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United States v. Palmer

United States District Court, N.D. Indiana, Fort Wayne Division

August 28, 2017

UNITED STATES OF AMERICA,
v.
MICHAEL PALMER,

          OPINION AND ORDER

          THERESA L. SPRINGMANN, CHIEF JUDGE.

         The Defendant, Michael Palmer, has pled guilty to violating 18 U.S.C. § 922(g)(9) for possession of a firearm while classified as a prohibited person. An officer with the United States Probation Office prepared a Presentence Investigation Report (PSR) in anticipation of the Defendant's sentencing. The Final PSR [ECF No. 34] included two enhancements: a four-level enhancement, pursuant to U.S.S.G. § 2K2.1(b)(5), for the Defendant having “engaged in the trafficking of firearms, ” and a two-level enhancement, pursuant to U.S.S.G. § 2K2.1(b)(4)(A), for the firearms having been stolen. The Defendant objects to the inclusion of both enhancements in the PSR, arguing that the facts do not show that the Defendant engaged in a conspiracy to traffic firearms or that the firearms were stolen.[1] If the Court determines that the enhancements are properly applied, then the adjusted offense level should be 28, and the total offense level should be 25. If the Court determines that either or both of the enhancements are not properly applied, then the United States Probation Office must revise the adjusted offense level downward.

         BACKGROUND

         The following is based largely on the evidence presented at the Evidentiary Hearing [ECF No. 40] held on April 19, 2017. The Defendant met Sie Merriman around August 2015. After being acquainted for only two months, the Defendant “purchased a 1962 Chevrolet Impala from [Merriman], [and] paid him approximately $2, 000.” (Apr. 19, 2017 Hr'g Tr. 7:7-9, ECF No. 43.) However, “when it came time to get the title and the car, [Merriman] did not produce” the car and gave the Defendant a defective title, which, because it “had white out on it, ” prevented the Bureau of Motor Vehicles from transferring title into the Defendant's name. (Id. at 7:7-9, 7:22-23.) The Defendant asked for his money back on multiple occasions, but, instead of returning the Defendant's cash payment, Merriman suggested “purchasing things instead of just handing [the Defendant's] money” back to him. (Id. at 8:14-15.) The Defendant agreed to Merriman's proposal “just because [he] was out money and [he] just wanted something-the money or something of that value to replace what [he] had lost.” (Id. at 10:17-21.)

         Eventually, Merriman suggested purchasing firearms that were worth approximately $1, 800 to satisfy his debt. (See Id. at 32:12-18.)[2] At the time of this proposal, the Defendant had a prior misdemeanor conviction and, unbeknownst to the Defendant at the time, Merriman had a prior felony conviction, which meant that neither could legally purchase the firearms on their own.[3] Consequently, Merriman suggested that they convince Kristal Hiner, the Defendant's significant other, to purchase the firearms, and the Defendant did not question this suggestion. (See Id. at 18:9-12.)

         On December 4, 2015, the Defendant, Hiner, and Merriman went to two firearms sellers in Fort Wayne and purchased a total of five firearms.[4] Hiner was listed as the owner for each firearm, and Merriman paid for the firearms with checks, which “he told [the Defendant were] company check[s].” (Id. at 14:7.) The Defendant knew nothing about Merriman's “company, ” did not see the checks that Merriman wrote out, did not “participat[e] in writing out the check[s] or giving [them] to the employee[s] at the store[s], ” and did not otherwise have any knowledge that Merriman wrote the checks on a closed account. (See Id. at 14:12-16:9.) The five firearms were taken to the Defendant's home that evening.

         Although the Defendant's relationship with Merriman was limited to the car sale and subsequent firearm purchase, Merriman stayed at the Defendant's home that night. (Id. at 20: 8- 10.) The next day, the Defendant and Hiner also agreed to drive Merriman to Kentucky to “see his baby mother and his daughter.” (Id. at 19:11-12.) Despite his previous attempt to sell to the Defendant a 1962 Chevrolet Impala, Merriman claimed that he did not own a vehicle and needed transportation. There had not been any prior discussion of such transportation. Because the Defendant thought that the firearms purchase satisfied Merriman's obligations for the Impala, he agreed to the trip only because “he felt sorry for [Merriman].” (See Id. at 24:11-16.)

         During the drive to Kentucky, the Defendant assumed that all of the firearms were left in Indiana, but when the Defendant stopped at a gas station, he noticed that Merriman was carrying one of the purchased firearms. The Defendant and Hiner did not confront Merriman about the firearm until they arrived in Kentucky, at which point they “asked him for it back, and he just kind of laughed, and didn't say anything.” (Id. at 22:16-22.) Merriman did not return the firearm and also did not return to Indiana with the Defendant and Hiner.

