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In Texas, individuals arrested for driving while intoxicated (DWI) face both criminal charges and an administrative license suspension. The latter is conducted by the Texas Department of Public Safety (DPS) and is separate from the criminal case. This article will discuss what the Texas DPS must prove by a preponderance of the evidence in a DWI administrative license suspension hearing to demonstrate probable cause to arrest the defendant for operating a motor vehicle while intoxicated, according to Tex. Transp. Code § 524.035(a)(2). DAngelo Legal Blog

The Administrative License Suspension Hearing

When an individual is arrested for DWI in Texas, their driver's license is subject to an immediate suspension. The driver has 15 days to request an administrative license suspension hearing, which is conducted by the State Office of Administrative Hearings (SOAH). This hearing is solely focused on determining whether there was probable cause to arrest the individual for DWI, and it does not determine guilt or innocence in the criminal case.

Burden of Proof in Texas DWI Administrative License Suspension Hearings:

Under Tex. Transp. Code § 524.035(a)(2), the Texas Department of Public Safety (DPS) has the burden of proof in an ALR hearing. This means that DPS must establish, by a preponderance of the evidence, that the arresting officer had reasonable grounds to believe you were operating a motor vehicle while intoxicated.

Preponderance of the Evidence:

The term "preponderance of the evidence" is a standard of proof that means the evidence presented by the DPS must be more convincing than the evidence presented by the opposing party (the licensee). In other words, the DPS must prove that it is more likely than not that the officer had reasonable grounds to believe you were intoxicated.

Key Factors in the Burden of Proof:

To satisfy the burden of proof under Tex. Transp. Code § 524.035(a)(2), the DPS must present evidence that demonstrates:

  1. Reasonable suspicion for the initial traffic stop.

  2. Probable cause for the DWI arrest.

  3. Proper administration of the required statutory warnings.

  4. Proper administration of the breath or blood test, if applicable.

Tex. Transp. Code § 524.035: 

(a) The issues that must be proved at a hearing by a preponderance of the evidence are:

(1) whether:

(A) the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place or while operating a watercraft; or

(B) the person was a minor on the date that the breath or blood specimen was obtained and had any detectable amount of alcohol in the minor's system while operating a motor vehicle in a public place or while operating a watercraft; and

(2) whether reasonable suspicion to stop or probable cause to arrest the person existed.

(b) If the administrative law judge finds in the affirmative on each issue in Subsection (a), the suspension is sustained.

(c) If the administrative law judge does not find in the affirmative on each issue in Subsection (a), the department shall:

(1) return the person's driver's license to the person, if the license was taken by a peace officer under Section 524.011(b);

(2) reinstate the person's driver's license; and

(3) rescind an order prohibiting the issuance of a driver's license to the person.

(d) An administrative law judge may not find in the affirmative on the issue in Subsection (a)(1) if:

(1) the person is an adult and the analysis of the person's breath or blood determined that the person had an alcohol concentration of a level below that specified by Section 49.01, Penal Code, at the time the specimen was taken; or

(2) the person was a minor on the date that the breath or blood specimen was obtained and the administrative law judge does not find that the minor had any detectable amount of alcohol in the minor's system when the minor was arrested.

(e) The decision of the administrative law judge is final when issued and signed.

Tex. Transp. Code § 524.035

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only.

In Texas, individuals arrested for driving while intoxicated (DWI) face both criminal charges and an administrative license suspension. The latter is conducted by the Texas Department of Public Safety (DPS) and is separate from the criminal case. This article will discuss what the Texas DPS must prove by a preponderance of the evidence in a DWI administrative license suspension hearing to demonstrate probable cause to arrest the defendant for operating a motor vehicle while intoxicated, according to Tex. Transp. Code § 524.035(a)(2). DAngelo Legal Blog

The Administrative License Suspension Hearing

When an individual is arrested for DWI in Texas, their driver's license is subject to an immediate suspension. The driver has 15 days to request an administrative license suspension hearing, which is conducted by the State Office of Administrative Hearings (SOAH). This hearing is solely focused on determining whether there was probable cause to arrest the individual for DWI, and it does not determine guilt or innocence in the criminal case.

