Superior San Antonio Criminal Defense
San Antonio Drug Crimes Lawyer Charles Johnson defends clients against charges of illegal prescription drug possession. Many of the firm’s clients are individuals who are addicted to prescription painkillers because of an injury or accident. The criminal charges are the result of their efforts to acquire the medicine they need after the prescription expires. They are not career criminals.
Other clients include individuals charged with illegally selling prescription drugs. Whatever the basis for the charge, The Charles Johnson Law Firm defends them vigorously, identifying weaknesses in the prosecution’s case and working hard to protect their rights. Attorney Johnson is well known as an efficient and effective defense lawyer with in-depth knowledge drawn from his extensive legal experience.
A drug can be legal when prescribed by a doctor, yet it can be illegal when someone uses it without a valid prescription. If you are being investigated for a prescription drug crime, you cannot afford to be poorly represented. San Antonio Criminal Lawyer Charles Johnson has expertly defended prescription drug charges in San Antonio and throughout Texas. You can contact him anytime night or day to discuss your case at (210) 431-3337 or toll-free at (877) 308-0100.
The Charles Johnson Law Firm regularly assists clients with drug cases involving illegal prescription medications, such as:
- Forging of prescriptions
- Pharmacy fraud and prescription fraud
- Illegal possession of prescription medications
- Transportation of drugs
- Distribution of drugs
- Illegal buying prescription drugs online
- Drug delivery, manufacturing and trafficking
If you have been charged with one or more of these offenses, you could be facing jail time and other significant consequences. It is important to know what to do in the days following an arrest and how an experienced attorney can build a vigorous defense for your charges. In many cases he will be able to have your case dismissed entirely. Call San Antonio Lawyer Charles Johnson at (210) 431-3337 to discuss your case. Attorney Johnson answers the phone 24 hours per day and offers you a free initial consultation.
Hire the Best San Antonio Drug Attorney: The Charles Johnson Law Firm
Prescription drug abuse is on the rise in Texas. There are many possible ways for someone to acquire prescription drugs for illegal use. Some people obtain the prescription drugs from a person who has a valid prescription. Others steal a doctor’s official prescription pad and forge the doctor’s signature for the medication, while some create a counterfeit prescription that resembles a doctor’s official prescription. There are some who do what is called “Doctor Shopping,” which entails going to many different doctors complaining about a medical condition to get prescriptions from each of them.
What is prescription drug abuse?
Prescription drug abuse is the use of a medication without a prescription, in a way other than as prescribed, or for the experience or feelings elicited. According to several national surveys, prescription medications, such as those used to treat pain, attention deficit disorders, and anxiety, are being abused at a rate second only to marijuana among illicit drug users. The consequences of this abuse have been steadily worsening, reflected in increased treatment admissions, emergency room visits, and overdose deaths.
How many people abuse prescription drugs?
According to results from the 2010 National Survey on Drug Use and Health (NSDUH), an estimated 2.4 million Americans used prescription drugs nonmedically for the first time within the past year, which averages to approximately 6,600 initiates per day. More than one-half were females and about a third were aged 12 to 17. Although prescription drug abuse affects many Americans, certain populations, such as youth, older adults, and women, may be at particular risk.
Who abuses prescription drugs?
Individuals of all ages abuse prescription drugs — data reported in the National Household Survey on Drug Abuse indicate that an estimated 36 million U.S. residents aged 12 and older abused prescription drugs at least once in their lifetime. The survey also revealed that millions of teenagers and young adults abuse prescription drugs — 2.7 million individuals aged 12 to 17 and 6.9 million individuals aged 18 to 25 abused prescription drugs at least once. Prescription drug abuse among high school students is a particular concern. According to the University of Michigan’s Monitoring the Future Survey, more than 10 percent of high school seniors in the United States abused narcotics (other than heroin) at least once in their lifetime. Nearly 17 percent abused amphetamines (a type of stimulant), 10 percent abused barbiturates, and 11 percent abused tranquilizers at least once.
Adolescents and young adults
Abuse of prescription drugs is highest among young adults aged 18 to 25, with 5.9 percent reporting nonmedical use in the past month (NSDUH, 2010). Among youth aged 12 to 17, 3.0 percent reported past-month nonmedical use of prescription medications.
According to the 2010 MTF, prescription and OTC drugs are among the most commonly abused drugs by 12th graders, after alcohol, marijuana, and tobacco. While past-year nonmedical use of sedatives and tranquilizers decreased among 12th graders over the last 5 years, this is not the case for the nonmedical use of amphetamines or opioid pain relievers.
When asked how prescription opioids were obtained for nonmedical use, more than half of the 12th graders surveyed said they were given the drugs or bought them from a friend or relative. Interestingly, the number of students who purchased opioids over the Internet was negligible.
Youth who abuse prescription medications are also more likely to report use of other drugs. Multiple studies have revealed associations between prescription drug abuse and higher rates of cigarette smoking; heavy episodic drinking; and marijuana, cocaine, and other illicit drug use among adolescents, young adults, and college students in the United States.
Persons aged 65 years and older comprise only 13 percent of the population, yet account for more than one-third of total outpatient spending on prescription medications in the United States. Older patients are more likely to be prescribed long-term and multiple prescriptions, and some experience cognitive decline, which could lead to improper use of medications. Alternatively, those on a fixed income may abuse another person’s remaining medication to save money.
The high rates of comorbid illnesses in older populations, age-related changes in drug metabolism, and the potential for drug interactions may make any of these practices more dangerous than in younger populations. Further, a large percentage of older adults also use OTC medicines and dietary supplements, which (in addition to alcohol) could compound any adverse health consequences resulting from prescription drug abuse.
What prescription drugs are commonly abused?
The prescription drugs that are commonly abused in the United States fall into several broad categories: opioids/narcotics/pain relievers, CNS (Central Nervous System) depressants, and stimulants. Individuals abuse these drugs because they are an easily accessible and inexpensive means of altering a user’s mental and physical state; the effects vary depending upon the drugs they abuse.
What are some of the commonly abused prescription drugs?
Although many medications can be abused, the following three classes are most commonly abused:
Opioids—usually prescribed to treat pain;
Central nervous system (CNS) depressants—used to treat anxiety and sleep disorders; and
Stimulants—most often prescribed to treat attention deficit hyperactivity disorder (ADHD).
What are opioids?
Opioids are medications that relieve pain. They reduce the intensity of pain signals reaching the brain and affect those brain areas controlling emotion, which diminishes the effects of a painful stimulus. Medications that fall within this class include hydrocodone (e.g., Vicodin), oxycodone (e.g., OxyContin, Percocet), morphine (e.g., Kadian, Avinza), codeine, and related drugs. Hydrocodone products are the most commonly prescribed for a variety of painful conditions, including dental and injury-related pain. Morphine is often used before and after surgical procedures to alleviate severe pain. Codeine, on the other hand, is often prescribed for mild pain. In addition to their painrelieving properties, some of these drugs—codeine and diphenoxylate (Lomotil) for example—can be used to relieve coughs and severe diarrhea.
Common Brand Names:
- Dilaudid (Dust, Juice, Smack, D, Footballs)
- Lorcet (Pharmies, Beans, Hydro, Painkillers, Happy Pills)
- Lortab (Tab, Hydro, Norco, Vikes, Viko)
- Oxycontin (Hillbilly Heroin, Oxycet, Oxycotton)
- Oxycodone which includes Percocet, Percodan & Tylox (Percs, Paulas, Roxicotten, Roxi’s, Blue Dynamite, 512s)
- Vicodin (Happy Pills, Vikes)
What are CNS depressants?
CNS depressants, sometimes referred to as sedatives and tranquilizers, are substances that can slow brain activity. This property makes them useful for treating anxiety and sleep disorders. Among the medications commonly prescribed for these purposes are the following:
Benzodiazepines, such as diazepam (Valium) and alprazolam (Xanax), are sometimes prescribed to treat anxiety, acute stress reactions, and panic attacks. The more sedating benzodiazepines, such as triazolam (Halcion) and estazolam (ProSom) are prescribed for short-term treatment of sleep disorders. Usually, benzodiazepines are not prescribed for longterm use because of the risk for developing tolerance, dependence, or addiction.
Non-benzodiazepine sleep medications, such as zolpidem (Ambien), eszopiclone (Lunesta), and zalepon (Sonata), have a different chemical structure, but act on some of the same brain receptors as benzodiazepines. They are thought to have fewer side effects and less risk of dependence than benzodiazepines.
Barbiturates, such as mephobarbital (Mebaral), phenobarbital (Luminal Sodium), and pentobarbital sodium (Nembutal), are used less frequently to reduce anxiety or to help with sleep problems because of their higher risk of overdose compared to benzodiazepines. However, they are still used in surgical procedures and for seizure disorders.
- CNS Depressants
Common Brand Names:
- Barbiturates which include Amytal, Nembutal, Seconal And Phenobarbital (Barbs, Blue Birds, Phennies, Tooties, Yellows, Reds, Yellow Jackets, Amytal, Downers, Nembutal, Phenobarbital, Red Birds, Red Devils, Seconal, Tuninal)
- Benzodiazepines which include Ativan, Halcion, Librium, Valium Or Xanax (Candy, Downers, Sleeping Pills, And Tranks)
- Flunitrazepam which includes Rohypnol (Known as a leading ‘date-rape’ drug, Forget-Me Pill, Mexican Valium, R2, Roche, Roofies, Rope)
- Ketamine which includes Ketalar (Kat, Valium K, Special K, Vitamin K)
What are stimulants?
As the name suggests, stimulants increase alertness, attention, and energy, as well as elevate blood pressure, heart rate, and respiration. Stimulants historically were used to treat asthma and other respiratory problems, obesity, neurological disorders, and a variety of other ailments. But as their potential for abuse and addiction became apparent, the medical use of stimulants began to wane. Now, stimulants are prescribed to treat only a few health conditions, including ADHD, narcolepsy, and occasionally depression—in those who have not responded to other treatments.
Common Brand Names:
- Amphetamines which include Adderall, Dexedrine, Dextrostat, Desoxyn, ProCentra, Vyvanse and Biphetamine (Bennies, Black Beauties, Crosses, Hearts, LA Turnaround, Speed, Truck Drivers, Uppers)
- Methylphenidate which includes Ritalin (Jif, Mph, R-Ball, Skippy, The Smart Drug, Vitamin R, Kiddy Cocaine, West Coast)
How are prescription drugs abused?
Prescription drugs are abused in a variety of ways. Many of the prescription drugs that are commonly abused are available as tablets. Typically abusers either consume the tablets orally or crush them into a powder, which they then snort. In some instances, abusers dissolve crushed tablets in water and then inject the solution.
How many people suffer adverse health consequences from abusing prescription drugs?
The Drug Abuse Warning Network (DAWN), which monitors emergency department (ED) visits in selected areas across the Nation, reported that approximately 1 million ED visits in 2009 could be attributed to prescription drug abuse. Roughly 343,000 involved prescription opioid pain relievers, a rate more than double that of 5 years prior. ED visits also more than doubled for CNS stimulants, involved in nearly 22,000 visits in 2009, as well as CNS depressants (anxiolytics, sedatives, and hypnotics), involved in 363,000 visits. Of the latter, benzodiazepines (e.g., Xanax) comprised the vast majority. Rates for a popular prescribed nonbenzodiazepine sleep aid, zolpidem (Ambien), rose from roughly 13,000 in 2004 to 29,000 in 2009. More than half of ED visits for prescription drug abuse involved multiple drugs.
One in five teens nationwide were reported abusing a prescription pain medication and one in ten reported abuse of a prescription stimulant. (The Partnership for a Drug-Free America)
More teens abuse prescription drugs than any other illicit drug, except marijuana—more than cocaine, heroin, and methamphetamine combined. (The Partnership for a Drug-Free America)
Local school officials privately express concern about the selling and easy access of prescription drugs in their schools. School administrators, however, are reluctant to speak publicly about the problem.
Experts don’t know exactly why this type of drug abuse is increasing. The availability of drugs is probably one reason. Doctors are prescribing more drugs for more health problems than ever before. Online pharmacies make it easy to get prescription drugs without a prescription, even for youngsters.
How are they obtained?
Prescription drugs are obtained in various ways. In some cases, unscrupulous pharmacists or other medical professionals either steal the drugs or sell fraudulent prescriptions. In a process known as doctor shopping, abusers visit several doctors to obtain multiple prescriptions. Individuals also call pharmacies with fraudulent prescription refills, or they alter prescriptions. Prescription drugs occasionally are stolen from pharmacies. Young people typically obtain prescription drugs from peers, friends, or family members. Some individuals who have legitimate prescriptions sell or give away their drugs. Young people also acquire prescription drugs by stealing them from relatives and other individuals with legitimate prescriptions or from school medicine dispensaries.
Is abusing prescription drugs illegal?
Yes, it is illegal to use prescription drugs without a valid prescription or to distribute them. The penalties associated with the abuse or illegal distribution of prescription drugs vary depending upon the drug type.
What are the penalties for possessing illegal prescription drugs in Texas?
Prescription drugs are offered legally through a prescription, however, possession of prescription pills without a legal prescription can land you in jail in Texas.
Sec. 481.115. OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 1. (a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
Sec. 481.117. OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 3. (a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 3, unless the person obtains the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
Group 1: Includes Opium, Oxycodone and some Prescription Pills
Weight of Drug
Type of Offense
Less than one gram
State jail felony
180 days to 2 yearsin a state jail
1 gram or more, less than 4 grams
2 to 10 yearsin a state prison
4 grams or more, but less than 200 grams
2 to 20 yearsin a state prison
200 grams or more, but less than 400 grams
5 to 99 yearsin a state prison
400 grams or more
Enhanced first-degree felony
10 to 99 yearsin a state prison
Group 3 & 4: Many Prescription Pills like Xanax, Valium, Ritalin, & Drug Compounds
Weight of Drug
Type of Offense
Less than 28 grams
Class A misdemeanor
Not more than 1 year in a county jail
28 grams or more, but less than 200 grams
2 to 10 yearsin a state prison
200 grams or more, but less than 400 grams
2 to 20 yearsin a state prison
400 grams or more
5 to 99 yearsin a state prison
Possession With Intent to Distribute
Some states have laws making it illegal to be in possession of your own prescription drugs under certain circumstances. Most states have laws that make it illegal to carry around pills that are not in their labeled prescription bottle.
In other words, if you are carrying around pills that your doctor prescribed to you, but have them loose in your pocket or purse, that is illegal. The presumption is that you are carrying them in that manner so that you can distribute them.
Purchasing Prescription Drugs over the Internet
Federal law prohibits buying controlled substances such as narcotic pain relievers (e.g., OxyContin®, Vicodin®), sedatives (e.g., Valium®, Xanax®, Ambien®), stimulants (e.g., phentermine, phendimetrazine, Adderall®, Ritalin®) and anabolic steroids (e.g., Winstrol®, Equipoise®) without a valid prescription from your doctor. This means there must be a real doctor-patient relationship, which by most state laws requires a physical examination. Prescriptions written by “cyber doctors” relying on online questionnaires are not legitimate under the law.
Buying controlled substances online without a valid prescription may be punishable by imprisonment under Federal law. Often drugs ordered from rogue websites come from foreign countries. It is a felony to import drugs into the United States and ship to a non-DEA registrant.
Buying drugs online may not be only illegal, but dangerous. The American Medical Association and state boards of medicine and pharmacy have all condemned the practice of cyber doctors issuing online prescriptions as unacceptable medical care. Drugs delivered by rogue websites may be the wrong drugs, adulterated or expired, the wrong dosage strength, or have no dosage directions or warnings.
Hire the Best San Antonio Prescription Drugs Attorney: The Charles Johnson Law Firm
Some people believe that crimes that involve prescription drugs are treated less seriously than crimes that involve marijuana, cocaine and other illegal drugs. This is not true, however, and the penalties for prescription drug crimes in San Antonio can be just as severe as penalties for illegal drug crimes. Depending on the type and amount of drug, the consequences could be significant.
If you have been charged with an offense involving illegal prescription medications, you need an experienced criminal defense attorney who can successfully represent you and protect your rights. San Antonio Lawyer Charles Johnson has expertly defended prescription drug charges for many years. In many cases he will be able to have your case dismissed entirely. Contact him now for your free consultation.
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A drug trafficking offense in Texas can result in a felony criminal charge. It is an illegal and dangerous undertaking. The definition of drug trafficking is: the trade or dealing of illicit drugs and/or the sale or exchange of drugs. Heroin, cocaine, marijuana and ecstasy are the most common drugs found in drug trafficking cases. Texas takes a no tolerance stance on the fight against drugs. Drug offenses often lead to more serious crime and cause destruction within communities.
Drug trafficking is generally referred to as the manufacturing, transporting and distributing of large quantities of drugs. It often involves more than one person. Drug trafficking charges are wide and varied depending on the scope of the trafficking. Additionally, if the drug trafficking was directed towards minors, then prosecutors will seek enhancements to the charges. State and federal governments have adopted strict laws and severe penalties regarding the trafficking of drugs. Penalties can approach seven figures and decades in prison for severe cases. San Antonio Criminal Lawyer Charles Johnson has proven how to successfully approach and handle these types of cases and he should be contacted immediately when an arrest is made for drug trafficking. Attorney Johnson can be reached anytime night or day to discuss your case at 210-431-3337.
Drug Trafficking is probably the most charged offense in federal court and is also quite prevalent in state courts. Because of the severity of the sentences, evidence and all circumstances and conditions regarding your arrest will be thoroughly examined by the Charles Johnson Law Firm and their team of experienced investigators. Drug trafficking cases can be quite involved, and with the vast amounts of drugs coming in from Mexico, prosecutors are aggressively pursuing convictions.
Types of Drug Trafficking Laws
Drug trafficking laws vary by country and region, but generally include distribution, manufacturing, and dispensing certain categories of controlled substances. Usually, the drugs are classified according to type and the addictive nature of the drug. Highly addictive narcotics like heroin and crack typically fall into one class, while marijuana and prescription drugs are considered less harmful. International drug trafficking laws are commonly handled under customs law.
