CRIMINAL JURISDICTION

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

April 9, 2011

The Paradox that is The War on Drugs

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 11:07 am

While Some Politicians Question Cost Of Incarcerating Drug Offenders, Big Money and Bigger Forfeitures Keeps Texas Tough On Drug Crime

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

An increasing number of states have abandoned the traditional notion that the best way to combat drug use and trafficking is through the costly practice of extended incarceration. TheWall Street Journal last month reported that Kentucky joined the ranks of South Carolina, Colorado and New York to enact laws that shift spending into less expensive and more effective rehabilitation and intensive drug testing programs. Delaware, Florida, Indiana, Massachusetts and Pennsylvania are currently considering bills that would reduce drug penalties and direct some drug defendants into treatment programs.

The newspaper reported that while these drug law changes “are part of broader belt-tightening efforts, they also reflect a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat their underlying addiction problems and can result in offenders cycling in and out of prisons for years …” Many of these lawmakers are conservative Republicans, like State Senator Tom Jensen in Kentucky, who said he had long “bought into the tough-on-crime concept” and embracing the “rehabilitative model” has been “an education process.”

But not all conservative-leaning people are convinced. For example, Scott Burns, executive director of the National District Attorneys Association, told the WSJ that “you need to have serious consequences or repercussions in place if people use heroin, Oxycontin and other drugs.” Aaron Negangard, chairman of the Indiana Prosecuting Attorneys Council, agreed: “Crime will go up in five to 10 years and people will wonder why. It’s because we are letting too many people out of prison.”

FBI crime-gathering data shows that between 1980 and 2009 drug arrests in this country climbed from approximately 580,000 to 1.6 million. Texas was one of the states that watched its prison population rise exponentially until 2007 when, as WSJ reported, the state “began shifting more drug offenders away from prison, which helped hold down the inmate population. The changes cost $241 million, less than half what the state anticipated it would have spent to build three new prisons. The impact on the crime rate isn’t clear.”

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March 11, 2011

DRUG CHECKPOINTS AND THEIR AFTERMATH

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 6:27 pm

Drug Mules/Smugglers Beware: Permanent Border Patrol Checkpoints in Texas Seize Tons of Drugs, Marijuana, Illustrate Inhumanity of Drug Laws

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There are many problems with mandatory minimum sentencing as we have discussed in previous blogs, but the following is just one real life example. He is a Mexican national, a legal resident in this country. He is a long haul truck driver. He has a family to support. He is approached by people who want him to haul a legal shipment of produce. He is told contraband will be concealed in the produce. But he is not told what the contraband is. He is paid one thousand dollars to make the delivery. It will help pay the bills, particularly the medical bills for one chronically ill child.

But things go awry. He is stopped at a drug checkpoint near the Texas border. A drug-sniffing dog alerts on the trailer of his rig. Border patrol officers have probable cause to search the trailer, but the driver eliminates the need for a warrant with consent to search. The search reveals over 2000 kilograms of marijuana. The driver is arrested. He is eventually indicted 21 U.S.C. § 841(a)(1) with possession with intent to distribute a controlled substance. Under subsection (b)(1)(A) of this statute, the driver faces a mandatory minimum of ten years imprisonment and a maximum of life imprisonment in addition to a possible fine of up to $4 million. With no “priors” or criminal history, the U.S. Sentencing Guidelines will recommend a minimum sentence of approximately 13 years (156 months) in such a case, and probably much worse.

Sentencing in these kinds of drug cases can be severe as evidenced last month when United States District Judge Micaela Alvarez, sitting in Laredo, sentenced eight members of a drug trafficking organization to 180 to 360 months without parole. The drug traffickers, operating out of McAllen, used tractor trailers to ship marijuana and cocaine to Georgia, Florida and North Carolina. The organization hired commercial truck drivers to transport the drugs concealed in legitimate merchandise who, on their return runs, transported large amounts of cash received from the drug sales. U.S. Attorney Jose Angel Moreno said the drug money was distributed throughout the Rio Grande Valley. This particular drug bust alone resulted in the seizure of 200 kilograms of cocaine, 2000 kilograms of marijuana, and the seizure/forfeiture of nearly $5 million.

U.S. Attorney Moreno said six of the members were truck drivers who received sentences ranging from 180 months to 350 months depending upon U.S. Sentencing Guidelines calculations. Judge Alvarez added that each of the eight defendants would have to serve periods ranging from 3 to 10 years under “supervised release” upon completion of their prison terms. This means that at a minimum the least culpable of these defendants will have to spend nearly 20 years while the most culpable will spend nearly 40 years under some form of federal supervision. With no parole, federal inmates serve approximately 87 percent of their sentence in actual custody.

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August 15, 2010

APPELLATE COURTS DO NOT ALWAYS GET IT RIGHT EITHER

Filed under: Federal Crimes Lawyer — Tags: , , , — johntfloyd @ 12:10 pm

U.S. Fifth Circuit Court of Appeals Corrects itself by Holding Overt Act Not Element of Conspiracy to Launder Money, 18 U.S.C. § 1956(h)

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Money laundering is a process through which either the source or use of proceeds from illegal financial transactions are concealed. The primary purpose of a money laundering operation is to hide either the origin or destination of money derived from ill-gotten gain. Most money laundering operations are tied to illicit drug trafficking. The Office of National Drug Control Policy estimates that Americans spend $65 billion each year on illicit drugs. Since federal law enforcement agencies seize only $1 billion in drug money each year, according to the U.S. Drug Enforcement Administration, there is a lot of illegal money being laundered at both national and international levels. In 1986 Congress passed the Money Laundering Control Act, which is codified in the United States Code, Title 18, Section 1956, and is the statute most often used by the U.S. Justice Department to prosecute money launderers. In 2007 former Assistant U.S. Attorney Charles Intriago told USA Today that it is easy “to move money in and out [of the country], using U.S. companies, without a trace. This is a glaring problem.”

This “glaring problem” recognized by law enforcement perhaps influenced the U.S. Supreme Court in 2005 to decide Whitfield v. United States which held that federal prosecutors do not have to prove an “overt act” in order to secure a money laundering conspiracy conviction. In a legal sense, an “overt act” is an open, outward action, or step, taken to carry out the intention to commit a crime, from which criminal intent can be implied. The Whitfield decision followed the lead of an earlier Supreme Court decision in United States v. Shabani which held in 1994 that the government did not have to prove an “overt act” as an element in a drug conspiracy case.

The Whitfield decision was particularly significant in this federal circuit because the Fifth Circuit Court of Appeals in United States v. Wilson, which was decided in 2001, held that an “overt act” was an essential element in money laundering conspiracy cases. However, even though Whitfield effectively overruled the Wilson decision, the Fifth Circuit in United States v. Armstrong, which was decided in 2008, and United States v. Bueno, which was decided in 2009, kept saying in dicta that an overt act had to be proven by federal prosecutors to secure a money laundering conspiracy conviction. Apparently this was a mistake.

But the appeals court last month in United States v. Balleza (in a per curiam decision) finally resolved the conflict. In a one sentence paragraph, the court held that “in conformity with Whitfield, we recognize that an overt act is not an element of the offense of conspiracy to launder money.”

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