Category: injury

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

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

Summary:

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

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

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

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

Complete Decision:

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

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

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

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

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

RILEY, Chief Judge.

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

I. BACKGROUND

A. Facts[2]

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

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

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

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

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

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

B. Prior Proceedings

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

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

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

II. DISCUSSION

A. Sufficiency of the Evidence

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

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

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

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

B. Motion in Limine

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

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

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

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

C. Jury Instruction

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

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

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

III. CONCLUSION

We affirm the judgment of the district court.

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

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

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

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

Online Dog chat leads to murder and taking of unborn fetus

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

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

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

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

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

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

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

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

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

Alternative Perpetrator, First Degree Murder

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

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

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

Alternative Perpetrator

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

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

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

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

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

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

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

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

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

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

Fact Summary:

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

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

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

Below is the Complete Decision

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

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

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

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

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

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

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

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

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

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

Accordingly, we affirm the judgment of the district court.

Youth Soccer Player punches Referee who later dies

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

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

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

Urine samples in Minnesota DWI and Missouri v. McNeely link

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

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

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

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

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

First Void Urine Test, Correlation to Blood Alcohol Irrelevant.

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

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

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

Conviction affirmed.

Drug Check Point Ahead

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

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

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

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

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

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

Fact Summary:

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

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

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

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

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

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

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

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

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

Issues:

(1) Probable Cause for the Car Stop

a. Prokupek and McGlothen argued

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

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

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

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

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

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

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

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

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

d. The Evidence is suppressed.

And, The Duck Wins

Here is one for our hunters and farmers to be aware of. If you have property that has federal wetlands, or easements to federal wetlands, it is best to contact your local Department of Natural Resources, the Federal Wetland Agency and your attorney before taking any actions. As the Case of United States v. Alvin Peterson shows, interfering with an easement leading to a federal wetland, such as a pond, stream or other access, will lead to a federal offense and possible prison sentence, or federal probation.

To read more about this case see below for a summary and the complete decision by the Federal Court. If you have any questions as to how I might help you, please call me at 651-200-3484 or see my video on my website.

United States v. Alvin Peterson
App. from Dist. N.D.

Fact Summary:

Defendant Alvin Peterson was charged with two misdemeanor violations for draining wetlands on property encumbered by a federal wetland easement. A Federal Judge found Peterson guilty of both violations and sentenced him to 5 yrs.
probation, a fine and restitution.

Defendant Alvin Peterson appealed to the 8th Circuit Federal District Court challenging sufficiency of evidence.

Issues:

(1) Sufficiency of Evidence

a. Defendant Alvin Peterson asserted there was no evidence that the drained wetlands existed at the time of the easement, that the wetlands he drained were
covered by the easement, or that he had knowledge of the easement’s scope.

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

1. The evidentiary photographs showed the wetland existed at the time of the
easement.

2. The wetlands were covered by the easement.

3. All that is required under the law is that Defendant Alvin Peterson knew there was a federal easement on that land.

Below is the complete opinion

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1577
___________
United States of America,
Appellee,
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Alvin Peterson, *
*
Appellant. *
___________
Submitted: October 21, 2010
Filed: January 27, 2011
___________
Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
___________
GRUENDER, Circuit Judge.
Alvin Peterson (“Peterson”) was charged with two Class B misdemeanor
violations for draining wetlands on property encumbered by a federal wetlands easement, in violation of 16 U.S.C. § 668dd(c), (f)(2). The first violation—number W0900741—alleges Peterson drained wetlands 3, 5, and 8, subject to Walsh County Easement 124X-1-3, on the west 1/2 of
Section 15, Township 156N, Range 59W (“Section 15”). The second violation—number W0900742—alleges Peterson drained wetland 2, subject to Walsh County Easement 56X-2, on the north 1/2, southeast 1/4
of Section 16, Township 156N, Range 59W (“Section 16”). A magistrate
Appellate Case: 10-1577 Page: 1 Date Filed: 01/27/2011 Entry ID: 3749237
1
The Honorable Alice R. Senechal, United States Magistrate Judge for the
District of North Dakota.
2
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
-2-
The judge found Peterson guilty of both violations, United States v. Peterson, 2008 WL4922413 (D.N.D. Nov. 12, 2008), and sentenced him to 5 years’ probation and imposed a $10,000 fine and $1,500 in restitution. Peterson appealed to the district court, see Fed. R. Crim. P. 58(g)(2)(D), and the district court affirmed, United States v. Peterson, No. 2:08-mj-16, (D.N.D. Mar. 1, 2010).

