Trial for Conspiring to Possess with Intent to Distribute Cocaine

Bailey v. United States, Overturning 18 u.s.c. § 924(c) Convictions Relief For Defendants Whose Case Involves Firearms

Several years ago the United States Supreme Court decided a case which seriously undermined the government’s ability to prosecute  persons under 18 U.S.C. §924(c) for the alleged ‘use’ of a weapon in connection with a drug offense.  This case has had lasting ramifications for defendants who are facing trial and/or sentencing, involving the ‘use’ or possession of a firearm.

Specifically, the Bailey case began with a conviction under 18 U.S.C. §924(c) by one of the defendants for having a loaded 9-millimeter pistol in a locked trunk of his vehicle.  The defendant had been stopped, and in his car were 30 grams of cocaine. The District Court and Court of Appeals both determined that the defendant could be convicted for using a firearm simply by the fact that the gun, located in the trunk, was there to protect the drugs which were found in the rest of the car, and to facilitate any sales of those drugs.

The Supreme Court reversed on these facts.  Specifically, the court held that the term ‘use’, as is set forth in the statute, is much more limited than mere possession of a firearm by a person who commits a drug offense.  Specifically, the court held that the term ‘use’ could only be utilized in cases under a very narrow set of circumstances.  The court specifically stated:

to illustrate the activities that fall within the definition of ‘use’ provided here, we briefly describe some of the activities that fall within “active employment” of a firearm, and those that do not.  The active employment understanding of ‘use’ certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire a firearm.

Undoubtedly, this new holding severely curtailed the ability of the government to argue that a weapon was ‘used’ during a drug trafficking offense, under §924(c).  This is critical to every criminal defendant’s case who is involved in this type of issue.  Of course, §924(c) has a five-year consecutive term (and more if there is subsequent or more than one offense).  By eliminating most of the arguments regarding the use of a firearm, this case severely hindered the government’s ability to successfully prosecute or enhance the sentence of persons who simply have a firearm in the vicinity of where a drug transaction takes place.   Further, for those defendants already serving their sentence,  Based on NLPA’s research, many attorneys believe that this case may be applied retroactively, although it will have to be dealt with on a case by case basis with advice and counsel by your lawyer of record as different district courts may treat the case in different fashions.

NLPA stands ready to assist in the preparation of any pleadings which are necessary that can best utilize this argument.  NLPA works on a daily basis in the areas of pre-trial, sentencing, appellate work, and post-conviction work, working with counsel to ensure the most up-to-date research possible.  If your client is preparing to go to trial, is facing sentencing or desires to pursue post- conviction relief concerning this issue, contact NLPA immediately.

IMPORTANT NOTICE:  Although National Legal Professional Associates (NLPA) is owned by The Criminal Defense Firm, LLC (a law firm), National Legal Professional Associates is NOT a law firm and does not provide legal advice.  Accordingly, the retention of National Legal Professional Associates does not create a client-lawyer relationship.  National Legal Professional Associates’ research and writing services are provided under the direction and control of the defendant’s own legal counsel.

 

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Overturning Convictions On Appeal

Techniques for Overturning a Conviction Based Upon Prosecutorial Misconduct

Notwithstanding the legal principle that a defendant in a criminal case can only be convicted if the evidence shows him to be guilty beyond a reasonable doubt, it is not uncommon for a jury to convict a defendant when the standard of proof has not been met by the government. As a result, many innocent defendants are languishing in prison today. The case of Charlie Gavin is an excellent example of how with the help of NLPA, counsel can successfully overturn such a conviction on appeal.

Charlie Gavin was convicted by a jury in the Grenada County, Mississippi Circuit Court of three counts of possession of a firearm by a felon, and one count of possession of a deadly weapon. Mr. Gavin worked in a convenience store owned by a relative. Law enforcement sent an informant inside the store while Mr. Gavin was working, in hopes of purchasing drugs. There followed a confrontation between Mr. Gavin and the informant, and the police poured in after the informant gave a distress signal. Following a search, a gun was found in the purse of another employee, two guns were found in a file cabinet behind the counter, and a machete was found under a sink. Officers said that the other employee told them the gun in her purse belonged to Mr. Gavin. Because he was considered a “habitual offender” under Mississippi law, Mr. Gavin received four consecutive life sentences.

