Category: accident

Cop isn’t exactly Robin Hood

Courts do not take kindly to government officials abusing their powers against citizens. In the case of United States v. Jackson, a police officer learned where thieves would house stolen goods. The officer would then obtain those goods and keep the goods for himself and another officer. Government agents set up a fake stash house for stolen goods. The officer took the bait and was ultimately convicted for stealing government property, the property the government used in the sting. What is noteworthy is that at sentencing the Court increased the officer’s sentence for being in possession of a weapon while committing the theft. Read below to see the case summary and complete opinion.

UNITED STATES v. JACKSON (E.D. Mo., Stohr) (5-9-2011)

Factual Summary: Defendant Jackson was a police officer. Agents received information that Defendant Jackson had been using his authority as
uniformed police officer to seize stolen goods. Then, Defendant Jackson would either keep those items for him, share the goods with another officer and also a finder of the stolen goods. Federal Investigators then set up a sting. The federal investigators caught Defendant Jackson in this sting illegally keeping the property. This amounted to theft. While taking the property, Defendant Jackson had his uniform and duty weapon with him. He was convicted of stealing government property. The government property, was the property used by federal agents in the sting. Defendant Jackson’s sentence was then enhanced for possessing a firearm in
connection with the felony, and for his role in organizing and leading the
theft.

The Federal Court of Appeals affirmed the conviction and sentence, holding an officer having his duty weapon on his person when his uniform is used to show authority in committing a theft satisfies the firearm enhancement. Furthermore, the evidence supported his role as a leader because the information about the original “thief” came to him, he recruited the other officer, and he distributed the stolen goods.

UNITED STATES v. JACKSON
UNITED STATES of America, Appellee, v. Ronald JACKSON, Appellant.
No. 10–2027.
— May 09, 2011
Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
Hal Goldsmith, AUSA, argued, St. Louis, MO, for Appellee.V. Clyde Cahill, argued, St. Louis, MO, for Appellant.
Ronald Jackson, formerly a police officer with the St. Louis, Missouri, police department, pleaded guilty to the theft of federal-government property, a violation of 18 U.S.C. § 641. At sentencing, the district court,1 among other things, added eight levels to Jackson’s base offense level for his possession of a dangerous weapon—his duty firearm—in connection with the offense. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2B1.1(b)(13)(B) (2009). It then added two additional levels for his role in organizing and leading the theft. See U.S.S.G. § 3B 1.1(c). Jackson appeals, arguing that because his firearm played no role in facilitating the offense, and because he was not a leader, but rather was a mere “equal part[y]” with his codefendant (another officer), the adjustments found in §§ 2B 1.1(b)(13)(B) and 3B 1.1(c) do not apply. We affirm.
I.
On July 27, 2009, Jackson was on duty as a police officer when an informant tipped him off that a woman, described in the proceedings below only as “Jane Doe,” was in possession of stolen electronics. Unknown to Jackson, the “tip” had been generated by federal investigators, who suspected that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” Sentencing Tr. at 14:13–20. Their plan was to catch Jackson in the act.
The informant gave Doe’s location to Jackson, and the two agreed that Jackson would find her, seize the electronics, and share some of them with the informant. Jackson, a 30–year officer, contacted his co-defendant Christian Brezill, an officer with only 18 months’ experience, and asked if Brezill would help with the theft of the electronics. Brezill agreed to do so, and the two drove to the location the informant had provided, where they found Doe sitting in her car. After a computer check of her name revealed outstanding warrants for minor traffic violations, the officers arrested Doe, handcuffed her, and placed her in the back of Brezill’s police cruiser. They then searched the trunk of her car, recovering the “stolen” electronics, which they put in the trunk of Brezill’s cruiser. The officers booked Doe on the outstanding traffic warrants, but never charged her with possession of the stolen electronics and never reported their recovery to the police department.
Later, after the end of their shift, Jackson and Brezill met to divide the property. Jackson gave part of his share to the informant, kept an XBox gaming system for himself, and sold the rest for cash; Brezill kept a Wii gaming system and a laptop computer for himself, and sold the rest for cash. The total value of the property, all of which belonged to the United States government, was $1480.35.
Jackson and Brezill both pleaded guilty to theft of federal-government property. See 18 U.S.C. § 641. At Jackson’s sentencing, the district court applied—over Jackson’s objection—two upward adjustments to his base offense level. The first was for Jackson’s possession of a dangerous weapon in connection with the theft. See U.S.S.G. § 2B1.1(b)(13)(B). The second was for Jackson’s role in organizing and leading the offense. See U.S.S.G. § 3B1.1(c). The district court then calculated a total offense level of 15 and sentenced Jackson to 18 months’ imprisonment, the low end of the guidelines range. This appeal followed.
II.
“This court reviews the district court’s construction and application of the sentencing guidelines de novo, and we review its factual findings regarding enhancements for clear error.” United States v. Bastian, 603 F.3d 460, 465 (8th Cir.2010) (citation and quotation marks omitted).
Guidelines § 2B 1.1(b)(13)(B) provides a two-level enhancement for “possession of a dangerous weapon (including a firearm) in connection with” a theft. Furthermore, “[i]f the resulting offense level is less than level 14,” it is “increase[d] to level 14.” Jackson had a base offense level of six, see U.S.S.G. § 2B1.1(a)(2), which meant that § 2B 1.1(b)(13)(B) worked an eight-level increase to his base offense level.
Jackson acknowledges that he was in possession of a firearm—his duty weapon—when he committed the theft. But, he argues, there was no “nexus” between the firearm and the offense such that the enhancement found in § 2B1.1(b)(13)(B) could apply. In his view, that section applies only when the weapon advances the criminal enterprise, for example, by “enhanc[ing] the benefits of the offense,” “mak[ing] the offense easier to commit,” “inject[ing] a degree of fear,” or “increas[ing] the seriousness of the crime,” to name a few possibilities. And, Jackson argues, his firearm was just a necessary part of his uniform, “inconsequential” to the commission of the theft.
Section 2B 1. 1(b)(13)(B) requires that the possession of the weapon be “in connection with” the theft. See also U.S.S.G. § 2B 1.1 cmt. background (“Subsection (b)(13)(B) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103–322.”); Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322, § 110512, 108 Stat. 1796, 2019 (1994) (“[T]he United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a defendant convicted of a felony under chapter 25 of title 18, United States Code, if the defendant used or carried a firearm ․ during and in relation to the felony.” (emphasis added)).
But Jackson goes too far in arguing that his firearm was unconnected to his theft of the electronics. As the district court explained:
While the presence of a firearm will not always warrant [application of § 2B1.1(b)(13)(B) ], with regard to this case and this defendant, it’s clear that the presence of defendant’s firearm was not accidental or coincidental. It was available to help to deter resistance or intimidate the victim, and was available to help to protect the defendant in the event that the victim attempted to resist or harm him. In other words, the defendant used his status as a police officer with all the trappings, including the carrying of a service firearm, to commit the [theft].
Sentencing Tr. at 28:20–29:6. Indeed, it was Jackson’s police uniform, which included the firearm, that cloaked him with the apparent authority to arrest Doe, search her vehicle, and confiscate the electronics. Had he not been in uniform, it is not improbable that Doe would have regarded him as just another civilian. In those circumstances, we think it unlikely that she would have complied so readily, if at all, with his directives.
Furthermore, an officer’s visible possession of a firearm, even when it remains holstered, is a signal of authority that will usually promote compliance in an ordinary citizen. Accord Florida v. Bostick, 501 U.S. 429, 448, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (Marshall, J., dissenting) (“Our decisions recognize the obvious point, however, that the choice of the police to ‘display’ their weapons during an encounter exerts significant coercive pressure on the confronted citizen.” (citing cases)). That the department required Jackson to possess the firearm as one of the “certain tools or items in order to perform and carry out his duties,” Appellant’s Br. at 7, only furthers that view. We therefore agree with the district court that Jackson’s possession of a firearm was sufficient to support the enhancement.
III.
Jackson’s next argument—that he was not an organizer or leader for the purposes of guidelines § 3B1.1(c), but rather a mere “equal part[y]” with his co-defendant—fares no better.
Guidelines § 3B1.1(c) provides a two-level enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity” involving fewer than five participants and that was not “otherwise extensive.” See U.S.S.G. § 3B1.1 (criminal activity involving “five or more participants” or that is “otherwise extensive” is covered in parts (a) and (b)). Section 3B1.1(c) differs from § 3B1.1(a) and (b) in that it does not distinguish an “organizer or leader” from a “manager or supervisor”—both are treated to the same two-level enhancement. The background commentary explains:
In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § 3B1.1(c).
U.S.S.G. § 3B1.1 cmt. background. Therefore, when considering whether § 3B1.1(c) applies, it is unnecessary to determine whether the defendant was a mere “manager or supervisor” or instead was a more responsible “organizer or leader.” Still, we think that application note 4, which explains how to “distinguish[ ] a leadership and organizational role from one of mere management or supervision” for the purposes of § 3B 1.1(a) and (b), is a helpful guide in determining whether § 3B1.1(c) should be applied to a defendant. See U.S.S.G. § 3B1.1 cmt. n.4.
That note provides:
In distinguishing a leadership and organizational role from one of mere management or supervision, ․ [f]actors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Id.
Reviewing the facts regarding Jackson’s role in the offense, we conclude that the district court did not err in applying the enhancement. At sentencing, the district court heard testimony that it was Jackson who initially planned the offense, that it was Jackson who recruited an accomplice in Brezill, that Jackson was, by some three decades, the senior officer, that when the two officers found Doe it was Jackson who “made the decision to take the property,” that it was Jackson’s decision to split up the property at Brezill’s parents’ house, and that it was Jackson who shared some of the stolen electronics with the informant. Given those circumstances, a § 3B1.1(c) enhancement was appropriate.
IV.
Jackson’s final claim of error is that the district court punished him “for criminal behavior for which he was not charged,” specifically, that it relied on evidence that Jackson had committed similar “rip off[s]” on numerous prior occasions. Doing so, Jackson argues, conflicted with the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
At sentencing, the government called as a witness FBI Special Agent Anthony Bernardoni, who testified that in “the spring or early summer of 2009” he had received information that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” It was that information that led to the sting operation that gave rise to this prosecution. Furthermore, an addendum to Jackson’s Presentence Investigation Report (PSR) remarked that “Jackson had engaged in this type of illegal activity for quite some time, and he purposely conducted this type of illegal business armed with a weapon in order to intimidate the victims.” Addendum to PSR at 1.
Although Jackson did not object to Bernardoni’s testimony (he did object to the PSR addendum), he repeatedly urged the district court not to consider any “other incidents, crimes, or alleged crimes” that had not been charged. And it seems that the district court took Jackson’s objections to heart, for the record contains no indication that the district court gave any weight to Jackson’s prior, uncharged conduct or that it made reference to such conduct while imposing its sentence. Rather, it noted Jackson’s “lack of a criminal history.” We therefore find meritless Jackson’s contention that the district court’s sentence was based, even in part, on uncharged conduct.
In any event, judge-found facts regarding uncharged conduct may be considered by the district court in selecting a sentence. See United States v. Red Elk, 426 F.3d 948, 951 (8th Cir.2005). So long as the district court treats the guidelines as advisory, as it did here, Booker is not to the contrary. See Booker, 543 U.S. at 233, 259–60; United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir.2006).
V.
The sentence is affirmed.
FOOTNOTES
1. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.
WOLLMAN, Circuit Judge.

