Articles Posted in Federal Criminal Law

sniper_rifle.jpgThe base offense level for a prohibited person in possession of a firearm is relatively low. Advisory Sentencing Guideline 2k2.1 calls for a base offense level of 14 if a person is prohibited by law from firearm possession, which along with a 3 point reduction for acceptance of responsibility yields an advisory base offense level of 11. With no criminal history (category I), that is an advisory guidelines range of 8-14 months in the federal penitentiary.

A common guidelines enhancement, however, is a 4 point enhancement for possession of the firearm “in connection” with another felony offense, which is large for an offense conduct enhancement. Courts have interpreted this enhancement very broadly, so if one were possessing felony drugs at the time of the firearm offense, or committing felony evading arrest, or committing any other felony offense in which a firearm would conceivably contribute, this enhancement applies. These 4 points alone could bump an 8-14 sentence to an 18-24 month sentence, more than doubling the lower end of the guidelines. These 4 points are even more costly for people with higher guidelines ranges.

Also, the price of poker goes up higher if you have one or two previous convictions for a “controlled substance offense” (drug delivery or possession with intent to deliver etc), or a “crime of violence” (a crime involving the use, attempted use or threatened use of physical force, or burglary of a dwelling, arson, extortion, uses explosives, or other conduct that presents serious risk of physical injury). One prior conviction for a crime of violence or controlled substance offense raises the base offense level to 20. Assuming a criminal history II category, although its likely to be III or higher, this yields a base sentencing range of 27-33 months, 30-37 months if category 3. (Assuming acceptance of responsibility points). Two prior convictions for a crime of violence and/or a controlled substance offense raises the base offense level to 24. At criminal history level III that yields a range of 46-57 months, 57-71 months for a category IV, and 70-87 months for a category V.

glock.jpgThe “prohibited person” statute under federal law, defining who can possess a firearm and who cannot, is pretty straight forward. You will be surprised to learn the many classes of people who cannot possess a firearm, not just convicted felons. If you meet one of these categories, it is a federal felony to possess a firearm or ammunition. I usually don’t copy and paste whole statutes, but the statutes are pretty straight forward. 18 U.S.C. 922(g) states, with the assistance of my commentary in caps and parentheses, that:

(g) It shall be unlawful for any person–

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (A CONVICTED FELON)

sam-hurd-federal-drug-charges-121511.jpgMr. Hurd will have a tougher time in his detention hearing and his case because, by his own statements reported to the media, he is the man in charge of his conspiracy. The primo hombre, so to speak. The Federal sentencing scheme punishes this as a “leadership role,” which normally increases the amount of time one does in the penitentiary and can block one of the few four-leaf clovers in the Sentencing Guidelines, the “safety valve.” (It was reported that Mr. Hurd stated “…his co-conspirator is in charge of doing the majority of the deals as HURD focuses on the ‘higher-end’ deals. HURD subsequently inquired if the UCA (undercover operative) and the CI (confidential informant involved in the case) could provide him with Mexican cellular telephones, as HURD believed that law enforcement did not have the capability of ‘listening’ to Mexican telephones.”) I have no knowledge of Mexican cellular phones, and won’t attempt to go there.

The “safety valve” Guidelines provision allows a person to be sentenced to their actual guideline range, despite the mandatory minimums, if they meet certain criteria – i.e. no gun was involved and nobody got hurt, the person has virtually no previous criminal history, did not act in a leadership role, the person offers to speak with the government about all information you know about the case (an offer is enough, even if the government doesn’t take you up on it). This can make a big difference if the advisory Guidelines Range, which judges are not required to follow anymore but do normally follow, comes out around seven years. The “safety valve” allows the judge to go below the ten year minimum and sentence a person to seven years rather than being obligated by statute to sentence him to the ten year minimum.

The trump-card I am waiting to see the Feds play is them moving his case to the Eastern District of Texas, Sherman Division. Since acts in his case occurred in Dallas and likely moved through the Eastern District to Chicago, the Feds could (like they do in most cases), forum shop Mr. Hurd to the Eastern District, where it is far more likely that he would get an all-white jury on his case. However, I bet the Northern District of Texas keeps his case so they can look like they are doing something relative to the backlogged dockets of the Eastern District, a choice forum for prosecution if there ever was one.

sam-hurd.jpgWide receiver Sam Hurd, a well-liked player whose hard work earned him a roster spot on the Dallas Cowboys a few years ago, and eventually landed him a $5.1 million contract with the Chicago Bears, decided to risk it all by investing his money not in the fickle stock market but in cocaine and marijuana. Now, according to the amounts of drugs being discussed on Yahoo and the Dallas Morning News, Mr. Hurd is facing ten to life in the Federal penitentiary for conspiring to distribute five kilograms or more of cocaine in the Northern District of Texas and elsewhere. The five kilograms of cocaine is an important amount as it triggers the mandatory minimum of ten years imprisonment (and up to life).

