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Criminal Defense

“The God who gave us life, gave us liberty at the same time…
The people are the only sure reliance for the preservation of our liberty”.
– Thomas Jefferson –

A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defense ag[inst]st. foreign danger, have been always the instruments of tyranny at home. James Madison at the Constitutional Convention 1787.

VISIT THE AMENDMENTS TO MICHIGAN’S SEX OFFENDER REGISTRY ON THIS SITE FOR ANSWERS ABOUT RECENT JULY 2011 CHANGES TO MICHIGAN’S SORA, THE “ROMEO AND JULIET” EXEMPTION AND PETITIONS FOR RELIEF FROM REGISTRATION!

Recent amendments to the Firearms chapter of the Michigan Penal Code Public Act 26 of 2015 as amended related to firearms and pneumatic guns. MCL§750.222(g) now defines “Pneumatic gun” and means any implement, designed as a gun, that will expel a BB or pellet by spring, gas, or air. Pneumatic gun includes a paintball gun that expels by pneumatic pressure plastic balls filled with paint for the purpose of marking the point of impact.
Pneumatic guns have now been added to weapons-related violations under MCL §750.226 and 227.
 Carrying a pneumatic gun with unlawful intent; five-year felony:
 Possession of a pneumatic gun in furtherance of a crime (“felony firearm”); two-year felony with increasing penalties for second or subsequent offenses.
 Transporting a loaded firearm or pneumatic gun in a vehicle; two-year misdemeanor;
 Transporting an unloaded firearm or a pneumatic gun in a vehicle; 90-day misdemeanor.

“But he saves the needy from the sword of their mouth and from the hand of the mighty.
So the poor have hope and injustice shuts her mouth” 
Job 5: 15-16

Paul R. Jones, has successfully defended and focused his criminal practice litigating controlled substance and criminal sexual conduct (CSC) cases. Drug charges, including violations of the Michigan Medical Marijuana (sp) Act (MMMA) may include simple possession, trafficking, possession with intent to deliver or sell, manufacturing, and/or running a drug dwelling under either or both Federal and state laws. Criminal sexual conduct charges range from 1st degree being the most serious to 4th degree CSC and may include prohibited internet communication involving a minor under 18. In most instances, in either a Drug or CSC case, counts will include aiding and abetting, conspiracy, forfeiture and may involve homeland security and department of immigration consequences.

What should you do if you have been convicted of a felony, in part based on inclusive DNA evidence that otherwise may have resulted in aquittal?
If it “seems there’s not much you can do” take heart.

In Michigan MCL 770.16 [1] covers the subject of DNA testing and as amended in 2015, no longer has a statute of limitations for filing, and states in part;

(1) Notwithstanding the limitations of section 2 of this chapter, a defendant convicted of a felony at trial before January 8, 2001 who is serving a prison sentence for the felony conviction may petition the circuit court to order DNA testing of biological material identified during the investigation leading to his or her conviction, and for a new trial based on the results of that testing. Notwithstanding the limitations of section 2 of this chapter, a defendant convicted of a felony at trial on or after January 8, 2001 who establishes that all of the following apply may petition the circuit court to order DNA testing of biological material identified during the investigation leading to his or her conviction, and for a new trial based on the results of that testing:
(a) That DNA testing was done in the case or under this act.
(b) That the results of the testing were inconclusive.
(c) That testing with current DNA technology is likely to result in conclusive results.
(2) A petition under this section shall be filed in the circuit court for the county in which the defendant was sentenced and shall be assigned to the sentencing judge or his or her successor.

The petition shall be served on the prosecuting attorney of the county in which the defendant was sentenced.Pursuant to the statute, a defendant is required to make a prima facie showing that the evidence to be tested is relevant to the issue of identity of the defendant as the perpetrator of the crime. People v Barrera, 278 Mich. App. 730; 752 N. W. 2d 485 (2008).


[1] This section is the exception found in MCL §770.2. Motion for new trial  which generally requires and states in part (1) Except as provided in section 16, in a case appealable as of right to the court of appeals, a motion for a new trial shall be made within 60 days after entry of the judgment or within any further time allowed by the trial court during the 60-day period.

