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Drug Crimes

Jul 14
5
THC Controlled Substance Analogue Designer Drug

Controlled Substance Analogue Ratio Equates to Higher Federal Sentence

By | Drug Crimes

THC Controlled Substance Analogue Designer DrugSynthetic Cannabinoids became popular in the 2000’s when they were first marketed as “legal herbs.” In 2008, chemical analysis revealed that these designer drugs were more than just herbs.  The military, in particular, had a big problem with Spice and K2 (two forms of synthetic marijuana) in the late 2000’s, because they gave users a similar (or greater) high than marijuana, but they were not included in any federal schedule of controlled substances.  As these substances became more popular and widely consumed, the DEA banned their use in 2010 using emergency temporary powers and then later by placing them on Schedule I of Controlled Substance Act.

How Do Controlled Substances Analogues (Designer Drugs) Fit Into the Federal Drug Control Scheme?

 

United States v Malone (5th Circuit Court of Appeals – 2016)

Thomas Malone and his business partner Drew Green owned NutraGenomics Manufacturing, LLC, a distributor of JWH-018, a synthetic cannabinoid substance, also known as “Spice” and “K2” on the street. However, in 2011 federal and state legislatures banned JWH-018 and other similar designer drugs or synthetic cannabinoids. Malone and Green began selling other synthetic cannabinoids, namely, AM-2201, known as “Mr. Miyagi…a mixture of AM-2201 and vegetable material that visually resemble[s] marijuana.” Eventually, Malone and Green ordered the mass manufacture of Mr. Miyagi, selling in bulk to a distributor in Louisiana. Although labeled as potpourri, Mr. Miyagi was supposed to be smoked like marijuana.

Malone Faced Federal Indictment For Possession and Distribution of Mr. Miyagi

A federal grand jury returned an indictment, charging Malone with one count of conspiracy to distribute and possess with intent to distribute AM-2201, and, one count of conspiracy to commit money laundering. Malone decided to take a plea agreement, pleading guilty to one count of conspiracy to distribute and possess with the intent to distribute a Schedule I Controlled Dangerous Substance, a violation of 21 U.S.C. §§846, 841(b)(1)(c), 813, 802(32)(A). The district court accepted Malone’s guilty plea of distributing not less than 1400 kilograms of AM-2201, and ordered a pre-sentence report. A pre-sentence report “PSR” is a report created by a probation office in anticipation of the punishment phase of a trial—the PSR in this case set out to determine “the base offense level using the marijuana equivalency of the most closely related controlled substance to AM-2201.”

Pre-Sentencing Report’s Mathematical Formula Indicated Severe Penalty

The PSR listed Tetrahydrocannabinol, THC, as the most closely related controlled substance to AM-2201. Further, the federal Drug Equivalency Tables indicated that a 1 to 167 ration be applied to convert the 1400 kilograms of AM-2201 into marijuana for the purpose of sentences under the federal Sentencing Guidelines. Using this mathematical equation, it was determined that Malone should be sentenced for 233,800 kilograms of marijuana—the highest level set forth by the Drug Equivalency Tables. At trial, each side put forth an expert witness arguing for and against the use of the THC and the THC ratio set forth in the PSR.

Battle of the Experts at Trial

The Government’s Expert

The Government called Dr. Jordan Trecki to testify that THC is the most closely related substance to AM-2201. Dr. Trecki relied on a scientific study “showing that both THC and AM-2201 bind to the same cannabinoid receptor” in the brain. Second, he testified about a study on rats where the rats could not tell the difference between THC and AM-2201. Third, he discussed AM-2201’s potency and effects on humans. Dr. Trecki told the court that THC and AM-2201 are close in chemical make-up and in effect on the structures of the brain. Dr. Trecki said, however, that there was no scientific basis for the 1:167 ratio.

Malone’s Expert

Malone’s attorney called Dr. Nicholas Cozzi, who stressed the importance of comparison of the two drug compounds—THC and AM-2201—in humans, not just in animals. Dr. Cozzi criticized Dr. Trecki’s analysis because Trecki “combined the results of several studies” and that the studies were not conducted on humans, rather they were animal studies. Dr. Cozzi stated that marijuana, not THC, was the most closely related substance to AM-2201 because it’s smoked and inhaled, like marijuana, and because both substances are consumed for their effect. Dr. Cozzi agreed with Dr. Trecki on one point—that the 1:167 ratio was not rooted in science.

The Big Issue Before the Fifth Circuit

Relying heavily on Dr. Trecki’s expert testimony, the District Court sentenced Malone to 117 months imprisonment and three years of supervised release following prison. The court noted that “the ratios in sentencing guidelines are often arbitrary… [however] the ratios seek to outline the relative harm of certain drugs.” Malone appeals to the Fifth Circuit Court of Appeals.

The Fifth Circuit must determine whether THC really is the most closely-related substance to the controlled substance analogue, AM-2201, and if so, whether the 1:167 ratio is a reasonable conversion for sentencing purposes.

