I. Specific Offenses
Supreme Court Decisions
• 8 USC § 1101 - Aggravated FelonyLopez v. Gonzales, 05-547 (12/5/06)
> Lopez was a permanent resident alien who was convicted of a state felony offense for drug possession. As a result, INS moved to deport him from the country based upon its determination that the state drug possession offense constituted an aggravated felony under § 1101(a)(43)(B). The immigration court agreed with the INS interpretation and the circuit court of appeals affirmed. Upon defendant’s petition, the Supreme Court granted certiorari.
* Holding: The Court held that a prior state conviction for felony drug possession only qualifies as an “aggravated felony” under § 1101(a)(43)(B) if the prior offense could have been charged as a felony under the federal Controlled Substances Act (CSA). Because defendant’s prior state offense would not have been a felony under the CSA, and because it did not involve drug trafficking, the Court ruled that the offense did not qualify as an aggravated felony. Accordingly, the Court reversed the immigration court’s ruling. Editor’s Note: The same term,“aggravated felony,” is utilized in the federal criminal code at 8 USC § 1326(b)(2) (illegal reentry by a deported alien) and the corresponding guideline, USSG § 2L1.2(b)(1)(C). Thus, the Court’s decision is arguably applicable in the criminal context as well as the deportation context.
• 8 USC § 1101 - Removal of Alien - Theft
Gonzales v. Duenas-Alvarez,05-1629 (1/17/07)
> Defendant was convicted in a California state court of aiding and abetting a theft offense. Subsequently, the government sought to remove defendant from the U.S. pursuant to 8 USC §§ 1101 and 1227(a). These sections permit removal of aliens who have been convicted of, among other things, a felony “theft offense.” Defendant opposed the removal upon the grounds that aiding and abetting under the California statute did not constitute a generic theft offense as anticipated by § 1101. Defendant was ordered removed, but the Ninth Circuit reversed. The government appealed and the Supreme Court granted certiorari.
* Holding: Relying on the Court’s prior decision in Taylor v. U.S., the Court held that a defendant’s conviction would only be considered a “theft offense” under § 1101 if the crime for which the defendant was convicted met the generic definition of theft, as it was understood at common law. The Court concluded that aiding and abetting a theft under the California statute met the generic definition of a theft. The Court emphasized that, in order to prove that a state statute creates an offense outside the generic definition of a listed crime in a federal statute, a defendant’s claim requires more than “the application of legal imagination to the state statute’s language.” Instead, the defendant must show a realistic probability that the state would apply its statute to conduct that falls outside the generic definition. One way to meet this requirement would be to find cases where the state court did, in fact, apply the statute in such a non-generic manner. Finding that defendant had not made such a showing, the Court upheld defendant’s removal.
• 8 USC § 1101-Aggravated Felony - Fraud
Nijahwan v. Holder, 08-495 (6/15/09)
> Defendant was an immigrant who was convicted in a fraud conspiracy, and the government later sought his deportation. The government alleged that defendant’s fraud conviction constituted an aggravated felony, pursuant to § 1101(a)(43)(M)(i), because the loss in the case exceeded $10,000. In proving the loss amount, the government relied on a stipulation from defendant’s sentencing that the loss amount in the case exceeded $100 million. The immigration court agreed and ordered defendant deported. The Third Circuit affirmed and the Supreme Court granted certiorari.
* Holding: A defendant is an aggravated felon, pursuant to subdivision (M)(i), where the defendant has been convicted of “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” The Court held that the fraud offense described in subdivision (M)(i) is not a “generic” offense, similar to those analyzed by the Court in Taylor, Crawford, and Chambers. Accordingly, the Court ruled that the government is not bound by the categorical approach mandated by those cases in proving the circumstances of the prior conviction. Instead, the Court applied a “circumstance-specific” approach, thus allowing the trial court to conduct an inquiry into the underlying facts in order to determine whether the fraud involved more than $10,000. As such, the immigration court’s ruling was affirmed. The Court noted that its holding applied to the deportation context, and commented that, in the context of a criminal prosecution for illegal reentry, the government “stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt” before the aggravated felony enhancement could be applied.
• 8 USC § 1326 - Attempted Illegal Reentry
U.S. v. Resendiz-Ponce, 05-998 (1/9/07)
> Defendant was charged with attempting to illegally reenter the U.S. after being deported. The indictment charged simply that defendant “attempted to enter the U.S.,” and specified a location and date. Defendant moved to dismiss the indictment, claiming that it did not charge an offense because it did not list an overt act in furtherance of the attempt. The district court denied the motion and defendant was convicted at trial. The Ninth Circuit reversed and held that the indictment was defective for failing to state an overt act, and that such a failure can never be harmless error. The Supreme Court granted certiorari.
* Holding: Although the Court granted certiorari in order to decide the issue of whether failure to allege an element of the offense could be harmless error, the Court instead determined that the indictment was not defective. The Court ruled that the language “attempted to enter the U.S.,” where a date and location were specified, was sufficient to satisfy the overt act element. The Court found that the word “attempt” covered both the overt act and the intent elements of the statute. Accordingly, the indictment sufficiently charged the offense, and defendant’s conviction was affirmed.
• 18 USC § 844(h) - Explosives
U.S. v. Ressam, 07-455 (5/19/08)
> Defendant entered the U.S. from Canada and made false statements on his customs declarations form. During the border search, customs officers found explosives in defendant’s trunk. Defendant was charged with making a false statement to a customs official and carrying an explosive during the commission of the felony false statement offense. Defendant was convicted after trial and argued on appeal that he did not carry the explosive “during” his commission of the false statement offense. The Ninth Circuit agreed and set aside the explosives conviction. The Supreme Court granted certiorari.
* Holding: The Court held that the term “during,” as used in § 844(h), did not require proof that the explosives were carried “in relation to” the underlying felony. Instead, the term “during” denotes only a temporal link. Thus, because defendant carried the explosives contemporaneously with his felony false statement violation, he was properly convicted of § 884(h). Therefore, defendant’s conviction was affirmed.
• 18 U.S.C. § 922(g) - Felon in Possession
Small v. U.S., 03-705 (4/26/05)
> Defendant was convicted in the district court of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) based upon a prior felony conviction from Japan. Defendant challenged his § 922(g) prosecution upon the grounds that his prior foreign conviction fell outside the scope of § 922(g).
* Holding: The Court held that a foreign conviction could not qualify as a prior felony for purposes of § 922(g). The Court reasoned that laws are presumed to have only domestic application, and that foreign convictions do not necessarily carry the same element of fairness as domestic convictions. Thus, defendant’s § 922(g) conviction was reversed.
•18 USC § 922(g)(9)-Prior Domestic Violence
U.S. v. Hayes, 07-608 (2/24/09)
> Defendant was charged with possession of a firearm after being convicted for misdemeanor domestic violence. The prior misdemeanor conviction was for battery under West Virginia law. The battery offense did not contain an element requiring proof of a domestic relationship, however, the state indictment indicated that the victim was defendant’s spouse. Defendant moved to dismiss the indictment on the ground that the prior conviction was not for domestic violence. The district court denied the motion and defendant entered a conditional plea. The Fourth Circuit affirmed and the Supreme Court granted certiorari.
* Holding: The Court held that § 922(g)(9) does not mandate that a defendant’s prior misdemeanor conviction contain an element requiring proof of a domestic relationship. The Court ruled that a defendant may be convicted under § 922(g)(9) if the government can prove the existence of the domestic relationship beyond a reasonable doubt during trial in the district court. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 924(c) - Firearm Enhancement
Watson v. U.S., 06-571 (12/10/07)
> Defendant traded drugs for a firearm and was arrested. The government charged defendant with using a firearm in relation to drug trafficking under § 924(c). Defendant pled guilty to the offense, but reserved the right to appeal the question of whether bartering drugs for a gun amounted to “use” under § 924(c). The Fifth Circuit affirmed defendant’s conviction and defendant appealed to the Supreme Court.
*Holding: Pursuant to the Court’s earlier holding in Smith v. U.S., a defendant who trades a firearm for drugs “uses” the firearm within the meaning of § 924(c). In the present case, the Court ruled that the converse is not true. Thus, the Court held that a defendant does not “use” a firearm, under § 924(c), where the defendant trades drugs for a firearm. The Court noted that defendant was charged for “using” the firearm “in relation” to drug trafficking, not for “possession” of the firearm “in furtherance” of drug trafficking. The Court specifically reserved ruling on whether trading drugs for a gun would qualify as “possession” under the statute. Accordingly, defendant’s conviction was reversed.
• 18 USC § 924(c) - Firearm Enhancement
Dean v. U.S., 08-5274 (4/29/09)
> Defendant was charged with bank robbery and discharging a firearm during the bank robbery. It was not disputed that the firearm was accidentally discharged during the course of the robbery. The district court sentenced defendant to the mandatory consecutive 10 year sentence under § 924(c) for discharging the firearm. The Eleventh Circuit affirmed. Defendant appealed to the Supreme Court and argued that the 10 year consecutive sentence for discharging a firearm applies only to an intentional discharge.
* Holding: The Court held that the discharge component of § 924(c) does not require proof of intent. The Court relied on the plain reading of the statute, and noted that the language provides that the 10- year consecutive sentence applies “if a firearm is discharged.” The Court contrasted this language with the “brandishing” provision of § 924(c) which, the Court held, requires proof of intent to brandish the firearm for the purpose of intimidation. Accordingly, the Court affirmed defendant’s sentence.
• 18 U.S.C § 924(e) - ACCA
Shepard v. U.S., 03-9168 (3/7/05)
> Defendant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At sentencing, the court concluded that three prior burglaries on his record qualified as violent offenses and sentenced him under the mandatory 15 year to life provision of § 922(g) (ACCA). Defendant challenged the sentencing enhancement upon the grounds that the district court had improperly considered underlying police reports to discern whether the prior burglary convictions actually qualified as violent offenses.
* Holding: A plurality of the Supreme Court held that application of the ACCA to defendant was improper. Relying on Taylor v. U.S., four Justices ruled that, in determining whether a prior offense based upon a guilty plea was “violent” under the ACCA, courts may only consider the statutory definition of the crime, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented. The district court may not consider a police report or other evidence in determining whether a prior offense qualifies as “violent” under the ACCA. Justice Thomas concurred in the result, and held that the ACCA could not be applied to the defendant at all because the defendant was not charged with the ACCA provision in the indictment.
• 18 USC § 924(e) - ACCA
James v. U.S., 05-9264 (4/18/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he was an armed career criminal under § 924(e) (ACCA). One of the predicate offenses for the ACCA enhancement was an attempted burglary conviction from Florida. On appeal, defendant argued that the attempted burglary conviction was not a violent felony for ACCA purposes. The circuit court rejected defendant’s argument and the Supreme Court granted certiorari.
* Holding: The Court held that an attempted burglary under Florida law qualified as an offense that “creates a serious potential risk of physical injury to another” under the ACCA. Under Florida law, as interpreted by the Florida Supreme Court, attempted burglary required proof of an overt act directed toward the entering or remaining in a structure. Based upon this requirement, the Court ruled that attempted burglary was, categorically, an offense that created a serious potential risk of physical injury because of the likelihood of encountering an innocent person or police officer during its commission. Accordingly, the district court ruling was affirmed.
• 18 USC § 924(e) - ACCA
Logan v. U.S., 06-6911 (12/4/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he qualified for the armed career criminal enhancement. The predicate convictions for the enhancement were three misdemeanor battery convictions from Wisconsin. Although the prior offenses were misdemeanors under state law, they carried a possible punishment of up to three years in prison. Because the misdemeanor offenses did not require a revocation of defendant’s civil rights, he argued that the convictions fell within § 921(a)(20)’s “civil rights restored” exemption from the ACCA. The district court disagreed, defendant lost his appeal in the Seventh Circuit, and the Supreme Court granted certiorari.
* Holding: Pursuant to § 921(a)(20), the ACCA enhancement does not apply if a prior conviction was expunged or set aside, or if the offender “has been pardoned or has had civil rights restored.” The Court held that this provision does not apply to a defendant who, as a result of the convictions in question, never lost his state civil rights in the first place. Instead, by its very terms, the exemption works only in favor of defendants who have lost their civil rights, and had them restored by subsequent state action. Accordingly, defendant’s sentence was affirmed.
• 18 USC § 924(e) - ACCA
Begay v. U.S., 06-11543 (4/16/08)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that defendant was an armed career criminal based upon three prior New Mexico convictions for felony DUI. Defendant argued on appeal that felony DUI did not constitute a “violent felony” under the ACCA, but the Tenth Circuit affirmed. The Supreme Court granted certiorari.
* Holding: The phrase “violent felony” is defined under the ACCA as a crime punishable by more than one year in prison that (1) includes the use, or attempted or threatened use, of force, or (2) is “burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Court held that the articulation of the enumerated offenses in the statute indicated that Congress intended for the “otherwise” clause to apply only to those offenses that are “similar, in kind as well as in degree of risk posed,” to the enumerated offenses. Thus, the “otherwise” clause is intended to apply only to offenses that are “violent and aggressive crimes committed intentionally,” such as those enumerated in the statute. Accordingly, the Court ruled that felony DUI, a form of strict liability offense, was not the kind of offense that should be considered a violent felony for ACCA purposes. Defendant’s sentence was accordingly vacated.
• 18 USC § 924(e) - ACCA
U.S. v. Rodriquez, 06-1646 (5/19/08)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that the armed career criminal enhancement was applicable. The enhancement was based, in part, on a prior Washington drug trafficking conviction. In Washington, the drug trafficking conviction carried a maximum penalty of five years for a first offense, but the statutory maximum increased to ten years if the defendant had a prior drug trafficking offense on his record. Because defendant had previously been convicted of drug trafficking, his maximum statutory penalty for the Washington drug trafficking conviction was ten years. Accordingly, the district court determined that the offense was a “serious drug offense” under the ACCA and sentenced defendant as an armed career criminal. Defendant appealed and the Ninth Circuit reversed. The government appealed to the Supreme Court.
* Holding: Under the ACCA, a prior drug offense may be considered a “serious drug offense” if it was punishable by ten years or more in prison. The Court held that, in determining whether a prior offense is punishable by more than ten years in prison, a court may consider recidivist provisions. Thus, the Court found that the district court properly concluded that defendant’s prior Washington drug trafficking conviction was punishable by ten years or more in prison, and the ACCA enhancement was affirmed.
• 18 USC § 924(e) - ACCA
Chambers v. U.S., No. 06-11206 (1/13/09)
> Defendant was convicted of being a felon in possession of a firearm and the district court determined at sentencing that the 15 year mandatory minimum term under the ACCA was applicable. This determination was based, in part, on the court’s conclusion that defendant’s prior Illinois conviction for escape constituted a violent felony. The court of appeals agreed with the district court, and defendant argued in the Supreme Court that the escape conviction was not a violent felony because his prior conviction was only for failure to report for a sentence.
* Holding: The Court held that failure to report for a sentence was not a violent felony under the ACCA. Specifically, the Court found that the offense of failure to report was a “crime of inaction,” which was “a far cry from the purposeful, violent, and aggressive conduct” constituting a violent felony under the ACCA. Accordingly, the district court’s ruling was reversed.
• 18 USC § 1028A(a)(1) - Agg. I.D. Theft
Flores-Figueroa v. U.S., 08-108 (5/4/09)
> Defendant proceeded to bench trial on an aggravated identity theft charge, and argued to the district court that the government was required to prove that he knew that the false identity he used was actually the identity of another person. The district court disagreed and found defendant guilty. The Eighth Circuit affirmed. The Supreme Court granted certiorari.
* Holding: Section 1028A(a)(1) makes it a crime if an offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The Court held that the government must prove that the defendant knew that the identity used actually belonged to another individual. The Court relied primarily on a plain reading of the statute in ruling that the word “knowingly” clearly modified not only the transitive verbs in the sentence, but also the object of such verbs, i.e., identity of another. Accordingly, defendant’s conviction was reversed.
• 18 U.S.C. § 1343 - Wire Fraud
Pasquantino v. U.S., 03-725 (4/26/05)
>Defendant was convicted of wire fraud for using the wires to arrange the smuggling of liquor from the U.S. into Canada without paying Canada’s excise taxes. Defendant challenged his conviction primarily upon two grounds: (1) Canada’s right to collect the taxes was not “property” under the wire fraud statute; and (2) enforcement of the wire fraud statute in regard to Canada’s collection of taxes violated the common-law revenue rule.
* Holding: The Court first held that the right to tax revenue was “property” in Canada’s hands. Second, the Court ruled that the common-law revenue rule did not bar the prosecution. The common-law revenue rule barred the U.S. courts from executing the penal laws of another country. In this case, the Court held that such a rule was inapplicable because the U.S. court was not enforcing a Canadian law, but instead enforcing the U.S. wire fraud statute based upon conduct that happened in the U.S. The Court found the link between the U.S. prosecution and the Canadian tax collection to be incidental. Accordingly, the conviction was affirmed.
• 18 U.S.C. § 1512(b) - Corrupt Persuasion
Arthur Andersen v. U.S., 04-368 (5/31/05)
> Defendant was the accounting firm handling Enron during its collapse. With a federal investigation looming, defendant destroyed numerous documents pertaining to Enron pursuant to its “document retention policies.” The government charged defendant with corruptly persuading its employees to shred documents in violation of § 1512(b). Defendant was convicted, the conviction was affirmed by the Fifth Circuit, and the Supreme Court granted certiorari.
* Holding: The Court held that § 1512(b) requires that the government prove that the defendant “knowingly corruptly persuaded” its employees to shred documents. The “knowingly corruptly” portion requires proof that a defendant knows that her actions are wrongful or illegal. Because the jury instructions failed to inform the jury of the “knowledge of wrongdoing” component, the conviction was reversed. Further, the Court held that § 1512(b) requires that the jury find a specific nexus between the persuasion and some “official proceeding.” The court ruled that the district court failed to instruct the jury on this element. Accordingly, the case was reversed and remanded for retrial.
• 18 U.S.C. § 1951(a) - Hobbs Act
Scheidler v. N.O.W., 04-1244 (2/28/06)
> NOW sued certain anti-abortion groups for violations of RICO. The lawsuit focused on certain activities of the groups, often violent in nature, that were aimed at preventing doctors from performing, and women from obtaining, abortions. Several of the predicate acts for the RICO violations were based upon the Hobbs Act, § 1951(a). Specifically, NOW claimed that the groups had committed violent conduct
for the purpose of affecting interstate commerce. The suit proceeded to trial and a verdict was obtained for NOW. The anti-abortion groups argued on appeal that the Hobbs Act only covers violent conduct committed for the purpose affecting interstate commerce through robbery or extortion, neither of which was proven in the case. The Supreme Court granted certiorari.
* Holding: The Hobbs Act makes it a crime if an individual “obstructs, delays, or affects commerce” by “robbery,” “extortion,” or “commit[ting] or threaten[ing] physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section.” In construing the meaning of the “in furtherance of’ clause, the Court held that committing or threatening physical violence could only violate the Hobbs Act if it was done for the purpose of robbery or extortion. Thus, it was insufficient if physical violence merely affected interstate commerce but did not have as its purpose robbery or extortion. Accordingly, because there was no proof at trial that the anti-abortion groups committed violent conduct for the purpose of robbery or extortion, no Hobbs Act violation was proven.
• 18 USC § 1956(a)(1) - Money Laundering
U.S. v. Santos, 06-1005 (6/2/08)
> Defendant was charged with conspiracy, running an illegal gambling operation, and money laundering. The alleged money laundering involved the payment by defendant of commissions to runners, salaries to collectors, and winnings to the betters. Defendant was convicted at trial in the district court and lost his appeal. Defendant then filed a habeas petition challenging his money laundering conviction based upon a Seventh Circuit decision which held that the term “proceeds” in the money laundering statute refers only to “profits” of criminal activity, not gross “receipts.” The district court granted the petition, the Seventh Circuit affirmed, and the government appealed to the Supreme Court.
* Holding: The money laundering statute, § 1956(a)(1), prohibits numerous financial activities that involve “proceeds” of illegal activities. The Court found that the term “proceeds” is not defined in the statute. Further, the Court concluded that the dictionary does not provide a clear definition of the term “proceeds” in relation to “receipts” versus “profits.” Accordingly, relying on the rule of lenity, a plurality of the Court held that, where there is no legislative history to the contrary, the term “proceeds” in the money laundering statute refers to “profits” of a crime, not gross “receipts.” Thus, defendant’s payments of commissions, salaries, and winnings were not transactions involving “proceeds” of criminal activities. Thus, the district court’s opinion was affirmed and defendant’s money laundering conviction was vacated.
•18 USC§1956(a)(2)(B)(i)-Money Laundering
Cuellar v. U.S., 06-1456 (6/2/08)
> Defendant was stopped by officers near the Mexican border with a large sum of cash hidden in a compartment in the car he was driving. The government learned that the money was proceeds of drug activity in the U.S., and charged defendant with attempting to transport illicit proceeds across the Mexican border “knowing that such transportation was designed in whole or in part to conceal and disguise the nature, location, source, ownership, or control” of the funds. Defendant was convicted after trial and he argued on appeal that the evidence was insufficient to establish that the purpose of the transportation was to conceal a listed attribute of the money. A Fifth Circuit panel reversed defendant’s conviction, but the en banc court affirmed the conviction. The Supreme Court granted certiorari.
* Holding: The Court held that the elements of a violation of § 1956(a)(2)(B)(i) are as follows: (1) the defendant attempted to transport funds across the border; (2) the defendant knew the funds were proceeds of an illegal activity; and (3) the defendant knew that such transportation was designed to “conceal or disguise the nature, the location, the source, the ownership, or the control” of the funds. The Court ruled that the third element requires that the government prove more than the fact that the funds were concealed during transportation over the border. Instead, the government must show that the concealment of a listed attribute of the funds was the purpose of the transportation. In this regard, the Court found the government’s evidence entirely lacking, and defendant’s conviction was reversed.
• 18 USC § 1962 - RICO - Enterprise
Boyle v. U.S., 07-1309 (6/8/09)
> Defendant was charged with conspiracy, a substantive RICO violation, and various other offenses. Defendant argued at trial that the government was required to prove that the enterprise had “an ascertainable structure beyond that inherent in the pattern of racketeering activity.” The district court disagreed, and instructed the jury that it could find the existence of an enterprise based on “an association of individuals, without structural hierarchy, formed solely for the purpose of carrying out a pattern of racketeering acts.” Defendant was convicted and he appealed.
* Holding: The Court held that, in order to prove an “association in fact enterprise” engaged in racketeering activity, the government need not prove additional structural attributes beyond that inherent in the pattern of racketeering. Thus, the government need only show that the enterprise has a purpose, relationships among those associated, and longevity sufficient to allow the associates to pursue the purpose. Further, the Court ruled that a district court has “considerable discretion in choosing the language of an instruction so long as the substance of the relevant point is adequately expressed.” The Court found that the jury instructions provided by the district court were clear and appropriate. Accordingly, defendant’s conviction was affirmed.
• 21 U.S.C.§841 - Controlled Substances Act
Gonzales v. Centro Espiraita,04-1084 (2/21/06)
> An Amazon Rainforest religious sect operating a church in the U.S. was caught by the government importing a Schedule 1 Controlled Substance into the U.S. for its religious practices. The church sued the government and requested an injunction against enforcement of the Controlled Substances Act (CSA) against them based upon the Religious Freedom Restoration Act (RFRA). The district court granted the injunction and the Tenth Circuit affirmed. On appeal to the Supreme Court, the government argued that the CSA permitted no exceptions in reference to Schedule 1 substances, and accordingly, the Court should not enforce the RFRA. The Supreme Court granted certiorari.
