Tuesday, November 17, 2015

Insufficient evidence of "purpose"

US v. Palomino-Coronado:  In this appeal, the defendant challenged his conviction for one count of enticing a minor to engage in sexual conduct for the purpose of producing a visual depiction of that conduct.  In this case, there was only one photograph involved.  Further, at trial, expert testimony revealed that during the course of the investigation, the child forensic interviews were coercive and did not follow established protocols.  The defendant moved for an acquittal at the close of the government’s case, based on insufficient evidence, which the district court denied.  The jury found the defendant guilty.  On appeal, the Fourth Circuit determined that the district court erred in denying the defendant’s Rule 29 motion, reversing and vacating the conviction.

As a matter of first impression, the Fourth Circuit considered a sufficiency of the evidence challenge to the statute at issue here, and focused its analysis on what evidence may show that a defendant acted with purpose.  The Fourth Circuit stated that many times, courts are left with only circumstantial evidence to demonstrate a defendant’s purpose.  The Fourth Circuit also found instructive the cases wherein the number of sexually explicit recordings or depictions as indicators of purpose, as well as evidence presented of “purposeful conduct,” considering the types of photography or video tools used.

On appeal, the defendant here argued that the government failed to prove that he acted for the purpose of producing a visual depiction [emphasis in original], as the government had offered only one cell phone image of sexually explicit conduct with the victim, a photo that the defendant had deleted from his phone.  Without more, the Fourth Circuit concluded, the facts of the case did not support the conclusion that the defendant here acted in order to take a picture, as required by the statute of his conviction.

On rehearing, indictment properly dismissed

US v. Vinson:  Vinson filed a petition for rehearing after a Fourth Circuit panel earlier (see here) vacated the district court’s order granting his motion to dismiss the indictment against him, asserting a new basis for affirming the dismissal of his indictment.  On rehearing, the Fourth Circuit changed course, affirming the district court’s order dismissing the indictment.

The Fourth Circuit begins its analysis here by stating that Vinson did not raise the issue it finds dispositive in his opening brief to the Fourth Circuit or the district court; the rule precluding consideration of issues for the first time on appeal to the Fourth Circuit is prudential, not jurisdictional, so the Fourth Circuit determined that under the circumstances presented in this case, it would exercise its discretion to consider the issues Vinson raised in his petition for rehearing.

Vinson raised the issue of whether Vinson’s conviction under North Carolina’s assault and battery statute qualifies as a conviction for a misdemeanor crime of domestic violence (“MCDV”).  The Fourth Circuit held here that none of the categories of assault under North Carolina law have elements matching the elements of an MCDV under 18 U.S.C. §921(a)(33)(A), so the district court properly dismissed the indictment against Vinson.

Monday, November 02, 2015

ACCA Sentence Based on South Carolina Burglary Convictions Vacated

US v. McLeod: McLeod pleaded guilty to being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act based on several prior South Carolina burglary convictions, even though McLeod argued that his convictions did not match the generic definition of burglary. He was sentenced to 188 months in prison.

On appeal, McLeod argued (among other things) that the South Carolina convictions didn't meet the generic definition of burglary with regard to the location involved. The Fourth Circuit agreed and vacated his sentence. The court held that while the South Carolina statute involved burglary of a "building" and "appears at first glance to parrot the language of generic burglary," the term "building" is defined as including "any structure, vehicle, watercraft, or aircraft." The district court could apply the modified categorical approach to determine which type of "building" was involved. However, a closer review of the relevant plea transcript show that McLeod actually pleaded guilty to a different form of burglary, although one with an equally broad definition of the place to be broken into (a "dwelling" instead of a "building"). Because the Government could present no appropriate documents to show which of the various "dwellings" McLeod broke into it could not show that his prior convictions qualified as ACCA predicates.

Obstruction Enhancement OK'd Based on False Alibi Testimony of Defense Witnesses

US v. Andrews: Andrews robbed a pizza joint, making off with some cash and the manager's wallet. Pursuing police found an abandoned car, in which they found two wallets (the manager's and Andrews's), a cell phone with pictures of Andrews's family, a traffic ticket with his name on it, and a "bill of sale showing that Andrews owned the vehicle." Officers also found a cap that matched the description of the robber and was matched to Andrews via DNA testing. He was charged with Hobbs Act robbery and using a firearm in relation to a crime of violence. Prior to trial he gave notice of an alibi defense (as well as filing a pro se motion suggesting the prosecutors were intimidating witnesses). The defense was provided by two witnesses, Andrews's mother and girlfriend, who testified that Andrews was at home the night of the robbery. Andrews didn't testify. He was convicted on all counts. At sentencing, his sentence was enhanced for obstruction of justice based on his "prior knowledge of the false testimony" provided by his alibi witnesses and his "subsequent silence during trial."

