Category Archives: Criminal Defense Cases

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21 U.S.C.§§ 841(b)(1)(B) provides for enhanced sentencing for trafficking crimes “if death or serious bodily injury results from the use of the controlled substance either possessed or imported by the defendant”. The U.S. Supreme Court Case of Baez-Gil vs. United States considered the proper construction of the term “use”.  At issue in Baez-Gill was whether “use” included the swallowing of a balloon containing heroin for smuggling purposes constituted “use”. 2013 WL 2422803.   The Defendant argued that “use” means the “ingestion or introduction of a controlled substance into one’s body ‘for the purpose of obtaining the benefit or reaction from the drug'”.  In other words, taking the drug for its narcotic or psycohactive properties.

The Court did not resolve whether the Defendant’s interpretation was correct or incorrect as the argument was just part of his ineffective assistance of counsel claim.  However, the Court did reference the district court case of United States v. Baker 05-cr-496, which found that the person swallowing the drugs for purposes of importation or possession had  made “use” of the drug.  However, the proper construction of the term “use” has not been ruled on by the Supreme Court and remains a novel question of law.

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The recent Supreme Court case of Burrage v. United States held that the use of a Federal Drug Trafficking sentencing enhancement in cases where the drug user dies is limited.  Burrage was prosecuted for distributing a controlled substance which resulted in the death of the buyer. Under the the enhanced penalty statute, Burrage could be sentenced to a statutory minimum of 20 years.

Government prosecutors argued that the Supreme Court should adopt a concurrent causation rule wherein a conviction would be allowed even without proof that the defendant’s drug was sufficient to kill the buyer.  Under this rule “death results from the use of such substance” if the defendant’s drug, together with other causes, created intoxication that lead to death.

The court rejected the government’s argument, ruling that “especially in the interpretation of a criminal statute subject to the rule of lenity….. we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.”

The Court held instead that a “but for” causation test must be applied stating “that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under penalty enhancement provision of 21 U.S.C. §841(b)(1)(C) unless such use is a but-for cause of death or injury”

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To challenge a wire tap, the movant must be a party with standing.  The “aggieved person” is the person against whom the wiretap was directed or someone who was a party to those communications.  The movant may file a motion to suppress evidence on the following grounds:

  1. the communication was unlawfully intercepted
  2. the order authorizing or approving the interception was insufficient on its face or
  3. the interception was not made in conformity with the order authorizing or approving it.

Wire taps are designed to intercept relevant subject matter only and are to be suspended during the discussion of non criminal activities.  The agency is required to “minimize” the scope of the wiretap to include discourse related to the subject matter contained in the authorization.  When reviewing a minimization challenge the court looks at the reasonablness of the agents efforts to minimize the wiretaps.  Challenges to wiretaps through “minimization” motions are rarely granted

More commonly used challenges to wiretaps involve whether the government could have used other investigative techniques to obtain the information.  If the Court determines that other, less intrusive techniques could have been used or were not used, the wiretap evidence may be suppressed.

Defendants may bring what is known as a “Franks” challenge alleging that the authorization was granted based on a “false statement knowingly and intentionally with reckless disregard for the truth” made in the government’s affidavit. Franks v. Delaware.  Upon a showing that the statement was necessary to establish the required probable cause element.  The defendant must show that the statement made was made knowingly and intentionally and with reckless disregard for the truth. 

All challenges to wiretaps are difficult to win.  Motions must be pled with specificity and may require discovery request directed to the prosecutors.

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Prior to obtaining judicial authorization for a wire tap, the government must adhere to the procedural steps contained in 18 U.S.C. § 2510.  The government must state:

  1. the phone number to be intercepted;
  2. the phone number’s subscriber;
  3. the names of the interceptees;
  4. that there is probable cause to believe that the named interceptees are committing, have committed, or are about to commit an offense listed in U.S.C §2516 and;
  5. which qualifying federal law is possibly being violated

The government must submit an affidavit in support of the application explaining with specificity why the wiretap is necessary.  The government must explain what normal techniques have been attempted and that those techniques have failed.  The government must also explain why normal techniques appear unlikely to succeed or are too dangerous.  Normal techniques consist of the following:

  1. standard visual and aural surveillance;
  2. questioning and interrogating of witnesses and participants, including the use of grand juries and grants of immunity, if necessary
  3. search warrants; and
  4. infiltration of conspiratorial groups by undercover agents or informants

If the Court finds that the statutory prerequisites have been met, an order will be issued authorizing the wire tap for a period of thirty days.

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“The ownership, control, or occupancy of a thing”, most frequently land or personal property, by a person.The U.S. Supreme Court has held that “there is no word more ambiguous in its meaning than possession” (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58L. Ed. 504 [1914]). The term “possession” has a variety of possible meanings. As a result, possession,or lack of possession, is often the subject of controversy in civil cases involving real and personal property and criminal cases involving drugs and weapon

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Wiretaps require a court order based on a showing of probable cause.  A three-step process must be followed to obtain a court order:

1. The law enforcement officer conducting the investigation must prepare a detailed affidavit demonstrating that there is probable cause that the target telephone is being utilized to facilitate a “specific, serious, indictable crime”.

2. The prosecuting attorney for the federal, state, or local government must
work with the law enforcement officer to prepare an “application” for a
court order, based upon the officer’s affidavit.  If the investigation federal,
the application must be approved by the Attorney General, Deputy
Attorney General, Associate Attorney General, any Assistant Attorney
General, any acting Assistant Attorney General, or any Deputy Assistant
Attorney General in the Criminal Division designated by the Attorney
General.  If the investigation is being conducted on the state level, the application must be prepared and approved by the State Attorney General, district attorney or county prosecutor).

3.   The attorney must present the approved application to a federal or state judge who is authorized to issue a court order for electronic surveillance.

A court order is typically issued after a lengthy investigation and
the use of a Dialed Number Recorder or “DNR”.  The DNR is used to track
the outgoing calls from the suspect’s phone in order to demonstrate
that the targeted suspect is conducting criminal activity. .

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Honest-services fraud is a federal law law passed in conjunction with mail and wire fraud laws. It is a crime for executives and government officials to deny their constituents the “intangible right to honest services.”   The law cites two categories of fraud: public and private.  The public version applies to elected or appointed public officials. The second version applies to private citizens who fail to provide honest services to others. As a result, private honest-services fraud can be a universal crime with far reaching implications.

Honest services fraud is a felony that is punishable by five years in prison, a $250,000 fine, or both.

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If a Mississippi grand jury decides to indict a defendant, it is authorized to issue a “True Bill” upon a finding of probable cause that the defendant committed the crime. The indictment must identify the defendant, provide a concise statement of the facts sufficient to describe the elements of the crime charged, the jurisdiction of the court, the date of the offense and signature of the grand jury foreman and District Attorney.  Provided the defendant is on notice of the charge and its elements, the indictment is deemed sufficient. In practice, most indictments today list the Mississippi code section charged but this is not required by law. 

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§ 99-19-81. Sentencing of habitual criminals to maximum term of imprisonment

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

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If you are charged with grand larceny in Mississippi, the prosecution must show that the defendant had animus furandi or “intent to steal”.  To prove “animus furandi”, the prosecution needs to prove intent to deprive the owner of his property permanently, or an intent to deal with another’s property unlawfully in such a manner as to create an obviously unreasonable risk of permanent deprivation.  Thomas v. State 278 So.2d 469.