On appeal to this court, Peterson challenges the sufficiency of the evidence solely for his conviction on violation number W0900741, the charge involving wetlands on Section 15. Because substantial
evidence supports Peterson’s conviction, we affirm.

I. BACKGROUND
In 1966, Peterson’s parents, Joe Peterson (“Joe”) and Emma Peterson
(“Emma”), conveyed a wetlands easement (“1966 easement”) to the United States Fish and Wildlife Service (“FWS”) in exchange for $4,700.
As with many such easements negotiated by FWS before 1976, FWS utilized a standard wetland conveyance document that included the entire tract of land in its legal description. In this case, the 1966 easement purported to grant wetlands protection to FWS for the west 1/2 of Section 15 and for portions of six other sections of land. Although the 1966 easement refers to an attached map certified by the FWS Regional Director, no such map was ever located, if it did exist. However, included with the 1966 easement is an administrative easement summary that delineates the total “tract acreage” (1510.49 acres) and the “wetlands acreage” (314 acres) covered by the easement.

Notably, the easement summary did not delineate how the wetlands acreage was distributed among each of the seven sections.

Appellate Case: 10-1577 Page: 2 Date Filed: 01/27/2011 Entry ID: 3749237
3
The applicable statute provides that “[n]o person shall disturb, injure, cut,
burn, remove, destroy, or possess any real or personal property of the United States, including natural growth, in any area of the [National Wildlife Refuge] System.” 16 U.S.C. § 668dd(c).

-3-
Joe leased the farmland on the west 1/2 of Section 15 to Peterson beginning in 1954. In 1973, after a series of disagreements with Peterson regarding the easement’s coverage, FWS purported to “renegotiate” the 1966 easement with Peterson by having him execute, “for Joseph C. Peterson,” a hand-drawn map of Section 15 that delineated the wetlands on the section covered by the easement (“1973 map”).
Although Joe and Emma remained the owners of the land at the time, they did not sign the 1973 map, and they were not involved in its negotiation. Peterson inherited the west 1/2 of Section 15 in 1975. In 1999, and again in 2003, Peterson constructed ditches to drain water from
certain wetlands on Section 15.

As a result, Peterson was convicted of draining protected wetlands, in violation of 16 U.S.C. § 668dd(c), (f)(2). He was fined, sentenced to probation, and ordered to comply with a wetlands restoration program.
Peterson appealed to this court, and we affirmed.

See United States v. Peterson, 178 Fed. App’x 615, 616 (8th Cir. 2006) (unpublished per curiam) (“Peterson I”).

After the court-ordered restoration was completed in the fall of 2006, Peterson hired a contractor to remove the man-made earthen “plugs” installed during the restoration of wetlands 3, 5, and 8 on Section 15, resulting in more than an 87 percent reduction in water level. FWS issued a
violation notice, and the magistrate judge again convicted Peterson of violating of 16 U.S.C. § 668dd(c), (f)(2), for draining wetlands on property encumbered by a federal wetlands easement. The district court affirmed, and this appeal followed.

Appellate Case: 10-1577 Page: 3 Date Filed: 01/27/2011 Entry ID: 3749237
-4-

II. DISCUSSION

On appeal, Peterson claims the Government’s evidence was insufficient to prove that the drained wetlands on Section 15 existed at the time of the 1966
easement’s conveyance, that the drained wetlands are covered by the 1966 easement, and that Peterson had the requisite knowledge. He also argues that his actions amounted to a permissible clearing of natural waterways that had become overgrown and silted.

