Archives : 2005 : September
By: Tony Partipilo, Attorney at Law and Helen Kim
“Theft” is committed by stealing anything of value. The value of the property relates to the classification of the crime and the nature and extent of the penalty that will be imposed upon conviction. People v. Kelly, 214 N.E.2d 290 (1st Dist. 1965). There are two categories of theft, which is also called larceny: grand larceny and petit, or petty larceny. States are entitled to set their own guidelines to distinguish between grand and petty larceny. In most jurisdictions, grand larceny is considered a felony while petty larceny is categorized as a misdemeanor. However, under most theft statutes, the value of the property determines the punishment. The Model Penal Code at 223(2) comments:
(a) Theft constitutes a felony of the third degree if the amount involved exceeds $500, or if the property stolen is a firearm, automobile, airplane, motorcycle, motor boat, or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property. (b) Theft not within the preceding paragraph constitutes a misdemeanor, except that if the property was not taken from the person or by threat, or in breach of a fiduciary obligation, and the actor proves by a preponderance of the evidence that the amount involved was less than $50, the offense constitutes a petty misdemeanor.
No matter how small the value of the property, a conviction of even the most minor larceny may leave a permanent imprint on an individuals criminal record. This record cannot only affect a person if they are convicted of another offense, but also in non-criminal, daily life situations, such as job hunting and housing.
Employment and Criminal History
Although an employer may not discriminate against an individual based on criminal history, statutes have allowed employers to inquire about an applicants criminal history. In Shapira v. Charles Schwab & Co., Inc., the Court found that the defendant employer was obligated by the Securities Exchange Act (SEA) to keep and maintain current records of any arrests for larceny of any person in its employ, and it was permitted by the SEA to inquire about such arrests concerning prospective employees. Therefore, the Court held that the defendant employer did not violate the New York Human Rights Laws by inquiring into an allegedly sealed arrest record of the plaintiff, who had applied for employment with the defendant. 225 F.Supp.2d 414 (S.D.N.Y. 2002). Although the plaintiff was mistakenly arrested for petty larceny and there was no indication that the plaintiffs arrest was a genuine factor in the employers decision not to hire him, Shapira confirms that employers are allowed to inquire, and in some instances, obligated to inquire, about an applicants criminal history.
Although employers may inquire into an individuals criminal past, they cannot discriminate on the basis of the applicants criminal past. In Adler v Montefiore Hosp. Assn of Western Pennsylvania, the Pennsylvania Supreme Court stated that the right to engage in common occupations as part of the liberty protected by the Fourteenth Amendment to the United States Constitution may not be interfered with, under the guise of protecting the public interest, by legislative action that is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. 311 A.2d 634 (Pa. 1973). Unless a state has a reasonable purpose, it cannot interfere with an individuals right to employment. In Nixon v Commonwealth, the Pennsylvania court commented that to forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation. 789 A.2d 376, 381 (Pa. 2001). However, unfavorable biases are likely to arise once employers learn of an applicants criminal record, even if the record consists of petty theft, subjecting the applicant to stricter review.
Finding Housing When You Have a Criminal Record
Title 24 of the Code of Federal Regulations at 960.204 requires public housing authorities to establish and adopt policies to preclude admission of applicants who may be expected to have a detrimental effect on the residents of the housing project environment. Such review includes the applicants past criminal activity.
When selecting tenants, 24 CFR 960.205(b)(3) allows housing authorities to consider “[a] history of criminal activity involving crimes of physical violence to persons or property and other criminal acts which would adversely affect the health, safety or welfare of other tenants.”
Public housing policy is aimed at safeguarding other tenants from possible criminal acts against them, yet such practice creates difficulty for an individual with a criminal record, even a misdemeanor, to obtain (public) housing.
Prior Records Counted in Sentencing
In federal criminal law, prior sentences, including misdemeanors where incarceration is not imposed, are counted in an individuals criminal history score. The criminal history score affects the sentencing of repeat offenders when they are convicted of a new crime. Pursuant to the United States Sentencing Guidelines 4A1.1(a) (c), sentences for misdemeanors and petty offenses are included when calculating the criminal history category for sentencing.