The Fifth Circuit Weighs In

Here, the Fifth Circuit points out that the district court spent a day holding an evidentiary hearing on the equivalency of AM-2201 to other drugs, “it is significant that the district court gave this matter studied attention.” The court notes that each side had the ability to present an expert witness and to cross examine. “Nothing in the record leaves us with…the conviction that a mistake [was made].”

Second, the Fifth Circuit compares AM-2201 and marijuana, disagreeing with Dr.Cozzi’s assertion that both drugs are smoked and inhaled in the same manner. “Marijuana is not consumed way…there is no evidence that a user would smoke a pure form of AM-2201, just as a user would not smoke pure THC.”

Third, the Fifth Circuit says that the district court did not have to “engage in a piece-by-piece analysis of empirical grounding behind…[the] sentencing guidelines.” United States v. Duarte, 569 F.3d 357, 366-67 (5th Cir. 2009). Accordingly, the Court says that only the Commission on sentencing guidelines can change the guidelines, and therefore, does not rule on this issue. The Fifth Circuit agrees with the holding and reasoning of the district court—Malone’s sentence is affirmed.
*This case consolidates two cases, United States v. Malone and United States v. Green.

Jun 28
6
Movie Plot Defense Opens Door 404b

Movie Plot Defense Opens the Door to Evidence of Other Crimes

By | Drug Crimes

The Fugitive, The Doctrine of Chances, and The Texas Rules of Evidence Collide: CCA Reviews a “Movie Plot” Defense Strategy

Movie Plot Defense Opens Door 404bDabney v. State (Tex. Crim. App. 2016)

Have you ever seen a movie like The Fugitive or Double Jeopardy where the main character finds himself in suspicious circumstances, only to be arrested and convicted, with the rest of the movie focused on proving the main character’s innocence? The defense counsel in Dabney v. State used this sort of analogy as the theme of his case to the jury—that the defendant was trapped in a bad movie plot and wasn’t actually guilty of any crime.

A Mystery Meth Lab Was Constructed at the Defendant’s Home

Defense counsel made a memorable opening statement at Ronnie Dabney’s trial. Dabney had been arrested and charged with manufacturing meth. Defense counsel told the jury that the evidence would show that the meth lab found on Dabney’s property was set up by others, without his knowledge, and that Dabney arrived home mere moments before law enforcement arrived to discover the lab. Defense counsel offered a movie-plot defense theory, “Have you ever seen a movie like The Fugitive or Double Jeopardy where a person is found in suspicious circumstances and [they] arrest and convict them?” The defense added, “Ronnie Dabney has been living this movie where he’s innocent, found in suspicious circumstances, and he’s trying to prove himself not guilty.”

In response to the movie-plot defense theory, the State filed a brief arguing that it should be permitted to present evidence of a previous incident years ago, in which Dabney was present when a search warrant was executed on his property and an active meth lab was found. The State argued that the opening statements about the movie-plot amounted to a defensive theory, where evidence or mistake is at issue, worthy of a rebuttal argument supported by rebuttal evidence allowed under Rule 404(b) of the Texas Rules of Evidence.

Before trial, Dabney submitted a request for “notice” of the State’s intent to use evidence of past “extraneous” offenses under the Texas Rules of Evidence 404(b). The state failed to give proper notice of any 404(b) allegations. However, after hearing the defense opening statement, the State argued that the similarities between the case at bar and a previous case “rebutted [Dabney’s] defensive theory of accident or mistake” and requested permission to use the previous incident as 404(b) evidence to show the absence of mistake. The judge concluded the evidence of the previous crime was admissible. During closing remarks, the State averred, “[Dabney is] the unluckiest man in the world…[he] wants you to think [he] is Harrison Ford from the Fugitive…[with] a confluence of unfortunate events that frame him…but…common sense says it’s not an accident if it has happened twice…it’s the Doctrine of Chances.” Ronnie Dabney was found guilty of manufacturing meth and the jury sentenced him to 30 years imprisonment.

Dabney appealed to the Second Court of Appeals arguing the State failed to give proper notice of intent to use evidence of Dabney’s past crimes in its rebuttal argument under Texas evidentiary rules. The Fort Worth Court of Appeals reversed the trial court’s judgment, holding that the evidence of Dabney’s past crimes was inadmissible without proper notice from the State. Dabney v. State, No. 02-12-00530-CR, 2014 Tex. App. LEXIS 11496 (Tex. App.—Fort Worth, Oct. 16, 2014) (mem.op., not designated for publication). The State petitioned the Court of Criminal Appeals for review, arguing that notice is not required for rebuttal evidence because defensive theories cannot be predicted ahead of time. Dabney asserts that the State has a duty to anticipate all defensive issues that may come up in rebuttal.

The Court of Criminal Appeals considered the following issues (among others not discussed in this article):

(1) Did the court of appeals incorrectly add a “notice requirement” for rebuttal evidence?
(2) Did the court of appeals improperly ignore the overwhelming evidence of Dabney’s guilt?

