Legal News GavelThe federal Controlled Substances Act (CSA) defines five schedules of controlled substances and prescribes penalties for their production, distribution, and possession. Texas drug crime laws contain similar schedules. The CSA includes a list of substances in each schedule, but it also gives some authority to the Department of Justice (DOJ) to modify or adjust the schedules. The DOJ has delegated this authority to the Drug Enforcement Administration (DEA). One factor considered in the scheduling of controlled substances involves the potential for medical use. A different federal agency, the U.S. Food and Drug Administration (FDA), deals with drugs used for medical purposes. Recently, the FDA announced that it will allow further research into the medical potential of a Schedule I controlled substance known as MDMA. While this research could lead to FDA approval of MDMA for medical purposes, the DEA or Congress would still have to remove it from Schedule I.

The CSA places the most highly restricted controlled substances in Schedule I. MDMA, scientifically known as 3,4-methylenedioxymethamphetamine and colloquially known as ecstasy, among other names, was not among the drugs originally added to Schedule I by Congress. The DEA designated MDMA as a Schedule I “hallucinogenic substance” in the 1980s. 21 C.F.R. § 1308.11(d)(11). Texas places MDMA in Penalty Group 2. Tex. Health & Safety Code § 481.103(a)(1).

The CSA’s criteria for inclusion in Schedule I are “high potential for abuse,” a lack of “currently accepted medical use,” and “a lack of accepted safety for use…under medical supervision.” 8 U.S.C. § 812(b)(1). Other well-known Schedule I controlled substances include heroin, lysergic acid diethylamide (LSD), and marijuana. Id. at §§ 812(c)(I)(b)(10), (c)(9), (c)(10). Many controlled substances commonly associated with the illegal drug trade are actually listed in Schedule II, including cocaine and methamphetamine. Id. at § 812(c)(II)(a)(4), 21 C.F.R. § 1308.12(d)(2).

Legal News GavelThe legal status of marijuana at the state level is changing across the country, with more than half of all U.S. states now allowing the possession and use of marijuana to some extent. Federal law, however, still considers marijuana to have no medical use and therefore no acceptable reason for possession, cultivation, or sale. The disparity between federal law and many state laws has produced numerous unusual and unfortunate results. A ruling by the Ninth Circuit Court of Appeals from last year, while not binding on Texas, ought to be concerning to many Texas drug crime defendants, since the court held that federal law may bar lawful medical marijuana users from purchasing firearms. Wilson v. Lynch, 835 F. 3d 1083 (9th Cir. 2016).

Marijuana is a Schedule I controlled substance under federal law. 21 U.S.C. § 812(c)(I)(c)(10). Texas enacted a medical marijuana law in 2015 that allows the use of “low-THC cannabis,” with a prescription, to treat “intractable epilepsy.” See Tex. Occ. Code § 169.001 et seq., Tex. Health & Safety Code § 487.001 et seq. This is one of the most restrictive medical marijuana laws in the country, but it is still far less restrictive than federal law. The Wilson case involves Nevada law, which exempts individuals from prosecution for marijuana possession if they have a valid state registration card. See Nev. Rev. Stat. § 453A.010 et seq.

Federal law makes it a crime for certain individuals to possess firearms in a manner that affects interstate commerce, which has often been interpreted as prohibiting the sale of a firearm to someone covered by the statute. This includes “unlawful user[s] of…any controlled substance.” 18 U.S.C. § 922(g)(3), 21 U.S.C. § 802(6). The law further states that it is a crime for someone to sell a firearm to someone they know or have “reasonable cause to believe” meets this criterion. 18 U.S.C. § 922(d)(3).

Legal News GavelCourts have identified numerous exceptions to the Fourth Amendment’s search warrant requirement, meaning that law enforcement may conduct a search without first obtaining a warrant if they can demonstrate that the situation falls under a recognized exception. They must still demonstrate probable cause to believe that the search would yield contraband or evidence of criminal activity. The “border search exception,” however, goes further than most exceptions. It states that law enforcement, specifically the U.S. Border Patrol and U.S. Customs and Border Protection (CBP), can conduct searches of people and property entering the U.S. without a warrant, and without probable cause under some circumstances. Two Texas drug crime-related searches and seizures at a border crossing in early 2017, using high-tech imaging equipment, demonstrate how searches at or near the border can be different from searches elsewhere.