The United States Sentencing Guidelines 4A1.2 (c)(1) provides exceptions where misdemeanors and petty offenses are not factored in the calculation of ones criminal history: careless or reckless driving, gambling, prostitution, and trespassing are a few of the listed exceptions. Hitchhiking, juvenile status offenses and truancy, loitering, minor traffic infractions, public intoxication, and vagrancy are never included when calculating ones criminal history score. In United States v. Harris, the defendant argued that her prior shoplifting conviction should not have been factored into calculate her criminal history score because shoplifting is a petty offense that is similar to the exceptions in 4A1.2 (c)(1). 325 F.3d 865 (7th Cir. 2003). However, the Court joined the majority of jurisdictions and stated that convictions for petty theft or shoplifting are not similar to the offenses listed in 4A1.2 (c)(1) because petty larceny requires a trespass and a taking of anothers property. Hence, the Court affirmed the sentence in which defendants prior conviction of shoplifting was calculated into her criminal history score. Id.
A conviction for petty theft can have major repercussions than perceived at first blush. The misdemeanor is permanently recorded on an individuals criminal history and can follow the individual for the rest of his life. Not only will the conviction impact upon the individual if he is ever arrested and convicted for a subsequent crime, but it can affect the individual on a more basic level when he attempts to seek employment or housing. Employers and housing authorities cannot discriminate on the basis of ones criminal history but they are allowed to inquire and have access to those records. In a highly competitive job market, one misdemeanor conviction can mean the difference between a career and a job, between having a home and living on the streets.
By: Tony Partipilo, Attorney at Law and Natalie Banach
Robbery is the act of depriving someone of their personal property while in their presence through the use of force or fear. The property can either be taken from the person or from their immediate surroundings. If a deadly weapon such as a gun is used or the victim suffers physical harm, the act can be classified as “armed” or “aggravated” and the severity of the punishment can be increased. The actual elements of theft include trespassing, taking, carrying away, the fact that it is someone else’s property, the intent to steal, the presence of the person who owns the property, and intimidation. Unless all seven of these elements are present, theft as defined by the law, does not occur.
Consequences Of Robbery
The various punishments ascribed to theft can depend on the type and the value of the stolen property, but can include:
- restitution (a penalty imposed which restores the worth of the property to the owner)
- court approved counseling
Chances That Any Of The Above Consequences Will Occur
The likelihood that any of these consequences will be applied and the degree to which they are proscribed generally depends on what was stolen and its market value. Known either as petty theft or grand theft, the difference can mean a greater or lesser punishment. Examples of grand theft include, but are not limited to, stolen property that exceeds $400 in value or whenever a firearm is taken. The theft of items which have less monetary value, usually under $400, can be classified as petty theft. Grand theft is generally punishable by imprisonment in state prison. Petty theft is generally punishable by imprisonment in county jail.
Such punishments are the general rule and can increase or decrease based on additional factors. For example, a person’s past criminal record can increase the likelihood that a more severe punishment will be proscribed. Additional factors can include, but are not limited to, the attitude of the community and the court toward the type of crime, the degree of media attention to the case, and other mitigating or aggravating circumstances.
Possible Defenses For Robbery or Theft Charges
There are various defenses that can potentially be used in cases of theft and they include factual innocence, a lack of evidence linking the accused to the crime, or the issue of true owner, in which the accused argues he is the lawful owner of the property. The issue of true owner largely relies on whether the alleged theft occurred under felonious circumstances. That is, if the defendant was under the good faith belief that he was the actual owner of the property, then it is possible for him to be not guilty of robbery. In addition, there are many other defenses that can be used in particularly unique cases.
Helping Your Theft Case
There are a number of steps a person can take as soon as they are charged with a crime of theft or robbery. The first is to stringently exercise the right to remain silent. Keeping silent enables the accused to learn exactly what is going on, calmly analyze the facts and make sure they do not weaken their case in any way. In all criminal cases, retaining qualified counsel as soon as possible should be a priority. No matter how minor the charge, any person charged with a criminal offense can benefit from a competent criminal defense attorney. Even if the lawyer consulted does not ultimately argue the case on that person’s behalf, a consultation can help the accused figure out the nature of the charges filed, what options they have and what could happen in the event of a conviction. Additional steps to help your case include gathering documents which point to your good character and keeping a list of significant events and potential witnesses. It is also important to note that under no circumstances should a person investigate their own case.
