Category : Drug Crimes

President Bush Pardons Fourteen Convicted Felons

On Nov. 24, President George W. Bush issued pardons for 14 convicted felons and sentenced commutations for two other individuals. None of the more famous applicants were among this group, but there are two remaining months of the presidential administration in which their requests may be granted.

Garden-Variety Crimes, Including Drug Offense, Embezzlement

The individuals who received clemency had committed the following crimes:

• income tax evasion
• drug offenses—e.g., abetting the distribution of cocaine in one case
• embezzlement
• unauthorized use of a pesticide
• illegal treatment, storage and disposal of a hazardous waste without a permit
• misapplication of bank funds by a bank officer

The two sentence commutations (shortening) were for drug crimes.

Counterterrorism Participants Not Yet Granted Clemency

A question that has not been answered by these latest grants is whether President Bush will issue “blanket” pardons for all of the many administration officials and intelligence officers who participated in torture-related activities and counterterrorism programs such as the al Qaeda interrogations.

The only well-known recipient of President Bush’s clemency powers is I. Lewis “Scooter” Libby, the top aide to Vice President Dick Cheney, convicted of obstruction of justice and perjury in 2007. His sentence was commuted last year.

Other “celebrity” felons awaiting an answer to their pardon/commutation requests are:

• Olympic athlete Marion Jones
• The “American Taliban” John Walker Lindh
• Former congressman Randy “Duke” Cunningham

Relatively Few Pardons and Commutations So Far
To date, President Bush has granted eight sentence commutations and 171 pardons, which is less than half as many as those issued separately by two-term Presidents Clinton and Reagan. According to White House spokesman Carlton Carroll, President Bush “will continue to carefully review clemency requests and make determinations on a case-by-case basis.”

(Source: New York Times)

Do You Need Legal Help? If you’re interested in obtaining a presidential pardon or sentence commutation for yourself or a family member, contact us to speak with an experienced criminal defense attorney in your area.

Judges to be Merciful

A few years ago the United States Supreme Court held that the Federal Sentencing Guidelines are advisory. Today, in a pair of unrelated cases, the court held that the more lenient sentences handed down were valid and should have been upheld by the appellate courts even though they did not comply with the guidelines.

Double Standard in Cocaine Sentencing

In a 7–2 decision the Justices denied the Justice Department’s appeal of a 15-year minimum sentence handed down from a plea agreement in Norfolk, Virginia. The District Court Judge sentenced a crack cocaine dealer to the 10-year prison term, departing from the 19-22 year term required by the guidelines and the 15 years minimum sentence according to the guidelines. The judge noted the different standards applied to crack cocaine and powder cocaine and rejected the double standard. The appellate court in Richmond, Virginia disagreed with the district court and overturned the sentence.

Writing for the High Court Justice Ginsburg noted the double standard surrounding the sentencing of crack vs. powder cocaine and rejected it out right. The heavy sentencing of crack cocaine has been devastating upon the African American community in this nation. African Americans are serving 88% of federal sentences for crack cocaine. Only 4% of those in prison for crack are identified as Caucasian. Judge Ginsburg’s opinion seems to be based on federal judges imposing sentences that are sufficient, but not greater then necessary to accomplish the sentencing goals enacted by Congress.

Ecstasy Distributor Given Probation Instead of Jail Time

The second case decided today, involved an Iowa man that sold ecstasy when at college. Four years after engaging in the sale of ecstasy the man was contacted by the FBI and helped them with their investigation. Instead of imposing the 3-year prison term called for in the Federal Guidelines the District Court Judge sentenced the defendant to3 years of probation. The Judge noted that the defendant did not engage in narcotics trafficking since ecstasy were limited sales and had ended ceased prior to his graduation from college. At the time of the plea agreement the defendant operated a successful construction business. Basically, the court based its decision for probation on the evidence provided by the skilled criminal defense attorney at a sentencing hearing. The appellate Court in St. Louis, Missouri overturned the sentence and the defendant appealed.

Justice Stevens wrote the 7–2 opinion of the court and noted that the defendant had turned his life around and had been properly sentenced on the case. “An appellate court may take the degree of variance into account and consider the extent of deviation from the guidelines, but it may not require extraordinary circumstances or employ a rigid mathematical formula,” Stevens wrote.

When these two cases are read together the importance of a good criminal defense attorney cannot be overlooked. An attorney who is not willing to accept the status quo and who will demand justice for his client can require the Federal Justice system to regain its humane and merciful soul.