Texas Evidentiary Rules Regarding Other Crimes, Wrongs, or Acts

Rule 404(b) of the Texas Rules of Evidence states

evidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity [of the crime being prosecuted].” “However, [such evidence] may be admissible for other purposes, such as…intent, preparation…knowledge…absence of mistake or accident, provided that upon timely request by the [defendant], reasonable notice is given in advance of trial of intent to introduce in the State’s case.

A defense opening statement can open the door for the admission of extraneous-offense evidence to rebut the defensive theory presented in opening statements. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008).

The Doctrine of Chances tells [the court] that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.” LaPaz v. State, 279 S.W. 3d 336, 347 (Tex. Crim. App. 2009).

Rule 404(b) is a rule of inclusion, rather than of exclusions—it excludes only evidence that is offered solely for the purpose of proving bad character and conduct in conformity with that bad character. Id. at 343.

The CCA Holds that the Court of Appeals Improperly Added a Notice Requirement for Rebuttal Evidence

Here, the CCA reversed the decision of the court of appeals, holding that the court of appeals improperly added a notice requirement for rebuttal evidence and ignored the overwhelming evidence pointing to Dabney’s guilt. Because of the exception to the notice requirement when the defense opens the door to rebuttal evidence by presenting a defensive theory that the State may rebut using extraneous-offense evidence, the evidence of the prior crime was proper at trial, even without notice to defense beforehand. “To hold otherwise would impose upon the State the impossible task of anticipating, prior to the beginning of any trial, any and all potential defenses that a defendant may raise.” Also, there was no evidence that the prosecution acted in bad faith, or attempted to willfully avoid a discovery order. “Under the Doctrine of Chances, [Dabney’s] defense that he found himself in an unfortunate, highly unlikely situation becomes less credible when presented with evidence that he has been found in the exact same situation before.”

In sum, [Dabney] presented his defensive theory in opening statements and the State could use extraneous-offense evidence to rebut this theory in its case-in-chief, instead of waiting until the defense rested. Bass at 563. Defendants who are planning to use the “movie plot” defensive theory in the future, must be prepared to have the theory tested in front of a jury with 404(b) rebuttal evidence of other crimes, wrongs, or acts.

Dec 16
3
Brian Cuban The Addicted Lawyer

Addiction Issues Are Not Just for Clients

By | Drug Crimes

Brian Cuban: The Addicted Lawyer

Brian Cuban The Addicted LawyerBe it alcohol, drugs, or something else, many of our clients struggle with addiction.  We work everyday to counsel them and help them get plugged into the right places that assist in recovery.  But we sometimes forget that addiction issues aren’t limited to our clients.  Many of our friends and colleagues in the legal community struggle with addiction.  Overworked and overstressed, many lawyers turn to alcohol or drugs as an escape.

Recently, a friend of mine connected me with Brian Cuban. For those of you who don’t know of Brian Cuban, he is a lawyer, speaker, and activist, and the brother of Mark Cuban (the owner of the Dallas Mavericks).  Brian has been fighting (and winning) his battle against addiction since 2007.  He is also a writer with a new book coming out soon – The Addicted Lawyer.  I asked Brian if he would write a guest blog post about addiction.  The story below is from Brian.  Our hope is that this story will help to remind us to remember to help our colleagues in times of need and be on the lookout for the warning signs of addiction.

Gary Was a Lawyer, A Friend, An Addict

I drove past the same bus-stop every day. To the average person on his/her way to their next “stop” of the day, in life, nothing to set it off from any other.

That morning, I saw one such story I was intimately familiar with. There was Gary waiting for the bus. A lawyer. Undergraduate of Boston College Summa Cum Laude. Near the top of his class at Antioch School of Law. On to a great job with NBC. On to the NYC nightlife and the genetic pull of a family line ripe with alcohol use. Gary was an alcoholic and drug addict long before that bus stop. An addict trying to keep the shreds of his life and legal career together.

I had met Gary years before when we both worked of-counsel to a local Dallas firm. I was trying to hold my life together between addiction and an eating disorder. High functioning was a blessing and a curse. I needed no help. I showed up to court sober. I only did cocaine in the bathroom of the firm when I had no appointments. The pick up I needed after all night cocaine and alcohol benders. It all made perfect sense to me. In my mind, I was not an addict.

I had actually tried my last case with Gary. A bench trial contract matter. He ran the show. He was sober and brilliant. I didn’t want that show. I hated the practice of law. I was not afraid of a courtroom but I was sickened by them. A reminder of how much I hated my life and the career I had chosen for all the wrong reasons. We had a good result. Then Gary disappeared as he had sporadically done over the years since I first met him. I knew what that meant. We all knew. Periods of sobriety and stellar representation of his clients, periods of complaints of neglect and even showing up to client meetings apparently high.

Gary does not see me drive by him at the bus stop. He is looking at the ground. Waiting. My calls to him were never heard as his voicemail was full. I knew what that meant. Most addicts and their families know what that means. I went further down the road and turned around so I could drive up along side him. He got in. He had been to a 12-step meeting and was headed down to the Dallas 24-Hour club where he was a resident. He asked if I knew he had been disbarred. I had seen it in the local legal periodical. As what often happens with lawyers and addiction, clients money never made it to the client. State Bars take a dim view of stealing from clients and addiction is not an excuse. A common story. A common explanation from Gary. It was all a mistake. He had lost everything and was still in denial. I thought back to what my shrink had said to me April 8th 2007, the day I began my sobriety journey. “Brian, you have a law degree but you’re not a lawyer, you’re an addict.”