After his conviction and sentencing, Mr. Gavin’s family retained NLPA to assist attorney Johnnie E. Walls in preparing Mr. Gavin’s appeal brief. For the weapons found tucked away inside the store, the brief argued that there was insufficient evidence to show that Mr. Gavin actually or constructively possessed any of the weapons found inside. Mr. Gavin was only an employee, the store was owned by someone else, and there were other employees. In fact, there was no evidence that Mr. Gavin even knew any of the weapons were in the store. Testimony established that the machete was left in the store by a relative, who had used it as a farm tool. No testimony was offered to establish that Mr. Gavin had ever handled, mentioned, or otherwise dealt with any of the weapons other than the one found in his fellow employee’s purse. The only evidence that linked Mr. Gavin weapon was the hearsay statement of the other employee.The Mississippi Court of Appeals reversed three of his convictions straight out. The Court found insufficient evidence to show that Mr. Gavin actively or constructively possessed the guns or the machete found in various places around the store. There was little evidence offered that Mr. Gavin even knew of their existence. The State argued that Mr. Gavin operated a drug business out of the store, and that he kept weapons around the store to protect himself. While the Court agreed that that theory may have been correct, there was no incriminating evidence beyond his presence in the same room to support constructive possession. Even evidence that he was once seen handling the gun in the filing cabinet was not sufficient to establish possession, as it did not establish dominion and control over the weapon on the day of his arrest. Mr. Gavin no longer has to worry about three of his life sentences.

As for the fourth count, the Court of Appeals reversed and remanded for further proceedings. The Court found the co-employee’s statement inadmissible hearsay, and far from harmless, as it was quite powerful evidence of his dominion and control of the weapon. The State, however, argued that the statement was admissible because the statement was made in Mr. Gavin’s presence and he did not deny that the weapon was his. The Court remanded for a determination of the circumstances of Mr. Gavin’s supposed failure to deny, because there was nothing in the record to established whether Mr. Gavin stood mutely, objected vociferously, or something between those two extremes, or whether he was already in custody and was aware of his right to remain silent.

Through the efforts of counsel and NLPA, Mr. Gavin successfully challenged four consecutive life sentences and won. Three of those convictions were defeated on the sufficiency of the evidence claims. Contrary to the finding of the jury, the evidence simply wasn’t enough in this case to sustain Mr. Gavin’s convictions, even in Mississippi.

If you are representing a client who has been wrongfully convicted, contact NLPA. We can help you in the fight for justice for your client.

Techniques for Overturning a Conviction Based Upon Prosecutorial Misconduct

Techniques for Overturning a Conviction Based Upon Prosecutorial Misconduct

Oftentimes a defendant who is convicted at trial will discover new evidence that casts doubt on the verdict of the jury. The case of United States v. Cargill, No. 2:94cr300 is an example where NLPA has been successful in assisting counsel for the defendant in obtaining a new trial based upon newly discovered evidence of prosecutorial misconduct.

After a five day trial, Mr. Cargill was convicted of conspiracy to distribute crack cocaine in Rockingham, North Carolina. Subsequent to trial, Mr. Cargill and the other co-defendants filed a motion for a new trial based on newly discovered testimony of two witnesses that cast doubt on the testimony of Lee Settle, who was the Government’s principal witness at trial. Mr. Cargill argued that a new trial was warranted because the prosecutor knew or should have known that Settle’s testimony was false, but failed to notify either the court or defense counsel about it. However, the district court denied Mr. Cargill’s motion for a new trial without making any findings as to whether prosecutorial misconduct occurred.

Mr. Cargill then retained NLPA to provide research to his attorney for his appeal to the Fourth Circuit Court of Appeals. On appeal, Mr. Cargill argued that the court improperly denied his motion for a new trial, claiming that Settle had lied on the stand by denying his involvement with a rival drug dealer. The Fourth Circuit Court of Appeals found that the district court failed to make any findings as to whether prosecutorial misconduct occurred. Accordingly, the Court of Appeals vacated the district court’s order denying the motion for a new trial and remanded the case for the district court for reconsideration of that motion. United States v. Cargill, 134 F.3d 364, 1998 WL 39394 (4th Cir. 1998).

Consistent with the Fourth Circuit’s opinion, the district court held a hearing on June 8, 1998 for the purpose of making factual findings as to whether the prosecutor engaged in misconduct. After the hearing, the district court concluded that Settle’s testimony was, in fact, false. Although the district court did not find that the prosecutor intentionally offered the perjured testimony of Settle, there is no doubt that once Settle testified, the Prosecutor knew or should have known that Settle was not being truthful regarding his involvement with a rival drug organization. The court held that the Prosecutor failed in his constitutional duty to notify the court or defense counsel of Settle’s misrepresentations. Accordingly, the Prosecutor engaged in misconduct.

The court next turned to the issue of whether the prosecutor’s misconduct warranted a new trial. In concluding that a new trial was warranted, the court found that the fact that Settle provided false testimony about his relationship with a rival drug organization could have created a serious credibility concern for the jury as to the truthfulness of Settle’s other testimony. Applying the standard that is used to determine whether a new trial should be granted, the court concluded that “there is a reasonable likelihood that a jury could have reached a different verdict if Settle’s false testimony had been brought to the attention of the jury, the Court, or the defense.” Therefore, the Court granted Mr. Cargill’s Motion for a New Trial.