Andrews appealed only his sentence, particularly the imposition of the obstruction enhancement, which the Fourth Circuit affirmed. While the court noted that the paradigmatic example of the enhancement applying after a trial is perjury on the defendant's part, or subornation thereof, it is "warranted if the court below made a proper finding of obstruction even if it did not specifically find the subornation of perjury." The court also rejected the application of de novo review, stressing the discretion involved by the district court after evaluating evidence. In this case, the district court rested "the enhancement on the very essence of [obstruction] - the willful obstruction of justice" because of Andrews's knowledge of the false alibi testimony, at least after the first alibi witness had testified.

Lack of Proabable Cause Dooms Search Undertaken After Traffic Stop

US v. Patiutka: Patiutka was pulled over on an Interstate in Virginia for failure to maintain a lane. He gave the name Roman Pak to the officer who, although he thought Patiutka might have been lying to him, "asked no follow-up questions about Patiutka's purported lie." The officer gave Patiutka a verbal warning, told him was "free to go," but later testified that "in his mind, [Patiutka] wasn't free to leave" because he "intended to reengage Patiutka in conversation and obtain consent to search the car." The officer got what he thought was consent, which led other officers (who arrived during the stop) to search the car and find a credit card reader and "four new, unopened iPads" sitting in a suitcase. Patiutka asked what was going on and objected to any search. The search stopped, but an officer announced he "was placing Patiutka in 'investigative detention'" and put him in a patrol car. The search resumed, further items indicative of credit card fraud were found, and Patiutka was taken to the police station, where he made "a number of incriminating statements."

Patiutka was charged with credit card fraud and identity theft and filed a motion to suppress the evidence found during the stop. At the suppression hearing, the officer who stopped him testified that Patiutka "would have ultimately arrested for providing a false ID" regardless of whether the search uncovered anything or not. The district court granted the motion, rejected several argument by the Government that the evidence was admissible under various exceptions to the warrant requirement in the Fourth Amendment.

On appeal, the Fourth Circuit affirmed the suppression, also rejected the Government's arguments to avoid the Fourth Amendment's warrant requirement. First, the court rejected the argument that the search was done incident to a lawful arrest, namely for the state offense of providing false identity information to the officer. The court noted that there was no probable cause to support such a charge at the time Patiutka revoked his alleged consent and that the district court's conclusion that the officer's testimony wasn't credible (based on video of the stop) was not clearly erroneous. Second, the court rejected the Government's argument that the automobile exception meant a warrant was not required by holding that, regardless of a warrant, there was no probable cause to continue the search once Patiutka revoked his alleged consent. The items that had been found by that point could be legally possessed and "innocuous explanations for a driver's possession of these items abound."  Furthermore, collective knowledge of the officers could not save the search because the information that the first officer would have imparted to the others was, as the court already held, insufficient to support probable cause anyway.

Lack of Particularized Evidence of Wrongdoing Dooms Stop

US v. Slocumb: A bunch of police officers arrived at the parking lot of a business (closed for the night) that they were going to use as a staging area for executing a search warrant nearby. The lot itself was known as a "place for drug activity."  Slocumb was there, along with his girlfriend and their child. Slocumb was transferring a car seat from one car to another. Slocumb explained that his girlfriend's car had broken down and he had come to retrieve her and the child. During the conversation Slocumb "did not make eye contact and gave mumbled responses," which the officer considered suspicious. Another officer said (to the first officer, not to Slocumb directly) that they were "not allowed to leave" and the rest of the officers went to execute the warrant. The officer left behind to guard Slocumb and his girlfriend later said that when he asked Slocumb about "his knowledge of drugs at the target house" he began acting "increasingly nervous and [did] not make eye contact." Slocumb, at some point during the conversation, told the officer his name was Anthony Francis. A second officer arrived and asked the girlfriend for Slocumb's name, to which she answered "Hakeem," a name "the officers recognized as someone who was under investigation for drug trafficking." Slocumb was arrested for providing a false name. Officers recovered $6000 in cash from Slocumb and drugs from where he had been sitting in his car. Slocumb admitted the drugs were his and that his girlfriend knew nothing about them. Slocumb unsuccessfully moved to suppress the evidence recovered from him and the car.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. The court held that although there were several general factors that might have supported reasonable suspicion to detain Slocumb, the only thing that might provide particularized suspicion of wrongdoing - Slocumb's own behavior - was not sufficient to meet that threshold. He did not flee, was not evasive with the officers, and his other behavior was not indicative of wrongdoing. Thus, the court concluded, viewed "in their totality, the factors cited by the district court do not amount to reasonable suspicion to justify Slocumb's seizure."

