Monday, May 02, 2016

US v. Warner: Warner pleaded guilty to being a felon in possession of a firearm. In the plea agreement, the parties agreed that the 4-level Guideline enhancement for use of a firearm in connection with another felony offense did not apply because the conviction at issue - a North Carolina breaking and entering conviction - was not a felony. However, the agreement also stated that the Government "will inform the Court and the probation office of all face pertinent to the sentencing process and will present any evidence requested by the Court." The PSR recommended that the enhancement applied. Warner objected. The Government, on the other hand, noted the agreement with Warner, but then explained (at some length) how its analysis had changed in light of newer Fourth Circuit case law. Nonetheless, it asked that the district court "honor the agreement of the parties." Warner argued that the Government breeched. The district court disagreed, applied the enhancement, and sentenced Warner to 48 months in prison, just below the bottom of the resulting Guideline range.

The Fourth Circuit vacated Warner's sentence and remanded for resentencing before a different judge. The court concluded that the Government did breech the plea agreement, even though it was acting in good faith. The court distinguished between the Government merely representing its position (which it did) and actually recommending that the enhancement not apply (which is promised to do). The former is a "mere recommendation," advice that the district court was free to reject. The latter would have made the district court more hesitant to apply the enhancement. Furthermore, there was a difference between recommending that the enhancement shouldn't apply versus arguing that it should not apply.

Congrats to the Defender office in the Western District of NC on the win!

No Oral Conditional Plea Without Government Explicit Consent

US v. Fitzgerald: Fitzgerald was charged with various gun and drug offenses and unsuccessfully moved to suppress evidence found as the result of the execution of a search warrant at his home. He rejected a plea offer from the expressed his desire to enter an "open plea." At the plea hearing the district court indicated that, by pleading guilty, Fitzgerald might be unable to raise certain issues on appeal, but said that "you certainly retain your ability to appeal any decision the Court has made with regard to a motion to suppress." The Government didn't say anything about the district court's statement. The district court accepted the guilty plea and sentenced Fitzgerald to 130 moths in prison.

Fitzgerald appealed, challenging the denial of his motion to suppress, but the Fourth Circuit ordered supplemental briefing on the issue of whether he had entered "a valid conditional plea that reserved his right to appeal these issues." Ultimately, the court concluded that he had not. Although Rule 11(a)(2) requires conditional pleas to be in writing, the court noted that it deems that requirement satisfied when "the reservation is so clearly show on the record that there is no doubt that a conditional plea was agreed to." However, the other requirements of the rule - Government consent to the plea and district court approval - are mandatory. At the very least, the court held, the Government consent requirement was not met because the Government never addressed the issue during the plea hearing. The Government's concluding assertion of "that's perfect" to the district court wasn't enough. Because Fitzgerald's plea was not valid, the court vacated the judgment and remanded to the district court for Fitzgerald to decide whether to go to trial or enter a conditional plea.

Burglaries of Homes Next to Each Other on Same Night Separate for ACCA Purposes

US v. Linney: Linney pleaded guilty to being a felon in possession of a firearm. In the PSR, he was designated an Armed Career Criminal based on three prior North Carolina burglary convictions, two of which, Linney argued, occurred on the same occasion. He argued that they took place on the same night and in close proximity. Records produced by the Government showed they took place next door (or across the street) from each other on the same night, one between 8 and 10pm, the other between 7 and 10pm. At the same time Linney pleaded guilty to those two offenses he also pleaded guilty to (among other things) 17 counts of breaking and entering and two attempted breaking and entering counts. The Government argued that the two burglaries involved different victims and locations and were "distinct criminal episodes." The district court agreed and sentenced Linney to 235 months in prison.

On appeal, the Fourth Circuit affirmed Linney's sentence. Linney conceded that the offenses involved separate victims, but argued that they occurred in the same location "because the burglarized houses were only thirty feet apart" and that the objective of the burglaries was the same. The court rejected that argument, finding that separate houses mean separate geographic locations which gave Linney "a sufficient opportunity to evaluate whether to commit another crime." Nor did the Shepard documents in the record show that Linney was acting with an accomplice which would have "complicat[ed] the different occasions analysis."