         “About 3 or 4 days” after purchasing the firearms and after the road trip to Kentucky, one of the firearm sellers contacted Hiner and the Defendant to notify them that “the check was not good; that it was a closed account.” (Id. at 16:15, 17:3-5.) At that point, the Defendant was in possession of only three of the five firearms. Merriman still possessed the one he took to Kentucky. (Id. at 23:17-18.) The Defendant “looked for [the other one], and [he] assumed that [Merriman] had that one also. [He] just didn't see it.” (Id. at 23:20-21.) The Defendant and Hiner returned the three firearms to the seller but did not pay the replacement value for the two missing firearms.

         ANALYSIS

         The government bears the burden to prove disputed facts and issues exist that will lead to an increase in offense level. United States v. Knox, 624 F.3d 865, 873 (7th Cir. 2010). Pursuant to the Commentary in U.S.S.G. §6A1.3, the preponderance of the evidence standard is the appropriate standard to resolve disputes regarding the application of the guidelines to the facts of the case. See United States v. Lucas, 670 F.3d 784, 792 (7th Cir. 2012) (citing United States v. England, 555 F.3d 616, 622 (7th Cir. 2009)).

         A. U.S.S.G. § 2K2.1(b)(5) - Enhancement for Trafficking

         Based upon the evidence presented at the Evidentiary Hearing and the corresponding briefs, the Court finds that the Government has not met its burden to show that the enhancement for trafficking applies in this case. According to the Commentary for U.S.S.G. § 2K2.1(b)(5), Application Note 13, the enhancement for trafficking applies if the Defendant:

(i) transported, transferred, or otherwise disposed of two or more firearms to another individual, or received two or more firearms with the intent to transport, transfer, or otherwise dispose of firearms to another individual; and
(ii) knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an individual
(I) whose possession or receipt of the firearm would be unlawful; or
(II) who intended to use or dispose of the firearm unlawfully.

         The evidence does not establish by a preponderance of the evidence that the Defendant “knew or had reason to believe” that he was engaged in the trafficking of firearms. Instead, the testimony offered at the Hearing tends to show that Merriman used the Defendant and that the Defendant was unaware that Merriman was using him. Merriman's deceit was a constant theme throughout the relationship: he “sold” the Defendant a 1962 Impala that he did not own; he offered to “repay” the Defendant with a lesser amount in the form of firearms-not in cash (which he had received); he convinced the Defendant to involve Hiner in the purchase of the firearms that neither he nor the Defendant could legally purchase; he stole at least one of the firearms from the Defendant's home; and finally, he used the Defendant as a method of transportation to Kentucky.

         Further, the substance of the Defendant's testimony, as well as his demeanor during the Hearing, shows that the Defendant is not an overly discerning individual and too easily trusts others. Merriman effectively swindled $2, 000 from the Defendant with the car sale and then convinced the Defendant to accept repayment not only in an alternate form (firearms), but also for a lesser amount ($1, 800). Defendant knew that Merriman wrote checks to the firearm sellers-if Merriman could write checks for the sale of the firearms, certainly he could satisfy his debt to the Defendant with a check. But despite such inconsistencies in Merriman's behavior, the Defendant did not insist that Merriman simply return the cash and accepted Merriman's clearly disadvantageous proposal. Moreover, the Defendant took pity on Merriman and drove him to Kentucky because Merriman claimed he did not have a car. The Defendant trusted this statement despite the fact that the primary basis for his relationship with Merriman was the purchase of a car that Merriman supposedly owned. The Defendant should have questioned this discrepancy before agreeing to drive Merriman to Kentucky. Moreover, the Defendant did not suspect that Merriman had any sort of criminal history until a few weeks after the firearm seller contacted Hiner regarding the bad checks when a mutual friend hinted that Merriman had been to prison.

         Upon learning that Merriman's checks were bad, the Defendant returned three of the firearms but failed to confront Merriman and attempt to retrieve the remaining firearms.

         The Government's evidence also shows that the Defendant is easily manipulated. His answers during the Hearing differed from his interview with ATF on April 27, 2016, in multiple ways, as demonstrated by the following exchanges on cross-examination:

Q. Okay. When you were interviewed by ATF [on April 27, 2016], do you remember telling them that you knew that Sie had been to prison, so you assumed he was a felon about 5 minutes ...

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