Houston Lawyer Charles Johnson
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Federal and state laws make it a crime to produce, possess, distribute, or sell pornographic materials that exploit or portray a minor. Increasingly, child pornography laws are being utilized to punish use of computer technology and the Internet to obtain, share, and distribute pornographic material involving children, including images and films.
Under federal law (18 U.S.C. §2256), child pornography is defined as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where
- the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct; or
- the visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
- the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
Federal law (18 U.S.C. §1466A) also criminalizes knowingly producing, distributing, receiving, or possessing with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture or painting, that
- depicts a minor engaging in sexually explicit conduct and is obscene, or
- depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and such depiction lacks serious literary, artistic, political, or scientific value.
Sexually explicit conduct is defined under federal law (18 U.S.C. §2256) as actual or simulated sexual intercourse (including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex), bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.
Who Is a Minor?
For purposes of enforcing the federal law (18 U.S.C. §2256), “minor” is defined as a person under the age of 18.
Is Child Pornography a Crime?
Yes, it is a federal crime to knowingly possess, manufacture, distribute, or access with intent to view child pornography (18 U.S.C. §2252). In addition, all 50 states and the District of Columbia have laws criminalizing the possession, manufacture, and distribution of child pornography. As a result, a person who violates these laws may face federal and/or state charges.
Where Is Child Pornography Predominantly Found?
Child pornography exists in multiple formats including print media, videotape, film, CD-ROM, or DVD. It is transmitted on various platforms within the Internet including newsgroups, Internet Relay Chat (chatrooms), Instant Message, File Transfer Protocol, e-mail, websites, and peer-to-peer technology.
What Motivates People Who Possess Child Pornography?
Limited research about the motivations of people who possess child pornography suggests that child pornography possessors are a diverse group, including people who are
- sexually interested in prepubescent children or young adolescents, who use child pornography for sexual fantasy and gratification
- sexually “indiscriminate,” meaning they are constantly looking for new and different sexual stimuli
- sexually curious, downloading a few images to satisfy that curiosity
- interested in profiting financially by selling images or setting up web sites requiring payment for access
Who Possesses Child Pornography?
It is difficult to describe a “typical” child pornography possessor because there is not just one type of person who commits this crime.
In a study of 1,713 people arrested for the possession of child pornography in a 1-year period, the possessors ran the gamut in terms of income, education level, marital status, and age. Virtually all of those who were arrested were men, 91% were white, and most were unmarried at the time of their crime, either because they had never married (41%) or because they were separated, divorced, or widowed (21%).3
Forty percent (40%) of those arrested were “dual offenders,” who sexually victimized children and possessed child pornography, with both crimes discovered in the same investigation. An additional 15% were dual offenders who attempted to sexually victimize children by soliciting undercover investigators who posed online as minors.4
Who Produces Child Pornography?
Based on information provided by law enforcement to the National Center for Missing & Exploited Children’s Child Victim Identification Program, more than half of the child victims were abused by someone who had legitimate access to them such as parents, other relatives, neighborhood/family friends, babysitters, and coaches.
What is the Nature of These Images?
The content in these illegal images varies from exposure of genitalia to graphic sexual abuse, such as penetration by objects, anal penetration, and bestiality.
Of the child pornography victims identified by law enforcement, 42% appear to be pubescent, 52% appear to be prepubescent, and 6% appear to be infants or toddlers.
What Are the Effects of Child Pornography on the Child Victim?
It is important to realize that these images are crime scene photos – they are a permanent record of the abuse of a child. The lives of the children featured in these illegal images and videos are forever altered. Once these images are on the Internet, they are irretrievable and can continue to circulate forever. The child is revictimized as the images are viewed again and again.
Houston Child Pornography Defense Lawyer: The Charles Johnson Law Firm
Depending on the facts of your case and the evidence against you, we work to help you beat a false accusation or try to lessen the punishment. We understand your freedom is at stake and that a conviction of possession of child pornography may result in lifetime registration as a sex offender. To protect your rights and liberty, we conduct thorough investigations to prepare for trial or to minimize the consequences or sentence.
Related News Stories – Child Pornography in Houston, TX
Houston man caught distributing child porn worldwide
HOUSTON – A Houston man is in jail after allegedly circulating videos across the world of himself sexually assaulting a young girl. Jesus LaPorte is in the Harris County Jail under $200,000 bond and facing a charges of promotion of child pornography and ...
KVUE - Mar 11 2015
Suspect pleads guilty to Texas campus stabbing rampage
HOUSTON (AP) - A 23-year-old man has pleaded guilty to attempted ... in Corpus Christi plead guilty Wednesday to possession of close to 10,000 images of child pornography. He was also found to have a fully automatic WWII era .30 Caliber M2 Carbine.
Action 10 News - Aug 20 2015
Men plead guilty in child sex crimes
Randy Houston Mercer pleaded in U.S. District Court to production of child pornography, a crime punishable by 15 to 30 years in prison. According to court documents, Mercer produced child pornography between July 2014 and January, and had sexual relations ...
m.chronicle.augusta.com - Aug 12 2015
Charles Johnson |
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Federal Drug Lawyer Charles Johnson represents clients who have been charged or are about to be charged with drug charges in Federal Court. The Charles Johnson Law Firm has earned an international reputation as one of the top Federal Drug Law Firms.
Regardless of the federal or international drug charge, Federal Drug Lawyer Charles Johnson has the drug defense experience to handle your case. He has successfully handled sophisticated drug defense cases that included Trafficking, Importation, Distribution and many others. When faced with a federal drug crime there is absolutely no substitute for experience. If you have been charged with drug crime and need a Federal Drug Defense Attorney, contact Attorney Johnson directly anytime night or day at (713) 222-7577. In Federal and International Drug Defense, experience makes the difference.
Federal Drug Crimes Overview
The Comprehensive Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Substances Act, classifies narcotics, marijuana and other drugs into five categories, or Schedules. Besides establishing requirements relating to manufacture and distribution of drugs, the law also defines penalties for violations of the Act. Depending on the nature and quantity of the substance involved, as well as the presence of sentence-enhancing factors, the criminal penalties can be severe. If you are facing federal drug charges, call Houston Federal Drug Crime Lawyer Charles Johnson for advice on the law, your rights and how to proceed. He is available around the clock to take your call.
Offenses at the Federal Level
Federal drug offenses differ from those at the state level, even though the conduct in question might be the same. In defining crimes, Congress’ authority comes from its Constitutionally-granted powers over the areas of commerce, taxation and the postal service.
Some of the drug crimes under the Controlled Substances Act include:
- Drug trafficking: manufacturing, distributing or possessing with the intent to distribute illicit drugs
- Manufacturing: operating places for the purposes of manufacturing, distributing or using illicit drugs, or endangering human life while so doing
- Continuing criminal enterprise crimes: trafficking in illicit drugs by a person in concert with five or more other persons
- Conspiracy: involves attempts and the promoting and facilitating of manufacture, distribution or importation of illicit drugs
- Protected location offenses: distributing illicit drugs to persons under age 21 or within a school or playground zone; employing persons under age 18 in drug operations
- Simple possession: possessing controlled substances without a valid prescription from a licensed medical practitioner (unlike trafficking, simple possession does not involve intent to distribute the drugs)
Other drug offenses under the Act include investing illicit drug profits in businesses affecting interstate commerce and unauthorized importation of controlled substances. The Drug Enforcement Administration (DEA) enforces the federal controlled substances laws and regulations.
In addition, drug crimes at the federal level may include violations of tax law, such as tax evasion, or engaging in activities prohibited by the Racketeer Influenced and Corrupt Organizations Act (RICO).
Federal Sentencing Guidelines
Federal drug laws specify minimum and maximum terms of imprisonment, based on the type and quantity of drug involved. Likewise, under the Federal Sentencing Guidelines, these factors are taken into account, along with:
- Whether the offense involved injury to another person
- Whether a weapon was possessed or used
- The defendant’s criminal history
While judges have discretion to depart from sentencing guidelines, they must still stay within the mandatory minimum and maximum terms specified by statute. Where the offense occurs in a school or other protected zone, penalties may be enhanced.
Hire the Best Federal Drug Crimes Lawyer: The Charles Johnson Law Firm
Drug crimes can be charged and prosecuted under federal law, state law or both. Because federal drug crimes can carry significantly harsher penalties, it is important to contact a knowledgeable lawyer who is familiar with both federal and state drug laws. If you are facing either federal or state drug charges, call Federal Drug Crimes Lawyer Charles Johnson now at (713) 222-7577. He can explain the intricacies of both systems and vigorously represent your interests.
Charged with a Federal Crime? What To Expect
The following is a short summary of what you can expect if charged with a Federal Crime.
By the time you read this material, you or your loved one will have already entered the Federal Criminal Justice System. Whether you are in custody or in the “free world”, one firm rule applies: Do not discuss your case with anyone but your lawyer. Anything you say can and will be used against you. This is true whether you talk to a police officer, a person you just met in a holding cell, or a “friend”.
RELEASE OR DETENTION
The first thing to worry about is whether you are going to be released while waiting for trial. There is no bond set automatically in federal court. Your family cannot simply pay a bondsman to get you out.
Court Appearance: If you were arrested and taken into custody, you will soon appear before a United States Magistrate Judge. This is not the District Judge that will hear your trial. This Magistrate Judge will decide if there are any conditions that would allow your release.
Pretrial Report: In order to assist the Magistrate Judge, a Pretrial Services Officer will interview you and give the Magistrate Judge a written report about your background and criminal history. The Officer will not ask you about the facts of your case and you should not volunteer any information. If you lie to the Officer, it will hurt you later on.
Chance for Release: You are most likely to be released if you have little or no criminal history, if you have solid employment and family ties in your community, if you are a United States Citizen, and if you are not charged with a serious drug trafficking offense or crime of violence. Even if you are not a good risk for release, the Magistrate Judge must still hold a hearing and find reasons to keep you in custody. The only time this hearing is unnecessary is when you are being held in custody for other reasons — such as a sentence in another case, a parole warrant, or a probation revocation warrant.
When you are facing criminal charges, your choice of legal representation is a critical issue. You must ensure that you have legal representation from a proven attorney with a record of successfully defending difficult cases.
In order to protect your rights and to fight a possible Federal drug conviction, it is very important to hire the Best Federal Lawyer you can find. Your future is at stake, and this is not a time to cut corners. A knowledgeable Drug Crime Defense Lawyer will be able to sort out the details of your drug crime charges and diligently work to provide evidence that will benefit you. At the Charles Johnson Law Firm, we have been successful at lowering or dismissing charges against our clients and will look to do the same for you. To counteract the aggressive investigation and prosecution from the federal government, you will need an equally aggressive criminal defense attorney. Federal Drug Crime Lawyer Charles Johnson understands federal drug crime cases inside and out and will provide an unmatched dedication, commitment and an aggressive approach when defending your case.
Honesty: Defendants often believe it is better not to tell their lawyers the truth about their case. This is not a good idea. Everything you tell your lawyer is privileged and cannot be told to others. The best defense is one that prepares for all the bad evidence the prosecutor may present against you at your trial. Your lawyer must know all the facts. It is foolish to ignore the dangers and simply hope everything will turn out all right. That is the sure way to be convicted.