Give a friend a ride – make sure you know what’s in the van before you do

There are times when a person may find themselves in a situation wanting to make some easy money. Usually, if it seems too good to be true, it probably is. In the Case of United States v. Listman, a young man agreed to drive a van cross country for about $1,000 a trip. The Defendant was told there were drugs in secret compartments within the van, although Defendant Listman never actually saw the drugs. However, as the case discusses, the knowledge he did have was enough for a jury to convict him of conspiracy to distribute methamphetamine. Read below to see how a seemingly simple act can get you wrapped up into a conspiracy.

Summary:

UNITED STATES v. LISTMAN (4-12-2011)

The Jury convicted Defendant Listman of conspiracy to distribute methamphetamine for his role driving a van carrying the drugs in a hidden compartment. Defendant Listman did know where the trap doors were on the vehicle and there was no evidence that he ever saw the drugs. However, The Federal Court of Appeals Held that Evidence that Defendant Listman knew the van carried drugs was sufficient to support the conviction. There was no need to need to prove he knew where in the van the drugs were.

Furthermore, The Federal Court of Appeals Held there was no error in allowing an officer to testify that Defendant Listman seemed to be under influence of drugs. This testimony was allowed not to show that Defendant was actually under the influence, but was relevant to show his knowledge, court said.

The Federal Court of Appeals rejected Defendant Listman’s argument that since he did not ever see the drugs and really did not know if he was told the truth about what he was doing, that he should be allowed to provide a “Deliberate ignorance” instruction to the jury.

Complete Decision:

636 F.3d 425 (2011)
UNITED STATES of America, Appellee,
v.
Bruce LISTMAN, Appellant.
No. 10-1721.

United States Court of Appeals, Eighth Circuit.
Submitted: December 17, 2010.
Filed: April 12, 2011.

428*428 Steven Ray Davis, N. Little Rock, AR, for appellant.

Anne E. Gardner, AUSA, Little Rock, AR, for appellee.

Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.

RILEY, Chief Judge.

A jury convicted Bruce Listman of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Listman appeals, arguing there was insufficient evidence to support the conviction. Listman also challenges the district court’s[1] evidentiary rulings and inclusion of a deliberate ignorance jury instruction. We affirm.

I. BACKGROUND

A. Facts[2]

From approximately March to November 2008, Listman was a courier for the Valdovinos drug trafficking organization. Candice Russell recruited Listman to drive with her from California to Arkansas because she did not have a driver’s license.

Russell and Listman drove vehicles modified to include a trap door concealing a hidden compartment. The vehicles carried methamphetamine to Arkansas and cash back to California. Listman and Russell deny knowing the specific locations of the traps.

Listman accompanied Russell on four trips.[3] Russell did not tell Listman they were smuggling drugs during their first trip to Arkansas. During their second trip, Russell told Listman “what was going on … [b]ecause it wasn’t right for him not to know.” Russell received approximately $2500 per round-trip. In turn, Russell paid Listman $1000 per trip in addition to methamphetamine.

Starting in September 2008, the offices of the United States Department of Justice Drug Enforcement Agency (DEA) in California and in Arkansas began investigating the Valdovinos drug trafficking organization, surveilling and arresting various participants. During the investigation, the DEA identified Russell as a courier.

On November 21, 2008, California Highway Patrol Officer Anthony Cichella, acting on DEA information relayed to him from an area police department, stopped a gray Toyota Corolla traveling westbound on Interstate 10 near Fontana, California. Russell was driving the vehicle and Listman was a passenger. Russell consented to a search of the vehicle. With a drug dog’s assistance, Officer Cichella discovered a trap over a modified compartment under the rear bench seat. The trap contained a crystalline residue, which Officer Cichella believed to be methamphetamine.

During the encounter, Officer Cichella observed Listman was fidgety, moody, easily agitated, and at times uncooperative. 429*429 This led Officer Cichella to conclude Listman “was definitely under the influence.” Officer Cichella did not conduct a field sobriety test and did not arrest Listman for being under the influence of a controlled substance. Officer Cichella took both Russell and Listman to the police station and seized the Corolla.

B. Prior Proceedings

A federal grand jury charged Listman with conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.[4] Listman moved to suppress evidence of Officer Cichella’s discovery of the trap, arguing the stop and search violated his Fourth Amendment rights. Alternatively, Listman moved in limine to exclude evidence of the trap, contending “testimony that he was a passenger in a vehicle which contained a hidden compartment which police suspected of being used to transport drugs would unduly prejudice his defense.” The district court denied both motions.

A three-day jury trial began on January 19, 2010. Law enforcement officers and four co-conspirators, including Russell, testified for the government. At trial, Listman objected to Officer Cichella’s observation that Listman was under the influence of drugs during the traffic stop, arguing Listman’s drug use was not relevant. The district court ultimately found the evidence admissible because “although [Listman’s] personal use of methamphetamine does not lead to the conclusion that he must have been involved in a conspiracy, it does show … that methamphetamine was … in his presence … [a]nd … would indicate he had some knowledge.” At Listman’s request, the court instructed the jury “if you believe … Listman used methamphetamine … you may not just from that alone conclude that he was involved in a conspiracy … to possess with intent to distribute.”

At the close of the government’s case, the district court denied Listman’s Fed. R.Crim.P. 29 motion for a judgment of acquittal. Listman testified in his own defense. Before closing arguments, Listman objected to the district court’s inclusion of a deliberate ignorance jury instruction. The district court overruled the objection and included the instruction. The jury found Listman guilty. Listman appeals.

II. DISCUSSION

A. Sufficiency of the Evidence

Listman claims the evidence supporting his conviction was insufficient. We “review[] sufficiency of the evidence de novo and reverse[] only if no reasonable jury could have found the defendant guilty.” Clay, 618 F.3d at 950. We must sustain a conviction when the evidence, viewed most favorably to the government, substantially supports the verdict. See id.

To convict Listman of conspiracy to distribute methamphetamine, “the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute [methamphetamine]; (2) that [Listman] knew of the conspiracy; and (3) that [Listman] intentionally joined the conspiracy.” United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir.2007) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir.2007)) (internal quotation marks omitted). Listman concedes there was a conspiracy, but argues the government failed 430*430 to prove he knew of or intentionally joined the conspiracy.

The evidence was sufficient for the jury to conclude Listman knew he was transporting methamphetamine. Russell testified she told Listman they were transporting drugs, and it was the jury’s prerogative to believe her. “The jury is the final arbiter of the witnesses’ credibility, and we will not disturb that assessment.” United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004). The government also produced circumstantial evidence—such as Russell paying Listman cash and methamphetamine, and Russell and Listman using methamphetamine together during the trip—supporting an inference Listman knew he was transporting drugs.

Listman argues “a person who is caught driving a car full of drugs does not possess them in a legal sense if he did not know what he had.” See United States v. Mendoza-Larios, 416 F.3d 872, 873-74 (8th Cir.2005) (noting legal possession could not be inferred based solely on the defendant driving a car containing large quantities of hidden illegal drugs). This proposition, while true, is inapplicable here because the jury heard direct and circumstantial evidence demonstrating Listman knew he was transporting methamphetamine. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir.1994) (holding direct and circumstantial evidence supported finding driver was aware of the presence of drugs within the vehicle). It is not necessary to prove Listman knew exactly where in the vehicle the drugs were hidden.

B. Motion in Limine

Listman argues “the trial court erred in denying Listman’s motion in limine and objections at trial” to Officer Cichella’s testimony regarding the vehicle stop. Specifically, Listman challenges Officer Cichella’s testimony regarding the existence of the hidden trap and his assessment that Listman was under the influence of drugs.

“We review the district court’s evidentiary ruling for clear abuse of discretion, and will not reverse if the error was harmless.” United States v. Hyles, 479 F.3d 958, 968 (8th Cir.2007) (internal citation omitted). “The trial court has broad discretion in determining the relevancy and admissibility of evidence” and “great deference is given to a district court’s balancing of the relative value of a piece of evidence and its prejudicial effect.” United States v. Zierke, 618 F.3d 755, 759 (8th Cir.2010) (quoting Jiminez, 487 F.3d at 1145) (internal quotation marks omitted); see also United States v. Emmanuel, 112 F.3d 977, 979 (8th Cir. 1997) (“The district court’s discretion is particularly broad in the context of a conspiracy trial.”)

We perceive no reversible error here. The very existence of the hidden trap was probative as to whether Listman participated in the conspiracy and the danger of unfair prejudice, if any, did not substantially outweigh this probative value. See Fed.R.Evid. 403. “[E]vidence is not unfairly prejudicial merely because it tends to prove a defendant’s guilt.” United States v. Boesen, 541 F.3d 838, 849 (8th Cir.2008).

Neither are we persuaded the admission of Officer Cichella’s assessment that Listman was under the influence of drugs was an abuse of discretion. The district court found this assertion probative of Listman’s knowledge that he was transporting methamphetamine. The officer’s assessment also corroborated Russell’s testimony that Russell and Listman discussed methamphetamine, Russell paid Listman, in part, with methamphetamine, and they used methamphetamine during the trips. Considering the court’s accompanying 431*431 cautionary instruction that the jury could not conclude Listman was involved in the conspiracy based solely upon Listman’s use of drugs, we find no abuse of discretion. See United States v. Davidson, 449 F.3d 849, 853 (8th Cir.2006) (noting a cautionary instruction to the jury diminished the risk of unfair prejudice to the defendant). Regardless, any error was harmless. It is difficult to imagine the challenged evidence substantially influenced the verdict, see United States v. Donnell, 596 F.3d 913, 919 (8th Cir.2010), particularly because Listman admitted he often used methamphetamine with Russell, and on at least one occasion during their trips to Arkansas, Russell started to smoke methamphetamine.

