Category: Assaults

Woman makes sexual advances toward airline passenger

Recently a woman flying from Baltimore to Salt Lake City, Utah had a few too many drinks before boarding a plane. The woman allegedly asked the man seated next to her for sex. The woman became belligerent and abusive when the man turned her down. The plane made an emergency landing at the Minneapolis/St. Paul International airport where she was turned over to airport police. A passenger with a cell phone captured the scene on video. You can read about the incident and watch the video by clicking here.

With Spring break around the corner and people looking to escape the winter, it is important for airline passengers to remember that being disruptive on a plane may result in federal charges. Federal law makes it illegal to interfere with the flight crew. Assaulting a crew member is governed by 49 U.S.C. § 46504.

Actions that do not amount to a physical assault may still result in significant civil penalties. Such actions may be offensive or disruptive behavior, blocking a flight attendant from walking down the aisle, failing to return to your seat, or a variety of matters. Disruptive behavior is covered under 14 C.F.R. §§ 91.11, 121.580, 135.120.

The safest way to avoid criminal charges while on a plane is to obey the crew member’s instructions. Do not raise your voice at a crew member, or make threats. Ask to speak to the flight attendant in charge if you believe that the crew member you are dealing with is in the wrong. Finally, unless rendering aid, never touch a crew member. If you believe that you were treated unfairly, or the crew was out of line, wait until the end of the flight and you may then file a complaint against the crew member with the airline, or at this site with the Department of Transportation’s Aviation Consumer Protection Division.

Here are a few of penalties disruptive passengers expose themselves to:

Assault. Assaulting a crew member is punishable by up to 20 years’ imprisonment, and a fine of up to $250,000. If a dangerous weapon is used, the defendant can be imprisoned for life. 18 U.S.C. § 3571, 49 U.S.C. § 46504.

Interference. The maximum civil penalty for interfering with a crew member is a fine of up to $25,000. 49 U.S.C. § 46318.

When is a Juvenile Certified as adult?

imagesParents and children under the age of 18 are surprised when they find out a person under the age of 18 can go to trial as an adult for a crime.  So, when may a juvenile be required to appear in adult court for trial?  The court may order that a juvenile who was age 14 or older at the time of the offense and who is charged with certain felonies, be certified as adult and tried in adult criminal court.

Juveniles convicted of an offense in adult court receive adult sentences. Juveniles charged with first degree murder, who were age 16 or 17 at the time of the offense, are required by Minnesota Statutes to be certified as adults and sent to adult court.

Below is a summary of a juvenile matter certified as an adult.Click here if you wish to read the entire opinion.

State v. Grigsby (SUP CT, 08-01-2012, A10-1686, Ramsey Co)

Certification, Minnesota Statute Section 260B

Defendant was 15 years of age when had a petition filed against him charging him with Murder in the second degree- Intentional and was certified to stand trial as an adult. The Complaint was then amended to include Murder in the second degree Felony Murder. Defendant was found guilty of murder in the second degree – Felony murder and manslaughter in the second degree;  and found not guilty of murder in the second degree, Intentional murder. He was sentenced to 180 months.

Defendant appeals on the ground that certification is offense specific. The Defendant argued that charges not included in the certification order cannot be charged in the adult court proceeding. The Supreme Court rejects this argument and says the juvenile court certifies proceedings and those proceedings include offenses not mentioned in the certification order.

Defendant also states that he could not be sentenced as an adult for the adult convictions because he was found not guilty of the offense that he was certified as an adult for. The Supreme Court also rejects this position holding that once a juvenile is certified to stand trial in adult court, the juvenile may be sentenced as an adult for any offenses he is convicted of in adult court.

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

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

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

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/

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

For just $0.99, now you too can create your own independent Nation online.

The case of United States v. Reed is an interesting case. In an attempt to avoid federal laws as an independent American Indian nation, Mr. Reed became a member of an online tribal nation. Only problem is that this internet nation is not a recognized nation by the Federal Government. Mr. Reed then relied upon his believed sovereignty to threaten a federal court judge, convey the threat to the Federal Bureau of Investigation (FBI) and then threaten jail members with the use of his 9 mm hand gun. Read below to find out more about this truth is stranger than fiction case, or call me at 651-200-3484

UNITED STATES v. REED
Federal District Court of North Dakota

Defendant was convicted of possession of a firearm by a fugitive and
asserted insufficient evidence to support “constructive possession”
verdict. He also challenged the court’s instruction defining “fugitive”.

Although not a Native American, the defendant used the internet to become a
member of the unrecognized Little Shell Nation Indian Tribe and then became
the self proclaimed tribal attorney general. He challenged a federal
court’s jurisdiction over fellow non-Native American tribal members by
leaving a threat to harm a federal court judge on the judge’s voice mail.
The defendant repeated this threat in a voice mail to the FBI.

