Tactics Used by Law Enforcement in Drug Cases

Tactics Used by Law Enforcement in Drug Cases

Once law enforcement officials believe they have enough evidence to charge someone with a drug related offense they often will delay the charges, seeking instead to cast their net wider to become able to include other individuals in the charges. They do so by trying to convince their first suspect(s) to give up the names of other dealers or users and, often seeking to engage that suspect in future drug purchases. In this way they can build a small case into a much larger case. This often this also create entrapment issues that the defense may be able to argue to defend the individuals.

When put under this type of pressure though, suspected individuals often do cooperating under the mistaken belief that they will not be charged. The fact is that charges may not be filed immediately (perhaps even a year or longer) but odds are they will come unless the cooperation is handled by counsel properly in a proffer agreement with the prosecution to provide him with immunity.

Moreover he use of individuals who face charges of their own, often means they are motivated to come up with some evidence against others – whether it truly exists or not. In the end it is not uncommon to hear of authorities violating constitutional rights to be free from warrantless searches and seizures or Fifth Amendment rights regarding interrogation. These issues can often be the backbone of the defense in suppression of evidence and /or statements which is critical.

Posted in Drug Possession
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Monthly Archives: October 2012

Remedies Available to a Defendant who has been Convicted of a Conspiracy when there was Insufficient Evidence to Support the Conviction – Another NLPA victory!

Virtually every day we are contacted by both defendants and legal counsel who raise the complaint that they or their clients have been convicted at trial in a conspiracy case where there was essentially no evidence to support the conviction returned by the jury. The case of United States v. Richards (Case No. 89-10264, 9th Cir. 1991) is an excellent example of this type of situation and the remedies that are available to a defendant who faces this dilemma.

Mr. Richards was convicted in a jury trial in United States District Court for the Eastern District of California of conspiracy to import marijuana and cocaine, aiding and abetting the importation of marijuana, possession of marijuana with intent to distribute, and traveling in foreign commerce to promote unlawful activity. Approximately 2 ½ years after the alleged crimes occurred, the DEA obtained a series of search warrants to search Mr. Richards’ residence. During the course of the search of his residence, agents found hidden in a fake vent in the wall of the den four kilograms of cocaine and triple beam scale. During the course of trial, the government was unable to produce any evidence to prove beyond a doubt that Mr. Richards knew of the existence of the cocaine being hidden in the vent or that it was his cocaine. Nonetheless, the jury found Mr. Richards guilty and he was subsequently sentenced to a term of confinement of 35 years.

Subsequent to his incarceration, Mr. Richards then contacted NLPA and asked that the

firm assist his counsel in the research and preparation of the appeal of his conviction. NLPA prepared the appeal brief which was then filed by Mr. Richards’ counsel in the Court of Appeals for the Ninth Circuit. The primary issue raised on appeal was whether or not there was sufficient evidence to justify Mr. Richards’ conviction.

On January 28, 1991, the Court of Appeals for the Ninth Circuit reversed Mr. Richards’ conviction. In its decision, the Court of Appeals agreed that “The evidence produced at trial was that the search of the house occupied by Richards and his wife revealed four kilograms of cocaine in a vent in the wall. There was no evidence that either Richards or his wife knew of the presence of the cocaine. The government suggests no evidence indicating any control or knowledge of the cocaine on the part of Richards… There is not sufficient evidence that Richards possessed the cocaine. We reverse.”

As the result of NLPA’s assistance, Mr. Richards has been saved the hardship of serving a 15-year term of confinement.

If you or your client are facing a situation where you believe that the government has obtained a conviction in a conspiracy case where there was insufficient evidence to support a conviction and you desire to have assistance in pursuing your post-conviction rights, contact National Legal Professional Associates.

Another NLPA Victory! Career Offender Sentence Vacated

Many of you are aware of the serious damage at sentencing that can result from a court’s application of the Career Offender enhancement under § 4B1.1 of the United States Sentencing Guidelines. An even greater concern arises when the enhancement is incorrectly applied. Recently, National Legal Professional Associates, working with counsel, successfully challenged a defendant’s status as a career offender under 28 USC § 2255 thereby reducing its client’s sentencing exposure by 20 years.

Section 4B1.1 provides that

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The Section then provides for an increase in the criminal history category and an upward adjustment in the offense level if those three factors are satisfied. In the case of United States v. Dudley, U.S.D.C. Ala. (1995), the probation office relied upon two previous drug possession convictions to support the career offender enhancement. As a result, the defendant’s sentence for the controlled substance offense, which formed the basis of his current conviction, was increased from the otherwise applicable sentencing range of 21-27 months to 262-327 months.
However, § 4B1.2 of the guidelines limits the definition of a “controlled substance offense” as one under federal or state law which prohibit “the possession of a controlled substance with intent to manufacture, import, export, distribute, or dispense.” NLPA’s research revealed that the defendant’s simple possession convictions could not satisfy the guidelines’ definition, and that the career offender enhancement was erroneously applied in the defendant’s case. Working with counsel, NLPA included this argument as a due process violation in the defendant § 2255 motion. After the attorney filed the motion with the district court, both the government and the court agreed that defendant should be resentenced absent the career offender enhancement. Accordingly, when the defendant appears for resentencing in November, 1995, approximately 240 months of his sentence will be vacated.