* Holding: Under the RFRA, the government may not substantially burden a person’s exercise of religion unless the government proves that the burden on religion is the least restrictive means of advancing a compelling government interest. The Court held that the government’s general assertions that enforcement of the CSA would be unduly hindered by the injunction amounted to nothing more than “the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” Accordingly, the Court found that the government had articulated no sufficiently compelling interest, at least in the preliminary stages of the case, to justify reversal of the injunction. Accordingly, the district court ruling was affirmed.
• 21 USC§841(a)-Prior Felony Drug Offense
Burgess v. U.S., 06-11429 (4/16/08)
> Defendant was charged with conspiracy to possess 50 grams or more of cocaine with intent to distribute. The government enhanced defendant’s sentence from a mandatory minimum 10 years to a mandatory 20 years based on the fact that defendant had a prior “felony” drug offense from South Carolina. Defendant argued that the enhancement was inapplicable because, although the South Carolina drug offense was punishable by up to two years incarceration, the state classified it as a misdemeanor. The district court agreed with the government, defendant appealed, and the Fourth Circuit affirmed. Defendant appealed to the Supreme Court.
* Holding: The Court held that the phrase “felony drug offense,” as used in 21 USC § 841(a)(1)(A), is defined in 21 USC § 802(44). This section defines a “felony drug offense” as a drug offense that “is punishable by imprisonment for more than one year under any law of the United States or of a State.” Based upon this definition, the Court concluded that an offense is a “felony drug offense” if it is punishable under state law by more than a year in prison, even if the state does not classify the offense as a felony. The Court ruled that its holding was not affected by § 802(13) which defines the term “felony” to mean an offense classified by federal or state law as a felony. Accordingly, defendant’s prior state misdemeanor drug conviction, that was punishable by up to two years in prison, was properly considered a “felony drug offense.” Thus, the district court’s application of the enhancement was affirmed.
• 21 USC § 843(b) - Use of Phone for Drugs
Abuelhawa v. U.S., 08-192 (3/4/09)
> Defendant called a drug dealer on multiple occasions to arrange the purchase of drugs for personal use. The government charged defendant with six counts under § 843 for using the phone to “facilitate” the drug dealer’s extensive drug trafficking activities. Defendant proceeded to trial, and argued on his motion for acquittal that he was only guilty of misdemeanor purchases of drugs for personal use. The district court disagreed, defendant was convicted, and the Fourth Circuit affirmed. Defendant appealed to the Supreme Court.
* Holding: The Court held that the term “facilitate” in § 843 could not be construed so broadly as to include defendant’s arrangement by phone to buy drugs for personal use. The Court emphasized the traditional law that “where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action of the other would upend the calibration of punishment set by the legislature.” Accordingly, defendant’s conviction was reversed.
• 26 USC § 7201 - Tax Evasion
Boulware v. U.S., 06-1509 (3/3/08)
> Defendant was charged with tax evasion for diverting millions of dollars from a closely held corporation, for which he was the president and controlling shareholder. Defendant claimed at trial that the diverted funds were distributions of property that were returns of capital to him, up to his basis in his stock, and thus were non-taxable. Relying on Ninth Circuit precedent, the district court granted the government’s motion in limine to exclude defendant’s return-of-capital evidence because defendant could not show any proof that the corporation intended the funds to be return of capital. Upon defendant’s conviction he appealed, and the Ninth Circuit affirmed. The Supreme Court granted certiorari.
* Holding: The elements of tax evasion under § 7201 are willfulness, the existence of a tax deficiency, and an affirmative act constituting evasion. The question of whether a tax deficiency exists turns on whether the payment of funds was a “dividend” or a “distribution of capital.” If the payment is a “distribution of capital,” then the payment is non-taxable to the shareholder up to his or her basis in the stock. In the case, the Court held that the determination of whether a payment is a “distribution of capital” turns not on the intent or purpose of the corporation, but instead on the economic substance of the transaction, a question that involves whether the corporation had “earnings and profits” to distribute. Accordingly, the court ruled that the Ninth Circuit’s holding, which required a defendant to show corporate intent in order to present a return-of-capital defense, was erroneous, and defendant’s conviction was vacated.
Sixth Circuit Decisions
• 8 USC § 1101 - Aggravated Felony
Rashid v. Mukasey, 06-4270 (6/26/08)
> Defendant was a legal permanent resident who was convicted of a misdemeanor marijuana offense. Five years later, he was convicted of another misdemeanor marijuana offense. As a result, the government initiated removal proceedings. The immigration court determined that defendant was an aggravated felon as a result of his two prior misdemeanor drug offenses and ordered his removal. Defendant appealed.
* Holding: Pursuant to the Supreme Court’s decision in Lopez (See PV, Issue 11), a second state misdemeanor drug offense may be considered an “aggravated felony” if the offense could hypothetically be punished under federal law as a felony. In the case, the court noted that 21 USC § 844 makes the simple possession of marijuana a felony if the government proves that defendant has a prior drug conviction that has become final. The court ruled, however, that defendant’s second misdemeanor conviction could not be considered an “aggravated felony” at the time of the deportation proceedings because the second misdemeanor conviction did not require proof of the existence of the first misdemeanor conviction as an element of the offense. Accordingly, the second misdemeanor conviction was not an “aggravated felony” and the immigration court’s ruling was reversed.
• 8 USC § 1101(a)(43) - Aggravated Felony
Nwagbo v. Holder, 07-3723 (7/9/09)
> Defendant was convicted of conspiracy to possess counterfeited obligations under 18 USC §§ 371 and 472. Defendant was subsequently ordered deported by the immigration court based on the court’s conclusion that the conviction was an aggravated felony. On appeal, defendant argued that the counterfeiting conviction was not an aggravated felony because he was not convicted of passing counterfeit bills.
* Holding: Pursuant to § 1101(a)(43), an offense is an aggravated felony if it is “an offense relating to counterfeiting.” The court held that the language of § 1101(a)(43), by use of the phrase “relating to,” covers “a range of activities beyond those of coutnerfeiting or forgery itself.” Accordingly, the court ruled that defendant’s conviction was an aggravated felony and the immigration court’s ruling was affirmed.
• 8 USC § 1101 - Aggravated Felony
Shaya v. Holder, 08-4619 (11/9/09)
> Shaya was a permanent resident alien who was convicted of a Michigan felony offense for assault with intent to do great bodily harm. Shaya was sentenced to an indefinite term of imprisonment of 9 months to 10 years. As a result, immigration authorities moved to deport him from the country based upon the determination that the Michigan assault offense was a “crime of violence” that constituted an aggravated felony under § 1101(a)(43)(F). The immigration court agreed with the INS interpretation and Shaya appealed.
* Holding: A “crime of violence” may qualify as an aggravated felony under § 1101(a)(43)(F) if “the term of imprisonment is at least one year.” The court first held that the provision requires courts to interpret state law in order to assess what the state deems the “term of imprisonment” to be when an indefinite term has been imposed. Second, the court found that, pursuant to Michigan law, the “term of imprisonment” for a defendant ordered to serve an indefinite term is either the minimum term imposed, or the time actually served in prison, whichever is greater. The court reached this conclusion because of the “peculiar” feature of Michigan law that required sentencing courts to impose the maximum statutory sentence as the top end of the indefinite term. Thus, the court remanded the case to the immigration court for a determination in the first instance as to the amount of time Shaya actually served on the assault charge.
• 8 U.S.C. § 1324(a) - Transporting Aliens
U.S. v. Stonefish, 03-2538 (3/30/05)
> Defendant was observed late at night by INS agents pulling into a parking lot at the Canadian border on multiple occasions and flashing his headlights. Later, the agents observed Chinese nationals get off of a boat, and wait in the shadows until defendant again returned and picked them up in his car. Defendant then took a “circuitous “ route to the freeway, where he was stopped by the agents. Defendant was indicted for transporting illegal aliens, and was convicted after trial. Defendant’s defense at trial, and later on appeal, was that he did not know the passengers were illegal, but that he was just being a humanitarian.
* Holding: In discerning a defendant’s intent in transporting aliens, courts may consider whether the defendant was compensated, what efforts defendant took to conceal or harbor the aliens, and whether the aliens were friends, co-workers or companions, or merely human cargo. Under the circumstances, the court held that there was sufficient evidence to infer that defendant knew the aliens were illegal, and affirmed the jury’s verdict.
• 8 U.S.C. § 1326 - Illegal Reentry
U.S. v. Palacios-Suarez, 04-4187 (7/22/05)
> Defendant was convicted of illegal reentry after deportation, and at sentencing the district court determined that defendant had two prior convictions on his record that qualified as aggravated felonies under § 1326, thus increasing defendant’s statutory maximum from 10 to 20 years. The two prior convictions were state felony drug possession offenses that would not have been felonies under federal law. On appeal, defendant argued that the prior drug possession offenses should not qualify as aggravated felonies.
* Holding: The court held that a prior state conviction for felony drug possession only qualifies as an “aggravated felony” under § 1326(b)(2) (and U.S.S.G. § 2L1.2(b)(1)(C)) if the prior offense could have been charged as a felony under the federal Controlled Substances Act (CSA). Because defendant’s prior state offenses would not have been felonies under the CSA, and because they did not involve drug trafficking, the court ruled that the offenses did not qualify as aggravated felonies, and the case was remanded for resentencing.
• 8 USC § 1326(b)(2) - Illegal Reentry
U.S. v. Zuniga-Guerrera, 05-6457 (8/23/06)
> In 1995, Defendant committed a drug conspiracy offense, and in September of 1996 he pled guilty to using a telephone to facilitate the offense. In April of 1996, between the commission of the offense and defendant’s guilty plea, the law on deportation of aliens changed with the passage of the AEDPA such that aliens were no longer eligible for discretionary waiver of deportation if they had been convicted of an aggravated felony. As a result, defendant was subsequently deported, but he returned to the U.S. in 2004. He was then arrested and convicted of illegal reentry under § 1326. On appeal, defendant claimed that the AEDPA should not have been applied retroactively to permit his prior deportation and that the use of a telephone to commit a drug offense should not qualify as an aggravated felony.
* Holding: In INS v. St. Cyr, the Supreme Court held that it was improper to apply a law (in that case the IIRIRA) that diminished a defendant’s rights to contest deportation based upon a conviction, where the defendant had already pled guilty to the offense before passage of the law. In this case, the court refused to extend the St. Cyr holding where defendant did not enter his plea of guilty to the offense until after the new deportation law (the AEDPA) had gone into force. Thus, the AEDPA was properly applied to defendant’s prior deportation.
Further, the court held that use of a telephone to commit a drug offense does qualify as an aggravated felony under the AEDPA. Accordingly, defendant’s sentence for illegal entry was affirmed.
• 15 USC § 78/18 USC § 371-Insider Trading
U.S. v. Hughes, 06-3024 (10/26/07)
> Defendants were a husband and wife who received an insider tip about the buyout of a small company. Shortly before the buyout occurred, defendants purchased a large amount of stock in the company, and then sold it at a substantial profit immediately after the buyout. Defendants were charged, among other offenses, with insider trading under 15 USC § 78 and conspiracy under 18 USC § 371. At trial, defendants and the tipster all testified that no insider information was shared with defendants. The government introduced circumstantial evidence which showed that defendants met with the tipster prior to the buyout, and that they bought and sold large amounts of stock surrounding the buyout. Defendants were convicted and appealed, challenging the sufficiency of the evidence.
* Holding: In order to prove conspiracy, the government must show (1) the existence of an agreement to violate the law, (2) knowledge and intent; and (3) an overt act. To prove insider trading, the government must prove (1) a scheme to defraud in connection with the purchase or sale of stock, (2) intent to defraud, and (3) use of a means of interstate commerce in connection with the purchase or sale. Additionally, in regard to defendants who are tippees, the government must show that they (1) received material, confidential information (2) knowledge that the tipster violated a fiduciary duty, and (3) knowing and wilful purchase of stock based on the information. In the case, the court found that the circumstantial evidence was sufficient to show that defendants participated in the conspiracy and that they committed insider trading. Accordingly, the conviction was affirmed.
• 18 USC § 2 - Aiding and Abetting
U.S. v. McGee, 06-2158 (6/24/08)
> Defendant was charged with one count of possession of crack with intent to distribute. The indictment did not allege or make reference to aiding and abetting or § 2. Upon his conviction after trial, defendant argued on appeal that the government proved only aiding and abetting, but aiding and abetting was not alleged in the indictment.
* Holding: The court held that the theory of aiding and abetting is embodied in every federal indictment, and that it need not be specifically charged or referenced. Accordingly, defendant conviction was affirmed.
• 18 USC § 111 - Simple Assault
U.S. v. Gagnon, 07-2133 (1/29/09)
> Defendant, in a drunken state, resisted and interfered with immigration officers who were trying to settle him down. As a result, defendant was charged with a misdemeanor violation of § 111 for simple assault. Defendant was convicted in a bench trial before the magistrate, who determined that defendant had forcibly resisted, impeded, or interfered with the officers. Defendant argued on appeal that a misdemeanor conviction under § 111 requires proof that a common law assault was committed.
* Holding: First, the court held that § 111 describes three separate offenses: (1) “simple assault,” (misdemeanor); (2) violations that include a dangerous weapon or result in bodily injury (aggravated felony); and (3) all other cases (felony). In regard to the simple assault misdemeanor offense, the court rejected defendant’s argument that the phrase “simple assault” meant only common law assault. Instead, the court held that, because the statute enumerated other types of conduct, i.e., resisting, opposing, impeding, intimidating, or interfering, this additional conduct was also included within the misdemeanor offense of “simple assault.” Accordingly, defendant’s conviction for simple assault was affirmed.
• 18 USC § 115 - Assault Federal Officer
U.S. v. Evans, 07-2565 (9/22/09)
> After a minor altercation at the Social Security office, two Federal Protective Service (FPS) officers followed defendant’s car for a brief period. Defendant then got behind and tailgated the officers while making gestures suggesting that she had a gun. As a result, the FPS officers executed a traffic stop, and called for local police backup. It was subsequently determined that defendant had an open warrant, so the FPS officers arrested her. During defendant’s transport, she verbally threatened the officers. Defendant was subsequently charged with threatening to assault a federal law enforcement officer and she was convicted at trial. Defendant appealed.
* Holding: The court held that defendant’s actions of tailgating the officers while making gestures that suggested she had a gun were sufficient, in and of themselves, to support defendant’s conviction for threatening to assault a federal law enforcement officer. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 241 - Conspiracy - Civil Rights
U.S. v. Conaster, 06-5694 (2/4/08)
> Defendant was a jail guard who was charged with conspiracy to violate the rights of detainess and prisoners of the county jail. At trial, the government proved defendant’s involvement largely through the testimony of three cooperating defendants. Upon his conviction, defendant appealed and challenged the sufficiency of the evidence that he participated in the conspiracy.
* Holding: In order to establish a conspiracy, no proof of a formal agreement is required; a “tacit or mutual understanding” is all that is necessary. The court found ample evidence that defendant participated in the conspiracy. The codefendants testified that defendant was present during inmate beatings, falsified incident reports, and participated in conversations with others about inmate beatings. Defendant’s argument that the cooperating-defendant testimony was not believable was not a proper challenge to the sufficiency of the evidence, but instead an attack on the credibility of the witnesses. Further, the court held that defendant’s acquittal on substantive counts did not require reversal of his conviction for conspiracy. In a § 241 conspiracy case, the government need not prove that defendant himself committed any of the overt acts, only that some member of the conspiracy committed the overt acts. Thus, defendant’s conviction was affirmed.
• 18 USC § 242 - Excessive Force
U.S. v. Budd, 05-4098 (8/13/07)
> Defendant was a county sheriff who was charged with multiple counts of using excessive force against pretrial detainees and sentenced inmates in violation of the prisoners’ Fourteenth and Eighth Amendments rights. After being convicted at trial, defendant appealed and argued that the evidence was insufficient to sustain the verdicts.
* Holding: In order to sustain a conviction for a § 242 violation, the government must show excessive force against a prisoner that amounts to punishment, in violation of the Fourteenth Amendment for pretrial detainees, or in violation of the Eighth Amendment in regard to sentenced inmates. In the absence of an “expressed intent to punish,” the issue of defendant’s guilt turns on whether the practice is “reasonably related to a legitimate government objective.” Further, a prisoner’s injuries must be more than de minimis in order to support a constitutional violation. In regard to the two counts at issue, the court found that credible evidence supported the facts that defendant had slammed a prisoner’s head into doors, a table, and a wall. Further, defendant slammed a prisoner into a steel window frame and stood on his back. Both inmates suffered scratching and bruising. The court found these circumstances sufficient to support the jury verdicts, and accordingly defendant’s convictions were affirmed.
• 18 USC § 286-Conspiracy to Defraud U.S.
U.S. v. Dedman, 06-6124 (5/29/08)
> Defendant was charged with conspiracy to defraud the government for arranging a sham marriage between her adoptive father and her adopted daughter in order to obtain her adoptive father’s military pension benefits. The marriage occurred in Arkansas and it turned out that Arkansas law prohibited a marriage between a grandfather and his adopted granddaughter. Defendant was convicted after jury trial and she appealed the sufficiency of the evidence.
* Holding: Deciding an open question in the Sixth Circuit, the court held that the elements of a § 286 conspiracy are as follows: (1) defendant entered a conspiracy regarding a claim against the U.S.; (2) the claim was false; (3) defendant knew or was deliberately ignorant of the claim’s falsity; (4) defendant knew of the conspiracy and intended to join it; and (5) the defendant voluntarily participated in the conspiracy. In the case, the only element seriously at issue was whether defendant knew that the marriage was unlawful. Although the court found that the evidence was close regarding knowledge, the court concluded that the facts established that defendant was at least deliberately ignorant that the marriage was illegal. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 371 - Conspiracy
U.S. v. Blackwell, 05-4588 (8/29/06)
> Defendant was charged with one count of conspiracy to commit insider trading and one count of conspiracy to obstruct justice, both under § 371. Defendant was convicted on both counts and argued on appeal that the evidence was insufficient in both instances to show the existence of an agreement.
* Holding: To prove conspiracy, the government must show (1) the existence of an agreement to violate the law, (2) knowledge and intent to join the conspiracy, and (3) an overt act constituting actual participation in the conspiracy. Regarding the insider trading conspiracy, the court found sufficient evidence of an agreement because defendant had agreed with his wife to encourage others to buy stock in his company and gave, or loaned, money to such individuals to buy the stock. Regarding the obstruction conspiracy, the court ruled that sufficient evidence established that defendant and his wife agreed to lie to the SEC and to delete names from documents before turning them over. Accordingly, the convictions were affirmed.
• 18 USC § 371 - Conspiracy
U.S. v. Hunt, 06-6300 (4/11/08)
> Defendant was a doctor who was charged with conspiracy to commit health care fraud. For defendant’s part in the conspiracy, he misrepresented that he had seen patients and determined that carotid artery ultrasound testing was medically necessary. The codefendant would then perform the testing and bill the insurance company or medicare for the services. Defendant was convicted at trial and he appealed.
* Holding: In order to establish a conspiracy under § 371, the government must prove an agreement between two or more people to act together in committing an offense, and the commission of an overt act in furtherance of the offense. The agreement may be “a tacit or mutual understanding among the parties.” In the case, the court found that, although there was no formal agreement, sufficient evidence supported a tacit agreement between defendant and the codefendant to defraud medicare and private insurance. Defendant knew that the misrepresentations that he made were being used by the codefendant to submit for insurance benefits. Defendant often signed the orders for treatment after the tests had already been performed, and he was paid by the codefendant for each order he signed. Accordingly, defendant’s conviction was affirmed.
• 18 U.S.C. § 513(a) - Counterfeit Securities
U.S. v. Blood, 04-5101 (1/24/06)
> Defendants were convicted for possession of counterfeit securities with intent to deceive another, pursuant to § 513(a). The statute provides: “Whoever . . . possesses a counterfeited security of a State or political subdivision thereof or of an organization . . . with intent to deceive another person, organization, or government” shall be punished as stated. Defendants argued on appeal that, because the government had proven only that defendants intended to deceive the entities that purportedly issued the counterfeit securities, the government had not proven that defendants had intended to deceive “another.”
*Holding: Deciding an open question in the Sixth Circuit, the court held that the “intent to deceive another” element of § 513(a) includes the intent to deceive the purported issuer of the counterfeit securities. Thus, defendant’s possession of a counterfeit security from Union Bank, with the intent to deceive Union Bank, was sufficient for conviction. The court further held that proof of an “intent to deceive” requires only that the government prove that a defendant intended to mislead another into believing something that was not true. The court distinguished “intent to deceive” from “intent to defraud,” which requires proof of the intent to “deprive of some right, interest or property by deceit.” Accordingly, the court affirmed the conviction.
• 18 USC § 371 - Conspiracy to Defraud
U.S. v. White, 05-3403 (6/11/07)
> Defendant was charged in a conspiracy to defraud the government regarding medicare benefits. Upon his conviction, defendant appealed and argued that the evidence was insufficient to establish the existence of an agreement, that overt acts were committed, and that he intended to defraud the government.
* Holding: The elements of conspiracy to defraud the government are (1) an agreement to commit a crime against the U.S., (2) one or more overt acts in furtherance of the agreement, and (3) intent to commit the substantive offense. The agreement may be tacit, and it may be proven by circumstantial evidence. In the case, the court held that the conspirators’ conduct established at least a tacit agreement between defendant and others to defraud medicare. Further, the court ruled that defendant committed overt acts based upon his prominent managerial role in several of the companies involved. Finally, the court found that defendant’s specific intent to defraud was sufficiently established. Thus, the conviction was affirmed.
• 18 USC § 401 - Criminal Contempt
U.S. v. Moncier, 07-6053 (7/8/09)
> Defendant was an attorney representing a client in a drug case before the district court. During his client’s trial and sentencing proceedings, defendant was disrespectful toward, and critical of, the court. Additionally, at his client’s sentencing, defendant attempted to continue the hearing by claiming that he had a potential conflict of interest between his client and another client, but then later in the same hearing asserted that he had no conflict. When the district court attempted to question defendant’s client about the potential conflict, defendant repeatedly interjected in the conversation and attempted to thwart the court’s attempts to discuss the matter with the client. The district court instructed the government to file contempt charges against defendant under § 401, presided over the trial, and found defendant guilty of contempt. Defendant appealed and argued that the evidence was insufficient to support the verdict, and that the district judge should have referred the case to another judge for trial.
* Holding: The elements of a criminal contempt charge are (1) that the defendant engaged in misbehavior (2) which obstructed the administration of justice (3) in the presence of the court, and that (4) defendant acted intentionally. The court found that defendant indisputably misbehaved, obstructed justice, and that he did so intentionally. Further, the court found that defendant’s obstruction of the district court’s questioning of his client was not justified by defendant’s perceived desire to protect the Fifth Amendment rights of his client. The court emphasized that “lawyers are required to obey even incorrect orders; the remedy is on appeal.” Accordingly, the evidence was sufficient to support the verdict.
The court found, however, that the district judge improperly refused to refer the case to a different judge for trial. Fed. R. Crim. P. 42(a)(3) requires that a judge is disqualified from hearing a criminal contempt trial if the case involves “disrespect toward or criticism of a judge.” Accordingly, the case was remanded for a new trial before a different district judge.
• 18 USC § 545-Importation Contrary to Law
U.S. v. The, 06-2371 (7/31/08)
> Defendant was caught bringing counterfeit DVDs of movies in his luggage on a flight into the U.S. Defendant was charged with importing merchandise contrary to law, in violation of § 545. Defendant was convicted after a bench trial and argued on appeal that the evidence was insufficient to support the verdict.