If you are representing a defendant who obtains important new evidence of prosecutorial misconduct after he or she was convicted, contact National Legal Professional Associates (NLPA). A defendant in this situation may be able to get a new trial by filing a Motion for a New Trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure or by appealing a denial of a Motion for a New Trial. For more than a decade, NLPA has assisted attorneys in obtaining significant relief for their clients. We hope you will contact NLPA the next time you have a client who is in need of such assistance.

Anderson Victory

Anderson Victory

As the result of the decisions in Bailey v. United States, a second look at the issue of the alleged possession of a weapon and are granting relief.  Another one of NLPA’s victories in this area involved the case of Jessie Anderson who was convicted at trial for conspiring to possess with intent to distribute cocaine as well as the alleged use of a firearm in relation to a drug trafficking offense.  After Mr. Anderson’s conviction at trial and sentencing, he then asked National Legal Professional Associates to assist his counsel in the preparation of his appeal to the Court of Appeals for the Sixth Circuit.  In the case of Mr. Anderson, the weapon in question was hidden under a mattress.  At the time of his arrest, federal agents alleged that he attempted to reach under the mattress to obtain the weapon.  However, in vacating Mr. Anderson’s conviction and sentence for the weapons charge, the Court did not buy the government’s argument that he was “attempting to fire” a weapon that was hidden underneath a mattress by simply reaching for it.  As a result of this victory, Mr. Anderson’s term of confinement was reduced by five years.

If you have a client who is either facing trial, sentencing or desires to appeal his conviction for the alleged possession of a weapon during the course of a drug trafficking offense and would like NLPA assist you in research to assist your client  in obtaining relief from that charge, contact NLPA.

Of course, NLPA cannot guarantee favorable results in every case.  However, NLPA can guarantee that they will utilize the most up-to-date research sources available and will be able to provide counsel with all of the case law arsenal available in order to combat either an illegally imposed sentence or an illegally imposed conviction.  With NLPA assisting the  defense team, you can count on top quality and up-to-the-minute research to raise the strongest possible issues to assist in pursuing a successful outcome of the case.

New Developments Concerning Mandatory Minimum Cases

As you are no doubt  aware, Attorney General, Reno has recently issued numerous statements calling for the abolish of mandatory minimum sentences.  On February 17, 1993 Representative Don Edwards (DCa) introduced bill HR957 known as the Sentencing Uniformity Act of 1993 which is designed to repeal all federal mandatory minimum sentences.  This piece of legislation has been referred to the House of Representative’s Judiciary Subcommittee on Crime and Criminal Justice (Chaired by Representative Charles Schumer (D-NY)).  The Subcommittee is currently holding hearings on the bill.

Based upon the information which NLPA has received, it appears extremely unlikely that the Edwards bill will be approved by Congress at this time.  However, it is important for defense counsel to realize that there are positive developments which are occurring in the courts as federal judges continue to struggle with ways of making the current mandatory minimum legislation with respect to drug offenses be applied more equitably.

Recent examples of this are found in the following cases:

US vs. Becerra 992 F. 2d 960 (9th Cir. 1993)
US vs. Young ____ F. 2d.____ (7th Cir. 1993)
US vs. Martinez 987 F. 2d. 920 (2nd Cir. 1993)

In Becerra the Court of Appeals for the 9th Circuit found that a defendant’s mandatory minimum sentence depends upon reasonable foreseeability.  In this case two defendants plead guilty to conspiracy to distribute more than 5 kilograms of cocaine.  While this amount of cocaine would normally subject the defendant to a 10 year mandatory minimum sentence, in this case, the defendants had arranged to single kilo sales and there had been discussions (not involving these two defendants) with a third defendant about supplying 25 kilos of cocaine.  Nonetheless, the District Court sentenced the two defendants who had only been involved in two single kilo cocaine sale transactions through the 10 year mandatory minimum and the defendants appealed their sentences.  On appeal, the 9th Circuit reversed the mandatory minimum sentence of the two defendants because the facts did not support their knowledge of the 25 kilos or that such quantity was reasonably foreseeable to them.  The court further held that the government must show that a particular defendant had some connection or reasonable foreseeability of the larger amount of cocaine in order to be subject to the mandatory minimum sentence.

Also, in US vs. Young, the Court of Appeals for the 7th Circuit held that drugs produced by a conspiracy can not be attributed to a defendant unless that quantity was reasonable foreseeable to the defendant.  Accordingly, the 7th Circuit’s Court of Appeals vacated the defendant’s mandatory minimum sentence and remanded the case for a resentencing because it found that there was no support on the record for the District Court’s finding that the conspiracy’s 12500 marijuana plants were attributable to him.

