Search & Seizure

Search & Seizure

US v. Sullivan – Successfully suppressing pretrial evidence obtained illegally without a warrant – another NLPA victory!

We all know that the question of admissibility of evidence is often one of the key aspects to the defense in a criminal prosecution. The case of United States v. Sullivan, (S.D. Illinois , #02-CR-40030-1) is a most recent example of how the team approach of National Legal Professional Associatesworking with counsel has successfully stopped the government in its attempts to use illegally obtained evidence against a defendant. In this case, NLPA assisted Benton, Illinois attorney Paula Newcomb, in researching and supporting a motion to suppress physical evidence discovered and seized in a warrantless search of a hotel room.

In United States v. Sullivan, the Defendant was indicted on one count of conspiracy to manufacture methamphetamine. The general facts involved were that the Defendant and others had stayed at a local hotel. While the individuals were absent from the room, law enforcement officers arrived. The officers conducted an initial search of the room to determine if there were any safety issues to be addressed. Soon thereafter, they conducted a full search of the hotel room, obtained fingerprints from throughout the room including those on a receptacle containing a small amount of methamphetamine, and identified one fingerprint as belonging to the Defendant. From the evidence obtained, an indictment and subsequent arrest warrant were issued for the Defendant.

One of the key matters during the pretrial proceedings was whether the warrantless entry and search of the hotel room was proper in light of the Fourth Amendment and its case law progeny. The Defendant’s counsel, with arguments and research prepared by NLPA, argued to the Court that a warrantless entry and search of a hotel room can only be legal if it is based upon exigent circumstances. As noted to the Court, before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. The Fourth Amendment prohibits governmental intrusions into dwellings without a warrant supported by probable cause, subject to only a few carefully delineated exceptions.

The underlying theme to this important protection was once explained by Justice Jackson in McDonald v. United States, 335 U.S. 451 (1948):

“Whether there is reasonable necessity for a search without waiting to obtain a warrant certainly depends upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it . . . It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it.”

Id. at 459-460.

Without an emergency situation demanding urgent police action, there is no excuse for the failure to procure a search warrant. In this case, there were no exigent circumstances to justify the entry. Hotel cleaning persons entered the room so that it could be cleaned. Upon entry, they claim to have noticed a foul odor in the air, and several items out of place. After finding these items, they locked the room and reported their findings to hotel management. Shortly thereafter, the officers arrived. No one could enter or exit the hotel room without the knowledge of the police.

Put simply, the hotel room was secure. There was ample time for the police to obtain a warrant to enter the dwelling if the police believed they had the necessary probable cause to do so. Thus, the warrantless entry was not justified and all evidence obtained subsequent to the entry should have been suppressed as “fruit of the poisonous tree.”

Exigent circumstances means that there is no time to obtain a warrant. In this case, the officers essentially ignored the constitutional protections provided by the Fourth Amendment and for that reason, the evidence obtained from the illegal search, it was argued to the Court, should be suppressed.

With NLPA’s assistance, research, and support, counsel made this argument to the Court. After obtaining substantial written memoranda, the trial court ultimately granted the Defendant’s motion to suppress with regard to physical evidence discovered and seized during searches conducted after the initial brief search of the hotel room. The research prepared by NLPA for Ms. Newcomb assisted the Court in holding that the Defendant’s Fourth Amendment rights were violated and that evidence should be suppressed.

Should you or your client find yourself in a similar situation, NLPA and its experienced research team stands ready to assist you with the most up-to-date research in the preparation of pleadings to protect your client’s rights. We look forward to another victory!

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.

Posted in Search & Seizure

US v. Evans – Suppressing intercepted phone conversations when obtained illegally

Oftentimes, criminal defendants request assistance from NLPA regarding pre-trial issues. One of the most prevalent pre-trial issues that NLPA deals with is motions to suppress evidence. While most such motions involve an illegal stop of a vehicle or a faulty search warrant, NLPA is also involved in cutting edge research regarding the propriety of wiretaps. Such was the case regarding the prosecution of Marshall Evans in United States v. Reginald Chantez Rice, et al., No. 3:04CR-83-R (D. Ky. October 13, 2005). This case demonstrates how NLPA can assist counsel in the preparation of pre-trial suppression arguments in an effort to ensure that criminal defendant’s are tried only upon evidence that has been properly and constitutionally obtained and is admissible at trial.

In Mr. Evans’ case, the government obtained a court order allowing for the use of a wiretap on May 26, 2004. A subsequent order was granted for the use of a wiretap on June 23, 2004. A third order was granted for use of a wiretap on July 21, 2004. Mr. Evans sought suppression of the evidence obtained from said wiretaps, as it was argued that: (1) the United States failed to minimize the intercepted communications as required by statute; (2) the affidavit supporting the June wiretap application lacked probable cause; (3) the extension of the June wiretap order was invalid because the June wiretap order was improvidently granted; (4) the United States failed to meet the requirement of attempting to employ normal investigative techniques; and (5) the recorded conversations were not sealed within the required time period.

