• 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.

In Mississippi, it is.

Mississippi is one of about seven states right now that make looting a distinct crime from other forms of property crime, like larceny, burglary, shoplifting, and other types of theft crimes.  Perhaps more than any other state, Mississippi has been hit extremely hard by natural disasters, and the elements of the crime of looting are designed to address the special problems created by natural disasters, riots, mobs, etc.

Section 97-17-65 of the Mississippi Code makes it a crime to “knowingly without authority of law or of the owner enters any home or dwelling, or upon any premises of another, or enters any commercial, mercantile, business or industrial building, plant or establishment, in which a normal security of property is not present by virtue of a hurricane, fire or vis major of any kind or by virtue of a riot, mob, or other human agency and obtains or exerts control over or injures or removes property of the owner.”

What makes looting different?

Look at the part that says “a normal security of property is not present.”  That is what makes looting different.  If a natural disaster (a hurricane, for instance) makes it impossible to keep property secure, then any person who obtains, exerts control over, injures, or removes the property of someone else can be charged with looting.  The Attorney General has also made it clear that the crime of looting can be committed without any property actually being taken.  In plain terms, looting occurs when someone takes advantage of a situation and causes harm to someone when they are vulnerable due to circumstances beyond their control.

What is the punishment for looting in Mississippi?

Because of this, the punishment for looting is more severe than ordinary theft crimes.  Looting is a felony offense in Mississippi, and can be punished by imprisonment in the penitentiary for a period not to exceed fifteen (15) years or by a fine not to exceed ten thousand dollars ($10,000.00), or both such fine and imprisonment.  Considering the fact that the punishment for petit larceny (regular stealing) of property up to $500.00 is up to six (6) months in jail, you can see how serious looting is taken in our state.

If you have been charged with looting, larceny, burglary, or any other type of property crime, call The Guthrie Firm for a free consultation.  Clarence has extensive experience defending these types of crimes, and will be glad to discuss your case with you.  We are here to help.

As technology advances, so does the opportunity to violate the rights of others by committing crimes in cyberspace.  This week we discuss a seldom-used law on Mississippi’s books that makes it advisable to reread every email, text message, blog post, or Facebook update you intend to publish before you hit the send button.

It is against the law in Mississippi to “post a message for the purpose of causing injury to any person through the use of any medium of communication, including the Internet or a computer, computer program, computer system or computer network, or other electronic medium of communication without the victim’s consent, for the purpose of causing injury to any person.”  Miss. Code Ann. § 97-45-17.

Posting malicious messages on the internet (Facebook, MySpace, listservs, message boards, chat sites, etc.) is a felony in Mississippi, punishable by imprisonment for not more than five (5) years or a fine of not more than Ten Thousand Dollars ($10,000.00), or both.

Does this apply to my iphone or blackberry?

Look at the phrase “any medium of communication” in the statute.  Since most cell phones today are tiny little computers you hold in your hand, and the technology continues to advance by “melding” the phone network and the computer networks, then it probably does.

What is the difference between this crime and the crime of cyberstalking?

When you cyberstalk someone, you are posting messages or using language designed to threaten, harass, cause bodily harm, or to extort money from your intended victim.  With this crime, your messages are posted with the intent to cause injury to a person, and the term “injury” has a broader connotation (injury to reputation, career, etc.).

How are some of the ways this crime might be committed?

Some people are very creative, and this crime (or a crime like it in another state) has been violated by:

1.  A man getting his spouses email password, then sending threatening email messages to himself through her account, then having her arrested.
2. “Cyberbullying” – go online and google “Alexis Pilkington” and look at the tragic results of this activity
3. Posting compromising pictures of former spouses, boyfriends, or girlfriends on the internet

This crime, like all high-tech crimes, is defensible, but only if your lawyer is familiar with the latest in technological trends and criminal defenses related to cybercrime.  I can tell you that the Cyber Crimes Unit of the Mississippi Attorney General’s Office is very sophisticated at investigating these types of crimes.  If you are charged with a cybercrime you will need a lawyer that is just as sophisticated.  Give me a call at 601-991-1099, or send me a email to clarence@guthriefirm.com.  I am here to help.

An arraignment is the brief hearing that starts the courtroom phase of a criminal prosecution.  It is the court appearance where you are officially notified of the specific charges against you, and it is where you will enter a plea of either “guilty” or “not guilty.”