The border search exception is based in part on the sovereign right to control entry to the country. The U.S. Supreme Court has held that customs officials may search mail and other items arriving at the border without a warrant. United States v. Ramsey, 431 U.S. 606 (1977). With regard to searches of people and their property, the court has held that people have a lessened expectation of privacy at border crossings. Florida v. Royer, 460 U.S. 491, 515 (1983). Law enforcement can stop vehicles at fixed checkpoints for the purpose of immigration enforcement, even without any specific suspicion about individual vehicles, and they can refer some vehicles to a “secondary inspection area.” United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976).

Congress has given immigration officials the authority to perform these types of immigration enforcement functions up to 100 miles from international borders within the U.S. 8 U.S.C. § 1357(a)(3). When law enforcement officials are not operating out of a fixed checkpoint, such as by pulling over individual vehicles on public roads, the Supreme Court has held that they must be able to demonstrate probable cause. Almeida-Sanchez v. United States, 413 U.S. 266 (1973). Fixed checkpoints therefore provide law enforcement with their greatest amount of power to conduct warrantless searches.

Legal News GavelThe First Amendment to the U.S. Constitution guarantees the right to freedom of speech. Generally speaking, the government cannot restrain people’s speech through criminal penalties. Certain forms of speech, however, are not protected. The government may enact restrictions on speech when the restriction is closely related to a legitimate government function or public interest, and it is narrow enough to serve that purpose without burdening other rights. The U.S. Supreme Court recently ruled on a challenge to a state law that made it a felony for individuals with certain criminal convictions to use social media networks. No comparable restriction exists in Texas criminal statutes, but the ruling could still have an impact here. The court found that the statute violated the First Amendment, since the state could achieve its purpose in other, less restrictive ways. Packingham v. North Carolina, 582 U.S. ___ (2017).

The law at issue in Packingham deals with registered sex offenders. The precise definition of a registered sex offender varies from one state to the next, and it is frequently subject to amendment by lawmakers. Politicians often couple the term with an express or implied statement about danger to children. Protecting children from harm is a legitimate public interest, but the extent to which lawmakers may go in furtherance of this interest is a matter of ongoing debate.

Under § 14-202.5 of the North Carolina General Statutes, a registered sex offender commits a felony if they access a “commercial social networking Web site” of which they know minors can become members. The statute defines “commercial social networking Web site” very broadly based on four criteria:  the site (1) obtains revenue from membership fees or advertising; (2) “facilitates social introduction” between people; (3) allows the creation of individual pages that could contain personal information; and (4) enables users to communicate with one another.

Legal News GavelThe policies of the U.S. Department of Justice (DOJ) regarding federal drug sentencing have gone through several major changes recently. Former Attorney General (AG) Eric Holder undertook a major overhaul several years ago, seeking to focus attention away from low-level drug offenses and onto major ones. In May 2017, however, AG Jeff Sessions rescinded Holder’s policy and issued a new memorandum directing federal prosecutors to “charge and pursue the most serious, readily provable offense.” The memorandum does not specifically mention drugs and drug-related offenses, but that is where it is likely to have the most far-reaching effects.

Federal sentencing guidelines derive, in part, from a list of factors established by Congress in 1984 that courts must consider when imposing a sentence. These include “the nature…of the offense and the…characteristics of the defendant,” the effect of the sentence on society at large, the need to maintain consistent sentencing practices for similar offenses, and “the need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a).

A “mandatory minimum” sentence gives courts no discretion to adjust the sentence downward. Such sentences became particularly widespread with the Anti-Drug Abuse Act of 1986, Pub. L. 99-570 (Oct. 27, 1986). That law established lengthy minimum sentences for various drug offenses, such as 10 years for manufacturing, distributing, or possessing with intent to manufacture or distribute one kilogram of heroin or five kilograms of cocaine. 21 U.S.C. §§ 841(b)(1)(A)(i), (ii). According to the United States Sentencing Commission (USSC), 47.9 percent of all federal drug convictions in fiscal year 2015 involved an offense with a mandatory minimum penalty.