I drove Gary down to the 24 Hour Club. I bought him lunch. A familiar request for money until “he got back on his feet.” It became our routine. The bus stop. The drive. The excuses. The helplessness. Then he was gone again. The full voicemail. No longer at the transitional living home. He had tested dirty.

August 2013. My cell phone rings. A 516 area code. Long Island. Where some of Gary’s family lived. He had moved back home much as I had moved to Dallas to be with my brothers after finishing Pitt Law deep in alcohol use disorders. My family would save me. If recovery was only that simple. A quick conversation. He said he was sober and working as an attorney. He was also licensed in New York. I hid my annoyance at the fact that he had just been disbarred and yet was right back participating in another jurisdiction that may not know about his past. Was I ethically bound to say something? I struggled with the conflict between my view as a lawyer and as a recovering addict. It was not my recovery. It was his.

The day is finally here! My first book, “Shattered Image” is going to be released. Looking forward to the release party! A Facebook message from Gary. I had not heard from him in a while. The message was cheerful. A photo of a plane ticket to come to Dallas for my book signing. It would be the last time I would hear from Gary.

The message came from his ex-wife. The google explosion of his name told the story.

“Gary Abrams , 54 Fatally Struck By Truck Tractor Trailer” walking along a highway.

It is unknown whether he had been drinking but it does not matter. He is gone. He never “got it” in recovery. It’s not that he didn’t want it. He tried. I miss him and wish he had gotten it. Gary was a lawyer, a friend, a husband, a sibling, an alcoholic. an addict. In his passing, he also helped me. I know my recovery is only as good as today. Thank you Gary.

***************************

Brian Cuban: An authority on body dysmorphic disorder, male eating disorders and addiction(including steroids), Brian Cuban is the author of the best-selling book, Shattered Image: My Triumph Over Body Dysmorphic Disorder. It chronicles his first-hand experiences living with, and recovering from, twenty-seven years of eating disorders, alcoholism, drug addiction and Body Dysmorphic Disorder (BDD).

www.briancuban.com

Nov 23
3
Houston Crime Lab Scandal

More Aftermath from the Houston Crime Lab Scandal

By | Drug Crimes

CCA Says “No Relief” for Defendant Who Accepted Plea Deal, even though the Court Infers Defendant’s Lab Reports Were Falsified

Houston Crime Lab ScandalSee the CCA opinion in Ex Parte Barnaby 

Setting the Stage: The Houston Crime Lab Scandal

In January of 2012, the Texas Rangers investigated a Department of Public Safety (“DPS”) Crime Laboratory technician, Jonathan Salvador, for allegedly tampering with crime lab evidence. The Rangers questioned DPS technicians and reviewed evidence records, bringing information that pointed to Salvador’s mishandling of lab results to Harris County’s District Attorney’s office. However, after an extensive investigation, the grand jury did not indict the technician. Subsequently, the DPS Office of Inspector General issued a report, stating that Salvador “failed to properly follow laboratory protocols…misidentified substances, and dry-labbed [falsified] samples.” Following the report, Salvador was terminated from his position at the Houston Crime Lab.

The fallout from Salvador’s actions, “call…into question the veracity and reliability of many cases handled by Salvador…[and as a result courts have] granted relief on several writs of habeas corpus, finding that each case involved a presumptive violation of due process.” Ex Parte Turner, 394 S.W.3d 513 (Tex. Crim. App. 2013) (per curiam); Ex Parte Hobbs, 393 S.W.3d 780 (Tex. Crim. App. 2013) (per curiam). The Texas Court of Criminal Appeals (“CCA”) has since “retreated from a presumption that due process was violated in every Salvador case, [instead] requir[ing] a showing of falsity and materiality.” Ex Parte Coty, 418 S.W.3d 597, 605.

How to Demonstrate a Due Process Violation from the Houston Crime Lab Scandal

In order for a defendant to prove that due process has been violated, the defendant must show (1) falsity—that his evidence from the lab or lab report was falsified; and, (2) materiality—that such falsifications/false reports were material to the outcome of the guilty verdict. Ex Parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014).

Falsity

The defendant bears the initial burden of showing falsity; the CCA “has implemented a five-part protocol to be used when a [defendant] raises an inference of falsity.” Coty, 418 S.W.3d at 605.
A defendant shows falsity when:

  1. The technician in question is a state actor
  2. The technician has committed multiple instances of intentional misconduct in another case or cases;
  3. The technician is the same technician that worked on the [defendant’s] case;
  4. The misconduct is the type of misconduct that would have affected the evidence in the [defendant’s case]; and,
  5. The technician handled and processed the evidence in the [defendant’s] case within roughly the same period of time as the other misconduct.