“In passing upon the sufficiency of the evidence to sustain an ultimate finding of guilt following a bench trial, we apply the same standard of review that is applied where a defendant has been found guilty by a jury; that is to say, the finding must be sustained if it is supported by substantial evidence.”
United States v. Erhart, 415 F.3d 965, 969 (8th Cir. 2005) (quoting United States v. Barletta, 565 F.2d 985, 991 (8thCir. 1977)). “On review, we will consider the evidence in the light most favorable to the guilty verdict.” Id.
To convict Peterson of the violation, “the United States must prove beyond a reasonable doubt that identifiable, covered wetlands (as existing at the time of the easement’s conveyance and described in the Easement Summary) were damaged and that the defendant knew that the parcel was subject to a federal easement.” United States v. Johansen, 93 F.3d 459, 467 (8th Cir. 1996) (emphasis and parenthesis in the original) (citing United States v. Vesterso, 828 F.2d 1234, 1244 (8th Cir. 1987)).

First, Peterson argues that the Government failed to show that the drained
wetlands existed at the time of the easement’s conveyance in 1966. We disagree. The Government introduced an aerial photograph of Section 15 taken in 1962, four years before the easement was conveyed. FWS wildlife biologist Mike Estey testified that the wetlands depicted in the 1962 aerial
photograph were of the same approximate size, shape, and location as the drained wetlands. Moreover, the wetlands depicted in the 1962 aerial photograph align closely with the wetlands depicted in the 1973 map.
After reviewing the record, we conclude that the photographic evidence, maps, and We look only to the 1966 easement and easement summary, and not to the 1973 map, to determine whether the drained wetlands were overed by the 1966 easement. Although the Government occasionally refers to the 1973 map as a “renegotiation” of the 1966 easement, it conceded that the 1973 map did not change the terms and scope the 1966 easement: “[
i]t . . . does not make any difference whether [Alvin] Peterson did or did not have the authority to sign the 1973renegotiated map. The easement was recorded in 1966 and the legal rights of the United States stem from the 1966 easement.” To be sure, the 1973 map is evidence that Peterson knew that his property was encumbered by an easement, but this does not influence our inquiry into whether the drained wetlands actually were covered by the 1966 easement.
-5-
Expert testimony taken together amount to substantial evidence that the drained wetlands on Section 15 existed at the time of the easement’s conveyance in 1966. Second, Peterson argues that the Government has failed to show that the specific wetlands he drained on Section 15 were covered by the 1966 easement. He asserts that the 1966 easement, which extends over the west 1/2 of Section 15 and six other sections of land, is “not specific
enough to provide adequate notice and a legal encumbrance on Alvin Peterson’s use of his land” because it lacks a contemporaneously-filed map or a section-by-section delineation of covered wetlands acreage. In the absence of a map or a section-by-section delineation of wetlands acreage, Peterson argues that the Government cannot prove which wetlands were
included in the 314-acre total and which wetlands may not have been covered by the easement. The Government argues that “[t]he [drained] wetlands were ‘now existing’in 1966, and therefore covered by the terms of the easement.”
4
The Government does “not need to legally describe the confines of each
covered wetland under the pre-1976 easements.” Johansen, 93 F.3dat 467. However,because “federal wetland easements are limited to the acreage provided in the Easement Summaries,” id. at 466, it is insufficient to show only that the drained wetlands were in existence at the time of the conveyance of the easement. Without the aid of a map filed with the asement
or some other method of identifying the -6- specific wetlands covered by the easement, however, the Government still can prevail by proving that the easement encumbers all wetlands on the tract that were in existence at the time of the conveyance. Implicit within Peterson’s argument, however, is the assertion that some wetlands acreage on the seven sections—including Section 15— was not covered by the 1966 easement. In contrast, the Government argues that the 1966 easement encumbers all wetlands existing in 1966 on the seven sections, including Section 15. The text of the 1966 easement supports the Government’s argument. The easement prohibits “draining or permitting the draining, through the transfer of appurtenant water rights or otherwise, of any surface water including lakes, ponds, marshes, sloughs, swales, swamps, or potholes, now existing or reoccurring
due to natural causes on the above-described tract” (emphasis added). When the 1966 easement is read together with the easement summary, it is clear that the 1966 easement covers all wetlands then existing on the seven sections—including Section 15—and that those wetlands total 314 acres, as described in the easement summary. The 1966 easement included an additional clause that could potentially exclude some wetlands: “Excepted are certain drainage ditches which the parties of the first part [Joe and Emma] may maintain and/or wetlands which are deleted from the provisions of this easement. The above exceptions are shown on a map certified by
the Regional Director at the time of acceptance.”