Bad Advice: If you are in custody, you will probably get a lot of free advice from other inmates. Unfortunately, much of that advice will be wrong. Many of the other inmates are in state custody and know nothing about federal criminal law. Even the ones facing federal charges may give you bad advice; they may not know any better, or they want to mislead you.
Respect: Treat your lawyer with respect and that respect will be returned to you. Lawyers are human beings who tend to work harder for clients who do not mistreat them.
When people talk about “rights” in the federal criminal justice system, they are usually talking about the Fourth, Fifth, Sixth and Eighth Amendments to the United States Constitution. These rights include freedom from unreasonable searches and seizures, the right to remain silent, the right to legal counsel, due process of law, equal protection under the law, protection from double jeopardy, a speedy and public trial, the ability to confront one’s accusers, subpoenas for witnesses, no excessive bail, and freedom from cruel and unusual punishment.
Caselaw: There are many books and thousands of cases that discuss what these rights mean. The law is always changing. A court opinion written in 1934 by a Montana court of appeals is probably no help in your case. Your case will mostly be affected by recent published opinions of the United States Court of Appeals for the Fifth Circuit and the United States Supreme Court.
Application: Not all of these rights apply in all cases. If you never made a statement to the police, then it will not matter whether you were told of your right to remain silent. If you consented to a search of your car, then it will not make a difference whether the police had a search warrant.
There are no benefits to being locked up. Jail has many rules and regulations. Some of those rules are made by the jailers. Some of these rules are made by the United States Marshal.
Clothing: You can get clothing two ways. The way to get underwear, tennis shoes, socks, etc, is to buy them through the jail commissary. Despite what others tell you, your lawyer cannot simply bring you these items. In most instances, trial clothing can be brought to the U.S. Marshal’s office shortly before your court appearance. You will be allowed to change in the holding cell at the federal courthouse.
Other Possessions: Sometimes the jail may allow you to receive magazines by subscription or books mailed from a store. It depends on the jail’s rules. Most other items need to be purchased through the commissary. All jails prohibit your lawyer from bringing you any items, such as cigarettes. You may keep legal documents in your possession.
Visits: Your friends and relatives must follow the jail’s rules when making appointments to visit you. You must put the names of these persons on your visitation list.
At some point you will come to court for an arraignment. This is the time when you enter a plea of “Not Guilty”.
Indictment: Before the arraignment, you will have been indicted by a Grand Jury. Neither you, nor your attorney, has a right to be present at the Grand Jury session. A Grand Jury decides if there is enough evidence to have a trial in your case. If there is not, then the case is dismissed. If there is, the Grand Jury issues an Indictment. An Indictment is the document that states what the charges against you are. The Grand Jury sessions are rarely transcribed, so it is usually not possible to receive a transcript of their sessions.
Hearing: The arraignment takesplace before a Magistrate Judge,notthe DistrictJudge who will hear your case. The Magistrate Judge will ask you several questions:
- Do you understand what you are charged with?;
- Do you understand the potential penalties if you are convicted?; and
- How do you plead to the charges?
Since you will have discussed the case with your lawyer by this time, you will be able to answer the first two questions “Yes”. Your answer to the third question is “Not Guilty”. You cannot plead “Guilty” at an arraignment. Pleading “Not Guilty” will never be used against you.
Discovery: Federal law provides only limited access to the government’s evidence against you. Under local rules, you and your attorney are permitted to have copies of only certain types of documents in the government’s file. The rules of discovery must be strictly adhered to, and your attorney will discuss these rules with you more thoroughly as your case progresses.
Motions: Before or after investigating your case, your attorney may feel it appropriate to file a motion(s), which may be heard before or at trial. You should never file your own motions without fully discussing the proper procedures with your attorney. If you have ideas about specific motions that could be filed your case, you should discuss with your attorney whether those particular motions would be appropriate or beneficial to your defense.
Many defendants want a quick trial. This is usually for two reasons. First, defendants who are in custody want to get out of the county jail as soon as possible. Second, defendants believe that if they are not tried within the Speedy Trial Act’s 70-day time limit, then their cases will be dismissed.
Pretrial Detention: There is no question that conditions in the county jail are not good. However, a defendant is rarely ever helped by going to trial as soon as possible. The prosecutor is prepared to try the case when it is filed. Your lawyer is only then beginning to investigate the case. Your lawyer does not have access to offense reports of the law enforcement officers that have already investigated the case. Also, “aging” a case has other benefits — the case becomes less important over time, witnesses’ memories fade, etc.
Dismissal: There are many exceptions to the Speedy Trial Act. Generally, a prosecutor can get a continuance of the trial whenever requested. The usual reason why a prosecutor requests a continuance is because there are codefendants who have not been arrested yet. The speedy trial deadlines do not begin to run until all charged defendants have appeared in court. Also, any time any of the defendants file motions, the time until those motions are decided is not counted toward the speedy trial deadline.
A felony trial in federal court is decided by twelve jurors. The jurors only decide if you are “Guilty” or “Not Guilty” of the charges in the Indictment. Jurors do not decide punishment. The District Judge decides punishment.
Jury Selection: The trial begins with the selection of the jury. A panel of potential jurors is called to court from voter registration lists. The District Judge, the prosecutor, and your lawyer talk to the panel and ask questions. The lawyers are allowed to keep certain members of the panel from sitting on the jury. The first twelve of the remaining panel members become jurors.
Opening Statements: Before the evidence is presented, the lawyers may make opening statements. Opening statements are when the lawyers tell the jury what they believe the evidence will show.
Order of Proof: The prosecutor presents evidence first. You are presumed to be innocent until proven guilty beyond a reasonable doubt. You do not have to present any evidence or testify. If your lawyer does put on evidence, it will happen after the prosecutor has finished presenting evidence.
Rules: During the trial, the lawyers must follow the rules of evidence and procedure. These rules are complicated. The rules can both help and hurt you. For instance, the rule against hearsay evidence prohibits a prosecutor from calling a witness to testify how he heard about what you did. The same rule will stop your lawyer from introducing an affidavit made by some person who is unwilling to come to court and testify.
Prior Acts: Although you are only on trial for the charges in the Indictment, there are two ways the jury can learn about other accusations against you. First, if you testify then the prosecutor will be able to introduce your prior convictions. Second, the prosecutor can introduce your prior acts –even if they are not convictions — if they are similar to the crime you are charged with (for example, prior drug sales in a drug distribution case).
Final Arguments: After all the evidence has been presented, the lawyers argue the facts to the jury.
Jury Deliberations: Jurors are usually average working people from the community. They are not specially trained in law. They use their common sense when deciding the case. Although the District Judge will instruct them about “the presumption of innocence” and “proof beyond a reasonable doubt”, jurors rely on many things in coming to a decision in a case. Jurors often rely on things such as: the appearance of the defendant, the defendant’s character, and their own biases and prejudices. They cannot be questioned about how they reached their decision.
Verdict: If you are found “Not Guilty”, you will be released. If there is a “Guilty” verdict, then the District Judge will order the Probation Department to prepare a Presentence Investigation Report to assist the District Judge at sentencing. It takes approximately two months between a conviction and sentencing.
Release: If you were previously on pretrial release,the District Judge may continue thatrelease until sentencing, unless you were convicted of a crime of violence or a serious drug trafficking offense.
Statistics show that most defendants plead guilty. You make the decision to plead guilty. That decision is never simple. Some possible benefits of a guilty plea are that:
- the prosecutor may dismiss some charges;
- the prosecutor may not file new charges;
- the prosecutor may recommend a favorable sentence;
- you may get credit for accepting responsibility, etc.
Plea Agreement: Any promises the prosecutor makes for your guilty plea will be stated in a written plea agreement. That agreement is signed by you, your lawyer, and the prosecutor.
Plea Hearing: You must enter a guilty plea in court before the District Judge. The District Judge must ask you many questions so the record shows you understand what you are doing. During the hearing, the prosecutor will briefly tell the District Judge the facts of the case. You must agree to those facts for the District Judge to accept your guilty plea.
Effect of Plea: Once the District Judge accepts your guilty plea, you are just as guilty as if a jury returned that verdict. Once you are convicted of a felony, you lose certain civil rights, including the right to vote; the right to sit on a jury; and the right to possess firearms.
After Plea: The procedure after a guilty plea is the same as after a conviction at trial. A Presentence Investigation Report will be ordered and you will either be released or detained until sentencing (see “Trial” section).
Some defendants give prosecutors information against other persons for the possibility of a reduced sentence. There is no guarantee that a defendant will get a lower sentence for “giving people up”. Cooperation usually requires a defendant to testify in court or before a Grand Jury.
Many times, federal defendants are first arrested by state officers on state charges. Sometimes, even when federal charges are filed, the state charges are not dismissed. It is possible to be convicted of both state and federal charges for the exact same offense. This is not “double jeopardy”. It is also possible to receive “stacked time” (a consecutive sentence), by pleading guilty to an unrelated state or federal case before being convicted in your federal case. Be careful not to do anything about your other cases without telling your attorney. If you are summoned to “jail call”, do not agree to plead guilty to your state charge in exchange for “time served” without telling your lawyer. Despite what the state prosecutor may tell you, this conviction will affect your federal sentence.
Sentencing takes place approximately three (3) -six (6) months after you have been convicted by a jury or guilty plea. The District Judge decides the sentence. Unlike state court, you cannot simply agree with the prosecutor to serve a particular amount of time or probation.
Federal Sentencing Guidelines: The District Judge decides your sentence based upon a book called the “Federal Sentencing Guidelines Manual”. That book works on a point system. You get points for the seriousness of the offense and your role in the offense. Points may be subtracted if you accept responsibility for the offense or if you were only a minor participant. The Manual also considers your criminal history. Your criminal history is the record of your prior convictions in state and federal courts. A chart at the back of the Manual determines your sentencing guideline range, based upon your criminal history points and the points you received for the offense conduct.
Mandatory Minimum Punishments: Some drug and firearms cases have mandatory minimum punishments. These minimum punishments apply even if the Federal Sentencing Guidelines would otherwise give you a lower sentence. For instance, anyone possessing over 280 grams of crack cocaine after August 3 2010, with the intent to deliver it, must receive at least ten (10) years in prison; even if that person is a first offender.
Departures: If the District Judge sentences you to more or less time than your sentencing guideline range, it is called a “departure”. Departures are unusual. The District Judge must have a good legal reason for a departure. The District Judge cannot depart downward below a mandatory minimum punishment, unless the reason is that you have provided substantial assistance to the government in the prosecution of others or you qualify for the “safety valve” provision as a first offender. Only drug cases qualify for the “safety valve”.
Presentence Investigation Report: Before the sentencing hearing,the District Judge will review a Presentence Investigation Report prepared by a Probation Officer. That report summarizes the offense conduct, your criminal history, and other relevant background information about you. Most importantly, the report calculates a range of punishment for the District Judge to consider in your case. The Probation Officer creates the report based upon information from the prosecutor, independent investigation, and an interview with you in the presence of your lawyer.
Interview: It is important to be honest with the Probation Officer at the presentence interview. If you mislead the officer you may increase your sentence for “obstruction of justice”. Also, you will not get credit for accepting responsibility unless you talk truthfully about your crime. Do not talk about any other conduct for which you have not been convicted, unless your lawyer tells you to.