Prior Record, Other Factors, Justified Extension of Traffic Stop

US v. Palmer: Palmer was pulled over in Virginia because of too darkly tinted windows and the inspection sticker appeared to be fraudulent. Upon approaching the car, the officer noticed several air fresheners in the car, "some hanging in the passenger compartment and others plugged into the air-conditioning vents." The officer retrieved information from a couple of different databases that indicated Palmer was a gang member with a prior criminal record that included drug offenses. The officer radioed for a drug dog, then went to more fully examine the inspection sticker. In leaning into the car to do so (the back of the sticker is the best evidence of fraud, apparently), the officer smelled the odor of marijuana. Although the officer told Palmer he had grounds to search the car, he "wanted to be '110% sure'" and waited for the drug dog, which alerted on the vehicle twice. The eventual search uncovered crack cocaine and a firearm. Palmer is charged with drug and gun offenses, has his motion to suppress denied, and enters a conditional guilty plea.

The Fourth Circuit affirmed the denial of Palmer's motion to suppress. First, it found that the stop itself was lawful, finding no clear error in the officer's conclusion that the window tint was too dark (indeed, measurement after Palmer was arrested showed the officer was right). Second, the court rejected Ring's argument that the officer expanded the scope of the stop before getting to the point where he smelled marijuana (and thus had probable cause to search). With regard to Palmer's argument that Palmer had no basis to "delve into his criminal record" because it was unrelated to the basis for the stop, the court held that to "describe that contention is to discard it" because an officer "is entitled to inquire into a motorist's criminal record after initiating a traffic stop." The information the officer received from the database about Palmer's prior record gave him reasonable suspicion (along with the other facts then known) that criminal activity was afoot. Those factors, in their totality, "eliminated a substantial portion of innocent travelers and demonstrated a connection to possible criminal activity."

Wednesday, April 20, 2016

Court Affirms Convictions Following Stash House Robbery Sting

US v. Hare: This is a case that revolves around a favorite new technique of federal law enforcement (the ATF, in this case), the fake drug stash house sting. In these stings, undercover federal officers find people who are willing to rob a drug stash house and then turn around and arrest them at some point before the actual robbery would have taken place. Of course, there are no drugs, much less an actual stash house. What makes this case a little different is that the three defendants - Hare, Williams, and Edwards - weren't brought into the scheme by law enforcement, but by Bowden, who had been the target of the sting (when the undercover asked Bowden if he'd be interested in a robbery, Bowden replied - repeatedly - "that's what I do!". Hare and the others were eventually convicted of various counts, including a Hobbs Act robbery and conspiracy, and received sentences of 132 (Hare), 150 (Williams), and 240 months (Edwards).

On appeal, Hare and the others challenged the district court's decisions related the sting itself. The Fourth Circuit affirmed their convictions and sentences and found no error in the district court's rulings. First, Hare and the others had demanded discovery of how the ATF determines who to pursue in these sting investigations, in order to determine whether the use of these sting operations was racially motivated. The district court denied the motion, aside from a single page from an ATF manual related to "guidelines for selecting a target." The court affirmed that decision, finding that the defendants didn't meet the high burden necessary to compel discovery when pursuing a selective enforcement argument. Noting that the burden for discovery is almost as high as the burden to prevail on the claim, the court held that the evidence the defendants did have (of 8 similar cases involving 32 defendants in the District of Maryland, all the defendants were African-American) didn't meet that threshold. Second, the court affirmed the district court's decision to deny the defendants' motion to dismiss for egregious Government conduct - the sting operation. The court rejected the arguments that the officers should have investigated the defendants' predisposition to committing such a crime, that the amount of cocaine that was allegedly involved as an "inducement so lucrative as to be unreasonable," and that stash house robbery stings were, per se, objectionable.