* Holding: The elements of § 545 are that defendant (1) fraudulently or knowing (2) imported or brought into the U.S. (3) any merchandise, (4) contrary to law. In the case, the “contrary to law” element was an alleged violation of copyright law, namely 18 U.S.C. § 2318. A violation of § 2318 is established where anyone (1) knowingly (2) traffics (3) in a counterfeit label (4) affixed to or accompanying a copy of a motion picture (5) within the U.S. The court held that defendant’s knowledge was established by his conduct and his prior receipt of counterfeit DVDs, that his trafficking was established by his importation, and the counterfeit nature of the DVDs was confirmed by the testimony of a representative from the Motion Picture Association of America. Accordingly, the evidence was sufficient to support the verdict and the conviction was affirmed.
• 18 USC § 641 - Theft of Gov. Property
U.S. v. Hall, 07-5918 (12/10/08)
> Defendant had a sub-contract to provide information and engineering services to the government. Defendant received monthly advance payments from the government to cover defendant’s expenses in fulfilling the contract. Defendant was required to return any funds advanced that were not used toward expenses. The government required defendant to track expenses each month through an accounting program, subjected defendant to audits, and required that the advances be used only for reasonable expenses that were actually incurred. During several fiscal years, defendant conspired with others to submit false invoices for fictitious expenses, thus allowing defendant to fraudulently retain the unspent advances. Defendant was charged with theft of government property and argued at trial that the money was not the property of the government at the time he stole it. Defendant was convicted and he appealed.
* Holding: Where government money passes to private hands, the government must retain sufficient control over the funds in order for them to remain federal property. In the case, the court held that the funds retained their identity as government property based on the government’s requirements that (1) the unused advances be returned, (2) defendant maintain an accounting system and submit to audits, and (3) advances could be used only for reasonable expenses. Thus, defendant’s misappropriation of the funds constituted theft of government property and his conviction was affirmed.
• 18 USC § 666 - Theft by Official
U.S. v. Hynes, 05-2036 (11/7/06)
> Defendant was charged with stealing narcotics from the Detroit Police Department property room while he was employed as a police officer. A charge under § 666 requires proof that the property stolen has a value of more than $5,000. During the trial, the district court instructed the jury that it could consider the market value of the property stolen, even if it was illegal to sell. Defendant was convicted and argued on appeal that the district court should not have instructed the jury that it could consider the “thieves’ market” value of the drugs.
* Holding: Interpreting the term “value” consistently with the use of the term in other federal theft statutes, the court held that “value” in § 666 could mean the value in the “thieves’ market.” Accordingly, the conviction was affirmed.
• 18 USC § 666-Defraud Government Entity
U.S. v. Hudson, 05-2656 (6/26/07)
> Defendant entered into contracts with the school district, as an independent contractor, to help a school develop a television station. As a result of defendant’s activities during the course of his performance of the contract, he was charged with defrauding a government entity that received federal funding under § 666. At the close of the case, defendant moved for judgment of acquittal upon the grounds that the government had not established his agency relationship with the school as required by the statute. The district court denied the motion, defendant was convicted, and he appealed.
* Holding: The elements of a § 666 violation are as follows: (1) defendant must be an agent of the entity receiving the federal funding; (2) defendant must embezzle or steal property; (3) the property must be worth $5,000 or more; (4) the entity must own or control the property; and (5) the entity must receive more than $10,000 in federal funding. Regarding the agency element, the court held that the wording of the contract, i.e., independent contractor, is not necessarily dispositive of the entity question. Instead, the court must look to the substance of the relationship to determine if the accused is authorized to act on behalf of the agency. In the case, the court found that defendant was an agent of the school based upon his authority to enter purchase orders on behalf of the school, set up a television station at the school, train students and district employees, be the contact person for purchases of studio equipment, and negotiate prices for equipment. Further, defendant had an office at school, business cards, and a master key to the school and the district’s gym. Accordingly, under the circumstances the court ruled that defendant was properly considered an agent, and the court affirmed defendant’s conviction.
• 18 USC § 666 - Bribery of Public Official
U.S. v. Abbey, 07-2278 (4/3/09)
> Defendant was a city administrator charged with conspiracy to bribe a public official and corrupt solicitation of a bribe. The charge was based on the gifting of a piece of land by a developer in return for future favorable consideration in real estate developments. The developer subsequently received a favorable contract with the city to develop a piece of land. Defendant was convicted after trial and argued on appeal that the evidence was insufficient to support the verdict because there was no specific promise to perform an identifiable official act at the time the property was gifted to him. Further, defendant argued that the government was required to establish that defendant intended to receive property worth more than $5000.
* Holding: The court first held that § 666 requires only that the government prove that defendant accepted the gift with the corrupt intent to use his official influence in the developer’s favor. There is no requirement that a specific favor be identified at the time of the gift. Second, the court held that the mens rea element – corruptly intended – does not apply to the $5000 amount. Accordingly, defendant’s conviction was affirmed.
• 18 U.S.C. § 844(i) - Arson
Logan v. U.S., 04-5325 (1/19/06)
> Defendant was convicted of conspiracy and arson of a hotel. At sentencing the district court increased the statutory maximum to life under § 844(i) because four people died in the fire. The district court then sentenced defendant to life. Defendant did not challenge the judicial fact finding either in the trial court or on direct appeal. Defendant then filed a habeas petition arguing that the issue of whether death resulted should have been submitted to the jury and proven beyond a reasonable doubt. The district court found that defendant had procedurally defaulted the argument by not raising it during the trial or direct appeal. Defendant appealed.
* Holding: Relying on the Supreme Court’s decision in Jones v. U.S., the court held that the issue of whether death resulted from arson – thus triggering an increase in the maximum penalty to life – is an element of the offense and must be submitted to the jury at trial. The court ruled, however, that because defendant had failed to preserve the issue at trial or on direct appeal, the issue was waived. Accordingly, the court affirmed the district court’s ruling denying the petition.
• 18 USC § 844 - Arson
U.S. v. McAuliffe, 06-3016 (6/22/07)
> Defendant was convicted of using fire to commit another felony, namely mail fraud, under § 844(h)(1). Defendant argued on appeal that he had not “used” fire “to commit mail fraud” under the statutory meaning of the term “used.”
* Holding: The court held that the ordinary meaning of the word “use” is to “employ” or to avail oneself of something. Under the circumstances, defendant had clearly employed a fire in order to commit mail fraud in so much as he burned down his own house in order to falsely claim insurance proceeds. Accordingly, the conviction was affirmed.
• 18 USC § 844(i) - Arson
U.S. v. Rayborn, 05-6894 (7/26/07)
> Defendant was a pastor who was charged with arson for burning down his own church. The evidence at trial was entirely circumstantial. Two ATF experts testified that, based upon the existence of gasoline and diesel fuel pour patterns found on the floors of multiple rooms, they believed that the fire was intentionally set. Defendant’s experts did not dispel this conclusion. Further, defendant told the investigators that he was the only person in the church within the relevant time period, and that all of the doors were locked. Finally, evidence was adduced that the church was insured and defendant filed a claim on behalf of the church for $800,000. Defendant had access to and control over such funds. Defendant was convicted after jury trial and he appealed, challenging the sufficiency of the evidence.
* Holding: The court held that the government was required to prove that defendant maliciously damaged or destroyed the church and that the church was used in interstate commerce. The only element at issue was whether defendant caused fire. The court ruled that circumstantial evidence may be sufficient to support a jury verdict if the evidence is substantial and competent. The court found that the evidence was sufficient to support the verdict because an accelerant was used, defendant was the sole person with access to the church at the time, and he had motive to collect the insurance proceeds. Accordingly, the conviction was affirmed.
• 18 USC § 844(i) - Arson - Personal Injury
U.S. v. Gibney, 06-5909 (3/7/08)
> Defendant pled guilty to committing an arson that caused personal injury to a public safety officer, pursuant to § 844(i). At sentencing, defendant argued that no personal injury occurred because the phrase “personal injury” in the statute should be construed to require some serious or significant injury. The district court ruled against defendant and he appealed.
* Holding: The court first ruled that defendant waived the right to argue no personal injury through his guilty plea to the offense. (See infra, IX. Plea & Sentencing Hearings). Alternatively, the court held that § 844(i), under a plain reading of the statute, contained no requirement that a “personal injury” be serious or significant. Accordingly, defendant’s sentence was affirmed.
•18 USC § 921(a)(24)-Possession of Silencer
U.S. v. Carter, 04-4304 (10/17/06)
> Defendant was indicted for possession of an unregistered silencer. At trial, the government established that the device defendant possessed was intended to be used as a silencer, but did not show that it was operable. Defendant was convicted and appealed.
* Holding: The court held that, under § 921(a)(24), the government need not prove that a silencer is operable, only that the device is intended for the purpose of silencing a weapon. Thus, the conviction was affirmed.
• 18 U.S.C. § 922(g) - Felon in Possession
U.S. v. Hadley, 03-5838 (12/6/05)
> Police officers arrived at defendant’s home pursuant to a 911 call and defendant’s wife came out of the house yelling that defendant had threatened her with a gun. Based upon information from the wife, the officers eventually found a handgun in a dresser in defendant’s and his wife’s bedroom. While the case was pending, the government obtained a tape recording from the jail wherein defendant told his wife to claim that he didn’t have a gun. During the trial, the wife’s hearsay statements about defendant threatening her with the gun were admitted into evidence, and defendant was convicted. Defendant appealed.
* Holding: The court found that defendant had at least constructively possessed the firearm. Defendant challenged on appeal that his rights under the Confrontation Clause were violated when his wife’s hearsay statements were admitted, but a two-judge majority avoided the constitutional issue by concluding that, even without the wife’s statements, the jury had sufficient evidence to convict defendant of constructive possession. In order to prove constructive possession of a firearm, the government must show that the defendant has power and intention to exercise dominion and control over the gun, either directly or through others. In the case, based upon the location of the gun and the statements that defendant made to his wife on the phone from the jail, the court concluded that constructive possession of the firearm was proven. Thus, the conviction was affirmed.
• 18 U.S.C. § 922(g) - Felon in Possession
U.S. v. Coffee, 04-1758 (1/20/06)
> Firearms were found in a house that defendant rented, inside the pockets of shirts that bore defendant’s name. Although others had sporadic access to the house, defendant’s name was on the lease and some evidence was introduced to show that defendant lived at the house. Defendant was charged with being a felon in possession of a firearm and was convicted after trial. Defendant appealed.
* Holding: Constructive possession of a firearm may be proven by showing that a defendant has dominion over the premises where a firearm is located. The government need not remove every reasonable hypothesis except that of guilt. In the case, the court found that the evidence established that defendant exercised dominion over the residence and that the jury could reasonably have concluded that he constructively possessed the firearms based upon where they were found. Accordingly, the court affirmed the conviction.
• 18 U.S.C. § 922(g) - Felon in Possession
U.S. v. Newsom, 05-5030 (6/29/06)
> Defendant was pulled over by police for running a stop sign and he bent over as if putting something under the seat. The police found a gun under the seat, with bullets in plain view on the floor. Defendant made two separate statements suggesting that the gun was his. After his conviction, defendant challenged the sufficiency of the evidence on appeal.
* Holding: To prove constructive possession of a firearm, the government must show that the defendant had the power and the intention at a given time to exercise dominion and control over it, either directly or through others. In the case, the court found sufficient evidence, both from defendant’s actions and statements, to conclude that he had constructively possessed the gun. Accordingly, the conviction was affirmed.
• 18 USC § 922(g) - Felon in Possession
U.S. v. Coleman, 04-4393 (8/10/06)
> Defendant was charged with being a felon in possession of a firearm. The predicate felony was a state drug trafficking conviction for which a federal district court had granted a conditional writ of habeas corpus. The writ went into force in 90 days unless the state retried defendant within that time period. The state appealed the grant of the conditional writ and the district court accordingly stayed the issuance of the writ pending appeal. During this stay, defendant was arrested with a firearm and charged with being a felon in possession of a firearm. At the close of the trial, defendant made a Rule 29 motion requesting dismissal because the predicate felony was the subject of the writ. The district court denied the motion and defendant appealed.
* Holding: The court first held that the law is settled that the subsequent nullification of a predicate felony conviction does not invalidate an already entered conviction for being a felon in possession of a firearm. Second, the court ruled that a conditional writ of habeas corpus does not have the effect of nullifying a conviction unless and until the writ “springs into effect.” Because the execution of the writ was stayed at the time of defendant’s arrest with the firearm, the predicate drug trafficking conviction was still in full effect. Thus, defendant’s conviction for being a felon in possession of a firearm was valid and the district court ruling was affirmed.
• 18 USC § 922(g) - Felon in Possession
U.S. v. Arnold, 04-5384 (5/18/07)
> A witness called 911 and indicated that defendant threatened her with a gun. When police arrived, the witness reiterated the same story, and while police were there, defendant arrived in a car with his mother. The police found a gun underneath defendant’s seat. The witness failed to appear for trial, but her statements to the police were admitted into evidence. Defendant was convicted of being a felon in possession of a firearm, and he appealed. The original panel found the evidence insufficient to support the verdict and reversed defendant’s conviction. The court granted en banc review.
* Holding: The en banc court held that the evidence was sufficient to support the verdict. Specifically, the court ruled that the evidence provided by the witness about defendant possessing the gun, combined with the fact that the gun was found under the seat in which defendant was sitting and that the gun generally matched the generic description provided by the witness, afforded an adequate basis to affirm the conviction.
• 18 USC § 922(g) - Aiding and Abetting
U.S. v. Gardner, 05-6272 (5/25/07)
> Defendant was convicted at trial of, among other offenses, aiding and abetting a codefendant’s possession of a firearm having been convicted of a felony. Defendant argued on appeal that the evidence was insufficient to support the verdict.
* Holding: In order to convict a defendant of aiding and abetting in regard to a felon-in-possession charge, the government must prove that defendant (1) committed an act that contributed to the commission of the crime, and (2) intended to aid in the commission of the crime. Regarding the first element, the court found that defendant committed an act that contributed to the commission of the crime by transporting the firearm that the codefendant possessed. Regarding the second element, and answering an open question in the Sixth Circuit, the court held that the government must prove that the defendant knew or had cause to know that the codefendant/principal was a convicted felon. The court held that the evidence was insufficient on this point, and accordingly reversed defendant’s conviction.
• 18 USC § 922(g) - Felon in Possession
U.S. v. Crowell, 06-5902 (6/26/07)
> Defendant was charged with being a felon in possession of a firearm after he was observed by two officers fleeing from a car, and dropping a gun in the bushes. Defendant was convicted after jury trial and challenged the sufficiency of the evidence on appeal.
* Holding: The court found the evidence sufficient to support the conviction. Specifically, the court credited the “unwavering” testimony of the two officers who saw defendant drop the gun, and well as one officer’s testimony that defendant indicated after his arrest that the gun was a “nice nine millimeter.” The court discounted defendant’s testimony that he did not have the gun and a witness’ statements that another person, not defendant, dropped the gun. Accordingly, the conviction was affirmed.
• 18 USC § 922(g) - Constructive Possession
U.S. v. Grubbs, 04-5403 (10/17/07)
> Defendant was visiting his mother’s home when agents executed a search warrant regarding stolen cars. During the search, officers found various firearms and ammunition, including a handgun under the pillow in a bedroom. Defendant’s brother admitted that the gun was his, and evidence showed that, when defendant visited his mother, he slept on the couch in the living room. Defendant was charged with multiple offenses regarding stolen cars and firearms. Defendant pled guilty to the stolen vehicle charges, but proceeded to trial on the firearm offenses. At trial, a neighbor testified that he saw defendant with a gun very similar to the handgun found under the pillow. Defendant was convicted for the handgun, but acquitted of the remaining firearm charges. Defendant appealed and argued that the evidence was insufficient to support the government’s constructive possession theory.
* Holding: The court held that constructive possession is proven where a defendant has both the “power and the intention at a given time” to exercise control or dominion over a gun. Presence near a gun, in and of itself, is not sufficient. In the case, the court held that the government failed to establish that defendant constructively possessed the gun. Defendant did not live in the house, and no evidence tied him to the bedroom where the gun was found. Further, the court found unpersuasive the witness’ testimony about seeing defendant previously with a similar gun. The court found that the witness’ description of the gun was too generic to make the necessary link to prove that it was same gun. Accordingly, defendant’s conviction was reversed.
• 18 USC § 922(g) - Felon in Possession
U.S. v. Martin, 06-5605 (3/31/08)
> Defendant was charged with being a felon in possession of a firearm and various drug trafficking offenses. Defendant was convicted after trial and challenged the sufficiency of the evidence for the firearm charge on appeal.
* Holding: The court ruled that the evidence was sufficient to support the verdict where the firearm was found beside the bed in the master bedroom of defendant’s girlfriend’s apartment, men’s clothing was in the bedroom closet, and a pill bottle and phone bill in defendant’s name were in the apartment. The court was unpersuaded by the facts that defendant’s fingerprints were not found on the gun, and defendant’s girlfriend testified that she owned the gun. Accordingly, the conviction was affirmed.
• 18 USC § 922(g) - Constructive Possession
U.S. v. Mayberry, 06-2239 (8/21/08)
> Defendant was charged with being a felon in possession of a firearm based on two firearms found in the trunk of a rental car he was driving. At trial, an informant testified that defendant attempted to get him to join in committing robberies, and that defendant rented a car to commit the robberies. Defendant was convicted and argued on appeal that the evidence was insufficient to support the conviction.
* Holding: In order to prove constructive possession of a firearm, the government must show that defendant had “the power and intention at a given time to exercise dominion and control” over the firearm. Mere proximity to a firearm, with nothing more, is insufficient. The court held that the evidence was sufficient to establish constructive possession of the firearm based upon the fact that the guns were in the trunk and the testimony of the informant. Accordingly, the court affirmed the conviction.
• 18 USC § 922(g) - Constructive Possession
U.S. v. Castano, 06-1720 (10/7/08)
> Based on a tip from an informant, defendant was caught transporting marijuana in a truck. Officers found a firearm in the console of the truck next to defendant. Defendant was charged with drug trafficking and being a felon in possession of a firearm. At trial, the truck owner testified that defendant borrowed the truck from him and that the gun was not in the truck when he let defendant borrow it. An officer testified that defendant was evasive and misleading to the officers upon his arrest, and that drug traffickers often carry firearms to protect their drugs and money. Defendant presented evidence that the gun belonged to someone else. Defendant was convicted and argued on appeal that the evidence was insufficient to support the verdict for the firearm charge.
* Holding: The court held that the evidence was sufficient to support defendant’s conviction on the theory of constructive possession. Although a defendant may not be convicted based on mere proximity to a firearm, the court found sufficient additional evidence to support the conviction. Specifically, the conviction was supported by the testimony of the officers regarding (1) defendant’s possession of marijuana with intent to distribute, (2) the fact that drug traffickers carry firearms, and (3) defendant’s evasive statements upon arrest. Thus, defendant’s conviction was affirmed.
• 18 USC § 922(g) - Felon in Possession
U.S. v. Campbell, 06-6094 (12/2/08)
> Defendant was charged with being a felon in possession of a firearm based on a gun that was found in a car under the seat in which he was sitting. During trial, the driver of the car testified that she saw someone hand defendant a gun while sitting in the same passenger seat earlier in the day, that defendant told her someone had shot at his car, and that defendant told her to say that the gun found under the seat was hers. Additionally, evidence was adduced that, when the officers stopped the car, defendant was bending over as if to hide something. Defendant was convicted and he appealed the sufficiency of the evidence.
* Holding: While mere proximity to a gun is not sufficient to establish possession, the court held that significant additional evidence supported defendant’s conviction. Defendant’s possession of a gun earlier in the day, his statements to the driver, and his actions upon the stop all indicated that defendant was in possession of the firearm. Accordingly, the conviction was affirmed.
• 18 USC §§ 922(g) & 924(c) - Possession
U.S. v. Bailey, 06-5576 (1/20/09)
> Defendant was charged with drug trafficking, possession of a firearm in furtherance of drug trafficking, and being a felon in possession of a firearm. The narcotics in question were found in defendant’s pocket and the firearm was found underneath his car seat. Defendant was convicted after trial on all charges and appealed the sufficiency of the evidence for the firearm charges. The original panel decision affirmed defendant’s conviction (see P.V., Issue #18), and defendant requested panel rehearing.
* Holding: In an amended decision, the court held that the government had not proven defendant’s constructive possession of the firearm. In the original panel decision, the court considered the testimony of defendant’s girlfriend, who claimed to have seen defendant put the gun under the seat. However, upon rehearing, the court determined that the girlfriend’s testimony was only admitted at trial for impeachment purposes, not as substantive evidence. Thus, the court found that the only evidence of defendant’s constructive possession of the firearm was his proximity to it under his seat. The court ruled that constructive possession is a specific intent crime, meaning that the defendant must have knowledge and the specific intent to exercise control over the gun. Given that the car did not belong to defendant, and that others had driven the car recently, the court ruled that the evidence was insufficient to support defendant’s constructive possession. Accordingly, defendant’s convictions under §§ 922(g) and 924(c) were reversed.
• 18 USC § 922(g)(3)-Possession-Drug Use
U.S. v. Roberge, 06-5704 (5/20/09)
> Defendant was charged with being an unlawful user of controlled substances in possession of a firearm. At trial, defendant’s daughter testified that defendant was buying chemicals to make meth, that he was a meth user, and that he had firearms. When agents executed a search warrant, they found defendant asleep with a gun, and precursor chemicals in the basement. Defendant was convicted and failed to renew his Rule 29 motion at the close of the evidence. Defendant appealed.
* Holding: In a prosecution under § 922(g)(3), where the government alleges that the defendant committed the crime “on or about” the date alleged, the government need not prove the exact date of the possession and drug use. The date need be only “reasonably near” the named date, and the court ruled that “one to two months is reasonably near.” The court found sufficient evidence to show that defendant was using meth during the time period he was in possession of the firearms. Because defendant waived the sufficiency of the evidence argument by failing to renew his Rule 29 motion, the court reviewed for “miscarriage of justice,” and found that the record was not “devoid of evidence” supporting the conviction.
• 18 USC § 922(g) - Felon in Possession
U.S. v. Penney, 05-6821 (8/7/09)
> Defendant was chargedwith being a felon in possession of a firearm based on his gun possession after obtaining a Tennessee conviction for attempt to commit a felony. Defendant disputed that he was a previously convicted felon based on the following: (1) the Tennessee conviction was based on an involuntary plea; (2) the record was not clear that the Tennessee offense was a felony; and (3) defendant did not lose his right to bear firearms as a result of the Tennessee conviction. Defendant was convicted and he appealed.
* Holding: First, the court held that proof of a final conviction under § 922(g) deals only with the fact of conviction, not the constitutionality of the conviction; thus, the issue of the voluntariness of the plea was irrelevant. Second, the court held that the judgment was clear from the Tennessee court that defendant was convicted for attempt to commit a felony, which was itself a felony under state law. The court emphasized that a court “speaks through its judgment” and thus any ambiguity in the court minutes was not relevant. Further, the court found that the Tennessee judgment was properly signed by the clerk of the criminal court, and not the judge. Third, the court held, pursuant to the Supreme Court’s decision in Logan (See P.V. Issue # 17), that it was irrelevant that defendant did not originally lose his right to bear arms in Tennessee as a result of the felony conviction. The only legal defense for a felon under § 922(g) is if a defendant has had his civil rights restored. Accordingly, defendant’s conviction was affirmed.