Objections: Before the District Judge gets the Presentence Investigation Report, it will be sent to your lawyer. The probation office will also mail a copy directly to you for your inspection. Review it carefully. If there is anything incorrect about the report, your lawyer can file objections. Some mistakes are more important than others. If the report says your car is red rather than blue, that is probably not important. If the report says you have five (5) prior felonies when you do not, that is important.
Sentencing Hearing: At the sentencing hearing, the District Judge will review your objections to the Presentence Investigation Report and make findings about any facts or legal issues that cannot be agreed upon. Your lawyer will address the legal issues and point out the facts in your favor. District Judges do not want to hear from witnesses who are just there to plead for a reduced sentence. Letters of recommendation and other helpful evidence should be provided to your lawyer well before sentencing so the District Judge can see them before the hearing. Before the District Judge pronounces sentence, you can make a statement.
Concurrent and Consecutive Sentences: No area of law is more confusing to defendants and lawyers than whether multiple sentences (more than one) may be served at the same time (concurrent) or one after another (consecutive).
Present Charges: If your federal Indictment has several related charges, and you are convicted of them, you probably will serve these sentences at the same time. However, it is possible for the District Judge to “stack” unrelated convictions so each must be served before another begins.
Other Charges: Sometimes a defendant is already serving a sentence before being convicted in a federal court. Unless the District Judge specifically orders the new sentence to run at the same time as the previous sentence, they will be stacked and will run consecutively. You would have to finish your other sentence before the new one begins. Even if the District Judge runs the new sentence at the same time as your previous sentence, you will not get credit for the time you served prior to sentencing.
If you were on release until sentencing, you may be allowed voluntary surrender. This means about 45 days later you report directly to the federal prison designated for sentence. Otherwise, you would go directly into custody if you received a prison sentence.
An appeal is not a new trial. An appeal is a review of your case by the United States Court of Appeals for the Fifth Circuit, which is located in New Orleans, Louisiana. You may only appeal after you have been sentenced. A notice of appeal must be filed within 10 days after judgment (your sentencing order) is entered, or you lose that right. Transcripts of all testimony, and all the legal documents in your case, are sent to the Court of Appeals. The Court of Appeals decides whether the District Judge made any mistakes in ruling on the law in your case. If the Court of Appeals decides there were some important mistakes made by the District Judge in your case, the usual remedy is that you will be allowed to have a new trial or a new sentence. That is called a “reversal”. It does not happen often. It is nearly impossible to be released while your appeal is being decided. The decision to appeal should be made only after a careful discussion with your lawyer. The Fifth Circuit is strict about accepting cases that raise legitimate issues. A claim that you received “too much time” will not prevail in the Fifth Circuit. The Fifth Circuit will dismiss your appeal if you do not present an issue they consider meritorious. Also, you and your lawyer can be sanctioned (punished) if you present a “frivolous” issue on appeal.
Probation means your term of imprisonment is suspended, you must follow restrictive conditions, and report to a probation officer. Probation is not available for federal drug trafficking crimes. Except for minor fraud cases, most federal defendants do not get probation. “Shock Incarceration” or “Boot Camp” is not probation. That is a military discipline program followed by time in a halfway house. It is available mostly to young, nonviolent, first-time offenders.
Most defendants who are sentenced to prison go directly into custody or continue to remain in custody. Where the sentence will be served depends on several factors.
State Custody: If the reason you first came into custody was a state charge, parole warrant, or probation revocation warrant, then you are in state custody, not federal custody. Neither the United States Marshal, nor the District Judge, has the authority to take you from state custody so that you may begin serving your sentence in a federal institution. This means you will remain in the county jail, or the Texas Department of Criminal Justice, until your State of Texas (or whatever other jurisdiction you owe time) sentence is completely served. Even if you got a federal sentence that is to run at the same time as your previous sentences (see “Sentencing” section), you will do that time in the other jurisdiction’s prison.
Jail Credit: In the federal system, the district judge does not have the authority to award jail credit at your sentencing hearing. See United States v. Wilson , 112 S.Ct. 1351 (1992); 18 U.S.C. §3585(b). Under the statute giving a defendant convicted of federal crime the right to be credited for time spent in official detention before sentence begins, the Attorney General is required to compute credit after the defendant has begun to serve his sentence, rather than the district court at time of sentencing. Statute giving defendant convicted of federal crime right to receive credit for time spent in official detention before sentence begins does not authorize district court to award credit at sentencing.
Federal Custody: You are in federal custody if you were brought in on a federal warrant. It does not matter that you are being held in the county jail or that state charges or revocations are later filed. It is always better to be in federal custody, because the State of Texas will give you credit for serving your state sentences no matter who has custody of you.
Designation: If you are in federal custody, then a federal institution must be designated for your sentence. This designation takes about one (1) month and is made by the Federal Bureau of Prisons. During that month, you will probably remain in a county jail. The decision about where you will go depends upon the seriousness of the crime, your criminal history, the location of your family, among other things. A recommendation by the District Judge to send you to a particular place is not binding on the Bureau of Prisons.
Good Time Credit: The Bureau of Prisons can give you up to 54 days a year of “Good Time Credit”. This is time subtracted from your sentence. The credit is a privilege for good behavior, not a right. It does not begin to be counted until after your first year in prison.
Release: There is no parole in the federal criminal justice system. You will serve the majority of your sentence, minus Good Time Credit. You will receive a term of supervised release that begins after you are released. Like probation or parole, supervised release means you have to follow rules and report back to a probation officer. Violating supervised release can mean going back to prison.
You must use your own judgment about writing letters. You should not write about the facts of your case to anyone other than your lawyer. If you have any questions about your case or suggestions about it, you should contact your attorney immediately.
Federal Drug Charges in Houston, TX
Houston is in a unique position because of its convenient location. It is a criminal hotbed for illegal drug activity and because of its reputation, law enforcement; the FBI and the DEA are on high alert when it comes to detecting and convicting those guilty of trafficking or other federal drug crimes. Because drug activity is so rampant in Texas, the state has exceptionally harsh penalties for those who commit federal drug crimes. How one is prosecuted will depend on whether or not they have any priors on their record, the type of drug, and the quantity. A prison sentence for a federal drug crime can be as little as five years or it can be as long as life in prison.
The state of Texas has long been involved in a “war on drugs.” Federal prosecutors in the state of Texas come down hard on criminals involved in selling, distributing and trafficking large amounts of drugs. Not only do you face years in prison if convicted, non-citizens face deportation from the United States. At The Charles Johnson Law Firm, we are here to defend you against Federal Drug Charges.
Houston Federal Drug Crimes Lawyer Charles Johnson comprehends the differential factor between State and Federal drug crimes. If in fact you or a loved one are under investigation for a drug crime, or if you have been apprehended for or charged with a drug crime in Texas or Houston, you could face harsher punishment than you expect. If you or a loved one’s alleged crime is based upon large amounts of illegal drugs, transporting or distributing drugs over state lines or over and across the border, or other specific details, you could face federal drug crime charges rather than state charges.
The significant thing to know pertaining federal drug crimes is that a conviction will carry a much harsher punishment, a longer mandatory at the very least sentence, and the possibility of no bond or bail. Attorney Johnson defends cases at the Federal Level that involve drug crimes such as:
- Federal drug trafficking
- Federal drug manufacturing
- Federal drug sales and distribution
- Internet drug distribution
- Federal drug importation and transportation
- Mailing drugs over and across state lines or national borders
- Drug smuggling into or out of the United States
- Other crimes related to drugs and money laundering
Contact Houston Lawyer Charles Johnson anytime night or day to discuss your case. You can speak with him directly by calling (713) 222-7577. If in fact you or a loved one think you are part of a federal drug investigation, don’t wait to contact a lawyer you can trust. Rest assured that The Charles Johnson Law Firm will zealously defend you against any type of Federal Drug Charge.
Download “Arrested for Federal Drug Charges? Get Expert Counsel From Federal Drug Lawyer Charles Johnson” in PDF Format
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Conspiracy is one of the most often used crimes in the arsenal of the United State’s Attorneys Office.
This all encompassing charge has the ability to touch almost every Federal Crime. Common conspiracy charges include:
- Conspiracy to deal in illegal narcotics,
- Conspiracy to possess with intent to distribute Cocaine, Crack Cocaine, Marijuana, or Methamphetamine.
- Conspiracy to commit Mail Fraud, Wire Fraud, Health Care Fraud, and Tax Fraud and other White Collar Crimes
If you are charged with conspiracy to commit an offense in Federal Court, your rights and your future are in jeopardy. Choosing the right criminal defense attorney to defend your case and protect your rights is critical. If you have been charged with conspiracy, or if you have reason to believe you are under investigation by law enforcement agents, the sooner you hire a criminal defense lawyer, the better positioned you will be. Houston Criminal Lawyer Charles Johnson provides a strong defense to conspiracy charges at both the state and federal level.
It is important to speak to an experienced federal criminal defense attorney as soon as possible if you are being investigated or have been arrested for any federal offense. Why?
- Federal authorities tend to spend a lot of time and money investigating a suspect before they make an arrest.
- They frequently have tape of your telephone conversations with an informant. Both can present significant challenges for the defense.
- Conviction for a federal offense can have extremely serious consequences, including long periods of incarceration and huge fines.
Time Is Not on Your Side
Don’t delay. The earlier you retain legal counsel, the more options we will be able to pursue. For example, we may be able to negotiate with the prosecutor to get the charges dismissed or reduced before a grand jury convenes to issue an indictment. Houston Federal Criminal Lawyer Charles Johnson may be able to intervene on your behalf even before an arrest is made. If you believe you are the target of an investigation by any federal authority, please contact our office immediately.
Effective Defense Against Federal and Conspiracy Charges
In order to prove conspiracy, the government must prove each of the following elements beyond a reasonable doubt:
- An agreement between at least two parties to achieve an illegal goal
- That the defendant became a member of the conspiracy knowing at least one of its goals and intending to accomplish it
- At least one conspirator committed an act to further the conspiracy.
As you can see, you can be charged with conspiracy even if you did nothing to actually commit a crime. The “crime” itself does not even have to be completed. In many cases, individuals with a limited role, or no role whatsoever in a criminal scheme, are charged with conspiracy. Suddenly even someone with a minor role in a broader conspiracy may be facing extreme consequences if convicted.
The Charles Johnson Law Firm will fight every aspect of these charges. We will hold the government to its burden of proof and will find any potential evidentiary or Constitutional violations in your case. You can contact Attorney Johnson anytime day or night and talk with him directly about your case. He can be reached at (713) 222-7577 around the clock.
Federal Conspiracy: Summary
Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and some of the former Enron executives have at least one thing in common: they all have federal conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to engage in some form of prohibited misconduct. The crime is complete upon agreement, although some statutes require prosecutors to show that at least one of the conspirators has taken some concrete step or committed some overt act in furtherance of the scheme. There are dozens of federal conspiracy statutes. One, 18 U. S. C. 371, outlaws conspiracy to commit some other federal crime. The others outlaw conspiracy to engage in various specific forms of proscribed conduct. General Section 371 conspiracies are punishable by imprisonment for not more than five years; drug trafficking, terrorist, and racketeering conspiracies all carry the same penalties as their underlying substantive offenses, and thus are punished more severely than are Section 371 conspiracies. All are subject to fines of not more than $250,000 (not more than $500,000 for organizations), most may serve as the basis for a restitution order, and some for a forfeiture order.
