Category: defenses

Reputed Mob Boss Found Not Guilty of Conspiracy

Many ask how they can be charged with an offense that someone else committed. If the government can’t prove that the defendant agreed to commit the criminal act with the other person, a jury may find the accused not guilty. This is what happened in a recent case where an alleged mob boss was recently found not guilty in a Federal racketeering case. The government alleged that the Defendant had conspired with others to commit a variety of crimes. You can read about the case of George Borgesi and his release from custody after 13 years by clicking here

In Federal Court, 18 U.S. Code § 371 creates an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.” In many conspiracy cases the accused must not only agree to commit the crime, but at least one of the conspirators must commit an overt act to accomplish the crime. This is not always a requirement. Furthermore, there is no requirement that the accused knows of the others involved in the conspiracy.

A conspiracy is often confused with aiding and abetting. 18 U.S. Code § 2 defines aiding and abetting as “ (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” With aiding and abetting there is no requirement that an agreement to commit the crime was reached between the accused and the actor. In such a case, if a defendant counseled, gave advice on how to commit the crime or assisted in the completion of the crime, the defendant is may be charged as though the defendant committed the actual crime.

Conspiracy as well as aiding and abetting charges may seriously effect how to best prepare a defense for your trial. Be certain to retain a lawyer to assist you with these charges. Contact Attorney Patrick Flanagan at 651-200-3484 or at PatrickFlanagan@Flanaganlawsit.com if you have questions about your criminal case.

Fish scares away burglar

If you live near a lake, or know someone who does, you may have have come across the talking bass that hangs on the wall known as Billy Bass. While this wall mount has been know to annoy people, this may be the first time it has scared someone. The police in Minnesota believe the talking fish scared away a would be burglar. You can read the story here.

The would be burglar should still be careful. Even though he/she may not have taken anything, the crime may have already occurred. Minnesota Statute Section 609.582 defines Burglary. Burglary in the first degree, which is what the Bill Bass allegation is if this was a dwelling and the homeowner or another person was inside the house somewhere, is outlined in Subdivision 1: “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 a 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.

If you have been charged with a crime, call the Flanagan Law Office at 651-200-3484 for a free consultation

Insanity Defense for killing wife’s lover

There have been some infamous cases surrounding the insanity defense.  One of the first occurred in 1859 and involved Defendant New York Congressman and Civil War General Dan Sickles, and victim Washington D.C. District Attorney Philip Barton Key, the son of poet Francis Scott Key who wrote the Star Spangled Banner.  The temporary insanity defense worked, Defendant Sickles was found not guilty and applauded by the community at the time for protecting the women from an adulterer the likes of victim Key.  Click here to read the details of this case.

An insanity defense is admitting to the physical act of the crime, but then the defendant asserts they are not responsible for their actions due to mental health problems.  This assertion takes place at the trial to a jury.  Minnesota does not recognize an insanity defense, but instead does allow for a defense of mental illness or deficiency.  There are differences between the two forms of defense.  The burden is on the Defendant to prove the mental illness or deficiency to the jury by a preponderance of the evidence.  The actual defense, if the case goes to trial, and notice requirements are noted in Criminal Rules of Procedure 9.02, subd. 1(5).

Minnesota Rule of Criminal Procedure 20.01 and 20.02 cover acts the defendant claims are the result of mental health issues.  Rule 20.01 covers whether a person is competent to participate in the proceedings, or assist in their defense. If a person is not competent to proceed and the case is a felony or gross misdemeanor, the case is then stayed for a period of time to see if competency is restored.  If competency is restored, the case then proceeds to trial.  If competency is not restored, the government must file a motion within the time lines prescribed to extend the commitment of the Defendant pursuant to the rule.  Rule 20.01, is about whether the case can proceed.

Rule 20.02, addresses the issue of proceeding to trial on the defense of mental illness or deficiency.  This rule covers the medical examination reports and the commitment proceedings if a person is found not guilty by mental illness or deficiency.

