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United States v. Ammad Bashaun Perry, A/K/A Benjamin Franklin Moffit
Citations: 335 F.3d 316; 2003 U.S. App. LEXIS 13940; 2003 WL 21571696Docket: 02-4669
Court: Court of Appeals for the Fourth Circuit; July 11, 2003; Federal Appellate Court
Ammad Bashaun Perry, also known as Benjamin Franklin Moffitt, was convicted of witness tampering under 18 U.S.C. § 1512(b)(3). On appeal, he argued insufficient evidence supported his conviction, claimed prosecutorial vindictiveness warranted dismissal of the charge, and sought a new trial. The U.S. Court of Appeals for the Fourth Circuit, with Judge King writing the opinion joined by Judges Traxler and Gregory, affirmed the conviction. The case arose from an incident on March 15, 2001, when Montgomery County police stopped Perry's speeding vehicle. He failed to produce a driver's license but provided the registration belonging to his mother. During the stop, Perry gave misleading information about his identity and residence. Following his consent, officers searched the vehicle, discovering a knife, brass knuckles, a metal pipe, a wooden shank, and a loaded .380 caliber handgun with an obliterated serial number. Perry was arrested on weapons charges and, during transportation, solicited officers to dispose of the gun, offering to provide information in return. Upon booking, Perry continued to assert his false identity. However, fingerprinting revealed his true identity and a prior felony conviction. Consequently, the case was referred to federal authorities for prosecution. The court ultimately found no merit in Perry's arguments, leading to the affirmation of the original verdict. On June 6, 2001, a grand jury in the District of Maryland indicted Perry on two charges: being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and knowingly possessing a firearm with an obliterated serial number (18 U.S.C. § 922(k)). A jury trial held from April 9 to April 12, 2002, resulted in a mistrial due to jury deadlock. Subsequently, on May 1, 2002, a second grand jury issued a three-count superseding indictment, adding a charge of federal witness tampering (18 U.S.C. § 1512(b)(3)) for providing false identification to law enforcement. Perry's motion to dismiss this charge was denied by the court, which began his second trial the following day. After the prosecution's case, Perry moved for acquittal on all counts; the court denied this for the firearm charges but reserved ruling on the witness tampering count. At the end of the trial, the jury acquitted Perry of the firearm charges but convicted him of witness tampering. Perry's subsequent motions for acquittal or a new trial were denied, leading to a sentence of twenty-one months in prison followed by three years of supervised release. Perry appealed the conviction, asserting three main challenges: insufficient evidence for the witness tampering conviction, abuse of discretion by the court in denying the new trial motion, and failure to dismiss the charge on grounds of prosecutorial vindictiveness. Each of these contentions is addressed in the appellate review. The review process emphasizes that a guilty verdict must be upheld if substantial evidence supports it, and it does not allow weighing evidence or assessing witness credibility. The appellate court also evaluates the district court's discretion in granting new trials and the presumption of prosecutorial vindictiveness based on the likelihood of such motives. Perry argues that the evidence presented at trial was insufficient to support his conviction for witness tampering under 18 U.S.C. § 1512(b)(3). He claims the prosecution did not prove he intended to obstruct communication with federal law enforcement by providing false personal information. To secure a conviction, the government must show that the defendant knowingly engaged in misleading conduct with the intent to hinder communication regarding a potential federal offense. Perry acknowledges misleading conduct but denies any intent to obstruct federal communication. The statute protects the integrity of federal investigations by ensuring truthful information transfer. Importantly, while a defendant must intend to hinder communication, the prosecution does not need to prove the defendant's awareness that the officers involved were federal. The Third Circuit clarifies that it suffices to show the defendant intended to influence a federal investigation. The jury had sufficient evidence to conclude that Perry intended to hinder communications related to a federal investigation regarding his illegal possession of a firearm. Testimony indicated he urged officers to dispose of the firearm and provided false information during booking, influencing the investigation's direction. Once his true identity was revealed, the case was referred for federal prosecution. Perry's knowledge of the federal nature of the investigation was irrelevant; the key was his intent to influence it. Thus, the evidence was adequate for the jury to determine that Perry violated § 1512(b)(3). Perry argues that the district court erred by denying his motion for a new trial based on an inconsistent verdict. Under Rule 33 of the Federal Rules of Criminal Procedure, a new trial may be granted if the interest of justice requires it. The court determined it acted within its discretion, asserting that a defendant cannot challenge a conviction solely due to inconsistencies with a jury's acquittal on another charge. Perry claims the inconsistency indicates jury confusion stemming from improper instructions and a faulty verdict sheet. He asserts that the jury was allowed to convict him under 18 U.S.C. § 1512(b)(3) for misleading conduct related to any police investigation instead of just federal ones. However, the court clarified that the jury instructions required a finding that Perry's intent was to prevent communication about a federal offense, particularly in relation to the ATF. The court found no errors in the instructions or the verdict sheet that would warrant a new trial. Perry also contends that the addition of a witness tampering charge after he sought a mistrial raises a presumption of prosecutorial vindictiveness. The Government counters that such a presumption is not justified when a mistrial is declared without opposition and due to a deadlocked jury. The right to due process protects defendants from vindictiveness for exercising constitutional rights. However, the Supreme Court has stated that the presumption of vindictiveness is only applicable in situations where there is a reasonable likelihood of such motives. A presumption of prosecutorial vindictiveness is typically applicable in post-conviction scenarios, particularly when a defendant successfully challenges a conviction and subsequently faces a harsher sentence upon retrial. Courts exercise caution in applying this presumption pretrial. The Supreme Court has ruled that such a presumption does not arise when the government fulfills a threat during plea negotiations to file additional charges against a defendant who refuses to plead guilty. The determination of whether a new charge following a mistrial due to a jury deadlock falls under post-trial or pre-trial vindictiveness is essential. The Seventh Circuit has noted that this situation lies between the two categories. When assessing the appropriateness of a vindictiveness presumption after a mistrial, the reason for the mistrial must be considered. In this case, the mistrial stemmed from a jury deadlock, and there is no realistic likelihood of vindictiveness in such scenarios where both parties agree to the mistrial. The presumption of vindictiveness is based on the principle that defendants should not be punished for exercising their rights. Since the mistrial was not a result of Perry exercising a protected right but was instead due to uncontrollable trial circumstances, there is no basis to presume that the United States Attorney was retaliating by filing a new charge. Therefore, a reasonable likelihood of vindictiveness does not exist, and the presumption is not warranted. Consequently, Perry's conviction for federal witness tampering is affirmed.