Category: Trial

Reputed Mob Boss Found Not Guilty of Conspiracy

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

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

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

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

Fish scares away burglar

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

The would be burglar should still be careful. Even though he/she may not have taken anything, the crime may have already occurred. Minnesota Statute Section 609.582 defines Burglary. Burglary in the first degree, which is what the Bill Bass allegation is if this was a dwelling and the homeowner or another person was inside the house somewhere, is outlined in Subdivision 1: “Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to a payment of a fine of not more than $35,000, or both if: (a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building; (b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or (c) the burglar assaults a person within the building or on the building’s appurtenant property.

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

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”>Holder Conference

When is a Juvenile Certified as adult?

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

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

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

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

Certification, Minnesota Statute Section 260B

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

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

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

Insanity Defense for killing wife’s lover

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

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

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

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

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


Be sure you know what is in your bedroom

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

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

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

To Quote Abraham Lincoln: “He who represents himself has a fool for a client.”

What happens when a person decides they want to represent themselves in a criminal matter rather than use a lawyer? Most of the time, not good things. Read the opinion below to see how a young man first wanted to represent himself and then decided to change his mind mid stream.

STATE of Minnesota, Respondent, v. Denon Anthony RHOADS, Appellant.
No. A10–1568.
— August 01, 2011
Considered and decided by MINGE, Presiding Judge; PETERSON, Judge; and SCHELLHAS, Judge.
Lori Swanson, Attorney General, St. Paul, MN; and John J. Choi, Ramsey County Attorney, Thomas R, Ragatz, Assistant County Attorney, St. Paul, MN, for respondent.David W. Merchant, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, MN, for appellant.
Appellant challenges his convictions for first- and second-degree burglary under Minn.Stat. § 609.582, subd. 1(c), 2(a)(1) (2008), arguing that (1) there was insufficient evidence to prove he entered the building without consent; (2) his initial waiver of his right to counsel on the second-degree burglary charge was ineffective due to his mental condition and due to the state’s addition of a charge of first-degree burglary after he provided his waiver; (3) his constitutional right to a speedy trial was violated; and (4) he was improperly adjudicated guilty of both first- and second-degree burglary. We conclude that the district court did not abuse its discretion in not inquiring into whether appellant’s mental condition affected his waiver of counsel. Although the district court erred in not obtaining appellant’s waiver of his right to counsel on the additional charge of first-degree burglary, the record clearly and convincingly establishes that it was not prejudicial to construe his prior waiver of counsel to second-degree burglary as a continuing waiver to the first-degree charge. Therefore, we affirm on the waiver-of-counsel question. We further conclude that appellant was not denied a speedy trial, that there was sufficient evidence to support the guilty verdict, but that the second-degree burglary charge was a lesser-included offense of first-degree burglary. Accordingly, we affirm the conviction of first-degree burglary but vacate the conviction of second-degree burglary.
John Ryan was at his apartment when appellant Denon Rhoads, with black tape on his face, entered the building in which the apartment was located, forcefully entered the apartment, and went to the bedroom where Ryan was located. Rhoads accused Ryan of reporting him to the police for an unrelated incident and punched him. Ryan pulled a knife from under his mattress and Rhoads retreated back into the living room. Rhoads then threatened to kill Ryan and a friend who was visiting Ryan before leaving the apartment.
Rhoads was arrested on October 9, 2009, and charged with second-degree burglary under Minn.Stat. § 609.582, subd. 2(a)(1). He was not able to post bail, and a public defender was appointed to represent him. At the time of his first appearance, the prosecutor apparently told Rhoads’s attorney that if Rhoads pleaded guilty to the pending second-degree burglary charge, he would not amend the complaint to add a first-degree burglary charge. The offer was not pursued. At Rhoads’s second appearance, in October 2009, Rhoads discharged his public defender attorney, waived his right to counsel, and proceeded pro se. At the time of his discharge, the public defender gave Rhoads a completed and signed demand for a speedy trial. The district court also appointed advisory counsel at that time. Rhoads did not file the speedy-trial form with the district court or verbally request a speedy trial until February 10, 2010.