What We Can Do To Defend Your Rights Against Theft and Robbery Charges
The criminal defense attorneys at Imhoff & Associates, P.C. Criminal Defense Attorneys are well versed in the laws regarding robbery and theft and also have first-hand experience advocating such cases. Because of their experience, Imhoff & Associates, P.C. Criminal Defense Attorneys recognizes the importance of communicating with any client and making sure they understand what is happening at every stage of the case. As an attorney working on behalf of a client who has been charged with theft, we can help by immediately beginning to prepare the case. This early preparation stage involves gathering all the helpful facts to the case, legal research and identifying what defense will be used. Attorneys at Imhoff & Associates, P.C. Criminal Defense Attorneys also commence interviews with the police and the prosecutor in order to minimize or eliminate your case when possible. In addition, the attorneys are familiar with motions seeking to reduce or eliminate any bail that might be set.
At all stages of the case, attorneys from Imhoff & Associates, P.C. Criminal Defense Attorneys will be diligent and provide a vigorous defense in order to ensure that all facets of the case are being looked at and that a client is not being deprived of any of their legal rights.
In the event that a case goes to court, attorneys at Imhoff & Associates, P.C. Criminal Defense Attorneys have experience developing appropriate motions that may dismiss the case, or that may suppress evidence. Other helpful evidence which attorneys can bring to the courts attention include coordinating a private lie detector test for the client or obtaining an evaluation from a court approved psychologist pointing to counseling as an alternative to jail time. In appropriate cases, attorneys may negotiate the terms of a jail sentence. Nevertheless, in all cases, Imhoff & Associates, P.C. Criminal Defense Attorneys will ensure that a client is looked after at every stage of the case and that their rights are always protected.
By: Edward Martinovich, Attorney at Law and Helen O. Kim
Crack cocaine (hereinafter referred to as crack) is the concentrated form of powdered cocaine, manufactured to be smoked through a heated pipe. An individual who smokes and inhales crack will immediately feel a short-lived euphoria, followed by a crash. Some people argue that the effects of ingesting crack is different than ingesting powder cocaine while others maintain that crack is chemically different from powdered cocaine. In the legal arena, federal and state legislatures have distinguished crack from powder cocaine and assign harsher punishment for those persons charged with possession of crack than those persons charged with possession of powdered cocaine.
United States Sentencing Guideline
The United States Sentencing Guidelines Manual 2D1.1(c) assigns a 1:100 ratio between crack and powder cocaine. In other words, it treats 1 gram of crack as being equivalent to 100 grams of cocaine in drug quantity. Congress has offered five reasons for the distinction: (1) crack is more addictive than powdered cocaine; (2) there is a greater relationship between crack and serious crimes than with other drugs; (3) crack has a more dangerous physiological effect than powdered cocaine; (4) young people are more prone to use crack than powdered cocaine; and (5) cracks affordable cost per dose leads to more widespread use. States have strayed from the 1:100 ratio; however, they continue to distinguish between crack and powdered cocaine, assigning harsher penalties for crimes involving the use, possession, sale or transportation of crack.
The Sentencing Commission and the Clinton Administration had offered a series of recommendations to amend the 1:100 ratio to narrow the penalty gap between crack and powder cocaine. In 1995, the Sentencing Commission submitted an amendment to eliminate the 1:100 ratio. In 1997, the Sentencing Commission submitted a report to reduce the 1:100 ratio to 1:5. When that suggestion was not well received, the Sentencing Commission further proposed to amend the distinction to a more favorable 1:20 ratio. The Clinton Administration submitted a proposal of a 1:10 ratio between crack and powder cocaine. However, Congress has not adopted any of these recommendations.
Equal Protection Clause
There have been numerous debates as to whether the disparity in sentencing between crack and powder cocaine violates the Equal Protection Clause of the United States Constitution. In State v. Russell, defendants claimed that the 3:10 ratio between crack and powder cocaine in Minnesota Statute 152.023 violated the Equal Protection Clause because it created harsher penalties for crack users than users of powder cocaine. 477 NW2d 886 (Minn. 1977). The defendants also claimed that the statute had a discriminatory impact on African-Americans because African-Americans predominantly use crack whereas non-African-Americans predominantly use powder cocaine. As a result, a far greater percentage of African-Americans was sentenced for possession of crack with harsher penalties than their caucasian counterparts, who possessed an equal amount of powder cocaine. Id. Defendants provided the Minnesota Supreme Court with statistics that revealed that in 1988, 96.6% of persons charged with possession of crack were black while 79.6% of persons charged with possession of powder cocaine were white. Ibid. at 887, note 1.