Once again, NLPA has demonstrated its ability to identify key elements of an individual’s sentence or conviction which are susceptible to constitutional challenge, research the controlling case law, and draft the argument in such a way to obtain substantial relief for your client. At NLPA, we will pleased to apply our expertise and dedication to your client’s case to ensure that your client serves only that sentence which is actually authorized by law.

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.

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

Las Vegas Junior Giants League

Las Vegas Junior Giants League

As many of you know, National Legal Professional Associates has been a charitable member of many groups and associations and we are pleased to be a part of so many great programs throughout the nation.

One of our annual pleasures is to help the Las Vegas Junior Giants League in continuing to offer this program to children from ages 4 to 14. We’re so happy to have played a part in this great league. Here are some photos from the latest season. Take a look:

http://www.nevadayouthalliance.org/photo-gallery/jr-giants.html

We encourage everyone to take part in their community and help to make a positive difference in this world. Your effort may feel minimal but the impact it will have on others will be phenomenal.

For more information about NLPA or help in learning charities that you can become involved with, please contact us.

NLPA Charitable Contribution Program

NLPA Charitable Contribution Program

National Legal Professional Associates is pleased to be a part of a number of charity and religious organizations throughout the country. Did you know that through NLPA’s Inmate Referral Program we have donated thousands of dollars over the past two decades to various charities and ministries? If you are interested in participating in our Inmate Referral Program and would like to get more information about how NLPA can make contributions to your church or charity through this program, please contact us!

As a faith-based organization, we know the impact that the church and various ministries can have on the positive development of the community as well as the rehabilitation of inmates upon their release. NLPA is a strong believer in the religious communities and charities of the world. We have been an ongoing contributor to a number of groups and encourage everyone to participate for the greater good.

NLPA INMATE REFERRAL PROGRAM

This program has been available to inmates & their families for a number of years as a way for them to obtain proper legal assistance in their case on their own. When times get tough you can refer customers to NLPA to receive credit toward your own account to pay the balance on your account with NLPA. Additionally, if you belong to a church or organization and want to help raise money for your church or organization, you can use your referral credits to make a contribution to the charity or group of your choice! HOW DOES IT WORK?: Under the terms of this program, if you are able to refer financially qualified defendants to NLPA who hire NLPA to assist their attorney with their case, you will receive credit toward your own account in the amount of 10% of the initial payment they sent to NLPA for their first service. These credits can be used to pay for research that our lawyers prepare for your counsel in your case and can be accumulated or, paid as a contribution to the charity, church or organization of your choice. Even better – there is no limit to the credit you are able to receive under this program !

Please NOTE: In order to make sure you do receive credit for the referral, it is important that you notify NLPA to let us know who you are referring so that once hired, NLPA can generate proper credit to your account or your charity/organization. Once payment is made and NLPA is contracted by the party you have referred NLPA will then apply the 10% credit to your account or issue the 10% donation to the charity you have selected.

You can always feel good about referring your family, friends or other defendants to NLPA. After all, we have been assisting attorneys and their clients with cases for more than twenty-five years and have established one of the best track records in the country. If you would like to receive additional promotional information that you can use in referring others to NLPA, please feel free to contact us.

Monthly Archives: July 2012

Monthly Archives: July 2012 

NLPA Charitable Contribution Program

National Legal Professional Associates is pleased to be a part of a number of charity and religious organizations throughout the country. Did you know that through NLPA’s Inmate Referral Program we have donated thousands of dollars over the past two decades to various charities and ministries? If you are interested in participating in our Inmate Referral Program and would like to get more information about how NLPA can make contributions to your church or charity through this program, please contact us!

As a faith-based organization, we know the impact that the church and various ministries can have on the positive development of the community as well as the rehabilitation of inmates upon their release. NLPA is a strong believer in the religious communities and charities of the world. We have been an ongoing contributor to a number of groups and encourage everyone to participate for the greater good.

NLPA INMATE REFERRAL PROGRAM

This program has been available to inmates & their families for a number of years as a way for them to obtain proper legal assistance in their case on their own. When times get tough you can refer customers to NLPA to receive credit toward your own account to pay the balance on your account with NLPA. Additionally, if you belong to a church or organization and want to help raise money for your church or organization, you can use your referral credits to make a contribution to the charity or group of your choice! HOW DOES IT WORK?: Under the terms of this program, if you are able to refer financially qualified defendants to NLPA who hire NLPA to assist their attorney with their case, you will receive credit toward your own account in the amount of 10% of the initial payment they sent to NLPA for their first service. These credits can be used to pay for research that our lawyers prepare for your counsel in your case and can be accumulated or, paid as a contribution to the charity, church or organization of your choice. Even better – there is no limit to the credit you are able to receive under this program !

