Conrad Barrett, 27, has been charged with a federal hate crime for allegedly breaking a 79-year-old man's jaw in what authorities described as a racist take on the "knockout game." The victim suffered two jaw fractures and was hospitalized for several days, the complaint said. Barrett's attorney, George Parnham, raised the issue of his client's mental health in court, saying his client has been diagnosed as bipolar and was not on his medication at the time of the attack. Parnham could not say whether his client carried out the attack, but, "mental health issues definitely played a part in anything that occurred." Barrett "is very sorry for this person," Parnham said, adding that he and his client haven't had much opportunity to discuss the facts of the case.
In Florida v. Jardines, the Supreme Court ruled that a “sniff test” by a drug detection dog at the front door of a home constituted an unreasonable “search” within the meaning of the Fourth Amendment. In that case, the Miami-Dade police received a “crime stoppers” tip that Mr. Jardines’ home was being used as a marijuana grow house. The police set up surveillance outside of his home and brought a drug detection dog to the porch of his residence. Only after the handler of the dog notified the detective that the dog had a positive alert for the odor of marijuana did the detective obtain a search warrant.
Consequently, the police searched his home, discovered the marijuana plants and arrested Mr. Jardines. After being charged and convicted of marijiuana trafficking, Jardines argued that the sniff test constituted an illegal search without probable cause and thus the evidence should be deemed inadmissible. The trial court granted Jardine’s motion to suppress the evidence, but the Florida Third District Court of Appeal reversed. On appeal, the Florida Supreme Court upheld the trial court’s decision, stating that the search was unlawful under the Fourth Amendment. The state appealed the case and the United States Supreme Court granted certiorari to review the case.
The Supreme Court affirmed the Florida Supreme Court’s decision by a 5-4 margin along ideological lines. Justice Scalia wrote the majority opinion for the court, joined by Kagan, Thomas, Ginsburg and Sotomayor. Justice Scalia’s majority opinion was focused on a citizen’s property rights rather than the right to privacy. The Court argued that at the heart of the Fourth Amendment stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”
The Court conceded that police officers have the right to engage a homeowner in a “knock and talk” for the purpose of gathering evidence without a warrant as homeowners have reasonable expectations that the public will approach their door. However, Scalia pointed out that homeowners do not license visitors to “explor[e] the front pant with a metal detector” or the police to “peer into the house through binoculars with impunity.”
The Court determined that bringing a drug detection dog onto a person’s property to obtain evidence without a warrant was an unreasonable search within the meaning of the Fourth Amendment. Although the majority opinion did not address whether Jardines’ privacy was implicated by the search, Justice Kagan wrote a concurring opinion, joined by Ginsburg and Sotomayor, arguing that both his privacy and property rights were implicated. The concurring opinion analogized drug detection dogs to the high-powered binoculars referenced in the majority opinion and argued that where a device is not “in general public use,” and is used to obtain evidence in one’s home, it violates a persons “minimal expectation of privacy.
The Fourth Amendment to the U.S. Constitution defines the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. If you have been subjected to an unreasonable search by law enforcement, contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com. for a free consultation. We are dedicated to protecting your Constitutional Rights.
According to crash report data compiled by the Texas Department of Transportation (TxDOT)Texas leads the nation in DWI fatalities, and although drunk driving accidents account for only about 4% of traffic accidents statewide, TxDOT reports
that DWI accidents were responsible for 1,099 deaths making them the leading cause of death on Texas roadways.
According to the same statistics Harris County led the state in DWI
Accidents, totaling more than 2,809 reported alcohol-related crashes in
2012. Houston alone had a total of 1,662 reported drunk
driving accidents and 94 fatalities in 2012.
In Texas, anyone who causes an auto accident while driving while intoxicated (DWI)
is facing very serious criminal charges. Convictions will mean felony charges and may result in 10 to 20 years in state prison if the accident resulted in serious
injury or death to another passenger or driver.
The two specific charges involved with vehicle accidents (including watercraft, aircraft and amusement rides) that involve impaired drivers are Intoxication Assault and Intoxication Manslaughter.
Intoxication Assault Texas Penal Code 49.07 states that a person commits an offense if the person, by
accident or mistake, while operating a motor vehicle in a public place
while intoxicated, by reason of that intoxication causes serious bodily
injury to another. Serious Bodily Injury refers to any injury that
creates a substantial risk of death, causes serious permanent
disfigurement or causes "protracted loss or impairment of the function of any
bodily member or organ."
Intoxication Assault is a third degree felony and punishable by 2 to 10
years in prison, fines of up to $10,000 and up to 600 hours of community
service. Texas law also requires any repeat intoxicated assault offenders to install an ignition interlock device on their primary vehicle: you are required to blow into this
device before you can start your car, and if it detects alcohol the vehicle will not start. You will not be allowed to drive any vehicle that is not
equipped with this device.
If you are charged with Intoxication Assault, the prosecution must only show beyond a reasonable
doubt that you were intoxicated and caused serious bodily injury to
another person; they do not need to provide any proof that you intended
to hurt another person. Even though the other parties injuries could
have been the result of an accident or mistake, you can still be
charged with this serious offense.
Intoxication Manslaughter is a second degree felony,
punishable by 2 to 20 years in state prison, fines of up to $10,000 and
up to 800 hours of community service. Intoxication Manslaughter differs from regular Manslaughter or Vehicular Manslaughter
charges, which require some evidence of a reckless act or reckless driving: by
the mere act of operating a motor vehicle in a public place while intoxicated the law automatically presumes that you are acting in a reckless manner. However, the State must prove beyond a reasonable doubt that the defendant's
intoxication was the cause of the other person’s death.
Intoxicated Assault and Intoxicated Manslaughter are extremely serious charges. If you have been in an accident and have been charged with impaired driving, you need an experienced criminal defense lawyer.
Contact Parnham & McWilliams today at
(713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.
Section 724.011 of the Texas State Transportation Code states that anyone who is arrested for Texas DWI: "is deemed to have consented, subject to this chapter, to
submit to the taking of one or more specimens of the person's breath or
blood for analysis to determine the alcohol concentration or the
presence in the person's body of a controlled substance, drug, dangerous
drug, or other substance."
This is known as "Implied Consent", and as mentioned earlier it essentially means that by the mere act of accepting a Texas State driver's license you have automatically consented to take a blood alcohol level test if the police deem it necessary.
Based on the implied consent clause, Texas (and many other states) have begun implementing what are known as "No Refusal" weekends. This program is a law enforcement strategy that allows jurisdictions to obtain search warrants for blood samples from any drivers who are suspected to be impaired but refuse roadside breath or blood tests. During these events, usually scheduled around holidays such as Labor Day or New Year's Eve the police, prosecutors and judges streamline the warrant acquisition process in order to obtain blood draw warrants.
During these "No Refusal" events the District Attorney’s Office usually stations staff members at centralized locations in order to immediately consult with the arresting officer. They collect the probable cause information used in the arrest and rubberstamp a warrant which is immediately faxed to a waiting judge. If there is any probable cause that warrant will be signed and returned, the suspect is taken to an on-site blood draw room and a nurse or phlebotomist will draw the suspect’s blood. If the suspect is uncooperative or combatant, officers will restrain the suspect while the blood draw is occurring.
