Tag Archives: criminal

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Mississippi law defines burglary as breaking and entering into any structure with the intent to commit a crime therein.

To be convicted of burglary, two elements of the crime must be proved beyond a doubt (or pled guilty to by the defendant). In other words, the State must prove that the defendant actually entered a structure, and entered with the intent to commit a crime in that structure.

The first element of the crime of burglary—entering—requires that you actually enter into a structure without permission to do so. Illegal entry also includes being lawfully present in a structure, but breaking or entering through an inner door and into a room that you have no permission to enter. This would include, for example, lawfully being in a shop but sneaking into the storeroom when the clerk is not watching.

The second element of burglary relates to the defendant’s state of mind at the time of entry into the building. To be convicted of burglary, the defendant must have first decided to commit a crime, and then entered the building for that purpose.

Using the example above regarding entry of a storeroom without permission, if the intent upon entry was to commit a crime, such as stealing stock from the room, you have satisfied the intent element, and have burglarized the shop owner’s private portion of the store.

The intended crime does not have to be successful or completed; entering with a criminal intent satisfies the two elements of burglary, and may lead to a conviction.

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Miss. Code Ann. § 97-3-79., defines armed robbery as “feloniously [taking] the personal property of another, “by the exhibition of a deadly weapon” in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person . . . .” .

To obtain a conviction for the charge of robbery, the prosecution must show that, 1) That you had a “felonious intent;”; 2) that you used force or putting in fear as a means of effectuating a theft; 3) that a deadly weapon was used and: 4) that you took and carried away someone else’s property from the victim’s person or in the victim’s presence.

  The punishment for armed robbery may include a life sentence.

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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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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.