The law makes several exceptions for conspiracy because of its unusual nature. Because many united in crime pose a greater danger than the isolated offender, conspirators may be punished for the conspiracy, any completed substantive offense which is the object of the plot, and any foreseeable other offenses which one of the conspirators commits in furtherance of the scheme. Since conspiracy is an omnipresent crime, it may be prosecuted wherever an overt act is committed in its furtherance. Because conspiracy is a continuing crime, its statute of limitations does not begin to run until the last overt act committed for its benefit. Since conspiracy is a separate crime, it may be prosecuted following conviction for the underlying substantive offense, without offending constitutional double jeopardy principles; because conspiracy is a continuing offense, it may be punished when it straddles enactment of the prohibiting statute, without offending constitutional ex post facto principles. Accused conspirators are likely to be tried together, and the statements of one may often be admitted in evidence against all.
In some respects, conspiracy is similar to attempt, to solicitation, and to aiding and abetting. Unlike aiding and abetting, however, it does not require commission of the underlying offense. Unlike attempt and solicitation, conspiracy does not merge with the substantive offense; a conspirator may be punished for both.
Terrorists, drug traffickers, mafia members, and corrupt corporate executives have one thing in common: most are conspirators subject to federal prosecution. Federal conspiracy laws rest on the belief that criminal schemes are equally or more reprehensible than are the substantive offenses to which they are devoted. The Supreme Court has explained that a “collective criminal agreement – a partnership in crime – presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality.” Moreover, observed the Court, “group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked.” Finally, “combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed.” In sum, “the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.” Congress and the courts have fashioned federal conspiracy law accordingly.
The United States Code contains dozens of criminal conspiracy statutes. One, 18 U. S. C. 371, outlaws conspiracy to commit any other federal crime. The others outlaw conspiracy to commit some specific form of misconduct, ranging from civil rights violations to drug trafficking. Conspiracy is a separate offense under most of these statutes, regardless of whether conspiracy accomplishes its objective. The various conspiracy statutes, however, differ in several other respects. A few, including Section 371, require at least one conspirator to take some affirmative step in furtherance of the scheme. Most have no such overt act requirement.
Section 371 has two prongs. One outlaws conspiracy to commit a federal offense; a second, conspiracy to defraud the United States. Conspiracy to commit a federal crime under Section 371 requires that the underlying misconduct be a federal crime. Conspiracy to defraud the United States under Section 371 and in several other instances has no such prerequisite. Section 371 conspiracies are punishable by imprisonment for not more than five years. Elsewhere, conspirators often face more severe penalties.
These differences aside, federal conspiracy statutes share much common ground because Congress decided they should. As the Court observed in Salinas, “When Congress uses well-settled terminology of criminal law, its words are presumed to have their ordinary meaning and definition. When the relevant statutory phrase is ‘to conspire,’ we presume Congress intended to use the term in its conventional sense, and certain well-established principles follow.”
These principles include the fact that regardless of its statutory setting, every conspiracy has at least two elements: (1) an agreement (2) between two or more persons. Members of the conspiracy are also liable for the foreseeable crimes of their fellows committed in furtherance of the common plot. Moreover, statements by one conspirator are admissible evidence against all. Conspiracies are considered continuing offenses for purposes of the statute of limitations and venue. They are also considered separate offenses for purposes of sentencing and of challenges under the Constitution’s ex post facto and double jeopardy clauses. This is a brief discussion of the common features of federal conspiracy law that evolved over the years, with passing references to some of the distinctive features of some of the statutory provisions.
Although it is not without common law antecedents, federal conspiracy law is largely of our own making. It is what Congress provided, and what the courts understood Congress intended. This is not to say that conspiracy was unknown in pre-colonial and colonial England, but simply that it was a faint shadow of the crime we now know. Then, it was essentially a narrow form of malicious prosecution, subject to both a civil remedy and prosecution. In the late 18 and early 19 centuries, state courts and legislatures recognized a rapidly expanding accumulation of narrowly described wrongs as ” conspiracy.” The patchwork reached a point where one commentator explained that there were “few things left so doubtful in the criminal law, as the point at which a combination of several persons in a common object becomes illegal.”
Congress, however, enacted few conspiracy statutes prior to the Civil War. It did pass a provision in 1790 that outlawed confining the master of a ship or endeavoring revolt on board. This, Justice Story, sitting as a circuit judge, interpreted to include any conspiracy to confine the prerogatives of the master of ship to navigate, maintain, or police his ship. The same year, 1825, Congress outlawed conspiracies to engage in maritime insurance fraud. Otherwise, there were no federal conspiracy statutes until well after the mid-century mark.
During the War Between the States, however, Congress enacted four sweeping conspiracy provisions, creating federal crimes that have come down to us with little substantive change. The first, perhaps thought more pressing at the beginning of the war, was a seditious conspiracy statute. Shortly thereafter, Congress outlawed conspiracies to defraud the United States through the submission of false claim, and followed that four years later with a prohibition on conspiracies to violate federal law or to defraud the United States.
Subsequent conspiracy statutes, though perhaps no less significant, were more topically focused. The Reconstruction civil rights conspiracy provisions, the Sherman Act anti-trust provisions,and the drug and racketeering statutesmay be the best known of these. All of them begin the same way — with an agreement by two or more persons.
Two or More Persons
There are no one-man conspiracies. At common law where husband and wife were considered one, this meant that the two could not be guilty of conspiracy without the participation of some third person. This is no longer the case. In like manner at common law, corporations could not be charged with a crime. This too is no longer the case. A corporation is criminally liable for the crimes, including conspiracy, committed at least in part for its benefit, by its employees and agents. Moreover, a corporation may be criminally liable for intra-corporate conspiracies, as long as at least two of its officers, employees, or agents are parties to the plot. Notwithstanding the two-party requirement, no co-conspirator need have been tried or even identified, as long as the government produces evidence from which the conspiracy might be inferred. Even the acquittal of a co-conspirator is no defense. In fact, a person may conspire for the commission of a crime by a third person though he himself is legally incapable of committing the underlying offense.
On the other hand, two people may not always be enough. The so-called Wharton’s Rule placed a limitation on conspiracy prosecutions when the number of conspirators equaled the number of individuals necessary for the commission of the underlying offense. Under federal law, the rule “stands as an exception to the general principle that a conspiracy and the substantive offense that is its immediate end do not merge upon proof of the latter.” And under federal law, the rule reaches no further than to the types of offenses that birth its recognition — dueling, adultery, bigamy, and incest.
It is not enough, however, to show that the defendant agreed only with an undercover officer to commit the underlying offense, for there is no agreement on a common purpose in such cases. As has been said, the essence of conspiracy is an agreement, an agreement to commit some act condemned by law either as a separate federal offense or for purposes of the conspiracy statute. The agreement may be evidenced by word or action; that is, the government may prove the existence of the agreement either by direct evidence or by circumstantial evidence from which the agreement may be inferred. “Relevant circumstantial evidence may include: the joint appearance of defendants at transactions and negotiations in furtherance of the conspiracy; the relationship among codefendants; mutual representation of defendants to third parties; and other evidence suggesting unity of purpose or common design and understanding among conspirators to accomplish the objects of the conspiracy.”
The lower federal appellate courts have acknowledged that evidence of a mere buyer-seller relationship is insufficient to support a drug trafficking conspiracy charge. Some do so under the rationale that there is no singularity of purpose, no necessary agreement, in such cases: “the buyer’s purpose is to buy; the seller’s purpose is to sell.” Others do so to avoid sweeping mere customers into a large-scale trafficking operation. Still others do so lest traffickers and their addicted customers face the same severe penalties. All agree, however, that purchasers may be liable as conspirators when they are part of a large scheme.
Again, in most cases the essence of conspiracy is agreement. “Nevertheless, mere association, standing alone, is inadequate; an individual does not become a member of a conspiracy merely associating with conspirators known to be involved in crime.”
One or Many Overlapping Conspiracies
The task of sifting agreement from mere association becomes more difficult and more important with the suggestion of overlapping conspiracies. Criminal enterprises may involve one or many conspiracies. Some time ago, the Supreme Court noted that “thieves who dispose of their loot to a single receiver – a single ‘fence’ – do not by that fact alone become confederates: They may, but it takes more than knowledge that he is a ‘fence’ to make them such.” Whether it is a fence, or a drug dealer, or a money launderer, when several seemingly independent criminal groups share a common point of contact, the question becomes whether they present one overarching conspiracy or several separate conspiracies with a coincidental overlap. In the analogy suggested by the Court, when separate spokes meet at the common hub they can only function as a wheel if the spokes and hub are enclosed within a rim. When several criminal enterprises overlap, they are one overarching conspiracy or several overlapping conspiracies depending upon whether they share a single unifying purpose and understanding—one common agreement.
In determining whether they are faced with a single conspiracy or a rimless collection of overlapping schemes, the courts will look for “the existence of a common purpose . . . (2) interdependence of various elements of the overall play; and (3) overlap among the participants.” “Interdependence is present if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged co-conspirators or facilitated the venture as a whole.”
If this common agreement exists, it is of no consequence that a particular conspirator joined the plot after its inception as long as he joined it knowingly and voluntarily. Nor does it matter that a defendant does not know all of the details of a scheme or all of its participants, or that his role is relatively minor.
Conviction under 18 U. S. C. 371 for conspiracy to commit a substantive offense requires proof that one of the conspirators committed an overt act in furtherance of the conspiracy. In the case of prosecution under other federal conspiracy statutes that have no such requirement, the existence of an overt act may be important for evidentiary and procedural reasons. The overt act need not be the substantive crime which is the object of the conspiracy, an element of that offense, nor even a crime in its own right. Moreover, a single overt act by any of the conspirators in furtherance of plot will suffice.
Conspiracy to Defraud the United States
Federal law contains several statutes that outlaw defrauding the United States. Two of the most commonly prosecuted are 18 U. S. C. 286, which outlaws conspiracy to defraud the United States through the submission of a false claim, and 18 U. S. C. 371, which in addition to conspiracies to violate federal law, outlaws conspiracies to defraud the United States of property or by obstructing the performance of its agencies. Section 371 has an overt act requirement; section 286 does not. The general principles of federal conspiracy law apply to both.
The elements of conspiracy to defraud the United States under 18 U. S. C. 371 are (1) an agreement of two or more persons; (2) to defraud the United States; and (3) an overt act in furtherance of the conspiracy committed by one of the conspirators. The “fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of the Government” by “deceit, craft or trickery, or at least by means that are dishonest.” The plot must be directed against the United States or entity; a scheme to defraud the recipient of federal funds is not sufficient. The scheme may be designed to deprive the United States of money or property, but it need not be so; a plot calculated to frustrate the functions of an entity of the United States will suffice.
In contrast, a second federal statute, 18 U. S. C. 286, condemns conspiracies to defraud the United States of money or property through submission of a false claim. The elements of a section 286 violation are that “the defendant entered into a conspiracy to obtain payment or allowance of a claim against a department or agency of the United States; (2) the claim was false, fictitious, or fraudulent; (3) the defendant knew or was deliberately ignorant of the claim’s falsity, fictitiousness, or fraudulence; (4) the defendant knew of the conspiracy and intended to join it; and (5) the defendant voluntarily participated in the conspiracy.” Conviction does not require proof of an overt act in furtherance of the conspiracy.
