Category Archives: Criminal Defense Attorney Kansas City

Computer-Based Pornography Cases In Kansas And Missouri

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Internet-based prosecutions for child pornography have skyrocketed since 1997.  Simply stated, internet obscenity cases have skyrocketed.  From 1997 to 2004, there was a 422% increase in federal cases of this type.  The numbers have grown steadily since then.  In 2011, prosecutions were up by 40% since 2006, with an increasing number of more than 9,000 active cases.

Similar numbers have been observed for state-level cases.  We will discuss the background, nature, and defense of computer-based child pornography cases to better understand this expanding and serious area of federal and state prosecution.  Law enforcement agencies have adopted the latest state-of-the art technologies in devoting resources to this area, and deploy their resources accordingly.

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Bankruptcy Crimes And Defenses

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In extreme cases of alleged violations of federal bankruptcy laws, criminal accusations can arise.  Bankruptcy crimes are quite rare in practice.  There is a strong presumption that issues arising in bankruptcy cases are best handled by bankruptcy judges and trustees as civil matters.  In rare situations, criminal investigations and accusations do happen, and we will here discuss some of the possible criminal charges that have historically been used by federal prosecutors.  Bankruptcy crimes typically fall within one or more of the following types:  knowingly or fraudulently concealing property, making false oaths or accounts, fraudulently doctoring evidence, or withholding documents.  We will conclude this article with a general discussion of successful defenses to accusations of a bankruptcy crime.

Fraudulent Concealment Or Transfers.  Bankruptcy crimes are described in the subparts of 18 U.S.C.A. §152.  Fraudulent concealment or transfer of assets is therefore criminally governed by 18 U.S.C.A. §152.  The requisite mental state here is one of “specific intent”:  it is necessary to prove that the action was taken “knowingly” and “fraudulently.”  This is often difficult to prove.  “Fraudulently” means making a false representation of a material fact, with knowledge of its falsity and with the intent to deceive.  U.S. v. Berry, 678 F.2d 856, 866 (10th Cir. 1982).  Intent to deceive is different from intent to defraud.  “Knowingly” means with knowledge, and not due to some mistake or accident.  Such knowledge can be inferred, in some situations, from the surrounding circumstances.  U.S. v. West, 22 F.3d 586 (5th Cir. 1994).

Debtors have a duty to disclose all property in their case, including “all legal and equitable interests.”  Concealment does not require physical “hiding” of the asset.  Concealment can be found when someone deliberately prevents discovery of an asset, or withholds knowledge of it.  U.S. v. Weinstein, 834 F.2d 1454, 1426 (9th Cir. 1987).  Concealment can also be the transfer of title coupled with the benefits of ownership.  In Re Bradley, 501 F.3d 421, 434 (5th Cir. 2007).  Section 152(1) of the 18 U.S.C.A. deals with concealing property from the bankruptcy trustee, while Section 152(7) involves deliberate concealment before a case is filed.  The act of concealment may continue for the entire period of concealment to avoid the bar of the statute of limitations.  U.S. v. Stein, 233 F.3d 6 (1st Cir., 2000).  In the Stein case just cited, for example, the bankruptcy was filed in 1990, but the federal indictment was not handed down until 1998.

Not all retaining of assets involves improper concealment.  There is a very important distinction between a transfer that relinquishes one of all interest in property, and a transfer that does not.  In Re Olivier, 819 F.2d 550, 553 (5th Cir. 1987).  If the transfer is absolute, it may not be an act of concealment, even if the creditors have been defrauded.  This distinction is important, as it bears directly on the statutes of limitations for the criminal prosecution of a transfer offense.

False Oaths.  A false oath is basically a false statement or omission in the debtor’s schedules, or a false statement made by a defendant under oath in any part of the bankruptcy proceedings.  The false oath must be made on a material issue.  In other words, a false statement on a minor issue will not suffice.  Section 152(4) of 18 U.S.C.A. deals with false claims.  A false claim is willfully and knowingly participating in the filing of a false claim for the purpose of defrauding the bankruptcy court and the other creditors in the case.

