Ma Shengjian and other drug trafficking cases-how to convict and punish the middleman in drug trafficking crime?
criminal trial reference No.3 of 23 (32 in total)
I. Basic information
Defendant Ma Shengjian, male, born on September 28, 1968, Zhuang nationality, junior high school education, farmer. He was arrested on May 31st, 26 on suspicion of drug trafficking.
Defendant Luo Jiapai, male, born in June 1963, Han nationality, junior high school education, farmer. He was arrested on May 31st, 26 on suspicion of drug trafficking.
Defendant Hu Zechuan, male, born on September 23rd, 1948, Han nationality, primary school culture, farmer. He was arrested on May 31st, 26 on suspicion of drug trafficking.
The People's Procuratorate of Nanning, Guangxi Zhuang Autonomous Region, prosecuted the defendants Ma Shengjian, Luo Jiapai and Hu Zechuan for drug trafficking to the Nanning Intermediate People's Court.
The Nanning Intermediate People's Court found through public hearing that Ma Shengjian, a defendant who lives in Guangxi, got to know Luo Jiapai, a local resident defendant, after running a liquefied gas station in Wenshan County, Yunnan Province, and often talked with Luo about drug trafficking for profit. In mid-April, 21, Luo Jiapai met Wang Zifu (a special case of public security). Speaking of this, Wang Zifu said that heroin could be provided. Luo Jiapai informed Ma Shengjian of this situation and asked Ma to contact the drug purchaser. Ma Sheng informed Hu Zechuan, the defendant living in Binyang, Guangxi, to help find a buyer. After Luo Jiapai and Wang Zifu arrived in Nanning, they informed Ma Shengjian to arrive in Nanning. On April 24th, Hu Zechuan and his drug buyer "Yalong" (at large) rushed from Binyang County to Longan County to meet Ma Shengjian, Luo Jiapai and Wang Zifu who had been waiting here for a long time. Yalong and Wang Zifu agreed that the transaction price of heroin was 13, yuan per kilogram, and Yalong paid a deposit of 13, yuan to Wang Zifu first. After Yalong returned to Binyang to raise all the money, it made a "spot" transaction in Nanning. On the 28th, "Yalong" handed Hu Zechuan RMB5, in Binyang County to Nanning for drug trading, and brought the drugs back to Binyang County for inspection. On the same day, Hu Zechuan, Ma Shengjian and Luo Jiapai were arrested by public security personnel when they arrived in Nanning from Binyang County, and they found RMB5, from Luo Jiapai to buy drugs.
The Nanning Intermediate People's Court held that the defendants Ma Shengjian, Luo Jiapai and Hu Zechuan, knowing that others were selling heroin, still actively introduced, contacted and assisted in the transaction, all of which constituted the crime of drug trafficking. Although Ma Shengjian, Luo Jiapai and Hu Zechuan are not the direct parties to drug trafficking, they all have the intention to help others sell drugs subjectively, and they also cooperate and introduce each other objectively to help others buy and sell drugs, which belongs to the crime of drug trafficking (assisting crime). In the crime of drug trafficking, Ma Shengjian, Luo Jiapai and Hu Zechuan play an auxiliary role and are accomplices. According to Ma Shengjian, Luo Jiapai and Hu Zechuan's criminal facts, nature, plot, degree of harm to society and the impact of special circumstances on the case, the punishment can be mitigated. On March 27, 22, according to the provisions of Article 347, paragraph 2 (1), Article 55, paragraph 1, Article 56, paragraph 1, Article 25 and Article 27 of the Criminal Law of People's Republic of China (PRC), the defendant Ma Shengjian was convicted of drug trafficking, sentenced to 11 years' imprisonment and deprived of political rights for one year; And fined RMB 1,. Defendant Luo Jiapai was convicted of drug trafficking, sentenced to 11 years in prison and deprived of political rights for one year; And fined RMB 1,. Defendant Hu Zechuan was convicted of drug trafficking, sentenced to 1 years in prison and deprived of political rights for one year; And fined RMB 1,.
After the verdict was pronounced in the first instance, Ma Shengjian, Luo Jiapai and Hu Zechuan refused to accept the verdict and appealed separately. Ma Shengjian appealed: 1. The drugs traded in this case do not exist, and it is a trap to lure crime for Wang Zifu to make up his mind that he can provide drugs. The drug trade didn't happen at all. It was an attempted crime. 2. In this case, one of the two drug dealers was at large and the other missed the complaint, so the evidence on which the conviction was based was insufficient and the facts were unclear. The drug trade did not happen in this situation. Wang Zifu said that the drugs that can be provided are fictitious, and the number of drugs as a sentencing standard does not exist and is wrong. I am an accessory and an attempted offender, and my behavior has no substantial harm to society. The original sentence is too heavy. Luo Jiapai appealed that he, Ma Shengjian and Hu Zechuan were trapped by public security organs. Although he subjectively had the idea of helping others introduce drugs, the fact, nature and circumstances of the crime did not bring harm to the society, and the original judgment gave him too heavy a sentence. Moreover, it is not clear about the negotiations between Wang Zifu and Ma Shengjian, Hu Zechuan and Yalong. Hu Zechuan brought the money from Binyang County to Nanning, and then prepared to give it to Wang Zifu. Hu Zechuan appealed that he didn't know Wang Zifu and Luo Jiapai, but he was only responsible for introducing "Yalong" to Ma Shengjian, and he didn't know about the drug trade between "Yalong" and Wang Zifu. He returned to Nanning from Binyang, and Guang Yalong gave him 5, yuan to take him to Nanning, without telling him to buy 1, grams of drugs. After arriving in Nanning, the money was handed over to the Luojia brand. The original judgment was too heavy for him.
