Friday, December 22, 2017

Defendant Who Fails on Plain Error Appellate Review Can Prevail on Ineffective Assistance of Counsel for Failure to Raise Issue

US v. Carthorne: In 2010 Carthorne pleaded guilty to drug and gun charges and was determined, in the PSR, to be a career offender based on a Virginia conviction for assault and battery against a police officer. Trial counsel didn't object to the classification of that offense as a crime of violence or Carthorne's designation as a career offender. He explained at sentencing that he had "labored over that case long" and asked "providence for a lucky break," but conceded that he couldn't find anything to support an argument that Carthorne wasn't a career offender. Counsel admitted "I'm not a good lawyer" and went on to argue for a variance based on the facts of the actual prior offense - Carthorne spit at a cop. The district court varied slightly and imposed a sentence of 300 months, 89 months higher than the top of the non-enhanced Guideline range.

Carthorne appealed his career offender designation, but was stuck with plain error review. The Fourth Circuit affirmed, finding that the Virginia prior was not a crime of violence, and thus there was an error, but that the error was not plain because existing precedent didn't require that result. Carthorne then filed a 2255 motion alleging that his trial counsel had been ineffective for failing to object to the career offender designation on the ground that his prior conviction wasn't a crime of violence. The district court denied the motion. While Carthorne could easily show prejudice - had he been on de novo review on appeal he would have prevailed - the court concluded that he could not show that his counsel's performance had been deficient "essentially for the same reasons that the Fourth Circuit found not plain (i.e., obvious) error on direct appeal."

On appeal the Fourth Circuit reversed the denial of Carthorne's 2255 motion. The court concluded that the plain error standard and the Strickland ineffective assistance standard are fundamentally different and based in different sources - Federal rules and the Sixth Amendment, respectively. Therefore, they serve "different, yet complementary, purposes" and involve different variants of prejudice. While plain error looks only to settled law, effective assistance of counsel frequently requires "that counsel raise material issues even in the absence of decisive precedent." At the time of Carthorne's original sentencing although there was no precedent directly on point there were cases that "strongly suggested at the time that [the offense] did not qualify as a crime of violence." The sentencing transcript showed that counsel didn't really understand the crime of violence analysis and there was no strategic reason for failing to make an objection to the career offender determination. Therefore, Carthorne had demonstrated deficient performance of counsel, as well as prejudice, and was entitled to be resentenced.

Court Can Sua Sponte Dismiss Untimely Appeals, But Should Do So Sparingly

US v. Oliver: Oliver pleaded guilty to drug charges in 2011. The next year he filed a timely 2255 motion challenging his sentence. The district court ultimately denied the motion in 2015. Three months later, Oliver filed a pro se notice of appeal - from the 2011 original judgment in his case. Counsel was appointed, who filed an Anders brief. The Government didn't file a response brief and Oliver did not file a pro se brief.

There was no doubt that Oliver's notice of appeal was filed years after the 14-day deadline in the Rules of Appellate Procedure. This does not deprive the Fourth Circuit of jurisdiction, because the deadline is merely a claims processing rule, but would generally result in dismissal if the Government asked for it. Since the Government did not, the issue was whether the court could dismiss the appeal sua sponte. The court concluded that it could, given "the potential consequences of adjudicating untimely criminal appeals," including situations - like this one - where the defendant has already unsuccessfully sought collateral review. Having said that, the importance of preserving the adversary system "and its benefits weigh heavily against" invoking that authority. This case, however, was one in which that authority could be exercised, particularly because Oliver had already sought collateral review of his conviction. In doing so he relied upon the finality of his conviction and could not later go back and seek to undermine it. The court dismissed Oliver's appeal.

Wednesday, December 20, 2017

Court Allows Serial Revocation, Sentencing, of Supervised Release Violations

US v. Harris: Harris was serving a term of supervised release when he was subject to a traffic stop that uncovered guns and drugs. He was arrested and a petition to revoke was filed alleging that he had violated the law by possessing those items. Addenda were filed with additional allegations (after the Government learned that Harris was part of a state murder investigation), including failing to notify his probation officer after contact with law enforcement and new state criminal charges. At a revocation hearing the district court concluded Harris had violated by failing to report, revoked Harris, and sentenced him to a month in prison, followed by 40 more months of supervised release. The other allegations were held in abeyance pending the outcome of proceedings in state court. While in prison, Harris was indicted federally for being a felon in possession of a firearm during the traffic stop. The Government filed another addendum based on that indictment and sought to dismiss the remaining allegations. The district court granted that motion, then revoked Harris a second time, imposing a 36-month term of imprisonment and a further 24-month term of supervised release.