C. Jury Instruction

Listman argues the district court erred in instructing the jury on a theory of deliberate ignorance consistent with Eighth Circuit Model Criminal Jury Instruction 7.04 (2007), contending “there is absolutely no evidence that Listman deliberately avoided learning about the drug conspiracy.” We disagree.

We review the inclusion of a jury instruction for an abuse of discretion and consider whether any error was harmless. See United States v. Hernandez-Mendoza, 600 F.3d 971, 979 (8th Cir.2010). “A deliberate ignorance instruction is appropriate when the evidence is sufficient to support a jury’s conclusion that `the defendant had either actual knowledge of the illegal activity or deliberately failed to inquire about it before taking action to support the activity.'” Id. (quoting United States v. Whitehill, 532 F.3d 746, 751 (8th Cir.2008)). “Ignorance is deliberate if the defendants were presented with facts putting them on notice criminal activity was particularly likely and yet intentionally failed to investigate.” Whitehill, 532 F.3d at 751. It is “not appropriate if the evidence implies defendants could only have had `either actual knowledge or no knowledge of the facts in question.'” Id. (quoting United States v. Parker, 364 F.3d 934, 946 (8th Cir.2004)).

As discussed above, Russell’s testimony and other evidence supported a conclusion Listman knew he was transporting methamphetamine. The jury could have disbelieved Russell and still concluded Listman knew it was likely he was transporting drugs and chose to remain ignorant. Listman contends, “There is no reason to believe that a methamphetamine user like [Listman] could conduct an investigation worthy of Sherlock Holmes and discover the existence of a multi-level conspiracy to transport methamphetamine.” To the contrary, we deduce it is elementary that someone recruited to drive across the country on multiple occasions in exchange for cash and drugs would suspect criminal activity was afoot. Listman’s own testimony that he wondered whether Russell had methamphetamine on her “[b]ecause she used so much more [methamphetamine] than anyone [Listman had] known before” is strong evidence Listman had some notice. The deliberate ignorance instruction was appropriate, and giving the instruction was not an abuse of discretion.

III. CONCLUSION

We affirm the judgment of the district court.

[1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

[2] “We recite the facts in the light most favorable to the jury’s verdict[].” United States v. Clay, 618 F.3d 946, 948 n. 2 (8th Cir.2010) (quoting White v. McKinley, 605 F.3d 525, 528 (8th Cir.2010)) (internal quotation marks omitted).

[3] Listman did not return with Russell on the first trip, opting instead to fly home to California.

[4] This indictment superseded an already existing indictment against other participants in the conspiracy. In January 2010, a grand jury returned a second superseding indictment, charging Listman with the same crime.

Online Dog chat leads to murder and taking of unborn fetus

There are certain acts that must take place before something is a federal crime. An act that takes place entirely within State boundaries is not a federal crime, but a State crime. A physical assault with the use of hands is an example. This is why most murder cases are not federal crimes, but is instead State crimes.

The crime must involve an act that goes beyond the state lines in order to be prosecuted Federally. This includes federal lands that are within States. Tribal lands or federal military posts are examples. A crime committed on these lands is within federal jurisdiction because these are federal lands and not state lands.

An easy way to remember what other crimes might be a federal crime is to remember the Commerce Clause, Article I, Section 8 of the United States Constitution. If interstate commerce, the crossing over state lines, is used to commit the crime, then a Federal Crime has been committed. This involves many acts that you may not initially think about. Acts that involved the use of Interstate Highways, guns – which are usually made with parts from different states, ammunition – usually mad in a state different than where the gun was made, or made with parts from outside the state, mail fraud, are all examples of items used in a crime that may make for a federal offense.

The failure to involve something that crosses states lines, or on federal lands, is why many murder cases are not federal crimes. However, in the case United States v. Montgomery, discussed below, there was a kidnapping that then crossed state lines and death resulted as an act of the kidnapping across state lines. This is an example of a murder that can be prosecuted federally.

Some of you may have heard about this case, or watched reenactments on television shows. This case involves two ladies that first met at a dog show and continued discussions at an online discussion board about their breed of dog. Be forewarned, the story is a little gruesome.

UNITED STATES v. MONTGOMERY (4-5-2011)

Defendant Montgomery was convicted and sentenced to death for kidnapping, transport of kidnapping victim to another state, and death resulting from kidnapping. Defendant Montgomery killed a pregnant woman and then cut the fetus from her womb so she could claim to have given birth.

The Federal District Court held that the death resulted from the kidnapping of a person, although the mother’s death preceded the removal from the womb. The death resulted from the kidnapping, which occurred beginning with the birth and taking of the new born, and the murder was committed in furtherance of the intended kidnapping.

Here is a link to the entire opinion for some light and joyful reading: http://media.ca8.uscourts.gov/opndir/11/04/081780P.pdf

Alternative Perpetrator, First Degree Murder

There are certain defenses that are called affirmative defenses. In such a defense, the Defendant offers evidence that will negate guilt. This is different than a standard not guilty defense. In a standard not guilty defense, the defendant does not present evidence. The Constitution does not require the Defendant to introduce evidence as the Defendant is already presumed innocent and the government bears the burden to prove the Defendant guilty beyond a reasonable doubt.

There are certain rules that go along with Affirmative Defenses before the trial court will allow the jury to hear such evidence. This includes notice requirements and evidentiary weight thresholds. The analysis by the Court should also consider the Defendant’s Right to present a defense. Read below to view a summary on a case about a first degree murder case where the Minnesota Supreme Court ruled that a trial court should have allowed Defendant to argue that an alternative perpetrator committed the crime. A link to the complete case is at the end of the summary.

State v Ferguson (SUP CT, 10-19-2011, A10-0499, Hennepin Co)

Alternative Perpetrator

Defendant Ferguson was convicted of First Degree Murder. The trial court prohibited Defendant Ferguson from introducing alternative perpetrator evidence to the jury. In order for alternative perpetrator evidence to be admissible, the evidence about the alternative perpetrator must create must connect the alternative perpetrator to the crime.

Defendant Ferguson proffered that the alternative perpetrator he was suggesting committed the crime, had similar physical features to the Defendant Ferguson, drove car similar to Defendant Ferguson and was identified as being in the area at time of crime.

The Supreme Court Ruled that the Trial Court erred and Defendant Ferguson met the threshold for the admission of alternative perpetrator evidence and the jury should have been allowed to consider this evidence. The Supreme Court of Minnesota ruled that it was error to exclude it.

The Supreme Court also noted that only one person identified the defendant as the shooter. The Supreme Court therefore, also analyzed whether the denial of Defendant’s defense of alternative perpetrator was harmless beyond a reasonable doubt. The Supreme Court this error was not harmless and therefore, Defendant Ferguson’s right to present a complete defense was violated.

The Conviction reversed and a new trial was ordered by the Supreme Court of Minnesota.

Here is a link to the complete opinion: http://minnesotasupremecourtopinions.justia.com/2011/10/20/state-v-ferguson/

Police Interrogations should be recorded in Minnesota

Most people know of their 5th Amendment Right to remain silent when questioned by law enforcement. This Right does not mean that a person can lie or mislead. There are times when a government agent, police officer, or investigator will testify that a Defendant made a certain statement to them about the case. This testimony may be derived from the officer’s interpretation of the statement made, a sarcastic comment made by the Defendant, or, according to many Defendants, a false claim made by the officer that the Defendant made the comment. In Federal Court and in many States, this contradiction is to be determined by the jury – through the weight of the evidence. The problem is, for the jury to weigh the evidence, the Defendant will often have to take the stand to deny making the statement. This will subject the Defendant to cross examination and a waiver of his 5th Amendment Rights to Remain Silent.

Minnesota has protected the individual by requiring law enforcement to record all in custody interviews where feasible. This requirement was created in the case, State v. Scales, 518 N.W.2d 587 (Minn. 1984). See below to read this entire opinion. Call me at 651-200-3484 if you have questions about a case you may be involved with.

518 N.W.2d 587 (1994)
STATE of Minnesota, Respondent,
v.
Michael Jerome SCALES, Appellant.
No. C4-93-1541.

Supreme Court of Minnesota.
June 30, 1994.
Rehearing Denied August 22, 1994.

589*589 John M. Stuart, State Public Defender, Marie L. Wolf, Asst. State Public Defender, Minneapolis, and Michael J. Scales, Stillwater, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Michael O. Freeman, Linda K. Freyer, Asst. County Atty., Minneapolis, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

WAHL, Justice.

Michael Jerome Scales appeals from a judgment of conviction, after a jury trial in a Hennepin County District Court, of two counts of first degree murder[1] and one count of second degree intentional murder[2] in connection with the stabbing death of Otha Brown. He was sentenced to life in prison.

The primary issue on appeal is whether appellant has a due process right under the Minnesota Constitution to have his entire interrogation by law enforcement authorities recorded or whether this court should exercise its supervisory powers to mandate such a requirement. Appellant also challenges the admission of three photographs and the trial court’s instruction on reasonable doubt. In the exercise of our supervisory powers we mandate a recording requirement for all custodial interrogations. We affirm the conviction.

Otha Brown was the mother of Angela Walker, appellant’s girlfriend, and the grandmother of Michael Scales, Jr., appellant’s two-year-old son. Appellant, Angela, Angela’s three children, including Michael Jr., and two of the Browns’ other grandchildren lived with Otha and her husband Leon in Minneapolis. In spite of her poor health, Otha Brown raised her grandchildren, was active in her church, and was a school bus driver.

At approximately 1:00 a.m. on October 4, 1992, appellant walked into the Browns’ bedroom, told Otha Brown that he was sick, and asked her to drive him to the hospital. Otha Brown agreed to drop appellant off at the hospital, threw a coat over her nightgown, and went out to her van. Leon Brown testified that appellant came back to the bedroom a few minutes later explaining that Otha Brown had forgotten her purse and had asked him to get it. After appellant left, Leon Brown went back to sleep but woke up around 2:00 or 3:00 a.m. and discovered that his wife had not returned and that Michael Jr. was missing.

