Federal Defense Attorney John Teakell

Of all criminal charges, the most intimidating can be federal charges. This is especially true when one is dealing with a federal conspiracy charge. Some may ask just want exactly is a conspiracy? A conspiracy exists when two or more people form an agreement to do some act or refrain from doing some act. A conspiracy to commit a crime is a crime in and of itself, which means that conspiracy is charged as a separate offense and apart from the crime that the parties to the conspiracy conspired to commit. There are several reasons for a prosecutor to charge someone with conspiracy, and despite the fact that the law defines conspiracy as “agreement” between two or more persons, only one person need intend to commit a crime out of the conspiracy.

Most federal statutes require that the government prove at least one of the co-conspirators committed an overt act during the course and in furtherance of the unlawful agreement. For example, an overt act is required for a conspiracy under 18 U.S.C. §371 (to commit offense against or to defraud the United States), 18 U.S.C. §1117 (to commit murder); 18 U.S.C. §1201 (kidnapping); and 18 U.S.C. §1751 (Presidential assassination). However, an overt act is not required for 18 U.S.C. §241 (violate civil rights); 18 U.S.C. §2385 (advocate overthrow of government); 21 U.S.C. §846 (drugs); and 21 U.S.C. §963 (RICO).

In order to be convicted of a conspiracy the evidence must prove the defendant knew of the conspiracy, purposefully associated themselves with it and affirmatively cooperated in it, or at least agreed to cooperate in the objective of the conspiracy. However, the law is established that mere presence at a location, even with knowledge that a crime is being committed there, is not sufficient to establish that a defendant was a member of the conspiracy.

The punishment for conspiracy laws is generally the same as the punishment for the underlying crime agreed upon by the conspirators. However, many things can actually factor into the punishment. If the government believes that the conspiracy has been ongoing in nature, they may attempt to introduce evidence of all the prior acts of which they have knowledge. This is common in drug conspiracies where the quantities are often times added together to produce a much larger amount than may have actually been seized. Many times the government has obtained this information related to the conspiracy from a cooperating witness.

There are defenses to the crime of conspiracy. Thus, it is important to hire counsel who has experience in this area of the law.

If a defendant has been indicted by the federal government for a violation of the narcotics statute, 21 U.S.C. § 841 (b), and he has a prior conviction for a drug offense, the penalties can become quite severe. The mandatory penalties can double in prison time if a defendant has a previous drug conviction. The statute 21 U.S.C. § 851 , dictates the procedure whereby the government establishes that a defendant has a prior conviction, hence triggering an enhanced statutory sentence under the drug laws.

The discretion whether or not to file the enhancement is entirely up to the prosecution. However, the court can only increase the statutory sentencing range of a drug crime based upon a prior conviction if the government files such notice of the prior conviction pursuant to this statute. 21 U.S.C. § 851 provides that the enhanced penalties set forth in § 841(b) are triggered only if the government files, before trial or the entry of a guilty plea, an information “stating in writing the previous convictions to be relied upon.” This language is mandatory and if the government fails to file an information before trial, or entry of a plea of guilt, then the court lacks jurisdiction to enhance a defendant’s sentence.

Once the Government proves the defendant has a prior conviction, the defendant then has the burden of showing that the convictions are invalid. This may be prove to be somewhat of a heavy burden since certain time requirements would apply that allow a defendant to dispute the previous conviction. 21 U.S.C. § 851(e) prohibits the challenge of a prior conviction which is more than 5 years old. Furthermore, although the United States Sentencing Guidelines exclude certain prior convictions after a certain period of time, under 21 U.S.C. §841(b), it makes no difference how old the priors are.

In short, although the attempt to overcome the use of a prior conviction in a drug offense is a high hurdle to overcome, it is not necessarily an impossible one. Court records will reveal if that prior that the government may want to rely on to enhance the sentence was constitutionally obtained.

Entrapment is the act of a law enforcement agent inducing a person to commit an offense, which the person would not have, or was unlikely to have, otherwise committed. An entrapment defense generally requires the defendant to prove that he never would have committed the crime absent the police trapping him. At the same time, the government will attempt to show that the defendant was predisposed to committing such a crime so as to negate the entrapment defense.

If the government is able to show that the defendant readily and quickly responded to a single invitation, then they may be able to establish that the defendant was inclined to committing the crime on their own. However, even if the defendant was predisposed to committing the crime the government may still be required to prove it was not the law enforcement’s suggestive nature that caused crime to be committed.

