Violent Crimes

Overland Park Violent Crimes Attorney

Violent crimes are defined as those crimes involving force or the threat of force, or those that involve bodily harm to another.  It is not a precisely defined category, and authorities differ precisely on what may or may not be a “violent” crime.  Some types of offenses can be in more than one category of crime:  for example, aggravated sexual battery is both a sex crime and a violent crime.  Basically, a violent crime is one viewed as violent activity against a person or property that intentionally threatens or inflicts, or attempts to inflict, physical harm. Because of the seriousness of such acts and the potential damages that can result, violent crimes are typically prosecuted very aggressively by state and federal prosecutors.  In addition, alleged victims of violent crimes often have more involvement in the prosecution of these offenses than with other types of criminal offenses.

The following are some of the most common violent offenses.  Each of these offenses has a very precise definition, with very specific elements, that may vary between the states of Kansas and Missouri.  This listing is meant for general informational purposes. Some of these offenses are also commonly found as “inchoate” offenses:  that is, they are charged as “attempts” or “conspiracy” to commit the underlying offense.

Homicide.  The unlawful killing of a human being, which includes first degree murder, second degree murder, and the three forms of manslaughter.

Robbery.  The use of force, or threat of force, in the act of taking money or other property of another.  Bank robbery is prosecuted as a federal crime, as it involves federally insured depository institutions.  In many robbery situations, arrests are not actually made at the scene of the crime, but are dependent on surveillance videos, eyewitness recollections, and evidence left at the scene.  Evidentiary issues in these cases can be complex, and it is important to have an attorney who is aware of the nuances.

Assault.  The unlawful and intentional threat of inflicting violence on another.

Battery.  The actual and intentional touching or striking of another against their will, or the intentional causing of bodily harm.  This can be charged as an “aggravated” offense if certain other conditions are met.

Child Abuse.  The infliction of bodily harm on a minor child.

Kidnapping Or Criminal Restraint.  Abducting, imprisoning, or confining another against his or her will, by force or threat of force, and without legal authority.

Vehicular Homicide or Manslaughter.  Vehicular homicide cases can come about when someone is accused of reckless operation of a motor vehicle that has resulted in the death of another.

Because these charges are aggressively prosecuted and carry serious possible penalties, it is absolutely critical to contact an attorney at the earliest possible stages of the development of a case.  Under no circumstances should a person sit for law enforcement interviews, agree to polygraph examinations, or otherwise discuss possible criminal accusations with doctors or social workers, without first consulting a defense attorney.

Read More:  Sex Crimes In Kansas City 

Property Crimes

Overland Park Property Crimes Lawyer

Property crimes are very common, and involve the alleged taking of money or property.  These offenses are generally grouped into the following categories:

Burglary.  Burglary is typically defined as the unlawful entry into almost any structure with the intent to commit any crime inside. No physical breaking and entering is required; the offender may simply trespass through an open door. There need not be any forcible taking of property, like robbery, which is usually classified as a violent crime.  The definition of burglary arises out of state law, and thus, the components of the crime may differ slightly depending on the state. Federal criminal law incorporates the meaning of burglary used by the state that the crime occurred in.  Most states use the same basic definition of burglary:

  1. The unauthorized breaking and entry.  This can be actual breaking, or “constructive” breaking, with no force used.
  2. Into a building or occupied structure.  An abandoned structure generally will not qualify.
  3. With the intent to commit a crime inside.  The crime intended inside the structure need not be stealing; it can be any felony crime.  But the crime needs to be separate from the break-in itself.

Some states further divide burglary into “degrees”, that is, “burglary in the second degree”, etc, depending on the circumstances and on whether a person was in the residence at the time of the intrusion.

Shoplifting.  Generally, shoplifting is composed of two elements: (1) willfully concealing or taking possession of items being offered for sale; and (2) the intent to deprive the items’ rightful owner (typically the store) of possession of the items, without paying for the item. 

Bad Checks.  These charges come about when something of value has been received, in return for which the vendor got a “bounced” check.  These can be a grey area between civil and criminal law, and prosecutors can look to the overall circumstances.  Our experience is that too many of these charges are really civil collection matters, and do not belong in criminal court.  Depending on the situation, some prosecutors look for some higher level of “fraud” in these cases, such as closing the bank account, or if someone has put a stop-payment order on the check.

Theft. This is the taking of something of value from another, with the intent to deprive the owner of rightful possession.

Arson.  This is the willful or malicious burning of property.  It is often seen in conjunction with attempts to commit insurance fraud.  It is a serious felony and is investigated by very trained units.  These cases, while rare, can involve a high level of scientific evidence and expert testimony.

Tampering.  This is the interference in the ownership or possession of the property of another.  It is commonly found in relation to auto cases, or other transportable property.

Property Damage.  Depending on the level of damage caused to the property of another, this can either be a felony or a misdemeanor.  It can happen when someone attempts to degrade, deface, or destroy the property of someone else.

