Drug Defense Attorney « CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

August 15, 2009

TRIAL OBJECTIONS MUST BE CLEAR AND PRECISE

Filed under: Drug Defense Attorney — Tags: Criminal trials, drugs, evidence, Objections — johntfloyd @ 2:49 pm

Court of Criminal Appeals of Texas Finds Lawyer’s Careful and Repeated Objections did not Preserve Error

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

Criminal trials are governed by strict rules of evidence and procedures. It is the duty of a defense attorney to not only know but understand these rules and procedures precisely. We have written several times in the past about the harm caused by a defense attorney’s inadvertent failure to make specific, timely and properly lodged objections during the course of a criminal trial. The Texas Court of Criminal Appeals recently delivered that same unreasonable message once again and in no uncertain terms.

The case involved Luis Pena who, in 1998, was charged with possession of marijuana seized during a traffic stop. He was put on trial in 2003. His attorney had learned that the evidence in the case had been destroyed in 2000. The attorney also learned through a thorough investigation that all of the records and documents associated with the lab report of the Texas Department of Public Safety concerning the marijuana had been lost. So prior to trial the attorney diligently filed a motion for an independent lab analysis of the seized marijuana and moved to suppress the DPS lab results. These motions were denied by the trial court.

Not to be deterred, Pena’s attorney lodged general evidence-custody objections based on the laws of Texas, the Texas Constitution, and the U.S. Constitution. The trial judge denied these objections, citing U.S. Supreme Court precedents that require a state criminal defendant to not only show that the lost or destroyed evidence was both material and favorable to his defense but that the state act in bad faith when it lost or destroyed the evidence.

During Pena’s trial, the prosecution called a DPS chemist to testify about the lab test results. Pena’s attorney not only properly objected but requested that he be allowed to question the chemist outside of the jury’s presence to assess his qualifications and to determine the admissibility of the test results. The trial judge granted the attorney’s request, and after both sides had an opportunity to question the chemist about the destruction of the evidence, the judge personally questioned the chemist to determine if DPS had acted in bad faith when it destroyed the evidence. The judge concluded the law enforcement agency had not only acted in bad faith but that the destroyed evidence was not favorable to Pena. (more…)

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August 3, 2009

SENTENCING ENTRAPMENT: A FALLOUT OF REFORM

Filed under: Drug Defense Attorney — Tags: ACLU, crack cocaine, sentencing, sentencing entrapment — johntfloyd @ 6:56 pm

Prosecutors and Law Enforcement Officials Manipulate Investigations, Defendants Receive Greater Sentences

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

What is sentencing entrapment?

In a syndicated column that appeared in the Houston Chronicle (July 23, 2009), Larry Frankel, the legislative counsel for the ACLU in Washington, D.C., called sentencing entrapment “a little-known phenomenon in our criminal justice system” and it occurs “when the government through its agents or informants makes a person, who may have a predisposition to engage in one sort of criminal activity, to engage in more serious criminal activity that exposes that person to harsher punishment.”

Frankel illustrated this institutionalized form of governmental misconduct with a series of cases, including the highly-publicized case of Willie M. Aikens. This former major league baseball player recently testified before Congress about his fall from social grace through a debilitating crack cocaine habit. Aikens told the lawmakers he was contacted by an undercover police officer who asked him to “score” some drugs for her. The undercover officer encouraged Aikens several times to cook powder cocaine down into crack cocaine which provides a far more intense “high.”

Aikens’ original criminal predisposition was to provide the undercover officer with “powder” cocaine. The officer, however, kept urging the former World Series hero to cook the cocaine powder down into crack cocaine which ultimately caused him to be charged and convicted of possessing crack cocaine rather than powder cocaine. Under the United States Sentencing Guidelines in place at the time, possession of crack cocaine was considered 100 times more serious than possession of powder cocaine..

In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to a 20:1 ratio. The 100:1 ratio required federal judges to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. This disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with serious racial implications. Black crack cocaine offenders, like Aikens, were routinely punished 100 times more severely than white powder cocaine offenders. (more…)

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June 20, 2009

U.S. SUPREME COURT LIMITS VEHICLE SEARCHES

Filed under: Drug Defense Attorney — Tags: drugs, marijuana, unreasonable search, vehicle searches, warrantless search exception — johntfloyd @ 1:59 pm

Arizona v. Gant, 129 S.Ct. 1710, (2009); Vehicle Searches after Arrest

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Consider the following hypothetical. Two patrol officers with the Houston Police Department were following a Cadillac in an area known for gang and drug activity. Loud music was coming from the vehicle as it swerved several times from lane to lane. The officers decided to stop the vehicle for failure to maintain a single lane of traffic. In Texas, a law enforcement officer may lawfully stop a person for a traffic law violation. 1/

Once such a lawful investigative stop has been made, the law enforcement officer may temporarily detain a motorist if the officer has reasonable suspicion based upon clear facts which, when combined with reasonable inferences from those facts, permits the officer to conclude that a person detained is, has been, or soon will be engaged in criminal activity. 2/

The two officers that stopped the Cadillac approached the vehicle from different sides. One officer stopped at the driver’s side window while the other stopped at the rear passenger side of the vehicle. Both officers smelled a strong odor of marijuana and the officer at the driver’s side spotted an open bottle of tequila on the seat next to the driver.

