The Eleventh Circuit Court of Appeals in United States v, Rozier upheld laws charging possession of a weapon by a convicted felon against Second Amendment claims.

Eenie Austin, the mother of Christopher Rozier’s child arrived at his house in time to see his current girl friend holding a butcher knife to Rozier’s neck. Austin joined the fray and threw a concrete statute, hitting him in the face. At this point he pulled out a gun to protect himself. The decision does not say who called the police but they arrived later in the day with a search warrant. They searched the residence and found crack cocaine, marijuana, and ammunition. A gun was found buried in the yard.

Rozier was charged with possession of a gun and ammunition by a convicted felon in violation of 18 United States Code Section 922(g)(1) and since he had three major prior drug convictions he was sentenced under the Armed Career Criminal Act to 210 months in prison.

In District of Columbia v. Heller the Supreme Court held that “the Second Amendment conferred an individual right to keep and bear arms.” But Heller also said, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . .” Based on this language the Eleventh Circuit found that certain classifications of people, include convicted felons may be denied Second Amendment rights.

The Eighth Circuit Court of Appeals upheld the conviction and 180 month sentence for possession of a firearm by a convicted felon in United States v, Kelley

Kelley was convicted after a bench trial in the District Court for the Western District of Missouri of possession of a firearm by a convicted felon. Two burglars were interviewed by the Greene County Sheriff’s Department. They admitted being involved in a string of burglaries and said that stolen guns could be found at the residence of Karlin Kelley. They called the residence and spoke to Kelley’s sister Tanya. Tanya told the burglars and Sergeant Stanley that the weapons were indeed at the house and she invited the officer to come over and get them. When Stanley and a number of other officers arrived Tanya invited them into the house and Kelley gave them written permission to search the house.

Kelley told the officers that the weapons were in a shed behind the house and he showed them the way to the shed.They seized the weapons. He was interviewed on at least two occasions and read his Miranda rights. He told the officers that the weapons were brought to his house and he agreed to keep them until sometime when they could go hunting without the kids there. Since he was a convicted felon and not allowed to possess guns in his house he put the guns in the shed.

On appeal, two issues were raised, the legality of the search and the denial of Kelley’s motion for judgment of acquittal at trial.

As to the motion to suppress, the court found that Kelley gave valid consent to the search. Kelley argued that his consent was a fruit of Tanya’s permission to enter the house and that she was coerced into doing so by the officer’s statements that he did not want another Waco, that he did not want anyone to get hurt, and that he did not want anyone else to raise her children. But the court found that there was sufficient evidence that the consent was given voluntarily. Tanya testified at the suppression hearing that she would have let the officers in without the threats. Therefore the court found that the permission was voluntary.

Furthermore the court found that there was sufficient evidence that Kelley knowing possesed the firearm. Possession can be either constructive or actual. “[C]onstructive possession requires knowledge of an object, the ability to control it, and the intent to do so.” The court found that there was sufficient evidence of constructive possession. Kelly admitted that he knew the guns were in the shed. In fact he moved them from the house to the shed. Furthermore he planned to go hunting with them.

The lesson for Karlin Kelley, and everyone else, particularly if you are suspected of a crime is not to talk to the police and not to give consent to any search. Anything you say MAY and WILL be used against you.

But, 180 months seem like a long time to spend in prison for holding on to the guns. The court said it reviewed the records and found the sentence to be legal.

Myron Robinson, like many other people ignored his lawyer’s advice and spoke to the police, believing that he could talk himself out of trouble. But like most other people in his position he talked himself into a conviction and a stay in the Federal pen. Even after the police gave him the Miranda warnings he continued to talk and the more he talked the more trouble he was in. Now Myron thought he was smart. After all he was friends with an FBI agent and he was friends with the US Attorney. At least he thought they were his friends. He had been a cooperating witness on a case. He even invited agents over to his mother’s house. As a result he thought he could talk himself out of trouble and that he was immune from arrest. WRONG!!! They arrested him and used his statement against him to send him to the pen.

On appeal he asked the appellate court to find that his statement should have been excluded and that his conviction reversed. WRONG!!! The question was who initiated the interrogation. If the FBI initiated the interrogation after being told by Robinson’s lawyer that he asserted his right to remain silent the statement would be excluded, If Robinson initiated the conversation in which he gave the statement then the statement would be admissible.

The Seventh Circuit Court of Appeals found that the question of who initiated the conversation was a factual question and therefore it was reviewed for clear error. It came down to whether the court believed Robinson or whether the court believed the agents. “Where a factual finding rests on the district court’s credibility determination, it ‘is entitled to great deference and can virtually never be clear error’.”

Thus Myron’s big mouth earned him ten years in the Federal pen on gun charges. MAYBE next time he will listen to his lawyer.

The Eighth Circuit Court of Appeals found that reasonable suspicion existed to pat down Deonta Lemont Stigler after the police were called to a neighborhood known for drug sales regarding a fight between three African American men.

