The Second Circuit affirmed on Thursday the conviction of former law enforcement officers convicted of civil rights violations under 18 U.S.C. §§ 241 & 242 for falsifying information to get search warrants, fictitious informant payments, and stealing property from targets of search warrants. They were also convicted of using a firearm during a “crime of violence,” that is, the drawing of their weapons during the execution of a search warrant which is inherently violent. United States v. Acosta, 2006 U.S. App. LEXIS 29607 (2d Cir. November 30, 2006) (unpublished). This is an unpublished opinion, and the facts are abbreviated, but it is interesting still sheerly because of the fact a police officer was convicted for something that many narcs do without a second thought:
Both Skinner and Acosta claim that there was insufficient evidence to support their convictions for conspiracy to violate civil rights under color of law in violation of § 241. We disagree. At trial the government proved the substantive charges against Skinner and Acosta of violating civil rights under color of law, and aiding and abetting others in the commission of this crime in violation of § 242 and 18 U.S.C. § 2. The proof of these substantive charges constituted some of the proof of the § 241 conspiracy charges. This proof included, inter alia, evidence that (1) Skinner falsified information for at least five search warrants and submitted false informant payment forms; (2) Skinner and Acosta participated in obtaining and executing at least three search warrants based on false information; and (3) Acosta received stolen money from these searches and stole property during two of these searches. The government also presented evidence of additional conduct by Skinner and Acosta in furtherance of the conspiracy that was not a part of the § 242 offenses, including Skinner’s and Acosta’s participation in a warrantless raid of a hotel room and the execution a search warrant on a home, during both of which money was stolen, and Acosta’s stealing from a suspect during a traffic stop. Furthermore, the government presented evidence that Skinner, Acosta and their co-conspirators attempted to cover up the conspiracy, and agreed among themselves not to cooperate with the FBI. Viewing this evidence in a light most favorable to the government, a rational jury could have found beyond a reasonable doubt that Skinner and Acosta knew of the conspiracy to deprive persons of their civil rights, and knowingly and intentionally joined, and participated in, the conspiracy. See United States v. Morgan, 385 F.3d 196, 206 (2d Cir. 2004).
Skinner also claims that there was insufficient evidence to support his misdemeanor conviction under § 242 and § 2. This conviction was based on the discovery of a laptop computer in Skinner’s home that had been taken during the search of a suspect’s home. Skinner argues that there was no evidence that he acted willfully, because there was no proof that he removed the laptop from the suspect’s home. We disagree. The government presented evidence that (1) the laptop was found in Skinner’s home, (2) officers were overheard arguing over who would get the laptop, (3) Skinner had purchased personal accessories for this laptop, (4) Skinner was the officer in charge of securing evidence during this raid, and (5) Skinner’s superiors directly refuted his explanation that he had the laptop because he was analyzing it as part of an international drug investigation. A rational jury could have found beyond a reasonable doubt either that Skinner stole the laptop, or that he aided and abetted the theft of the laptop. See United States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990).
Finally, Skinner argues that there was insufficient evidence to support his felony conviction for using or carrying a firearm during the commission of a crime of violence in violation of § 924(c), which was based on his underlying § 241 conspiracy conviction. Skinner essentially argues that, even though he was a police officer participating in the execution of search warrants and raids, the government presented insufficient evidence that he carried a firearm during these activities. We disagree. The government presented evidence that it was standard police procedure was for all members of a search team to have their weapons drawn and to keep them drawn while entering a location in connection with drug activity. This fact alone was sufficient for a rational jury to conclude beyond a reasonable doubt that Skinner used or carried a firearm in furtherance of the conspiracy.
Admitting that “this case stretches Leon‘s good faith exception to its elastic limit,” the Tenth Circuit finds the good faith exception saves a search without probable cause of a FedEx package, in part because the officer candidly included information that did not support probable cause showing the efforts to investigate. The District Court found no probable cause but good faith, and the Tenth Circuit, to its credit, fully analyzed the probable cause question first, agreeing with the District Court that probable cause was lacking. United States v. Reed, 195 Fed. Appx. 815 (10th Cir. November 30, 2006) (unpublished):
Our sequential analysis of the factors relied upon to establish probable cause should not be taken as a “divide-and-conquer” approach. United States v. Arvizu, 534 U.S. 266, 274 (2002) (rejecting “divide-and-conquer” approach to determining whether reasonable suspicion existed). We fully appreciate the synergy of disparate elements considered collectively and recognize our obligation to be guided by the totality of the circumstances. Whether considered individually or as an integrated whole, the facts presented do not amount to probable cause. Nevertheless, as we explain next, the evidence seized pursuant to the warrant need not be suppressed because the good-faith exception to the exclusionary rule applies.
The good faith exception was thoroughly analyzed and found to apply, apparently with some misgivings:
The affidavit in this case linked Reed to the envelope as Reed was its intended recipient. It also contained information linking the suspected criminal activity (transfer of contraband) to the envelope. The envelope contained characteristics which in Dunlap’s training and experience were associated with criminal courier activity. A previous package containing those same characteristics was found to contain counterfeit credit cards. And Reed’s criminal history was consistent with and supported the suspected criminal activity. Admittedly, this case stretches Leon’s good faith exception to its elastic limit, but a minimal (barely) nexus existed between the place to be searched, Reed and the suspected criminal activity.
This case also cited new F.R.A.P. 32.1 on the precedental value of unpublished opinions, even though new 32.1 applies to cases decided after January 1, 2007.