• Constructive Possession of a Firearm
Parker v. Renico, 06-2419 (10/17/07)
> Defendant was charged in Michigan state court with conspiracy to commit murder, assault, and two counts involving the possession of a firearm. The charges were based upon a drive-up shooting incident where defendant was a back seat passenger in the get-away car. The police apprehended the occupants of the car after a high speed chase and accident, and a gun was found in close proximity to where defendant was sitting in the back seat. At trial, the jury acquitted defendant of all but the possession of firearm charges. Defendant lost his state court appeals, and then filed a federal habeas petition wherein he argued that no reasonable juror could have found beyond a reasonable doubt that he constructively possessed the firearm. The district court agreed and granted defendant’s petition. The state appealed.
* Holding: Under both Michigan and federal law, constructive possession of a firearm may not be proven by mere proximity to the firearm. The prosecution must also prove indicia of control on the part of the defendant, which means that defendant must have both the “power” and “intention” to exercise control over the gun. In the case, the court found that, although the gun was within defendant’s view and in close proximity to him, the circumstances provided no indicia of control on defendant’s part. Thus, the conviction was reversed.
• 18 U.S.C. § 924(c) - Firearm Enhancement
U.S. v. Frederick, 03-1895 (5/5/05)
> Defendant was charged with possessing a firearm in relation to drug trafficking under § 924(c), and the district court instructed the jury that defendant could be convicted if it found that he bought the gun in exchange for drugs. Defendant argued on appeal that purchasing a gun for drugs did not support a § 924(c) conviction.
* Holding: The court ruled that the acquisition of a firearm in return for drugs established a sufficient specific nexus between the firearm and the drugs to support a conviction under § 924(c). Specifically, the court indicated that, under the circumstances, the possession of the firearm was “in furtherance” of the drug sale as required by the statute. Thus, the conviction was affirmed.
• 18 U.S.C. § 924(c) - Firearm Enhancement
U.S. v. Whitehead, 04-1831 (7/20/05)
> Defendant was found in a dilapidated house sitting at a table on the first floor. When officers approached, defendant ran. The officers found a shotgun nearby and, upon defendant’s arrest, found 37 separate bags of crack cocaine on his person and $67 in small bills. Defendant was charged, among other things, with possessing a firearm in furtherance of a drug trafficking crime pursuant to § 924(c). Defendant was convicted at trial and appealed based upon the sufficiency of the evidence.
* Holding: The court held that a defendant may be convicted under § 924(c) if the firearm is strategically located so that it is quickly accessible for use in a drug transaction. The court may also consider whether the gun is loaded, the type of gun, the legality of its possession, the type of drug activity, and the time and circumstances under which the firearm was found. Under the facts of the case, the court found sufficient evidence to convict defendant of possessing the firearm in furtherance of his drug trafficking activities.
• 18 U.S.C. § 924(c) - Firearm Enhancement
U.S. v. Savoires, 04-2140 (11/30/05)
> Defendant was charged with drug trafficking and a violation of § 924(c). In regard to the § 924(c) charge, the indictment stated that defendant had carried, “used and possessed a firearm during and in relation to and in furtherance of a drug trafficking crime.” Defendant argued on appeal that the indictment was duplicitous.
* Holding: The court held that § 924(c) contains two distinct offenses: (1) using or carrying a firearm during and in relation to a crime of violence or drug trafficking; and (2) possession of a firearm in furtherance of a crime of violence or drug trafficking. The court found that the indictment in the case was duplicitous because it unlawfully charged both of the distinct § 924(c) offenses in one count of the indictment. Further, the court held that the error in the indictment was not cured by the instructions given to the jury which also improperly combined the elements of the two distinct offenses. Accordingly, the conviction was reversed.
• 18 U.S.C. § 924(c) - Firearm Enhancement
U.S. v. Perry, 04-4506 (2/24/06)
> Defendant was charged with bank robbery and a § 924(c) count. The indictment charged defendant under § 924(c)(1)(A)(ii), which carries a 7 year mandatory consecutive sentence for brandishing a firearm. By the time of sentencing, defendant had been convicted and sentenced for a separate bank robbery and § 924(c) charge. Thus, the district court imposed a 25 year consecutive sentence pursuant to § 924(c)(1)(c). Defendant challenged on appeal the application of the 25 year mandatory consecutive sentence because it had not been charged in the indictment.
* Holding: The court found that application of the 25 year consecutive sentence was proper. Because the enhancement from 7 years to 25 years was based upon defendant’s prior conviction, Apprendi permitted the enhancement without the necessity of it being charged in the indictment. Thus, the 25 year enhancement was proper. Further, even though the court remanded the case, pursuant to Booker, for resentencing on the bank robbery conviction, the court specifically held that resentencing was not appropriate regarding the 25 year term because it was a mandatory statutory penalty.
• 18 USC § 924(c) - Firearm Enhancement
U.S. v. Van Hoosier, 04-6297 (4/5/06)
> Defendant was charged with narcotics offenses and a firearm enhancement under § 924(c). The indictment charged defendant with aiding and abetting a codefendant’s possession of an assault rifle, a gun that triggered the ten year consecutive sentence under § 924(c)(1)(B)(I). The indictment indicated the type of gun that was possessed, but did not specifically reference the statutory subsection that contained the 10 year enhancement. Defendant pled guilty to the 10 year § 924(c) charge and at sentencing argued that the 10 year mandatory penalty should not apply to him because the codefendant was not convicted of possession of the firearm in question. The district court agreed with defendant, and sentenced him below the ten year mandatory minimum. The government appealed.
* Holding: The court first reaffirmed circuit precedent that the enhancement provisions of § 924(c) pertaining to the type of firearm are elements of the offense rather than sentencing enhancements. Thus, a defendant may not be sentenced based upon such an enhancement unless the type of firearm is admitted by the defendant or charged in the indictment and proven beyond a reasonable doubt. The court held that because the type of gun was charged in the indictment and defendant had admitted to the type of gun during the plea hearing, the mandatory ten year sentence of § 924(c)(1)(B)(I) applied. The court further found no error in the government’s decision to convict defendant of the ten year offense on an aiding and abetting theory where the codefendant, who actually possessed the gun, was not convicted of such offense. Accordingly, the district court ruling was reversed and the case remanded for imposition of the ten year mandatory sentence.
• 18 USC § 924(c) - Firearm Enhancement
U.S. v. Lloyd, 04-4014 (9/1/06)
> Defendant was charged with bank robbery and a § 924(c) count. For the § 924(c) charge, the indictment listed that defendant carried the firearm in relation to a crime of violence and that he possessed the firearm in furtherance of a crime of violence. Defendant proceeded to jury trial and the district court instructed the jury that it could convict defendant for either the carrying or the possession offense, but it did not indicate that the jury must unanimously pick only one theory. Defendant did not challenge the indictment’s duplicity in the trial court, but raised it for the first time on appeal.
* Holding: An indictment is impermissibly duplicitous if it charges more than one offense in a single count, but the error may be cured by proper jury instructions. In the case, the court held that the indictment was duplicitous because it charged two separate § 924(c) offenses in one count. Further, the court held that the jury instructions did not cure the error because, although the district court properly explained the alternative theories of guilt, it did not require that the jury reach unanimity on one offense. Nonetheless, because defendant did not raise the issue of duplicity in the district court, the court applied the plain error standard and found that defendant’s substantial rights had not been affected. Accordingly, the conviction was affirmed.
• 18 USC § 924(c) - Firearm enhancement
U.S. v. Bailey, 06-5576 (1/9/08)
> Defendant was charged with drug trafficking and possession of a firearm in furtherance of drug trafficking. The narcotics in question were found in defendant’s pocket and the firearm was found underneath his car seat. Defendant was convicted after trial on both charges and appealed the sufficiency of the evidence for the firearm charge.
* Holding: The court held that in order for a firearm to be possessed in furtherance of a drug trafficking offense, it must be “strategically located so that it is quickly and easily available for use.” In making this determination, the court must consider the following: (1) whether the gun was loaded; (2) the type of gun; (3) the drug activity conducted; and (4) the circumstances under which the gun was found. In the case the court found that defendant had a loaded .357 magnum under the seat, it was quickly and easily accessible, the vehicle in which it was found was stolen, and defendant’s girlfriend testified that defendant put the gun under the seat. Based upon these facts, the court ruled that the evidence was sufficient to support the verdict.
• 18 USC § 924(c) - Firearm Enhancement
U.S. v. Castano, 06-1720 (10/7/08)
> Defendant was charged with possessing marijuana with intent to distribute, and carrying a firearm during and in relation to a drug trafficking crime, in violation of § 924(c). During trial, the district court instructed the jury that defendant could be convicted if he “possessed the firearm during a drug trafficking crime.” The verdict form contained the same language. After the jury returned a verdict of guilty, the district court entered an order that defendant was convicted of possession of a firearm in furtherance of a drug trafficking crime. Defendant did not object to the jury instructions or verdict form at trial, but argued on appeal that the district court erred.
* Holding: The court held that the jury instructions provided by the district court and the verdict form created a substantial likelihood that defendant was convicted of a non-existent offense. The instructed offense – possession of a firearm during a drug crime – conflated the elements of the two different offenses described in § 924(c). Under the circumstances, the court found plain error and reversed defendant’s conviction.
• 18 USC § 924(c) - Firearm Enhancement
U.S. v. Kuehne, 06-3668 (10/28/08)
> Defendant repeatedly traded stolen firearms for drug. As result, defendant was charged with, among other offenses, using a firearm in relation to a drug trafficking crime. Defendant was convicted and argued on appeal that he did not “use” the firearm under § 924(c).
* Holding: In Watson v. U.S. (See P.V., Issue # 17), the Supreme Court held that if a defendant barters drugs for a gun, she does not “use” the gun as required in § 924(c). The court held, however, that Watson did not alter prior precedent that defines “use,” under § 924(c), to include a situation where the defendant trades a gun for drugs. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 924(c) -Firearm Enhancement
U.S. v. Hunter, 07-3698 (3/9/09)
> Defendant was charged with drug trafficking offenses and an offense under § 924(c). The indictment stated that defendant “possessed” a firearm both “during and in relation to” a drug trafficking offense, and “in furtherance of” a drug offense. At trial, the district court instructed the jury that defendant was charged with “possession of a firearm during and in relation to” a drug trafficking crime, and the jury verdict form characterized the offense as “possession of a firearm during a drug offense.” Defendant was convicted and he argued on appeal that the indictment was constructively amended, and that he was not actually convicted of an offense under § 924(c).
* Holding: The court held that the combination of the indictment, the district court’s instructions, and the jury verdict intermingled the two separate offenses of § 924(c). As such, defendant was not actually convicted of a cognizable offense under the statute. Accordingly, defendant’s conviction was reversed.
• 18 USC § 924(c)-Possession in Furtherance
U.S. v. Penney, 05-6821 (8/7/09)
> Defendant was charged with drug trafficking and possession of firearms in furtherance of drug trafficking based on narcotics and firearms that were found in his home. At trial, defendant argued that the firearms were not possessed in furtherance of the drug trafficking activities. Defendant was convicted, but did not renew his Rule 29 motion for acquittal at the close of the evidence. Defendant appealed.
* Holding: Ordinarily, the possession of firearms on the same premises as a drug transaction would not, without some showing of a connection between the two, sustain a conviction under § 924(c). However, where the firearms are “strategically located so that they are quickly and easily available for use,” the possession may be considered in furtherance of drug trafficking. In the case, the court found that the firearms were placed throughout defendant’s residence, were loaded, and some were next to $1,300 in cash hidden in a closet. Because defendant failed renew his Rule 29 motion, the court reviewed only for manifest miscarriage of justice, and accordingly affirmed the conviction.
• 18 USC § 924(c) - Separate Offenses
U.S. v. Penney, 05-6821 (8/7/09)
> Defendant was charged with two separate § 924(c) offenses for possession of a firearm both in relation to drug trafficking and the shooting of a federal agent. The conduct arose from the same incident where agents went to execute a search warrant at defendant’s residence for narcotics, and defendant shot one of the agents. Upon his conviction, defendant argued that the two § 924(c) counts should merge because they resulted from the same conduct. The district court disagreed, and defendant appealed.
* Holding: The court held that where two separate predicate offenses are proven for § 924(c), defendant may be convicted and sentenced for two separate § 924(c) charges even if they were committed in the course of the same event. Therefore, the district court appropriately imposed consecutive sentences for the two § 924(c) offenses.
• 18 U.S.C. § 924(e) - ACCA
U.S. v. Sanders, 04-3181 (4/20/05)
> Defendant was convicted of being a felon in possession of a firearm, and was sentenced by the district court pursuant to § 924(e) (ACCA). The district court indicated on the record that the ACCA status was based upon three prior violent felonies on defendant’s record, two for robbery and one for burglary. The district court did not indicate on the record the basis for its conclusion that the offenses qualified defendant for the ACCA enhancement. Likewise, the PSR was unclear as to the exact nature of the prior offenses. Defendant did not object at sentencing to the ACCA enhancement. During the pendency of the appeal, the Supreme Court rendered its decision in Shepard v. U.S. (see supra).
* Holding: Based upon Shepard, the court concluded that the district court had not properly developed the record as to the propriety of the ACCA enhancement. The court directed the district court on remand to either explain its reasons for concluding that the prior convictions qualified defendant for the ACCA enhancement, or to resentence defendant anew.
• 18 U.S.C. § 924(e) - ACCA
U.S. v. Sawyers, 02-5835 (6/13/05)
> Defendant was convicted of being a felon in possession of a firearm, and at sentencing the district court determined that defendant qualified for the ACCA enhancement. On appeal, among other issues, defendant argued that two of the prior convictions - facilitation of an aggravated burglary and statutory rape - were not properly considered predicate offenses for the ACCA.
* Holding: Regarding the facilitation of an aggravated burglary, the court held that such a prior offense was a violent felony for ACCA purposes under the definitional section that includes “conduct that presents a serious potential risk of physical injury to another,” known as the “otherwise clause.” The court ruled that, under the otherwise clause, no mens rea element was required, just that defendant was responsible for the conduct that caused the risk of injury. Thus, even though facilitation of an aggravated burglary did not require any specific intent on the part of defendant, because it did require proof that the aggravated burglary actually occurred, it could properly be considered a violent felony for ACCA purposes.
Regarding the statutory rape, the court concluded that the case had to be remanded. The court held that statutory rape statutes that include more mature victims, and do not contain statutory aggravating factors, do not necessarily automatically fall into the “otherwise clause.” Thus, the court remanded the case for the district court to consider, pursuant to Shepard, whether the offense could be deemed violent considering the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”
• 18 U.S.C. § 924(e) - ACCA
U.S. v. Hargrove, 04-3338 (7/19/05)
> Defendant was indicted for being a felon in possession of a firearm, and an armed career criminal pursuant to § 924(e) (ACCA). The government contended that defendant’s three prior convictions under Ohio law for sexual battery qualified as violent offenses for ACCA purposes. The district court held that the prior offenses were violent under the ACCA, and accordingly enhanced defendant’s sentence. Defendant appealed.
* Holding: The court found that the offenses were not violent felonies under the ACCA and vacated defendant’s sentence. Relying on the Supreme Court decision in Taylor, the court held that a district court, in determining whether an offense is a violent felony under the ACCA, may consider the language of the statute, the indictment, and any jury instructions from the prior trial. The Ohio sexual battery convictions at issue prohibited a step-parent from having sex with a step-child. Neither the Ohio statute nor the indictment required proof of lack of consent, or proof that the step-child was a minor. Accordingly, the court held that the sexual battery offenses were not a violent felonies under the ACCA, and reversed the district court ruling.
• 18 USC § 924(e) - ACCA
U.S. v. Hill, 04-6206 (3/1/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court concluded that defendant’s record contained three prior violent offenses. Accordingly, the district court applied the ACCA enhancement (§ 924(e)). Two of defendant’s prior convictions were for burglaries that occurred on the same day. In the burglaries, defendant had first entered an abandoned business and stolen bolt cutters, then went across the street to another property and used the bolt cutters to steal a boat motor. At the second location, defendant also stole a weed eater and fishing equipment, for which he did not use the bolt cutter. Defendant appealed application of the ACCA enhancement upon two grounds: (1) the two burglaries should count only as one offense, and (2) the ACCA could not be applied because it was not charged in the indictment.
* Holding: Prior convictions are counted separately for purposes of the ACCA if they were “committed on occasions different from one another.” After conducting a careful analysis of the precedent in the Sixth Circuit, the court articulated three indicators as to when offenses should be counted separately under the ACCA. First, offenses may be separate if it is possible to discern the point at which the first offense is completed and a subsequent point at which the second offense began. Second, offenses may be separate if the offender could have ceased her criminal conduct after the first offense, and withdrew without committing the second. Third, offenses may be separate if they occurred in different residences or business locations. In the case, the court found that all three indicia suggested that the two burglaries were separate. Therefore, the district court ruling was affirmed.
Additionally, the court held, pursuant to Apprendi, that the ACCA provision need not be charged in the indictment in order to be applicable. The court noted that Justice Thomas opined in Shepard that the Supreme Court might, if the issue were raised in the appropriate context, decide that the Sixth Amendment requires that the ACCA enhancement be pled in the indictment and proven to the jury. (See P.V., Issue #1). The court held that it would not make such a finding, however, without a more definitive ruling from the Supreme Court. Thus, the ACCA enhancement was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Beasley, 04-6468 (4/3/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that defendant qualified as an ACCA. One of the prior convictions supporting the ACCA enhancement was a state court conviction for “CA:M2.” Based upon the fact that the underlying state indictment was for “Criminal Attempt, First Degree Murder,” the district court concluded that “CA:M2" meant a conviction for “Criminal Attempt, Second Degree Murder,” which would be a violent offense under the ACCA. Defendant appealed.
* Holding: In the Taylor and Shepard decisions, the Supreme Court held that courts are bound to follow a categorical approach to determining whether a prior conviction is violent for ACCA purposes. (See P.V., Issue #1). In this case, the court first held that the categorical approach does not apply to a determination of what state court offense was actually committed, but only to whether such offense was violent. In determining what the offense actually is, the court may consider any evidence having a “minimal indicia of reliability.” Therefore, the district court was not constrained by Taylor and Shepard in its determination that defendant was in fact convicted of criminal attempt, second degree murder. Second, the court held that, even if the categorical approach did apply to such a determination, the district court had not erred. The district court analyzed only the indictment and the judgment entry, both of which are permissible considerations under Taylor/Shepard. Accordingly, the ACCA determination was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Mahon, 04-4317 (4/21/06)
> Defendant was convicted of being a felon in possession of a firearm and with making false statements on a firearm application. At sentencing, the district court determined that defendant had four qualifying convictions and sentenced him under the ACCA. On appeal, defendant argued that two prior burglaries on his record were not violent felonies under the ACCA.
* Holding: Applying Taylor and Shepard, the court held that the two prior burglaries were violent offenses under the ACCA. The court ruled that the district court had properly reviewed the indictments from the underlying burglary charges and ascertained that, even though the indictments did not specifically list the subsection of the burglary statute, the language in the indictments tracked the language of the Ohio statute ORC § 2911.13(A). The court had previously held in U.S. v. Bentley that § 2911.13(A) described a generic burglary, which constitutes a violent offense. The court found that the Bentley analysis was consistent with the Supreme Court’s categorical approach applied in Shepard. Thus, application of the ACCA was affirmed, but the case was nonetheless remanded for resentencing consistent with Booker. Judge Merritt stated in concurrence that he found a “serious due process” problem with the application of the ACCA’s mandatory minimum sentence to such an undeserving defendant, and that the court was sanctioning a “gross injustice.” Because no due process issued was raised, however, Judge Merritt reluctantly concurred in the decision.
• 18 USC § 924(e) - ACCA
United States v. Jones, 05-5739 (7/20/06)
> Defendant was convicted of being a felon in possession of a firearm and the district court sentenced defendant as an armed career criminal under § 924(e). The ACCA finding was based upon three prior convictions for armed robberies that occurred on the same day, within two hours of each other. In making the determination, the district court relied on “affidavits of complaint” that were filed pre-indictment in the prior cases that indicated that the offenses involved different victims and separate locations. Defendant appealed the ACCA determination.
* Holding: First, the court held that the district court’s consideration of the “affidavits of complaint” was proper under the Supreme Court’s decisions in Taylor and Shepard. Second, the court ruled that the three prior convictions were properly considered as separate offenses, even though they occurred in close proximity, because they involved different victims and happened at separate locations. Third, the court noted that the Sixth Circuit has never decided whether the Taylor/Shepard requirements actually apply to a determination by the district court as to whether prior offenses occurred on different occasions under the ACCA. The court did not directly answer this question because it found that the Taylor/Shepard requirements had been met in the case. Therefore, the sentence was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Caruthers, 05-5307 (8/11/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that defendant qualified as an armed career criminal based upon three prior state burglary convictions from Tennessee. Defendant argued on appeal that the burglary convictions were not violent felonies under the ACCA.
* Holding: Relying on the Supreme Court decision in Taylor, the court held that a state burglary conviction only qualifies as a violent felony under the ACCA if it meets the generic definition of burglary. In making the assessment, the court noted that it may consider the state statute under which the defendant was convicted, as well as the charging document, plea agreement, and plea colloquy. In the case, the court found that the Tennessee burglary convictions did qualify as generic burglaries pursuant to Taylor and affirmed the sentence.
• 18 USC § 924(e) - ACCA
U.S. v. Sanders, 05-4238 (12/15/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he was an armed career criminal pursuant to § 924(e). Defendant challenged two of the underlying convictions for the ACCA determination, an aggravated robbery and a robbery conviction. The district court overruled defendant’s objections and he appealed.
* Holding: A prior conviction is a violent felony under the ACCA if it involves force, is one of several enumerated offenses, or otherwise involves “conduct that presents a serious potential risk of physical injury to another.” First, the court held that a conviction under Ohio’s aggravated robbery statute always constitutes conduct that presents a serious risk of injury. This was true even though the offense could be accomplished merely by committing a theft while carrying a firearm. Accordingly, defendant’s Ohio aggravated robbery was a violent felony under the ACCA.
Second, the court held that the district court properly determined that defendant also had a robbery conviction on his record. The state court indictment and guilty plea in the prior case referenced robbery, but the journal entry mentioned burglary. The court ruled that the district court did not err in reaching the conclusion that the offense was, in fact, a robbery, and accordingly, a violent felony under the ACCA. Further, the court noted that the categorical approach mandated by the Supreme Court decisions in Taylor and Shepard does not apply to the initial factual question of determining the particular prior offense of which a defendant was convicted. This comment was arguably dicta, however, because the court found that the district court did not actually rely on any documents prohibited by Taylor/Shepard. Finally, the court opined that, in applying the categorical approach, a district court should not rely on abstracts of a prior judgment that are signed by the clerk and not the court. Accordingly, the sentence was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Wells, 05-6263 (1/9/07)
> Defendant was convicted of being a felon in possession of a firearm and the government argued at sentencing that defendant should qualify as an armed career criminal. At issue was the question of whether either of two prior juvenile convictions (attempted robbery or aggravated assault) qualified as violent felonies under the ACCA. The district court held that neither of the two juvenile convictions were violent felonies and accordingly refused to apply the enhancement for the ACCA. The government appealed.
* Holding: Under the ACCA, a prior juvenile conviction may qualify as a violent felony if the offense meets the definition of a violent felony for an adult offense and it involved the use or carrying of a firearm, knife, or destructive device. Answering an open question in the Sixth Circuit, the court held that the Taylor/Shepard categorical approach applies to the determination of whether a juvenile conviction counts as a violent felony. Applying the categorical approach to the case, the court first found that the attempted robbery was not a violent felony because, although the petition referenced a gun, defendant was not convicted of the offense charged in the petition (aggravated robbery), but was instead convicted of the lesser offense of attempted robbery. The offense of attempted robbery did not necessarily involve a gun under the statute. Thus, the district court was correct that the attempted robbery did not qualify under the ACCA.
