Month: May 2013

Knowledge that you are carrying a gun into a public place required before a conviction

Most people assume that in order to commit a crime the person must have knowledge that their act is criminal.  This criminal intent is known as mens rea in Latin.  Without such knowledge, the crime is essentially strict liability.  Do the act, even if you had no idea that you were committing a criminal act, and you are guilty.    While this does not seem fair, our legislature to show they are tough on crime has created several crimes where knowledge of a certain element is not required for a conviction.  In the Minnesota Supreme Court case of State v. Ndikum, The Court noted that such statutes that do not require criminal intent are disfavored.  Furthermore, where a statute does not specifically exclude criminal intent, then the State is required to prove knowledge of the criminal act with proof beyond a reasonable doubt before a Defendant may be convicted.  Read below for a summary of this case and click here to read the entire opinion.

State v Ndikum (SUP CT, 07-11-2012, A10-1728, Hennepin Co)

Possession of Pistol, Elements, Knowing Possession, MS 624.714

Defendant is an attorney who lawfully purchased a pistol. As instructed, he only carried the pistol between office and home. However, one day he went to court and the pistol was in his briefcase.

At trial, the Defendant said he didn’t know the pistol was in the briefcase.  The Defendant asked for a jury instruction that required the State to prove he had knowledge that the gun was in his briefcase when he brought the brief case to court.

The Trial court granted the jury instruction on the felony count, but refused to give the instruction on the gross misdemeanor count.  After jury deliberations, the Defendant was found not guilty on the felony, but guilty on the gross misdemeanor count.

On appeal, the court of appeals reversed the conviction and the State appealed the reversal to the State Supreme Court.  The Minnesota Supreme Court affirmed the  reversal of conviction. In their Opinion, the Minnesota Supreme Court notes that offenses that do not require no mens rea are disfavored.   (As a side note, Mens Rea means “guilty mind” Latin.  In more common language, As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and willfulness.) In making its decision, The Minnesota Supreme Court also notes that when a statute is silent as to mens rea, as the statute is here, that is not enough to not require mens rea as an element for the State to prove beyond a reasonable doubt at trial.

Report all income when receiving benefits from an injury at work to avoid prison

When you receive payments for injury while at work, there are certain requirements that must be followed regarding income received from other sources.  It is important that these regulations be adhered to.  If these are not adhered to, the government will not only seek restitution, but may also seek criminal penalties, including prison.  Read the case summary below for an example.  Click here to read the Court Opinion in its entirety.

 

United States v. Danny Dillard Case No: 10-2672. E.D. AR

Defendant Dillard pled guilty to four counts of knowingly filing false statements
with the Railroad Retirement Board (RRB). District court sentenced Dillard
to 2 months imprisonment and ordered him to pay $52,691.47 in restitution
to the RRB under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §§
3663A-3664 . Dillard appeals the order of restitution.

Defendant Dillard suffered injuries while working for Union Pacific Railroad. After
determining that Defendant Dillard could no longer perform his work as a conductor, the RRB awarded him an occupational disability annuity. As a condition of receiving the annuity, Defendant Dillard was required by law to report certain
information regarding any employment and income while on disability. Defendant Dillard failed to disclose to the RRB that he owned a business, occasionally undertook additional employment, and received income from these ventures. The
district court ordered Defendant Dillard to pay restitution of $52,691.47—the aggregate amount of benefits the RRB paid to Dillard during 2005 and 2006.

Ordinarily, when the defendant receives benefits from a government agency
through fraud, the “actual loss” to the agency “is the amount paid minus
the amount that would have been paid in the absence of fraud.” Defendant Dillard
argues this amount should have been 0 because had he not filed the a false
statement, the agency would have paid him the same amount. This may have
been true, except that when he failed to comply with the RRB regulations,
he benefits ceased to exist. AFFIRMED.

How do I earn acceptance of responsibility to reduce my federal sentence?

One way to receive a lower sentence in Federal Court is to receive “acceptance of responsibility” from the Court.  Acceptance of responsibility may result in a 2 or 3 level decrease in the sentence guideline calculation.  However, it is important to remember that simply entering a guilty plea does not necessarily mean that the Court will grant the acceptance of responsibility decrease.  See the summary below and link to the complete case on how acceptance of responsibility works in federal sentencing.

 

United States v. Noel Jackson, No: 09-3433 Western District of
Arkansas

 

Syllabus: Guilty verdict to two counts of bank robbery and one count of
brandishing a firearm during a crime of violence. Sentenced to 420 months.
Jackson argues procedural err in denial of his request for a two level
reduction for acceptance of responsibility and declining to depart from the
career-offender Guideline. Jackson entered into the plea agreement only on
the morning of trial. The probation who interviewed Jackson for the PSR
testified Jackson denied committing one of the bank robberies.

Held: Affirmed. (1) a defendant is not entitled to the reduction “as a
matter of right” simply because he enters a guilty plea. “The key issue is
whether the defendant has shown a recognition and affirmative
responsibility for the offense and sincere remorse.” United States v.
Wineman, 625 F.3d 536, 539 (8th Cir. 2010). District court did not err in
denying Jackson acceptance credit because evidence showed that Jackson
never fully accepted responsibility for one of the robberies. In his PSR
interview Jackson said he entered his plea “not because he acknowledged his
guilt but because he lacked confidence in his attorney’s trial skills.”
Court also properly considered Jackson’s delay in pleading guilty until the
day of trial after the government had prepared for trial. (2) No appellate
review of a district court’s “denial of a request for a downward departure
unless the district court ‘had an unconstitutional motive in denying his
request’ or failed to ‘recognize[] that it had the authority to depart
downward.’ United States v. Anderson, 570 F.3d 1025, 1034 (8th Cir. 2009).”
Jackson made neither argument. Careful review of the sentencing record
reveals no unconstitutional motive by the district court or failure to
recognize its discretionary authority to depart.

 

Click here to read the entire opinion

Memorial Day – Thank our service men and women and veterans

Happy Memorial Day.

Be sure to remember our serving military and veterans today. See below for a link to an interview with 107 year old Doughboy William J. Lake who served in World War I. I have also included the Bill of Rights which our service men and women protect every day.

107-year-old William J. Lake, one of several dozen American WWI
William J. Lake, 107, one of several dozen American WWI veterans Richard Rubin interviewed in the last decade. (Source: YouTube)

This is an excerpt from Richard Rubin’s ‘The Last of the Doughboys: The Forgotten Generation and Their Forgotten World War‘, the story of a decade-long odyssey to recover the stories of the forgotten world war.

Rubin interviewed dozens of American World War I veterans for the book, including William J. Lake, a private in the U.S. Army’s 91st (“Wild West”) Division who was drafted in 1917 and served with a machine gun crew in France.

At the time of the interview, in October 2003, Lake was 107; he died in June 2004.

The Last of the Doughboys is being published this week by Houghton Mifflin Harcourt.

Click here to see and read more.

Thank a Veteran today for protecting your Bill of Rights:

The Bill of Rights

Ratified December 15, 1791

Amendment I
Freedoms, Petitions, Assembly
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment II
Right to bear arms
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment III
Quartering of soldiers
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
Search and arrest
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
Rights in criminal cases
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
Right to a fair trial
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment VII
Rights in civil cases
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment VIII
Bail, fines, punishment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX
Rights retained by the People
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Amendment X
States’ rights
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Miranda only required for in custody interviews

One thing our Veterans have done for us is to protect our Right to Remain Silent and our Right to An attorney before speaking to the government. In other countries, you really do not have a choice. You will speak to the government, or you will be taken in and forced to speak. The requirement that the government notify you of your right to an attorney arises out of the Miranda warning. However, Miranda is not required every time law enforcement speaks to a suspect. Instead, Miranda is only required for in custody interviews.
In the case below, Mr. Lowen learned that inviting officers in to his home is not an in custody interview requiring Miranda. There are several factors that go into the analysis as to whether the statement is given while in custody. In this case, the Court Ruled that A reasonable person in defendant’s position would have felt at liberty to terminate the interrogation and cause the officers to leave, and, as a result, defendant was not in custody at the time of his interrogation and his statements,
made without Miranda warnings, were admissible.