When Officers Michael Dixson and Ryan Doty arrived on the scene they saw two African American men on the sidewalk. One of the men, Stigler ran across the street and then started walking. Dixson asked Stigler about a fight. Stigler, according to the decision, threw a plastic baggie, later determined to have marijuana in it on the ground. Dixson then initiated a Terry stop and a pat search. A Terry stop requires that an officer have a reasonable suspicion that a crime occurred and that the person stopped has a connection to the crime. It can only last long enough for the officer to investigate the crime. A pat search can occur simultaneously to the stop as long as the police officer has a reasonable suspicion that the person stopped has a weapon. During the pat search a gun was found.

Stigler moved to suppress the gun on the basis that the police did not have a reasonable suspicion that he was involved in a crime or that he had a weapon. After the suppression motion was denied Stigler plead guilty, reserving the right to appeal the denial of the suppression motion.

On appeal the court found that based upon the “totality of the circumstances” the Terry stop and the pat search were legal. The court based its decision on the throwing down of the baggie and Stigler’s startled demeanor, along with Stigler’s initial running away and being in an area known for drug transactions. The pat down according to the court was justified by the report of a fight and fear that a weapon may have been involved.

My question is why did Stigler throw the baggie with marijuana on the ground or did he actually throw the baggie down? There was no trial so the “facts” before the trial and appellate courts did not include a trial transcript. Most likely the Eighth Circuit was working with the transcript of a hearing held on the defendant’s motion to suppress the evidence. Its possible that the defendant did not testify at the hearing. In many cases the defense attorney and the defendant decide that the defendant should not testify at a motion to suppress evidence since the defendant’s testimony at the hearing can be used by the district attorney for cross examination at trial. The defendant would not want to answer questions such as what was in the baggie or why were you carrying a gun? If so the only evidence was the police officer’s testimony. But even if the defendant testified at the hearing the court would give additional weight to the officer’s testimony since in a case where the defendant has plead guilty and the District Court denied the motion to suppress the appellate court must decide factual issues in favor of the winning side (the prosecution in this case) in the District Court.

Unless you believe that police officers always tell the truth, you must have some doubt that Stigler threw the marijuana on the ground. Stigler had nothing do gain by throwing it down. After all he still had the concealed weapon. And the police officer could not justify the search without the marijuana being thrown on the ground. This is not to say that defendants never do stupid things but it certainly raises a doubt about the search.

The Supreme Court ruled that an accidental discharge of a gun during a drug trafficking or violent crime results in a mandatory ten year sentence in addition to the punishment for the underlying offense pursuant to Title 18 U. S C. Section 924(c)91)(A).

Under Title 18 U. S C. Section 924(c)91)(A) the possession of a gun during certain crimes results in an additional sentence of five years, the brandishing of a weapon during the commission of the same crimes results in an additional seven years and the discharge of a weapon during the commission of the crimes results in an additional sentence of ten years. The question before the Supreme Court in Dean v. United States was whether the government had to prove that the discharge occurred with a particular intent or whether the accidental discharge of the weapon was sufficient.

Reading the statute, it is not surprising that the court found that the government did not have to prove any intent. The statute states:

“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–

“(i) be sentenced to a term of imprisonment of not less than 5 years;

“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

But as Justice Stevens points out in dissent:

Accidents happen, but they seldom give rise to criminal liability. Indeed, if they cause no harm they seldom give rise to any liability. The Court today nevertheless holds that petitioner is subject to a mandatory additional sentence–a species of criminal liability–for an accident that caused no harm. For two reasons, 18 U. S. C. §924(c)(1)(A)(iii) should not be so construed. First, the structure of §924(c)(1)(A) suggests that Congress intended to provide escalating sentences for increasingly culpable conduct and that the discharge provision therefore applies only to intentional discharges. Second, even if the statute did not affirmatively support that inference, the common-law presumption that provisions imposing criminal penalties require proof of mens rea would lead to the same conclusion.

As any first year law student learns each crimes must have a mens rea or in English an intent. With exception of minor crimes such as traffic violations we do imprison individuals unless they commit an act which society finds to be a crime and that the act is committed with a particular intent to do the act. In some cases it may suffice that the act was knowingly done. In others it may be with the intent to injure someone. But rarely, except in minor crimes, is no intent or mens rea needed. Again quoting Justice Stevens:

[T]he presumption that criminal provisions include an intent requirement would lead me to the same conclusion. Consistent with the common-law tradition, the requirement of mens rea has long been the rule of our criminal jurisprudence. . . . The concept of crime as a “concurrence of an evil-meaning mind with an evil-doing hand … took deep and early root in American soil.” . . . Legislating against that backdrop, States often omitted intent elements when codifying the criminal law, and “courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.” . . . Similarly, absent a clear statement by Congress that it intended to create a strict-liability offense, a mens rea requirement has generally been presumed in federal statutes. . . . With only a few narrowly delineated exceptions for such crimes as statutory rape and public welfare offenses, the presumption remains the rule today. . . .