In the case of US vs. Martinez, the Court of Appeals for the Second Circuit ruled that a defendant who received a mandatory minimum sentence after being convicted of conspiring to distribute over 5 kilograms of cocaine must have his sentence vacated.  The court held that because of the conspiracy, the District Court failed to determine whether the 5 kilograms involved in the conspiracy were reasonable foreseeable to the defendant as would have been required under the guidelines.  The court further held that even though one pleads to a conspiracy carrying a mandatory minimum sentence, if the “reasonable foreseeability” standard of the guidelines is not met, the mandatory minimum does not apply.

As the foregoing cases clearly indicate, although the Congress has yet to pass any laws vacating the mandatory minimum sentencing scheme which is currently in effect for drug offenses, the courts are finally beginning to utilize the issue of “reasonable foreseeability” to enable defendants who otherwise would have no other choice but receive a mandatory minimum sentence (unless they cooperated and received a downward departure pursuant to § 5K1.1 of the Federal Sentencing Guidelines) to be able to avoid the mandatory minimum sentence which otherwise would be applicable in their case.

If you have a client who is facing sentencing or a client who has already been sentenced in a case in which you feel the issue of the reasonable foreseeability of the amount of drugs involved in the conspiracy could serve as a basis for the defendant avoiding a mandatory minimum sentence and are interested in receiving further assistance in this regard, contact NLPA.

Appeals Court Blog

Appeals Court Blog

Techniques for Overturning a Conviction Based Upon Prosecutorial Misconduct

Oftentimes a defendant who is convicted at trial will discover new evidence that casts doubt on the verdict of the jury. The case of United States v. Cargill, No. 2:94cr300 is an example where NLPA has been successful in assisting counsel for the defendant in obtaining a new trial based upon newly discovered evidence of prosecutorial misconduct.

After a five day trial, Mr. Cargill was convicted of conspiracy to distribute crack cocaine in Rockingham, North Carolina. Subsequent to trial, Mr. Cargill and the other co-defendants filed a motion for a new trial based on newly discovered testimony of two witnesses that cast doubt on the testimony of Lee Settle, who was the Government’s principal witness at trial. Mr. Cargill argued that a new trial was warranted because the prosecutor knew or should have known that Settle’s testimony was false, but failed to notify either the court or defense counsel about it. However, the district court denied Mr. Cargill’s motion for a new trial without making any findings as to whether prosecutorial misconduct occurred.

Mr. Cargill then hired NLPA to provide research to his attorney for his appeal to the Fourth Circuit Court of Appeals. On appeal, Mr. Cargill argued that the court improperly denied his motion for a new trial, claiming that Settle had lied on the stand by denying his involvement with a rival drug dealer. The Fourth Circuit Court of Appeals found that the district court failed to make any findings as to whether prosecutorial misconduct occurred. Accordingly, the Court of Appeals vacated the district court’s order denying the motion for a new trial and remanded the case for the district court for reconsideration of that motion. United States v. Cargill, 134 F.3d 364, 1998 WL 39394 (4th Cir. 1998).

Consistent with the Fourth Circuit’s opinion, the district court held a hearing on June 8, 1998 for the purpose of making factual findings as to whether the prosecutor engaged in misconduct. After the hearing, the district court concluded that Settle’s testimony was, in fact, false. Although the district court did not find that the prosecutor intentionally offered the perjured testimony of Settle, there is no doubt that once Settle testified, the Prosecutor knew or should have known that Settle was not being truthful regarding his involvement with a rival drug organization. The court held that the Prosecutor failed in his constitutional duty to notify the court or defense counsel of Settle’s misrepresentations. Accordingly, the Prosecutor engaged in misconduct.

The court next turned to the issue of whether the prosecutor’s misconduct warranted a new trial. In concluding that a new trial was warranted, the court found that the fact that Settle provided false testimony about his relationship with a rival drug organization could have created a serious credibility concern for the jury as to the truthfulness of Settle’s other testimony. Applying the standard that is used to determine whether a new trial should be granted, the court concluded that “there is a reasonable likelihood that a jury could have reached a different verdict if Settle’s false testimony had been brought to the attention of the jury, the Court, or the defense.” Therefore, the Court granted Mr. Cargill’s Motion for a New Trial.

If you are representing a defendant who obtains important new evidence of prosecutorial misconduct after he or she was convicted, contact National Legal Professional Associates (NLPA). A defendant in this situation may be able to get a new trial by filing a Motion for a New Trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure or by appealing a denial of a Motion for a New Trial. For more than a decade, NLPA has assisted attorneys in obtaining significant relief for their clients. We hope you will contact NLPA the next time you have a client who is in need of such assistance.

Overturning Convictions On Appeal

As many of you know, National Legal Professional Associates (NLPA) has been on the cutting edge of criminal appellate and post-conviction research for nearly two decades. Over those years of service to defendants and their attorneys, NLPA’s research has aided in many victories for the defense. As you can see from the attached letter, NLPA’s research has helped a defendant and his attorney reverse a conviction for first degree murder and related weapon charges.