Each of these crimes listed here has specific elements that will differ from state to state. There may also be slight variations on what these offenses are called.  If you or someone you know is facing a charge involving an allegation of a property crime, you need to speak with an experienced attorney without delay.

Read More:  Drug Crimes

Domestic Battery Charges

Overland Park Domestic Battery Attorney

At Phillips & Thomas LLC, we have conducted many jury trials (in both Kansas and Missouri) on domestic violence cases, from low level misdemeanors all the way up to Class A felonies.  Domestic battery and domestic violence charges are a special subset of the category of battery charges.  Unlike regular battery, domestic battery by definition involves altercations between people who are either intimate with each other, or are close family members.  For this reason, there are special emotional dynamics surrounding these cases that must constantly be kept in mind.  It is not uncommon for the following things to happen:

  • The alleged victim may swing back and forth about whether to cooperate with a prosecution.  He or she may have been the one to call the police in the first place, and may not have anticipated that such a call would result in an arrest.  So, there can often be intense emotions going on that need to be taken into account.
  • The defendant may be unwilling to stop contacting the alleged victim by text, phone, or some other means.  Failing to comply with “no contact” orders from the court can be a serious problem with these cases.  It is important that clients understand that these court orders need to be adhered to very strictly.
  • There may be other friends or family members who insert themselves into the case, by calling the prosecutor’s office, law enforcement, attorneys, or other parties.
  • There may be connected or concurrent issues involving divorce, if the case is between spouses.  Domestic battery cases can often come about during the final stages of a failing relationship.
  • There may be connected or concurrent issues involving shared property, or property that one person has taken from another.

An attorney experienced with the nuances of domestic battery cases has seen all of these scenarios, and knows how to handle them.  Let us look in some more detail about how domestic battery charges come about.  Firstly, a battery is labeled “domestic battery” or “domestic violence” when someone allegedly commits the battery on any of the following persons:  boyfriend, lover, friend, child, family member, or appointed legal guardian of someone else.   If there has been an alleged offensive touching, it may result in a battery charge.  Simply calling the police to a residence can be enough to set in motion some serious consequences, and many people do not fully realize this.

Once an arrest has been made for battery constituting domestic violence, there are some key things that you can do in order to protect your rights. Of course you should contact legal counsel to represent you right away.  It may also be useful to document (with photos or through medical treatment records) any harm you may have been subjected to by another person’s conduct.  Do not violate any protective order against you.  Violating a court’s “no contact” order is itself a new criminal charge, and many prosecutors will not hestitate to add another charge to a defendant’s burdens.  Even if the alleged victim contacts you first, you cannot respond.  Your attorney can, on your behalf, seek to modify any court’s “no contact” orders.

There are often improper arrests in domestic battery cases.  This can happen because:

  • Police expect to make an arrest (of one or both people) when they are called about possible domestic violence.  Even if the alleged victim doesn’t want an arrest, they can be done out of “safety concerns” by the police.
  • Parties commonly are excited and agitated when contacted by police, and the police often make snap judgments on who was the “primary aggressor.”

Defenses.  Defendants have all the same defenses in domestic battery cases as they would have in regular battery cases.  It is extremely important to focus on the details of these cases so that the most favorable outcome–including dismissal–can be achieved.

Consent.  This is rare in a domestic battery scenario, but it can happen.  The idea behind this defense is that the alleged victim in the assault or battery charge “consented” to being subject to the physical contact or imminent danger of physical contact.  Essentially, the idea here is that people should be allowed to handle their own relations with each other, without interference from the government.  This defense is commonly found in sexually-related assault or battery cases.

Self Defense.  A person is permitted to use reasonable force when necessary to stop an attack on himself or herself, or when he or she reasonably believes that they are in imminent danger of harm.  The key word here is “reasonably.”  A person may cannot claim to be in fear of imminent bodily harm when an objective, neutral analysis of the situation shows he or she overreacted.  These types of situations are very fact-specific, and each case will be different.  The precise nuances of this general principle vary between Kansas and Missouri, and among many other states.  Often, a key question will be:  what level of force is permitted to repel an assault?  Under what circumstances does self-defense stretch into an offensive attack?

Defense of Others.  The situation here is similar to that of self-defense, but the focus is on the threat to some third party.  This may arise in scenarios where someone uses force to prevent harm not to himself, but to someone else.  And the requirements are generally the same, in that a person using force to protect someone else must have a reasonable belief that that person was about to be subject to imminent harm.  But the laws in Kansas and Missouri will vary on the degree of force permitted.

Insanity or Diminished Capacity.  These are rare.  They involve situations where a defendant may claim his action was not truly “voluntary” within the meaning of the law, in that he or she had some mental defect or was not able to appreciate the nature and consequences of his or her act.