Burden of Proof in Texas DWI Administrative License Suspension Hearings:

Under Tex. Transp. Code § 524.035(a)(2), the Texas Department of Public Safety (DPS) has the burden of proof in an ALR hearing. This means that DPS must establish, by a preponderance of the evidence, that the arresting officer had reasonable grounds to believe you were operating a motor vehicle while intoxicated.

Preponderance of the Evidence:

The term "preponderance of the evidence" is a standard of proof that means the evidence presented by the DPS must be more convincing than the evidence presented by the opposing party (the licensee). In other words, the DPS must prove that it is more likely than not that the officer had reasonable grounds to believe you were intoxicated.

Key Factors in the Burden of Proof:

To satisfy the burden of proof under Tex. Transp. Code § 524.035(a)(2), the DPS must present evidence that demonstrates:

  1. Reasonable suspicion for the initial traffic stop.

  2. Probable cause for the DWI arrest.

  3. Proper administration of the required statutory warnings.

  4. Proper administration of the breath or blood test, if applicable.

Tex. Transp. Code § 524.035: 

(a) The issues that must be proved at a hearing by a preponderance of the evidence are:

(1) whether:

(A) the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place or while operating a watercraft; or

(B) the person was a minor on the date that the breath or blood specimen was obtained and had any detectable amount of alcohol in the minor's system while operating a motor vehicle in a public place or while operating a watercraft; and

(2) whether reasonable suspicion to stop or probable cause to arrest the person existed.

(b) If the administrative law judge finds in the affirmative on each issue in Subsection (a), the suspension is sustained.

(c) If the administrative law judge does not find in the affirmative on each issue in Subsection (a), the department shall:

(1) return the person's driver's license to the person, if the license was taken by a peace officer under Section 524.011(b);

(2) reinstate the person's driver's license; and

(3) rescind an order prohibiting the issuance of a driver's license to the person.

(d) An administrative law judge may not find in the affirmative on the issue in Subsection (a)(1) if:

(1) the person is an adult and the analysis of the person's breath or blood determined that the person had an alcohol concentration of a level below that specified by Section 49.01, Penal Code, at the time the specimen was taken; or

(2) the person was a minor on the date that the breath or blood specimen was obtained and the administrative law judge does not find that the minor had any detectable amount of alcohol in the minor's system when the minor was arrested.

(e) The decision of the administrative law judge is final when issued and signed.

Tex. Transp. Code § 524.035

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only.

In Texas, driving while intoxicated (DWI) is a serious offense that carries significant penalties. One aspect of Texas DWI laws that often confuses individuals is the concept of implied consent. In this blog post, we will discuss the Texas implied consent law, how it applies to DWIs, and what it means for individuals arrested for DWI or similar offenses in the state. Blog: Tyler Criminal Defense Lawyer Carlo D'Angelo 

What is the Texas Implied Consent Law? The Texas implied consent law is outlined in the Texas Transportation Code § 724.011.

(a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehiclein a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person 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.

(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person's alcohol concentration.

Tex. Transp. Code § 724.011

Under this law, any person who operates a motor vehicle in a public place, or a watercraft, is deemed to have given their consent to submit to chemical testing if they are arrested for a DWI or a similar alcohol-related offense. This means that by driving in Texas, you are agreeing to take a breath or blood test if you are lawfully arrested for a DWI or a related offense.

The Purpose of Implied Consent: The primary purpose of the implied consent law is to deter intoxicated driving and promote public safety. Implied consent ensures that law enforcement officers can gather crucial evidence to determine whether an individual was driving under the influence of alcohol or drugs, thereby helping to hold intoxicated drivers accountable for their actions.

How Implied Consent Applies to DWIs in Texas: When a person is arrested for a DWI or an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle or watercraft while intoxicated, they are considered to have consented to the taking of one or more specimens of their breath or blood. These tests are conducted to determine the alcohol concentration or the presence of a controlled substance, drug, dangerous drug, or other substance in the person's body.

Refusal to Submit to Testing: While the implied consent law means that drivers are deemed to have agreed to submit to chemical testing, individuals still have the right to refuse testing. However, refusal to submit to a breath or blood test comes with consequences, including a driver's license suspension and the possibility of enhanced penalties if convicted of a DWI.

