US Ramirez-Catillo: Ramirez-Catillo was serving a sentence at FCI Estill when officials recovered two potential weapons from his cell. One, "[a] homemade shank," was found on Ramirez-Catillo's person, while the other, a "piece of metal, sharpened to a point on one end" was found in his locker, along with several pairs of shoes and other personal items. He was charged with possession of "two homemade weapons" in prison. At trial, he testified that he used the "shank" to repair shoes (and showed where such repairs had been done on shoes recovered from his cell) and that he had never seen the "piece of metal" prior to the search, but admitted that it could be used as a weapon. The verdict form asked the jury two questions, whether the shank was a weapon and whether the piece of metal had been possessed by Ramirez-Catillo (as he conceded possessing the shank and that the piece of metal was a weapon), but did not specifically include choices for "guilty" or "not guilty." The jury answered "yes" to both questions. The district court concluded that Ramirez-Catillo was "adjudicated guilty" and sentenced him to 33 months in prison.
On appeal, the Fourth Circuit reversed the conviction. Applying plain error review, the court concluded that "we do not hesitate to conclude that Appellant's right to have a jury determine his guilt beyond a reasonable doubt was violated." Rather than seeking a guilty/not guilty verdict, the district court put to the jury only questions to factual questions on disputed elements, but not all the elements of the offense. At the court noted "the jury never actually returned a guilty verdict. In fact, it was never given the opportunity to do so." That error was plain, affected Ramirez-Catillo's substantial rights, and was the type of error of which the court would take notice.
Thursday, May 01, 2014
Second Amendment Doesn't Protect Pot User's Possession of Firearms
US v. Carter: Carter was a user of marijuana. Police arrived at his home, pursuant to a complaint about drug dealing. Carter allowed them to enter and informed the officers he had two guns in the house. There was no evidence of drug dealing. Carter, nonetheless, was charged with being a drug user in possession of a firearm. He moved to dismiss the charge, arguing that the statute violated his right to keep and bear arms under the Second Amendment. He possessed the guns for his own protection, he argued (shortly after his arrest, Carter's neighbor was shot 8 times in a robbery). The district court denied the motion, Carter entered a conditional guilty plea and was sentenced to probation.
In an initial appeal, the Fourth Circuit reversed the conviction and remanded to the district court. Applying the two-step intermediate scrutiny analysis from Chester, the court concluded that while Carter's drug use took him outside the "core" of the Second Amendment right, the Government has not shown the right "fit" between the statute and its compelling interest in attacking gun violence. The court remanded the case to the district court for further proceedings.
On remand, the parties submitted numerous studies addressing drugs and firearms. Upon review of those submissions (and some the district court requested by put into the record at its request), the district court again denied Carter's motion to dismiss. The district court concluded that the studies showed a link between gun use and drugs that made the statute an appropriate fit, noting it only had to be "reasonable," not "perfect." Carter's term of probation - which he had already successfully completed - was reimposed.
Carter returned to the Fourth Circuit, which again affirmed the district court's denial of his motion to dismiss. The court first rejected Carter's argument that the district court erred by relying on factors outside the record generated on remand - including "common sense" - that had been available to the court on the first appeal. It then proceeded to examine the studies submitted on remand and concluded that the Government's studies showed a "strong link between drug use and violence" and dismissed Carter's argument that the studies were flawed, overbroad, and dealt with drugs aside from marijuana. As a result, the court joined every other Circuit Court do address the issue and concluded that the drug-user-in-posession-of-a-firearm statute does not fun afoul of the Second Amendment.
DISCLAIMER: Your humble narrator was co-counsel for Carter on this case.
In an initial appeal, the Fourth Circuit reversed the conviction and remanded to the district court. Applying the two-step intermediate scrutiny analysis from Chester, the court concluded that while Carter's drug use took him outside the "core" of the Second Amendment right, the Government has not shown the right "fit" between the statute and its compelling interest in attacking gun violence. The court remanded the case to the district court for further proceedings.
On remand, the parties submitted numerous studies addressing drugs and firearms. Upon review of those submissions (and some the district court requested by put into the record at its request), the district court again denied Carter's motion to dismiss. The district court concluded that the studies showed a link between gun use and drugs that made the statute an appropriate fit, noting it only had to be "reasonable," not "perfect." Carter's term of probation - which he had already successfully completed - was reimposed.
Carter returned to the Fourth Circuit, which again affirmed the district court's denial of his motion to dismiss. The court first rejected Carter's argument that the district court erred by relying on factors outside the record generated on remand - including "common sense" - that had been available to the court on the first appeal. It then proceeded to examine the studies submitted on remand and concluded that the Government's studies showed a "strong link between drug use and violence" and dismissed Carter's argument that the studies were flawed, overbroad, and dealt with drugs aside from marijuana. As a result, the court joined every other Circuit Court do address the issue and concluded that the drug-user-in-posession-of-a-firearm statute does not fun afoul of the Second Amendment.
DISCLAIMER: Your humble narrator was co-counsel for Carter on this case.
Victims of Hobbs Act Conspiracy Can Also Be Part of It
US v. Ocasio: Ocasio was a Baltimore police officer who was part of a scheme to direct business to a local car repair shop, in return for kickbacks. He was originally charged, along with several other officers and the owner/operators of the shop, with conspiracy to violate the Hobbs Act. Each of the other defendants pleaded guilty, while a superseding indictment charged Ocasio and a different officer with the same conspiracy, along with substantive Hobbs Act extortion violations. Ocasio was convicted at trial on all counts (his codefendant pleaded guilty after the Government rested its case). He was sentenced to 18 months in prison and ordered to pay restitution of $1500 to the police department and $1870 to Geico, based on a fraudulent insurance claim made regarding Ocasio's wife's car at the repair shop.
On appeal, Ocasio challenged both his convictions and his restitution order. The Fourth Circuit affirmed the conviction, rejecting Ocasio's argument that the conspiracy conviction was "fatally flawed." He argued that one cannot be convicted (under federal law) of conspiring with the victims of the scheme (in this case, the shop and its owner/operators). Relying on prior circuit precedent, the court distinguished between a conspirator/victim whose conduct consisted of "mere acquiescence" to the scheme and one who was an active participant. In other words, an active participant can be both a conspirator and a victim of the scheme. As a result, it affirmed the conspiracy conviction based on the active roles of the victims. The court rejected a competing Seventh Circuit reading of the statute favorable to Ocasio, holding it was precluded by circuit precedent. As to restitution, the court concluded that Geico was not a victim of Ocasio's offenses of conviction and, therefore, vacated the restitution order.
On appeal, Ocasio challenged both his convictions and his restitution order. The Fourth Circuit affirmed the conviction, rejecting Ocasio's argument that the conspiracy conviction was "fatally flawed." He argued that one cannot be convicted (under federal law) of conspiring with the victims of the scheme (in this case, the shop and its owner/operators). Relying on prior circuit precedent, the court distinguished between a conspirator/victim whose conduct consisted of "mere acquiescence" to the scheme and one who was an active participant. In other words, an active participant can be both a conspirator and a victim of the scheme. As a result, it affirmed the conspiracy conviction based on the active roles of the victims. The court rejected a competing Seventh Circuit reading of the statute favorable to Ocasio, holding it was precluded by circuit precedent. As to restitution, the court concluded that Geico was not a victim of Ocasio's offenses of conviction and, therefore, vacated the restitution order.
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