Around 7:00 a.m., Otha Brown’s body was found in an alley on Osseo Road. She had been stabbed 26 times with a single-edged knife. Two or three of the wounds could have caused Otha Brown’s death. No weapons were found in the area where the body was discovered, but the police recovered a bloody “Emperor Steel” butcher knife and a bloody knit hat at a different location. The blood on the knife and the hat was consistent with Otha Brown’s blood and the knife matched an “Emperor Steel” knife found in the Browns’ kitchen.

Appellant’s statements to the police and the testimony at trial established that during the early morning hours of October 4, appellant was at a crack house getting high and making drug runs in Otha Brown’s van. Timothy Hill, an individual who accompanied appellant on one of these drug runs, testified that he noticed a red substance on the running board of the van. David Neal testified that while he was on a drug run with appellant, appellant mentioned that he had killed someone for money so he could repay people who were threatening to hurt him. While at the crack house, appellant handed out Otha Brown’s checks and credit cards. Jeffrey Pearson, who received several of these items, testified that the plan was for him to purchase merchandise, sell it for cash, and share the proceeds with appellant. Appellant himself 590*590 made two unsuccessful attempts to use Otha Brown’s bank card shortly after the time she was killed.

Otha Brown’s van was found on October 5. Blood, consistent with Otha Brown’s blood, was found throughout the van, but the greatest concentration was on the driver’s door, the signal and shift levers, the driver’s seat, the carpet, and the running board. Her purse was recovered in the vicinity where the van was found.

When appellant and his son returned home around 7:00 p.m. on October 4, the police placed him in a squad car and took him to the police station. Sergeant Michelle Smolley, Minneapolis Police Department homicide unit, and Special Agent Rick Loewen, a BCA investigator on loan to the Minneapolis police, began questioning appellant around 8:40 p.m. Both officers testified that before they questioned appellant, they gave him Miranda warnings. Appellant said he understood his rights, and indicated that he wished to waive them. The officers interrogated appellant for approximately three hours before conducting a formal question-and-answer statement that was simultaneously transcribed. No other part of the interview was recorded.

At the Rasmussen hearing, appellant disputed much of what the officers had said about the nature of the interview and the timing and content of the Miranda warnings. Appellant testified that he was not told he was under arrest or given any warnings until the interrogation was well underway, that when the warnings were given he was not asked if he understood his rights or was willing to waive them, that he was told, untruthfully, that his fingerprints had been found on the suspected murder weapon, and that he was “half liquored” and unable to use the bathroom during the interview. Appellant also denied giving several of the answers contained in the written statement and said that he was not permitted to read the statement before signing it. Appellant moved to suppress the formal statement and his other comments to police on the grounds that he had not received timely Miranda warnings, that the waiver of his rights was not explicit, and that neither the reading of his rights nor his three-hour interview was recorded. The trial court, in denying the motion, declined to rule on whether there is a constitutionally based recording requirement.

At trial, Agent Loewen testified that appellant told two accounts of the events of October 4, 1992. In both versions, appellant said he and Otha Brown drove to the hospital and then decided to leave. When they returned home appellant, at Otha Brown’s request, went inside to get her purse. He noticed that Michael Jr. was awake and brought him out to the van. Otha Brown then drove to a grocery store. At this point, the stories diverged. Initially, appellant said that Otha Brown dropped him off at the store after giving him $20, and he told the police he had not seen her since. He later changed his story and admitted to being “involved” in Otha Brown’s death.

In a formal statement consistent with his second story, appellant said that while he was looking for his ID on the way to the hospital, he reached into the seat pocket and felt a knife. As in the first story, appellant said he returned to the house where he picked up Otha Brown’s purse and his son. Consistent with the second story, however, appellant stated that when they reached the grocery store Otha Brown tried to give him more money than he wanted. He pushed her away while holding the knife in his hand and she fell to the floor of the van.

The next thing appellant remembered was driving away with bloody hands and throwing the knife out the window. When the officers asked appellant if he had blood on his sweatshirt, appellant said he did and admitted that it “most likely” was Otha Brown’s blood. Forensic tests confirmed that the blood on appellant’s clothes, shoe, wallet, players card, and pocket knife was consistent with the blood of Otha Brown. In addition, appellant’s bloody fingerprints were found inside the van. He also had an abrasion on the inside of his thumb that was consistent with the use of a knife.

This appeal clearly focuses on whether there should be a recording requirement for custodial interrogations under either the Due Process Clause of the Minnesota Constitution 591*591 or the supervisory authority of this court. In previous cases, we have been concerned about the failure of law enforcement officers to record custodial interrogations. State v. Robinson, 427 N.W.2d 217, 224 (Minn.1988); State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). In Robinson we observed that, as a practical matter, many factual disputes about the denial of a defendant’s constitutional rights would be avoided if all conversations between the police and a suspect were recorded. 427 N.W.2d at 224 n. 5. More recently, in Pilcher we “urge[d] * * * law enforcement professionals [to] use those technological means at their disposal to fully preserve those conversations and events preceding the actual interrogation” and warned that we would “look with great disfavor upon any further refusal to heed these admonitions.” 472 N.W.2d at 333. Appellant claims that by failing to preserve the entire interrogation, the police deliberately ignored our warning, thereby depriving him of his right to due process under the Minnesota Constitution.

The trial court distinguished Robinson and Pilcher on the grounds that the police conduct in those cases raised questions about an ambiguous or equivocal statement regarding the need for counsel, whereas in this case appellant does not allege that he asked for an attorney, failed to understand the Miranda warnings, or asked to terminate the interview. Although defense counsel raised the due process issue, the trial court declined to rule on whether appellant was deprived of a state constitutional right.

Appellant relies on Stephan v. State, 711 P.2d 1156 (Alaska 1985), which held that the unexcused failure to electronically record a custodial interrogation violated a suspect’s right to due process under the Alaska Constitution. Id. at 1158. The Alaska Supreme Court found this constitutional right because law enforcement officials had failed to follow the rule it had established five years earlier: “it is incumbent upon [Alaska law enforcement officials] to tape record, where feasible, any questioning [of criminal suspects,] and particularly that which occurs in a place of detention.” Mallott v. State, 608 P.2d 737, 743 n. 5 (Alaska 1980)

A recording requirement, the Stephan court stated, provides a more accurate record of a defendant’s interrogation and thus will reduce the number of disputes over the validity of Miranda warnings and the voluntariness of purported waivers. Stephan, 711 P.2d at 1160-62. In addition, an accurate record makes it possible for a defendant to challenge misleading or false testimony and, at the same time, protects the state against meritless claims. Recognizing that the trial and appellant courts consistently credit the recollections of police officers regarding the events that take place in an unrecorded interview, the court held that recording “is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Id. at 1159-60. A recording requirement also discourages unfair and psychologically coercive police tactics and thus results in more professional law enforcement.

Other courts have noted the protections that a recording requirement would provide but no state as yet has followed the Stephan decision.[3] Commentators have advocated a recording requirement. Yale Kamisar, Brewer v. Williams: A Hard Look at a Discomfiting Record, 66 Geo.L.J. 209 (1977-78); Glanville Williams, The Authentication of Statements to the Police, Crim.L.Rev. 6 (Jan. 1979). The Uniform Rule of Criminal Procedure 243 (1974) provides that information about rights, any waiver, and all questioning shall be recorded where feasible, and must be recorded when the questioning occurs at a place of detention. The Model Code of Pre-Arraignment Procedure § 130.4(3) (1975) also contains a recording requirement.

592*592 The United States Supreme Court has not addressed the recording issue directly but even if custodial interrogations do not need to be recorded to satisfy the due process requirements of the Federal Constitution, we are not precluded from finding a recording requirement under the Minnesota Constitution. This court has “the power to provide broader individual rights under the Minnesota Constitution than are permitted under the United States Constitution.” State v. Murphy, 380 N.W.2d 766, 770 (Minn.1986).

We are persuaded, as was the Stephan Court, that the recording of custodial interrogations “is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Stephan, 711 P.2d at 1150-60. We are disturbed by the fact that law enforcement officials have ignored our warnings in Pilcher and Robinson. In Stephan, the state argued on behalf of the police department that the failure to record an entire interrogation was based on the “chilling effect” recordings had on a suspect’s willingness to talk. 711 P.2d at 1162. Here, however, the state simply asserts that such a requirement is not constitutionally required and questions whether the requirement would, in fact, provide greater protections for defendants or make a substantial difference in police practices.

We choose not to determine at this time whether under the Due Process Clause of the Minnesota Constitution a criminal suspect has a right to have his or her custodial interrogation recorded. Rather, in the exercise of our supervisory power to insure the fair administration of justice,[4] we hold that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial. The parameters of the exclusionary rule applied to evidence of statements obtained in violation of these requirements must be decided on a case-by-case basis. Following the approach recommended by the drafters of the Model Code of Pre-Arraignment Procedure, suppression will be required of any statements obtained in violation of the recording requirement if the violation is deemed “substantial.” This determination is to be made by the trial court after considering all relevant circumstances bearing on substantiality, including those set forth in § 150.3(2) and (3) of the Model Code of Pre-Arraignment Procedure.[5] If the court finds a violation not to be substantial, it shall set forth its reason for such finding. 593*593 The rule and the remedy will apply prospectively from the date of the filing of this opinion. The Advisory Committee on Criminal Rules may further consider the issue of the proper scope of the exclusionary rule in this context.

Though the police in this case disregarded our prior warnings in Robinson and Pilcher, we affirm appellant’s conviction because even if the unrecorded statements had been suppressed the result would have been the same. Appellant makes no claim that the unrecorded interrogation contained exculpatory evidence and the evidence against him without the statements was very strong.

On the night Otha Brown was killed, appellant convinced her to drive him to the hospital but there is no evidence in the record that they ever arrived at the hospital. Shortly after the time Otha Brown was killed appellant was photographed attempting to use her bank card and, according to several witnesses, appellant was at a crack house handing out Otha Brown’s credit cards and checks with the understanding that he would receive a portion of any proceeds from their use. One of the witnesses who went on a drug run in Otha Brown’s van after she was killed testified that he noticed a red substance on the running board where the police later found a substantial amount of Otha Brown’s blood. Another witness testified that appellant mentioned that he had killed someone for money. When appellant was arrested, his clothes, shoes, and wallet were covered with Otha Brown’s blood. Moreover, his bloody fingerprints were found in the van and the murder weapon matched a knife from the Browns’ kitchen. In light of this evidence, any error in admitting the unrecorded statements was harmless.

