Divided Court Affirms Drug Convictions, Rejecting Competency Concerns

US v. Cabrera-Rivas: Cabrera-Rivas, who “likely has a learning disability . . . doesn’t speak fluent English” and has a third-grade education, nonetheless “had a side business peddling” cocaine. He met Hector – actually a Homeland Security confidential informant – and arranged for Hector to meet a “dude from Texas” who could sell him methamphetamine. After arranging the deal and bringing all the parties together, Cabrera-Rivas was arrested and charged with conspiracy to distribute and possession with intent to distribute methamphetamine.

Prior to trial, Cabrera-Rivas’s counsel moved for a competency evaluation. At a hearing before a magistrate judge, defense counsel testified about Cabrera-Rivas’s behavior and difficulty communicating with him and a paralegal testified about Cabrera-Rivas’s “anger issues.” The judge also considered a declaration from Cabrera-Rivas’s wife about his “irrational and violent behavior throughout their four-year marriage.” In response, a Government expert who had evaluated Cabrera-Rivas testified that he understood what he was charged with, various legal concepts (when explained in a “simplified” manner), and what the end result of his case might be (conviction and deportation). The magistrate judge found that opinion credible and concluded that Cabrera-Rivas had not shown he was incompetent. Cabrera-Rivas did not object to that decision and it was never reviewed by the district court.

Cabrera-Rivas was convicted on both counts after a jury trial. Following trial, Cabrera-Rivas filed a motion for a “retrospective competency hearing” arguing that Cabrera-Rivas’s conduct at trial (he testified in his own defense) “showed he was unable to comprehend the proceedings.” The district court denied the motion, based on its personal observations of Cabrera-Rivas’s testimony and conduct during trial and the lack of objection to any competency-related issue during trial.

On appeal, a divided Fourth Circuit affirmed Cabrera-Rivas’s convictions, primarily focused on the district court’s handling of Cabrera-Rivas’s competency issues.  The court first rejected the Government’s argument that because Cabrera-Rivas had not objected to the magistrate judge’s competency decision that the court lacked jurisdiction, concluding that an untimely (or absent) filing of objections does not divest the court of appeals of jurisdiction. As to the merits of that decision, the court concluded that there was no clear error in the magistrate judge’s crediting of the expert testimony over the evidence presented by Cabrera-Rivas, noting that the burden is on a defendant to demonstrate lack of competence, not on the Government prove competence.

Next, the court turned to the issue of whether a magistrate judge could “finally decide” the issue of competency. Noting that this issue was “important, but it wasn’t preserved,” the court applied plain error review and found none, noting both the lack of objection in the district court and failure to raise the argument in Cabrera-Rivas’s opening brief. The court rejected the framing that Cabrera-Rivas could not waive issues related to competency issues, concluding that that “isn’t at all what happened here,” where Cabrera-Rivas had a competency hearing, but “forfeited instead . . . his right to challenge the magistrate judge’s powers.” The court also held that there could be no prejudice (in the plan error analysis) because even if the magistrate judge had entered proposed findings and recommendations for the district court to adopt Cabrera-Rivas would have failed to object to those, too. The court also found no clear error in the district court’s denial of his post-trial motion.

Judge Wynn dissented on the competency issue, arguing that the majority “overlooks well-established precedent from the Supreme Court and this Court to deny Cabrera-Rivas the remedy that the Constitution compels – review of his competency by an Article III judge.”

Government Breaches Plea Agreement by Seeking Guideline Enhancements

US v. Craig: Craig pleaded guilty to being a felon in possession of a firearm, part of a plea agreement in which the Government agreed to dismiss three other drug-related counts. One provision of the plea agreement contained a stipulation of Craig’s conduct that addressed only his unlawful possession of a firearm. At the plea hearing, however, the a police officer testified (on cross examination) that the gun had been stolen. During the colloquy with the district court, the Government stated that the stipulation was the “total relevant conduct” for the case, an understanding that Craig said he shared.

The probation officer calculated the advisory Guideline range as 57 to 71 months, based on the nature of Craig’s prior convictions, but did not include any additional enhancements. The Government objected, seeking an enhancement because the gun was stolen and because it was possessed in connection with another felony offense (possession of drugs). The district court rejected Craig’s objections and applied the enhancements, boosting the Guideline range to 100 to 120 months (the statutory maximum) and imposing a sentence of 100 months in prison.

On appeal, the Fourth Circuit vacated Craig’s sentence, agreeing with Craig that the Government had breached the plea agreement when it advocated for the two Guideline enhancements. The provision in the plea agreement, along with the representations during the plea hearing, clearly limited Craig’s relevant conduct, even if the Government might have intended otherwise. Nor did another provision of the plea agreement allowing the Government to correct any inaccuracies, or its duty of candor to the court, apply since the Government went beyond any of that into advocacy for the enhancements.

Court Rejects Challenge to Illegal Reentry Removal Proceedings

US v. Castro-Aleman: Castro-Aleman fled political violence in El Salvador in 1973, when he was eight years old, entering the United States unlawfully. Over the hears he accumulated several criminal convictions (most for DUI, plus an identity theft charge) and, in 2016, was taken into ICE custody and subject to removal proceedings. When Castro-Aleman expressed fear of returning to El Salvador, the immigration judge told him he could apply for asylum and continued the hearing. When the hearing resumed, Castro-Aleman explained he had not completed the asylum paperwork because he could not get his father’s death certificate. The judge asked if Castro-Aleman wanted more time, but Castro-Aleman said no and asked for voluntary departure instead. The judge rejected that request and ordered Castro-Aleman removed and mentioned the possibility of appeal.