During Rhoads’s initial hearings, he complained of not being released on his own recognizance and of not getting all the medications he needed, reaffirmed his desire to represent himself, and complained that he was frustrated with repeated court appearances without a trial. On a couple of occasions he also complained of the lack of legal resources available to him. The record at the early hearings indicates that he had been previously institutionalized for mental illness and that he appeared agitated.
In December 2009, the prosecutor again stated that unless Rhoads pleaded guilty to second-degree burglary, the state would amend the complaint to add a charge of first-degree burglary. Rhoads again declined the offer. The state then amended the complaint to include the first-degree burglary charge. During several continuances of the trial date, the prosecutor continued to offer to drop the first-degree charge in return for a guilty plea to second-degree burglary, and the district court repeatedly made inquiries whether Rhoads wished to have counsel appointed. On April 8, 2010, Rhoads reiterated his waiver of his right to a jury, repeated his determination to represent himself, and a bench trial was held. The district court found him guilty of both burglary counts and sentenced him to 92 months in prison. This appeal follows.
I. Was the evidence sufficient to support the conviction for first-degree burglary?
II. Did Rhoads’s initial waiver of counsel remain valid and does the record clearly and convincingly demonstrate that Rhoads was not prejudiced by the failure to renew his waiver after the first-degree burglary charge was added to the complaint?
III. Was Rhoads denied his right to a speedy trial?
IV. Is second-degree burglary a lesser-included offense of first-degree burglary?
I. Sufficiency of the Evidence
When reviewing a challenge to the sufficiency of the evidence, we conduct a thorough analysis to determine whether the factfinder reasonably could find the defendant guilty of the charged offense based on the facts in the record and the legitimate inferences that can be drawn from those facts. State v. Chambers, 589 N.W.2d 466, 477 (Minn.1999). In doing so, we view the evidence in the light most favorable to the verdict and assume that the factfinder believed the evidence supporting the guilty verdict and disbelieved any evidence to the contrary. Id. This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980).
To support a conviction of first-degree burglary, the state must prove beyond a reasonable doubt that the defendant (1) entered a building; (2) without consent; and (3) assaulted a person within the building. Minn.Stat. § 609.582, subd. 1(c). “Whoever enters a building while open to the general public does so with consent except when consent was expressly withdrawn before entry.” Minn.Stat. § 609.581, subd. 4 (2008).
At trial, Ryan testified that Rhoads did not have consent to enter the apartment. Ryan stated that when a friend stepped out of his apartment, he asked her to prop open both the door to his apartment and the outside common entrance of the apartment building so he would not have to let her back into the building. However, the apartment door was not propped open all the way, and Rhoads kicked it open when he entered. Rhoads himself testified, “I’m not denying the fact that I broke in, that I didn’t ask him.” Although Ryan’s apartment door was ajar and anyone could have entered his apartment by simply pushing on the door, the fact that his door was cracked open did not constitute an invitation to enter or consent to Rhoads’s entry.
Ryan further testified that Rhoads was there because Ryan had reported him to the police and Rhoads wanted retribution. Rhoads’s approach belies any innocent intentions in entering the apartment. Rhoads went to the apartment with black tape on his face—an apparent attempt to disguise his identity. The black tape supports the conclusion that Rhoads was there for malevolent reasons. Finally, Rhoads did not contest that he had a grudge against Ryan and assaulted him while in the apartment. Assuming that the district court believed the evidence in support of the conviction, Ryan’s testimony alone is sufficient for the conviction. See State v. Miles, 585 N.W.2d 368, 373 (Minn.1998) (stating that “a conviction may rest on the testimony of a single credible witness”).
II. Waiver of the Right to Counsel
The United States and Minnesota Constitutions guarantee a criminal defendant the right to the assistance of counsel. U.S. Const. amends. VI, XIV, § 1; Minn. Const. art. I, § 6. Criminal defendants also have a “corollary constitutional right to choose to represent themselves in their own trial.” State v. Worthy, 583 N.W.2d 270, 279 (Minn.1998) (citing Faretta v. California, 422 U .S. 806, 819820, 95 S.Ct. 2525, 2533 (1975)). The right to an attorney can be waived if the waiver is “competent and intelligent.” Id. at 275 (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023 (1938), overruled on other grounds, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981)). This court reviews a defendant’s waiver of his right to counsel to determine whether the “record supports a determination that [the defendant] knowingly, voluntarily, and intelligently waived his right to counsel.” State v. Garibaldi, 726 N.W.2d 823, 829 (Minn.App.2007). We will only reverse the finding of a valid waiver if it is clearly erroneous. State v. Jones, 772 N.W.2d 496, 504 (Minn.2009) (citation omitted). If the waiver is inadequate, we remand for a new trial. Garibaldi, 726 N.W.2d at 831.