Possession of drugs with the intent to sell routinely falls under drug trafficking statutes. If someone is found with a large amount of narcotics, it may be presumed that he or she intends to distribute the drugs for money. Different regions determine how much and what kind of drug is considered outside limits for personal use. Penalties for violations of these drug trafficking laws are often based on the quantity of the substance and its type.
Those who manufacture drugs may be charged under drug trafficking laws in most places. These sections of the law typically include possession of chemicals or equipment needed to make the controlled substance. Narcotics laws in each country outline the exact chemicals or equipment considered illegal.
Drug trafficking laws may include a provision that allows law enforcement to seize assets used to commit a crime. For example, if drugs are sold from a house or vehicle, a judge may order that those assets be forfeited to the government. The property is typically sold at a public auction, with the proceeds going to fund narcotics operations.
Almost any scheduled narcotic can qualify for a drug trafficking charge. In state courts the amount of drugs (cocaine, cannabis, extasy, crystal meth, acid, heroine, prescription medication) will determine if a possession charges becomes a trafficking charge. Even if you are only going to used the drugs for your personal consumption, the amount that you possess could bring a trafficking charge. You may also qualify for a distribution charge if it appears that a small amount of drugs was packaged for distribution. Each state is different as to the amount necessary for the trafficking charge. Under the federal statute you can be charged for the amount you have and or the amount you were trying to buy from a government agent. You may never actually possess the drugs, but you will be charged.
Supplying drugs to children or using minors to distribute narcotics generally carries tougher penalties than those that apply to adults. In some areas, maintaining a home for the purpose of making or distributing drugs where children live is also considered a more serious drug trafficking offense. Stiffer sanctions might also be imposed for those who sell drugs near schools, playgrounds, arcades, and other areas where children congregate.
Laws also exist that regulate drug trafficking by criminal gangs or organized groups. Penalties might be enhanced if weapons are used in the distribution of a controlled substance. Those with profits from organized sales of narcotics can also be prosecuted under money laundering statutes in some jurisdictions.
Defenses for Drug Trafficking Charges
San Antonio Criminal Lawyer Charles Johnson will provide skilled advice and representation to clients facing state or federal drug charges. He is considered an expert when defending against charges related to:
- Interception of a drug shipment
- Drug conspiracy charges
- Interstate drug distribution
- Undercover interstate trafficking stings
- Illegal sale and trafficking of prescription drugs
- Illegal sale and trafficking of cocaine, heroin, marijuana, methamphetamine (meth), MDMA (Ecstasy)
Drug trafficking charges often hinge on the prosecution’s illegal search and seizure of your vehicle, undercover drug operations, and confidential informants who are attempting to make a deal. As an expert lawyer skilled in drug cases, Attorney Johnson will thoroughly investigate how the prosecution came upon the evidence collected and determine if the method of collecting the evidence is in violation of your constitutional rights.
The court will have no choice but to keep any illegally obtained evidence out of trial. Attorney Johnson’s ability to thoroughly investigate drug cases and vigorously challenge the factual and constitutional merits of the prosecution’s case has proven effective in his defense of clients facing drug trafficking charges involving cocaine, heroin, marijuana, methamphetamine (meth) or prescription narcotics.
Even if the police find drugs directly in a person’s possession, the drugs and other evidence could be suppressed (thrown away) if the police did not follow the proper procedures required under the U.S. Constitution. One of the first things Attorney Johnson will look for when defending someone accused of a drug offense is whether the police themselves acted in a legal manner. Other defenses include areas such as whether the actual weight of the substance was correct when allowing for hydration, whether the chemical composition of the substance was correct as charged, whether there was joint or constructive possession of the substance which could subject the case to a Motion to Dismiss and whether the accused was entrapped into committing the offense by law enforcement or one of its informants.
Another possible defense for drug trafficking charges would involve a violation of constitutional right to counsel and right to remain silent. Once charged or in custody, you are required to be informed of your rights and given access to legal representation if you request it. Contact San Antonio Criminal Lawyer Charles Johnson immediately upon arrest before saying anything that could be used against you in the future. This can often mean the difference between a conviction and walking away free of any charges. You would be surprised at how many cases result in a conviction due largely to statements made by the accused.
Other possible defenses may include:
- Lack of knowledge
- Mistake of fact (For example, thinking the drug was sugar when in fact, it was cocaine.)
- Duress (For example, if Bob was forced to transport the cocaine because if he refused, something bad would happen to his family.)
- The substance was not intended for human consumption
Lastly, Attorney Johnson will determine if inappropriate charges were filed. Drug trafficking is a highly political issue, and you may find yourself facing inflated charges. The right attorney can insure that any charges you do face are appropriate to the acts alleged by the prosecutor.
At the Charles Johnson Law Firm, we have the experience and know-how to guide you through this complicated process from the moment of your arrest through trial, if necessary.
The defense of drug-related crimes can be difficult and complex and requires an attorney with special skills, experience and knowledge. San Antonio Criminal Lawyer Charles Johnson is highly qualified to defend your case. Whether it is identifying a drug addiction issue so that we may assist in getting them treatment or counseling, negotiating a fair resolution in an effort to have charges or a sentence reduced or preparing and taking a case to trial, the Best San Antonio Criminal Lawyer is available to assist and defend you.
As an extremely experienced criminal lawyer specializing in drug cases at both the Federal and State level, San Antonio Criminal Lawyer Charles Johnson is well aware of the strategies, theories and methods employed by prosecutors when they prosecute a drug case. Attorney Johnson will use this knowledge to his client’s advantage while defending their cases to get the best possible outcome on their behalf.
We are proud to represent and care about our clients. We know the devastation that a drug conviction, an addiction or incarceration for a drug offense can bring to an individual or his/her family. We will answer your questions and guide you through the whole process, working to take away some of the confusion and uncertainty that comes along any drug offense charge, while all along seeking the most favorable outcome for you or your loved one.
Drug Trafficking by Criminal Gangs
There are nearly 1 million active gang members in the United States, based on analysis of federal, state, and local data, and the involvement of criminal gangs in domestic drug trafficking is becoming increasingly complex. Since 2001, many gangs have advanced beyond their traditional role as local retail drug distributors in large cities to become more organized, adaptable, deliberate, and influential in large-scale drug trafficking. Much of their growing influence has come at the expense of local independent dealers and small local criminal groups who cannot compete with gangs that establish control in smaller drug markets.
The influence of Hispanic and African American street gangs is expanding as these gangs gain greater control over drug distribution in rural and suburban areas and acquire drugs directly from Drug Trafficking Organizations (“DTOs”) in Mexico or along the Southwest Border.
In 2009, midlevel and retail drug distribution in the United States was dominated by more than 900,000 criminally active gang members representing approximately 20,000 domestic street gangs in more than 2,500 cities. These street gangs vary greatly with respect to their ethnic or racial identities, the types and amounts of drugs that they distribute, their strength and influence, and their adaptability. Their prevalence varies geographically, with the greatest concentration of street gangs occurring in the Great Lakes, Pacific, Southeast, and Southwest Organized Crime Drug Enforcement Task Force (OCDETF) Regions.
Many Hispanic and, to a lesser extent, African American gangs are gaining control over drug distribution outside urban areas that were previously supplied by local independent dealers or small local criminal groups. Around 2007, Hispanic and African American gangs throughout the country, but especially in the Southwest and Great Lakes Regions, began to command greater influence over drug distribution in many rural and suburban areas. This trend continued in 2009. For example, in 2009, the Avenues street gang based in Los Angeles, California, expanded its operations to distribute drugs in suburban and rural locations throughout southern California.
To increase their control over drug trafficking in smaller markets, street gangs have been increasingly acquiring larger wholesale quantities of drugs at lower prices directly from DTOs in Mexico and along the Southwest Border. Several Southwest Border street gangs, such as Shelltown 38th Street, Tri-City Bombers, and Vallucos, smuggle wholesale quantities of drugs obtained in Mexico into the United States. By purchasing directly from Mexican wholesale sources in Mexico or along the Southwest Border, gangs throughout the country realize cost savings that enable them to sell drugs at lower prices than local independent dealers in small communities, driving these dealers out of business. For example, members of the Chicago-based Latin Kings street gang who operate in Midland, Texas, purchase cocaine from Mexican traffickers in south Texas for $16,000 to $18,000 per kilogram, compared with $25,000 to $35,000 per kilogram from wholesale traffickers in Chicago. With this savings, the gang undersells other local dealers who do not have the capacity to buy large wholesale quantities directly from Mexican DTOs in Mexico or along the Southwest Border.
Hispanic prison gangs, primarily in Southwest Border states, are gaining strength by working directly with Mexican DTOs to acquire wholesale quantities of drugs and by controlling most street gangs in areas along the Southwest Border.
Prison gangs are active in all 50 states and are increasing their influence over drug trafficking in areas along the Southwest Border (see Table B4 in Appendix B). Prior to 2001, the criminal influence of prison gangs was limited primarily to retail-level drug distribution. However, since that time, Hispanic prison gangs have become increasingly involved in the transportation and wholesale distribution of drugs.
Hispanic prison gangs such as Hermanos de Pistoleros Latinos (HPL) and Raza Unida operating in Southwest Border states have increased their involvement in wholesale drug distribution activities through cooperative relationships with Mexican DTOs. Through these relationships, Hispanic prison gangs are able to gain access to wholesale quantities of drugs. For example, in September 2009, 21 members of HPL were convicted in the Southern District of Texas (San Antonio) of conspiring to distribute more than 150 kilograms of cocaine and laundering millions of dollars in drug proceeds. In April 2009, 15 members and associates of the Raza Unida prison gang were indicted for trafficking multikilogram quantities of cocaine and methamphetamine weekly in McAllen and San Antonio, Texas.
To ensure a consistent profit stream from the wholesale drugs that they purchase from Mexican DTOs, Hispanic prison gangs distribute drugs through street gangs that they largely, if not entirely, control. Through force or intimidation, Hispanic prison gangs exercise significant control over local gangs that distribute their drugs in the Southwest Border region. For example, Barrio Azteca prison gang members operating in El Paso, Texas, collect drug payments and taxes from 47 street-level gangs and independent drug dealers trafficking drugs in El Paso.
Potential Penalties for Drug Trafficking
The penalties for drug trafficking offenses vary and depend on a number of factors. These include the type and amount of illegal drugs (also called “controlled substances”) found in a person’s possession, whether the person is a repeat offender and the state in which the person is charged.
Drug trafficking or distribution in Texas is a felony upon which a wide range of penalties may be imposed. It may be anywhere from a state jail felony, which carries the lightest sentence, to a first degree felony, which carries the harshest. The factors influencing which sentence will be imposed are: (1) the amount of the drug being distributed or delivered; and (2) the type of drug and which of the four groups of drugs it is classified under. The smaller the amount of a drug in a certain group, the lighter the sentence may be.
Texas has some very heavy penalties for drug trafficking. Prosecutors may often offer plea deals to defendants where they may offer a charge with a lesser penalty in exchange for information that would help them gather evidence for a higher priority investigation.
The sentences involved may range anywhere from 180 days to two years in state jail and/or a fine of no more than $10,000 for a state jail felony, to life in the Texas Department of Criminal Justice or a term of 15 to 99 years in prison and/or a fine of not more than $250,000 for the heaviest first degree felony. The harshness of the sentence imposed depends on how much of the drug is being trafficked. For example, trafficking or distributing less than one gram of a substance in the first grouping of drugs carries a state jail felony charge, whereas trafficking 400 grams or more of any one of the same drugs carries a first degree felony charge that may include a life sentence.
At the Federal level, the Controlled Substances Act (PL 91-513, 1970, last amended in 2000) provides penalties for the unlawful manufacture, distribution, and dispensing (or trafficking) of controlled substances, based on the schedule (rank) of the drug or substance. Generally, the more dangerous the drug and the larger the quantity involved, the stiffer the penalty. Trafficking of heroin, cocaine, LSD, and PCP, all Schedule I or II drugs (see Table 2.1 in Chapter 2), includes mandatory jail time and fines. A person caught selling at least five hundred grams but less than five kilograms of cocaine powder (seventeen ounces to just under eleven pounds) will receive a minimum of five years in prison and may be fined up to $2 million for a first offense. (See Table 6.1.) The same penalty is imposed for the sale of five to forty-nine grams of cocaine base (“crack”). Five grams are equal to the weight of six plain M&Ms candies, and forty-nine grams are a little more than a bag of M&Ms candies (47.9 grams). The high penalty for selling crack is an expression of the unusual severity with which legislators are trying to curb the use of this drug.
Penalties double with the second offense to ten years in prison and up to $4 million in fines. When higher quantities are involved (five or more kilograms of cocaine powder, fifty grams or more of crack, etc.), penalties for the first offense are ten years, and fines up to $4 million may be levied. For the second offense, twenty years and up to $8 million in fines are given, and the third offense results in mandatory life imprisonment. These examples are for an individual. Higher penalties apply if an organized group is involved or if a death or injury is associated with the arrest event.
These penalties apply also to the sale of fentanyl (a powerful painkiller medicine) or like-acting drugs, heroin, LSD, methamphetamine, and PCP. The smallest amount, which can earn someone a minimum sentence of five years in prison and a fine of up to $2 million, involves trafficking in LSD, where a one-gram amount carries a five-year minimum sentence in prison.
Special penalties exist for marijuana trafficking, since it may be traded in large quantities or grown in substantial amounts. The lower the amounts sold or the fewer the plants grown, the lower the sentence. A person cultivating one to forty-nine plants or selling less than fifty kilograms of marijuana mixture, ten kilograms or less of hashish, or one kilogram or less of hashish oil may get a maximum sentence of five years in prison and a maximum fine of $250,000. Sentences for second offenses involving large amounts of marijuana may earn the trafficker up to life imprisonment.
The penalties for drug trafficking are harsh, and reflect the seriousness of this felony offense and the current political climate. A conviction can lead to jail time, forfeiture of property and fines, but that is only part of the story. It places your current employment in jeopardy, places a severe emotional strain on you and your family, adversely affects your ability to find new work, and places your entire future at risk.
Hire the Best San Antonio Drug Trafficking Lawyer: The Charles Johnson Law Firm
A drug trafficking conviction can have an extremely adverse effect on a person’s current and future life in many regards. Both state and federal prosecutors have their eye on a conviction of the most severe charges possible and not on your rights. San Antonio Criminal Lawyer Charles Johnson will work diligently with prosecutors regarding any circumstances or conditions that could result in charges being dropped or reduced. If necessary, our firm can take your case to court and present a strong defense on your behalf.
The Charles Johnson Law Firm expertly handles all types of Texas drug-related offenses, from the less severe, like simple possession of a small amount of certain drugs, to the more serious ones, such as participating in an organized drug trafficking business with sale, distribution and manufacturing activities. We also defend charges involving controlled substances, such as, marijuana, crack, paraphernalia, cocaine, heroin, ecstasy, methamphetamines (meth), hallucinogens such as LSD, oxycontin, oxycodone, hydrocode, xanax, and Rohypnol club drugs. We represent all levels of people charged with drug offenses, from the student or small time person, to the professional, medical doctor or person accused of being a large scale distributor or trafficker.
If you have been arrested for drug trafficking in San Antonio, TX, take fast action with a skilled and resourceful San Antonio Criminal Lawyer. Contact the Charles Johnson Law Firm immediately anytime night or day for a free phone consultation to discuss your case.
San Antonio Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 210-431-3337 or toll free at 877-308-0100.
Major Credit Cards Accepted.
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The Online Solicitation of Minors or Importuning is a significant crime that is vigorously prosecuted by law enforcement. These charges are pursued very seriously. Online solicitation that takes place in chat rooms and elsewhere on the Internet can bring about offenses with criminal penalties that include lengthy imprisonment and lifetime required registration on the sex offender registry.
As a result of the increased efforts of local and national law enforcement task forces to discover Online Solicitation of Minors, San Antonio Sex Crimes Lawyer Charles Johnson has frequently represented individuals who have been accused of communicating with a minor using the computer. In fact, the law in most jurisdictions allows for an officer to pose as a minor while communicating with a suspect. Soliciting either an actual minor or a police officer posing as a minor may result in the filing of charges and subsequent prosecution. A common misconception is that no crime is committed unless there is an actual meeting. In actuality, the offense of On-line Solicitation or Importuning may be completed merely through the communication or “chat.” If there is an attempt to actually meet, additional charges may be warranted.
San Antonio Criminal Lawyer Charles Johnson is well-versed in the various defenses that must be explored in all cases of this kind. These defenses may include issues of entrapment, client knowledge, or jurisdictional questions.
Accusation of soliciting a minor online can often result from entrapment-type situations commonly depicted on televisions shows. However, soliciting a minor online can also be the result of a mistake or an accident. For example, an individual can be charged with soliciting a minor when they thought they were communicating with an adult on the computer, but may have actually been talking to an underage person. No matter the reason for the false claims against you, it is important to contact an experienced sex crimes defense lawyer who will make every effort to find defenses or other mitigating factors that will result in an acquittal of the charges against you.
An allegation of On-line Solicitation or Importuning calls for great effort and resources, as the stakes are high – one faces not only a potential prison term, but also the stigmatizing and debilitating effects of sex offender public registration, which makes it difficult if not impossible to obtain employment, and may even severely restrict one’s ability to reside in certain locations.
Jurors are often familiar with programs like “To Catch a Predator”, giving them preconceived notions which need to be addressed and diffused. Our lawyers know first-hand that with thoughtful and extensive examination of pertinent case law and pre-trial motions, a successful defense of On-line Solicitation and Importuning allegations can be achieved.
It is important to remember that if you have been accused of soliciting a minor online, the state prosecutor is required to prove every element of the offense beyond a reasonable doubt. This can be a very difficult burden of proof to meet, and any doubt in the mind of the judge or jury can result in a dismissal or reduction of the charges against you. Therefore, it is essential to contact an experienced Child Sex Abuse lawyer to help you begin developing the best legal defense for your particular case. Contact San Antonio Criminal Lawyer Charles Johnson for a free consultation today at 210-431-3337 anytime, night or day if you have been falsely accused of soliciting a minor online.