Second, the court held that the aggravated assault was likewise not a violent felony. The petition charging the offenses stated that defendant “did intentionally attempt to strike officer C.J. Sramek of the K.P.D. with the vehicle he was driving during a robbery and a shooting.” The court found that the conviction for the aggravated assault did not necessarily involve the “robbery” and “shooting” that were also mentioned in the petition. The court emphasized that defendant did not enter a plea to the alleged robbery and shooting that preceded the aggravated assault, and thus, under the categorical approach, the offense did not necessarily involve a firearm. Accordingly, the district court’s ruling was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Flores, 06-1152 (2/23/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the government argued that defendant should be sentenced under the ACCA. Defendant had a prior conviction for carrying a concealed weapon (CCW) from Michigan and the government argued that it should count as a prior “violent felony” under the ACCA. The district court disagreed and refused to sentence defendant as an armed career criminal. The government appealed.
* Holding: For the first time in a published opinion, the court held that a prior state conviction for CCW is not properly considered a “violent felony” under the ACCA. Accordingly, the district court ruling was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Nance, 05-6036 (4/6/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that defendant qualified for the armed career criminal enhancement under the ACCA. This determination was based, in part, upon one prior Tennessee conviction for aggravated burglary and one prior Tennessee conviction for facilitation of armed robbery. Defendant appealed.
* Holding: First, the court held that the Tennessee aggravated burglary statute defined a “generic burglary” pursuant to the Supreme Court decision in Crawford, and that it accordingly was a violent felony under the ACCA. Second, the court held that facilitation of armed robbery was a violent felony under the ACCA because Tennessee courts require that the government prove, as an element of the facilitation offense, that the underlying felony actually occurred. Thus, the sentence was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Crowell, 06-5902 (6/26/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he qualified as an armed career criminal. One of the qualifying offenses for the ACCA enhancement was a juvenile conviction for aggravated robbery. Defendant argued on appeal that the evidence was insufficient to support the existence of the conviction and that applying the ACCA enhancement to a juvenile conviction violated his due process rights.
* Holding: First, the court held that the evidence was sufficient to support the existence of the prior juvenile conviction. At the sentencing hearing, the government introduced the juvenile court complaint that was signed by defendant, a decree note regarding his juvenile court hearing, and a juvenile court order reflecting that defendant pled guilty and was adjudicated delinquent. Further, defendant’s fingerprints were matched up with his prints from the arrest on the juvenile case. Thus, even though defendant introduced into evidence a juvenile court computer-generated document that showed that he had no juvenile convictions, the court found sufficient evidence to support the existence of the conviction.
Second, the court held, deciding an open question in the Sixth Circuit, that a juvenile court adjudication may serve as a basis for the ACCA enhancement, consistent with the Due Process Clause, as long as it is procedurally sound. Thus, where the state courts protect a juvenile’s right to notice, right to counsel, privilege against self incrimination, right to confront and cross examine witnesses, and right to a finding of guilt beyond a reasonable doubt, a defendant’s due process rights are sufficiently protected. This is true even though juvenile defendants are not ordinarily afforded the right to a jury trial. Accordingly, the ACCA enhancement was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Collier, 06-1395 (7/12/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court found that he qualified as an armed career criminal. One of the predicate offenses for the ACCA enhancement was a prior Michigan conviction for escape. On appeal, defendant argued that the escape conviction was not a “violent felony” for ACCA purposes.
* Holding: Under the ACCA, an offense qualifies as a “violent felony” if it is an enumerated crime, involves the use or attempted use of force, or “otherwise involves conduct that presents a serious potential risk of physical injury to another.” In the case, the court held that escape is not an enumerated offense, nor does it contain an element involving the use or attempted use of force. Further, defendant’s escape conviction did not qualify as a violent felony under the “otherwise clause” for two reasons. First, the Michigan escape statute included not only breaking out of jail, but also escape from custody while outside the confines of the jail. Second, Michigan law did not define escape as a continuing offense. Thus, any risk of injury in the subsequent apprehension of a defendant was not, under Michigan law, a part of the offense of escape. The court found insignificant the fact that the PSR indicated that defendant fled and possessed a firearm when he was eventually apprehended for the escape. Thus, the district court ruling was reversed and the case remanded for resentencing.
• 18 USC § 924(e) - ACCA
U.S. v. Amos, 06-5032 (8/9/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the government argued that defendant qualified for the armed career criminal enhancement. One of the predicate offenses that the government claimed supported the enhancement was a prior Tennessee conviction for possession of a sawed-off shotgun. The district court held that the prior shotgun possession did not constitute a “violent felony” under the ACCA, and accordingly declined to impose the enhancement. The government appealed.
* Holding: Deciding an open question in the Sixth Circuit, the court held that the mere possession of a sawed-off shotgun does not constitute a “violent felony” under the ACCA. The court reasoned that simply possessing such a firearm was not conduct that presented a “serious potential risk of physical injury to another.” Accordingly, the district court ruling was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Lancaster, 06-5668 (8/31/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court found that he qualified as an armed career criminal. One of the predicate offenses for the ACCA enhancement was a prior Kentucky conviction for second-degree escape. On appeal, defendant argued that the escape conviction was not a “violent felony” for ACCA purposes.
* Holding: Distinguishing the court’s recent decision in Collier (see supra), the court held that Kentucky’s second-degree escape provision qualified as a “violent felony” for ACCA purposes. Similar to the Michigan statute in Collier, the Kentucky escape statute encompassed conduct that constituted “walk away escapes” from non-jail settings. Unlike the Michigan state courts in Collier, however, Kentucky state courts had consistently defined escape as a continuing offense. This distinction between Michigan and Kentucky law was sufficient for the court to distinguish the case from Collier and find that the Kentucky escape provision constituted a “violent felony.” This conclusion was based on the risk of physical harm inherent in recapturing an escapee. Accordingly, defendant’s sentence was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Vanhook, 06-6497 (12/14/07)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he qualified for the sentencing enhancement under the ACCA. This conclusion was based, in part, on a prior Tennessee conviction for facilitation of a burglary. Defendant appealed and argued that the facilitation of a burglary conviction did not qualify as a prior violent felony for ACCA purposes.
* Holding: The court first held that facilitation of a burglary was not the same thing as “burglary,” an enumerated offense under the definition of a violent felony in the ACCA. Facilitation of a burglary does not require proof of intent to commit the underlying burglary; thus, facilitation of a burglary does not meet the generic definition of “burglary,” pursuant to the Supreme Court’s decision in Taylor. Second, the court held that facilitation of a burglary was an offense that caused a serious potential risk of injury to another under the “otherwise clause” of the ACCA. In this regard, the court held that it was irrelevant whether the burglary was in relation to a business or a dwelling. The court ruled that either type of burglary presents a serious potential risk of injury to another, and thus the offense of facilitation of a burglary under Tennessee law is always a violent felony for ACCA purposes. Therefore, the sentence was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Goodman, 06-5513 (3/17/08)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he qualified for the armed career criminal enhancement. One of the predicate offenses was an escape conviction from Tennessee. Defendant argued that the escape should not qualify as a violent felony because defendant “escaped” from house arrest, and Tennessee courts would no longer consider a violation of house arrest to be an offense under the escape statute. The district court disagreed, and defendant appealed.
* Holding: Relying on prior Sixth Circuit precedent, the court held that escape under the Tennessee statute is categorically a violent felony for ACCA purposes. Further, the court held that a defendant may not mount a collateral attack to a prior state conviction at sentencing before the district court. Defendant’s only remedy would be to seek to set aside the conviction in Tennessee state court. Accordingly, the district court ruling was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. Martin, 06-5002 (5/23/08)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he qualified for the enhancement under the ACCA. As predicate offenses for the enhancement, defendant had four prior felony drug trafficking convictions that all occurred in the month of March 1994. All four offenses were charged in the same indictment, were handled in a consolidated plea agreement, and were sentenced concurrently with each other. Defendant argued on appeal that the offenses should not count separately for purposes of the ACCA.
* Holding: Prior convictions are counted separately for ACCA purposes if they are “committed on occasions different from one another.” The court held that offenses are separate if it is possible to discern the point where one offense begins and the other ends. The court ruled that it is irrelevant whether the offenses are charged in the same document or consolidated for trial or sentencing. Thus, because defendant’s prior drug offenses occurred on different days throughout the month of March, they were separate for ACCA purposes. Accordingly, defendant’s sentence was affirmed.
• 18 USC § 924(e) - ACCA
U.S. v. McCauley, 07-3935 (11/25/08)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that defendant was an armed career criminal. This determination was based, in part, on the court’s determination that two robbery convictions from 1987 were separately countable offenses. Defendant appealed and argued that the offenses could not be counted separately for ACCA purposes where they were consolidated for sentencing.
* Holding: Under the ACCA, prior offenses count separately if they were “committed on occasions different from one another.” The court held that, for ACCA purposes, it was irrelevant whether the offenses were consolidated for sentencing; instead, the only pertinent consideration was that the offenses were committed on separate occasions. Accordingly, the district court ruling was affirmed.
• 18 USC § 924(e) - ACCA - Violent Felony
U.S. v. LaCasse, 06-2212 (6/4/09)
> Defendant was convicted of being a felon in possession of a firearm. At sentencing, the district court determined that defendant was an armed career criminal based, in part, on his prior Michigan conviction for fleeing and eluding a police officer in the third degree. Relying on the Sixth Circuit’s decision in U.S. v. Martin, the district court held that the Michigan conviction constituted a “violent felony” under the ACCA. Defendant appealed and the Sixth Circuit affirmed. The Supreme Court remanded the case for reconsideration in light of the recently decided Begay (See P.V. Issue # 19) and Chambers (See P.V. Issue #25).
* Holding: On remand, the court concluded again that Michigan’s third degree fleeing and eluding constitutes a violent felony under the ACCA. The court found that fleeing and eluding was an offense akin to an attempt to escape. Thus, in contrast to the felony DUI addressed in Begay, the court held that the fleeing and eluding offense was the kind of “purposeful, violent, and aggressive” conduct that the Supreme Court intended to encompass within the statute. Accordingly, the court affirmed defendant’s sentence.
• 18 USC § 924(e) - ACCA
U.S. v. Young, 08-1394 (9/4/09)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he was an Armed Career Criminal, pursuant to § 924(e). One of defendant’s predicate convictions was a Michigan fleeing and eluding offense. The Michigan statute prohibited fleeing from the police in a vehicle by “increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the police.” The offense was a felony because it was defendant’s second conviction under the same statute. Defendant appealed and argued that the fleeing and eluding offense was not a “violent felony” under the ACCA.
* Holding: The court held that the Michigan fleeing and eluding offense was a “violent felony” under the “otherwise” clause of the ACCA. Applying the categorical approach of James, Begay, and Chambers, the court held that fleeing and eluding the police under the Michigan statute involved the same kind of “purposeful, violent, and aggressive” conduct as the offenses enumerated in the ACCA. Further, the court held that its prior decision in Foreman (See P.V. Issue #6) was no longer good law in light of James, Begay, and Chambers and accordingly overruled it. Thus, defendant’s sentence was affirmed.
• 18 USC § 924(o) - Conspiracy
U.S. v. Fowler, 04-4472 (8/1/08)
> Defendant was convicted, pursuant to § 924(o), of conspiring to violate 18 USC § 924(c), and of RICO violations. At sentencing, the district court imposed a mandatory 10-year consecutive sentence for the § 924(o) conviction. Defendant appealed.
* Holding: The court held that a 10-year consecutive sentence is not mandated for a § 924(o) conspiracy, even though such a sentence is required for a violation of § 924(c)(1)(D)(ii). Therefore, the court vacated defendant’s sentence on all counts so that the district court could resentence defendant anew, without the 10 year mandatory consecutive sentence.
• 18 U.S.C. § 1001(a) - Falsify Material Fact
U.S.v. Gibson, 03-6592 (5/24/05)
> Defendants operated a coal mine and were indicted for concealing material facts from federal mine safety inspectors in violation of § 1001. The material facts concealed were the existence of mine safety violations in the mine. Defendants concealed the violations by alerting mine personnel prior to the inspectors arrival, thus allowing the cover up of the safety violations. After a jury convicted defendants, the district court arrested judgment on the charge, finding that the indictment did not charge an offense. The government appealed.
* Holding: The court affirmed the district court’s ruling and held that § 1001 is only violated in this context where a defendant has a legal duty to disclose the existence of the material fact that is concealed. The federal law on mine safety does not require mine operators to disclose the existence of safety violations. It does, however, require the disclosure of “hazardous conditions” in the mine. Because the indictment charged defendants only in terms of failing to disclose the existence of safety violations, which defendants had no affirmative duty to disclose, the court agreed that the count of the indictment did not charge an offense.
• 18 USC § 1001 - False Statements
U.S. v. Ahmed, 05-2319 (11/29/06)
> During defendant’s tenure in the Air Force, he began to make statements that were decidedly pro-terrorist and anti-U.S. After the September 11 attacks, he made additional comments displaying satisfaction at the results. Accordingly, the Air Force terminated defendant’s access to classified information and, shortly thereafter, agreed with defendant to an early honorable discharge. Defendant subsequently applied for a position with the Transportation Security Administration to screen bags at the Detroit airport. On defendant’s security questionnaire, he reported that he never left a job under “unfavorable circumstances” and that he never had a clearance suspended or revoked. Defendant was subsequently prosecuted for two counts of false statements under § 1001. Defendant was convicted at trial and appealed.
* Holding: Generally, a § 1001 false statement prosecution may not be premised on a statement “which on its face is not false.” The court held, however, that defendant did not demonstrate that his statements were facially true. Specifically, the court found no merit to defendant’s arguments that (1) an honorable discharge could not be considered “unfavorable circumstances” and that (2) an “administrative downgrade” in security clearance could not be considered a suspension or revocation. Thus, the conviction was affirmed.
• 18 USC § 1001 - False Statements
U.S. v. Dedman, 06-6124 (5/29/08)
> Defendant was charged with conspiracy to defraud the government for arranging a sham marriage between her adoptive father and her adopted daughter in order to obtain her adoptive father’s military pension benefits. During her investigation by federal agents, defendant made misstatements about the location of her adopted daughter, about her adopted daughter’s disability, and about when she first learned of the marriage. Defendant was convicted by the jury and argued on appeal that the evidence was insufficient to support the verdict.
* Holding: The elements of § 1001 are as follows: (1) defendant made a statement; (2) the statement was false; (3) the statement was material; (4) the statement was made knowingly and wilfully; (5) the statement pertained to activity within the jurisdiction of a federal agency. The court held that arguably the statement about the daughter’s location was not material, and the statement about the daughter’s disability was not false. However, the court found that the evidence was sufficient to prove the falsity of the statement regarding defendant’s knowledge of the marriage. The court ruled that it must assume that the jury convicted defendant upon the statement for which the evidence was sufficient, and accordingly defendant’s conviction was affirmed.
• 18 USC § 1001 - Falsifying Facts to EPA
U.S. v. Holden, 07-5573 (2/24/09)
> Defendant supervised activities at a water treatment plant, and was charged with falsifying facts in a matter within the jurisdiction of the EPA. At trial, the government introduced evidence that an employee of the plant falsified records submitted to the EPA, and that defendant knew about, and induced, the filing of the false records. Defendant was convicted and he argued on appeal that the evidence was insufficient to support the verdict.
* Holding: In order to establish a violation of § 1001 for making false statements to the EPA, the government must prove the following: (1) the defendant made a factual representation; (2) it was false or fraudulent; (3) it was material; (4) the defendant made the statement knowingly and willfully; and (5) the statement pertained to an activity within the jurisdiction of a federal agency. In the case, the court held that the evidence was sufficient to believe that defendant knowingly made false representations to EPA. The court found that defendant, as supervisor, was not only on notice of the false reports, but that he was actively involved in their making. Accordingly, defendant’s conviction was affirmed.
• 18 USC 1015(a) - False Statement
U.S. v. Ali, 07-6446 (2/27/09)
> Defendant was charged with making a false statement on a citizenship application. The false statement pertained to defendant’s answer of “no” to a question as to whether he had ever been married to more than one person at a time. Defendant filed a pretrial motion to dismiss the indictment on the grounds that his second marriage, while he was still married to his first wife, was void ab initio under state anti-bigamy law. Thus, defendant was not married to two women at once because his second marriage was void. The district court denied the motion. At trial, the government moved to exclude evidence of defendant’s claim that he did not knowingly make a false statement, because he believed, based on the advice of counsel, that his second marriage was void ab initio. The district court granted the government’s motion. Defendant was convicted and he appealed.
* Holding: First, the court held that state laws declaring bigamous marriages void ab initio did not relieve applicants for citizenship applications from completely and truthfully disclosing their marital relationships. Thus, the court ruled that a person is legally “married” for purposes of the citizenship application questions if the person “participated in a marriage ceremony while still married to another.” Thus, the court ruled that the district court correctly denied defendant’s motion to dismiss the indictment.
Second, the court held that the district court improperly excluded evidence of defendant’s lack of knowledge that he was married at the time of his second marriage. The court held that defendant’s claim that he did not know he was legally married was not a “mistake of law” defense, as the district court characterized it, but instead a proper attack on the mens rea element of the false statement statute. Accordingly, the district court vacated defendant’s conviction.
•18 USC § 1028(b)(1)(D) - Identity Fraud
U.S. v. Tudeme, 05-6258 (8/9/06)
> Defendant was convicted of using another person’s identity to commit a felony offense and at sentencing the district court determined that the statutory maximum for the offense was 15 years, pursuant to § 1028(b)(1)(D). Based upon this determination, the eligible term of supervised release was increased from 2 to 3 years. Defendant objected upon the grounds that § 1028(b)(1)(D) only permits a 15 year maximum sentence where a defendant “obtains anything of value” whose aggregate sum is $1000 or more. The conduct involved defendant’s attempted purchase of a television with a fraudulent check, but he was caught before he actually obtained the television. The district court overruled defendant’s objection, and he appealed.
* Holding: The court held that, although the language of § 1028(b)(1)(D) indicates that a defendant must “obtain” something valued at over $1000, § 1028(f) provides that the same penalties apply to attempts or conspiracies. Thus, the district court ruling was affirmed.
• 18 USC §§ 1341 and 1346 - Mail Fraud
U.S. v. Turner, 05-6326 (8/31/06)
> Defendant engaged in a pattern of vote buying and deceptive campaign donation practices on behalf of a judicial candidate in a Kentucky state election. The government prosecuted defendant in multiple mail fraud counts under both § 1341 and § 1346. The § 1341 prosecution utilized the theory that defendant’s actions were meant to deprive Kentuckians of the salary that was paid to the elected judge, and the § 1346 prosecution alleged that defendant deprived the citizenry of the honest services of a judicial candidate. Defendant was convicted and he appealed.
* Holding: First, the court held that the § 1341 prosecution was improper. This mail fraud section prohibits fraud by use of the mails that is intended to “deprive a victim of money or property.” The court held that vote buying for a candidate, even if successful, did not deprive the citizenry of money because the salary would be paid to whichever elected official obtained the position. The right to decide who is paid the salary is a political, intangible one that cannot be enforced under § 1341.
Second, the court held that the § 1346 prosecution was likewise improper. This mail fraud section prohibits a scheme to defraud a victim of the “intangible right to honest services.” The court found that, because the candidate that defendant promoted was not in a political office at the time, he had no fiduciary duty that he owed to the public. Thus, the public was not deprived of any “honest services” as that phrase is defined under controlling precedent. Therefore, the convictions on the mail fraud counts were reversed.
• 18 U.S.C. § 1344 - Bank Fraud
U.S. v. Abboud, 04-3942 (2/17/06)
> Defendant was charged in a bank fraud scheme and in the indictment the government charged each illegal transaction as a separate count. Defendant argued on appeal that the indictment was multiplicitous.
* Holding: The court held, for the first time in a published opinion, that § 1344 permits the government to charge each execution or attempted execution of bank fraud as a separate count. Thus, in a check kiting scheme, each check may be charged as a separate count in the indictment. Defendant’s conviction was accordingly affirmed. The court’s opinion is arguably dicta because the court first found that defendant had waived the multiplicity argument by not properly preserving it in the district court. (See infra, VIII. Defenses.)
• 18 USC § 1344 - Bank Fraud
U.S. v. Winkle, 04-4196 (2/21/07)
> Defendant was a car dealer who was involved in a scheme with another dealer to kite checks between their bank accounts by conducting fake vehicle trades between the dealerships. Defendant was charged with bank fraud for the check kiting activity and argued at trial that he did not have the intent to defraud, but instead that he was duped by the other dealer and that he was merely in an overdraft situation. Defendant was convicted and he argued on appeal that the evidence was insufficient to support the verdict.
* Holding: Intent to defraud may be proven entirely by circumstantial evidence and such evidence need not remove every reasonable hypothesis other than guilt. The defendant’s intent may be inferred from examining the scheme itself if it was reasonably calculated to deceive persons of ordinary prudence. In the case, the court found that defendant’s statements that he knew that certain checks he wrote would not clear his bank, in addition to the circumstances of the fake vehicle trades, provided a sufficient basis to show his intent to defraud. Thus, the conviction was affirmed.
• 18 USC § 1344 - Bank Fraud
U.S. v. Ross, 05-4469 (9/21/07)
> Defendant was charged with bank fraud based upon counterfeit checks that were deposited into his bank account. Defendant argued at trial that he did not know that the checks were counterfeit at the time they were deposited. Defendant was convicted and argued on appeal that the evidence was insufficient to support the verdict.
* Holding: The court found sufficient evidence to believe that defendant knew that the checks were counterfeit. Defendant’s knowledge could be inferred from the fact that he previously received checks from the same source that turned out to be counterfeit. Based on these prior checks, defendant did research on “Nigerian check schemes” and had decided not to accept any more checks from this source. Additionally, defendant was in dire financial trouble and had filed personal bankruptcy, thus demonstrating his desperate need for the money. Although the court called it a close case, the court found that the evidence supported defendant’s knowledge and sustained the verdict.
• 18 USC § 1347 - Medicare Fraud
U.S. v. White, 05-3403 (6/11/07)
> Defendant was charged with executing a scheme to defraud medicare by submitting inflated contracts to medicare and failing to disclose the related nature of defendant’s various companies. Defendant was convicted and argued on appeal that the evidence was insufficient to support his intent and his knowledge that his companies were “related parties” under the medicare rules.
* Holding: In order to establish medicare fraud, the government must prove that defendant (1) knowingly devised a scheme to defraud medicare in relation to the payment of benefits, (2) executed the scheme, and (3) acted with specific intent to deceive or defraud. In the case, the court held that a reasonable jury could have concluded, based on the evidence, that defendant intended to deceive medicare and that he knew that the medicare “related party” rule applied to the transactions between the companies that he controlled. Thus, defendant’s conviction was affirmed.
• 18 USC § 1347 - Medicare Fraud
U.S. v. Davis, 06-5073 (6/22/07)
> Defendant was charged with medicare fraud for falsifying claim forms for medicare benefits for mine workers obtaining oxygen equipment to combat black lung disease. At trial, the district court excluded certain defense evidence which showed that, even though the claim forms may have been falsified, the mine workers actually had the medical need for the oxygen equipment. Upon her conviction, defendant appealed.