Aaron Bates stood convicted of First Degree Murder and related weapon charges when he first contacted NLPA. His conviction stemmed from a dispute he had with an individual named Miller outside a local nightclub that resulted in the shooting and killing of Miller. The defense theory at trial was self defense. After an altercation with Miller in a local nightclub, Mr. Bates believed Miller was about to shoot him, so Mr. Bates retaliated by shooting first. Although no gun was found on Miller’s body, the defense had a witness who testified to seeing Miller with a gun, corroborating Mr. Bates’ self defense theory. Despite this testimony, the jury returned a verdict of guilty and Mr. Bates was sentenced to 45 years to LIFE in prison.

After trial, it was discovered that one of the jurors at the trial knew the key witness for the defense and had been in a dispute with that witness. A motion for new trial was filed and a hearing was held to see if the juror was bias and whether that affected the jury’s verdict. It was discovered that the witness had blamed the juror for abusing her child and that the witness had vandalized the juror’s car in retaliation. The juror had told other members of the jury about these events. Despite this, the juror claimed that she was not biased against the witness and that it did not affect her impartiality when rendering a verdict.
Amazingly, the court upheld the jury’s guilty verdict and denied the motion for new trial.

After sentencing Mr. Bates hired NLPA, and new counsel, Charles Murray, in order to appeal his conviction to the District of Columbia Court of Appeals. Bates v. United States, 2003 D.C. App. LEXIS 624 (2003) NLPA’s research attorneys worked closely with Mr. Bates’ new attorney in the preparation of the appeal brief, raising several issues to the court of appeals. One of those issues involved juror bias and that the court erred in denying Mr. Bates’ motion for a new trial. It was argued that the juror was biased against the witness, and he could have conveyed his hostility against the witness to the other jurors. That could have led to the jury disbelieving the witness’ testimony suggesting that Miller had a gun. This was critical because the witness’ testimony was the only evidence presented at trial that corroborated Bate’s claim that Miller had a gun. Thus, the witness’ testimony, if believed, was vital to appellant’s claim that he acted in self-defense and Mr. Bates should have received a new trial. Fortunately for Mr. Bates, the court of appeals agreed and determined that the court erred in denying the motion for new trial vacated his conviction.

Of course, every case is different and spectacular victories such as this do not always occur. However, aggressive and caring attorney representation coupled with NLPA’s cutting edge research and drafting skills can make a difference between victory and defeat. Look to future newsletters for more NLPA victories. If you or your clients are facing sentencing in federal court and would like NLPA’s experienced team of attorneys on your side,please contact NLPA.

Techniques For Overturning Convictions Where There Is Insufficient Evidence To Support The Conviction – Another NLPA Victory!

Notwithstanding the legal principle that a defendant in a criminal case can only be convicted if the evidence shows him to be guilty beyond a reasonable doubt, it is not uncommon for a jury to convict a defendant when the standard of proof has not been met by the government. As a result, many innocent defendants are languishing in prison today. The case of Charlie Gavin is an excellent example of how with the help of NLPA, counsel can successfully overturn such a conviction on appeal.

Charlie Gavin was convicted by a jury in the Grenada County, Mississippi Circuit Court of three counts of possession of a firearm by a felon, and one count of possession of a deadly weapon. Mr. Gavin worked in a convenience store owned by a relative. Law enforcement sent an informant inside the store while Mr. Gavin was working, in hopes of purchasing drugs. There followed a confrontation between Mr. Gavin and the informant, and the police poured in after the informant gave a distress signal. Following a search, a gun was found in the purse of another employee, two guns were found in a file cabinet behind the counter, and a machete was found under a sink. Officers said that the other employee told them the gun in her purse belonged to Mr. Gavin. Because he was considered a “habitual offender” under Mississippi law, Mr. Gavin received four consecutive life sentences.

After his conviction and sentencing, Mr. Gavin’s family retained NLPA to assist attorney Johnnie E. Walls in preparing Mr. Gavin’s appeal brief. For the weapons found tucked away inside the store, the brief argued that there was insufficient evidence to show that Mr. Gavin actually or constructively possessed any of the weapons found inside. Mr. Gavin was only an employee, the store was owned by someone else, and there were other employees. In fact, there was no evidence that Mr. Gavin even knew any of the weapons were in the store. Testimony established that the machete was left in the store by a relative, who had used it as a farm tool. No testimony was offered to establish that Mr. Gavin had ever handled, mentioned, or otherwise dealt with any of the weapons other than the one found in his fellow employee’s purse. The only evidence that linked Mr. Gavin weapon was the hearsay statement of the other employee.The Mississippi Court of Appeals reversed three of his convictions straight out. The Court found insufficient evidence to show that Mr. Gavin actively or constructively possessed the guns or the machete found in various places around the store. There was little evidence offered that Mr. Gavin even knew of their existence. The State argued that Mr. Gavin operated a drug business out of the store, and that he kept weapons around the store to protect himself. While the Court agreed that that theory may have been correct, there was no incriminating evidence beyond his presence in the same room to support constructive possession. Even evidence that he was once seen handling the gun in the filing cabinet was not sufficient to establish possession, as it did not establish dominion and control over the weapon on the day of his arrest. Mr. Gavin no longer has to worry about three of his life sentences.