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Legal News GavelMore than half of the states in the U.S. now allow the use of medical marijuana to some extent. At the same time, federal law still treats marijuana as having “no currently accepted medical use in treatment in the United States.” 21 U.S.C. §§ 812(b)(1)(B), (c)(I)(c)(10). This has, obviously, created conflicts between federal and state law enforcement. Congress relieved this tension somewhat in 2014, when it passed legislation known as the Rohrbacher-Farr amendment as part of a spending bill. This amendment prohibits the U.S. Department of Justice (DOJ) from spending funds on law enforcement activities that interfere with lawful state medical marijuana systems, which range from the extensive in California to the restrictive in Texas. Texas marijuana lawyers are aware, however, that officials in the new White House administration have sought to use federal resources against state medical marijuana. So far, the Rohrbacher-Farr amendment remains in force.

California was the first state to allow the use of medical marijuana with a doctor’s prescription. Voters approved Proposition 215 in November 1996, also known as the “Compassionate Use Act.” Cal. Health and Safety Code § 11362.5. Twenty years later, in November 2016, voters in that state approved Proposition 64, which authorized the sale, purchase, and possession of limited amounts of marijuana for recreational use. Id. at § 11362.1. Most states have not gone this far, but states that allow medical marijuana in some form outnumber those that do not. Texas is among the states that allow medical marijuana use, although it is strictly limited to “low-THC cannabis” to treat “intractable epilepsy.” Tex. Health & Safety Code Ch. 487, Tex. Occ. Code Ch. 169.

The U.S. Supreme Court has rejected at least two challenges to the applicability of federal marijuana laws over state medical marijuana laws. The court rejected a common-law medical necessity defense in U.S. v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001). Justice Thomas, writing for the court, noted that federal criminal law generally does not recognize common-law defenses unless Congress specifically includes them in a statute. He concluded that “a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act.” Id. at 491. The court held that the Commerce Clause of the U.S. Constitution allows a federal prohibition of marijuana production, distribution, and possession, regardless of state medical marijuana laws, in Gonzales v. Raich, 545 U.S. 1 (2005).

Legal News GavelProsecutors are obligated to turn over evidence that could potentially exonerate a defendant in a criminal case. This is known as the Brady rule, after the Supreme Court’s ruling in Brady v. Maryland, 373 U.S. 83 (1963). A federal appellate court recently ruled on a defendant’s claim that the prosecution violated his rights by failing to disclose information about criminal charges against two federal agents for conduct during the investigation of the defendant. The court was harshly critical of the two agents, who each received lengthy prison sentences, but it held that their criminal activity did not affect the reliability of the government’s case against the defendant. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

The Brady rule arose from a murder prosecution against two defendants. The named defendant, Brady, maintained that the other defendant committed the murder. The prosecution withheld a statement by the other defendant confessing to committing the murder alone. Without that evidence, Brady was convicted. The Supreme Court held that the prosecutors had violated Brady’s rights under the Due Process Clause of the Fourteenth Amendment. It is now common for defendants to request all “Brady evidence” from prosecutors during criminal cases.

The defendant in Ulbricht was convicted of multiple counts in connection with his operation of an online marketplace known as “Silk Road,” where people could anonymously exchange contraband, such as drugs and false identification documents, using the virtual currency known as Bitcoin. As part of the investigation into Silk Road, law enforcement agents would obtain the cooperation of low-level administrators and then pose as them using their online Silk Road accounts. A Secret Service agent and a Drug Enforcement Administration (DEA) agent were eventually charged with using this access to the Silk Road system to steal millions of dollars worth of Bitcoins.