* Holding: Medicare fraud under § 1347 may be committed through two different means. First, § 1347(1) defines the offense as a scheme to defraud any health care benefit program. Second, § 1347(2) defines the offense as a scheme to obtain health care program monies by means of “false or fraudulent pretenses, representations or promises.” In the case, the court held that the second section does not require that the materiality of the false statements be established in order for criminal liability to attach. It is enough under the second section that false statements are made in an effort to obtain benefits. The court emphasized that to hold otherwise would essentially write § 1347(2) out of the statute. Accordingly, the court ruled that the exclusion of the medical- need evidence was proper and the conviction was affirmed.
• 18 USC § 1347 - Health Care Fraud
U.S. v. Hunt, 06-6300 (4/11/08)
> Defendant was a doctor who participated in a scheme to commit health care fraud. For defendant’s part, he misrepresented that he had seen patients and determined that a carotid artery ultrasound test was medically necessary. The misrepresentations were then used to obtain insurance and medicaid benefits for the testing. Defendant was convicted after jury trial and he argued on appeal that the evidence was insufficient to support the verdict.
* Holding: Pursuant to § 1347, the government must prove the following to sustain a conviction for health care fraud: (1) defendant knowingly devised a scheme or artifice to defraud a health care program in connection with the delivery of health benefits; (2) execution or attempted execution of the scheme or artifice; and (3) defendant’s intent to defraud. In the case, the court found ample evidence to believe that defendant knowingly submitted false statements claiming that he had “consultations” with patients. Further, the court ruled that there was sufficient evidence to establish that defendant did not mistakenly believe that a nurse, allegedly hired by a codefendant, was seeing the patients in defendant’s stead. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 1347-Health Care Fraud/Death
U.S. v. Martinez, 06-3882 (12/1/09)
> Defendant was charged with health care fraud for submitting fraudulent claims to health care benefit programs. Additionally, defendant was charged, pursuant to § 1347(2), with causing the death of two of his patients as a result. At trial, none of the patients named in the indictment testified, nor did the government identify any patients by name. Instead, the government presented the testimony of an expert who reviewed the patient medical files and concluded that defendant could not have possibly seen the number of patients and performed the quantity of procedures that he alleged. Further, the government presented video tape evidence demonstrating the small quantity of time defendant spent with each patient. Lastly, the government introduced evidence that defendant caused the deaths of two of his patients. Defendant was convicted and argued on appeal that the evidence was insufficient to support the verdict.
* Holding: In order to establish health care fraud, the government must prove that the defendant (1) knowingly devised a scheme or artifice to defraud a health care benefit program in connection with the payment of benefits, (2) executed the scheme, and (3) acted with intent to defraud. The court found that the evidence was sufficient to establish that defendant devised a scheme to defraud the medical benefits providers by billing for services that were not performed. Specifically, the court found that individualized testimony by each patient was unnecessary where competent expert testimony established the government’s charges. Accordingly, defendant’s conviction was affirmed.
Further, the court addressed an open question in the Sixth Circuit as to the causation requirement for the death of a patient under § 1347(2). The court concluded that “proximate cause” was the appropriate standard. Under this standard, a defendant may be held liable for the death of a patient where it “reasonably might or should have been foreseen that his fraudulent conduct would be likely to create a situation which would expose another to the danger of death.” The court found that, although it was a close case, sufficient evidence was introduced to prove that defendant was the proximate cause of the death of the two patients based on the length of treatment, their deteriorating health during the time period, and defendant’s inadequate monitoring of them. Thus, defendant’s conviction was affirmed.
• 18 USC § 1512(b) - Witness Tampering
U.S.v. Miller, 06-4583 (7/1/08)
> During the course of his investigation for wire fraud, defendant told a witness that if she talked to the FBI about him, he would sue her for defamation. Defendant was charged with witness tampering and convicted at trial. Defendant argued on appeal that the threat to sue someone for defamation could not support a witness tampering conviction.
* Holding: Section 1512(b) prohibits attempting to influence a witness’ testimony by intimidation, physical force, threats, or corrupt persuasion. The court held that defendant’s threats to sue the witness for defamation were not protected by the First Amendment because defendant’s threatened law suit would have been frivolous. Defendant would only have a cause of action against the witness if she made false statements to the FBI about him. Thus, the court found that defendant’s actions amounted to a threat to the witness that, if she cooperated with the FBI, “negative pecuniary effects” would occur. Accordingly, defendant’s conviction was affirmed.
• 18 USC 1512(b)(3) - Obstruction of Justice
U.S. v. Carson, 05-1812 (3/30/09)
> Defendant was a police officer who engaged in the unlawful beating of a person during a traffic encounter. Defendant was charged with obstruction of justice based on a false police report he made after the incident which indicated that the victim was the aggressor. Defendant argued in the district court that the police report was made at least 6 months prior to the federal investigation, and thus could not constitute obstruction. Defendant was convicted in the district court and he appealed.
* Holding: The elements of a § 1512(b)(3) prosecution are that the defendant (1) knowingly and willfully engaged in misleading conduct toward another, (2) with the intent to hinder or prevent communication of information to a federal officer, (3) about a federal crime. The court held that the second element of § 1512(b)(3) is satisfied if the misleading information is “likely” to be transferred to a federal agent. In the case, evidence established that officers were trained that the use of excessive force could result in federal prosecution, thus the jury could infer that the officer knew he could be prosecuted federally when he generated the report. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 1584 - Involuntary Servitude
U.S. v. Djoumessi, 07-1740 (8/20/08)
> Defendant brought a 14 year old girl illegally into the country to work for he and his wife. The girl was promised an education and a good place to live in return for keeping house and caring for defendant’s children. Instead, the girl was placed in deplorable living conditions in the basement, received physical and sexual abuse, and was threatened that if she left she would be forced to return to her home country. Defendant was charged in the district court with involuntary servitude in violation of § 1584. Upon his conviction, defendant appealed and argued that the evidence was insufficient to support the conviction.
* Holding: In order to sustain a conviction under § 1584, the government must show that the defendant knowingly and wilfully held another person in involuntary servitude for any term. Involuntary servitude may be proven in one of three ways: (1) physical restraint or force; (2) legal coercion; or (3) threats of physical force or legal coercion. In the case, the court held that defendant’s acts of physically and sexually abusing the girl, and threatening her physically and legally, amounted to involuntary servitude. The court noted that it was of no consequence that the girl may have voluntarily stayed for some of the time, because involuntary servitude only requires proof that it occurred for some period of time. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 1623 - False Declaration
U.S. v. Hynes, 05-2036 (11/7/06)
> Defendant was charged with making a false declaration before the grand jury. At trial, the government introduced evidence to show that defendant had falsely responded to a question regarding his knowledge about a check used to purchase a barber shop. Defendant was convicted and, on appeal, he argued that the evidence was insufficient to show that he knew the answer he gave was false, because the question was ambiguous.
* Holding: A question that is truly ambiguous or misleading can never be the basis for a finding of perjury. In assessing whether a defendant understood a question, the court may consider the language of the question itself and the context in which it is made. The court held that the question itself to the defendant was not ambiguous and that the context in which it was made clearly indicated that it was a question about the source of the check. Accordingly, the conviction was affirmed.
• 18 USC § 1623 - Perjury
U.S. v. Carson, 05-1812 (3/30/09)
> Several police officers severely beat a motorist. Defendant was an officer who was present, but testified during the grand jury that he saw or heard nothing. The passenger in defendant’s car, sitting “inches away” from defendant, testified that he was able to see the entire beating. Defendant was prosecuted for perjury, he was convicted, and he appealed.
* Holding: In order to establish a conviction under § 1623, the government must prove that the defendant (1) knowingly (2) made a materially false declaration, (3) under oath, (4) in a proceeding to any federal court. The court held that the evidence established that defendant’s grand jury testimony was both false and material. The falsity was established by the fact that the passenger in the car was able to see the entire incident, which was corroborated by four eye witnesses. The materiality was established by the fact that the grand jury was investigating the officers’ excessive force, and defendant claimed he saw nothing occur. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 1951 - Hobbs Act Conspiracy
U.S. v. Kelley, 05-1361 (8/31/06)
> Defendant was a high ranking public official for Wayne County, Michigan. Defendant and his wife were charged under the Hobbs Act for extorting home repairs, money, and various other financial benefits from a contractor to whom defendant awarded significant and continuing contracts with the county. Defendant was convicted at trial and filed an appeal challenging the sufficiency of the evidence.
* Holding: To prove a conspiracy to commit a Hobbs Act extortion, two available means are the “color of official right” and “fear of economic harm” theories. Under the first theory, the official obtains payments to which he is not entitled in return for official acts. A private citizen may be convicted under this theory for aiding and abetting the public official. Under the second theory, a public official receives payment because the victim believes that the defendant can exercise his power to the victim’s economic detriment. A private citizen can also be convicted under this theory. In the case, the court found that the government had established sufficient evidence to convict defendants under both theories, and accordingly, the conviction was affirmed.
• 18 USC § 1951 - Hobbs Act Conspiracy
U.S. v. Brock, 05-6621 (9/6/07)
> Defendant was convicted of conspiracy to commit extortion under the Hobbs Act. At trial, the government proved that defendant’s bail bonding business repeatedly bribed an employee of the clerk of court to remove bond forfeiture hearings from the state court’s docket. Defendant argued on appeal that a § 1951 conspiracy could not be applied to the facts of his case.
* Holding: The court held that defendant could be guilty of the § 1951 violation only if he conspired to obtain property from “another,” with that person’s consent, under “color of official right.” The court found that the statute would only have applied in the circumstances of defendant’s case if the clerk of court had extorted money from defendant. Instead, defendant bribed the clerk to remove cases from the docket. Thus, there was no property obtained from “another.” The only money that changed hands was defendant’s money, and he could not be guilty of conspiring to obtain his own money. The court accordingly ruled that the Hobbs Act simply did not fit the circumstances of the case. Further, the court held that, to the extent that the statute was ambiguous, the rule of lenity required that it be construed in defendant’s favor. Finally, the court noted that the principle of federalism supported its ruling. Congress specifically chose not to punish the giving of bribes to state officials, but instead left that matter to the states. Thus, the court found no reason to construe the Hobbs Act to cover such conduct. Accordingly, defendant’s conviction was reversed.
• 18 USC § 1951 - Hobbs Act Conspiracy
U.S. v. Gray, 05-4482 (4/2/08)
> Defendant was charged with multiple counts of Hobbs Act conspiracy for his role in obtaining government contracts from city officials for his corporate clients. The indictment alleged that defendant conspired to extort money under color of right. Defendant was convicted after a jury trial. On appeal, defendant argued that the Hobbs Act did not apply to his conduct.
* Holding: Relying on the Sixth Circuit’s ruling in U.S. v. Brock (See P.V., Issue #7), the court held that in order for a private individual to be convicted in a conspiracy to extort money “from another with his consent” under a color of right, pursuant to the Hobbs Act, the individual must conspire with or assist a public official in extorting money from a third party. In reviewing defendant’s various convictions in the case, the court held that only those convictions could stand in which the public official was paid money that was obtained from a third party, not from defendant. Thus, in situations where defendant merely bribed a public official to provide government contracts to defendant’s clients, the conviction was reversed. However, where the money paid to the public official was traceable to defendant’s client, and thus defendant and the official worked together to obtain the money from the third party, the conspiracy conviction was affirmed. Accordingly, defendant’s convictions were reversed in part, and affirmed in part.
• 18 USC § 1951-Extortion by Public Official
U.S. v. Abbey, 07-2278 (4/3/09)
> Defendant was a city administrator who was charged with extortion by a public official. The charge was based on the gifting of a piece of land by a developer in return for future favorable consideration in real estate developments. The developer subsequently received a favorable contract with the city to develop a piece of land. Defendant was convicted after trial and argued on appeal that the evidence was insufficient to support the verdict because there was no specific promise to perform an identifiable official act at the time the property was gifted to him.
* Holding: A § 1951(a) extortion prosecution requires the government to prove that the defendant obtained property from another, with that person’s consent, under color of official right. The court held that, contrary to defendant’s claim on appeal, § 1951(a) requires only that the public official understand that he or she is expected to exercise some influence on the payor’s behalf as opportunities arise. Further, the official need not have any intention of actually exerting the influence. Thus, the transfer of the property to defendant in return for the expectation of some future favorable treatment was sufficient. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 1956 & 57 - Money Laundering
U.S. v. Jamieson, 02-3403 (10/28/05)
> Defendant defrauded numerous investors by selling fraudulent insurance policies and making misrepresentations regarding escrow accounts. Defendant was charged with numerous federal offenses, including multiple counts of money laundering under both § 1956 and § 1957. After jury trial and sentence, defendant appealed challenging the sufficiency of the evidence to support the convictions because the laundered money could not be traced to specific unlawful activity.
* Holding: The court held that, in proving § 1956 money laundering charges, the government was not required to trace the origin of all funds to determine which funds came from which investor transaction. It was sufficient in the case for the government to prove that defendant fraudulently obtained investor monies, put them into an account in which other funds were commingled, and then laundered money from the account. Regarding the § 1957 money laundering charges, the court noted that it is an open question in the Sixth Circuit as to the tracing of funds requirements. The court held that it did not have to decide the issue because, in any event, it found that the government had sufficiently traced the funds. At trial, the government proved that all of the investors had been convinced to invest based upon fraud, and that all of the money charged in the § 1957 transactions came from those investor funds. Accordingly, the court found that the charges were adequately supported by the evidence and affirmed the conviction.
• 18 USC § 1956/57 - Money Laundering
U.S. v. White, 05-3403 (6/11/07)
> Defendant was charged with medicare fraud, conspiracy, and money laundering in regard to his receipt of medicare payments through his various companies. Defendant was convicted and on appeal he argued that the evidence was insufficient to support his convictions for money laundering and conspiracy.
* Holding: The elements of money laundering under § 1956(a)(1)(A)(i) are that defendant (1) conducted a financial transaction that involved illegal proceeds, (2) knew the illegal nature of the proceeds, and (3) intended to promote the illegal activity. Similarly, the elements of money laundering under § 1957(a) are that defendant (1) engaged in a financial transaction that involved illegal proceeds, (2) knew the illegal nature of the proceeds, and (3) the proceeds exceeded $10,000.00. The elements of a money laundering conspiracy under § 1956(h) are (1) an agreement to commit money laundering, (2) an overt act in furtherance of the agreement, and (3) defendant’s knowing participation in the conspiracy. In the case, the court held that the evidence clearly established the elements of each of the offenses. In particular, defendant used the illegal proceeds to further unlawful activities and not to pay legitimate business expenses. The court found that defendant received medicare payments through fraud, and then directed the transfer of those funds to organizations which subsequently engaged in further fraud. Thus, defendant’s convictions were affirmed.
• 18 USC § 1957 - Money Laundering
U.S. v. Rayborn, 05-6742 (7/2/07)
> Defendant was charged with conspiracy, mail and wire fraud, and money laundering pertaining to a scheme wherein defendant mailed fraudulent documents to a bank for purposes of obtaining a home loan. Based on the documents, the bank approved the loan, and subsequently wired the funds to the closing agent for the purpose of defendant’s acquisition of the home. The government alleged at trial that the money laundering offense consisted of the wire of the funds by the bank to the closing agent at defendant’s direction. Defendant was convicted and he argued on appeal that the evidence was insufficient because he never obtained or controlled the funds until after the bank wired them.
* Holding: The elements of a § 1957 money laundering charge are as follows: (1) defendant engaged in a monetary transaction; (2) defendant knew that the money was criminally derived; (3) the value was greater than $10,000; (4) the property was derived from a violation of a federal criminal statute ( in this case mail fraud); and (5) the transaction occurred in the U.S. In the case, the court found that the funds wired by the lender to the closing agent for the purpose of defendant’s purchase of the home were criminally derived proceeds of mail fraud. The court ruled that the mail fraud was completed when defendant mailed the fraudulent documents to the lender. When the lender approved the loan, the proceeds were controlled by defendant, even though he was not in physical possession of them. Accordingly, the money laundering conviction was affirmed.
• 18 USC § 1957 - Proceeds
U.S. v. Kratt, 08-5831 (9/2/09)
> Defendant was charged with engaging in monetary transactions in criminally derived property, pursuant to § 1957. The basis for the charge was defendant’s false statements on a loan application to purchase an airplane. The lender provided the loan, and took a security interest in the airplane. Defendant was subsequently prosecuted for bank fraud, false statements, and § 1957 money laundering. Defendant was convicted and he argued on appeal that the government failed to prove that he laundered the “profits” of his fraudulent loan, as opposed to the “gross receipts.”
* Holding: In the Supreme Court’s decision in Santos (See P.V. Issue #20), the Court held that the term “proceeds” in a § 1956 prosecution referred only to “profits” from an illegal activity, not the “gross receipts,” at least when the underlying offense was illegal gambling. In the present case, the court first held that Santos’ holding was applicable in the context of a § 1957 money laundering prosecution. Second, the court ruled that the plurality decision in Santos did not dictate the meaning of the term “proceeds” in defendant’s case because his underlying offenses were bank fraud and false statements, not illegal gambling as in Santos. Because both bank fraud and false statements offenses carry higher statutory maximum penalties than money laundering, the concerns underpinning Santos were not present, and the court found that it was free to construe the term “proceeds” consistently with precedent established prior to Santos. Accordingly, the court held that the term “proceeds” in a § 1957 prosecution referred to the “gross receipts” from the criminal activity, at least where the underlying offense was bank fraud or false statements. Thus, defendant’s conviction was affirmed.
• 18 USC § 1958 - Murder for Hire
U.S. v. Acierno, 07-4473 (8/27/09)
> Defendant contacted a hit man to kill her estranged husband, and agreed to pay him $100. Although different prices were discussed, the $100 was agreed to by defendant as “gas money.” The hit man turned out to be an FBI agent, and defendant was prosecuted. At trial, defendant moved for judgment of acquittal and argued that the $100 for “expenses” could not be considered as payment for the murder. The district court denied the motion, defendant was convicted, and she appealed.
* Holding: The elements of § 1958(b)(1) murder for hire are as follows: (1) defendant caused a person to use any facility in interstate commerce; (2) defendant intended that a murder be committed; and (3) the murder was to be committed “as consideration for the promise or agreement to pay anything of pecuniary value.” Regarding the third element, the court first held that it was not clear from the evidence that the $100 was only intended by defendant to be for expenses. Defendant discussed different prices for the murder, and she seemed to believe that calling the money “expenses” would avoid there being a “money paper trail.” Thus, the $100 was not properly termed “expenses.” Second, the court held that it was irrelevant whether the $100 was actually for expenses. The relevant statutory language – “an agreement to pay anything of pecuniary value” – encompassed money provided for “expenses.” Accordingly, defendant’s conviction was affirmed.
• 18 U.S.C. § 1962 - RICO
U.S. v. Johnson, 04-5110 (11/30/05)
> Defendants ran a business wherein they would purchase homes, burn them down, and collect insurance proceeds. Defendants were convicted after trial for violations of the RICO statute. On appeal, defendants challenged the sufficiency of the evidence and claimed that the government had not proven that an enterprise existed and that the enterprise affected interstate commerce.
* Holding: In order to establish an “enterprise,” the evidence must show that a group of persons associated together for a common purpose through proof of an ongoing organization that functions as a continuing unit. The court held that the group had a structural hierarchy, that the common purpose of the group was to make money through insurance and bank fraud, that the members considered themselves to be a business, and that the business had substantial continuity. Regarding interstate commerce, the court held that only a minimal impact on interstate commerce is required to support a RICO conviction. The court found that the interstate nexus element was established by the following: (1) one of the houses purchased and burned down was purchased in an interstate transaction; (2) several of the burned down houses were insured out of state; and (3) various interstate phone calls, faxes, and mailings were conducted. Accordingly, the conviction was affirmed.
• 18 USC § 1962 - RICO Conspiracy
U.S. v. Gardiner, 05-1247 (9/12/06)
> Defendant was a school superintendent who was charged with a RICO conspiracy for awarding building contracts in return for financial kickbacks. Defendant was convicted after jury trial and argued on appeal that the evidence was insufficient to establish that a conspiracy existed or that the conspiracy affected interstate commerce.
* Holding: First, the court held that the evidence was sufficient to establish that a conspiracy existed and that defendant was a member. The court noted that a defendant’s agreement to participate may be inferred from her conduct. In the case, the court ruled that the conspiracy was amply demonstrated by defendant’s acceptance of numerous gifts from a contractor during the time period that defendant utilized his position to continuously award multi-million dollar projects to the contractor. Second, the court held that, in a RICO conspiracy, the government need only prove a de minimis effect on interstate commerce. The court found that the necessary interstate connection was shown by the following: (1) heaters had been installed in the schools by the contractor that were manufactured out of state; and (2) defendant had sponsored out of state trips for members of the conspiracy. Accordingly, the conviction was affirmed.
• 18 USC § 1962 - RICO
U.S. v. Fowler, 04-4472 (8/1/08)
> Defendant was a member of the Outlaws Motorcycle Gang who was charged with RICO violations based on allegations of drug trafficking and interstate travel to commit extortion and murder. Defendant was convicted after trial and argued on appeal that the evidence was insufficient to support the verdict.
* Holding: In order to establish a substantive violation of RICO, the government must prove the following: (1) the existence of an enterprise which affects interstate commerce; (2) the defendant’s association with the enterprise; (3) the defendant’s participation in the conduct of the enterprise’s affairs; and (4) that the participation was through “a pattern of racketeering activity.” The court ruled that the first two elements were met through defendant’s confessed involvement in a murder in another state at the behest of his motorcycle gang. Regarding the third element, the court held that the government must show that defendant was involved in the “operation or management” of the enterprise, meaning that defendant had “some part in directing the enterprise’s affairs.” The court found that the evidence demonstrated that defendant participated in the “operation” of the enterprise.
Regarding the fourth element, the court ruled that the government must prove at least two predicate acts and satisfy the “continuity plus relationship” test. Under this standard, the government must establish (1) a relationship between the predicate acts, and (2) the threat of continued activity. The court found that the relationship between the predicate acts was established because the acts were related to the activities of the enterprise, and the threat of continued activity was satisfied by defendant’s long-term association with the enterprise. Accordingly, defendant’s conviction was affirmed.
• 18 USC § 1962 - RICO/Conspiracy
U.S. v. Driver, 04-4470 (8/1/08)
> Defendant was charged with RICO violations and a conspiracy based on allegations of drug trafficking and traveling in interstate commerce to promote an unlawful activity. The jury convicted defendant of both the RICO and conspiracy violations based on its finding that defendant committed overt acts relating to drug trafficking and a Travel Act violation. Defendant appealed and argued that the evidence was insufficient to support the overt acts.
* Holding: In order to sustain a conviction for a substantive § 1962 RICO violation, the government must show a “pattern of racketeering activity.” This means that the government must establish at least two acts of racketeering. In the case, the court found that the government adequately established the drug trafficking overt act. Regarding a Travel Act violation, the government must prove that the defendant (1) traveled in interstate commerce, (2) with intent to promote any unlawful activity, and (3) that the defendant thereafter thereafter performed an act of promotion or carrying on of any unlawful activity. The court ruled that there was no evidence that defendant traveled in interstate commerce with the purpose of promoting unlawful activity. Accordingly, the substantive RICO conviction was reversed.
Regarding the RICO conspiracy charge, the court held that it is not necessary for the government to prove that a defendant committed two predicate acts or agreed to commit two predicate acts. A RICO conspiracy may be sustained if the defendant joined the conspiracy and agreed that someone would commit two predicate acts. In the case, the court held that the evidence was not sufficient to establish that defendant agreed that anyone would commit a Travel Act violation. Thus, defendant’s conspiracy conviction was vacated.