The state stated that the distinction is justified because crack is more addictive than powder cocaine, crack users display more violence than users of powder cocaine, and there is more street-level dealing of crack than powder cocaine. 477 NW2d at 890. The Minnesota Supreme Court was not persuaded by the states arguments and opined that crack is not more addictive or dangerous than powder cocaine because powder cocaine could readily produce the same effects purported to justify a harsher penalty for possession of crack. Id. at 891. The Court also stated that not enough evidence was produced to justify the contentions that there is greater violence in crack users than users of powder cocaine or that the 3:10 ratio was indicative of street-level dealing. Hence, the Minnesota Supreme Court held that the statute violated the Equal Protection Clause. Ibid.
In State v. Bryant, the defendant was indicted for possession of crack in violation of the Ohio Revised Code (ORCA) 2925.11(C)(4)(d). 1998 Ohio App. LEXIS 3308. Under ORCA 2925.11(C)(4)(d), the defendant was charged with second-degree felony for possession of 13.07 grams of crack. ORCA2925.11 assigns a 1:20 ratio between crack and powder cocaine so under ORCA2925.11(C)(4)(b), the defendant would have been charged with the significantly lesser offense of fourth degree felony for possession of 13.07 grams of powder cocaine. The Ohio Court of Appeals determined that crack is chemically different from powder cocaine and has a greater addictive impact on its users than powder cocaine. The Court stated that crack is more potent than powder cocaine because crack is smoked and inhaled, creating a more potent rush and a more powerful high than powder cocaine. Bryant, 1998 Ohio App. LEXIS 3308 at 9. The Court concluded that crack is more dangerous to the user and society than powder cocaine, and, therefore, the statute was not in violation of the Equal Protection Clause of the US Constitution, and that the1: 20 ratio between crack and powder cocaine was justified and rational based on the greater danger posed by crack. Id. at 10.
In US v. Chisholm, the defendant was charged with supplying powder cocaine to crack dealers who were planning to convert the defendants powder cocaine to crack. 73 F.3d 304 (11th Cir. 1996). The defendant maintained that he could not have reasonably foreseen that the powder cocaine he sold to co-defendants would be converted to crack. Hence, the defendant argued that he should be sentenced in accordance with the guidelines for powder cocaine and not crack under the United States Sentencing Guidelines Manual 2D1.1 (c)(1). Id. at 308. The United States Court of Appeals agreed that there was no evidence in the record to show that the defendant knew of, or agreed to, the planned conversion of powder cocaine to crack from his limited communication and contact with the co-defendants. Thus, the Court concluded that the defendant should be sentenced according to the schedule relevant to the crime relating to powder cocaine and not crack under the United States Sentencing Guidelines 2D1.1(c)(1), resulting in a lesser penalty. Id. at 309.
While Congress has not amended the 1:100 ratio in the United States Sentencing Guidelines, the Supreme Court has made federal sentencing guidelines merely advisory. US v Booker, 125 S. Ct. 738 (2005). In US v Tabor, United States District Judge Richard G. Koph commented that, although he did not agree with the 1:100 ratio in the sentencing guidelines, he would abide by the 1:100 ratio because judges lacked the institutional capacity to set and enforce national standards. 365 F. Supp. 2d 1052, 1061. In US v Villalona, the Court upheld the validity of the legislatures distinction between crack and powder cocaine based on the difference in their usage and effect. 2005 U.S. App. LEXIS 14281, 4. The Court stated that crack is chemically different from [powder] cocaine. It is used differently than [powder] cocaine. Its effect upon the human body is different from that of [powder] cocaine. Id. Although the Court found that the 1:100 ratio did not violate defendants Equal Protection rights, the Court assigned a punishment that represented approximately a 1:5 ratio instead. Id. Furthermore, in US v Leroy, the Court applied a 1:20 ratio for sentencing the defendant, as suggested by the 2002 Sentencing Commission, instead of the current 1:100 ratio. 2005 U.S. Dist. LEXIS 12653.
As one can see from the discussion herein, the courts have unevenly applied the federal sentencing guidelines as they relate to crimes involving powdered cocaine and those involving crack cocaine. Some federal trial courts have made it clear that there should be no difference in sentencing while others maintain the opinion that crimes involving crack cocaine should be treated more severely. One thing is very clear, though, any person involved in a federal criminal prosecution needs to consult with an attorney who is licensed to practice law in the jurisdiction in which the prosecution is based and one who is fully experienced in federal criminal law and procedure.