Stating the general legal principles here is only the first step.  Everything depends on the facts of the particular case.  If you or someone you know has been accused of some type of assault or battery, you need an attorney with actual trial experience in this area of the law.  At Phillips & Thomas LLC, our experienced team of trial attorneys has handled these cases in jury trials and bench trials in Kansas and Missouri for many years.  Call us for a free consultation.

Read More:  Assault And Battery Charges 

Disorderly Conduct Charges

Overland Park Disorderly Conduct Lawyer

Disorderly conduct is a common misdemeanor charge.  It is generally up to the law enforcement officer’s own judgment whether he wants to arrest someone for the charge. Typical disorderly conduct (or disturbing the peace) charges result when the law enforcement officer is angry or frustrated with a situation he has been in where he feels control slipping away.  Fortunately, many of these cases are overreactions on the part of law enforcement.  They can arise during house calls from allegations of domestic abuse, or venues where alcohol may have been consumed and it is late at night, such as entertainment districts (Westport, or KC Power and Light), or at sporting events where large numbers of people are present.

Still, disorderly conduct laws differ significantly among states and municipalities, and the type of conduct covered by these laws and ordinances is quite broad. Broadly speaking, states and municipalities categorize disorderly conduct as any behavior that is likely to cause other people alarm, anger, annoyance, or an increased likelihood to engage in unlawful activity. Fortunately, disorderly conduct (or, in some jurisdictions, “disturbing the peace”) has a defined element of intent to it.  There needs to be some sort of intent to cause the alleged disorderly conduct or disruption.  And in many situations, this knowledge or intent (also called “scienter”) is lacking.

Disorderly Conduct, Disturbing the Peace, and Noise Violations

  • Fighting, tussling, or other allegedly violent behavior in public or private.
  • Excessive noise violations, possibly caused from playing music too loudly, or operating car stereos too loudly.
  • Noise violations.
  • Inciting or provoking a fight, or attempting to provoke a fight using abusive language or offensive gestures.
  • Behavior that attempts to disrupt business or government operations.
  • Refusal to leave some area when ordered by a law enforcement officer.
  • Alleged “mouthing off” or rowdiness to an officer.
  • Engaging in behavior that law enforcement views as as interference in his or her job.
  • Recklessly or willfully handling or displaying a deadly weapon or deadly instrument.

Some states and cities prohibit disorderly conduct in a public area, or conduct that disturbs the public order.  Other cities and states do not require the behavior to occur in public or affect the public. Public areas include such places as public restroom stalls, carnivals, hospital emergency rooms, and even private buildings available for public rental and entertainment. When the conduct occurs in private, it may satisfy the “public requirement” if there is some spillover effect of the private activity into the public domain.  It is not unusual for neighbors or neighborhood members to report each other for this type of violation.  But in many cases there is no public requirement.  In these situations, it is enough if a private person has been “disrupted” in some objectively unreasonable way.

Disorderly conduct crimes are misdemeanors.  For many people, this type of an offense may be their first exposure to the criminal justice system, and the process can be very upsetting and stressful.  If you have been charged with a disorderly conduct, noise violation, or peace disturbance charge, contact our office for a free consultation.

Read More: Drug Crimes  

Defalcation In A Fiduciary Capacity: Bankruptcy Adversary Proceedings Under Sect. 523(a)(4)

Overland Park Bankruptcy Lawyer

Adversary proceedings contesting the dischargeability of debt in a bankruptcy case are rare, but they do happen.  There are various types of nondischargeability actions that a bankruptcy debtor can face under 11 U.S.C. 523.  One of these is an adversary proceeding under Sect. 523(a)(4) for “fraud” or “defalcation” while “acting in a fiduciary capacity.”  This type of action is often brought as an additional count in an adversary petition along with other Section 523 claims, such as claims under 523(a)(2).  They seem to be appearing more often than in the past, as creditors increasingly seek to have commercial debts classfied as “trusts” or “trust fund proceeds.”

We have noted 523(a)(4) actions in an increasingly wide variety of scenarios, from money order debts issued by convenience stores, to actions under the Perishable Agricultural Commodities Act (PACA), to “floor plan” types of commercial loans for used automobile dealerships.  By seeking to have their debts considered trust fund debts, creditors can also make an end-run around the doctrine of equal treatment of similarly-situated creditors, and have their debts considered as priority or superpriority status.

A key issue in actions under 523(a)(4) is:  what is the precise definition of defalcation?  A recent Supreme Court case has finally clarified the definition.  The case is Bullock v. BankChampaign N.A. (No. 11-1518, May 13, 2013).  The issue faced by the Supreme Court in Bullock was what mental state would be required under Bankruptcy Code section 523(a)(4) for a debt owed by an individual debtor to be excepted from discharge because of the debtor’s “defalcation while acting in a fiduciary capacity.”  (Section 523(a)(4) in its entirety excepts from discharge any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.”)