When arrested for driving while intoxicated (DWI) or boating while intoxicated (BWI) in Texas, you may face an administrative driver's license suspension in addition to criminal penalties. Understanding the process of requesting an Administrative License Revocation (ALR) hearing can help you protect your driving privileges. Let’s discuss the process for requesting an ALR hearing and summarize key points to remember if a driver is facing a DWI license suspension in Texas.

The ALR Hearing Process:

  1. Field Sobriety Tests: If a law enforcement officer suspects that a driver is impaired, they will be asked to perform a series of field sobriety tests. Failing these tests can result in arrest for DWI or BWI.

  2. Breath or Blood Test: After the arrest, a driver will be asked to take a breath or blood test to determine your blood alcohol concentration (BAC) level. Refusing or failing the test can lead to the suspension or disqualification of driver's license.

  3. License Confiscation and Temporary Permit: The officer will confiscate the driver's license, issue a suspension/disqualification notice, and provide a temporary driving permit.

  4. Requesting an ALR Hearing: A driver then has 15 days from the date the notice is served to request a hearing to contest the driver's license suspension or disqualification. If the driver does not request a hearing, the suspension goes into effect on the 40th day after the notice was served.

  5. BAC Test Results and Notice of Suspension: If a driver consents to a blood test, they can keep their driver's license until the BAC results are received by the Department. If the results show a BAC above the legal limit, the driver’s license will be suspended or disqualified, and a Notice of Suspension will be mailed.

  6. Requesting a Hearing after Notice of Suspension: A driver has 20 days from the date the suspension notice is mailed to request a hearing to contest the driver's license suspension. If the driver doesn’t request a hearing, the suspension goes into effect on the 40th day after the presumed receipt of the suspension notice.

  7. Reinstatement Fee: A $125 reinstatement fee is required before a driver's license can be renewed or issued, in addition to any other outstanding fees.

ALR Hearings: If a driver is eligible to contest the suspension or disqualification of your driver's license, they may request a hearing within 15 days of being served notice. The hearing will be scheduled within 120 days and conducted by the State Office of Administrative Hearings (SOAH). An Administrative Law Judge (ALJ) will listen to the evidence and make a final determination on the driver's license suspension.

Conclusion: The Texas implied consent law plays a crucial role in the enforcement of DWI laws and the promotion of public safety. By understanding the implications of this law, individuals can make more informed decisions if faced with a DWI arrest or a related offense. If you have been arrested for a DWI or a similar offense, it is strongly recommended that you consult with an experienced Texas DWI attorney to discuss your rights and options.

 

Federal Securities fraud generally involves the use of deceptive practices, misrepresentations, or omissions of material facts in connection with the purchase or sale of securities. Securities fraud is a broad term that encompasses a wide range of illegal activities, including insider trading, market manipulation, and Ponzi schemes, among others. Blog Post

Federal securities fraud offenses or violations are generally enforced under the following statutes:

  1. Securities Act of 1933 (15 U.S.C. § 77a et seq.): This law regulates the initial issuance and registration of securities, requiring companies to provide accurate and complete information to investors about their financial condition, business operations, and the risks associated with the securities they are offering.

  2. Securities Exchange Act of 1934 (15 U.S.C. § 78a et seq.): This law governs the secondary trading of securities (i.e., the trading of securities after their initial issuance) and establishes various reporting requirements for publicly traded companies. Section 10(b) of the Exchange Act (15 U.S.C. § 78j(b)) and the corresponding SEC Rule 10b-5 (17 C.F.R. § 240.10b-5) are the most commonly invoked provisions in securities fraud cases. These provisions make it unlawful to use any manipulative or deceptive device, make false or misleading statements, or omit material facts in connection with the purchase or sale of securities.

A conviction for securities fraud pursuant to 15 U.S.C. § 78j(b) requires the government to prove that, "in connection with the purchase or sale of a security the defendant, acting with scienter, made a material misrepresentation (or a material omission if the defendant had a duty to speak) or used a fraudulent device." United States v. Vilar , 729 F.3d 62, 88 (2d Cir. 2013) (internal quotation marks and citations omitted). "A misstatement in a securities transaction is material if there is "a substantial likelihood that a reasonable investor would find the ... misrepresentation important in making an investment decision." Id.

