State v. Hamdan

• Decision Date: 19 March 2013
• Docket Number: No. 2012–KK–1986.,2012–KK–1986.
• Citation: 112 So.3d 812
• Parties: STATE of Louisiana v. Mazen HAMDAN.
• Court: Louisiana Supreme Court

112 So.3d 812

STATE of Louisiana
v.
Mazen HAMDAN.

No. 2012–KK–1986.

Supreme Court of Louisiana.

March 19, 2013.

[112 So.3d 813]

James D. Caldwell, Attorney General, Orleans Parish District Attorney, Leon A. Cannizzaro, Jr., District Attorney, David Stephen Pipes, Jr., Assistant District Attorney, for Applicant.

J.C. Lawrence & Associates, LLC, Anthony James Ibert Esq., New Orleans, LA, for Respondent.

WEIMER, Justice.¹

[2012-1986 (La. 1]We granted certiorari in this case to consider the criteria by which the courts of this state are to evaluate a criminal defendant's previous conviction in a foreign jurisdiction during a habitual offender adjudication under La. R.S. 15:529.1(A). When a predicate offense does not necessarily include conduct criminal under Louisiana law, the conviction cannot lead to an enhanced penalty. In determining whether the predicate offense satisfies this criteria, courts are not confined to an examination of the applicable laws and the charging instrument of the foreign jurisdiction. Rather, when, as in this matter, there is information from the foreign proceeding available in the record that clearly establishes that the crime for which the defendant was convicted in a foreign jurisdiction would be a felony if committed in this state, courts are required to consider all of the available information in the record in deciding whether the foreign “crime which, if committed in this state would be a felony.” SeeLa. R.S. 15:529.1(A). Because the trial court unduly limited its review [2012-1986 (La. 2]in this matter to the applicable criminal laws and the charging instrument, we conclude that the trial court legally erred in quashing the state's habitual offender bill. Therefore, we reverse the decision of the appellate court, vacate the trial court's judgment granting defendant's motion to quash, and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 14, 2010, Mazen Hamdan (defendant) was charged with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. The bill of information states that defendant was previously convicted in Orleans Parish of possession of heroin and possession of methadone, which were used in the trial for the underlying weapon offense. A jury found defendant guilty as charged, and he was sentenced to serve 10 years of imprisonment at hard labor.

On the day of the sentencing hearing, the state filed a habitual offender bill of

[112 So.3d 814]

information alleging that defendant's sentence should be enhanced under La. R.S. 15:529.1(A)(1) due to his prior guilty plea in federal court to interstate transportation of stolen property, a violation of 18 U.S.C. § 2314. Defendant then filed a motion to quash the habitual offender bill in which he contended that the predicate offense alleged by the state had no felony equivalent in Louisiana. Defendant also alleged that the charging instrument in the federal prosecution did not indicate whether he actually possessed the stolen property or simply arranged for its transportation. The state opposed the motion to quash, contending that an equivalent offense exists under state law, that is, illegal possession of stolen things. SeeLa. R.S. 14:69. The state observed that the factual basis for the federal plea established that defendant knowingly and personally transported stolen construction equipment that he intended to sell for $13,000.

[2012-1986 (La. 3]At the hearing on the motion to quash, the state offered into evidence the indictment and criminal complaint related to defendant's federal conviction and a supporting affidavit by a special agent for the Federal Bureau of Investigation (FBI). The state also introduced the “Factual Basis” statement, signed by defendant, defense counsel, and an Assistant United States Attorney, which had been filed in the federal proceeding.

The federal complaint contained an allegation that on or about February 2, 2007, defendant “did ... transport in interstate commerce, goods of a value of $5,000 or more, to-wit: a T180 Bobcat and trailer, knowing the same to have been stolen, converted, or taken by fraud, in violation of Title 18 United States Code, Section[ ] 2314.” In the attached supporting affidavit, the FBI special agent stated: a cooperating witness reported that defendant offered to sell stolen equipment, including two Bobcats and one trailer, for $13,000; a sale price of $8,000 was eventually negotiated; defendant agreed to transport the T180 Bobcat to Mississippi for an additional $1,000; and defendant arrived at a Mississippi rest stop as agreed.