Departure Based on Old Juvenile Convictions OK

US v. McCoy: McCoy was charged with two drug charges at trial, at which the jury concluded he was responsible for between 500 grams and 5 kilograms of cocaine. Testimony at trial concerned three separate purchases of cocaine, one of which was "returned for poor quality." At sentencing, the probation officer included all three buys (including the "returned" one) as relevant conduct, producing a total of 7 kilograms and a guideline range of 135 to 168 months. McCoy argued for a sentence of 120 months (the mandatory minimum). while the Government sought an upward departure based on three juvenile convictions which did not factor in the Guideline calculations and a sentence of 192 months. The district court departed (to a slightly higher Guideline range than the Government requested) and imposed a sentence of 188 months in prison.

McCoy appealed, arguing only that his sentence was substantively unreasonable, for several reasons, all of which the Fourth Circuit rejected. First, the court rejected McCoy's argument that the district court should not have considered the juvenile convictions. The court noted that the district court was free to base a departure on convictions that were otherwise too old to count in the criminal history score and that the "seriousness of the juvenile crimes" demonstrated McCoy's likelihood of recidivism. Second, the court rejected McCoy's argument that the district court erred by departing to Criminal History Category V, rather than IV as the Government requested, noting that while the Government's request is an important consideration, it's not binding on the district court. In addition, though the district court's Guideline range was higher than the one requested by the Government, the actual sentence imposed was slightly lower. Finally, the court rejected McCoy's argument that his sentence overstated the seriousness of his offense. The court also pointed out that the proper remedy for the amendment of the Guidelines between sentencing and appeal was to file a 3582 motion seeking a reduction in the district court.

Friday, September 04, 2015

Defendant didn't forfeit his right to counsel

US v. Ductan:  In this appeal, the Fourth Circuit considered whether Phillip Ductan forfeited his right to counsel with some aberrant behavior.  Ductan, accused of conspiracy to distribute marijuana and carrying a firearm during his drug trafficking crime, appeared in court in May 2012 to answer charges dating back to September 2004.  Originally, Ductan appeared with retained counsel, who immediately moved to withdraw. That motion was granted following a hearing wherein the magistrate court and Ductan could not reach an understanding about Ductan’s representation (and some weird nonsensical behavior from Ductan), the result of which was the magistrate court’s finding that Ductan had forfeited his right to counsel.  Ductan’s appointed/stand-by counsel later attempted to withdraw, but that motion was denied and the case proceeded to trial.  Ultimately, Ductan represented himself and the jury found him guilty on all counts.  

On appeal, the Fourth Circuit determined that, based on its prior holdings, representation by counsel is the default position, because the access to counsel affects a defendant’s ability to assert any other rights the defendant may have.  Further, effective assertion of right to represent oneself requires a defendant to knowingly and intelligently forgo the benefit of counsel after being made aware of the dangers and disadvantages of self-representation.  The assertion of the right to self-representation must also be clear and unequivocal, so a crafty defendant cannot manipulate the 6th Amendment dilemma (there is a “thin line between improperly allowing the defendant to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation.”) to create reversible error.

Ductan argued on appeal that the right to counsel cannot be forfeited by misconduct, and no waiver occurred because he did not “clearly and unequivocally” declare that he wanted to proceed pro se; he wanted retained counsel, not court-appointed defense, and he did not want to represent himself.

Despite Ductan’s lack of cooperation with the magistrate court, essentially rejecting any option presented to him, he never acted out egregiously, in a manner that other courts have found justified forfeiture of the right to counsel (e.g., death threats, unprovoked physical assault).  The Fourth Circuit has not previously endorsed the holding that a defendant can forfeit the right to counsel, and it chose not to do so here.  Additionally, the Fourth Circuit held that Ductan did not waive his right to counsel, and even if he had, no valid waiver occurred because the magistrate court did not complete its Faretta inquiry.  The panel vacated Ductan’s conviction and remanded for a new trial.