Before accepting a waiver of counsel in a felony or gross misdemeanor case,
the [district] court must advise the defendant of the following: (a) nature of the charges; (b) all offenses included within the charges; (c) range of allowable punishments; ․ and (f) all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel.
Minn. R.Crim. P. 5.04, subd. 1(4); see also Jones, 772 N.W.2d at 504 (articulating criminal-procedure rule); Minn.Stat. § 611.19 (2008) (requiring a written waiver unless the defendant refuses to sign one); State v. Diaz, 878 A.2d 1078, 1086 (Conn.2005) (concluding that the defendant’s waiver of counsel was invalid when the district court failed to inform him of the range of permissible punishment).
In October 2009, Rhoads completed and signed a petition to proceed pro se. The petition stated that he was charged with second-degree burglary and faced a minimum sentence of 32 months in prison, with a maximum of ten years.1 Rhoads also had an extended colloquy with the district court judge before affirming his decision to discharge his public defender and to represent himself.
At the December 2009 hearing, the prosecutor said that the state would amend the complaint to add first-degree burglary unless Rhoads pleaded guilty to the second-degree charge. The prosecutor also noted that this was the same offer he had made to the public defender before Rhoads discharged his counsel. Rhoads rejected the plea bargain and reaffirmed his desire to continue pro se. The first-degree burglary charge was then added to the complaint. With the added charge, and using the then-assumed criminal-history score of four, his minimum presumptive sentence on the first-degree burglary charge was 75 months, with a maximum of 20 years.2 Minn. Sent. Guidelines IV (2008). Rhoads was not informed on the record of the increased range of possible punishments attached to the enhanced charge.
Rhoads does not contest the efficacy of his initial waiver of the right to counsel. But he argues that the waiver was no longer valid because his behavior and statements signaled that his mental health was deteriorating, and because lack of any warnings by the district court of the risk of a substantially greater sentence with the first-degree burglary charge meant his waiver was no longer knowing or intelligent. We address each argument in turn.
A. Mental Health Conditions
Rhoads argues that his mental health deteriorated throughout the proceedings and required further inquiry into the validity of his waiver. At the outset of the proceedings, Rhoads indicated that he had Attention Deficit Hyperactivity Disorder (ADHD), had been diagnosed with bipolar disorder, and was seeing a psychiatrist. Rhoads was removed from two hearings after being “agitated,” and he claimed that while he was in jail awaiting trial, he was not getting all of his medication. It also appears he had been assigned to the mental-health ward. However, in pretrial hearings, he also stated that his current condition was stable, that he was fully capable of representing himself, and that he had attended several colleges and earned the equivalent of a bachelor’s degree. It is also apparent that he had been in Ramsey County District Court numerous times on criminal charges, was familiar with the system, and is an educated person.
This court gives great deference to the district court on credibility determinations. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992), aff’d, 508 U.S. 366, 113 S.Ct. 2130 (1993). Here, the district court judge checked with the jail and was told that Rhoads was receiving all of his medication. The only medication that Rhoads specifically claimed he was denied was also not included in his medication list in the record. The district court decided that he was not deprived of needed medication. While Rhoads was removed from two pretrial hearings for brief outbursts, the record does not show a deteriorating mental state as the pretrial hearings progressed. Rhoads also conducted himself competently throughout his trial. Ultimately, standby defense counsel was appointed for Rhoads and attended the trial. Standby counsel did not raise any competency question. Under the circumstances of this case, we conclude that the district court did not clearly abuse its discretion in continuing to permit Rhoads to represent himself and not sua sponte ordering an evaluation.
B. Heightened Charge
Reported Minnesota decisions have not considered the question of whether a pro se defendant’s initial waiver of counsel continues to be effective if the complaint is amended to add new charges that carry greater penalties. The Ninth Circuit stated that “[t]he essential inquiry is whether circumstances have sufficiently changed since the date of the [waiver of counsel] that the defendant can no longer be considered to have knowingly and intelligently waived the right to counsel.” United States v. Hantzis, 625 F.3d 575, 581 (9th Cir.2010); see also Davis v. United States, 226 F.2d 834, 840 (8th Cir.1955) (noting that the waiver of counsel at a guilty plea remains valid at sentencing when “nothing happened in the meantime, such as an unreasonable lapse of time, ․ new charges brought, a request from the defendant, or similar circumstances” (emphasis added)).
