Firearm offenses

Published on: December 13, 2021

No sentencing guidelines enhancement for arms smuggler who sold to a paramilitary terrorist group in Columbia

Francisco Arcila Ramirez was charged with several federal crimes in connection with selling firearms to the National Liberation Army (ELN), a paramilitary group in Columbia, designated by the U.S. State Department as a foreign terrorist organization. Through a straw purchaser, he acquired AK-style weapons in the Miami, Florida area, then had them smuggled to Colombia where they were delivered to an ELN weapons broker who then arranged delivery to a farmhouse in rural area of Colombia where they were picked up by members of the ELN. Arcila Ramirez was paid $26,567 in cash for his efforts. After this transaction, Arcila Ramirez began acquiring large quantities of firearm components to send to Colombia where they could be assembled. The firearm parts were cheaper to buy, easier to smuggle, and did not require straw purchasers.

When Arcila Ramirez was arrested in the United States, he waived his right to remain silent after receiving a Miranda warning. He admitted using straw purchaser to buy firearms on his behalf and concealing them in air compressors to be smuggled into Colombia. He admitted the firearms had to be for guerillas or delinquents but said he was not part of or involved with any group.

Published on: November 23, 2021

Miami Police officers’ convictions for providing protection to undercover drug dealer is upheld

by The Swartz Law Firm

Two Miami Police officers were charged and convicted in federal court with conspiracy to possess with intent to distribute over five kilograms of cocaine, for protecting drug couriers, and for possession of a firearm during and in furtherance of a drug trafficking offense. The investigation began with an F.B.I. investigation into police corruption in the Miami Police Department. Posing as would-be drug dealers, the F.B.I.’s investigation focused on an officer named Anderson, who agreed to cooperate. The F.B.I. created a reverse sting posing as drug dealers in need of protection for delivering drugs and money.

Wearing a wire, Anderson approached an officer named Schonton who agreed to give protection for the undercover drug dealer. When Schonton was asked if she knew other law enforcement officers willing to participate, she suggested Kelvin Harris, who become involved in this reverse sting operation designed by the F.B.I. Harris received money for his assistance from the undercover agent posing as a drug dealer. The undercover F.B.I. agent told Schonton and Harris that more officers were needed for a bigger job, and the two officers also recruited Miami Police officer Archibald. The F.B.I. set up an undercover sting that involved transporting 20 kilograms of cocaine that would arrive in Miami. The recruited officers provided protection by providing a police escort to the hotel where the undercover agents transporting the contraband. All the officers were present when the drugs were unloaded and unpacked at the hotel. Each paid $4,000.

Archibald and Harris went to trial in federal court. Archibald claimed he did not know what was going on during the first sting operation. He also argued he was entrapped then he met the undercover agents who scared him. Harris testified in his defense claiming that while he realized Schonton and Anderson were involved in illegal conduct, he decided to conduct his own surreptitious but lawful investigation by infiltrating the drug operation. The jury found Harris guilty on all counts and found Archibald guilty on most counts.

Published on: November 3, 2021

Fourth Amendment challenge to seizure fails because the defendant was free to leave the police encounter.

by The Swartz Law Firm

Anthony Knights was convicted of the federal offense of possession of a firearm and ammunition by a convicted felon. In his appeal he challenged his conviction claiming the arresting officer violated his Fourth Amendment right to be free from unreasonable search and seizure when officers conducted an investigatory stop of his car without reasonable suspicion. Two officers saw Knights and another man around 1:00 a.m. in a car parked in the front yard of a home. Suspecting that the two men might be trying to steal the car, the officers parked near it and approached Knights, who was in the driver’s seat. When Knights opened the door, and officer immediately smelled marijuana. The ensuing search of Knights and the car revealed ammunition and firearms.

Published on: December 26, 2020

Anonymous 911 caller was sufficiently reliable for officers to stop and investigate

by The Swartz Law Firm

Toddrey Bruce appealed his conviction for unlawful possession of a firearm by a convicted felon. Bruce was arrested when he was found in the possession of a firearm which was illegal under federal law for him to possess. In this appeal he claimed the trial court erred by not granting his motion to suppress the evidence of his gun possession because the seizure was a violation of the Fourth Amendment violation. Here are the facts leading to his seizure and arrest.