When Does It End
Conspiracy is a crime which begins with a scheme and may continue on until its objective is achieved or abandoned. The liability of individual conspirators continues on from the time they joined the plot until it ends or until they withdraw. The want of an individual’s continued active participation is no defense as long as the underlying conspiracy lives and he has not withdrawn. An individual who claims to have withdrawn bears the burden of establishing either that he took some action to make his departure clear to his co-conspirators or that he disclosed the scheme to the authorities. As a general rule, overt acts of concealment do not extend the life of the conspiracy beyond the date of the accomplishment of its main objectives. On the other hand, the rule does not apply when concealment is one of the main objectives of the conspiracy.
Imprisonment and Fines
Section 371 felony conspiracies are punishable by imprisonment for not more than five years and a fine of not more than $250,000 (not more than $500,000 for organizations). Most drug trafficking, terrorism, racketeering, and many white collar conspirators face the same penalties as those who committed the underlying substantive offense, e. g. , 21 U. S. C. 846 ( “Any person who . . . conspires to commit any offense defined in the Controlled Substances Act shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the . . . conspiracy” ); 18 U. S. C. 2339B ( “Whoever knowingly provides material support or resources to a foreign terrorist organization . . . . or conspires to do so, shall be fined under this title, or imprisoned not more than 15 years, or both” ); 18 U. S. C. 1962(d), 1963(a)( “(d) It shall be unlawful for any person to conspire to violate any of the racketeering provisions of subsection (a), (b), or (c) of this section. . . . (a) Whoever violates any provision of section 1962 . . . shall be fined under this title, or imprisoned for not more than 20 years. . . or both ” ); 18 U. S. C. 1349 ( ” Any person who . . . conspires to commit any offense under this chapter relating to mail fraud, wire fraud, etc. shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of . . . the conspiracy” ).
The United States Sentencing Guidelines greatly influence the sentences for federal crimes. Federal courts are bound to impose a sentence within the statutory maximums and minimums. Their decision of what sentence to impose within those boundaries, however, must begin with a determination of the sentencing recommendation under the guidelines. Reasonableness standards govern review of their sentencing decisions,and a sentence within the Sentencing Guideline range is presumed reasonable.
The Sentencing Guidelines system is essentially a scoring system. Federal crimes are each assigned a numerical base offense level and levels are added and subtracted to account for the various aggravating and mitigating factors in a particular case. Thus, for example, providing material support to a terrorist organization, 18 U. S. C. 2339B, has a base offense level of 26, which may be increased by 2 levels if the support comes in the form of explosives, U. S. S. G. §2M5. 3(a), (b) and may be increased or decreased still further for other factors. The guidelines designate six sentencing ranges of each total offense level; the appropriate range within the six is determined by extent of the offender’s criminal record. For instance, the sentencing range for a first-time offender with a total offense level of 28 would be imprisonment for between 78 and 97 months (Category I); while the range for an offender in the highest criminal history category (Category VI) would be imprisonment for between 140 and 175 months.
The base offense level for conspiracy is generally the same as that for the underlying offense, either by operation of an individual guideline, for example, U. S. C. §2D1. 1 (drug trafficking), or by operation of the general conspiracy guideline, U. S. S. C. §2X1. 1. In any event, conspirators who play a leadership role in an enterprise are subject to an increase of from 2 to 4 levels,
U. S. S. G. §3B1. 1, and those who play a more subservient role may be entitled to reduction of from 2 to 4 levels, U. S. S. G. §3B1. 2. In the case of terrorism offenses, conspirators may also be subject to a special enhancement which sets the minimum total offense level at 32 and the criminal history category at VI (regardless of the extent of the offender’s criminal record), U. S. S. G. §3A1. 4.
The Sentencing Guidelines also address the imposition of fines below the statutory maximum. The total offense level dictates the recommended fine range for individual and organizational defendants. For instance, the fine range for an individual with a total offense level of 28 is $12,500 to $125,000, U. S. C. §5E1. 2. The recommended fine range for an organization with a total offense level of 28 is $6,300,000 (assuming the loss or gain associated with the organization offense exceeds the usual $500,000 ceiling), U. S. S. G. §8C2. 4.
A conspirator’s liability for restitution is a matter of circumstance. Most conspiracy statutes do not expressly provide for restitution, but in most instances restitution may be required or permitted under any number of grounds. As a general rule, federal law requires restitution for certain offenses and permits it for others. A sentencing court is generally required to order a defendant to make restitution following conviction for a crime of violence or for a crime against property (including fraud), 18 U. S. C. 366A(a), (c). Those entitled to restitution under Section 3663A include those ” directly and proximately harmed ” by the crime of conviction and “in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy or pattern,” 18 U. S. C. 3663A(b).
Otherwise, a court is permitted to order restitution (a) following conviction for an offense prescribed under title 18 of the United States Code or for drug trafficking, 18 U. S. C. 3663; (b) as a condition of probation or supervised release, 18 U. S. C. 3563(b)(2), 3583(d); or (c) pursuant to a plea agreement, 18 U. S. C. 3663(a)(3), 3663A(c)(2).
The treatment of forfeiture in conspiracy cases is perhaps even more individualistic than restitution in conspiracy cases. The general criminal forfeiture statute, 18 U. S. C. 982, authorizes confiscation for several classes of property as a consequence of a particular conspiracy conviction, for example, 18 U. S. C. 982(a)(2)(calling for the confiscation of proceeds realized from “a violation of, or a conspiracy to – (A) section . . . 1341, 1343, 1344 of this title relating to mail, wire and bank fraud, affecting a financial institution” ); 18 U. S. C. 982(a)(8)(calling for the confiscation of proceeds from, and property used to facilitate or promote, “an offense under section . . . 1341, or 1343, or of a conspiracy to commit such an offense, if the offense involves telemarketing” ).
In the case of drug trafficking, forfeiture turns on the fact that it is authorized for any Controlled Substance Act violation, 21 U. S. C. 853, of which conspiracy is one, 21 U. S. C. 846. The same can be said of racketeering conspiracy provisions of 18 U. S. C. 1962(d).
Relation of Conspiracy to Other Crimes
Conspiracy is a completed crime upon agreement, or upon agreement and the commission of an overt act under statutes with an overt act requirement. Conviction does not require commission of the crime that is the object of the conspiracy. On the other hand, conspirators may be prosecuted for conspiracy, for any completed offense which is the object of the conspiracy, as well as for any foreseeable offense committed in furtherance of the conspiracy.
Aid and Abet
Anyone who “aids, abets, counsels, commands, induces, or procures” the commission of a federal crime by another is punishable as a principal, that is, as though he had committed the offense himself, 18 U. S. C. 2. If the other agrees and an overt act is committed, they are conspirators, each liable for conspiracy and any criminal act committed to accomplish it. If the other commits the offense, they are equally punishable for the basic offense. “Typically, the same evidence will support both a conspiracy and an aiding and abetting conviction.” The two are clearly distinct, however, as the Ninth Circuit has noted:
The difference between the classic common law elements of aiding and abetting and a criminal conspiracy underscores this material distinction, although at first blush the two appear similar. Aiding and abetting the commission of a specific crime, we have held, includes four elements: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent to commit the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that the principal committed the underlying offense. As Lopez emphasized, the accused generally must associate himself with the venture . . . participate in it as something he wishes to bring about, and sought by his action to make it succeed.
By contrast, a classic criminal conspiracy as charged in 18 U. S. C. § 371 is broader. The government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. Indeed, a drug conspiracy does not even require commission of an overt act in furtherance of the conspiracy.
Two distinctions become readily apparent after a more careful comparison. First, the substantive offense which may be the object in a § 371 conspiracy need not be completed. Second, the emphasis in a § 371 conspiracy is on whether one or more overt acts was undertaken. This language necessarily is couched in passive voice for it matters only that a co-conspirator commit the overt act, not necessarily that the accused herself does so. In an aiding and abetting case, not only must the underlying substantive offense actually be completed by someone, but the accused must take some action, a substantial step, toward associating herself with the criminal venture. United States v. Hernandez-Orellana, 539 F. 3d 994, 1006-1007 (9th Cir. 2008).
Conspiracy and attempt are both inchoate offenses, unfinished crimes in a sense. They are forms of introductory misconduct that the law condemns lest they result in some completed form of misconduct. Federal law has no general attempt statute. Congress, however, has outlawed attempt to commit a number of specific federal offenses. Like conspiracy, a conviction for attempt does not require the commission of the underlying offense. Both require an intent to commit the contemplated substantive offense. Like conspiracy, the fact that it may be impossible to commit the target offense is no defense to a charge of attempt to commit it. Unlike conspiracy, attempt can be committed by a single individual. Attempt only becomes a crime when it closely approaches a substantive offense. Conspiracy becomes a crime far sooner. Mere acts of preparation will satisfy the most demanding conspiracy statute, not so with attempt. Conspiracy requires no more than an overt act in furtherance; attempt, a substantial step to completion. Moreover, unlike a conspirator, an accused may not be convicted of both attempt and the underlying substantive offense.
An individual may be guilty of both conspiring with others to commit an offense and of attempting to commit the same offense, either himself or through his confederates. In some circumstances, he may be guilty of attempted conspiracy. Congress has outlawed at least one example of an attempt to conspire in the statute which prohibits certain invitations to conspire, that is, solicitation to commit a federal crime of violence, 18 U. S. C. 373.
Section 373 prohibits efforts to induce another to commit a crime of violence “under circumstances strongly corroborative” of intent to see the crime committed, 18 U. S. C. 373(a). Section 373’s crimes of violence are federal “felonies that have as an element the use, attempted use, or threatened use of physical force against property or against the person of another,” id. Examples of “strongly corroborative” circumstances include “the defendant offering or promising payment or another benefit in exchange for committing the offense; threatening harm or other detriment for refusing to commit the offense; repeatedly soliciting or discussing at length in soliciting the commission of the offense, or making explicit that the solicitation is serious; believing or knowing that the persons solicited had previously committed similar offenses; and acquiring weapons, tools, or information or use in committing the offense, or making other apparent preparations for its commission.” As is the case of attempt, “an individual cannot be guilty of both the solicitation of a crime and the substantive crime.” Although the crime of solicitation is complete upon communication with the requisite intent, renunciation prior to commission of the substantive offense is a defense. The offender’s legal incapacity to commit the solicited offense himself, however, is not a defense.
Statute of Limitations
The statute of limitations for most federal crimes is five years, 18 U. S. C. 3282. The five-year limitation applies to the general conspiracy statute, 18 U. S. C. 371, and to the false claims conspiracy statute, 18 U. S. C. 286. Section 371 requires proof of an overt act; section 286 does not. For conspiracy offenses with an overt act requirement like those under Section 371, the statute of limitations begins with completion of the last overt act in furtherance of the conspiracy. For conspiracy offenses with no such requirement like those under section 286, the statute of limitations begins with the abandonment of the conspiracy or the accomplishment of its objectives.
The presence or absence of an overt act requirement makes a difference for statute of limitations purposes. For venue purposes, it apparently does not. The Supreme Court has observed in passing that “this Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense.” The lower federal appellate courts are seemingly of the same view, for they have found venue proper for a conspiracy prosecution wherever an overt act occurs — under overt act statutes and non-overt act statutes alike.
