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.

“Burglary” is the breaking and entering of a dwelling house (where someone lives) with the intent to commit a crime inside.  Sounds simple, right?  It’s not.  There are enough permutations of the crime of burglary to keep you and your criminal lawyer guessing for months.  Here are some of the common issues with burglary:

• “breaking and entering” can be an outer door or an inner door of the dwelling, still burglary
• you can either break in, or break out, still burglary
• does not matter if it was day or night, still burglary
• does not matter whether you had a deadly weapon or not, still burglary
• does not matter if anyone is home or not, still burglary
• does not matter if it is the house itself, or an attached garage or shed, still burglary
• does not matter what crime the prosecution is saying you intended to commit (usually it is theft or grand larceny, but it could be arson, vandalism, or assault against another person), or if the crime is or was a felony or misdemeanor, still burglary

Burglary of a dwelling carries a punishment of imprisonment of not less than three years nor more than 25 years in the penitentiary, and the usual fines, etc., with some variations. 

While we’re on burglary, let’s go ahead and discuss some other burglary-related crimes.  Under section 97-17-33 of the Mississippi Code Annotated, it is a crime to break and enter into any shop, store, booth, tent, warehouse, other building or private room or office, water vessel, commercial or pleasure craft, ship, steamboat, flatboat, railroad car, AUTOMOBILE (very common), truck or trailer, with the intent to steal anything or commit a felony inside.  Burglarizing any of these places carries a punishment of up to seven years in the penitentiary.  If you burglarize a church or other established place of worship the punishment doubles to up to 14 years.

If you get caught with “burglar’s tools,” you can be punished by incarceration up to five years in the penitentiary, and if you try to burglarize something using some type of explosive (nitro, C-4, dynamite, gunpowder), then your possible punishment will be explosive as well: not less than five nor more than 40 years in jail.

You may have figured out by now that the crime of burglary occurs when you “enter” something.  You must also enter with the right state of mind (your “intent”).  The prosecution may be able to show that you were there, but can they show when?  And can they show why?  Burglary is not a charge you can handle by yourself, and these are things that you will need to discuss with competent legal counsel.  If you are charged with burglary in Mississippi, give me a call at 601-991-1099.  I am here to help.

Yes.  Most certainly.

I have discussed the distinction between federal and state crimes here.  As you see, the state of Mississippi is divided into two federal districts, and your lawyer must be admitted to practice before the federal court in the district where your case is pending, or at least must get permission to practice there.  More importantly, however, your lawyer must understand the significant distinctions between the federal and state systems.  It is helpful to be represented by a lawyer that is familiar with the federal rules of criminal procedure, federal rules of evidence, federal trial procedure, and the federal court system in general, all of these of which are different than Mississippi state court.  It is even better when your lawyer is familiar with the U.S. Attorney’s office that is prosecuting your case, the Clerk’s Office and Court Administrators, and the federal law enforcement agency that has handled the investigation.

Finally, perhaps the most ominous distinction between state and federal court is the application of the federal sentencing guidelines.  Although these sentencing “guidelines,” which assist judges in determining a sentence for each crime, were originally mandatory and binding on judges (they couldn’t deviate from them; you got what you got), the U.S. Supreme Court made them only “advisory,” rather than mandatory, in 2005.  A federal judge can sentence you to whatever the judge believes is appropriate, up to the statutory maximum for each offense.  But the federal sentencing guidelines are still there, albeit only advisory in nature, and a judge must consider them in determining your sentence.  The guidelines are extremely complex, and are concerned with the characteristics of the offense(s) of which you are convicted, your criminal history, if any, and a number of other factors.  The guidelines themselves come in a thick volume, with two appendices, and are revised each year.  And each day more and more federal cases are published that apply them, interpret them, or change them, and it is important that your lawyer is up-to-speed with the latest law in order to be the most effective advocate for you. 

