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924c federal law


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#1 adamoadflictatio

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Posted 08 January 2010 - 05:34 PM

My brother in law was charged with two crimes, both in a federal court. I am wondering if the second charge, 924c, possesion of a firearm during a drug trafficing crime could actually have been charged. There are no statements by anyone ever stating that he had a gun , ever during any crime, and the house he was living in, in which the guns were located, was never involved in any drug trafficing, or anything. Everything that took place, allegedly, was at other residences. His guns were all legally bought, registered and locked in a gun safe.  They added the charge based solely on the fct that he was a gun owner, who committed a drug trafficing crime, allegedly. Does anyone know if this is applicable? Can he be charged for this due to the fact that he was basically a gun owner, and nothing was ever said in anything that a gun was used, brandished, or anything? Especially if no drugs, or alleged transactions eveer took place at his residence? The only evidence taken from the home with guns was $66,000 , none of whice was used in a planned buy by investigators. Basically  the cash, and what others said against him was the only evidence used to convict him. Can anyone help me on this matter?

#2 Tax_Counsel

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Posted 08 January 2010 - 05:59 PM

The statute is 18 U.S.C. § 924©, which provides enhances penalties if he "uses or carries a firearm" or "in furtherance of any such crime possesses a firearm" in a drug trafficking case. What that means is that his mere possession of the firearms is a problem if the government can successfully argue that he possessed them to further his drug trafficking enterprise. In that regard, finding a large amount of cash (which presumably is from the drug activity) in the residence where the guns were found is one factor that the government can argue points to the guns being used to support the drug activity. For example, the government may argue that the guns were there to help protect the illegal cash he was making off the drug crimes. The guns do not have to be carried or brandished in a drug sale transaction to violate this provision.

Needless to say, your brother really needs an attorney. These are serious charges. If convicted of violating 18 U.S.C. § 924©, the minimum sentence is 5 years in prison. The court is specifically precluded from granting probation for this charge, and the court may not run this sentence concurrently with any other sentence, meaning that the sentence for this and the other drug trafficking charge must be stacked. Simply put, he's looking at a long stretch in prison if convicted here.




#3 LegalwriterOne

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Posted 08 January 2010 - 06:03 PM

924© applies when the gun facilitates or has the potential of facilitating the drug trafficking offense.  Keeping guns with drug money would meet that requirement. 


#4 adamoadflictatio

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Posted 09 January 2010 - 05:52 AM

If fact , the guns were not registered to him, but to his wife. And they were locked away in the basement of the house in a gun safe. He was alreasdy charged and convicted of these two crimes, and was given a 21 year sentence. He is actually going after his attorney, because he found in court transcripts that his attorney did not in fact act in his best interest by making statements that were not true. Like saying that the guns were used in a crime. So how does the factor of the guns not belonging to him, or being registered to him change the outlook on this? And thanks for the responses from those who have responded.

#5 LegalwriterOne

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Posted 09 January 2010 - 06:30 AM

If he was convicted at trial, he has the right to appeal.  He cannot sue his attorney for malpractice unless he is first exonerated on all charges.

#6 Tax_Counsel

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Posted 09 January 2010 - 06:32 AM

"If fact , the guns were not registered to him, but to his wife. And
they were locked away in the basement of the house in a gun safe."

The statute is not concerned with ownership or registration of the guns. It is concerned with possession or use of the guns. If he had access to the guns (e.g, had a key or access to the key for the safe), he may be considered to be in possession of them. The specific facts would, of course, be important.

"He
was already charged and convicted of these two crimes, and was given a
21 year sentence."

Well, that's not surprising. As I said before, if he got convicted on these offenses, he'd be looking at some significant prison time.

"He is actually going after his attorney, because he
found in court transcripts that his attorney did not in fact act in his
best interest by making statements that were not true. Like saying that
the guns were used in a crime."

Can't comment on that without having seen the transcripts. If his attorney provided ineffective representation, he may be able get the conviction overturned on that basis. He ought to see a new attorney asap to determine what recourse he has at this point, if any.


#7 adamoadflictatio

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Posted 09 January 2010 - 09:28 AM

ok, some new information. The money my brother in law had, as it turns out, was given to him as part of the estate after his grandmother died. A sworn affadavit by my mother in law, and his uncle was given stating that this money was in fact given to him via the family due to the passing of his grandmother. SO does the fact that this sworn affadavit, and the fact that none of the money in his possesion was acquired during any agency drug buy, since none were done in the investigation, change any of this?

#8 LegalwriterOne

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Posted 09 January 2010 - 10:05 AM

A "sworn affidavit" isn't worth the paper it's printed on.  If that much money was inherited, there would have to be a paper trail.  There's no way a jury would believe a family member's claim to that effect and if the money was in small bills, the lie would too obvious.... Further, you don't KNOW what the attorney investigate or didn't investigate.  At best, you know what the defendant *thinks* the attorney did.  If he was unhappy, he could have said something long before the trial ever started.  Defendants who get convicted always want to blame the attorney.  The attorney didn't get him into the situation and he can't walk on water to get him out. 