A 911 call came to the police at 3:00 a.m. by an anonymous person about a disturbance in the front yard of a “drug house” and that one of the men involved had a gun. He told the 911 operator that while he was speaking to the operator, they we were arguing and the person holding the gun he described as a black man standing next to a white car in front of the house. The tipster warned that the police should use caution because there might me shooting any minute. The dispatcher quickly related key parts of the call to the police and several officers who were nearby arrived on the scene with flashing police lights. The approaching officers saw two men in the white car at the address given by the tipster and for officer safety they drew their guns as they approached the car. The police approached Bruce while he was sitting in parked in front of a house. When the police approached the car, they told the men to exit the car, and Bruce tried to make a break for it. When one of the officers grabbed him, a semi-automatic pistol dropped from his waistband.

Published on: December 1, 2020

RICO is not a crime of violence for a 924(c) gun possession offense

by The Swartz Law Firm

A group of brothers, relatives, and friends who operated a drug trafficking organization in Bradenton, Florida, were charged and convicted of participating in a RICO conspiracy, a drug conspiracy, and gun crimes. The defendants raised two issues in this appeal. First, whether the RICO conspiracy qualified as a crime of violence under 18 U.S.C. 924(c) and second, whether one of the defendant’s sentence was procedurally and substantively reasonable.

The defendants challenging the 924(c) conviction. Section 924(c) which makes it a crime to use, carry, or discharge a firearm in relation to a crime of violence. The defendants argued here that the RICO conspiracy is not a “crime of violence”. The statute defines a crime of violence as a felony offense that (a) has as an element the use, attempted use, or threatened use of physical force against the person or property of another (the elements clause) or (b) that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (the residual clause).

Published on: May 15, 2019

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

by The Swartz Law Firm

In U.S. v. Johnson the Eleventh Circuit court of appeals reversed a panel decision which held that 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 en banc court decided that the seizure of the ammunition was a constitutional search under Terry v. Ohio. 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: May 3, 2019

The emergency-aid exception overcame a warrantless home search challenge

by The Swartz Law Firm

A U.S. Marshals Service fugitive task force and counter gang unit sought to arrest Cooks at his home. A member of the Bloods street gang, Cooks was wanted for second degree assault by the Birmingham Police Department. While surveilling Cooks’s home, the officer saw a car arrive at the residence and the driver entered the home without any interest in speaking with the officers. The officers made contact with two other occupants who told the officers the door had been barricaded and locked from the inside and they could not open it because they did not have a key. The officers started hearing drilling sounds coming from inside the house. Soon after one of the occupants was able to exit briefly and before returning to the house she told officers that Cooks was armed. Concluding that they were facing a potential hostage situation, the officers called the SWAT team. A hostage negotiator made contact with an occupant who told the officer that the two occupants wanted to leave but couldn’t. They also told the officer that Cooks was doing something in a hole in the floor. When negotiations failed, the SWAT team broke into the house and removed the hostages. One hostage told the officers that Cooks had put multiple guns in a hole in the floor.

After arresting Cooks, the officers did an initial 30 second sweep, followed by a three to four minute sweep. They found a four by four hole covered by the plywood nailed down with screws. When the deputies remove the plywood covering and entered the hole, they found a several pistols and long guns. Only after the discovery of the guns did they obtain a search warrant to search the Cooks home.

Published on: April 24, 2019

No illegal seizure following a valid traffic stop

by The Swartz Law Firm

Reginald Gibbs was arrested and pleaded guilty to possession of a firearm by a convicted felon. Before he pleaded guilty to the possession, he filed a motion to suppress the evidence of the firearm seized from him by the police. The district court denied that motion and he appealed the district court’s decision.

The facts leading up to his arrest began when Miami-Dade Police Detective Lopez was patrolling an area he knew as a high crime area in Miami when he spotted an Audi blocking traffic in the direction that Lopez was traveling. He called for back-up and Detective Dweck arrived to assist. When they exited their vehicles the driver of the Audi was standing just outside his care between the Audi and another car parked on a gravel shoulder area next to the road with the space between the two vehicles just wide enough for two people to stand there. Gibbs was standing next to the driver, Jones, and both men stood next to the Audi. When the officers approached, Jones and Gibbs were channeled between the two cars. Lopez approached from one side and Dweck from the other so Jones and Gibbs would not have been able to leave without going through Lopez or Dweck. They were blocked from leaving. As Dweck approached Gibbs, Gibbs appeared to be looking around as if he was about to flee, he then immediately told the detective that he had a gun on him. Because he did not have a permit, he was arrested for carrying a concealed weapon without a permit.

Published on: November 19, 2018

Co-occupant’s consent to search of the defendant’s bedroom was valid

by The Swartz Law Firm

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.

Published on: November 12, 2018

Life sentence for attempting to give ISIS material support upheld

by The Swartz Law Firm

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.