Category: federal court

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.

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.

Mandatory Minimums on illegal drug cases

In 2013 United States Attorney Eric Holder sent a memo to his Assistant United States’ Attorneys noting that not all illegal drug cases should demand mandatory minimum sentences. If you have a case drug case in Federal Court or Minnesota State Court, please contact Patrick Flanagan at 651-214-7209 to discuss your case

Click here to read more about the Holder memorandum

Or watch the news conference on the subject here http://www.youtube.com/watch?v=CcuzCNwFktA”>Holder Conference

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

 

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

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

 

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

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

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

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

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

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

 

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

 

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

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

 

Click here to read the entire opinion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Be sure you know what is in your bedroom

See the Opinion below for another example of constructive possession. In this case, a young man was convicted of illegally possessing ammunition. The ammunition came from his girlfriend’s grandmother’s house. The Defendant’s girlfriend had removed the ammunition from her grandmother’s home and stored it at the home she shared with Defendant. The Defendant testified that he did not know the ammunition was stored at the home. However, the Court of Appeals Ruled that constructive possession evidence was enough to convict Defendant of the crime.

U.S. v. HOPKINS
United States of America, Appellee,
v.
James Hopkins, Appellant.
No. 10-3670.
United States Court of Appeals, Eighth Circuit.
Submitted: May 13, 2011.
Filed: July 1, 2011.
Before RILEY, Chief Judge, SMITH, Circuit Judge, and STROM,1 District Judge.
________________________________________

UNPUBLISHED
PER CURIAM.
A jury convicted James Hopkins of being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Hopkins contends the district court2 erred by giving the jury an erroneous instruction on “constructive possession” and challenges the sufficiency of the evidence, arguing the government failed to prove beyond a reasonable doubt Hopkins knowingly possessed ammunition. We affirm.
I. BACKGROUND
At trial, the district court instructed the jury in Jury Instruction No. 16 that the only element of the crime charged for the jury to decide, in light of Hopkins’ stipulation of facts, was whether Hopkins knowingly possessed ammunition. Both Hopkins and the government submitted to the district court identical, proposed instructions on the legal definitions of “actual” and “constructive possession” as set forth in the Eighth Circuit Manual of Model Jury Instructions.3 As the instructions on “possession” were identical to each other and to the Eighth Circuit Model, the district court adopted the parties’ suggestions in Jury Instruction No. 18 and submitted it to the jury. The instruction provided in pertinent part:
A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.
A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
The government presented evidence that the rounds of ammunition in question were recovered from a drawer in a cabinet located in Hopkins’ bedroom during a legal search of his room. In the same cabinet, the searching officer also discovered several venue items recently addressed to Hopkins. Five months after the search, Hopkins agreed to waive his Miranda rights and speak to a reporting officer regarding the discovery of ammunition in his bedroom. Hopkins explained that he and his live-in girlfriend obtained the ammunition from her grandfather’s home while cleaning it out. When Hopkins was asked by the officer why he did not dispose of the ammunition, Hopkins replied, “[w]e didn’t know how to dispose of it.” Hopkins testified at trial he was not aware the ammunition was in the cabinet until after the search of his room.
Hopkins moved for a directed verdict of acquittal both at the close of the government’s case in chief and the close of the case as a whole. The district court denied both motions.
II. DISCUSSION
Hopkins first contends that we should reverse his conviction because the district court committed plain error by not including the word “knowingly” in the paragraph defining “constructive possession” in Jury Instruction No. 18, even though such paragraph was identical to Hopkins’ proposed instruction and the Eighth Circuit Model. According to Hopkins, such omission permitted “the jury to render a verdict of guilty on less than all essential elements of the offense.”
Because Hopkins failed to object to Jury Instruction No. 18 at trial pursuant to Federal Rule of Criminal Procedure 30(d), this court is limited to plain error review as defined in Federal Rule of Criminal Procedure 52(b). “Rule 52(b) permits an appellate court to recognize [and correct] a `plain error that affects substantial rights,’ even if the claim of error was `not brought’ to the district court’s `attention.'” United States v. Marcus, ___ U.S. ___, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (quoting Fed. R. Civ. P. 52(b)). An error is considered plain and affecting substantial rights when (1) it is clear or obvious, rather than subject to reasonable dispute; (2) it affects the outcome of the district court proceedings; and (3) it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. (internal quotations and citations omitted). Our evaluation of the instruction on possession in this case “must be made in the context of the entire jury charge.” United States v. Woodward, 315 F.3d 1000, 1004-1005 (8th Cir. 2003) (citations omitted).
The district court’s usage of the Eighth Circuit Model Jury Instruction defining “possession” which does not include the word “knowingly” in the paragraph on “constructive possession” did not constitute plain error. In reviewing the jury charge as a whole, we find the jury was adequately informed of the necessity of finding Hopkins knowingly possessed ammunition in Instruction No. 16 in order to find him guilty of the crime charged.
Hopkins next challenges the sufficiency of the evidence, arguing the government failed to prove beyond a reasonable doubt Hopkins knowingly possessed ammunition. “We review challenges to the sufficiency of evidence de novo.” United States v. Brown, 634 F.3d 435, 438 (8th Cir. 2011) (citation omitted). “We will `reverse[] only if no reasonable jury could have found the defendant guilty.'” Id. (quoting United States v. Clay, 618 F.3d 946, 950 (8th Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1540, 179 L.Ed.2d 309 (2011)). “We must sustain a conviction when the evidence, viewed in a light most favorable to the government, substantially supports the verdict.” Id. at 439.
Hopkins argues he did not know that the ammunition was being stored in a cabinet located in his bedroom prior to the search of his room, and consequently, he should have been acquitted. We disagree.
When the evidence is viewed in a light most favorable to the government, a reasonable jury could find Hopkins knowingly possessed ammunition. Hopkins had dominion over the room where the ammunition was located. The cabinet within Hopkins’ room containing the ammunition also contained several venue items recently addressed to Hopkins. In light of these facts and Hopkins’ explanation to the reporting officer as to why he failed to dispose of the ammunition, the evidence presented at trial established Hopkins had at least joint control of the cabinet where the ammunition was located and was aware prior to the search of his bedroom that the ammunition had been transported to his home in the aftermath of the death of his live-in girlfriend’s grandfather.
III. CONCLUSION
For the reasons stated, we affirm the judgment of the district court.

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.