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Legal News GavelThe criminal justice system must constantly adapt to changes brought by the increased use of the internet. Legal doctrines that once only applied to physical searches of people’s homes must now regulate “virtual” searches. Several years ago, federal prosecutors charged an individual with multiple offenses arising from his alleged administration of an online marketplace for illegal drugs and other contraband. It was reportedly the first prosecution involving the drug trade on the so-called “dark net.” A jury convicted the defendant on all seven counts in the government’s indictment, which included drug-related offenses, racketeering, and computer fraud. A judge sentenced him to life imprisonment. In May 2017, a federal appellate court denied his appeal, in which he argued in part that his Fourth Amendment rights had been violated. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

Federal law allows law enforcement to monitor electronic communications under strict limitations. Two types of surveillance allowed by federal law are known as “pen registers” and “trap and trace devices.” A pen register “records or decodes dialing, routing, addressing, or signaling information transmitted by” a telephone or other device. 18 U.S.C. § 3127(3). A trap and trace device “captures the incoming electronic or other impulses,” allowing law enforcement “to identify the source of a wire or electronic communication.” Id. at § 3127(4). Neither device may capture or record “the contents of any communication.” Id. They provide law enforcement with a record that shows the source, destination, and duration of phone calls and other communications.

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Legal News GavelCyber crime, as an area of legal practice, regularly presents new challenges on both sides of the criminal justice system. Despite new technologies and new laws, prosecutors often use laws that have been around since telephones were still relatively new to take on alleged schemes that rely heavily on the internet. Federal prosecutors recently brought fraud charges against a pair of defendants accused of an elaborate scheme involving false claims of online copyright infringement. United States v. PH, et al., No. 0:16-cr-00334, indictment (D. Minn., Dec. 14, 2016). The case illustrates many of the unusual challenges of cyber crime law.

Copyright protection gives an author of creative works, such as books and films, the exclusive right to use, distribute, display, or license the use of a copyrighted work. The use of a copyrighted work without the copyright owner’s permission may constitute copyright infringement and could potentially result in liability to the owner. Willful copyright infringement may carry criminal penalties in certain circumstances. 17 U.S.C. § 506, 18 U.S.C. § 2319. In any case of alleged non-criminal copyright infringement, the copyright owner is responsible for pursuing the alleged infringer.

The PH case does not involve alleged criminal copyright infringement. The defendants were charged with mail and wire fraud for allegedly sending out fraudulent claims of copyright infringement with settlement demands. Federal law prohibits any “scheme or artifice to defraud” that affects interstate commerce, such as through the use of the U.S. Postal Service—more commonly known as mail fraud. 18 U.S.C. § 1341. Fraudulent schemes that involve the use of interstate or foreign “wire, radio, or television communication” are categorized as wire fraud. Id. at § 1343.

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Legal News GavelThe Fourth Amendment prohibits police from searching a person or their premises, or from seizing their property, without a warrant issued by a court upon a showing of probable cause. The War on Drugs, which began in the 1970s, considerably expanded law enforcement’s powers, and laws passed in the last 15 years as part of the “War on Terror” expanded them even further. Now, tactics that were originally authorized for counter-terrorist activities are primarily used in drug enforcement operations. A bill passed by Congress in 2001 authorized Delayed Notification Search Warrants (DNSWs), also known as “sneak and peek” warrants. Civil rights advocates charge that DNSWs allow law enforcement to engage in what are essentially legalized burglaries of private residences, raising serious Fourth Amendment concerns.

When executing a search warrant, officers must normally follow the “knock-and-announce” rule, meaning they must identify themselves as police and state their purpose before forcibly entering a residence. After executing a warrant, officers must provide the owner of any seized property with a copy of the warrant and a receipt for the property. Fed. R. Crim. P. 41(f)(1)(C). A court may issue a “no-knock” warrant when officers allege exigent circumstances that risk the destruction of evidence. This type of warrant sometimes results in a show of overwhelming force by police, but some courts have begun to restrict this practice on constitutional grounds.

In October 2001, Congress passed the USA PATRIOT Act. The law’s stated purpose was to “provid[e] appropriate tools required to intercept and obstruct terrorism”—giving it the title “PATRIOT” as an acronym. It established procedures for the issuance of DNSWs, which allow the delay of any required notice to the owner of the premises to be searched for “a reasonable period” after the execution of the warrant. Pub. L. 107-56 § 213 (Oct. 26, 2001), 115 Stat. 286; 18 U.S.C. § 3103a(b). A DSNW should “prohibit[] the seizure of any tangible property…except where the court finds reasonable necessity for the seizure.” Id.

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