U.S. v. LOWEN
647 F.3d 863 (2011)
UNITED STATES of America, Appellee,
v.
Edward Joseph LOWEN, Appellant.
No. 10-3668.
United States Court of Appeals, Eighth Circuit.
Submitted: June 15, 2011.
Filed: July 29, 2011.
Katherine M. Menendez, AFPD, argued, Minneapolis, MN, for Appellant.
James Lackner, AUSA, argued, St. Paul, MN, Kevin Ueland, AUSA, on the brief, Minneapolis, MN, for Appellee.
Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
________________________________________

[ 647 F.3d 865 ]

GRUENDER, Circuit Judge.
A jury found Edward Lowen guilty of one count of bank robbery, a violation of 18 U.S.C. § 2113(a). Lowen appeals, and for the reasons that follow, we affirm.
I. BACKGROUND
On February 26, 2010, a man wearing aviator-style sunglasses, a baseball cap, white tennis shoes, work-style gloves, and a camouflage jacket entered the First National Bank of Walker in Akeley, Minnesota, and approached teller Janet Sheets. The bank’s surveillance camera footage showed the man hand a duffel bag to Sheets while pointing a gun at her. Sheets testified that the man demanded money and said “I’m not kidding.” Sheets placed approximately $2,525 into the duffel bag from her cash drawer and watched the man exit the bank and drive away in a dark blue Chevrolet Tahoe. Lori Robbins and Joyce Farrington, two other employees on duty that day, provided similar accounts of the robber, describing him as wearing a black baseball cap, aviator-style sunglasses, a camouflage jacket, and white tennis shoes.
Seeking tips as to the robber’s identity, law enforcement released a still image of the robber from the bank’s surveillance camera footage to the media. Tammy Jo Eischens, a woman married to Lowen’s ex-wife’s cousin, viewed the surveillance image in the Park Rapids Enterprise newspaper and informed law enforcement, and later testified at trial, that she recognized the man in the image to be Lowen. Eischens had known Lowen for fifteen years and saw him in person three to four times per year, including two weeks prior to the robbery. Law enforcement officers investigating the robbery also discovered that Lowen was the registered owner of a dark blue Chevrolet Tahoe.
Based on these tips, five law enforcement officers, including Investigator Colter Diekmann and Special Agent Chad Museus, traveled to Lowen’s residence in Park Rapids, Minnesota. Upon arriving, the officers noticed a dark blue Chevrolet Tahoe parked in Lowen’s driveway. Investigator Diekmann and Special Agent Museus approached the residence and knocked on the door, but there was no answer. Soon after, Investigator Diekmann and Special Agent Museus approached a man walking near the road leading to Lowen’s residence, identified themselves as law enforcement investigating a bank robbery, and inquired as to the man’s identity. The man confirmed that he was Lowen. Investigator Diekmann asked Lowen if he would speak with law enforcement, to which Lowen responded that he would. After Lowen allowed the officers into his home, Investigator Diekmann and Special Agent Museus questioned Lowen around his dinner table. Lowen denied owning a camouflage jacket or white tennis shoes and admitted that he was unemployed and having financial difficulties. Officers asked Lowen if they could search the Chevrolet Tahoe and his residence, and Lowen agreed to both. Upon searching the vehicle, officers discovered a dark-colored baseball cap, a pair of work-style gloves, and a pair of aviator-style sunglasses. Upon searching the wooded area near Lowen’s home, they also recovered a pair of white tennis shoes.
Based on this evidence, two of the officers left the premises to obtain a search warrant while another officer read Lowen his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, Lowen requested the assistance of counsel. Officers executed the search warrant and, from inside of Lowen’s home, seized a photograph of Lowen wearing camouflage clothing, a black fleece duffel bag similar
[ 647 F.3d 866 ]

in appearance to the duffel bag used by the robber to carry the stolen money from the bank, a money order dated March 1, 2010, in the amount of $1,100, and an instruction manual for an air pistol similar in appearance to the weapon used by the robber.
During the investigation that followed, law enforcement officers discovered that, on February 28, Lowen used $1,500 in cash to purchase chips at the Northern Lights Casino in Walker, Minnesota. A casino manager testified that Lowen played blackjack for approximately ten hours on February 28 and March 1. Officers also determined that Lowen had purchased an air pistol on February 15— eleven days before the robbery—at a Wal-Mart store in Park Rapids, Minnesota. The instruction manual recovered at Lowen’s home matched the model Lowen had purchased.
Lowen moved to suppress his statements made during his questioning prior to receiving the Miranda warnings, including his denial that he owned camouflage clothing or white tennis shoes and his admission that he “could use some money.” A magistrate judge1 concluded that Lowen was not in custody at the time of the questioning and recommended denying the motion. The district court2 adopted the magistrate judge’s report and recommendation and denied Lowen’s motion, and Lowen proceeded to trial. At trial, Lowen stipulated that he owed the State of Minnesota $7,713.20. At the conclusion of the Government’s case, Lowen moved for a judgment of acquittal pursuant to Fed. R.Crim.P. 29, and the district court denied the motion. Lowen renewed his motion for judgment of acquittal after the jury was charged, and the district court again denied the motion. The jury found Lowen guilty of one count of bank robbery. The district court sentenced Lowen to 71 months’ imprisonment. Lowen appeals his conviction, challenging the denial of his motion to suppress, the sufficiency of the evidence, and the admission of Sergeant Cory Aukes’s identification testimony.
II. DISCUSSION
A. Motion to Suppress
Lowen first argues that the district court should have suppressed the statements he made to Investigator Diekmann and Special Agent Museus because he was in custody and was not advised of his Miranda rights. “Miranda requires that law enforcement agents provide certain prescribed warnings before conducting an interrogation of a suspect who is in custody.” United States v. New, 491 F.3d 369, 373 (8th Cir.2007). “The Supreme Court in Miranda stated that warnings are required when interrogation is `initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'” Id. (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). “When reviewing the denial of a motion to suppress, we review the district court’s factual findings for clear error….” United States v. Muhlenbruch, 634 F.3d 987, 995 (8th Cir.2011). “We review de novo the district court’s legal conclusion that [the defendant] was not `in custody’ at the time of his interview.” Id.
The question “whether a suspect is `in custody’ is an objective inquiry.” J.D.B. v. North Carolina, 564 U.S. ___,
[ 647 F.3d 867 ]

131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave,” id. (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)), “or in this case, to terminate the interrogation and cause the [officers] to leave,” New, 491 F.3d at 373. “Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” J.D.B., 131 S.Ct. at 2402 (quoting Thompson, 516 U.S. at 112, 116 S.Ct. 457); see also United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc).
“Rather than demarcate a limited set of relevant circumstances, we have required police officers and courts to `examine all of the circumstances surrounding the interrogation.'” J.D.B., 131 S.Ct. at 2402 (quoting Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). In the instant case, both the parties and the district court relied heavily on the six non-exclusive factors expounded by our court in United States v. Griffin, 922 F.2d 1343 (8th Cir.1990), for evaluating whether an individual is in custody for purposes of Miranda.3 “There is no requirement… that the Griffin analysis be followed ritualistically in every Miranda case.” United States v. Czichray, 378 F.3d 822, 827 (8th Cir.2004). “When the factors are invoked, it is important to recall that they are not by any means exclusive, and that `custody’ cannot be resolved merely by counting up the number of factors on each side of the balance and rendering a decision accordingly.” Id. at 827. “The ultimate inquiry must always be whether the defendant was restrained as though he were under formal arrest.” Id. at 828; see also LeBrun, 363 F.3d at 720.
Lowen asserts that the district court clearly erred when it made certain factual findings regarding the interrogation. Lowen concedes that he was “not physically restrained” but argues that he was “physically controlled” because Investigator Diekmann and Special Agent Museus determined where Lowen would be questioned and “asked him to strike certain poses for photographs.” We disagree. It is undisputed that Diekmann and Museus asked Lowen if he would speak with them and, later, if they could enter Lowen’s home in order to continue their questioning and that Lowen consented to both of these requests. Although Diekmann and Museus questioned Lowen around his dinner table, Lowen was not confined to any portion of his home during the questioning. Also, the record reveals that
[ 647 F.3d 868 ]

Lowen voluntarily agreed to be photographed. Lowen contends that the district court clearly erred when it determined that officers did not use deceptive techniques because Diekmann and Museus never informed Lowen that he was their only suspect. This determination was not clearly erroneous. The record reveals that Diekmann and Museus informed Lowen that they were investigating the robbery of the First National Bank and that his vehicle and physical description matched that of the robber. As such, the district court did not clearly err when determining the factual setting of the interrogation.
Given these circumstances, we conclude that a reasonable person in Lowen’s position would have felt at liberty to terminate the interrogation and cause the officers to leave. Lowen voluntarily acquiesced to Investigator Diekmann’s and Special Agent Museus’s requests to respond to questioning. Only two of the five officers present questioned Lowen, and the questioning occurred in Lowen’s home. “When a suspect is interrogated in the comfort and familiarity of his home, a court is less likely to find the circumstances custodial.” United States v. Axsom, 289 F.3d 496, 502 (8th Cir.2002). Moreover, Lowen’s freedom of movement was not restrained by handcuffs or any other means. The officers also did not confine Lowen during the questioning and did not arrest him upon the completion of the questioning. Diekmann and Museus’ failure to inform Lowen that he was not under arrest is not dispositive, see United States v. Flores-Sandoval, 474 F.3d 1142, 1147 (8th Cir.2007), as the touchstone of our inquiry remains whether Lowen was restrained as though he were under formal arrest, see LeBrun, 363 F.3d at 720.
In light of the totality of the circumstances surrounding Lowen’s questioning, we agree with the district court that Lowen’s freedom of movement was not restrained to the degree associated with a formal arrest. See J.D.B., 131 S.Ct. at 2402. Thus, he was not in custody at the time he made the relevant statements. See United States v. Lawson, 563 F.3d 750, 753 (8th Cir.2009) (determining that the defendant was not in custody because he “was not restrained, he was interviewed in his own home, … he was not physically threatened, and he was interviewed for less than one hour”). Accordingly, the district court did not err when it denied Lowen’s motion to suppress.
B. Motion for Judgment of Acquittal
Lowen also asserts that the district court erred when it denied his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29, arguing that the Government presented insufficient evidence on which the jury could find him guilty. “We review the denial of a motion for acquittal de novo.” United States v. Donnell, 596 F.3d 913, 924 (8th Cir.2010) (quoting United States v. Thropay, 394 F.3d 1004, 1005 (8th Cir.2005)), cert. denied, 562 U.S. ___, 131 S.Ct. 994, 178 L.Ed.2d 831 (2011). “Where a party challenges the evidence underlying his conviction, the standard of review is very strict, and the jury’s verdict is not to be lightly overturned.” United States v. Finch, 630 F.3d 1057, 1060 (8th Cir.2011) (quoting United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004)). “In reviewing the sufficiency of the evidence on appeal, the court views the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury’s verdict.” Id. (quoting United States v. Bates, 77 F.3d 1101, 1104-05 (8th Cir.1996)). “[W]e will reverse only if no reasonable jury could have found the defendant guilty beyond a
[ 647 F.3d 869 ]