This rubber-stamp process is prone to several types of legal errors; there may be an omission or a mistake on the warrant, the
warrant may not meet requirements for accuracy. There may also be issues with the probable cause as determined by the arresting officer. If you are facing Texas DWI charges, you need to hire a skilled
criminal defense attorney to help you navigate the legal system without
jeopardizing your rights. Contact Parnham & McWilliams today at
(713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.
Depending on the circumstances, we may be able to save your license.
In the State of Texas, a DWI arrest actually creates two separate cases: both the original criminal charge as processed through the county or district court system, as well as a separate civil proceeding known as Administrative License Revocation. Any driver arrested when they refuse a breath or blood
test -or fail the test- will automatically have their license suspended.
The Administrative License Revocation (“ALR”) program was created by
the Texas Legislature in 1993 and became effective on January 1, 1995 with the intent "...to provide a fair and efficient administrative hearing
process for determining whether the proposed suspension by the
Department of Public Safety (“DPS”) of the driver’s license of a person
who has been accused of driving or boating while intoxicated (or in
the case of minors, driving or boating with any detectable amount of
alcohol in their systems) should be upheld".
Texas maintains an "implied consent" statute, stating that any person who applies for a license to operate a motor vehicle on a public roadway has consented to provide a specimen of breath or blood if arrested for DWI. The implied consent statute also applies to watercraft in Texas.
If you are arrested for DWI and have a Texas driver's license, the police are required to take possession of it and issue you a temporary driving permit that will expire 41 days later. If you request a hearing to challenge the suspension, that will delay any ALR sanctions until a hearing takes place.
ALR suspension are automatic unless you specifically request a hearing to challenge the suspension, in writing, WITHIN FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency.
Even thought the notice of suspension states that the suspension will automatically begin 41 days, requesting a hearing postpones the suspension from starting until after the hearing actually takes place and an administrative decision is issued by a judge. Further, in the event of an ALR appeal your suspension can be delayed for an additional 90 days.
Burden of proof in an ALR hearing is on the Department of Public Safety: if you or your attorney have made the request for a hearing within the 15 day time limit, the Department of Public Safety must prove the following elements before a suspension can be imposed:
There must have been reasonable suspicion to stop or probable cause to arrest the driver,
The person was driving or in actual physical control of a motor vehicle in a public place while intoxicated,
The person was placed under arrest and was offered the opportunity to give a specimen of breath or blood after being notified both orally and in writing of the consequences of either refusing or failing a breath or blood test, AND
That the person either refused to give a specimen on request of the officer, or failed a breath or blood test by registering an alcohol concentration of .08 or greater per 100ml of blood or 210 liters of breath.
If you don't have any prior alcohol or drug related offenses during the previous 10-year period, the suspension is usually 180 days in cases where the driver refuses to submit to the test, or 90 days if the test results are above the legal limit.
If you DO have a prior alcohol or drug related charge within the past 10 years, a refusal will result in a two year suspension and a one year suspension if you take the test and the results are above the legal limit.
If no suspension is imposed at the hearing, DPS must return your license; if a suspension is ordered, either automatically or after a hearing, you must submit a reinstatement fee of $125.00 to TDPS before the license will be reinstated. Because reinstatement of your license will be held up until the fee has been both
received and entered on the TDPS computer system, it is usually advised to send your fee to TDPS as soon as you find out that a suspension has been ordered.
If you neglect to request an ALR hearing, your license will DEFINITELY be suspended. By requesting a hearing you have a chance to prevent your license from being suspended. If you have been arrested for DWI you need an experienced criminal defense lawyer to protect your license. Contact Parnham & McWilliams today at (713) 224-3967
Depending on the circumstances, we may be able to save your license.
Legal terminology may often be confusing, and this becomes apparent when applied to traffic laws- the ones we most commonly run afoul of. Two terms that are often intermingled are DWI (Driving While Intoxicated) and DUI (Driving Under the Influence). In some states the two terms are both used to describe impaired or drunken driving: in others both terms are used, with DWI referring to driving while intoxicated specifically by
alcohol and DUI being used when the driver is charged with being under
the influence of other drugs. The drugs don't necessarily have to be illegal narcotics for a DUI to be issued - they can simply be over the counter medication or prescription drugs.
In some states DUI is a lesser charge signifies a lower degree of intoxication (as determined by a
person's blood alcohol level at the time of arrest). For example, New York differentiates between DWI and DUI by establishing a blood alcohol level of .08 as the legal limit for DWI. If a person has a blood alcohol level of .07, the charges may be reduced to a DUI which carries a lesser punishment.
The distinction for the federal government is also based on severity; A
DWI is issued when the blood alcohol content (BAC) is over the 0.08
limit, whereas a DUI (a less severe term) applies when a persons BAC is
under 0.08. Because individual states have the power to regulate their own DWI/DUI laws the specifics vary across the country.
In Texas, the distinction is relatively simple: DWI is defined in Sec. 49.04. of the Texas State Penal Code and applies to any person over 21 years of age. In Texas, a person is legally intoxicated and may be arrested and
charged with Driving While Intoxicated (DWI) with a .08 BAC (blood or
breath alcohol concentration). However, a person is also intoxicated if
impaired due to alcohol or other drugs regardless of BAC. Texas DUI specifically refers to minors (persons under the age of 21) who operate a motor
vehicle
in a public
place while having any detectable
amount of alcohol in their system. Generally, an
offense under this section is a Class C Misdemeanor.
A conviction of DWI or DUI can have serious effects on your
employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer.
Contact Parnham & McWilliams today at
(713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.
Depending on the circumstances, we may be able to save your license.
One of the most frequently asked questions regarding DWI stops is whether or not a driver should submit to a voluntarybreathalyzer or blood test when pulled over by the police.
Before you can be convicted of driving while intoxicated in the State of Texas, the prosecution must prove
beyond any reasonable doubt that you were operating a motor vehicle in a
public place while the alcohol level in your blood was
over the legal limit, or that you didn’t "possess normal use of your
mental and/or physical faculties".
The police are legally limited in their ability to administer certain types of
field sobriety tests, and they must rely on your cooperation when performing these tests. Field tests are not always reliable and usually cannot be forced upon a person; in fact all machines used at the roadside are inaccurate for precisely measuring alcohol concentration.
Even if you have not been drinking, several factors can produce a false positive in a field breathalyzer including recent dental work, chemical exposure, and even the Atkins Diet. People who work in the oil field or car body shops
and even manicurists are exposed to substances in their work environments which can be mislabeled as "alcohol" by the machine.
The officer may tell you that the results will not be used in court, but
this is not true: if you do consent to the roadside test and it reports
0.080 or higher,
prosecution of your criminal DWI case has become much easier.
Despite your constitutional
protections against self-incrimination, if you refuse a roadside sobriety test the officer will almost certainly arrest you. At this point you will be required to take further, more accurate tests at the police station. Things now become more complicated legally, and it is strongly suggested that you immediately exercise your right to an attorney.