The Higher People's Court of Guangxi Zhuang Autonomous Region held that the facts identified in the original judgment were clear and the evidence was true. Appellants Ma Shengjian, Luo Jiapai and Hu Zechuan actively participated in and introduced the drug trade, all of which constituted the crime of drug trafficking. And the amount of drug trafficking is huge and should be punished according to law. Ma Shengjian, Luo Jiapai and Hu Zechuan all played an auxiliary role in the crime of * * *, and they are accomplices, so they should be given a lighter, mitigated or exempted punishment; Ma Shengjian, Luo Jiapai and Hu Zechuan failed to succeed in drug dealing with funds for reasons other than will, which is an attempted crime and can be given a lighter or mitigated punishment according to the crime. According to the specific circumstances of this case, Ma Shengjian, Luo Jiapai and Hu Zechuan can all be mitigated. This original judgment has been reflected in sentencing. As for Ma Shengjian's grounds for appeal, it was verified that the drug trade in this case did not actually happen and was confirmed in the original judgment; Ma Shengjian, Luo Jiapai and Hu Zechuan want to trade drugs with drug money, and they have subjective and objective behaviors to help others sell drugs. In this case, the drug buyer "Yalong" was at large, and the public security spy Wang Zifu was not prosecuted, which did not affect the conviction of Ma Shengjian, Luo Jiapai and Hu Zechuan. Although the drug trade in this case didn't actually happen, Wang Zifu and Yalong had negotiated to determine the quantity and price of the drug to be traded, and Ma Shengjian, Luo Jiapai and Hu Zechuan finally carried out the transaction. The existing evidence in this case fully confirmed the quantity of drugs they knew they were going to trade, so the original judgment was not improper in fact finding and applying the standard of sentencing quantity. With regard to the appeal grounds put forward by the Luo Family School, it has been verified that the Luo Family School, Ma Shengjian and Hu Zechuan all have the intention to help others sell drugs subjectively, and objectively, they have actively implemented the act of introducing and helping others sell drugs, which is harmful to society and should be punished; The existing evidence in this case proves that Luojiapai actively participated in the drug trade with Wang Zifu, Ma Shengjian, Hu Zechuan, "Yalong" and others, and 5, yuan of drug money was also seized from him. There is nothing wrong with the original judgment. As for the reasons for Hu Zechuan's appeal, it was verified that he really only knew Ma Shengjian, but he didn't know Wang Zifu and Luo Jiapai. However, he contacted "Yalong" to discuss the drug trade with Wang Zifu, and "Yalong" was also present when discussing the drug trade with Wang Zifu and knew the content of the discussion. Returning to Nanning from Binyang, Yalong gave him 5, yuan to take to Nanning and told him to buy 1, grams of drugs. When he arrived in Nanning, he took the money and prepared to deal in drugs with Ma Shengjian and Luo Jiapai. To sum up, the appeal grounds put forward by Ma Shengjian, Luo Jiapai and Hu Zechuan respectively cannot be established and will not be adopted. The original judgment was accurate and the sentence was appropriate. The trial procedure is legal. According to the first paragraph of Article 189 of the Criminal Procedure Law of People's Republic of China (PRC), the appeal was dismissed and the original judgment was upheld on March 27th, 22.
second, the main problem
how to deal with the intermediary behavior in drug trafficking crimes?
