Aggravated Battery Conviction Does Not Require Intention Of Resulting Harm


In January of this year, the Kansas Supreme Court published an opinion that clarified its position on the type of proof needed to sustain a conviction for aggravated battery.  The case was State v. Hobbs  (Docket No. 107,667).  To sustain an aggravated battery conviction, is the prosecutor required to prove that the defendant intended the consequences of his act, or just the act itself?  It is a question that is constantly present in these cases.

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For A DUI Stop, Police Need “Reasonable Suspicion” Of Criminal Activity


Every now and then, a DUI decision comes along that sums up a very important point of law. One of these decisions came down in January 2015 from the Missouri Court of Appeals for the Western District.

If the police wish to stop a motorist for a suspected DUI, they must have a reasonable suspicion of criminal activity.  Stops based on mere curiosity, or based on pretexts, are not legally valid.  This was the rule that the Missouri Court of Appeals for the Western District recently (2014) reminded the legal community of.  The case was State v. Cardwell (WD76791), on appeal from Cole County, Missouri.  After a bench trial, Mr. Cardwell was convicted of driving while intoxicated under Section 577.010 of RSMo.  On appeal he argued that the trial court should have granted his motion to suppress evidence. The Court of Appeals agreed with Cardwell and reversed the conviction.

Cardwell had filed a motion to suppress evidence during the case.  He argued that, because the officer who stopped him did not have reasonable suspicion or probable cause to do so, all evidence obtained thereafter should be suppressed. His motion was denied, and he was convicted.  When the officer initiated the stop, Cardwell argued, he did not have reasonable suspicion or probable cause to believe that Cardwell’s behavior suggested that he may be involved in illegal activity.  Thus the officer’s stop and seizure of Cardwell was unreasonable, and evidence obtained thereafter should have been suppressed.

The officer testified that when he first stopped Cardwell, he observed Cardwell to have watery, bloodshot eyes, could smell the odor of alcohol from his car, and Cardwell admitted to the officer that he had been drinking.  But the real issue, the Court found, was whether Cardwell should have been stopped in the first place.

The testimony of the police officer was the heart of the case.  The officer testified that on September 16, 2011, he was on his way to assist another officer, at approximately 1:00 in the morning, when he observed a vehicle in front of him traveling “very slow.”  The road was  gravel and “not a very wide road.” He testified that he quickly caught up with the vehicle, which was traveling in front of him and going in the same direction. The officer testified that the vehicle then stopped in the right hand lane and the driver motioned for him to go around and left him room to do so.

The officer said he instead chose to “check on the driver, make sure everything was okay[,]” and so he turned his lights on “so that he would know that it was a deputy behind him and that it wasn’t someone that was possibly a threat to him and also as a warning beacon to anyone else that would come up behind us or a beacon for other deputies should I need help.” At that point, the officer testified that he contacted the driver and had him show his driver’s license. The officer said although Cardwell then told him he was fine, he could smell alcohol coming from inside the vehicle.

The officer said he had not observed the vehicle commit any traffic offense. The officer testified that most people do not drive fifty-five miles per hour on a gravel road, indicating his perspective that driving slower than that was not “unusual conduct which [would] lead[] him reasonably to conclude in light of his experience that criminal activity may be afoot, as required for the existence of reasonable suspicion.

Cardwell was detained when the officer activated his emergency lights. At that moment, the Court noted, a reasonable person would have believed he was not free to leave.  From looking at the entire circumstances, the Court found nothing to indicate that the detention of Cardwell was justified in the first place.  In other words, the officer had no reason to believe that criminal activity was in progress or had occurred. The detention and the arrest never should have occurred.