Because Texas has an implied consent clause (Section 724.011 of the Texas State Transportation Code) stating that
anyone who is arrested for DWI in Texas "is deemed to have consented... to submit to the taking of one or more
specimens of the person's breath or blood for analysis to determine the
alcohol concentration or the presence in the person's body of a
controlled substance", you have automatically agreed to take an alcohol or drug test if a police
officer deems it necessary by the simple act of getting arrested. However, you still have the right to refuse the breathalyzer and the blood test. This refusal could lead to a suspension of your driving privileges
for 180 days if this is your first DWI.
If you refuse to take the breathalyzer or blood test or you accept
and fail, you have 15 days to request a hearing to save your license. If you don’t request this hearing within 15 days, you can’t stop your license from being suspended. Nonetheless, it is much harder for the prosecutor to convict you if you have refused
all sobriety tests because they don’t have any evidence to use against
you.
Police have also adopted "No Refusal" policies in some jurisdictions; if a driver refuses to give a voluntary sample, the police will seek a
warrant from a judge authorizing them to take a blood sample to determine the
driver's blood alcohol content (BAC).
Generally speaking, the attorneys at Parnham and McWilliams advise clients to refuse a roadside breathalyzer test and immediately exercise your right to an attorney unless you are 100% certain that the test will be clean.
A conviction of DWI or DUI can have serious effects on your
employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer.
Contact Parnham & McWilliams today at
(713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.
Depending on the circumstances, we may be able to save your license.
In Texas the legal limit for intoxication is .08% Blood Alcohol Concentration (BAC) as set out in Title 10, Chapter 49 of the State Penal Code. For commercial drivers the limit is .04%, and no detectable amount is allowed for minors. However, if an officer even suspects your driving is impaired you can still be stopped and arrested for DWI regardless of your BAC. In most cases the suspicion of DWI also gives the police a probable cause to search your vehicle.
It is also illegal to have an open container of alcohol in the
passenger area of your vehicle if you’re driving or parked on a public
highway. A simple open container violation results in a maximum $500 fine and a Class C misdemeanor, but if you’re arrested for DWI and open container, you’ll get a Class B misdemeanor and a minimum of 6 days in jail.
If you are signaled to stop by police, do your best to pull over
immediately. Do not wait to find a parking lot or side street unless
the location is immanently hazardous: the police may interpret it to
mean that you were trying to avoid them and it will immediately raise
suspicion. Come to a complete stop, roll down your window, and stop
your engine. Make sure you have your seatbelt fastened. Give the
police your driver's license, registration and insurance information as
quickly as possible.
Don’t talk unless spoken to. Answer questions
in short, truthful statements. You do not have to speak directly into
the officer's face or look the officer in the eyes. The less you say,
the less opportunity the police will have to interpret the smell of
your breath or speech.
If the police ask you to step out of the car do not lean against your car for support or make any physical
motions that would cause the police to believe that you may be
impaired. Assume that the entire traffic stop is being video taped.
Remain where the camera will follow your actions and don't give the
prosecution any video evidence that can be used against you.
If the police ask you to take a field sobriety test do not argue with them on constitutional grounds: the act of
accepting a driver's license automatically grants implied consent for
the police to administer tests. If you have some underlying medical condition that may prevent you
from performing a field sobriety test or may adversely affect the
outcome of such a test, inform the officer clearly and politely.
The police cannot physically force you to take the test. You may refuse to take the field sobriety test,
but if you choose to do so immediately exercise your right to an
attorney. If you you refuse they will be required to read
your rights and warn you of the consequences. At this point you will
most likely be arrested.
If the police ask you to take a roadside breath test: The handheld breath tester is inaccurate and not admissible in
court, but police officers will use the test to determine if they can
arrest you and proceed with further testing. If you have any suspicion that the test will not come out 100% clean
it is advisable to refuse this test and immediately exercise your right
to an attorney. The officer will likely urge you to take it, but
in most cases they have already made the decision to arrest you at this
point and you will still be required to take more accurate tests at
the police station.
At the police station, you will be asked to submit to a breath test
and a blood test to determine your blood alcohol content. If you fail
either of these tests the prosecutor will use the test results against
you. If you refuse to take the tests, you should invoke your right to an
attorney immediately.
Penalties for DWI in Texas are based on several factors such as age, your license type and circumstances such as passengers in the vehicle or additional violations. A first offense for even basic DWI can result in fines up to $2,000, 3 days to 6 months in jail, license suspension for up to 2 years and mandatory educational programs. Additional offenses are very severe.
Any conviction of DWI can have serious effects on your
employment, insurance costs and other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer.
Contact Parnham & McWilliams today at
(713) 224-3967 or visit www.parnhamandmcwilliams.com
Depending on the circumstances, we may be able to save your license.
Texas established its first juvenile court in 1907 to “...mend the ways of erring children,” according to a 1908 statement by Bexar County Judge Phil Shook.
The Texas Juvenile Justice System is based on the concept that children aged 10 through 17 are different from adults, and should be treated differently from adults. Separate courts, detention facilities and laws have been created for juveniles with the intent to protect their welfare and rehabilitate them. Nonetheless, the law provides heavy penalties for juveniles who persist in breaking the law or those who commit serious felonies. In certain cases this may include incarceration in adult prisons.
Provisions to enabled juveniles to be tried in criminal court under certain circumstances have been in place since the 1920's in some states, and by the 1940's most others had followed suit. Today all states have at least one provision for trying juveniles as adults in criminal court, typically limited by age and offense criteria.
Texas Juvenile Court
The Texas Juvenile Court has exclusive jurisdiction over nearly all criminal offenses committed by juveniles, who are defined to be anyone 10 years of age or older but under 18. For discretionary waiver, the minimum age is generally 14. A “once an adult always an adult” policy is enforced for felony charges unless the original case was acquitted, dismissed or reversed.
Texas Penal Code §8.07(b) provides for age affecting criminal responsibility, and states that:
A person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age except:
perjury and aggravated perjury when it appears by proof that the person had sufficient discretion to understand the nature and obligation of an oath;
a violation of a penal statute cognizable under Chapter 729, Transportation Code, except for conduct for which the person convicted may be sentenced to imprisonment or confinement in jail;
a violation of a motor vehicle traffic ordinance of an incorporated city or town in this state;
a misdemeanor punishable by fine only;
a violation of a penal ordinance of a political subdivision;
a violation of a penal statute that is, or is a lesser included offense of, a capital felony, an aggravated controlled substance felony, or a felony of the first degree for which the person is transferred to the court under Section 54.02, Family Code, for prosecution if the person committed the offense when 14 years of age or older; or
a capital felony or an offense under Section 19.02 for which the person is transferred to the court under Section 54.02(j)
It is important to note that the age limitation is considered jurisdictional. Article 4.18 requires that a defendant or underage child raise the issue of being underage by written motion and the issue must also be presented to the district court judge. If the issue of underage is not raised by written motion in district court, then the issue will be considered waived.
Certification Process
In Texas the judicial waiver process is used in removing juveniles to adult criminal court, and is referred to as discretionary transfer or most commonly certification. Certification allows a juvenile judge to make the determination whether a juvenile respondent is transferred from the juvenile system to the adult criminal system.