reasonable doubt.” United States v. Brewer, 624 F.3d 900, 906 (8th Cir.2010) (quoting United States v. McCraney, 612 F.3d 1057, 1063 (8th Cir.2010)), cert. denied, 563 U.S. ___, 131 S.Ct. 1805, 179 L.Ed.2d 670 (2011).
Lowen’s central contention is that the Government failed to present sufficient evidence that he was, in fact, the bank robber because none of the bank tellers was able to positively identify him as the robber, law enforcement did not find the weapon used by the robber or any cash in Lowen’s home, and a number of the articles found in Lowen’s home and vehicle did not match exactly the items worn by the robber. We disagree. Eischens, who had known Lowen for fifteen years and saw Lowen two weeks prior to the robbery, testified that Lowen was the man in the surveillance image. While Lowen contends that Eischens was not credible because she is an employee of the Hubbard County Sheriff’s office and is related through marriage to Lowen’s ex-wife, we have made it clear that a jury’s credibility determinations are “virtually unassailable on appeal,” Brewer, 624 F.3d at 906 (quoting United States v. Nguyen, 608 F.3d 368, 376 (8th Cir.2010)), and “we must presume that the trier of fact resolved any conflicts in favor of the Government,” id. at 906-07 (quoting United States v. Littlewind, 595 F.3d 876, 882 (8th Cir.2010)).
The Government presented additional identity evidence that could lead a reasonable jury to conclude that Lowen was the robber. Lowen’s white tennis shoes, aviator-style sunglasses, work-style gloves, and dark-colored baseball cap all match the attire of the robber described by witnesses. Lowen argues that he “raised substantial questions” regarding whether the clothing worn by the robber matched the clothing recovered from Lowen’s residence and vehicle, but we must assume that the jury resolved these conflicts in favor of the Government. See id. The Government presented to the jury a photograph of Lowen wearing camouflage clothing and a black fleece duffel bag recovered from Lowen’s residence similar in appearance to the duffel bag used by the robber. Moreover, Lowen did not answer truthfully when Diekmann and Museus asked him if he owned camouflage clothing or white tennis shoes. See United States v. Van, 543 F.3d 963, 965 (8th Cir.2008) (“Van’s lie to the police about how long he was in Barthol’s apartment … w[as] additional evidence supporting the jury’s verdict….”). Additionally, the Government presented evidence that Lowen purchased an air pistol similar in appearance to the weapon used in the robbery just eleven days before the robbery occurred and that Lowen spent a total of $2,600 in cash—just $75 more than what the robber stole from the First National Bank—within days of the robbery despite owing more than $7,700 to the state of Minnesota. Finally, the Government showed that Lowen owned a dark blue Chevrolet Tahoe like the vehicle described by witnesses as the one used by the robber to flee the bank. We conclude that the evidence was sufficient for a reasonable jury to conclude that Lowen was guilty of robbing the First National Bank. Consequently, the district court properly denied Lowen’s motion for judgment of acquittal.
C. Admission of Sergeant Aukes’s Testimony
Lowen also argues that the district court abused its discretion by improperly applying Fed.R.Evid. 7014 when it
[ 647 F.3d 870 ]

allowed Sergeant Cory Aukes—a witness called by Lowen—to testify, on cross-examination by the Government, that he believed Lowen “absolutely looks like the person on the videotape.” Sergeant Aukes’s only previous encounter with Lowen was a brief one, while Lowen was in custody awaiting trial. Lowen suggests that the district court abused its broad discretion because Sergeant Aukes had no greater familiarity with Lowen than the jury and had no dealings with the defendant prior to his arrest. See United States v. Cruz, 285 F.3d 692, 700 n. 4 (8th Cir. 2002) (“An identification witness’s testimony must be rationally based on the perception of the witness, and is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.” (internal citations and quotation marks omitted)).
Assuming, without deciding, that it was error to admit Aukes’s testimony, we conclude that the error was harmless. “An error is harmless if we conclude that no substantial rights of the defendant were affected and that the error did not influence or had only a very slight influence on the verdict.” United States v. Tenerelli, 614 F.3d 764, 771 (8th Cir.2010) (quoting United States v. Eagle, 498 F.3d 885, 888 (8th Cir.2007)), cert. denied, 562 U.S. ___, 131 S.Ct. 1589, 179 L.Ed.2d 488 (2011). “An error in admitting testimony may be harmless if the testimony is corroborated by independent sources, or if it amounts to cumulative evidence on matters already before the jury.” United States v. Melecio-Rodriguez, 231 F.3d 1091, 1094 (8th Cir.2000) (per curiam). In this case, as we have discussed, the Government presented ample identification evidence from independent sources, including the testimony of Eischens, who knew Lowen for fifteen years and saw Lowen two weeks before the robbery, as well as the items of clothing discovered at Lowen’s residence that matched the clothing worn by the robber. Thus, we conclude that Sergeant Aukes’s additional identification was cumulative and had no more than a slight influence on the verdict. Accordingly, any error in admitting Aukes’s testimony was harmless.
III. CONCLUSION
For the foregoing reasons, we affirm Lowen’s conviction.

On Wisconsin! Making suits out of used human skin by designer The Plainfield Ghoul

It is always good to be the leader in things: Wisconsin lays claim to one of the countries most infamous criminals. Ed Gein infamous for his grave robbing, hanging bodies in his garage, making clothing and lamp shades out of human skin and serving sausage to his neighbors is one of Wisconsin’s most well known criminals. His crimes inspired such movies as Psycho, Texas Chainsaw Massacre and Silence of the Lambs. Want to read more about Ed Gein? See my blog at www.patflanagandefense.com. You can use the following link as a starting point. I copied the introduction from the site to get you started.
http://en.wikipedia.org/wiki/Ed_Gein
Edward Theodore “Ed” Gein (pron.: /ˈɡiːn/; August 27, 1906[1] – July 26, 1984) was an American murderer and body snatcher. His crimes, committed around his hometown of Plainfield, Wisconsin, gathered widespread notoriety after authorities discovered Gein had exhumed corpses from local graveyards and fashioned trophies and keepsakes from their bones and skin. Gein confessed to killing two women – tavern owner Mary Hogan on December 8, 1954, and a Plainfield hardware store owner, Bernice Worden on November 16, 1957. Initially found unfit for trial, after confinement in a mental health facility he was tried during 1968 for the murder of Worden and sentenced to life imprisonment, which he spent in a mental hospital.
His case influenced the creation of several fictional killers, including Norman Bates of the novel Psycho, Leatherface of the movie The Texas Chainsaw Massacre, Jame Gumb of the novel The Silence of the Lambs, and Bloody Face of the TV show American Horror Story: Asylum.

Background information
Also known as The Plainfield Ghoul, The Mad Butcher

Marijuana grow using electricity from the grid results in thermal imaging search and a Federal conviction

In 2001, the United States Supreme Court decided Kyllo v. United States, 533 U.S. 27 (2001). In this case, the Court ruled that a search warrant is needed before the government can use thermal imaging to see inside our homes. Apparently, Mr. McIntyre, in the case below, must have thought that meant they can not ever use thermal imaging to look inside our homes. In this case, increased electricity use led to probable cause to grant a Search Warrant allowing for the use of thermal imaging. Perhaps Mr. McIntyre should have used solar panels to generate his electricity?

United States Court of Appeals
FOR THE EIGHTH CIRCUIT___________No. 10-3111
___________
United States of America,
Appellee, Appeal from the United States
v. District Court for the District of Nebraska.
David McIntyre,
Appellant.
___________
Submitted: March 18, 2011
Filed: July 27, 2011
___________
Before SMITH, BRIGHT, and SHEPHERD, Circuit Judges.
___________
SMITH, Circuit Judge.

David McIntyre conditionally pleaded guilty to knowingly and intentionally manufacturing and attempting to manufacture 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1), reserving the right to appeal the district court’s denial of his motion to suppress. On appeal, McIntyre argues that the district court erroneously failed to suppress (1) a county attorney subpoena, (2) thermal imaging search warrants, and (3) a search warrant of his residence. We affirm.