• 18 U.S.C. § 2113(a) - Bank Robbery
U.S. v. Wesley, 04-1626 (5/18/05)
(See also - amended opinion below)
> Defendant was charged with attempted bank robbery for planning to rob a bank, and casing the bank. Defendant was convicted after jury trial, and appealed arguing that “actual intimidation” was an element of the offense of attempted bank robbery. Defendant also challenged that he had not taken a “substantial step” toward committing the bank robbery as required for an attempt.
* Holding: First, the court held that “actual intimidation” is not an element of attempted bank robbery. All that is criminalized is the “attempted taking by force, violence, or intimidation,” not that actual intimidation occur. This was an open question in the Sixth Circuit and the court’s ruling on the issue is arguably dicta because the court found that defendant had waived the argument by not raising it in his Rule 29 motion (See infra, VIII. Defenses). Second, the court held that, in determining whether a defendant has taken a substantial step toward committing a crime such that he may be convicted of an attempt, a court must consider whether the defendant’s actions “corroborate a clear criminal intent.” In the case, the court considered that defendant had made some substantial planning, including casing the bank, but that he was equivocal as to the time when he might commit the robbery. In the end, the court decided that the case was a very close one and did not rule on the issue because it reversed on an evidentiary issue. (See infra, III. Evidence).
• 18 U.S.C. § 2113(a) - Bank Robbery
U.S. v. Wesley, 04-1626 (8/8/05)
> This is an amended opinion from a previously issued decision on 5/18/05. (See P.V., Issue 2). Defendant was convicted of attempted bank robbery and on appeal, he claimed that the evidence was insufficient because he had not committed a substantial step toward committing the offense, as required for an attempt. The Sixth Circuit panel originally decided that it did not have to reach the issue because it was reversing on an evidentiary issue. In the amended opinion, the court acknowledged that it must decide the issue because it was pertinent to whether retrial was necessary.
* Holding: The court held that defendant’s actions did constitute a substantial step toward committing the offense of bank robbery. The court emphasized that the critical inquiry in the “substantial step” analysis was to determine whether the defendant’s conduct, viewed under an objective standard, corroborated a subjective intent to commit the crime. Defendant had recruited a getaway driver, attempted to recruit another person, and cased the bank, planning a getaway route. The court, in a two judge majority, found such acts sufficient to establish a substantial step, and accordingly ruled that sufficient evidence had supported the conviction. The case was nonetheless remanded based upon the evidentiary issue that was resolved in the court’s original opinion. (See P.V., Issue 2).
• 18 USC § 2113 - Bank Robbery
U.S. v. Sandles, 02-2466 (11/27/06)
> At defendant’s trial for bank robbery, the only competent evidence introduced to establish the bank’s FDIC status was the testimony of a bank security investigator who had seen FDIC stickers at the teller windows. Defendant was convicted and filed an appeal challenging the sufficiency of the evidence regarding the FDIC insurance.
* Holding: The court held that the testimony regarding the FDIC stickers was, in and of itself, insufficient to establish that the bank was federally insured. Because the court found that other evidence regarding the FDIC insurance was improperly admitted (see infra, III. Evidence, and VI. Confrontation Clause), the court held that the conviction had to be reversed. Relying on the Supreme Court’s decision in Lockhart v. Nelson, the court found that the Double Jeopardy Clause did not preclude remanding the case for retrial.
• 18 USC § 2113(e) - Bank Robbery - Death
U.S. v. Parks, 07-3944 (10/16/09)
> Defendant was charged with bank robbery (18 USC § 2113(a)) and killing another during the course of the getaway (18 USC § 2113(e)). During the offense, defendant crashed the getaway car, killing one of his accomplices. The district court determined that no mens rea was required for the § 2113(e) offense, and defendant was convicted after trial. At sentencing, the district court determined that § 2113(e) required a minimum of a life sentence. Defendant appealed.
* Holding: First, a two judge majority held that, pursuant to Sixth Circuit precedent, no mens rea is required for the “killing” element of § 2113(e). Thus, defendant’s conviction was affirmed. Second, a different two judge majority held that the case had to be remanded for resentencing. Although defendant did not object to the sentence in the district court, the court held that the statutory language was ambiguous as to whether a life sentence, or a ten year sentence, was the mandatory minimum term. Accordingly, the case was remanded to the district court for the parties to argue the issue in the first instance.
• 18 USC § 2119 - Carjacking
U.S. v. Fekete, 07-5616 (8/5/08)
> Defendant approached an idling truck, pointed a gun at the stomach of the14-year-old boy waiting in the truck, told him to get out, and stole the truck. Defendant was convicted of carjacking, and he argued on appeal that the government failed to establish sufficient evidence that he intended to cause death or serious bodily harm.
* Holding: The elements of carjacking under § 2119 are that defendant, (1) with intent to cause death or serious bodily injury, (2) took a vehicle, (3) that had been transported in interstate commerce, (4) from the person of another (5) by force, violence, or intimidation. The government may establish the mens rea by showing that defendant had the conditional intent to cause injury if the victim resisted. In a case involving a firearm, the government may show this conditional intent by direct proof that defendant brandished a loaded gun, or by establishing “brandishing-plus.” The latter standard permits the government to utilize circumstantial evidence that the gun was loaded, or that the defendant’s acts or statements suggested that he had the requisite intent. In the case, the court held that defendant’s intent was established by the following: (1) circumstantial evidence that the gun was loaded; (2) defendant knew that the truck was occupied; (3) defendant brandished the gun and pointed it at the victim’s stomach; and (4) a codefendant’s testimony that defendant would “probably” use the gun. Accordingly, under the totality of the circumstances, the court held that the mens rea element was established, and defendant’s conviction was affirmed.
• 18 U.S.C. § 2232 - Destruction of Property
U.S. v. Plavcak, 03-6256 (6/6/05)
> INS agents received a tip from an informant that Defendant was destroying documents relevant to an investigation for alien smuggling. The agents did not have a warrant to search Defendant or the residence, but did have warrants for other locations. The agents dispatched the local police to the residence and the police arrested Defendant. Defendant was charged with destroying property to prevent seizure under § 2232(a). Prior to trial, Defendant moved to dismiss the charge upon the grounds that the government did not have a warrant at the time that he destroyed the documents. The district court granted the motion and the government appealed.
> Holding: The language at issue in § 2232(a) stated that, in order to sustain a conviction, the destruction of property must be in relation to a seizure of evidence by “any person authorized to make searches and seizures.” The government claimed that any law enforcement officer would meet this definition. Defendant argued that only a law enforcement officer with a warrant could meet the definition. The court took a stance between the parties’ positions, and held that “any person authorized to make searches and seizures” means any law enforcement officer with a warrant, or with a valid exception to the warrant requirement, i.e., exigent circumstances. The court ruled that exigent circumstances justified the seizure in the case (see infra, IV. Fourth Amendment), and reversed the district court’s dismissal.
• 18 U.S.C. § 2241(c) - Child Sex Abuse
U.S. v. Kappell, 04-1333 (8/9/05)
> Defendant was convicted of child sex abuse and sentenced to mandatory life imprisonment, pursuant to § 2241(c), because he had a prior state conviction for child sex abuse that would have been a federal offense under § 2241. The district court determined that the prior state offense would have been chargeable under § 2241 by referring to defendant’s plea hearing transcript from state court. In the state plea hearing, defendant, through his attorney, admitted that the facts in the criminal complaint charging the state child sex abuse offense were true. Thus, the district court also relied on the state criminal complaint. Defendant appealed.
* Holding: The court held that, pursuant to the Supreme Court cases Taylor and Shepard, a district court may rely on any facts admitted by a defendant during a plea hearing in order to ascertain whether a prior conviction would have qualified as a child sex abuse offense under federal law. Thus, the court reasoned that the district court was correct in relying on the prior plea hearing transcript and criminal complaint. The court further opined that, in the context of § 2241 prosecutions, a district court may be able to rely on a wider range of materials than anticipated in Taylor and Shepard because of the nature of the more detailed findings required under the child sex abuse statute. Accordingly, the district court’s life sentence was affirmed.
• 18 USC § 2250-SORNA-Failure to Register
U.S. v. Cain, 07-4535 (10/13/09)
> Defendant was convicted in 1998 for a sex offense in Ohio. The government indicted defendant for failing to update his sex offender registration between October 16, 2006, and March 28, 2007. Defendant moved to dismiss the indictment and argued that the Sex Offender Registration and Notification Act (SORNA), enacted into law July 27, 2006, was inapplicable to him. The district court denied the motion, and defendant appealed.
* Holding: When SORNA was enacted, it took immediate effect with regard to anyone convicted of a sex offense after its effective date. With regard to sex offenders convicted prior to SORNA’s enactment, it permitted the Attorney General to promulgate regulations regarding its applicability. On February 28, 2007, the Attorney General issued a regulation specifying that SORNA applied retroactively, but did not comply with the notice and comment publication requirements of the Administrative Procedure Act (APA). The Attorney General indicated in the regulation that it would take comment until April 30, 2007. The court first held that no defendant who was convicted of a sex offense prior to July 27, 2006 could be charged with failure to register before the February 28, 2007 regulation was promulgated because SORNA specifically required the Attorney General to issue regulations covering such persons. Second, the court held that defendant’s indictment had to be dismissed because, even though the indictment specified that the failure to register occurred as late as March 28, 2007, the February 28, 2007 Attorney General regulation failed to allow for notice and comment prior to its promulgation. Thus, the district court’s ruling was reversed and defendant’s conviction vacated.
• 18 USC § 2252(a)(1) - Child Pornography
U.S. v. Chambers, 02-5865 (3/23/06)
> Defendant was charged with distributing child pornography and was convicted after jury trial. On appeal, defendant argued that he did not knowingly send the images in interstate commerce.
* Holding: The elements of distribution of child pornography are that (1) defendant knowingly transported or shipped, (2) in interstate or foreign commerce, (3) any visual depiction involving the use of a minor engaging in sexually explicit conduct. The court held that the scienter element “knowingly” extends to the transportation element, the sexually explicit nature of the material element, and the age of the performers, but not to the interstate nexus requirement. Thus, the court ruled that the government need not prove that defendant knew that the depictions actually traveled in interstate or foreign commerce, and the conviction was affirmed.
• 18 USC 2252A-Prior Offense Enhancement
U.S. v. McGrattan, 06-3043 (10/10/07)
> Defendant was convicted of child pornography and using a computer to induce a minor to engage in sexual activity. At sentencing, the district court determined that defendant had a prior state conviction for misdemeanor child pornography, under the Ohio Statute R.C. § 2907.323(A)(3). The district court concluded that the conviction qualified as a prior child pornography offense under § 2252A(b)(1), and accordingly increased the mandatory minimum penalty from 5 to 15 years. Defendant appealed.
* Holding: Deciding an open question in the Sixth Circuit, the court held that the categorical approach (previously utilized under the ACCA and career offender guideline provision) applied to consideration of prior convictions in the context of § 2252A. Thus, defendant’s state conviction could qualify as a prior child pornography offense if it satisfied the mandates of the Supreme Court’s decisions in Taylor/Shepard. (See P.V., Issue #1). Utilizing this standard, the court held that the state offense did not qualify as a prior child pornography conviction, under § 2252A(b)(1), because the offense, as charged, did not necessarily involve the “lascivious exhibition of the genitals or public area.” Further, the court held that the government’s reliance on an affidavit, attached to a search warrant in the prior state case, to prove the facts supporting the enhancement was prohibited under Shepard. Accordingly, defendant’s sentence was vacated and the case remanded for resentencing.
• 18 USC § 3559(e)-Child Porn-Life Sentence
U.S. v. Moore, 08-5291 (5/27/09)
> Defendant was convicted of distribution of child porn. At sentencing, the district court determined that defendant had multiple prior sex offenses involving minors. Defendant argued that he should be sentenced to a mandatory 35 years under § 2251(e), instead of the mandatory life provision of § 3559(e), because the statutes were in conflict with each other. The district court disagreed and sentenced defendant to life imprisonment. Defendant appealed.
* Holding: Section 2251(e) requires a sentence of 35 years where a defendant is convicted of a “sexual exploitation” offense under § 2251 and the defendant has two prior “convictions” related to the “sexual exploitation of children.” In contrast, § 3559(e) requires a sentence of life where the defendant is convicted of a “federal sex offense” and the defendant has been previously “convicted and sentenced” for a “prior sex offense” against a minor. Thus, the court found that the two statutes technically punished different conduct and were not inconsistent. The court held alternatively that, although the two statutes were passed at the same time, § 3559(e) was the last enacted statute, and thus “the last in order of arrangement controls.” Accordingly, defendant’s sentence was affirmed.
• 18 U.S.C. § 3593(e) - Death Penalty Act
U.S. v. Ostrander, 04-1157 (6/10/05)
> Defendant was convicted of murder with a firearm during the commission of a drug trafficking offense pursuant to 18 U.S.C. § 924(j). During sentencing, the jury recommended life in prison, and the district judge imposed a life sentence. Defendant contended on appeal that the court should have rejected the jury recommendation, and imposed a lower sentence in years.
* Holding: Pursuant to 18 U.S.C. §§ 3593(e) and 3594, a jury’s “recommendation” for a sentence is mandatory on the district court. Thus, the court has no discretion to impose a lower sentence in years when the jury recommends a life sentence.
• 21 USC § 841 - Drug Trafficking
U.S. v. Garrido, 05-6304 (11/9/06)
> Defendant was stopped driving a tractor-trailer with drugs hidden in it. Also found in the truck were digital scales in a duffle bag in the cab, an airline ticket stub in defendant’s name, and a newspaper article discussing Colombian drug trafficking with portions underlined. Further, at trial officers testified that defendant became irate and belligerent when the officers brought in a drug dog and began to search. Defendant ultimately was charged with possession of narcotics with the intent to distribute, was convicted, and argued on appeal that the evidence was insufficient to show his knowledge that the drugs were in the truck and that he intended to distribute them.
* Holding: Although mere proximity to drugs is not sufficient, in and of itself, to establish possession with the intent to distribute, it may be inferred from the surrounding circumstances. In the case, the court held that the presence of the drugs in addition to the other items found in the cab of the truck, together with the testimony about defendant’s demeanor, provided sufficient evidence to support the conviction.
• 21 USC § 841(a) - Drug Trafficking
U.S. v. Gonzalez, 05-4230 (1/9/08)
> Defendant was charged with possession of cocaine with intent to distribute. At trial, the government proved that defendant was the driver and sole occupant of a van containing seven kilos of cocaine. Defendant had three cell phones and a screwdriver, which would have allowed access to the secret compartment where the drugs were stored. Defendant gave inconsistent explanations about the reason for the rental of the van and his hurried travel between Chicago and Buffalo. Defendant was convicted and appealed, arguing that the evidence was insufficient.
* Holding: Construing the evidence in the light most favorable to the government, the court found sufficient evidence to support the verdict. Defendant’s knowledge of the cocaine could be inferred from his possession of the cell phones and screwdriver (tools of the drug trade), the fact of the vehicle rental (used by drug dealers to avoid forfeiture of their own vehicles), the fact that Chicago was a source city for drugs, and defendant’s inconsistent explanation for his travel. Accordingly, the conviction was affirmed.
• 21 USC § 841(a)(1) - Drug Trafficking
U.S. v. Bailey, 06-5576 (1/9/08)
> Defendant was charged with possession of crack cocaine with intent to distribute. At trial the government presented evidence that officers found 15 grams of crack in defendant’s pocket (in two separate bags), and two cell phones. An officer also testified that the drug amount was consistent with drug traffickers in the area, who typically sold units of .1 to .2 grams. Further, the officer testified that drug dealers often carry two cell phones. Defendant was convicted and appealed the sufficiency of the evidence.
* Holding: In order to convict a defendant for possession of crack with intent to distribute, the government must prove that (1) the defendant knowingly (2) possessed a controlled substance (3) with the intent to distribute. The court first found that defendant knowingly possessed the crack. Any inconsistency in the officers’ testimony at trial regarding who found the drugs on defendant dealt only with the officers’ credibility, an issue for which the court defers to the trier of fact. Further, the court held that intent to distribute was established by the testimony that the drug amount was consistent with drug trafficking, and the possession of two cell phones. Accordingly, defendant’s conviction was affirmed.
• 21 U.S.C. § 841(b)(1)(A) - Penalties
U.S. v. Miller, 04-5834 (1/11/06)
> Defendant was convicted of drug trafficking and prior to sentencing the government filed notice, pursuant to 21 U.S.C. § 851, that it intended to enhance defendant’s statutory mandatory minimum from 10 years to 20 years under § 841(b)(1)(A). The enhancement was based upon a prior drug possession offense from Georgia wherein defendant received a sentence of two years probation as a first time drug offender. Under such a sentence, if defendant completed probation successfully, the defendant would be discharged without an adjudication of guilt. The district court found the Georgia case to be a “prior conviction that had become final” and reluctantly imposed the mandatory 20 year sentence. Defendant appealed.
* Holding: The court held that a prior conviction has become final for purposes of § 841(b)(1)(A) at the point at which the conviction is no longer appealable. Because Georgia law required that an appeal be filed within thirty days of the first time drug offender adjudication, the court held that defendant’s conviction had “become final” at that time. Accordingly, the Georgia case was properly considered a prior sentence that had become final, and the sentence enhancement was appropriate.
• 21 USC § 841(b)(1)(B) - Drug Amount
U.S. v. Jackson, 05-6338 (11/30/06)
> Defendant was charged with trafficking in crack cocaine in an amount in excess of five grams. Defendant challenged both at trial and at sentencing that the government failed to reliably establish that the weight of the crack was over five grams. During the trial, the government presented an expert who testified that she weighed six of the eighteen bags of crack that were found, and, using a “statistically accurate mathematical formula,” she extrapolated the total weight of the crack to be 5.6 grams. The jury convicted defendant and at sentencing the district court used the 5.6 gram amount to determine defendant’s sentencing guideline range. Defendant appealed and challenged the sufficiency of the evidence.
* Holding: The court held that the drug weight testimony was sufficient to support the jury verdict where (1) a proper random testing method was employed, (2) the chemical testing method conformed with accepted methodology, (3) the tested and untested samples were sufficiently similar in size, and (4) all of the samples were contemporaneously seized at the search scene. Accordingly, the court affirmed the jury verdict and found that the sentencing determination was supported by sufficient indicia of reliability.
• 21 USC § 841(b) - Sentence Enhancement
U.S. v. Gonzalez, 05-4230 (1/9/08)
> Defendant was charged with possession of seven kilograms of cocaine with intent to distribute. At sentencing, the district court imposed a mandatory life sentence, pursuant to § 841(b)(1)(A), based upon defendant’s two prior drug offenses. Defendant argued on appeal that the two prior offenses should not have counted separately for purposes of the sentence enhancement.
* Holding: For purposes of § 841(b), the determination of whether two prior offenses count separately is based on whether “they represent multiple criminal episodes that were distinct in time, as opposed to multiple convictions arising out of a single criminal episode.” An “episode” is “an incident that is part of a series, but forms a separate unit within the whole,” and is “a punctuated occurrence with limited duration.” In the case, the court held that defendant’s two prior drug convictions rose out of events separated by several days, that they involved selling cocaine to different individuals, and that, although they were part of a larger related course of events, they were punctuated single occurrences with limited duration. Further, the sentencing court on the prior offenses treated the two offenses separately. Thus, the prior offenses were properly treated as separate qualifying offenses, and defendant’s sentence was affirmed.
• 21 USC § 841(b) - Penalty Provision
U.S. v. Higgins, 08-5114 (2/26/09)
> Defendant was charged in an indictment with possession of crack cocaine with intent to distribute, and other narcotic and firearm offenses. The government filed an enhancement subjecting defendant to mandatory life imprisonment. After trial, the jury found defendant guilty of the crack charge, but the special verdict form indicated that defendant “possessed 531.8 grams of cocaine base.” The district court sentenced defendant to life. Defendant appealed and argued that the sentence violated Apprendi because the jury verdict did not support the conclusion that the substance was crack cocaine.
* Holding: The court held that, in order to obtain the enhanced penalties for crack cocaine under § 841(b), the government must allege and prove that the drug involved is actually crack cocaine, as opposed to cocaine base. Relying on precedent from the D.C. Circuit, the court ruled that cocaine base and cocaine actually “carry the same chemical meaning,” and thus, the government must specifically show that the substance involved is crack cocaine. In the case, the court held that count 1 of the indictment defined the phrase “cocaine base” to mean “crack cocaine,” and that the jury convicted defendant of count 1. Thus, the court concluded that the jury necessarily found defendant guilty of possessing crack cocaine, even though the special instruction said only cocaine base. Accordingly, defendant’s sentence was affirmed.
• 21 USC § 841 - Drug Amount
U.S. v. Garner, 05-4215 (6/20/07)
> Defendant was convicted of participating in a cocaine conspiracy and the jury verdict forms contained both a general verdict and a special verdict form for defendant and each codefendant. On defendant’s special verdict form, the jury indicated that more than 500 grams, but less than 5 kilograms were involved. Because the cocaine amount was more than 500 grams and the government filed an enhancement under § 851, defendant was sentenced to a mandatory ten years. The case was affirmed on appeal, but remanded to the district court for resentencing by the Supreme Court after Booker. On remand, the district court imposed a sentence of 96 months and both defendant and the government appealed.
* Holding: The court held that the district court was required to impose the ten year mandatory sentence. Even though the language of the special jury verdict form for defendant said that the jury found that the “amount of cocaine involved in the conspiracy was 500 grams but less than 5 kilograms,” the court held that the fact that there was a separate special jury verdict for each defendant clearly demonstrated that the jury found that defendant himself was responsible for conspiring to distribute this amount. Thus, the ten year sentence was required by the jury verdict, and the case was accordingly remanded for resentencing.
• 21 USC § 841(a) - Drug Trafficking
U.S. v. McGee, 06-2158 (6/24/08)
> Officers arranged a drug purchase with defendant through a confidential informant. Defendant arrived at the location in a vehicle with another person, and upon the officers’ approach of the car, defendant made a furtive gesture toward the car’s console. Officers found crack in the console and, while defendant was being arrested, his cell phone rang and the confidential informant started speaking to him over the speaker phone. Defendant was convicted after trial for possession of crack with intent to distribute, and he appealed the sufficiency of the evidence.
* Holding: The elements of the offense are that defendant (1) knowingly, (2) possessed a controlled substance, (3) with intent to distribute. The court held that the evidence was sufficient to establish defendant’s possession with intent to distribute based upon his phone calls with the informant, his arrival at the scene, his furtive gesture toward the location where the crack was found, and the incoming call from the informant. Thus, defendant’s conviction was affirmed.
• 21 USC § 841/§ 851 - Enhancement
U.S. v. Watford, 05-6184 (11/14/06)
> Prior to defendant’s trial for drug trafficking, the government filed a notice, pursuant to §§ 841 and 851, enhancing defendant’s sentence from a mandatory 10 years to a mandatory 20 years based upon his prior conviction for a drug offense. On appeal, defendant argued that the enhancement provision constituted an unconstitutional separation of powers because it allowed the Executive Branch (U.S. Attorney) to perform a legislative function by defining the sentence that defendant would face for a crime.
* Holding: Relying on prior precedent, the court held that the § 851 enhancement does not unconstitutionally vest legislative power in the U.S. Attorney.
