Articles Posted in Firearm offenses

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Jose Luis Morales appealed his conviction and 15 year sentence for one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g)(1). He was arrested after Miami Dade Police Officers conducted a search of the home where Morales lived and found a Rossi .38 caliber revolver and a .22 caliber pistol in the closet of Morales’ bedroom. Morales lived in the house with his girlfriend, their two children, and his girlfriend’s mother. The search took place after the police approached the house while investigating drug activity in the area. Their focus was drawn to Morales and while Morales was outside of his house speaking with officers another officer approached the house and spoke to the Morales’s girlfriend’s mother. She gave consent to a search of the house and a K-9 alerted to the area of the closet in Morales’s bedroom where the firearms were found.

On his appeal Morales argued the Miami federal court erred in denying his motion to suppress the evidence seized in the search of his bedroom, claiming that the mother’s consent was not voluntary. He also argued that even if her consent was voluntary, his Fourth Amendment rights were violated because he was a physically present co-occupant who was intentionally denied an opportunity to refuse entry to the officers and to refuse their request to search.

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Harlem Suarez appealed was sentenced to life in prison without parole following his conviction for one count of attempting to use a weapon of mass destruction in violation of 18 U.S.C. 2332 and one count of attempting to provide material support to a foreign terrorist organization, ISIS, in violation of 18 U.S.C. 2339B.  A jury found him guilty following an eight-day trial.

In his appeal he argued the evidence was insufficient to support his conviction for attempting to uses a weapon of mass destruction. The statute has a jurisdictional element, which requires that the offense, in this case an attempt, would have affected interstate or foreign commerce. Suarez argued the government was required to prove a substantial effect on interstate commerce to satisfy the jurisdictional hook. The court of appeals disagreed by holding that the government only had to prove that a de minimis effect on interstate commerce satisfies the jurisdictional element. Because the minimal effect standard is a low bar, the court found the government presented sufficient evidence that a terrorist bombing in Key West would have had at least a minimal effect on interstate commerce.

Suarez also argued the evidence was insufficient to support his conviction to support a foreign terrorist organization. He claimed that Suarez did not coordinate or directly contact an actual foreign terrorist organization because he had contact only with the government informant and undercover agents. The court rejected this challenge finding that it is irrelevant that he did not make contact with ISIS because the law requires only that Suarez directed or attempted to direct his services to ISIS. Suarez’s mistaken believe that the government informant and the undercover agents were actual ISIS agents is not a defense to his attempted crime. He had the requisite intent to coordinate with ISIS and he took substantial steps to do so. The court found there was substantial evidence Suarez knowingly provided material support to a foreign terrorist organization and for attempting to use a weapon of mass destruction.

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In U.S. v. Johnson the court of appeals found an officer conducted an unconstitutional search and seizure when he removed a round of ammunition from the defendant’s pocket after conducting a pat down of the defendant who was a burglary suspect.  The facts show the Opa-Locka, Florida, Police Department received a 911 call about a potential burglary in progress at a multifamily duplex.  Behind the duplex was a fence that separated the duplex from the adjacent property.  The 911 caller described a black male wearing a white shirt trying to get through the window of a neighbor’s house.

Soon after officers arrived, the defendant was seen coming from the back of the complex through an alley.  He fit the description of a black male wearing a white shirt,   He was ordered to the ground and handcuffed and detained until they could figure things out.  Because of the nature of the call and the high crime nature of the area, the officer conducted a pat down of Mr. Johnson for officer safety.  The officer felt a nylon piece of material and then underneath it he felt a hard-like, oval-shaped object which led him to believe it was ammunition.  He removed it thinking that there might be a weapon nearby or another person in the apartment that may come out with “something.”  It was a black nylon pistol holster and one round of .380 caliber ammunition.

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George appealed his 259 month sentence imposed after a jury trial resulted in his conviction for conspiracy to engage in drug distribution, Hobbs act robbery, possession of unauthorized access devises, and aggravated identity theft activities. He was acquitted of possession of a firearm in furtherance of a drug trafficking offense.