It is clear by the United States Supreme Courts opinion in the controversial US v. Booker case, 125 US 738 (2005), the federal sentencing law is under scrutiny and a smart attorney will use the reasoning in this case to his clients best advantage. The Court held in pertinent part, in Booker, that the federal sentencing guidelines are mandatory and must be followed by federal trial judges in the imposition of sentence. It went on to state that where departures from the guidelines are recognized, and these instances are rare, judges must give reasons on the record for the mitigated or aggravated term imposed. In Booker, however, the court imposed a much harsher sentence than was permitted by the guidelines by making factual findings not otherwise found by the jury, the finders of fact therein. Consequently, the Supreme Court held that was contrary and at odds with defendant Bookers 6th Amendment right to a trial by jury. Again, there is no substitute for the advice and counsel of a skilled and experienced criminal defense attorney. If faced with a federal investigation or prosecution, seek such advice immediately.
By: Edward Marinovich, Attorney at Law and Ariella Rosenberg
Clarence Walters of New York City had never been arrested for any offense until his car was seized on March 15, 1999, as the result of a DWI (driving while intoxicated) arrest. His criminal case ended on June 1, 1999, when he pleaded guilty to the lesser charge of driving while ability impaired, a non-criminal violation. The defendant paid a fine, performed community service, and completed a Drinking Driver program that rendered him eligible for the restoration of his driver’s license. On June 4, more than two-and-a-half months after the seizure of his vehicle, he was served with a forfeiture complaint on his car. At no time between June 1999 and May 2001, when his vehicle was finally released, was the defendant given an opportunity to challenge the City’s retention of the vehicle.
In another case, in September 1999, the defendant, who, at the age of forty-eight had no arrest record, was stopped on DWI charges in New York, resulting in the seizure of her 1995 Toyota. It took 11 months for a judge to dismiss the forfeiture action and ordered that her car, on which she had continued to make monthly payments of $273, be returned to her.
For another defendant, a first-time DWI arrestee, regaining his car was also a drawn-out ordeal. In connection with a DWI arrest in 1999, the defendants car was seized. After entering a guilty plea, he paid a fine and completed all required community service, as well as a Drinking Driver program. Yet, eight months later, he still had received no hearing on the seizure of his car, which remained in police custody. As a result, the defendant was not given an opportunity to present evidence that a prescription anti-depressant medication he was taking at the time of the arrest caused the breathalyzer test to exaggerate the percentage of alcohol in his bloodstream.
Are Vehicle Forfeitures Constitutional?
What these people all have in common is the violation of their constitutional rights, Including the Fourth Amendment right of citizens to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures and the Fourteenth Amendment right to not be deprived of property “without due process of law.” The Fourth Amendment protection also provides for the requirement, within the search warrant, of “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The seizure of the vehicles of these citizens is, on its face, a classic example of state law enforcement violating the constitutional rights of citizens. So then how is it allowed to occur?
New York Law
New York is one of about 21 other states across the country that allow the police to seize the cars of people suspected of driving while impaired or under the influence of drugs or alcohol. New York Vehicle and Traffic Law defines the crime in the following way: no person shall operate a motor vehicle while the persons ability to operate such motor vehicle is impaired by the consumption of alcohol; no person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the persons blood as shown by chemical analysis of such persons blood, breath, urine or saliva; no person shall operate a motor vehicle while in an intoxicated condition, and finally that no person shall operate a motor vehicle while the persons ability to operate such a motor vehicle is impaired by the use of a drug. NY Veh & Traf 1192.
