Category Archives: Criminal Defense Cases

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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.

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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.

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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) 

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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.)

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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. 

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Mississippi law provides that a person can be charged with “accessory after the fact” if he helps a person avoid arrest, trial or conviction for committing a felony.  According to Mississippi Code Section 97-1-5,.

(1) Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that the person had committed a felony, with intent to enable the felon to escape or to avoid arrest, trial, conviction or punishment after the commission of the felony, on conviction thereof shall be imprisoned in the custody of the Department of Corrections as follows:

(a) If the felony was a violent crime:
(i) If the maximum punishment was life, death or twenty (20) years or more, for a period not to exceed twenty (20) years; or
(ii) If the maximum punishment for the violent felony was less than twenty (20) years, for a period not to exceed the maximum punishment.
(b) If the felony was a nonviolent crime:
(i) If the maximum punishment for the nonviolent felony was ten (10) years or more, for a period not to exceed ten (10) years; or
(ii) If the maximum punishment for the nonviolent felony was less than ten (10) years, for a period not to exceed the maximum punishment.

In the Mississippi case of White v. State, the Court held that to be found guilty of accessory after the fact, the State must prove that the defendant knew that the person committed a felony, and that the defendant intended to help the person escape or avoid capture and prosecution.  id. 851 So.2d 400 (2003).

Further, if the defendant intended to assist the felon in avoiding arrest, the State must prove that the efforts made to help the felon actually assisted him. id. 851 So.2d 400 (2003).  Put differently, if the defendant provided assistance or aid to the felon, but the aid did not actually help him, then the defendant is not guilty of accessory after the fact in Mississippi.  Under Mississippi criminal law, a person can not be convicted of both committing the underlying crime, and as an accessory after the fact.

Additionally, the help given to the felon must have been given after the crime was committed, not before.  If the assistance was given prior to the crime being completed, then the person giving the assistance is guilty of accessory before the fact and is a principal to the crime.  Of course, the guilt or innocence of a defendant charged with accessory after the fact will depend on the specific facts of each case.  Accessory after the fact is often difficult for the State to prove, and can be defended with relative ease.