Monthly Archives: September 2014

Credit Card Fraud in Mississippi

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§ 97-19-31. Credit cards; use of credit numbers or other credit device to obtain credit, goods, property or services.

Mississippi Statutes
Title 97. CRIMES
Chapter 19. FALSE PRETENSES AND CHEATS
Current through 2014 Second Extraordinary Session
§ 97-19-31. Credit cards; use of credit numbers or other credit device to obtain credit, goods, property or services

(1) It shall be unlawful for any person knowingly to obtain or attempt to obtain credit, or to purchase or attempt to purchase any goods, property or service, by the use of any false, fictitious, counterfeit or expired telephone number, credit number or other credit device, or by the use of any telephone number, credit number or other credit device of another without the authority of the person to whom such number or device was issued, or by the use of any telephone number, credit number or other credit device in any case where such number or device has been revoked and notice of revocation has been given to the person to whom issued.

(2) It shall be unlawful for any person to use or to assist another to use a credit number or other credit device in connection with any fraudulent scheme, means or method with intent to defraud the issuer of such credit number or other credit device.

(3) It shall be unlawful for any person to obtain or attempt to obtain by the use of any false or fraudulent scheme, device, means or method, telephone or telegraph service or the transmission of a message, signal or other communication by telephone or telegraph, or over telephone or telegraph facilities.

(4) The word “notice” as used in subsection (1) of this section shall be construed to include either notice given in person or notice given in writing to the person to whom the number or device was issued. The sending of a notice in writing personally signed by the issuer or his duly authorized agent or employee by registered or certified mail in the United States mail, duly stamped and addressed to such person at his last address known to the issuer, shall be prima facie evidence that such notice was duly received.
(5) Any person who violates any provision of subsections (1), (2) or (3) of this section is guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than Fifty Dollars ($ 50.00) nor more than Five Hundred Dollars ($ 500.00) or imprisonment for not more than one (1) year, or by both such fine and imprisonment.

Child Support Guidelines

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Child support is generally awarded during a divorce, paternity, separate maintenance or custody action.  Mississippi child support statutes provide guidelines for noncustodial parents using the percentage of his or her adjusted gross income (gross income minus mandatory deductions) to determine payments.  The percentages are as follows:

[1] 14% for one child;
[2] 20% for two children;
[3] 22% for three children;
[4] 24% for four children; and,
[5] 26% for five or more children.

The statute presumes that the guidelines are correct for individuals with an adjusted gross yearly income between $5,000 and $50,000. The court may award an upward or downward adjustment from the guidelines based on expenses of the parents, the needs of the children, or other particular facts of the case.

In determining child support payments, the court will consider an individual’s gross income from all sources. Part time employment Income would likely be included in gross income in Mississippi if the work is consistent and reliable.

After calculating gross income, the individual’s gross income is adjusted for taxes, other mandatory deductions (i.e. state tax with holdings) and support for other children. Statutory percentages are then applied to the adjusted gross income to determine the correct amount of child support. The court may order a lower or higher payment based on certain criteria.  The court may order payment of expenses not covered by child support payments such as health insurance, uncovered medical expenses, and college expenses.

The obligation to pay child support continues in Mississippi until each child reaches the age twenty one (21) or is otherwise emancipated.

Perjury in Mississippi

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Title 97 – CRIMES
Chapter 9 – OFFENSES AFFECTING ADMINISTRATION OF JUSTICE
Article 1 – IN GENERAL
§ 97-9-59 – Perjury; definition

Universal Citation: MS Code § 97-9-59 (2013)

Every person who shall wilfully and corruptly swear, testify, or affirm falsely to any material matter under any oath, affirmation, or declaration legally administered in any matter, cause, or proceeding pending in any court of law or equity, or before any officer thereof, or in any case where an oath or affirmation is required by law or is necessary for the prosecution or defense of any private right or for the ends of public justice, or in any matter or proceeding before any tribunal or officer created by the Constitution or by law, or where any oath may be lawfully required by any judicial, executive, or administrative officer, shall be guilty of perjury, and shall not thereafter be received as a witness to be sworn in any matter or cause whatever, until the judgment against him be reversed.

Perjury is the deliberate misrepresentation of a  “material matter,” in a legal proceeding after having taken an oath to tell the truth.   A “material matter,” is a matter that is relevant to the case being tried.  If you are testifying about a crime, the false statement must be relevant to that crime.

