Strike 3, he’s out. Federal Armed Career Criminals Act gets man 15 years.

A Brockton police officer on a paid detail responding to shots fired outside of a bar initiated a foot chase that would ultimately lead to 15 years behind federal bars for three-time loser Jerome Weekes.

The full text version may be found here: http://www.scribd.com/doc/34126862/United-States-v-Weekes

Appellant Jerome Weekes and his associate Kelvin Brown were thrown out of a bar after arguing with another patron. Brockton Police Officer Michael Darrah, who was working as paid security at the bar, heard gunshots coming from their direction, called for backup, and gave chase. Darrah caught Brown as he and Weekes were trying to jump a fence. Weekes cleared the fence but was arrested by another officer a moment later. A search turned up Weekes’s cell phone and a loaded gun near where he had landed, and two spent shell casings in the area from which Darrah believed the sounds of shooting had come.

Weekes was indicted on one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g), and was found guilty by a jury. The district court sentenced him to 15 years’ imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Facing all that time in prison, Weekes and his attorneys appealed on several grounds. Unfortunately for Mr. Weekes, the United States Court of Appeals for the First Circuit didn’t buy his argument and the citizens of Brockton, the Brockton Police, and every other law-abiding person in the Commonwealth will be just a little safer for the next 15 years.

First, Weekes argued that he was denied his 6th Amendment rights because the jury did not contain any African-Americans. The court did not find any “systematic effort” by the Commonwealth to exclude any race from the jury and that argument was dismissed.

Next, Weekes argued that the district court permitted the Government to impeach Weekes by asking him about his use of such nicknames as “Ice” and “Unk” and about his use of false social security numbers. The testimony about the social security numbers went to credibility and was therefore admissible under Federal Rule of Evidence 608(b). The relevance to Weekes’s truthfulness of what the Government calls his “aliases” may be less clear, but the court did not see (and Weekes did not explain) how the jury’s awareness of these particular nicknames could possibly have caused him harm. Again, his argument fell flat.

Since those arguments didn’t work, Weeks came up with a few more. He argued that the district court erred when it did not allow Weekes to testify that Brown had told him that he (Brown) had picked up the gun after it was dropped from a passing vehicle from which the two had been fired upon. Weekes argued that this statement was not excludable under the hearsay rule because it was a statement against penal interest and Brown was unavailable to testify at trial. The sticking point here is the required showing of Brown’s unavailability, and the court did not think Weekes had demonstrated abuse of discretion in the district judge’s finding that Weekes had not “show[n] at least a good faith effort to procure the witness’[s] attendance,” a standard described as “relatively high.”

He apparently did try to find Brown through Brown’s friends and family, but he neither subpoenaed Brown at his last known address nor sought help from the district court, local law enforcement, or, curiously, Brown’s counsel in the state court action in which the two were co-defendants. (good faith standard “cannot be satisfied by perfunctory efforts”). Weekes ran into the further admissibility problem that he had not established that “corroborating circumstances clearly indicate the trustworthiness of the [out-of-court] statement.” It is not enough to point, as Weekes does, to evidence that Brown made the statement; “there must be indicia of trustworthiness of the specific, essential assertions” to be repeated, United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997), and Weekes points to none. The court saw no abuse of discretion in excluding Brown’s hearsay.

Weekes had a couple more arguments that we don’t have time or space to go into here, but can be found in the full text version, however, the final and most interesting was centered around the elements of the Armed Career Criminal Act (ACCA).

The ACCA mandates a 15-year minimum prison term for a defendant convicted of being a felon in possession of a firearm if the defendant has “three previous convictions . . . for a violent felony or a serious drug offense, or both.” § 924(e)(1).

Weekes denied that he had three qualifying convictions. Two of Weekes’s convictions were for drug offenses in violation of Massachusetts law. They qualify as “serious drug offense[s]” under the ACCA if “a maximum term of imprisonment of ten years or more is prescribed by law.” § 924(e)(2)(A)(ii). Weekes acknowledged that his crimes were potentially punishable by ten years’ imprisonment, but called this irrelevant because he was in each instance tried in the alternative prosecutorial venue of a state district court, which was not authorized to sentence higher than two and one-half years.

But the court rejected this argument in United States v. Moore, 286 F.3d 47, 49 (1st Cir. 2002), and saw nothing in the Supreme Court’s intervening decision in United States v. Rodriquez, 553 U.S. 377 (2008), to require them to revisit the issue. On the contrary, Rodriquez instructed the court to look to “the maximum term prescribed by the relevant criminal statute,” id. at 391, rather than external limitations on “the term to which the state court could actually have sentenced the defendant” in a particular case, id. at 390.

The district court also counted Weekes’s state conviction for resisting arrest, as an ACCA predicate, which it was if resisting arrest is soundly categorized as a “violent felony” under that statute. In United States v. Almenas, 553 F.3d 27, 32-35 (1st Cir. 2009), the court held that resisting arrest qualified as a “crime of violence” under U.S.S.G. § 4B1.2, and because that Guideline and the ACCA are similarly worded, the holding in Almenas applies here to treat Weekes’s conviction as a violent felony under the statute. See id. at 34 n.7.

Weekes further suggested that, because stiffening one’s arms or fleeing willfully can qualify as resisting arrest in Massachusetts, the court must look at the record of his conviction to determine if his conduct was in fact violent. But in Almenas, the court rejected this argument, which is at odds with the categorical method for identifying qualifying felonies, 553 F.3d at 35 & n.9, and the court did not read Chambers to undermine their reasoning.

In any event, arm movement and flight by an arrestee of the type that would violate the Massachusetts statute struck the court as more akin to escape than the failure to report that Chambers held not to be a violent felony. See Chambers, 129 S.Ct. at 691 (“The behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.”); Commonwealth v. Montoya, 73 Mass. App. Ct. 125, 130, 896 N.E.2d 638, 642 (2008) (construing § 32B to reach “a defendant’s flight where the circumstances of such flight expose his pursuers to a ‘substantial risk of bodily injury’” but not “mere flight on foot from arrest” ); see also United States v. Pratt, 568 F.3d 11, 22 (1st Cir. 2009) (holding that escape from secure custody is a violent felony).

So the appeals court rejected Weekes arguments and he is off the streets of Brockton and behind bars in one of those prisons so aptly described by Samir Nagheenanajar in “Office Space” using language that we wont go into here.

From “Office Space”

“Federal…Prison”

My only remaining question is whether a Massachusetts Court would classify all “Resisting Arrest” cases as “crime(s) of violence” as so defined by the United States Sentencing Guidelines. Based upon the recent decisions by the SJC I wouldn’t be so sure. http://policelegal.com/2010/06/15/in-2-new-cases-sjc-gives-more-clarity-to-resisting-arrest/

About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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