In this case, after Rhoads initially waived counsel, the prosecutor amended the complaint, adding the first-degree-burglary charge that roughly doubled the minimum presumptive and statutory-maximum sentences. There is nothing in the record indicating that Rhoads was informed of the substantial increase in the range of punishment associated with the new first-degree-burglary charge.3 The apparent reason for the rule requirement that the district court advise a defendant who plans to represent himself of the range of punishment is to call attention to the sobering consequences of a criminal conviction and the prudence of representing one’s self. We conclude that this additional charge, and associated increase in the range of punishment, sufficiently changed the circumstances so that Rhoads’s original waiver of counsel could no longer be considered knowing and intelligent. At that time, the district court had a duty to review any of the rule 5.04, subd. 1(4) factors that had changed, which included advising Rhoads of the nature of the added charge and its greater potential penalty and to reaffirm Rhoads’s desire to proceed pro se.
The question remains what relief should be granted when a proper waiver is not obtained for the additional charges. The Minnesota Supreme Court has found the initial waiver of counsel valid in circumstances where “the district court failed to follow a particular procedure.” In re G.L.H., 614 N.W.2d 718, 723 (Minn .2000) (citing Worthy, 583 N.W.2d at 27576; State v. Brodie, 532 N.W.2d 557, 557 (Minn.1995)). In those cases, the court considered “ ‘the particular facts and circumstances surrounding [a] case, including the background, experience, and conduct of the accused.’ “ Worthy, 583 N.W.2d at 27576 (quoting Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023). Similarly, we conclude that where the district court does not follow a particular procedure in reviewing changes to the factors in rule 5.04, subd. 1(4), a waiver of counsel can still be valid if the record as a whole clearly and convincingly demonstrates that the accused is not prejudiced by the error. Thus, absent an express reaffirmation of the waiver, we look to the circumstances in the case to determine if the waiver remains valid. Here, four considerations appear relevant.
First, we consider the background and experience of the accused and whether it clearly appears that the accused understands the changed circumstances, including the range of allowable punishment. See, e.g., Schell v. United States, 423 F.2d 101, 10203 (7th Cir.1970) (concluding a waiver of counsel was invalid based on a variety of factors, including the youth and inexperience of the defendant, and the fact that he was sentenced under a different statute, with an increased maximum sentence, than the one he pleaded guilty to).
Here, it appears from the record that Rhoads has a college education, has had significant experience with the criminal-justice system, and demonstrated an understanding of legal concepts in his letters to the judge and comments in court. Also, the very words used to identify the crime convey the relative seriousness of the charges. A “first-degree” offense would presumably involve more prison time than a “second-degree” offense. Rhoads indicated that he was aware of the additional charge. A person with Rhoads’s experience with the criminal-justice system would understand the increased severity of the charge and of the resulting punishment. The prosecutor made an offer to Rhoads that, unless he would plead guilty to the second-degree charge, the state would amend the complaint to add first-degree burglary. After the charge was added, the state renewed the plea offer as one in which the first-degree charge would be dropped for a plea to the second-degree charge. Rhoads acknowledged the new charge on the record and declined the offer again. In this context, Rhoads can be presumed to have understood that the new charge was significantly more serious.
We acknowledge that Rhoads has asserted that his mental condition and lack of proper medication affected his ability to represent himself and that this affected his ability to comprehend the risk of added punishment. However, as discussed above, the record does not show a deteriorating mental state. The district court judge contacted the jail, inquired into his medical records, and found that Rhoads was receiving all of his medication. The district court also patiently proceeded through the pretrial hearings and appointed standby counsel. As already indicated, we defer to the district court on this matter and accordingly do not consider Rhoads’s mental condition or medication.