At that point the officers had probable cause to arrest the driver for an open container violation. But they did not do so. Instead they instructed the driver to exit the vehicle. While the driver had not been arrested at this juncture, the two officers made a decision to search the vehicle based on the smell of marijuana. (more…)

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June 7, 2009

A GLIMPSE AT THE NATION’S DRUG PROBLEM

Filed under: Drug Defense Attorney — Tags: cocaine, Crack, drugs, Illegal drugs, prison industrial complex — johntfloyd @ 2:56 am

20:1 Crack/Powder Ratio Still Flawed; Incarceration of Most Drug Offenders Absurd and Obscene

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to 20:1. The 100:1 ratio under the U.S. Sentencing Guidelines required federal district courts to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. That disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with all sorts of ugly racial implications. Crack cocaine offenders, disproportionately African American, were routinely punished 100 times more severely than powder cocaine offenders.

In November 2007 Congress approved the 20:1 ratio amendment suggested by the Sentencing Commission—a modification designed to reduce the disparity between crack/powder cocaine sentences. But the official reasoning of the 20:1 ratio is just as flawed as was the 100:1 ratio. It just as offensive, with its inherent racial disparity, to punish crack cocaine offenders 20 times more severely than powder cocaine offenders as it was to punish them 100 times more severely.

The month after Congress adopted the 20:1 ratio the U.S. Supreme Court gave this Sentencing Guidelines (“Guidelines”) amendment more legal force in the case of Derrick Kimbrough. In the Kimbrough case the court held a sentence imposed within the Guidelines could be unreasonable because of disparity between crack and powder cocaine sentencing recommendations.

Section 3582 of Title 18 of the United States Code allows federal inmates who believed they had received unreasonably harsh sentences for crack cocaine offenses to file for a reduction of their sentences following the 2007 amendment. Hundreds, if not thousands, immediately did so. (more…)

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June 3, 2009

JUICED BY THE DESIRE FOR FITNESS

Filed under: Drug Defense Attorney — Tags: Anabolic steroids, drugs, fitness, Illegal drugs, JUICED, STEROIDS — johntfloyd @ 2:49 am

Addiction to Pumping Iron and Juicing Leads to Massive Arrests in Houston Area and Ft. Bend County

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

It was billed by raiding law enforcement officials as the “largest drug operation” in Fort Bend County history. The stark, glaring headlines and the “perp walks” would lead one to believe that a violent Mexican drug cartel had just been “busted” in Fort Bend County.

But that wasn’t the case. The “drug operation,” coined Operation “Farmacia de Juicy Phruit,” involved about six dozen personal fitness trainers and body builders who sold human growth hormones, anabolic steroids, Hydrocodone, and Ecstacy in area fitness centers. The mass arrests, which included a Houston firefighter (as if the Houston Fire Department needed more adverse publicity), culminated a two-year investigation led by the U.S. Drug Enforcement Administration and Fort Bend County Sheriff Milton Wright. Fifty-one of those arrested were booked on state charges while the remaining 22 were indicted on federal charges, including money laundering and conspiracy to possess, distribute and manufacture a controlled substance.

“The investigation started here with the sheriff’s office and we ended up following it to other areas where they were bringing in raw products, or were connected otherwise,” DEA special agent Zoran Yankovich told the media. “And it led us into California, Indiana, Louisiana, Georgia, and internationally where raw products were being imported from Mexico, Canada and China.”

Now the primary targets of the investigation face a 46 count federal indictment, a maximum period of incarceration of 20 years and forfeiture of all property and money traceable to their alleged crimes. A stiff price to pay for the endless pursuit of getting bigger and better. (more…)

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January 30, 2009

JUDICIAL WAR OVER CRACK SENTENCING COMES TO AN END

Filed under: Drug Defense Attorney — Tags: appeals, Booker, Crack Sentencing, Crack/Powder Cocaine Ratio, drugs, Illegal drugs — johntfloyd @ 6:45 pm

Moore and Spears: District Courts have Discretion to Reject the 100:1 Crack/Powder Cocaine Ratio

By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair

Last October we posted a blog entitled “The Judicial Wars Invoked by Crack Sentencing” (Oct. 24, 2008). The blog focused on a judicial tiff between the U.S. Supreme Court and the Eighth Circuit Court of Appeals in the case of James Eric Moore. We are pleased to report that the Supreme Court has finally put this issue to bed in two cases this Term.

