Category: Jail

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

What is the Difference between Bail and a Bond?

Bail and Bond

How do Bail and Bonds work? After a case has been completed, a client will often ask, can I get my Bail back? The answer is, that depends.

When you appear before the Court, if the Court does not release you on your own recognizance, then bail will be imposed. This bail is set to insure your appearance at certain court dates and to insure other conditions, such as remaining law abiding. In Minnesota, you have the option of posting bail or bond. A Bail Bonds company is normally used to post the Bond. The Bail Bond company is insured and recognized by the State. You may also post the entire bail amount with the Court if you choose not to use a Bail Bond company.

So how does this work? Let’s assume the Court imposes bail in the amount of $10,000 to secure your appearance at future court appearances. You may either post the $10,000 with the Court, or use a bail bonds company to post the bail.

If you post the $10,000 with the Court and are later found not guilty, or the case is dismissed, the full $10,000 will be returned. If you are found guilty, or reach a plea agreement and are found guilty by the Judge pursuant to that Plea agreement, you will have the $10,000 returned to you, less any fees and costs.

If you choose to use a Bail Bond company, it is slightly different. First, remember that the Bail Bond Company is a private company and is not part of the Court system. Picture the Bail Bond Company as an insurance company. You are purchasing an insurance policy that the Court will accept to insure your appearance in Court and to insure you will abide by the Conditions of the Court. In this example, you are purchasing a $10,000 policy. The charge, or premium – just like a car insurance premium – is the cost to purchase that $10,000 policy. Let’s assume the cost, or premium, is 10%, or $1,000.00. You will pay the $1,000.00 to the bonding company – just like paying a premium to your car insurance company. The bonding company will then provide the bond – think of insurance coverage – to the Court. As long as you make all of your Court appearances and abide by conditions set, you will never have to pay the other $9,000.00. However, as you purchased a bond (insurance policy) from a private entity, the $1,000.00 paid as a premium will not be returned to you. The Court had nothing to do with that contractual agreement and can’t order those funds to be returned. You will also still be responsible for any fines, fees or costs associated with your Sentence.

If you fail to appear, or abide the conditions set, the Court may very well forfeit the bond. In other words, call the $10,000 policy due. The bonding company will then have to pay the Court the $10,000 promised if a violation occurred (the policy amount) plus any costs in securing your appearance. The bonding company will then begin collection proceedings against you and/or the co-signors and collateral used to secure the $10,000.00 policy, as well as any other costs the Court may impose. The Bail Bond company may attempt to have the Bond reinstated and then discharged so as to recover a portion of the amount the Court forfeited. If this does not work, you and your co-signors are responsible to pay the Bail Bond company the amount of the policy/bond.

Read below for a summary and full opinion on how a bail bond company not only had to pay for the bail amount, but also for all costs associated with extradition and penalties imposed by Court Rule.

Summary

Sate of Minnesota v. Mulcahy & Freedom Bail Bonds (CT APPS, A11-1136, 06-11-2012, Stearns Co)

MS 629.59, Reduction Bail Forfeiture, General Practice Rule 702

The bail company posted bonds of $55,000 for defendant. The Defendant then failed to appear for court. One month later the bonds were ordered forfeited by Court, but stayed the payment for three months.

During this three month period, the Defendant was arrested in California. The Bonding company then moved for reinstatement and discharge of the bonds. The court did reinstate the bonds and then discharged the bonding company, but also
ordered $5,000 to be withheld for Defendant’s extradition costs and also assessed a 10% penalty of $5,500 pursuant to Minn. R. Gen. Pract. 702(f).

The Bonding Company appealed the 10% penalty. The Court of Appeals noted that General Practice Rule 702(f) provides that if a motion to reinstate a bond is made between 90 – 180 days after forfeiture, the court may reinstate but must charge
a 10% penalty. This penalty is a requirement and cannot be waived or reduced by the Court.

