If you are looking for information about Mississippi criminal issues, take a look at the posts below – and the categories to the right.  You can also visit my Jackson, Mississippi Criminal and DUI Defense website for more information.

If you need a lawyer right now, send an email to clarence@guthriefirm.com, or call me at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.  If I am not in court or with another client you will talk to me personally, and we will talk through your issues.  Your initial consultation won’t cost anything.

Entrapment occurs when law enforcement induces or encourages you to commit a crime that you would not normally have been “predisposed” to commit.  In other words, they unethically “lead” you to do it.  Mississippi recognizes entrapment as a complete defense to a crime, if certain conditions are met.

 Entrapment has two elements:

1. government inducement of the crime; and
2. a lack of predisposition on the part of the defendant to engage in criminal conduct.

Entrapment is an affirmative defense, which means that even if the state proves everything about its case, the Defense still wins!  If we can make out a case that you were entrapped, first, the burden shifts to the prosecution to disprove it.  Second, you are entitled to have the jury instructed on the law on entrapment.  The jury will be given something like this to consider while they are deliberating on your case:

Not statewide as of the date of this post, but you need to keep up with it.  It has already been banned in certain Mississippi towns.

What is spice?

Last year I was involved in the court-martial of a servicemember who was charged with smoking “spice,” and I have to admit that I had to have it explained to me.  “Spice” is a mix of dried herbs that look like oregano, but the herbs are laced with chemicals that mimic the effects of marijuana.  These chemicals that make up this “synthetic marijuana” were created in a lab at Clemson University while doing research for therapeutic drugs.  Once the marijuana-like effects became known, however, capitalism took over, and it wasn’t long before it made its way to the open market.  Spice is sold over-the-counter in some quick marts, etc., and comes in flavors like strawberry and blueberry.  It is sold under the brand names “Spice,” “K2,” “Genie,” and “Zohai.”

Is it illegal in Mississippi yet?

It is only a matter of time.  This article in The Daily Mississippian (the student newspaper at Ole Miss) quotes State Senator Gray Tollison of Oxford as saying,   “We hope the governor puts in a special session about it, if not, it won’t be until January 2011.”  The article goes on to state that Southaven and Olive branch in north Mississippi and Moss Point and Gautier on the coast have banned the sale and use of spice, and these municipal bans are sure to spread.  If I were a betting man, I would wager that in less than a year or two Mississippi will follow Alabama, Arkansas, Georgia, Kansas, Kentucky, Louisiana (August 15), Missouri, and Tennessee in making spice illegal across the state.

If you try your case, and lose it, you absolutely should appeal.  If there were enough issues that forced you to try the case, then there are more than likely going to be issues to be raised on your behalf in an appeal.  You may not have the same lawyer represent you on your appeal that you had represent you during your trial, but MAKE SURE that your trial lawyer files a Notice of Appeal promptly after your trial if you get a result you are not pleased with.  I discussed the strict deadlines for filing a criminal appeal in Mississippi here.

If you plead guilty in exchange for a plea bargain, you may not have a choice to appeal.  One of the requirements of which the state usually insists in a Plea Bargain is that you waive your right to appeal.  Discuss this with your lawyer before taking a plea.  Waiving your right to appeal your case is one of the MAJOR drawbacks to taking a plea.

In practice, the fee agreements for most lawyers state that they will represent you up until your trial is over, but not including your appeal, so be prepared for that.  Appeals tend to be very labor and legal writing-intensive, and some lawyers simply do not want to do them.  There is nothing wrong with that, and so your trial lawyer may be able to recommend an appellate specialist to help you present your case at the appellate court level.

My practice is about 20% appellate work, and I wish it were more.  Trials don’t make new law, but appeals just might, and I find that work almost – but not quite – as exciting as hearing a jury announce “Not Guilty.”  If you or someone you know has recently been convicted at trial and you are searching for an appellate lawyer, I will be glad to discuss the case.  Don’t wait too long; call me as soon as the trial is over.

Any person that profanely swears or curses, uses vulgar or indecent language, or is drunk in a public place, in the presence of two or more people, shall be fined not more than $100.00, or imprisoned in the county jail for not more than 30 days, or both.  Miss. Code Ann. § 97-29-47.

This is a fairly simple and straightforward law, but here are some additional things to know about it:

• You can be arrested for being drunk in a public place if you are an occupant in a vehicle, and the the vehicle is on public property, and you are in the presence of two or more people.
• You cannot be arrested for this crime in your home.
• A licensed public club or lounge is a public place.
• Even though the statute requires your profanity or drunkenness to be in the presence of two or more people, the state only needs one witness to prove it (only one witness has to say that there were two or more people there – if that one witness is to be believed).
• The words used and things done are the gist of the offense and must be specifically proved by the state.  Keep track of what was said, because as your lawyer I may be arguing what is “profane” and what is not.