Materiality

A defendant bears the burden of persuasion with regard to materiality. Id. at 606. Materiality of false evidence is measured by the impact it had on the defendant’s decision to plead guilty. Id. In cases involving plea agreements, the court examines the voluntariness of the plea—whether there is a reasonable likelihood that [the plea] affected the defendant’s decision to plead guilty, [but] not whether it affected the conviction or sentence. Id. The Court ponders questions like, “if the defendant had known that the lab reports were falsified, would he have plead guilty, or would he have gone to trial?” A plea, however, is not involuntary simply because a defendant does not correctly assess every relevant factor entering into his decision [to take the plea]. Ex Parte Evans, 690 S.W.2d 274, 277 (Tex. Crim. App. 1985); Brady v United States, 397 U.S. 742, 757 (1970). The CCA implies that the decision to “go to trial” is an indicator that the false evidence is indeed material; the decision to “take a plea deal” is a soft indicator that the false evidence is not material.

Applying this to Ex Parte Barnaby

On March 13, 2009, Kemos Marque Barnaby was stopped for a traffic offense. During the traffic stop, police smelled an odor of marijuana coming from inside the car. Barnaby was asked to exit the vehicle, and he consented to a pat-down search. With dashboard cameras rolling, a small plastic bag with white rocks, which tested positive for cocaine during a rapid field test, was found in Barnaby’s pants. The bag was delivered to the Houston Crime Lab, where Jonathan Salvador issued a drug analysis report, identifying the white rocks as cocaine. Instead of going to trial, Barnaby plead guilty to four separate offenses of possession of a controlled substance with intent to deliver in exchange for four concurrent fifty-year sentences. Barnaby appeals to the Court of Criminal Appeals, arguing that because of Salvador’s false report, his guilty plea was involuntary, and had an impact on his decision to take the plea deal.

Here, the Court examines falsity to determine whether due process was violated. Using the five-part falsity protocol, the Court says, (1) Salvador was a state actor; (2) Salvador had multiple instances of misconduct; (3) Salvador worked on Barnaby’s case; (4) Salvador’s misconduct is the type of misconduct that would have affected the evidence in Barnaby’s case; and, (5) Salvador handled Barnaby’s evidence in the same time period as the other misconduct at the Houston Crime Lab. The State conceded that Barnaby was able to raise the inference of falsity, and accordingly the Court infers that Salavador’s report in this case is false, carefully noting that an ‘inference of falsity’ is not an affirmative finding of a negative cocaine test result.

Next, the Court examines materiality to determine whether the false lab report was material to the decision to take a plea bargain and whether the value of the undisclosed information was outweighed by the benefit of accepting the plea offer. Ferrara v. United States, 456 F.3d 278, 294 (1st Cir. 2006). Here, the Court says that Barnaby, a habitual offender, was faced with four drug charges, on top of having two prior felony convictions, thus, enhancing sentencing guidelines ranging from 25 to 99 years imprisonment for each charge. On top of that, Barnaby was also charged with three additional charges of possession with intent to deliver in a drug-free zone, all of which were also enhanced to the habitual-offender statute. The plea resolved all four of those charges in exchange for four concurrent fifty-year sentences; “even if the falsity of the laboratory report had come to light…the State could have still prosecuted [Barnaby] for the three other [drug-free zone] cases. “[Barnaby’s] assertion that he would not have plead guilty had he known of the falsity of the laboratory report is unpersuasive in light of the benefit he received from the plea bargain.”

Even though the Court infers “that the laboratory report in [Barnaby’s] case was falsified, [the Court] finds that [such] falsity was not material to [Barnaby’s] decision to plead guilty,” adding that he received a benefit of a lighter prison sentence by choosing to take the plea deal. Accordingly, the Court of Criminal Appeals denies relief to Barnaby.

We’ve recently seen experienced drug lab problems in Fort Worth as well.  The problems have impacted countless drug and DWI cases in Tarrant County.  Any case that involves an outside crime lab must be scrutinized carefully by the criminal defense attorney.  While bad lab techniques (or technicians) might not mean an acquittal, but it could mean considerable relief for the defendant.

Nov 16
1
Possession of Methamphetamine in Fort Worth

Federal Courts No Longer Distinguish Between Pure Meth and Botched Meth When Calculating Weight

By | Drug Crimes

Possession of Methamphetamine in Fort WorthHere’s a Breaking Bad question for you: If Walt lets Jesse cook a batch of Meth and Jesse screws it up, such that it is unsellable, can they be punished for the amount of bad methamphetamine that they cooked in addition to the amount of good methamphetamine (if there were such a thing)? This 5th Circuit tells us in United States v. Ramirez-Olvera.

Antonio Ramirez-Olvera was convicted of possessing methamphetamine (meth) with the intent to distribute, violating 21 U.S.C. § 841(a)(1) and (b)(1)(B); he received a sentence of 240 months imprisonment, which is ten years below the bottom of the federal sentencing guidelines range for this offense.  Arguing that the district court excessively punished him, as the court did not distinguish between d-methamphetamine (“d-meth”) and l-methamphetamine (“l-meth”) for the sentencing guidelines’ equivalency table, Ramirez-Olvera appealed to the United States Court of Appeals for the Fifth District.