DRUGS: The Differences Between Sales, Manufacturing, Trafficking and Distribution of Drugs

By Mitch Nelson, Attorney at Law and Natalie Banach

$321 Billion. —That is the cursory estimate of the value of the international drug trade, according to the United Nations 2005 World Drug Report. What’s more, about 200 million people (5 percent of the population ages 15-64) are thought to have consumed illegal drugs at least once in the last year. It is undeniable that the global drug trade is large, widespread and deadly.

The high demand for illegal drugs and paraphernalia has led to the emergence of complex black markets all over the world. As with legal commerce, the illegal drug trade is multi-layered with manufacturers, processors, distributors, wholesalers and retailers all caught up in the mix. These international networks also deal in smuggling and trafficking.

Severity of Drug Offenses

In addition to being widespread and complex, however, the drug trade is also highly fragmented. It is the particular nature of production and manufacture of the different drugs that accounts for this. One of the most popular illegal substances, cannabis, is usually grown and sold locally. On the other hand, substances such as cocaine and heroin usually require either large swaths of land to grow or elaborate labs to manufacture. For this reason, large organized drug cartels are often behind the distribution of these drugs. The different offenses associated with the drug trade are as far-reaching as the trade itself. A drug offense can refer to anything from the possession, to the use, to the sale or to the furnishing of any drug or intoxicating substance that is prohibited by law. Most of these offenses are felonies and the penalties can be severe. Some of the factors that determine the severity of a sentence include the quantity of the drug, its classification and the purpose of the possession (for personal use or sale). In addition, factors such as weapons possession or having large amounts of money on one’s body, can also affect the ultimate punishment for a drug offense. In the United States, the foundation for the government’s fight against the abuse of drugs is the Controlled Substance Act. This law was put into affect in 1970 and is a consolidation of the various laws regulating the manufacture and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and chemicals used in the illegal production of controlled substances. The following article will outline the differences between the sale, manufacturing, trafficking and distribution of drugs.

Drug Manufacturing

The manufacture of an illicit drug or substance is defined as the either the preparation or completed acts to produce, propagate, compound or process that drug or substance. According to the Controlled Substances Act, this process can be done directly, indirectly, by the extraction of substances of natural origin, or by means of chemical synthesis. In addition, the term manufacturer refers to the person who manufactures the drug or substance. The manufacture of illegal drugs can be broken down into two classes: those extracted from plants and those synthesized through chemical processes. Drugs such as cannabis and cocaine, where farming is needed for mass production, fall under the first class. In the second class such as methamphetamines, the chemical processes associated with manufacture are more important. In general, penalties for the manufacture of illegal drugs or substances can include imprisonment, anything from a term of years to life, and substantial fines. The severity of the penalties can depend on the amount being manufactured, prior convictions and the type of drug being manufactured.

Trafficking of Drugs

The term drug trafficking refers to the illegal commercial activities associated with the participation in an illegal drug network. Often thought of as smuggling, drug traffickers seek to transfer illegal drugs and substances across jurisdictions, whether it is state or national borders. According to the U.S. Customs Services, each year about 60 million people enter the country via more than 675,000 commercial and private flights. In addition, another 6 million people come by sea, and 370 million by land. More than 90,000 merchant and passenger ships dock at U.S. ports. Amidst all this travel and commercial activity, drug traffickers conceal cocaine, heroin, marijuana and methamphetamines for the subsequent distribution of the drugs in U.S. neighborhoods. Penalties for the trafficking of illegal drugs and substances can include substantial fines in the millions of dollars, as well as imprisonment. Again, the severity of the penalties can depend upon whether or not death or serious injury occurs (in the case of “mules”), the type of drugs being smuggled, the amount and prior convictions.

Drug Distribution

The term distribution means to deliver (other than by administering or dispensing) an illicit drug or substance. In addition, delivery includes both the actual or attempted transfer of a controlled substance. The difference between the sale of an illegal drug and the distribution of an illegal substance is that with distribution the substance does not necessarily have to be sold to the user. In regards to the illegal drug trade, there are two primary means of distribution: a hierarchy and a hub-and-spoke layout. A hierarchal arrangement refers to a system in which the manufacturer uses their own men to smuggle, distribute and store the narcotics. A hub-and-spoke layout, conversely, uses local gangs and crime organizations to distribute and sell the drugs. At the center of the hub-and-spoke layout may be cartel, which dictates how the product of the manufacturers gets to the distributors. In general, penalties for the distribution of illegal drugs are severe and can include substantial fines and even life in prison with no parole. However, the penalty can depend upon prior convictions, the amount being distributed, the type of drug and the extent of the network.