In order to prove securities fraud under section 17(a), section 10(b), and Rule 10b-5, the SEC must first establish that the defendants made a material misstatement or omission in connection with the offer or sale of a security. Basic Inc. v. Levinson, 485 U.S. 224, 231, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). Violations of section 17(a)(1), section 10(b), and Rule 10b-5 also require a showing of scienter. Aaron v. SEC, 446 U.S. 680, 691, 697, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980)."

The basic elements of a Rule 10b-5 claim are: (1) a material misrepresentation or omission of fact, (2) scienter, (3) a connection with the purchase or sale of a security, (4) transaction and loss causation, and (5) economic loss.

In order to prove securities fraud, the government must generally establish the following elements:

  1. Material misrepresentation or omission: The defendant made a false statement or failed to disclose information that a reasonable investor would consider important in making an investment decision.

  2. Scienter: The defendant acted with intent to deceive, manipulate, or defraud, or with reckless disregard for the truth.

  3. Connection with the purchase or sale of a security: The fraudulent conduct occurred in connection with the purchase or sale of a security.

  4. Reliance: In certain circumstances, the government may also need to prove that the investor relied on the fraudulent information in making their investment decision.

  5. Loss causation: The government may need to demonstrate that the defendant's fraudulent conduct directly or indirectly caused the investor's financial loss.

15 U.S.C. § 78j(b) prohibits material misrepresentations, material omissions, and the use of fraudulent devices in connection with the purchase or sale of securities. 

Let’s discuss what constitutes a material misrepresentation or omission and “scienter.” A material misrepresentation occurs when a false statement is made about a fact that would be considered important by a reasonable investor in making an investment decision. As established in the Vilar case noted above, a misstatement in a securities transaction is material if there is "a substantial likelihood that a reasonable investor would find the ... misrepresentation important in making an investment decision." This standard is intended to ensure that investors have access to accurate and complete information when making decisions about their investments. 

In addition to material misrepresentations, material omissions may also form the basis for a securities fraud conviction. An omission is considered material if the defendant had a duty to disclose the information and failed to do so, and the information withheld would have been important to a reasonable investor.

Under Sec. & Exch. Comm'n v. Aly, 16 Civ. 3853 (PGG) (S.D.N.Y. Mar. 27, 2018), the SEC must show that the defendant: "(1) made a material misrepresentation or a material omission as to which he had a duty to speak, or used a fraudulent device; (2) with scienter; (3) in connection with the purchase or sale of securities." Id. (citations omitted). "The element of scienter, as used in connection with the securities fraud statutes, requires a plaintiff to show that the defendant acted with intent to deceive, manipulate or defraud, or at least knowing misconduct."

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only.

Federal criminal investigations can be a daunting and confusing process for those involved, whether you are a target or a witness. Understanding the differences between being a target and a witness is crucial in knowing one’s rights and obligations. So, lets start by discussing the distinctions between targets and witnesses in a federal criminal investigation, the implications of receiving a grand jury subpoena from the United States Department of Justice (DOJ), and the options available to those who receive such subpoenas. Blog Post

  1. Targets vs. Witnesses: Key Differences

The primary distinction between a target and a witness in a federal criminal investigation lies in the individual's potential involvement in the crime being investigated.

 

A target is a person against whom the federal government has substantial evidence, linking them to the commission of a crime. As a “target”, they face the possibility of indictment and arrest. An indictment is a formal accusation that a person has committed a crime, and it is typically issued by a grand jury following an investigation. If indicted, the target could face trial and potential conviction, leading to fines or imprisonment.

On the other hand, a “witness” is someone who has information or evidence relevant to the investigation but is not believed to be directly involved in the criminal activity. A witness may be called before a grand jury or at a criminal trial to testify and produce evidence. They do not face the same possible consequences as a target, as they are not accused of any wrongdoing.