Online Solicitation of a Minor Defined
Since the 1990′s, the internet has changed the way we communicate, do business, meet people, and almost all other aspects of our lives. Unfortunately, it has also led to new criminal charges, many of which carry steep penalties. The most severe online offenses are those related to the potential harm of an underage person, such as online solicitation of a minor.
Online solicitation of a minor is communication with a minor via the internet that aims to arouse, sexually gratify, harass, or arrange to meet a minor face-to-face in the real world. In Texas, a minor is any person who is 17 years of age or younger. Exchanging sexually oriented materials, conversations, or invitations with a minor is a serious legal offense in our state.
Sexual exploitation can result in numerous physical and psychological consequences for children that may be multiplied for victims of child pornography because they face a lifetime of possible revictimization through the continued distribution of videos, photographs, or computer images depicting their exploitation (Klain, 2001). The mass media continues to feed into the stereotype that all Internet offenders are “predators” or “pedophiles”. According to ABC World News Tonight in June 2006, there are approximately 563,000 registered sex offenders nationally. However, decades of research indicates that only ten percent (10%) of sex offenders are truly predatory in nature.
This is not to discount that Internet victimization is one of the most dangerous Internet threats, but society must be cautious in using such characteristics without empirical data to support such a homogenous label. In the National Juvenile Online Victimization (N-JOV) study, approximately seventy-eight percent (78%) of cases, the offender was one of the victim’s family members, second generation family member such as grandparents, uncle or aunt, or stepparents or parent’s intimate partner.
Children exploring the Internet for education and entertainment are at risk of encountering sexually explicit material, sexual exploitation, and Internet offenses while remaining undetected by parents. The Internet has become a conduit for sexually explicit material and offenses against children. Children are extremely vulnerable to victimization due to their curiosity, naiveté, and trusting nature. These crimes present law enforcement with many complex problems due to the fact that they transcend jurisdictional boundaries and often involve multiple victims in multiple states and countries. Internet crimes must be pursued vigorously by law enforcement.
The greatest obstacle facing law enforcement is that children and parents do not report the majority of Internet crimes. In situations where the abuse is a parent, a relative, or acquaintance, the abuse may be more likely to come to light inadvertently as a result of inquiries by social welfare and reports from neighbors, rather than as a result of police inquiries into online crime (Wolak, 2005, in press). Community involvement, parental supervision, and early intervention and prevention programs on Internet safety are essential in protecting children from online solicitation and exposure to pornography.
The computer age presents complex challenges for law enforcement, victim services, parents, legislators, and the community. The proliferation of computer technology obviously has enhanced our lives in many ways, such as enabling improved productivity and efficiency at work, school, and home (U.S. Department of Justice, 2001). Unfortunately, this technology is not without potential threats and harm for criminals to prey upon innocent victims. According to ABC World News Tonight in June 2006, there are approximately 563,000 registered sex offenders nationally. End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (EPCAT) International reports violence and harms against children and young people in cyberspace include: the production, distribution, and use of materials depicting child sexual abuse; online solicitation; exposure to materials that can cause psychological harm, lead to physical harm, or facilitate other detriments to a child; and harassment and intimidation.
Today the Internet has approximately two hundred (200) million users worldwide who can communicate with each other. Children of all ages are browsing the Internet. Forty-five (45%) of children in the United States, more than thirty (30) million of whom are younger than eighteen (18) use the Internet. By 2005, it was estimated that there are seventy-seven (77) million children online. Approximately one hundred three (103) million people use instant messaging (IM) programs such as AOL’s AIM, Microsoft’s MSN Messenger, and others. MySpace.com reports more than eighty-five (85) million members and the number of visitors to MySpace went from 4.9 million in 2005 to currently over sixty-seven (67) million. Like most new technological developments, this brings both positive and negative implications, especially for parents and their children.
Some children are especially at risk due to a range of vulnerability-enhancing factors common to all environments. They are in socially and economically difficult situations, have experienced sexual abuse and exploitation, are lonely, or feel alienated from their parents. Others have low self-esteem, feel awkward, are confused about their personal identity and sexuality, and lack confidence. Gender is also seen to be a risk factor, with seemingly more girls than boys appearing to be harmed through cyberspace interactions (although boys are increasingly featured in pornographic images circulating online).
Demographics of an Internet Offender
Sex offenders and child pornographers are a heterogeneous mixture. Before the advent of the Internet, between one-fifth and one-third of people arrested for possession of child pornography were also involved in actual abuse. The majority are male and come from all socio-economic and racial backgrounds. Many are skilled in technology. Not all fit the clinical classification of “pedophilia”. The mass media continues to feed into the stereotype that all Internet offenders are “predators” or “pedophiles”. This is not to discount that Internet victimization is one of the most dangerous Internet threats but society must be cautious in using such characteristics without empirical data to support such a homogenous label. We have to remember that in a previous generation, campaigns to prevent child molestation characterized the threat as “playground predator” or “stranger danger” so that for years the problem of youth, acquaintance, and intra-family perpetrators went unrecognized.
In an analysis of 600 cases of child sexual abuse in which the Internet played a role, either the offender- victim relationship was initiated or conducted online, the case involved the online sharing or distribution of child pornography, or the case involved child pornography stored on a computer or digital media. One hundred twenty six (126) cases involved a face-to-face relationship between the offender and the victim prior to any use of the Internet in committing abuse. N-JOV data indicated that the Internet was involved in eighteen percent (18%) of all sex crimes against minors and that nearly half of the eighteen percent (18%) were committed by acquaintances or family members, with a total of at least 460 arrests a year. This study found ninety-five percent (95%) were non-Hispanic Caucasians and forty-seven percent (47%) were twenty-six (26) or older. Thirty-five percent (35%) were married and over a third lived in small towns. Eighty percent (80%) were employed full time and fifty-one percent (51%) had incomes ranging from $20,000-$50,000 per year.
Identifying Internet Offenders
There is no one type of Internet child pornography user, and there is no easy way to recognize an offender. In the 2005 Wolak survey, solicitors did not match the stereotype of the older male “Internet predator”. Many were identified as other youth and some were female. Having a preconceived idea of a child sex offender can be unhelpful and prove a distraction for investigating police. Those convicted of sexually abusing children will not necessarily seek out or collect pornography, with one study putting the number of offenders who do so at around ten percent (10%).
This explosion of computer use, and the ease with which identities can be concealed on-line, has offered obvious opportunities to those who produce and consume pornography and those who seek to exploit vulnerable populations for sexual gratification. The Internet technology affords perpetrators a foundation for repeated, long-term victimization of a child. These crimes present law enforcement with many complex problems due to the fact that they transcend jurisdictional boundaries and often involve multiple victims in multiple states and countries.
N-JOV data reflected that the most common use of the Internet with family (70%) and acquaintance (65%) offenders was for seduction or grooming of victims either through online conversations or sharing of pornographic images. Forty-nine percent (49%) of family offenders and thirty-nine percent (39%) of acquaintance offenders produced pornographic images of their victims, which they stored or disseminated using the Internet. Forty-three percent (43%) used the Internet to arrange a face-to-face meeting. Relatively small numbers of offenders (2-4%) used the Internet as an inducement to enter the offender’s home and use it to advertise or sell victims online. Seventy-five percent (75%) of these cases involved some form of sexual contact and forty-five percent (45%) involved intercourse or other penetration. In a quarter of these cases, the sexual contact continued for over a year before being reported to the police.
How Sex Offenders Select Victims
A greater number of sex offenders are using the Internet searching for potential child victims through “kid only” or “kid friendly” chat rooms, online games, and instant messenger. The “set-up” for victimization requires long-term thought and planning. But a distinctive aspect of interaction in cyberspace that facilitates the grooming process is the rapid speed with which communication can become intimate. Chat rooms can be frequented by sex offenders that groom and manipulate their victims by playing on the emotional immaturity of children in virtual anonymity. The goal of the “set-up” is to gain control over the victim. The length of time spent during the “set-up” varies upon the vulnerability of the child. The longer an offender knows a child the better they are at “zeroing” in their grooming tactics and strategies.
Grooming is a term used to describe the process of desensitizing and manipulating the victim(s) and/or others for the purpose of gaining an opportunity to commit a sexually deviant act [Title 22, Texas Administrative Code, Chapter 810.2(b)(15)]. Grooming inflicts psychological harm on the child. In teen chat rooms, the activities that precede the process of initiating direct contact with a child may simply involve the offender providing a description of themselves to all of the users of the public chat room so that the offender is masquerading as a particular kind of child, of a particular age, in the hope of attracting an equivalent age and the same or opposite sex child (i.e. 14/m/tx) (O’Connell, 2001). A sex offender may begin victim selection by observation in which an offender may “lurk” in chat rooms or massive multiplayer online games listening to conversations between children. An offender may search public profiles that include information such as name, age, location, hobbies, interests, and photographs. The offender will then wait for a child’s response and determine if they will initiate a conversation. After selecting a victim, the offender will introduce him or herself by instant message (IM) or by a private message to the child. Additionally, victim selection can involve viewing the child’s public profile. A victim’s information may be obtained through an Internet service provider request or a URL a child must provide in order to create their own website.
In the initial stages of grooming, the offender will suggest that the child move from a public domain to a private chat room or IM for an exclusive one-to-one conversation. The offender will engage in conversations related to school, home, hobbies, parental relationships, or interests of the child. The offender will gather information regarding the likelihood of activities being detected. The offender will manipulate the child to create an illusion of being the child’s best friend. The interactions take on the characteristics of a strong sense of mutuality (i.e. a mutual respect club comprised of two people that must ultimately remain a secret from all others). During these interactions, the child is praised, made to feel special, and very positive conversations are tailored to the age of the child. Gifts or money may be offered to the child. Sadly, sex offenders tend to target children who are neglected or come from dysfunctional homes. For these children, the sex offender offers an alternative relationship that makes the child feel special and loved.
The offender introduces the idea of trust, affection, and loyalty but it is based on deception and manipulation. This grooming tactic provides a forum to move into the next stage of victimization. The offender will begin to exploit social norms and test the child’s boundaries. The offender could ask the child “have you been kissed?”, “have you ever been skinny dipping?”, or “do you wear a bikini?” If the child does not respond negatively to the boundary violation, it is tantamount to accepting the behavior or language. During boundary violations, the offender has positioned the child into believing that they share a deep sense of mutual trust.
Offenders who intend to maintain a relationship with a child will progress carefully and methodically into sexually explicit language. The nature of the conversations will progress from mild conversations (i.e. “I love you” or “I want to kiss you”) to extremely explicit (i.e. masturbation or oral sex). The target child may be drawn into producing pornography by sending photos, using a web-cam or engaging in sexual discussions. To silence the child and ensure their continued compliance in sexual exploitation, the offender may use a variety of tactics including rewards, violence, threats, bribery, punishment, coercion, peer pressure, and fear (Klain, 2001). Research indicates that this pattern of conversations is characteristic of an online relationship that may progress to a request for a face-to-face meeting.
Child Pornography Under federal law, child pornography is defined as a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it
- depicts a minor engaging in sexually explicit conduct and is obscene, or
- depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value (18 U.S.C §1466A and 18 U.S.C. §2256)
Sexually explicit conduct includes various forms of sexual activity such as intercourse, bestiality, masturbation, sadistic or masochistic abuse, and lascivious exhibition of the genitals. It is illegal to possess, distribute, or manufacture these images.
Pornography and Child Pornography on the Internet
Both adult and child pornography has saturated the Internet due to the lack of censorship by the industry. The Internet provides the social, individual, and technological circumstances in which an interest in child pornography flourishes. Cyberspace is host to more than one (1) million images of tens of thousands of children subjected to sexual abuse and exploitation. Of the estimated 24.7 million Internet users between the ages of ten (10) and seventeen (17), approximately 8.4 million youths received unwanted exposure to sexual material.
Child pornography is the second highest category, after indecent exposure, of sexual re-offense behavior. The vast majority of children who appear in child pornography have not been abducted or physically forced to participate. In most cases the child knows the producer and it may even be their father who manipulates the child into taking part by more subtle means. Most children feel a pressure to cooperate with the offender and not to disclose the offense, both out of loyalty to the offender and a sense of shame about their own behavior.
Physical contact between a child and a perpetrator does not need to occur for a child to become a victim or for a crime to be committed. Innocent pictures or images of children can be digitally transformed into pornographic material and distributed across the Internet without the victim’s knowledge (U.S. Department of Justice, 2001). Digital graphic software (i.e. Photoshop, Illustrator, Microsoft PhotoEditor) allow offenders to edit “innocent” pictures. After a picture is scanned into a computer, these image-editing programs can be used to put several photos together or to distort pictures and create a believable image of a reality that never existed. This process is called “morphing”. In some countries, morphed images or pictures are not illegal. Offenders may claim in court that a picture is morphed, no matter how disturbing, is not a picture of a real child or a situation which actually took place, and thus is not illegal.
In April 2002, the United States Supreme Court found that provisions of the Child Pornography Act (CPPA), which prohibited the depiction of virtual and simulated child pornography, were invalid under the First Amendment of the U.S. Constitution. The Court found that in the absence of a “real” child, the Court could see no “direct link” between such images and the sexual abuse of children. The Court’s majority could not see a substantial risk of producers of child pornography using virtual images of children. Additionally, children can be exposed to “virtual” pornography. Virtual pornography is legal the United States and in some other countries.
In the 2005 Wolak study, almost all of the arrested child pornography possessors (91%) used home computers to access child pornography and almost one (1) in five (5) arrested (18%) used a home computer in more than one (1) location to access child pornography. Additionally, Wolak found that in fourteen percent (14%) of child pornography investigations, the offenders not only had possessed pornography but had sexually victimized children and two percent (2%) possessed pornography and attempted to sexually victimize children. Eighty-four percent (84%) of the investigations involving child pornography did not detect concurrent child sexual victimization or attempts at victimization (Wolak, 2005). According to the United States Postal Inspection Service, forty percent (40%) of child pornographers investigated have sexually molested children. From January 1997 through March 2004, 1,807 child pornographers were arrested and 620 (34%) of these offenders were confirmed child molesters (Kim, 2004).
Although most Internet pornography is created offline, technology has evolved to create “real” life pornography that can be viewed in real time, using web-cameras, phone cameras, digital cameras, and streaming video. A user can be notified of the date and time to log on the computer to view a child being sexually abused. The advent of mini-cameras has allowed for pictures and videos to be created without the subject’s knowledge. The user may pay money or exchange images with the direct abuser (Palmer, 2004).
These illegal images can be presented in various forms including print media, videotape, film, compact disc, read-only memory (CD-ROM), or digital versatile technology (DVD) (Klain, 2001) and can be transmitted through computer bulletin-board systems (BBS), USENET Newsgroups, Internet Relay Chat, web-based groups, peer-to-peer technology, and an array of constantly changing world wide web sites.
Using Child Pornography to Groom Children
Children can be exposed to pornography through spam or potential abusers. The accessibility of pornography online, the ease and perceived anonymity of transmission, and the environment of “virtuality” itself makes the use of pornography in online grooming easier for an abuser. Pornography is a tool for inducting and socializing a child into behaviors that reflect the content of the pornographic materials. Sex offenders frequently use pornography as a tool to assist them in the grooming process.
Children exploring the Internet for education and entertainment are at risk of encountering sexually explicit material, sexual exploitation, and offenses against children while remaining undetected by parents. Children are extremely vulnerable to victimization due to their curiosity, naiveté, and trusting nature. The Internet has become a conduit for sexually explicit material and offenses against children. In 2006, Wolak reported fifty-four percent (54%) of boys and forty-six percent (46%) of girls received unwanted exposure to sexual material. Ninety percent (90%) of all solicitations happened to teenagers (ages 13 to 17). Eighty-six percent (86%) received images of naked people and fifty-seven percent (57%) received pictures of people having sex and/or violent or deviant images. Lastly, eighty-three percent (83%) of unwanted exposures occurred when youth were surfing the web and eighty-nine percent (89%) of incidents the senders were unable to be identified.
Sex offenders use pornography to escalate the relationship with the child. According to the Klain study, the most common purposes for which offenders use child pornography are:
- Pornography creates a permanent record for sexual arousal and gratification.
- Pornography lowers the child’s inhibitions to engage in sexual behavior.
- Pornography may be used to teach children how to behave, pose, or re-enact scenes.
- Pornography may be used to blackmail child victims by threatening to show the photographs, videos, or other depictions to parents, friends, or teachers. The threat becomes more potent because the child may fear punishment by the criminal justice system.
- Pornography created to sell for profit or trade between individuals. The Internet’s anonymity, enhanced by increasingly sophisticated encryption technology, facilitates the increasing demand for child pornography.
Repeated exposure to adult and child pornography is deliberately used to diminish the child’s inhibitions, break barriers to sexual arousal, desensitize the child that sex is normal, and arouse the victim. Children depicted in pictures are often smiling or have neutral expressions, a factor that appears to be designed to represent the children as willing participants in sexual or degrading acts. There is a recent trend for pictures to be taken in domestic settings such as a kitchen or bedroom, thus further “normalizing” the activity for children who view images.
It has been reported that children under ten (10) who have been exposed to sexually exploitative material have themselves become users of it. Eight percent (8%) of youths admitted to going voluntarily to X-rated sites. Children at most risk of being violated through pornography productions are within the home and family. The child knows their abuser as a parent, a relative, a guardian, or an acquaintance. In these situations, the abuse may be more likely to come to light inadvertently as a result of inquiries by social welfare and reports from neighbors, rather than as a result of police inquiries into online crime.