I’ve been in federal court with criminal cases almost constantly since I left active duty five years ago.  I am confident I can help you with your case.  If you need my assistance please give me a call at 601-991-1099.  I am here to help.

The statute of limitations for most crimes in Mississippi is two years.  Miss. Code Ann. § 99-1-5.  This means that the prosecution must “commence” against you within two years after you allegedly committed the offense, or you can raise it as a defense, and the charges may be dismissed.  The prosecution is “commenced” by either the issuance of a warrant, or by binding the defendant over, or by indictment or affidavit.  An arrest also is interpreted to mean that the prosecution has commenced.

There are SO many exceptions to this law.  First, the statute of limitations for conspiracy and falsely receiving aid from the government is five years.  And each of the following crimes is exempt from any limitation at all, because they have been determined by the state of Mississippi to be “so serious and the implications to public safety so great that prosecution should not be barred merely by the passage of time”: 

• murder
• manslaughter
• aggravated assault
• kidnapping
• arson
• burglary
• forgery
• counterfeiting
• robbery
• larceny
• rape
• embezzlement
• obtaining money or property under false pretenses or by fraud
• felonious abuse or battery of a child
• touching or handling a child for lustful purposes
• sexual battery of a child
• exploitation of children

Also, the statute is “tolled” (put on hold) where a person absconds or flees from justice or absents himself or herself from the state or jurisdiction or conducts himself or herself in such a way that he or she cannot be found by officers.  In other words, the two years stops running if you disappear, and starts again when you are found.  You can’t hide from it. 

The law changes frequently, so it is best that you contact a criminal defense lawyer if you believe you have a statute of limitations issue with your case.  Give me a call at 601-991-1099, or fill out my contact form at www.guthriefirm.com.  I will help you if I can.

1. Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.
2. Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying or harassing any person.
3. Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the person’s family or household with the intent to threaten, terrify or harass.  And finally,
4. Knowingly permit an electronic communication device under the person’s control to be used for any purpose prohibited by this section.  (PAY ATTENTION TO THIS – It is against the law to let someone borrow your cell phone when you know they are going to use it to harass someone).

Cyberstalking is a felony punishable by imprisonment for not more than two years or a fine of not more than Five Thousand Dollars ($5,000.00), or both.  But if you commit the crime while violating a restraining order, or while on probation or pretrial release, etc., or you’ve done it before, or the prosecution proves that a “credible threat” has been communicated, then the punishment increases to imprisonment for not more than five (5) years or a fine of not more than Ten Thousand Dollars ($10,000.00), or both.  Miss. Code Ann § 97-45-15.

There are several federal statutes that criminalize forms of cyberstalking as well, and it is important for your lawyer to be familiar with all of them.  Cyberstalking is a relatively new, high-tech crime, and it has equally high-tech defenses.  If you are accused of cyberstalking give me a call at 601-991-1099 or contact me here.  I have defended computer crimes since 1999, and I am here to help.

An FBI Agent in Oxford, Mississippi was indicted this week for making false official statements to a federal official, among other things.  The agent was the Supervisory Agent in Charge of the FBI’s Oxford Resident Agency, and the indictment charges that he failed to disclose that he had a financial interest in the Oxford FBI Building since 2004, and that he was not truthful on his Confidential Financial Disclosure Report that FBI Agents are required to fill out.  Finally, it is alleged that he knowingly and willfully made, and caused to be made, a materially false and fraudulent statement and representation to an agent of the Department of Justice, Office of the Inspector General, during an interview.  This is a big case, and if you happen to be reading this while doing research for your term paper on irony it’s the best example I’ve ever seen.

Under Title 18, United States Code, Section 1001, it is a crime to:

1. knowingly and willfully;
2. make any materially false, fictitious or fraudulent statement or representation;
3. in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

This was the charge that Martha Stewart served time for.  It is a crime to tell a lie to the federal government.  Even if your lie is oral and not under oath, and even if you have received no Miranda warnings of any kind.  You must know that your statement is false at the time you make it, but you do not have to know that lying to the government is a crime.  Any person convicted under this statute faces statutory penalties of a possible fine, and up to 5-8 years in prison. 

This law, and interpretations of it, can become extremely complex very quicky, especially in a white-collar crime context.  If you are approached by federal agents asking to speak with you, your best course of action is to politely decline to speak with them about anything substantive in the absence of counsel.  This is much harder than it sounds.  Here are some possible responses from the agent:

• “Why do you think you need counsel?”
• “Why won’t you speak with me to clear this up?”
• “What do you have to hide?”
• “Well, get ready for a subpoena, or an indictment.”

Your responses:

• “May I have your card?  My attorney will be contacting you.”
• “May I please speak with my attorney first.”
• “I want a lawyer.”
• “I would like to speak with a lawyer.”

In summary, it is a sad fact that the government applies a far higher moral standard to you than to itself.  Law enforcement officers can lie to you to get you to make a statement, but you cannot lie to them.  And know this: the federal government can send you to prison for telling a lie, even though they could never charge you with any other crime.

If you get into a tight spot with federal agents, have them wait a few minutes and give me a call.

Some federal investigations take years to complete.  They begin with suspicious activity or crimes that are reported, then federal law enforcement agencies get involved, and they typically culminate in a grand jury investigation.  It is quite common in white-collar criminal investigations for citizens to be investigated for months or years and not even know it.   But if the investigation focuses in on you, and the government wants you to come “explain some things” to the grand jury, it is the policy of the Department of Justice to advise you of your rights if you are a “target” or “subject” of a grand jury investigation.  The way they do this is with a “target letter.” 

If you are a “target” of a federal investigation, the government thinks they have “substantial evidence” linking you to a crime, and the prosecutor believes you will likely be indicted.  If you are a ”subject” of a grand jury investigation, your conduct is merely “within the scope” of the grand jury’s investigation.  As a “subject” they probably just want some information from you, but you can never be sure. 

The following is a sample target letter taken straight from the United States Attorney’s Manual:

This letter is supplied to a witness scheduled to appear before the federal Grand Jury in order to provide helpful background information about the Grand Jury. The Grand Jury consists of from sixteen to twenty-three persons from the District of ___. It is their responsibility to inquire into federal crimes which may have been committed in this District. As a Grand Jury witness you will be asked to testify and answer questions, and to produce records and documents. Only the members of the Grand Jury, attorneys for the United States and a stenographer are permitted in the Grand Jury room while you testify. We advise you that the Grand Jury is conducting an investigation of possible violations of federal criminal laws involving, but not necessarily limited to *. You are advised that the destruction or alteration of any document required to be produced before the grand jury constitutes serious violation of federal law, including but not limited to Obstruction of Justice. You are advised that you are a target of the Grand Jury’s investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do or say may be used against you in a subsequent legal proceeding. If you have retained counsel, who represents you personally, the Grand Jury will permit you a reasonable opportunity to step outside the Grand Jury room and confer with counsel if you desire.

Cordially,

The bottom line is this:  If you receive a target letter, you are most likely going to be indicted.  Get your lawyer on it, and just get ready for it.

What to do if you receive a target letter:

If you receive a letter similar to the one above, you need a lawyer immediately.  No question about it.  You need a white-collar defense lawyer; one that is familiar with federal court.   The sooner you retain a competent lawyer during the pre-indictment phase, the better off you will be.  Hopefully your lawyer can guide you through the grand jury process, can negotiate with the U.S. Attorney early-on, and can either get the investigation closed or at least focused on the proper things that will be beneficial to you.

If you receive a target letter give me a call.  At the very least I can tell you what to expect.

Rising BAC

In Mississippi it is against the law to have a blood-alcohol concentration (BAC) over .08 when you are driving.  WHEN you are DRIVING.  Not WHEN you are TESTED.  It can often take more than an hour after you are stopped before you are tested.  It almost goes without saying that your BAC will be different when you are tested than when you were driving.  The question then becomes whether your BAC was falling at the time of the test, indicating that you were way over the limit while you were driving, or rising, indicating that it might have been lower than the legal limit while you were driving.