The Court summed up its position with this brief but succinct expression of the law in this area.  It is worth quoting here:

However, “whether an officer lacked reasonable suspicion ‘turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time and not on the officer’s actual state of mind at the time the challenged action was taken.’” Id. (quoting Maryland v. Macon, 472 U.S. 463, 470–71 (1985)) (emphasis added). An objective assessment of the events leading to Sergeant Huffman’s [the officer conducting the stop] stop of Cardwell fails to reveal any specific and articulable facts and rational inferences therefrom that would reasonably warrant the stop. Driving slowly on a rural gravel road in the early morning, coming to a stop when quickly approached from behind by another vehicle, and motioning the approaching vehicle to go around with adequate room to do so does not constitute “unusual conduct” leading reasonably to a conclusion that criminal activity is taking place. There was no indication Cardwell’s vehicle was in any way disabled or that Cardwell was in need of help. In fact, Cardwell waved the officer on.

Taking all of the circumstances into consideration, then, the Court was able to find that the officer never should have stopped Cardwell in the first place.  Why?  He had no reason to.  There was no indication that anything of a criminal nature had happened or would happen. The law is clear on this point, and it is good for law enforcement to be reminded of it.  For this reason, the Court reversed Caldwell’s conviction.

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

Sexting Laws In Kansas And Missouri


“Sexting” is the term used to describe the sending or receiving of sexually explicit images, usually by means of a hand-held smart phone.  The ready access to photographic technology, and the ease with which photos can now be taken, mean that users of cell phones are more likely to take advantage of the technology.  Cell phones and smart phones are here to stay, and with this presence comes possible dangers.  What may seem funny or amusing is most certainly not.  When minors “sext” photos to others, even photos of themselves, serious criminal issues can be implicated.

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Fines And Restitution From Criminal Cases Are Protected In Bankruptcy


In bankruptcy, debts originating from fines or penalties in criminal cases are generally not dischargeable.  A 2014 ruling by the 8th Circuit Bankruptcy Appellate Panel (B.A.P.) has restated this point. The case in question was Behrens v. United States (In Re Behrens, No. 13-6052, 2014 Bankr. LEXIS 565, Feb. 12, 2014).

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Kansas City Missouri Municipal Court: An Overview

The Kansas City Municipal Division is part of Judicial Circuit 16.  The courthouse is located at 1101 Locust, Kansas City MO  64106.  It hears misdemeanors, infractions, and even housing code violations cases that arise out of incidents alleged to have occurred in the metropolitan Kansas City Missouri area.  It has eleven courts that deal with such cases, and the courts are indicated by letter (Courtroom A through K).  Persons who have received a citation or a summons to the the KCMO Municipal Court should look at their documentation carefully to make sure that they know when and where their court date is.  If you do not have your paperwork, your attorney can find this information out for you.

It is important to have an attorney when dealing with issues in KCMO Municipal Court.  Too often, people make the mistake of not doing this, and then find out later that big problems have been created.  In addition, having and attorney can do the following for you:  (1) Work on withdrawing active warrants and getting you a court date; (2) Changing the time and date of your current court date.  For many people, having these things done is an important part of the preliminary matters surrounding a case.  Under the “add on” system, and depending on the nature of the case, your attorney can often resolve your issue without you having to be there in court.

The Municipal Court should not be confused with the Jackson County Circuit Court itself, which is located near the Municipal Court but hears different types of cases.

Read More:  Overland Park Municipal Court:  An Overview

Bank And Banking Crimes In Kansas And Missouri

Bank and banking crimes are dealt with under a variety of federal criminal statutes. We will discuss some of the major ones here.

Embezzlement and Misapplication (18 U.S.C. §§656 and 657). These two statutes are nearly the same, except that Sect. 656 deals with banks and Sect. 657 with credit unions and savings and loan associations. Under Sect. 657, an officer or employee of the institution may not “knowingly and willfully embezzle and misapply monies and funds” of the institution. There must also be an intent to injure and defraud the institution. Embezzlement and misapplication are separate offenses: the difference is that for embezzlement, the defendant must first have lawful possession of the funds alleged to have been appropriated for his own use. The statute is limited to acts done within a person’s official capacity, unless he or she used his position to harm the bank.