If you have any questions as to how mental illness is addressed in our Courts, please give me a call at 651-200-3484

 

Eyewitness Identification and lineups

Line-ups are a tool used by law enforcement and the prosecution to identify a suspect. The problem is that eyewitness testimony is often not reliable. I have hand handled cases where my client was positively identified, 100% certain, as having committed the crime, only to discover, my client was nowhere in the area and there was proof as to where he was. So, how can this happen? Three different studies from 1987 to 1998 (Wells, Huff, Cutler & Penrod) have determined that eyewitness identification is wrong anywhere from 35% to 60% of the time, and one study even determined that it was wrong in 90% of cases studied. The mind can play tricks on us. The mind may be subject to outside influences, such as stress or cultural differences. How many times have you seen someone and thought – that guy looks just like Bob, I wonder if it is him? Now, add the stress of a crime being committed upon you, a gun put in your face, or other stressors. How carefully are you really looking at the exact facial features of the individual? Is it possible that you are looking at general features? How do you ascertain if your mind is associating the person with a person of similar features? One problem is that many in law enforcement use a six pack photographic line up, or use the officer who is investigating the crime to go through the suspect photographs with the eyewitness. This can lead to further suggestive behavior, even if not intentional. There is a method that some states, unfortunately very few, require for line-ups. That is called the “double blind” method. Below is an article that covers the distinctions between the double blind method and traditional methods. If you have questions about eyewitness identification, please call me at 651-200-3484.

The Double-Blind Lineup
General Comments and Observations
Gary L. Wells

Summary Points:
A double-blind lineup is one in which the lineup administrator does not know which persons are fillers and which person is the suspected culprit. First introduced by Wells in 1988, the double-blind lineup is designed to prevent the person administering the lineup (traditionally the case detective) from inadvertently influencing the eyewitness’s identification decision or the certainty that the witness develops about the identification. Today, a number of jurisdictions across the US have adopted the double-blind lineup procedure, including the entire states of New Jersey and North Carolina, most of Wisconsin and Minnesota, and cities such as Boston, Denver and Dallas. Mistaken eyewitness identification is the leading cause of the conviction of innocent persons and I believe that this is the single most important reform that can be made to the way that lineups (both photographic and live) are conducted.

The double-blind lineup was first proposed in 1988 , so the idea has been around for over 20 years. The double-blind lineup is simply a lineup that is conducted by someone who does not know which person in the lineup is the suspected culprit and which ones are mere fillers. I proposed this idea in 1988 because there is very good evidence that testers influence the person they test. The award-winning research of Robert Rosenthal and his colleagues has shown this type of influence in a broad array of situations over the years. The idea of a double-blind method of conducting lineups also follows closely on the compelling analogy between police conducting lineups with eyewitnesses and researchers conducting experiments with human participants . Properly-conducted research studies use double-blind procedures (or some other method) to prevent the person who conducts the test from influencing the person they are testing. Double-blind testing is a core idea in science and medicine and the recommendation for double-blind lineups has been formally endorsed by the American Psychology-Law Society.

Except for some jurisdictions that have reformed their eyewitness identification procedures (which I will mention later), the standard method of administering a lineup is to have the case detective administer it to the witness. Obviously, the case detective is fully aware of which person is the suspected person and which ones are merely lineup fillers. And, over 90% of initial eyewitness identifications are obtained using photo-lineups rather than live lineups. This observation about most lineups being done with photos is important because it means that there is no defense counsel present (the US Supreme Court has ruled that there is no right to defense counsel presence at photographic lineups). Furthermore, there is no video recording or audio recording of the interaction between the witness and the detective.

Since the first time I introduced the double-blind lineup in 1988, I have consistently maintained that the concern is not that investigators are intentionally (or knowingly) influencing witnesses, but rather that they are inadvertently (and often without any awareness) influencing witnesses. In general, people are unaware (or underestimate) the extent to which they influence the people they “test.”

