Determining who will prosecute; Differences between Arizona, Federal laws and penalties.
A Phoenix AZ man was recently sentenced to 25 years in prison for charges of methamphetamine possession with intent to distribute; and prohibited possession of a firearm. The suspected was prohibited from possessing a firearm because of a prior felony conviction on his record.
In another recent case Phoenix police and federal agents from Homeland Security raided two houses and seized five pounds of meth, heroin and marijuana, 7 kilos of cocaine, and 12 weapons (rifles and handguns). The houses were within 1,000 feet of a high school. Neighbors were unaware of the criminal activity. However, four suspects were booked for narcotics possession in a drug free school zone, as well as weapons offenses.
We will refer to these illustrations to outline differences between state and federal investigations, laws, penalties, and the burden of proof held by the prosecution at both levels below.
Arizona V. Federal Laws and Prosecution
Weapons and drug trafficking charges may be brought in federal court. This exposes a person to mandatory minimum sentences. Sometimes both state and federal criminal laws apply, but often serious drug offense may be prosecuted at a Federal level. Generally, the Federal Government prosecutes the larger scale drug crimes, including drug trafficking, and offenses involving more sophisticated and organized illegal drug activity. The Federal Government generally decides if they will prosecute the drug charged in violation of The United States Code (USC) Controlled Substances Act.
The Federal Government also prosecutes large scale drug trafficking offenses involving drug crimes committed across state lines, or involve multi-state operations. In December 2013, the Drug Enforcement Administration (DEA) announced on its combined efforts with Arizona law enforcement officials that uncovered a 1.6 million dollar drug laundering operation. So it is common for both the State and Government to partner together for purposes of the investigation itself. Other agencies are commonly involved including Homeland Security and Counter Narcotics Alliance as part of the investigations involving major drug offenses.
Though state laws vary, in general, Federal punishments are usually more severe than the penalties at the state level. If the state prosecutes the State Penalties apply. Generally, if the Federal Government conducts the investigation and prosecution the defendant will be exposed to the more harsh federal mandatory sentencing guidelines and penalties.
Under Federal law, it is a federal crime to possess a firearm “in furtherance of” a drug trafficking crimes. The burden of proof required by the State to convict the defendant lies with the State of Arizona in this case. The State prosecution must prove “beyond a reasonable doubt” that the firearm was possessed with the intent to advance or promote the commission of the drug-related offense.
Regarding federal drug charges and gun possession, there must be a connection between the guns and the offense. In other words it’s not enough for the prosecutor to simply point to the possession of the firearm and possession of the drugs. In the case described above, the prosecutor would need to show how the rifles and handguns were connected to possession of the illegal drugs. For example, he or she would need to show that they were carried in case competitors tried to steal the drugs or in case where the “drug deal went south” so to speak.
Sometimes to bridge a gap in the evidence, the prosecutor will call an experienced detective who is an expert on drug dealing to testify that drug dealers used their guns to intimidate competitors and protect their business. This has been insufficient in past cases where the detective is unable to present his or her methods and principles in a reliable, consistent fashion. The credibility of this type of “expert” can be challenged by an experienced criminal defense attorney.
Federal law also prohibits anyone who has been previously convicted of a felony (a crime punishable by imprisonment for more than a year) from possessing a firearm or ammunition. A felon who possesses a gun may be punished with 10 years in prison. Federal law also restricts gun possession for those who have been convicted of misdemeanor domestic battery.
Arizona Drug Crimes and Weapons Laws
While Arizona has less stringent laws related to gun possession in some ways. However some provisions are stricter than others. Violations of Weapons laws under A.R.S. 13-3102 can be very serious alone and those convicted are exposed to harsh penalties.
In Arizona, possession or use of a firearm during the commission of a felony drug offense and is as a Class 4 felony. All felonies in Arizona expose a defendant to prison terms, large fines, and felony criminal record if they are convicted.
In the second illustration above, multiple Arizona criminal law violations resulted in what is know as “aggravated factors” under Arizona sentencing guidelines. This includes a drug crime committed within a school safety zone which is within 1,000 feet of a school or its grounds. This offense subjects a person to increased punishments under A.R.S. 13-709 sentencing guidelines in violation of A.R.S. 13-3411.
In addition, possession of illegal drugs which exceeded the “Threshold Amounts” in violation of A.R.S. 13- 3401. (36) for each of the drug classifications heroin, meth, marijuana and cocaine. Drug convictions involving quantities exceeding the Threshold Amount call for aggravated prison terms. The higher the quantity found to be over the Statutory Threshold Amount, the longer the prison sentencing terms.
Certain weapons are wholly prohibited in Arizona, including short barrel shotguns and bombs. Carrying a concealed weapon without a permit (or carrying a deadly weapon into certain places like school grounds or an election polling place) is a Class 1 misdemeanor. The least serious type of felony is a Class 6 felony. Selling or transferring a deadly weapon to someone who is not allowed to have a deadly weapon qualifies as a Class 6 felony. Such an offense can be punished by up to 1 year in prison.
If a person discharges a firearm in an occupied area in order to further gang activity or give a firearm to someone else knowing they will use it in commission of a felony, you may be punished by up to 3 ½ years’ imprisonment for a Class 3 felony. In the second real life incident described at the beginning of this post, anyone who gave or sold the guns to the men who possessed the guns and drugs knowing they would use it as protection while drug trafficking, could be punished for a Class 3 felony.
Arizona also has random gunfire laws, better known as “Shannon’s Law” under A.R.S. 13-1307, named after a teenager who was killed by random gunfire in Arizona. If a person shoots a firearm into or within the limits of any municipality in Arizona, they will face Class 6 felony charges, whether or not anyone is physically harmed as a result of the firearm being randomly discharged.
Drug and weapon crimes can be extremely serious and complex. To protect your rights, future, and freedom, you will need to consult an experienced criminal defense attorney to discuss your matter and options for defense. Early intervention and retention of a qualified criminal attorney is key to increase your chances of mitigating the penalties you will be exposed to, if you face charges. If you face drug or weapons charges contact the Law Office of James Novak. James Novak, DUI & Criminal Defense Attorney will provide you with a free and confidential consultation regarding your matter. If retained, he will tailor and provide strong defense on your behalf.
Aggravated Assault: The High Cost of Harming a Police Officer, Arizona Criminal Defense Attorney Blog, August 3, 2012
Assault Convictions Require “Intent” and “Knowledge” or “Recklessness”, Arizona Criminal Defense Attorney Blog, June 1, 2012