Reporting Internet Crimes
The impact of online child victimization (i.e. solicitation and harassment) is not completely understood. Family dynamics often play a significant role in children’s denial of a crime and their willingness to participate in the investigation and prosecution. A child’s ability to acknowledge and accept the crime can be linked to family values, peer pressure, and feelings of guilt, shame, and embarrassment. Only three percent (3%) of all incidents of predators harassing children on the Internet is reported. The Crimes against Children Research Center found less than ten percent (10%) of sexual solicitations and only three percent (3%) of unwanted exposure episodes were reported to authorities such as a law-enforcement agency, an Internet service provider, or a hotline. In 2005, only one (1) incident out of more than 500 incidents of sexually explicit material was ever reported to an Internet service provider.
Ninety-five percent (95%) of parents could not identify common chat room lingo that teenagers use to warn people they are chatting with that their parents were watching (NCMEC, 2005). Ninety-two percent (92%) of parents did not know the meaning of A/S/L (Age/Sex/Location) (NCMEC, 2005). Parents should watch for the following questionable abbreviations:
- 53x means “sex”
- 121 means “one to one”
- A/S/L means age, sex, location. Watch for personal information being exchanged (i.e. 14/m/tx). This is a 14 year old male from Texas.
- CYBER used as a verb and means “cybersex”
- CONNECT means “to talk privately”
- DIKU means “do I know you”
- ESAD means “eat sh*t and die”
- F2F, FTF means “face to face” or “let’s meet F2F”
- FOAD means “f*ck off and die”
- GP means “go private”
- H4U means “hot for you”
- H&K means “hugs and kisses”
- ILU means “I love you”
- IWALU means “I will always love you”
- KOC means “kiss on the cheek”
- KOL means “kiss on the lips”
- LTR means “long term relationship”
- LMIRL means “lets meet in real life”
- LUWAMH means “love you with all my heart”
- LU means “love you”
- MOSS means “member of the same sex”
- MOTOS means “member of the opposite sex”
- MUSM means “miss you so much”
- NIFOC means “naked in front of the computer”
- OLL means “online love”
- P2P means “person to person”
- P911 means “my parents are coming”
- PA means “parent alert”
- PAL means “parents are listening”
- PANB means “parents are near by”
- PM means “private message or one on one chat”
- POS means “parent over shoulder”
- pr0n is an alternate spelling for porn or pornography
- PDA means “public display of affection”
- RL, IRL means “in real life as in “wants to see you IRL”
- SWAK means “sealed with a kiss”
- TOY means “thinking of you”
- WIBNI means “wouldn’t it be nice if”
- WTGP means “want to go private”
- WUF means “where are you from”
- WTF means “what the f*ck”
Acronyms and words used in daily IM or discussion boards
- AFAIK means “as far as I know”
- BTW means “by the way”
- CUL means “see you later”
- HHOK means “ha ha only kidding”
- IANAL means “I am not a lawyer”
- IIRC means “if I remember correctly”
- IMHO means “in my humble opinion”
- KEWL means “cool”
- OMG means “oh my god”
- OTOH means “on the other hand”
- WUT^2 “what up with you too”
Characteristics of Youth Who Form Close Online Relationships
- Sixteen percent (16%) of girls and twelve (12%) of boys have close online relationships.
- Girls aged fourteen (14) to seventeen (17) were twice as likely as girls ten (10) to thirteen (13) to form close online relationships.
- High parent-child conflict and being highly troubled were associated with close online relationships. Girls with high levels of parent-child conflict report yelling, nagging, and privileges by parents at higher levels than other girls. The highly troubled girls had levels of depression, victimization, and troubling life events at higher levels than other girls.
- Boys who had low communications with their parents, and who also reported that their parents were less likely to know where and who they were with were the most strongly associated with close online relationships.
- Girls and boys who reported high levels of Internet use and home Internet access were more likely to report close online relationships.
- Youths with problems were most likely to attend a face-to-face meeting with people they first met online.
Warning Signs that a Child may be at Risk
- Excessive use of online services especially during the late night hours
- Unsupervised time in unmonitored chat rooms
- Mood swings and withdraws
- Greater desire to spend time with people online than with “real life” people
- Unexplained files downloaded (i.e. .jpd, .gif, .bmp, .tif, .pcx, .mov, .avi, .wmv, or .mpg)
Defenses to Online Solicitation of a Minor
People are often arrested and charged with online solicitation when they meet the minor in question in person. However, it is important to note that a person can still be charged with this offense even if the meeting never occurs. Despite this, a person may be found innocent of online solicitation if one or both of the following apply:
- He or she is legally married to the minor in question
- He or she is less than three years older than the minor
Solicitation of a minor laws have frequently been challenged by defendants on the basis that they violate a defendant’s right to free speech, but have survived such claims. Viable defenses remaining will depend on a particular state’s laws. Some earlier laws required a defendant to actually communicate with a child and defendants could raise the defense of impossibility where prosecution involved communication with an officer who was merely posing as a child but who was in actuality an adult. In response to the success of the impossibility defense, many state statutes changed their laws to permit a conviction based on a defendant’s belief that they were talking to a minor. Other states have also built in “Romeo and Juliet” defenses for a defendant who is involved in a dating relationship with a child who was not more than three years younger than the defendant.
Although not an outright “defense,” another defensive angle is to prove that the defendant did not know that the person on the other end was a minor. Most states have strict liability laws — which means the state is not required to prove that a defendant knew how old the child was, only that the child was underage. However, some juries have engaged in “jury nullification,” by finding a defendant not guilty if they believed that the defendant did not have a reason to believe the child was underage. Showing that the conversation was just an online fantasy or proving that they never intended to actually meet the minor are generally not good defenses. Before a defendant decides to pursue a defensive theory, they should discuss the practicality of the defense with a criminal attorney in their area.
Solicitation of a Minor: Misdemeanor or Felony?
Online solicitation of a minor is usually classified as a felony level offense. As with most felonies, the range of punishment can include a deferred or suspended sentence, up to several years in prison. A defendant in Texas can receive anywhere from two to twenty years in prison. Although a deferred sentence can allow a defendant to remain free, the restrictions of probation tend to be more intense for online solicitation charges because they are considered sexually related offenses. The court can order a defendant to submit to maintenance polygraphs, complete individual or group sex offender counseling, to submit to a sex offender evaluation, and to refrain from being around any children while on probation. The court can also require a defendant to pay for these programs which can run up to $500.00 or more per month.
The long-term consequences can be even more severe. Because online solicitation of a minor is considered a sexually related offense, a defendant can be required to register as a sex offender. If a defendant fails to register, they can be charged with a new felony offense of failure to register as a sex offender. Once a defendant has a sexually related offense on their record, some states will significantly increase the punishment for a second offense if a defendant is ever charged with another sexually related offense. Beyond the court system, online solicitation will also affect employment opportunities. With more open access to the court systems, more employers are performing background checks and will not hire certain candidates. Applicants with sexually related offenses are generally the first to get cut.
When you have been charged with a severe legal offense, it is very important to understand your rights and defense options. An experienced San Antonio Criminal Lawyer can help you decide what steps you need to take next. The attorneys of the Charles Johnson Law Firm are aggressive child sex crime defense lawyers who will make every effort to fight the allegations against you. Contact San Antonio Online Solicitation Lawyer Charles Johnson directly for a free consultation today at 210-431-3337 anytime, night or day if you have been falsely accused of soliciting a minor online.
Arrested For Online Solicitation of a Minor? The Right San Antonio Criminal Lawyer Can Make a Difference
by Charles Johnson
News Stories Related to Online Solicitation of a Minor Arrests in San Antonio:
Man arrested for allegedly trying to lure girl into his car
29-year old Rio Molina is facing a charge of criminal solicitation of a minor ... to Edgewood ISD and San Antonio ISD police along with SAPD. The victim came forward when she recognized Molina's photo when he was arrested for attempted kidnapping last ...
KENS 5 - Apr 23 2015
Assistant Fire Chief Charged In Online Solicitation Case
Bryan Fire Department battalion chief Nicholas Pappas, 47, who helped rescue victims of Hurricane Katrina in September, was free on bond Wednesday after he was arrested in San Antonio and charged with online solicitation of a minor. The arrest came as the ...
KWTX - Nov 08 2005
Schertz man charged with online solicitation of minor
SAN ANTONIO - A Schertz man is facing a charge of online solicitation of a minor. San Antonio police arrested Christopher Hintz, 45, Wednesday afternoon, but records show he was released on bond later that night. According to jail booking records ...
KSAT - Jul 05 2012
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Increasingly, child pornography laws are being used to punish the use of computer technology and the Internet to obtain, share and distribute pornographic material involving minors under the age of 18, including films and images. Courts have held that such material my be banned even if it is not legally obscene and does not involve nudity.
Child pornography is a crime that one can commit or be charged with committing even without one’s knowledge. The mere presence of pornographic images on a computer, even if it was downloaded without your knowledge, can implicate you in these crimes.
San Antonio Lawyer Charles Johnson aggressively defends clients charged with a sexual offense. He handles all sexual offense charges, whether in state or federal court, and whether the sex crime allegations are against children or adults.
Parties in contentious divorce or custody proceedings have been known to encourage children to say the other parent “touched” them a certain way or otherwise imply molestation. Child care workers, pastors, teachers, coaches, and others are frequently falsely accused. Parents have even been known to target individuals for extortion by coaching children. They may be coached by well-meaning social service and health care professionals, law enforcement officers, and prosecuting attorneys who want to make sure they obtain a conviction regardless of the truth.
Allegations of sex crimes are taken very seriously in Texas, and across the nation. With more stringent penalties being imposed, a false claim unchallenged or a single error in judgment can require you to be a lifelong member of the sex offenders’ registry and database. Before your reputation is devastated, invoke your right to an attorney and your right to remain silent. Contact San Antonio Criminal Lawyer Charles Johnson for a free phone consultation when you are under investigation for sex crimes or if charges have been brought against you for anything from possession and distribution of child pornography to sexual assault and rape.
How is Child Pornography Defined?
Federal and state laws make it a crime to produce, possess, distribute, or sell pornographic materials that exploit or portray a minor. Increasingly, child pornography laws are being utilized to punish use of computer technology and the Internet to obtain, share, and distribute pornographic material involving children, including images and films.
Under federal law (18 U.S.C. §2256), child pornography is defined as 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
- the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct; or
- the 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
- the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.Federal law (18 U.S.C. §1466A) also criminalizes knowingly producing, distributing, receiving, or possessing with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture or painting, that
- depicts a minor engaging in sexually explicit conduct and is obscene, or
- depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and such depiction lacks serious literary, artistic, political, or scientific value.
Sexually explicit conduct is defined under federal law (18 U.S.C. §2256) as actual or simulated sexual intercourse (including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex), bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.
Who Is a Minor?
For purposes of enforcing the federal law (18 U.S.C. §2256), “minor” is defined as a person under the age of 18.
Is Child Pornography a Crime?
Yes, it is a federal crime to knowingly possess, manufacture, distribute, or access with intent to view child pornography (18 U.S.C. §2252). In addition, all 50 states and the District of Columbia have laws criminalizing the possession, manufacture, and distribution of child pornography. As a result, a person who violates these laws may face federal and/or state charges.
Where Is Child Pornography Predominantly Found?
Child pornography exists in multiple formats including print media, videotape, film, CD-ROM, or DVD. It is transmitted on various platforms within the Internet including newsgroups, Internet Relay Chat (chatrooms), Instant Message, File Transfer Protocol, e-mail, websites, and peer-to-peer technology.
What Motivates People Who Possess Child Pornography?
Limited research about the motivations of people who possess child pornography suggests that child pornography possessors are a diverse group, including people who are
- sexually interested in prepubescent children or young adolescents, who use child pornography for sexual fantasy and gratification
- sexually “indiscriminate,” meaning they are constantly looking for new and different sexual stimuli
- sexually curious, downloading a few images to satisfy that curiosity
- interested in profiting financially by selling images or setting up web sites requiring payment for access
Who Possesses Child Pornography?
It is difficult to describe a “typical” child pornography possessor because there is not just one type of person who commits this crime.
In a study of 1,713 people arrested for the possession of child pornography in a 1-year period, the possessors ran the gamut in terms of income, education level, marital status, and age. Virtually all of those who were arrested were men, 91% were white, and most were unmarried at the time of their crime, either because they had never married (41%) or because they were separated, divorced, or widowed (21%).3
Forty percent (40%) of those arrested were “dual offenders,” who sexually victimized children and possessed child pornography, with both crimes discovered in the same investigation. An additional 15% were dual offenders who attempted to sexually victimize children by soliciting undercover investigators who posed online as minors.4
Who Produces Child Pornography?
Based on information provided by law enforcement to the National Center for Missing & Exploited Children’s Child Victim Identification Program, more than half of the child victims were abused by someone who had legitimate access to them such as parents, other relatives, neighborhood/family friends, babysitters, and coaches.
What is the Nature of These Images?
The content in these illegal images varies from exposure of genitalia to graphic sexual abuse, such as penetration by objects, anal penetration, and bestiality.
Of the child pornography victims identified by law enforcement, 42% appear to be pubescent, 52% appear to be prepubescent, and 6% appear to be infants or toddlers.
Possible Punishment for Sexual Exploitation of a Minor/Child Pornography
If the photographs include children who are fourteen (14) years of age or younger, it is a Dangerous Crimes Against Children (DCAC) and carries a very severe penalty. A first offense carries the following punishment for each and every conviction: ten (10) years minimum in prison; seventeen (17) years presumptive in prison; twenty-four (24) years maximum incarceration.
If convicted of one previous predicate felony (which includes a prior DCAC, among other serious felonies), the range of punishment increases to a minimum twenty-one (21) years, presumptive twenty-eight years (28), and maximum thirty-five (35) years. Because this is a DCAC, 100% of the prison time must be served before being eligible for release. In addition, if the person is convicted of two (2) counts, they must be run consecutive to each other (i.e., the minimum is now twenty (20) years in prison, and all other ranges double). This is why these charges are sometimes referred to as “life enders”.
The maximum penalty on a Sexual Exploitation charge actually carries more time than the maximum penalty on a Second Degree Murder charge. A conviction will require you to register as a Sex Offender for the rest of your life, and you are not allowed to have any contact with anyone under the age of eighteen (18) (this includes your own children), without going through numerous testing procedures and only with the consent of your Probation Officer.
If the child was ages fifteen – seventeen (15-17), it is not sentenced pursuant to the DCAC statute. A first offense class two (2) felony, carries punishment of probation with zero (0) days in jail up to one (1) year in jail, or prison of three (3) years to twelve and one half (12.5) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the “prison only” range is four and one half (4.5) years to twenty-three and one quarter (23.25) years in prison. If the person has two (2) allegeable historical prior convictions, then the “prison only” range is ten and one half (10.5) to thirty-five (35) years of incarceration.
Possible Defenses for Sexual Exploitation of a Minor/Child Pornography
The critical defenses to Child Porn charges involve showing that the person did not “knowingly” possess, receive, or do any of the listed actions with the images. One way of asserting this defense is by presenting evidence that the defendant was not the person who accessed the images. If it can be shown that there were multiple users who had access to the computer, and who did in fact use the computer often, then it is much more difficult for the State to prove the defendant actually accessed the images, rather than some other person. This defense is especially appropriate when the defendant lacks any other sexual crime convictions. In order to assert this defense, we need to present a variety of our own evidence to contradict whatever has been presented by the prosecution. Typically, the State would normally have executed a search warrant and confiscated the computer involved, then searched for the “IP address” and passwords that were used to trace the activates to a particular time, date, and user. Before they do any of this they will have “cloned” the hard drive in order to avoid any accusations that they have somehow tampered with the computer by adding images.
Another typical defense is that the defendant inadvertently came across the images on his computer, and thus it was not a “knowing” exchange. It is an affirmative defense to Child Pornography charges if a person timely reports that they have received unsolicited images on their computer. Usually, reporting within three (3) days of discovering the child pornography is considered to be “timely reporting.”
At the Charles Johnson Law Firm, we handle a very high percentage of “Sex Crimes” cases. We have one of the largest libraries with research materials devoted to challenging accusations involving sex crimes. Registering as Sex Offender has drastic consequences and leaves a black mark on your record; do not underestimate the potential severity of this charge.
Additionally, because our law firm fights conviction from all angles, we would assert a wide range of defenses and challenges to constitutional violations that apply in all criminal cases. The possibilities are numerous and diverse. One of those we frequently assert is a “Miranda rights violation.” In Texas, the standard of whether any incriminating statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements.
In addition, the “denial of right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their attorney, but is denied and questioning continues. Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what else you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; computer analysis/cloning hard drive procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defense tactics is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled lawyer to defend you who has knowledge of all the possible defenses to assert in your case.
Do Not Make Statements. Obviously, the best defense begins before a defendant is ever charged. Often, in a misguided attempt to help law enforcement, defendants make statements that are twisted and turned into prosecutorial evidence. It is important to remember not to allow yourself be interviewed government agencies without an attorney present.
Any interview will be sent to the police and the county attorney’s office and can be used against you. An obvious corollary is do not let yourself be interviewed again by the police without your attorney present.
Computerized Evidence. Internet child pornography is a growing offense across the nation. Often files can be downloaded to a computer without the user knowing the content of the download. In such cases the electronic file will often include tell tale electronic evidence about the file, where it came from and its date of download. Using this evidence or challenging law enforcement’s sloppy investigation and acquisition of potentially exculpatory information is the best way for a defense lawyer to prove actual innocence.
Examine Prosecution Expert’s Background. An important part of every case is the ability to counter the reports and testimony of computer professionals, caseworkers and “experts” who examine pornographic evidence. To effectively counter a prosecution expert, the defense attorney must be well educated on the expert’s education, work history, published works and testimony in prior cases.
Use a Polygraph. When it is advantageous to the defense against a sexual assault, defense attorneys should obtain a credible polygraph examination from a respected professionals.
Texas Sex Offender Registration
In addition to the prison terms and fines one can face when convicted of any of these offenses, you may be required to register as a sex offender. This means you will be tracked for the rest of your life.
Knowing where to turn when facing charges as dark as these can be difficult. You have likely already seen people turn their backs on you because of the charges and you haven’t even gone to trial. You need someone in your corner fighting for your good name.