Generally, to act with intent to defraud usually means to cheat, deceive, or mislead, for the purpose of causing a financial loss to someone else. The defendant must have knowledge of what he or she is doing, rather than being merely careless or reckless. However, since direct proof of fraud is often not always available, an intent may be discerned from the facts and circumstances surrounding the loss of money. “Misapplication” is intended to cover situations where bank examiners are deceived. Another statute (18 U.S.C. §371 (bank conspiracy)) is often used with the offense of misapplication. Some examples of misapplication can be the following: bad loans, dummy loans, brokered loans, bond swapping, check kiting, collusion with loan officers in approving loans, manipulation of lending limits, and compensating balances. The defense of “good faith” is often used as a defense to embezzlement or misapplication, as it tends to defeat an accusation of an intent to defraud.

False Entries (18 U.S.C. §1105 and §1106). These sections prohibit bank insiders from making false entries in the records of a federally insured banking institution with the intent to injure or defraud the bank. The false entry should be over a material matter, not an inconsequential one. Here again there needs to be an intent to injure or defraud; that is, it is a specific intent crime. Defenses to this crime include accurate reporting, the fact that the false entry may have been immaterial or de minimis, or the fact that the reporting may have been ambiguous.

False Financial Statements (18 U.S.C. §1014). This section prohibits someone from making a false statement to a federal insured banking institution for the purpose of obtaining a loan or other extension of credit. It is generally intended to apply to situations where loan applications are falsified or materially false. Under this section, a person may not knowingly make a false statement or report, or overvalue any land, property, or security, for the purpose of influencing the decisions of a banking institution. The representations may not be implied representations; they must be true or false on their face. U.S. v. Kurlemann, 736 F.3d 438 (6th Cir. 2013). A defendant can generally prevail if he can show that what he or she said was the “literal truth.” U.S. v. Sarno, 73 F.3d 1470 (9th Cir. 1995). Normally, the government need not demonstrate that the insured institution actually relied on the fraud (note how this seems to be a lower standard than the civil standard of “reliance” for nondischargeability actions in bankruptcy court).

Fraud. (18 U.S.C. §1344). Bank fraud is knowingly executing or attempting to execute a scheme to defraud a financial institution. There is a split of authority in the federal circuits as to the details of the “knowledge” requirement. The Eleventh and Fifth Circuits require specific intent; the Second Circuit requires proof of intent to harm, but permits intent to be inferred; the Fourth and Seventh Circuits hold that a scheme or willful conduct is sufficient to show intent to defraud. The victim of the alleged fraud must be a federally insured institution. Good faith is also a defense. Section 1344 covers a wide variety of situations where fraud can be found: ATM (teller machine) misuse, false representations to banks, forgery, stolen checks, credit card fraud, mortgage fraud, and false statements to induce check cashing have all been found to fall under Section 1344.

Bribery (18 U.S.C. §215). A person may not give or promise anything of value to an officer of a financial institution with the intent to corruptly influence or reward that person. Similarly, under Section 215(a)(2), a banker cannot solicit or demand anything of value with the intent of being influenced in his capacity in the bank.

Read More:  Bankruptcy Crimes And Defenses

Drunk Driving Debts And Bankruptcy In Kansas And Missouri

Section 523(a) of the Bankruptcy Code deals with various types of nondischargeable debt.  On of the subsections of Section 523(a) addresses the matter of a debt for “death of personal injury caused by the debtor’s operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.”  11 U.S.C. §523(a)(9).  In other words, Section 523(a)(9) deals with certain types of debts arising from drunk driving.  While this type of debt is not common, it is important to spot it when it does arise.

The intent behind Section 523(a)(9) was to allow victims (or their families) of drunk driving crimes to pursue wrongful death or other civil actions against persons who may have committed drunk driving offenses.  Unlike some other nondischargeability provisions under Section 523(a), Section 523(a)(9) is “self-executing”, meaning that a victim creditor is not required to file an adversary proceeding to seek a determination of nondischargeability.  There is no requirement that the debtor actually be convicted of a DUI or DWI offense in state or municipal court.  A creditor seeking to use Section 523(a)(9) need only show that (1) the debtor was “intoxicated” within the meaning of state law; (2) the debtor was “operating” a motor vehicle or other type of vehicle while intoxicated; and (3) that the claim for personal injury or death resulted proximately from such conduct.