The following things typically happen at an arraignment hearing:

• You will be provided with a written copy of the charges against you (either a copy of the ticket, or the indictment)
• Your lawyer situation will be discussed (whether you intend to hire a lawyer, or you are eligible for assistance by the public defender)
• You will enter a plea of “guilty” or “not guilty”
• Your trial dates will be set
• The judge may discuss your bail situation (leaving you out on bail, or possibly lowering it)

Guess what?  You can stand there like a dummy and not say anything if you want!  I guess that has happened before, and so Mississippi law provides that the court will enter a plea of “not guilty” for you if you refuse or neglect to plead.    

Can an arraignment be waived?

Arraignments in felony cases cannot be waived; you must be there in person.  Alexander v. State, 226 So.2d 905 (Miss. 1969).  But most arraignment proceedings in misdemeanor cases can be waived.  In fact, in most DUI and misdemeanor cases I usually try to waive this appearance for my clients and save them an extra trip to court.  This practice varies from court to court, however.

My case is just a big misunderstanding.  Can I get the charges dismissed before I am arraigned?

It is possible, but you are probably going to have to get a lawyer to help you.  Most public defenders are not appointed or involved in a case until at or after the arraignment, so if you want to bring the discrepancies of your case to the prosecutor’s attention with the intent to get it dropped, you will most likely need to hire a lawyer to investigate and negotiate for you before your first court appearance.

My lawyer got my case dismissed before arraignment.  They can’t come get me again on these same charges because of double jeopardy, right?

Wrong.  “Jeopardy” does not ”attach” in Mississippi until a jury is empaneled and sworn in a jury trial, or until the first witness is sworn in if only the judge is deciding the case.  This means that you can be rearrested for the same crime – based on new evidence, or some other reason – as long as the statute of limitations has not run on the crime.

Your arraignment is your cue to start looking for a lawyer, if you don’t already have one.  If you are indigent (broke), the judge will appoint the public defender for you.  But most judges will give you a small amount of time to go hire a lawyer if that is your request. 

Don’t stress your arraignment.  It’s best to hire a lawyer as soon as possible in the criminal process, but if you wait until at or shortly after your arraignment that is probably fine.  I handle state criminal and DUI cases throughout the state of Mississippi, and I do federal criminal defense work nationwide.  If I can assist you please do not hesitate to call me at 601-991-1099.  I am here to help.

Practically, what does this mean?

It means that I can be very accurate in determining what your federal sentence is going to be if you are convicted in federal court in the Southern District of Mississippi.  As I have stated before, federal court is different than state court.  In federal court, the sentencing battle is sometimes as big as the trial itself.

A recent study shows that the Judges of the District Court for the Southern District of Mississippi - there are 11 in all - tend to sentence a convicted Defendant within the guideline range recommended by the U.S. Sentencing Commission at least 80.7 percent of the time.

At the heart of federal sentencing is 18 U.S.C. § 3553(a), which states that a federal judge must impose a sentence that is “sufficient, but not greater than necessary” to:

• reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
• afford adequate deterrence to criminal conduct;
• protect the public from further crimes of the defendant; and
• provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

In order to accomplish these objectives, the statute lists a number of considerations, and one of them is “the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission.”  18 U.S.C. § 3553(a)(4).  For a period of time, these guidelines were mandatory on federal judges, until the U.S. Supreme Court declared in 2005 that the mandatory application of the federal sentencing guidelines violated the right to trial by jury under the Sixth Amendment.

Since that decision in 2005, federal courts have been virtually all over the map in determining how these guidelines are to factor into a federal sentence.  A detailed treatment of this struggle is available here.  Suffice it to say that statistically the Southern District of Mississippi holds the Federal Sentencing Guidelines in high regard.  Your lawyer in your federal case must be experienced and well-versed with the guidelines in order to find the variances, the downward departures, and the arguments for favorable treatment so that you will spend the least amount of time locked up as possible.

If you are facing federal criminal charges give me a call at 601-991-1099, or send me an email to clarence@guthriefirm.com.  Your initial consultation won’t cost anything.  Let’s try to win your case first, but if that is not possible let’s go through the guidelines to try to achieve the best possible result for you.