• 21 USC § 841 - § 851 Enhancement
U.S. v. Pritchett, 06-3359 (8/13/07)
> Defendant entered into an agreement with the government wherein he agreed to plead guilty to several counts of distribution of cocaine base. In the plea agreement, defendant agreed that his sentencing range would be increased, pursuant to § 851, from 5-40 years to 10 years-life in prison because of a prior drug conviction. Defendant acknowledged the agreement at the plea hearing, and stated that he understood that he could not get less than 10 years because of the enhancement. After the plea hearing was concluded, later the same day, the government filed the required Information under § 851. Defendant argued at sentencing that the 10 year mandatory sentence should not apply because the government had not filed the § 851 enhancement prior to the entry of the guilty plea, as required by the statute. The district court rejected defendant’s argument and sentenced defendant to 10 years. Defendant appealed and argued that the § 851 enhancement was jurisdictional, and that it could not be applied.
* Holding: Answering an open question in the Sixth Circuit, the court first held that the requirement of filing an Information before a plea or trial was not a jurisdictional requirement in § 851. Second, the court held that the government had satisfied the notice requirements of the statute. Given that defendant had actual notice that the § 851 enhancement would be imposed, as shown by the plea agreement and plea colloquy, the filing of the Information shortly after the plea hearing satisfied § 851. Thus, the sentence was affirmed.
• 21 USC § 841/846 - § 851 Enhancement
U.S. v. Craft, 04-4129 (7/20/07)
> Defendant was charged with participating in a conspiracy to distribute crack cocaine and prior to trial the government filed notice of a sentencing enhancement based upon § 851. Defendant was convicted after trial and at the sentencing hearing the district court failed to engage in the colloquy required by § 851(b) to determine if defendant contested the conviction underlying the enhancement. Defendant was then sentenced to the mandatory 20 years required by the enhancement. Defendant appealed.
* Holding: Because defendant did not object to the failure of the district court to conduct the colloquy, the court applied plain error analysis. The court held that, even though no § 851(b) colloquy was conducted, defendant was afforded adequate opportunity to object to the conviction during the PSI and sentencing process. Further, because the prior conviction was over five years old, § 851(e) precluded defendant from challenging the validity of the conviction. Accordingly, the court found no plain error and affirmed defendant’s sentence.
• 21 USC§841/§851-Notice of Enhancement
U.S. v. Gonzalez, 05-4230 (1/9/08)
> Defendant was charged with possession of seven kilograms of cocaine with intent to distribute. On several occasions during pretrial proceedings, defendant received actual notice from the government that it intended to seek a mandatory life sentence because defendant had two prior drug offenses on his record. The government did not actually file the § 851 notice, however, until the second day of jury selection, but before the jury was impaneled. Defendant was convicted and the district court imposed the mandatory life sentence. Defendant failed to object to the belated § 851 notice, but raised the issue on appeal.
* Holding: Applying plain error review, the court held that any error in the belated filing of the § 851 notice was remedied by the fact that defendant received actual notice of the sentence enhancement months before trial. The court noted that it would have so ruled even had it applied de novo review to the case. To hold otherwise, the court stated, would be to “exalt form over substance.” Thus, the sentence was affirmed.
• 21 USC§841/§851-Notice of Enhancement
U.S. v. Odeneal, 06-5885 (2/22/08)
> Defendant was charged with drug trafficking offenses and prior to trial the government filed a document, pursuant to § 851, notifying defendant that it intended to enhance defendant’s sentence to mandatory life based upon his two prior drug offenses. One of the offenses occurred during the time period of the drug conspiracy involved in the federal charge. Defendant was convicted and appealed his mandatory life sentence, raising multiple issues regarding the § 851 notice.
* Holding: First, the court found no error in the fact that the § 851 notice was not titled an “information,” as required by the statute. Second, the court held that both of defendants prior convictions counted as “prior” felonies for purposes of § 851, even though one occurred during the course of the charged conspiracy. The court found that the drug conviction in question constituted a “separate criminal episode” within the confines of the conspiracy period. The court ruled: “the events underlying the . . . conviction took place more than three years before the conclusion of the conspiracy, and the conviction was entered more than one year before the conclusion of the conspiracy. [Defendant] had an opportunity after each conviction to cease his criminal activity, but he chose to continue.” Accordingly, the court ruled that the prior convictions could count toward the mandatory life enhancement.
• 21 USC§841/§851-Notice of Enhancement
U.S. v. Pruitt, 06-6002 (10/21/08)
> Defendant was charged with manufacturing marijuana. At his plea hearing, defendant was presented with an information containing a notice of sentence enhancement, pursuant to 21 USC § 851(a). Defendant pled guilty, but the information was not actually filed until later the same day. At sentencing, the district court applied the § 851 enhancement, and increased defendant’s statutory sentencing range to 10 years to life. Defendant argued on appeal that the § 851 enhancement should not apply to his sentence because it was not “filed” before he pled guilty.
* Holding: Section 851(a) requires that an information enhancing a defendant’s sentence be filed before entry of plea of guilty or trial. The court found that defendant had actual notice of the § 851 enhancement prior to entering his plea of guilty and thus had “reasonable notice and an opportunity to be heard regarding the possibility of an enhanced sentence.” Accordingly, the court held that it was immaterial that the information was not actually filed by the clerk until after the plea hearing.
• 21 USC§841/851 - Notice of Enhancement
U.S. v. Boudreau, 07-2143 (4/23/09)
> Defendant was charged with participating in a drug conspiracy and, on the day of trial, the prosecutor served a copy of a § 851 enhancement on defendant in open court. Defendant’s counsel acknowledged receipt of the document. The prosecutor stated that he intended to file it, although the enhancement never appeared on the court’s docket. After defendant’s sentencing, the case was remanded based on the intervening decision in Booker. Defendant argued at resentencing that the district court was not bound by the 20 year mandatory minimum, which was the subject of the § 851 enhancement, because it was never filed on the court’s docket. The district court heard evidence from the prosecutor and the courtroom deputy to the effect that the enhancement was delivered to the deputy in court, but that it never ended up on the court docket. The court indicated that this was consistent with its recollection. Defendant was sentenced to the mandatory 20 years, and he appealed.
* Holding: Relying on its prior decision in Pritchett (See P.V. Issue #15), the court held that all that is required under § 851 is that defendant receive reasonable notice of the enhancement and an opportunity to be heard. The in-court service of the enhancement prior to trial satisfied this requirement, and defendant’s sentence was accordingly affirmed.
• 21 USC § 843(a)(6) - Precursor to Meth
U.S. v. Roberge, 06-5704 (5/20/09)
> Defendant was charged with intentionally possessing equipment and chemicals that could be used to make meth. At trial, the government introduced (1) testimony from defendant’s daughter that suggested he was making meth, (2) defendant’s confession to a cell mate that he made meth, and (3) evidence that equipment and chemicals that were found in defendant’s basement. Defendant was convicted and failed to renew his Rule 29 at the close of the evidence. Defendant appealed.
* Holding: The court held that the evidence was sufficient to support the verdict. The court ruled that the government need not prove that a defendant possessed all of the necessary equipment and chemicals for meth production, just that the defendant possessed any such equipment or chemicals with the intent to manufacture. Accordingly, the court found no manifest miscarriage of justice and affirmed the conviction.
• 21 U.S.C. § 846 - Drug Conspiracy
U.S. v. Martinez, 03-3833 (11/17/05)
> Defendants were convicted of a drug conspiracy and on appeal challenged the sufficiency of the evidence to establish that they actually participated in the conspiracy.
* Holding: To establish a drug conspiracy, the government must prove (1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy. In a drug distribution “chain” conspiracy, the government need only prove that a defendant realized that she was participating in a joint venture, even if she did not know the identities of all the members and was not involved in all activities. In the case, the court found that the defendants were not merely in buyer-seller relationships with conspirators, but were knowing participants in the conspiracy. Further, the court noted that the district court had correctly instructed the jury that a mere buyer-seller relationship was insufficient for a conspiracy conviction. Accordingly, the convictions were affirmed.
• 21 USC § 846 - Drug Conspiracy
U.S. v. Lopez-Medina, 05-5891 (8/25/06)
> Defendant was charged with drug conspiracy and convicted after jury trial. At the close of the government’s case, defendant moved for dismissal pursuant to Fed. R. Crim. P. 29. The district court denied the motion and defendant appealed, challenging the sufficiency of the evidence.
* Holding: In order to establish a drug conspiracy under § 846, the government must show (1) an agreement regarding the distribution of a specific narcotic, (2) the defendant’s knowledge and intent to join the conspiracy, and (3) defendant’s participation in the conspiracy. In the case, the court found that sufficient circumstantial evidence of drug activity was obtained from defendant’s residence at the time of the search by DEA agents. Accordingly, even though the case was reversed based upon evidentiary issues (See infra), the court found that the district court’s denial of the Rule 29 motion was proper.
• 21 USC § 846 - Conspiracy
U.S. v. Caver, 05-3295 (12/4/06)
> Defendants were charged in a narcotics conspiracy. At trial, the government presented numerous witnesses to show that defendants were involved in a “chain” conspiracy where they would sell large quantities of drugs to individuals who would then resell the drugs to others. Defendants were convicted and appealed.
* Holding: In order to establish a § 844 conspiracy, the government must prove (1) an agreement to violate the drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy. The agreement need not be express, but may be a tacit or mutual understanding. Once the existence of the conspiracy is established, the evidence linking an individual defendant to the conspiracy need only be slight. A mere buyer-seller arrangement is insufficient to establish a conspiracy. In the case, the court held that adequate evidence had been introduced to show a chain conspiracy whereby defendants would sell large quantities of drugs on repeated occasions with the understanding that the drugs were being redistributed in the community. Further, sufficient evidence was presented to show each defendant’s participation in the conspiracy. Thus, the conviction was affirmed.
• 21 USC § 846 - Conspiracy
U.S. v. Wheaton, 06-4080 (2/19/08)
> Defendant was charged in a drug conspiracy and convicted after a jury trial. Defendant argued on appeal that the evidence was insufficient to support the verdict.
* Holding: First, the court held that defendant’s attacks on the believability of two codefendants’ testimony were not proper grounds for reversal. “Attacks on witness credibility are simple challenges to the quality of the government’s evidence and not the sufficiency of the evidence.” Second, the court held that there was sufficient evidence to prove that defendant was the California drug supplier for the conspiracy. The government made a sufficient connection to show that he was “Kev,” the man with whom the codefendants dealt, and that defendant was a participant in the conspiracy. The court emphasized that proof in a conspiracy case requires only that two or more people agreed to violate narcotics laws and that defendant knowingly joined the conspiracy. No proof is required that defendant himself sold cocaine. Accordingly, defendant’s conviction was affirmed.
• 21 USC § 846 - Drug Conspiracy
U.S. v. Davis, 05-2465 (11/13/08)
> A third party arranged through defendant’s cousin to purchase crack from defendant. The cousin handled almost all of the communication between the third party and defendant as far as negotiating the deal and arranging the meeting. The cousin was paid $50 by the third party for arranging the transaction. Defendant was convicted for a drug conspiracy and argued on appeal that the evidence was insufficient to support the conviction.
* Holding: In order to establish a drug conspiracy, the government must prove (1) an agreement to distribute drugs, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy. The court held that the evidence was sufficient for the jury to infer that the cousin was participating in a conspiracy with defendant, as opposed to being “merely associated” with the drug sale. The cousin was the person primarily responsible for arranging the transaction, and he did so with some expectation of remuneration. Accordingly, the court held that the evidence was sufficient to support the verdict.
• 21 USC § 846 - Drug Conspiracy
U.S. v. Robinson, 07-5474 (11/25/08)
> Defendant was charged with participating in a conspiracy involving 5 or more kilograms of cocaine. During trial, the district court instructed the jury that it could find defendant guilty if it believed that defendant knowingly participated in the conspiracy, and the conspiracy (as opposed to defendant) was responsible for distributing five or more kilograms of cocaine. Defendant was convicted and, because he had two prior drug felonies on his record, was sentenced to mandatory life in prison. Defendant appealed.
* Holding: The court held that, for purposes of the threshold drug amounts for a conspiracy conviction under § 846, a defendant is responsible not only for the amounts he or she personally distributed, but is also attributable for the amount distributed by the whole conspiracy, as charged in the indictment. Thus, the district court properly instructed the jury that the drug amount attributable to defendant was the amount distributed by the conspiracy. Accordingly, defendant’s sentence was affirmed.
• 21 USC § 846 - Drug Conspiracy
U.S. v. Gunter, 07-5277 (1/8/09)
> Defendant was charged with a cocaine conspiracy and at trial the government proved that defendant repeatedly purchased large quantities of cocaine from another individual. Defendant argued that he was involved in a buyer-seller relationship, but not a conspiracy. Defendant was convicted and he appealed.
* Holding: In order to prove a drug conspiracy, the government must prove (1) an agreement to violate the drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation. In the case, the court held that the facts demonstrated repeated transactions on defendant’s part, and that the transactions involved a large volume of cocaine. These facts permitted the inference of more than a buyer-seller relationship, and the court accordingly found the evidence sufficient to support the conspiracy conviction.
• 21 USC § 846 - Conspiracy - Drug Amount
U.S. v. Cox, 07-3886 (5/21/09)
> Defendant was charged with conspiracy to distribute cocaine based on his efforts to collect a drug debt from a drug dealer’s girlfriend, who was working as an informant. Defendant’s case was severed from the drug dealer’s and defendant proceeded to a bench trial. The evidence adduced at trial showed that defendant met the informant at a parking lot and got into the car with her. When the informant asked why the drug dealer had not shown up himself to collect the debt, defendant said it would be okay, and handed her the phone to talk to the drug dealer. The agents moved in and arrested defendant, and the drug dealer called his phone five additional times. Defendant was convicted. At sentencing, the district court found that defendant was only responsible for two kilos, the amount pertaining to the drug debt, and not the entire five kilos listed in the conspiracy count in the indictment. Nonetheless, the court indicated that is was constrained by the five kilo listed in the indictment, and accordingly sentenced defendant to a mandatory 20 years. Defendant appealed.
* Holding: The court found that the evidence was sufficient to support the verdict. Defendant’s actions in arriving to collect the debt, and speaking with the drug dealer on the phone were adequate evidence of defendant’s involvement in the conspiracy. Accordingly, defendant’s conviction was affirmed.
Additionally, the court held that the district court was not required to impose the 20 year sentence. The court ruled that the penalty provisions of § 841(b) are not elements of the offense that must be pled and proven to the jury. Thus, “it is unnecessary for the government to allege drug quantity in an indictment, and even when the government does so, the quantity alleged does not dictate the mandatory minimum.” The only caveat to this rule is where the drug quantity would increase the penalty for the crime beyond the prescribed statutory maximum. In such a case, the drug amount must be submitted and proven to the jury. Accordingly, defendant’s sentence was vacated.
• 21 USC § 846 - Drug Conspiracy
U.S. v. Dietz, 05-3410 (8/20/09)
> Defendant was charged in a major drug conspiracy involving the Outlaw Motorcycle Club. At trial, defendant argued that his prior 1991 possession of cocaine was not properly considered an overt act in furtherance of the conspiracy because it was outside the time parameter of the conspiracy, and that his drug sales throughout the 1990s were buyer-seller transactions and not evidence of a conspiracy. Defendant was convicted and he appealed.
* Holding: First, the court held that § 846 does not require proof of defendant’s commission of an overt act, so defendant’s argument was irrelevant. Further, the court noted that there was significant evidence that the 1991 drug possession was part of the conspiracy. Second, the court found substantial evidence that defendant was involved in a conspiracy and not mere buyer-seller relationships. In making this analysis, the court considers (1) the length of the relationships, (2) the established methods of payment, (3) the extent to which the transactions are standardized, and (4) the level of mutual trust between the buyers and sellers. Although the court noted that a conspiracy cannot be proven through a defendant’s relationship with the cooperating informant, the court found significant evidence that defendant’s relationships with others were indicative of a conspiracy. Accordingly, defendant’s conviction was affirmed.
• 26 USC § 5845(b) - Machine Guns
U.S. v. One TRW, M-14, 04-5082 (3/20/06)
> Alverson owned a firearm that was marketed as the MKS M-14, a gun made from cut-up M-14 receivers. ATF seized the gun upon the belief that it qualified as a machine gun under § 5845(b) and because Alverson had failed to register it as such. ATF instigated forfeiture proceedings against the gun, which Alverson opposed. The district court granted summary judgment to the government, and Alverson appealed.
* Holding: Pursuant to § 5845(b), a gun qualifies as a machine gun if it is designed to shoot automatically, or could be “readily restored to shoot” automatically. In considering whether a gun could be “readily restored” for automatic fire, the court must consider the following: (1) time to restore; (2) ease; (3) expertise required; (4) necessary equipment; (5) availability of parts; (6) expense; (7) scope of change of firearm; and (8) feasibility of restoration. The court noted that Alverson’s expert and the government’s expert differed in the amount of time and difficulty that would be required to restore the weapon, but even under Alverson’s theory, the gun would only require six hours of work in order for it to shoot automatically. Under these circumstances, the court found that the gun was properly characterized as a machine gun and the summary judgment was affirmed.
• 26 USC § 5845(b) - Machine Guns
U.S. v. Carter, 04-4304 (10/17/06)
> Defendant was charged with possession of the receiver of a machine gun and parts designed to convert a weapon into a machine gun. The indictment did not allege that defendant possessed a trigger mechanism for the machine gun, and defendant accordingly moved to dismiss the indictment for failure to state an offense. At the motion hearing, an expert testified that the receiver could be fired as a machine gun by using his finger as the trigger mechanism. The district court denied the motion, defendant was convicted at trial, and defendant appealed.
* Holding: The court found that the indictment was sufficient to state an offense as required by Fed. R. Crim. P. 7(c)(1). In so holding, the court ruled that § 5845(b) actually contains four separate definitions of a machine gun. The court held that the second definition, a frame or receiver with parts designed to convert to a machine gun, did not require proof of the possession of a trigger. Thus, the indictment was sufficient to allege an offense. Further, the court found that the statutory definition was not unconstitutionally vague. Accordingly, the conviction was affirmed.
•26 USC § 7206(1)-Tax-Good Faith/Wilfulness
U.S. v. Aaron, 08-2185 (12/28/09)
> Defendant was charged with making and subscribing false documents based on his repeatedly providing false social security numbers on his IRS Currency Transaction Reports at casinos. At trial, defendant testified that he knew that he was required by law to provide his social security number, but that he provided a fake number in order to avoid the risk of identity theft. Defendant requested a jury instruction on good faith which the district court rejected. Defendant was convicted and argued on appeal that the district court should have provided a good faith instruction. Defendant further claimed, for the first time on appeal, that the district court erred by failing to define the term “wilfulness.”
* Holding: A defendant in a tax prosecution may be entitled to an instruction regarding the good-faith defense where the defendant has demonstrated a good faith belief that he or she was not violating the law. The court held that the good faith defense does not extend to a good faith motive for violating the law. It was clear in the case that defendant understood the law and its requirements, but that he chose to violate it based on a good faith motive. Accordingly, no good faith instruction was required.
Additionally, the court held that, although “it is good practice to include a definition of wilfulness when the word is included in the statute or elements of the offense,” the court found no plain error in the district court’s failure to provide such an instruction. The court found that defendant could not show how the error affected his fundamental rights. Thus, defendant’s conviction was affirmed.
• 26 USC § 7206(2) - Aid False Tax Returns
U.S. v. Goosby, 07-5229 (4/24/08)
> Defendant was charged with 30 counts of aiding in the preparation of false tax returns. At trial, the government presented evidence to show that defendant ran a business whereby he would prepare tax returns for numerous tax payers, and claim false deductions on their behalf and without their knowledge. Defendant was convicted after trial and he argued on appeal that the evidence was insufficient to support the conviction.
* Holding: An offense under § 7206(2) has three elements: (1) defendant aided in the preparation and presentation of a tax return; (2) the return was fraudulent or false as to a material matter; and (3) defendant acted willfully. In the case, the court held that the false deductions claimed in the returns were material because numerous taxpayers testified that they were audited as a result of the returns and had to pay thousands of dollars in back taxes. Further, the court found that the evidence of willfulness was supported by taxpayer testimony showing that defendant assisted in preparing tax returns, the deductions claimed were false and without the taxpayers’ knowledge, and there was a high degree of similarity in the false deductions claimed by the defendant on the various returns. Accordingly, the court ruled that sufficient evidence supported the convictions.
• 29 USC § 186 - Prohibited Payments
U.S. v. Mabry, 06-2324 (3/3/08)
> Defendants were executive officers of the carpenters’ union and they contracted with union employees to perform work on a home. Defendants refused to pay the full invoice price, but instead negotiated a reduced price with the employees that was below the employees’ cost in performing the work. Defendants were subsequently prosecuted, pursuant to § 186, for soliciting and obtaining a discount from a union contractor. Upon being convicted, defendants argued on appeal that (1) the negotiated price constituted a “settlement,” which provided an exemption to criminal liability, and (2) the evidence that defendants received a reduction in price was insufficient to support the verdict.
* Holding: First, the court held that the reduced price did not constitute a “settlement” under § 186. Pursuant to § 186(c)(2), payments between employers and union officials are exempt from criminal prosecution if the payments are in “settlement” of a dispute. The court ruled that, considering the language of the statute and the purpose of the statutory scheme, the term “settlement” could not be construed so broadly as to include the “informal resolution” reached between defendants and the employees. Accordingly, the exemption did not apply.
Second, the court held that the evidence was sufficient to support the verdict. Although defendants offered expert testimony regarding the prevailing market rates for the services performed by the employees, the evidence showed that the price ultimately paid by defendants was below the union employees’ costs for the services. Thus, a jury could reasonably find that a contractor would not perform work for less than its cost. Accordingly, defendant’s conviction was affirmed.
• 42 U.S.C. § 1973i - Vote Buying
U.S. v. Slone, 03-6427 (6/3/05)
> Defendant was convicted of illegal vote buying under § 1973i for paying seven voters fifty dollars each to buy their votes in a local election. A candidate for United States Senate was on the same ballot, although no votes were purchased regarding the senate race. On appeal, defendant challenged the conviction upon the grounds that a defendant cannot be convicted under the vote buying statute where the votes bought were for local, not federal, candidates.
* Holding: The court held that the term “election” in the vote buying statute refers to the casting of a whole ballot, regardless of how many individual races are included. Thus, if federal candidates are on the same ballot as local candidates, the election is covered by § 1973i, even if no votes are actually purchased for the federal candidates. Thus, the conviction was affirmed.
• Aiding and Abetting
Brown v. Palmer, 05-1320 (3/14/06)
> Three men were at a gas station when they observed a man walk out of the store and get into a car with defendant. Defendant then pulled the car up to a gas pump and the man got out, took out a gun, and stole the three men’s car at gun point. The three men then attacked defendant, took his car and drove it to the police station for help. Defendant was charged in state court with aiding and abetting a robbery and he claimed that he did not know the gunman until moments before the robbery. At trial, the state proved that defendant did the following: (1) was present during the robbery, (2) was in the car with the perpetrator, (3) stared at the victims during the robbery, (4) never got gas when he pulled up to the pump, (5) attempted to flee when the robber took off in the stolen car, and (6) failed to contact the police to get his own car back after it was taken by the three men. Defendant was convicted, appealed through the state system, and then filed a federal habeas petition. The district court found insufficient evidence for the conviction and granted the petition. The state appealed.
* Holding: The court held that the evidence was insufficient to prove that defendant had aided and abetted the robber under Michigan law. There was no affirmative evidence that defendant did anything to encourage the robbery and the court ruled that merely being present with the perpetrator was insufficient. The court emphasized that defendant’s actions during and after the robbery were consistent with defendant’s desire to avoid confrontation. Thus, the district court ruling reversing the conviction was affirmed.