Despite the current climate of aggressive prosecution and enforcement of DUI and DWI offenses, the bankruptcy code construes exceptions to discharge strictly against creditors.  In other words, there is a presumption that debts should be discharged, and that a creditor seeking prevent this will have an uphill battle.  As far as Section 523(a)(9) is concerned, the burden is on the creditor to prove each and every element of nondischargeability by a “preponderance of the evidence.”  This is not an easy matter.  In Re Race, 198 B.R. 740 (W.D. Mo. 1996).

For the purposes of §523(a)(9), the most commonly encountered vehicle will of course be an automobile.  But motor boats also fall under this section, as well as airplanes and even snowmobiles.  In Re Race, 198 B.R. 740 (W.D. Mo 1996).  Incredibly, a bankruptcy court had to rule on whether a “horse and buggy” was considered to be a vehicle under §523(a)(9).  Not surprisingly, it ruled that it did not qualify as a vehicle.  In Re Schumucker, 409 B.R. 477 (N.D. IN 2007).

How, then, does the bankruptcy court determine whether the debtor’s operation of the vehicle was in violation of Section 523(a)(9)?  The court must apply state law, as a first matter.  Every state has its own requirements for what constitutes intoxication, and the bankruptcy court will defer to these standards.  In Re Spencer, 168 B.R. 142 (N.D. Tx, 1994).  The bankruptcy court must be convinced that the debtor was legally “intoxicated” under state law, and that the liability for the personal injuries resulted from such conduct.  If these state law issues have already been determined in another judicial proceeding, there is a good chance that the principles of res judicata and estoppel will preclude these issues from being tried over again.  This can be a slippery matter, however, because frequently in state or municipal court, actual judicial determinations on DUI/DWI issues may not have been made.

It is important to note that Section 523(a)(9) only applies to damages traceable to “personal injuries.”  In other words, drunk driving damages that may arise from damage to property, or from punitive damages awards, will not be covered under this section.  Thus there can arise the situation where the property damage debt is discharged, but the personal injury debt is not.  Regarding punitive civil damages, there are two different lines of reasoning that have developed.  Some courts have held that Section 523(a)(9) was intended to apply to debts directly resulting from personal injury; therefore, punitive damages from drunk driving personal injury claims would be nondischargeable.  In Re Dale, 199 B.R. 1014 (S.D. FL, 1995).

Other courts have ruled differently, holding that punitive damages do not have anything to do with personal injuries, and are therefore dischargeable.  In the rare situation where this type of debt comes up in a case, it will be important to probe into the circumstances of the incident, and to examine the nature of the claim against the debtor.  It is critical in these situations to examine in detail the nature of any civil judgment that may have been awarded against a bankruptcy debtor, in order to determine what (if anything) might be nondischargeable.

Read More:  Title Loans And Bankruptcy In Kansas City

Tax Crimes In Kansas And Missouri

Overland Park Criminal Defense Attorney

There are numerous different criminal statutes in the Internal Revenue Code dealing with evasions, false statements, and omissions in the filing of tax returns.  While civil attempts to collect tax debts are encountered relatively frequently (liens, garnishments, etc.), criminal prosecutions for tax matters are rare.

The IRS does have a criminal investigations unit which handles such matters, and if a decision to prosecute is made, the file is normally referred to the Justice Department.  Some possible indications that a civil audit may escalate into a criminal investigation may be:  a special agent joining the case, summonses being sent to third parties, or lengthy and multiple audit sessions.

The IRS has the ability to issues summonses to produce records and testimony.  Such a summons can be issued to any taxpayer.  This authority is limited; once a recommendation to prosecute is made to the Justice Department, this authority ends.