Sale of Drugs

The legal definition of a sale entails an agreement where one party, the seller, gives full possession of something, in exchange for a certain amount of money, to the other party, the buyer, who agrees on that price. In terms of a drug offense, the “thing” being handed over will be the controlled or intoxicating substance. For a sale to be proven four elements need to be met. (1) The presence of a buyer and a seller, (2) the existence of the controlled substance to be sold, (3) an agreed upon price, (4) the consent of both parties and the performance of certain acts necessary to complete the transaction, such as the actual handing over of the object. In regards to the illegal drug network, the sale is often the ultimate transfer. It is the sale that transfers the illicit drug into the hands of the user.

Criminal Charges and Military Service: The Undesirable Effects of a Criminal Charge on Ones Military Service

By: William Rogers, Attorney at Law and Helen Kim

Airman First Class Roelofs had three years and nine months of active military service. During his military service, Roelofs was charged with possessing three grams of heroin with intent to distribute and prosecuted by civilian authorities, rather than by the military. He was sentenced to confinement for eighteen months and placed on probation for three years. Subsequent to his conviction, the Air Force discharged Roelofs from military service based on the conviction in civilian court. Roelofs unsuccessfully challenged the militarys authority to administratively discharge him based solely on the civilian conviction. (Roelofs v. Secretary of the Air Force, (D.C. Cir. 1980) 628 F.2d 594, 595.)

Military Administrative Discharge for Criminal Charges

An administrative discharge is a military personnel action, which is the rough equivalent of being fired from a civilian job. A service members time in service, rank, and the characterization (type) of discharge the military wants to impose determines whether the service member will simply be given written notification of the militarys intent to discharge (papered out or chaptered out) or given the opportunity to appear before an administrative discharge board. In either case, the servicemember has certain due process rights that are specific to the administrative discharge process.

Every branch of the military has its own service-specific discharge regulations, although the regulations have many similarities. For example, in the Air Force, under Air Force Instruction (AFI) 36-3208, an airman convicted by civilian authorities of certain types of offenses may be involuntarily separated from the military, with an honorable, general under honorable, or under other than honorable conditions discharge. These different characterizations of the service members term of service have significance pertaining to the entitlement of Veteran’s benifits, ability to reenlist, or the recoupment of any special pay or allowances received by the service member, including Montgomery GI Bill educational benefits.

Although a service member can be given an Under Other Than Honorable Conditions discharge at the end the administrative separation process, he cannot be discharged dishonorably, which is one of two types of punitive discharges that can only result from a conviction at court-martial a military trial, with the other being a bad-conduct discharge.

Effects of Receiving a Less than Honorable Discharge

Regardless of whether a discharge results from an administrative separation or a court-martial, anything less than honorable is viewed as derogatory and inevitably stigmatizes the recipient. A less-than-honorable discharge results in loss of numerous benefits in both the federal and state systems and limits opportunities for both public and private employment: almost all employment and job application forms require a statement as to military service and the type of discharge received. (Bland v Connally, (D.C. Cir. 1961) 293 F.2d 852, 858.)

In Davis v. United States of America, Davis had over 2 years of active military service. Due to a chronic arthritic condition, which he allegedly incurred during active military service, Davis was awaiting medical discharge. Under such assertions, Davis was eligible for disability compensation. While awaiting medical discharge, Davis was arrested for automobile theft and ultimately convicted of a felony for which he received a two-year sentence. Although Davis was on official leave status at the time of his arrest, he was involuntarily discharged from the Air Force because of his felony charge. (Davis, (5th Cir. 1971) 431 F.2d 409.) Accordingly, the Veterans Administration denied his disability compensation claim pursuant to Title 38, U.S.C.A. 101(2) because he was, discharged or released under conditions other than dishonorable.

The Court in Roelofs recognized that a less-than-honorable discharge stigmatizes an individual. Furthermore, the Court opined that an undesirable discharge is over and above the stigma of a felony because it indicates that the serviceman did not perform adequately on the job. Thus, an undesirable discharge is warranted only if it results in deficiency in performance of military duties or has a direct impact upon the military. Nonetheless, the military may discharge a serviceman other than honorably without showing that the offense was service-related. That means that the military may look into the individuals actions and records outside of the military service if his conduct impacts the overall effectiveness of the military, whether directly or indirectly.