Over the years, I have seen increasing amounts of evidence from actual criminal cases that have reinforced my firm belief that all lineups should be conducted using the double-blind method. The DNA exoneration cases that involved mistaken eyewitness identifications, which is the vast majority of all DNA-based exonerations, are a particularly interesting set of cases. In these cases, I have discovered numerous examples of the influence that the lineup administrators have on the eyewitnesses. In one case, the detective said to the witness while the witness was looking at a photo-lineup “I noticed you paused on number three.” In other cases, witnesses have uttered more than one photo number (e.g., “uh…it could be number four or it could be number two”) but the detective only follows up on the one who is the suspected person (e.g., “tell me about number four”) and ignores the one who was a filler. When witnesses have picked a filler, detectives have said “Is there any other photo that stands out?” which is a question that never gets asked when the witness picks the suspect. Remember, the suspect is just a suspected person; it is the person the detective had in mind when the lineup was created. There are now around 200 proven DNA exonerations involving mistaken identification from photo-lineups and live lineups and the innocent person who was convicted was the suspect in every one of those cases.

The idea of eyewitness identification evidence is that it is supposed to be based on the eyewitness’s memory for the perpetrator. Identification decisions should not be based on what the witness might glean from verbal or non-verbal cues from the case detective or anyone else. And yet, it is human nature for a person to unintentionally give off cues. Scientists have learned that the only way to prevent these types of interpersonal influence is to use double-blind techniques (or comparable procedures, such as having the testing be done by a computer rather than a person).

We have various lines of evidence from laboratory experiments on eyewitness identification showing that eyewitnesses are easily influenced by their testers. Some studies, for example, have led the persons conducting the lineups to believe (falsely) that a particular person in the lineup is the actual “culprit” and they simply switch around which person they lead the lineup administrator to think was the culprit. Then, the question is whether the eyewitnesses (to staged crimes) are more likely to pick the innocent person who the lineup administrator was led to believe did it. Sometimes this influence surfaces and sometimes it does not and it is difficult to predict when the effect will occur, but numerous published studies have found such effects . The impact of even subtle nudges by a lineup administrator can be quite strong and, importantly, witnesses seem largely unaware of the fact that they have been influenced . Particularly strong and consistent effects have been observed when lineup administrators react to witness’s identification decisions (e.g., confirming feedback such as “Good, you identified the suspect”). This type of confirming feedback after witnesses make mistaken identifications serves to dramatically inflate the confidence of the witness and make them believe that they were positive in their identification from the outset (when in fact they were uncertain). This effect was first demonstrated in 1988 but the literature has grown quite large to show that the effect is highly replicable . These laboratory experiments have also been replicated in the field with actual eyewitnesses to serious crimes .

The American Psychology-Law Society endorsed the idea of double-blind lineups in a “white paper” on the science of eyewitness identification and this was published in 1998 . The state of New Jersey was the first state to require that lineups be conducted using double-blind methods (starting in 2001). More recently, North Carolina made a law requiring that all lineups be conducted using double-blind methods. Cities such as Minneapolis, Dallas, Denver, and Boston now use double-blind methods for lineups. But, by my estimates, three-fourths of the country still does not use double-blind lineups.

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Wells, G. L. (1988). Eyewitness identification: A system handbook. Toronto: Carswell Legal Publications.
2 Wells, G. L., & Luus, E. (1990). Police lineups as experiments: Social methodology as a framework for properly conducted lineups. Personality and Social Psychology Bulletin, 16, 106-¬117.
3 Wells, G. L., Small, M., Penrod, S. J., Malpass, R. S., Fulero, S. M., & Brimacombe, C. A. E. (1998). Eyewitness identification procedures: Recommendations for lineups and photospreads. Law and Human Behavior, 22, 603-647.