STATE v. MULCAHY
STATE of Minnesota, Respondent, v. Jordan Charles MULCAHY, Defendant, Freedom Bail Bonds, et al., Appellants.
No. A11–1136.
— June 11, 2012
Considered and decided by CONNOLLY, Presiding Judge; LARKIN, Judge; and COLLINS, Judge.*
Lori Swanson, Attorney General, St. Paul, MN; and Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, St. Cloud, MN, for respondent.Frank Arend Schulte, St. Paul, MN, for appellants.
OPINION
Appellants, a bond company and its surety, challenge the ten percent penalty imposed by the district court on the reinstatement of their bonds under Minn. R. Gen. Pract. 702(f). Because district courts have no discretion to forgive or reduce this penalty, we affirm.
FACTS
Between May 2010 and November 2010, appellant Freedom Bail Bonds and its surety, appellant Minnesota Surety and Trust Company, posted bonds totaling $55,000 for defendant Jordan Mulcahy in connection with four criminal complaints charging him with numerous offenses. He failed to appear for a court hearing in November 2010. In December 2010, the bonds were ordered forfeited and appellants were notified that March 19, 2011, would be the date of forfeiture.
In March 2011, shortly after the defendant was arrested in California, appellants moved for reinstatement and discharge of the bonds. Following a hearing on their motion, the district court issued an order reinstating and discharging the bonds, ordering $5,000 withheld for defendant’s extradition, and imposing a ten percent penalty of $5,500 under Minn. R. Gen. Pract. 702(f).
ISSUE
Did the district court err in imposing a ten percent penalty under Minn. R. Gen. Pract. 702(f)?
ANALYSIS
“The interpretation of a procedural rule is subject to de novo review.” Johnson v. State, 801 N.W.2d 173, 176 (Minn.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 1748, 182 L.Ed.2d 537 (2012).
The language of Minn. R. Gen. Pract. 702(f) was interpreted and its relationship to Minn.Stat. § 629.59 was clarified in State v. Askland, 784 N.W.2d 60 (Minn.2010).
State statute and court rule address the question of reinstatement of a forfeited bail bond. Minnesota Statutes § 629.59 (2008) states that when a bail bond is forfeited, “the court may forgive or reduce the penalty according to the circumstances of the case and the situation of the party on any terms and conditions it considers just and reasonable.” Rule 702(f) of the Minnesota General Rules of Practice narrows a court’s discretion:
A petition for reinstatement [of a forfeited bond] filed between ninety (90) days and one hundred eighty (180) days from the date of forfeiture shall be heard and determined by the judge who ordered forfeiture or the judge’s successor and reinstatement may be ordered on such terms and conditions as the court may require, but only with the concurrence of the chief judge and upon the condition that a minimum penalty of not less than ten percent (10%) of the forfeited bail be imposed.
Id. at 62. Askland remanded to the district court “for reinstatement, discharge, and refund of the forfeited bond less the 10% penalty mandated by Minn. R. Gen. P. 702(f).” Id. at 64 (emphasis added).
Notwithstanding Askland, appellants raise four arguments opposing the imposition of the penalty. First, they argue that “it was well within the [district] court’s authority and discretion to waive the ten percent penalty provided for in Rule 702.” But, under Askland, the district court had no authority to waive the penalty when it reinstated the bonds.
Second, appellants argue that the penalty should not be imposed because the state has not shown prejudice resulting from the defendant’s absence and because appellants made a good-faith effort to locate the defendant. The state’s showing of prejudice and the good-faith effort of a bond company are two of the four factors for district courts to consider when exercising their discretion to decide whether to reinstate a forfeited bond. Id. at 62 (citing In re Shetsky, 239 Minn. 463, 471, 60 N.W.2d 40, 46 (1953)). But those factors are not relevant here, because the issue here is not the discretionary reinstatement of a forfeited bond; it is the mandatory penalty imposed by Rule 702 when a petition for reinstatement is filed between 90 and 180 days after the forfeiture.
Third, appellants argue that there is “some justification for at least a small variance from Rule 702” because of the district court’s delay in notifying them of the forfeiture and of the timeliness of their own petition for reinstatement once the defendant had been arrested in California. But appellants do not explain why either the district court’s delay in notifying them or the timing of their own petition for reinstatement would be relevant to the mandatory penalty imposed by Rule 702.
Finally, appellants argue that Minn. R. Gen. Pract. 1.02, permitting modification of the rules to prevent injustice, should be invoked here, but they do not explain why the penalty imposed by Minn. R. Gen. Pract. 702 is unjust.1
DECISION
The district court did not err in interpreting Rule 702 to mandate the imposition of a ten percent penalty when appellants’ bonds were reinstated and concluding that it had no discretion to forgive or reduce that penalty.
Affirmed.
CONNOLLY, Judge.

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.

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

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

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

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

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/

Probationers and Parolees have a limited expectation of privacy

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

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

Issue: Search of parolee’s person and residence

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

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

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

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

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

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

Affirmed

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

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

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

O P I N I O N

HUDSON,Judge

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

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

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

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

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

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

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

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

ISSUE

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

ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D E C I S I O N

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

Affirmed.

CS-1
ROSS, Judge (concurring specially)

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

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

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

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

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

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

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

Fact Summary:

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

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

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

Below is the Complete Decision

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

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

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

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

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

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

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

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

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

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

Accordingly, we affirm the judgment of the district court.

Youth Soccer Player punches Referee who later dies

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

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

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

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
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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).

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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
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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.
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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.”
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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.

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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.