The Court’s consideration of the case came as something of a relief.  The Court granted certiorari because the cases interpreting this statutory provision were split regarding where on the spectrum from negligence to actual intent one’s state of mind must fall so that the debt arising from defalcation of one’s fiduciary duty should be nondischargeable in bankruptcy.  For example, the First and Second Circuits required a minimum of “extreme recklessness.”  The Fifth, Sixth, and Seventh Circuits required a minimum of “objective recklessness.”  Mere negligence or innocent mistake was sufficient for the Fourth, Eighth, and Ninth Circuits.

The Court ultimately sided with the First and Second Circuits and adopted a mental state that embraces an “extreme recklessness” standard.  The Court agreed with the Second Circuit that adopting this mental standard “has the virtue of ease of application since the courts and litigants have reference to a robust body of securities law examining what these terms mean.”  The Court also held that a fiduciary’s conduct in handling the trust “must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”

So, the rule now is that the mental state required for “defalcation” by a fiduciary under Code section 523(a)(4) is basically equivalent to other fraudulent or felonious intentions characteristic of its statutory neighbors “fraud,” “embezzlement,” and “larceny”.  The Court cited the Model Penal Code in its decision, and basically heightened the level of culpability required for a creditor to meet its burden in a 523(a)(4) action.  No longer will a debtor’s mere mistake or simple recklessness as a trust fiduciary be enough for a creditor to win a 523(a)(4) judgment.  Now, a creditor/plaintiff will have to show a higher standard of “extreme recklessness.”  The distinction is critical.  And it will make a creditor’s job in a 523(a)(4) action much harder.

A key concept of bankruptcy dischargeability actions is that exceptions to discharge should be narrowly construed.  Applying a heightened intent standard for a debtor/defendant’s defalcation was consistent with the legislative intent of Congress in its formation of 11 U.S.C. 523, the Court said.  Summing up its philosophy, the Court noted, “In the absence of fault, it is difficult to find strong policy reasons for favoring a broader exception [to discharge] here…”

The Bullock decision finally removes some of the varying standards and interpretations in judicial circuits surrounding the meaning of “defalcation.”  As a practical matter in litigating 523(a)(4) actions, the creditor/plaintiff’s job has now become that much harder.  If you are facing an adversary proceeding in bankruptcy court, you need an experienced attorney.

Read More:  What Is An Adversary Proceeding?

Juvenile Crimes

Overland Park Juvenile Crimes Attorney

Juvenile offenses in Kansas and Missouri are a distinct and different category within the field of criminal defense.  Why?

  1. Juvenile crimes are handled in special courts set up in each state county, with procedural and legal rules that can be quite different from adult criminal cases.  In addition, the juvenile justice system has large numbers of social workers, probation officers, and even separate facilities where juveniles are sometimes kept.  The juvenile justice system is truly a parallel and separate system.
  2. Communication between the defense attorney and the accused juvenile presents its own special issues.  In many instances, the juvenile defendant is reluctant to discuss the circumstances that led to criminal charges being filed.  The attorney must have excellent interviewing and communication skills, as well as sensitivity and attention to the mentality of juveniles.
  3. The parents or guardians of the juvenile are additional actors in the process, and must be made aware of the special requirements and conditions of the juvenile justice process.  However, the attorney’s client is the juvenile facing the charge, not a third party family member.  Communication, disclosure, and client management can present unique issues in this situation.  In some circumstances, local rules may restrict the accessibility of certain reports and records.

The penalties and consequences of juvenile cases can be serious, even though technically juveniles are meant to be considered a separate and distinct class from adult criminal defendants.  We believe that every child’s future is worth protecting, and we understand what is at stake in every juvenile criminal case. Parents and juveniles often do not fully appreciate the fact that a juvenile could face a lifetime of missed job opportunities along with financial and social struggles due to a mistake as a teenager.  Many juvenile courts are also overstaffed with court appointed legal counsel or public defenders who may have very large workloads that prohibit the type of personalized attention that a private law firm can offer.

Successful strategies in juvenile cases begin right at the outset of the case with a detailed review of the facts, circumstances, and evidence in the case.  Interviews with the juvenile should focus on the precise events or circumstances that gave rise to the accusation at issue.  In reviewing the legal issues and in discussions with the prosecutor, it is important to demand strict proof of the elements that define the offense in question.  Finding the bright line rules in the criminal statutes and then chipping away at them is vital.  For example, was the youth actually truant from school as many times as the prosecutor claims?  Is there any evidence of this?  Some truancy rules require a certain amount of missed absences, and these cannot be proven, the case collapses.  Juveniles also tend to be subject to peer pressures or act in groups, and this fact can raise issues of culpability or duress.