FORENSIC SCIENCE:
A knowledgeable understanding of the most widely used forms of laboratory analysis followed in the majority of forensics laboratories today, is essential to the zealous representation and defense needed by a client in these situations and upon which the next 10-15 years of his/her future may depend. My experience and understanding of the types of qualitative and quantitative, biological, biochemical and physical chemical analysis, gained as an undergrad and graduate student at EMU, have provided valuable assistance in defending my clients in cases involving the scientifically recognized and accepted forms of laboratory testing an accused frequently faces in defending such criminal cases. For example, in a CSC case, evidence may include DNA genetic variant tests results known as short tandem repeat or STR’s; in a control substance drug case gas chromatography/mass spectral (GC/MS) analysis results are typically used to confirm and quantify critical evidence needed by a prosecutor for a conviction. Forensic drug analysis deals with the identification and quantification of illegal drugs. Forensic drug tests are generally carried out in two steps: screening and confirmation. Once drugs are detected through screening, for example spot test kits (e.g., immunoassays, Marquis test, etc), samples are then collected and sent to laboratories for confirmation tests. Confirmation requires high sensitivity and selectivity toward drugs, as well as their metabolites, and is frequently carried out by GC/MS.

STATE & FEDERAL DRUG LAWS

CONTROLLED SUBSTANCES AND FORFEITURE PROCEEDINGS:

A controlled substance criminal prosecution should always be considered as a case within a case. A conviction of guilt whether by plea or following trial in an underlying drug related criminal proceeding, is not required prior to subjecting a citizen to the punishment of forfeiture. However, such a conviction can later be used as prima facia evidence of guilt in a concurrent or subsequent forfeiture prosecution. Forfeiture falls into two basic categories; civil (administrative and judicial) and criminal. Property is forfeitable to the United States only if forfeiture is specifically authorized by federal and concurrent state jurisdiction statute. Under Federal law any officer of Customs and Border Protection or Immigration and Customs Enforcement may seize and forfeit any property that has been or is being used in the commission of a violation of any statutory authority involving the unlawful introduction of aliens, contraband or proceeds of such introduction, pursuant to, but not limited to, section 274(a) of the Act (8 U.S.C. 1324(a)). Numerous seizure statutes also exist in Michigan. Those statutes dealing with controlled substances such as drugs, however, are the most often employed by law enforcement and the most sweeping in their reach. These include Sections 333.7521-333.7525 of the Michigan Compiled Laws and Section 881 of Title 21 in the United States Code (USC). Anything that is “furnished or intended to be furnished in exchange for a controlled substance or . . . traceable to an exchange for a controlled substance” is subject to forfeiture in Michigan.  21 USC 803 (6) defines the term “controlled substance” and “means a drug or other substance, or immediate precursor, included in Schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986”. Certain items forfeitable under Federal law found at 21 U.S.C. ‘ 881 (f) & (g), and as adopted by the states including Michigan, are considered to be “contraband per se”, and “shall be…seized and summarily forfeited” without hearing or notice. These items include Schedule I; based on high abuse, no recognized medical use and lack of safety and Schedule II; based on their high abuse, medical utility and high dependency risk controlled substances.  Examples of Schedule I drugs include Heroin, LSD, Marijuana and Methaqualone; Schedule II drugs include Oxycodone, Opium, Cocaine, Morphine, Methadone and Methamphetamine. Controlled substances also include any substances that are illegally possessed, transferred, sold, or offered for sale, and plants from which schedule I or II controlled substances can be derived if the plants are being grown in violation of the drug laws, are growing wild, or if the owners or cultivators are unknown. Only “contraband per se” items may be summarily forfeited. Forfeiture statutes fashioned after 21 USC 881(a) also provide the following assets shall be presumed to be subject to forfeiture; real property, aircraft, vehicles or vessels and firearms intended for use to transport, or facilitate the transportation, sale, receipt, possession, or concealment of controlled substances. money, bank accounts, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical found in close proximity to any property that is subject to forfeiture . . . due to a “substantial connection” between the property and illegal behavior. The assets need only be traceable to drug trafficking in general. Michigan and most federal forfeiture laws require only the showing of a “reasonable ground for belief” or a “probable cause” that an asset had a substantial connection to an illegal drug related activity before it is subject to forfeiture.

Administrative forfeiture is the process by which property may be forfeited to the United States by the investigative agency that seized it. It is an in rem (against the property).The authority for a seizing agency to start an administrative forfeiture action under federal statute is found in the Tariff Act of 1930, 19 U.S.C. ” 1602-1621. Property that can be administratively forfeited is merchandise the importation of which is prohibited that does not exceed $500,000 in value. Real property cannot be the subject of administrative forfeiture, regardless of its value.

Civil judicial forfeiture is an in rem action brought in court against the property. The property is the defendant and no criminal charge against the owner is necessary. Although civil forfeiture proceedings need only be filed within the applicable statue of limitations (usually 5 years) from the discovery of the asset, civil forfeiture statues require prompt action by the government in filing judicial proceedings after property has been seized.