For a summons to be valid, it must show that the investigation is done for a legitimate purpose, that the inquiry is relevant and related to that purpose, that the IRS does not already have the information, and that proper procedures have been followed.  U.S. v. Powell, 379 U.S. 48 (1964).  Failure to respond to a summons may be grounds for a contempt action in federal district court.  A taxpayer may assert various privileges and defenses on his or her behalf.

When the IRS’s criminal investigations unit forwards a case to the district counsel, an invitation to a conference may be extended to the taxpayer or his counsel.  After the conference, further decisions may be made on the file regarding whether to prosecute.  When the taxpayer’s counsel authenticates a written instrument, there is some authority that admissions made by counsel during conferences may constitute vicarious admissions which may be used against the taxpayer.  U.S. v. O’Connor, 433 F.2d 752 (1st Cir. 1970).

The mental state required in criminal tax cases is one of specific intent:  the defendant must have acted willfully, not recklessly or negligently.  The government must prove that a duty existed for the defendant to do something, and that the defendant intentionally and voluntarily violated that duty.  An honest misunderstanding of one’s duties (e.g., relying on the advice of a professional) is a defense.  Some of the possible tax crimes are the following:

  • Tax evasion (I.R.C. Section 7201).  The elements of this offense are that a tax payment was due, that the defendant made an affirmative act to evade or defeat the tax, and that he acted willfully.
  • Willful failure to collect or pay over tax (I.R.C. Section 7202).  This provision was designed to cover situations where employers must withhold and pay sums withheld by employees.  Again, willfulness is an element of the offense here.
  • Willful failure to file return, pay tax, or supply information (I.R.C. Section 7203).  This provision was intended to apply to situations where persons are required to keep records or supply information , and willfully fail to do so.
  • Other federal criminal tax offenses may be the following:
  • Fraudulent statement or failure to make statement to employer (I.R.C. Section 7204)
  • Fraudulent withholding exemption (I.R.C. Section 7205)
  • Fraud and false statements (I.R.C. Section 7206)
  • Fraudulent returns or other documents (I.R.C. Section 7207)
  • Counterfeiting or reuse (I.R.C. Section 7208)
  • Unauthorized use or sale of stamps (I.R.C. Section 7209)
  • Attempts to interfere with the internal revenue laws (I.R.C. Section 7212)
  • Unauthorized disclosure of information (I.R.C. Section 7213)

It should also be noted that there are provisions which prevent officers and employees of the U.S. government from committing unauthorized acts with regard to tax collection.  Under I.R.C. Section 7214, agents of the United States cannot:  knowingly extort or oppress under color of law; knowingly demand a greater sum than that allowed by law; fail to perform his or her duties with intent to defeat the application of tax laws; and cannot conspire with any person to defraud the United States.

There is a variety of defenses that can be used in tax cases.  Commonly encountered defenses in tax cases are:  invoking double jeopardy, invoking the privilege against self-incrimination, good faith reliance, voluntary disclosure, and selective prosecution.  Other defenses may be relevant, of course, depending on the facts and circumstances of each case.  It is also possible, in some cases, for other persons to be liable beyond the taxpayer, such as accountants, corporations, or other third parties.

Various methods have been employed in attempting to trace income in tax cases.  These methods may include the “net worth” method, and the “deposits and expenditures” method.  The government is not normally required to reconstitute a taxpayer’s income with perfect precision, but it must establish  the all of the elements of the offense under which a taxpayer is charged.

Read More:  Immigration Crimes

Computer Fraud And Computer Crimes In Kansas And Missouri

Congress centralized computer crimes under one statute in 1984 with the passage of the “Counterfeit Access Device and Computer Fraud and Abuse Act.” The intention was to have a tool to prosecute computer-related crimes under the rubric of one statute.

