U.S. v. Chase
| Decision Date | 13 September 2002 |
| Docket Number | No. CR. 01-10198-NG.,CR. 01-10198-NG. |
| Citation | 221 F.Supp.2d 209 |
| Parties | UNITED STATES of America, v. Erica CHASE, and Leo V. Felton, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Mitchell J. Notis, Annenberg & Levine, LLC, Brookline, MA, for John A. Martino, plaintiff.
Walter B. Prince, Laurie L. Rubin, Prince, Lobel, Glovsky & Tye, LLP, Boston, MA, Daniel S. Tarlow, Prince, Lobel, Glovsky & Tye, Boston, MA, for Massachusetts Bay Transportation Authority, defendant.
MEMORANDUM AND ORDER RE: MOTIONS OF DEFENDANTS FELTON AND CHASE FOR JUDGMENT OF ACQUITTAL ON COUNT THREE OF THE INDICTMENT
Count Three of the Second Superceding Indictment ("Indictment") charges both defendants Leo V. Felton ("Felton") and Erica Chase ("Chase") with knowing possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (" § 924(c)" or "Section 924(c)").1 The crime of violence implicated here is conspiracy to make and possess a destructive device in violation of 18 U.S.C. § 371 and 26 U.S.C. §§ 5822, 5841, and 5861(d) and (f).2 The jury found both defendants guilty of this offense, based in part on the fact that a firearm was found in the apartment shared by Chase and Felton at 59 Salem Street, in the North End of Boston. Neither defendant was carrying the firearm at the time of his or her arrest.
Both defendants moved for acquittal at the close of the government's case and at the close of the evidence.3 See Fed. R.Crim.P. 29(a). They promptly renewed their motions after the jury returned its verdict.4 See Fed.R.Crim.P. 29(c) ().
The crimes of which the defendants have been convicted are serious ones, and deeply, deeply, troubling. But my charge is to look, with a neutral eye, at the law — whether it has been appropriately applied here; what precedent it sets for other cases.
On the other hand, the standard on a motion for acquittal is a strict one: "[i]f the evidence presented, taken in the light most flattering to the prosecution, together with all reasonable inferences favorable to it, permits a rational jury to find each essential element of the crime charged beyond a reasonable doubt, then the evidence is legally sufficient." United States v. Olbres, 61 F.3d 967, 970 (1st Cir.1995).
At the same time, the critical issue here is a legal one, not a factual one. Does section 924(c) apply to these facts? Its language? Its legislative history? The decisional law interpreting it? On this issue, I write on nearly a clean slate. There is virtually no precedent for applying this section to facts like those present in the case at bar.
After reviewing the transcripts of the trial, and counsel's submissions, I hereby ORDER that the defendants' motions for a judgment of acquittal as to Count Three of the Indictment is GRANTED. Felton's motion for a judgment of acquittal on Count Eleven of the Indictment is DENIED.
One further note: The act of possessing the gun that is the subject of these motions will not go unpunished. The government has convicted Felton for possessing the gun in question through Count Four of the Indictment (felon in possession). The government will clearly argue during sentencing that I should apply the sentencing enhancement for gun possession under U.S.S.G. § 2D1(b)(1), arguably increasing the sentencing range for the explosive device charge, but not triggering a consecutive mandatory minimum term under § 924(c). See United States v. Juan, 59 F.Supp.2d 210, 214-217 (D.Mass.1999).
In March 2001, while she was living in Indiana, Erica Chase obtained a gun, a 40 caliber Iberia semi-automatic pistol, from her employer, John Gaunder ("Gaunder"). Gaunder testified that Chase called him twice to arrange for the purchase of a gun and expressed an interest in purchasing a second gun. When he refused to sell her a second gun, she told him that if he later came across any other guns, she would be interested in buying them.
To James Niemczura ("Niemczura"), her friend, Chase reported that the gun was "for protection." Trial Transcript ("Tr.") 842. When asked what kind of protection she needed, Niemczura reported that Chase said, "from anyone trying to interfere with her plan." Tr. 847.