In rare situations, serious felony offenses can be declined by juvenile court and tried in adult court. A juvenile attorney can fight this process, and try to keep the case in juvenile court.  Most of the constitutional rights that adults have are also provided for juveniles who are accused of a crime. It does happen that law enforcement or school officials will question, interrogate, or violate the legal rights of juveniles, without the knowledge of a parent or guardian.  It is not unheard of for these officials to try to trick minors into revealing incriminating information.  Law enforcement officers are experienced in gamesmanship and misleading both adults and juveniles in order to get people to implicate themselves.  In these situations, it is critical for the juvenile to retain an attorney as quickly as possible.

Read More:  Assault And Battery Accusations

Sex Crimes In Kansas City

Overland Park Sex Crimes and Sex Offenses Attorney

There are few criminal accusations in today’s society that are more emotionally-charged than an alleged sex offense.  Public misperceptions and stigmas around these cases have been current for many years.  Besides facing criminal penalties, defendants are also facing the prospect of some form of offender registration upon conviction of the underlying crime.  An experienced law firm that has actually tried these cases and handled them at the state and federal level is a requirement in this area of the law.  With our extensive trial experience with sex offenses, we understand the importance of investigations, expert testimony, deposition practice, computer forensics, medical evidence and expert testimony to secure successful outcomes for our clients.

Both Kansas and Missouri have a separate statutory scheme for dealing with sex offenses, and they can be very different.  Sex crimes can be both misdemeanors or felonies.  But in general, a sex crime may be defined as a sex act that is considered

  • “sexually deviant” in nature
  • the exchange of sexual activity for money (solicitation or prostitution)
  • a forced/non-consensual sexual act, either forcible or by law (statutory rape)
  • the possession, distribution, or promotion of child pornography or other sexually-related contraband.

More specifically, sex offenses fall into the following categories.  Both Kansas and Missouri have very specific definitions and subcategories of these offenses.  But for the purposes of simplicity in this article, we will speak in general terms.

  • Rape.  Though every state has its own definition of this act, rape is generally defined as forced or non-consensual sexual intercourse. There have evolved different categories of rape, such as statutory rape, spousal rape, and date rape.
  • Sexual Abuse.  Though the legal definition will vary depending on the jurisdiction, sexual abuse may be defined as any form of non-consensual contact of a sexual nature. Improper touching, molestation and forced sexual intercourse may fall under this category.
  • Sexual Assault or Sexual Battery.  These involve unlawful physical contact of a sexual nature, or the threat of physical contact.  They can be relatively minor (misdemeanor) or high level felony level offenses.
  • Indecent Exposure.  Intentionally exposing oneself in a sexual manner in public.
  • Child molestation is a sex offense that may involve a range of indecent sexual conduct involving a child.  Different states specify the age requirements and subcategories of this offense.
  • Child pornography.  It is illegal to possess, produce or distribute any form of pornographic material depicting minors.  These offenses are among the most common sex crimes and are prosecuted vigorously at the state and federal levels.
  • Internet Sex Crimes or Cyber Sex Crimes.  These generally involve the alleged receipt, promotion, or transmission of illicit sexual material.  See our separate post on this subject. “Police decoy” cases are common here.
  • Solicitation and Prostitution.  Craigslist announcements, suburban massage parlors, ads in newspapers, or even meetings in person can be the triggers for these types of offenses. Pandering, solicitation, and engaging in prostitution are commonly misdemeanors, but can be felonies if certain conditions apply.

Obviously, the threat of imprisonment is present in these cases.  Other possible harms may include a felony or misdemeanor record, sexual offender treatment programs, and registration on sex offender lists.  Sex offender registration is one of the cutting-edge areas of litigation in this area of the law.  Many states around the country are now finding that lifetime sex offender registration, when applied retroactively, violates a person’s constitutional rights.

Imprisonment.  The severity of possible sentencing for sex crimes stands out as a key feature of these offenses.  Even if incarceration is not at issue or relatively short, prosecutors will often try to impose burdensome restrictions and conditions of probation on defendants.

Felony or Misdemeanor.  A common but improper practice is for prosecutors to “overcharge” an offense in the initial stages.  Also common here is for offenses to be charged as “aggravated” when the factual basis for such an enhancement is almost nonexistent.

Sex Offender Registration and Treatment. This is perhaps the most troublesome aspect of the sex crimes process.  What defense attorneys (and increasingly, state legislators) have found particularly infuriating is the lack of nuance in this area.  Offender lists were originally intended only for violent predators.  Over time, legislators added more and more crimes to what constitutes a registerable offense.  This has led to situations where the 18 year old kid having sex with his underage girlfriend is treated the same (for registration purposes) as a serial rapist.  Even some misdemeanor offenses are now subject to registration, so that even an “offensive sexual contact” (even with clothing on) can subject a person to registration.  Fortunately, the trend in the law around the country seems to be ease back on some of this hysteria.  But it will take years before some semblance of rationality returns to the process.