4 Greathouse, S. M., & Kovera, M. B. (in press). Instruction bias and lineup presentation moderate the effects of administrator knowledge on eyewitness identification. Law and Human Behavior; Haw, R.M., & Fisher, R.P. (2004). Effects of administrator-witness contact on eyewitness identification accuracy. Journal of Applied Psychology, 89, 1106-1112; Phillips, M. R., McAuliff, B. D., Kovera, M. B., & Cutler, B. L. (1999). Double-blind photoarray administration as a safeguard against investigator bias. Journal of Applied Psychology, 84, 940-951.
5 Clark, S. E., Marshall, T. E., & Rosenthal, R. (2009). Lineup administrator influences on eyewitness identification decisions. Journal of Experimental Psychology: Applied, 15, 63-75.
6 Wells, G.L., & Bradfield, A.L. (1998). “Good, you identified the suspect:” Feedback to eyewitnesses distorts their reports of the witnessing experience. Journal of Applied Psychology, 83, 360-376.
7 Bradfield, A. L., Wells, G.L, & Olson, E.A. (2002). The damaging effect of confirming feedback on the relation between eyewitness certainty and identification accuracy. Journal of Applied Psychology, 87, 112-120; Charman, S. D., & Wells, G. L. (2008). Can eyewitnesses correct for external influences on their lineup identifications? The actual/counterfactual assessment paradigm. Journal of Experimental Psychology: Applied, 14, No. 1, 5–20; Douglass, A. B., & McQuiston-Surrett, D. M. (2006). Post-identification feedback: Exploring the effects of sequential photospreads and eyewitnesses” awareness of the identification task. Applied Cognitive Psychology, 20, 991-1007; Douglass, A. B., & Steblay, N. (2006). Memory distortion in eyewitnesses: A meta-analysis of the post-identification feedback effect. Applied Cognitive Psychology, 20, 859-869; Dixon, S., & Memon, A. (2005). The effect of post-identification feedback on the recall of crime and perpetrator details. Applied Cognitive Psychology, 19, 935-951; Hafstad, G. S., Memon, A., & Logie, R. (2004). Post-identification feedback, confidence and recollections of witnessing conditions in child witnesses. Applied Cognitive Psychology, 18, 901-912; Lampinen, J.M., Scott, J., Pratt, D., Ledding, J.K., & Arnal, J.D. (2007). ‘Good, you identified the suspect…but please ignore this feedback’: Can warnings eliminate the effects of post-identification feedback? Applied Cognitive Psychology, 21, 1037-1056; Neuscahtz, J. S., Lawson, D. S., Fairless, A. H., Powers, R. A., Neuscahtz, J. S., Goodsell, C. A., & Toglia, M. P. (2007). The mitigating effects of suspicion on post-identification feedback and on retrospective eyewitness memory. Law and Human Behavior, 31, 231-247; Neuschatz, J. S., Preston, E. L., Burkett, A. D., Toglia, M. R., Lampinen, J. M., Neuschatz, J. S., Fairless, A. H., Lawson, D. S., Powers, R. A., & Goodsell, C. A. (2005). The effects of post-identification feedback and age on retrospective eyewitness memory. Applied Cognitive Psychology, 19, 435-453; Quinlivan, D. S., Neuschatz, J. S., Jimenez, A., Cling, A. D., Douglass, A. B., & Goodsell, C. A. (2009). Do prophylactics prevent inflation? Post-identification feedback and the effectiveness of procedures to protect against confidence-inflation in earwitnesses. Law & Human Behavior, 33, 111-121; Semmler, C., & Brewer, N. (2006). Post-identification feedback effects on face recognition confidence: Evidence for metacognitive influences. Applied Cognitive Psychology, 20, 895-916; Semmler, C., Brewer, N., & Wells, G. L. (2004). Effects of postidentification feedback on eyewitness identification and nonidentification. Journal of Applied Psychology, 89, 334-346; Skagerberg, E. M. (2007). Co-witness feedback in lineups. Applied Cognitive Psychology, 21, 489-497; Skagerberg, E. M. & Wright, D. B. (2009). Susceptibility to postidentification feedback is affected by source credibility. Applied Cognitive Psychology, 23, 506-523; Smith, S.M., Lindsay, R.C.L., & Pryke, S. (2000). Postdictors of eyewitness errors: Can false identification be diagnosed? Journal of Applied Psychology, 85, 542-550; Wells, G.L., & Bradfield, A.L. (1998). “Good, you identified the suspect:” Feedback to eyewitnesses distorts their reports of the witnessing experience. Journal of Applied Psychology, 83, 360-376; Wells, G.L., & Bradfield, A.L. (1999). Distortions in eyewitnesses’ recollections: Can the postidentification feedback effect be moderated? Psychological Science, 10, 138-144; Wells, G. L., Olson, E., & Charman, S. (2003). Distorted retrospective eyewitness reports as functions of feedback and delay. Journal of Experimental Psychology: Applied, 9, 42-52.
8 Wright, D. B. & Skagerberg, E. M. (2007). Post-identification feedback affects real eyewitnesses. Psychological Science, 18, 172-178.
9 Wells, G. L., Small, M., Penrod, S. J., Malpass, R. S., Fulero, S. M., & Brimacombe, C. A. E. (1998). Eyewitness identification procedures: Recommendations for lineups and photospreads. Law and Human Behavior, 22, 603-647.

