Bruce Kaye Criminal Defense Attorney Dallas, TX, Personal Injury, Entertainment Law

FEDERAL CRIMINAL DEFENSE

Fear. Anxiety. Panic.

These are the normal core emotions that you will feel when you have been arrested. What will happen to my family? Will I lose my job? How will I pay my bills? Your mind can’t stop picturing the worst. For over 25 years, I have helped Texans who have been accused of federal offenses alleviate these core emotions with the goal of returning you to your life before you were charged with an offense.

FEDERAL CRIMINAL DEFENSE ATTORNEY IN DALLAS, TX

In matters of federal criminal defense, it is crucial for me to take the time to thoroughly prepare for each case. The key to winning trials is to be more prepared than the prosecutor. I spend quality time gathering up all of the evidence, meeting with the witnesses and filing legal motions in order to win.

BRUCE KAYE, ATTORNEY AT LAW

Federal Offenses

My experience in Federal District Court includes white-collar crime (wire fraud, mortgage fraud, insurance fraud…) and healthcare offenses in which extensive documentation is used against the defendant. It is typical to receive many terabytes  of evidence which takes pain staking vigilance to review and use effectively in your defense. Unlike state court offenses, federal court judges have wide discretion when it comes to punishment so you must be able to demonstrate an alternative version of the facts using these same documents.
 
Recently, in the largest synthetic cannabinoids (K2 / Spice) trial in the nation, my client was the sole defendant to walk away with a misdemeanor when originally charged with a felony.

Federal Offenses and Punishments

18 USC Code §924c defines the term “crime of violence” as an offense that is a felony and either:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The following are considered to be crimes of violence in accordance with the Federal Sentencing Guidelines:

  • Murder
  • Manslaughter
  • Kidnapping
  • Aggravated Assault
  • Forcible Sex Offense
  • Robbery
  • Arson
  • Extortion

For extensive reading, take a look at the Federal Sentencing Guidelines (here is the link to the actual guidelines this a great resource) https://www.ussc.gov/guidelines/primers.

The federal government requires certain financial institutions (such as a bank) to report any single transaction that is $10,000.00 or greater.  So, in order to try avoid this, some people try to make a number of deposits that are less than $10,000.00 each. Even if you pay federal income tax on the funds or the source of the funds is 100 percent legit, it is a felony offense under the Bank Secrecy Act, 31 USC Section 5324.

If you get caught and prosecuted, you can face some serious punishment (click here to view the punishment).

A large amount of money spent on health care every year is paid out in fraudulent claims.  How much?  About 10 percent they say.   Health care fraud is a crime in which somebody uses lies, deceptions, or schemes when filing a health care claim in an effort to make a profit or to gain some type of benefit.   Typical examples include pill mills (where the doctor, or someone else) writes scripts at large for narcotics, ordering top of the line wheelchairs and only delivering the base model to the customer, and getting home health care providers to basically “reverse” the order and get a doctor (or someone in the office) to sign an order for home health care.  Of course, there are many variations.  I’ve been to trial on these kinds of cases in federal court, and it is a very intense, paper rich and usually video and photo extensive prosecution.  When your practice (and your life really) are on the line, you need an attorney with experience.

Fraud vs. Mistake:

One line of defense is trying to demonstrate the actions were a mistake and not based in fraud.  If one makes a mistake, or an omission, or improper payment, that is not necessarily fraud.  For instance, if a health care provider mistakenly bills a patient for a procedure that the patient did not receive, that is a mistake and not fraud.  To commit fraud, a person must knowingly engage in a plan, scheme, or activity to provide falsehoods, with the intent to achieve some financial gain.  Thus, if a health care provider knowingly provides treatments or procedures that the provider knows patients do not need, and then bills an insurer for those procedures in order to make a profit, then the health care provider has committed fraud.

Fraudulent Schemes:

The feds can prosecute anyone in the health care process that commits health care fraud.  It is most commonly committed by providers in an attempt to obtain more money from insurance carriers and/or Medicare or Medicaid.  Common fraud schemes involve double-billing or filing duplicate claims for the same service, filing claims for services never provided, billing for services not covered by an insurer's policy, and even providing kickbacks for referrals.

Common fraud schemes enacted by patients include faking a medical condition in order to receive medications that the patient then sells, falsifying medical claim information, or using someone else's insurance information to receive health care services.

Medicare and Medicaid Fraud:

As I mentioned, the health care system has private and public health insurers, and healthcare fraud can involve either of them.  The two public health care insurers, Medicaid and Medicare, are traditional targets of fraudulent claims, and there are a number of federal laws which apply to such situations. Specific federal laws criminalize making false claims in a Medicaid or Medicare claim (18U.S.C. section 287), making false statements (18U.S.C. section 1001), as well as related activity.

Penalties:

Federal law affords for both civil and criminal penalties for health care fraud.  Criminal health care fraud charges, both at the state and federal level, can lead to solemn consequences for anybody convicted.