Legal and Evidentiary Issues.  Legislators have shown a willingness to give prosecutors many tools to pursue these accusations.  Allowing child testimony that may be otherwise unreliable, stretching statutes of limitations, allowing questionable “date rape” accusations, and enlisting the help of uninformed social workers are common prosecutor tactics.  We know that fighting these cases involves a committed, sustained, and focused strategy that investigates every aspect of the case, enlists the support of medical, scientific, or computer experts, studies the scientific evidence as applicable, and uses pre-trial or trial practice in court to get cases dismissed or reduced.

Obviously, sex offense cases are very serious and should only be handled by an experienced trial attorney willing to put in the time, effort, and dedication to see the case through to the end.

Read More:  Computer Crimes And Cyber Crimes

Drug Crimes In Kansas City

Overland Park Drug Crimes Lawyer

The so-called “war on drugs” has been underway now for decades, and continues in one form or another.  The recent legislative changes towards marijuana legalization in Colorado and some other states is a indication that society is somewhat changing, but there are strong institutional interests that want to keep the drug regulatory schemes in place.  In this climate, it is critical to have an attorney who is aware how to handle a drug case or drug conspiracy case.  Drug cases and drug crimes also present major issues of criminal and civil forfeiture.  Forfeiture is the legal process whereby someone convicted of a drug crime can be made to turn over assets (money or property) to the government.

With easy availability of drugs, drug cases are some of the most commonly encountered types of criminal cases.  Unfortunately, they can also be some of the most serious, if the offenses involve allegations of conspiracy, trafficking, or distribution.  Drug accusations carry the very real potential for extremely long sentences, harsh collateral consequences and civil penalties that may be assessed under property forfeiture provisions.  Drug cases in both Kansas and Missouri present many dove-tailing legal issues:

Search and Seizure.  In many drug cases, it happens that a person’s constitutional right to be free of unreasonable searches and seizures has been violated.  The Fourth Amendment protects us from unreasonable searches and seizures.  A key issue at the outset of every drug case is firstly:  How was the drug evidence obtained?  Successfully probing into this issue can often lead to the reduction or dismissal of drug charges.

Technical Details.  In drug cases, the mastery of the details is vital.  At Phillips & Thomas LLC, we focus immediately on the who, what, where, when, and why of a drug case.  Federal and state law enforcement agencies often don’t like to share resources, and will often only provide the minimum amount of information.  Police reports can often be vague, contradictory, or incomplete.  In federal cases, it is important to examine dispatch tapes, MDT printouts, and AVL/GPS for all units.  Police reports, lab reports, photos, videos, victim impact statements, citations, and affidavits also need to be pored over.  There can sometimes be a limited window of opportunity to obtain things from law enforcement, as records can be buried, destroyed, or otherwise degraded.  Under the case of of Arizona v. Youngblood, 488 U.S. 51 (1988), a criminal case can be dismissed if law enforcement has destroyed potentially exculpatory evidence.  This can and does happen, and bad faith can be shown in a variety of ways.

It is critical to use all of the available evidence to reconstruct what actually happened. Police informant files will contain details (or inferences) on the backgrounds and motivations of CI (confidential informants).   The lab reports are often the most overlooked element of defense of drug cases, and knowing the chemistry and procedures of how the tests are done is critical.  The identity of the substance is sometimes not as clear-cut as it is made out to be.  Some recent cases of ours have called into question the “random sampling” procedures of law enforcement agencies.

Drug cases are divided into different categories:  possession, distribution, or trafficking.  So-called “inchoate” offenses are those that have not been brought to actual completion, and are classified as “attempts” or “conspiracies” to do the particular act.  For example, in a drug conspiracy case (common in federal court), the essence of the conspiracy is the making of the agreement itself.

Kansas, Missouri, and federal conspiracy charges have slightly different elements, but basically the government needs to prove beyond a reasonable doubt that (1) two or more persons came to a mutual understanding to try to accomplish a common unlawful plan; (2) that the person willfully became a member of the conspiracy; (3) that one of the conspirators knowingly committed an overt act in furtherance of the conspiracy; (4) that the overt act was knowingly committed at or about the time alleged in an effort to carry out some object of the conspiracy.

If you have been approached by law enforcement to act as a possible “confidential informant”, then you need legal advice and guidance right away.  Any possible “deal” or immunity agreement needs to be done in conjunction with a defense attorney, so that all your rights and privileges are protected.

Successful drug crime defense strategies can often focus on the lack of “links” or connections between the defendant and the substances.  In drug possession cases, possession can either be “actual possession” or “constructive possession.”  But what about other factors?

  • Was the person present in the house when the warrant was executed?
  • Was the contraband in “plain view”?
  • Was the person able to exert control over the contraband (“constructive possession”)?
  • Did the person have any connections to the residence, auto, or structure where the contraband was found?

Forfeiture.  Drug cases often carry with them the possibility of civil or criminal forfeiture of money or property that may have allegedly been acquired from unlawful activity.  These forfeiture issues can arise as separate civil cases, or can come about within the underlying criminal case itself.  It is important to have an experienced defense attorney who can handle these issues.