Appellant also challenges the admission of three photographs — two of which showed Otha Brown with her grandchildren and one of which showed Otha Brown at Disney World with Mickey Mouse. The admission of photographs is a matter left to the discretion of the trial judge and will not be reversed absent a clear abuse of discretion. State v. Friend, 493 N.W.2d 540, 544 (Minn. 1992). Here, where the photographs were used to provide background information about the family and to personalize Otha Brown and where the number of photographs used for these purposes was small, the trial court did not err in admitting them.

Appellant makes a pro se challenge to the trial court’s instruction that the jurors “should discuss the case with one another and deliberate with a view to reaching agreement if you can do so without violence to your individual judgment.” Appellant claims that the term “violence” had a negative impact on the jury’s understanding of reasonable doubt because it distorted the intensity a juror must feel before changing his or her mind. He also claims that it was error to give the instruction to a nondeadlocked jury. Neither argument is persuasive. First, the sentence appellant complains about is not an instruction on reasonable doubt, but is part of an instruction about the duty of the jurors to discuss the case and is taken directly from CRIMJIG 3.04 (Unanimous Verdict — Duty of Jurors to Discuss). Moreover, in State v. Martin, 297 Minn. 359, 371-72, 211 N.W.2d 765, 772 (1973), we specifically approved the language used in this instruction. We also approved of the instruction being given at the outset of deliberation, because “[t]he jury is forewarned of how it should proceed to forestall a deadlock” and because the “potential for coercion is minimized if the charge is simply reread at a time when the jury appears to be deadlocked.” Id. Thus, the trial court did not err in instructing the jury.

We affirm the judgment of conviction.

Affirmed.

TOMLJANOVICH, Justice (concurring in part, and dissenting in part).

I agree with the majority that the conviction in this case be affirmed; however, I vigorously dissent from that portion of the majority’s opinion holding that an unexcused failure to electronically record a statement during custodial interrogation must result in a suppression of that statement.

Custodial interrogations need not be recorded to satisfy the due process requirements of the United States Constitution relating to the preservation of evidence, as 594*594 established in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); see Stephan v. State, 711 P.2d 1156 (Alaska 1985). Moreover, as the majority indicates, of all the states that have addressed this issue, only the Alaska Supreme Court has held that the unexcused failure to record a statement during custodial interrogation must result in suppression of the statement.[1] I am unwilling at this time to depart from the rule of the vast majority of courts in this country.

While the recording of statements is desirable in many respects, I am not persuaded that recording is essential to the adequate protection of the accused’s right to a fair trial. I am especially reluctant to assume in the absence of any evidence that trial and appellate courts “consistently credit the recollections of police officers,” slip opinion at 7, and thereby routinely abandon their obligation to fairly assess the credibility of witnesses.

An exclusionary rule is a drastic remedy. I believe such a drastic remedy should be applied only after a full hearing of all the policy implications and with adequate notice to law enforcement. See State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960, 963 (1991). This is particularly true where a right is not found to be rooted in the state constitution.

I would recommend the matter be referred to the Supreme Court Advisory Committee on Rules of Criminal Procedure for further consideration.

[1] Pursuant to Minn.Stat. §§ 609.185(1) and § 609.185(3).

[2] Pursuant to Minn.Stat. § 609.19(1).

[3] See People v. Raibon, 843 P.2d 46, 49 (Colo. App.1992); Commonwealth v. Fryar, 414 Mass. 732, 610 N.E.2d 903, 909 n. 8 (1993); State v. Buzzell 617 A.2d 1016, 1018-19 (Me.1992); Williams v. State, 522 So.2d 201, 208 (Miss. 1988); Jimenez v. State, 105 Nev. 337, 775 P.2d 694, 696 (1989); State v. James, 858 P.2d 1012, 1017-18 (Utah App.1993); State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960, 961-63 (1991). See also State v. Rhoades, 119 Idaho 594, 809 P.2d 455, 462 (1991); State v. Gorton, 149 Vt. 602, 548 A.2d 419, 422 (1988).

[4] See State v. Borst, 278 Minn. 388, 397, 154 N.W.2d 888, 894 (1967).

[5] Section 150.3(2) and (3) provide as follows: (2) Violations Deemed Substantial. A violation shall in all cases be deemed substantial if one or more of the following paragraphs is applicable:

(a) The violation was gross, wilful and prejudicial to the accused. A violation shall be deemed wilful regardless of the good faith of the individual officer if it appears to be part of the practice of the law enforcement agency or was authorized by a high authority within it.

(b) The violation was of a kind likely to lead accused persons to misunderstand their position or legal rights and to have influenced the accused’s decision to make the statement.

(c) The violation created a significant risk that an incriminating statement may have been untrue.

(3) Circumstances to Be Considered in Determining Substantiality. In determining whether a violation not covered by Subsection (2) is substantial, the court shall consider all the circumstances including:

(a) the extent of deviation from lawful conduct;

(b) the extent to which the violation was wilful;

(c) the extent to which the violation was likely to have led the defendant to misunderstand his position or his legal rights;

(d) the extent to which exclusion will tend to prevent violations of this Code;

(e) whether there is a generally effective system of administrative or other sanctions which makes it less important that exclusion be used to deter such violations;

(f) the extent to which the violation is likely to have influenced the defendant’s decision to make the statement; and

(g) the extent to which the violation prejudiced the defendant’s ability to support his motion, or to defend himself in the proceeding in which the statement is sought to be offered in evidence against him.

[1] The Alaska Supreme Court did not rely on its supervisory powers but held that an exclusionary rule was necessary to protect a suspect’s right to due process under the Alaska Constitution.

Probationers and Parolees have a limited expectation of privacy

A Parolee or a person on probation soon finds out that the application of their Constitutional Rights is analyzed much different than a person not on Parole or probation. The person may be required to do drug testing, make scheduled meetings, or as the following case shows, be subjected to searches of their person or residence without the requirement of a search warrant. In this case, the parolee learned from the Court that his expectation of Privacy under the 4th Amendment of the Constitution is much less than the citizen not on parole or probation. I have included a summary of the case first, followed by the entire opinion for you to read how the application of your Rights are analyzed by the Court when you are on probation or parole.

State of Minnesota v Heaton
(CT APPS, 05-07-2012, A11-659, St. Louis Co)

Issue: Search of parolee’s person and residence

In this case, the court holds that a parolee’s house and person can be searched pursuant to a valid parole condition and upon reasonable suspicion.

The facts which gave rise to the reasonable suspicion were as follows:

Defendant Heaton was a passenger in a car that was stopped by the police. An occupant, not Defendant Heaton, was arrested on an outstanding warrant. Defendant Heaton had $3000 in cash on his person which he said he got from a sale of his car. However, Defendant Heaton could not provide proof of the transaction, or the name of the person to whom he sold the car.

Defendant Heaton’s Parole officer was notified by police about the stop. The Parole Officer waited for Defendant Heaton to return to his apartment and then searched him. During the search, the Parole Officer found methamphetamine, $2,600 in cash and a gun in Defendant Heaton’s apartment. Defendant Heaton was subsequently convicted of a drug offense and gun possession. Defendant Heaton was then sentenced to 60 months and 100 months concurrent.

Conviction affirmed there was reasonable suspicion to search. The concurring opinion states that a Parole Officer does not even need reasonable suspicion to search.

STATE OF MINNESOTA IN COURT OF APPEALS
State of Minnesota, Respondent,
vs.
Stirling Michael Heaton, Appellant.
Filed May 7, 2012

Affirmed

Hudson,Judge
Concurring specially, Ross, Judge
St. Louis County District Court File No. 69DU-CR-10-2498

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, Minnesota; andMark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Jodie Lee Carlson, Assistant Public Defender,
St. Paul, Minnesota; andBradley T. Smith, Special Assistant Public Defender, Dorsey & Whitney LLP, Minneapolis, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge;Halbrooks, Judge; and
Hudson,Judge
.
S Y L L A B U S

No more than reasonable suspicion is required to search a parolee’s home
when the search is conducted pursuant to a valid parole condition.

O P I N I O N

HUDSON,Judge

On appeal from his convictions of possession of a firearm by a felon and possession of methamphetamine, appellant argues that (a) his right to be free from warrantless searches was violated when his parole officer conducted a search of his apartment and (b) because he did not consent to the warrantless search, the district court erred by not suppressing evidence
discovered during the search. Because a valid, warrantless search of a parolee’s home may be conducted if the search was conducted pursuant to a valid parole condition and was supported by reasonable suspicion, we affirm.

FACTS
On July 13, 2009, appellant was released from prison after his incarceration for unlawful possession of a firearm by a prohibited person;
appellant was then placed on intensive supervised release. Before appellant’s release, the parole officer assigned to supervise appellant
familiarized himself with appellant’s criminal history and prior contacts with law enforcement, including a previous parole compliance search in 2006
that resulted in the discovery of a loaded pistol. Discovery of the firearm led to appellant’s conviction. Appellant’s release status was reduced on July 13, 2010, from intensive supervised release to supervised release status. Appellant’s conditions of release stated: “The offender will submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.” There is no dispute that appellant signed the conditions of release.

On July 22, 2010, appellant was a passenger in a vehicle stopped by Carlton County law enforcement. Another occupant of the vehicle was arrested on an outstanding warrant. During the stop, appellant was searched, and officers found that he was carrying $3,000 in cash. Appellant told the officers that the cash came from the sale of his car, but he was unable to provide documentation regarding the transaction. The
next day, appellant’s parole officer was informed by law enforcement
about the traffic stop. Appellant also contacted the parole officer that day, as required by his parole release conditions, and told him of the contact with law enforcement. The parole officer thought it “very odd” that appellant, with a modestly paying job, would carry $3,000 in cash with no documentation to explain the source of the income. Based on the discovery of the cash and the parole officer’s knowledge of the 2006 search, the parole officer determined that “there was a strong possibility” that appellant’s apartment contained contraband. The parole officer, accompanied by three plain clothes police officers, went to appellant’s apartment and knocked on the door, but appellant was not there. The parole officer then went to the restaurant where appellant worked as a cook, but he was unable to speak with him because the restaurant wa
s busy. The parole officer returned to appellant’s apartment, where the officers remained, and waited for appellant to return.