False Treatment Of Documents.  False treatment of documents is dealt with under 18 U.S.C.A. §152(8).  This would arise in cases where an individual falsifies or makes a false entry related to a document related to the affairs of a debtor.  Significantly, a court has held that false statements in disclosure statements and plans of reorganization are not considered knowing and fraudulent false entries under §152(8).  This is so because disclosure statements and plans of reorganization do not relate to a debtor’s financial recordkeeping.  U.S. v. McDaniel, 2006 WL 839095 (W.D. Mich. 2006).  Section 152(9) deals with situations where an individual fraudulently withholds documents from the trustee or the court after the filing of a bankruptcy case.

Defenses To Accusations Of Bankruptcy Crimes.  Most (but not all) defenses to bankruptcy crimes in general relate to (1) lack of materiality; (2) good faith; (3) mistake of law or fact; or (4) entrapment by estoppel.  This list is not exhaustive.  A defendant has the full range of defenses available to him under common law or case law, provided the judge allows it to be included in jury instructions.  “Lack of materiality” boils down to stating that even though a false statement was made, it was pertaining to an immaterial issue.  “Good faith” is the assertion that a defendant was acting without any culpable mental state, or may have been relying on advice from a spouse or governmental agency.  Mistake defenses are similar to the “entrapment by estoppel” defense.  In entrapment by estoppel, a defendant asserts that he or she was relying on the advice of some governmental agency, whose advice turned out to be incorrect.

Criminal charges involving bankruptcy crimes are rare, and are reserved for unusual or extreme situations.  However, if such an accusation is made, it is critical to have legal counsel who is experienced in both bankruptcy law and federal criminal defense.  At Phillips & Thomas LLC, we are uniquely placed in this regard.  Our practice focuses solely on these two areas of law.  When an issues arises that involves both the Bankruptcy Code and the federal criminal statutes, we are able to bring our more than thirty years of collective experience in these two complex areas of law to deal with the problem decisively and successfully.

Read More:  White Collar And Financial Crimes

Criminal Conspiracy Cases In Kansas And Missouri

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Overland Park Criminal Attorney

In the United States, the modern laws related to criminal conspiracy began to take shape in the late nineteenth century.  In the most basic definition, conspiracy is an agreement between two or more persons formed for the purpose of committing a crime.  The purpose behind criminalizing conspiracy was twofold:  to exercise some control over “inchoate” (i.e., unripe or incomplete) activities, and to punish group behavior that had crime as its object.

The crime of conspiracy is the illegitimate agreement.  Although simple to define, the offense presents many difficult problems in further analysis.  What is an “agreement”?  At what point does it begin?  What happens if there are multiple agreements over time, or if a person withdraws from the agreement?

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Using Intoxication As A Defense In Kansas And Missouri

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It sometimes happens that accusations of crimes happen when one or more parties are under the influence of drugs or alcohol.  Sometimes this intoxication is voluntary (i.e., a person knowingly and deliberately consumed intoxicants) and sometimes it is involuntary (i.e., a person was given intoxicants without his or her knowledge).

Suppose, for example, a person attends a party and drinks punch that has been “spiked.”  He then commits a crime at the party.  When is intoxication (voluntary or involuntary) a defense to a criminal charge?  What are the rules?  The answers can get complicated, depending on a variety of factors.  We discuss the basic outlines here.

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Entrapment As A Defense In Kansas And Missouri

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Entrapment is a defense available to defendants as a remedy for over-zealous prosecutions.  The defense is defined slightly differently in Kansas and Missouri.  In Missouri, entrapment is defined in R.SMo Section 562.066:

1.  The commission of acts which would otherwise constitute an offense is not criminal if the actor engaged in the prescribed conduct because he was entrapped by a law enforcement officer or a person acting in cooperation with such an officer.

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Identity Theft And Identity Fraud Crimes In Kansas And Missouri

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Identity theft has been a growing problem for years.  Factors driving the increased prosecution of these types of cases is greater awareness of protecting personal information, the increasing use of identity theft in furtherance of undocumented labor, and the improved electronic security systems that are being implemented in the public and private sectors.

Both Kansas and Missouri have a specific set of statutes that are used to prosecute identity theft crimes, which are similar in some ways but different in others.  There are also federal criminal penalties for identity theft.

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Violent Crimes in Kansas and Missouri

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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.

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Property Crimes

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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.

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Domestic Battery Charges

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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.

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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

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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