China: 京都所汤建彬律师辩护的河北省最大毒品案成功摘掉恶势力定性

Last Updated: 13 August 2019
Article by King & Capital Law Firm

近日,由京都律师事务所合伙人汤建彬律师承办的河北最大贩毒案由保定市中级人民法院一审宣判,该案系河北警方破获省内单次缴获毒品量最大的贩卖毒品案,起诉书中指控该案第一被告王某某等5人为恶势力犯罪集团。汤建彬律师担任该案第一被告人王某某的辩护人,经充分研究案件,专业细致辩护,成功摘掉"恶势力"定性,8条辩护意见被法院采纳,基本实现了一审辩护目标,为二审量刑及财产辩护打下了较好的基础。

成功摘掉"恶势力"定性

起诉书指控"以被告人王某某为首,被告人刘某某、张某、苏某、李某某组成贩毒恶势力犯罪集团",汤建彬律师提出"起诉书指控的恶势力犯罪集团不能成立"的辩护观点,从将王某某等人认定为恶势力明显错误、认定为犯罪集团明显错误、认定为恶势力犯罪集团明显错误等角度进行了充分说理论证。

一审判决采纳了该辩护观点,认定"王某某、刘某某、张某、苏某、李某某等人为牟取不法经济利益实施的贩毒违法犯罪活动,不具有为非作恶、欺压百姓等特征;王某某、刘某某实施的寻衅滋事犯罪活动属事出有因,且未共同故意多次实施恶势力惯常实施的违法犯罪活动,故王某某等人的罪行不符合恶势力犯罪集团的特征及表现形式,对该辩护意见予以采纳。"

不构成非法持有、储存弹药罪,非法储存枪支罪

  起诉书指控被告人王某某构成非法持有、储存弹药罪,汤建彬律师提出"查获的子弹未被鉴定为刑法意义上的弹药,不能认定构成非法持有、储存弹药罪"的辩护意见。一审判决采纳了该辩护观点,认定"查获的子弹数量未达到立案标准,且部分未做鉴定,指控王某某构成非法持有、储存弹药罪,不予认定,对辩护人关于王某某不构成非法持有、储存弹药罪的辩护意见予以采纳。"

起诉书指控被告人王某某构成非法储存枪支罪,汤建彬律师提出"在案证据无法证明王某某对枪支来源具有主观明知"的辩护意见。一审判决采纳了该辩护观点,认定"王某某对李某某所放枪支的来源未予供述,且无其他证据证实王某某对该枪支来源明知,故指控其非法储存枪支证据不足,对该辩护意见予以采纳。"

 多起贩卖毒品指控未认定

起诉书指控被告人王某某共参与5起贩卖毒品的犯罪行为,汤建彬律师通过会见被告人,仔细研究全案案卷材料,提出王某某仅参与了其中1起,指控王某某参与其余4起贩卖毒品犯罪行为的证据不足。一审判决采纳了汤建彬律师的辩护意见,对该4起指控事实均未予以认定。

一审法院共采纳了8条辩护意见

  一审法院采纳了汤建彬律师提出的共计8条辩护意见,具体如下:

  1.关于贩卖毒品罪的第一起指控,一审法院采纳了辩护律师提出的"鉴定程序存在瑕疵"的辩护意见;

  2.关于贩卖毒品罪的第三起指控,一审法院采纳了辩护意见,认定"冰毒来源于王某某的证据只有王某某在侦查机关的供述,无其他证据印证。对王某某及其辩护人意见予以采纳";

  3.关于贩卖毒品罪的第四起指控,一审法院采纳了辩护意见,认定"冰毒来源于王某某的证据只有王某某在侦查机关的供述,无其他证据印证。对王某某及其辩护人意见予以采纳";

  4.关于非法持有、储存弹药罪的指控,一审法院采纳了辩护意见,认定"查获的子弹数量未达到立案标准,且部分未做鉴定,指控王某某构成非法持有、储存弹药罪,不予认定,对辩护人关于王某某不构成非法持有、储存弹药罪的辩护意见予以采纳。"

  5.关于非法储存枪支罪的指控,一审法院采纳了辩护意见,认定"王某某对李某某所放枪支的来源未予供述,且无其他证据证实王某某对该枪支来源明知,故指控其非法储存枪支证据不足,对该辩护意见予以采纳。"

  6.一审判决在"本院认为"部分采纳了辩护律师提出的"罪名不当"的辩护意见,认定"指控王某某之行为构成非法持有弹药罪,非法储存枪支、弹药罪,罪名不当。对辩护人的该辩护意见予以采纳"。

  7.一审法院采纳了辩护律师提出的"恶势力犯罪集团不能成立"的辩护意见,认定"王某某、刘某某、张某、苏某、李某某等人为牟取不法经济利益实施的贩毒违法犯罪活动,不具有为非作恶、欺压百姓等特征;王某某、刘某某实施的寻衅滋事犯罪活动属事出有因,且未共同故意多次实施恶势力惯常实施的违法犯罪活动,故王某某等人的罪行不符合恶势力犯罪集团的特征及表现形式,对该辩护意见予以采纳。"

  8.一审法院采纳了辩护律师提出的"涉案冰毒未流入社会,社会危险性相对较小"的辩护意见。

  至此,一审阶段性辩护目标已基本实现,为二审量刑辩护、财产辩护打下了较好的基础,一审阶段提出的"不排除共犯的地位作用大于王某某"、"存在法定酌定从轻情节"等辩护意见也为二审阶段的辩护做了铺垫。

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