Please NOTE: In order to make sure you do receive credit for the referral, it is important that you notify NLPA to let us know who you are referring so that once hired, NLPA can generate proper credit to your account or your charity/organization. Once payment is made and NLPA is contracted by the party you have referred NLPA will then apply the 10% credit to your account or issue the 10% donation to the charity you have selected.

You can always feel good about referring your family, friends or other defendants to NLPA. After all, we have been assisting attorneys and their clients with cases for more than twenty-five years and have established one of the best track records in the country. If you would like to receive additional promotional information that you can use in referring others to NLPA, please feel free to contact us.

Posted in Uncategorized

Las Vegas Junior Giants League

As many of you know, National Legal Professional Associates has been a charitable member of many groups and associations and we are pleased to be a part of so many great programs throughout the nation.

One of our annual pleasures is to help the Las Vegas Junior Giants League in continuing to offer this program to children from ages 4 to 14. We’re so happy to have played a part in this great league. Here are some photos from the latest season. Take a look:

http://www.nevadayouthalliance.org/photo-gallery/jr-giants.html

We encourage everyone to take part in their community and help to make a positive difference in this world. Your effort may feel minimal but the impact it will have on others will be phenomenal.

For more information about NLPA or help in learning charities that you can become involved with, please contact us.

Posted in Uncategorized

Cocaine Sentencing page 2

Cocaine Sentencing

How to Obtain a Resentencing When the Court Has Relied Upon Erroneous Information in Imposing Sentence and When the Court Has Failed To Make Clear Findings of Fact Concerning Controverted Matters Contained In The Pre-Sentence Investigation Report. Another NLPA Victory!

The ruling of the Court of Appeals for the Eighth Circuit in the case of U.S. v. Bongiovanni, No. 90-1869, issued June 4, 1991, is yet another success which National Legal Professional Associates has been able to obtain for its clients in the area of vacating a sentence when the court failed to comply with the requirements of Rule 32 of the Federal Rules of Criminal Procedure with respect to information contained in the Pre-sentence Investigation Report that the defendant controverted and then proceeded to sentence the defendant in reliance upon said erroneous information.

This case clearly indicates, at the time of his sentencing, our client, Mr. Bongiovanni, controverted information contained in the Pre-sentence Investigation Report which incorrectly attributed to him the responsibility for the total amount of cocaine brought into St. Louts by the conspiracy to which he pled guilty.  Mr. Bongiovanni also objected to the Pre-sentence Investigation Report incorrectly ranking him as equal in culpability to other co-conspirators in the offense, and objected to the government’s description of him as being “uncooperative.”  After reviewing the objections made by the defendant during the sentencing hearing, the court failed to make clear findings of fact, and then sentenced Mr. Bongiovanni to a term of imprisonment of nine years.  Further, retying upon the aforementioned erroneous information, the Parole Commission then established a parole guideline range of 52-80 months, which was far in excess of the length of time which the defendant should have been required to serve had the proper information been utilized by the Parole Commission for determining his parole guidelines.

After being advised by his counsel that there was nothing further that could be done to help him, Mr. Bongiovanni retained National Legal Professional Associates to assist him in his post-conviction pursuits.  Mr. Bongiovanni also retained new counsel to represent him on a post-convlction basis.

Working with Mr. Bongiovanni’s new counsel, NLPA then prepared a 2255/Rule 32 motion requesting that the district court vacate Mr. Bongiovanni’s sentence, clean up his Pre-sentence Investigation Report, and then resentence Mr. Bongiovanni based upon his true involvement in the offense.  Unfortunately, this motion was denied by the district court, however, Mr. Bongiovanni appealed this decision to the Court of Appeals for the Eighth Circuit.  Again, National Legal Professional Associates researched and prepared the appellate brief for his counsel and, as you can see from a review of the appended opinion, the Court of Appeals for the Eighth Circuit set aside Mr. Bongiovanni’s sentence and ordered the court to re-sentence him once it had made clear findings of fact concerning the erroneous information in the Pre-sentence Investigation Report.

If you are currently serving a sentence (whether it has been imposed under the new federal sentencing guidelines, or under the old law) and you believe that there were either violations of Rule 32 which took place at your sentencing hearing because the court failed to make clear findings of fact concerning matters that you controverted, or you believe that your sentence has been based upon erroneous information that was contained in your Pre-sentence Investigation Report, and you desire to investigate the remedies available to you to correct this situation and shorten your term of confinement, please contact National Legal Professional Associates. Once we receive the material concerning your case, we will be happy to review it and see if we believe there is anything that can be done to assist you.