Wednesday, November 23, 2011

Free in Kentucky: Fake Drug Dealers Selling Fake Drugs: Committing ...

Free in Kentucky: Fake Drug Dealers Selling Fake Drugs: Committing ...: Let’s examine an extremely hypothetical situation.* We’ll call our subject “Antoine.” Antoine is from Kentucky and he has simple tastes. ...

Fake Drug Dealers Selling Fake Drugs: Committing Real Crime?

Let’s examine an extremely hypothetical situation.*  We’ll call our subject “Antoine.”  Antoine is from Kentucky and he has simple tastes.  He likes science and Metallica.  Antoine also likes to party.  So one day Antoine takes his buddy Pete to New York City for a big Metallica concert at Yankee Stadium.  They get off the big metal bird, and stare up at all the pretty lights, mouths agape.  “New York!” they exclaimed, “We’re finally here!”

Pete and Antoine walk around the streets of the big city, saying hello to all the locals.  For some reason, the locals aren’t quite as talkative.  Mostly they just scowl at Pete and Antoine as the Kentucky boys walk past, grinning.  The boys from the Bluegrass walk along, trying to find a watering hole that isn’t too expensive.  After settling in at a little dive bar and having a couple of $24 bourbons, a conversation takes place similar to the following:

Antoine:  Hey, man.  I like to party.  Let’s get some party supplies.  By that, I mean “drugs.”
Pete:  Say no to drugs, Antoine.  How many times have I told you that?
Antoine:  Don’t be a nerd, man!  Let’s smoke some drugs.

So Pete reluctantly agrees to walk with Antoine as Antoine searches for drugs.  Antoine figures the quickest way to acquire the contraband is to walk up to guys who stand on street corners, and ask “Hey, friend – do you have any drugs?  I have a bunch of money, and I sure would love to buy some drugs.”

“How much money you got, hillbilly?”  A helpful New York native inquires.  “A hundred dollars.”  Antoine replies.  “Well ain’t that a monkey’s uncle,” the New Yorker exclaimed, “I’m having a sale today.  I’ll give you two bags of drugs for exactly $100.  That way it’s like you get a free bag of green with that yay.”  Nearly instantly, the helpful New York native alleviates Tony, I mean Antoine, of his money.   Quickly and stealthily, Antoine walks away with his two bags.

Back at the little dive bar, Antoine slips into a bathroom stall to inspect the merchandise.  He fumbles with the baggies inside baggies and can barely contain his excitement. It’s almost like Christmas morning.  Inside that bathroom stall in the little dive bar in New York City, Antoine feels the disappointment of a hundred lifetimes as he discovers that his “drugs” consist of one (1) baggie of shredded green paper and one (1) baggie of fresh baby powder.

The question for today is:  In Kentucky, is it illegal to sell someone fake drugs?

KRS 218A.350 govern prohibited practices concerning substances that simulate controlled substances and the penalties associated therewith.  It states, in pertinent parts:

(1) No person shall sell or transfer any substance, other than a controlled substance, with the representation or upon creation of an impression that the substance which is sold or transferred is a controlled substance.
(4) No person shall manufacture, package, repackage, advertise, or mark any substance, which is not a controlled substance, in such a manner as to resemble a controlled substance, for the purpose of creating the impression that the substance is a controlled substance.
(5) For the purpose of determining whether this section has been violated, the court or other authority shall include in its consideration the following:
            (a) Whether the noncontrolled substance was packaged in a manner normally used    for the illegal sale of controlled substances;
            (b) Whether the sale or attempted sale included an exchange of or demand for money or other property as consideration, and whether the amount of the consideration was substantially greater than the reasonable value of the   noncontrolled substance.
(7) Any person who violates any of the provisions of this section shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses.