I.
Background On December 8, 2008, Nebraska State Patrol (NSP) Investigator Jason Sears and Nebraska State Trooper Lueders contacted McIntyre outside of his residence in Fremont, Nebraska, investigating a missing-person case. McIntyre had purchased from a person of interest in that case a trailer, which might have been used to dispose of a vehicle. Investigator Sears questioned McIntyre about the trailer, and McIntyre invited the officers into his residence while he looked for the trailer’s title. As Investigator Sears walked by the vehicle parked in the driveway, he noticed a pen tube in the ashtray, which he thought was a “tooter” used to ingest controlled substances.

While inside the residence, Investigator Sears smelled a strong odor of raw marijuana, resulting in symptoms that he described as an allergic reaction to the odor. Investigator Sears also noted that McIntyre was visibly nervous when talking about the trailer, and McIntyre’s hands shook as he handed the trailer title papers to Investigator Sears. McIntyre said that the trailer was loaded with wood and was either at his cabin in Crofton, Nebraska, or at Mark Narke’s residence. McIntyre stated that he only visited his cabin one
or two weekends per month. McIntyre called Narke and told him to take the trailer to Narke’s residence in Santee, Nebraska, and unload the wood. He told Narke to have the trailer at the residence before NSP officers arrived.
Inspector Sears overheard the telephone conversation between McIntyre and Narke. Later that day, Investigator Sears and Trooper Lueders drove to Narke’s residence and inspected the trailer. It was empty. Narke declared his ignorance of anything being loaded on the trailer. With Narke’s permission, the officers inspected the trailer and the buildings on the property and found nothing unusual.

On January 9, 2009, at 7:00 a.m., Investigator Sears and Cedar County Sheriff Larry Koranda drove past McIntyre’s Crofton residence to determine whether there was a garage at the residence, and, if so, whether the garage could hold a pickup truck—an object in the missing-person investigation. They saw an Oldsmobile backed up to a garage door. When they returned to
the residence at 1:00 p.m., the Oldsmobile was gone. The officers viewed the garage. Investigator Sears noticed a hanging shingle on the garage, a small hose protruding from under the garage door, and a strong odor of raw marijuana near the garage. Again, the odor of the marijuana caused
Investigator Sears to suffer symptoms that he described as an allergic reaction.

Subsequently, Investigator Sears retrieved McIntyre’s arrest record and found two prior drug-related arrests from 1981 and 2003. Based upon the smell of raw marijuana and McIntyre’s criminal history, Investigator Sears decided to obtain and examine McIntyre’s electricity usage records. He called the Cedar-Knox Public Power District and asked General Manager Daniel Leise for the electricity usage records for the Crofton residence. Leise informed Investigator Sears that he needed a subpoena to obtain the records. NSP Investigator Douglas Kelley contacted the Knox County Attorney and obtained a county attorney’s subpoena for electricity usage records for the Crofton residence. After Investigator Sears presented Leise with the subpoena, Leise gave Investigator Sears a single sheet of electrical usage for the past three years. The document showed a huge spike in electrical usage for November 2008. This apparent spike, however, was later shown to be inaccurate because the reported number actually reflected usage for November and December 2008. Leise told Investigator Sears that the usage seemed higher than that of neighboring properties and informed Investigator Sears that if further records were needed, Leise could obtain them. Investigator Sears made no further requests. On January 14, 2009, Investigator Kelley applied for a thermal imaging warrant for the Crofton residence and submitted an affidavit in support of the warrant. In the search-warrant affidavit, Investigator Kelley cited Investigator Sears’s allergic reaction to the smell of raw marijuana at both of McIntyre’s residences, McIntyre’s drug arrest history, the electrical usage record, the “tooter” observed in McIntyre’s truck at the Fremont residence, and information about the use of thermal imaging in locating marijuana-growing operations.

A Knox County judge issued the thermal imaging warrant the same day. That evening, Investigator Kelley executed the warrant. The warrant was returned to the court with a recording of thermal imagery showing more electrical usage in the garage than in the living areas of the Crofton residence.

On January 15, 2009, Investigator Kelley sought and obtained a second thermal imaging warrant for the Crofton residence. According to Investigator Kelley, he obtained the second warrant to compare readings from other residences in the area. Investigator Kelley testified that he told the issuing Knox County judge that he intended to obtain information from nearby homes for comparison purposes but did not include that information in the affidavit. This warrant was executed and returned with a recording of thermal imagery showing that greater heat was generated in the living areas in the neighboring residences than their accompanying garages.

Based on the information set forth in the thermal imaging search-warrant affidavits and the thermal imagery obtained as a result of the warrants, on January 16, 2009, Investigator Kelley sought and obtained a search warrant for the Crofton residence. In executing the warrant, officers discovered a marijuana-growing operation and seized it. That same day, a search warrant was also issued for McIntyre’s Fremont residence, but officers found no evidence of illegality.

II.
Discussion On appeal, McIntyre asserts that the district court erred by not suppressing (1) the county attorney subpoena, (2) thermal imaging search warrants, and (3) a search warrant of his Crofton residence.
“On appeal of a motion to suppress, we review the district court’s legal
conclusions de novo and factual findings for clear error.” United States v. Frasher,632 F.3d 450, 453 (8th Cir. 2011).
A.
County Attorney Subpoena McIntyre argues that the district court erred in not suppressing the subpoena duces tecum by which the NSP received electricity usage records for the Crofton residence. According to McIntyre, he had an expectation of privacy in those records because they contained intimate details about the interior of his home. Consequent, he maintains that investigators should have obtained these records via a search warrant. Additionally, McIntyre contends that he has a state statutorily-protected
privacy interest in the electrical usage at his residence.
1.
Reasonable Expectation of Privacy “The touchstone of Fourth Amendmen
t analysis is whether a person has a constitutionally protected reasonable expectation of privacy.” California v. Ciraolo, 476 U.S. 207, 211 (1986) (quotation and citation omitted). The Supreme Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. United States v. Miller, 425 U.S. 435, 443 (1976) (holding that bank depositor has nolegitimate expectation of privacy in copies
of checks and deposit slips retained by his bank); cf. Couch v. United States, 409 U.S. 322, 335 (1973) (“[T]here can be little expectation of privacy where records are handed to an accountant, knowing that mandatory disclosure of much of the information therein is required in an income tax
return.”); Smith v. Maryland, 442 U.S. 735, 744 (1979) (holding that “[w]hen [defendant] used his phone, [he] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business”).

Here, Investigator Sears served the Cedar-Knox Public Power District—a third party—with the county attorney subpoena. “Because it is well-settled that ‘the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities[,]’ [McIntyre’s] claim[] fail[s].” United States v. Hamilton, 434 F. Supp. 2d 974, 979 (D. Or. 2006) (holding defendant lacked reasonable expectation of privacy in his utility records, meaning law enforcement officer did not need probable cause to obtain records because information contained in the records was voluntarily revealed by defendant to utility company, a
third-party recipient) (quoting Miller, 425 U.S. at 443). But McIntyre
argues that power records are different. He relies on Kyllo v. United
States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) for the
proposition that a person has a reasonable expectation of privacy in his
power records because the information from the records is legally indistinguishable from the power information protected by the Fourth
Amendment in Kyllo. Id. at 980. We reject McIntyre’s argument and conclude that [t]he manner in which the information was obtained in Kyllo
(a thermal-imaging device), however, bears no resemblance to obtaining
power data from a third party by way of [a county attorney] subpoena.
Crucial to the Kyllo holding was the intrusion on the home by
“sense-enhancing technology . . . not in general public use.” Id. at 34, 121 S. Ct. 2038. Thus, while the information obtained may be similar, the means to obtaining the information is legally significant and defeats [McIntyre’s] argument. Instead, Smith v. Maryland, a case in the Miller line, is on point. There the court held that “[w]hen [defendant] used his phone, [he] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business” and therefore did not have an objectively reasonable expectation of privacy.

Section 25-1273 provides: When the discovery rules promulgated by the Supreme Court authorize discovery from a nonparty without a deposition, a subpoena shall be issued by the clerk of the court before whom the action is pending upon request of a party. An attorney as an officer of the court may also issue and sign such a subpoena on behalf of a court in which the attorney is authorized to practice. The subpoena shall be served in the time and manner required by the discovery rules. Such discovery rules shall not expectation of privacy in that information. Smith, 442 U.S. at 744, 99 S. Ct. 2577. Similarly, when [McIntyre] used power in his home, he voluntarily conveyed that information to [Cedar-Knox Public Power District]. As a result, he had no reasonable expectation of privacy in his power records. Id.;
see also United States v. Porco, 842 F. Supp. 1393, 1398 (D. Wyo. 1994)
(rejecting defendants’ argument that “they had an expectation of privacy in the records of their electrical usage kept by Rural Electric because Rural Electric would not voluntarily disclose a person’s electric usage” because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by the third party to government authorities, even if the information is revealed to the third party confidentially and on the assumption that it will be used only for limited
purposes”); Samson v. State, 919 P.2d 171, 173 (Alaska Ct. App. 1996) (finding no reasonable expectation of privacy in power consumption utility records).
2.
State Statutorily-Protected Privacy Interest Additionally, McIntyre argues that he has a statutorily-protected privacy interest in his electrical usage at his Crofton residence under Nebraska Revised Statute § 70-101. According to McIntyre, authorities also “breached the very process [they] cited
as authority in [their] efforts to obtain the records”—Nebraska Revised Statute § 25-1273. He argues that the government failed to demonstrate that any of the discovery rules authorized discovery from a nonparty in this case, as required by § 25-1273.