Around midnight, appellant was dropped off at home by a co-worker and found the parole officer and the police officers waiting for him in an alley behind his apartment. Appellant was handcuffed and searched, during which approximately $2,600 in cash was found on appellant, and appellant’s apartment key was removed from his pocket.
The parole officer then directed everyone to enter appellant’s apartment and used appellant’s key to unlock the front door of the apartment. After entering the apartment, the parole officer with all three police officers present asked appellant about the traffic stop and the large amount of cash he had been carrying. Appellant told the parole officer that he had sold his car to a man from the Mille Lacs/Hinckley area and knew the buyer’s first name but not his last. Appellant could not provide a receipt or any other documentation regarding the sale.

At this point, the parole officer explained his concerns about the stop and the cash appellant had been carrying and told appellant he wanted to conduct a compliance search of the apartment. The parole officer testified that he then asked appellant for consent to search the apartment. The parole officer further testified that appellant “was silent. He did not say
no, he did not say yes.” One of the officers escorted appellant to the bathroom and stayed with him for the duration of the search. During t
he search, a pistol wrapped in a bandana was found under the kitchen sink and suspected methamphetamine and drug paraphernalia were located
on top of the kitchen cabinets. These items were seized and inventoried.
The state charged appellant with possession of a firearm by a felon, in violation of Minn. Stat. § 624.713, subd. 1 (Supp. 2009), and two counts of second degree possession or sale of methamphetamine, in violation of Minn. Stat. § 152.022, subds. 1, 2 (2008).

Appellant moved to suppress the evidence of the firearm and drugs, claiming that he did not consent to the search, that the parole officer who authorized and conducted the search lacked reasonable suspicion, and the search was pretextual. The district court denied appellant’s motion to suppress, calling the decision “a very close case.”

The district court applied two distinct tests to its analysis of whether the agents conducted a valid search: the special needs test under Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164(1987), and the totality of the circumstances test under State v. Anderson, 733 N.W.2d 128 (Minn. 2007)
(citing United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001)). Under both, the district court determined that the search was supported by reasonable suspicion and therefore valid.

Appellant waived his right to a jury trial and agreed to a bench trial on stipulated facts. The district court found appellant guilty of the firearms offense and one count of possession of methamphetamine and sentenced him to concurrent executed prison terms of 60 months for the gun offense and 100 months for the drug offense. This appeal follows.

ISSUE

Did the district court err by not suppressing evidence discovered during the warrantless search of appellant’s residence on the ground that the officers lacked reasonable suspicion?

ANALYSIS

A district court’s ruling on constitutional questions involving searches and
seizures is reviewed de novo. Anderson, 733 N.W.2d at136. We review
the district court’s factual findings for clear error. Id. Appellant argues that the district court erred by denying his motion to suppress the evidence discovered during the warrantless search because his parole officer lacked reasonable suspicion of wrongdoing.

An individual’s right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution. The Fourth Amendment is a personal right, the protection of which may be invoked by showing that a person “has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter
, 525 U.S. 83, 88, 119 S.Ct. 469, 472 (1998). The Minnesota Supreme Court has held that probationers have a diminished expectation of privacy, and, accordingly, their homes may be searched without a warrant as long as a valid condition of probation exists and authorities have reasonable suspicion of criminal conduct. Anderson, 733 N.W.2d at 139–40. But Minnesota courts have not addressed whether an appellant’s status as a
parolee similarly diminishes the expectation of privacy and likewise permits a warrantless search when police officers can establish reasonable suspicion or whether police officers need any suspicion at all.

Respondent asserts that a suspicionless search of a parolee’s home is permitted, relying on Samson v. California, 547 U.S. 843, 126 S. Ct. 2193 (2006). Samson and the instant case share factual similarities, but Samson differs substantively. In Samson, the applicable statute stated that a parolee “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Id. at 846, 126 S. Ct. at 2196 (citing Cal. Penal Code Ann. §3067(a) (West 2000)). The parole search condition imposed under Minnesota law states that “the offender shall submit at any time to an Appellant does not dispute the validity of his parole conditions. Unannounced search of the offender’s person, vehicle, or premises.” Minn. Stat. §244.14, subd. 4 (2008). Unlike the search condition recited in California law, appellant’s search condition pursuant to Minnesota law contains no language explicitly eliminating suspicion or cause in connection with the search of a parolee. And although respondent suggests that the “at any time” language in Minn. Stat. § 244.14, subd. 4, allows a suspicionless search, in our view, the “at any time” language merely provides a temporal condition, allowing a search at any point during the day, such as the search that occurred here shortly after midnight.

Accordingly, Samson’s authorization of a suspicionless search does not
Apply here. Therefore, as in Anderson, we begin by balancing the parolee’s right to privacy against any legitimate government interests to determine if reasonable suspicion, rather than a warrant and probable cause, is required to search a parolee’s home. Anderson, 733 N.W.2d at 140. In doing so, we note that appellant’s expectation of privacy was diminished simply by his status as a parolee, just as a probationer’s expectation of privacy is diminished by his status as a probationer. Id.
at 139–40; see also Samson, 547 U.S. at 850, 126 S. Ct. at 2198 (“[P]arolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”). Additionally, it is undisputed that appellant signed the conditions of the state’s reliance on State v. Bartylla, 755 N.W.2d 8 (Minn. 2008), is likewise
unavailing. Citing Samson, Bartylla held that the warrantless, suspicionless collection of DNA as a result of a prior felony conviction did not violate the Fourth Amendment. Id. at 17–19. Notably, Bartylla involved an ncarcerated person rather than a conditional releasee. And nothing in Bartylla suggests that its holding is applicable to other, more intrusive suspicionless searches, such as the search of a home.

Defendant’s release, which stated that he would “submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.” By agreeing to this condition of parole, appellant diminished his reasonable expectation of privacy. Knights, 534 U.S. at 119–20, 122 S. Ct. at 591–92; Anderson, 733 N.W.2d at 139.
And, as with probationers, the state has a legitimate, substantial interest in ensuring that parolees abide by the terms of parole and “protecting potential victims from illegal conduct” the parolee may commit. Anderson, 733 N.W.2d at 140; see also Samson, 547 U.S. at 844, 126 S.Ct. at 2195 (“A State has an ‘overwhelming interest’ in supervising parolees because ‘parolees . . . are more likely to commit future criminal offenses.’” (quotation omitted)).

Accordingly, we hold that these legitimate government interests extend to parolees and probationers alike and conclude that the search of a parolee’s home requires only reasonable suspicion. Therefore, a warrantless search of appellant’s apartment was lawful if reasonable suspicion of criminal conduct can be established.

Reasonable suspicion requires specific, articulable facts that, taken together with rational inferences from the facts, reasonably warrant the intrusion at issue. State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007). The showing required is not high, but it requires “more than an unarticulated hunch” and the ability of an officer “to point to something that objectively supports the suspicion at issue.” Id. (quotation omitted). In determining whether reasonable suspicion exists, we weigh the totality of the circumstances, which may include otherwise innocent factors. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). The district court determined that the search of appellant’s apartment was based on
“more than an unarticulated hunch” and was therefore supported by reasonable suspicion.

The district court identified four facts to support its determination: (1) the parole officer knew that appellant, as a parolee, had recently been placed
on a reduced supervision status; (2) the parole officer knew that appellant possessed a significant amount of cash and had a “thin” explanation for why he possessed it; (3) the parole officer knew of appellant’s limited financial means; and (4) the parole officer knew that, when stopped, appellant was with an individual who had an outstanding warrant.

Appellant argues that these four factors separately and collectively point to innocent behavior that cannot give rise to reasonable suspicion. But individual factors consistent with innocent behavior may, when taken
together, amount to reasonable suspicion. Id. (citing Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754 (1980) (stating circumstances could arise where innocent factors together may justify suspicion that criminal activity was afoot)).
Appellant first argues that, absent other indications of wrongdoing, possessing a large amount of cash does not establish reasonable suspicion. Appellant contends that the two cases cited by the district court on the cash possession factor, United States v. Johnigan, 90 F.3d 1332 (8th Cir. 1996) and United States v. Stephenson, 924 F.2d 753 (8th Cir. 1991) are inapposite. In Stephenson, appellant argues, possession of cash was not the sole reason upon which the district court determined that reasonable suspicion existed. Stephenson, 924 F.2d at 759. Though true, this observation actually supports the district court’s reasoning because the district court here, likewise, did not rely solely on 10 the possession of cash to support its determination that the officers had reasonable suspicion for the search.

In its order, the district court stated that “possessing a large quantity of cash without an adequate explanation, in light of the surrounding circumstances, is sufficient to establish reasonable suspicion.” (Emphasis added.) Here, the surrounding circumstances included appellant’s recent change in supervision status, his lack of documentation for the large amount of money he possessed, and his previous parole violation for possessing drugs and a firearm.

Appellant is correct, however, that the district court’s reliance on Johnigan
was misplaced because reasonable suspicion in Johnigan was based on the suspect’s outstanding warrants, not the cash later found in a search incident to arrest. Johnigan, 90 F.3d at 1336. On its own, the possession of
$3,000 may be an innocent circumstance, but when considered as part of
the totality of the circumstances, it supports the district court’s finding that the parole officer had reasonable suspicion for the warrantless search.

Second, appellant argues that his status as a parolee and his criminal history, on their own, do not give rise to reasonable suspicion. Specifically, appellant argues that all parolees have criminal records and to allow criminal history to be a basis for reasonable suspicion would result in unlimited warrantless searches in the homes of parolees.

Appellant’s argument has some merit, but this record persuades us that appellant’s argument nevertheless fails. We note first that the district court’s rationale was not based on appellant’s criminal history per se. Rather, the district court supported its reasonable-suspicion determination based on the change in appellant’s supervisory status, not his criminal history. And although the parole officer did rely on appellant’s history regarding the 2006 search and his subsequent conviction, the parole officer’s knowledge of appellant’s 2006 parole violation was also information “that objectively supports” the parole officer’s suspicion that criminal activity was afoot. Davis, 732 N.W.2d at 182. Third, appellant argues that the fact that appellant was in the presence of an individual with an outstanding warrant, on its own, does not indicate that appellant was engaged in criminal activity.