Joinder and Severance (One Conspiracy, One Trial)
Three rules of the Federal Rules of Criminal Procedure govern joinder and severance for federal criminal trials. Rule 8 permits the joinder of common criminal charges and defendants. Rule 12 insists that a motion for severance be filed prior to trial. Rule 14 authorizes the court to grant severance for separate trials as a remedy for prejudicial joinder.
The Supreme Court has pointed out that “there is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system. They promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” In conspiracy cases, a ” conspiracy charge combined with substantive counts arising out of that conspiracy is a proper basis for joinder under Rule 8(b).” Moreover, “the preference in a conspiracy trial is that persons charged together should be tried together.” In fact, “it will be the rare case, if ever, where a district court should sever the trial of alleged co-conspirators.” The Supreme Court has reminded the lower courts that “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” The Court noted that the risk may be more substantial in complex cases with multiple defendants, but that “less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.” Subsequently lower federal appellate court opinions have emphasized the curative effect of appropriate jury instructions.
Double Jeopardy and Ex Post Facto
Because conspiracy is a continuing offense, it stands as an exception to the usual ex post facto principles. Because it is a separate crime, it also stands as an exception to the usual double jeopardy principles.
The ex post facto clauses of the Constitution forbid the application of criminal laws which punish conduct that was innocent when it was committed or punishes more severely criminal conduct than when it was committed. Increasing the penalty for an ongoing conspiracy, however, does not offend ex post facto constraints as long as the conspiracy straddles the date of the legislative penalty enhancement.
The double jeopardy clause of the Fifth Amendment declares that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This prohibition condemns successive prosecutions, successive punishments, and successive use of charges rejected in acquittal.
For successive prosecution or punishment, the critical factor is the presence or absence of the same offense. Offenses may overlap, but they are not the same crime as long as each requires proof of an element that the other does not. 130 Since conspiracy and its attendant substantive offense are ordinarily separate crimes — one alone requiring agreement and the other alone requiring completion of the substantive offense — the double jeopardy clause poses no impediment to successive prosecution or to successive punishment of the two.
Double jeopardy issues arise most often in a conspiracy context when a case presents the question of whether the activities of the accused conspirators constitute a single conspiracy or several overlapping conspiracies. Multiple conspiracies may be prosecuted sequentially and punished with multiple sanctions; single conspiracies must be tried and punished once. Asked to determine whether they are faced with one or more than one conspiracy, the courts have said they inquire whether:
- the locus criminis place of the two alleged conspiracies is the same;
- there is a significant degree of temporal overlap between the two conspiracies charged;
- there is an overlap of personnel between the two conspiracies (including unindicted as well as indicted co-conspirators);
- the over acts charged are related;
- the role played by the defendant relates to both;
- there was a common goal among the conspirators;
- whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators; and
- the extent to which the participants overlapped in their various dealings.
At trial, the law favors the testimony of live witnesses — under oath, subject to cross examination, and in the presence of the accused and the jury — over the presentation of their evidence in writing or through the mouths of others. The hearsay rule is a product of this preference. Exceptions and definitions narrow the rule’s reach. For example, hearsay is usually defined to include only those out-of-court statements which are offered in evidence “to prove the truth of the matter asserted.”
Although often referred to as the exception for co-conspirator declarations, the Federal Rules of Evidence treats the matter within its definition of hearsay. Thus, Rule 801(d)(2)(E) of the Federal Rules provides that an out-of-court “statement is not hearsay if . . . (2) The statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”
To admit a co-conspirator declaration into evidence under the Rule, a “court must find: (1) the conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the co-conspirator made the proffered statements in furtherance of the conspiracy.” The court, however, may receive the statement preliminarily subject to the prosecution’s subsequent demonstration of its admissibility by a preponderance of the evidence. As to the first two elements, a coconspirator’s statement without more is insufficient; there must be ” some extrinsic evidence sufficient to delineate the conspiracy and corroborate the declarant’s and the defendant’s roles in it.” As to the third element, “a statement is in furtherance of a conspiracy if it is intended to promote the objectives of the conspiracy.” A statement is in furtherance, for instance, if it describes for the benefit of a co-conspirator the status of the scheme, its participants, or its methods. Bragging, or “mere idle chatter or casual conversation about past events, “however, are not considered statements in furtherance of a conspiracy.
Under some circumstances, evidence admissible under the hearsay rule may nevertheless be inadmissible because of Sixth Amendment restrictions. The Sixth Amendment provides, among other things, that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The provision was inspired in part by reactions to the trial of Sir Walter Raleigh, who argued in vain that he should be allowed to confront the alleged co-conspirator who had accused him of treason. Given its broadest possible construction, the confrontation clause would eliminate any hearsay exceptions or limitations. The Supreme Court in Crawford v. Washington explained, however, that the clause has a more precise reach. The clause uses the word “witnesses” to bring within its scope only those who testify or whose accusations are made in a testimonial context. In a testimonial context, the confrontation clause permits use at trial of prior testimonial accusations only if the witness is unavailable and only if the accused had the opportunity to cross examine him when the testimony was taken. The Court elected to “leave for another day any effort to spell out a comprehensive definition of ‘testimonial,'” but has suggested that the term includes “affidavits, depositions, prior testimony, or confessions ,and other statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Since Crawford, the lower federal courts have generally held that the confrontation clause poses no obstacle to the admissibility of the co-conspirator statements at issue in the cases before them, either because the statements were not testimonial; were not offered to establish the truth of the asserted statement; or because the clause does not bar co-conspirator declarations generally.
Obtain the Best Defense Against Federal Conspiracy Charges
Many people charged with federal drug conspiracies are concerned with predicting the outcome of their cases. They often wonder about the likelihood of a conviction and the length of a potential sentence. The truth is that, if you are charged with a drug conspiracy, your case can be very serious and complicated. A lot may depend on the drug quantity, the testimony of witnesses and on cooperation with the prosecution. Federal Criminal Lawyer Charles Johnson can help you navigate the legal system so that you can make decisions based on in-depth understanding of the consequences you may face.
In federal drug conspiracy cases, a lot has to do with the strength of the evidence. Experienced Attorney Charles Johnson skilled at helping clients evaluate whether to take a case to trial or whether to find other ways to resolve the issue more favorably. At the Charles Johnson Law Firm, we place a large emphasis on honesty with our clients. Although it is often more difficult to be realistic with clients than to promise miracles, we know that our clients and their families deserve the truth about the seriousness of federal drug conspiracy charges.
They also deserve the skilled legal representation we provide. Whether you are charged with criminal conspiracy, a continuing criminal enterprise or with a violation the Racketeer Influenced and Corrupt Organizations Act (commonly called RICO), we will use our knowledge and experience to strive for the best results possible.
Contact Houston Lawyer Charles Johnson anytime night or day at (713) 222-7577 to speak with him directly. Our law firm is dedicated to helping clients face drug conspiracy charges with confidence and dignity.
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A probation or parole revocation can severely impact your life and send you to jail or prison. If you face revocation, Houston Criminal Lawyer Charles Johnson can fight the allegations and/or assist you in getting an alternative to revocation. Attorney Charles Johnson is experienced with revocation proceedings. He will provide you with the information and legal representation you need to fight the revocation, get an Alternative to Revocation (ATR), or limit the jail or prison time.
The Charles Johnson Law Firm can expertly assist you with any of the following:
- Probation or Parole violations
- Extended supervision violations
- Probation or Parole revocation hearings
- Reconfinement hearings
- Negotiating with probation/extended supervision agent
Revocations are often based on new charges but sometimes just on mere allegations. It is important to contact the experienced Houston Probation Attorney at the Charles Johnson Law Firm early on in your case so we can work to negotiate an alternative to revocation or seek lower re-confinement recommendations.
The use of probation and parole is governed in part by competing philosophies, classicalism and positivism. In short, classicalists believe that offenders choose their actions and, therefore, in order to prevent (or deter) future criminal acts, such individuals should be punished. Conversely, positivists believe that individuals are forced into the choice of committing crime through no fault of their own and, therefore, the conditions and/or behaviors that caused the action should be remedied, ultimately resulting in rehabilitation of the offender.
Legislative acts and public sentiment further dictate the application of probation and parole. Therefore, universal and consistent definitions and applications of probation and parole are not available as the methods of punishment and governing philosophies have evolved and moved toward the twenty-first century.
While these factors contribute to a lack of consistency when dealing with probation and parole, the primary obstacle to detailing specific state protocols is that the practice of granting probation and/or parole at the state level is dependent on the discretionary powers of select individuals, such as the prosecutor, the judicial authority, and the parole board, to name just a few.
Probation is a court-imposed sanction that “releases a convicted offender into the community under a conditional suspended sentence.” This practice assumes that most offenders are not dangerous and will respond well to treatment. In fact, the average probationer is a first time and/or non-violent offender who, it is believed, will be best served by remaining in the community while serving out the sentence. Probation is a form of punishment issued by a criminal court in place of incarceration. The probationer is generally considered to be a non-violent offender who has been convicted of a crime but is not considered a danger and is believed to be better served by being placed on probation instead of in a jail cell. Probationers are typically convicted of misdemeanor offenses, have already served partial jail time for the offenses or are first time offenders or minors. Probationers are often forced to modify their lifestyle by reporting to a probation officer, living in certain locations, abiding by a set curfew and avoiding association with known criminal offenders.
Historically, probation does not involve incarceration, making it a front-end solution to address the overcrowding problem in U. S. prisons and jails. While the immediate goal of any probation program is rehabilitation, in reality it is more a necessity than an instrument. As a result, other programs have been developed under the umbrella of community corrections that utilize elements of conditional release resulting in the expansion of probation-type programs.
Probation developed as a result of the efforts of philanthropist, John Augustus, to rehabilitate convicted offenders, although references to similar practices exist as early as 437-422 BC. It was favored because it allowed judicial authorities a great deal of discretion when imposing sentences, thereby providing the opportunity to tailor sentences to a particular offender, in theory allowing for the greatest possibility of rehabilitation. While sentences of probation vary widely across and within jurisdictions, the maximum length of time that one can be under supervision is 5 years (60 months).
The functions of probation are difficult to state definitively. It is known that at its inception, John Augustus’ goal was behavioral reform. This reflects the sentencing goal of rehabilitation. Fundamentally, it is believed that by allowing the offender to remain in the community, the system is providing a second chance. Further, support and guidance from probation officers may achieve the aim of guiding the offender towards a law-abiding existence.
Given that probation is no longer limited to first-time, non-violent offenders who pose minimal risk to the community, the reality is significantly different. Coupled with low confidence in the effectiveness of rehabilitative success and a burgeoning offender population, actual practices tend to be dictated by conflicting goals on both an individual and administrative level. In an aggressive bid to prevent jail or prison overcrowding, several alternatives to incarceration have developed. Some such programs enable offenders traditionally incarcerated to be released into the community, thereby forcing a shift in focus from rehabilitation to control and supervision.
Intensive Supervised Probation (ISP)
ISP is a form of release into the community that emphasizes close monitoring of convicted offenders and imposes rigorous conditions on that release, such as the following:
- Multiple weekly contacts w/officer
- Random and unannounced drug testing
- Stringent enforcement of conditions, i.e.,: maintaining employment
- Required participation in treatment, education programs, etc.
Individuals on ISP are those who most likely should not be in the community. The restrictions placed on them are often excessive and the level of direct, face-to-face contact required is believed to significantly deter, or at least interfere, with any ongoing criminal activity.