The facts in George’s case began when responded to an advertisement for luxury car rentals and met Pinkow, the owner. Unbeknownst to George, Pinkow, the owner of the car rental company was an informant for the FBI. Pinkow introduced George to Velez, a licensed barber because George expressed and interest in opening a barber salon. The salon did open and was divided into two rooms. The front room contained the barber shop and the back room contained computers, phones, embossing machines, card-scanning machines and items that had nothing to do with the barber business operating in the front room. George also kept a firearm at the front of the salon.

Pinkow also rented luxury cars to a man named Banner, a successful drug dealer specializing in marijuana. Pinkow was present when Banner brought duffle bags filled with marijuana to George’s apartment and sold it to George. There was a subsequent sale to George for an amount that exceeded personal use.

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Focia’s conviction arose from his sale of firearms on the dark web. He was charged with a violation of 18 USC section 922(a)(1) for transferring firearms to a resident of a state other than his own without a federal firearms license in violation of 18 USC section 922(a)(5). In his appeal he challenged the sufficiency of the evidence arguing that the government failed to prove that he and each transferee were not residents of the same state at the timer of each sale. He claimed that the government failed to prove that Focia was a resident of Alabama, a different state than where the buyers lived in Nebraska and New Jersey. He argued that the government only established only that Focia used to live in Alabama at some point before the firearm sales and that he was present in Alabama several times over the span of two years.

The court of appeals rejected this challenge finding that the government introduced sufficient evidence of Focia’s residence at the time of the sale to sustain his conviction. The government presented evidence directly tying Focia to Alabama including his driver’s license showing an address in Alabama that did not expire until three months after Focia completed his transaction with the buyer and documents from E-trade Financial and a pawn shop in Alabama bearing Focia’s name and address in Alabama. Additionally, the government introduced powerful circumstantial evidence from which a jury could reasonably infer that Focia resided in Alabama at the time he shipped firearms to undercover agents located in the two states.

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In U.S. v. Ali Rehaif, the defendant, Rehaif, was a citizen of the United Arab Emirates who was convicted of possessing a firearm and ammunition while illegally or unlawfully in the United States. In his appeals he challenges the jury instruction given by the Florida district court regarding whether he had to know he was unlawfully in the United States.

Rehaif was initially issued a student visa to study mechanical engineering at the Florida Institute of Technology on the condition that he pursue a full course of study. He agreed to this condition upon receiving his student visa. After three semesters he was academically dismissed on December 7, 2014, and one month later on January 21, 2015, the school sent Rehaif an email stating that his immigration status will be terminated on February 5, 2015, unless he transfers out before that date or notifies the school office that he had left the United States. Rehaif did not take any action and on February 23, 2015, the Department of Homeland Security officially terminated his foreign student status.

On December 2, 2015, Rehaif went to a shooting range and purchased a box of ammunition and rented a firearm for one hour. The firearm was manufactured in Austria and imported into the U.S. through Georgia. The ammunition was manufactured in Idaho.

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In this appeal, Hughes was charged with knowingly possessing a firearm and ammunition as a twice convicted felon. Witnesses at a bar told police he was brandishing a gun and a police officer retrieved a gun from a trash can in the vicinity of the spot Hughes had stood. Fingerprints were found on the gun but were not linked to Hughes until almost two years later when the police ran them through a law enforcement fingerprint identification system matching Hughes’ prints to the gun. Following his arrest the government filed a motion to detain Hughes pending trial. Hughes’ attorney requested a six day continuance which was granted by the judge but did not make any factual findings or give any reasons for granting Hughes’s request for a continuance.

Prior to the trial Hughes moved to dismiss his indictment for a violation of the Speedy Trial Act arguing that the period of delay resulting from the court granting of a continuance was only excludable if the court stated in the record the reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.

During trial the trial judge allowed the government to offer in evidence the Computer Assisted Dispatch (CAD) report as a business record. Hughes challenged its admission because the report contained hearsay and violated his right under the Confrontation clause of the Sixth Amendment since he had no opportunity to cross examine the anonymous 911 caller documented in the CAD report. Hughes also raised a Batson challenge to the government’s strike of the only African American member of the venire. Hughes challenged a jury instruction that allowed the jury to find that if it found the defendant gave a false statement to the police in order to divert suspicion from himself, the jury could infer he was guilty.