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Immigration Crimes In Kansas And Missouri

In 1952, Congress passed the McCarran-Walter Act, the so-called “Immigration and Nationality Act” (INA), which has been codified into law under 8 U.S.C. §1101 to 1503. There are many other immigration-related statutory provisions (and more likely on the way soon), but modern immigration legislation derives in large part from the legislative work that was done in the 1950s. When discussing immigration crimes, there is a clear distinction between what happens at the state level and what happens at the federal level. At the state level, enforcement efforts often focus on criminal complaints or indictments against undocumented immigrants for crimes associated with unlawful residence: forgery, identity theft, fraudulent use of credit devices, and other related state-level crimes.

At the federal level, different crimes are often the focus of prosecutorial efforts. Smuggling, transporting, or harboring aliens are distinct federal crimes, and will be discussed separately.  Under 8 U.S.C. §1324(a), it is unlawful for anyone to:

(a) bring an alien into the United States,
(b) transport or harbor an alien,
(c ) encourage an alien to enter the United States, or
(d) to conspire to commit any of the preceding offenses.

Illegal entry is governed by 8 U.S.C. §1325. Under §1325(a), any alien who:
(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or
(2) eludes examination or inspection by immigration officers, or
(3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact;

shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

Under 8 U.S.C. §1324(b), civil penalties can be assessed for violations of immigration provisions:
Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of—
(1) at least $50 and not more than $250 for each such entry (or attempted entry); or
(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

Under §1325(c ), “marriage fraud” is criminalized; it is defined as “knowingly” entering into a marriage for the purpose of evading any provision of the immigration laws. And §1325(d) criminalizes “immigration-related entrepreneurship fraud”, which is defined as “knowingly” establishing a commercial enterprise for the purpose of evading the immigration laws.

Smuggling. Smuggling is defined as knowingly bringing or attempting to bring an alien into the United States at a non-designated place of entry. Even if a person has received “prior official authorization” to come to the United States, a crime may be alleged if the person is brought in at a non-designated place of entry.

Transporting. Anyone who “transports, or moves or attempts to transport or move…[an] alien within the United States by means of transportation or otherwise, furtherance of such violation of law” may be in violation of 8 U.S.C. §1324(a)(1). The key consideration in a transportation offense is the “reason” behind the transportation. U.S. v. Moreno, 561 F.2d 1321, 1323 (9th Cir. 1977). Courts have held, for example, that it is not a crime to transport known illegal aliens between job sites in the ordinary and required course of the defendant’s employment, or to transport aliens for job searches in another state. U.S. v. Moreno-Duque, 718 F.Supp. 254 (D. Vt. 1989); U.S. v. 1982 Ford Pick-Up, 873 F.2d 947 (6th Cir. 1989). However, some courts have held that transportation for work or employment reasons is not a defense to the crime of transportation of undocumented aliens. U.S. v. Shaddix, 693 F.2d 1135, 1138 (5th Cir. 1982).

Harboring. Harboring an alien is covered under §1324(a)(1)(A)(iii). It basically criminalizes any attempt to shield or protect an unlawful alien from detection from the authorities.
Hiring. It is unlawful to recruit or hire someone who is an alien. §1324(a)(1)(A). The burden of compliance is placed squarely on the shoulders of an employer. Failure to comply with the eligibility verification process is itself a crime. Evidence of violations of these provisions can be found, according to §1324, as follows. The applicable section reads:

In determining whether a violation of subsection (a) of this section has occurred, any of the following shall be prima facie evidence that an alien involved in the alleged violation had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law:
(A) Records of any judicial or administrative proceeding in which that alien’s status was an issue and in which it was determined that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(B) Official records of the Service or of the Department of State showing that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(C) Testimony, by an immigration officer having personal knowledge of the facts concerning that alien’s status, that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.

Due to some dispute between state and federal authorities over who has the enforcement authority in these matters, a provision was inserted in Section 1324 specifying who has the authority to make arrests: “No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.”

Forfeiture provisions round out Section 1324, making it clear that asset forfeiture can come into play when violations of these provisions are found. As Congress continues to amend, modify, and add to the complex rules surrounding immigration, it is not unreasonable to expect significant changes in immigration crimes and enforcement in the years ahead.

Read More:  Identity Theft And Identity Fraud Crimes In Kansas And Missouri