The government focuses on this statement as an important component of its claim that possession of the firearm was "in furtherance of" a conspiracy to make an explosive device. First, it should be noted that the statement — characterizing her purpose in purchasing the gun — is admissible only against Chase. Niemczura is not a co-conspirator.5 See United States v. Patterson, 644 F.2d 890 (1st Cir.1981) ().
Second, there is some question as to what the plan was at the time Chase made the statement, and to what degree it was coincident with the conspiracy charge — conspiracy to make and possess an unregistered destructive device.
That the plan concerned Felton and that it involved white supremacist and illegal activities seemed clear, based on all the evidence.
Chase had shared with Niemczura the fact that she had corresponded with Felton (although they had never met face to face) while Felton was in prison, that she and Felton were going to "go down in history," that Niemczura would read about the details of her plan in the papers, and that they would become "outlaws." Tr. 847-48. She also told him that they were going to burn off their fingerprints and assume the identities of missing children, that they were going to "go around and be terrorists," but gave him no details of their plans in case he was ever questioned.6 Id.
The Felton-Chase correspondence suggests the same themes — white supremacist activities, committing crimes (including bombings) — but offers no concrete plans or mention of a gun.7
The government introduced evidence of a substantial number of calls between Felton and Chase, coincident with Chase's purchase of the firearm.
Looking only at the evidence admissible against Chase, I conclude the following: While Niemczura indicated that Chase did not talk specifically about violent acts or explosive devices,8 and while the Felton-Chase correspondence also dealt in generalities, a fact-finder could conclude that Chase's reference to "plan" covered all of these activities — violent and non-violent, some included within § 924(c), some not. The question, as I describe below, is whether that conclusion fits the very specific language of § 924(c) — "possession" of a firearm, "in furtherance" of "a crime of violence."
During the same period, Felton was acquiring books describing how to assume a new identity as well as how to make explosives and silencers, and was writing to other co-conspirators concerning a plan for a "museum." A co-conspirator, Michael Reid, wrote back to instruct him to 9 A document given to visitors to the Holocaust Memorial in Washington, D.C. and a newspaper clipping regarding the Boston Holocaust memorial were found in the apartment shared by Chase and Felton.
While Chase was still in Indiana, in February 2001, Felton was released from prison and moved to Ipswich with his wife, Lisa Meetre Felton ("Meetre").10 Many years earlier, in November 1996, Meetre had obtained a gun other than the firearm charged in connection with Count Three for Felton. The jury found that this gun had been brandished in a bank robbery committed by Thomas Struss with Felton's aid, in February 2001.11 Struss testified that Felton had enlisted him in the robbery in order to get money for white supremacist activities.
By February 27, 2001, however, after the bank robbery and in the middle of a carjacking, Struss was arrested with Meetre's gun. Around the end of March 2001, Felton indicated to Meetre that he intended to obtain another gun from "a man named Brad." Tr. 738-39. Chase, who had been in touch with Felton regularly, purchased her gun around the same time period, just prior to her meeting him and moving in with him at the Salem Street apartment.
In April 2001, Chase came to Boston and met Felton for the first time. On April 9, 2001, Chase met Felton with her friend, Kathy McGaffigan ("McGaffigan"). McGaffigan reported that Felton spoke about building a bomb, and the crime of "shoot[ing] niggers" in Chase's presence, but that she did not ever see him or Chase carrying the gun. However, Chase told McGaffigan that she would keep the gun when she and Leo went out together because Leo was not allowed to possess a weapon.12
After Chase's and Felton's arrest, Chase called McGaffigan and asked her to remove items from the 59 Salem Street apartment, including counterfeit money, white supremacist literature, a 50 pound bag of ammonium nitrate, and a gun. The gun, which was loaded, was on the night stand in the bedroom, the same room as the bag of ammonium nitrate. Chase and Felton lived in that apartment; their personal effects were within it.
Felton and Chase claim that there is insufficient evidence to find them guilty of the crime of possession of a...
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...apartment was actually possessed "in furtherance" of a crime of violence (here, the explosives charges). United States v. Chase, 221 F. Supp.2d 209, 221 (D.Mass. After the verdict, I asked the jurors if they wished to speak with counsel in my presence. They declined. I then went to the jury......