Castro-Aleman returned to the United States and was found in 2023 and charged with illegal reentry. He moved to dismiss the indictment, arguing that his removal proceedings had been flawed and therefore his removal was invalid. The district court disagreed and Castro-Aleman entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed the denial of Castro-Aleman’s motion to dismiss, holding he could not show that his removal order was “fundamentally unfair.” First, the court concluded (based on prior precedent) that Castro-Aleman had no constitutional right to be properly advised of his eligibility for discretionary relief and, therefore, it didn’t matter if the immigration judge had failed to adequately develop the record with regard to his asylum claim. Second, the court concluded that even if the immigration judge failed to adequately inform Castro-Aleman of his right to appeal the removal order that Castro-Aleman could not show prejudice because, based on his record, he would not have prevailed.

Court Rejects Ineffective Assistance Claim Related to Additional Offense

US v. Yelizarov: Y was charged with multiple offenses arising from a robbery and was presented with a plea bargain in which the Government promised not to seek a sentence higher than 40 years in prison and prevented local authorities from charging Y with anything related to the conduct set forth in the statement of facts. Y accepted. Afterwards, his counsel was told by the Government that Y was a suspect in an unrelated murder. Y told counsel not to try and resolve that charge along with the others, but he was reconsidering his plea. Ultimately, another plea bargain was negotiated that included a binding 30-year sentence and maintained the limitation on state prosecution. Y pleaded guilty and was sentenced to 30 years in prison. He was then charged separately with the murder, for which he received a consecutive sentence of 20 years. The district court rejected Y’s argument that he received ineffective assistance of counsel related to the plea negotiations.

On appeal, the Fourth Circuit affirmed the denial of Y’s ineffective assistance of counsel claim. Skipping to whether he had been prejudiced by any defective performance, the court concluded that Y had not shown that he would have decided not to plead guilty had he known that the subsequent murder charges had been brought. The court also affirmed Y’s 30-year sentence, holding that any appeal of it was barred by a valid appeal waiver, even after one of the charges had been vacated due to shifts in “crime of violence” law, given that it was a binding plea that specifically provided for such a contingency.

Court Affirms Gang Convictions Arising from Murder of Alleged Informant

US v. Ordonez-Zometa: Ordonez-Zometa and his codefendants, Hernandez-Garcia* and Ortega-Ayala, were charged with being a part of MS-13 and having participated in the murder of a teenage gang member that was believed (incorrectly) to have been talking to police. Ordonez-Zometa was the leader of this particular clique and ordered the murder, in which the others participated and assisted either in disposal of the body or cleanup of the murder scene. Each was charged with multiple offenses, including murder in the aid of racketeering. They were convicted at trial and sentenced to life in prison.

On appeal, the Fourth Circuit affirmed the defendants’ convictions. As to all three, the court concluded that the Government had sufficiently proved that the clique, and MS-13, had the required impact on interstate commerce to support federal jurisdiction. Noting that the standard is a “de minimis effect,” the court held that proven by evidence of the gang’s use of Western Union to collect dues and send them to El Salvador, along with the use of cell phones. As to Ordonez-Zometa specifically, the court concluded that the district court correctly denied his motion to suppress evidence obtained from the traffic stop that led to his arrest (based on the necessary suspicion), a statement he made to police after his arrest (not involuntary and, even if it was, any error was harmless), and evidence recovered pursuant to search warrants (supported by probable cause and sufficiently specific and, if not, good faith applied). As to Ortega-Ayala, the court affirmed the denial of his motion to suppress evidence retrieved from his phone for the same reason. Finally, as to Hernandez-Garcia, the court held that there was no error in the district court’s denial of his motion for a new trial based on testimony regarding an altered cell phone location expert report, holding that while the district court ruling on such motions could reweigh the credibility of witnesses, it was not required to do so.

* NOTE: I represented Hernandez-Garcia in this appeal.

Rapport-Building Section of Sex Abuse Victim Video Admissible

US v. Fergusson: While Fergusson was station in Japan working for the Department of Defense, his 11-year-old stepdaughter, JD, sent at text to her mother alleging that Fergusson had sexually abused her. JD’s mother took her and left the home and contacted investigators. As part of the ensuing investigation, JD was interviewed by an investigator with specialized training in conducting child forensic interviews. After an nearly 10-minute introductory section of rapport building and rule establishing between the interviewer and JD, JD restated the allegations against Fergusson. Fergusson was charged with sexual abuse and went to trial. At trial, after JD had been cross-examined, the Government was allowed to introduce the entire interview with JD into evidence. Fergusson was convicted.

On appeal, the Fourth Circuit affirmed Fergusson’s conviction. At issue was the first portion of the interview video, which Fergusson argued was inadmissible hearsay, not covered (as he agreed the rest was) by the hearsay exception for prior recorded statements. Noting that the record was unclear as to the precise basis on which the video was admitted, the court ultimately concluded that the challenged portion of JD’s interview was not hearsay at all because it was not presented for the truth of the matter asserted, but to show proper forensic interview techniques that went to the reliability of JD’s statements. In addition, the court held that that portion of the video was not more prejudicial than probative.