The Prodigal Son

You may be guilty of a crime even if someone gave you permission to use their information. In the case summarized below, a son was given permission by his father to use his father’s social security number to open a business, open accounts, and file tax documents. However, along the way, the son also illegally received federal funds through this business. As a result, the government, in addition to other crimes, indicted Defendant Retana for the unlawful use of his father’s social security number. Read below to see how he was found guilty for unlawfully using his father’s social security number despite having permission to use the number from his father. The complete decision appears after the summary.

United States v. Salvador Retana No: 10-2909 Western District of
Missouri [PUBLISHED]

Case Summary: Using another person’s social security number to commit a
qualifying felony, even with that other’s permission, qualifies as use
“without lawful authority” under 18 U.S.C. § 1028A.

Defendant Retana had a Bench trial and was convicted for aggravated identity theft. A bench trial is a trial to the Judge rather than the jury. Before this Bench Trial, Defendant Retana pleaded guilty to theft of government money, theft from a program receiving federal funds, and three counts of making materially false statements. Defendant Retana had also used his father’s Social Security Number, which his father had given him permission to us in order to set up a
construction business, open a bank account and file tax papers.

Defendant Retana paid “cash wages below the applicable prevailing rate on a federal
government project, failed to pay unemployment insurance, employed illegal
aliens, and submitted false payrolls to the Department of the Navy.” The Defendant argued that he can’t be found guilty of using his father’s Social Security Number “without lawful authority” because his father allowed him to use it.

The Federal Court of Appeals Affirmed the conviction. In affirming the conviction, the Federal Court of Appeals noted that “Lawful authority” does not mean merely permission from the person identified by the means of identification. Instead, “Lawful authority” is broader than mere theft. “Lawful Authority” includes “transfer,
possession, or use without lawful authority.” Use of another person’s social security number to commit a qualifying felony, even with that person’s permission, is use “without lawful authority” in violation of §1028A. United States v. Hines, 472 F.3d 1038 (8th Cir. 2007) (per curiam). “The person assigned a particular social security number does not possess the lawful authority to authorize other persons to represent that number as their own in order to commit other crimes.” Defendant Retana’s father did not possess lawful authority to excuse Defendant Retana’s fraudulent use of the father’s social security number. Use of any Social Security Number to commit fraud is obviously a use without lawful authority. United
States v. Mobley, 618 F.3d 539, 547–48 (6th Cir. 2010).

1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT
___________
No. 10-2909
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Salvador E. Retana, also known as *
Salvador E. Retana-Lopez, also known *
as Salvador E. Lopez-Retana, also *
known as Salvador E. Lopez, *
*
Defendant-Appellant. *
___________
Submitted: April 12, 2011
Filed: June 7, 2011
___________
Before WOLLMAN and MELLOY, Circuit Judges, and MILLER,
1
District Judge.
___________
MELLOY, Circuit Judge.

Salvador E. Retana appeals his conviction for aggravated identity theft. 18
U.S.C. § 1028A(a)(1). Retana admits that he used his father’s social security number”during and in relation to” the commission of other crimes, and the government does not dispute the fact that Retana’s father gave Retana permission to use the social security number. Id. In light of the father’s permission, Retana argues that the government failed to prove an element of
the offense, namely, that the use was “without lawful authority.” Id. Because we agree with the district court that the father’s permission does not amount to “lawful authority” we affirm the judgment of the district court.

I.

