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Understanding Aggravated Assault with a Deadly Weapon in Texas: Charges, Penalties, and Potential Defenses

: Created: 17 March 2023

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.

Cryptocurrency vs. Cash: A Comparative Analysis of Wire Fraud and Money Laundering in Criminal Enterprises

: Created: 17 March 2023

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.

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.
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.
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:

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.
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.
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.

Justice Department Investigation Leads to Takedown of Darknet Cryptocurrency Mixer that Processed Over $3 Billion of Unlawful Transactions

: Created: 16 March 2023

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.”

Understanding Possession of a Controlled Substance under Texas Law: The Concept of Joint Possession

: Created: 15 March 2023

Under Texas law, possession of a controlled substance is defined by the Texas Health and Safety Code Section 481.002(38) as "actual care, custody, control, or management." To convict an individual of possession, the prosecution must prove that the accused had knowledge of the substance's presence and had actual control over it. "Lawful possession" means the possession of a controlled substance that has been obtained in accordance with state or federal law.” Tex. Health & Safety Code § 481.002(25).

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:

The defendant had knowledge of the controlled substance's presence.
The defendant had control over the controlled substance, either actual or constructive.
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:

Lack of knowledge: The defendant may argue that they were unaware of the presence of the controlled substance.
Lack of control: The defendant may contend that they did not have control over the controlled substance or the ability to access it.
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)

Fleeing and Eluding a Motor Vehicle

: Created: 14 March 2023

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:

The defendant was operating a motor vehicle on a public roadway;
A law enforcement officer gave a visual or audible signal to the defendant to bring the vehicle to a stop or submit to arrest;
The defendant knew that the signal was given by a law enforcement officer;
The defendant intentionally fled or attempted to elude the officer;
The defendant's flight or attempted flight was for the purpose of evading arrest or detention.

Terry Stops

: Created: 10 March 2023

Tyler Criminal Defense Lawyer Carlo D'Angelo

An officer's decision to detain a person must be based on more than just a hunch, according to the U.S. Supreme Court case of Terry v. Ohio. In that case, the Court held that the officer must have a "particularized and objective basis for suspecting the particular person stopped of criminal activity." This means that the officer must be able to offer "some minimal level of objective justification for making the stop."

In United States v. Sokolow, the Supreme Court reiterated that an officer must have some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This objective manifestation must be based on a totality of the circumstances and raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

In evaluating whether reasonable particularized suspicion exists to conduct a Terry stop, two elements must be satisfied. First, the assessment must be based on a totality of the circumstances. Second, the circumstances together must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

The Entrapment Defense

: Created: 09 March 2023

Tyler Texas Criminal Defense Lawyer Carlo D'Angelo

The entrapment defense is a legal principle that can protect individuals who have been charged with a crime that they would not have committed if not for the actions of the government or law enforcement officials. This defense has been recognized by the United States Supreme Court in a number of cases, including Jacobson v. United States and Glover v. United States.

In Jacobson, the Supreme Court stated that the entrapment defense protects an "otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law." This means that the entrapment defense is designed to protect individuals who are not predisposed to committing a crime, but who are induced to do so by the government or law enforcement officials.

The entrapment defense has two key elements: government inducement and a lack of predisposition on the part of the defendant to engage in the criminal conduct. This means that in order for the entrapment defense to be successful, the defendant must be able to demonstrate that the government or law enforcement officials induced them to commit the crime, and that they were not predisposed to committing the crime on their own.

When a government informant buys drugs from a defendant, the defendant can show inducement by pointing to "evidence of reluctance" to sell the drugs or the informant's use of "persuasive overtures," beyond those "ordinarily present in a drug transaction." This means that if the defendant can demonstrate that they were hesitant to sell drugs or that the government informant used tactics beyond what is typically used in a drug transaction, they may be able to prove government inducement.

However, even if the defendant is able to prove government inducement, the government can rebut by demonstrating that the defendant was nevertheless predisposed to commit the crime. This means that if the government can show that the defendant was willing and able to commit the crime on their own, even without government intervention, the entrapment defense may not be successful.

In conclusion, the entrapment defense can be a powerful tool for individuals who have been charged with a crime that they would not have committed if not for the actions of the government or law enforcement officials. However, the success of this defense depends on the ability of the defendant to prove government inducement and a lack of predisposition on their part.

This blog post is strictly for infomrational purpose only and should in no way be considered legal advice. If you have a specific legal question about the entrapment defense, you should seek out the advice of a criminal defense attonrey.