Prison:

Health care fraud is a serious offense, and can lead to lengthy prison sentences.  Making a false claim or false statement in relation to a Medicaid or Medicare claim can result in a 5 year prison sentence per offense, while a conviction for federal health care fraud can result in a 10 year sentence for each offense. If the health care fraud results in serious bodily injury to someone there is a potential sentence of up to 20 years in prison, while an act of health care fraud that results in someone's death has a potential life sentence.

Restitution:

A judge can order a defendant to pay back the amount of money it wrongly obtained as a product of the fraudulent act.  Restitution is in addition to a fine, which is paid to the government.

Fines:

As you can imagine, anyone convicted of health care fraud will likely face substantial fines. An individual who makes a false statement in a Medicaid or Medicare claim is looking at a fine of up to $250,000 per offense.  If an organization that make false claims, it can result in up to $500,000 per offense.  Again, that’s per offense. 

Identity crimes may be considered federal felony offenses and punishments can be pretty severe under the Federal Sentencing Guidelines (put in link).  Typically, there are two (2) popular ways to be charged with an identity crime: Identity Fraud and Identity Theft.

Identity fraud is basically an accusation that you used a credit card or debit card to acquire an item or get money without authorization or permission of the card holder.  Technically, you are guilty if you:

“knowingly transfer[s] or use[s], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.”

Identity theft is more complex than Identity Fraud.Basically, Identity Theft is when you take someone’s personal information and then act as if you are that person to get say a bank loan, or get tax returns, or open a new credit card, or take out a loan (home, car, payday, etc…). 

Obviously, the penalty is usually higher for identity theft than identity fraud because you are attempting to basically impersonate someone and not just using their credit card for making a few purchases or cash advances.

The Identity Theft and Assumption Deterrence Act of 1998

Because of the internet and new schemes, new federal laws have been enacted such as 18 USC 1028, “the Identity Theft and Assumption Deterrence Act.” 

Under the Identity Theft and Assumption Deterrence Act, punishment can be a maximum sentence of 15 years’ imprisonment and the forfeiture of property used (or intended to be used) to commit the offense.  For example, if you have a computer system to stripe blank credit cards or to make a fake document in furtherance of your attempt to commit identity theft, the computer system may be forfeited by you and not returned either.

If you use the United States Post Office in furtherance of your fraud, you can be prosecuted for mail fraud.

Title 18 of the United States Code Section 1341 defines “mail fraud” as:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

According to the United States Office of the Attorney General, you commit mail fraud if you:

devise or intend to devise a scheme to defraud  or engage in certain acts which are fraudulent;  and you use of the mail  for the purpose of executing, or attempting to execute, the scheme (or certain fraudulent acts).

Money laundering is when you take the proceeds of something illegal (such as drug sales, gambling, sales of stolen goods, etc…) and then trying to claim the money was legitimately made and then used in the stream of commerce (open bank accounts, buying goods, etc…).  You are “washing” the money to try make it look clean, when you know it is dirty.  Think of Al Capone.  He took the money from illegal liquor sales and then used it to open other “legit” companies or buy luxury items.  You get the idea.   For further “research” I highly suggest watching Good Fellows or The Godfather (parts I and II are the best).

Federal law defines “child pornography”  in 18 USC Section 2256(B) (8):

“child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

  • (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
  • (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
  • (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

The following is a list of white-collar offenses:

Penalties:

The penalties for white-collar offenses include fines, home detention, community confinement, paying the cost of prosecution, forfeitures, restitution, supervised release, and imprisonment.  If at least one victim sustained substantial financial harm, a longer prison sentence is typically imposed. 

Title 18 of the United States Code Section 1343  defines “wire fraud” as a crime of “fraud by wire, radio, or television” as follows:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

The basic elements of wire fraud under Section 1343 are (1) a scheme to defraud and (2) the use of, or causing the use of, interstate wire communications to execute the scheme.

Exercise Your Right to Remain Silent.

Many defendants make the mistake of speaking to the police instead of getting an attorney involved from the very beginning. It just makes sense to keep your mouth shut and say nothing because they are looking for any excuse to charge you, and you may be giving them all the details that will be used against you in court. Same goes for agreeing to take any field sobriety tests. My advice is to simply (and politely) tell the officer that you refuse to take any such tests. Then, the results cannot be used against you in your trial.

The Reality of The Criminal Justice System

I utilize the multi-modal approach to the criminal justice system (and recognize its importance). There is systematic disenfranchisement at place within our justice system for marginalized communities in America. I will work with you to understand the ways in which the system could be working against you and how we can best overcome it. I have resources available to help you understand your rights. When possible, I utilize tenants of restorative justice as well as the philosophy espoused in “The New Jim Crow: Mass Incarceration in the Age of Color Blindness” by Michelle Alexander.

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