Second, we evaluate the impact of any changes in charges and penalty in terms of the complexity of the criminal proceeding. If the changed circumstances—such as an additional charge—presented a different type of criminal activity, raised new contested issues, or increased the complexity of the case, the waiver of counsel would not be effective without reviewing the new charges with the accused. However, such a material change in circumstances did not occur here. The elements that the state needed to prove did not substantively change with the new charge. To establish a prima facie case of second-degree burglary, the state must prove that the defendant (1) entered a dwelling; (2) without consent; and (3) with the intent to commit a crime. Minn.Stat. § 609.582, subd. 2(a)(1). For first-degree burglary, instead of proving the intent to commit a crime, the state must prove that the defendant assaulted someone within the building. Id., subd. 1(c). From the outset of this prosecution, the state’s case included clear evidence of an assault. This was sufficient evidence to prove the element of first-degree burglary. In fact, Rhoads did not deny that he assaulted Ryan in his home. This was not part of his defense. Thus, the increased charge had no impact on the prosecution’s case or Rhoads’s defense and therefore this factor weighs in favor of the continued validity of his waiver of counsel.
Third, we take into account the defendant’s access to legal counsel during the criminal proceedings. Rhoads was initially represented by appointed counsel. At his second appearance, Rhoads filled out and signed the petition to proceed pro se, had an extended colloquy with the district court, and was granted his request to discharge his counsel. Several months before trial, Rhoads was also appointed standby counsel who was available at all the subsequent pretrial hearings. When the prosecution first disclosed its intention to add the charge of first-degree burglary if Rhoads did not plead guilty, Rhoads still had appointed counsel. Counsel was available to advise Rhoads, and Rhoads does not claim that he did not have the ability to discuss the proposed amendment with counsel. Later, Rhoads had standby counsel and could have asked about the significance, if any, of the increased charges. Based on the availability of counsel and standby counsel, this factor supports a finding that Rhoads’s original waiver of counsel remained valid.
Finally, we consider the clarity of the defendant’s desire to proceed pro se. Rhoads had seven pretrial hearings after discharging his counsel, at which he repeatedly affirmed his choice to proceed pro se. During several of these, he knew he was facing a first-degree burglary charge. While at times he expressed some concern over his access to legal research materials, he never wavered in his desire to represent himself and told the district court that he was ready for trial. Before his trial began, the district court reaffirmed his choice to proceed pro se. Rhoads’s adamant and repeated statements that he wanted to represent himself support a finding that the original waiver remained valid.4
Because the record supports the conclusion that Rhoads understood and acknowledged the new charge and its reasonable implication of a greater penalty, because the new charge had little impact on the complexity of the case or the state’s evidence, because Rhoads had the benefit of counsel at critical times during the proceedings, and because Rhoads continually affirmed his desire to proceed pro se, we conclude that the record clearly and convincingly establishes that the failure of the district court to advise Rhoads of the greater penalty accompanying the added charge was not a prejudicial violation of Rhoads’s right to counsel.
III. Speedy Trial
The third issue is whether Rhoads was denied his right to a speedy trial as provided by the Minnesota Rules of Criminal Procedure and the United States and Minnesota Constitutions. We address each argument in turn.
A. Minnesota Rules of Criminal Procedure
“The interpretation of the rules of criminal procedure is a question of law subject to de novo review.” Ford v. State, 690 N.W.2d 706, 712 (Minn.2005). The Minnesota Rules of Criminal Procedure states:
A defendant must be tried as soon as possible after entry of a plea other than guilty. On demand of any party the trial must start within 60 days of the demand unless the court finds good cause for a later trial date. The time period begins on the date of the plea other than guilty.
Minn. R.Crim. P. 11.09(b).
When Rhoads chose to proceed pro se, his defense counsel gave him a completed and signed written demand for a speedy trial. However, Rhoads did not file the document with the district court until more than three months later. Before that time, the closest Rhoads came to making a demand for a speedy trial was a January 4, 2010 statement to the district court that “I’m ready to go to trial right now.” Without more, that statement is not clear enough to be construed as an assertion of the right to a speedy trial. Rather, it is a statement that the case can be placed on the docket. Although Rhoads was jailed pending trial and conveyed his wish to be released, he did not request a reduction in bail nor did the district court sua sponte consider questions related to either bail or a speedy trial. We are reluctant to require district court judges to raise pretrial issues for the benefit of a pro se accused. By proceeding pro se, Rhoads accepted the risk posed by his lack of understanding of the rules of criminal procedure. Part of that risk was not realizing that he needed to actually demand a speedy trial to start the criminal-procedure clock running. Rhoads was tried on April 8, 2010, which was within 60 days of his February 10 demand. This trial date complied with that requirement of the rules. Because the “as soon as possible” requirement of the rule leads to the balancing analysis required by the constitutional guarantee, we do not separately consider that language in the rule.
