Firearm offenses

Published on: September 21, 2018

Reaching into a pants pocket to seize a bullet exceeded the constitutional pat down search

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.

Published on: January 22, 2018

New sentencing for defendant but only for a chance to address the judge

by The Swartz Law Firm

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.

Published on: December 29, 2017

Conviction for selling firearms on the dark web upheld

by The Swartz Law Firm

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.

Published on: December 25, 2017

Conviction for possession of a gun by an illegal alien does not require the alien know his status is unlawful

by The Swartz Law Firm

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.

Published on: November 18, 2016

No Speedy Trial violation for six day delay even though the court did not make factual findings for the continuance

by The Swartz Law Firm

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.

Published on: October 4, 2016

An arrest pursuant to a civil writ of bodily attachment for unpaid child support is equivalent to a warrant under the Fourth Amendment

by The Swartz Law Firm

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.

Published on: March 25, 2015

Defendant challenges evidence found on a warrantless search

by The Swartz Law Firm

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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Published on: August 15, 2014

Mandatory minimum sentence for firearm charge upheld on appeal

by The Swartz Law Firm

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.

Published on: March 10, 2014

Three separate warrantless searches of defendant’s residences survive Fourth Amendment challenges

by The Swartz Law Firm

The defendant in U.S. v. Yeary was convicted of the federal crimes of conspiracy to possess controlled substances with intent to distribute and with possessing multiple firearms. This appeal centers around the district court’s denial of his motion to suppress evidence under the Fourth Amendment, which was seized by police in three warrantless searches of his residences on three different occasions. In the first search law enforcement officers came to a condominium he shared with his girlfriend with a warrant for his arrest. When the girlfriend opened the door, the agents saw the defendant behind the girlfriend and noticed a black handgun on a table next to the defendant. The defendant was arrested and removed from the house. When asked if others were in the house, the girlfriend said there were two other people so the officers did a protective sweep of the house where they discovered drugs and firearms in plain view. The court of appeals upheld the search on the grounds that the search was a valid protective sweep based on the girlfriend’s statements that other individuals may be in the house because they had a reasonable basis to conduct a limited protective sweep. During that sweep deputies discovered contraband in plain view and on this basis the search was valid.

The second search took place while the defendant was on bond under house arrest pending trial on felony charges in Palm Beach county circuit court. A condition of his house arrest was that his residence could be searched at any time without prior notice and without warrant. When law enforcement received an anonymous tip that he was still selling drugs out of his residence, officers went to his residence and conducted a search leading to the discovery of drugs and a firearm. The court upheld the search of these from on the grounds that he agreed to a warrantless search of his residence as a condition of his house arrest bond. The constitutionality of the search depends on the validity of the defendant’s consent. Under the totality of the circumstances the evidence is clear that defendant knowingly consented to the search of his house and agreed to the condition that he would allow his house to be searched 24 hours a day. He acknowledged this condition prior to signing a waiver of any objections to a warrantless search. The court found his consent was no different than any other voluntary consent search.

The third search took place after a warrant was issued for his arrest for the Federal indictment. Law enforcement agents went to the defendant’s residence where they found his girlfriend. She gave them permission to enter the house and inside the residence the officers found drugs and more weapons. The court upheld the search on the grounds of the voluntary consent given by the girlfriend. The evidence showed that law enforcement officers believed that the girlfriend had authority to give the consent to search and reason to believe her consent was given freely and voluntarily.

Published on: October 31, 2013

Jury instruction constructively amended the indictment required reversal

by The Swartz Law Firm

In U.S. v. Madden the defendant was indicted and charged with a drug conspiracy. One of the counts charged the defendant with knowingly using and carrying a firearm during and in relation to a crime of violence and with knowingly possessing a firearm in furtherance of a drug trafficking crime. In charging the jury, the district court at first correctly described the charge by using language that mirrored the indictment: “that the defendant knowingly used and carried a firearm during and in relation to a crime of violence… and did knowingly possess a firearm in furtherance of a drug trafficking offense.” A few minutes later the district court used different language in describing this count: The indictment alleges that the defendant knowingly carried a firearm during and in relation to a drug trafficking offense or possessed a firearm in furtherance of a drug trafficking offense…”

Basically, the district court mistakenly replaced the “crime of violence” language with “drug trafficking offense.”

The defendant argued that the jury instruction constructively amended the indictment and that the constructive amendment was reversible error. A constructive amendment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment. The court of appeals decided the district court’s instruction did constructively amend because it allowed a conviction for “carrying a firearm during and in relation to a drug trafficking offense” when the indictment only charged the defendant with possessing a firearm “in furtherance of … a drug trafficking crime” and using and carrying a firearm “during and in relation to a crime of violence.” The government only had to prove the defendant violate the law in one of those ways. Adding “during and in relation to” broadened the possible bases for a conviction beyond what was specified in the superseding indictment.