Military Protection from Civil and Administrative Legal Actions

Service members have some protections from civil and administrative legal actions taken against them while in military service pursuant to the Service members Civil Relief Act (SCRA), Public Law 108-189, codified in the United States Code at 50 U.S.C. App. 501-596. The SCRA completely supersedes the Soldiers and Sailors Civil Relief Act (SSCRA) of 1940. In Mayfair Sales, Inc. v. Sams, Sams attempted to invoke the SSCRA in order to stay, or postpone a proceeding in which he was a defendant in a civil case. (Mayfair Sales, Inc. v. Sams, (1st Cir. 1964) 169 So. 2d 150). At the time, the Act provided that:

At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant be stayed as provided in this Act unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service. (50 U.S.C.A. App. 521.)

Pursuant to the Act, the Court in Mayfair held that Sams was not entitled to a stay of proceeding simply because he was in the military, and must show that his military service materially affected his ability to appear and defend his interests. The SCRA broadens the SSCRAs limited application from only civil matters to civil and administrative matters (e.g., child support or paternity determination).

Some courts have adopted similar provisions for defendants in pending criminal cases but these provisions are very state-specific For example, the 44-97.1 of the Code of Virginia provides:

Any party to or attorney in an action or proceeding in any courtwho has been ordered to participate in annual active duty for training or temporary active duty in the reserve forces of any of the armed services of the United States, National Guard, or naval militia shall be entitled to a continuance, not to exceed three weeks, as a matter of right during the period of such duty, provided the continuance is requested at least four days prior to the first day for which the continuance is sought.

It is critical to ensure that the laws of the state in which the stay is sought have been researched and applied as required by each state.

Conclusion

The military has an overall interest, in terms of morale and efficiency, in insisting on a corps of servicemen who abstain from serious criminal activity. (Roelofs v. Secretary of the Air Force, (D.C. Cir. 1980) 628 F.2d 594, 598.) A criminal charge will not only create obstacles for individuals to become members and serve in the military, but a criminal record may also cause members of the military to be involuntarily and less-than-honorably discharged, which could lead to harsh social, economic, and psychological stigma normally associated with a felony conviction in a civilian court.

Minor In Possession: Myths and Facts

By Donna Ortlieb, Esq. and Natalie Banach

Featuring a white lounge chair atop sparkling sand, the gentle lapping of azure blue waves on the shore, palm trees slightly swaying and of course, a refreshing bottle of Corona in hand; its a television commercial thats recognized nationwide.

This Corona advertisement is just one of the thousands of alcohol-related commercials produced every year – many with the intention of selling goods and making profits. While average Americans may find themselves wishing they were on that beach with a bottle of Corona, its not okay for minors to be indulging. The prevalence of underage drinking is widespread and a variety of misconceptions exist regarding minors, alcohol, and the law.

Underage Drinking Statistics

Every year the statistics on underage drinking are staggering – in 2002, 1.5 million youths ages twelve through seventeen met criteria for admission to alcohol treatment, and about 2 million ages twelve through twenty reported drinking five or more drinks on occasion. What is even more disturbing is that these numbers are accompanied by an ever-increasing ignorance of the laws governing minors and the possession of alcohol. Unfortunately, it can be difficult to understand the legal jargon related to a minor in possession charge (the term most often associated with underage drinking), especially since different states can have different laws.

National Minimum Drinking Age Law

With the enactment of the National Minimum Drinking Age Law in 1984, Congress requires that all states – in order to receive state highway funds – prohibit anyone under the age of twenty-one from purchasing or publicly possessing alcohol. However, the particulars of the subsequent state laws that were enacted turned out to be a little more complex. The following unravels some of the myths regarding minor in possession charges and provides legal information about each:

Myth: Im underage, but as long as I stay under the 0.08% limit Im fine, right?

Fact: Its true that according to the law, intoxication is defined as having a blood alcohol concentration of 0.08% or higher. But what most minors dont realize is that this only applies to individuals who are twenty-one or older. It is illegal for a minor to have any alcohol in their system whatsoever. Just staying within the 0.08% limit is not an excuse to drink. Thus, if a law enforcement officer sees a minor drinking, even if its just a sip of beer, they can cite that individual for being a “minor is possession”.

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Myth: I’m sitting on my porch with friends and we’re having a couple of beers. I’m underage, but as long as I’m on private property, the police can’t do anything, right?

Fact: While it may be true that the porch is private property it’s also true that it is still illegal for a minor to possess alcohol. If an officer sees you drinking on some place like a front lawn or driveway, you could be given a ticket for possessing alcohol if you’re underage. The idea here is that there really is no excuse for anyone under age to possess alcohol. The law is very strict when it comes to minors in possession and there are very few exceptions. In some states, there are particular allowances for minors regarding the purchase or consumption of alcohol (In Georgia minors are allowed to buy alcohol for religious services), but these are rare and are accompanied by a variety of specifications.