Monday, August 31, 2015

Congress Can Criminalize International Illicit Non-Commercial Sex

US v. Bollinger: Bollinger was a minister who moved to Haiti in 2004, along with his wife, to run a ministry. He enjoyed the services of local prostitutes and, eventually, began molesting young girls. In 2009 (while in bed with another woman), Bollinger got a call from his wife and confessed his infidelity. He returned to Virginia a week later to start counseling. As part of that counseling he admitted his sexual acts with young girls. The psychologist treating the couple contacted authorities. Bollinger was charged with engaging in illicit sexual acts with minor after traveling in foreign commerce. Bollinger entered a conditional guilty plea when the district court denied his motion to dismiss the indictment.

On appeal, the Fourth Circuit affirmed Bollinger's conviction, rejecting his argument that the statute exceeded the scope of Congressional authority. Recognizing that Bollinger's conduct was "non-commercial illicit conduct," the court examined whether it was encompassed by the Foreign Commerce Clause. It declined Bollinger's invitation to "wholly transport" the Supreme Court's jurisprudence involving the Interstate Commerce Clause, concluding (among other things) that the federalism concerns that were implicated in interstate regulation did not apply to foreign regulation. Thus, "the pivotal question in this case is how directly an activity must affect foreign commerce for it to be a proper subject of congressional regulation." The Foreign Commerce Clause, the court concluded, only required a "demonstrable effect" on such commerce, rather than a "substantial effect," as with interstate commerce. It was then "imminently rational to believe that prohibiting non-commercial sexual abuse of children by Americans abroad has  a demonstrable effect on sex tourism and the commercial sex industry." Thus, it fell within Congress's power.

The court also rejected Bollinger's challenge to his sentence of 25 years in prison, a variance downward from an advisory Guideline range (and statutory max) of 60 years.

Sex Trafficking Not a Crime of Violence

US v. Fuertes: Fuertes and his codefendant, Ventura, were involved in an interstate prostitution scheme that operated in Maryland. After a jury trial they were both convicted of conspiracy, with Ventura additionally convicted of sex trafficking by force, fraud or coercion under 18 USC 1591(a), as well as possessing a firearm in connection with a crime of violence - the 1591 offense. Fuertes received a sentence of 215 months in prison, Ventura one of 420 months in prison.

On appeal the Fourth Circuit affirmed most of the convictions and Fuertes's sentence, on issues including evidentiary claims and sufficiency of the evidence. However, the court vacated Ventura's conviction on the firearm possession count (and, thus, his sentence). It concluded that 1591 was not a "crime of violence" predicate for the offense. It did so under a plain error standard because while Ventura had moved for a judgment of acquittal on that count he had not presented the legal argument (versus the factual one) that he presented to the Fourth Circuit. Nonetheless, the error was plain, affected his substantial rights, and was of the type the court decided to notice. Section 1591, the court held, was not divisible because "it contains a single indivisible set of elements," although it had many "alternative means of commission." It rejected the Government's argument that the offense was categorically violent even if committed via fraud because "there is still a substantial risk of physical injury from the prostitute's customers," holding that the relevant statutory language required that force be used during the commission of the offense: "the relevant inquiry is not whether there is risk of any person using force in any way tangentially related to an on-going offense, but rather whether there is a substantial risk of the defendant doing so."

Mandatory Life for Piracy Not Cruel & Unusual

US v. Said: Said was one of several defendants in this consolidated appeal that were convicted of piracy. The convictions arose from not one but two unsuccessful attempts to capture ships that, it turned out, were military craft (a Royal Navy frigate and a US Navy dock landing ship). The second attempt left the pirates' boat destroyed and the pirates in custody of the US Navy. They were brought to the Eastern District of Virginia and charged with (among other things) piracy on the high seas under 18 USC 1651 which carries a mandatory life sentence. After unsuccessfully trying to dismiss that charge (for reasons explained here), Said and all but one of the other pirates were convicted at trial. However, the district court concluded that a life sentence in this case violated the Eighth Amendment's prohibition on cruel and unusual punishment and imposed various terms of months on the defendants. The Government appealed.