B. Constitutional Guarantee
In addition to the Minnesota Rules of Civil Procedure, the United States and Minnesota Constitutions guarantee a criminal defendant the right to a speedy trial. U.S. Const. amends. VI, XIV, § 1; Minn. Const. art. I, § 6. “A speedy-trial challenge presents a constitutional question subject to de novo review.” State v. Griffin, 760 N.W.2d 336, 339 (Minn.App.2009).
Minnesota follows a four-part balancing test to assess whether the constitutional right to a speedy trial has been violated. State v. Widell, 258 N.W.2d 795, 796 (Minn.1977) (adopting the analysis for speedy-trial violations first articulated in Barker v.. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972)). The court must consider: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced the defendant. Id. None of the factors are dispositive on their own; they must be considered together with other relevant circumstances. State v. Windish, 590 N.W.2d 311, 315 (Minn.1999) (citing Barker, 407 U .S. at 533, 92 S.Ct. at 2193).
Length of Delay
Any material delay is a “triggering mechanism” that requires further review of whether the speedy-trial claim was violated. Id. A delay of six months is sufficient to trigger further inquiry. State v. Corarito, 268 N.W.2d 79, 80 (Minn.1978). The delay has been measured from the time the police arrested the defendant.5 State v. Cham, 680 N.W.2d 121, 125 (Minn.App.2004) (citing State v. Jones, 392 N.W.2d 224, 235 (Minn.1986)), review denied (Minn. Jul. 20, 2004). Rhoads was arrested on October 9, 2009 and went to trial on April 8, 2010—one day short of a six-month delay. A delay of this length creates the presumption that Rhoads’s right to a speedy trial was violated and triggers further inquiry. However, the length of time does not, as an independent factor, provide strong support for finding a violation.
Reasons for Delay
The primary burden of ensuring a speedy trial is on the court and the prosecutor. Windish, 590 N.W.2d at 316. Where a case has been delayed due to calendar congestion, the delay weighs against the state, but less heavily than if the state deliberately attempted to delay the trial. State v. Friberg, 435 N.W.2d 509, 513 (Minn .1989) (citing Barker, 407 U.S. at 531, 92 S.Ct. at 2192).
At the December 10, 2009 hearing, the case was scheduled for a four-week trial block starting in January 2010. Rhoads’s case was number ten on the trial calendar and the district court did not reach the case during the blocked time period. The district court continued the case and Rhoads made his first formal speedy-trial demand on February 10, 2010. In March, the trial was continued again due to a conflict in the prosecuting attorney’s schedule. Rhoads finally had his day in court on April 8, 2010.
The state argues that part of the delay was caused by Rhoads’s failure to promptly request a speedy trial. The lack of a demand caused the computer system to not prioritize his case and therefore placed it lower on the trial calendar. However, how the court’s computer systems operate is outside a defendant’s control, and this delay is attributable to the state. The delays in this case were mainly due to court congestion and scheduling conflicts with the prosecutor, resulting in this factor weighing in Rhoads’s favor.
Assertion of Right to Speedy Trial
The assertion of the right to a speedy trial does not have to be a formal demand, but can be “any ‘action whatever ․ that could be construed as the assertion of the speedy trial right.’ “ Windish, 590 N.W.2d at 317 (quoting Barker, 407 U.S. at 534, 92 S.Ct. at 2194). A defendant’s assertion of the right “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 53132, 92 S.Ct. at 219293. Further, “the frequency and force of a demand must be considered when weighing this factor and the strength of the demand is likely to reflect the seriousness and extent of the prejudice which has resulted.” Friberg, 435 N.W.2d at 515.
Rhoads did not demand a speedy trial until February 10, 2010–four months after he was arrested. Any earlier statements, including “I’m ready to go to trial right now,” are too vague to constitute a speedy-trial demand. After his speedy-trial demand, Rhoads did persistently assert the right. However, the failure to assert his right for four months weighs against Rhoads.
The United States Supreme Court has indentified three interests that the right to a speedy trial was intended to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) avoiding impairment of the accused’s defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The impairment of a defense is the most serious. Windish, 590 N.W.2d at 318.
The delay in voicing a complaint before February 10, as discussed above, weighs against a finding of prejudice. See Friberg, 435 N .W.2d at 515 (reasoning that defendant’s “minimal effort” in waiting two months to file a speedy-trial demand contributed to a lack of serious prejudice.) And pretrial incarceration alone, while unfortunate, is also not enough to demonstrate prejudice. State v. Stroud, 459 N.W.2d 332, 335 (Minn.App.1990).
Rhoads argues that his incarceration compromised his ability to get necessary medication and treatment. He was removed from the courtroom twice after becoming agitated. Other than his actions in court, there is nothing in the record to substantiate Rhoads’s claim that he was not getting his necessary medication. The district court investigated and confirmed that he was receiving his prescribed medications.