Don’t give up!  This crime is defensible.  Almost every element is subjective, that is, it is open to interpretation.  A good lawyer will gather all of the available evidence in your case, will help you understand it and explain your options, and then will help you make an informed decision as to how to approach you case.  In some cases, the lawyer will be able to negotiate a reduction in charges.  But if that is not possible you will need a lawyer used to trying cases to help you put your best foot forward.  If you are arrested for profanity or drunk in public and you want to discuss your case give me a call.  We are here to help.

Yes, absolutely.

If you are accused of a crime, the prosecutor is required by law to provide you with all “exculpatory” evidence that is known to them.  Exculpatory evidence is evidence that tends to prove that you are not guilty.  The landmark U.S. Supreme Court case that mandates this is Brady v. Maryland, and any evidence that must be turned over is known in the practice of criminal law as “Brady” evidence.  Notice I said the evidence would tend to prove your innocence.  Not evidence that proves your innocence conclusively outright – because then they would be duty bound to dismiss your case, right?   So long as the evidence might contribute to reasonable doubt, it must be turned over. 

Examples:

1. You are accused of snatching a purse from the Kroger parking lot in broad daylight.  The police put you in a lineup with five others.  Two witnesses identify you, but a third witness picks out someone else.  Even if the prosecutor believes the third witness is blind, or lying, the prosecutor must still disclose the third witness that didn’t pick you out.
2. You are on trial for carjacking.  The state’s primary witness, Setem Upjoe, claims he saw you do it while he was eating at Applebee’s and looking out the window.  After you get convicted, you learn that Upjoe is an alcoholic, and in fact drinks with the prosecutor’s brother-in-law, so the prosecutor probably knew it.  You have a strong argument on appeal that you should get a new trial based on the possibility that Upjoe’s identification of you is flawed because of his condition.

Does the prosecutor have to search for evidence that may help my case?

No.  That is you and your lawyer’s job.  Prosecutors are only required to turn over evidence that would help you that they know of.  They are not required to run down every questionable lead, or to help you with your case.  I mentioned here that my firm is partnered with a statewide investigation firm, and depending on the individual case I can keep them very busy running down leads.

It is important to know what to ask for from the DA’s office, and it is important to search through what they give you for any available clues that may lead to other helpful evidence.  A good criminal lawyer will know what to ask for, how to ask for it, and may even be able to ”read between the lines” and develop a plan to get what is really needed for a successful representation.

Money laundering is the act of hiding or disguising the source or destination of illegally-obtained funds so that they are difficult to trace.  Money is laundered so that the profits of theft, drug sales, or other illegal activity will appear to come from a legitimate source.   While money laundering is often thought of as more related to drug crimes, frequently money laudering is used in business related schemes and white collar crime.  For example, money laundering charges may be associated with illegal funds obtained through securities fraud, mortgage fraud, bribery, business fraud, and other financial crimes.

What are the elements of money laudering?

The government must prove the following elements under 18 U.S.C. § 1956 beyond a reasonable doubt in order to convict you of money laundering:

1. You conducted a financial transaction (transferring money, etc.) with proceeds from an illegal activity;
2. You knew that the proceeds were from illegal activity; and you did it to:
3. continue the illegal activity, or to:
4. hide it from the IRS, or to:
5. “conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity”; or finally,
6. to avoid a transaction reporting requirement under State or Federal law.

What are the penalties for money laudering?

Money laundering is almost always charged as a federal crime, because teh money has crossed state lines.  A conviction for money laudering under 18 U.S.C. § 1956 may result in up to 20 years imprisonment, as well as a fine of not more than $500,000, or twice the value of the property involved in the transaction, whichever is greater.  Specific penalties that may be imposed may vary depending on your particular case.

Money laundering is a very sophisticated criminal charge, and your lawyer needs to be experienced in federal criminal defense, as well as the specific substantive law of financial crime.   Simply receiving money from a bad source can expose you to serious criminal charges.  The good news, however, is there are specific defenses that can be used to defend against these charges if you are unwittingly caught up in someone else’s scheme.  This firm has a nationwide federal criminal defense practice.  Please call us at 601-991-1099 when you need our assistance.

White-collar crime is a “brand” of crime covering a variety of activities that usually involve cheating someone out of something.  I’ve covered it previously here.  The main deference between ”white-collar” crimes, like tax evasion, mortgage fraud, FEMA fraud, etc., and “blue-collar” crimes, like robbery, homicide, etc., is the means by which the offense is committed.  Blue-collar crimes typically involve physical force, whereas white collar crimes are usually technical and financial in nature, and committed in commercial situations.