And, he contends that, while the subpoena claims that Nebraska Rule of Civil Discovery 34A grants the issuing county attorney the “authority” to issue it, the rule applies to civil cases, not criminal cases. Here, Knox County Attorney John Thomas issued the subpoena duces tecum, under the purported authority of § 25-1273, commanding Cedar-Knox Public Power
District to provide “[a] true and complete copy of all electricity usage records and reports” for the Crofton residence. (Emphasis added.) McIntyre argues that he has a statutorily-protected interest in these usage records under § 70-101, which provides: Notwithstanding any other provision of law regarding confidentiality of records, every district or corporation organized under Chapter 70 shall, upon request, furnish to any county attorney, any authorized attorney as defined in section 42-347, or the Department of Health and Human Services a utility service subscriber’s name, social security number, and mailing and residence addresses only for the purposes of establishing and collecting child, spousal, and medical support and of conducting reviews under sections 43-512.12 to 43-512.18.
Such information shall be used for no other purpose. An action may be filed in district court to enforce this section. For purposes of this section, utility service shall mean electrical, gas, water, telephone, garbage disposal, or waste disposal service. (Emphasis added.) As the district court explained, McIntyre’s “argument that § 70-101 provides an expectation of privacy by restricting the dissemination to the county attorney of utility subscriber information is deficient because that statute relates only to identifying information and not to usage records.” United States v. McIntyre, 683 F. Supp. 2d, 438 U.S. 154 (1978).
-9-
1020, 1026 (D. Neb. 2010) (emphasis added). Therefore, we conclude that McIntyre’s Fourth Amendment rights were not violated by law enforcement’s use of the subpoena, and a search warrant was unnecessary to obtain the usage records.

We also reject McIntyre’s argument that the subpoena was deficient because it was not served in compliance with § 25-1273 or Nebraska Rule of Civil Discovery 34A. As the district court explained, “[regardless of these issues, the county attorney has subpoena power, under the circumstances present here, pursuant to Neb. Rev. Stat.§ 86-2,112.” Id. at 1033. Section 86-2, 112 states that “any county attorney may. . . require the production of records . . .
which constitute or contain evidence relevant or material to the investigation or enforcement of the laws of this state when it reasonably appears that such action is necessary and proper.” And, even if state law was violated,
“state law violations do not necessarily offend the Federal Constitution.”
United States v. Burtton, 599 F.3d 823, 828 (8th Cir. 2010) (quotation and citation omitted). “Thus, when a federal court must decide whether to exclude evidence obtained through an arrest, search, or seizure by state
officers, the appropriate inquiry is whether the arrest, search, or seizure violated the Federal Constitution, not whether the arrest, search, or seizure violated state law.” Id. (quotation and citation omitted). For the reasons set forth supra in Part A.1, we hold that no Fourth Amendment violation occurred.
B.
Thermal Imaging Search Warrants McIntyre also argues that the district court erred in denying his motion to suppress the thermal imaging search warrants and request for a Franks hearing because the one-page utility record that Investigator Sears received and referenced in his supporting affidavit contained false information, as it improperly combined electrical usage for November and December 2008 and referred to that sum as only electrical usage for November 2008. According to McIntyre, this fact alone should
have entitled him to a Franks hearing to determine the search warrant’s veracity. He also asserts that Investigator Kelley falsely indicated in his supporting affidavit that he had obtained “records” and “reports” regarding McIntyre’s utility usage when, in fact, he had only obtained a one-page report.
McIntyre contends that this false information constitutes a misrepresentation that should have entitled him to a Franks hearing. According to McIntyre, once the false information is omitted from the affidavit, the remaining portions of the affidavit do not establish probable cause. “We review the denial of a Franks hearing for abuse of discretion.” United States v. Kattaria
, 553 F.3d 1171, 1177 (8th Cir. 2009) (en banc) (per curiam). To obtain relief under Franks, “a defendant must first demonstrate that the law enforcement official deliberately or recklessly included a false statement, or omitted a truthful statement from his warrant affidavit.” United States v. Carpenter, 422 F.3d 738, 745 (8th Cir. 2005) (citation omitted). Next, the defendant must show that the affidavit would not establish probable cause if the allegedly false information is ignored or the omitted information is supplemented. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001).
Allegations of negligence or innocent mistake will not suffice to demonstrate reckless or deliberate falsehood. Franks, 438 U.S. at 171, 98 S. Ct. 2674; United States v. Davis, 471 F.3d 938, 946 (8th Cir. 2006). Recklessness, however, may be “inferred from the fact of omission of information from an affidavit . . . when the material omitted would have been ‘clearly critical’ to the finding of probable cause.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) (citation omitted). United States v. Mashek, 606 F.3d 922, 928 (8th Cir. 2010) (emphasis added). In determining if “an affiant’s statements were made with reckless disregard for the truth,” the test “is whether, after viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” United States v. Butler, 594 F.3d 955, 961 (8th Cir. 2010). “A showing of deliberate or reckless falsehood is not lightly met.” Id. (quotation and citation omitted). Here, the alleged falsehoods “do not meet the ‘substantial preliminary showing’ required by Franks.” United States v. Crissler, 539 F.3d 831, 834 (8th Cir. 2008). First, as to the utility record’s inaccurate accounting of the November 2008 usage, there is no evidence to support a finding that Investigator Sears and Investigator Kelley had reason to believe or knew that the report that Cedar-Knox Public Power District provided to them erroneously combined November 2008 and December 2008 usage. McIntyre has failed to show that the investigators “had obvious reasons to
doubt the accuracy of the information” that the public utility company provided to them. Butler, 594 F.3d at 961. Second, as to Investigator Kelley’s reference to “reports” and records” in the affidavit when, in fact, he only had a one-page report, to the extent that this statement is inaccurate, there is no evidence that Investigator Kelley deliberately or recklessly made the statement or that the statement was material. See Mashek, 606 F.3d at 928.
The number of documents or pages in the utility usage report mattered little to the merit of the affidavit. Furthermore, the one-page report that the Cedar-Knox Public Power District provided was a summation of over three years
of kilowatt usage. Therefore, we hold that the district court did not err in failing to grant McIntyre’s request for a Franks hearing and accordingly need not address whether the remaining portions of the supporting affidavit would support a probable cause finding. United States v. Curry, 911 F.2d 72, 76 (8th Cir. 1990) (“We need not address this second issue because, with respect to both alleged falsehoods, [the defendant’s] offers of proof were insufficient to meet the first Franksrequirement.”).
C.
Crofton Residence Search Warrant Finally, McIntyre argues that the search
warrant for his Crofton residence is “fruit of the poisonous tree” stemming from the county attorney subpoena and thermal imaging warrants. According to McIntyre, “[t]he affidavit and resulting search warrant
for the Crofton residence was the culmination of the subpoena for electrical records and the thermal warrants. Removing or excising either of the proceeding [sic] investigative tools defeats the crescendo of probable cause established by the previous warrants and/or subpoena.” McIntyre’s assertion that the district court erred by declining to suppress the search warrant of his Crofton residence is based on his arguments that the district court should have suppressed the county attorney subpoena and thermal imaging search warrants. Because we have already rejected these arguments, see supra Parts
A–B, his “‘fruit of the poisonous tree’ argument fails.” See United States v. Martinez, 462 F.3d 903, 910 (8th Cir. 2006). And, our independent review
of the record confirms that the search warrant for the Crofton residence was supported by probable cause. “Our role is to ensure that the evidence as a whole provides a substantial basis for finding probable cause to support the issuance of the search warrant” for [McIntyre’s] residence. United States v. Terry, 305 F.3d 818, 822 (8th Cir. 2002). “Whether probable cause . . . has been established is determined by considering the totality of the circumstances, and resolution of the question by an issuing judge ‘should
be paid great deference by reviewing courts.'” United States v. Grant,
490 F.3d 627, 631 (8th Cir. 2007), cert. denied, ___U.S. ___, 128 S. Ct.
1704, 170 L. Ed. 2d 516 (2008) (quoting Illinois v. Gates, 462 U.S. 213,
236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). “When the affidavit supporting the search warrant sets forth facts sufficient to create a fair probability that evidence of a crime will be found in the place to be searched, probable cause exists.” Terry, 305 F.3d at 822. “Accordingly,
we examine the sufficiency of a search-warrant affidavit using a ‘common sense’ and not a ‘hypertechnical’ approach.” Grant, 490 F.3d at 632 (quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir.2005)). United States v. McArthur, 573 F.3d 608, 613 (8th Cir. 2009). Here, considering the totality of the circumstances, probable cause existed to issue the search warrant for the Crofton residence. First, the supporting affidavit set forth Investigator Sears’s encounter with McIntyre on December 8, 2008, at the
Fremont residence where Investigator Sears saw a pen tube—a “tooter” believed to be used to ingest controlled substances—in the ash tray of McIntyre’s vehicle. While at the Fremont residence, Investigator
Sears observed McIntyre’s unusual and extremely nervous behavior and smelled raw marijuana at the residence. Second, the affidavit reported that on January 9, 2009, Investigator Sears smelled a strong odor of raw marijuana outside the garage of the Crofton residence and saw a small hose
coming out from under the garage door. Third, the affidavit recounts Investigator Kelley’s discovery of McIntyre’s previous drug arrests. Fourth, the affidavit explains that Investigator Sears obtained the electricity usage records for the Crofton residence, which was “unusually high for [a] person that lived at the residence continuously.” Finally, the affidavit recounts Investigator Kelley’s knowledge, from training and experience, that “thermal imagery i[s] an investigative tool used by law enforcement to assist in the detection of indoor marijuana grow operations, whereas grow operations produce large amounts of heat from the grow lights.” The affidavit then
explains that the two thermal imagery readings of the Crofton residence showed, respectively, a higher heat signature emanating from the garage
area than from the living quarters of the home and from comparable residences in McIntyre’s neighborhood.
III.
Conclusion
Accordingly, we affirm the judgment of the district court.