  1. Receiving a Grand Jury Subpoena from the United States DOJ

A grand jury subpoena is a legal order that requires an individual to provide testimony or produce documents for a federal investigation. The subpoena may be issued by the United States DOJ during the course of a criminal investigation, and it typically specifies the date, time, and location for the witness's testimony or the production of documents.

  1. Options for Witnesses Who Receive a Grand Jury Subpoena

If one receives a grand jury subpoena, they may have several options:

a. Comply with the subpoena: One can elect to comply with the subpoena and provide the requested testimony or documents. In this case, the witness will appear before the grand jury on the specified date and time, or will produce the required documents.

b. The witness can seek legal counsel to determine what options are available: It is always advisable to consult with an attorney experienced in federal criminal law when one receives a grand jury subpoena. An experienced federal criminal defense attorney can help one understand their rights and obligations and can provide guidance on how to proceed—including whether the witness stands any risk of elevating to the level of a target if they produce the requested evidence or testimony. This can be an important factor to consider as it implicates the possibility of self-incrimination.

c. That brings me to the next option, the witness can elect to invoke plead the Fifth : The Fifth Amendment to the United States Constitution protects individuals from self-incrimination. If one believes that their testimony or the production of documents could potentially incriminate them, they may elect to invoke the right to remain silent under the Fifth Amendment. By doing so, the witnesses refuse to testify or produce the requested documents on the grounds that doing so could be used against them in a criminal case. However, invoking the Fifth Amendment is not a blanket protection, and it is important to consult with an attorney to determine whether this is a viable option for given situation. If there is potential criminal exposure to the client, this may also present defense counsel with an opportunity to begin a conversation with the government prosecutor about potential cooperation with the federal investigation in the hopes of mitigating or even avoiding future criminal prosecution.

Understanding the difference between being a target and a witness in a federal criminal investigation is crucial for knowing one’s rights and obligations. If a witness receives a grand jury subpoena, it is important to seek legal counsel and consider all options, including invoking theFifth Amendment right if appropriate.

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only.

Aggravated assault with a deadly weapon is a serious criminal offense in Texas, carrying significant penalties for those convicted. This blog post will provide an overview of this offense, discuss the potential consequences of a conviction, and explore the possible defenses that may be raised in court.

What is Aggravated Assault with a Deadly Weapon in Texas?

Under Texas Penal Code § 22.02, aggravated assault occurs when a person intentionally, knowingly, or recklessly causes serious bodily injury to another person, or uses or exhibits a deadly weapon during the commission of an assault. A deadly weapon is any object that can cause death or serious bodily injury, such as a firearm, knife, or even a vehicle when used with intent.

The statutory requirements for aggravated assault under Section 22.02 of the Texas Penal Code are: commission of assault as defined in Section 22.01 and (1) causing serious bodily injury to another or (2) using or exhibiting a deadly weapon. TEX. PENAL CODE ANN. §§ 22.01-.02 (Vernon Supp. 2006). One of the elements required in the second method of committing aggravated assault is the use or exhibition of a deadly weapon.

Landry v. State, 227 S.W.3d 380, 382 (Tex. App. 2007)

Penalties for Aggravated Assault with a Deadly Weapon

Aggravated assault with a deadly weapon is generally classified as a second-degree felony in Texas. Penalties for a second-degree felony include:

  • Imprisonment ranging from 2 to 20 years

  • A fine of up to $10,000

In certain circumstances, such as when the offense is committed against a family member, dating partner, or public servant, the charge may be elevated to a first-degree felony, which carries even more severe penalties:

  • Imprisonment ranging from 5 to 99 years or life

  • A fine of up to $10,000

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only.

 

Introduction

In recent years, the use of cryptocurrencies like Bitcoin, Ethereum, and other digital assets has become more widespread. With this surge in popularity, cryptocurrencies have attracted the attention of criminal enterprises, who use them to facilitate illegal activities such as wire fraud and money laundering. In this blog post, I will explore the differences between how cryptocurrencies and traditional cash are used by criminal enterprises to commit these offenses under federal law.

Cryptocurrency and Wire Fraud

Wire fraud, as defined under 18 U.S.C. § 1343, is a federal crime involving the use of electronic communications to devise and execute a scheme to defraud. 