Court Clarifies Recent Guideline Amendments Involving “Extraordinary and Compelling” Basis for Sentence Reduction

US v. Crawley: In 2016, Crawley was sentenced to 188 months following a drug trafficking conviction, having been designated as a career offender. One of his predicate “crimes of violence” was a 2009 conviction for robbery in Virginia. Crawley unsuccessfully filed a pair of “compassionate release” motions under 18 U.S.C. § 3582(c)(1)(A) related to COVID. Then, following the Fourth Circuit’s decision in White, in which it held that Virginia robbery did not qualify as a “violent felony” under the Armed Career Criminal Act, he filed another motion, arguing that he would no longer be classified as a career offender and the resulting disparity between his sentence and what he would receive now constituted an “extraordinary and compelling” basis for relief. After the Sentencing Commission had amended the applicable policy statements, the district court denied Crawley’s motion.

On appeal, the Fourth Circuit affirmed the denial. First, the court decided that the amended Guidelines (which were more limited in terms of relief for such sentencing disparities) did apply, even though Crawley’s motion was filed before they took effect. The language of the relevant statutes are in the present tense, speaking to the responsibility of courts to apply the currently applicable policy statements. Second, the court decided that there was a sentencing disparity because White applied to the Guideline definition of “crime of violence” and, therefore, Virginia robbery no longer qualifies as a career offender predicate. Finally, however, the court concluded that Crawley was not eligible for relief, as the amended Guideline precluded sentencing disparity relief for those who had “served at least 10 years of the term of imprisonment.” The court held that time frame pointed to time actually served on a sentence, the length of sentence imposed, and thus it did not involve any calculation of good time or similar credits. Because Crawley had not served 10 years, he could not get relief.

Statement Taken by Prison Guard Beating Was Not Involuntary

US v. Purks: Purks was serving a sentence in Florida state prison when he was investigated, and eventually charged, in the Western District of Virginia with conspiracy and numerous substantive counts of distribution of methamphetamine. As part of the investigation, Purks was interviewed by a DEA agent while in state prison. Having been read his Miranda rights, Purks engaged in a “cordial” and “respectful” discussion with the agent, during which he declined to discuss particular topics. He was in a wheelchair and “would grimace and moan,” the result, he said, of a recent assault by prison guards. Purks later moved to suppress his statement as involuntary. The district court denied the motion, crediting the agent’s testimony that Purks never asked for a lawyer (Purks said he did) and concluding that the assault (assuming it happened as Purks described) did not involve any federal agents and thus could not taint his statement to the DEA agent. Purks was convicted at trial on all counts and sentenced to 300 months in prison.

On appeal, the Fourth Circuit affirmed Purks’ convictions. As to the statement, the court agreed with the district court, holding that the DEA agent complied with Miranda (assuming it applied in the first place) and that while Purks was “still recovering from the alleged beating” he “testified that he was not in so much pain that it clouded his understanding of what was happening.” In addition, no federal agents were involved in the beating and the statement itself showed they “did not grill Purks for hours attempting to wear down his will,” as evidenced by the fact that when he declined to discuss particular matters the DEA agent didn’t press the matter. The court also rejected Purks’ argument that venue was not proper in the Western District of Virginia, given that he was in Florida during the alleged offenses. Concluding that distribution of drugs is a continuing offense, the court concluded venue was proper in the locale where the drugs were eventually distributed or seized – here, the Western District of Virginia.

Misstatement In Oral Jury Instructions Does Not Lead to Constructive Amendment

US v. Contreras-Avalos: Castro-Aleman and two codefendants were charged with “various crimes related to their involvement in the transnational gang MS-13.” Specifically, they were charged with two counts of aiding and abetting a violent crime in aid of racketeering for their roles in a pair of murders (one of an alleged informant and the other of a rival gang member). During the oral presentation of jury instructions, the district court told the jury that on each of those counts the charge was conspiracy to commit those murders. The actual elements of the offenses were correct and the written charge that went to the jury was also correct. The defendants were convicted on all counts.

On appeal, the Fourth Circuit affirmed the convictions of Castro-Aleman and his codefendants. The court held that plain error was the proper standard of review, noting that the defendants did not object to the misread instructions, although they did “point one of them out – the government raised the other.” The court rebuffed the Government’s argument that invited error analysis applied, ultimately “choos[ing] not to decide” because the result was the same either way. That is because although there was error and it was plain, the defendants could not show prejudice, due to the correct explanation of the elements and the correct written instructions.

Search Broader Than Warrant Authorized Cannot Be Saved By Good Faith

US v. Ray: Ray, a sailor in the US Navy, was alleged to have sexually assaulted an 8-year-old boy while babysitting him. Part of the allegations was that Ray had shown the boy videos of adult pornography as a prelude to the abuse. The boy did not allege that Ray recorded the abuse itself. A NCIS agent sought a “command authorization for search and seizure” – CASS – the military equivalent to a search warrant authorizing the seizure of (among other things) Ray’s phone, on which the agent “intended to do a full extraction.” The CASS ultimately authorized the seizure of the phone, but not the search of it. Nonetheless, the phone was both seized and search, uncovering child sexual abuse material (CSAM), but related to the original allegations. Ray was ultimately charged with five counts, including possession of CSAM and sexual assault of other victims. Ray successfully moved to suppress the evidence recovered from his phone.

On appeal by the Government, a divided Fourth Circuit affirmed the grant of Ray’s  motion to suppress. The Government agreed that the warrant did not authorize a search of the phone, but argued that Leon’s good-faith exception applied, based on the theory that the warrant itself was defective due to a lack of particularity. The court disagreed, holding that there was no deficiency in the warrant at all – it just wasn’t as broad as the Government wanted it to be: “The CASS was no deficient. Law enforcement was. Accordingly, the good faith exception does not apply.”