See the opinion in United States v. Ramirez-Olvera (5th Circuit, 2015)

How Should the Court Determine the Weight of Meth in a Possession Case?

The issue before the Court is whether federal courts must distinguish between the types of meth when deciding punishment, or, whether courts can punish based on a “lump sum” of the meth. As you can imagine, higher amounts generally mean a longer prison sentence.

Had the district court used only the d-meth in its calculations, Ramirez-Olvera’s prison sentence might have, in theory, been shorter. Relying on DEA lab reports,Ramirez-Olvera’s probation officer generated a presentence report that recommended, he “should be held responsible for 7.7 [total] grams,” combining both the l-meth and d-meth seized fromRamirez-Olvera’s home and car.

The Court discusses types of methamphetamine, highlighting the differences scientifically and practically. “D-meth and l-meth are stereoisomers of meth…consist[ing] of identical molecules [that are] differently arranged.” United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). D-meth causes psychological and physical changes in humans. L-meth, on the other hand, “produces little or no physiological effect when ingested.” Id. Further, L-meth is a “weak form of [meth], is rarely seen and is not made intentionally, but rather results from a botched attempt to produce d-meth.” U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)(2014). In other words, l-meth is an accidental byproduct when creating d-meth goes awry; L-meth has little to no cash value.

The Court reviews this case anew, focusing on the plain meaning of the Federal Sentencing Guidelines for drug crimes; the Guidelines are the authoritative, controlling source of law. United States v. Moore, 733 F.3d 161-63 (5th Cir. 2013). Amendment 518, “a 1995 amendment to § 2D1.1, indicates that courts need not distinguish between d-meth and l-meth when determining the quantity of…meth attributable to a defendant.” U.S. Sentencing Guidelines, [Sentencing Commission Dicta], §2D1.1(c)(1)(2004). Under this amendment, “l-meth [is to] be treated the same as d-meth…thereby simplifying guideline application [from this point forward].” Id. Further, the Court “ha[s] relied on Amendment 518 to hold [in an unpublished case] that any distinction between d-meth and l-meth is now immaterial when calculating drug quantity under the guidelines. United States v. Beltran, 91 F. App’x 349 (5th Cir. 2004).

The Court affirms the district court’s opinion, holding that under Amendment 518 to the sentencing guidelines, meth no longer is to be categorized for sentencing purposes; l-meth and d-meth are to be added together to render the quantity courts will use in assessing punishment. All meth created, pure and botched, will be added together to determine a defendant’s prison sentence.

Nov 04
0
Knowing Possession of Drugs in Texas

Trace Amounts of Drugs Inside Pipe Not Enough For Knowing Possession of Drugs

By | Drug Crimes

What Does it Mean to Be in Knowing Possession of Drugs in Texas?

Knowing Possession of Drugs in TexasPolice found George Williams sitting behind an air conditioner unit of a business building. Even though it was a cool morning, Williams had his shirt off and was sweating profusely. After doing a pat-down of Williams, police found a crack pipe in his pocket that was later determined to have cocaine residue in it by police and a chemist.

The Trial Court convicted Williams of knowingly possessing a controlled substance. The elements are:

  1. that appellant exercised actual care, control and management over the contraband; and
  2. that appellant had knowledge that the substance in his possession was contraband.

The 14th Court of Appeals (Houston) wanted to look further to see whether the evidence would support a reasonable inference that the defendant knowingly possessed the contraband. When the quantity of a substance possessed is so small that it cannot be measured, there must be evidence other than mere possession to prove that the defendant knew the substance in his possession was a controlled substance.

Read the Case:  Williams v. State (14th District Court of Appeals – Houston, 2015)

In other cases, the defendant was convicted because the State proved that there was saliva on the crack pipe, suggesting that it had recently been smoked and that the defendant was intoxicated at the time the police found him. Another example is a defendant being found in a well-known drug house holding a syringe with cocaine in it in a manner that he was about to insert, or had just inserted it, into his body.

In this case, the Court of Appeals found that the only evidence was that Williams had his shirt off and was sweating. The Court of Appeals held that this was not enough to prove Williams had recently used the pipe or knew of its purpose as a crack pipe. The Court of Appeals reversed this case in the favor of Williams.

This signals that it takes more than just merely being found with a pipe containing trace amounts of a drug to be convicted of knowingly possessing the drug. There must be more evidence such as intoxication, recent usage, or being found in a known drug house.

Fort Worth Drug Crimes Attorneys | Free Case Consultation

If you have been charged with possession of a controlled substance or any other drug crimes, contact our attorney today for a Free consultation of your case. We will take the time to speak with you about the incident and answer your questions about the criminal justice process in Tarrant County. Contact our office at (817) 993-9249.