Let’s assume the above scenario took place on the streets of Louisville, and not New York.  For the purposes of this conversation, assume the rest of the facts stay the same.  Antoine will be happy to know that the Not Really Drug dealer violated subsection (1) of KRS 218A.350.  By explicitly stating that the substances being sold were “drugs,” the Not Really Drug dealer represented that the substances were controlled substances.  By virtue of doing so, he committed a Class A misdemeanor, assuming this was a first offense.

Let’s change the fact pattern.  And for the purposes of this conversation, let’s assume that drug dealers and Not Really Drug dealers and purchasers don’t like to speak in explicit terms when negotiating a transaction.  Assume that Antoine was simply walking by, and the Not Really Drug dealer whispered, “you need that stuff?”  Antoine wanted to purchase some drugs, and although no explicit representation of controlled substances was made, Antoine held out $100.  Not Really Drug dealer gave Antoine the little, individually packaged baggies, and walked away.  Assuming that the baggies contained the same legal substances as above, did Not Really Drug dealer break the law? 

In this situation, Not Really Drug dealer didn’t violate subsection (1).  However, he most likely violated subsection (4), and certainly violated the balancing test under subsection (5).  A court or jury would consider the fact that the legal substances were packaged in a manner that is popularly used for packaging controlled substances.  Further, the amount of money Antoine paid Not Really Drug dealer is certainly exorbitant for a purchase of green shredded paper and baby powder.

Either way, Not Really Drug dealer has committed a crime.  He should speak to a Louisville drug charge lawyer immediately for a free consultation.

If you have been charged with a trafficking in a controlled substance in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, call 502.618.4949 and speak with an experienced Louisville drug charge lawyer at Gruner & Simms, PLLC.  The initial consultation is free.

Gruner & Simms, PLLC.
Results.  As fast as the law will allow.

*This is a purely hypothetical scenario - all names in this story are purely fictional.  Any resemblance to actual people or actual happenings or actual science fairies are purely coincidental and should be ignored.  

Tuesday, November 15, 2011

Free in Kentucky: Bob Costas is Good at Cross Examination. Jerry Sa...

Free in Kentucky: Bob Costas is Good at Cross Examination. Jerry Sa...: Seriously, I was just going to leave the Jerry Sandusky-Penn State-Joe Paterno-child abuse allegation-scandal alone. I was. Honestly. I w...

Bob Costas is Good at Cross Examination. Jerry Sandusky Gave Bob a Live Interview on Television. That was a Bad Idea.

Seriously, I was just going to leave the Jerry Sandusky-Penn State-Joe Paterno-child abuse allegation-scandal alone.  I was.  Honestly.  I wrote the post about whether failing to report child abuse is a crime, and as far as I was concerned, I was finished.

But then something stupid had to happen.

Last night, Jerry Sandusky went on live television wherein he and his attorney allowed Bob Costas to conduct an interview on NBC’s Rock Center.  Sandusky's attorney, Joseph Amendola, verified Sandusky's voice and later piped up to assert his client's innocence.  Chances are you have never heard of Joseph Amendola.  And if you had, it was probably because you heard the allegations that Joseph Amendola fathered a child with a 16 year old girl.  Around the same time he was representing the 16 year old girl for her emancipation.  When Joseph Amendola was nearly 50 years old.

But you sure have heard of him, now.  Now he’s no longer known as that lawyer who fathered a kid by an underage girl when he was nearing retirement age.  Now he’s Jerry Sandusky’s lawyer.  And apparently he LOVES the media attention for himself.  Because nothing about Jerry Sandusky giving a live TV interview could have possibly been good for Jerry Sandusky’s best interests.  And it went about as well as you would imagine.

"We were showering and horsing around and he [the boy] actually turned all the showers on and was actually sliding across the floor and we were, as I recall, possibly like snapping a towel," Jerry creepily stated to Bob.  Then Jerry contended that he was not a pedophile, but that he did love children and awkwardly said that he used to touch them but that he wasn’t sexually attracted to them.

When asked by Costas to concede any wrongdoingSandusky said, "I shouldn't have showered with those kids."