As for the fourth count, the Court of Appeals reversed and remanded for further proceedings. The Court found the co-employee’s statement inadmissible hearsay, and far from harmless, as it was quite powerful evidence of his dominion and control of the weapon. The State, however, argued that the statement was admissible because the statement was made in Mr. Gavin’s presence and he did not deny that the weapon was his. The Court remanded for a determination of the circumstances of Mr. Gavin’s supposed failure to deny, because there was nothing in the record to established whether Mr. Gavin stood mutely, objected vociferously, or something between those two extremes, or whether he was already in custody and was aware of his right to remain silent.
Through the efforts of counsel and NLPA, Mr. Gavin successfully challenged four consecutive life sentences and won. Three of those convictions were defeated on the sufficiency of the evidence claims. Contrary to the finding of the jury, the evidence simply wasn’t enough in this case to sustain Mr. Gavin’s convictions, even in Mississippi.

If you are representing a client who has been wrongfully convicted, contact NLPA. We can help you in the fight for justice for your client. to this.

Cocaine Sentencing

Cocaine Sentencing

Techniques for Overturning a Conviction Based Upon Prosecutorial Misconduct

Oftentimes a defendant who is convicted at trial will discover new evidence that casts doubt on the verdict of the jury. The case of United States v. Cargill, No. 2:94cr300 is an example where NLPA has been successful in assisting counsel for the defendant in obtaining a new trial based upon newly discovered evidence of prosecutorial misconduct.

After a five day trial, Mr. Cargill was convicted of conspiracy to distribute crack cocaine in Rockingham, North Carolina. Subsequent to trial, Mr. Cargill and the other co-defendants filed a motion for a new trial based on newly discovered testimony of two witnesses that cast doubt on the testimony of Lee Settle, who was the Government’s principal witness at trial. Mr. Cargill argued that a new trial was warranted because the prosecutor knew or should have known that Settle’s testimony was false, but failed to notify either the court or defense counsel about it. However, the district court denied Mr. Cargill’s motion for a new trial without making any findings as to whether prosecutorial misconduct occurred.

Mr. Cargill then retained NLPA to provide research to his attorney for his appeal to the Fourth Circuit Court of Appeals. On appeal, Mr. Cargill argued that the court improperly denied his motion for a new trial, claiming that Settle had lied on the stand by denying his involvement with a rival drug dealer. The Fourth Circuit Court of Appeals found that the district court failed to make any findings as to whether prosecutorial misconduct occurred. Accordingly, the Court of Appeals vacated the district court’s order denying the motion for a new trial and remanded the case for the district court for reconsideration of that motion. United States v. Cargill, 134 F.3d 364, 1998 WL 39394 (4th Cir. 1998).

Consistent with the Fourth Circuit’s opinion, the district court held a hearing on June 8, 1998 for the purpose of making factual findings as to whether the prosecutor engaged in misconduct. After the hearing, the district court concluded that Settle’s testimony was, in fact, false. Although the district court did not find that the prosecutor intentionally offered the perjured testimony of Settle, there is no doubt that once Settle testified, the Prosecutor knew or should have known that Settle was not being truthful regarding his involvement with a rival drug organization. The court held that the Prosecutor failed in his constitutional duty to notify the court or defense counsel of Settle’s misrepresentations. Accordingly, the Prosecutor engaged in misconduct.

The court next turned to the issue of whether the prosecutor’s misconduct warranted a new trial. In concluding that a new trial was warranted, the court found that the fact that Settle provided false testimony about his relationship with a rival drug organization could have created a serious credibility concern for the jury as to the truthfulness of Settle’s other testimony. Applying the standard that is used to determine whether a new trial should be granted, the court concluded that “there is a reasonable likelihood that a jury could have reached a different verdict if Settle’s false testimony had been brought to the attention of the jury, the Court, or the defense.” Therefore, the Court granted Mr. Cargill’s Motion for a New Trial.

If you are representing a defendant who obtains important new evidence of prosecutorial misconduct after he or she was convicted, contact National Legal Professional Associates (NLPA). A defendant in this situation may be able to get a new trial by filing a Motion for a New Trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure or by appealing a denial of a Motion for a New Trial. For more than a decade, NLPA has assisted attorneys in obtaining significant relief for their clients. We hope you will contact NLPA the next time you have a client who is in need of such assistance.