Certification proceedings are initiated by the state filing a motion or petition for discretionary transfer and the issuance of a summons. Minimal requirements for certification allow prosecutors a wide range of discretion, but they are usually limited to more serious offenses such as juveniles with a chronic history of delinquency or individuals currently over eighteen but accused of committing offenses when they were younger than seventeen.
the child is alleged to have violated a penal law of the grade of felony;
the child was:
a. fourteen or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a first degree felony; or
b. fifteen or older at the time he or she allegedly committed a second degree felony, a third degree felony, or a state jail felony; and no adjudication hearing has been conducted concerning that offense;
after a full investigation and a hearing, the juvenile court finds that:
a. there is probable cause to believe that the child committed the offense, and
b. because of the seriousness of the offense alleged or the background of the child, the welfare of the community requires criminal proceedings
Once a juvenile is certified to stand trial as an adult all of the protections available in the juvenile system are lost and the adult system takes over.
Consequences of Certification
The consequences of transfer to an adult court are very serious, and allow for the same penalties as provided to adults including life without parole. If convicted, there will be an adult criminal record which may significantly affect future education and employment opportunities as well as the loss of rights including the right to vote or to own a firearm.
But even though a juvenile tried as an adult will face harsher penalties, they will also have access to constitutional rights which are restricted in juvenile court. A criminal defense attorney may actually want the trial held in adult court in order to exercise the right to a jury trial, as a jury may prove far more sympathetic to the minor than a juvenile court judge.
Controversies
Each year thousands of minors are referred to juvenile probation departments across Texas for reasons ranging from minor offenses (such as theft) to sexual assault and homicide. They are generally housed in adult jails even before they stand trial, and may be kept in isolation conditions for a year or more. Studies have shown that the transfer of minors into the adult system serves no deterrent value, but in fact increases rates of recidivism, suicide, and sexual or physical assault. Other studies show links between the incarceration of minors in adult correction facilities and the development or exacerbation of mental illness.
Most minors lack the reasoning skills required to fully comprehend the trial and sentencing process, and even if they do understand their rights they most probably lack the experience to utilize them correctly. Juveniles may falsely believe that an arrest automatically equates to guilt, and false confessions are common as they don’t fully understand the right to remain silent. Other common issues include a false belief that they must speak in court, automatically accepting any information regarding their legal status from a police officer or a prosecutor, or waiving their right to a public defender due to distrust of authority figures.
Many children are not fully aware of the magnitude of their actions and don’t deserve tough sentences. Some even have learning disabilities and impulse control problems like A.D.H.D. or A.D.D. and really just need medication or a good therapist. However the “tough on crime” juvenile justice system may become overly aggressive with your child and attempt to take them away until they turn 18 or sometimes much longer. It is not unusual for sentencing to include counseling, detention in a youth facility such as a boot camp, juvenile hall, or youth authority facility. Because of these possibilities, as well as the special laws involved with juvenile offenses, having a criminal attorney there to fight back and attempt to get the charges dropped or reduced is absolutely essential.
The juvenile justice system is complex, but the rights of juveniles are the same as those of adults. Your child has the right to proper disclosure of charges, a legal defense and a humane arrest. If your child is facing serious criminal charges, please contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com.
In 1973 America was gripped by the Watergate scandal, one of the largest and most infamous in the Nation's history. Beginning with the arrest of five men for breaking and entering into the Democratic National Committee (DNC) headquarters at the Watergate complex on June 17, 1972, it would ultimately result in the trials and convictions of dozens of President Richard Nixon's top administration officials and the resignation of Nixon himself.
In February 1973 the Senate created the Select Committee on Presidential Campaign Activities (Resolution S.60) to investigate Watergate and other Nixon campaign abuses, and in May Special Prosecutor (Archibald Cox) was sworn in by the U.S. Department of Justice to direct the investigation.
During the course of their work, the Office of the Special Prosecutor charged several corporations and CEOs with using corporate funds for illegal political contributions. The U.S. Securities and Exchange Commission (SEC) soon recognized the significance to public investors, and their own subsequent inquiry revealed falsifications of corporate financial records as well as secret “slush funds” being used for illegal foreign payments and other purposes.
The SEC eventually exposed further corporate abuses ranging from the outright bribery of high foreign officials to so-called "facilitating payments" made to government functionaries for certain ministerial or clerical duties. Major examples included officials of the Lockheed Aerospace Company paying over $14 million in bribes to various foreign officials in the process of negotiating the sale of aircraft, and the "Bananagate" scandal in which Chiquita Brands paid over $2.5 million in bribes to the President of Honduras to lower taxes on banana exports.
By the culmination of the SEC investigation, over 400 U.S. companies had admitted making questionable or illegal payments in excess of $300 million to foreign government officials, politicians and political parties.
Originally the SEC wasn't directly concerned with the legal implications of bribery: the international business climate of the time had seen such payments as a necessity in order to remain competitive in a rapidly growing corporate environment. Rather, the specific concerns of the SEC were directed at the nondisclosure of such massive payments to investors; the hidden "slush funds" clearly undermined the integrity and reliability of corporate books and records, and the very foundation of the disclosure system established by federal securities laws.
Congress, however, was seriously concerned with the implications these payments had on U.S. foreign policy. The 1975 Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Senator Frank Church, had been conducting their own investigation and in a series of hearings that year outlined the involvement of various government organizations including the FBI and CIA. And beyond issues of foreign policy, a "post-Watergate morality" was rapidly coming into play, causing concerns over international perceptions of the U.S. economic stability and the Nation's position as a global leader.
Between June 1975 and September 1977 approximately twenty bills were introduced to address the issue of foreign corporate payments: in March 1976 President Gerald Ford issued a memorandum to various federal agencies establishing a “Task Force on Questionable Corporate Payments Abroad”.
Finally, after more than two years of deliberation, Congress passed the first law in the world governing domestic business conduct with foreign government officials in foreign markets.
The Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1) was signed into law by President Jimmy Carter on December 19, 1977 with the intended purpose of ending corporate bribery of foreign officials, and the restoration of public confidence in the American business system.
It was amended in 1998 by the International Anti-Bribery Act of 1998 to implement the anti-bribery conventions of the Organization for Economic Co-operation and Development.
Actions:
The Foreign Corrupt Practices Act (FCPA) essentially addresses a) accounting transparency requirements under the Securities Exchange Act of 1934 and b) the bribery of foreign officials by persons connected to the United States, including:
U.S. businesses
• Foreign corporations trading securities in the United States
American nationals or citizens
Residents acting in furtherance of a foreign corrupt practice whether or not they are physically present in the United States
Foreign natural and legal persons in the United States at the time of the corrupt conduct
Foreign firms and/or persons who take any act in furtherance of such a corrupt payment while in the United States.
Regarding accounting transparency, 15 U.S.C. § 78m requires companies with securities listed in the United States to meet specific accounting practices intended to operate in tandem with the FCPA anti-bribery provisions. Corporations covered by these provisions are required to keep books and records that accurately reflect transactions and to maintain adequate internal accounting controls.