Wire fraud consists of three elements: the defendant (1) devised or willfully participated in a scheme to defraud, (2) used an interstate wire communication in furtherance of the scheme, and (3) intended to deprive a victim of money or property."

United States v. Palma, No. 21-1782, at *3-4 (6th Cir. Jan. 18, 2023).

The elements of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, are: (1) that a conspiracy to commit wire fraud existed; (2) that the defendant knew of it; and (3) that the defendant knowingly and voluntarily joined it. Feldman, 931 F.3d at 1257. 

While cash has long been a medium for wire fraud, the emergence of cryptocurrencies has introduced new methods for perpetrating such schemes.

  1. Anonymity: Cryptocurrencies offer a higher level of anonymity compared to cash transactions, as they are conducted through decentralized and pseudonymous networks. This makes it more challenging for law enforcement agencies to trace the individuals involved in wire fraud schemes using cryptocurrencies.

  2. Cross-border transactions: Cryptocurrencies allow for faster and cheaper international transactions, which can be particularly appealing to criminals looking to commit wire fraud across borders. In contrast, cash transactions typically involve higher fees and longer processing times when conducted internationally.

  3. Ease of online use: Cryptocurrency transactions can be easily executed online, making them a popular choice for wire fraud schemes conducted through the internet. Cash transactions, on the other hand, often require physical exchanges or transfers, making them less convenient for online fraud schemes.

Cryptocurrency and Money Laundering

Money laundering, as defined under 18 U.S.C. § 1956, is the process of concealing the illicit origin of proceeds generated from criminal activities. 

Three elements "make out a violation of this provision[:] ... (1) use of funds that are proceeds of unlawful activity; (2) knowledge that the funds are proceeds of unlawful activity; and (3) knowledge that the transaction is designed in whole or in part to disguise the source, ownership, or control of the proceeds."

United States v. Nedelcu, 46 F.4th 446, 450 (6th Cir. 2022).

 

Both cash and cryptocurrencies can be used to facilitate money laundering, but there are some key differences:

  1. Layering: Criminals use various techniques to distance illicit funds from their original source, a process known as layering. With cryptocurrencies, this can be done through the use of mixers or tumblers, which obfuscate the transaction trail. Cash-based money laundering, in contrast, typically involves structuring deposits, purchasing assets, or using shell companies to obscure the source of funds.

  2. Regulation: Cash transactions are subject to regulations such as Anti-Money Laundering (AML) and Know Your Customer (KYC) requirements, which mandate financial institutions to report suspicious activities. However, the regulatory landscape for cryptocurrencies is still evolving, with many jurisdictions implementing varying levels of oversight. This inconsistency can create opportunities for criminals to exploit loopholes in the system.

  3. Decentralization: Cryptocurrencies operate on decentralized networks, which means transactions are not controlled by a central authority like a bank. This can make it difficult for law enforcement agencies to seize or freeze illicit funds stored in cryptocurrencies. In contrast, cash held in bank accounts can be more easily seized or frozen by authorities when required.

Conclusion

As the use of cryptocurrencies continues to grow, so too does the potential for their exploitation by criminal enterprises. Understanding the differences between how cryptocurrencies and cash are used in wire fraud and money laundering schemes is crucial for both law enforcement and legal practitioners. 

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only.

The U.S. Department of Justice (DOJ) has announced the takedown of ChipMixer, a darknet cryptocurrency mixer responsible for laundering more than $3 billion worth of cryptocurrency in connection with ransomware, darknet markets, fraud, and other criminal activities. DOJ Press Release The coordinated international operation involved the seizure of ChipMixer domains and servers, as well as the arrest of Vietnamese operator Minh Quốc Nguyễn.

ChipMixer allowed customers to deposit bitcoin, which was then mixed with other users' bitcoin, making it difficult for law enforcement to trace transactions. The service, which operated primarily on the Tor network, did not register with the U.S. Department of the Treasury's Financial Crimes Enforcement Network (FinCEN) and did not collect identifying (KYC) information about its customers.

