359. Best shot

The Sixth Circuit recently issued a routine little opinion, U.S. v. Mayberry.  I'm not sure why they bothered to publish it.  I guess it says something new about federal sentencing (all I know about the subject is that it would be unconstitutional if any state did the same).

After an introductory first paragraph, the opinion reads:

Although Defendants James Peoples and Shawn Mayberry were charged only as felons in
possession of a firearm, not with armed robbery, both Defendants allegedly participated in a string
of such robberies prior to their December 24, 2005 arrest. On October 30, 2005, the night of the first
robbery, three men wearing dark clothes and ski masks entered a D & W Food Store in Grand
Rapids, Michigan at just before midnight. At least two of these men were armed, and both of the
armed men were described by witnesses as African-American. Additionally, one of the armed
robbers was carrying an assault rifle with a wooden stock and distinctive scratches in the wood.
During the two minutes the robbers spent in the store, approximately $5000 was stolen.

On November 19, 2005, four armed men wearing masks entered a different D & W Food Store at just before midnight. One of these men was carrying an assault rifle just like the one used in the first robbery. In addition to stealing money, the robber carrying the assault rifle attempted to steal several cartons of Newport and Kool brand cigarettes, but the cartons he grabbed were empty    displays. After robbing the store, the men fled in a black, four-door pick-up truck which fit the description of a truck which had been rented by Defendant Peoples’ cousin Lashenica Armstrong.

Then a man named Mario contacted police to inform them that he had found an AK-47 at his sister's house, which he confiscated and wished to turn over.  (Interesting conversation around the Thanksgiving table in that family.)  Of course, the AK-47 matched the gun used in the robberies. 

Mario's sister was the mother of James Peoples' children.  Peoples called  Mario for help in concocting a story to explain why his fingerprints were on the gun. Then an informant came forward and told police that Peoples and Mayberry had tried to recruit him to participate in a third robbery.  Peoples and Mayberry were on their way to the home of the target when police, thinking the situation had the potential for getting out of hand, arrested them.

At the police station Peoples got himself tangled up in his stories, and when left alone in the interview room (a tape recorder was running, of course) he talked to himself, saying: "I'm hit."

Did I mention there was surveillance video from the robberies, and Peoples identified his buddy Mayberry as one of the robbers?  You can see a still from the video here.  He also admitted that he smoked Newport cigarettes, the preferred brand of one of the robbers.

The really interesting thing about the case is that first line of the block quote.  Peoples and Mayberry weren't charged with robbery, or with assaulting the various people they pointed major firearms at.  They were charged with being felons in possession of firearms.

Assistant US Attorney Timothy VerHey (I have to admit I have never in my life met a person named VerHey) told a Grand Rapids TV reporter:

"We always sit down with the local authorities and decide where are we going to have our best shot, 'cause we want to defiantly get these guys of the street," said VerHey. "In this case, it was better to take it to federal court."

In Peoples' federal trial, prosecutors presented all the evidence of his involvement in the armed robbery.  Mayberry pled guilty to one count of being a felon in possession, and at his sentencing hearing "the judge found by a preponderance of the evidence that [he] had been involved in at least one armed robbery and eventually sentenced him to 110 months imprisonment."

My impression is that it's becoming increasingly common for ordinary street crimes to be prosecuted in federal court. 

I know here in New Mexico there's been a massive transfer of drug cases from state to federal court, thanks to our appellate courts which "interpret" the New Mexico Constitution to provide more "protection" than its federal counterpart, with the wholly- predictable result that the defendants are prosecuted in federal court and wind up stripped of their assets and serving sentences many times longer  than any they would have received in our state courts.

The Michigan case suggests a similar trend for violent crimes, something the feds rarely touched not so long ago.  I don't doubt that it was a whole lot easier proving the elements of possession of a firearm beyond a reasonable doubt than it would have been to prove robbery. In fact, I'm not sure the federal prosecutors had anything actually to prove, since Peoples admitted touching the AK-47.  (The story he eventually worked out was that he thought it was a toy and picked it up casually when he saw it at his girlfriend's house.)

It was certainly much easier to prove the robberies by a preponderance of the evidence - the standard required for imposing a lengthy federal sentence - than beyond a reasonable doubt.

And it might well be that the sort of sentence Michigan courts hand down for armed robberies likely wouldn't have added up to much more than 110 months, anyway.

But isn't it weird that we're prosecuting people for their commission of one crime by charging them with committing a different one? 
 

It's yet another aspect of our criminal justice system's detachment from reality.  By making conviction on robbery so procedurally difficult, the courts have created incentives to invent new crimes, with simplified elements but equally-long sentences.

I'm not sorry to learn about the incarceration of anybody who walks into a supermarket with an AK-47 and orders everybody to the floor.  But it would be healthier all the way around if we imprisoned them for what they actually did.