Shock Probation and Split Sentencing
Shock probation/split sentencing is a sentence for a term of years, but after 30, 60, or 90 days, the offender is removed from jail or prison.
While these terms are used interchangeably, they are actually two different activities. In shock probation, the offender is originally sentenced to jail, then brought before the judge after 30, 60, or 90 days and re-sentenced to probation. In split sentencing, probation is part of the original sentence requiring no additional appearance before the judge.
Probation revocation occurs when an offender who has been sentenced to serve his punishment in the form of probation rather than incarceration violates the terms of his probation and is imprisoned. Probation can be revoked for a variety of reasons and may have varying consequences for the individual who has had his probation revoked, depending location and the regulations of the law enforcement agency involved.
Probation revocation means that the offenders probation officer has decided that the offender is not complying with the terms that were set for his probation and should be imprisoned for the remaining length of his sentence. Probation officers have to meet with a judge during a hearing and present evidence that the probationer is not fulfilling the terms of the probation before the probation will be revoked. Individuals are notified when their probation is revoked. If they do not turn themselves in to the court or police, a warrant will be issued for their arrest.
Reasons for Probation Revocation
Probation revocation occurs when an probationer violates the terms of her unique probation sentence. This could mean going outside a specified area such as a state or county, not being home prior to a specified time, failing to pay fines, check in with a probation officer or complete community service. Probation may also be revoked if the probationer commits or is accused of committing another crime during the time of their probation.
Consequences of Probation Revocation
When probation is revoked, the offender is sent to jail to serve out the remainder of his sentence. This means that the offender is completely incarcerated for an amount of time that will be decided by the judge during a probation revocation hearing where the probation officer reports why he believes the offender’s probation should be revoked. In some instances, depending on the crime and the severity of the issue that caused probation to be revoked, an offender’s time on probation will be taken into consideration. She may receive a jail sentence that is shorter than her original sentence, since the time spent on probation can be considered to have been part of the time served for the crime.
Since probation is a conditional release, it can be revoked, or taken away, if the conditions governing release are not met (technical violation) or if a new crime is committed during the probationary period (new offense).
Probation revocation is initiated by the probation officer’s belief that a violation warranting revocation has occurred. As a result of the 1973 case Gagnon v. Scarpelli (411 U.S. 778), the Supreme Court decided that where “liberty interests” are involved, probationers are entitled to retain certain due process rights. Such rights include: (1) written notification of the alleged violations; (2) preliminary (or probable cause) hearing at which a judicial authority will determine whether sufficient probable cause exists to pursue the case; and (3) if warranted, a revocation hearing.
If a revocation hearing is scheduled, probationers have the right to testify in their own behalf, may present witnesses, and may have an attorney present. While the Gagnon court was vague regarding the right to court appointed counsel at a revocation hearing, most jurisdictions do provide the right to appointed counsel.
The standard of proof required at a revocation hearing is a “preponderance of the evidence”, lower than that required at a criminal trial. Possible outcomes include return to supervision, reprimand with restoration to supervision, or revocation with imprisonment.
If you were placed on deferred adjudication probation, a probation revocation could result in a conviction on your criminal record or possibly a jail or prison sentence. Houston Criminal Lawyer Charles Johnson provides aggressive and thorough representation for clients facing a revocation of probation. His primary goal when representing a client in a probation revocation proceeding is to explore all defenses and possible alternatives that could avoid revocation of your probation.
Early Intervention in Houston Probation Violations
If a motion to revoke probation has been filed against you or if you are potentially facing the possibility of probation revocation, the time to act is now! Early intervention in a probation violation matter can often make the difference between facing a probation revocation hearing, or indeed whether or not a motion to revoke probation is filed at all. Houston Criminal Lawyer Charles Johnson has the experience necessary to make the court, probation officer, and the District Attorney’s Office aware of all circumstances regarding your case and to explore all defenses and possible alternatives to avoid revocation of your probation.
Parole is the “conditional early release from prison or jail, under supervision, after a portion of the sentence has been served.” This practice assumes that the offender successfully demonstrated conformity to the rules and regulations of the prison environment and shows an ability to conform to society’s norms and laws.
The word, parole, derives from the French “parol” meaning “word of honor” and references prisoners of war promising not to take up arms in current conflict if released. How that concept came to apply to the early release of convicted, often violent, offenders is less clear. The first documented official use of early release from prison in the United States is credited to Samuel G. Howe in Boston (1847), but prior to that, other programs using pardons achieved basically the same outcome. In fact, as late as 1938, parole was simply a conditional pardon in many states.
Alexander Maconochie (England) ran the Norfolk Island prison. During his tenure, he instituted a system whereby inmates would be punished for the past and trained for the future. He believed that inmates could be rehabilitated so he implemented an open-ended sentencing structure where inmates had to “earn” their release by passing through three stages, each stage increased their liberty and responsibilities. Inmates had an open time frame in which to earn the next level. Compliance advanced them; infractions resulted in a return to the previous stage, thereby lengthening the sentence. The open-ended sentences (today known as indeterminate sentencing) allowed the administration to ensure that when finally released, an offender’s behavior had been successfully reformed. Eventually, Maconochie was removed from his position under criticism that his program “coddled” criminals.
At about the same time, Sir Walter Crofton was developing a similar program in Ireland using “tickets of leave”. The “Irish System” as it came to be known, employed a similar practice of allowing inmates to earn credits towards early release. However, once the “ticket of leave” was achieved, release from custody was conditional. The releasees were supervised in the community by either law enforcement or civilian personnel who were required to secure employment and to conduct home visits. These “supervisors” represented the forerunner to today’s parole officer.
In the United States, Zebulon Brockaway (Superintendent) employed elements from both the Irish and Great Britain models in managing the Elmira Reformatory during the 1870s. Brockaway is credited with the passage of the first indeterminate sentencing law in the United States as well as introducing the first good time system to reduce inmates’ sentences. However, releasing the offenders was only part of the problem and initially, the greatest challenge was providing adequate supervision once release had been granted.
By 1913, it was clear some independent body was required to supervise inmates in the community and by 1930, Congress formally established a United States Board of Parole. It appeared, at least for awhile, that initiatives and programs were developing that could make parole a viable and useful tool of the criminal justice system. But unfortunate timing contributed ultimately to its downfall.
In 1929, the Great Depression hit the United States. An immediate result was a sharp increase in prison populations. However, the high cost of maintaining prisons as well as a lack of available personnel to staff them made new construction prohibitive and contributed to the popularity of parole. While alleviation of the overcrowding problem is often cited as a secondary (or latent) goal, the reality is that as a back-end solution, parole is vital to the maintenance of the correctional system.
With the onset of the twentieth century, philosophers began to examine the social and psychological aspects of criminal behavior. This heralded a shift from classicalist thinking towards positivism. Under positivism, actions are believed to be caused by forces beyond one’s control (such forces could be psychological, biological, or sociological in origin). Therefore, parolees were now viewed as “sick” and the parole department was charged with the responsibility of “fixing” them.
Positivism is consistent with a less punitive approach to sentencing and generally involves an indeterminate sentencing structure allowing for the possibility of early release if the offender demonstrates that they have been successfully rehabilitated. As such, it fit well with the Elmira system and the timing afforded officials the opportunity to use parole as a means to relieve the overcrowded conditions that had developed during the depression.
The fact that parole involves some incarceration suggests that the average parolee has committed a more serious crime than the average probationer and, hence, poses a greater risk to the community. Therefore, primary goals of parole must include crime deterrence and offender control. And given that most offenders will eventually return to the community, a rival goal is reintegration, or the facilitation of an offender’s transition from incarceration to freedom.
Unfortunately, it appeared during the 1980s that parole was failing. Street crime rates during this period skyrocketed and in many cases, the crimes were perpetrated by individuals who were released into the community prior to the official expiration of their sentence. This reality led to the development of penal philosophies espousing “tough on crime” approaches and demanding “truth in sentencing”. Such philosophies warned criminals, “do the crime, do the time” and resulted in radical changes to sentencing practices across the country that indicated a return to a more punitive sentencing structure.
Since parole is a conditional release, it can be revoked or taken away, if the conditions governing release are not met (technical violation) or if a new crime is committed during the probationary period (new offense). In this manner, it is similar to probation; however, it differs in that probation is governed by judicial decisions whereas parole is governed by administrative procedures. As a result of the administrative nature of parole, the revocation process is so varied among the jurisdictions.
In large part, however, most minor infractions are dealt with by the parole officer and may not necessitate involvement of the parole board. Some jurisdictions empower the parole officer to immediately take a parolee into custody for 24 (New York) to 48 hours (Pennsylvania) for purposes of obtaining an arrest warrant. This practice is typically employed when the offender represents an immediate threat to public safety.
With respect to the legal protections afforded to parolees, the first case to explore this issue was Morrissey v. Brewer (1972). The Morrissey case explored the extension of due process rights of (1) written notice to parolee prior to general revocation proceeding; (2) identification of the violations being presented and any evidence being used to prove that the violation took place; (3) the right of the parolee to confront and cross-examine accusers (subject to exceptions) and (4) a written explanation for the decisions regarding the revocation of the parole and what evidence was employed in making that decision. Perhaps the greatest contribution of the Morrissey case was the creation of a two-stage process wherein first, probable cause that violations had occurred had to exist in order to go to the second stage, which was the actual revocation hearing.
Interestingly, the Supreme Court did not choose to create a bright line rule for the right to court-appointed counsel at a revocation hearing. For the most part, however, most jurisdictions have followed the decision in Mempa v. Rhay (1967). While this case specifically dealt with the rights of probationers, it has been applied recently to parolees as well. Basically, the Supreme Court wrote that “any indigent is entitled at every stage of a criminal proceeding to be represented by court-appointed counsel, where substantial rights of a criminal accused may be affected.” In sum, the Supreme Court considered the liberty interests of the probationers and decided that a probation revocation hearing constituted a “critical stage” which dictated adherence to due process protections. This rationale has consistently been extended to include parole revocation hearings as well.
As of 2001, 15 states (Arizona, California, Delaware, Illinois, Indiana, Kansas, Maine, Minnesota, Mississippi, Ohio, Oregon, New Mexico, North Carolina, Virginia and Washington) and the Federal government have eliminated parole programs in lieu of a determinate model of sentencing reflective of a more retributive approach to punishment. (New York Gov. George Pataki proposed making New York the sixteenth state)
Such an action may seem warranted given the apparent inability of the system to guarantee the protection of the citizens and the end result is predictable. Overcrowding still represents the greatest challenge to the correctional industry. In fact, three states (Connecticut, Colorado, and Florida) reinstituted the parole boards after eliminating them due to the unforeseen overcrowding problems. The reality is that removal of parole ultimately leads simply to a shift in power from parole boards to prosecutors, in that the option most often exercised in states without parole, is probation.
Contact Houston Probation Lawyer Charles Johnson if You are Not Ready to Give Up – Jail is not the Only Option
Once we have dissected your probation revocation complaint, we will mount an aggressive defense, knocking out many of the counts against you. In the end, if you do have some counts that are proven to the court, we can often have probation reinstated, provided you accomplish some heroic steps at our direction prior to the revocation hearing. We will consult with you and our team of treatment experts to build a track record of success prior to your probation revocation hearing. These efforts will show the District Attorney and the judge that you are worthy of another chance at probation, and that you are not a danger to the community. With a well thought out and implemented plan, you have more options than jail or prison if the judge revokes your probation.