The federal indictment provided:

On or about February 2, 2006, in the Eastern District of Louisiana, the defendant, Mazen Hamdan, did unlawfully transport and cause to be transported in interstate commerce from the State of Louisiana, to the State of Mississippi, goods taken by theft, to wit, a T180 Bobcat and trailer, serial number 527513812, of the value of $5,000 or more, knowing the same to have been taken by theft, in violation of Title 18, United States Code, Section 2314.

The “Factual Basis” statement indicates that the following would have been proven at trial. A cooperating witness reported to the FBI on January 30, 2007, that defendant offered to sell stolen equipment for $13,000. The equipment was described as a used T180 Bobcat, a used trailer, and a used 773 Bobcat with a Bush Hog. The cooperating witness met with defendant in New Orleans, Louisiana, and indicated [2012-1986 (La. 4]that the equipment was located near the 3300 block of Liberty Street close to Louisiana Avenue. On January 31, 2007, the cooperating witness and a task force officer (officer) went to the Liberty Street location and observed a T180 Bobcat, serial number 527513812, which was later identified as stolen. During a telephone conversation, defendant agreed to meet at a gas station in Gretna, Louisiana, to view other equipment that was for sale. From there, the parties all traveled to Harvey, Louisiana, where additional equipment was viewed. Defendant informed his potential buyers that the T180 Bobcat had been stolen from a New Orleans construction site. During a telephone conversation on

[112 So.3d 815]

February 1, 2007, the officer and defendant negotiated a purchase price of $8,000 for the T180 Bobcat and the trailer, with defendant agreeing to transport the Bobcat to Mississippi and deliver it to the officer's representative for an additional $1,000. As agreed, defendant arrived at a highway rest area in Mississippi with the stolen T180 Bobcat the next day where he met with the officer's representative. Defendant then informed the officer by telephone that he would release the Bobcat to the officer's representative after $9,000 was delivered to defendant's brother, who would be driving a white van, at the Gretna gas station where they had previously met. About an hour later, the officer met defendant's brother as instructed and arrested him. The Bobcat was recovered and determined to have been reported stolen in New Orleans on January 17, 2007. The value of the Bobcat was stipulated to be more than $10,000, but less than $30,000.

At the motion hearing in this matter, defendant argued that the trial court should only consider the allegations in the federal charging instrument in determining whether there is an analogous criminal provision under state law. The state disagreed. However, if the analysis should be so confined, the state observed that the allegation in the charging instrument that defendant knowingly transported goods [2012-1986 (La. 5]taken by theft suffices because the transportation was an act of dominion and control that amounts to constructive, if not actual, possession.

After the hearing, the trial court quashed the habitual offender bill, resulting in the state applying for review from the court of appeal. In denying the state's writ application, the appellate court rejected the state's contention that 18 U.S.C. § 2314, pertaining to the transportation in interstate commerce of goods valued at $5,000 or more with knowledge that the goods have been stolen, is analogous to La. R.S. 14:69, pertaining to illegal possession of stolen things. The court noted possession is not an element of 18 U.S.C. § 2314, which does not require that a person actually transport anything himself. See State v. Hamdan, No. 12–0746, p. 9 (La.App. 4 Cir. 8/10/12) (unpublished). The federal indictment contained an alternative allegation that defendant merely arranged for the transportation. Id. According to the court of appeal, a violation of the federal statute could occur in a manner that could constitute illegal possession of stolen things under state law or in a manner that would not violate the state law. See Id., 12–0746 at 9–10. Because 18 U.S.C. § 2314 does not contain an element of possession, the court of appeal found no error in the trial court's ruling. See Id., 12–0746 at 12. However, the appellate court acknowledged that the factual basis statement to which defendant subscribed when pleading guilty in federal court indicated “[w]ithout question ... the offense, to which the defendant admitted committing when he pled guilty, constituted both transportation of stolen property across state lines, a violation of 18 U.S.C. § 2314, and constituted the crime of illegal possession of stolen things, a violation of La. R.S. 14:69.” Id., 12–0746 at 11. Nonetheless, the appellate court found the fact that 18 U.S.C § 2314 does not require proof of possession to be dispositive of the issue presented in this case. See Id., 12–0746 at 12.

[2012-1986 (La. 6]A concurring judge opined that transportation under 18 U.S.C. § 2314 necessarily involves at least attempted constructive possession. See Hamdan, 12–0746 at 1 (Bonin, J., concurring), citingLa. R.S. 14:27(D)(a)-(b); La. R.S. 14:2(A)(4) & (6). According to the concurrence, because an attempt to receive stolen things under state law is a one-year...