Judge Rushing dissented, arguing that the “majority today creates an exception to the exception, under which a court need not consider the objectively reasonable basis for an officer’s mistaken belief in the legality of a search if the warrant did not actually authorize the search.”

Court Affirms Denial of Multiple Suppression Motions

US v. Joseph: Joseph had two encounters with police in the Charleston, West Virginia, area that resulted in the seizure of drugs and firearms. The first arose from a tip about possible drug activity in a particular motel room. Officers surveilled the room and saw only Joseph enter and leave over a four-to-five hour period. Officers were also able to see drug sale paraphernalia through the window. Eventually, Joseph left the motel room carrying a duffel bag, walking into a nearby McDonald’s where police moved to intercept him. Joseph briefly ran (during which he threw the bag away) and a search of the bag uncovered drugs and firearms. The second incident arose from a traffic stop of a vehicle in which Joseph was a passenger. After a drug dog alerted to the car, officers found a firearm and more drugs. Joseph unsuccessfully sought to suppress evidence recovered from both incidents and was convicted of multiple drug and firearm offenses.

On appeal, the Fourth Circuit affirmed the denial of both motions to suppress. As to the initial encounter starting at the motel, the court concluded that “there was neither a search nor a seizure until Joseph was apprehended” and by that point officers “had seen items suggesting drug distribution in the motel room . . . and witnessed Joseph’s unprovoked flight upon noticing the police” and thus they had reasonable suspicion to make a stop and probable cause to search the duffle bag (based on a drug dog alert). Nor was Joseph under arrest simply because he was placed in handcuffs once he was seized. As to the traffic stop, the court rejected Joseph’s argument that the officer who made the stop unlawfully prolonged it, finding that the district court’s findings to the contrary were not clearly erroneous.

Court Clarifies Ineffective Assistance Standard for Rejected Plea Agreements

US v. Brown: In 2016, Brown was indicted on four counts of possession with intent to distribute crack cocaine and one count of being a felon in possession of a firearm, for which he faced a combined total maximum sentence of 90 years in prison. Brown’s initial attorney negotiated with the Government, who eventually offered a plea bargain in which Brown would plead guilty to the firearm charge, capping Brown’s exposure at 10 years I prison. Brown turned down the offer because he felt like his lawyer “could’ve got him a better plea.”

New counsel was appointed and he and Brown discussed the same offer, with counsel erroneously advising Brown that it “did not matter whether he accepted the plea agreement because the guideline range would be the same” and that Brown “would be facing a statutory maximum of ten year’ imprisonment regardless of whether he accepted a plea offer or not.” Brown rejected the agreement and pleaded guilty to all five charges, during a Rule 11 colloquy in which he stated that he understood the statutory maximum for each offense. The district court eventually sentenced Brown to 210 months in prison – an upward departure from the 87-108 month Guideline range and seven-and-a-half years longer than the maximum sentence under the plea agreement.

Brown filed a §2255 motion, alleging ineffective assistance of counsel with regard to advice as to the effect of agreeing to the plea bargain (or not). The Government conceded counsel had rendered deficient performance, but argued Brown could not show prejudice. The district court agreed, applying the Supreme Court’s decision in Lee v. US and holding that Brown could not show contemporaneous evidence that he would have accepted the plea bargain if properly advised, rather than post hoc regrets about his decision.

A divided Fourth Circuit reversed the denial of Brown’s §2255 motion. First, it concluded that review was de novo, although the district court had held an evidentiary hearing, because the lower court’s ultimate ruling “rendered a conclusion, but made no findings of fact” that would only be reviewed for clear error. Second, the court concluded that the district court had misapplied Lee, which dealt with ineffective assistance claims where plea bargains were accepted, but not rejected (which the Supreme Court in Lee identified as being different beasts). Brown was not required, therefore, to show contemporaneous evidence that he would have accepted the plea agreement if properly advised. It was enough that Brown testified he would have taken the deal, that he eventually pleaded guilty to more serious charges, and that the end result would have been more favorable to him if he had taken the plea.

Judge Rushing dissented, relying on Lee and applying clear error.

Court Affirms CSAM Convictions, Clarifies Status of Dost Factors

US v. Deritis: In 2019, a tip from Microsoft led investigators to Deritis. In addition to seizing and searching his computer (where they found images of Deritis’ 12-year-old stepdaughter naked in his bathroom (they later found a hidden camera), they submitted a “preservation request” to Google for his email account for “Google to pull and hold the records associated with” the account while investigators obtained a warrant. Google provided two sets of a data that included on “minor differences” – one from the date of the preservation request and one from the date of the search warrant. In the Google account, investigators found a photo taken on Deritis’ phone of his “stepdaughter’s hand touching his penis” and another showing him “touching her genitals.” The district court denied Deritis’ motion to suppress the Google information and he was convicted at trial of four counts related to the production and possession of child sexual abuse material (CSAM). He was sentenced to 600 months in prison.

On appeal, the Fourth Circuit affirmed Deritis’ conviction, although it vacated his sentence as to the special assessments imposed. First, the court affirmed the district court’s denial of Deritis’ motion to suppress. The court ultimately concluded that it did not need to reach the main challenges (that Detritis was subject to a warrantless seizure and an unreasonably lengthy delay in getting the warrant) because Google had provided two “identical set[s]” of data and there was no claim that the warrant itself was defective. Second, the court held that the district court’s jury instructions were not erroneous, in the process summing up the status of the Dost factors in determining whether images involve “lascivious exhibition” of genitals, noting that the factors can be utilized by a jury, so long as they are not definitive or given undue weight by the instructions. Third, the court found that while the district court erred by not allowing Deritis’ ex wife to testify about instructions not to let the stepdaughter use the bathroom where the camera was found (they were admissible as non-hearsay commands), the error was harmless. Finally, the court found plain error in the district court’s failure to make the require findings to impose enhanced special assessments at sentencing.