White collar crimes can be charged in both state and federal court.  Federal law covers a much wider range of criminal misconduct, and the  federal criminal justice system is the forum of choice for large scale cases with an interstate, nationwide, or international scope.  But Mississippi has entire sections of its code dedicated to offenses that can be classified as “white collar,” and the Mississippi Attorney General’s Office, in cooperation with other state agencies like the Mississippi Bureau of Investigation and the State Auditor’s Office, are more than capable of investigating and prosecuting white collar crime.

Clarence Guthrie regularly represents clients in both state and federal court who are charged with white collar crime.   He also assists clients with filing and litigating appeals in state and federal appellate courts.  A white collar case is likely to start with an investigation, and you may not even be aware of it.  When you do find out, call Clarence immediately for an honest assessment of your case.

Parris Island, South Carolina.  The United States Marine Corps.  1987.  Third Battalion, India Company, Platoon 3056.

I joined the Marine Corps on a whim.  The recruiter told me he “only had one space left,” and I believed him.  When I got on the bus to Marine Corps boot camp I found out that recruiter had filled that “one space” with me and eight others.  I was 20 years old.  I had a smart mouth.  I stayed in the sand pit a lot.  I lost 45 pounds.  It was the hottest summer I can remember.  It was the best thing that could have happened to me. 

Yes, Mississippi has a “boot camp” program.  It is called the Regimented Inmate Discipline Program, and it is available as a sentencing alternative in certain criminal cases.  The “RID” program is operated by the Mississippi Department of Corrections, who describes it as ”an intensive paramilitary program designed to rehabilitate offenders in a short period of time.”  It is possible for a circuit or county court judge to sentence you straight to the RID program, or make it a condition of your nonadjudication.

MDOC operates the RID program at Walnut Grove Correctional Facility in Walnut Grove, Mississippi, the South Mississippi Correctional Institution in Leakesville, Mississippi, and the Flowood Satellite Facility, Flowood, Mississippi (for females only).  The program lasts from 120 to 150 days, and consists of lots of good exercise, “discipline therapy”(!), work detail, adult basic education, discipleship study, group counseling, alcohol and drug counseling, and pre-release classes.

The RID program is run according to MDOC regulations, and you are not eligible if you:

• Have a history of  a psychiatric disorder
• Are mentally retarded
• Are charged with sexual offenses
• Have an extensive juvenile history
• Have extensive health problems

People ask me all the time what to do with their “wayward” son who has just been arrested, and “just can’t seem keep himself out of trouble.”  This alternative always comes to mind.  A little discipline never hurt anyone, and it certainly helped yours truly.  If you are young, and healthy, and maybe a little bit ”head-strong,” this might be the ticket, especially if the court is willing to dismiss your case upon completion of the program.  Frankly, however, it is not for everyone, and there can be negative consequences as well if you don’t make it through. Please make an appointment to come see me if you or yours is in trouble and you’d like to discuss whether the RID program is right for you.

There are dozens of ways to resolve a criminal case in Mississippi, and “nonadjudication” is one of the best, short of being found “Not Guilty.”  If you meet the criteria necessary for nonadjudiction, and if you are patient and stay out of trouble, the end result will be that the conviction stays off your record.  “Nonadjudication” simply is a form of pretrial probation that is used as an alternative to jail time, and if you make it to the end of this probation, we can apply to have the whole thing expunged. 

How does nonadjudication work in Mississippi?

First you need to meet with me to evaluate the strengths and weaknesses of the state’s case against you.  Then we need to determine if you meet all of the requirements for nonadjudication (see below).  I will then negotiate with the prosecutor to determine if the state is willing to agree with the nonadjudication.  At that point we will go to court and actually plead guilty to your charge(s).  This is when the magic happens:  The judge will then “withhold acceptance” of your guilty plea – in order words, the judge won’t find you guilty yet – and instead will order you to comply with certain conditions for a certain period of time.  If you make it to the end of the certain period then YOUR CASE WILL BE DISMISSED, and we can then petition the court for your record to be expunged, i.e. YOU WILL STILL HAVE A CLEAN RECORD.  I heard a probation officer state the other day that this is the “gold standard,” and I cannot disagree with that.  If you meet the criteria – and you are prepared to accept responsiblity for doing whatever it is the state has you charged with – it is a great deal. 

What are the requirements for nonadjudication?

Certain crimes are not eligible for nonadjudication:

1. “crimes against a person” (Call me if you are not sure what a “crime against a person” is) 
2. embezzlement by a person in public office
3. selling a controlled substance (unless it is a very small amount of marijuana)
4. possession of over 1kg of marijuana
5. DUI – except for persons under the age of 21

No prior felonies on your record.  Prior misdemeanors may be OK.

No prior nonadjudications of other crimes.  Can only take advantage of this “gold standard” once.

What are some of the conditions the circuit, county, justice or municipal judge may impose?