This judicial controversy actually began on January 12, 2005 when the Supreme Court issued a controversial ruling that federal district courts were not required to impose precise sentences recommended by the U.S. Sentencing Guidelines. See: United States v. Booker, 543 U.S. 220 (2005). The Court said the Guidelines were advisory in nature, and not mandatory sentencing requirements. Id., at 245-46.

As we reported last October, U.S. District Court Judge Linda Reade, Northern District of Iowa, on November 21, 2005, imposed a term of 188 months of confinement and six years of supervised release on James Eric Moore following a jury conviction for possession with intent to distribute crack cocaine. Relying upon the recent Booker decision, Moore asked Judge Reade to impose a sentence below the one recommended by the Guidelines. The judge replied:

“With regard to the crack and power cocaine difference, that is the law. I’m applying the law as it currently stands. If that is going to be changed, that is a congressional matter. Congress is the one who looks at the guidelines and decides whether or not they should be put in—in force … It isn’t the judges. It’s the lawmakers, and I have taken an oath to apply the law, and that’s what I will do in this sentencing.” (more…)

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December 24, 2008

HISD CONSIDERS RANDOM DRUG SEARCHES

Filed under: Drug Defense Attorney, Houston Criminal Lawyer — Tags: andom drug search, drug testing, drugs, Illegal drugs, privacy, war on drugs — johntfloyd @ 3:48 pm

The War on Drugs at School vs. Teachers’ Expectation of Privacy

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Over the last two months sixteen Houston Independent School District employees, including 11 teachers, have been arrested on drug charges—mostly involving marijuana or prescription drugs found in parked vehicles on school campuses. Two of the employees were arrested twice. Most of the arrests came after anonymous tips, prompting HISD police to use drug-sniffing dogs to hit on narcotics in the vehicles.

“This is a matter of great concern to us and we wanted to make sure that our community understood that we will take whatever action is necessary to make sure our schools are safe,” HISD Superintendent Abelardo Saavedra said in response to the sudden rash of arrests.

Besides pressing for the immediate termination of the arrested employees, Saavedra informed the Houston Chronicle that the school district is contemplating a plan to use drug sniffing dogs to search for narcotics in employee parking lots in every HISD school.

Current HISD policy, according to the Chronicle, only permits random drug tests for bus drivers, police officers, and other security personnel. While the executive director of the Congress of Houston Teachers said he was a little concerned that the drug-dog searches might violate civil liberties, Chuck Robinson minimized his concern by adding that “we have to maintain public confidence and trust in our employees.” (more…)

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October 25, 2008

THE JUDICIAL WARS INVOKED BY CRACK SENTENCING

Filed under: Drug Defense Attorney, federal Appeals Attorney — Tags: appeals, Booker, Crack Sentencing, drug laws, Supreme Court — johntfloyd @ 5:24 am

Supreme Court: Federal Judges Have Discretion at Sentencing

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Under the Sentencing Reform Act of 1984, a federal district court judge must consider each of the factors prescribed in 18 U.S.C. § 3553(a) when imposing an appropriate criminal sentence. The § 3553 factors are:

“Nature and circumstances of the offense” and defendant’s “history and characteristics.” Id., at (a)(1). Under U.S. Supreme Court jurisprudence the sentencing judge is limited to those facts (1) “reflected in the jury verdict,” (2) admitted by the defendant, (3) contained in defendant’s guilty plea, or (4) reflect prior convictions. See: Blakely v. Washington, 542 U.S. 296, 303 (2004) [facts affecting sentence must be found by a jury].
The general purpose of the Sentencing Reform Act. Id., at (a)(2). The purposes of this Act are to have a sentence “(A) reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner …”
The types of sentences available. Id., at (a)(3).
The policy statements of the U.S. Sentencing Commission. Id., at (a)(5).
The need to avoid sentencing disparities between defendants convicted of similar conduct. Id., at (a)(6).
The need to provide restitution to victims. Id., at (a)(7).
The applicable sentence range recommended by the U.S. Sentencing Guidelines. Id., at (a)(4).

Three years ago the United States Supreme Court held that the Guidelines are advisory and federal district courts were not required to impose the precise sentence recommended by the Guidelines. See: United States v. Booker, 549 U.S. 220, 245-46 (2005). Two years later the Supreme Court overruled the longstanding legal premise that district courts had to apply a provision of the Guidelines that made one gram of crack cocaine the equivalent of 100 grams of powder cocaine for sentencing purposes. See: Kimbrough v. United States, 128 S.Ct. 558, 575 (2007).

In the wake of Booker, the Honorable Linda R. Reade of the United States District Court for the Northern District of Iowa on November 21, 2005 sentenced James Eric Moore to a term of 188 months in confinement and six years of supervised release following a conviction for possession with intent to distribute crack cocaine. Moore had asked Judge Reade to impose a below-Guidelines sentence in light of the recent Booker decision. The judge replied: (more…)

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