Monday, April 18, 2016

No Intent to Kill In Carjacking Case Without Weapon

US v. Bailey: Bailey was the driver of a car that got into a high-speed chase with police. When he wrecked the car, Bailey got out and fled on foot to a nearby parking lot. There, he approached a pickup truck with three people inside while he was "panicked and bloodied." He asked the driver for a ride and offered to pay, but the driver said no. A "flurry of activity" allowed Bailey to get into the back seat. The two passengers got out, but the driver stayed put, at which point Bailey told him to "drive, drive, drive," while placing something "hard and cold" against the driver's neck. The driver never saw a gun and didn't know what Bailey pressed against his neck but was certain Bailey "was about to kill [him]." He jumped from the truck. Bailey got behind the wheel and sped off, eventually to be captured. Bailey was charged with carjacking under 18 USC 2119, convicted by a jury, and sentenced to 105 months in prison.

On appeal the Fourth Circuit unanimously reversed Bailey's conviction. The court concluded that there was insufficient evidence to sustain a conviction for carjacking. Specifically, section 2119 requires an "intent to cause death or serious bodily injury" to sustain a conviction for carjacking. The court rejected the Government's argument that the totality of the evidence - Bailey's reckless driving, his appearance when he approached the truck, and the "hard and cold" object - showed such intent. Even though Bailey conceded that he intended to scare the driver, that isn't enough to meet the 2119 threshold, particularly when no witness saw him with a weapon. Noting that 2119 requires a showing of a certain intent "at the precise moment" Bailey demanded or took control of the truck, the court concluded that the evidence did not show such an intent at that time.

Congrats to the Defender office in the Middle District of North Carolina on the win!

Friday, April 01, 2016

Juvenile prosecutions for murder in aid of racketeering post-Miller unconstitutional

US v. Under Seal:  In this interlocutory appeal, the Fourth Circuit considered whether the government could legally prosecute a juvenile for murder in aid of racketeering, involving events that occurred after the Supreme Court made unconstitutional the only two authorized penalties for that offense, i.e., death or life without parole, for juvenile offenders.  The Fourth Circuit held that such a prosecution cannot constitutionally proceed.

At the district court, the government alleged that the defendant here, when he was a few months shy of turning 18, participated in a gang-related murder.  The government moved to prosecute this juvenile for murder in aid of racketeering pursuant to a delinquency information.  The defendant opposed the government’s motion, based upon recent Supreme Court cases that have drastically altered the legal landscape for juveniles charged with crimes that were penalized by death or mandatory life imprisonment, making such penalties illegal.  Congress, since the advent of these cases, especially Miller v. Alabama, which constitutionally prohibited a mandatory life sentence on a juvenile, has yet to legislatively act in response.  The government appealed here, with proposals for severing or excising the unconstitutional portions of the statute at issue, and leaving the constitutional portions of the statute intact.  

The Fourth Circuit’s analysis here was a case of first impression, as no case had arisen yet where a criminal act charged against a juvenile is alleged to have been committed after Miller was decided.  It discussed how severance is constitutionally okay, if the severed statute can function independently following severance; if not, severance is not viable.  A criminal statute is not operative without articulating a punishment for the proscribed conduct, and the government’s proposed excision here would, in contravention of both due process and severance principles, combine the penalties for two separate, distinct criminal acts, in a manner that would be “nothing less than judicial legislation pure and simple.” Also, the Fourth Circuit notes that looking to legislative intent is pointless when there is no indication what the legislative intent would be under the circumstances, since Congress hasn’t said anything on the subject since Miller was issued (“in light of Roper, Miller, and Montgomery, juvenile sentencing is undergoing substantive changes”).

The Fourth Circuit notes that the government has other options available in its province to pursue against this defendant; however, it cannot prosecute constitutionally a juvenile defendant for murder in aid of racketeering.

Armed bank robbery a crime of violence

US v. McNeal:  In this appeal, two of three co-defendants raised several trial issues (the third co-defendant pleaded guilty), including the sufficiency of the evidence of their brandishing convictions, the adequacy of proof regarding a conspiracy conviction, the denial of a motion to suppress, and other evidentiary rulings.  The main focus of this appeal appears to be the Fourth Circuit’s determination that the federal offense of armed bank robbery is a “crime of violence” in the context of the brandishing offenses.  The Fourth Circuit rejected all of the defendants’ arguments, affirming the convictions here.

