You recently obtained an acquittal in a case involving a passenger in the back seat of a car. Please summarize the main issues in the case, and also what charges and consequences your client initially faced.

 My client was indicted in the United States District Court for the Western District of Michigan on one felony count of being a felon in possession of a firearm in violation of 18 U.S.C.A. §922(g)(1) (maximum sentence 10 years) and one misdemeanor count of possession of one gram of crack cocaine in violation of 21 U.S.C.A. §844(a) (maximum sentence 1 year).  Due to the client’s extensive criminal record and the United States Federal Sentencing Guidelines, the client would have received the maximum sentence of 10 years if he was convicted of being a felon in possession of a firearm.

 The client was arrested in August, 2006 at the Deluxe Inn in Lansing, Michigan.  The Deluxe Inn was known as a hot spot for drug transactions in the Lansing area.  Lansing Police Department officers conducting a routine patrol observed my client and another individual sitting in a vehicle in the Deluxe Inn parking lot.  The client was seated in the rear passenger-side seat and the other occupant was seated in the driver seat.  The patrol vehicle pulled up behind the parked vehicle to investigate.  According to the police report, Officer A approached the driver while Officer B approached the client seated in rear passenger seat.  Questioning ensued, and both the driver (who spoke little English) and the client informed the officers that they were waiting for the front seat passenger who was in one of the hotel rooms.  Officer B asked the client to produce his driver’s license and when he was unable to do so, he instructed the client to step out of the vehicle.  As the client was stepping out of vehicle, Officer A noticed a handgun lying on the rear passenger seat floor.  According to the report, the weapon was covered with t-shirt, but grip and handle were exposed.  Once the client exited the vehicle, Officer A instructed Officer B to hand cuff the client.  The client ran and both officers ran after him.  The client was tackled and tasered a few feet away from the rear of the parked vehicle, and eventually arrested.  Officer A searched the vehicle and located the weapon while Officer B remained with the client.  Officer A also retrieved 1 gram of crack cocaine from the rear passenger seat.  A marijuana blunt was found in my client’s shorts.  The driver of the vehicle was also arrested for violation of the open container law.

Where and when was it tried, and who was the presiding judge?

 The case was tried in the U.S. District Court for the Western District of Michigan in Grand Rapids, Michigan.  The presiding judge was the Honorable Robert Holmes Bell.

What was the prosecution theory of the case?

 The government’s theory was that the weapon belonged to the client and that the client was a drug dealer who was in the process of selling crack cocaine to the individual seated in the driver seat of the car.  In support of this theory, both officers testified that the Deluxe Inn was a known hot spot for drug trafficking, and that the client’s location in the vehicle relative to the location of the driver was consistent with how drugs are often transacted at that location.  Furthermore, Officer A’s observation of the weapon at the client’s feet as well as the client’s attempt to flee the police were evidence of the client’s guilt.

What was the defense theory?

 The defense theory was that the client was merely a passenger in the vehicle and that the weapon belonged to the front seat passenger who was in the hotel room.  The client  testified that on the morning of his arrest, he called up a childhood friend from his neighborhood who also happened to be his crack dealer to come to the client’s girlfriend’s house, so that the client could purchase crack cocaine.  The dealer came over to the house with the driver of the vehicle and the client purchased one gram of crack cocaine.  After the transaction, the client asked the dealer for a ride back to the client’s house and the dealer agreed.  The dealer sat in the passenger seat of the car and the client sat in the rear passenger side seat of the car.  Along the way to the client’s house, the dealer stopped at Deluxe Inn to make a sale.  The dealer exited the vehicle while the driver and the client remained in the vehicle.  Soon after, the police vehicle pulled up behind the parked vehicle and the officers approached the car and questioned the client and the driver.  The client testified that he had no idea that any weapon was present in the car and that there was definitely no weapon at his feet.   As the client was exiting the vehicle, he dropped the baggy of crack cocaine on the rear seat.  He testified that once he was out of the vehicle, Officer B instructed him to turn around and place his hands on the roof and began frisking him.  As Officer B was frisking the client, Officer A instructed Officer B to cuff the client, at which point the client ran off, was tackled, and tasered.  Following the struggle, the client was arrested and Officer A searched the vehicle and found the weapon.  The officers asked the client who owned the weapon, and the client responded that he had no idea and that the weapon must have belonged to the front seat passenger who was now in the hotel room.  The client provided the officers with the hotel room number and the officers investigated.  After a brief interview of the front seat passenger, the officers returned to the vehicle, informed the client that the front seat passenger denied knowledge of the weapon, and that since the client ran, the weapon is now his weapon.  By testifying, the client admitted his guilt of count two of the indictment (cocaine possession).  This tactic was necessary because it explained to the jury why the client ran when he exited the vehicle.