§922(g)(9) Survives Second Amendment Facial Challenge

US v. Nutter: Nutter was found in possession of firearms in spite of having three prior convictions that met the definition of “misdemeanor crimes of domestic violence” and was charged with a violation of 18 U.S.C. §922(g)(9). Pre-Bruen, Nutter moved to dismiss the charges, arguing that §922(g)(9) violated the Second Amendment. After the motion was denied, but prior to sentencing, Nutter renewed his motion after Bruen, but it was also denied. Nutter entered a conditional guilty plea and was sentenced to 12 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Nutter’s motion to dismiss. The court started by noting that Nutter’s challenge could only be construed as a facial challenge, given his general attacks on §922(g)(9). Without more specific as applied arguments, Nutter was limited to the “most difficult challenge to mount successfully,” and could not prevail. Skipping directly to Bruen’s second step, the court concluded that there were “some circumstances in which §922(g)(9) is constitutional” – enough to survive a facial challenge. The court relied on Rahimi (which involved §922(g)(8)), finding that it’s basis for allowing disarmament there was sufficiently similar, even though the restriction in Rahimi was temporary.

Court Affirms Drug Convictions Against Search, Jury Instruction Challenges

US v. Henderson: In 2018 police pulled over Langley for “erratic driving.” A search of the vehicle uncovered some meth, “distribution paraphernalia, and the firearm” and police were told (by Langley and her passengers) that there was more meth at Langley’s home, where her “out-of-state methamphetamine supplier was currently staying” and armed with a firearm. Police obtained a warrant to search the home, including any digital devices, including phones, on the assertion that items related to drug distribution “may be stored in digital media.”

The search of the home uncovered drugs, paraphernalia, and a firearm – as well as Henderson, who “was there alone.” Two phones belonging to Henderson were also seized, which uncovered “text messages suggesting of drug dealing,” along with photos of cash and drugs. Henderson was charged with drug and firearm offenses as a result. After he unsuccessfully moved to suppress the data from the phones, he was convicted on the drug offenses, but acquitted on the firearm offenses. He was sentenced to 240 months in prison.

On appeal, the Fourth Circuit affirmed Henderson’s convictions and sentence. As to the phone search, the court rejected Henderson’s argument that the good-faith exception should not apply, concluding the “affidavit here was not so lacking in indica of probable cause as to prevent the officers from relying on the warrant to search Henderson’s phones.” The court also rejected Henderson’s argument that the jury should have been instructed that a buy-sell agreement was not enough to prove conspiracy, noting that it was “contrary to longstanding Fourth Circuit precedent, given that the evidence in this case showed Henderson brought Langley methamphetamine in excess of a user amount.”

Whether Prior Conviction Is “Felony” for § 922(g)(1) Purposes Is Question of Law

US v. Fulton: Fulton had a hobby of trying, and failing, to buy firearms. In 2023 he tried to so 11 times (from licensed dealers), each time answering “no” to the required question of whether he had ever been convicted of a felony. None of the “denials” specified a reason. Still, “after Fulton’s eighth attempt,” an ATF agent, working with a local police officer, spoke to Fulton and told him he could not buy a gun because of a prior felony conviction from New Jersey. After trying a couple of more times, the agent visited in person and told him the same thing. After the eleventh attempt, Fulton was charged with making a false statement during the attempted purchase of a firearm.

At trial, the Government introduced a judgement from New Jersey for Fulton’s prior conviction, but it showed only a 13-day sentence (followed by probation), did not state a maximum potential sentence, and did not contain the word “felony.” Fulton made a motion for a judgment of acquittal, arguing that the Government had failed to prove that the prior conviction was, in fact, a felony. The Government responded that the district court could determine that the prior conviction was a felony as a matter of law. Ultimately (after the jury convicted), the district court granted Fulton’s motion, along with a motion for a new trial, holding that the Government had failed to establish the nature of the prior conviction, including by not introducing the New Jersey statute at issue into evidence.

On appeal, the Fourth Circuit reversed. The court first concluded that the Government proved that Fulton had a prior felony conviction, holding that the nature of the offense is a “question of law for the judge to determine” (the ATF agent also testified, without objection, that it was a felony). As a result, the district court “was empowered to consider whatever authorities or sources it needed to resolve it, without regard to whether such sources were admitted into evidence or subject to judicial notice.”  The court the concluded that the grant of a new trial was also erroneous, rejecting the district court’s conclusion that there was an “absence of proof of Fulton’s knowledge that he was a felony,” pointing to the repeated failed attempts to purchase guns and the ATF agent’s warnings. The district court erred by focusing “exclusively on Fulton’s 2007 sentence . . . and the text of the criminal judgement.” In the end, the “jury was not required to find Fulton guilty. But it did, and the evidence supports its verdict.”

Court Affirms Denial of Motions Involving Suppression of Data Discovered Pursuant to Foreign Investigation

US v. Dugan: In 2019, the FBI got information from “a foreign agency known to the FVI, and with a history of providing reliable and accurate information” that a particular IP address had accessed a “dark web” site known to share child pornography. The IP address was traced to Dugan’s home, where a search warrant was executed and more than 1200 images of child pornography were recovered. Charged with accessing child pornography with intent to view it, Dugan sought to compel discovery regarding the foreign investigation and, ultimately, to suppress the evidence discovered as a result. The district court denied both motions and Dugan entered a conditional guilty plea, after which he was sentenced to 54 months in prison.

