924c federal law
Posted 08 January 2010 - 05:34 PM
Posted 08 January 2010 - 05:59 PM
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.
Posted 08 January 2010 - 06:03 PM
Posted 09 January 2010 - 05:52 AM
Posted 09 January 2010 - 06:30 AM
Posted 09 January 2010 - 06:32 AM
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.
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.
Posted 09 January 2010 - 09:28 AM
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.
Posted 09 January 2010 - 11:01 AM
Posted 09 January 2010 - 07:48 PM
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.
Posted 10 January 2010 - 04:12 PM
Posted 10 January 2010 - 06:08 PM
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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