On appeal the Fourth Circuit vacated the sentences and remanded the case for the imposition of life sentences. The court concluded that Said couldn't make it past the first prong of the Supreme Court's test for non-capital Eighth Amendment sentences, that "the gravity of the offense and the severity of the sentence produces an inference of gross disproportionality." It noted that the Supreme Court had only found one non-capital sentence to be grossly disproportionate (life as a recidivist after passing a bad check) and that the Fourth Circuit hasn't identified any such sentence since. The court rejected the argument that the defendants' conduct was merely "attempted robbery on the high seas" that didn't result in any serious injury or damage, noting that  it was "at least as severe as the cocaine possession" that the Supreme Court held could trigger a life sentence. The statutory life sentence "reflects a rational legislative judgment, entitled to deference" about the danger posed by piracy.

Judge Davis concurred, suggesting that "not all piracy offense are equal in severity" and that Congress might revisit the issue.

Warrant Requires to Get Historical Cell Cite Info

US v. Graham: Graham and his codefendant, Jordan, were involved in a string of commercial robberies that took place in and around Baltimore. They were arrested after the last theft when they were stopped in the truck that served as a getaway vehicle. Among the evidence retrieved from the truck was a pair of cell phones, one subscribed to Jordan and the other to Graham's wife. Investigators obtained court orders, pursuant to the Stored Communications Act, to obtain cell site location information ("CSLI") from the phones. CSLI (I'm grossly simplifying here) can help determine the location of a phone over time as it interacts with various cell towers to send and receive information. Investigators were able to use the CSLI to place the phones (and, by association) Graham and Jordan near robbery sites. Graham and Jordan moved to suppress that data, arguing that investigators were required to get a warrant before obtaining it. The district court denied the motion and Graham and Jordan were convicted at trial of various counts related to the robberies.

On appeal the Fourth Circuit affirmed the convictions and the district court's order denying suppression of the CSLI. However, the court was deeply divided on the rational for doing so. The majority concluded that investigators should have gotten a warrant obtain the CSLI, but concluded that suppression wasn't appropriate because they did comply with existing law when getting a court order under the Stored Communications Act. Specifically, the investigators' inspect of "a cell phone user's historical CSLI for an extended period of time" was a "search" for Fourth Amendment purposes. It wasn't persuaded that Graham and Jordan waived any expectation of privacy based on the fine print of their contract that, the court realized, nobody actually reads. As to the data itself, it looked to the concurring opinions in the Supreme Court's recent Jones and the concerns about being able to harvest vast amounts of data. It also distinguished cases like Jones itself (and the prior beeper cases) that tracked vehicles by pointing out that a phone location is often the location of a person and can include traditionally protected places like the home.

The main fissure between the majority and the dissenting Judge Motz was over the third-party doctrine. The majority concluded that it didn't apply here because "cell phone users do not voluntarily convey their CSLI to their service providers." That is because the data accumulates even when the person isn't using the phone, such as when a text message is received or an incoming phone call isn't answered. Judge Motz, by comparison, argued that the majority's conclusion "flies in the face of the Supreme Court's well-established third-party doctrine" and that the CSLI was the same as the pen register information covered by the Supreme Court's decision in Smith. The majority recognizes that its holding is at odds with decisions of the Fifth and Eleventh Circuits.

However, the end result of both the majority and dissenting opinions are the same - no suppression.

In the midst of all this Judge Thacker wrote a brief concurrence expressing her "concern about the erosion of privacy in this era of rapid technological development" and concludes by saying "this decision continues a time-honored American tradition -- obtaining a warrant is the rule, not the exception."

UPDATE: The Government has filed a petition for rehearing in this case, which the Fourth Circuit has granted. As such, this opinion has been withdrawn.

Wednesday, July 29, 2015

Illegal re-entry 16-level bump error

US v. Parral-Dominguez:  Mr. Parral-Dominguez was arrested in North Carolina in 2010 in possession of more than an ounce of cocaine.  He pleaded guilty in state court to drug trafficking charges, and state authorities informed ICE of his illegal status; he had been previously deported in 2007.  He was indicted federally for illegal reentry at the end of 2013, and pleaded guilty in March 2014 without a plea agreement.

Parral-Dominguez made a single objection to the PSR, to a 16-level bump to his offense level for having been convicted previously of a crime of violence, arguing that as a matter of law, the North Carolina state offense of shooting into an occupied building (for which he had been convicted in 2007, which lead to his deportation) did not constitute a crime of violence.  The district court disagreed, and imposed the enhancement, and in its sentencing order, it relied heavily on an unpublished decision to conclude that the state offense was a crime of violence.  Parral-Dominguez appealed.