New York Vehicle and Traffic Law contains a section addressing the seizure and redemption of unlawfully operated vehicles, mandating that upon making an arrestfor the crime of aggravated unlicensed operation of a motor vehicle in the first or second degree committed in his presence, an officer shall remove or arrange for the removal of the vehicle to a garage, automobile pound, or other place of safety where it shall remain impounded, subject to the provisions of this section if: (a) the operator is the registered owner of the vehicle or the vehicle is not properly registered; or (b) proof of financial security is not produced; or (c) where a person other than the operator is the registered owner and, such person or another properly licensed and authorized to possess and operate the vehicle is not present. The law requires that a motor vehicle so impounded shall be in the custody of the local authority and shall not be released unless:(a) The person who redeems it has furnished satisfactory evidence of registration and financial security;(b) Payment has been made for the reasonable costs of removal and storage of the motor vehicle. Additionally, in order to be released, where the motor vehicle was operated by a person who at the time of the offense was the owner thereof, the owner must produce (i) satisfactory evidence that the registered owner or other person seeking to redeem the vehicle has a license or privilege to operate a motor vehicle in this state, and (ii)(A) satisfactory evidence that the criminal action founded upon the charge of aggravated unlicensed operation of a motor vehicle has been terminated and that any fine imposed as a result of a conviction thereon has been paid. When a vehicle seized and impounded pursuant to this section has been in the custody of the local authority for thirty days, such authorityshall notify the ownerthat if the vehicle is not retrieved pursuant to subdivision two of this section within thirty days from the date the notice is given, it will be forfeited. Importantly, the period of time during which a criminal prosecution is or was pending against the owner for a violation of this section shall be excluded. NY Veh & Traf 511b.
While it is one thing to tow a vehicle from the scene of a DWI arrest (given that the driver is taken away in a police car), the towing becomes unconstitutional due to the sluggish pace of due process. Owners have a right to prove that the seizure was conducted improperly, or to recover their property after paying their debt to society, without waiting months or even years to do so. Additionally, in cases where the person convicted of the DWI is not the owner of the vehicle, and it belongs instead to the drivers spouse, parent, or friend, the court can sometimes hold the vehicle, essentially seizing the property of a person who has committed no crime. This is indeed a blatant violation of the constitutional right to property.
What has gotten more press than the state law concerning seizure at time of arrest is the New York City Police Departments Vehicle Forfeiture Initiative, based on the New York City Administrative Code section (local law) providing for forfeiture of the instruments used to commit a crime. The rationale of the initiative, insofar as it relates to drunken driving, is that since the vehicle helped commit the crime, seizing an impaired drivers vehicle is like taking away a bank robbers gun. NYC Adm. Code 14-140.
However, in Property Clerk v. Burnett, the 2nd Circuit Court of Appeals ruled that due process of law requires that all plaintiffs be afforded a prompt post-seizure, pre-judgment hearingto determine whether the City is likely to succeed on the merits of the forfeiture action and whether means short of retention of the vehicle can satisfy the Citys need to preserve the [seized property]. The Forfeiture Initiative was so harsh that it essentially amounted to double jeopardy, punishing people for their DWI offense legally and then punishing them financially, sometimes auctioning off cars worth upwards of $50,000 for crimes that didnt nearly qualify for such high fines. After numerous actions were brought against this New York City policy, the New York Police Department was forced in 2004 to try and give back about 6,000 cars that had been confiscated since the Forfeiture Initiative went into effect in 1999.
What To Do If Your Car Is Seized
If you have been arrested for a DWI and your car has been seized, it is imperative to first gain the counsel of an attorney licensed to practice law in the jurisdiction of the arrest/seizure and one who is experienced in this highly specialized area of the law. Often in DWI cases, a defendant can enter a plea, leading to reduced charges and fines. However, even a conviction to a reduced charge can negatively impact the civil forfeiture of the vehicle that was driven at the time of the arrest.
Additionally, an experienced attorney can help you know and understand your rights. Once the criminal court proceedings have ended, the owner of the vehicle in question must present proof of ownership, a certificate of disposition from the Court showing that the criminal case is over, and the district attorneys signed, written consent to release the car, stating that it is no longer needed in the criminal case. Whereas in the past the State was able to draw this process out over many months, the owner of property now has a right to an expedited hearing, allowing the presentation of evidence of innocence, or to begin the process of regaining the car after the case has been decided. With an attorney, and the United States Constitution on their side, any person should have their vehicletheir property by lawreturned in a speedy and fair fashion after due process of law has been given.
By: Edward Martinovich, Attorney at Law, and Helen Kim
The government engineered a drug bust where Defendant Kitchen was scheduled to purchase two kilograms of cocaine from federal agents. Kitchen got into the vehicle of the undercover federal agents and picked up the kilograms of cocaine and held them for a couple of seconds. He inspected the substance and made a comment on its purity. At that point, federal agents arrested him. Kitchen was charged with possession of cocaine with intent to distribute in violation of 21 U.S.C.A. 841(a)(1).