New Developments Concerning Mandatory Minimum Cases

As you are no doubt  aware, Attorney General, Reno has recently issued numerous statements calling for the abolish of mandatory minimum sentences.  On February 17, 1993 Representative Don Edwards (DCa) introduced bill HR957 known as the Sentencing Uniformity Act of 1993 which is designed to repeal all federal mandatory minimum sentences.  This piece of legislation has been referred to the House of Representative’s Judiciary Subcommittee on Crime and Criminal Justice (Chaired by Representative Charles Schumer (D-NY)).  The Subcommittee is currently holding hearings on the bill.

Based upon the information which NLPA has received, it appears extremely unlikely that the Edwards bill will be approved by Congress at this time.  However, it is important for defense counsel to realize that there are positive developments which are occurring in the courts as federal judges continue to struggle with ways of making the current mandatory minimum legislation with respect to drug offenses be applied more equitably.

Recent examples of this are found in the following cases:

US vs. Becerra 992 F. 2d 960 (9th Cir. 1993)

US vs. Young ____ F. 2d.____ (7th Cir. 1993)

US vs. Martinez 987 F. 2d. 920 (2nd Cir. 1993).

In Becerra the Court of Appeals for the 9th Circuit found that a defendant’s mandatory minimum sentence depends upon reasonable foreseeability.  In this case two defendants pled guilty to conspiracy to distribute more than 5 kilograms of cocaine.  While this amount of cocaine would normally subject the defendant to a 10 year mandatory minimum sentence, in this case, the defendants had arranged to single kilo sales and there had been discussions (not involving these two defendants) with a third defendant about supplying 25 kilos of cocaine.  Nonetheless, the District Court sentenced the two defendants who had only been involved in two single kilo cocaine sale transactions through the 10 year mandatory minimum and the defendants appealed their sentences.  On appeal, the 9th Circuit reversed the mandatory minimum sentence of the two defendants because the facts did not support their knowledge of the 25 kilos or that such quantity was reasonably foreseeable to them.  The court further held that the government must show that a particular defendant had some connection or reasonable foreseeability of the larger amount of cocaine in order to be subject to the mandatory minimum sentence.

Also, in US vs. Young, the Court of Appeals for the 7th Circuit held that drugs produced by a conspiracy can not be attributed to a defendant unless that quantity was reasonable foreseeable to the defendant.  Accordingly, the 7th Circuit’s Court of Appeals vacated the defendant’s mandatory minimum sentence and remanded the case for a resentencing because it found that there was no support on the record for the District Court’s finding that the conspiracy’s 12500 marijuana plants were attributable to him.

In the case of US vs. Martinez, the Court of Appeals for the Second Circuit ruled that a defendant who received a mandatory minimum sentence after being convicted of conspiring to distribute over 5 kilograms of cocaine must have his sentence vacated.  The court held that because of the conspiracy, the District Court failed to determine whether the 5 kilograms involved in the conspiracy were reasonable foreseeable to the defendant as would have been required under the guidelines.  The court further held that even though one pleads to a conspiracy carrying a mandatory minimum sentence, if the “reasonable foreseeability” standard of the guidelines is not met, the mandatory minimum does not apply.

As the foregoing cases clearly indicate, although the Congress has yet to pass any laws vacating the mandatory minimum sentencing scheme which is currently in effect for drug offenses, the courts are finally beginning to utilize the issue of “reasonable foreseeability” to enable defendants who otherwise would have no other choice but receive a mandatory minimum sentence (unless they cooperated and received a downward departure pursuant to § 5K1.1 of the Federal Sentencing Guidelines) to be able to avoid the mandatory minimum sentence which otherwise would be applicable in their case.

If you have a client who is facing sentencing or a client who has already been sentenced in a case in which you feel the issue of the reasonable foreseeability of the amount of drugs involved in the conspiracy could serve as a basis for the defendant avoiding a mandatory minimum sentence and are interested in receiving further assistance in this regard, contact NLPA.

 Posted in Cocaine Sentencing

Anderson Victory

As the result of the decisions in Bailey v. United States, a second look at the issue of the alleged possession of a weapon and are granting relief.  Another one of NLPA’s victories in this area involved the case of Jessie Anderson who was convicted at trial for conspiring to possess with intent to distribute cocaine as well as the alleged use of a firearm in relation to a drug trafficking offense.  After Mr. Anderson’s conviction at trial and sentencing, he then asked National Legal Professional Associates to assist his counsel in the preparation of his appeal to the Court of Appeals for the Sixth Circuit.  In the case of Mr. Anderson, the weapon in question was hidden under a mattress.  At the time of his arrest, federal agents alleged that he attempted to reach under the mattress to obtain the weapon.  However, in vacating Mr. Anderson’s conviction and sentence for the weapons charge, the Court did not buy the government’s argument that he was “attempting to fire” a weapon that was hidden underneath a mattress by simply reaching for it.  As a result of this victory, Mr. Anderson’s term of confinement was reduced by five years.