III. Reasons for Referee
Drug trading must have two basic parties, namely drug sellers and drug buyers, but in judicial practice, not all drug trading activities are directly concluded and completed by drug sellers and drug buyers. Sometimes drug dealers who hold drugs don't know who needs to buy drugs, and people who want to buy drugs don't know who owns drugs for sale. Therefore, the intermediary introducer and intermediary introduction behavior are more common in drug trading activities. According to the role of middlemen in drug trading activities, it can be roughly divided into the following three basic forms: one is to find and introduce drug sellers for drug buyers; The second is to find and introduce drug buyers for drug sellers; Third, there are two kinds of behaviors: finding a drug seller for the drug buyer and finding a drug buyer for the drug seller. As far as drug buyers are concerned, they generally have two purposes: one is to smoke by themselves; The second is to buy for sale. Anyone who buys drugs for personal consumption can be investigated for criminal responsibility for the crime of illegal possession of drugs under certain circumstances, and it is generally not treated as a crime. Anyone who buys drugs for the purpose of drug trafficking and sells drugs, as long as there is one, must be punished as a drug trafficking crime. In view of the complexity of the above situation, the intermediary introduction behavior in drug transactions should also be discussed separately:
1. Intermediaries introduce drug dealers to drug addicts to help them buy drugs. In this case, although the intermediary's behavior objectively helped the drug dealer's drug trafficking activities and promoted the drug trade, it had certain social harm, subjectively, the intermediary did not help the drug dealer to sell drugs intentionally, but only helped the drug addict to buy drugs, so that he could achieve the purpose of taking drugs. Therefore, in principle, it cannot be punished as the * * * offender of drug trafficking. In this regard, the Minutes of the National Symposium on the Trial of Drug Crimes issued by the Supreme People's Court in 2 also clearly pointed out that there is evidence to prove that the perpetrator bought drugs for others to smoke, not for profit, and the amount of drugs did not exceed the minimum standard stipulated in Article 348 of the Criminal Law, which constituted a crime, and both the client and the purchaser constituted the crime of illegal possession of drugs. This provision shows that even those who buy drugs from drug dealers for drug addicts can't be punished for drug trafficking as long as they don't aim at raising prices and making profits from them. If conviction and punishment are needed, criminal responsibility can only be investigated for the crime of illegal possession of drugs.
2. brokers introduce drug dealers to drug buyers for the purpose of drug trafficking and help them buy drugs. In this case, as long as the middleman knows that others are buying drugs for the purpose of selling drugs, he still introduces drug dealers to help them buy drugs, regardless of whether they profit from it or not, indicating that his purpose of selling drugs is the same as that of drug buyers, and he should be punished as a * * * offender of drug trafficking. On the other hand, if the middleman really doesn't know that others are buying drugs for the purpose of drug trafficking, although the middleman's behavior objectively promotes the drug trafficking activities of both parties to the transaction, it can neither establish an accomplice of drug buyers for the purpose of drug trafficking nor an accomplice of drug sellers, that is, it should not be punished as an accomplice of drug trafficking.
3. If the intermediary introducer introduces the drug buyer to the drug seller, and connects the two to facilitate the drug transaction, no matter whether the introduction of Ju Jian benefits from it or not, as long as the intermediary introducer knows that he is selling drugs, he will establish an accomplice of the drug seller and should be punished as a drug trafficking crime.
In this case, the defendants Ma Shengjian and Luo Jiapai actively introduced Wang Zifu to find a buyer for their contact after learning that he could sell drugs. Entrusted by Ma Shengjian, the defendant Hu Zechuan found the drug buyer "Yalong" and actively helped him to buy drugs, knowing that "Yalong" was going to buy drugs for drug trafficking. Ma Shengjian, Luo Jiapai and Hu Zechuan * * * facilitated the meeting between Wang Zifu and Yalong, and were also present when the two sides decided on the price, quantity, deposit payment, trading time and place of drug trading. Subsequently, the three defendants also went to the agreed trading place on time with the drug purchase money delivered by Yalong to assist in drug trading. Although the three defendants are not the direct parties to drug trafficking, their actions have constituted the crime of assisting criminals in drug trafficking. Because the "drug dealer" in this case is a special case of public security, the drug trade did not exist from the beginning, and it was an attempt that could not be committed. However, it cannot be denied that the three defendants subjectively intended to introduce drug trafficking and objectively introduced drug trafficking. In this case, the courts of first and second instance found that the three defendants constituted the crime of drug trafficking, all of them were accomplices (aiding offenders) and attempted offenders, and decided to reduce the punishment accordingly, which was correct in law. As for the sentencing in this case, we believe that from the comprehensive plot of this case, because each defendant in this case has two statutory lenient plots and one discretionary lenient plot at the same time, the mitigation range can still be larger. In this case, the defendant is not a party to drug trafficking, but only arranges others to engage in drug trafficking activities. Although he is an accessory to the crime of drug trafficking, he should be given a lighter punishment or be exempted from punishment according to law. This is one of them. Secondly, because the "drug dealer" in this case is a special case of public security, the drug trade did not exist from the beginning, and it is impossible to actually happen. Therefore, for the defendant who introduced the drug trade in this case, it is also impossible to commit the crime of drug trafficking. Attempted crime can be given a lighter or mitigated punishment according to law. Third, although there are no typical problems such as special circumstances, intentional inducement and quantity inducement in this case, we can also see that the defendant in this case only started to actively implement the criminal act of intermediary introduction and help when he said that he had drugs and wanted to find a buyer. In other words, if there were no such deception, the case might not have happened. We might as well call this situation "the temptation of criminal opportunities." The criminal acts committed by the defendant under the special circumstances of "opportunity temptation" should also be considered as appropriate when sentencing.