In the meantime, a Nevada state court issued a capias warrant for the defendant’s
failure to appear for a non-related state prosecution. The FBI tracked him
to North Dakota where he was arrested on the capias warrant. While incarcerated,
the defendant had a jail visit and made a phone call, both taped, repeating
the threat and mentions his 9mm hand gun. When a fellow non-Native
American tribal member was prevented from seeing the defendant at the jail,
the defendant broadened his threats and defiantly yelled that he would
use his 9mm hand gun in the safe in his house. The subsequent search
warrant discovered a 9 mm. hand gun and personal venue in the defendant’s
safe in his home.

The court found the evidence was sufficient to find that Defendant was a fugitive from justice regarding the capias warrant from Nevada and that he possessed a firearm while a fugitive.

Is This How Ma Barker Got Started?

People are often amazed to find out what they did in the past that may not be considered illegal, or even minor and unrelated to a current charge, can be used as evidence in a current trial by the prosecution. One such scenario is Federal Rule of Evidence 404. This Rule deals with character and acts of an accused. The general rule is that a person’s character or a trait of his character can’t be used at the instant trial to prove that because he acted that way in the past, he must have acted that in the current accusations. Of course, as with everything else, there are exceptions. To see how exceptions were applied in one case where a son taught mom how to shoot a machine gun read the case below

One exception is if the accused offers up a particular trait. Once the accused brings his character into play, then evidence showing this claim not to be true, may be heard by the jury.

Another exception includes matters that include not only previous crimes, but also non criminal acts that are considered wrongs or bad acts. In this instance, again, this information may not be used to prove the character of the person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake.

Such scenarios are outlined in the case below. In this case, the Defendant chose to video tape himself showing mom how to shoot a machine gun. While this act in itself may not have been a crime, the Court said the video could show the jury the Defendant’s motive to possess, intent to posses, his plan to possess, his knowledge to possess, his lack of mistake in knowing what was possessed and his identity toward the possession of the machine gun.

The Defendant chose to take the stand and raised his character as a proud military person protecting his country as character for the jury to consider before passing judgment of guilty or not guilty. Once this door was opened, the government prosecutor was then able to bring up the Defendant’s dishonorable Discharge. This is an example as to why a Defendant should think long and hard before ever waiving their 5th Amendment Rights to Remain Silent and choose to testify at their trial.

United States v. Guy Allen Op.
App. from E.D. Mo.

Fact Summary: A Federal Jury convicted Defendant Allen of one count of possession of illegal machine guns. The Federal District Court in Missouri sentenced defendant Allen to 24 months in Federal Prison.

Defendant Allen Appealed and argues that the Federal District Court erred with its evidentiary ruling at trial by allowing the federal government to show a video of him teaching his mother to fire a machine gun and also to cross-examine him about his military service and discharge.

Issues:

(1) Video Footage

A. The 8th Circuit Federal Court of Appeals Ruled:

1. The Government offered the video under Federal Rule of Evidence 404(b).

2. This court characterizes 404(b) as a rule of inclusion rather than exclusion and will reverse the trial court only when such evidence clearly has no bearing on the issues in the case and was introduced solely to prove defendant’s propensity to commit criminal acts.

3. Evidence is admissible under 404(b) if its:

a. Relevant to a material issue;

b. Similar in kind and not overly remote in time to the crime charged;

c. supported by sufficient evidence;

d. higher in probative value than its prejudicial effect;

4. In this case the video was admissible to show motive, intent, knowledge
or other permissible purposes.

a. Doesn’t matter if the prior act was a crime or not.

(2) Military Service including arrests, charges, subsequent discharge.

a. The 8th Circuit Federal Court of Appeals noted that evidence of character is admissible in criminal cases where the defendant introduces evidence aimed at portraying his own character in a positive light and the prosecution is only
rebutting the inference drawn from such statements.
1. Allen opened the door to being cross examined on his military failings on direct examination by saying he was proud of his military service.

Possession of Ammunition leads to 15 years in prison

Possession of Ammunition leads to 15 years in Federal Prison.

Many people are unaware of the consequences that may result from their convictions. A conviction in State Court can have not only consequences on future convictions in State Court by enhancing the penalties, or the charges, but can also effect employment opportunities, housing opportunities and criminal charges in Federal Court.

In the case below, a young man with a prior felony conviction was sentenced to 15 years in Federal Prison for possessing, not a weapon, but ammunition. Possessing Ammunition when a felon is violation of Federal Law. This Defendant’s prison sentence was extended because the Court increased his incarceration for what the federal law considers violent crimes. There are many convictions that may be considered violent crimes in the Federal System. Many people are surprised to find out their Drunk Driving conviction in State Court can have an effect on their criminal history sentencing score in Federal Court.

f you have questions about how prior convictions may effect a sentence, please call me at 651-200-3484, or see my video on my main page to understand how I might help.

To understand what the court was considering when determining a crime of violence in this case, here is the Minnesota Statute on Burglary in the Second Degree. It is important to remember that Burglary is different than Robbery.