#9 adamoadflictatio

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Posted 09 January 2010 - 11:01 AM

Well, there was a paper trail. A will, stating the fact that he was to get a certain amount of money. As far as blaming the attorney, he isnt blaming the attorney for the situation he is in, and dosent expect the attorney to walk on water. There are good attorneys out there. His attorney, in which we found out after the fact, fialed to do many many things , as far as things we told him, he never did anything about in court. And his attorney failed to tell of information he knew, and stated things incorrectly which led to the case ending up being worse then it should have been. I am in no way saying my brother in law is a saint, because of those he associated with. It just scares me to think that based off information given by others, and a sum of cash, is all that is needed to send someone away. I have read the transcripts of every inverview, all reports , investigations, and all court transcripts. And basically , thats all that they had on him.  SO there is no need to become defensive, I am in no way attacking all attorneys in this, I am suggesting that his attorney got in way over his head , and took a case he knew nothing about in regards to the law, and in procedure. We are now learning after the fact, on what the attorney should have done.  And how things should have been laid out.  It just seems to me that the 924c is just a way to add something in a few cases to someone who has committed a crime. I believe if it was brandished, fired or carried in a crime, then the charge should be applied. But if it was never done in that way, and locked in a safe, adding such a charge is a cowards way to add more time to someones sentence. I came on here for advice, and not to be treated like an attorney basher. I am clearly nbot that. I believe his attorney in this particular case was wrong in his actions, and did not act in the best interest of his client. Simply because he didnt know what he was getting into.  And its too bad that after the fact after dilligent research, on part of tha family, friends, and my brother in law and in the law classes he is taking inside, that we are learnig of these facts about this particular attorney. SO if you have helpful advice, ie, cases, laws, etc...then please respond.

#10 Tax_Counsel

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Posted 09 January 2010 - 07:48 PM

"The money my brother in law had, as it turns
out, was given to him as part of the estate after his grandmother died.
A sworn affadavit by my mother in law, and his uncle was given stating
that this money was in fact given to him via the family due to the
passing of his grandmother."

The sworn affidavit is not admissible evidence. He needed to have someone testify (like the estate administrator) about what he received from the estate and/or admissible records showing the inheritance (e.g. court certified copy of the final distribution order of the probate court). He could have then tried to argue that the money was not from drug sales but inheritance money. Just understand that it's a tough argument to swallow. Estates generally do not make distributions to beneficiaries in cash. The executors want a paper trail, including an endorsed check, to cover themselves, and beneficiaries generally want checks because they are safer. Furthermore, most people don't keep such large sums of cash in their home; they put the money in a bank account, again for safety. As the previous response indicated, if the cash was in small denominations, that too is contrary to how an estate would be distributed.

Rather, the government would argue that having a large amount of cash in small bills in the home is not consistent with a story of an inheritance but is consistent with the way drug sale operations work. It would be up to jury to decide what to believe. I'd expect most juries to be skeptical that over $60,000 in cash lying around in the house was from an inheritance — the evidence would have to pretty compelling to overcome the appearance that it's connected with drug dealing. But he could have tried to make the argument. Note that his lawyer could not have put witnesses on the stand that he knows will lie. So if the story of the inheritance was not true and the lawyer knew it, he could not put witnesses up there to commit perjury.

The problem is that if he and his lawyer didn't present evidence and arguments that the cash was from an inheritance at trial, it's too late to do it now. He can include that as part of his claim that the attorney provided ineffective representation. That's about all the good this information will do him now.


#11 adamoadflictatio

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Posted 10 January 2010 - 04:12 PM

I understand that it seems hard to swallow. My mother in law, and her brother were the administrators of the will. Though her will only stated that her cash reserves (that which she stashed in the house) would be given equally to the two grandchildren. And its funny, that this old owman paid for everything in cash, and stashed money in her home. The house was gone through three times before being sold, and each time, money was found in things. In fact, she has been dead more then three years and money is still being found by family in her belongings. so, I guess since it would be hard to prove, its not a good idea to mention where the money came from, but in my research, I found something else interesting, in that u.s. supreme court decision in us v. baily court said money and guns is not a trigger for 924c and that they had to be 'used' ex. brandished  or displayed in a threatening manner etc. There is a wealth of info out there, and I do appreciate the help, and points of view.

#12 Tax_Counsel

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Posted 10 January 2010 - 06:08 PM

adamoadflictatio said...

I found something else interesting, in that u.s. supreme court decision
in us v. baily court said money and guns is not a trigger for 924c and
that they had to be 'used' ex. brandished  or displayed in a
threatening manner etc.


That's true, but it doesn't help your brother-in-law. You see, Congress did not like the result in Bailey (516 U.S. 137, (1995)), so it changed the law to add the language about possession of the gun. So, assuming that your brother-in-law's offense occurred after the statute was changed, this opinion of the court is not going to help.



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