If you have a client who is either facing trial, sentencing or desires to appeal his conviction for the alleged possession of a weapon during the course of a drug trafficking offense and would like NLPA assist you in research to assist your client  in obtaining relief from that charge, contact NLPA.

Of course, NLPA cannot guarantee favorable results in every case.  However, NLPA can guarantee that they will utilize the most up-to-date research sources available and will be able to provide counsel with all of the case law arsenal available in order to combat either an illegally imposed sentence or an illegally imposed conviction.  With NLPA assisting the  defense team, you can count on top quality and up-to-the-minute research to raise the strongest possible issues to assist in pursuing a successful outcome of the case.

Bailey v. United States, Overturning 18 u.s.c. § 924(c) Convictions Relief For Defendants Whose Case Involves Firearms

Several years ago the United States Supreme Court decided a case which seriously undermined the government’s ability to prosecute  persons under 18 U.S.C. §924(c) for the alleged ‘use’ of a weapon in connection with a drug offense.  This case has had lasting ramifications for defendants who are facing trial and/or sentencing, involving the ‘use’ or possession of a firearm.

Specifically, the Bailey case began with a conviction under 18 U.S.C. §924(c) by one of the defendants for having a loaded 9-millimeter pistol in a locked trunk of his vehicle.  The defendant had been stopped, and in his car were 30 grams of cocaine. The District Court and Court of Appeals both determined that the defendant could be convicted for using a firearm simply by the fact that the gun, located in the trunk, was there to protect the drugs which were found in the rest of the car, and to facilitate any sales of those drugs.

The Supreme Court reversed on these facts.  Specifically, the court held that the term ‘use’, as is set forth in the statute, is much more limited than mere possession of a firearm by a person who commits a drug offense.  Specifically, the court held that the term ‘use’ could only be utilized in cases under a very narrow set of circumstances.  The court specifically stated:

to illustrate the activities that fall within the definition of ‘use’ provided here, we briefly describe some of the activities that fall within “active employment” of a firearm, and those that do not.  The active employment understanding of ‘use’ certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire a firearm.

Undoubtedly, this new holding severely curtailed the ability of the government to argue that a weapon was ‘used’ during a drug trafficking offense, under §924(c).  This is critical to every criminal defendant’s case who is involved in this type of issue.  Of course, §924(c) has a five-year consecutive term (and more if there is subsequent or more than one offense).  By eliminating most of the arguments regarding the use of a firearm, this case severely hindered the government’s ability to successfully prosecute or enhance the sentence of persons who simply have a firearm in the vicinity of where a drug transaction takes place.   Further, for those defendants already serving their sentence,  Based on NLPA’s research, many attorneys believe that this case may be applied retroactively, although it will have to be dealt with on a case by case basis with advice and counsel by your lawyer of record as different district courts may treat the case in different fashions.

NLPA stands ready to assist in the preparation of any pleadings which are necessary that can best utilize this argument.  NLPA works on a daily basis in the areas of pre-trial, sentencing, appellate work, and post-conviction work, working with counsel to ensure the most up-to-date research possible.  If your client is preparing to go to trial, is facing sentencing or desires to pursue post- conviction relief concerning this issue, contact NLPA immediately.

Posted in Cocaine Sentencing

Remedies Available to Assist a Defendant Who Has Suffered from Ineffective Assistance of Counsel at Sentencing – Another NLPA Victory

On a daily basis, NLPA is contacted by attorneys who want our assistance in helping clients who have suffered because of the ineffective assistance of their prior counsel.  In the case of Acevedo v. United States, No. 96-3339 (1998), NLPA has worked with counsel to have the Eleventh Circuit recognize that counsel’s failure to object to factual statements in the PSI, can amount to ineffective assistance.

In this case, after having been indicted for conspiracy to possess with the intent to distribute cocaine, Mr. Acevedo entered a plea of guilty.  After entering the plea, a Pre-Sentence Investigation Report (PSI) was prepared which contained numerous factual errors.  Counsel did not file objections to correct the information before the sentencing hearing.  Therefore, the Court refused to hear arguments and sentenced Mr. Acevedo accordingly.  Mr. Acevedo’s attorney, Keith Golden, with the help of NLPA, filed a § 2255 motion on Mr. Acevedo’s behalf, claiming ineffective assistance of counsel at sentencing.  The District Court denied the motion, but the defense team did not give up.  Our motion for a Certificate of Appealability was granted by the Eleventh Circuit, who will now consider this issue in an appeal prepared by NLPA and Mr. Golden.

If you are representing a defendant who has been sentenced on erroneous information which counsel failed to object to, contact NLPA.  We can assist you and your clients in putting forth the most up-to-date research using Westlaw computer research to get the best possible results for your clients.  We hope that you will contact NLPA the next time you have a client who is in need of such assistance.