Nov 03
0
Passing in Left Lane in Texas

Warrantless Traffic Stop Upheld for Driving in “Passing Only” Lane

By | Drug Crimes, Reasonable Suspicion

Driving in the “Passing Only” Left Lane for Forty-Five Seconds Creates Reasonable Suspicion for Warrantless Traffic Stop in Texas

Passing in Left Lane in TexasJaganathan v. State: Francheska Jaganathan was driving in the left lane of a three-lane Texas highway, just ahead of a police cruiser. Mounted with a dashboard camera, the cruiser accelerated and changed lanes, but stayed behind Jaganathan’s car. A few seconds later, Jaganathan’s car passed a “Left Lane for Passing Only Sign,” yet her vehicle continued in the left lane despite the middle lane being clear of traffic. About forty-five seconds later, the trooper turned on his overhead lights, and conducted a traffic stop of Jaganathan’s car. During the traffic stop, the trooper smelled marijuana, prompting a search of the vehicle. The trooper found marijuana in the trunk, and as a result, Jaganathan was charged with possession of marijuana.

At trial, Jaganathan filed a motion to suppress the evidence, but the court denied the motion. Jaganathan chose a plea agreement where she pled guilty and was placed on deferred adjudication. On appeal, Jaganathan argued that the trooper lacked reasonable suspicion to conduct the traffic stop in the first place. The court of appeals agreed with her, stating that Jaganathan likely stayed in the left lane for safety reasons, that seeing the cruiser may have influenced her decision to stay out of the trooper’s way, and that a few seconds were an insufficient amount of time “to conclude that [Jaganathan] committed a [traffic] violation.”

The Court of Criminal Appeals of Texas disagrees with the court of appeals, citing the reasonable suspicion standard in Texas, and the Texas Transportation Code. The Court of Criminal Appeals also clarifies the issue at hand.

The issue is not whether Jaganathan committed a traffic offense, but whether the trooper had reasonable suspicion to stop the vehicle.

First, “A trooper may make a warrantless traffic stop if the reasonable suspicion standard is satisfied.” Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). “Reasonable suspicion exists if the trooper has specific and articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged …in criminal activity.” Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).

Second, “an operator of a motor vehicle [must] comply with an applicable official traffic-control device, including a sign.” TEX. TRANSP. CODE § 544.004(a); § 541.304(1). “Before a trooper can have reasonable suspicion to believe that a defendant committed the traffic offense of failing to obey a “Left Lane for Passing Only” sign, the trooper must be aware of facts that support a reasonable inference that the defendant drove past the sign before being pulled over.” Abney, 394 S.W.3d at 549.

Here, Jaganathan was driving in the left lane without passing other cars, after driving past a sign that prohibited that conduct. The dashboard camera captured the sign and all of the movements of the car. According to the Court of Criminal Appeals, even if Jaganathan had a defense of necessity—she HAD to be in the left lane for a medical or traffic emergency—the trooper still had reasonable suspicion to conduct a traffic stop. The Court of Criminal Appeals states, “these were only possibilities, and so it was reasonable for [the trooper] to suspect the appellant had violated the law.” Further, the reasonable suspicion standard “accepts the risk that officers may stop innocent people.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). As a result of the forty-five second traffic violation, the trooper had reasonable suspicion to pull Jaganathan’s car over; and, as a result of smelling marijuana, the trooper was able to search the car without a warrant, resulting in charges against Jaganathan. The Court of Criminal Appeals reversed the judgment of the court of appeals and affirmed the judgment of the trial court.

It is important to note, however, that the ruling has a dissenting opinion. Justice Meyers is adamant that the sign and the Transportation Code supporting it are problematic for the following reasons:

• The Code is unclear on how to comply or not comply with the sign.
• The Code does not state a specific amount of time a driver has to pass and merge back into the non-passing lane.
• The Code does not address passing a string of cars, in the middle lane.
• The Code does not address the need to accelerate to be able to pass, whether intended or unintended (for example if the car being passed speeds up, making passing difficult).
• Proving a driver’s intent to pass another car is difficult.

If you or a loved one are facing traffic violations or drug charges, please contact our office for a free consultation at (817) 993-9249.

Jul 27
1
Drug Lab in Fort Worth, Texas

Court Rules Indigent Defendant Must Pay for Independent Drug Test

By | Drug Crimes

Drug Crimes Can Come With Added Costs | Fort Worth Drug Crimes Defense Attorneys

Drug Crimes Attorneys Fort WorthRobert Ehrke was convicted of a drug crimes case – possession of between one and four grams of methamphetamine in a drug-free zone – and sentenced to seventy-five years in prison. The weight (1.6 grams) and composition of the substance were determined by a Department of Public Safety chemist.

In a pre-trial motion, Ehrke requested the trial court to provide for independent testing of the substance. Ehrke’s attorney argued that, because 1.6 grams was so close to the 0.99 gram for a lighter sentence, independent testing was justified.

The trial court agreed it was required to allow Ehrke’s counsel to inspect and examine the substance. However, because Ehrke did not demonstrate the need for the test or any reason why a second test would have different results, the judge denied the motion for independent testing. Ehrke’s counsel’s offer to secure payment for the testing did not change the judge’s decision.

The Court of Appeals agreed with the trial court. The court based its decision on Ehrke’s failure to show a particular need for independent testing or how an independent chemist would arrive at a different result.