Criminal forfeiture is an action brought as a part of the criminal prosecution of a defendant. It is an in personam (against the person) action and requires that the government indict (charge) the property used or derived from the crime along with the defendant.

Federal Courts

Federal courts operate differently than state courts and require different procedures. Federal criminal defense attorneys who are already admitted to the Western District or Eastern District courts (the two main federal courts where federal criminal cases are tried in the state of Michigan) know the local rules and rules of federal criminal procedure. The rules, time frames for conducting discovery,  motion and ECF filing practice, trial procedure and sentencing guidelines followed in the federal court system,  are very different from the State district and circuit court system.  Because of these different and rather strict procedural rules, many attorneys. whether inexperienced or unfamiliar with federal practice in Michigan will not accept or handle cases in federal court.  Paul R. Jones has been admitted to the federal courts in the state of Michigan since 1989 where he has successfully represented plaintiffs in civil cases and the accused in criminal cases.

CRIMINAL SEXUAL CONDUCT (CSC) & UNLAWFUL USE OF THE INTERNET:

The purpose of the Michigan CSC Act is to codify, consolidate, define, and prescribe punishment for a number of sexually assaultive crimes under one heading.  Being convicted of a sexual misconduct crime in Michigan means more than just a fine and community service;  even a fourth degree offense means that you face a possible two years in prison and up to twenty-five years on the Sex Offender Registry pursuant to the Sex Offenders Registration Act (SORA) MCL 28.721 et seq.  The CSC Act contains six substantive criminal offenses, as well as procedural and evidentiary laws. Regarding the six offenses, there are four “degrees” of criminal sexual conduct and two types of assault with intent to commit criminal sexual conduct:

1st degree criminal sexual conduct (CSC-I), MCL 750.520b, life offense felony.
2nd degree criminal sexual conduct (CSC-II), MCL 750.520c, 15-year felony.
3rd degree criminal sexual conduct (CSC-III), MCL750.520d, 15-year felony.
4th degree criminal sexual conduct (CSC-IV), MCL750.520e,2-year/$500.00 misdemeanor.
Assault with intent to commit CSC involving penetration, MCL750.520g(1), 10-year felony.
Assault with intent to commit CSC—second degree, MCL750.520g(2), 5-year felony.

The “degrees” differentiate the elements of the various CSC crimes according to the presence or absence of certain statutory circumstances.The degrees do not refer to a sentence enhancement scheme based on prior convictions. CSC offenders who have previous convictions may be subject to sentence enhancements under the CSC Act itself, MCL 750.520(f) (second or subsequent offenses), or under the habitual offender provisions in the Code of Criminal Procedure, MCL 769.10 et seq. (subsequent felony by person convicted of prior felonies).

Michigan state[1] and Federal law[2] also prohibit internet communication if it is intended to commit, attempt to commit, conspire to commit, or solicit another person to commit certain sexual or CSC related conduct or “assaultive crimes” as defined Michigan statute MCL 770.9a in which the victim or intended victim is a minor (under 18) or is believed by the soliciting person to be a minor. Michigan law makes it a felony with few exceptions to;
A.  Knowingly “possess” child sexually abusive material, as defined by statute, including videos or pictures downloaded or saved on your computer. (Max 4 years/$10,000.00 or both);
B.  Distribute or promote, or finance the distribution or promotion of, OR receives for the purpose
of distributing or promoting, OR conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity. (Max 7 years/ $50,000.00 or both);
C.  Knowingly allowing a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material; (Max 20 years/$100,000.00 or both).

Additionally beginning July 1, 2011, pursuant to amendments in the Michigan Sex Offender Registry Act (SORA) (M.C.L. § 28.721 et seq), if the victim is less than 18 years of age, a person convicted under MCL 750.145(d)(1) for using the internet or a computer system to commit a listed crime, including certain MCL 750.520 CSC related crimes, will be required to register as a Tier II sex offender for 25 years and will not be eligible for removal. (For more information see FAQ to Michigan SORA above)


[1] Generally MCL 750.145 (c) & (d)
[2] 18 U.S.C. § 2422(b)

Free Initial Consultation
Put this experience and knowledge to work for you NOW!  Submit your case information on the form in the ABOUT link above.   I can give you a brief but professional “first-impression” analysis of your case and your situation, which will allow you to take an important first step in defending the case filed against you.

If you have been contacted by the Feds or local police or are concerned about being implicated for a controlled substance or sexual misconduct crime e-mail me your contact information at prj@prjoneslaw.com to schedule an initial consultation.

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