The Fourth Circuit resolved the issue in Parral-Dominguez’s favor, finding that the North Carolina state offense of discharging a firearm into an occupied building does not constitute a crime of violence for federal sentencing purposes.  The Fourth Circuit applied the categorical approach, finding that the statute at stake does not require that an offender use force against another person in order to complete the crime.

The Fourth Circuit found that this procedural error was not harmless because it could not say that regardless of the calculated Guidelines range, 65 months is the “only” sentence the defendant would have received, and the district court gave no indication that it would have imposed a similar sentence regardless of any procedural error.

Divided panel vacates dismissal

US v. Vinson:  The government appealed the district court’s order that granted the defendant’s motion to dismiss the indictment in this case; the defendant had been indicted for being a felon in possession after a consensual search of his residence revealed a rifle and ammunition, and in 2004, he had been convicted of misdemeanor domestic violence in North Carolina.  At issue is whether the prior conviction qualified Vinson as a person not to possess a firearm under 18 U.S.C. §922(g)(9).

This case arose from a January 2013 incident in which police received information that Vinson allegedly threatened his wife and children’s lives, and then fled.  The police put the kids’ school on lock-down and Vinson’s wife permitted the police to search their home, wherein the gun and ammo were discovered.  In making its determination on the motion to dismiss, the district court stated that, under the law, assault and battery charges don’t necessarily connote acts of violence.  The district court concluded that Vinson’s prior conviction did not qualify as a misdemeanor crime of domestic violence under the categorical approach.  The government appealed.

On appeal, the government argued that contrary to the district court’s conclusion, the modified categorical approach may be applied in this case, as the state statute of Vinson’s prior conviction is divisible because it has elements creating several different crimes, some of which match a generic federal offense.  The Fourth Circuit agreed with the government here, vacated the order dismissing the indictment, and remanded with instruction to reinstate the indictment against Vinson.

Judge Gregory dissented, arguing that the majority relied upon “tenuous suppositions, inapposite jury instructions, and the decision of a state intermediate appellate court (at odds with the state supreme court) to hold that assault is a divisible offense in North Carolina.”

Reversal of order requiring medication by force

US v. John Watson, Jr.:  In this appeal, the Fourth Circuit reversed the district court’s order that granted the government’s request to forcibly medicate Watson to attempt to make him competent to stand trial.  A divided panel concluded that the government had not met its burden of proving that forcibly medicating Watson, in particular, was substantially likely to restore his competency.  Watson had been indicted with several charges after he shot at a Coast Guard helicopter with a handgun.

The issue of whether to forcibly medicate a defendant to render them competent to stand trial is controlled by the Supreme Court’s 2003 decision in Sell v. United States.   In Sell, the Supreme Court developed a four-part test; each part must be proven to the “deliberately high” standard of clear and convincing evidence.

On appeal, the first two parts of the Sell test were at issue: whether the government showed important governmental interests at stake; and whether the government showed that involuntary medication would significantly further its interests, requiring proof that the medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects which would interest significantly with the defendant’s ability to assist counsel at trial.

The Fourth Circuit held that because the district court had clearly erred in finding that the government met its burden on the second prong of the test, it did not decide whether the district court erred with respect to its conclusions on the first prong of the Sell test.  With regard to the second part of the test, the Fourth Circuit discussed the lack of findings below that assessed the likely success of the government’s proposed treatment plan in relation to Watson and his condition in particular; the Fourth Circuit stated that the proper enquiry for courts is not whether the proposed treatment plan will work in general, but whether it will work as applied to a particular defendant.  The Fourth Circuit held that the district court did not undertake the searching and individualized assessment of Watson’s likely susceptibility to forcible medication that is required by law.

Further, by resolving the appeal issues in this case by deciding that the government has not justified forcible medication in this case, the Fourth Circuit determined that the district court’s order be reversed, rather than remanding the case to the district court for further proceedings.  The Fourth Circuit concluded that the district court had ample opportunity to assemble and defend the evidence necessary to meet its burden here, and it failed to do so.

Monday, July 13, 2015

Former Virginia Governor's convictions affirmed

US v. McDonnell:  Despite an impressive group of amici in support of his appeal, the former governor of Virginia, Robert McDonnell, lost the appeal of convictions he received following his five-week trial.  The Fourth Circuit affirmed the judgment of the district court.