MINNESOTA §609.582 BURGLARY.
Subdivision 1.Burglary in the first degree.
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building;
(b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or
(c) the burglar assaults a person within the building or on the building’s appurtenant property.
Subd. 1a.Mandatory minimum sentence for burglary of occupied dwelling.
A person convicted of committing burglary of an occupied dwelling, as defined in subdivision 1, clause (a), must be committed to the commissioner of corrections or county workhouse for not less than six months.
Subd. 2.Burglary in the second degree.
(a) Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if:
(1) the building is a dwelling;
(2) the portion of the building entered contains a banking business or other business of receiving securities or other valuable papers for deposit or safekeeping and the entry is with force or threat of force;
(3) the portion of the building entered contains a pharmacy or other lawful business or practice in which controlled substances are routinely held or stored, and the entry is forcible; or
(4) when entering or while in the building, the burglar possesses a tool to gain access to money or property.
(b) Whoever enters a government building, religious establishment, historic property, or school building without consent and with intent to commit a crime under section 609.52 or 609.595, or enters a government building, religious establishment, historic property, or school building without consent and commits a crime under section 609.52 or 609.595 while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

United States v. Thomas Boldt Per Curiam
App. from Dist. of Minn.
POSSESSION OF AMMUNITION

Fact Summary: Defendant Boldt was a convicted felon. Defendant Boldt pleaded guilty to unlawful possession of ammunition by a felon. Defendant Bold was sentenced under the Armed Career Criminal Act (ACCA ), 18 U.S.C. § 924.

The Court then sentenced Defendant Boldt to 15 years in prison.

Defendant Boldt appealed his sentence claiming that his prior convictions do not qualify as violent felonies under the Armed Career Criminal Act and also that the sentence violated the 8th Amendment of the Constitution as cruel and unusual punishment.

Issues:

(1) Defendant’s Prior Convictions were for Burglary 2nd Degree.

a. The 8th Circuit Court of Appeals said these are considered violent felonies under Federal law.

(2) Federal Constitution 8th Amendment, Cruel and Unusual Punishment.

a. Defendant Boldt said he didn’t know it was illegal to possess bullets.

b. The 8th Circuit Court of Appeals said there is no 8th Amendment violation. The law applies whether a person is aware that his actions were illegal or not.

Cell Phone Use Increases Prison Sentence By 28 Months

The Federal Court considers many factors when determining an appropriate sentence for a Defendant after conviction. One factor the Courts consider are the sentencing guidelines. These Guidelines can be found in the Federal Sentencing Guidelines Manual. These Guidelines were derived at after studies were completed on how people were sentenced across the nation and other factors. One original purpose of the guidelines was an attempt to eliminate disparity in sentences amongst Defendants convicted of similar crimes.

The Guidelines begin by establishing a base level offense and a criminal history category. The criminal history category is determined by your criminal past. Even State misdemeanor offenses can have a significant effect on this category.

The offense level begins with the base level. This is the category the crime convicted of fits into. From this base level offense, the level may increase or decrease based on several factors. Some of these factors are not necessarily in the specific language of the actual offense for which a conviction occurred. The Court may consider such things as whether the victim is considered vulnerable under the Guidlelines, If the offense is based on the race or religion of the victim, whether the Defendant is to be considered a manager or leader in the offense, and many other considerations. Below is a case where the use of a cell phone to commit the offense enhanced the level to a point where the Defendant will serve an extra 28 months in prison for using the cell phone.

United States v. Neil Kramer
App. from W.D. Mo.

Facts Summary: Defendant Kramer pled guilty to transporting a minor in interstate commerce
with the intent to engage in criminal sexual activity with her. Mr. Kramer acknowledged that he used his cellular telephone to make voice calls and send text messages to the “victim” for a 6 month period. The cell phone did not have internet capabilities. At sentencing, the District Court concluded that the phone was a “computer” and applied a two point enhancement for its use to facilitate the offense
pursuant to USSG §2G1.3(b)(3). The Court sentenced Mr. Kramer to 168 months. The District Court acknowledged that had it not been for the computer enhancement, Mr. Kramer would have been sentenced to 140 months.

Mr. Kramer appealed arguing the enhancement was procedural error
because a cell phone used could only to make voice calls and engage in text messages. Therefore this phone should not be considered a “computer.”

Issues:

(1) The Court may consider a cell phones a computer

a. Defendant Kramer argued:

1. The District Court incorrectly interpreted term “computer” to
include basic cell phone.

2. The sentencing enhancement should apply only if device is used
to access the internet.

b. The 8th Circuit Federal Court of Appeals ruled:

1. USSG 2G1.3(b)(3) provides a 2 level enhancement for use of a
computer to “persuade, induce, entice, coerce or facilitate the travel of
the minor to engage in prohibited sexual conduct.”

2. A “computer” has meaning given in 18 USC §1030(e)(1), which:

a. Means any electronic, magnetic, optical arithmetic,
or storage functions and includes any data storage facility or
communications facility directly related to or
operating in conjunction with such device.

b. However, the definition does not include an automated
typewriter or typesetter, a portable hand held calculator or other similar
device.

3. Based upon this definition, the Court decided there is nothing in statutory definition that excludes devices because they lack connection to the Internet. Therefore, cellular phones are not excluded from the definition of a computer and therefore the 2 level sentencing enhancement applies.

a. The Court noted that a cell phone makes use of an
electronic data processor and the same is true when it is used to send text messages