The anti-bribery provisions of the FCPA are not restricted to monetary exchanges (the focus is on the intent of bribery rather than the amount), and may include anything of value given to a foreign official for the purpose of obtaining, retaining or directing business to any person or company covered by the law.
Specifically, the anti-bribery provisions of the FCPA prohibit:
"...the willful use of the mails or any means of instrumentality of interstate commerce corruptly in furtherance of any offer, payment, promise to pay, or authorization of the payment of money or anything of value to any person, while knowing that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to a foreign official to influence the foreign official in his or her official capacity, induce the foreign official to do or omit to do an act in violation of his or her lawful duty, or to secure any improper advantage in order to assist in obtaining or retaining business for or with, or directing business to, any person."
The definition of "foreign official" is broad; examples may include doctors at government-owned or managed hospitals or anyone working for a government managed institution. Employees of international organizations such as the United Nations are also considered to be foreign officials under the FCPA.
The Act also governs payments to any recipient if any part of the bribe is ultimately attributable to a foreign official, candidate, or party.
It does draw a distinction between "bribery" and "facilitation" payments, which are made to an official to expedite performance of the duties they are already bound to perform. Payments may also be legal if they are permitted under the written laws of the host country, or if they relate to product promotion.
Penalties:
The U.S. Department of Justice is chief enforcement agency for the FICA, with the Securities and Exchange Commission (SEC) acting in a coordinating role. DOJ involvement in an FCPA matter is guided by the Principles of Federal Prosecution in the case of individuals, and the Principles of Federal Prosecution of Business Organizations in the case of companies. Generally, the following circumstances may trigger an FCPA investigation:
Unusually large commissions, retainers or fees
Refusal to make FCPA-related representations
Unusual methods of payments
Promises of business by or from a government official
Family or business relationships with a government official
Payments of unusual contingent fees
Political contributions
Penalties for corporations and other business entities found in violation of the FCPA may include fines of up to $2 million; individual directors, officers, stockholders, employees and agents can be subject to fines of up to $100,000 and imprisonment for up to five years, although individuals are only subject to the FCPA’s criminal penalties for violations if they acted “willfully". These fines are imposed per occurrence, and individuals fined for violations of the Act may not be indemnified by their employer.
Both companies and individuals can also be held civilly liable for aiding and abetting FCPA anti-bribery violations if they knowingly or recklessly provide substantial assistance to a violator. The attorney general or the SEC may bring a civil action for violation of the FCPA, resulting in fines of up to $10,000 per violation against any firm, its directors, officers, employees, agents and stockholders. In addition, the SEC may seek to impose fines not to exceed (1) the gross amount of the pecuniary gain to the defendant as a result of the violation, or (2) an amount of up to $100,000 for individuals and $500,000 for business entities.
Under federal law, individuals or companies that aid or abet an FCPA violation are as guilty as if they had directly committed the offense themselves.
Defense:
The FCPA contains an exception for "facilitating payments" for "routine governmental action," (also known as "grease" payments) intended as a defense for payments, gifts or tips made in facilitation of non-discretionary acts of lower-level officials as long as they have no discretion to award business to the party making the payment. If a defendant can assert that a payment was legal under the laws of the foreign country in which the payment was made, or that a payment was a reasonable expenditure directly related to promotion, demonstration, or explanation of products or services this may also be used as an affirmative defense.
While conducting research on ecological issues in the early 1970's, author and activist Ralph Nader coined the term "whistleblower" for citizens who expose misconduct occurring within an organization. Prior to that the press had used terms such as "informers" or "snitches", which carried obviously negative connotations. Attitudes towards whistleblowers still vary widely; they may be seen either as selfless martyrs for public interest, or as traitors solely pursuing personal glory and fame. Nonetheless, whistleblowers perform a vital role in helping the government maintain public safety, corporate transparency and financial regulation.
Most whistleblowers are internal whistleblowers, employees who report misconduct by a fellow employee or superior within their company. External whistleblowers report misconduct to outside persons or entities such as attorneys, the media, law enforcement agencies or specific watchdog groups.
In some cases whistleblowers have been subjected to criminal prosecution in reprisal for reporting wrongdoing; because of these repercussions faced from the organizations or groups they have accused, specific laws have been enacted to protect whistleblowers acting in the interest of the government or public. Private organizations such as the National Whistleblowers Center have also formed legal defense funds and support groups to assist whistleblowers.
The False Claims Act:
The False Claims Act (31 USC § 3729) is the foundation of the U.S. whistleblower system. It is the most widely used statute employed by whistleblowers to report on corporate fraud and misconduct, and the model for other federal and state whistleblower provisions.
In the midst of the American Civil War, the Union Army found itself facing a horde of unscrupulous contractors passing off rancid food, ailing livestock and defective weapons. Recognizing that the embattled government lacked the capabilities to control the widespread fraud on its own, Congress passed the first US law adopted specifically to protect whistleblowers, the False Claims Act (also known as the "Lincoln Law") on March 2, 1863.
This law establishes liability when any person or entity improperly receives payments from -or avoids payment to- the Federal government (tax fraud is excepted). Importantly, it revived the thirteenth-century English legal tradition of qui tam (derived from a Latin phrase meaning "he who sues on the King's behalf as well as his own"); allowing a private citizen (known as a "relator") to not only bring a lawsuit on the government's behalf, but also to be rewarded with a percentage of any proceeds recovered by the government. The False Claims Act prohibits:
Knowingly presenting, or causing to be presented a false claim for payment or approval;
Knowingly making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim;
• Conspiring to commit any violation of the False Claims Act;
Falsely certifying the type or amount of property to be used by the Government;
Certifying receipt of property on a document without completely knowing that the information is true;
Knowingly buying Government property from an unauthorized officer of the Government, and;
Knowingly making, using, or causing to be made or used a false record to avoid, or decrease an obligation to pay or transmit property to the Government.
The most commonly used provisions are the first two, prohibiting the presentation of false claims to the government and the fabrication of records to get a false claim paid: these cases frequently involve situations in which a corporation or individual overcharges the federal government for goods or services. Other typical cases entail failure to test a product as required by government specifications, or selling defective products. The key factor in determining whether conduct is covered by the False Claims Act is whether that conduct caused the government to suffer a financial loss.
The False Claims Act was amended in 1943, (most notably to reduce the relator's share of recovered proceeds) but its qui tam provisions were largely ignored until an increase in military spending during the Reagan presidency.
Amid widespread reports of $1,000 bolts, $7,000 coffee pots and other outrageous abuses by government contractors, the law was amended in 1986 to impose fines of up to $10,000 for each false claim. The amendment also tripled damages on wrongdoers, rewards whistleblowers with up to 30 percent of the government's recovery, and includes significant anti-retaliation protections for employees who blow the whistle.
Yet despite being the primary tool used by the government and whistleblowers to combat fraud, the False Claims Act is limited in scope: primarily, it only applies when the fraud or misconduct has caused the government to lose money. Other congressional Acts which have been passed to strengthen protection for federal whistleblowers include the Lloyd–La Follette Act (5 U.S.C. § 7211) of 1912 which confers job protection rights on federal employees who criticize their superiors, and similar protections included in subsequent federal environmental, health and safety laws.