The district court granted the suppression because the government failed to show that other investigative procedures had been tried and proven to be unsuccessful prior to requesting a wiretap. See 18 U.S.C. § 2518(1)(c). The government had previously heard suspects in this case conversing on cellular telephones. As such, the wiretap application mentioned that wiretapping said means of communication would be the easiest way to obtain the needed evidence. However, the government failed to list whether other investigatory means had been used. As such, the June wiretap order was invalid. As the June wiretap order was invalid, a subsequent July wiretap order was also ruled invalid, as it flowed from the initial wiretap order. All evidence obtained from the June and July wiretaps was ruled inadmissible at Mr. Evans’ trial.

Clearly, NLPA’s research paid off for Mr. Evans. Due to its experience, NLPA was well aware of the stringent requirements needed to obtain a wiretap order, and the necessity of continually meeting these requirements in order to obtain subsequent orders. While only one of the aforementioned arguments attacking the wiretap order was successful, NLPA notes that there are many ways to attack a wiretap order, all of which depend upon a comprehensive and technical reading of federal law. Furthermore, NLPA is not only at the forefront of attacking wiretap orders, but has consistently been at the forefront of many Fourth Amendment issues, as NLPA realizes that law enforcement must recognize the rights of citizens to be free from unreasonable searches and seizures.

Should you find yourself in a similar situation, NLPA stands ready to assist you in the research and preparation of any motions or documents necessary to assist you in the vigorous defense of your client.

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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US v. Evans – Suppressing intercepted phone conversations when obtained illegally

Oftentimes, criminal defendants request assistance from NLPA regarding pre-trial issues. One of the most prevalent pre-trial issues that NLPA deals with is motions to suppress evidence. While most such motions involve an illegal stop of a vehicle or a faulty search warrant, NLPA is also involved in cutting edge research regarding the propriety of wiretaps. Such was the case regarding the prosecution of Marshall Evans in United States v. Reginald Chantez Rice, et al., No. 3:04CR-83-R (D. Ky. October 13, 2005). This case demonstrates how NLPA can assist counsel in the preparation of pre-trial suppression arguments in an effort to ensure that criminal defendant’s are tried only upon evidence that has been properly and constitutionally obtained and is admissible at trial.

In Mr. Evans’ case, the government obtained a court order allowing for the use of a wiretap on May 26, 2004. A subsequent order was granted for the use of a wiretap on June 23, 2004. A third order was granted for use of a wiretap on July 21, 2004. Mr. Evans sought suppression of the evidence obtained from said wiretaps, as it was argued that: (1) the United States failed to minimize the intercepted communications as required by statute; (2) the affidavit supporting the June wiretap application lacked probable cause; (3) the extension of the June wiretap order was invalid because the June wiretap order was improvidently granted; (4) the United States failed to meet the requirement of attempting to employ normal investigative techniques; and (5) the recorded conversations were not sealed within the required time period.

The district court granted the suppression because the government failed to show that other investigative procedures had been tried and proven to be unsuccessful prior to requesting a wiretap. See 18 U.S.C. § 2518(1)(c). The government had previously heard suspects in this case conversing on cellular telephones. As such, the wiretap application mentioned that wiretapping said means of communication would be the easiest way to obtain the needed evidence. However, the government failed to list whether other investigatory means had been used. As such, the June wiretap order was invalid. As the June wiretap order was invalid, a subsequent July wiretap order was also ruled invalid, as it flowed from the initial wiretap order. All evidence obtained from the June and July wiretaps was ruled inadmissible at Mr. Evans’ trial.

Clearly, NLPA’s research paid off for Mr. Evans. Due to its experience, NLPA was well aware of the stringent requirements needed to obtain a wiretap order, and the necessity of continually meeting these requirements in order to obtain subsequent orders. While only one of the aforementioned arguments attacking the wiretap order was successful, NLPA notes that there are many ways to attack a wiretap order, all of which depend upon a comprehensive and technical reading of federal law. Furthermore, NLPA is not only at the forefront of attacking wiretap orders, but has consistently been at the forefront of many Fourth Amendment issues, as NLPA realizes that law enforcement must recognize the rights of citizens to be free from unreasonable searches and seizures.

Should you find yourself in a similar situation, NLPA stands ready to assist you in the research and preparation of any motions or documents necessary to assist you in the vigorous defense of your client.

US v. Sullivan – Successfully suppressing pretrial evidence obtained illegally without a warrant – another NLPA victory!

We all know that the question of admissibility of evidence is often one of the key aspects to the defense in a criminal prosecution. The case of United States v. Sullivan, (S.D. Illinois , #02-CR-40030-1) is a most recent example of how the team approach of National Legal Professional Associates working with counsel has successfully stopped the government in its attempts to use illegally obtained evidence against a defendant. In this case, NLPA assisted Benton, Illinois attorney Paula Newcomb, in researching and supporting a motion to suppress physical evidence discovered and seized in a warrantless search of a hotel room.