The defendants failed to contend that armed bank robbery was not a crime of violence at the district court, rendering their claim on this issue to plain error review.  The defendants faced a five-year mandatory minimum sentence for the carrying a firearm during or in relation to a crime of violence, consecutive to any sentence for the underlying offense.  Here, the brandishing of a firearm during a crime of violence would add two years to the mandatory minimum sentence the defendants faced.  The co-defendants argued that their convictions for brandishing a firearm must be vacated because the statutory language lacked as an element the use, attempted use, or threatened use of physical force.

The government argued that bank robbery, a lesser included offense of armed bank robbery, satisfied the force element because it includes the element that property must be taken “by force and violence, or by intimidation,” and the Fourth Circuit agreed with the government.  The Fourth Circuit cited to its own earlier case and case law from other circuits which held that other federal crimes with language similar to the instant statute have as an element the use, attempted use, or threatened use of physical force, and those are crimes of violence.  The Fourth Circuit reached the same conclusion here, and held that armed bank robbery is a crime of violence.

Adequacy of jury instructions on results from death language

US v. Alvarado:  Alvarado received a conviction for knowingly and intentionally distributing heroin to Eric Thomas in March 2011, which distribution resulted in Thomas’ death.  Alvarado received a mandatory minimum sentence of 20 years.  On appeal, Alvarado contended that the district court  erred in failing to clarify for the jury that the “results-in-death” statutory language meant that the jury could not convict Alvarado of the charged offense if heroin was only a contributing cause of death.  Alvarado also argued that the district court failed to instruct the jury that Alvarado must have “reasonably foreseen” that Thomas’ death could result from the distribution; and, that admitting hearsay testimony violated the rule against hearsay and Alvarado’s rights under the Sixth Amendment’s Confrontation Clause.

At trial, the jury asked the district court twice to clarify the meaning of the “death results from” element of the heroin distribution offense.  The district court declined to elaborate further.  The main question presented in the appeal is whether the district court should have explained further the statutory phrasing “results from.” Alvarado argued that the district court’s decision not to elaborate further (a decision which the defendant concurred at trial, subjecting this claim on appeal to plain error review) allowed the jury to convict Alvarado even if heroin was only a contributing cause of Thomas’ death, a more lenient standard that “but-for” causation, which standard the Supreme Court set out in Burrage.  As the dissenting opinion notes, the jury here unmistakably expressed its confusion as to the causation requirement, despite the district court’s tracking of the statutory language in its instructions.

The Fourth Circuit panel majority concluded, however, that because there was no evidence in the record that Thomas could have died without the heroin, that the jury’s verdict was consistent with the Supreme Court’s but-for causation requirement.

Tuesday, March 01, 2016

Late IPA Filing Not Excused By Good Cause, Manifest Injustice

US v. Cowley: Cowley was found guilty of firearm, drug, and witness possession crimes arising from the 1998 shooting of a drug dealer in West Virginia and was sentenced to 45 years in prison. Among the evidence presented at trial was testimony that Cowley was seen with the same gun the drug dealer's son had identified as the murder weapon (he saw the shooting, but the attackers were masked). Cowley's convictions and sentence were affirmed on direct appeal and during 2255 proceedings, which concluded in 2006. In 2014, Cowley filed a motion seeking DNA testing under the Innocence Protection Act (18 USC 3600), seeking testing of various items from the crime scene including shell casings, clothing, and blood stains. He also provided affidavits from eight witnesses that bolstered the alibi defense he unsuccessfully used at trial and identified four others as responsible for the murder. The district court denied Cowley's motion because it wasn't timely filed.