The magistrate judge, however, noted that no such map was submitted in evidence and found that the record lacked any evidence to indicate that this clause served to exclude any wetlands in existence in 1966. Peterson, 2008 WL 4922413, at 2. Moreover, before the magistrate judge, Peterson’s counsel characterized this provision as pertaining only to ditches, not wetlands: “it essentially says that if there are ditches or drainages that are maintained prior to 1966 they can continue being maintained.” Likewise,
Peterson does not argue in his briefs on appeal that this clause removed certain wetlands from the scope of the easement; his briefs mention this clause only within a discussion of Peterson’s -7- knowledge of the easement’s scope. Therefore, Peterson has “waived his argument . . . because the issue was not developed in his briefs as required.” Rotskoff
v. Cooley, 438 F.3d 852, 854 (8th Cir. 2006). Even if we were to overlook this waiver, we find no evidence in the record that refutes the magistrate judge’s conclusions that this clause did not exclude any wetlands from the 1966 easement and that all wetlands on the seven sections in existence in 1966 were encumbered by the 1966 easement. Therefore, because the rained wetlands were in existence at the time of the conveyance, and because the 1966 easement covers all wetlands that were in existence at the time of the conveyance, substantial evidence supports the district court’s conclusion that the wetlands Peterson drained on Section 15 were covered by the easement—despite the easement’s failure to include a contemporaneously-filed map or provide a section-by-section breakdown of the wetlands acreage. Third, Peterson argues that the Government failed to show that he knew the scope of the 1966 easement. Peterson overs states the degree of
knowledge required by our precedent: the Government need only prove that Peterson “knew that the parcel was subject to a federal easement.” Johansen
, 93 F.3d at 467. The 1973 map, signed by Peterson, clearly establishes that Peterson knew that Section 15 was subject to a federal easement. Even if
we were to look past the 1973 map, Peterson’s previous conviction nvolving the drainage of the very wetlands at issue in this prosecution provided sufficient notice that the parcel was subject to a federal easement. See
Peterson I, 178 Fed. App’x at 616. Accordingly, substantial evidence supports the conclusion that Peterson knew that Section 15 was subject to a federal easement. Finally, Peterson argues that his actions amounted only to a permissible clearing of natural waterways that had become overgrown and filled with silt. We disagree, as the record evidence demonstrates that Peterson’s work exceeded this description.

The contractor hired by Peterson did not merely clean out ditches or natural-8- waterways. At Peterson’s direction, the contractor removed the man-made earthen plugs—installed as restorative measures required by his previous conviction—and breached the basins of wetlands 3, 5, and 8, resulting in at least an 87 percent reduction in water level. Accordingly, Peterson’s argument is without merit.

III. CONCLUSION

For the foregoing reasons, we affirm Peterson’s conviction.

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

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

UNITED STATES v. REED
Federal District Court of North Dakota

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

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

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

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

Is This How Ma Barker Got Started?

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

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

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

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

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

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

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

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

Issues:

(1) Video Footage

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

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

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

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

a. Relevant to a material issue;

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

c. supported by sufficient evidence;

d. higher in probative value than its prejudicial effect;

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

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

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

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