Perjury may be committed in criminal cases, civil cases, or “in any case where an oath or affirmation is required by law . . . .”  This includes making a misrepresentation on an affidavit or sworn statement given to law enforcement.  In order to be convicted of perjury, two witnesses must testify to the truth of the matter about which you swore falsely, or at least one witness must testify, along with corroborating circumstances.

The penalties for perjury can be severe.  If you are convicted of perjury in a capital or felony offense, you may be imprisoned for not less than ten years.  In other cases, sentencing can include imprisonment for a term of no more than ten years.

Conviction for the “subornation” of perjury may also lead to imprisonment.  Subornation means aiding or causing another to make material misrepresentations for you in a case, matter, or proceeding.  Conviction for the subornation of perjury can include up to ten years imprisonment.

Possession of a Stolen Firearm

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§ 97-37-35. Stolen firearms; possession, receipt, acquisition or disposal; offense; punishment.

 (1)  It is unlawful for any person knowingly or intentionally to possess, receive, retain, acquire or obtain possession or dispose of a stolen firearm or attempt to possess, receive, retain, acquire or obtain possession or dispose of a stolen firearm.

(2)  It is unlawful for any person knowingly or intentionally to sell, deliver or transfer a stolen firearm or attempt to sell, deliver or transfer a stolen firearm.

(3)  Any person convicted of violating this section shall be guilty of a felony and shall be punished as follows:

(a) For the first conviction, punishment by commitment to the Department of Corrections for five (5) years;

(b) For the second and subsequent convictions, the offense shall be considered trafficking in stolen firearms punishable by commitment to the Department of Corrections for not less than fifteen (15) years.

(c) For a conviction where the offender possesses two (2) or more stolen firearms, the offense shall be considered trafficking in stolen firearms punishable by commitment to the Department of Corrections for not less than fifteen (15) years.

(4)  Any person who commits or attempts to commit any other crime while in possession of a stolen firearm shall be guilty of a separate felony of possession of a stolen firearm under this section and, upon conviction thereof, shall be punished by commitment to the Department of Corrections for five (5) years, such term to run consecutively and not concurrently with any other sentence of incarceration.

Forfeiture of Property After Drug Arrest

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Under Mississippi’s Uniform Controlled Substances Law, all aircraft, vehicles and vessels that are used, or intended to be used, to transport illegally possessed or illegally manufactured controlled substances that are in violation of Article 5 of Chapter 29 (drugs and controlled substances).  Miss. Code Ann. §§ 41-29-153, 41-29-176 thru 179.

Prior to seizure, the owner is entitled to notice that his property will be seized.  The notice should specifically describe what property is to be seized.  Any property with a value less than ten thousand dollars ($10,000) requires that the seizing agency:

  1. Provide notice of the intent to forfeit the seized property. This notice must be served on the owner in accordance with the Mississippi Rules of Civil Procedure..
  2. If notice cannot be served because of refusal, failure to claim, insufficient address or for any other reason, the agency must publish the notice in a newspaper of general circulation in the county that the property was seized. Notice must last for three consecutive weeks, at least once per week.
  3. The notice must contain the following details:
    1. A description of the seized property;
    2. The approximate value of the property;
    3. The date of the seizure and the place of the seizure;
    4. The connection between the property and the violation;
    5. Instructions providing how one should file for judicial review (protesting the seizure); and,
    6. A statement that the property will be forfeited if judicial review is not timely filed.
  4. The agency conducting the seizure has thirty days from the date of seizure to commence this proceeding or the property is to be returned to the following:
    1. The owner of the property, if address is known;
    2. Any secured party with a registered lien or filed financing statement;
    3. Any bona fide lienholder or secured party;
    4. Any holder of a mortgage, deed of trust, lien or encumbrance if the property is real estate; and,
    5. Any person in possession of the seized property that is subject to the petition at the time that it was seized.

Once the court of jurisdiction (usually circuit court) has determined that the agency’s notice requirements have been complied with, a copy of the petition is to be served upon all interested parties.

If a determination is made that an individual other than the person in possession at time of seizure is the owner or holds any lien or interest, the seizing agency must identify that individual in the petition of forfeiture and serve that person in accordance with the Mississippi Rues of Civil Procedure. If the owner of the property cannot be located and served with the forfeiture petition or if no person was in possession of the forfeited property, the seizing agency must file an affidavit stating such circumstances with the court.

If any individual asserting a right or interest in the property shows that their interest is greater than or equal to the present value of the property, the court must order the property released to that party. If the interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall forfeit the property to the seizing agency.