On appeal to the Court of Criminal Appeals, the CCA identified two issues: (1) whether Ehrke had a right to inspection of the substance by an independent expert and (2) whether the state was required to pay for such an inspection.

The Court noted the Code of Criminal Procedure provided for a defendant to inspect evidence material to the state’s case, but only if the defendant showed good cause for a request to inspect evidence. However, courts had found inspection mandatory if the evidence is material to the defendant’s case.

The CCA said that in a controlled substance case, if the defendant asks to inspect the substance, the court must allow inspection because the substance will necessarily be material to the defense–no showing of good cause is required.

The CCA addressed the question of what an “inspection” entails. Obviously, simply looking at the substance, which is apparently all the trial court offered Ehrke’s counsel, would not determine either its substance or its weight. The Court stated that in a controlled substance case, the right to pay for an independent chemist to analyze the substance is absolute.

On the second issue, the CCA acknowledged an indigent defendant’s right to a court-appointed (read “court-paid”) expert but said the defendant has the burden to provide specific justification for appointment of the expert. In Ehrke’s case, the CCA said, no specific justification had been provided. Even though Ehrke’s counsel explained the rationale for his request, he did not provide any evidence to question the original analysis by the DPS chemist, did not explain how independent testing was required for his defense and did not provide information regarding the complexity of the testing. According to the CCA, an absolute right to state-funded independent testing would be too great a financial burden to the County; therefore, appointment of an expert is required only if there is some preliminary evidence of a significant issue of fact to justify the appointment.

The Court remanded the case to the trial court for proceedings on the first issue.

The bifurcated decision in this case is perplexing. The Court said chemical analysis of an alleged controlled substance will always be material to a defendant’s case and discarded the Code’s requirement of a showing of good cause, making the right to independent testing absolute.

However, in the second issue, the Court seems to have abandoned its notion of materiality for a standard of affordability. On the part of the defendant, the Court cited case law that the state is not required to provide an indigent defendant with everything a wealthier defendant might be able to afford. More importantly, the Court concluded the financial burden to the County of paying for independent chemical testing in all controlled substance cases would be too great.

Examples abound of wealthy defendants procuring a better defense than an indigent defendant.  However, if an issue is always material to an indigent defendant’s case to the point of making the right to independent testing absolute, it seems odd that the indigent defendant’s right can be defeated by fiscal concerns of the County, which is in a much better position to pay for testing.

Contact our Drug Crimes Defense Attorneys Today for a FREE Consultation of Your Case at (817) 993-9249

Our Fort Worth criminal defense attorneys are experienced in defending drug crimes cases, including possession, possession with intent to distribute, manufacture, and more. If you are under investigation or have a pending charge, don’t wait. Contact us today.

Jan 22
0
Fort Worth warrantless arrest attorneys

Attenuating of the Taint of Unlawful Police Conduct in Drug Crimes

By | Drug Crimes

Fort Worth warrantless arrest attorneysIn Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

1. The temporal proximity of the arrest and the confession;
2. The presence of intervening circumstances; and
3. The purpose and flagrancy of the official misconduct (in making the arrest).

In May of 2012, in State v Mazuca, the Texas Court of Criminal Appeals considered the proper application of the “attenuation of taint doctrine,” not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee’s driver’s license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008.
2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date.
3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA’s application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that…

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee’s outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee’s pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

The opinion in this case seems a logically disconnected from the ultimate outcome. Apparently, some of the judges agree.  Here’s what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority’s analysis of the weight of the Brown factors may be correct, but the result discounts the trial court’s findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee’s name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should “afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses’ credibility and demeanor” and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

If you were the subject on an unlawful arrest on a drug crimes case, contact the Fort Worth, Texas drug crimes defense lawyers at Barnett Howard & Williams PLLC today.  (817) 993-9249.

Apr 19
0
Criminal Defense Traffic SIgn

Where’s Your Sign? No Traffic Offense if Road Sign Not Visible

By | Drug Crimes

Criminal Defense Traffic SIgnIn Abney v. State, the Texas Court of Criminal Appeals considered whether an officer had reasonable suspicion to initiate a traffic stop when a vehicle was driving in the left lane of a road without passing.  There was a road sign that prohibited driving in the left lane without passing, but it was located over 20 miles away from where the Appellant was pulled over.

As tends to happen, the police officer found marijuana during the traffic stop. At trial, and on appeal, the Appellant claimed that he did not commit a traffic violation because the road sign was not anywhere near where the stop occurred.  The trial court and 5th Court of Appeals (Dallas) overruled this argument.  The CCA, on the other hand found it meritorious.

The Transportation Code certainly indicates that if there is a sign present that says the left lane is for passing only, then it is a traffic offense to travel in the left lane when not passing another vehicle. Section 544.004(a) states that an operator of a vehicle shall comply with an applicable official traffic control device such as a “left lane for passing only” sign. Without such a sign present within a reasonable distance of the traffic stop, there is no offense.

The CCA reversed the Court of Appeals and held that the officer lack reasonable suspicion to justify the traffic stop.  The evidence should have been suppressed at trial.