As an affirmative defense, a defendant who is claiming that he was entrapped is stating that he did in fact commit the crime for which he is being accused. What the defendant is suggesting is that he should be excused from criminal liability, because absent being lured to the crime or enticement to engage in the criminal activity, he never would have committed the offense. Federal law provides that a defendant can both plead not guilty to the act of the crime and claim an affirmative defense of entrapment. However, both defenses are seldom asserted simultaneously.

Generally, entrapment is most commonly asserted as a defense in sting operations. For example, in the case of a drug sting if the police put pressure upon a person to sell drugs who initially refuses, but is persuaded to do so, then they could be seen as entrapping that individual. In the process of such operations, the police often engage in the same so-called crimes as the target suspect in order to gain the trust of the individual. Sometimes this conduct may be unethical and rise to the level of entrapment.

There are certain limitations, however, on when a defendant may raise an entrapment defense. Serious criminal charges such as homicide or felony murder can never be a defense to entrapment. In addition, if a defendant has a criminal history he may have a difficult time proving an entrapment defense because the government will attempt to introduce evidence of the prior convictions. If the prosecution can demonstrate a previous history of similar crimes then it becomes extremely difficult to prove entrapment.

The circumstances under which an entrapment defense may be employed are fairly specific, but an attorney familiar with an understanding of entrapment defenses may be able to give you more information regarding a particular situation.

In recent years, several decisions by the United States Supreme Court have determined how federal courts now apply the federal guidelines at sentencing. The most notable is United States v. Booker, 543 U.S. 220 (2005), where the Supreme Court transformed the federal sentencing guidelines from mandatory to advisory as a way of curing a defect that rendered the guidelines unconstitutional.

In Booker, the Court directed that sentences meted out under the newly advisory guidelines should be reviewed, if challenged, by the federal courts of appeals to determine whether they are “reasonable.” In response, a number of appellate courts gravitated back to the guidelines. They affirmed as “reasonable” within-guideline range sentences, but vacated as “not reasonable” sentences that fell below the guideline range.

The picture became a little more cloudy last year with the decision Rita v. United States, 128 S. Ct. 19 (2007). There the Supreme Court addressed whether a within-guideline sentence could be “presumed reasonable” and determined that it could. The question of how or whether the presumption applies to sentences below the guideline range was not decided because the petitioner in the companion case, Claiborne v. United States, 127 S. Ct. 2245 (2007), died while it was pending and his case was dismissed.

In the fall of 2007, the Court granted certiorari to the case Gall v. United States, 128 S.Ct. 586 (2007) to answer the question that it was not able to do in Claiborne. On December 11, 2007, the Supreme Court ruled that federal district court judges have greater latitude in imposing a sentence that falls outside the Sentencing Guideline range for a particular sentence. The Court held that district courts need not be required to give “extraordinary reasons” for departing from the Guidelines, as long as they do no abuse their discretion in imposing a particular sentence.

The Court was not finished yet as it had granted another case by the name of Kimbrough v. United States, 128 S. Ct. 558 (2007), certiorari in order to answer additional questions about the use of the guidelines at sentencing. In Kimbrough, the Supreme Court affirmed that district court judges have the discretion to deviate from federal sentencing guidelines and to consider other factors - including disparities in crack and powder cocaine sentences - when issuing sentences to drug offenders. This decision seemed to go hand in hand with the United States Sentencing Commission’s amendment to the guidelines that reduced the crack offender offense levels due to disparity.

Many experts agree that these decisions have given federal district judges back the discretion that was once stripped away from them at sentencing. In the pre-Booker days, the sentencing judge had no choice but to follow the guidelines or else run the risk of being reversed by a government appeal in the appellate court. Finally, these district judges are now free to exercise some long overdue common sense in determining an offender’s sentence.

Eyewitness testimony, which relies on the accuracy of human memory, has an enormous impact on the outcome of a trial. In criminal cases, eyewitnesses frequently play a vital role in uncovering the truth about a crime. The evidence they provide can be critical in identifying, charging, and ultimately convicting suspected criminals. However, eyewitness testimony is not infallible. No evidence seems more convincing upon its first hearing, yet is more unreliable, than eyewitness identification testimony. Even the most honest and objective people can make mistakes in recalling and interpreting a witnessed event. There can be no reasonable doubt that inaccurate eyewitness testimony may be one of the most prejudicial features of a criminal trial.