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Myth: I’m at a party with a whole bunch of people and everyone is drinking. I drank earlier but now I’m not drinking anything. When the police come they arrest me for public intoxication and underage drinking. They can’t do this right?

Fact: If a law enforcement officer sees an individual intoxicated, they can give them a ticket; if that person is underage, they can also be given a minor in possession ticket.

The tests for public intoxication essentially deal with an individual’s ability to walk in a straight line, stand without falling, remembering where they are at a given moment, and essentially being able to take care of themselves. Law enforcement officials can look at everything from speech patterns to odor, but they do not have to check for a minimum blood alcohol content. If a police officer can prove an individual had enough alcohol in their system that they were subsequently incapable of taking care of themselves, they can issue a public intoxication citation, and if they find out that person is underage, that’s another citation.

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Myth: I’m a minor, but my best friend is twenty-one. My friend asked if I would drive him to the liquor store so that he could pick up some beer. Everything is fine, right?

Fact: This scenario is somewhat complicated. Normally, a minor is not allowed to be in possession of any alcohol, including while driving the streets and highways. However, the law does have an exception: the law does not apply to minors that are transporting alcohol by order of a parent, responsible relative, legal guardian, designated adult, or employer. Driving with a twenty-one year old “best friend” that is in possession of alcohol is a situation could boil down to the discretion of the officer if you are stopped. Because the friend might not be considered one of the exceptions to the law, the occupants of the vehicle will more than likely be required to prove that there was no intent for the minor to consume any of the alcohol found in the vehicle. In a situation like this, it’s a good Idea for the minor’s guardian to know that his or her child is driving with someone that is in possession of alcohol.

Crack Cocaine and Powder Cocaine: Should the law treat them differently?

By: Edward Martinovich, Attorney at Law and Helen O. Kim

Crack Cocaine

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.

Foreseeability

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.

Recent Cases

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.

Conclusion

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.

The Crime of Drug Possession: Its Not What You Think It Is

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).

Conclusion

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.

Marijuana Laws Possession, Distribution, Transportation, and Cultivation

By Vince Imhoff, Esq., & Dan Rhoads

Jay gets into his car carrying a small bag of marijuana in his pocket. After driving for a few miles, his car breaks down; and Jay calls his friend Dee. Jay offers to exchange some of his marijuana for a ride back to his house, and Dee agrees. Back home, Jay prepares the marijuana by pulling the usable leaves off the stem.

In possessing marijuana and transporting it, Jay has committed two misdemeanor offenses. Jay also faces two felony countscultivation and possession for saleeach of which is punishable by up to 3 years in prison. Dee faces prosecution for at least 1 misdemeanor and possibly a felony. The risk of severe punishment lies in Californias anti-marijuana statutes.

Possession of Marijuana

Possessing not more than 28.5 grams of marijuana is a misdemeanor punishable by a fine of not more than $100. Cal. Health & Safety Code 11357(b). For a violation on school grounds, the fine can be as high as $500; and the defendant can serve up to 10 days in jail. 11357(d). Possession of more than 28.5 g, for personal use, carries a maximum fine of $500 and/or 6 months in the county jail. 11357(c).

The law recognizes joint possession; so, more than one person can be convicted for possession of the same bag. In People v. Villalobos, 245 Cal. App. 2d 561 (1966), an officer observed ten men huddled together in a location that was known to be a hangout for marijuana smokers. As the officer approached the group, a paper sack was thrown into the air; and the men scattered. The officer did not see who threw the sack and could not say that any specific member of the group had possessed the sack before it was thrown.

Because of joint possession, the officer could reasonably conclude that the sack was the common property–or at least in the common possession–of the entire group of ten men. Villalobos, 245 Cal. App. 2d at 564. However, the magistrate decided that Villalobos could not be convicted for possession of the sacks contents because the defendant was not shown to have been more than a spectator or hanger-on. Id. So, the state instead prosecuted him for marijuana debris that was found in his pocket.

Fortunately for Villalobos, the laws against drug possession do not refer to useless traces or residue. People v. Leal, 64 Cal. 2d 504, 512 (1966). So, the 50 mg of marijuana that were scraped from Villalobos pocket would not support a conviction for possession.