Expungement and Seperation of Powers

Expungement case decided by Supreme Court Yesterday

D I S S E N T
ANDERSON, Paul H., Justice (dissenting).

Jean Valjean: But this is common humanity! Are you a machine?

Inspector Javert: I am an officer of the law doing my duty. I have no
choice in the matter. It makes no difference what I think or feel or want. It
has nothing to do with me—nothing! Can’t you see that?

Les Misérables.

Yesterday, the Minnesota Supreme Court Ruled that Court does not have inherent authority to expunge records not identified by statute of a Defendant held by the executive. The Majority’s Opinion and subsequent Concurring Opinion rely upon a straight forward separation of powers argument. This means that Court does not have the inherent authority to seal law enforcement records for an individual unless identified by statute, even though the conviction or legal proceedings were first generated by the Judicial Branch. In order for the Court to be able to seal, or expunge, executive branch records, a statute must be created by the legislative branch allowing for such action.

The entire Opinion is 52 pages long and includes a 30 Page Dissent. The Dissent begins with the quote form Les Miserables above. The link to the complete opinion is below.

http://www.mncourts.gov/opinions/sc/current/OPA111285-0522.pdf

Is carrying a gun on private property reasonable suspicion for a stop and search?

Carrying a gun in a private yard is not suspicion of criminal activity and does not give police a reason to stop or search you.

Read below to see how our Constitution limits the ability for law enforcement to search you and how probable cause to believe that you are committing a crime, which allow for a stop and search, is determined.

STATE v. THENG YANG
814 N.W.2d 716 (2012)
STATE of Minnesota, Respondent,
v.
THENG YANG, Appellant.
No. A11-1008.
Court of Appeals of Minnesota.
June 18, 2012.
Lori Swanson, Attorney General, St. Paul, MN; and John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, MN, for respondent.
Jodie L. Carlson, Assistant Public Defender, St. Paul, MN; and Tara Reese Duginske, Special Assistant Public Defender, Briggs and Morgan, P.A., Minneapolis, MN, for appellant.
Considered and decided by RODENBERG, Presiding Judge; HALBROOKS, Judge; and ROSS, Judge.
________________________________________

OPINION
ROSS, Judge.
A 911 operator received a report that an Asian male, who was wearing red pants at a specific St. Paul residence, had a gun. Police arrived and saw an Asian male with red pants in the front yard. They handcuffed the male, Theng Yang, asked him about the gun, and retrieved a handgun from his coat pocket. The district court convicted Yang of unlawful possession of a firearm by an ineligible person because a prior conviction made it a felony for him to possess a firearm anywhere. In this appeal from the denial of Yang’s pretrial motion to suppress evidence, we must decide whether the officers’ stop violated Yang’s constitutional right to be free of unreasonable police seizures. We hold that the officers’ actions violated Yang’s constitutional rights because they had no reason to suspect that his conduct met the restrictive elements of Minnesota’s handgun law.
FACTS
On a November 2010 afternoon, Officers Michael McNeill and Seth Wilson were patrolling the St. Paul Frogtown neighborhood when a police dispatcher relayed a 911 report that an Asian male wearing red pants had a gun at a particular residential address in their area. The officers recognized the address, associating it with drugs and arrests.
Officers McNeill and Wilson, and others, arrived and saw four or five men of Asian descent entering the front yard from the porch, one of the men wearing red pants. The officers immediately took cover behind their squad cars, drew their handguns, and ordered the men to the ground. Officer Wilson handcuffed the man wearing red pants, Theng Yang, and asked him where the gun was. Yang told him that it was in his coat pocket. Officer Wilson found a handgun there. We assume that the officers at some point learned that the home was Yang’s, but the record is silent about it.
[ 814 N.W.2d 718 ]

Because he was previously convicted of a felony, Yang could not lawfully possess any firearm anywhere, so the state charged him with unlawful firearm possession. See Minn.Stat. §§ 624.713, subds. 1(2), 2(b), 609.11, subd. 5(b) (2010). Yang moved the district court to suppress evidence of the gun, arguing that the detaining police officers lacked a reasonable, articulable suspicion that he was involved in criminal activity. The district court denied the motion, deeming the stop to have been justified.

Yang waived his right to a jury and the state submitted the case to the district court judge in a stipulated-facts trial. See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980); Minn. R.Crim. P. 26.01, subd. 4. The district court found Yang guilty and convicted him of unlawful firearm possession. It sentenced him to 60 months in prison over his motion for a downward dispositional sentencing departure. Yang appeals, challenging the denial of his motion to suppress and the denial of his sentencing motion.
ISSUE
Did the officers’ investigatory stop violate Yang’s Fourth Amendment right to be free of unreasonable searches and seizures?
ANALYSIS
Yang challenges the denial of his motion to suppress evidence of the firearm, arguing that the stop violated his Fourth Amendment rights because the police officers did not have a reasonable, articulable suspicion that criminal activity was afoot. Where, as here, the district court denies a motion to suppress on undisputed facts, we independently consider whether those facts support the decision. See State v. Timberlake, 744 N.W.2d 390, 393 (Minn.2008).
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A warrantless seizure is unreasonable unless it falls into a recognized exception. State v. Flowers, 734 N.W.2d 239, 248 (Minn.2007). The Supreme Court has recognized that warrantless, investigatory seizures that are limited in scope, duration, and purpose are reasonable if supported by circumstances that create an objectively reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). And when circumstances exist to create an objectively reasonable concern for officer safety, the officer engaged in a valid stop may also conduct a brief pat-down search for weapons. Id.
The moment when the constitutionally significant seizure occurred here is not in dispute. The seizure occurred once the officers drew their guns and ordered Yang and his companions to the ground. See Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) (noting that a seizure occurs when an officer “accosts an individual and restrains his freedom to walk away”) (quotation omitted). Yang recognizes that this initial seizure was not an arrest requiring probable cause and that it was justified if the circumstances preceding it meet Terry’s lesser investigatory stop standard.

The state argues that the officers justifiably detained Yang on their suspicion that Yang was violating Minnesota’s statute generally prohibiting a person from carrying a handgun in a public place. The relevant statute criminalizes public handgun possession without a permit: “A person… who carries, holds, or possesses a pistol … on or about the person’s clothes or the person … in a public place, as
[ 814 N.W.2d 719 ]

defined in section 624.7181, subdivision 1, paragraph (c), without first having obtained a permit to carry the pistol is guilty of a [crime].” Minn.Stat. § 624.714, subd. 1a (2010) (emphasis added). The parties’ dispute focuses on whether Yang’s front yard is “a public place.”
Asserting that a person not otherwise prohibited may lawfully carry a firearm on any private residential property regardless of whether that person holds a handgun-carry permit (because a residential yard is not a “public place”), Yang contends that the officers lacked justification for the seizure because they knew his yard was private property. Under these circumstances, argues Yang, the Terry standard was not met. The state counters by asserting that Minnesota law prohibits any person who lacks a handgun-carry permit from possessing a firearm anywhere outside his home or business, even on his own residential property (because a yard is a “public place”), so police may detain a person with a firearm in a private yard to determine whether he possesses a permit. Under these circumstances, argues the state, the Terry standard was met.
We look to the statute to determine whether the district court and the parties have accurately framed its meaning. Statutory interpretation is a question of law, which we review de novo. State v. Larsen, 650 N.W.2d 144, 147 (Minn.2002). We think that both Yang’s and the state’s arguments hang on flawed analyses of the statutory definition of “public place.” We consider each argument.
“Public Place”
Yang and the state come to different interpretations of “public place,” each focusing largely on how the statute describes what is not a public place and then arguing for a different, purportedly necessary, negative inference. Section 624.714, subdivision 1a, prohibits only carrying a handgun “in a public place, as defined in section 624.7181, subdivision 1, paragraph (c).” The parties emphasize and argue from the following negative language of section 624.7181, subdivision 1(c): “`Public place’… does not include: a person’s dwelling house or premises, the place of business owned or managed by the person, or land possessed by the person.” (Emphasis added.). Yang’s attorney focused at oral argument on the indefinite article in the first clause of this passage — “a person’s dwelling house or premises” — and would have us infer that this must mean any person’s dwelling or premises. Under this theory, a large exclusion from the universe of “public places” is every private yard that adjoins some person’s house, not merely the yard adjoining the house of the person carrying the handgun. Accordingly, argues Yang, even though police may not have known the yard was Yang’s, they had no reason to stop him and inquire about the gun because they knew he was standing in a yard that of course belonged to some person.
We cannot accept Yang’s interpretation of the exclusion because the interpretation arises unreasonably from the phrase, “a person’s dwelling house or premises,” ignoring the remainder of the provision, which also excludes “land possessed by the person.” It is contextually evident that when the exclusion refers to “a person’s dwelling house or premises,” it cannot mean any person’s house or premises, as Yang urges; it instead refers to the house or premises of the person whose handgun possession is at issue, just as it expressly refers to the land of “the person” whose handgun possession is at issue. In other words, for the exclusion to apply, the person referred to in section 624.714, subdivision 1a, who possesses the handgun, must be the same person referred to in
[ 814 N.W.2d 720 ]