The owner of seized property has thirty days after service of process in which to file an answer. If the property owner fails to file an answer, the court will hear evidence that the property is subject to forfeiture and forfeit the property to the seizing agency.

If an answer is filed, a forfeiture hearing will be set within thirty (30) days of filing the answer.  The court may postpone the hearing to a date beyond the time any criminal action is pending against the property owner. The burden is on the seizing agency to prove that the property is subject to forfeiture. The standard of proof is by a preponderance of the evidence.  If the property owner does not file an answer, the petition for forfeiture will be allowed into evidence and will be prima facie evidence that the property is subject to forfeiture.

Any person or entity claiming an interest in the property may prove such right or interest to be bona fide and created without knowledge or consent that the property was to be used in a manner to cause the property to be subject to the forfeiture.  If an owner of property can prove by a preponderance of the evidence that she had no knowledge of, or did not consent to, the use of such property in a manner that made it subject to forfeiture, forfeiture will be denied.   However, Mississippi law places the burden of proof on the seizing agency to show that the owner had knowledge that the property was being used for illegal purpose.

Possession of Actual Methamphetamine With Intent to Distribute

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A possession charge can be based on actual or “constructive” possession of a controlled substance. A defendant may be in “constructive possession” even if the defendant doesn’t possess the drugs on their person.  If the defendant had access and control over the place where the substance was found then the defendant may be arrested for possession. The government does not have to actually prove that someone is using a controlled substance in order to charge them with possession. The theory of constructive possession is often used when illegal drugs are discovered in a car during a traffic stop or the home of a defendant.

If the substance amount exceeds a certain amount, the defendant can face distribution, trafficking, or manufacturing charges.

To prove an intent to sell, federal prosecutors consider a variety of factors including the following:

1. The quantity of Meth found;

2. How the Meth is packaged

3. How much money is found near the Meth or in the possession of the defendant;

4. The absence of paraphernalia suggesting that the Meth was for personal use.

5. Financial records showing Meth-related transactions

To be found guilty of possession of methamphetamine with intent to distribute, the government must prove the following elements beyond a reasonable doubt:

First: That defendant possessed a mixture or substance containing a controlled substance;

Second: That the defendant possessed the controlled substance knowingly or intentionally;

Third: That defendant intended to manufacture or distribute the controlled substance; and

Fourth: That the controlled substance was methamphetamine.

6.21.841A Controlled Substances – Possession with Intent to Distribute (21 U.S.C. § 841(a) 

Criminal Conspiracy

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Conspiracy is generally described as a criminal partnership wherein two or more persons agree to commit one or more crimes. While conspiracy is a crime to do something unlawful; the crime agreed upon does not have to be committed.

A formal agreement among the conspirators is not necessary to prove that a conspiracy took place.  Nor must the conspirators have agreed on each detail of the conspiracy. Merely meeting, discussing every day matters, acting in similar ways, or even assisting one another is insufficient to prove conspiracy. It must be shown that a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of the defendants agreeing as to the crime which they agreed to commit.

An individual becomes a conspirator by willfully participating in the illegal scheme with the intent to advance or further some object or purpose of the conspiracy.  This is true even if the individual does not possess full knowledge of all the details of the conspiracy. Additionally, one who willfully participates in an existing conspiracy is as guilty as the original conspirators. However, one who posses no knowledge of a conspiracy, but happens to behave in a way which furthers some object or purpose of the conspiracy, does not become a conspirator. Also, a person does not become a conspirator simply by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.

An overt act in and of it itself does not have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.  The government must prove beyond reasonable doubt that (1) there was an agreement among two or more people to violate a federal drug law, (2) knowledge of the the scheme and an intent to join it, and (3) voluntary participation in the alleged conspiracy (United States v. Turner, 319 F.3d 716 (5th Cir. 2003)).  The statute is very broad and allows proof based on circumstantial evidence of an illicit association. (Id.)

3rd Offense DUI

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If found guilty of a third or subsequent driving under the influence charge, the following sentences and penalties are applied:

  • fine of not less than $2000.00, nor more than $5000.00 (plus court costs)
  • imprisonment for not less than one year nor more than five years
  • suspension of driver’s license and driving privileges for five years (no possibility of hardship license)
  • vehicle seizure and possible forfeiture
  • ignition interlock following license reinstatement

If you are charged with a 3rd offense DUI, you will be able to drive only under a restricted interlock ignition driver’s license for 3 years following your release from incarceration. You will then be ineligible for an unrestricted license for 3 years.
Also, a person convicted of a 2nd or subsequent violation shall receive an in-depth
diagnostic assessment.  If it is determined that the defendant has a drug/alcohol problem, he will be required to complete an approved treatment program.