The usability requirement has been consistently upheld. Charred marijuana seeds cannot be used as a basis for conviction because they are useless for either a narcotic effect or for growing the plant. People v. Pohle, 20 Cal. App. 3d 78 (1971). Marijuana soaked in alcohol as a remedy for arthritis or rheumatism cannot support a conviction for possession because it cannot be used as a narcotic nor converted to a usable form. People v. Vargas, 36 Cal. App. 3d 499 (1973).

Marijuana Possession for Sale

Possession of marijuana with the intent to sell is a felony punishable by detention in state prison for either 16 months, 2 years, or 3 years. Cal. Health & Safety Code 11359. Sale of drugs includes transfers for things other than money. People v. Peck, 61 Cal. Rptr. 2d 1 (1996). Intent to sell includes an intent that another person will sell the marijuana that the first person possesses. U.S. v. Sandoval-Venegas, 292 F.3d 1101 (9th Cir. 2002).

Circumstantial evidence and reasonable inferences drawn from that evidence can be used as evidence of intent. Narcotics experts, usually law-enforcement officers, may give their opinion about the possessors intent as testimony. Circumstances tending to prove intent to sell include the quantity of narcotic, equipment found with it, and place it was found. People v. de la Torre, 73 Cal. Rptr. 704 (App. 2 Dist. 1968).

Marijuana Transportation or Distribution

Illegal distribution includes transporting, importing into the state, selling, furnishing, administering, or giving away marijuana, or attempting to do any of those things. The punishment for illegal distribution of more than 28.5 g is imprisonment in the state prison for 2, 3, or 4 years. Cal. Health & Safety Code 11360(a). If the amount is less than 28.5 grams, the punishment is a $100 fine. 11360(b).

One can be guilty of transporting marijuana without ever possessing it. For example, Sharon Botos drove her friend Kent Wenger to the airport after he had stayed at her house for several days. At the gate, a deputy U.S. marshal became suspicious of Wenger and eventually asked to search his luggage. One of his bags was locked, and Wenger at first denied having the key. But when the deputy marshal asked Wenger what he had in his pocket, Wenger pulled out a roach-clip with three keys attached to it. One of them opened the locked suitcase, which contained 6 kilos of marijuana.

Botos indictment for transporting marijuana was upheld. The court reasoned that the circumstances indicated that she knew what the suitcase held. Based upon those circumstances and on Wengers testimony, Botos was convicted. The court noted, her actual possession of the marijuana was irrelevant to the conviction for transporting it. People v. Botos, 27 Cal. App. 3d 774, 780 (1972).

Cultivation, Harvesting, or Processing of Marijuana

A person who unlawfully plants, cultivates, harvests, dries, or processes any marijuana is guilty of a felony. Cal. Health & Safety Code 11358. Although the cultivation statute seems to implicate conduct at the top of the distribution chaini.e., growing marijuana plantsit also applies to the casual user. This is so because of the word processes.

In People v. Tierce, the court held, one who removes the leaves from marijuana plants in order to render the leaves usable for smoking is engaged in processing the drug and thus violates the provisions of [the cultivation statute]. Tierce, 165 Cal. App. 3d 256 (1985). Although the defendant in the case argued that the statute could not have intended to subject casual smokers to felony charges, the court disagreed.

Back to Jay

In addition to maximum fines of $100 for each count of possession and transportation, Jay could be sentenced to prison time. Because he intended to trade marijuana for a ride from Dee, Jay would face a prison sentence of at least 16 months for violating 11359. Jay also committed a felony when he processed the marijuana. If a prosecutor could prove everything Jay did, he would face at least 2 years and 8 months in prison for his exploits during that one day.

Although simple possession is no longer punished severely, violating some marijuana laws leads to serious charges. Due to the scope that the courts have given to some of those laws, seemingly victimless actions can constitute felony offenses. When facing prison time, a person needs a defense attorney who will be a zealous advocate; or he is left to rely on the mercy of a prosecutor or a judge.

Methamphetamine Laws

By Vince Imhoff, Esq., & Dan Rhoads

I. PROPOSED NEW LAWS

In June, Riverside County, California, passed an ordinance that would require retail buyers of specific cold medicines to register their personal information with the drugstore. Literally overnight, the board of supervisors rescinded the measure when the countys lawyers pointed out that the state has exclusive authority to regulate drug sales. The House of Representatives is mulling a proposed law that would be similar to the Riverside ordinance, at least in spirit.

Desperate Measures

The ordinance would have required customers who buy even one package of cold medication that includes pseudoephedrine, phenylpropanolamine or related compounds to provide their names, addresses, telephone numbers, and drivers license numbers to a store clerk (Ramos). The store would have been required to keep the records available for request by law enforcement for three years.