If you are accused of violating the terms of your parole or probation or have questions regarding a potential probation offense, please call at anytime for a free initial consultation.
Houston Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
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Consult the Finest Houston Lawyer at the Charles Johnson Law Firm as soon as possible if you or a loved one has been arrested or charged with a criminal offense. Getting legal guidance is essential to make certain that a defendant’s legal rights are safeguarded.
Certain constitutional protections apply to an individual arrested for a criminal offense. Additionally, there are certain procedures that are generally identical from jurisdiction to jurisdiction. Here is a concise explanation of what occurs when an individual has been arrested for a criminal offense.
A person could very well be charged with a criminal offense before they are arrested. If this transpires, a judge is going to issue a warrant for the individual’s arrest. A law enforcement officer will try to find the individual who is the subject of the warrant. If the individual is found by the authorities and arrested, police officers must give the individual a copy of the warrant that declares the charge for which they are being arrested. The authorities do not necessarily have to have a copy of the warrant with them at the time of the arrest, however they must provide a copy to the arrested individual within a reasonable amount of time afterward.
After an individual is arrested, they will be “booked” at the police department. This involves taking fingerprints and completing other procedural requirements. The individual will then be held in police custody pending a court hearing. This hearing will generally take place within 48 hours.
When an individual is taken into police custody, they have the right to contact a lawyer. The individual will likely be permitted to get in touch with a criminal defense attorney. The individual should have at least a brief opportunity to meet with their criminal defense lawyer prior to their preliminary court hearing.
At the court hearing, the judge will read the criminal charges against the individual, who is designated the defendant. If the individual was arrested without an arrest warrant, this will likely be the first time they are told the criminal charges against them. The judge will attempt to ensure that the defendant comprehends the criminal charges. The judge will then ask the defendant to enter a plea. A defendant can enter a plea of “not guilty”, of “no contest”, or of “guilty”.
Even if the defendant is guilty, they are able to enter a plea of not guilty, should they think there is not enough evidence to establish their guilt. In any case, a plea of not guilty may result in a trial where the federal government will be required to establish, beyond a reasonable doubt, that the defendant is guilty of the criminal offense for which they are being charged.
A jury will need to decide, dependent on the evidence introduced by both sides, whether or not the defendant is to be found guilty or not guilty. In many cases, a defendant may possibly waive their priviledge to a jury trial, and the judge will determine if they are guilty or not guilty primarily based on the evidence which is offered. The defendant should speak with their criminal defense lawyer about whether or not they should waive their priviledge to a jury trial.
If the result of the trial is that the defendant is found not guilty of the violations charged, they can be released from police custody. If the result of the trial is that the defendant is found guilty or if there isn’t a trial due to the fact that the defendant entered a plea of no contest or of guilty, then there will be a sentencing hearing.
There will be evaluations of the defendant that are performed prior to the sentencing hearing. By way of example, if the criminal offense is DWI, the defendant may be evaluated to determine if they have a substance abuse issue. The court will also prepare a pre-sentencing report, which is basically an investigation into the previous criminal history of the defendant. This knowledge helps the judge determine an appropriate sentence.
At the sentencing hearing, there will be an opportunity for individuals to speak with the court about what factors they feel the court should take into account in determining a sentence. These individuals can include the victim of the criminal offense, the victim’s family, the defendant, the defendant’s family, and any other interested party.
The judge will take into consideration all of the evidence shown and any sentencing requirements. The judge will then enter a sentence for the defendant. If the criminal offense was fairly minor, and the defendant has been in custody throughout the entire court process, some may have already served the jail time that has been imposed by the judge. If the criminal offense is more severe, the defendant could possibly face substantially more prison time. Furthermore, a criminal sentence may involve more than serving time in jail. The defendant may be ordered to pay fines, to provide restitution to the victim, to undergo treatment for substance abuse or mental problems, to perform community service, or many other things.
Any person who is arrested for a criminal offense should hire an experienced Houston Lawyer with practical experience in criminal defense to represent them. This is the most effective way to make certain that their legal rights are defended, and that they obtain the finest possible outcome.
If you or someone you love has been arrested, you probably aren’t sure where to turn or what to do next. A positive first step is to contact the Charles Johnson Law Firm as soon as possible, 24 hours/day. Houston Lawyer Charles Johnson will guide you through the complicated maze of the justice system and help you to remain calm during this stressful time.
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Drug possession is a typical criminal charge that’s faced by a number of Houstonians. Innocent bystanders are occasionally charged with this crime, folks who had been merely “in the wrong place at the wrong time” and are today in severe legal trouble. Seek the help of The Houston Lawyer Charles Johnson to learn more about what you can do to assert your rights.
Drug possession criminal charges can easily differ significantly, dependant upon the quantity of the drug you’re charged with possessing. Even a minute quantity of illegal drugs can easily come with severe consequences and the fees and penalties just get much more serious as the quantity increases. Try to remember to think long term; you would like the criminal case handled correctly right now to ensure that it will be considered a speed bump rather than a road block in your life. Houston Lawyer Charles Johnson is going to be devoted to that type of defense.
Laws regarding Drug Possession frequently prosecute drug offenders in very much the equivalent manner they prosecute various other felony offenders. Approximately 90 % of all the drug possession cases don’t make it to trial. The majority of the offenders will plead guilty to drug possession violations. A basic drug possession conviction in Texas might lead to community service, probation, drivers license sanctions, court-ordered drug rehab, county jail time and fines.
Several police forces obtain restitution for their expenses in connection with the criminal arrest and prosecution. Even though the harshness of the penalties may differ with the criminal offense, a good number of drug criminal charges in Texas have serious consequences of some sort. This is often particularly accurate when the charged offense entails weapons in “protected zones” (like educational facilities and recreational areas), adolescents, or perhaps a past drug conviction. Criminal defendants looking to steer clear of prison or jail will want to get in touch with an experienced drug defense lawyer early on in their case. The Charles Johnson Law Firm Criminal Defense philosophy involves intense preparation, investigation that is on par with, and in many cases, better than the authorities and an aggressive posture when advocating our client’s position.
Drug Possession Laws are frequently more severe for possession of drugs which have a higher propensity to trigger misuse, dependency, physical injury, and loss of life. Laws regarding Drug Possession also make it a criminal offense to possess any sort of precursors to drug production or drug distribution. Possession of paraphernalia, or drug accessories, is also unlawful according to laws regarding drug possession.
Laws regarding Drug Possession are also more severe in instances when an offender was caught with a significant amount of a given substance. Frequently Prosecutors will charge these offenders with “drug possession with intent to distribute”. In these instances, an offender might have to deal with an enhanced sentence with stricter penalties. Drug possessions laws also prosecute multiple offenders considerably tougher than those that are first time offenders.
Best Houston Drug Possession Defense: The Houston Lawyer Charles Johnson
Don’t risk a potentially life-ending conclusion to your case. Get in touch with Houston Lawyer Charles Johnson now. In drug possession defense criminal cases, Attorney Johnson will work to prevent the case from becoming charged as drug distribution, that carries a lot more severe penalties. This individual will conduct a thorough investigation into law enforcement procedures, looking for evidence of constitutional misconduct which will permit him to file motions to dismiss particular evidence. He will also present virtually all helpful background info about his client to the court, to be able to persuade the court that the client isn’t a distributor. If dismissal of the criminal charges isn’t feasible, he will argue for alternative sentencing choices, including enrollment in a drug therapy program and/or perhaps community service.
The laws regarding drug possession have received significant scrutiny for numerous years. The latest trend is to really encourage rehab choices for non-violent drug offenders. Countless numbers of drug courts have been established to offer long-term counseling, sanctions, benefits, along with other programs to participants. Completion of these programs frequently results in a lessened or even dismissed criminal sentence. These types of programs are appearing to be much more cost effective and more successful than the mandatory minimum laws regarding drug possession. For additional details on laws regarding drug possession, get in touch with Houston Lawyer Charles Johnson. He will be able to help you get your life back on track.
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Houston Lawyer Charles Johnson offers Post-Conviction Relief (he has on staff Texas’ most prolific appellate and Habeas Corpus attorney), Parole (Attorney Johnson has personally developed a unique, detailed and successful parole package program) and Probation services including Motions to Revoke/Adjudicate and Terminations for any criminal matter.
Instead of sentencing a defendant to a jail term, a judge may perhaps choose to sentence a defendant to probation. Probation releases a defendant back into the community, however the defendant does not have the same amount of freedom as a normal citizen. Probation comes with conditions that restrict a probationer’s behavior, and if the probationer violates one of those conditions, the court could possibly revoke or modify the probation.
Courts commonly grant probation for first-time or low-risk offenders. Statutes determine when probation is practical, but it is up to the sentencing judge to determine whether or not to actually allow probation.
Houston Criminal Defense: Hire the Recommended Houston Lawyer » The Charles Johnson Law Firm
Although sentencing judges have this latitude, they will have to still remain within the statutory limits when granting probation. By way of example, a judge cannot impose probation for a period longer than the maximum sentence prescribed by statute.
Probation has 3 primary objectives:
- To rehabilitate the defendant
- To safeguard society from further criminal conduct by the defendant
- To protect the legal rights of the victims
Once a judge has granted probation, the matter moves into the jurisdiction of probation officers, who monitor the probationer’s compliance with the terms of the probation.
Conditions are an inherent part of probation. Judges set conditions in order to meet the goals for probation stated above. A probationer should comply with these conditions or else the court could possibly impose a prison sentence or add more restrictive conditions to their probation.
Courts often have a good deal of discretion when setting probation conditions, nevertheless that doesn’t mean that judges may set whatever terms they desire. Probation conditions must be reasonable. This means that the conditions can’t be vindictive, vague, overbroad or arbitrary. In addition, the conditions must be related to the protection of the public. Also, any time a judge wishes to impose special conditions, those conditions must relate to the nature of the transgression that the probationer committed.
Judges set the conditions, however probation officers enforce them. If a probation officer finds probable cause to believe that the probationer has violated the terms of the probation, the judge could very well either change the terms of the probation or revoke the probation and impose a jail sentence.
Because the probationer’s freedom is at stake, however, the probationer must receive some procedural due process before a court revokes their probation. Although the decision to revoke probation, just like the judgment to grant probation, is at the court’s discretion, the court needs to go through a number of procedural requirements prior to revoking probation. The probationer fighting revocation doesn’t have as many rights during revocation proceedings as they do during the original criminal trial, however.
In order to revoke probation, a court has to provide the probationer with notice of the proposed revocation and conduct a hearing on the matter. The probationer has a right to testify at the hearing, present supporting witnesses, and confront the witnesses against them. The probationer also has a right to a neutral hearing body, and must receive a written statement containing the reasons for revoking probation.
If there is sufficient evidence, a violation of even a single condition might result in revocation of probation. The violated condition must be valid, however. If the condition is afterwards found to be unreasonable then violation of that condition will not constitute grounds for revocation.
Houston Probation Issues: Hire the Top Houston Lawyer Charles Johnson
If you are accused of violating the terms of your parole or probation or have questions regarding a potential probation criminal offense, please call Houston Criminal Defense Lawyer Charles Johnson 24/7 for a no charge preliminary consultation.
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