Defendant Retana fraudulently used his father’s social security number as though it were his own to form a construction business, open an account with Bank of America, and file certain tax papers. He used his father’s number to open the bank account because he owed money and did not want other banks recovering funds from accounts bearing his real social security number. Ultimately, through his construction business, he paid cash wages below the applicable prevailing rate on a federal government project, failed to pay unemployment insurance, employed illegal aliens, and submitted false payrolls to the Department of the Navy. He eventually received approximately $440,000 for work performed on the government project and paid substantially less than this amount to workers (with many payments made as unreported cash payments). Investigators were unable to account for over half of the $440,000.

These activities eventually led to charges against Retana for multiple offenses including one count of theft of government money, 18 U.S.C. § 641; one count of theft from a program receiving federal funds, 18 U.S.C. §666; three counts of making materially false statements, 18 U.S.C. § 1001; and one count of aggravated identity theft, 18 U.S.C. § 1028A. He pleaded guilty to all counts other than aggravated identity theft, an offense that carries a mandatory, consecutive two-year term of incarceration. See
18 U.S.C. § 1028A(b)(2). As to this remaining count, he admitted all elements of the offense except one: the requirement that his use of “the means of identification of another person” be “without lawful permission.” As to this element, the record is undisputed: he obtained permission from his father to use the father’s social security number. Retana then waived his right to a jury trial and proceeded with a bench trial. The district court held that use of the father’s means of identification was without lawful authority and found Retana guilty of aggravated identify theft. Retana appeals.

II.

The statutory text of the offense at issue, “Aggravated identity theft,” provides: Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years. 18 U.S.C. § 1028A(a)(1).

On one level, Retana’s argument is simplistic: he had his father’s permission
and, therefore, did not commit the “theft” of any person’s identity. Retana’s argument is based on the title of the offense and on the assumption that “lawful authority” means merely permission from the person identified
by the means of identification at issue in the case. We reject this argument b
ecause § 1028A(a)(1) employs the term “lawful authority” rather than the term “permission” and because the statute is broader than mere theft; the text of § 1028A(a)(1) encompasses “transfer[], possess[ion], or use[] without lawful authority.” In addition to citing the title of the offense, Retana cites
passages of legislative history that he claims support his interpretation. None of his cited comments from lawmakers, however, are sufficient to overcome the plain language of the statute. Further, while it may be true that some legislators appear to have been concerned primarily with situations involving actual stealing (i.e. situations where the offender had no authority or permission from the “victim” to use the means of identification, lawful or otherwise), Congress did not pass a statute criminalizing merely this type of narrowly defined theft offense. On another level, Retana’s argument is more complex. He argues, essentially, that his father had the power to grant lawful authority for Retana to use the father’s social security number. He also appears to argue that even if the father lacked such power, the government failed to prove that Retana knew the use was without lawful authority. We address these arguments in more detail.

In United States v. Hines, 472 F.3d 1038 (8th Cir. 2007) (per curiam), the Eighth Circuit held that the use of another person’s social security number to commit a qualifying felony, even with that person’s permission, served as use “without lawful authority” in violation of § 1028A. Hines, 472 F.3d at 1040 (“Whether Hines used Miller’s name without permission . . . or . . . obtained Miller’s consent in exchange for illegal drugs, Hines acted without lawful authority when using Miller’s identification.”). Here, Retana’s argument is based on the theory that Hines is not controlling because the Supreme Court’s reasoning in Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), so severely undercut the rationale of Hines as to render Hines no longer good law. The district court disagreed and found itself still bound by Hines. In the alternative, the district court held that even if not bound by Hines, it believed the government proved Retana’s violation.

We agree with the district court as to both points. Flores-Figueroa is material
to our analysis, but it did not undermine the authority of Hines in the manner urged by Retana. The Court in Flores-Figueroa held the term “knowingly” in § 1028A(a)(1) modified the subsequent phrase “of another person.” 129 S.Ct. at 1888. Accordingly, to prove the offense of aggravated identity theft, the government had to prove that the defendant knew the means of identification was associated with an actual person rather than being purely fabricated. Id. at 1894. Here, it is undisputed that Retana knew he was using his father’s identification. The question remains, however, whether the term “knowingly” applies to the phrase “without lawful authority.” We believe that it does.