section 624.7181, subdivision 1(c), who possesses the property.
We also cannot accept the state’s interpretation of the exclusion. The state asserted at oral argument that the officers reasonably investigated the handgun report by seizing persons in the residential yard because the exclusion’s reference to “land possessed by the person” regards only rural, agricultural land, not residential land. As with Yang’s argument, the state’s argument fails under the plain wording of the statute. Nothing in the language of the exclusion supports the state’s constrained definition of land. “Land” appears in the statute with no categorical qualification. And the statute expressly also excludes the person’s “dwelling house or premises.” If the legislature wanted a narrower exclusion based on the nature or location of the “land possessed by the person” it would have drafted the statute in that fashion. “[C]ourts cannot supply that which the legislature purposely omits or inadvertently overlooks.” Wallace v. Comm’r of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971).
But rejecting the parties’ reasoning about what is not a public place does not answer whether Yang’s front yard is a public place. For that, we look to the statutory language of what is a public place, and that language is plain:
“Public place” means property owned, leased, or controlled by a governmental unit and private property that is regularly and frequently open to or made available for use by the public in sufficient numbers to give clear notice of the property’s current dedication to public use.
Minn.Stat. § 624.7181, subd. 1(c). So a “public place” comes in two forms: (1) property that is governmentally owned, leased, or controlled, and (2) private property that has been dedicated to the public for its use. Land dedication to the public may occur by statute or by common law, but, like governmental land, dedicated private land is in the nature of publicly useable space, not in the nature of a person’s front yard. See, e.g., Minn.Stat. § 462.358, subd. 2b (2010) (authorizing municipal subdivision regulations to require that certain developable land be “dedicated to the public… for public use as streets, roads, sewers, electric, gas, and water facilities, storm water drainage and holding areas or ponds and similar utilities and improvements, parks, recreational facilities, … playgrounds, trails, wetlands, or open space”); see also Wojahn v. Johnson, 297 N.W.2d 298, 306-07 (Minn.1980) (discussing similarities between statutory and common-law dedication as both demonstrating the landowner’s intent “to have his land appropriated and devoted to a public use, and an acceptance of that use by the public”).
Focusing on that part of the statute that defines what is a public place rather than on the definition of what is not, it is easy to conclude that Yang’s residential front yard does not fit either statutory category of a “public place.” Neither party contends that a reasonable officer would have perceived Yang’s yard to be governmental property or a space dedicated to and accepted by the public for public use. Rather than yield to the temptation to define a public place by negative inference from what the statute says is not a public place, as the parties’ arguments suggest, we decide this issue without resolving the question of whether the yard is one of the excluded places. It is enough that it is not one of the included places.
We recognize that the statute leaves a substantial gap between the included and excluded classes of property, describing
[ 814 N.W.2d 721 ]

narrowly what is a public place and describing narrowly what is not a public place; many properties seem to fit neither class (like, for example, the front yard of a person who is not suspected of carrying a handgun). And there is no apparent overlap between what is said to be a public place and what is said not to be. It would therefore appear that the legislature did not really intend for its list in the negative portion of the definition to be read as a list of exceptions to the positive portion of the definition. We also recognize that, under our reading, the negative portion has little apparent legal significance except in those few (if any) circumstances when some overlap might be found. In any event, the state’s reasonable suspicion argument rests on the theory that Yang was reported to have a handgun in a public place, but he was found in an area that we hold is not a “public place.”
Three cases might, on their surface, seem to suggest a different conclusion. On a closer look, they do not.
The first of these is State v. DeLegge, 390 N.W.2d 10 (Minn.App.1986). In DeLegge, we construed a prior version of the same statute to define “public place” broadly, reasoning that a person could not carry a handgun on any private property where discharging it might harm others, particularly in an urban setting. Id. at 12. But we constructed a definition there only because the statute at the time did not define “public place.” See id. at 11. We were left to provide a judicial definition consistent with perceived legislative intent. Id. at 11-12. After DeLegge was decided, however, by enacting the Personal Protection Act of 2003 the legislature amended the statute into its current form, incorporating expressly the definition of “public place” in section 624.7181. See 2003 Minn. Laws ch. 28, art. 2, § 4 at 274. DeLegge’s “public place” definition therefore does not control.
The second case is State v. Gradishar, where we held that, “[f]or purposes of section 624.7142, … `public place’ shall be defined as: generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not.” 765 N.W.2d 901, 903 (Minn.App.2009). We are convinced that Gradishar also does not apply here because it involved the carrying of a pistol in a public place while under the influence of alcohol, an offense that we held also lacked any statutory definition of “public place” and that called for a broader definition than the one embodied in section 624.7181. Id. at 903-04. And in coming to the broad definition, we expressly recognized that cases involving a person carrying a handgun in a public place under section 624.714, which is the proffered basis for Yang’s detention, would instead trigger the narrow definition of 624.7181. Id. at 904.
The third case, State v. Timberlake, 744 N.W.2d at 391, also does not control here. Applying Fourth Amendment principles, the Timberlake court determined that police officers may briefly detain and frisk a person reported to be carrying a gun in a public place. Id. at 395-96. The officers in that case had detained Timberlake based on a tip that he was carrying a gun while driving from a gas station onto the public road. Id. at 392. Similar to Yang’s argument, Timberlake contended that the officers could not have developed a reasonable suspicion of criminal activity because the tipster never mentioned that Timberlake lacked a permit; so, for all the officers knew, Timberlake might have been carrying the reported gun lawfully. Id. at 394. The supreme court rejected the argument, concluding that police properly
[ 814 N.W.2d 722 ]

conducted a Terry stop to determine whether Timberlake had a carry permit. Id. at 395, 397; see also State v. Hollins, 789 N.W.2d 244, 250 (Minn.App.2010) (following Timberlake and holding that defendant’s possession of a handgun at a nightclub was sufficient to create reasonable suspicion that he carried the gun unlawfully, absent any indication that he held a permit, justifying a Terry detention), review denied (Minn. Dec. 22, 2010).
Again, Timberlake does not help the state here. Timberlake’s holding rests on the supreme court’s reasoning that lacking a handgun permit is not an element of the crime of carrying a gun in a public place; rather, having a permit is a mere exception to the crime. Id. at 396. So police developed reasonable suspicion that Timberlake’s conduct met all the elements of the crime because he was reportedly carrying his handgun in a public place. See id. at 392, 397 (describing report that Timberlake was carrying a gun in a motor vehicle that had entered the public roadway from a gas station). Unlike the fact of a handgun-carrier’s possibly lacking a handgun permit (the factor analyzed in Timberlake), a handgun-carrier’s being in a public place is an element of the crime. See Minn.Stat. § 624.714, subd. 1(a). (“A person … who carries … a pistol … in a public place … is guilty of a [crime].”). And Yang contends that police lacked any reasonable suspicion that he was in a public place, touching on a central statutory element of the only suspected crime the state offered as its basis for the stop.
In sum, the negative implications of the statute’s exclusions do not define a public place, the positive declarations of the statute define public place in a manner that does not include a residential yard, and the factually similar cases are legally distinguished.
Stop Justification
Applying the legislature’s definition of “public place,” we must now decide whether police were justified in seizing Yang. We hold that police lacked reasonable suspicion to seize him. We can surmise that the officers mistakenly understood that the handgun law generally prohibits persons from carrying a handgun in a private residential yard. An officer’s mistaken interpretation of a statute cannot form an objectively reasonable basis for suspecting criminal activity and detaining a person. State v. Anderson, 683 N.W.2d 818, 823-24 (Minn.2004); State v. George, 557 N.W.2d 575, 578-79 (Minn.1997). When the police arrived, Yang was “coming out the front porch into the front yard,” apparently nowhere near governmental property — a sidewalk or street, for example — and the state makes no claim of it. Although it turned out that Yang illegally possessed a firearm anyway because a previous conviction prohibited his possession, this is of no consequence to the stop because police had no reason to know that and because the state has attempted to justify the seizure instead only on the supposed suspected violation of the handgun statute. Similarly, the officers’ awareness that drugs had been found and arrests had occurred previously at the home do not create reasonable suspicion to detain an occupant on a new report that he possesses a handgun.
Because police lacked reasonable suspicion to detain Yang, and because the unconstitutional detention and search produced the evidence that led to his conviction, we reverse his conviction.
Sentencing Departure
Yang also argues that the district court abused its discretion by denying his sentencing motion for a downward dispositional departure. Because we reverse his conviction,
[ 814 N.W.2d 723 ]

we do not reach his sentencing challenge.
DECISION
Carrying a pistol without a permit in a private yard is not carrying a pistol in a public place under sections 624.714 and 624.7181. Police unconstitutionally detained Yang then found the incriminating evidence on him in his front yard when they unreasonably suspected that his reported and observed conduct constituted the crime of carrying a pistol in a public place.
Reversed.