 Obviously, the client’s version of events differed significantly from Officer A’s version of events.  Interestingly, Officer B’s testimony was much less damaging to my client since he did not see the weapon while speaking to my client nor did he even know the weapon existed until it was discovered by Officer A in the vehicle after the arrest.   Thus, for the defense theory to succeed, it was necessary to bring out the inconsistencies in Officer A’s testimony.  During the cross-examination of Officer A, I asked him whether it is common practice for officers to immediately yell “gun” the minute they see a gun near a suspect, especially if they are encountering the suspect under what they believe to be a dangerous situation.  Officer A answered yes, but then stated that he felt it was safer to say nothing for fear of alerting the client that he knew client had a weapon.  Officer B also admitted that it was common practice to yell “gun” under these circumstances, that he had no idea that my client had a weapon while he was talking to him and that he would have expected him partner to alert him to that he had seen a weapon as soon as the weapon was detected.

 At the close of proofs, the court recessed for the day with closing arguments scheduled for first thing the next morning.  Before leaving the courtroom, I spoke briefly with the client’s mother and grandparents about how the trial was going.  During this conversation, the client’s mother pointed out that Officer A testified that he joined Officer B in pursuit of the client when the client tried to run.  In doing so, Officer A left the driver unsupervised in the car with the weapon (remember, Officer A testified that the client left the weapon in the car as he exited the vehicle.)   This point became the main theme of my closing argument the next morning.

 The AUSA closed with the argument that it is really about whom you believe - the two officers or the defendant.  I opened my closing argument by stating that it was not whom you believe, it was about whether you believed Officer A’s version of events beyond a reasonable doubt.  I stated that the AUSA was correct about this case being two stories versus one; however, I argued that it was really Officer B’s story and the client’s story versus Officer A’s story, since Officer B’s story was more consistent with the testimony of my client.  Finally, I pointed out that for Officer A’s testimony to be accepted as accurate, one had to accept that Officer A (a 15-year veteran), after noticing the weapon on the floor of the vehicle next to the client, failed to alert his partner to the presence of the weapon.  More importantly, one would also have to accept that when my client ran, Officer A elected to give chase after my client, leaving the weapon and the driver in the car unsupervised.

 The jury was back in 45 minutes with a verdict of not guilty to the felon in possession charge and guilty to the misdemeanor crack possession charge.  The client was sentenced to one year in prison on the misdemeanor charge - the maximum sentence.  Had he been convicted or plead guilty to the felon in possession charge, he would have received 10 years.

Did the case involve any unusual factors?

 Prior to trial, I met with the U.S. Attorney and the officers for an evidence view.  During this meeting, I asked the officers if they could give me an account of what happened.  Officer A stated that he actually saw the gun lying between client’s feet while my client was still sitting in vehicle talking to Officer B.  This account differed slightly from the police report in which Officer A stated he first saw the weapon as my client was exiting the vehicle.  To clarify, I ask Officer A if he meant that he saw the weapon as my client was exiting the vehicle and Officer A said no, and reiterated that he saw the weapon between my client’s feet as he is talking to Officer B.  Officer B stated that he did not see the weapon because the angle at which he was standing relative to the client prevented him from seeing the client’s feet.