On appeal, the Fourth Circuit affirmed Dugan’s conviction and sentence. As to the motion to compel, the court agreed with the district court that Dugan’s request lacked necessary evidentiary support as to the foreign investigation, relying “primarily on speculative conclusions drawn by his counsel,” such as a “generalized understanding of how the TOR networks operate.” Nor could Dugan show that the foreign investigation demonstrated the necessary agency relationship with the FBI that would be needed to raise a Fourth Amendment issue. As to the motion to suppress, the court held that although there was only evidence of “a single instance of Dugan accessing” website, the “affirmative steps required for access to the site,” including requiring users to upload “50 to 100 megabytes of ‘indecent material of children’”, demonstrated that “Dugan knew that such content was available and he actively sought it out.”

En Banc Court Affirms Denial of Geofence Warrant Challenge

US v. Chatrie: Recall last July when a panel of the Fourth Circuit affirmed the denial of Chatrie’s motion to suppress evidence gathered pursuant to a geofence warrant. Where the district court had denied the motion by applying the good-faith exception to the exclusionary rule, a divided Fourth Circuit panel concluded that Chatrie lacked standing to challenge the warrant in the first place under the third-party doctrine. Chatrie sought, and was granted, rehearing en banc.

After oral argument, the en banc Fourth Circuit released a per curiam opinion stating simply that the “judgment of the district court is affirmed,” with no further explanation. There were, however, many other opinions (totally 120 pages) discussing the issues raised in the case.

Judge Diaz concurred, emphasizing the court was affirming “solely on the court’s finding of good faith” and arguing that “judicial modesty counsels that we not make grand constitutional pronouncements merely because we can.”

Judge Wilkinson (joined by Judges Niemeyer, King, Agee, and Richardson) argued that “with due regard for my fine colleagues, there was no search here” and even if there was, there were “many good reasons why courts should respectfully rejected the assault on geofence warrants” mounted by, among others, the Fifth Circuit, which not only held that a defendant could challenge geofence warrants but that they violated the Fourth Amendment.

Judge Richardson also concurred separately (joined by Judges Wilkinson, Niemeyer, King, Agee, Quattlebaum, and Rushing), arguing that “obtaining just two hours of location information that was voluntarily exposed is not a Fourth Amendment search and therefore doesn’t require a warrant at all.”

Judge Niemeyer also concurred separately, emphasizing the long history of law enforcement “collecting and following ‘markers,’ or clues, voluntarily left behind and abandoned by a person at the scene of a crime.” Judge King also similarly concurred separately, briefly, to express his agreement with both the no-search rationale and good faith rationale.

Judge Wynn (who dissented on the initial panel) concurred in the result (joined by Judge Thacker, Harris, Benjamin, Berner and, with the exception of a footnote, Gregory), arguing that the “surveillance technologies at issue in this case – the very same ones that seem to thrill my colleagues who join Judge Wilkinson’s separate opinion – would have been unimaginable to the Founders” and that, applying the Supreme Court’s decision in Carpenter, the geofence warrant was a search. In a footnote (to which Gregory did not join), Wynn states that he nonetheless agrees that good faith applies, but doesn’t explain why he changed his mind on that from the panel opinion. Nonetheless, he criticizes the court’s “unwillingness to confront” the Fourth Amendment question “head-on” by taking “shelter in the judge-made doctrine of ‘good faith.’”

Judge Heytens (joined by Judges Harris and Berner) concurred, arguing that the “strong medicine” of exclusion was unwarranted in this case (even if there was a search) because the legal landscape at the time was “uncertain” and that the officer did “what we expect reasonable officers to do when face with such uncertainty” by getting a warrant and consulting with prosecutors beforehand.

Judge Berner (joined by Judges Gregory, Wynn, Thacker, Benjamin, and (largely) Heytens) concurred, arguing against the Fifth Circuit position of geofence warrants always violate the Fourth Amendment, but that there is an expectation of privacy in the non-anonymized data that is produced during the process. Here, the warrant violated the Fourth Amendment and she saw “little benefit in postponing these issues until another day.”

Finally, Judge Gregory dissented, stating that he largely concurred in the opinions of Wynn and Berner, but that he would go further and hold that the good-faith exception did not apply in this case because the warrant violated long-held understandings of what warrants require, regardless of whether the particular circumstances had been previously addressed by the court.

Consent Given, and Not Revoked, For Quick Search of Home That Uncovered Firearms

US v. Dubon: Richmond police officers got a tip that a man (not Dubon) was preparing to engage in a mass shooting. They knocked on Dubon’s door as part of that investigation. After Dubon allowed them in and some questions were asked, an officer said to Dubon (in Spanish) that they were going to “check and see if there is anyone else here in the house.” Dubon responded (also in Spanish) “[g]o check . . . there’s no one else,” and “nodded and, with un upturned palm, gestured forward toward the rooms in the rear of the residence.” A few seconds later, Dubon said “I understand you can’t get into my house without warrant, then. But . . .” and shrugged his shoulders. The search uncovered firearms and Dubon was charged with being an unlawful alien in possession of a firearm. After the district court denied his motion to suppress, Dubon entered a conditional guilty plea and was sentenced to 16 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Dubon’s motion to suppress. While the district court did so on two bases, the Fourth Circuit relied on only one – that Dubon consented to the search of his home. The court held that the district court’s factual conclusions regarding consent were not clearly erroneous. That included not just the initial consent but what Dubon argued was revocation, the statement about a warrant accompanied by a shoulder shrug, with the court concluding that it was not a clear withdrawal of consent and “readily susceptible to different meanings” including an expression of resignation that he was allowing the search anyway. Because the court affirmed on that basis it explicitly did not address the district court’s other basis for denying the motion, that the search was a lawful protective sweep.