Deputy Attorney General Lisa Monaco delivered Remarks at American Bar Association National Institute on White Collar Crime

: Created: 09 March 2023

Tyler Texas Criminal Defense Lawyer Carlo D'Angelo

On March 2, 2023, Deputy Attorney General Lisa Monaco delivered Remarks at American Bar Association National Institute on White Collar Crime and crypto crime remains an enforcement priority for the DOJ. Lisa Monaco delivered Remarks at American Bar Association National Institute on White Collar Crime

"And we’re doubling down on the successful strategies we have deployed to attack cyber and crypto crime, to harness all tools across government to pursue prevention, deterrence and accountability."

"Now, since I returned to the department, I’ve also looked for ways to expand the resources available to the department’s prosecutors to address the evolution of corporate crime."

"And last year, we stood up the National Cryptocurrency Enforcement Team (NCET) and the FBI’s Virtual Asset Unit (VAU)."

"Now, these investments have already been paying off — whether you look at the over $5 billion in cryptocurrency recovered last year or the prosecutions we have brought against dozens of crypto criminals."

Federal Crime of Wire Fraud

: Created: 08 March 2023

Tyler Texas Criminal Defense Lawyer Carlo D'Angelo

Wire fraud is a serious crime under federal law that occurs when someone uses electronic communication to carry out a fraudulent scheme. Wire fraud can involve a wide range of fraudulent activities, such as phishing scams, investment fraud, and internet auction fraud. The use of electronic communication in carrying out these schemes can include emails, phone calls, faxes, or other forms of communication.

Federal law criminalizes wire fraud under 18 U.S.C. § 1343, which states that anyone who "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...in interstate or foreign commerce" is guilty of a crime. This statute covers a wide range of fraudulent activities, including those that occur across state or international borders.

To prove wire fraud under 18 U.S.C. § 1343, the government must establish two elements. The first element is a "scheme to defraud," which refers to a plan or course of action designed to deceive others for financial gain. The scheme must be intentional and fraudulent, meaning that the defendant must have intended to deceive the victim. The second element is the use of wire communications to further the scheme. This means that the defendant must have used electronic communication, such as email or phone calls, to carry out or advance the fraudulent scheme.

It is important to note that the scheme referenced in the first element of 18 U.S.C. § 1341 must be designed to deprive the alleged victim of money or property. This means that the scheme must involve a plan to obtain something of value from the victim through fraudulent means. The victim can be an individual, a company, or a government agency.

Wire fraud is a serious offense that can result in severe penalties, including fines and imprisonment. In addition, a conviction for wire fraud can have long-lasting consequences, such as damage to one's reputation and difficulty finding employment. If you are facing charges for wire fraud, it is essential to consult with an experienced criminal defense attorney who can help you understand your rights and options for defending against these charges.

Possession of Methamphetamine with the Intent to Distribute

: Created: 08 March 2023

Tyler Texas Criminal Defense Lawyer Carlo D'Angelo

Possession of methamphetamine with intent to distribute is a serious offense that carries severe penalties under federal law. To convict a defendant for this offense, the government must prove three elements: knowledge, possession, and intent to distribute. In this blog post, we will discuss these elements and their importance in the conviction of possession of methamphetamine with intent to distribute.

Element 1: Knowledge

The first element of the offense is knowledge. The government must prove that the defendant knew that they were in possession of methamphetamine. This means that the defendant was aware of the presence of methamphetamine and knew that it was a controlled substance. Knowledge can be established by showing that the defendant was found in close proximity to the drugs, had control over the drugs, or made statements indicating knowledge of the drugs.

Element 2: Possession

The second element of the offense is possession. The government must prove that the defendant had actual or constructive possession of the methamphetamine. Actual possession means that the defendant physically held or controlled the drugs. Constructive possession means that the defendant had the ability to exercise control over the drugs, even if they were not physically present. For example, if the drugs were found in a vehicle that the defendant was driving, the government may argue that the defendant had constructive possession of the drugs.

Element 3: Intent to Distribute

The third element of the offense is intent to distribute. The government must prove that the defendant possessed the methamphetamine with the intent to distribute it. Intent can be established by showing that the defendant had a large quantity of drugs, drug paraphernalia, or other evidence indicating that the drugs were intended for distribution. Additionally, evidence of the defendant's involvement in drug transactions or conversations related to drug distribution can be used to support an intent to distribute charge.

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