What is the Difference between Bail and a Bond?

Bail and Bond

How do Bail and Bonds work? After a case has been completed, a client will often ask, can I get my Bail back? The answer is, that depends.

When you appear before the Court, if the Court does not release you on your own recognizance, then bail will be imposed. This bail is set to insure your appearance at certain court dates and to insure other conditions, such as remaining law abiding. In Minnesota, you have the option of posting bail or bond. A Bail Bonds company is normally used to post the Bond. The Bail Bond company is insured and recognized by the State. You may also post the entire bail amount with the Court if you choose not to use a Bail Bond company.

So how does this work? Let’s assume the Court imposes bail in the amount of $10,000 to secure your appearance at future court appearances. You may either post the $10,000 with the Court, or use a bail bonds company to post the bail.

If you post the $10,000 with the Court and are later found not guilty, or the case is dismissed, the full $10,000 will be returned. If you are found guilty, or reach a plea agreement and are found guilty by the Judge pursuant to that Plea agreement, you will have the $10,000 returned to you, less any fees and costs.

If you choose to use a Bail Bond company, it is slightly different. First, remember that the Bail Bond Company is a private company and is not part of the Court system. Picture the Bail Bond Company as an insurance company. You are purchasing an insurance policy that the Court will accept to insure your appearance in Court and to insure you will abide by the Conditions of the Court. In this example, you are purchasing a $10,000 policy. The charge, or premium – just like a car insurance premium – is the cost to purchase that $10,000 policy. Let’s assume the cost, or premium, is 10%, or $1,000.00. You will pay the $1,000.00 to the bonding company – just like paying a premium to your car insurance company. The bonding company will then provide the bond – think of insurance coverage – to the Court. As long as you make all of your Court appearances and abide by conditions set, you will never have to pay the other $9,000.00. However, as you purchased a bond (insurance policy) from a private entity, the $1,000.00 paid as a premium will not be returned to you. The Court had nothing to do with that contractual agreement and can’t order those funds to be returned. You will also still be responsible for any fines, fees or costs associated with your Sentence.

If you fail to appear, or abide the conditions set, the Court may very well forfeit the bond. In other words, call the $10,000 policy due. The bonding company will then have to pay the Court the $10,000 promised if a violation occurred (the policy amount) plus any costs in securing your appearance. The bonding company will then begin collection proceedings against you and/or the co-signors and collateral used to secure the $10,000.00 policy, as well as any other costs the Court may impose. The Bail Bond company may attempt to have the Bond reinstated and then discharged so as to recover a portion of the amount the Court forfeited. If this does not work, you and your co-signors are responsible to pay the Bail Bond company the amount of the policy/bond.

Read below for a summary and full opinion on how a bail bond company not only had to pay for the bail amount, but also for all costs associated with extradition and penalties imposed by Court Rule.

Summary

Sate of Minnesota v. Mulcahy & Freedom Bail Bonds (CT APPS, A11-1136, 06-11-2012, Stearns Co)

MS 629.59, Reduction Bail Forfeiture, General Practice Rule 702

The bail company posted bonds of $55,000 for defendant. The Defendant then failed to appear for court. One month later the bonds were ordered forfeited by Court, but stayed the payment for three months.

During this three month period, the Defendant was arrested in California. The Bonding company then moved for reinstatement and discharge of the bonds. The court did reinstate the bonds and then discharged the bonding company, but also
ordered $5,000 to be withheld for Defendant’s extradition costs and also assessed a 10% penalty of $5,500 pursuant to Minn. R. Gen. Pract. 702(f).

The Bonding Company appealed the 10% penalty. The Court of Appeals noted that General Practice Rule 702(f) provides that if a motion to reinstate a bond is made between 90 – 180 days after forfeiture, the court may reinstate but must charge
a 10% penalty. This penalty is a requirement and cannot be waived or reduced by the Court.

STATE v. MULCAHY
STATE of Minnesota, Respondent, v. Jordan Charles MULCAHY, Defendant, Freedom Bail Bonds, et al., Appellants.
No. A11–1136.
— June 11, 2012
Considered and decided by CONNOLLY, Presiding Judge; LARKIN, Judge; and COLLINS, Judge.*
Lori Swanson, Attorney General, St. Paul, MN; and Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, St. Cloud, MN, for respondent.Frank Arend Schulte, St. Paul, MN, for appellants.
OPINION
Appellants, a bond company and its surety, challenge the ten percent penalty imposed by the district court on the reinstatement of their bonds under Minn. R. Gen. Pract. 702(f). Because district courts have no discretion to forgive or reduce this penalty, we affirm.
FACTS
Between May 2010 and November 2010, appellant Freedom Bail Bonds and its surety, appellant Minnesota Surety and Trust Company, posted bonds totaling $55,000 for defendant Jordan Mulcahy in connection with four criminal complaints charging him with numerous offenses. He failed to appear for a court hearing in November 2010. In December 2010, the bonds were ordered forfeited and appellants were notified that March 19, 2011, would be the date of forfeiture.
In March 2011, shortly after the defendant was arrested in California, appellants moved for reinstatement and discharge of the bonds. Following a hearing on their motion, the district court issued an order reinstating and discharging the bonds, ordering $5,000 withheld for defendant’s extradition, and imposing a ten percent penalty of $5,500 under Minn. R. Gen. Pract. 702(f).
ISSUE
Did the district court err in imposing a ten percent penalty under Minn. R. Gen. Pract. 702(f)?
ANALYSIS
“The interpretation of a procedural rule is subject to de novo review.” Johnson v. State, 801 N.W.2d 173, 176 (Minn.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 1748, 182 L.Ed.2d 537 (2012).
The language of Minn. R. Gen. Pract. 702(f) was interpreted and its relationship to Minn.Stat. § 629.59 was clarified in State v. Askland, 784 N.W.2d 60 (Minn.2010).
State statute and court rule address the question of reinstatement of a forfeited bail bond. Minnesota Statutes § 629.59 (2008) states that when a bail bond is forfeited, “the court may forgive or reduce the penalty according to the circumstances of the case and the situation of the party on any terms and conditions it considers just and reasonable.” Rule 702(f) of the Minnesota General Rules of Practice narrows a court’s discretion:
A petition for reinstatement [of a forfeited bond] filed between ninety (90) days and one hundred eighty (180) days from the date of forfeiture shall be heard and determined by the judge who ordered forfeiture or the judge’s successor and reinstatement may be ordered on such terms and conditions as the court may require, but only with the concurrence of the chief judge and upon the condition that a minimum penalty of not less than ten percent (10%) of the forfeited bail be imposed.
Id. at 62. Askland remanded to the district court “for reinstatement, discharge, and refund of the forfeited bond less the 10% penalty mandated by Minn. R. Gen. P. 702(f).” Id. at 64 (emphasis added).
Notwithstanding Askland, appellants raise four arguments opposing the imposition of the penalty. First, they argue that “it was well within the [district] court’s authority and discretion to waive the ten percent penalty provided for in Rule 702.” But, under Askland, the district court had no authority to waive the penalty when it reinstated the bonds.
Second, appellants argue that the penalty should not be imposed because the state has not shown prejudice resulting from the defendant’s absence and because appellants made a good-faith effort to locate the defendant. The state’s showing of prejudice and the good-faith effort of a bond company are two of the four factors for district courts to consider when exercising their discretion to decide whether to reinstate a forfeited bond. Id. at 62 (citing In re Shetsky, 239 Minn. 463, 471, 60 N.W.2d 40, 46 (1953)). But those factors are not relevant here, because the issue here is not the discretionary reinstatement of a forfeited bond; it is the mandatory penalty imposed by Rule 702 when a petition for reinstatement is filed between 90 and 180 days after the forfeiture.
Third, appellants argue that there is “some justification for at least a small variance from Rule 702” because of the district court’s delay in notifying them of the forfeiture and of the timeliness of their own petition for reinstatement once the defendant had been arrested in California. But appellants do not explain why either the district court’s delay in notifying them or the timing of their own petition for reinstatement would be relevant to the mandatory penalty imposed by Rule 702.
Finally, appellants argue that Minn. R. Gen. Pract. 1.02, permitting modification of the rules to prevent injustice, should be invoked here, but they do not explain why the penalty imposed by Minn. R. Gen. Pract. 702 is unjust.1
DECISION
The district court did not err in interpreting Rule 702 to mandate the imposition of a ten percent penalty when appellants’ bonds were reinstated and concluding that it had no discretion to forgive or reduce that penalty.
Affirmed.
CONNOLLY, Judge.