Erlinger Error Subject to Harmless Error Analysis

US v. Brown: In 2019, Brown sold a firearm to an undercover officer, for which he was charged with being a felon in possession of a firearm. In compliance with applicable law, the indictment did not set identify three prior offenses committed on “occasions” separate from one another. After Brown’s plea, the probation officer recommended he be sentenced under the Armed Career Criminal Act because he did, in fact, have three prior convictions that he committed on occasions separate from one another. Brown’s objection that such a sentence violated the Fifth and Sixth Amendments was overruled and he was sentenced to 180 months in prison.

The Fourth Circuit affirmed Brown’s sentence, concluding it was bound by prior precedent (even though, by that point, even the Government agreed such precedent was incompatible with Apprendi). The Supreme Court then decided Erlinger v. United States, in which it held that the separate occasions information must be charged in the indictment and found beyond a reasonable doubt by a jury. Brown’s case was remanded to the Fourth Circuit.

At issue this time for the Fourth Circuit was whether the Erlinger error in this case was subject to harmless error analysis and, if so, whether the error was harmless in this case. The court adopted the Government’s position that Erlinger error is a species of Apprendi error which courts have long recognized is not “structural,” and thus subject to harmless error analysis. Applying harmless error, the court noted that the real issue is not whether a jury would have found ACCA would apply, but whether Brown would have pleaded not guilty and gone to trial if the indictment had been sufficient and he had been informed of the jury requirement during his guilty plea colloquy. The court concluded he would not have, relying partly on a conclusion that “absolutely no one” would conclude that the two robberies at issue – two months apart with separate victims – occurred on the same occasion.

Court Affirms Murder Conviction Over Multiple Trial Challenges

US v. Seward: In 2019 a US Postal Service employee was found dead, shot multiple times, along the side of a South Carolina road. Two miles down the road investigators found a rifle, 21 bullet casings, and a package containing two pounds of marijuana addressed to Seward that had the mail carrier’s blood on it. Investigation led to Seward being charged with the carrier’s murder, along with related charges, for which the jury found him guilty on all counts.

The Fourth Circuit affirmed Seward’s convictions, rejecting three arguments on appeal. First, it concluded that the district court did not abuse its discretion in allowing the Government’s toolmark expert to testify. Noting that it had already rejected a head-on challenge to the “science” of toolmark matching, the court also held that issues with the expert’s qualifications were adequately addressed via cross examination. Second, the court held there was no error in excluding evidence that an alternate suspect failed a polygraph test, noting the general inadmissibility of such results and that Seward was able to address the issue of that subject’s inconsistencies with the postal inspector who led the investigation. Finally, the court held that the Government’s DNA expert’s testimony may have violated Seward’s confrontation clause rights (it could not reach a conclusion on that issue due to lack of development in the district court), but that any error was harmless in light of “overwhelming evidence of Seward’s guilt.”

Evidence of Uncharged Threat, Anonymous Jury, Did Not Require Reversal of Threat Convictions

US v. Beeman: Beeman was convicted of making interstate threats. After his guilty plea, he sent more threatening letters, this time to the AUSA and NCIS agent who worked on his case. For that he was charged with three counts of threatening federal officials. He went to trial, where the Government was allowed to introduce evidence of a fourth, uncharged, threatening letter (to the NCIS agent) and was convicted on all counts by an anonymous jury.

On appeal, the Fourth Circuit affirmed Beeman’s convictions. First, it rejected his argument that the uncharged fourth letter should have been excluded. Finding no abuse of discretion on the district court’s part, the court concluded that the letter was admissible as res gestae for the charged offenses (it helped “complete the story” of those offenses) or under Rule 404(b) and was not unduly prejudicial. Second, it concluded there was no abuse of discretion in using an anonymous jury (assuming it actually was – defense counsel had the names, but Beeman didn’t), noting Beeman’s history of interfering with judicial proceedings. Finally, the court held there was no abuse of discretion in denying Beeman a mistrial during closing argument when the Government improperly stated the legal standard, noting that it was brief and corrected by the district court.

Appeal Waiver Invalid Due to Failures of District Court During Rule 11 Hearing

US v. Smith: After he and a codefendant robbed a gas station, Smith pleaded guilty, pursuant to a plea agreement, to Hobbs Act robbery and brandishing a firearm in connection with that robbery. The plea agreement included a waiver of his right to appeal his sentence. The plea hearing was brief, with the district court asking if Smith understood that he was waiving various rights all at once (Smith said he did). As to the waiver, the district court noted that he “waive[d] your right to appeal” (among other things), concluding with “is that what you’ve agreed to?” (Smith said he did). The district court imposed a total sentence of 144 months, stating that it had considered the Guideline range as well as the statutory sentencing factors. It also told Smith he could appeal his conviction, but did not mention the waiver of his right to appeal his sentence.