On appeal, the Fourth Circuit affirmed the denial of Cowley's IPA motion. It did so on the merits, however, rejecting the Government's argument that Cowley was required to get a Certificate of Appealability (as in a 2255 proceeding) before the court had jurisdiction to hear the appeal. On the merits, the court noted that the IPA has ten requirements that must be me to grant a motion, the last of which is that it is "made in a timely fashion, subject to" what the court called "certain rebuttable presumptions." The IPA creates a rebuttable presumption if a motion is filed within either three years of a final conviction or five years of the IPA's enactment in 2004. Cowley's conviction was final before the IPA was passed, so his deadline was October 2009 - five years before he filed his motion. Cowley argued that two of the IPA's exceptions excused his untimely filing - that the he had good cause for the delay and that denying his motion "would result in a manifest injustice." The court concluded that neither exception applied. It rejected Cowley's argument that he had good cause because he had been incarcerated and without counsel for the years between the passage of the IPA and his filing, holding that given the nature of the statute incarceration couldn't be good cause. On the manifest injustice exception the court held that Cowley could have obtained the "new" evidence he presented before trial and that the district court did not abuse its discretion in finding that Cowley failed to show that any injustice would be "unmistakable, clear, plain, or indisputable."

Wednesday, February 24, 2016

Concealed Firearm Possession In WV Not Enough Basis for Frisk

US v. Robinson: Police in Ranson, West Virginia, received an anonymous tip that a black man who was the passenger in a car had just been seen in a convenience store parking lot with a gun. He loaded the gun, put it in his pocket, and the car drove away. The area around the convenience store was generally considered a "high crime area." Officers responded and stopped the car because neither the driver or passenger (Robinson) were wearing seat belts. One officer asked Robinson to step out of the car ,while another asked if he had any weapons. Robinson didn't answer, but gave a "weird look." The officer frisked Robinson and found a gun. Robinson was charged with being a felon in possession of a firearm. He moved to suppress the gun, but the district court denied the motion. Robinson entered a conditional guilty plea and was sentenced to 37 months in prison.

On appeal, the Fourth Circuit reversed, 2-1. Everyone agreed that the initial stop was proper and there was no argument over whether the anonymous tip was reliable. Instead, the issue came down to "whether the subsequent frisk was lawful - that is, whether the officers had reasonable suspicion that Robinson was 'armed and dangerous.'" The court concluded that there was not. Of particular importance was the fact that, in West Virginia, it is not illegal to carry a concealed firearm, the fact that the tip reported someone concealing a weapon was not, in and of itself, sufficient to show that person was dangerous. "In a different time or jurisdiction," the court wrote, "it might well have." The court recognized that allowing police to frisk anyone they thought might be armed in states that allowed concealed carry would create a serious risk of invasion of privacy and give police unfettered discretion, "implicating concerns about abuse of police discretion that are central to the Fourth Amendment." Nor did the court find that the other factors present during the stop - the high crime area and Robinson's lack of an answer to the question of whether he was armed - created reasonable suspicion.

Judge Niemeyer dissented, arguing that the court's "remarkable holding establishes a new approach that will make traffic stops substantially more dangerous to police officers" and was based "on several basic flaws of law and logic."

Congrats to the Defender office in the Northern District of WV on the win!

Wednesday, February 17, 2016

No Appeal Waive Escape Hatch After Departure

US v. McLaughlin: McLaughlin pleaded guilty to bank fraud. Her plea agreement included the following provision (sing along if you know the words!), in which she agreed:

In addition, at the plea hearing the district court asked if McLaughlin understood "you reserve only the right to appeal from an upward departure from the advisory guideline range established at sentencing and that you otherwise waive all rights to appeal whatever sentence is imposed?" McLaughlin said she understood. At sentencing, the district court applied a four-level enhancement for role in the offense, producing a Guideline range of 15 to 21 months. The district court then departed due to the under representation of McLaughlin's criminal history and imposed a sentence of 27 months.

The Fourth Circuit dismissed McLaughlin's appeal, in which she challenged the four-level enhancement, but not the upward departure. McLaughlin argued that she retained her right to appeal any part of the sentence because the sentence was "in excess of the applicable advisory Guideline range that is established at sentencing." The court disagreed, however, holding that the broader clause of the waiver - covering "whatever sentence is imposed on any ground, including any issues [relating] to the establishment of the advisory Guideline range" - controlled. If not, the exception clause on which McLaughlin relied would swallow the broader provision. Relying on contractual interpretation tools, the court "decline[d] McLaughlin's invitation to reduce much of her waiver to mere surplusage." The court also found that there was no ambiguity in the waiver (which would then be construed against the Government) simply because McLaughlin and the Government read the provision in different ways.