The Sarbanes–Oxley Act (Pub.L.107–204,116,Stat.745), also known as SOX, was enacted in 2002 in reaction to a number of major corporate and accounting scandals and Section 1107 provides criminal penalties for retaliation against whistleblowers. Until recently however there was no real financial incentive or legal protection available to encourage whistleblowers to expose other types of fraud; i.e., frauds such as those perpetrated against private investors.
The Dodd-Frank Act:
The Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111–203, H.R. 4173) was signed into law by President Barack Obama on July 21, 2010 as a response to the late-2000s recession, implementing the most significant changes to U.S. financial regulation since the Great Depression. This Act made changes in the American financial regulatory environment that affect all federal financial regulatory agencies along with virtually every part of the nation's financial services industry.
Dodd-Frank proposed eight areas of regulation, primarily:
Regulation of credit cards, loans and mortgages is consolidated under The Consumer Financial Protection Bureau.
Establishment of the Financial Stability Oversight Council to oversee Wall Street.
Establishment of the Volcker Rule banning banks from using or owning hedge funds for the banks' own profit.
Requiring that the riskiest derivatives, like credit default swaps, be regulated by the Securities Exchange Commission (SEC) or the Commodity Futures Trading Commission (CFTC).
Requiring hedge funds to register with the SEC and provide data about their trades and portfolios so the SEC can assess overall market risk.
Creation of an Office of Credit Ratings at the SEC to regulate credit ratings agencies.
Creation of a new Federal Insurance Office under the Treasury Department, which identifies insurance companies that create risk to the entire system.
Allowing the Government Accountability Office(GAO) to audit the Fed's emergency loans during the financial crisis.
The Dodd-Frank Act also includes important whistleblower provisions in section 922, largely modeled after the False Claims Act; however, a compelling difference between the False Claims Act and the Dodd-Frank whistleblower provisions is that Dodd-Frank does not require the fraudulent activity be committed against the government.
In fact, although the False Claims Act allows whistleblowers to pursue a qui tam action even if the government chooses not to intervene, Dodd-Frank does not supply whistleblowers with the “private right of action” required to bring a lawsuit on behalf of the United States government. If the government opts not to pursue a case under the Dodd-Frank Act, the whistleblower’s claim is terminated.
Whistleblowers are required to provide information that is not publicly known, but Dodd-Frank also rewards SEC whistleblowers who provide unique analysis based completely on public information. For example, if fraud can be demonstrated using public statistics or information a citizen can qualify to become a whistleblower. In further contrast to the False Claims Act, which only rewards the first whistleblower filing a complaint, whistleblowers who provide meaningful information assisting the government in combating securities fraud under Dodd-Frank may be rewarded regardless of whether they were the first to file.
Dodd-Frank whistleblowers do not file formal complaints in a federal court, but within the appropriate agency. For example, securities violations are filed with the SEC and commodities violations are filed with the CFTC.
The Dodd-Frank whistleblower provisions also take important steps to protect citizens who report securities fraud with an anti-retaliation provision which prohibits “... adverse action against a whistleblower arising out of disclosures protected under Sarbanes-Oxley; the Securities Exchange Act of 1934; and any other law, rule, or regulation subject to the jurisdiction of the SEC.”
Filing a whistleblower claim:
Common examples of fraud or misconduct that may be targeted by a whistleblower claim may include:
Billing the government for products or services not provided, or that are defective, mislabeled or otherwise different from the products or services the government contracted.
Failing to report government over-payments.
Obtaining government funds using false certifications of compliance or through violations of law.
Selling or marketing drugs outside of the FDA approved uses.
Accounting fraud
Fraud or manipulation of trading in securities or commodities, or the improper sale of securities, bonds, or commodities.
In order to file any whistleblower claim you must have evidence of fraud or other misconduct that directly causes a financial loss to the government (under the False Claims Act and related statutes), a financial loss to investors from securities or commodities fraud (under the Dodd-Frank Act), or harm to specific employees or the public at large (under various other laws designed to protect the environment, financial markets, health and safety and consumer welfare).
While a whistleblower does not need to have witnessed the case of fraud or misconduct personally, they must have concrete and specific evidence: suspicions or beliefs are not sufficient. Documentation supporting a claim greatly increases the likelihood that authorities will take it seriously. In some cases public information may be used to support a whistleblower claim, but it must be information that the government does not already possess and could not otherwise obtain from any public source or its own records.
Time is an essential factor in filing a whistleblower claim. The "first to file" rule will preclude any claim if one has already been filed based on the same facts, but multiple whistleblowers may file a joint claim or separate claims based on different evidence. The claim must also be brought within the statute of limitations: generally within six years of the violation under the False Claims Act and within three years of the violation under the Dodd-Frank Act. For violations of the various state FCA and industry specific laws, claims usually must be reported anywhere from 30 days to 6 years after the violations depending on the particular statutes.
"Heat of passion" is a legal defense argument usually raised in murder, attempted murder or manslaughter cases, and is intended to eliminate the element of premeditation. A defendant may use it when they want to argue that their actions were provoked by intense and immediate emotions such as fear, rage, anger or terror. A key issue in the defense is adequate provocation, a situation that might naturally cause a reasonable person, in the passion of the moment, to lose self-control and act on impulse without taking an opportunity to reflect on the outcome.
An example of this defense could be illustrated by a case in which a spouse or lover finds their partner sexually involved with another person, goes into a rage and kills one or both of them. If the defendant acted immediately after or during the provocation, without taking the time to rationalize their actions, it may eliminate the element of premeditation and may help reduce a person’s criminal charges or sentence. It is sometimes called the "Law of Texas" since juries in that state are supposedly lenient to lovers who wreak their own vengeance.
Heat of passion is not used to dispute whether a person is responsible for their actions, but to defend the particular state of mind that a person was in when those actions were committed.
When the law defines an action as a criminal offense, that definition is usually very specific. Legal definitions of a crime commonly contain a number of circumstances, or elements, that must exist. Premeditation is one element clearly stated in the definition of many crimes, referring to the thoughts, plans or ideas that a person has relative to the crime before it is actually committed. The heat of passion defense disputes any intentions to commit the crime before the defendant was placed in the situation where the crime was committed, and is used to argue that a person’s actions were impulsive.
But premeditation is not the only issue to consider when arguing heat of passion: in order to effectively apply this argument the circumstances must generally be such that another reasonable person, in a similar situation, would have reacted in a similar fashion. This means that the defendant's mental state at the time of the offense has to be taken into account, and it must be determined that their mental state is "reasonable" even though they were in an obvious state of extreme emotional duress. In an example such as the one above a judge or jury would need to consider whether adultery or infidelity could cause another person of sound mind to lose control and commit the same crime under the same circumstances.
Because the heat of passion argument in a legal defense depends on a person’s mental state, there is generally no question about whether the accused actually committed a physical act. Instead, the defense is generally used for two purposes; in some cases it may determine the actual charges as applied to a person’s actions, for example in reducing a charge of murder to manslaughter. In other cases where the charges are appropriate to the case, the heat of passion defense may convince a judge or jury to lessen the sentence.