On appeal, the Fourth Circuit vacated Smiths’ sentence and remanded for resentencing before a different district court judge. Smith did not argue that the deficiencies in his plea colloquy rendered his guilty plea invalid, but that they did render the appeal waiver invalid. The court agreed, concluding that an appeal waiver is severable from the rest of the plea agreement. In this case, the district court’s failure to adequately inquire into Smith’s understanding of the waiver, combined with his “history of severe mental illness and his minimal education” rendered the waiver unknowing and involuntary. The court also took the district court to task for repeatedly failing to comply with Rule 11 proceedings, usually in cases with appeal waivers that effectively insulated proceedings from review. The court vacated Smith’s sentence, as the Government conceded it was procedurally flawed, and remanded for sentencing before a different judge.

Congrats to the Defender office in Eastern North Carolina on the win!

Failure to Investigate Lease Related to Premises Enhancement Not Ineffective Assistance of Counsel

US v. Powell: In 2016, Powell pleaded guilty to a drug conspiracy involving more than 100 grams of heroin. At sentencing, the issue was whether he would be given a two-level Guideline enhancement for maintaining a premises for the purpose of distributing a controlled substance based largely on a statement from one of Powell’s codefendants, Wilson (also a relative). Wilson testified that she bought drugs from Powell at his home and once witnessed someone deliver a kilogram of heroin there. Powell’s counsel cross examined Wilson, damaging her credibility. The district court overruled Powell’s objection, applied the enhancement, and imposed a sentence of 300 months (below the Guideline range of 360-480 months).

Just a few months later, Powell filed a §2255 motion arguing that his counsel had rendered ineffective assistance at sentencing. Specifically, he argued that he told counsel to investigate the lease at the home, which would prove that Powell did not lease the home during the time Wilson testified she bought drugs from him. Counsel disputed ever getting that information. The district court concluded that there was no deficient performance in failing to track down the lease and, even if there was, Powell suffered no prejudice because the enhancement does not turn on whether the defendant owned or leased the property in question.

On appeal, the Fourth Circuit agreed and affirmed the denial of Powell’s §2255 motion. The court agreed that counsel’s performance was not deficient, given the numerous other ways that he was able to challenge the enhancement (and Wilson’s testimony). It was not enough that the lease might have further degraded Wilson’s testimony. The court also concluded that Powell “overstates the importance of the lease” given that Wilson had not testified that Powell leased or owned the home, only that she bought drugs from him there. It was “not irrelevant,” but “was far from determinative.” In addition, the record shows that the enhancement would have applied, regardless.

Defendant Cannot “Cause” Production of Videos Already In Existence

US v. Avila: Avila pleaded guilty to multiple counts of receiving or distributing child pornography. The probation officer recommended that a Guideline cross reference apply because Avila’s conduct “involved causing . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” Avila objected, arguing that the videos at issue had already been made by the minors and thus he had not “caused” them to be produced. The district court disagreed and imposed a sentence of 132 months (below the 168-210 month Guideline range).

On appeal, the Fourth Circuit vacated Avila’s sentence. The court held that where, as here, the Government proceeded only on the theory that the defendant had “caused” videos to be produced, the fact that they had been produced prior to the defendant’s request for them prevented the cross reference from applying. Specifically, there was no finding from the district court that “at least one victim made sexually explicit videos after and in response to Avila’s request.”

Congrats to the Defender office in Western North Carolina on the win!

Court Clarifies Batson Standard of Review in Affirming Convictions

US v. Parada: Parada and his codefendants were charged “with various racketeering offenses related to their alleged involvement with MS-13.” They objected to the Government’s strike of two Black potential jurors under Batson, but the district court concluded the Government had non-discriminatory reasons for the strikes. After deliberations began a juror contracted COVID, leading the district court to conclude the trial with only 11 jurors (over Parada’s objections). Parada and codefendants were convicted on nearly every charge against them with most ultimately receiving life sentences (except Parada, who received 50 years in prison).

On appeal, the Fourth Circuit affirmed Parada’s convictions. As to the Batson issue and “cognizant of our limited role at this juncture,” the court could not “discern any clear error on the record before us.” The explanations given by the Government for striking the jurors met the necessary standard, which does not require that they be “persuasive or plausible – just facially neutral.” As to proceeding with only 11 jurors, the court noted that both Rule 23(b) and precedent “explicitly permit the course of action taken by the district court” and nothing in the record showed its decision was an abuse of discretion.

Ruan Error Is Not Prejudicial Given Other Evidence In Record

US v. Naum: Naum and other doctors were contracted by a drug treatment center (run by a nurse and a musician) to provide care, although they had full-time jobs elsewhere. The nurse, who pleaded guilty and cooperated with investigators, used Naum’s DEA numbers to prescribe controlled substances to patients (after Naum had seen them on a first visit). Naum and the others were charged with conspiracy as well as substantive counts of unlawful distribution of controlled substances. Naum testified and admitted he was aware of the nurse’s actions and continued to sign off on charts “because he was concerned that if stopped her, patients might get medication on the street or overdose.” Naum was convicted of conspiracy and four substantive counts.

The Fourth Circuit initially affirmed Naum’s conviction, but the Supreme Court remanded in light of its decision in Ruan. On remand, the Fourth Circuit again affirmed. The court did reject the Government’s attempt to rely on invited error, given that the instructions that were erroneous post-Ruan were correct at the time. The court also rejected Naum’s attempt to avoid plain error review based on evidence he introduced that could support post-Ruan instructions, concluding that “attempting to introduce evidence at trial does not preserve an objection to jury instructions.” Applying plain error, the court found error that was plain, but did not affect Naum’s substantial rights, in light of the record developed at trial.