In United States v. Sullivan, the Defendant was indicted on one count of conspiracy to manufacture methamphetamine. The general facts involved were that the Defendant and others had stayed at a local hotel. While the individuals were absent from the room, law enforcement officers arrived. The officers conducted an initial search of the room to determine if there were any safety issues to be addressed. Soon thereafter, they conducted a full search of the hotel room, obtained fingerprints from throughout the room including those on a receptacle containing a small amount of methamphetamine, and identified one fingerprint as belonging to the Defendant. From the evidence obtained, an indictment and subsequent arrest warrant were issued for the Defendant.

One of the key matters during the pretrial proceedings was whether the warrantless entry and search of the hotel room was proper in light of the Fourth Amendment and its case law progeny. The Defendant’s counsel, with arguments and research prepared by NLPA, argued to the Court that a warrantless entry and search of a hotel room can only be legal if it is based upon exigent circumstances. As noted to the Court, before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. The Fourth Amendment prohibits governmental intrusions into dwellings without a warrant supported by probable cause, subject to only a few carefully delineated exceptions.

The underlying theme to this important protection was once explained by Justice Jackson in McDonald v. United States, 335 U.S. 451 (1948):

“Whether there is reasonable necessity for a search without waiting to obtain a warrant certainly depends upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it . . . It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it.”

Id. at 459-460.

Without an emergency situation demanding urgent police action, there is no excuse for the failure to procure a search warrant. In this case, there were no exigent circumstances to justify the entry. Hotel cleaning persons entered the room so that it could be cleaned. Upon entry, they claim to have noticed a foul odor in the air, and several items out of place. After finding these items, they locked the room and reported their findings to hotel management. Shortly thereafter, the officers arrived. No one could enter or exit the hotel room without the knowledge of the police.

Put simply, the hotel room was secure. There was ample time for the police to obtain a warrant to enter the dwelling if the police believed they had the necessary probable cause to do so. Thus, the warrantless entry was not justified and all evidence obtained subsequent to the entry should have been suppressed as “fruit of the poisonous tree.”

Exigent circumstances means that there is no time to obtain a warrant. In this case, the officers essentially ignored the constitutional protections provided by the Fourth Amendment and for that reason, the evidence obtained from the illegal search, it was argued to the Court, should be suppressed.

With NLPA’s assistance, research, and support, counsel made this argument to the Court. After obtaining substantial written memoranda, the trial court ultimately granted the Defendant’s motion to suppress with regard to physical evidence discovered and seized during searches conducted after the initial brief search of the hotel room. The research prepared by NLPA for Ms. Newcomb assisted the Court in holding that the Defendant’s Fourth Amendment rights were violated and that evidence should be suppressed.

Should you or your client find yourself in a similar situation, NLPA and its experienced research team stands ready to assist you with the most up-to-date research in the preparation of pleadings to protect your client’s rights. We look forward to another victory!

Hot Off The Press – California Three Strikes Law Amended

shutterstock_12264442As NLPA has previously written, a national wave of sentencing reform is occurring, with the wave cresting in the great state of California. Recently, California enacted Senate Bill 9 into law, whereby criminal defendants who were under age eighteen at the time of their crime and who were sentenced to life in prison without parole can ask the sentencing court to review their cases and consider permitting parole after serving twenty-five years in prison. Election Night 2012 provided another sentencing reform breakthrough in California with the passage of Proposition 36. NLPA notes that Proposition 36 passed with an overwhelming 68.65 of voters in favor.

Proposition 36 serves to reform the draconian “Three Strikes” law. The Three Strikes law required judges to sentence third-time offenders who have committed two previous violent or serious felonies to twenty-five to life prison terms for the commission of any third felony, regardless of the severity of the third felony. Although twenty-four other states possess Three Strikes laws, only California’s law permitted the third strike to be for any type of felony. However, with the passage of Proposition 36, a life sentence can only be issued for a third felony when the third felony conviction is considered “serious or violent.” Offenders who were sentenced to life, despite the fact that their third felony was not serious or violent, can now seek sentence modification.

However, contrary to the rhetoric of those opposed to Proposition 36, the amended sentencing law will not lead to “property crimes going up all over the state, and in very short order.” The amended law continues to impose a life sentence penalty if the third strike conviction was for “certain non-serious, non-violent sex or drug offenses or involved firearm possession” and for third strike felonies that are “non-serious, non-violent third strike if prior convictions were for rape, murder, or child molestation.” Clearly, defendants deemed dangerous will not be loosed upon society.

In practical terms, the amended law will permit the approximately 3,000 convicted felons who were, as of November 2012 serving life terms under the Three Strikes law whose third strike conviction was for a nonviolent crime, to be eligible to petition the court for a reduced sentence. It has been estimated that these reduced sentences could save California, and its taxpayers, between $150 and $200 million per year.

Should you have concerns that you are entitled to a lesser sentence based upon recently amended state sentencing laws, contact NLPA immediately, and we will help you in your fight for justice! NLPA will continue to be at the forefront of arguing for such change and in assisting defendants receive fair treatment.

Federal Drug Charges

Federal Drug Charges

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 NLPA 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.

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.

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.

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.

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.

 

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

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.

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.