The state of Texas recognizes four different categories of homicide that can result in criminal charges: Capital Murder, Murder, Manslaughter, and Criminally Negligent Homicide. These charges depend on a number of elements, including the circumstances surrounding the homicide and whether criminal intent was involved. Although many states make a legal distinction between voluntary and involuntary manslaughter, Texas State Law combines both concepts into a single definition but still allows for differing circumstances: i.e. intoxication manslaughter (recklessly causing the death of another while intoxicated ) and vehicular manslaughter (recklessly causing the death of another while driving a vehicle or vessel).
Murder cases in Texas are generally prosecuted as a first degree felony, which carries a sentence of up to 99 years in state prison and/or a fine of no more than $10,000.
In the Texas State Penal Code (Sec. 19.02.) "Sudden passion" is defined as "...passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation."
The law further states in paragraph (d) that "At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree." In this situation the heat of passion argument is central to discriminating between first and second degree charges.
Forfeiture is a broad term which refers to a loss of property without compensation. The legal history of United States forfeiture laws originated in English Common Law, which allowed for the seizure of properties under three distinct doctrines; escheat upon attainder, in which a person's property reverted to the government upon conviction for a felony or treason; deodand, (guilty property) which allowed the courts to seize property if that particular property was directly involved in an offense regardless of the owner's culpability, and statutory forfeiture which could only be based on specific written laws.
As the laws evolved in the American colonies only statutory forfeiture was legally recognized; forfeiture of property was allowed only if required pursuant to written law. But those written laws did sustain the concept of deodand, which still exists in both Federal and State legislation.
Through most of American history the government itself rarely invoked forfeiture law, except in cases of tax-revenue violations or extreme cases such as piracy. However, in 1970 Congress enacted the Comprehensive Drug Abuse Prevention and Control Act (21U.S.C.A. § 881), which authorized federal prosecutors to bring civil forfeiture actions against the properties of persons convicted of participating in "continuing criminal enterprises". At first this law was severely limited in practice, but by 1978, Congress had amended it to allow the forfeiture of any proceeds and property traceable to the purchase of an illegal drug.
The Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C.A. §§ 1961 et seq.) is another vehicle for forfeiture in federal court. RICO allows federal authorities to seize the property of persons engaged in a pattern of racketeering; persons who are convicted two or more times within a ten-year period of certain crimes such as murder, kidnapping, perjury, extortion, gambling or narcotics offenses may be forced to forfeit any property that is traceable to the crimes.
Under the 1978 amendments -known as the Psychotropic Substances Act- the federal government was authorized to proceed in rem against property; i.e., forfeiture actions are taken against the property itself, not against its owner. In these proceedings the guilt or innocence of the property owner is irrelevant: the government may seize property from persons suspected of a crime without actually charging them.
In 1984 the Forfeiture Act was further amended by the Comprehensive crime control act which expanded it to authorize the forfeiture of real property (land and buildings) that is purchased, used, or intended to be used to facilitate narcotics trafficking. However, in some cases courts have allowed real property forfeiture regardless of whether the property was used to store or manufacture drugs.
Texas State Forfeiture Laws:
In Texas, asset forfeiture is covered by The Code of Criminal Procedure (chapter 59) which defines property subject to forfeiture (“contraband”), the persons who may claim the property, and the procedures required for the state to seize the property. Forfeiture cases are “civil cases” in Texas.
Article 59.01 of the Texas Code of Criminal Procedure defines “Contraband” as “property of any nature, including real, personal, tangible, or intangible" that is used in the commission of any first or second degree felony under the Penal Code, in the statute itself, or in several other statutes. “Contraband” also includes the proceeds acquired from the commission of felonies listed in the statute or gained from a crime of violence.
In order to secure a forfeiture of property in Texas the State must prove by "a preponderance of the evidence” that the property is contraband; in other words, that it was used in the commission of a crime or it is the proceeds from illegal activity.
Although Chapter 59 does not provide additional evidentiary requirements beyond proof that the property is contraband, the Texas Supreme Court has ruled that the State must also show probable cause, and in this context the Fifth Circuit Court of Appeals has held that probable cause is a reasonable belief that “a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.”
In interpreting Chapter 59, Texas courts have ruled that contraband is money or other property derived from or intended for use in a criminal transaction. Forfeiture proceedings are therefore available to prosecutors in almost every conceivable criminal case.
However, Chapter 59 of the Texas Code of Criminal Procedure also provides a safe harbor for "innocent owners." Pursuant to article 59.02(c), "[a]n owner or interest holder's interest in property may not be forfeited . . . if the owner or interest holder:
Acquired and perfected the interest before or during the act or omission giving rise to forfeiture or, if the property is real property, he acquired an ownership interest, security interest, or lien interest before a lis pendens notice was filed;
and
Did not know or should not reasonably have known of the act or omission giving rise to the forfeiture or that it was likely to occur at or before the time of acquiring and perfecting the interest or, if the property is real property, at or before the time of acquiring the ownership interest, security interest, or lien interest."
The statutory safe harbor is an affirmative defense, i.e. the party must prove their status and that it is exempted from the statute because of the standing of another person (besides the criminal actor) as an owner of the property.
Controversies:
Civil asset forfeiture has been strongly criticized by civil liberties advocates for its reduced standards for conviction and the fact that burden of proof is shifted to the individual. Because the Forfeiture Act allows law enforcement agencies to receive portions of the proceeds from property forfeiture, many critics claim that it detracts from the police function of fighting violent crime and argue that law enforcement agencies may be placed in a situation where they become financially dependent on the very drug activity that they are supposed to curtail.
Proponents of forfeiture argue that drug activity and racketeering are well documented sources of violent crime, and the proceeds gained through asset forfeitures and the subsequent sales of such property increase the capacity to fight violent crime.
Forfeiture Procedure
Forfeiture proceedings may be either criminal or civil. If the government seeks forfeiture pursuant to criminal charges it must establish the defendant's guilt beyond a reasonable doubt, and if the defendant is acquitted they are entitled to have the property returned.
However, in a civil forfeiture proceeding the US Government sues the item of property, not the person; the owner is effectively a third party claimant and does not need to be charged with any crime. The prosecution must only show reasonable grounds to believe that the property was used in (or derived from) illegal activities, and the owner must prove on a "preponderance of the evidence" that it is not. If the defendant fails to rebut the showing of probable cause with sufficient evidence the government may keep the property.
Since the government can choose the type of case, a civil case is almost always chosen. These cases can take up to three years and the costs are generally very high for the owner, often exceeding the value of the property itself.
The United States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies, with the United States Treasury Department being responsible for properties seized by Treasury agencies. Both programs maximize the net return from seized property by sales at auctions or to the private sector.
Criminal Forfeiture Defense:
Criminal forfeiture is a punitive action by the government against the offender, and occurs as part of a sentence following a conviction. 18 U.S.C. § 982 and 21 U.S.C. § 881 outline the various offenses and procedures governing criminal forfeiture.
The nature of a criminal case allows the defendant protections under the Fourth and Fifth Amendments. The property must be specifically identified in the indictment in order to serve notice to the defendant, and opportunity must be given to contest the forfeiture. Although the conviction requires the government to prove guilt "beyond a reasonable doubt," the forfeiture is subject to the lower burden of preponderance of the evidence. The burden also shifts to the defendant if the government can adequately show that the property was acquired around the time of the crime, and no other likely source existed.