You are innocent until proven guilty. With my help we will see to it that you get the best possible results on your day in court.
San Antonio Child Pornography Defense Lawyer: The Charles Johnson Law Firm
Attorney Charles Johnson defends against sexual assault allegations throughout Texas, no matter how small or large the city. He has developed a unique understanding of the dynamics of these very serious cases. His competent, aggressive and thorough representation has made him a leading criminal defense attorney in dealing with sex and pornography related criminal charges.
Defending in these areas is a very specialized area of criminal defense. Unfortunately, the very accusations themselves are often treated as conclusive proof of criminal activity. If San Antonio Lawyer Charles Johnson is retained at an early stage in the investigation, he is sometimes able to avoid charges altogether. At a minimum he is often able to avoid the trauma and embarrassment of his client being arrested at home or at the workplace by contacting law enforcement and the court in order to make the necessary arrangements.
Depending on the facts of your case and the evidence against you, San Antonio Child Pornography Lawyer Charles Johnson will work to help you beat a false accusation or try to lessen the punishment. We understand your freedom is at stake and that a conviction of possession of child pornography may result in lifetime registration as a sex offender. To protect your rights and liberty, we conduct thorough investigations to prepare for trial or to minimize the consequences or sentence.
San Antonio Criminal Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 210-431-3337 or toll free at 877-308-0100.
Major Credit Cards Accepted.
News Related to Child Pornography Arrests in San Antonio:
Convicted sex offender arrested for sexual abuse again
SAN ANTONIO - A convicted sex offender is in trouble once again. Scotty Tribble, 48, was arrested by the Bexar County Sheriff's Deputies for indecency with a child on Friday. BCSO was informed by the grandmother of the 13-year-old female victim ...
Fox San Antonio - Apr 26 2015
Man arrested for promotion of child pornography
A San Antonio, Texas, resident was recently arrested for transmitting child pornography while communicating with undercover investigators in Conroe, Texas. On Sept. 15, 2014, Nicolas Garcia Gutierrez, of San Antonio, Texas, was arrested for Promotion of ...
Your Houston News - Sep 21 2014
Man arrested at airport for child porn
A man flying into San Francisco International Airport from Tokyo Tuesday was detained by U.S. Customs agents on a tip he may be possessing child pornography. Agents found 18 images on his iPad and he was arrested immediately. Michael Clemans, a U.S ...
San Mateo Daily Journal - Apr 29 2015
Man arrested for child porn in San Antonio
LINDALE — A man who has falsely claimed he was an elite Navy Seal and a veteran of the Vietnam War, and who last year clashed with police over his arrest for animal cruelty, has been arrested on much more serious charges by U.S. marshals — three felony ...
Tyler Morning Telegraph - Oct 23 2014
If you are charged with conspiracy to commit an offense in Federal Court, your rights and your future are in jeopardy. Choosing the right criminal defense attorney to defend your case and protect your rights is critical. If you have been charged with conspiracy, or if you have reason to believe you are under investigation by law enforcement agents, the sooner you hire a criminal defense lawyer, the better positioned you will be. San Antonio Criminal Lawyer Charles Johnson provides a strong defense to conspiracy charges at both the state and federal level.
Conspiracy is one of the most often used crimes in the arsenal of the United State’s Attorneys Office.
This all encompassing charge has the ability to touch almost every Federal Crime. Common conspiracy charges include:
- Conspiracy to deal in illegal narcotics,
- Conspiracy to possess with intent to distribute Cocaine, Crack Cocaine, Marijuana, or Methamphetamine.
- Conspiracy to commit Mail Fraud, Wire Fraud, Health Care Fraud, and Tax Fraud and other White Collar Crimes
It is important to speak to an experienced federal criminal defense attorney as soon as possible if you are being investigated or have been arrested for any federal offense. Why?
- Federal authorities tend to spend a lot of time and money investigating a suspect before they make an arrest.
- They frequently have tape of your telephone conversations with an informant. Both can present significant challenges for the defense.
- Conviction for a federal offense can have extremely serious consequences, including long periods of incarceration and huge fines.
Time Is Not on Your Side
Don’t delay. The earlier you retain legal counsel, the more options we will be able to pursue. For example, we may be able to negotiate with the prosecutor to get the charges dismissed or reduced before a grand jury convenes to issue an indictment. San Antonio Federal Criminal Lawyer Charles Johnson may be able to intervene on your behalf even before an arrest is made. If you believe you are the target of an investigation by any federal authority, please contact our office immediately.
Effective Defense Against Federal and Conspiracy Charges
In order to prove conspiracy, the government must prove each of the following elements beyond a reasonable doubt:
- An agreement between at least two parties to achieve an illegal goal
- That the defendant became a member of the conspiracy knowing at least one of its goals and intending to accomplish it
- At least one conspirator committed an act to further the conspiracy.
As you can see, you can be charged with conspiracy even if you did nothing to actually commit a crime. The “crime” itself does not even have to be completed. In many cases, individuals with a limited role, or no role whatsoever in a criminal scheme, are charged with conspiracy. Suddenly even someone with a minor role in a broader conspiracy may be facing extreme consequences if convicted.
The Charles Johnson Law Firm will fight every aspect of these charges. We will hold the government to its burden of proof and will find any potential evidentiary or Constitutional violations in your case. You can contact Attorney Johnson anytime day or night and talk with him directly about your case. He can be reached at (210) 431-3337 around the clock.
Federal Conspiracy: Summary
Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and some of the former Enron executives have at least one thing in common: they all have federal conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to engage in some form of prohibited misconduct. The crime is complete upon agreement, although some statutes require prosecutors to show that at least one of the conspirators has taken some concrete step or committed some overt act in furtherance of the scheme. There are dozens of federal conspiracy statutes. One, 18 U. S. C. 371, outlaws conspiracy to commit some other federal crime. The others outlaw conspiracy to engage in various specific forms of proscribed conduct. General Section 371 conspiracies are punishable by imprisonment for not more than five years; drug trafficking, terrorist, and racketeering conspiracies all carry the same penalties as their underlying substantive offenses, and thus are punished more severely than are Section 371 conspiracies. All are subject to fines of not more than $250,000 (not more than $500,000 for organizations), most may serve as the basis for a restitution order, and some for a forfeiture order.
The law makes several exceptions for conspiracy because of its unusual nature. Because many united in crime pose a greater danger than the isolated offender, conspirators may be punished for the conspiracy, any completed substantive offense which is the object of the plot, and any foreseeable other offenses which one of the conspirators commits in furtherance of the scheme. Since conspiracy is an omnipresent crime, it may be prosecuted wherever an overt act is committed in its furtherance. Because conspiracy is a continuing crime, its statute of limitations does not begin to run until the last overt act committed for its benefit. Since conspiracy is a separate crime, it may be prosecuted following conviction for the underlying substantive offense, without offending constitutional double jeopardy principles; because conspiracy is a continuing offense, it may be punished when it straddles enactment of the prohibiting statute, without offending constitutional ex post facto principles. Accused conspirators are likely to be tried together, and the statements of one may often be admitted in evidence against all.
In some respects, conspiracy is similar to attempt, to solicitation, and to aiding and abetting. Unlike aiding and abetting, however, it does not require commission of the underlying offense. Unlike attempt and solicitation, conspiracy does not merge with the substantive offense; a conspirator may be punished for both.
Terrorists, drug traffickers, mafia members, and corrupt corporate executives have one thing in common: most are conspirators subject to federal prosecution. Federal conspiracy laws rest on the belief that criminal schemes are equally or more reprehensible than are the substantive offenses to which they are devoted. The Supreme Court has explained that a “collective criminal agreement – a partnership in crime – presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality.” Moreover, observed the Court, “group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked.” Finally, “combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed.” In sum, “the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.” Congress and the courts have fashioned federal conspiracy law accordingly.
The United States Code contains dozens of criminal conspiracy statutes. One, 18 U. S. C. 371, outlaws conspiracy to commit any other federal crime. The others outlaw conspiracy to commit some specific form of misconduct, ranging from civil rights violations to drug trafficking. Conspiracy is a separate offense under most of these statutes, regardless of whether conspiracy accomplishes its objective. The various conspiracy statutes, however, differ in several other respects. A few, including Section 371, require at least one conspirator to take some affirmative step in furtherance of the scheme. Most have no such overt act requirement.
Section 371 has two prongs. One outlaws conspiracy to commit a federal offense; a second, conspiracy to defraud the United States. Conspiracy to commit a federal crime under Section 371 requires that the underlying misconduct be a federal crime. Conspiracy to defraud the United States under Section 371 and in several other instances has no such prerequisite. Section 371 conspiracies are punishable by imprisonment for not more than five years. Elsewhere, conspirators often face more severe penalties.
These differences aside, federal conspiracy statutes share much common ground because Congress decided they should. As the Court observed in Salinas, “When Congress uses well-settled terminology of criminal law, its words are presumed to have their ordinary meaning and definition. When the relevant statutory phrase is ‘to conspire,’ we presume Congress intended to use the term in its conventional sense, and certain well-established principles follow.”
These principles include the fact that regardless of its statutory setting, every conspiracy has at least two elements: (1) an agreement (2) between two or more persons. Members of the conspiracy are also liable for the foreseeable crimes of their fellows committed in furtherance of the common plot. Moreover, statements by one conspirator are admissible evidence against all. Conspiracies are considered continuing offenses for purposes of the statute of limitations and venue. They are also considered separate offenses for purposes of sentencing and of challenges under the Constitution’s ex post facto and double jeopardy clauses. This is a brief discussion of the common features of federal conspiracy law that evolved over the years, with passing references to some of the distinctive features of some of the statutory provisions.
Although it is not without common law antecedents, federal conspiracy law is largely of our own making. It is what Congress provided, and what the courts understood Congress intended. This is not to say that conspiracy was unknown in pre-colonial and colonial England, but simply that it was a faint shadow of the crime we now know. Then, it was essentially a narrow form of malicious prosecution, subject to both a civil remedy and prosecution. In the late 18 and early 19 centuries, state courts and legislatures recognized a rapidly expanding accumulation of narrowly described wrongs as ” conspiracy.” The patchwork reached a point where one commentator explained that there were “few things left so doubtful in the criminal law, as the point at which a combination of several persons in a common object becomes illegal.”
Congress, however, enacted few conspiracy statutes prior to the Civil War. It did pass a provision in 1790 that outlawed confining the master of a ship or endeavoring revolt on board. This, Justice Story, sitting as a circuit judge, interpreted to include any conspiracy to confine the prerogatives of the master of ship to navigate, maintain, or police his ship. The same year, 1825, Congress outlawed conspiracies to engage in maritime insurance fraud. Otherwise, there were no federal conspiracy statutes until well after the mid-century mark.
During the War Between the States, however, Congress enacted four sweeping conspiracy provisions, creating federal crimes that have come down to us with little substantive change. The first, perhaps thought more pressing at the beginning of the war, was a seditious conspiracy statute. Shortly thereafter, Congress outlawed conspiracies to defraud the United States through the submission of false claim, and followed that four years later with a prohibition on conspiracies to violate federal law or to defraud the United States.
Subsequent conspiracy statutes, though perhaps no less significant, were more topically focused. The Reconstruction civil rights conspiracy provisions, the Sherman Act anti-trust provisions,and the drug and racketeering statutesmay be the best known of these. All of them begin the same way — with an agreement by two or more persons.
Two or More Persons
There are no one-man conspiracies. At common law where husband and wife were considered one, this meant that the two could not be guilty of conspiracy without the participation of some third person. This is no longer the case. In like manner at common law, corporations could not be charged with a crime. This too is no longer the case. A corporation is criminally liable for the crimes, including conspiracy, committed at least in part for its benefit, by its employees and agents. Moreover, a corporation may be criminally liable for intra-corporate conspiracies, as long as at least two of its officers, employees, or agents are parties to the plot. Notwithstanding the two-party requirement, no co-conspirator need have been tried or even identified, as long as the government produces evidence from which the conspiracy might be inferred. Even the acquittal of a co-conspirator is no defense. In fact, a person may conspire for the commission of a crime by a third person though he himself is legally incapable of committing the underlying offense.
On the other hand, two people may not always be enough. The so-called Wharton’s Rule placed a limitation on conspiracy prosecutions when the number of conspirators equaled the number of individuals necessary for the commission of the underlying offense. Under federal law, the rule “stands as an exception to the general principle that a conspiracy and the substantive offense that is its immediate end do not merge upon proof of the latter.” And under federal law, the rule reaches no further than to the types of offenses that birth its recognition — dueling, adultery, bigamy, and incest.
It is not enough, however, to show that the defendant agreed only with an undercover officer to commit the underlying offense, for there is no agreement on a common purpose in such cases. As has been said, the essence of conspiracy is an agreement, an agreement to commit some act condemned by law either as a separate federal offense or for purposes of the conspiracy statute. The agreement may be evidenced by word or action; that is, the government may prove the existence of the agreement either by direct evidence or by circumstantial evidence from which the agreement may be inferred. “Relevant circumstantial evidence may include: the joint appearance of defendants at transactions and negotiations in furtherance of the conspiracy; the relationship among codefendants; mutual representation of defendants to third parties; and other evidence suggesting unity of purpose or common design and understanding among conspirators to accomplish the objects of the conspiracy.”
The lower federal appellate courts have acknowledged that evidence of a mere buyer-seller relationship is insufficient to support a drug trafficking conspiracy charge. Some do so under the rationale that there is no singularity of purpose, no necessary agreement, in such cases: “the buyer’s purpose is to buy; the seller’s purpose is to sell.” Others do so to avoid sweeping mere customers into a large-scale trafficking operation. Still others do so lest traffickers and their addicted customers face the same severe penalties. All agree, however, that purchasers may be liable as conspirators when they are part of a large scheme.
Again, in most cases the essence of conspiracy is agreement. “Nevertheless, mere association, standing alone, is inadequate; an individual does not become a member of a conspiracy merely associating with conspirators known to be involved in crime.”
One or Many Overlapping Conspiracies
The task of sifting agreement from mere association becomes more difficult and more important with the suggestion of overlapping conspiracies. Criminal enterprises may involve one or many conspiracies. Some time ago, the Supreme Court noted that “thieves who dispose of their loot to a single receiver – a single ‘fence’ – do not by that fact alone become confederates: They may, but it takes more than knowledge that he is a ‘fence’ to make them such.” Whether it is a fence, or a drug dealer, or a money launderer, when several seemingly independent criminal groups share a common point of contact, the question becomes whether they present one overarching conspiracy or several separate conspiracies with a coincidental overlap. In the analogy suggested by the Court, when separate spokes meet at the common hub they can only function as a wheel if the spokes and hub are enclosed within a rim. When several criminal enterprises overlap, they are one overarching conspiracy or several overlapping conspiracies depending upon whether they share a single unifying purpose and understanding—one common agreement.
In determining whether they are faced with a single conspiracy or a rimless collection of overlapping schemes, the courts will look for “the existence of a common purpose . . . (2) interdependence of various elements of the overall play; and (3) overlap among the participants.” “Interdependence is present if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged co-conspirators or facilitated the venture as a whole.”
If this common agreement exists, it is of no consequence that a particular conspirator joined the plot after its inception as long as he joined it knowingly and voluntarily. Nor does it matter that a defendant does not know all of the details of a scheme or all of its participants, or that his role is relatively minor.
Conviction under 18 U. S. C. 371 for conspiracy to commit a substantive offense requires proof that one of the conspirators committed an overt act in furtherance of the conspiracy. In the case of prosecution under other federal conspiracy statutes that have no such requirement, the existence of an overt act may be important for evidentiary and procedural reasons. The overt act need not be the substantive crime which is the object of the conspiracy, an element of that offense, nor even a crime in its own right. Moreover, a single overt act by any of the conspirators in furtherance of plot will suffice.
Conspiracy to Defraud the United States
Federal law contains several statutes that outlaw defrauding the United States. Two of the most commonly prosecuted are 18 U. S. C. 286, which outlaws conspiracy to defraud the United States through the submission of a false claim, and 18 U. S. C. 371, which in addition to conspiracies to violate federal law, outlaws conspiracies to defraud the United States of property or by obstructing the performance of its agencies. Section 371 has an overt act requirement; section 286 does not. The general principles of federal conspiracy law apply to both.
The elements of conspiracy to defraud the United States under 18 U. S. C. 371 are (1) an agreement of two or more persons; (2) to defraud the United States; and (3) an overt act in furtherance of the conspiracy committed by one of the conspirators. The “fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of the Government” by “deceit, craft or trickery, or at least by means that are dishonest.” The plot must be directed against the United States or entity; a scheme to defraud the recipient of federal funds is not sufficient. The scheme may be designed to deprive the United States of money or property, but it need not be so; a plot calculated to frustrate the functions of an entity of the United States will suffice.
In contrast, a second federal statute, 18 U. S. C. 286, condemns conspiracies to defraud the United States of money or property through submission of a false claim. The elements of a section 286 violation are that “the defendant entered into a conspiracy to obtain payment or allowance of a claim against a department or agency of the United States; (2) the claim was false, fictitious, or fraudulent; (3) the defendant knew or was deliberately ignorant of the claim’s falsity, fictitiousness, or fraudulence; (4) the defendant knew of the conspiracy and intended to join it; and (5) the defendant voluntarily participated in the conspiracy.” Conviction does not require proof of an overt act in furtherance of the conspiracy.
When Does It End
Conspiracy is a crime which begins with a scheme and may continue on until its objective is achieved or abandoned. The liability of individual conspirators continues on from the time they joined the plot until it ends or until they withdraw. The want of an individual’s continued active participation is no defense as long as the underlying conspiracy lives and he has not withdrawn. An individual who claims to have withdrawn bears the burden of establishing either that he took some action to make his departure clear to his co-conspirators or that he disclosed the scheme to the authorities. As a general rule, overt acts of concealment do not extend the life of the conspiracy beyond the date of the accomplishment of its main objectives. On the other hand, the rule does not apply when concealment is one of the main objectives of the conspiracy.