Time and time again, eyewitness testimony has proven to be unreliable, sometimes resulting in the conviction of innocent persons. In response, the criminal justice system has gradually implemented a variety of procedural protections which include jury instructions, line-ups, the suppression of unreliable identifications, etc. Since jurors tend to put a lot of faith in eyewitness testimony, a mistaken identification defense requires careful planning and execution. A defense attorney’s role is to approach the subject of eyewitness testimony with a critical and skeptical eye. The defense must educate the jury about the possibility, or even probability, of mistakes. Although the eyewitness may make a ”positive” identification of a defendant, it is imperative that the defense attorney be prepared to demonstrate that certainty is no guarantee of accuracy. Therefore, a goal of the defense is to demonstrate to the jury how an eyewitness can be honestly mistaken, by pinpointing the causes and reasons for the error.

Many jurisdictions have a preliminary hearing or probable cause hearing as a first stage proceeding. Although the Confrontation Clause guarantees do not apply at such a stage, nonetheless in many jurisdictions the complainant and/or an eyewitness will be called to testify. One of the purposes of preliminary examination, aside from discovering potential damaging testimony, is to become familiar with the witnesses, their temperaments, character, demeanor while testifying, and any other important mannerisms. This information, sometimes as much as the actual testimony, must be previewed before the witnesses are actually called and examined before the jury at trial.

Even though defense counsel can challenge eyewitness testimony, it will be the judge or the jury who will weigh this testimony against other pieces of the evidence to determine what indeed happened at the time and place in question. There is no denying that eyewitness testimony can be persuasive evidence before a judge or jury, especially in criminal trials. Research has shown, however, that eyewitness testimony can be systematically fallible in ways that undermine the goals of the rules of evidence. This does not necessary mean that eyewitness testimony is always inaccurate - it just means that there are legitimate grounds (and perhaps reasonable doubt) to challenge a case when the only evidence is eyewitness testimony.

Federal law prohibits any person who has ever been “convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to ever or for any reason “possess… any firearm or ammunition.” 18 U.S.C. 922(g) makes it a federal crime for any person who has ever been convicted of any felony to ever possess any firearm regardless if it is inside or outside of the home. This blanket federal ban on all felon gun possession is punishable with up to 10 years of imprisonment.

There are exceptions to this rule in some instances. Federal law contains an explicit statutory exclusion which provides that the federal criminal offense of firearms possession is inapplicable to persons who has had their civil rights restored on the predicate state felony conviction. 18 U.S.C. §921(a)(20) provides:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly [or implicitly as a matter of state law] provides that the person may not ship, transport, possess, or receive firearms.

Whether a person has had his civil rights restored for a state conviction is a matter determined by state, not federal law. However, for federal law to recognize the state restoration of rights exception, the terms of the restoration must include the right to vote, the right to seek and hold public office, and the right to serve on a jury. If the restoring state includes the three aforementioned rights then federal law contains an additional clause that must be examined. This clause looks to the actual state law to see if there are any restrictions imposed on the right of the convicted felon to possess a weapon. If there is some added firearms restriction under state law, then the federal clause is triggered to make the possession of any firearms unlawful under federal law, despite the state’s restoration of civil rights.

Is there any other way to regain the right to own a gun? In theory, one can submit an application to the Bureau of Alcohol, Tobacco, Firearms, (ATF) under 18 U.S.C. § 925(c) requesting restoration of your gun rights. The application is supposedly granted if “it is established . . . that the circumstances . . . and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”

A felony is more serious than a misdemeanor offense and is generally a crime punishable by more than a year in prison. Some common felonies include aggravated assault and/or battery, arson, burglary, embezzlement, grand theft, treason, espionage, racketeering, robbery, murder, rape, kidnapping, and fraud. Felonies have a wide range of punishment from probation, to imprisonment, to execution for the more serious crimes. In the United States, convicted felons also lose their right to vote, are excluded from certain types of jobs and obtaining certain licenses, exclusion from purchasing and possession of firearms, ammunition and body armor, and the ineligibility to run for or be elected to a public office.

Similar to misdemeanor offenses, there are different levels felonies and each carries a different degree of punishment. The lowest being a state jail felony and the highest a Capital Felony.