Rhoads also argues that he was prejudiced because he was restricted in his access to legal materials to prepare for his trial. Rhoads informed the district court twice that he did not have access to law books and the law library. However, he also waived his right to counsel knowing that he would be incarcerated until his trial and would have limited access to legal materials. Rhoads also noted that he was prepared for trial on multiple occasions and points to no specific impairment to his defense. Rhoads makes no argument as to how his defense would have been stronger had trial occurred at an earlier point in time.
Weighing the Barker factors, we note that the length and reasons for the delay weigh against the state. However, Rhoads waited four months before asserting his right to a speedy trial and did not demonstrate prejudice beyond the fact that he was incarcerated before trial and that his incarceration increased his anxiety and concern. While such an extended pretrial incarceration is troubling, we conclude that it does not rise to the level of a violation of the constitutional right to a speedy trial that requires vacating a conviction.
III. Lesser–Included Offense
Minnesota law protects defendants from being convicted of both a crime and a lesser degree of the same crime. Minn.Stat. § 609.04, subd.1(1) (2008). The district court adjudicated Rhoads guilty of both first- and second-degree burglary. The district court only sentenced him for his conviction of burglary in the first degree. But because the district court convicted Rhoads on both counts, we vacate the conviction for second-degree burglary as a lesser degree of first-degree burglary.
We hold that after Rhoads waived his right to counsel, he should have been advised of the consequences, including the increase in the range of punishment resulting from the addition of the first-degree burglary charge. But we conclude that because the record clearly and convincingly demonstrates that the omission was not prejudicial, the error is not reversible. We also conclude that Rhoads was not denied his right to a speedy trial and that the evidence was sufficient to support a conviction for first-degree burglary. However, because second-degree burglary is a lesser-included offense of first-degree burglary, the district court erred by entering convictions on both counts. Accordingly, we vacate the second-degree burglary conviction.
Affirmed in part, vacated in part.
1. The minimum presumptive sentence appears to have been calculated using a criminal-history score of four. At sentencing, Rhoads was found to actually have a criminal-history score of six. Rhoads does not point to the change in criminal-history score as a consideration relevant to the effectiveness of his waiver of counsel.
2. The minimum presumptive sentence with a criminal-history score of six was 92 months. Minn. Sent. Guidelines IV.
3. Although the record does not clearly indicate that an amended complaint was served on Rhoads, he alluded to receiving it during a hearing and affirmatively rejected the plea offer after the charge was added.
4. We note that we considered the sufficiency-of-the-evidence question earlier in this opinion and concluded that Rhoads’s own testimony was almost sufficient in and of itself to establish his guilty. Under the circumstances, one might ask whether a rational person would plead not guilty and risk the greater penalty of first-degree burglary when a plea agreement for second-degree burglary has been offered. Legal counsel would presumably be helpful in evaluating this situation. However, Rhoads had legal counsel at the outset and appears to have been adamant both about his innocence and the malevolent character of the victim. Rhoads’s insistent self-representation to the second-degree burglary charge in these circumstances had all the characteristics of a high-risk strategy. The addition of the first-degree charge only changed the level of the risk, not the fact of the risk.
5. The state incorrectly argues that the delay is measured from when the defendant formally demands a speedy trial. The formal demand triggers the time periods under Minn. R.Crim. P. 11.09(b), but a formal demand is not necessary to put the constitutional right at issue. Windish, 590 N.W.2d at 318.
MINGE, Judge.

Eyewitness Identification and lineups

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

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

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

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

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

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

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

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

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

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


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

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

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.



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,
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.


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.


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.


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.


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: