United States Attorney General Eric H. Holder, Jr. recently issued a Memorandum to all federal prosecutors (the “Holder Memorandum”) addressing the Department of Justice’s policy on charging and sentencing federal crimes.  This memorandum is very significant, as it supercedes several previous memoranda issued by the Bush Administration concerning how the Department of Justice will proceed with respect to charging decisions and advocacy during federal sentencing.

I discussed here that federal sentencing is very different than Mississippi state court sentencing, and sometimes it is the biggest battle of your federal case.  So it is important to keep up with DOJ policy and how they are thinking as we develop a plan for your case.

Most practitioners believe that this new Memo softens what were earlier “hard lines.”  It basically shifts DOJ policy from strict compliance and uniformity to an understanding that no two cases and no two people are alike.  It appears to give prosecutors more discretion than before, saying things such as prosecutors should continue to “ordinarily charge the most serious offense that is consistent with the defendant’s conduct and that is likely to result in a sustainable conviction,”  and “[c]harges should not be filed simply to exert leverage to induce a plea…”

Further, the memo says that all charging decisions must be reviewed by a supervisory attorney, and all but the most routine indictments should be accompanied by a document that sets out charging options and explains the charging decision.

It is my opinion that these are positive developments in DOJ policy.  The key words in the memo are “individualized assessment,” which recognize the fairly recent change making the application of the federal sentencing guidelines advisory, rather than mandatory, on federal judges.

You can read the entire Memorandum here: 100519 Holder Memo.

Ticket timeliness.

A DUI in Mississippi is a misdemeanor driving offense.  It is a harsh driving offense, with severe consequences, but DUI(1st) and (2nd) are misdemeanor driving offenses nonetheless.  As such, the laws regarding traffic citations are applicable to the offense of driving under the influence as well, even though a DUI ticket is required by law to be different than a regular traffic ticket.

Section 63-9-21, paragraph (6) of the Mississippi Code Annotated states that the original traffic ticket issued to someone SHALL be delivered by the officer to the clerk of the court.  In other words, the statute requires that the officer turn the ticket in to the court so that it may be processed, you can be notified of your court date, etc.  In fact, you are not even charged with a crime until the officer turns in the ticket to the court.  Op.Atty.Gen. No. 94-0497, Ford, Aug. 31, 1994, 1994 WL 498740.

Last year (2009), paragraph (6) was amended, and the statute now states that if you are incarcerated based on the conduct for which the ticket was issued (which is practically always the case with a DUI), the officer SHALL file the ticket with the clerk of the court no later than 5:00 p.m. on the next day, excluding weekends and holidays, after the date of the incarceration.  This section of the law went into effect on May 13, 2009.

In the good old days officers might hold tickets for days, or a week, and turn them all in in a stack when they got the opportunity.  They can’t do this any more.  The ticket must be turned in within the prescribed time, or it is defective.  And guess what?  The failure of an officer to comply with this provision is a crime itself!  The officer can be convicted of a misdemeanor and fined not less than $10.00 nor more than $100.00. 

This amendment to the statute is still new, and courts are not applying it in a uniform manner.  The argument your lawyer should be making is that a failure to comply with this provision renders the citation defective, and it should be dismissed.

Philip Thomas over at his Mississippi Litigation Review and Commentary has this post on what your lawyer should wear to court.    I’ve been contemplating writing a post on what YOU should wear to court, because I go over it with every client, and so here it is:

“Don’t come to court looking like you just climbed down from the tree stand, or just rolled in from the rap concert.”  That used to be all I had to say on the matter, and it hasn’t failed me yet.  But I must say that I have actually seen someone – NOT MY CLIENT – show up and plead “not guilty” to a possession of marijuana charge with a T-shirt that had a big marijuana leaf emblazoned on it.  And so my advice on grooming and appearance has somewhat evolved through the years.

If you hire me to represent you, shortly before we get to court we will have a brief, but necessary talk about your appearance.  Anything can happen during a trial, and so it is important to control as much as we possibly can before we get in there.  One of those things is the way you look.  In addition, don’t think that the jury is not watching everything you do, and what you have on, and so a little effort in this area is important.  You only get a few seconds to make an impression on someone, so choose what you wear wisely. 

• Dress respectfully – This shows the judge, the jury, and everyone at the courthouse that you have respect for the court, respect for the process, and that you are taking it seriously.
• Dress to disappear – No, don’t wear camoflage.  What I mean by this is that your clothes shouldn’t distract anyone.  Chose dull colors over bright, and clothes that fit, rather than are too tight or loose.  Let me wear the colorful tie.  You just wear something nice.  For ladies – and I do not mean any disrespect by this – if you ever dressed to attract someone’s attention, now is not the time.  Please don’t make me have to elaborate on that any further.
• Do not stink – Tone down the aftershave, perfume, etc.  Brush your teeth, have a mint, and I’m counting on you to tell me if my breath stinks as well.
• Some rules – Most bailiffs in Mississippi will make you tuck your shirttail in, and remove your hat.  Leave your cell phone in the car, as most courts will only allow lawyers in with their phones, and some don’t even allow that.  If you do make it in with your phone, CUT IT OFF.  I have witnessed more than one judge instruct the bailiff to take up a phone and give it back only after a $200.00 fine is paid.

As most of my clients can attest, when you come to see me in my office I will probably be in blue jeans, if I don’t have court that day.  I would practice law in shorts and a sweatshirt if I could get away with it.  But it is game time when we get to court, and like Philip’s post recommends you will see me dressed up when we get to the courthouse.  You don’t necessarily have to wear your Sunday best, but I highly recommend that you pay attention to your appearance when we get to court.  Respect the process, and the process will respect you.

There ain’t no good in an evil-hearted woman
And I ain’t cut out to be no Jesse James
And you don’t go writing hot checks, down in Mississippi
And there ain’t no good chain gang
     -Johnny Cash and Waylon Jennings

It is against the law in Mississippi to “make, draw, utter, or deliver” any “check, draft, or order” to obtain “money, delivery of other valuable property, services, the use of property, or credit” when you know that you don’t have funds in the bank or financial institution to cover it.  Miss. Code Ann. § 97-19-55.  It is also against the law to close your account without leaving enough money in it to cover the checks you have outstanding.  Each bad check that you write is a separate violation of the law.

What is the punishment for bad checks?  Depends on how much.

If the amount on the check is less than $100.00:

• First Offense – Misdemeanor offense, punishable by a fine of between $25.00 – $500.00, imprisonment of between 5 days – 6 months, or both.
• Second Offense – still misdemeanor, but fine goes to $50.00 – $1000.00, imprisonment of between 30 days – 1 year, or both.
• Third Offense – amount doesn’t matter, felony offense.  Imprisonment between 1 – 5 years.

If the amount on the check is $100.00 or more:

• Felony offense – fine of $100.00 – $1000.00, imprisonment of up to 3 years, or both.

Restitution to the “victim” is almost always the case, along with costs of court and penalties.

What about post-dated checks?

It is the opinion of the Mississippi Attorney General that a future obligation as to payment of a check is not contemplated by § 97-19-55; therefore, a person who post-dates a check may not be prosecuted under § 97-19-55. Op.Atty.Gen. No. 99-0028, Hudson, Feb. 5, 1999.

What is going to happen to me if I write some bad checks?

Most district attorney’s offices in Mississippi have a “Bad Check Unit,” which assists merchants and anyone who receives a bad check to collect on it.  MOST of the time, if you get a notice from the bad check unit, and you act promptly to make restitution, nothing terrible will happen to you.  IF you do not respond to the notice, you can be arrested, and, depending on the severity of the offense, your case can be sent to the grand jury just like any other crime.  Start looking for a lawyer at that point, if not before.

As always, there are many ways to work out a criminal case.  Some bad check cases are totally defensible, so if you believe you have an issue run it by a criminal defense lawyer before it is too late.  Give us a call at 601-991-1099.  We are here to help.

• Counterfeit Trademarks:  The Trademark Counterfeiting Act at 18 U.S.C. § 2320(a) states that if you intentionally traffic or attempt to traffic in goods and services, or use a counterfeit mark on goods or services, you can be punished by jail time of up to ten years and a fine of up to two million dollars.
• Counterfeit Labeling:  Trafficking in counterfeit labeling or packaging designed to be affixed to records, tapes, CDs, DVDs, and computer programs is illegal under 18 U.S.C. § 2318, and can get you up to five years in jail and up to a $250,000.00 fine.
• Copyright Infringement:  If you copy or distribute at least 10 copies of a copyrighted work with a total retail value of $2500.00 within a 180-day period, you have committed a felony under 17 U.S.C. § 506 and 18 U.S.C. § 2319, and if convicted you face up to three years in federal prison and up to a $250,000.00 fine.  This penalty is increased to five years if you did it for “purposes of commercial advantage or personal financial gain.”
• Theft of Trade Secrets:  “Trade secrets” are defined broadly under these laws, meaning any information which someone has taken measures to keep private, and which may have independent economic value.  If you steal trade secrets for the benefit of a foreign government or agent, under the Economic Espionage Act you face up to 15 years imprisonment and a $500,000.00 fine.  If you steal trade secrets for commercial reasons (you copy someone’s secret sauce recipe), you face up to ten years imprisonment and up to a $250,000.00 fine.

Most disputes over intellectual property are resolved in civil courts.  In other words, if someone believes their idea or trademark has been stolen, they can bring a civil suit against the offending person to get them to stop using the idea, and they possibly can collect monetary damages based on the unlawful use.  As I’ve mentioned before, when I am not doing criminal defense I also get involved with civil litigation, and I have been on both sides (plaintiff and defense) of some intellectual property litigation.  This is a very specialized area of law, and I have a good friend who is an intellectual property specialist (and one of the few licensed patent lawyers in Mississippi) that helps me with these lawsuits (or I help him).

But a criminal prosecution for theft of intellectual property is different, and you will need a lawyer that is familiar with both intellectual property law and federal criminal defense if you are under investigation or are indicted.  These tend to be very complex cases, but they are defensible.  If you are accused of any type of theft crime give me a call.  I am here to help.

Your Mississippi driver’s license is in danger of being suspended for any drug conviction.

Mississippi Code Annotated § 63-1-71 states that if you are convicted of, enter a plea of nolo contendere, or adjudicated delinquent (Youth Court) for any offense defined in the state’s Uniform Controlled Substances Law, or the laws of anywhere else for the use, distribution, possession, manufacture, or sale of drugs or other controlled substances, you will forfeit your right to operate a vehicle in the state of Mississippi for a period of six months.  If you don’t have a license, or you are under 15, the six months begins when you get your license, or you turn 15.  If your license is already suspended, the six months is tacked on to the end of your current suspension period.

Which drug crimes and offenses could get my license suspended?

All of them.  Mississippi’s Uniform Controlled Substances Law makes it illegal to sell, barter, transfer, manufacture, distribute, dispense, or possess any controlled substance.  This includes, but is not limited to, marijuana, cocaine, crack cocaine, methamphetamines, precursors, prescription drugs, drug paraphernalia, or anything listed on the drug schedules.  Virtually anything you can think of having to do with drugs puts your license in play.

If my license is suspended as a result of a drug conviction, can I get a hardship license?

Yes.  A lawyer can help you get a hardship license in much the same way that you can get a hardship license after a DUI conviction.

I posted the other day about dog fighting in Mississippi, and I almost immediately got a call from a hog dog enthusiast wanting to know the penalties for that activity.  A “hog dog rodeo” is where dogs, usually pit bulls, are turned loose on a wild boar, and are judged on how quick they can take it down.  This is NOT wild hog hunting with dogs, which is legal, or a “bay event” (herding competition where points are deducted if a hog is caught, held, or harmed), which is also legal.  This is a “catch,” or a fighting event where dogs or hogs are likely, according to the statute, to be “injured, maimed, mutilated, or killed. 

The penalties are a fine of not more than $1000.00, or imprisonment for not more than 6 months, or both.  See Miss. Code Ann. § 97-41-18.

Dog fighting is a very “politically incorrect” crime these days.  Just ask Michael Vick, who hopefully is on the rebound these days. 

The following conduct will get you into trouble for dog fighting in Mississippi:

• sponsoring, conducting, staging, or promoting a dog fight;
• betting or encouraging betting on a dog fight;
• owning a dog with the intent to enter it into a dog fight;
• training or transporting a dog for a dog fight.

These activities constitute a felony in Mississippi, and the penalties are a fine of not less than $1000.00 nor more than $5000.00, or imprisonment for 1-3 years, or both.  The statute specifically makes exceptions for livestock dogs, hunting dogs, or “the training of dogs for any purpose not prohibited by law.”  Miss. Code Ann. § 97-41-19.

What if I am just caught at a dog fight?  I wasn’t doing anything!

If you are caught at a dog fight, or where someone is planning to have a dog fight, and the prosecutor can prove you meant to be there, you face a felony conviction, and shall be punished by a fine of not less than $500.00 nor more than $5,000.00, or by imprisonment for not more than 1 year, or both, in the discretion of the court.

The sheriff took all my dogs!  Can he do that?

Mississippi’s dog fighting law states that a law enforcement officer can lawfully “take possession of all dogs and all paraphernalia, implements, equipment or other property” used in dog fighting, and file an affidavit with the court describing it.  The officer then takes the dogs and gear to a licensed veterinarian, the humane society, or other suitable custodian, and this custodian will keep everything until your case is done.

If this custodian certifies that one of your seized dogs is not likely to survive until the end of your case, or it is in such bad shape that it humanely needs to be put down, then the court can authorize that the dog be euthanized within 7 days of this certification.  If these procedures are not followed exactly before one of your dogs is put down the statute allows you to sue the law enforcement agency that arrested you.  Finally, if you are convicted under this statute, your dogs are forfeited and the court will order a “humane disposition,”  but if you are acquitted or charges are dismissed you get your dogs and property back.

If you love your dogs as much as most people do, a lot is going to be at stake if you are arrested and accused under Mississippi’s dog fighting laws.  It is at this point that I normally say that I have “extensive experience” with this type of case, but I can honestly say I have never had a dog fighting case before.   But seeing as how there are no reported cases under this statute (in other words, most of these cases get resolved), then they are rare.  A criminal charge is a criminal charge, however, and I am always available for a consultation if you need an experienced criminal lawyer to help you.

Sexting is the act of sending sexually explicit messages or photographs to someone, usually over a cell phone.  The term is about five years old, According to a nationwide survey conducted by the National Campaign to Support Teen and Unplanned Pregnancy, roughly 20 percent of teens admit to participating in “sexting.”  As the father of a teenager, this makes me nauseous.

Is sexting illegal in Mississippi?

This year (2010) the Mississippi legislature tried to make it a misdemeanor to ”knowingly create, receive, exchange, send, or possess a photograph, video, or other material that shows  a child under the age of eighteen (18) in a state of nudity” using a cell phone or other electronic communication device.  This bill (House Bill 643) did not make it out of committee this year, and did not become law.  BUT . . .