Imprisonment and Fines
Section 371 felony conspiracies are punishable by imprisonment for not more than five years and a fine of not more than $250,000 (not more than $500,000 for organizations). Most drug trafficking, terrorism, racketeering, and many white collar conspirators face the same penalties as those who committed the underlying substantive offense, e. g. , 21 U. S. C. 846 ( “Any person who . . . conspires to commit any offense defined in the Controlled Substances Act shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the . . . conspiracy” ); 18 U. S. C. 2339B ( “Whoever knowingly provides material support or resources to a foreign terrorist organization . . . . or conspires to do so, shall be fined under this title, or imprisoned not more than 15 years, or both” ); 18 U. S. C. 1962(d), 1963(a)( “(d) It shall be unlawful for any person to conspire to violate any of the racketeering provisions of subsection (a), (b), or (c) of this section. . . . (a) Whoever violates any provision of section 1962 . . . shall be fined under this title, or imprisoned for not more than 20 years. . . or both ” ); 18 U. S. C. 1349 ( ” Any person who . . . conspires to commit any offense under this chapter relating to mail fraud, wire fraud, etc. shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of . . . the conspiracy” ).
The United States Sentencing Guidelines greatly influence the sentences for federal crimes. Federal courts are bound to impose a sentence within the statutory maximums and minimums. Their decision of what sentence to impose within those boundaries, however, must begin with a determination of the sentencing recommendation under the guidelines. Reasonableness standards govern review of their sentencing decisions,and a sentence within the Sentencing Guideline range is presumed reasonable.
The Sentencing Guidelines system is essentially a scoring system. Federal crimes are each assigned a numerical base offense level and levels are added and subtracted to account for the various aggravating and mitigating factors in a particular case. Thus, for example, providing material support to a terrorist organization, 18 U. S. C. 2339B, has a base offense level of 26, which may be increased by 2 levels if the support comes in the form of explosives, U. S. S. G. §2M5. 3(a), (b) and may be increased or decreased still further for other factors. The guidelines designate six sentencing ranges of each total offense level; the appropriate range within the six is determined by extent of the offender’s criminal record. For instance, the sentencing range for a first-time offender with a total offense level of 28 would be imprisonment for between 78 and 97 months (Category I); while the range for an offender in the highest criminal history category (Category VI) would be imprisonment for between 140 and 175 months.
The base offense level for conspiracy is generally the same as that for the underlying offense, either by operation of an individual guideline, for example, U. S. C. §2D1. 1 (drug trafficking), or by operation of the general conspiracy guideline, U. S. S. C. §2X1. 1. In any event, conspirators who play a leadership role in an enterprise are subject to an increase of from 2 to 4 levels,
U. S. S. G. §3B1. 1, and those who play a more subservient role may be entitled to reduction of from 2 to 4 levels, U. S. S. G. §3B1. 2. In the case of terrorism offenses, conspirators may also be subject to a special enhancement which sets the minimum total offense level at 32 and the criminal history category at VI (regardless of the extent of the offender’s criminal record), U. S. S. G. §3A1. 4.
The Sentencing Guidelines also address the imposition of fines below the statutory maximum. The total offense level dictates the recommended fine range for individual and organizational defendants. For instance, the fine range for an individual with a total offense level of 28 is $12,500 to $125,000, U. S. C. §5E1. 2. The recommended fine range for an organization with a total offense level of 28 is $6,300,000 (assuming the loss or gain associated with the organization offense exceeds the usual $500,000 ceiling), U. S. S. G. §8C2. 4.
A conspirator’s liability for restitution is a matter of circumstance. Most conspiracy statutes do not expressly provide for restitution, but in most instances restitution may be required or permitted under any number of grounds. As a general rule, federal law requires restitution for certain offenses and permits it for others. A sentencing court is generally required to order a defendant to make restitution following conviction for a crime of violence or for a crime against property (including fraud), 18 U. S. C. 366A(a), (c). Those entitled to restitution under Section 3663A include those ” directly and proximately harmed ” by the crime of conviction and “in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy or pattern,” 18 U. S. C. 3663A(b).
Otherwise, a court is permitted to order restitution (a) following conviction for an offense prescribed under title 18 of the United States Code or for drug trafficking, 18 U. S. C. 3663; (b) as a condition of probation or supervised release, 18 U. S. C. 3563(b)(2), 3583(d); or (c) pursuant to a plea agreement, 18 U. S. C. 3663(a)(3), 3663A(c)(2).
The treatment of forfeiture in conspiracy cases is perhaps even more individualistic than restitution in conspiracy cases. The general criminal forfeiture statute, 18 U. S. C. 982, authorizes confiscation for several classes of property as a consequence of a particular conspiracy conviction, for example, 18 U. S. C. 982(a)(2)(calling for the confiscation of proceeds realized from “a violation of, or a conspiracy to – (A) section . . . 1341, 1343, 1344 of this title relating to mail, wire and bank fraud, affecting a financial institution” ); 18 U. S. C. 982(a)(8)(calling for the confiscation of proceeds from, and property used to facilitate or promote, “an offense under section . . . 1341, or 1343, or of a conspiracy to commit such an offense, if the offense involves telemarketing” ).
In the case of drug trafficking, forfeiture turns on the fact that it is authorized for any Controlled Substance Act violation, 21 U. S. C. 853, of which conspiracy is one, 21 U. S. C. 846. The same can be said of racketeering conspiracy provisions of 18 U. S. C. 1962(d).
Relation of Conspiracy to Other Crimes
Conspiracy is a completed crime upon agreement, or upon agreement and the commission of an overt act under statutes with an overt act requirement. Conviction does not require commission of the crime that is the object of the conspiracy. On the other hand, conspirators may be prosecuted for conspiracy, for any completed offense which is the object of the conspiracy, as well as for any foreseeable offense committed in furtherance of the conspiracy.
Aid and Abet
Anyone who “aids, abets, counsels, commands, induces, or procures” the commission of a federal crime by another is punishable as a principal, that is, as though he had committed the offense himself, 18 U. S. C. 2. If the other agrees and an overt act is committed, they are conspirators, each liable for conspiracy and any criminal act committed to accomplish it. If the other commits the offense, they are equally punishable for the basic offense. “Typically, the same evidence will support both a conspiracy and an aiding and abetting conviction.” The two are clearly distinct, however, as the Ninth Circuit has noted:
The difference between the classic common law elements of aiding and abetting and a criminal conspiracy underscores this material distinction, although at first blush the two appear similar. Aiding and abetting the commission of a specific crime, we have held, includes four elements: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent to commit the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that the principal committed the underlying offense. As Lopez emphasized, the accused generally must associate himself with the venture . . . participate in it as something he wishes to bring about, and sought by his action to make it succeed.
By contrast, a classic criminal conspiracy as charged in 18 U. S. C. § 371 is broader. The government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. Indeed, a drug conspiracy does not even require commission of an overt act in furtherance of the conspiracy.
Two distinctions become readily apparent after a more careful comparison. First, the substantive offense which may be the object in a § 371 conspiracy need not be completed. Second, the emphasis in a § 371 conspiracy is on whether one or more overt acts was undertaken. This language necessarily is couched in passive voice for it matters only that a co-conspirator commit the overt act, not necessarily that the accused herself does so. In an aiding and abetting case, not only must the underlying substantive offense actually be completed by someone, but the accused must take some action, a substantial step, toward associating herself with the criminal venture. United States v. Hernandez-Orellana, 539 F. 3d 994, 1006-1007 (9th Cir. 2008).
Conspiracy and attempt are both inchoate offenses, unfinished crimes in a sense. They are forms of introductory misconduct that the law condemns lest they result in some completed form of misconduct. Federal law has no general attempt statute. Congress, however, has outlawed attempt to commit a number of specific federal offenses. Like conspiracy, a conviction for attempt does not require the commission of the underlying offense. Both require an intent to commit the contemplated substantive offense. Like conspiracy, the fact that it may be impossible to commit the target offense is no defense to a charge of attempt to commit it. Unlike conspiracy, attempt can be committed by a single individual. Attempt only becomes a crime when it closely approaches a substantive offense. Conspiracy becomes a crime far sooner. Mere acts of preparation will satisfy the most demanding conspiracy statute, not so with attempt. Conspiracy requires no more than an overt act in furtherance; attempt, a substantial step to completion. Moreover, unlike a conspirator, an accused may not be convicted of both attempt and the underlying substantive offense.
An individual may be guilty of both conspiring with others to commit an offense and of attempting to commit the same offense, either himself or through his confederates. In some circumstances, he may be guilty of attempted conspiracy. Congress has outlawed at least one example of an attempt to conspire in the statute which prohibits certain invitations to conspire, that is, solicitation to commit a federal crime of violence, 18 U. S. C. 373.
Section 373 prohibits efforts to induce another to commit a crime of violence “under circumstances strongly corroborative” of intent to see the crime committed, 18 U. S. C. 373(a). Section 373′s crimes of violence are federal “felonies that have as an element the use, attempted use, or threatened use of physical force against property or against the person of another,” id. Examples of “strongly corroborative” circumstances include “the defendant offering or promising payment or another benefit in exchange for committing the offense; threatening harm or other detriment for refusing to commit the offense; repeatedly soliciting or discussing at length in soliciting the commission of the offense, or making explicit that the solicitation is serious; believing or knowing that the persons solicited had previously committed similar offenses; and acquiring weapons, tools, or information or use in committing the offense, or making other apparent preparations for its commission.” As is the case of attempt, “an individual cannot be guilty of both the solicitation of a crime and the substantive crime.” Although the crime of solicitation is complete upon communication with the requisite intent, renunciation prior to commission of the substantive offense is a defense. The offender’s legal incapacity to commit the solicited offense himself, however, is not a defense.
Statute of Limitations
The statute of limitations for most federal crimes is five years, 18 U. S. C. 3282. The five-year limitation applies to the general conspiracy statute, 18 U. S. C. 371, and to the false claims conspiracy statute, 18 U. S. C. 286. Section 371 requires proof of an overt act; section 286 does not. For conspiracy offenses with an overt act requirement like those under Section 371, the statute of limitations begins with completion of the last overt act in furtherance of the conspiracy. For conspiracy offenses with no such requirement like those under section 286, the statute of limitations begins with the abandonment of the conspiracy or the accomplishment of its objectives.
The presence or absence of an overt act requirement makes a difference for statute of limitations purposes. For venue purposes, it apparently does not. The Supreme Court has observed in passing that “this Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense.” The lower federal appellate courts are seemingly of the same view, for they have found venue proper for a conspiracy prosecution wherever an overt act occurs — under overt act statutes and non-overt act statutes alike.
Joinder and Severance (One Conspiracy, One Trial)
Three rules of the Federal Rules of Criminal Procedure govern joinder and severance for federal criminal trials. Rule 8 permits the joinder of common criminal charges and defendants. Rule 12 insists that a motion for severance be filed prior to trial. Rule 14 authorizes the court to grant severance for separate trials as a remedy for prejudicial joinder.
The Supreme Court has pointed out that “there is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system. They promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” In conspiracy cases, a ” conspiracy charge combined with substantive counts arising out of that conspiracy is a proper basis for joinder under Rule 8(b).” Moreover, “the preference in a conspiracy trial is that persons charged together should be tried together.” In fact, “it will be the rare case, if ever, where a district court should sever the trial of alleged co-conspirators.” The Supreme Court has reminded the lower courts that “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” The Court noted that the risk may be more substantial in complex cases with multiple defendants, but that “less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.” Subsequently lower federal appellate court opinions have emphasized the curative effect of appropriate jury instructions.
Double Jeopardy and Ex Post Facto
Because conspiracy is a continuing offense, it stands as an exception to the usual ex post facto principles. Because it is a separate crime, it also stands as an exception to the usual double jeopardy principles.
The ex post facto clauses of the Constitution forbid the application of criminal laws which punish conduct that was innocent when it was committed or punishes more severely criminal conduct than when it was committed. Increasing the penalty for an ongoing conspiracy, however, does not offend ex post facto constraints as long as the conspiracy straddles the date of the legislative penalty enhancement.
The double jeopardy clause of the Fifth Amendment declares that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This prohibition condemns successive prosecutions, successive punishments, and successive use of charges rejected in acquittal.
For successive prosecution or punishment, the critical factor is the presence or absence of the same offense. Offenses may overlap, but they are not the same crime as long as each requires proof of an element that the other does not. 130 Since conspiracy and its attendant substantive offense are ordinarily separate crimes — one alone requiring agreement and the other alone requiring completion of the substantive offense — the double jeopardy clause poses no impediment to successive prosecution or to successive punishment of the two.
Double jeopardy issues arise most often in a conspiracy context when a case presents the question of whether the activities of the accused conspirators constitute a single conspiracy or several overlapping conspiracies. Multiple conspiracies may be prosecuted sequentially and punished with multiple sanctions; single conspiracies must be tried and punished once. Asked to determine whether they are faced with one or more than one conspiracy, the courts have said they inquire whether:
- the locus criminis place of the two alleged conspiracies is the same;
- there is a significant degree of temporal overlap between the two conspiracies charged;
- there is an overlap of personnel between the two conspiracies (including unindicted as well as indicted co-conspirators);
- the over acts charged are related;
- the role played by the defendant relates to both;
- there was a common goal among the conspirators;
- whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators; and
- the extent to which the participants overlapped in their various dealings.
At trial, the law favors the testimony of live witnesses — under oath, subject to cross examination, and in the presence of the accused and the jury — over the presentation of their evidence in writing or through the mouths of others. The hearsay rule is a product of this preference. Exceptions and definitions narrow the rule’s reach. For example, hearsay is usually defined to include only those out-of-court statements which are offered in evidence “to prove the truth of the matter asserted.”
Although often referred to as the exception for co-conspirator declarations, the Federal Rules of Evidence treats the matter within its definition of hearsay. Thus, Rule 801(d)(2)(E) of the Federal Rules provides that an out-of-court “statement is not hearsay if . . . (2) The statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”
To admit a co-conspirator declaration into evidence under the Rule, a “court must find: (1) the conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the co-conspirator made the proffered statements in furtherance of the conspiracy.” The court, however, may receive the statement preliminarily subject to the prosecution’s subsequent demonstration of its admissibility by a preponderance of the evidence. As to the first two elements, a coconspirator’s statement without more is insufficient; there must be ” some extrinsic evidence sufficient to delineate the conspiracy and corroborate the declarant’s and the defendant’s roles in it.” As to the third element, “a statement is in furtherance of a conspiracy if it is intended to promote the objectives of the conspiracy.” A statement is in furtherance, for instance, if it describes for the benefit of a co-conspirator the status of the scheme, its participants, or its methods. Bragging, or “mere idle chatter or casual conversation about past events, “however, are not considered statements in furtherance of a conspiracy.
Under some circumstances, evidence admissible under the hearsay rule may nevertheless be inadmissible because of Sixth Amendment restrictions. The Sixth Amendment provides, among other things, that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The provision was inspired in part by reactions to the trial of Sir Walter Raleigh, who argued in vain that he should be allowed to confront the alleged co-conspirator who had accused him of treason. Given its broadest possible construction, the confrontation clause would eliminate any hearsay exceptions or limitations. The Supreme Court in Crawford v. Washington explained, however, that the clause has a more precise reach. The clause uses the word “witnesses” to bring within its scope only those who testify or whose accusations are made in a testimonial context. In a testimonial context, the confrontation clause permits use at trial of prior testimonial accusations only if the witness is unavailable and only if the accused had the opportunity to cross examine him when the testimony was taken. The Court elected to “leave for another day any effort to spell out a comprehensive definition of ‘testimonial,’” but has suggested that the term includes “affidavits, depositions, prior testimony, or confessions ,and other statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Since Crawford, the lower federal courts have generally held that the confrontation clause poses no obstacle to the admissibility of the co-conspirator statements at issue in the cases before them, either because the statements were not testimonial; were not offered to establish the truth of the asserted statement; or because the clause does not bar co-conspirator declarations generally.
Obtain the Best Defense Against Federal Conspiracy Charges
Many people charged with federal drug conspiracies are concerned with predicting the outcome of their cases. They often wonder about the likelihood of a conviction and the length of a potential sentence. The truth is that, if you are charged with a drug conspiracy, your case can be very serious and complicated. A lot may depend on the drug quantity, the testimony of witnesses and on cooperation with the prosecution. Federal Criminal Lawyer Charles Johnson can help you navigate the legal system so that you can make decisions based on in-depth understanding of the consequences you may face.
In federal drug conspiracy cases, a lot has to do with the strength of the evidence. Experienced Attorney Charles Johnson skilled at helping clients evaluate whether to take a case to trial or whether to find other ways to resolve the issue more favorably. At the Charles Johnson Law Firm, we place a large emphasis on honesty with our clients. Although it is often more difficult to be realistic with clients than to promise miracles, we know that our clients and their families deserve the truth about the seriousness of federal drug conspiracy charges.
They also deserve the skilled legal representation we provide. Whether you are charged with criminal conspiracy, a continuing criminal enterprise or with a violation the Racketeer Influenced and Corrupt Organizations Act (commonly called RICO), we will use our knowledge and experience to strive for the best results possible.
Contact San Antonio Lawyer Charles Johnson anytime night or day at (210) 431-3337 to speak with him directly. Our law firm is dedicated to helping clients face drug conspiracy charges with confidence and dignity.
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The Charles Johnson Law Firm is one of the foremost criminal defense law firms in San Antonio in defending people from drug convictions, including the possession and sale of marijuana. Our unique strategy gives our clients the best opportunity to avoid criminal penalties, and our criminal defense law firm’s familiarity with drug laws, both felonies and misdemeanors, is unrivaled. We provide each client a high-quality legal defense that is superior. San Antonio Criminal Lawyer Charles Johnson can defend against any criminal drug charge in both federal and state courts, and our firm’s track record of success continues to grow.