Appellant notes that suspicion must be particularized to the suspect and
that association with a person previously engaged in criminal activity does
not support reasonable suspicion. Anderson, 733 N.W.2d at 138 (quotation omitted); State v. Diede, 795 N.W.2d 836, 844 (Minn. 2011); see also State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998) (holding that mere association with suspected drug dealer, including driving dealer’s car, did not provide reasonable basis to suspect person may be armed and dangerous). Appellant asserts that, though his companion at the time of the stop in Carlton County had an outstanding warrant, there was no indication that appellant was engaged in criminal activity. Appellant’s argument is persuasive because our supreme court has held that particularized suspicion of appellant’s criminal activity is required. State v. Martinson, 581 N.W.2d at 850 (stating that reasonable suspicion requires “a particularized and objective basis for suspecting the person . . . of criminal activity”) (quotations omitted). But even discounting this factor, based on the totality of the circumstances, we conclude that the search was supported by reasonable suspicion. Fourth, appellant argues that his limited financial means should not be used to support reasonable suspicion. Appellant provides no caselaw to support this argument.
He simply asserts that he provided a plausible explanation for being in possession of the cash—the sale of his car—which was corroborated by the fact that his car was not parked at his home when officers arrived, and appellant was later dropped off by a coworker. But appellant neglects to mention that he could not provide the last name of the purchaser or verify the sale of the car with documentation of any kind. Appellant also asserts a policy argument, noting that if reasonable suspicion can be predicated upon limited financial means, many innocent people of limited means will be implicated. This argument again mistakenly presumes that appellant’s limited means is viewed in isolation, when, in fact, it is but one part of a totality-of-the-circumstances analysis.

We conclude that ample reasonable suspicion existed to conduct a search of appellant’s home, given that the parole officer knew that appellant possessed a large amount of cash unsupported by documentation, even though he held a low-paying job, and had previously violated his parole by possessing drugs and a firearm. Because we conclude that reasonable suspicion existed to search appellant’s apartment, we need not reach appellant’s consent argument.

Appellant additionally argues that his right against warrantless searches was violated under the state constitution. Courts look to the state Constitution as a basis for individual rights “with restraint and some delicacy,” particularly when the right at stake is guaranteed by the same language in the federal constitution. Bartylla, 755 N.W.2d at 18; Anderson, 733 N.W.2d at 140 (quotation omitted). Bartylla and Anderson deemed the
federal precedent on warrantless searches as adequate protection of the basic rights and liberties of state citizens and not a radical departure from Fourth Amendment precedent. 13 Bartylla, 755 N.W.2d at 19; Anderson, 733 N.W.2d at 140. The same reasoning applies here, eliminating the need for a separate analysis under the state constitution.

D E C I S I O N

Because appellant was a parolee when officers searched his home and the search was conducted pursuant to a condition of parole and supported by reasonable suspicion, the district court did not err when it refused to suppress the firearms, drugs, and drug paraphernalia that were seized in the search of appellant’s home.

Affirmed.

CS-1
ROSS, Judge (concurring specially)

I respectfully disagree with the majority’s declaration that the reasonable suspicion standard applies to searches of parolees, and so I write separately, concurring only in the result. The United States Supreme Court’s black-letter holding in Samson v. California seems to provide the unambiguous standard that we must apply to Heaton’s Fourth Amendment challenge: “[W]e conclude that the Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a parolee.” 547 U.S. 843, 857, 126 S. Ct. 2193, 2202 (2006). We should follow that holding.

I believe that two mistaken premises have led the majority to its mistaken conclusion that Samson does not apply to measure the constitutionality of the parolee search in this case. The majority first mistakenly adopts the reasonable suspicion standard by assuming that State v. Anderson, 733 N.W.2d 128 (Minn. 2007), is more factually similar to this case than Samson. I believe that the assumption is wrong. Samson involved the
suspicionless search of a parolee who was on supervised release from prison while serving a sentence for possession of a firearm as a felon. 547 U.S. at 846, 126 S.Ct. at 2196. This case identically involves the suspicionless search of a parolee who was on supervised release from prison while serving a sentence for possession of a firearm as a felon. In contrast to these mirror-image cases, Anderson involved the search of a probationer, not a parolee, 733 N.W.2d at 131, and, as the Samson court explained, a parolee has less of an expectation of privacy for Fourth Amendment search purposes than does a probationer. Samson, 547 U.S. at 850, 126 S. Ct. at 2198 (“On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment.”).

The majority’s second mistake is that it renders significant what seems to be an insignificant difference between the parolee-release agreement in Samson and the similar agreement in this case. In Samson, the applicable parole agreement provided that the parolee was required “to be subject to search or seizure by a parole officer or other peace officer at any time . . . with or without a search warrant and with or without cause.” 547 U.S. at 846, 126 S. Ct. at 2196 (quotation omitted). Similarly in this case, consistent with state statutory and administrative law, Heaton’s parole agreement acknowledged that he “will submit at any time to an unannounced visit and/or search of [his] person, vehicle, or premises by the agent/designee.” It is true, as Heaton and the majority point out, that, unlike the parole agreement in Samson, Heaton’s agreement here did not expressly include the words “with or without cause.” But this is merely a semantic, not substantive, difference. The difference between having to
“submit . . . to” an “unannounced search” occurring “any time” and having to be “subject to” a “search . . . with or without cause” occurring “at any time” is not constitutionally material; each provision delivers the same obliterating blow to any reasonable parolee’s expectation of privacy. This is because each informs the parolee that he is subject to an unanticipated search at any time, and the suspicionless nature of that potential search is just as implicitly clear under the Minnesota language as it is explicitly clear under Samson’s California language. “Anytime” means anytime; and it cannot really be anytime if it is limited only to those times when reasonable suspicion exists.

When a misdemeanor in State Court might be a Felony in Federal Court

What may be considered a misdemeanor in State court may not be considered as such in Federal Court. Client’s are often shocked when they learn that offenses they thought were minor in State Court have a dramatic effect when sentenced in Federal Court. In the Case of United States v. Coleman, a misdemeanor conviction in State Court turned out to be a considered a felony for sentencing purposes in Federal Court and gave the Defendant a career offender status.

If would like to read more on this case, please see the summary and complete decision posted below. See the rest of my site to see how I can help your situation.

UNITED STATES v. COLEMAN (3-30-2011)

Fact Summary:

Defendant Coleman appealed his sentence for heroin possession and distribution conviction after entering a guilty plea. At sentencing, Defendant Coleman received an enhancement for a State misdemeanor offense that he believed should not have been counted as a qualifying felony under the career offender Sentencing Guidelines.

Defendant Coleman argued that the Sentencing Commission exceeded its statutory authority by not using the “violent felony” convictions definition from Armed Career Criminal Act.

The Federal Court of Appeals Ruled that Congress did not tell Commission how to define “felony” in setting higher Guidelines range for certain felony recidivists. The Federal Court of Appeals found there was a presumption of reasonableness to sentence in middle of Guidelines range and affirmed the Sentence.

Below is the Complete Decision

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1498
___________
United States of America, * Appellee, *Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Herbert Lee Coleman, *
*
Appellant. *
___________
Submitted: October 18, 2010
Filed: March 30, 2011
___________
Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.Herbert Lee Coleman appeals from his sentence of 170 months imprisonment imposed after his conviction for conspiracy
to distribute heroin and distribution of heroin. See 21 U.S.C. §§ 841, 846. Coleman contends the district court procedurally erred and imposed an unreasonable sentence. We affirm.

Coleman pled guilty. At his sentencing hearing, the district court calculated a base offense level of 26 and a criminal history category of III. The district court applied the career offender enhancements contained in the United States Sentencing Coleman professes to challenge the career offender Guidelines definition of felony on substantive reasonableness grounds
. Because Coleman effectively argues that the district court incorrectly app
lied the career offender Guidelines range, we construe his argument as one
of procedural error. See United States v. Feemster , 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (describing how procedural error includes
improper application of the Guidelines).
-2-
Guidelines section 4B1.1 and increased Coleman’s offense level to 32 and his criminal history category to VI. The district court subtracted three offense levels for acceptance of responsibility. With an offense level of 29 and a criminal history category of VI, Coleman’s Guidelines range was 151 to 188 months imprisonment. The district court sentenced Coleman to 170 months imprisonment. Coleman argues that the district court erred by treating Coleman’s state misdemeanor conviction that was punishable by imprisonment for less than two years as a qualifying felony under the career offender Sentencing Guidelines.

Acknowledging that the district court correctly applied the definition of “prior felonyconviction” contained in section 4B1.2 of the Sentencing Guidelines, Coleman contends the Sentencing Commission exceeded
its statutory mandate in section 4B1.2 by not using the definition for qualifying “violent felony” convictions from the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B).

According to Coleman, if the Sentencing Commission had given “prior
felony conviction” the definition of “violent felony” from the ACCA, his misdemeanor conviction is not a qualifying felony because “violent felony” only includes state misdemeanor convictions punishable by imprisonment for more than two years. We review the district court’s application of the Sentencing Guidelines de novo. United States v. Daniels, 625 F.3d
529, 534 (8th Cir. 2010).

We conclude that the Sentencing Commission acted well within its statutory
authority in defining “prior felony conviction” for purposes of the career offender Guidelines differently than “violent felony” under the ACCA. Congress directed the Sentencing Commission to set higher Guidelines ranges for certain felony recidivists, 28 U.S.C. § 994(h), but did not specify how the Commission should define “felony.”

Accordingly, the Commission was free to define “prior felony conviction” for purposes of the career offender Guidelines as an “adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year.”United States Sentencing Commission, Guidelines Manual, §4B1.2, comment. (n.1). Although Coleman is right that the definitions of certain terms in section 4B1.2 andthe Armed Career Criminal Act are used interchangeably, United States v. Craig, 630 F.3d 717, 723 (8th Cir. 2011), there is no basis for concluding that the statutory definitions from the ACCA somehow limit the Sentencing Commission’s statutory authority under section 994(h), United States v. Ross, 613 F.3d 805, 809-10 (8th Cir.
2010) (recognizing distinctions between the definitions in §4B1.1 and §924(e)).

Thus, because the district court correctly applied the definition of a prior felony conviction from section 4B1.2, it properly determined that Coleman should be sentenced as a career offender. Coleman also argues that no presumption of reasonableness applies to a sentence imposed under the career offender Guidelines and that his sentence was substantively unreasonable. Coleman reasons that without the presumption, the district court abused its discretion in not varying downward based on his minor
convictions and the lack of empirical evidence supporting an enhanced sentence for career offenders. We review the substantive reasonableness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “Where, as here, the sentence imposed
is within the advisory guideline range,we accord it a presumption of reasonableness.” United States v. Bauer, 626 F.3d1004, 1010 (8th Cir. 2010).