In discussing whether the term “knowingly” modified the phrase “of another
person,” the Flores-Figueroa Court observed that “[a]s a matter of ordinary English grammar, it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequently listed elements of the crime.” 129 S. Ct. at 1890 (emphasis added). The Court also relied on Liparota v. United States, 471 U.S. 419 (1985), in which it interpreted a federal food stamp statute that said, “‘whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [law]’ is subject to imprisonment.” Flores-Figueroa, 129 S. Ct. at 1891(quoting Liparota, 471 U.S. at 420 n.1). The Liparota Court held that “the word
‘knowingly’ applied to the phrase ‘in any manner not authorized by [law]’ . . . despite the legal cliche ‘ignorance of the law is no excuse.'” Id. (quoting Liparota, 471 U.S. at 433). Thus, Liparota and Flores-Figueroa support the conclusion that a conviction for aggravated identity theft requires proof that the defendant knew his use of the other person’s identity was without lawful authority.

This conclusion, however, does not undermine Hines. Hines did not discuss the applicable mens rea. Hines held that the use of another person’s social security number for an illegal purpose satisfied the statute as a use “without lawful authority” regardless of whether that use occurred with or without the other person’s permission. Hines, then, stands for the simple proposition that the person assigned a particular social security number does not possess the lawful authority to authorize other persons to represent that number as their own in order to commit other crimes. Here, even after applying the mens rea requirement as per Flores-Figueroa and Liparota, it remains true that Retana’s father did not possess lawful authority to excuse Retana’s fraudulent use of the father’s social security number to commit other crimes. To the extent Retana argues that the government failed to prove he knew the father’s permission was insufficient, Retana’s argument is a mere challenge to the sufficiency of the evidence. Retana waived his right to a jury trial, and the district court, as the finder of fact, is afforded the same deference we owe juries. See United States v. Peterson, 632 F.3d 1038, 1041 (8th Cir. 2011).

Given Retana’s particular and furtive uses of the father’s social security number, and given the fundamental unreasonableness of the assertion that his father could grant lawful authority for such uses, it is clear that the district court’s determination is supported by sufficient evidence. See, e.g., United States v. Mobley, 618 F.3d 539, 547–48 (6th Cir. 2010)(“That a defendant’s use of any social security number—including his own—to submit fraudulent credit applications must be ‘without lawful authority’ is obvious.”).

III.

We affirm the judgment of the district court.

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.

Happy Mother’s Day – listen to your mother, always leave the house in clean underwear

This guy clearly forgot to listen to mom’s advice:

Manatee sheriff: Man says cocaine in his buttocks isn’t his
Published: October 1, 2010
By PARADISE AFSHAR — pafshar@bradenton.com
MANATEE — A search of a 25-year-old man following a traffic stop Wednesday morning revealed one bag of marijuana and one bag of cocaine in the driver’s buttocks, according to the Manatee County Sheriff’s Office. The driver said only the marijuana belonged to him.
Raymond Stanley Roberts was pulled over at 8:40 a.m. in the 500 block of 63rd Avenue East. Approaching the Hyundai, deputies said they could smell a strong odor of marijuana coming from the vehicle, according to the report.
After writing a speeding ticket, one of the deputies asked Roberts if he smoked marijuana and when had he done it last. According to the arrest report, Roberts replied that he smoked the night before and there was nothing in the car. He then told the two deputies to search the car.
While searching Roberts’ person, deputies felt a soft object in his buttocks. The report said Roberts then said, “Let me get it,” and pulled out a clear plastic bag of marijuana weighing 4.5 grams.
He was then asked if he was holding anything else, and Roberts said no.
Deputies then felt another soft object in the same area and pulled it out through the exterior of Roberts’ shorts. The object was a bag with 27 pieces of rock cocaine weighing 3.5 grams, the report stated.
When the bag fell to the ground, Roberts immediately said, according to the report, “The white stuff is not mine, but the weed is.” He then stated that his friend had borrowed the vehicle before and he saw the cocaine on the passenger seat when he was pulled over.
Roberts has been charged with possession of rock cocaine and marijuana. He was released Wednesday from Manatee County jail after posting a $1,120 bond.

Read more here: http://www.bradenton.com/2010/10/01/2619858/police-man-claims-cocaine-found.html#storylink=cpy

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/