Mr. Hurd will most likely face a detention hearing in the next few days, at which he will almost certainly be detained due to the (relatively) large drug amounts. In Federal court, it is presumed that if you are dealing with an amount of drugs large enough to trigger the mandatory minimum statutes, that you are a danger to society and bond will be denied. This presumption can be rebutted by clear and convincing evidence to the contrary, which occasionally happens but it is the exception not the rule.

marijuana.jpgHow do you or a loved one end up in the Eastern District of Texas, particularly the Sherman division, sitting in the Fannin County Jail in Bonham, Texas on a drug conspiracy charge? Well, the Sherman Division (with courthouses in Sherman and Plano, Texas) is a choice forum for the United States Department of Justice. They are much more likely to get a conviction in the Sherman Division of the Eastern District of Texas than in Dallas, Texas, located in the Northern District of Texas. The Sherman Division is much more white, conservative and affluent than Dallas. The makeup of jury pools is overwhelmingly white (about 85%, compared to less than 50% in Dallas), and the Sherman Division venue contains Collin and Denton counties, wealthy suburban counties in which all persons are more likely to be more white collar and conservative.

To bring a conspiracy case whose acts occur mostly in Dallas into the Sherman Division of the Eastern District of Texas, some connection to the Eastern District (but not a whole lot) is required. The law of venue requires that an agreement be made in, or an “overt act” take place in or through the Eastern District. Venue is an element of the offense, meaning that at trial the Government must prove venue in the Eastern District of Texas beyond a reasonable doubt.

However, only one overt act in the conspiracy must take place in the Eastern District of Texas for venue to lie here for the entire conspiracy. That is how a person who may have never been north of Dallas or Tarrant County has landed in an Eastern District of Texas conspiracy case and now sits in Bonham, Texas in the Fannin County Jail awaiting trial. It’s called forum shopping, and it isn’t limited to plaintiff’s lawyers. However, when boatloads of Hispanics and African Americans are forum shopped from a minority-rich to an extremely conservative white venue, the ends of justice should require more than a distant, tangential act to bring them before a more foreign venue. Federal statutes and Department of Justice policy provide little relief to such activity, so the case will to a virtual certainly be tried in the Eastern District.

drugs and guns.jpgFederal prosecutors use the power of “conspiracy” prosecutions to obtain convictions all over the United States without the burden of proving that an individual committed the actual, substantive crime. Many people finding themselves charged in kilogram or multi-kilogram conspiracies although they may have simply been innocent or a user (innocent of conspiring to distribute), aggravated user (selling enough to support a habit), street dealer or trafficker. To understand conspiracy law, the best place to start with is the Fifth Circuit Court of Appeals pattern jury charge. If you go to trial in the Eastern District of Texas federal court on a drug conspiracy indictment, the jury will be given the following instruction:

Title 21, United States Code, Section 846, makes it a crime for anyone to conspire with someone else to commit a violation of certain controlled substances laws of the United States. In this case, the defendant is charged with conspiring to (distribute controlled substance(s), namely ____ or possess with the intent to distribute controlled substance(s), namely ____.)

A “conspiracy” is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of “partnership in crime” in which each member becomes the agent of every other member.

As Rick James said, “cocaine’s a helluva drug.” Federal crack-cocaine defendants can tell you it is much more dangerous than even Rick knows.

Crack-cocaine is the most harshly treated drug in the Federal criminal system. However, the Fair Sentencing Act of 2010Cocaine.jpg modified the super-unjust 100-1 crack-to-powder ratio for Federal guidelines and mandatory minimum sentencing purposes. Under the old law, drafted in the 80s during the so-called “crack cocaine epidemic,” the drug known as the cheap inner-city minority drug was punished by law 100 times more harshly than powder cocaine, known as a white, upscale drug. So, a person possessing or delivering 5 grams of crack-cocaine would face the same 5 year mandatory minimum sentence as a defendant possessing or delivering 500 grams of powder cocaine.

However, the new law reduces the crack-to-powder ratio from 100-1 to 28-1, so only about a fourth as racist as before. There is no evidence to my knowledge, and I cannot conceive, that crack is 28 times as addicting as powder. Twice, maybe three times is possible because Crack is a more pure form of the drug. But, crack cocaine defendants in the Eastern District of Texas, primarily minorities forum-shopped from the Dallas Division to the very Conservative Sherman Division, can sleep slightly better at night. The act was silent on whether it applies retroactively, i.e. to people already sentenced under the old laws.

48557_the_crooked_e.jpgThe Supreme Court finally chimed in this summer on the appropriateness of having the criminal trial of Enron badboys Ken Lay and Jeffrey Skilling in Houston, Texas, where most of the population had been effected by the collapse of the corporate giant. We all knew what happened to Enron, and we all blamed Lay and Skilling for its demise. After all, they were in charge when it went from boom to bust, right?

I moved to Houston shortly after Enron fell, and its demise was the talk and tragedy of the town. The media coverage saturated the city and Lay and Skilling were public enemy numbers 1 and 1A. Prior to their criminal trial, their lawyers spent around $1 million on surveys of Houstonians which revealed that Lay and Skilling ranked somewhere below Satan in the minds of most people in the prospective jury pool.

Nonetheless, the lynch mob/jury panel was brought into Federal Court in Houston so they could tell the Federal judge whether or not they could be “fair and impartial” enough to sit on their trial. Even though they thought Lay and Skilling guilty as hell, they could “set aside those feelings” and judge the case on the evidence. As jury consultant Robert Hirschorn said, the judge in that case spent 5 hours rehabilitating the jurors (getting presumptively disqualified jurors to correct their views on the record).