Coleman complains that the applicable Sentencing Guideline, U.S.S.G. §4B1.1, should not be accorded a presumption of reasonableness because it is the product of congressional direction in the Sentencing Reform Act, 28 U.S.C. § 994(h), not the Sentencing Commission’s application of empirical data and national experience. We apply a presumption of reasonableness to a within-Guidelines-range sentence because it “recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Rita v. United States, 551 U.S. 338, 350-51 (2007). We have extended this logic to Guideline sections that are “the product of congressional direction rather than the empirical approach described by Rita” because “where a sentencing judge agrees with Congress, then the resulting sentence is also probably within the range of reasonableness.” United States v. Kiderlen, 569 F.3d 58, 369 (8th Cir. 2009)(discussing U.S.S.G. §2G2.2).

Although the presumption of reasonableness applies, even without it we easily conclude that the district court selected a reasonable sentence. In selecting Coleman’s sentence, the district court explained that it had considered all of the factors in section 3553(a), cited Coleman’s complete lack of gainful employment, and took note of Coleman’s cooperation upon arrest. The district court disagreed with Coleman’s description of his criminal history as minor and instead characterized it as extensive and justifying the career offender enhancement. The district court found that a substantial sentence was necessary to afford adequate deterrence, to protect the public, to avoid unwarranted sentencing disparities, and to further the congressional intent of severely sentencing career offenders. It concluded, “[T]he Guideline sentencing system adequately addresses the circumstances of this defendant and the sentencing range is reasonable.” The district court permissibly exercised its discretion to select a sentence in the middle of the advisory Guidelines range.

Finally, Coleman’s argument that the career offender Guidelines are unsupported by empirical evidence is not an issue of substantive reasonableness and not properly made to this court.United States v. Talamantes , 620 F.3d 901, 902 (8thCir. 2010). To the extent the district court could have varied from the career offender Guidelines based on a policy disagreement, Spears v. United States, 129 S. Ct. 840, 843-44 (2009), it was not required to do so, Talamantes, 620 F.3d at 902.

Accordingly, we affirm the judgment of the district court.

Youth Soccer Player punches Referee who later dies

Despite the many good things to be learned when playing sports, there are the occasions where things go terribly wrong. Not only do these occasions hurt the team for which the player is a member, but also may seriously effect the people involved in the altercations. The young man in the story below lost control of his temper, punched a referee and now may face murder charges. You can also read the article below and then see the Reese Witherspoon video of her asking an officer the always dumb question: “do you know who I am?”

http://www.usatoday.com/story/sports/soccer/2013/05/05/police-utah-soccer-referee-punched-by-player-dies/2136379/

For the Reese Witherspoon video: http://www.youtube.com/watch?v=g9fwe_NEerE

Urine samples in Minnesota DWI and Missouri v. McNeely link

The Supreme Court Case Missouri v. McNeely has generated a lot of discussion about Driving Under the Influence cases lately. The topic of when a search warrant will be required in all cases before the taking of a blood, breath or urine sample is currently being debated now that the United States Supreme Court has ruled on Missouri v. McNeely. What effect McNeely will have on Minnesota DWI laws will be determined in the future.

However, many other issues have already been ruled upon regarding DWI laws in Minnesota. One Issue is the first voiding in a urine test. The question was whether this first voiding of urine is an accurate reflection of a person’s blood alcohol content, or is this more of a pooling that has not affected the person’s intoxication level? In the case below, the Minnesota Supreme Court ruled that the intoxication effect on the person is not the proper question, but the law only asks for proof of a person’s urine content.

If you have any questions about your DWI case, please give me a call at 651-200-3484, or see my video as to how I might be able to help you with your other cases.

For a further reading on Missouri v. McNeely, you can use this web address for the complete United States Supreme Court case decision: http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

State v Tanksley (SUP CT, 02-08-2012, A10-0392, Hennepin Co)

First Void Urine Test, Correlation to Blood Alcohol Irrelevant.

The Defendant was convicted of Driving While Intoxicated based on a urine test showing 0.13. The State charged the Defendant with driving under influence and with more than ,08 within 2 hours of driving.

Before trial, The Defendant moved to suppress the urine test and argued for a Frye-Mack hearing stating his first void urine sample and this is an unreliable method of showing blood alcohol. The trial court denied the motion and the Defendant was convicted in a stipulated facts trial.

The Supreme Court analyzes the first question as to whether the correlation
between first void urine testing and blood alcohol concentration is relevant. Court holds that this evidence irrelevant because the Minnesota Statute only requires
proof of urine alcohol concentration, not as to whether a first voiding is more accurate in determining blood alcohol concentration than a second voiding. The Minnesota Supreme Court states that this is analogous to not allowing a defendant to introduce evidence he was not impaired in a charge of driving with a certain alcohol concentration. Therefore, the Minnesota Court does not consider any argument that this method of testing does not reveal a true or accurate alcohol concentration.

Conviction affirmed.

Drug Check Point Ahead

Exiting off the Interstate after a Drug Check Point sign is not probable Cause to Stop a Motor Vehicle.

In Federal Court the Federal Magistrate handles the preliminary issues before trial such as detention and evidentiary suppression issues. After a hearing, where testimony may be taken, the Federal Magistrate then makes a report and recommendations to the Federal District Court Judge as to what the outcomes should be according to the Federal Magistrate. After this Report and Recommendation, the Parties may make written objections. The Federal District Court then makes a Decision on whether to accept the Report and Recommendations or Reject these. After trial, if properly preserved, these issues may then be appealed to the Federal Court of Appeals.

In the following case, officers set up a fake checkpoint. This checkpoint did not actually exist. Instead, the officers put up a sign warning drivers that a checkpoint for drugs existed ahead. This sign was put up just before an exit off the Interstate. When a driver exited the Interstate, the officers made a presumption that the car might have drugs in it.

This case is important for two reasons, although the officers were correct as it relates to this car – there were drugs in the car – the idea that an officer, or government official, can stop a citizen without probable cause of a crime is simply illegal. Citizens are presumed innocent. The government can’t invade the citizen’s expectation of privacy to proceed in life without government involvement unless the government (police officer) has probable cause that a crime is being committed. Simply exiting the road after a sign saying checkpoint ahead, does not establish the objective facts necessary for a reasonable belief that the person is committing a crime.

The second reason is that this case shows that the government bears the burden, responsibility, for establishing the proper and objective facts that would allow them to invade the Constitutional Rights of a citizen – including a citizen that may be committing a crime. The Constitution does not look to the ends to determine if the Officer was correct, but looks to the means used to arrive at the ends.

United States v. Ronald Prokupek and United States v. Christine App. from Dist. of Neb.

Fact Summary:

Officers set up a fake drug checkpoint on United States Interstate 80 going through Nebreska. Officers set up a sign that said there was a drug checkpoint ahead. The State Troopers then stationed themselves at the next exit after the sign.

Defendants Prokupek and McGlothen took that next exit after the sign and turned on to a country road. The Troopers, on dash cam, stated they stopped the car for failing to signal for a lane change when it exited the highway.

After the stop, a drug dog arrived a few minutes later. The Dog walked around car several times and alerted near driver’s door window. Officers searched the Defendant’s vehicle and found 151 grams of methamphetamine in the center armrest compartment.

Defendants Prokupek and McGlothen were subsequently charged with Possession With Intent to Distribute methamphetamine. Defendants Prokupek and McGlothen filed a motion to suppress the evidence found in the motor vehicle alleging the stop lacked probable cause and the drug dog’s actions did not provide probable cause because the dog was not properly trained and did not provide sufficient indication drugs were present.

At the suppression hearing, the officers testified that the probable cause for the stop of Defendant’s vehicle was the failure to signal the turn onto the country road. Defendant Prokupek’s then had a chance to cross-examine the officer. During the cross examination, the Officer admitted that he did not see the car pull off highway. However, the Magistrate found the Trooper’s testimony about the failure to use a turn signal credible and denied motion.

Both Defendant Prokupek and Defendant McGolothen objected to the Magistrate’s Report and Recommendation saying officer’s testimony was not credible. The Federal District Court adopted the Magistrate’s Report and Recommendation, but
did not adopt the finding that there was a failure to signal onto country road.

Defendant Prokupek and Defendant McGlothen subsequently entered conditional pleas of guilty allowing them to appeal The Federal District’s Decision not to suppress the evidence. Defendant Prokupek was sentenced to 60 months and Defendant McGlothen was sentenced to 18 months.

Defendant Prokupek and McGlothen appealed the denial of their suppression issues. At oral argument, the Government conceded that probable cause could not be based on any failure to signal the exit from interstate on to the exit ramp because the officer who made the stop did not see car.

The Federal Court of Appeals remanded this issue to the Federal District Court to “clarify its finding that Prokupek failed to signal at one of the two described places.” The Government filed a motion to reopen the suppression hearing and allow for additional testimony. The Federal District Court denied the Government’s motion and then entered the finding that the officer’s testimony that they stopped the car because it failed to signal a turn onto the country road credible. The Federal District Court also found that the officer’s “Videotaped statement” was an “unintentional misstatement.” The Federal Court of Appeals then made the following Decision:

Issues:

(1) Probable Cause for the Car Stop

a. Prokupek and McGlothen argued

1. The Finding that the traffic violation occurred is clearly
erroneous based upon the officer’s testimony.

2. The Statement that the driver failed to signal his turn on to a country road is
contradicted by dash cam.

a. The 8th Circuit Federal Court of Appeals noted:

1. The Court has previously held that reasonable suspicion for a traffic
stop cannot be based solely on fact that a driver exits an interstate after
seeing a sign indicating that a drug checkpoint lies ahead — U.S. v. Carpenter (8th Cir. 2006);

2. However, a traffic stop pursuant to a ruse checkpoint
does not violate the 4th Amendment of the Constitution if the driver commits traffic violation when exiting interstate.

3. The Court agrees that the officer’s statements are contradictory in this case.

a. There is no evidence in record that supports finding that
this is unintentional misstatement. That burden lies with the government.

b. Therefore, the Finding that the driver failed to signal turning onto the exit is clearly erroneous.

c. For the same reasons, the Finding that the driver failed to signal onto a country road is also clearly erroneous.

d. The Evidence is suppressed.