Treatment Programs.  Many of our clients have a serious substance abuse issue that needs immediate attention and intervention.  Working in collaboration with treatment programs, we have successfully helped our clients turn their lives around by assessing and referring them early on in their cases.  Often, if we can show the prosecutor that we have helped our clients’ address the underlying substance abuse issue that caused them to enter the criminal justice system, we can convince them to dismiss or defer prosecution on their cases.  Treating a drug case as a health issue rather than a criminal issue has provided tremendous benefits for our clients.

If you or someone you know has become involved in a drug case, or if you or someone you know has been asked to become an informant for drug-related issues, please call us.

Read More:  Computer And Cyber Crimes

Assault And Battery Charges

Overland Park Assault And Battery Attorney

Both Missouri and Kansas have separate statutory schemes for dealing with the crimes of assault and battery.  Each of these two types of crimes is a separate offense, with a specific legal definition.  For example, under the Kansas Statutes (21-3408), assault is defined as any deliberate act or overt threat that reasonably makes a person fear for his or her safety.  For this type of assault charge, it is important to note that it involves only the “imminent fear” of bodily harm, not necessarily any harm itself.  Battery is a separate crime with its own statute.  It involves an action in which the offensive contact is actually carried out.  In actual practice, it is common for these two separate offenses to be used interchangeably, however regrettable that may be.

Either assault or battery can be charged as a “simple” offense, that is, without any enhancement based on the alleged fact pattern.  Unfortunately, however, it is common for prosecutors to file a charge as an “aggravated” assault or an “aggravated” battery.  The word “aggravated” in used in the context of criminal law to distinguish fact patterns where the defendant’s conduct had some additional factor showing a heightened sense of criminal culpability, or went beyond the scope of the simple offense.

What constitutes an aggravated offense?  An aggravated assault is generally one in which the perpetrator used a “deadly weapon”, used a disguise, or one in which the perpetrator intended to otherwise commit a felony.  Aggravated batteries, like simple batteries, focus on the harm actually caused to the victim.  In an aggravated battery scenario, the prosecutor is alleging that the defendant intentionally inflicted bodily harm to the victim. There are additional enhancements here if the victim was a law enforcement officer.

Finally, it is important to point out that, in the modern era,  “domestic battery” has become its own subset of the assault and battery world.  When allegations of altercations, tussles, and fights come about in a household, someone may be charged with domestic battery. The penalties are enhanced depending on the number of prior incidents of domestic battery that a person has had.  The tragedy of this type of offense is that, typically, it involves situations where people in a household never intended for anyone to be charged with a crime.  Disputes happen, they escalate for one reason or another, and then someone calls the police.  And, more often than not, someone is arrested.  Many Kansas and Missouri municipalities have laws that direct police officers to make arrests in these situations for “public safety” reasons, even if the household members don’t want an arrest made.

Defenses

Like any other criminal charge, the charging authority (i.e., the governmental entity accusing a defendant of a crime) is required to prove each element of its case beyond a reasonable doubt.  In addition to this, legal precedents over the years have developed some absolute defenses to charges of assault and battery.  These are listed below:

  • Consent
  • Self Defense
  • Defense of Others
  • Defense of Property

Consent.  The idea behind this defense is that the alleged victim in the assault or battery charge “consented” to being subject to the physical contact or imminent danger of physical contact.  Essentially, the idea here is that people should be allowed to handle their own relations with each other, without interference from the government.  This defense is commonly found in sexually-related assault or battery cases.

Self Defense.  A person is permitted to use reasonable force when necessary to stop an attack on himself or herself, or when he or she reasonably believes that they are in imminent danger of harm.  The key word here is “reasonably.”  A person may cannot claim to be in fear of imminent bodily harm when an objective, neutral analysis of the situation shows he overreacted.  These types of situations are very fact-specific, and each case will be different.  The precise nuances to this general principle vary between Kansas and Missouri, and among many other states.  Often, a key question will be:  what level of force is permitted to repel an assault?  Under what circumstances does self-defense stretch into an offensive attack?

Defense of Others.  The situation here is similar to that of self-defense, but the focus is on the threat to some third party.  This may arise in vigilante scenarios, “good citizen” scenarios, “bystander” scenarios, or other situations when someone uses force to prevent harm not to himself, but to someone else.  And the requirements are generally the same, in that a person using force to protect someone else must have a reasonable belief that that person was about to be subject to imminent harm.  But the laws in Kansas and Missouri will vary on the degree of force permitted.

Defense of Property.  With this defense, the focus is on the concept that a person may use reasonable force necessary to protect his property from intrusion or destruction.  The laws in various states differ greatly in how this defense can be used and applied, and the case law is evolving constantly, especially when firearms may have been used in the alleged defense.  What type or level of force may be permitted to retrieve stolen property is also a big issue in these fact patterns.