The final version is quite different. It merely requires convicted methamphetamine makers to pay for the cleanup of their hazardous labs and establishes a county fund for rewards to tipsters who help with successful prosecution of meth producers (Rosenblatt).

Although the ordinance raised privacy concerns, its sudden death was due to jurisdictional defects. Congress faces no such barrier.

Federal Law for Methamphetamines

Because the methamphetamine problem has grown from a regional scourge to a national epidemic, Congress is passing federal legislation to confront the issue. An example of a pending law is the Combat Meth Act.

The Combat Meth Act would, among other things:

• classify pseudoephedrine as a Schedule V drug, meaning products containing pseudoephedrine must be kept behind a pharmacy counter and sold only by a pharmacist or pharmacy technician (Feinstein Press Release);
• require customers to present proof of identification and to sign a written log containing the date of the transaction, the name of the buyer, and the amount of the substance purchased;
• limit consumers to buying only nine grams of products containing pseudoephedrine over a thirty-day period; and
• create Special Assistant U.S. Attorney positions under which prosecutors could bring legal action against manufacturers and distributors in federal court.

The legislation is patterned after a similar Oklahoma law that has been given partial credit for an eighty percent decline in meth lab seizures in the state.

Privacy Concerns Raised by Combat Meth Act

Although the Combat Meth Act is not as intrusive as Riversides ordinance would have been, it still raises privacy concerns. The requirements unnecessarily stigmatize people who need medicine or who care for others that need medicine, and such a stigma might prevent people from seeking the treatment they need. Also, the law makes specific medicines available only during pharmacy hours, thus harder to obtain when needed.

According to the American Legislative Exchange Council (ALEC), such actions will violate consumer privacy and will create undue burdens on retailers and pharmacists, all while limiting access for patients and not accomplishing the goal of ending the production of methamphetamine (ALEC Press Release).

Effects of Restricting Access

It is true that making the precursors less accessible has in the past led to lower production levels. In the late 1980s, federal and state lawmakers created laws to make it harder for people to buy the chemicals needed to create methamphetamine (Conaughton). As a result, the Mexican drug-trafficking organizations (DTOs) were forced to get the precursors from other countries, such as China, India, Poland, and Germany (N.D.I.C.).

The restrictions cut down the number of superlabs in the United States, but they also prompted the spread of mini-labs that operate out of homes (Conaughton). Given the fact that the large-scale operations, which are responsible for practically all the methamphetamine in the area, have already been made to look overseas for their ingredients, the new laws potential impact on them is dubious.

Targeting the Bulls Eye

A law targeting high-volume transactions would be more likely to disrupt the supply of methamphetamine. In 2003, Canada passed legislation to control the distribution of precursor chemicals by investigating pharmaceutical companies suspected of selling ingredients to DTOs. In the first year after the law took effect, seizures of meth tablets dropped by about fifty percent (Rood).

The superlabs must continue to be the focus of law enforcement measures. In March 2004, sheriffs deputies served a warrant on a meth lab in a two-story barn on a 10-acre parcel southeast of Perris. They found enough methamphetamine to produce 120 pounds of the illegal drug (Hall).

Each of the three men apprehended was convicted for manufacturing a controlled substance, for possession of a controlled substance for sales, and for related conspiracy charges. Each defendant was sentenced to 15 years. The shutdown of the laboratory put a significant dent in methamphetamine distribution in and around Southwest County (Id.).

By targeting large-scale operations, law enforcement allocates its resources where they have the greatest impact.

II. CALIFORNIA LAWS

Because California, particularly Riverside and San Bernardino Counties, has become the methamphetamine capital of the United States (N.D.I.C.), the state has the most comprehensive anti-meth legislation. Because methamphetamine is a synthetically manufactured substance, the law necessarily addresses all levels of production and distribution. The laws reflect the idea that each successive step toward manufacturing meth is a more serious crime meriting increased punishment. People v. Perez, 29 Cal. Rptr. 3d 423, 430 (2005).

Manufacturing of Methamphetamine

Manufacturing methamphetamine carries the stiffest penalties among the anti-meth laws. A person who manufactures, produces, or prepares methamphetamine can be imprisoned for 3, 5, or 7 years and fined up to $50,000. Cal Health & Safety Code 11379.6.

In addition to restricting access to chemicals like pseudoephedrine, California has criminalized its possession with intent to manufacture methamphetamine or any of its analogs. Cal. Health & Safety 11383(c)(1). In addition to criminalizing substances like pseudoephedrine, which can be precursors to making methamphetamine, the courts have also allowed prosecution when a defendant possessed chemicals essential to making the precursor chemicals.