Mississippi Statute Annotated § 63-11-49 holds that when a vehicle is seized for a third or subsequent DUI, the arresting officer shall impound the vehicle and the vehicle shall be held as evidence until a court of competent jurisdiction makes a final disposition of the case and the vehicle may be forfeited by the administrative forfeiture procedures provided for in this section upon final disposition as provided in Section 63-11-30(2)(c) .

Within thirty days of such an arrest, the person charged may petition the court for the return of the vehicle.

Federal Indictments

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A criminal case in federal court is initiated with an indictment.  An indictment is a formal accusation by the federal government that an individual committed a crime.  Indictments are obtained when a prosecutor from the U.S. Attorney’s office presents evidence to a federal grand jury that indicates a person committed a crime. The U.S. attorney attempts to convince the grand jury that the evidence is strong enough to show that the person committed the crime and should be formally charged. If the grand jury agrees with the prosecutor, it will issue an indictment.  Once the indictment is issued, the accused must go before the court after either being summoned to court or arrested. 

A grand jury is charged only with determining whether the person may be tried for a crime, not whether they are actually guilty.  Grand jury indictments primarily involve felonies such as cross state drug sales and other violations of federal laws. 

Sub-leasing and Assigning Lease Property in Mississippi

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A sublease is a lease agreement wherein the Lessee transfers less than all of his rights to a sub-lessee to use and enjoy the premises while retaining the right to re-enter or re-take the premises. For example, when a lessee “sub-lets” a portion of the premises to a “sub-lessee”, the “master tenant” retains the right to retake the property under certain conditions.  However, the master tenant remains obligated to pay rent to the landlord as provided for in the lease agreement.  The master tenant is also responsible for the sub-lessee’s acts as tenant that may breach the lease agreement.

An assignment is the transfer of all remaining interests in the lease to a third party, called the “assignee”.  For a landlord, an assignment usually entails giving your right to receive rent from your tenant to the assignee, typically a creditor.

Many leases bar tenants from assigning or subleasing the lease.  This is due primarily to landlords wanting to maintain control over who occupies and makes rent payments. Some leases allow assignments and subleases only when the landlord consents.

In most instances, the landlord can’t enforce the lease provisions against the assignee or subtenant unless the subtenant or assignee agrees through an assignment or sublease agreement or some other separate agreement, to assume the assigning tenant’s obligations under the original lease.

It is important to remember, that an assumption agreement does not release the assigning tenant from his or her obligations under the master lease unless the original landlord expressly agrees to such a release.  Preferably in writing.

Under any residential lease, the tenant has the obligation to pay lease payments. After a sublease or assignment is made, the tenant remains obligated, even if there was an assumption agreement. If the landlord releases the tenant, the landlord cannot then look to the tenant for rent payments if the subtenant or assignee fails to pay the lease payments.

 A landlord should obtain an assumption by the assignee/subtenant.  Generally, an assignment of a lease results in the assignee assuming the responsibilities of the original tenant. The original tenant surrenders the right to occupy the premises.  The assignee and the landlord are bound by the lease covenants or promises that run with land, i.e., covenants that benefit the land, such as the covenants to pay lease payments and to make repairs.

Typically, the assignee may not avoid its responsibilities under the lease by assigning the lease to another party. Further, the assigning tenant is liable on the lease, including payment of lease payments, unless he or she was released from those obligations by the landlord

In a sublease, unless the subtenant assumes the obligations of the master lease, there’s no legal relationship between the subtenant and the landlord, and so the subtenant doesn’t have to pay the landlord lease payments and the landlord doesn’t have to respond to the subtenant’s request or demand for repairs.

The landlord-tenant relationship is actually between the original tenant and the subtenant. The original tenant remains liable for rent: the subtenant pays the original tenant, who then pays the landlord. The original lessee must perform all other covenants under the lease.

The sublease should detail how issues reported by the subtenant are handled.   If the subtenant discovers a problem on the premises, the landlord is not obligated to repair it unless the subtenant assumed the lease. In that scenario, the subtenant would notify the original tenant, who would then have to fix the problem or enforce the landlord’s obligation to do so.

Of course, all of the above described agreements should be in writing.  Many problems are avoided when all parties understand what their respective obligations are.