Hire the Best San Antonio Drug Crimes Defense Lawyer: The Charles Johnson Law Firm
Criminal Marijuana Penalties
Marijuana possession and sale charges can be either misdemeanors or felonies, but both carry serious penalties. Jail time, heavy fines, probation, mandatory rehab programs and more are all possible penalties for drug charges. Attorney Johnson’s finely tuned defense techniques have evolved from years of experience, and he brings that knowledge and experience to those facing marijuana-related criminal charges.
Of all the marijuana laws in Texas, possession of marijuana may be the most unfair. It punishes otherwise responsible citizens merely for keeping some pot for personal use and who have no intention of ever doing anything hurtful with it or profiting from it. Nonetheless, it is an offense to possess, distribute or cultivate marijuana in Texas. Depending on the quantity, possession of marijuana can be charged as a misdemeanor of felony in both state and federal court.
The prosecution may argue that you’re “in possession” of marijuana in San Antonio, TX, if you’re found smoking marijuana or if you knowingly “exercised control” over the marijuana. Therefore, the location of the marijuana is very important:
- If the marijuana is found on your person, in your car, in or around your home, in a storage unit belonging to you, or in any other place that you have some authority over, the prosecution will argue that you were in possession of the marijuana since you had some control over the location.
- Furthermore, if marijuana is found in your system during a drug test or you were caught driving under the influence of marijuana in Texas, the prosecution may try to use that to prove you’ve been in possession of marijuana since you presumably “exercise control” over your body.
Marijuana Possession Penalties in Texas
- Two ounces or less include a fine up to $2,000, up to 180 days in jail or both
- More than two ounces, but less than four ounces. Penalties include a fine of up to $4,000, up to one year in jail, or both.
- Four ounces or more, up to and including five pounds. Penalties include a fine of up to $10,000, between 180 days and two years in prison, or both.
- More than five pounds, up to and including 50 pounds. Penalties include a fine of up to $10,000, between two and ten years in prison, or both.
- More than 50 pounds, up to and including 2,000 pounds. Penalties include a fine of up to $10,000, between two and 20 years in prison, or both.
- More than 2,000 pounds. Penalties include a fine of up to $50,000, between five and 99 years in prison, or both.
Sale of Marijuana
Various states have different marijuana laws, and Texas is no different. Texas treats marijuana sales as a much more serious crime than possession, which is reflected in the penalties. The sale of any amount of marijuana can lead to prison time, even for small amounts.
Sale of Marijuana Penalties in Texas
- 1/4 oz – 5 lbs: 6 months – 2 years, $10,000 fine
- 5 lbs – 50 lbs: 2 – 20 years, $10,000 fine
- 50 lbs – 1 ton: 5 – 99 years, $10,000 fine
- 1 ton or more: Mandatory minimum of 10 – 99 years, with a $100,000 fine
These are for either the sale OR delivery, meaning it is irrelevant whether or not you are actually paid or just just giving it to someone. On top of that, if the delivery or sale is to a minor (in ANY amount), that is punishable by an additional 2 – 20 years in prison. Also, sale within 1,000 feet of a school or within 300 feet of a youth center, public pool or video arcade increases the penalty classification to the next highest level (which in some cases is a difference of many years).
The San Antonio Lawyer Charles Johnson understands the unique nature of Texas marijuana laws, and can provide a skilled defense. His unparalleled knowledge of state and federal drug laws gives him a unique ability to provide excellent legal services for you and your loved ones. If you are in need of criminal defense legal representation in the San Antonio area, contact Attorney Johnson anytime day or night at 210-431-3337 to discuss your situation.
What Is Marijuana?
Cannabis sativa: There are two species of Cannabis. One species is Cannabis sativa, originally cultivated to make hemp. The stalks of the plant contain fibers that are woven to make rope, cloth, and paper. The other species is Cannabis indica, known for its psychoactive properties. Hashish is derived from Cannabis indica. In Africa, cannabis is know as “dagga,” in China as “ma,” and in India as “ganga” or “bhang”. Marijuana is the Mexican colloquial name for Cannabis sativa. Marijuana is a greenish-gray mixture of dried, shredded leaves, stems, seeds, and flowers of the hemp plant.
THC is the main psychoactive ingredient in marijuana. THC or delta-9-tetrahydrocannabinol is found in the plant’s resin. The amount of THC determines the potency of the marijuana. The resin is mostly concentrated in the flowers of the plant. Because of various cultivation techniques the amount of THC varies considerably in the flowers of individual plants.
Other Chemicals: Marijuana is a complex drug and is made up of 420 chemical components. Sixty-one of these chemicals are called cannabinoids and are unique to marijuana. Many scientific studies focus on the primary psychoactive chemical, THC but don’t know how these other cannabinoids affect the various organs, brain, and behavior.
Grades of Marijuana
- Low-grade marijuana is made from leaves of both sexes of the plant.
- Medium-grade marijuana is made of the flowering tops of female plants fertilized by male plants.
- High-grade marijuana is made of the flowering tops of female plants raised in isolation to male plants. This marijuana is called sinsemilla because it does not produce a seed.
- Hashish is produced when resin is collected from the Cannabis indica plant. The THC-rich resin is dried and then compressed into a variety of forms, such as balls, cakes, or cookie-like sheets. Pieces are then broken off, placed in pipes, and smoked or rolled into a cigarette along with tobacco or low-grade marijuana. The Middle East, North Africa, Pakistan, and Afghanistan are the main sources of hashish. THC content of hashish can vary from 8% to 20%.
What are the Physical Effects of Marijuana usage?
When marijuana is smoked, the affects are felt in minutes. The high usually peaks within a couple of hours. Marijuana affects users differently. The “high” can include a feeling of relaxation, improved sense perception, and emotional well-being. Music and visual images may seem more vibrant and intense. Time seems to slow down. Some people experience physical hunger and a range of emotion from laughter to introspection. Marijuana does not always produce pleasant feelings and may cause paranoia and hallucinations. Emergency room visits have increased because some people feel anxious or fearful after smoking high-grade marijuana. Whether the marijuana is smoked or eaten, THC can remain in the body for days. About half the THC is in the blood 20 hours after smoking. Although the initial high has disappeared, physical and mental functions may be affected for days.
The physical effects of marijuana depend on many individual factors such as personal health, the time of day that marijuana is used, the problems it causes, and how well a person is able to control his or her use. Research studies have shown that one of the primary concerns for those who use marijuana is cardiovascular damage. Marijuana causes damage to lungs that is similar to that caused by cigarettes. For people who inhale deeply or hold the smoke in their lungs longer, the risk can be greater. One study that compared cigarette and marijuana smokers found that marijuana smokers absorbed five times the amount of carbon monoxide, and had five times the tar in their lungs, as compared to cigarette smokers. For those who smoke both marijuana and cigarettes, the damage can be exponentially greater than that caused by marijuana or cigarettes alone.
Research shows that people who use marijuana more than one time during the day tend to have more social and physical problems than those who only use in the evenings. Those who use at multiple times may also be more likely to be smoking to avoid problems they feel unable to confront. A person who uses marijuana in addition to alcohol or other drugs can be at additional risk. The effects of some drugs become exponentially greater when taken together. In addition, the physical tolerance that one drug produces can sometimes affect another drug, and lead to dependence on multiple substances.
Is Marijuana Addictive?
While marijuana is not in the same addictive league as cocaine, heroin, and even alcohol, recent studies raise the possibility that THC affects the level of dopamine in the brain. Dopamine is a chemical in the brain that affects the pleasure circuits. Many addictive drugs cause the release of dopamine from the neurons. One report by the National Institute of Drug Abuse states that long-term marijuana use can lead to addiction for some people. This report concludes that along with craving, withdrawal symptoms can make it hard for long-term marijuana smokers to stop using the drug. People trying to quit report irritability, difficulty sleeping, and anxiety.
Texas does not prosecute possession of drugs only. In fact, Texas will prosecute a person for possession of drug paraphernalia. Thus, it is a separate criminal charge classified as a Class C Misdemeanor and typically carries a penalty of $500. Normally, if one is charged with a possession of controlled substance, then a possession of drug paraphernalia will be charged against the person, as well.
Under federal law the term drug paraphernalia means “any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.”
Drug paraphernalia is any legitimate equipment, product, or material that is modified for making, using, or concealing illegal drugs such as cocaine, heroin, marijuana, and methamphetamine. Drug paraphernalia generally falls into two categories:
User-specific products are marketed to drug users to assist them in taking or concealing illegal drugs. These products include certain pipes, smoking masks, bongs, cocaine freebase kits, marijuana grow kits, roach clips, and items such as hollowed out cosmetic cases or fake pagers used to conceal illegal drugs.
Dealer-specific products are used by drug traffickers for preparing illegal drugs for distribution at the street level. Items such as scales, vials, and baggies fall into this category. Drug paraphernalia does not include any items traditionally used with tobacco, like pipes and rolling papers.
With the rise of the drug culture in the United States in the 1960s and 1970s, the country began to see the appearance of “head shops,” which were stores that sold a wide range of drug paraphernalia. While some of the paraphernalia was crude and home-made, much was being commercially manufactured to cater to a fast-growing market. Enterprising individuals even sold items openly in the street, until anti-paraphernalia laws in the 1980s eventually ended such blatant sales. Today, law enforcement faces another challenge. With the advent of the Internet, criminals have greatly expanded their illicit sales to a worldwide market for drug paraphernalia. For example, in a recent law enforcement effort, Operation Pipedreams, the 18 companies targeted accounted for more than a quarter of a billion dollars in retail drug paraphernalia sales annually. Typically, such illicit businesses operate retail stores as well as websites posing as retailers of legitimate tobacco accessories when in reality the products are intended for the illegal drug trade.
Identifying drug paraphernalia can be challenging because products often are marketed as though they were designed for legitimate purposes. Marijuana pipes and bongs, for example, frequently carry a misleading disclaimer indicating that they are intended to be used only with tobacco products. Recognizing drug paraphernalia often involves considering other factors such as the manner in which items are displayed for sale, descriptive materials or instructions accompanying the items, and the type of business selling the items.
The Charles Johnson Law Firm is experienced in marijuana-related matters involving:
Contact the Best San Antonio Marijuana Possession Lawyer: The Charles Johnson Law Firm
Before someone can be convicted of marijuana possession in San Antonio, the state must prove that the accused actually had possession or took action to control the drug. Drug possession cases are complicated and depend the police’s adherence to strict guidelines concerning search and seizure of the drug.
As you could be facing fines, probation, drug classes, community service, and jail, it is crucial that you speak with an experienced San Antonio criminal attorney if you have been accused of this crime. Our team at the Charles Johnson Law Firm is well-equipped to handle any type of drug crime, including those involving possession of marijuana and/or drug paraphernalia. We understand that mistakes can happen and not everyone who has been accused of a crime is guilty. No matter how serious you may believe your case to be, contact The San Antonio Lawyer Charles Johnson directly by calling 210-431-3337 anytime, day or night to discuss your case.
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Family Violence is a difficulty that affects each and every community, city, country and nation. Family Violence covers a broad spectrum of violence between couples, spouses, members of the family or some other individuals who live together. Family Violence allegations are very severe. Should you are found guilty, you could encounter prison time and other criminal penalties. A conviction will not only destroy your reputation, but your future as well. You could be refused future job opportunities, housing, academic loans and worse, access to your home and children. At the Charles Johnson Law Firm, we see our clients falsely accused of Family Violence on a regular basis. Whether you are innocent or guilty, San Antonio Criminal Attorney Charles Johnson will fight aggressively on your behalf in order to help protect your legal rights and your future. Speak to us Twenty-four Hours A Day, 365 Days /year for a free of charge consultation.
All too frequently the news bombards us with news about a high-profile Family Violence case, wherein a man or woman is suspected of murdering their loved one, with or without a prior history of domestic abuse.
Violence. How can a person turn from loving and living with someone to beating them up or murdering them? What kind of a person resorts to Family Violence against their spouse or domestic intimate partner? What kind of person thinks it is okay to continually humiliate or talk down to their life intimate partner? What kind of a person has sex with their partner without the person’s consent and desire to participate?
A commonplace pattern of domestic abuse is that the perpetrator alternates between violent, abusive behavior and apologetic behavior with apparently heartfelt promises to change. The abuser may possibly be quite pleasant the majority of of the time. Therein lies the perpetual appeal of the abusing partner and why many individuals can’t seem to leave the abusive relationship.
Domestic abuse is most often one of the following:
- child abuse
- abuse of a spouse or domestic intimate partner
- elder abuse
In this article, we explore domestic abuse between spouses and intimate partners: the types of domestic abuse, signs and symptoms, causes, and effects. Domestic Violence and abuse are commonplace. The initial step in ending the misery is recognition that the situation is abusive.
How is domestic abuse between intimate partners defined??
Domestic abuse between spouses or intimate partners is when one individual in a marital or intimate relationship tries to control the other person. The perpetrator uses fear and intimidation and may perhaps threaten to use or may perhaps actually use physical violence. Domestic abuse that includes physical violence is named Domestic Violence.
The victim of domestic abuse or Domestic Violence may be a man or a woman. Domestic abuse occurs in traditional heterosexual marriages, as well as in same-sex partnerships. The abuse may perhaps occur during a relationship, when the couple is breaking up, or after the relationship is over.
Domestic abuse often escalates from threats and verbal abuse to physical violence. Domestic Violence may possibly even end up in murder.
The key elements of domestic abuse are:
- humiliating the other individual
- physical injury
Domestic abuse isn’t a result of losing control; domestic abuse is purposely trying to control another individual. The abuser is purposefully using verbal, nonverbal, or physical means to obtain control over the other individual.
In some cultures, control over women by men is accepted as the norm. This article speaks from the orientation that control over intimate partners is domestic abuse within a culture where such control is not the norm. Nowadays we see many cultures moving from the subordination of women to increased equality of women within relationships.
What are the sorts of domestic abuse?
The types of domestic abuse are:
- physical abuse (domestic violence)
- verbal or nonverbal abuse (psychological abuse, mental abuse, emotional abuse)
- sexual abuse
- stalking or cyberstalking
- economic abuse or financial abuse
- spiritual abuse
The divisions between these kinds of domestic abuse are somewhat fluid, but there is a strong differentiation between the many forms of physical abuse and the various types of verbal or nonverbal abuse.
What is physical abuse of a spouse or intimate partner?
Physical abuse is the use of physical force against another individual in a way that ends up injuring the person, or puts the person at risk of being harmed. Physical abuse ranges from physical restraint to murder. When someone talks of Domestic Violence, they are often referring to physical abuse of a spouse or intimate partner.
Physical assault or physical battering is defined as a criminal offense, whether or not it takes place inside a family or beyond the family. The police are empowered to protect you from physical attack.
Physical abuse involves:
- pushing, throwing, kicking
- slapping, grabbing, hitting, punching, beating, tripping, battering, bruising, choking, shaking
- pinching, biting
- holding, restraining, confinement
- breaking bones
- assault with a weapon that include a knife or gun
What is emotional abuse or verbal abuse of a spouse or intimate partner?
Mental, psychological, or emotional abuse could be verbal or nonverbal. Verbal or nonverbal abuse of a spouse or intimate partner consists of more subtle actions or behaviors than physical abuse. While physical abuse may seem worse, the scars of verbal and emotional abuse are deep. Studies demonstrate that verbal or nonverbal abuse may be much more emotionally detrimental than physical abuse.
Verbal or nonverbal abuse of a spouse or intimate partner may perhaps include:
- threatening or intimidating to gain compliance
- destruction of the victim’s personal property and assets and possessions, or threats to do so
- violence to an object (such as a wall or piece of furniture) or pet, in the presence of the intended victim, as a way of instilling fear of additional violence
- yelling or screaming
- constant harassment
- embarrassing, making fun of, or mocking the victim, either on your own within the household, in public, or in front of family or friends
- criticizing or diminishing the victim’s accomplishments or goals
- not trusting the victim’s decision-making
- telling the victim that they are worthless on their own, without the abuser
- excessive possessiveness, isolation from friends and family
- excessive checking-up on the victim to make sure they are at home or where they said they would be
- saying hurtful things when under the influence of illegal drugs or alcohol, and using the substance as an excuse to say the hurtful things
- blaming the victim for how the abuser acts or feels
- making the victim remain on the premises following a fight, or leaving them somewhere else subsequent to a fight, just to “teach them a lesson”
- making the victim feel that there is no way out of the relationship
What is sexual abuse or sexual exploitation of a spouse or intimate partner?
Sexual abuse includes:
- sexual assault: forcing another person to participate in unwanted, unsafe, or degrading sexual activity
- sexual harassment: ridiculing another individual to try to limit their sexuality or reproductive choices
- sexual exploitation (including forcing another person to look at pornography, or forcing someone to participate in pornographic film-making)
Sexual abuse quite often is linked to physical abuse; they can occur together, or the sexual abuse may very well occur following a bout of physical abuse.
What is stalking?
Stalking is harassment of or threatening another person, especially in a way that haunts the individual physically or emotionally in a repetitive and devious manner. Stalking of an intimate partner can take place during the relationship, with intense monitoring of the partner’s activities. Or stalking can take place after a partner or spouse has left the relationship. The stalker may perhaps be trying to get their partner back, or they can wish to harm their partner as punishment for their departure. Irrespective of the fine details, the victim fears for their safety.
Stalking can take place at or near the victim’s home, near or in their workplace, on the way to the store or another destination, or on the Internet (cyberstalking). Stalking may be on the phone, in person, or on the internet. Stalkers may never show their face, or they may be everywhere, in individual.
Stalkers employ a number of threatening strategies:
- repeated phone calls, sometimes with hang-ups
- following, tracking (possibly even with a global positioning device)
- finding the person via public records, online searching, or paid investigators
- watching with hidden cameras
- suddenly showing up where the victim is, at home, school, or work
- sending emails; communicating in chat rooms or with instant messaging (cyberstalking: see below)
- sending unwanted packages, cards, gifts, or letters
- monitoring the victim’s phone calls or computer-use
- contacting the victim’s close friends, family, co-workers, or neighbors to find out about the victim
- going via the victim’s garbage
- threatening to injure the victim or their family, friends, or pets
- damaging the victim’s home, car, or some other property
Stalking is unpredictable and should always be considered dangerous. If someone is
- tracking you,
- contacting you when you do not wish to have speak to,
- attempting to control you, or
- frightening you,
then seek guidance asap.