Two most important issues on appeal: 1) McDonnell argued that the district court’s jury instructions misstated fundamental principles of federal bribery law; and 2) the government’s evidence was insufficient to support his convictions pursuant to the honest-services wire fraud statute and the Hobbs Act.  The Fourth Circuit was unpersuaded by each of McDonnell’s jury instruction claims, e.g. the instructions were over-inclusive, broad, incomplete, misleading, or unprecedented. Further, McDonnell claimed one instruction was a misstatement of the law, a statement with which the Fourth Circuit disagreed, finding the instruction “indisputably correct,” and “not erroneous with respect to the Hobbs Act extortion charges."  Further, one instruction that may have been debatable to the Fourth Circuit, that the subjective beliefs of a third party in an honest-services wire fraud case cannot “convert non-official acts into official ones,” was found to be harmless, if indeed an error occurred.    The Fourth Circuit held that McDonnell failed to show that the “official act” instructions, taken as a whole, were anything less than a “fair and accurate statement of law.”

McDonnell’s claim about the sufficiency of the evidence also failed on appeal, with the Fourth Circuit finding ample “official acts” of McDonnell exploiting the power of his office in furtherance of an ongoing effort to influence state university researchers.  The Fourth Circuit found his corrupt intent was evidenced by expensive vacations, accepting loans, etc., as well as shopping sprees, cash, golf outings and vacations, all free to McDonnell and his family.  These were not goodwill gifts from one friend to another, but gifts in exchange for official acts to help a pharmaceutical company secure independent testing for its product, Anatabloc, and that McDonnell acted in the absence of good faith in receiving them.  Thus, McDonnell failed in his efforts to sustain the burden of bringing a sufficiency of the evidence challenge.

Supervised release term of illegal re-entry sentence affirmed

US v. Aplicano-Oyuela:  Appellant Aplicano-Oyuela pleaded guilty to illegal re-entry via plea letter he submitted to the court, rather than plea agreement.  The PSR included a calculated guidelines range of 10 to 16 months, with the possibility of a supervised release term of up to three years.   Aplicano requested that the court impose a sentence of 8 months, but he did not address the suggested supervised release term in the PSR.  At sentencing, the district court repeatedly expressed its perceived belief of the likelihood of Aplicano’s recidivism, as well as his likely return to the US after deportation, and it imposed a 13-month term of imprisonment, to be followed by three years of supervised release, so that he could be punished for a long time should he choose to come back to the US and/or commit any further crimes.

On appeal, Aplicano challenged his 3-year term of supervised release, arguing that it is both procedurally and substantively unreasonable, and that his guilty plea was “fatally flawed.”  Since Aplicano did not object to his supervised release term until his appeal, the Fourth Circuit reviewed his issues for plain error only.  The Fourth Circuit began its analysis with a review of the supervised release system, pertinently how the Guidelines were amended in 2011, so that when an alien is facing post-incarceration removal and supervised release is not required by statute, courts should ordinarily not impose a term of supervised release.  While imposing a term of supervised release on removable aliens is not forbidden, the public is “ordinarily” and “adequately” served by a new prosecution alone.

The Fourth Circuit, in non-precedential unpublished decisions, has generally affirmed the imposition of supervised release on aliens likely to be removed post-incarceration.  The Fourth Circuit found the imposition of a term of supervised release procedurally reasonable, as the district court believed that it would deter Aplicano from committed future crimes, curb his desire to return to the US again, to protect US citizens, and that Aplicano’s need to be deterred was a great concern than punishing him.  Next, the Fourth Circuit held the imposition of supervised release was substantively reasonable because of the district court’s intention to provide deterrence and protection for the community.  Finally, with regard to Aplicano’s guilty plea, the Fourth Circuit decided that even if the district court had erred in advising Aplicano of the nature of supervised release, Aplicano did not show that such error affected his substantial rights, nor that but for the error, he would not have entered the plea.  The judgment of the district court was affirmed.

Wednesday, July 01, 2015

Erroneous Simmons Fueled ACCA Designation Can Be Attacked In 2255

US v. Newbold: Once again, we have a question of how the Fourth Circuit's decision in Simmons impacts a sentence imposed before that case was decided. In this case, Newbold pleaded guilty to being a felon in possession of a firearm and was sentenced under ACCA to a 225-month sentence. After a convoluted procedural path (the Fourth calls it "miraculous"), Newbold was present before the Fourth Circuit after filing a timely 2255 motion seeking the vacation of his sentence, based on the retroactivity of Simmons.