Basically the interview was ripe with disturbing awkwardness, incriminating statements, and Sandusky stumbling around his words to try to convince Bob Costas that he wasn’t a pedophile.  Then Bob Costas put on a tutorial on how, when cross examining a defendant, the question is often much more important for the jury to hear than the answer.  Take notes:

BOB COSTAS:  Shortly after that in 2000, a janitor said that he saw you performing oral sex on a young boy in the showers-- in the Penn State locker facility. Did that happen?

JERRY SANDUSKY:  No.

BOB COSTAS:  How could somebody think they saw something as extreme and shocking as that when it hadn't occurred, and what would possibly be their motivation to fabricate it?

JERRY SANDUSKY:  You'd have to ask them.

BOB COSTAS:  It seems that if all of these accusations are false, you are the unluckiest and most persecuted man that any of us has ever heard about.

JERRY SANDUSKY:  (LAUGHS) I don't know what you want me to say. I don't think that these have been the best days of my life.

Wow.  If the prosecutor in Jerry Sandusky’s criminal case has been sitting around with a pen and a pad thinking, “I wonder how I can ask some seriously damaging questions that make Jerry look like a child molester regardless of the answer to those questions,” said prosecutor can look no further.

In summary, if you are charged with a criminal offense, don’t talk to the police and don’t give a live interview to Bob Costas.  Nothing good can come of either.  They are not your friends.  They are not trying to help you.  Don’t help them build a case against you.

Gruner & Simms
Results.  As fast as the law will allow.


Questions answered in this blog post:  Why did Jerry Sandusky give a live interview with Bob Costas; who is Jerry Sandusky's lawyer; what are the allegations about Jerry Sandusky's lawyer fathering a child with a 16 year old girl; what are the allegations that Joseph Amendola fathered a child with a 16 year old girl; give me an example of a media attention seeking attorney putting his own career advancement above his clients best interests; how can I find a good Louisville sex crimes lawyer?

Sunday, November 13, 2011

Free in Kentucky: Joe Paterno, Mike McQueary, Jerry Sandusky. Is "F...

Free in Kentucky: Joe Paterno, Mike McQueary, Jerry Sandusky. Is "F...: The recent Penn State scandal has been examined 6 ways from Sunday by the press. Rather than re-hash all of the factions of the Penn circus...

Joe Paterno, Mike McQueary, Jerry Sandusky. Is "Failing to Report" a Crime?

The recent Penn State scandal has been examined 6 ways from Sunday by the press.  Rather than re-hash all of the factions of the Penn circus, this blog post will focus on one particular issue.  In Kentucky, does someone who witnesses child abuse have an obligation to report it?


The question conjures all sorts of philosophic debate concerning the deeds of "bad" people versus the apathy of "good" people.  Is it ok to say nothing if you didn't harm anyone, personally?  Is someone who refuses to report child abuse causing some sort of abuse by failing to report?  Does it "encourage" future abuse?


Bear in mind whilst we analyze the Penn State situation that everyone is innocent until proven guilty.  I have no idea whether the allegations are true or not, and this blog isn't meant to condemn anyone or suggest that someone has, in fact, committed any crime.


That being said...

One of the most shocking accounts detailed in the grand jury report of the Penn State case stems from the testimony of Mike McQueary.  McQueary is one of Paterno's assistant coaches.

On March 1, 2002, McQueary claims to have seen Sandusky having anal sex in the Penn State locker room shower with a boy who appeared to be about 10 years old.  McQueary said he went to the facility around 9:30 p.m. to put shoes in his locker and pick up some recruiting tapes. He testified he heard "rhythmic slapping sounds" coming from the showers. When he looked in that direction, McQueary said, Sandusky and the boy also saw him.  McQueary went to Paterno's house the next day and "reported what he had seen," the report says.

Let’s take a look at Kentucky law.  If the situation alleged above actually happened at a Kentucky University, would any of the people involved have a legal obligation to report the child abuse?  For today’s conversation, we will assume that the aforementioned account is true and complete.