What is cyberstalking?
Cyberstalking is the use of telecommunication technologies that include the Internet or email to stalk another person. Cyberstalking may very well be an additional form of stalking, or it may perhaps be the sole method the abuser employs. Cyberstalking is deliberate, persistent, and personal.
Spamming with unsolicited email is different from cyberstalking. Spam doesn’t focus on the individual, as does cyberstalking. The cyberstalker methodically finds and contacts the victim. Much like spam of a sexual nature, a cyberstalker’s message may be disturbing and inappropriate. Also like spam, you can’t stop the contact with a request. In fact, the more you protest or respond, the more rewarded the cyberstalker feels. The best response to cyberstalking is not to respond to the contact.
Cyberstalking falls in a grey area of law enforcement. Enforcement of most state and federal stalking laws requires that the victim be directly threatened with an act of violence. Very few law enforcement agencies can act if the threat is only implied.
Regardless of whether or not you can get stalking laws enforced against cyberstalking, you need to treat cyberstalking very seriously and protect yourself. Cyberstalking in some cases advances to real stalking and to physical violence.
How likely is it that stalking will turn into violence?
Stalking can end in violence regardless of whether or not the stalker threatens violence. And stalking can turn into violence even if the stalker has no history of violence.
Women stalkers are just as likely to become violent as are male stalkers.
Those around the stalking victim are also in danger of being injured. As an illustration, a parent, spouse, or bodyguard who makes the stalking victim unattainable could very well be injured or killed as the stalker pursues the stalking victim.
What is economic or financial abuse of a spouse or domestic partner?
Economic or financial abuse includes:
- withholding economic resources including money or credit cards
- stealing from or defrauding a partner of cash or assets
- exploiting the intimate partner’s resources for personal gain
- withholding physical resources including food, clothes, necessary medications, or shelter from a partner
- preventing the spouse or intimate partner from working or choosing an occupation
What is spiritual abuse of a spouse or intimate partner?
Spiritual abuse involves:
- using the spouse’s or intimate partner’s religious or spiritual beliefs to manipulate them
- preventing the partner from practicing their religious or spiritual beliefs
- ridiculing the other person’s religious or spiritual beliefs
- forcing the children to be reared in a faith that the partner has not agreed to
How do I know if I am in an abusive relationship? What are the signs and symptoms of an abusive relationship?
The more of the following questions that you answer Yes to, the more likely you are in an abusive relationship. Examine your answers and obtain assistance in the event you find that you respond positively to a large number of the questions.
Your inner feelings and dialogue: Fear, self-loathing, numbness, desperation
- Are you fearful of your partner a large percentage of the time?
- Do you stay away from certain topics or spend a lot of time figuring out how to discuss certain topics so that you do not arouse your partner’s negative reaction or anger?
- Do you ever feel that you can’t do anything right for your partner?
- Do you ever feel so badly about yourself that you think you deserve to be physically injured?
- Have you lost the love and respect that you once had for your partner?
- Do you in some cases wonder if you are the one who is crazy, that maybe you are overreacting to your partner’s behaviors?
- Do you in some instances fantasize about ways to kill your partner to get them out of your life?
- Are you afraid that your partner may possibly try to kill you?
- Are you afraid that your partner will attempt to take your children away from you?
- Do you feel that there is nowhere to turn for guidance?
- Are you feeling emotionally numb?
- Were you abused as a child, or did you grow up with Family Violence in the household? Does domestic violence seem normal to you?
Your partner’s lack of control over their own behavior
- Does your partner have very low self-esteem? Do they appear to feel powerless, ineffective, or inadequate within the world, although they are outwardly successful?
- Does your partner externalize the causes of their own behavior? Do they blame their violence on stress, alcohol, or a “bad day”?
- Is your partner unpredictable?
- Is your partner a pleasant individual between bouts of violence?
Your partner’s violent or threatening behavior
- Does your partner have a bad temper?
- Has your partner ever threatened to hurt you or kill you?
- Has your partner ever physically injure you?
- Has your partner threatened to take your children away from you, particularly if you try to leave the relationship?
- Has your partner ever threatened to commit suicide, especially as a way of keeping you from leaving?
- Has your partner ever forced you to have sex when you didn’t want to?
- Has your partner threatened you at work, either in individual or on the phone?
- Is your partner cruel to animals?
- Does your partner destroy your belongings or household objects?
Your partner’s controlling behavior
- Does your partner try to keep you from seeing your pals or family?
- Are you embarrassed to invite close friends or family over to your house simply because of your partner’s behavior?
- Has your partner limited your access to money, the telephone, or the car?
- Does your partner try to stop you from going where you want to go outside of the house, or from doing what you want to do?
- Is your partner jealous and possessive, asking where you are going and where you have been, as if checking up on you? Do they accuse you of having an affair?
Your partner’s diminishment of you
- Does your partner verbally abuse you?
- Does your partner humiliate or criticize you in front of others?
- Does your partner often ignore you or put down your opinions or contributions?
- Does your partner always insist that they are right, even when they are clearly wrong?
- Does your partner blame you for their own violent behavior, saying that your behavior or attitudes cause them to be violent?
- Is your partner quite often outwardly angry with you?
- Does your partner objectify and disrespect those of your gender? Does your partner see you as property or a sex object, rather than as a person?
In my workplace, what are the warning signs that an individual is a victim of Family Violence?
Domestic Violence quite often plays out in the workplace. For example, a husband, wife, girlfriend, or boyfriend might make threatening phone calls to their intimate partner or ex-partner. Or the worker could very well show injuries from physical abuse at home.
Should you witness a cluster of the following warning signs in the workplace, you can reasonably suspect domestic abuse:
- Bruises and various other signs of impact on the skin, with the excuse of “accidents”
- Depression, crying
- Frequent and sudden absences
- Frequent lateness
- Frequent, harassing phone calls to the person while they are at work
- Fear of the partner, references to the partner’s anger
- Decreased productivity and attentiveness
- Isolation from pals and family
- Insufficient resources to live (money, credit cards, car)
If you do recognize signs of domestic abuse in a co-worker, get in touch with your Human Resources department. The Human Resources staff should be able to assist the victim without the need of your additional involvement.
Who abuses their spouse or intimate partner?
Domestic abuse knows no age or ethnic boundaries.
Domestic abuse can occur during a relationship or after a relationship has ended.
The majority of psychological, medical, and legal experts agree that the vast majority of physical abusers are men. On the other hand , women can also be the perpetrators of Family Violence.
Nearly all stalkers are also men stalking women. But stalkers can also be women stalking men, men stalking men, or women stalking women.
San Antonio Domestic Violence Defense Lawyer: The Charles Johnson Law Firm
As the justice system has come to acknowledge the social and legal effects of domestic violence, the penalties for conviction of domestic assault have become steeper. This is why it is so important to consult a lawyer who is familiar with your local court system. Seek the guidance of an skilled attorney from the Charles Johnson Law Firm in San Antonio, Texas to learn more about what you can do to assert and protect your rights.
San Antonio Criminal Attorney Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 210-431-3337 or toll free at 877-308-0100.
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Disorderly conduct is among the most common offenses within the United States, and is frequently the result of unreasonable police officers giving somebody a hard time until they lose their cool.
Disorderly conduct generally includes most kinds of unruly or disturbing behaviors, which acts to provoke a disturbance.
Disorderly conduct laws exist in every state, and are often used as a “catch-all” charge for minor offenses. It is essential to note that disorderly conduct is a prosecutable offense, which can lead to fines, jail time, and other punishments upon conviction.
Examples of Disorderly Conduct
Disorderly conduct offenses vary widely by state. Here are some of the most common acts which are considered disorderly conduct offenses:
- Public drunkenness
- Inciting a riot
- Disturbance of the peace
- Loitering in certain locations
- Fighting / physical altercations
- Obstructing traffic
- Use of extremely obscene or abusive language
- Loud or unreasonable noise
Given the wide range of behaviors that could constitute disorderly conduct, an individual may be arrested for this crime without correct trigger. Practically any socially offensive or disruptive conduct may be prosecuted as disorderly conduct.
Consequences of Disorderly Conduct
While disorderly conduct may seem like an insignificant charge initially, people with a disorderly conduct conviction on their record may have a difficult time pursuing educational, career, along with other opportunities in the future. In addition, a disorderly conduct conviction may influence the outcome of any subsequent bout with the law.
Disorderly conduct charges might be dropped after an arrest or might be prosecuted as misdemeanors. In some more severe cases, disorderly conduct may be prosecuted as a felony, which might result in significant jail time.
A disorderly conduct conviction can bring significant punishment, including fines, community service, compulsory counseling, and jail time. A judge sentencing someone for disorderly conduct will frequently consider that person’s criminal history.
A first-time offender’s disorderly conduct sentence is typically very light. This sentence might be even be suspended if particular conditions are met.
Repeat offenders or those with much more severe criminal backgrounds may experience harsher repercussions.
Treating disorderly conduct charges seriously from the beginning can help you avoid severe problems in the future.
San Antonio Criminal Lawyer Charles Johnson is familiar with the court proceedings related to disorderly conduct and can help you to comprehend the local laws and regulations governing this charge. Don’t let a simple misunderstanding haunt you in the coming years.
We can be reached 24 hours a day, 7 days a week.
Call us at 210-431-3337 or toll free at 877-308-0100.
Major Credit Cards Accepted.
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As an alternative to sentencing a defendant to a prison term, a judge may very well select to sentence a defendant to probation. Probation releases a defendant back into the community, however the defendant doesn’t have the same degree of independence as a normal citizen. Probation comes with conditions that restrict a probationer’s behavior, and if the probationer violates one of those conditions, the court could possibly revoke or modify the probation.
Courts usually grant probation for first-time or low-risk offenders. Statutes determine when probation is possible, but it is up to the sentencing judge to ascertain whether or not to essentially allow probation.
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Although sentencing judges have this discretion, they must still stay within the statutory limits when allowing probation. For example, a judge cannot impose probation for a period longer than the maximum sentence prescribed by statute.
Probation has three primary goals:
- To rehabilitate the defendant
- To protect society from further criminal conduct by the defendant
- To protect the rights of the victims
Once a judge has granted probation, the matter moves into the jurisdiction of probation officers, who monitor the probationer’s compliance with the terms of the probation.
Conditions are an inherent part of probation. Judges set conditions in order to meet the goals for probation stated above. A probationer must comply with these conditions otherwise the court could very well impose a prison sentence or add more restrictive conditions to their probation.
Courts normally have a great deal of discretion when setting probation conditions, nevertheless that doesn’t mean that judges can set whatever terms they want. Probation conditions should be reasonable. This indicates that the conditions cannot be vindictive, vague, overbroad or arbitrary. In addition, the conditions need to be related to the protection of the public. Also, if a judge wishes to impose special conditions, those conditions must relate to the nature of the criminal offense that the probationer committed.
Judges set the conditions, however probation officers enforce them. Any time a probation officer finds probable cause to believe that the probationer has violated the terms of the probation, the judge could possibly either change the terms of the probation or revoke the probation and impose a prison sentence.
Because the probationer’s freedom is at stake, however, the probationer has to receive some procedural due process before a court revokes their probation. While the ruling to revoke probation, just like the verdict to grant probation, is at the court’s discretion, the court should go through a number of procedural requirements prior to revoking probation. The probationer facing revocation doesn’t have as many rights during revocation proceedings as they do during the original criminal trial, however.
In order to revoke probation, a court needs to provide the probationer with notice of the proposed revocation and conduct a hearing on the matter. The probationer has a right to testify at the hearing, present supporting witnesses, and confront the witnesses against them. The probationer also has a right to a neutral hearing body, and must receive a written statement containing the reasons for revoking probation.
If there is sufficient evidence, a violation of even a single condition can certainly bring about revocation of probation. The violated condition has to be valid, however. In cases where a condition is later found to be unreasonable then violation of that condition will not constitute grounds for revocation.
San Antonio Probation: Hire the Best San Antonio Criminal Defense Attorney
If you are accused of violating the terms of your parole or probation or have questions regarding a potential probation offense, i highly recommend you call the Most Respected San Antonio Attorney whenever for a no charge initial consultation.
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Drug distribution/transporting laws penalize the selling, transport, and illegal import of illegal controlled substances into the US that include marijuana, methamphetamine, cocaine, LSD, heroin, and “club drugs”.
Consequently, drug distribution/transportation crimes may perhaps fall into a category of criminal offenses viewed as an organized illegal activity which may add substantially more criminal charges to a defendant’s crime and increase the penalties if found guilty. Ownership or sale of these drugs isn’t really necessarily an element of the crime, making motive a factor within the prosecution of distribution/transportation cases. Drug distribution/trafficking laws can implicate a single individual or possibly a broad ring of people involved within the crime. Transporting of controlled substances over a state line or a country’s border is known as a federal criminal offense with severe penalties that could possibly include the death penalty for drug kingpins.
Delivery of a drug is the actual or attempted transfer of a drug from one person to another. Delivery and distribution are treated as separate violations under the Controlled Substance Act. Cash doesn’t have to change hands for a person to be arrested for the selling of drugs. As an illustration, you may be found guilty of delivering a controlled substance even when others perform the physical act of delivery and you do not receive any sort of money for the transaction. For example, a defendant was present while another person delivered and sold cocaine to an undercover agent. Evidence that the defendant brought a mirror to the transaction in order to help measure the crack was virtually all that was necessary for an arrest of delivery and sale of drugs. Even though the defendant told law enforcement officials that she received a mere one-half gram of crack in exchange for her assistance with the drug transaction, she was found guilty for illegal delivery and sale.
Dispensing of drugs for medical purposes is allowed under extremely specific regulations. However, should a physician dispense drugs beyond the scope of his medical practice, he can be convicted of drug violations, as in U.S. v. Singh, (4th Cir. 1995), in which a physician traded drugs for sexual favors with patients dependent on prescription drugs.
Distribution is defined as the delivery of a controlled substance other than for the administering or dispensing of it. An individual is usually guilty of distribution when he transfers a controlled substance to another individual. The transfer may be actual, constructive, or attempted. The transfer is actual whenever a person physically transfers the controlled substance to another; it is constructive, when the federal government can establish that a person intends to sell or distribute an illegal substance via their actions or when the quantity of drugs in their possession is significant; it is attempted when the person attempts to transfer the controlled substance to another, but is otherwise prevented from doing so. Anyone who purposely participates in contributing to a drug transaction, even if only as a translator, is considered to be a deliverer of a controlled substance.
Transportation and distribution of drugs are much more significant offenses than is the crime of drug possession; and these violations result in the chance of significant penalties. Any individual confronting drug criminal charges for drug importation, drug transportation, or drug distribution and sale (excluding small quantities of marijuana) are commonly charged with a felony. A drug transportation/distribution arrest may bring about one or more years in a state prison as well as a permanent criminal record. Vehicles, homes and other possessions tied into a drug transaction may possibly also have to be forfeited.
The sale of drugs will be a felony charge. A sale of under 40 kilograms of marijuana is known as a felony under federal law, and is punishable by five years in jail and a $250,000 fine. The penalty for the sale of “harder” drugs, crack and heroin, can certainly include a life sentence. Sentences and fines are often depending on the quantity of the sale, the past criminal history of the defendant, the presence of firearms on the defendant through the transaction, and whether minors had been involved in the transaction or not.
Mere possession of a controlled substance doesn’t necessarily demonstrate specific motive to distribute or sell the drug. Intent can’t be proven by use of direct evidence (evidence based on a witness’s firsthand knowledge) or circumstantial evidence (evidence primarily based on inference); a distributor should know that he/she is in possession of a drug meant for distribution.
Defenses for Distribution/Transportation
Defenses for drug distribution/transportation charges generally involve the violation of the Constitutional protection under the law of that person charged. Due process requires that every component of the crime be proved beyond a reasonable doubt, a very high standard when trying to prove the elements in a distribution/transportation crime. In addition, the 4th Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures. The unreasonableness is dependent on the facts and circumstances of every case. If police officers illegally searched you, or illegally seized your property and assets, an Experienced San Antonio Lawyer may very well be able to have the criminal charges dismissed.Other proven winning defenses for distribution/transportation criminal charges include entrapment and illegal surveillance, both of which an individual is constitutionally safeguarded against under certain circumstances.
If you had been in a car containing drugs that was stopped, but you had been a passenger, the prosecution should establish that you had been in possession and had knowledge of your possession. You can’t be convicted of any sort of drug charge ;if you didn’t realize the drug had been there.
An Experienced San Antonio Lawyer will make sure your legal rights are defended and if law enforcement did not follow correct procedures, they will have resulting evidence dismissed.
San Antonio Drug Distribution Defense Lawyer
If you encounter any sort of of drug criminal charges, the prosecution will attempt to press the most severe criminal charges potential. Should you confront drug distribution charges or you have been arrested for conspiracy with intent to distribute, a conviction could mean a lengthy jail sentence and forfeiture of assets .
Police officers aren’t your pals. Your best chance is to get in touch with an aggressive criminal defense lawyer and keep your mouth shut.
Should you are found with scales, drugs, and other distribution materials, you will be arrested for possession with intent to distribute. Depending on the amount of the drug involved, you could lose vehicles, cash, and even your home if found guilty. Providing the aggressive criminal defense you deserve, a skilled San Antonio Criminal Defense Lawyer will be readily available around the clock, 7 days a week.
A knowledgeable San Antonio Lawyer will make sure the obligation of proof rests on the prosecution.
The Top San Antonio Criminal Attorney will treat you and your legal issue with dignity and go to war for you to protect your life, loved ones and future. Whenever you or a family or friend are dealing with legal charges or a criminal defense inquiry, you want an individual you can depend on to help you.
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