When sheriffs deputies searched Lisa McCalls cabin, they found boxes of ephedrine tablets, sinus medication containing pseudoephedrine, and the type of equipment used to manufacture methamphetamine. People v. McCall, 8 Cal. Rptr. 3d 337, 339 (2004). McCall was arrested for possession of hydriodic acid with intent to manufacture methamphetamine, even though she had not yet processed the acid, under the provision that, possession of essential chemicals sufficient to manufacture hydriodic acid . . . shall be deemed to be possession of hydriodic acid.

The California Supreme Court upheld the law and McCalls conviction. Later, the legislature changed the language of the statute to say, Any person who possesses immediate precursors sufficient for the manufacture of . . . hydriodic acid . . . with intent to manufacture methamphetamine is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. Cal. Health & Safety Code 11383(f).

It is illegal also to furnish substances, laboratory glassware or apparatus, or chemicals for manufacturing methamphetamine. A person guilty of furnishing precursor chemicals with knowledge or the intent that the recipient will use the substance [unlawfully to] manufacture a controlled substance is guilty of a felony. Cal. Health & Safety Code 11104(a). Someone who furnishes the laboratory equipment or precursor chemicals, with knowledge of their purpose, is guilty of a misdemeanor. Cal. Health & Safety Code 11104(b).

Methamphetamine Distribution or Transportation

Distributing controlled substances such as methamphetamine carries a penalty of 2, 3, or 4 years in state prison. Distributing includes transporting, importing into the state, selling, furnishing, administering, giving away, or offering to do any of those things. Cal. Health & Safety Code 11379.

Transporting a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. People v. LaCross, 109 Cal. Rptr. 2d 802 (2001). Any quantity large enough for one person to use qualifies as a usable quantity. Any movement of the drug from one place to another constitutes transportation, even if a person is just walking across a parking lot with meth in his jacket. People v. Ormiston, 129 Cal. Rptr. 2d 567 (2003).

Possession of Methamphetamines

Possession for sale is a felony punishable by detention in state prison for either 16 months, 2 years, or 3 years. The elements of possession for sale are (1) possession of the dangerous drug, (2) for the purpose of selling it. People v. Allen, 254 Cal. App. 2d 597, 602 (1967). Although in some situations, the circumstances make a sellers purpose obvious, the vagueness of the law can invite prosecutorial overreaching.

At trial, police officers may testify as to factors that point to an intent to sell. People v. Harris, 99 Cal. Rptr. 2d 618 (2000). These factors include the quantity, packaging, and normal use of an individual. However, an officer may not opine about intent without any evidence supporting the opinion. People v. Newman, 95 Cal. Rptr. 12 (1971).

Simple possession carries the least severe penalties. Although it is punishable as a felony, the maximum punishment, absent aggravating factors, is imprisonment in a county jail for . . . not more than one year or in the state prison, Cal. Health & Safety Code 11377, and a fine of up to $70.

Conclusion

Methamphetamine is a growing danger. Its use leads to addiction, crime, and child abuse. Its manufacture causes pollution and can lead to explosions. Trade in methamphetamine involves large, international drug-trafficking organizations.

In order to meet the threat, legislatures are pulling out all the stops. While all the laws are well-intentioned, and most are appropriate, some raise concerns over privacy or require questionably low evidentiary standards.

Defending against a prosecution for a meth-related crime is an uphill climb due to both the laws and the stigma that attaches to such charges.

Works Cited:

ALEC Press Release, ALEC Urges Caution on the Combat Meth Act (22 June 2005).

Gig Conaughton, Meth Problem Growing for Women, Children, Supes Told, North County Times, 20 October 2004.

John Hall, Three Sentenced in Meth Lab Case, North County Times, 4 February 2005.

National Drug Intelligence Center (N.D.I.C.), California Central District Drug Threat Assessment: Methamphetamine, May 2001.

Feinstein Press Release, Talent-Feinstein Bill Would Limit Access to Key Ingredient Used to Make Meth (26 January 2005).

Stephanie Ramos and Hector Becerra, Buying Cold Pills? Fill Out This Form, Los Angeles Times, 29 June 2005, at A27.

Lee Rood, California Scarred by Meth Combat, Des Moines Register, 24 November 2003.

Susannah Rosenblatt and Stephanie Ramos, Meth Measure Wouldnt Burden Shoppers, Los Angeles Times, 30 June 2005, at B10.