United States v. Jimmy R. Jones

62 F.3d 851, 1995 U.S. App. LEXIS 24104, 1995 WL 502852

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 25, 1995
• Docket: 94-3962
• Status: Published

Opinions

SILER, J., delivered the opinion of the court, in which MARTIN, J., joined. JOINER, District Judge (pp. 854-55), delivered a separate opinion concurring in part and dissenting in part.

SILER, Circuit Judge.

Defendant, Jimmy R. Jones, was convicted of manufacture and possession of an unregistered destructive device. He appeals both the conviction and sentence. He alleges two points of error: (1) the district court’s denial of his motion to suppress evidence found in two searches of his deceased wife’s vehicle; and (2) the court’s enhancement of his sentence based on the vulnerability of the victims. For reasons stated herein, the district court’s denial of his motion to suppress is affirmed. His sentence, however, is remanded for recalculation, as enhancement under the vulnerable victim provision is inappropriate.

I.

Jones, an Ohio State Patrolman, and his wife were involved in an automobile accident on August 31, 1991, in which Jones’s wife, Karen, apparently was killed. Police arriving on the scene began a fatal accident investigation, which included impounding the automobile. An autopsy revealed that Karen had been stabbed a number of times, and her death had been caused by a stab wound to the head. Jones was arrested on suspicion of murder.

Jones was interrogated, and, after waiving his Miranda rights, he admitted to having stabbed Karen. He told police that the sheath of the knife he had used was in the car. He then executed a written consent to the search of the car. The initial search, conducted on September 2, revealed the sheath.

On September 3, Jones gave police a second written statement in which he confessed to having given a woman $800 to purchase a bomb to place in his wife’s car. The statement was unclear as to whether the bomb was to be placed in the car already in police custody or in a second car. The police then gathered additional evidence of Jones’s involvement in a scheme to use a ear bomb to kill Karen. On September 11, the local police contacted the Bureau of Alcohol, Tobacco and Firearms (“ATF”) to seek assistance in searching the automobile for a car bomb. On September 18, police searched the ear and found wires attached to the tailpipe; these wires were determined to be part of an incendiary device. Police conducted a third search on October 1, with an ATF expert on car bombs present, and found two model rocket engines in the gas tank.

Jones was indicted on one count of possession of an unregistered destructive device in violation of 26 U.S.C. §§ 5861(d) and 5871 and one count of manufacture of an unregistered destructive device in violation of 26 U.S.C. §§ 5861(f) and 5871. He filed a motion to suppress the evidence of the car bomb found in the second and third searches of the automobile. The motion was denied. After a bench trial, Jones was convicted on both counts and sentenced to 120 months of imprisonment, to run concurrently with his state sentence for voluntary manslaughter, and three years of supervised release. His sentence included a two-level enhancement pursuant to USSG § 3A1.1, the vulnerable victim provision.

II.

The searches were valid because Jones consented to them. His consent was not limited in scope or duration, and there is no evidence that he ever attempted to withdraw his consent to the officers’ search of the vehicle. At the very least, his consent, his admissions regarding purchase of the car bomb, and his knowledge that the automobile was in lawful custody of the police indicate that Jones had no legitimate expectation of privacy in the automobile warranting Fourth Amendment protection. See Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978) (to challenge constitutionality of a search, individual must demonstrate a legitimate expectation of privacy in the area to be searched): Although Rakas addressed whether an individual has an expectation of privacy in the home of another, the principle that the Fourth Amendment protects only an individual’s objectively reasonable expectation of privacy is equally applicable to this case. Additionally, the seizure and subsequent search of the car were justified on the ground that the car was evidence or an instrumentality of a crime knowingly exposed to the public, and, as such, was subject to impounding by law enforcement agents with probable cause to believe that it could be used in Jones’s trial. See United States v. Shye, 473 F.2d 1061, 1065 (6th Cir.1973).

III.

However, the district court erred in enhancing Jones’s sentence under the vulnerable victim provision, which states:

If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels.

USSG § 3A1.1 (emphasis in original). Despite the “knew or should have known” language, enhancement under the vulnerable victim provision generally requires that the evidence show “that the defendant knew his victim was unusually vulnerable and that he perpetrated a crime on him because he was vulnerable.” United States v. Smith, 39 F.3d 119, 124 (6th Cir.1994) (emphasis added). See also USSG § 3A1.1, comment, (n. 1) (stating that “[t]his adjustment applies to offenses where an unusually vulnerable victim is made a target of criminal activity by the defendant.”) (emphasis added).

The district court here applied the vulnerable victim enhancement simply because Jones knew or should have known that his children were frequent occupants of the car and, therefore, potential victims of the car bomb. The government argues on appeal that Jones chose to attempt to murder his wife by car bomb because of his children’s vulnerability. The government contends that, “[d]ue to their young age ... and their lack of experience with operating automobiles, the children were far less likely than adults to discover the existence of the device [car bomb]”... thereby allowing Jones “to conceal his crime.”

The enhancement applies only if the defendant not only knew of the child, but also chose the child as a victim because of his vulnerability. Showing that Jones should have known that his children might be in the car falls short of proof that he chose his children as targets because of their vulnerability.

The judgment of conviction is AFFIRMED, but the case is REMANDED for recalculation of the sentence without enhancement under the vulnerable victim provision.