As you know, alcohol is absorbed by your body through your stomach and small intestine, and it doesn’t happen immediately.  And everyone is different when it comes to alcohol absorption, depending on size, sex, body fat, etc.  In general, and depending on how much alcohol and food is consumed, and how fast you consumed them, it takes between 30 minutes and 3 hours for alcohol to be absorbed into your system.  So when someone comes to see me with a BAC of anywhere from .08 to .11, or in that range, I always analyze the timeframe of the stop, and other factors that may support a rising BAC defense.

No, not corn-squeezin’, white-lightnin’ bootlegging.  This is the new bootlegging, and it has to do with bootleg or pirated DVDs.

Movie pirating and bootlegging cost the motion picture industry billions of dollars each year, and so Hollywood – led by the Motion Picture Association of America, the same people that rate movies - has lobbied the federal government and the states to make bootlegging videos and DVDs a crime.  The federal government and at least 43 states now recognize bootlegging and pirating motion pictures to be a crime.  Mississippi entered the war on bootleg movies in 2005.

Mississippi Code Annotated Section 97-23-92 makes it a crime to “knowingly operate the audiovisual recording function of any device in a motion picture theater while a motion picture is being exhibited without the consent of the theater owner.”  A person convicted of this crime can be punished by a fine not to exceed $1000.00 or imprisonment for up to six months in the county jail.  In addition, the statute states that the theater owner cannot be liable for “detaining” you if they catch you until law enforcement can get there.

This crime is in the “offenses against trade” section of the Mississippi Code, along with shoplifting, scalping tickets, home repair fraud, etc.  It is a theft of intellectual property, and the variations on this type of theft can get complicated very quickly (downloading movies on the internet, peer-to-peer (P2P) sharing, etc.).  Because it is complicated, if you are accused of this type of crime, you will need a lawyer who understands at least the basic technology involved.

My advice is to not even try to take a recording device into a movie theater, and to be very careful when buying DVDs, games, and movies, no matter what the format.  Also, please know what you are doing when you are purchasing movies for download online.  I don’t enjoy paying $8.50 at the movie theater either – and that does not even include the popcorn - but the amount of loss caused by bootlegging and piracy only increases the prices for all of us.

If you are accused of or arrested for any type of bootlegging or intellectual property theft, give me a call.  I’ve done these types of cases before, and I’ll be glad to help you if I can.

This shouldn’t amaze you, but blood alcohol content, or blood alcohol concentration (BAC) is a measure of how much alcohol is in your blood.  It is usually expressed in terms of volume of ethanol per volume of blood, and is scientifically measured by calculating the ratio of ethanol to blood within your system.  Ethanol in your blood is a byproduct of the broken-down alcohol that you consume.  Therefore, if you have a BAC of .12, you have .12 grams of ethanol per 210 liters of breath, which equals .12 grams of ethanol per 100 milliliters of blood.  If your BAC  is above .08 and you are operating a vehicle in Mississippi, you are wrong.

How is BAC measured?

In practice, BAC is determined by breath, blood, saliva or urine testing.  Law enforcement will typically try to talk/coerce/influence you into taking one or more of these tests shortly after you are stopped.  Blood testing is the “gold standard” method to determine your BAC, but since it requires the drawing of your blood by a doctor or other qualified medical professional, most of the time your DUI will be based on a breath test.  Remember, you can refuse a breath test.  Also remember that you can get a DUI without a BAC, if the prosecution can prove by other means that you were operating a vehicle in Mississippi while under the influence of alcohol.

To be such a relatively small misdemeanor, a DUI on your record can have lifelong effects.  A DUI is never cut-and-dried.  Each case is factually different, with only one common theme: the prosecution wants a conviction on every one.  If you are arrested and charged with DUI, give me a call and I’ll discuss it with you.