The Fourth Circuit vacated Newbold's sentence. Although the Government agreed that Simmons was retroactive, the court nonetheless had to "ensure that the sentencing error Newbold seeks to challenge is cognizable on collateral review." It was because, unlike the recent cases involving retroactive Simmons challenges to career offender calculations, the application of ACCA in this case increased Newbold's statutory sentence. Thus this was one of the limited universe of "fundamental defects" that could be corrected in 2255 proceedings. The court then examined Newbold's priors, found that he could not have received sentences of more than one year for them, and concluded he should not have been sentenced under ACCA.

Failure To Disclose SEC Fraud Investigation of Key Witness Requires Vacation of Convictions

US v. Parker: Parker, his codefendant/appellee Taylor, and his son Brett (a codefendant below, but not coappellee - he's serving two life terms in South Carolina for multiple murder) were convicted of illegal gambling in an operation including at least five people. Parker and Taylor stipulated that they were engaged in a gambling business and that it included a related operation run by Brett and another man. The key issue at trial was whether there was a fifth person involved. The Government sought to meet that burden via other individuals related to Brett, most critically his (now murdered) wife, Tammy. A witness named Staples provided testimony that Tammy was involved in the gambling operation by managing and spending its proceeds. There was some physical evidence corroborating that testimony. The Government also presented evidence that other individuals ("layoff bookies") were involved in the operation. Finally, there was evidence that Brett received "lines" from a separate bookmaker who could be the fifth person.

On the Friday before trial began, Staples told the Government that he was being investigated by the SEC in Utah for fraud. That information was not disclosed to the defense, who did not cross examine Staples when he testified. The day he testified the Government's civil division received a draft complaint from the Utah SEC office alleging fraudulent conduct on Staples's part. The complaint was filed two days after the jury convicted Parker and his codefendants, who finally learned of the SEC investigation the next day. They moved for a new trial on Brady grounds, which the district court denied because the SEC report "was not material to the jury's determination of the defendants' guilt" because Staples's testimony only related to Tammy's role in the operation and the Government's case didn't rely on her to be the fifth person.

On appeal, the Fourth Circuit reversed. The court found that the SEC investigation constituted impeachment evidence (as well as evidence of untruthfulness under FRE 608) that was material because while the jury could have found that someone other than Tammy was the fifth person in the operation, the evidence most strongly linked Tammy to the operation and thus there was "a reasonable probability that at least one juror would have viewed Tammy as the fifth participant." Aside from Staples's testimony, the other evidence linking Tammy to the operation was "minimal." Furthermore, it rejected the Government's arguments that it was under no duty to disclose evidence of an investigation by another agency and that the defendant's knew or should of known of the conduct underlying the SEC investigation. Having said all that, the court made clear that it was vacating the convictions and remanding for further proceedings, not entering judgments of acquittal, as the evidence presented at trial was sufficient to convict.

Sentence Consecutive to Any Future Federal Sentence Error, But Not Plain

US v. Obey: Obey was initially convicted of multiple drug counts and sentenced to 540 months in prison. His convictions were vacated on Giglio grounds and, on remand, he entered into a plea agreement. He agreed to plead guilty to a single count with a 20-year statutory maximum and the Government would argue for a sentence of 18 years. Sentencing came and the Government argued for an 18-year sentence. However, the Government (in response to the district court's questions) advised the court about Obey's pending state murder trial, confirmed that he was a career offender, but reiterated the 18-year recommendation. The district court denied the Government's "request for a variance" (it's unclear what the actual Guideline range was) and sentenced Obey to 240 months in prison, to be served consecutively to any other sentence, including any federal or state sentence he might receive.

The Fourth Circuit affirmed Obey's sentence on appeal. First, it rejected (reviewing for plain error) his argument that the Government breached its promise in the plea agreement by not being more forceful in its assertion of the 18-year recommendation or by providing sufficient reasons as to why that sentence was appropriate. The court concluded that the Government repeatedly restated its recommendation, did not criticize or undermined that recommendation, and that the plea agreement didn't call for the Government to do any more than make the recommendation. Second, it rejected the argument that the district court erred by ordering Obey's sentence to be served consecutively to any future state or federal sentence. The court concluded that the Supreme Court's holding in Setser that allowed sentences to be consecutive to future state sentences did not extend to future federal sentences as well (per prior Fourth Circuit precedent). However, Obey was stuck with review for plain error and the court found, in light of Setser, that the district court's error was not "plain."