Between August 2017 and March 2023, ChipMixer processed over $17 million in bitcoin for criminals connected to ransomware strains, over $700 million in bitcoin associated with stolen funds, more than $200 million in bitcoin connected to darknet markets, and over $35 million in bitcoin linked to fraud shops.

According to the DOJ press release, Nguyễn, who created and operated ChipMixer, is charged with money laundering, operating an unlicensed money transmitting business, and identity theft. If convicted, he faces up to 40 years in prison. The FBI, Homeland Security Investigations (HSI), and other international partners were involved in the investigation and subsequent takedown of ChipMixer. Criminal Complaint 

“ChipMixer facilitated the laundering of cryptocurrency, specifically Bitcoin, on a vast international scale, abetting nefarious actors and criminals of all kinds in evading detection,” said U.S. Attorney Jacqueline C. Romero for the Eastern District of Pennsylvania. “Platforms like ChipMixer, which are designed to conceal the sources and destinations of staggering amounts of criminal proceeds, undermine the public’s confidence in cryptocurrencies and blockchain technology. We thank all our partners at home and abroad for their hard work in this case. Together, we cannot and will not allow criminals’ exploitation of technology to threaten our national and economic security.” DOJ Press Release 

“Criminals have long sought to launder the proceeds of their illegal activity through various means,” said Special Agent in Charge Jacqueline Maguire of the FBI Philadelphia Field Office. “Technology has changed the game, though, with a site like ChipMixer and facilitator like Nguyen enabling bad actors to do so on a grand scale with ease. In response, the FBI continues to evolve in the ways we ‘follow the money’ of illegal enterprise, employing all the tools and techniques at our disposal and drawing on our strong partnerships at home and around the globe. As a result, there’s now one less option for criminals worldwide to launder their dirty money.”

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only. Crypto Criminal Defense Lawyer

 
 

A person commits the offense of possession with intent to deliver a controlled substance if she knowingly possesses a drug with the intent to deliver it. See HEALTH & SAFETY § 481.112(a). Possession is defined as "actual care, custody, control, or management." PENAL § 1.07(a)(39). To prove unlawful possession of a controlled substance, the State must show (1) that the accused exercised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015). The evidence must establish that the accused's connection with the drugs is more than just her fortuitous proximity to someone else's drugs. Id. at 405-06.

Hughitt v. State, No. 11-15-00277-CR, at *8-9 (Tex. App. Oct. 31, 2017).

Controlled substances are categorized into Penalty Groups based on their potential for abuse, medical use, and safety. The severity of the penalties depends on the Penalty Group classification, the quantity of the substance, and any prior convictions. For example, pursuant to Section 481.112 - Offense: Manufacture or Delivery of Substance in Penalty Group 1, an offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams. " Tex. Health & Safety Code Ann. § 481.112(d).

The Concept of Joint Possession

Joint possession is a legal concept that refers to a situation where two or more individuals have control over a controlled substance. This can be either actual or constructive possession.

Actual possession refers to a situation where an individual has direct, physical control over the controlled substance. For example, if someone has drugs in their pocket, they have actual possession.

Constructive possession, on the other hand, involves situations where an individual does not have direct, physical control but has the power and intent to exercise control over the substance. This can occur when an individual has knowledge of the substance's presence and has the ability to access it, such as when drugs are stored in a shared living space.

Establishing Joint Possession in Texas

To prove joint possession, the prosecution must demonstrate that:

  1. The defendant had knowledge of the controlled substance's presence.

  2. The defendant had control over the controlled substance, either actual or constructive.

  3. The defendant shared control over the controlled substance with another person or persons.

Evidence that may be used to establish joint possession includes:

  • Testimony from witnesses who observed the defendants sharing or using the controlled substance together.

  • The presence of the defendants' personal belongings or paraphernalia near the controlled substance.

  • Communication records, such as text messages or phone calls, indicating knowledge and control of the controlled substance.

Courts have identified the following factors as affirmative links that may establish an accused's knowing possession of a controlled substance: (1) the accused's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the accused's proximity to, and the accessibility of, the contraband; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed narcotics or other contraband when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the accused owned or had the right to possess the place where the contraband was found; (12) whether the place where the contraband was found was enclosed; (13) whether the accused was found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12. Many of these same factors have been used by courts to determine if a person possessed a controlled substance with the intent to deliver. See Guttery v. State, No. 11-12-00160-CR, 2014 WL 3398144, at *2-3 (Tex. App.—Eastland July 10, 2014, pet. ref'd).