KRS 620.030 governs the duty to report dependency, abuse or neglect.  The first subsection starts with the following sentence: “Any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused shall immediately cause an oral or written report to be made to a local law enforcement agency or the Department of Kentucky State Police; the cabinet or its designated representative; the Commonwealth's attorney or the county attorney; by telephone or otherwise.

So immediately, we can tell that the law on this subject is clear.  If the Penn State allegations were true, and occurred in Kentucky, we know that not only McQueary, but also Joe Paterno, and anyone else McQueary informed, would have an affirmative duty to report the child abuse to local or state law enforcement, the Cabinet for Health and Family Services, or a prosecutor in their area.

I’ll have to admit that I was wrong on this issue.  Before I did today’s (admittedly limited) research, I assumed nobody would have a duty to report this kind of crime unless they were in a position of trust and authority like a teacher, foster parent, etc.  However, the first sentence of KRS 620.030 is very clear that the obligation to report applies to “Any person,” not just those in special positions of trust and authority.

But what about consequences?  What sort of penalty does the failure to report carry?

Subsection (5) of KRS 620.030 states, “Any person who intentionally violates the provisions of this section shall be guilty of a: (a) Class B misdemeanor for the first offense; (b) Class A misdemeanor for the second offense; and (c) Class D felony for each subsequent offense.

A class B misdemeanor carries a penalty of up to 90 days in jail and a fine.  So, if the allegations are true, and assuming this was the first time McQueary had any indication that Sandusky was abusing children, and if they were in Kentucky, McQueary and Paterno would be looking at up to 90 days in jail for failing to report the abuse to the proper* authorities.

If you have any more questions on this area of law, feel free to call me.

Gruner & Simms, PLLC.
Results.  As fast as the law will allow.

*Note that “head coach” is not one of the authorities listed in KRS 620.030.  So McQueary’s report would have been inadequate unless he actually contacted one of the proper authorities.


Questions answered in this blog post:  In Kentucky, is failing to report child abuse illegal; is failing to report a crime a crime in itself; what are the criminal charges in the Penn State scandal; can Joe Paterno be charged with criminal charges; can Mike McQueary be charged with criminal charges; were the coaches who knew about the alleged child abuse from Jerry Sandusky supposed to report the child abuse; what is the penalty in Kentucky for failing to report child abuse; how do I find a good Louisville criminal defense lawyer; how do I find a good Louisville child abuse lawyer?

Sunday, November 6, 2011

Free in Kentucky: Fliers Distributed Advertising "Heroin For Sale" L...

Free in Kentucky: Fliers Distributed Advertising "Heroin For Sale" L...: KGW, a news organization in Portland, Oregon, reports that a North Portland home was raided Tuesday after fliers throughout the neighborhood...

Fliers Distributed Advertising "Heroin For Sale" Lead to Inevitable Drug Bust

KGW, a news organization in Portland, Oregon, reports that a North Portland home was raided Tuesday after fliers throughout the neighborhood advertised drug sales at the address, police said.  There were seven adults inside the home at the time of the police raid, six of whom were arrested on various drug charges.  Officers said they found nearly 20 grams of marijuana, more than 10 grams of heroin, a sawed-off shotgun, thousands of dollars in cash and the materials for a methamphetamine lab inside the home.  Police indicated that "At one point a neighbor gave officers an 8" by 10" flier found in the neighborhood that said 'Heroin for sale' and gave the address and the names of the dealers."

A flyer.  That said, “Heroin for Sale.”

HEROIN FOR SALE
I hope I don’t actually have to tell any of you this, but DON’T DO THAT.  It is a bad idea, regardless of whether you actually have heroin for sale.  The thing that bothers me about this story is that there were 6 people who are alleged to be involved.  Think about that for a minute.  One idiot coming up with the idea to put out a flyer advertising his drugs for sale is plausible.  But for that idiot to run the idea past not 1, not 2, but 5 other individuals, and not get ONE objection from the group, is just baffling.