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In U.S. v Phillips the defendant challenged the arrest on a civil writ of bodily attachment for unpaid child support on the grounds of a violation of the Fourth Amendment. As a result to his stop and arrest police officer discovered he was in possession of a firearm at the time he was being arrested on the writ. The issue addressed here was whether a writ of bodily attachment is a Warrant within the meaning of the Fourth Amendment of the U.S. Constitution so that the officer found the firearm during a valid search incident to arrest.

A Florida court issued a writ of bodily attachment for unpaid child support that ordered the police to take Phillips into custody and confine him to the county jail but the writ allowed Phillips to purge this contempt and immediately released from custody by the payment of $300.   The police also wanted to question Phillips about a recent shooting in Miami. When an officer who recognized him and knew about the writ of bodily attachment, approached him, the officer patted him and found the loaded .380 caliber firearm. Because Phillips had a prior drug felony, he was indicted on one count of being a felon in possession of a firearm and an armed career criminal.

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In U.S. v. Hollis, the court of appeals is required to decide whether the subject of an arrest warrant may challenge the use of evidence found in plain view during a protective sweep in a third party’s residence.

In February 2011, Officers were searching for Hollis based on an outstanding Georgia arrest warrant for parole violation. In March 2011 officers surrounded an apartment alleged to be a drug house. Hollis peered out from behind the window, and the officers recognized him. The officers yelled “police” and ordered Defendant to open the door. After waiting, the officers used a battering ram to open the door and arrested Hollis. Other officers sweep of the area. They found a cosmetic bag with marijuana on a dresser, weapons under a bed, and marijuana on the kitchen counter. The officers then obtained a search warrant for the premises, in a thorough search of the apartment, they discovered about a pound of cocaine, large amounts of marijuana, crack cocaine, ecstasy, scales, and about $5,000 in cash. One of the scales had a latent fingerprint on it, latter attributed to Hollis.

A Federal grand jury indicted Hollis on two counts of possession of a controlled substance with intent to distribute, one count of possession of a fire arm in furtherance of a drug trafficking crime, and one count of felony possession of a firearm.
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In U.S. v Payne, Defendant Payne appealed his sentence for bank robbery and possession of a firearm, arguing that the district court violated his Sixth Amendment rights when it sentenced him to the mandatory minimum sentence on a firearm charge. Payne pleaded guilty to federal crime of bank robbery where he served as the getaway driver, in violation of 18 U.S.C. § 2113(a), (d), and one count of possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). He received a 30-month sentence on the bank robbery count and a mandatory minimum 84-month sentence on the firearm count. At his plea hearing where he pleaded guilty to both counts of the indictment, Payne admitted that he had knowingly participated in an armed robbery of a bank.

Based on the fact that one of Payne’s accomplices had pointed a pistol at a bank teller during the robbery, the Presentence Investigation Report (PSR) concluded that Payne was subject to an 84-month mandatory minimum sentence to be served consecutive to his sentence for the bank robbery charge. Because his indictment had not specifically mentioned the brandishing provision of §924(c)(1)(A) and he had never admitted at his plea hearing, he asserted that sentencing him to the mandatory minimum would violate his Fifth Amendment due process rights and his Sixth Amendment rights.

Payne’s primary contention on appeal was that the district court violated his Sixth Amendment rights, when it sentenced him to the mandatory minimum sentence alleging an error under Alleyne v. United States. If an Alleyne error occurred, the court of appeals would vacate Payne’s sentence unless the error was harmless. Under Alleyne, any fact that increases the mandatory minimum sentence for a crime must be admitted by a defendant or be submitted to a jury and found beyond a reasonable doubt evidence. In this case, he did not admit at his plea hearing that the firearm had been brandished during the bank robbery that he committed, because he was waiting in the car for the getaway. Nevertheless the district court sentenced him to a mandatory minimum sentence based on the evidence presented where a bank teller testified that one of the defendants had pointed a pistol in her face during the robbery and the defense didn’t rebut the teller’s testimony.