It is already a crime in Mississippi to  ”knowingly disseminate sexually oriented material to any person under eighteen (18) years of age.”  The definitions of “dissemination” and “sexually oriented material” are broad enough to encompass just about everything you could think of.  This crime is a misdemeanor, with a maximum fine of $5000.00 and maximum imprisonment of up to 1 year.  Miss. Code Ann. § 97-5-27.  Because the statute applies to “any person,” it might fit the situation where, say, one teenager sends nude pictures of theirself to another teenager.  And yes, a conviction under this crime carries the additional penalty of lifelong registration as a sex offender.  So “sexting” may already be covered as a crime under Mississippi law.  But some states are passing laws specifically targeting “sexting,” typically with lower penalties, to deal appropriately with the growing number of teenagers who are guilty mostly of immaturity and bad judgment when sending out sexually explicit photos of themselves.  Perhaps Mississippi will do this as well, but so far it has not.

Of course, it has been illegal for some time for anyone to (1) depict or record; (2) send, transport, ship, mail or receive; (3) distribute, sell, or attempt to sell; (4) or even possess any depiction of a child engaged in sexually explicit conduct.  Miss. Code Ann. § 97-5-33.  This is Mississippi’s standard child pornography law, and the penalties for violating it are severe. 

Why you (or your children) shouldn’t “sext”:

• Because under the current state of the law in Mississippi you could potentially be punished severely, and have to register as a sex offender.
• Because once you send a text, post, or image across the internet or phone network it is PERMANENT.  It cannot be erased, forgotten, or recalled.  Imagine going into your first job interview after you graduate college and your interviewer pulling out nude photos of you taken 5 years ago.  Awkward does not begin to describe it. 
• Social repercussions at school, church and the community that are insurmountable. 
• Sexting has been shown to affect the emotional and psychological development of a child.

Clarence has defended all types of sex crimes over the past eleven years.  He can frankly, professionally, and discreetly discuss what is involved with a sex crimes prosecution, possible defenses, and repercussions of a conviction.  If you have been charged with this type of offense give us a call at 601-991-1099.  We are here to help.

Federal healthcare fraud is the intentional misstatement of facts involving healthcare transactions that leads to unfair and unauthorized benefits or financial gain.  Generally considered a white collar federal offense, this crime can be committed by healthcare providers such as doctors or therapists, nurses, hospital administrators and employees, but can also be committed by insured members or employers.  The federal government has become increasingly more active in prosecuting these types of crimes, and the penalties (fines, incarceration, etc.) are severe.

Even small billing errors are looked at with increasing scrutiny, and sometimes prosecuted as fraud and abuse.  A good lawyer that is familiar with white collar criminal defense can sometimes mean the difference between a federal indictment, or business continuing on. 

What are some examples of healthcare fraud?

• Misstatement of Services Rendered – billing for services that may have never been given; billing for non-covered services; misrepresentation of dates, descriptions, or personnel involved in the treatment; improper coding; billing for medically unnecessary services; “unbundling,” which is charging Medicare separately for services that are actually a part of a single procedure
• Kickbacks – in return for referring patients or bribery for recommending one plan over another
• Unreasonable rates – everyone knows that medical services are expensive, but when the charges get out of hand it can literally be criminal
• Personnel issues – providing and billing for services by unlicensed personnel, or failing to supervise untrained personnel

How can a patient get into trouble for healthcare fraud?

• Identity issues – using someone else’s Medicare card to get healthcare or prescriptions, or forging names to get coverage for friends
• Filing fraudulent claims – for services not received
• Doctor shopping – requesting care, or prescriptions, from multiple doctors at once without efforts to coordinate the care.  Usually stems from a reliance on prescription drugs.  Google “Corey Haim Doctor Shopping” for information on how this child actor from the 1980s destroyed his life going from doctor to doctor for drugs.

Title 18, Section 1347 of the United States Code is the main healthcare fraud statute, and states:

Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—

(1) to defraud any health care benefit program; or

(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program,

in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

Numerous other federal statutes may apply, and Mississippi has laws prohibiting certain conduct relating to healthcare as well.  If you are caught up in a federal healthcare investigation, you will need an attorney helping you, and the sooner the better.  Clarence has experience helping people in these situations, and will be glad to discuss your case with you.  Call at any time, or send an email to clarence@guthriefirm.com and it will go straight to him.