Hughitt v. State, No. 11-15-00277-CR, at *10 n.4 (Tex. App. Oct. 31, 2017)

Defenses to Joint Possession Charges

Several defenses can be raised against joint possession charges, including:

  1. Lack of knowledge: The defendant may argue that they were unaware of the presence of the controlled substance.

  2. Lack of control: The defendant may contend that they did not have control over the controlled substance or the ability to access it.

  3. Mere presence: Being present at the location where the controlled substance is found does not automatically establish possession. The defendant may argue that they were merely present and had no knowledge or control over the substance.

As we explained, the "affirmative links" rule

is designed to protect an innocent bystander from conviction based solely upon his mere presence in the vicinity of someone else's drugs. It recognizes that a defendant who is not in exclusive possession of the place where the controlled substance was found may not have knowledge of and control over the drugs; in such cases, additional independent facts and circumstances beyond mere presence must link him to the drugs.

Beltran De La Torre v. State, No. 01-17-00218-CR, at *11 (Tex. App. Aug. 13, 2020).

Courts have recognized several factors tending to establish affirmative links, including: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and accessibility of the contraband; (4) whether the defendant possessed other contraband when arrested; (5) whether other contraband or drug paraphernalia were present; (6) whether the conduct of the defendant indicated a consciousness of guilt; and (7) whether the accused was observed in a suspicious area under suspicious circumstances.

Kersey v. State, No. 08-20-00037-CR, at *13 n.3 (Tex. App. Dec. 10, 2021)

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only. DangeloLegal Blog 

 

Under Texas law, a person can be charged with evading arrest or detention if they intentionally flee from a peace officer or federal special investigator who is attempting to lawfully arrest or detain them. This offense is outlined in Section 38.04(a) of the Texas Penal Code. Section 38.04

The severity of the offense depends on a few different factors. Generally, evading arrest or detention is considered a Class A misdemeanor. However, if the actor has been previously convicted under this section, it becomes a state jail felony. Additionally, if the actor uses a vehicle or watercraft while fleeing and has not been previously convicted under this section, it also becomes a state jail felony.

If the actor uses a vehicle or watercraft while fleeing and has been previously convicted under this section, or if someone suffers serious bodily injury as a direct result of the officer's attempt to apprehend the actor, it becomes a felony of the third degree. And, if someone suffers death as a direct result of the officer's attempt to apprehend the actor, it becomes a felony of the second degree.

It's important to note that a tire deflation device is also considered a factor in determining the severity of the offense. If the actor uses a tire deflation device against the officer while fleeing, it becomes a felony of the third degree. And, if someone suffers serious bodily injury as a direct result of the actor's use of a tire deflation device while fleeing, it becomes a felony of the second degree.

In order for an individual to be convicted of evading arrest or detention, the prosecution must prove that the defendant knew the person chasing them was a peace officer or federal special investigator, and that the officer was attempting to lawfully arrest or detain them. Additionally, the prosecution must prove that the defendant intentionally fled from the officer.

In Texas, fleeing and eluding in a motor vehicle is a criminal offense that involves a driver intentionally attempting to evade a law enforcement officer who is attempting to conduct a traffic stop or arrest. The elements of the offense of fleeing and eluding in a motor vehicle in Texas are as follows:

  1. The defendant was operating a motor vehicle on a public roadway;
  2. A law enforcement officer gave a visual or audible signal to the defendant to bring the vehicle to a stop or submit to arrest;
  3. The defendant knew that the signal was given by a law enforcement officer;
  4. The defendant intentionally fled or attempted to elude the officer;
  5. The defendant's flight or attempted flight was for the purpose of evading arrest or detention.
  1. Terry Stops
  2. The Entrapment Defense
  3. Deputy Attorney General Lisa Monaco delivered Remarks at American Bar Association National Institute on White Collar Crime
  4. Federal Crime of Wire Fraud
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