Drug Law 21 U.S.C.A. 841
(a) Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance;
In United States v Kitchen, the Court found that there was insufficient evidence to prove the possession element of the crime because the defendant never took affirmative steps to exert dominion and control over the cocaine. To justify a conviction for a possession charge brought pursuant to 21 U.S.C.A. 841, the government must present evidence that the defendant knowingly possessed the controlled substance; that is, that the defendant knowingly exercised dominion and control, actual or constructive, and individually or jointly over the substance. 57 F.3d 516 (7th Cir. 1995). Mere physical proximity or association with someone who does the drugs is not enough to establish possession.
Actual Drug Possession
In order to sustain a conviction under 21 U.S.C.A 841(a)(1), the government must show that (1) the defendant knowingly or intentionally possessed a controlled substance, (2) he possessed the controlled substance with the intent to manufacture, distribute, or dispense it and (3) he knew that the material was a controlled substance.
In Kitchen, the Court held that there was insufficient evidence for actual possession because nothing on the record proved that the defendants momentary holding of the cocaine constituted possession of the drugs. No transaction had occurred and the defendant had not assented to the sale. Instead, the defendants holding was in the context of inspection and not delivery.
The particulars of a given drug transaction determine conduct and possession. However, in prior cases where actual possession has been proven, there is clear assent demonstrated by the defendants to the drug transaction and the defendants have engaged in some act that was consistent with transporting the narcotics away from the scene of the sale. In United States v Toro, the defendant took the cocaine from the government agent and put it in a briefcase. 840 F.2d 1221, 1238 (5th Cir. 1988). In United States v Jones, the defendant loaded bales of marijuana into his van. 676 F.2d 327, 332 (8th Cir). In each case, the defendants handling of a controlled substance allowed each defendant to exercise dominion and control over the substance.
Under 21 U.S.C.A 841, physical dominion or control over a controlled substance is not the only proof of possession. Constructive possession also constitutes the offense of possession.
Constructive Possession of a Drug
Constructive possession is the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance. Constructive possession may also be shared with others. Possession of large amount of marijuana among several people working together may be sufficient to show that each has constructive possession. United States v. Watkins(1981, CA4 SC) 662 F2d 1090. In Watkins, the Court found that a judge or jury could reasonably believe that the defendant transported 23,000 pounds of marijuana in a boat although the 23,000 pounds of marijuana was never witnessed on the boat but found on a tractor-trailer instead. The Court found that at some stage of the transaction, each defendant had the power to exercise dominion and control over the marijuana and the totality of the evidence established a continuous, single operation.
In Kitchen, although the defendant held the cocaine in his hands for a couple of seconds, he did not have a recognized authority to exert control over it. No money had been exchanged when the defendant held the cocaine in his hands. Thus, the Court found that there was insufficient evidence to prove that the defendant had constructive possession over the cocaine. The defendant did not have the knowing exercise of, or the knowing power or right to exercise, dominion and control over the cocaine.
Whereas 21 U.S.C.A. Section 841 deals with possession of controlled substances with the intent to distribute, dispense or manufacture, Section 844 deals with simple possession.
Drug Law 21 U.S.C.A. 844
This section provides in part: (a) It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this title
Under 21 U.S.C.A. 844(a), a defendant can be convicted for simple possession even if the defendant is found in possession of a small amount of the drug even if it cannot be used for its common purposes. In United States v Harold, the defendants car was seized and searched, and several marijuana seeds and .289 grams of marijuana were found in various places of the car. The Court held that, although only a small amount of marijuana was found, it is well-established under federal law that a conviction for possession will be upheld where any measurable amount of any controlled substance is found. 588 F.2d 1136 (1979, CA5 Fla.).
Under 21 U.S.C.A. 844(a), quantity is not an element of simple possession but determines penalty provisions. In United States v Butler, the Court held that possession of cocaine in excess of 5-grams was an element that bumped a misdemeanor up to a felony. 74 F.3d 915 (1996, 9th Circuit, Wash).
As is clear from the discussion in this article, the laws concerning the possession of marijuana, controlled substances and the like is, indeed, quite complex. The term possession as used in the law does not have the same meaning as when it is used everyday language. Consequently, if one is under investigation, under arrest, or under prosecution for any of the crimes discussed herein, it is imperative to seek counsel from an attorney, who is licensed to practice law in the jurisdiction where the matter is pending, admitted to practice before the federal courts, and experienced in handling these types of cases.
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