Types of Felonies

What is a State Jail Felony?

Common state jail felonies include credit card abuse, unauthorized use of a motor vehicle and reckless injury to a child. State jail felonies typically include a punishment of confinement for a term in a state jail from 180 days to two years and an optional fine not to exceed $10,000.

What is a Third Degree Felony?

Common third degree felonies include a third DWI (drunk driving) charge, indecency with a child, kidnapping, and possession of a firearm by a felon. The punishment usually consists of confinement for a term from two to 10 years in prison and an optional fine not to exceed $10,000.

What is a Second Degree Felony?

The punishment for a second degree felony consists of confinement for a term from two to 20 years in prison and an optional fine not to exceed $10,000. Common second degree felonies include aggravated assault, aggravated kidnapping if the victim is released unharmed, arson, robbery, and sexual assault.

What is a First Degree Felony?

The punishment for a first degree felony consists of confinement for life or a term from five to 99 years in prison and an optional fine not to exceed $10,000. Common first degree felonies include murder, aggravated kidnapping, robbery, and sexual assault.

What is a Capital Felony?

This is the most severe and serious of all felony convictions. Murder that is committed during the act of another felony such as kidnapping, rape or robbery, qualified for the capital felony charge. Punishment for a capital felony is prison for life or the death penalty. If the State decides not to seek the death penalty, an automatic life sentence is imposed upon the conviction. If the State seeks the death penalty, the jury must answer questions that will either result in a sentence of life in prison or the death sentence.

A one-time Pro Bowl running back in 2002, Travis Henry played seven years in the NFL with Buffalo, Tennessee and Denver. Now that roller coaster ride may soon be coming to a stop in a federal prison after Henry was indicted along with a co-defendant, James Mack for their participation in what federal officials call a conspiracy of possession with intent to distribute five kilograms or more of cocaine.

Federal Indictments Issue
On October 12, 2008, Henry and Mack were named in a federal indictment which was issued in the United States District Court of Montana. According to the indictment, the undercover sting resulted from a traffic stop in Montana, where a trooper and DEA agent stopped a car which was carrying over three kilograms of cocaine. An unnamed passenger in the car told authorities that both Mack and Henry had supplied him with the cocaine and that he would agree to cooperate with police and setup the undercover drug buy. Shortly afterward, both Henry and Mack arrived at the scene carrying a duffel bag filled with cocaine which was valued at over $100,000. The two were then placed under arrest and taken into custody.

Both face Mandatory Minimum Penalties if Convicted

The pair faces very hefty penalties if convicted of the cocaine offenses. A conviction of the count of possession of five kilograms alone would result in a mandatory minimum sentence of 10 years and up to a maximum of life in federal prison. Henry and Mack also face heavy fines of up to $4 million on each count if convicted.

Henry was released from jail after posting a $400,000 bond and remains on electronic monitoring pending trial. Mack was released on a much lower bond of $10,000 because prosecutors suggested his role was less culpable than Henry in the matter. A trial date has not yet been set in this matter.

A misdemeanor is a “lesser” criminal act, carrying a less severe punishment than felonies but are more serious than regulatory offenses. Misdemeanors in the United States general have a maximum punishment of 12 months in jail, typically the local jail. Some common misdemeanors include, petty theft, prostitution, public intoxication, simple assault, disorderly conduct, trespassing and vandalism. In addition to full jail time, misdemeanor punishments include probation, community service or part-time imprisonment served on the weekends.

There are several different classes o misdemeanors that carry their own severity of punishment. The lowest level is a Class B Misdemeanor and the highest level is a Class A Misdemeanor that carries a more severe punishment.

Classes of Misdemeanor Offenses

What is a Class B Misdemeanor?

Common Class B Misdemeanor charges include one DWI charge, a criminal trespassing charge, theft by check from $50 to $500, and evading arrest or detention. The punishment of a Class B Misdemeanor typically consists of confinement for a term of up to one year in the county jail and/or a fine not to exceed $2,000.

What is a Class A Misdemeanor?

The punishment of a Class A Misdemeanor typically consists of confinement to the county jail for a term of up to one year and/or a fine not to exceed $4,000. Some common Class A Misdemeanor crimes include a second DWI (Driving While Intoxicated) charge, an assault charge, the burglary of a vehicle, and the unlawful carrying of a weapon.

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