1. Reasonable restitution to the victim of the crime.
2. Up to 960 hours of public service work approved by the court.
3. Payment of a fine not to exceed the statutory limit.
4. Successful completion of drug, alcohol, psychological or psychiatric treatment or any combination thereof.
5. Participation in the Regimented Inmate Discipline Program (the Boot Camp program).

How long can the court order me to stay in the nonadjudication program?

A circuit or county court judge can order you to stay in the program for up to five years.  A justice or municipal court judge can order you to stay in the program for up to two years.  A decent lawyer can often negotiate these periods downward, but there are no guarantees.

Nonadjudication is as good as a “win” in a criminal case – it just takes longer.  If you have been charged with a crime and would like to discuss avoiding a conviction email me at clarence@guthriefirm.com, or call me at 601-991-1099.

It has been my experience that the crime of “drug paraphernalia” catches most people off guard.  The definition of drug paraphernalia casts a very wide net, and most people possess items that could be classified as drug paraphernalia and don’t know it.  The key is what you plan to do with it.

The Drug Enforcement Administration (DEA) defines drug paraphernalia as “any legitimate equipment, product, or material that is modified for making, using, or concealing illegal drugs such as cocaine, heroin, marijuana, and methamphetamine.”  The DEA further divides paraphernalia into two categories: (1) user-specific products designed to assist in using or concealing drugs, such as pipes, smoking masks, bongs, cocaine freebase kits, marijuana grow kits, roach clips, and items such as hollowed out cosmetic cases or fake pagers andcell phones used to conceal illegal drugs, and (2) dealer-specific products (scales, baggies, etc.) designed to assist in distributing drugs.

How does Mississippi define drug paraphernalia?

Mississippi has a very, very broad definition of what constitutes drug paraphernalia.  According to Section 41-29-105 of the Mississippi Code Annotated, “paraphernalia” is:

all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the Uniform Controlled Substances Law. It includes, but is not limited to:

(ii) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;

(iii) Isomerization devices used, intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance;

(iv) Testing equipment used, intended for use, or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances;

(v) Scales and balances used, intended for use or designed for use in weighing or measuring controlled substances;

(vi) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use or designed for use in cutting controlled substances;

(vii) Separation gins and sifters used, intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana;

(viii) Blenders, bowls, containers, spoons and mixing devices used, intended for use or designed for use in compounding controlled substances;

(ix) Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances;

(x) Containers and other objects used, intended for use or designed for use in storing or concealing controlled substances;

(xi) Hypodermic syringes, needles and other objects used, intended for use or designed for use in parenterally injecting controlled substances into the human body;

(xii) Objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish or hashish oil into the human body, such as:

1. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;

2. Water pipes;

3. Carburetion tubes and devices;

4. Smoking and carburetion masks;

5. Roach clips, meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;

6. Miniature cocaine spoons and cocaine vials;

7. Chamber pipes;

8. Carburetor pipes;

9. Electric pipes;

10. Air-driven pipes;

11. Chillums;

12. Bongs; and

13. Ice pipes or chillers.

I have LOTS of that stuff in my kitchen and garage!  Am I in trouble?

Maybe.  Probably not.  The statute goes on to say that a court may use any logically relevant factor to determine if what you have is paraphernalia, including the following:

1. Statements by an owner or by anyone in control of the object concerning its use;
2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;
3. The proximity of the object, in time and space, to a direct violation of the Uniform Controlled Substances Law;
4. The proximity of the object to controlled substances;
5. The existence of any residue of controlled substances on the object;
6. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of the Uniform Controlled Substances Law; the innocence of an owner, or of anyone in control of the object, as to a direct violation of the Uniform Controlled Substances Law shall not prevent a finding that the object is intended for use, or designed for use as paraphernalia;
7. Instructions, oral or written, provided with the object concerning its use;
8. Descriptive materials accompanying the object which explain or depict its use;
9. National and local advertising concerning its use;
10. The manner in which the object is displayed for sale;
11. Whether the owner or anyone in control of the object is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
12. Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise;
13. The existence and scope of legitimate uses for the object in the community;
14. Expert testimony concerning its use.

So you see there is a big difference between having a glass vase on your coffee table with flowers in it, and having a glass vase on your coffee table with a picture of Cheech and Chong on it labled “Marijuana Bong, Use this to Ingest Illegal Drugs.”  The judge will use common sense (and most of them are steeped in common sense) to make the determination.  If there is any question at all on what you have we will file a motion to exclude it and present evidence concerning the above factors.

What are the punishments for possession of paraphernalia?

If you possess paraphernalia, or you possess it with the intent to sell it to someone, the punishment is confinement for up to six months and a fine of up to $500.00.  If you advertise paraphernalia for sale in the newspaper, etc., punishment is the same.  If you are 18 or over, and sell paraphernalia to someone who is at least three years younger than you, you can be confined up to one year, and fined up to $1000.00.