Since criminal forfeiture requires conviction of a crime the first line of defense is against the actual conviction, but the defense is required to prove the property did not have the necessary relationship to the crime in order to avoid the penalty.
Civil Forfeiture (In Rem) Defense:
Unlike criminal forfeiture civil forfeiture proceeds directly against the property rather than the owner. In theory, civil actions are remedial; the government seeks to remedy a harm through the fiction of the property's "guilt" rather than punish the defendant. The same statutes apply, but also include Customs procedures from 19 U.S.C. § 1602 which involve searches, seizures, administrative procedure, holding, and disposal. Since the government determines which form of forfeiture to use, it is not surprising that most are carried out using the civil procedure. Civil forfeiture cases generally involve cash or real properties which the government contends were the proceeds generated by criminal activity, such as drug sales or racketeering.
Once the government establishes probable cause of the property's connection to a crime it may seize the property by executing a warrant. No criminal charges or convictions against the owner are required. Notice occurs through presentation of the warrant and publication in a newspaper, and a party must file a claim within the designated answer period to request a civil hearing.
The roles of the parties are now changed; instead of a criminal prosecutor the hearing concerns a plaintiff (the United States in the case of Federal forfeitures) and a defendant (the property in question). The owner is effectively put in the position of being a third party claimant.
Civil hearings also involve a more lenient burden of proof than "beyond a reasonable doubt." Once the government establishes probable cause that the property is subject to forfeiture the owner must prove by "preponderance of the evidence" that it is not.
Defending Asset Forfeiture
and Motions for Return of Seized Property:
Courts interpret the statutory defenses stringently. For instance, courts may apply an objective standard to determine if the owner should have had knowledge of the property's illegal use, rather require proof of actual knowledge. The law enforcement agency that confiscated the property must still prove that the officers possessed reliable information (Probable Cause) that the property was connected to an illegal activity; the owner may argue that no crime actually occurred, that the government lacked probable cause, or that the property is not closely enough connected to the crime to be considered an instrumentality or proceeds. If a probable cause challenge fails the owner may also attempt to prove that the property involved was derived from a legitimate source.
Yet another potential defense exists if the owner can show that they did not know about or consent to the illegal use of their property. This defense is generally easier to make in cases where the third party owner acquired their interest in the confiscated property before the illegal activity took place, however some statutes specifically exclude innocent third party owners from being able to seek relief.
Finally, there are time limits imposed on the government when filing forfeiture cases and / or bringing them to trial: excessive delays may be legal cause for a dismissal of the case. And due to the remedial nature of civil forfeiture cases, seizure of properties with a value disproportional to the case may be deemed unconstitutional and unjust.
Motions for return of seized property may be brought under Rule 41(g) of the Federal Rules Of Criminal Procedure in both criminal forfeiture matters and, under the court's general equity jurisdiction, in civil forfeiture matters. Civil forfeiture claimants may also pursue the return of seized property by filing motions for summary judgment or motions to dismiss the forfeiture complaint. Other issues can also be raised in a motion for summary judgment or a motion to dismiss. Filing these motions forces the government to show that it has probable cause for the seizure of the property.
When it comes to criminal law cases, an experienced and effective
criminal defense attorney can mean the difference between a prison
sentence and reduced or dismissed charges. The lawyers of Parnham &
McWilliams are dedicated to defending the rights of the accused and our
criminal defense attorneys are committed to the presumption of
innocence. Even in less serious cases, a good criminal defense attorney
can make a serious impact on the outcome of the case by ensuring that
the rights of the accused are protected throughout the legal process.
For these and other reasons, it is vital that those accused of a crime
select the most competent, experienced and effective attorney available.
The right to a public trial has recently become a rather hot topic in Texas trial and appellate courts. New courtroom configurations, larger venire panels, and the regular voir dire practice of many trial court judges and their staff have come under much closer scrutiny of late. This has forced Texas appellate courts to re-examine exactly what the right to a public trial actually means and more specifically what are its limitations.
The Sixth Amendment to the United States Constitution grants criminal defendants the right to a public trial. The right to a public trial is also an element of due process under the Fourteenth Amendment. This right is additionally guaranteed by both the Texas Constitution [Tex. Const. Art. 1 § 10] and the Code of Criminal Procedure [C.C.P. Arts. 1.05, 1.24]. At its heart, the right of public trial is a reflection of the constitutional framers’ insistence on transparent government. The U.S. Supreme Court has observed that one of the primary purposes served by conducting trials in public is the prevention of the abuses inherent in secret proceedings that cause courts to become instruments of oppression against the accused.
The right to a public trial, however, is not absolute and must be balanced against circumstances that justify the exclusion of members of the public. For example, it may be appropriate to limit access to the courtroom when the conduct of bystanders creates a reasonable probability that the jury's verdict would be affected in some manner. The decision to limit access to the courtroom is within the court's discretion.
The right to a public trial is generally satisfied if members of the public and press have the opportunity to attend the trial and report what they have observed. It has also been suggested that, at the very least, the defendant's relatives, friends, and counsel must be allowed to be present for the requirement of a public trial to be satisfied. It is this point, particularly as it relates to the jury selection process, that has become a point of contention for many Texas trial court’s in recent years.
The prime example of the situation described here can be found in a case from the 232nd District Court of Harris County which Parnham & McWilliams recently had reversed on appeal. During jury selection, the court bailiff asked for all members of the audience to leave the courtroom to allow room for the prospective jury panel to be brought into the courtroom. The standard jury panel for felony cases in Harris County is approximately sixty (60) venirepersons. This number of people takes up the entirety of the public seating area of the standard Harris County courtroom. As a result, it has (or had) become the regular course of business to remove the public from the courtroom to allow the venire panel to be seated. However, no other accommodations were considered and none of the excluded members of the public were informed that they could return to the courtroom after the panel had been seated. It was simply the standard operating procedure of that court (as well as most if not all the other Harris County District Courts) and had never really been questioned. In our case, the Court of Appeals reversed the defendant’s conviction because the trial abused its discretion by implementing this practice.
There is a presumption that a criminal trial shall be open and public, but this presumption may be overcome if it is shown that closure is necessary to preserve higher values, and if the closure is narrowly tailored to fit that interest. This decision must be based on the circumstances of each individual case. There is a four-part test for determining whether the right to a public trial has been violated: (1) the party seeking to close the hearing must advance an overriding interest which is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the court must consider reasonable alternatives; and (4) the court must make findings adequate to support its action.
If the defendant's right to a public trial is denied by the trial court in an abuse of discretion, the usual remedy on appeal is reversal and remand. Trial courts are required to consider alternatives to closure even when they are not offered by the parties in part because criminal trials are important to the public whether or not any party has asserted the right. A closure should be implemented pursuant only to a narrowly drawn order that articulates the interest being served by closure and makes findings specific enough that a reviewing court can determine whether closure was the proper.
-By Dee McWilliams, Parnham & McWilliams
When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process.
If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case. Visit http://www.parnhamandmcwilliams.com for more information.
