Articles Posted in Federal Criminal Law

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).

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