 During the government’s opening statement, the AUSA used a Powerpoint presentation that stated, among other things, that Officer A would testify that he saw the weapon lying right between client’s feet as he was sitting in the car.  I prepared to cross-examine the officer on the discrepancies in the police report versus what he stated during our meeting. However, during his direct examination, Officer A testified consistently with the police report (i.e. contrary to what he said to me the prior week and what the AUSA had put in her Powerpoint presentation).  I crossed him on this point asking him if just last week, he had stated to me that he saw the weapon lying at the client’s feet while the client was still seated in the car.  He denied making that statement.  I then remind him that I was there, his partner was there, the ATF agent was there and the AUSA was there, and then asked him again if he was sure that he didn’t tell me at that time that the gun was located right between my client’s feet as he was sitting in the car (using the exact language used by the AUSA in the power point presentation).  He again stated no.  I used this point during closing to emphasize that even the AUSA was surprised by the contradictions in Officer A’s testimony.

Were experts needed?

 The government presented two expert witnesses on fingerprint identification.  The weapon and bullets were tested for fingerprints.  Although no identifiable prints were found on the weapon, a print was found on a bullet inside the weapon.  This print did not match the client’s fingerprints.  The government put the fingerprint expert on the stand to testify that it is very difficulty to obtain usable prints off of a weapon and that a person who handles a weapon will often leave no identifiable finger prints on the weapon.

 On cross-examination, both experts admitted that the likelihood of an identifiable fingerprint being left on a weapon depends upon various factors.  These factors include whether the weapon was handled recently and whether the person who last handled the weapon was perspiring or sweating at the time he handled the weapon.  Specifically, both experts admitted that if the weapon was handled recently or if the person who last handled the weapon was perspiring, then there would be a greater likelihood of a usable print.  These factors were important since the client was arrested at noon on a hot August day and that according to the government’s theory, had recently handled the weapon.

 I also pointed out that a usable print was discovered and that it did not match the client’s finger print.  I asked the experts if they were ever instructed to compare the one usable print to the finger prints of the front seat passenger who my client identified, and both responded that they had not.

What did you learn from the case?

 The devil is in the details.  The jury acquitted my client because we were able to point out that Officer A’s version of events did not match up with standard or expected officer behavior under similar circumstances.  Interestingly, the two major points upon which the defense theory was based (i.e. the failure to yell “gun” and Officer’s A pursuit of my client when he ran) did not even occur to me until the middle of trial.  I had reviewed the police reports and my client’s version of events many times in preparation for this trial and had concentrated only on the discrepancies that existed between each officer’s version as well as the discrepancy between the police report and the account Officer A had offered during our meeting before trial.  The significance of Officer A’s failure to shout “gun” upon seeing the weapon did not occur to me until his actual direct examination.  The significance of Officer A’s pursuit of my client did not occur to me until I spoke with the client’s mother at the close of proofs.  Had I not taken the time to speak with the family at the close of proofs, I might never have realized the significance of that pursuit and would have missed out on the major theme of my closing argument.  In speaking with the jury after the trial, those two points were the most significant pieces of evidence that led to the client’s acquittal.

Please describe your practice, including how long you have practiced criminal defense?

 My practice is focused almost entirely on state and federal criminal defense.  I also have extensive knowledge of the United States military justice system. I served on active duty in the United States Army Judge Advocate General’s Corps from 1999 to 2003 where I worked as both a trial counsel (prosecutor) and trial defense counsel.  I am currently a senior defense counsel in the United States Army Reserves. I have been practicing as a civilian criminal defense attorney in Grand Rapids, Michigan since 2003.

Mr. Bartish is with Willey & Chamberlain, LLP, in Grand Rapids.

by Neil Leithauser
Associate Editor
 

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