Duress (Coercion).  This defense, although relatively rare, does come up in some situations, especially those involving hazing, gang initiations or street-gang scenarios, or other group-type behaviors where someone may have been “pressured” into committing an assault or battery.  The idea here is that the person accused of an assault or battery can offer evidence to show that he or she was compelled to commit the assault or battery by third parties.

Insanity or Diminished Capacity.  These are very rare.  They involve situations where a defendant may claim his action was not “voluntary” within the meaning of the law, in that he or she was not able to appreciate the nature and consequences of his or her act.  This situation is not likely to be encountered outside of serious felony sexual assault scenarios.

Stating the general legal principles here is only the first step.  Everything depends on the facts of the particular case.  If you or someone you know has been accused of some type of assault or battery, you need an attorney with actual trial experience in this area of the law.  

Read More:  The Field Sobriety Tests In A DUI Or DWI Case

White Collar And Financial Crimes

Overland Park White Collar Crimes Attorney

Overland Park Financial Crimes Attorney

White collar crimes and financial crimes are non-violent offenses generally charged against people working in “office” types (non-manual labor) of jobs, such as corporate officers, employees, and similarly situated individuals.  This category of offenses comprises, but is not limited to, the following types of violations at the state or federal level:

  • Antitrust
  • Banking crimes
  • Bribery
  • Bankruptcy fraud
  • Wire fraud
  • Mail fraud
  • Embezzlement
  • Environmental violations
  • FDA violations
  • Obstructing government operations
  • Health care crimes
  • Social security disability fraud
  • VA benefits fraud
  • Truth In Lending violations
  • Mortgage fraud
  • Securities violations
  • Fraud or defalcation while acting as a fiduciary
  • Trust fund frauds or wasteage
  • Corruption and kickbacks
  • Telemarketer frauds
  • Whistleblower scenarios
  • Workers compensation fraud
  • Gambling and gaming fraud
  • Bank structuring
  • Money laundering
  • Financial conspiracy
  • Tax fraud and tax evasion

Phillips & Thomas is able to use its in-depth knowledge of financial analysis (gained through its bankruptcy practice), corporate restructuring and liquidation, and criminal trial work to provide thorough and nuanced representation for our clients.  Because we know financial analysis, tax issues, and bankruptcy law, we can propose creative solutions that utilize financial reorganizations for our clients.  It is not uncommon for persons accused of white collar crimes to use bankruptcy–or the threat of bankruptcy–to obtain relief or as part of an overall settlement. In some situations, avoiding an indictment at the federal level or resolving a state level complaint from the attorney general will hinge on a bankruptcy reorganization or structured workout.  We know how to use creative thinking and action to solve legal problems.

Our experience in both bankruptcy and criminal trial work at the state and federal level has enabled us to secure successful results for our clients, which have been reported in the Kansas City Star in the past.  One recent case involved an acquittal after a federal jury trial for an alleged gambling fraud and interstate transportation of wire fraud proceeds scheme.  Kansas City hosts several major casinos, and it is not uncommon for criminal charges to come out of incidents that happen at the major casinos in the metropolitan area.  We have also been able to leverage our knowledge of bankruptcy law and the mortgage lending system to defend clients successfully in federal court on mortgage fraud, bank structuring, conspiracy, and wire fraud.

Law enforcement efforts to combat money laundering are becoming more and more advanced, with the rise of Bitcoin as a money laundering vehicle, digital currency, and the integration of national and international financial networks. As money laundering and other underlying crimes shift into cyberspace, law enforcement focuses on prosecuting financial institutions’ regulatory violations to prevent crime, and often the people caught up in complex transactions they do not fully understand.  

We have extensive experience in handling investigative matters begun by federal agencies or the Kansas Attorney General’s Office.  It is not uncommon for white collar cases to begin with notices sent from the state’s attorney general office, requesting information about various business dealings or financial matters.  These notices can threaten serious actions against a person’s business, such as the threat of closure or prosecution.  It is critical to obtain legal advice as soon as this happens.

Bankruptcy fraud is a rare criminal charge, but it does happen.  Most often, it involves allegations of failure to disclose material assets on a bankruptcy petition, hiding material assets, or some other violation of the US Bankruptcy Code (11 U.S.C.) that rises to the level of an alleged criminal matter.  In these scenarios, it is absolutely critical to have an attorney who is experienced in both criminal defense and bankruptcy law.  In allegations of this sort, there may be complicated issues that arise between a bankruptcy debtor’s requirement to disclose financial information, husband-wife privileges, corporate officer’s duties and privileges, and possible Fifth Amendment protections against self-incrimination.  If you or someone you know has become ensnared in a white collar crime or financial crime scenario, it is vital to secure representation at the earliest possible time.

Read More:  The Attorney-Client Privilege For Corporations And Businesses In Chapter 7 And Chapter 11 Bankruptcy Cases