(b).” Moreover, “the preference in a conspiracy trial is that persons charged together should be tried together.” In fact, “it will be the rare case, if ever, where a district court should sever the trial of alleged co-conspirators.” The Supreme Court has reminded the lower courts that “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” The Court noted that the risk may be more substantial in complex cases with multiple defendants, but that “less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.” Subsequently lower federal appellate court opinions have emphasized the curative effect of appropriate jury instructions.
Double Jeopardy and Ex Post Facto
Because conspiracy is a continuing offense, it stands as an exception to the usual ex post facto principles. Because it is a separate crime, it also stands as an exception to the usual double jeopardy principles.
The ex post facto clauses of the Constitution forbid the application of criminal laws which punish conduct that was innocent when it was committed or punishes more severely criminal conduct than when it was committed. Increasing the penalty for an ongoing conspiracy, however, does not offend ex post facto constraints as long as the conspiracy straddles the date of the legislative penalty enhancement.
The double jeopardy clause of the Fifth Amendment declares that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This prohibition condemns successive prosecutions, successive punishments, and successive use of charges rejected in acquittal.
For successive prosecution or punishment, the critical factor is the presence or absence of the same offense. Offenses may overlap, but they are not the same crime as long as each requires proof of an element that the other does not. 130 Since conspiracy and its attendant substantive offense are ordinarily separate crimes — one alone requiring agreement and the other alone requiring completion of the substantive offense — the double jeopardy clause poses no impediment to successive prosecution or to successive punishment of the two.
Double jeopardy issues arise most often in a conspiracy context when a case presents the question of whether the activities of the accused conspirators constitute a single conspiracy or several overlapping conspiracies. Multiple conspiracies may be prosecuted sequentially and punished with multiple sanctions; single conspiracies must be tried and punished once. Asked to determine whether they are faced with one or more than one conspiracy, the courts have said they inquire whether:
- the locus criminis place of the two alleged conspiracies is the same;
- there is a significant degree of temporal overlap between the two conspiracies charged;
- there is an overlap of personnel between the two conspiracies (including unindicted as well as indicted co-conspirators);
- the over acts charged are related;
- the role played by the defendant relates to both;
- there was a common goal among the conspirators;
- whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators; and
- the extent to which the participants overlapped in their various dealings.
At trial, the law favors the testimony of live witnesses — under oath, subject to cross examination, and in the presence of the accused and the jury — over the presentation of their evidence in writing or through the mouths of others. The hearsay rule is a product of this preference. Exceptions and definitions narrow the rule’s reach. For example, hearsay is usually defined to include only those out-of-court statements which are offered in evidence “to prove the truth of the matter asserted.”
Although often referred to as the exception for co-conspirator declarations, the Federal Rules of Evidence treats the matter within its definition of hearsay. Thus, Rule 801(d)(2)(E) of the Federal Rules provides that an out-of-court “statement is not hearsay if . . . (2) The statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”
To admit a co-conspirator declaration into evidence under the Rule, a “court must find: (1) the conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the co-conspirator made the proffered statements in furtherance of the conspiracy.” The court, however, may receive the statement preliminarily subject to the prosecution’s subsequent demonstration of its admissibility by a preponderance of the evidence. As to the first two elements, a coconspirator’s statement without more is insufficient; there must be ” some extrinsic evidence sufficient to delineate the conspiracy and corroborate the declarant’s and the defendant’s roles in it.” As to the third element, “a statement is in furtherance of a conspiracy if it is intended to promote the objectives of the conspiracy.” A statement is in furtherance, for instance, if it describes for the benefit of a co-conspirator the status of the scheme, its participants, or its methods. Bragging, or “mere idle chatter or casual conversation about past events, “however, are not considered statements in furtherance of a conspiracy.
Under some circumstances, evidence admissible under the hearsay rule may nevertheless be inadmissible because of Sixth Amendment restrictions. The Sixth Amendment provides, among other things, that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The provision was inspired in part by reactions to the trial of Sir Walter Raleigh, who argued in vain that he should be allowed to confront the alleged co-conspirator who had accused him of treason. Given its broadest possible construction, the confrontation clause would eliminate any hearsay exceptions or limitations. The Supreme Court in Crawford v. Washington explained, however, that the clause has a more precise reach. The clause uses the word “witnesses” to bring within its scope only those who testify or whose accusations are made in a testimonial context. In a testimonial context, the confrontation clause permits use at trial of prior testimonial accusations only if the witness is unavailable and only if the accused had the opportunity to cross examine him when the testimony was taken. The Court elected to “leave for another day any effort to spell out a comprehensive definition of ‘testimonial,'” but has suggested that the term includes “affidavits, depositions, prior testimony, or confessions ,and other statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Since Crawford, the lower federal courts have generally held that the confrontation clause poses no obstacle to the admissibility of the co-conspirator statements at issue in the cases before them, either because the statements were not testimonial; were not offered to establish the truth of the asserted statement; or because the clause does not bar co-conspirator declarations generally.
Obtain the Best Defense Against Federal Conspiracy Charges
Many people charged with federal drug conspiracies are concerned with predicting the outcome of their cases. They often wonder about the likelihood of a conviction and the length of a potential sentence. The truth is that, if you are charged with a drug conspiracy, your case can be very serious and complicated. A lot may depend on the drug quantity, the testimony of witnesses and on cooperation with the prosecution. Federal Criminal Lawyer Charles Johnson can help you navigate the legal system so that you can make decisions based on in-depth understanding of the consequences you may face.
In federal drug conspiracy cases, a lot has to do with the strength of the evidence. Experienced Attorney Charles Johnson skilled at helping clients evaluate whether to take a case to trial or whether to find other ways to resolve the issue more favorably. At the Charles Johnson Law Firm, we place a large emphasis on honesty with our clients. Although it is often more difficult to be realistic with clients than to promise miracles, we know that our clients and their families deserve the truth about the seriousness of federal drug conspiracy charges.
They also deserve the skilled legal representation we provide. Whether you are charged with criminal conspiracy, a continuing criminal enterprise or with a violation the Racketeer Influenced and Corrupt Organizations Act (commonly called RICO), we will use our knowledge and experience to strive for the best results possible.
Contact Houston Lawyer Charles Johnson anytime night or day at (713) 222-7577 to speak with him directly. Our law firm is dedicated to helping clients face drug conspiracy charges with confidence and dignity.
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