On appeal, the Fourth Circuit affirmed Harris's revocations and sentences. The court noted that it "it well-established that a revocation does not end a term of supervised release" and that "[a]fter revocation, the defendant continues to serve his term of supervised release, but does so in prison." Previously, the court had held that "the district court's jurisdiction over the supervised release continues past revocation" and "the district court's supervisory authority continues as well." As a result, it does not matter that the second revocation was based on an allegation that was made after the first revocation, but involving conduct that occurred before the first revocation. Furthermore, the court found that the combined sentences imposed for Harris's revocations did not exceed the statutory maximum because those limits apply to every revocation and do not aggregate. Thus, with regard to the total new supervised release terms imposed - 64 months, beyond the 60-month statutory maximum - the court held that 18 USC 3583(e)(3) "does not require the district court to credit time previously served on post-release supervision" and so the "district court could sentence Harris up to 60 months of supervised release upon his second revocation without giving credit for any of the time that he had already served." The same is true for the terms of imprisonment. The court also rejected Harris's argument that the second revocation was "additional punishment for his already-revoked, original term" because that "theory would convert per-revocation maximums into per-term of supervised release maximums" which is "contrary to Congress's intent to create a per-revocation maximum."

Use of Peer-to-Peer Software Constitutes Distribution for CP Cases

US v. Stitz: Stitz entered into a plea agreement with the Government to plead guilty to distribution of child pornography. He agreed to a stipulation which set forth that the FBI had used the ARES peer-to-peer file sharing network to download images of child pornography from Stitz's computer (three times). The stipulation also set forth that Stitz told the FBI that he knew "his computer was sharing child pornography files on the ARES network." At sentencing, Stitz argued that he did not intend to distribute any images and his distribution was "passive." In light of that, and other sentencing factors, the district court varied and imposed a sentence or 121 months in prison.

On appeal, the Fourth Circuit affirmed Stitz's conviction. In spite of the plea agreement and stipulation, Stitz argued that there was no factual basis to support a plea of guilty to distribution of child pornography. Reviewing for plain error, the court found not error in the district court accepting Stitz's guilty plea, plain or otherwise. The court noted that the only mens rea requirement for distribution of child pornography is that it was done knowingly, not with bad or evil intent. The record contained multiple instances where Stitz admitted that he knew the files on his computer were being shared with others. The court went on to conclude that the use of a peer-to-peer file sharing system constitutes distribution of child pornography, so long as files are actually available to others. The court had already reached the same conclusion with regard to distribution under the Guidelines and every other Circuit that has decided the issue has reached the same conclusion.

Friday, December 08, 2017

Forcing Minor to Masturbate to Collect Evidence Violates Fourth Amendment

Sims v. Labowitz: This is a 1983 civil rights case arising from a state child pornography investigation in Virginia. 17-year old Sims got in trouble for sending a video of his erect penis to his 15-year old girlfriend. While investigating that an officer, Abbott (who died before the suit - Labowitz his the administrator of his estate), with the aid of a prosecutor, obtained a search warrant allowing him to take pictures of Sims's penis, including while erect. Abbot snatched up Sims, took him to a juvenile detention center and, in a room with two other officers, took pictures. During the process he instructed Sims to "use his hand to manipulate his penis" in order to get a picture of it while erect. Sims couldn't meet the challenge. Undeterred, Abbot got a second warrant and told Sims's attorney that if Sims couldn't perform again he would be "taken to a hospital to give him a an erection-producing injection." The second warrant was never executed and the more-senior prosecutor agreed not to use any of the pics taken pursuant to the first warrant. Sims was basically given a pretrial diversion, with the charges dismissed if he performed well on probation. Once his probation term was over (and the charges gone), Sims sued on two grounds: (1) that the execution of the warrant violated his Fourth Amendment rights, and (2) that under 18 USC 2255(a)(1) he was a victim of the production of child pornography. The district court dismissed the case.

On appeal the Fourth Circuit reversed the dismissal, 2-1, on the Fourth Amendment issue. First, the court found that Abbot's search did violate Sims's Fourth Amendment rights. Walking through a four-step analysis, the court concluded that both the scope of the intrusion and the manner in which the search was convicted were unreasonable, noting that sexually suggestive searches are "terrifying, demeaning, and humiliating." Furthermore, the place where the search was conducted contributed to the violation. Finally, the court held that there was no legitimate evidentiary purpose behind the warrant (so far as I can tell there's nothing suggesting that someone - the victim, presumably - was going to identify Sims based on some particular characteristic of his anatomy). In fact, the court concluded that it "cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others." Second, the court concluded that Abbot was not entitled to qualified immunity because a reasonable officer in his position would have known such a search was unreasonable, even in light of the warrant authorizing it. The court affirmed the dismissal of the production of CP count (because Abbot wasn't doing what he did for "lascivious" reasons) and remanded the case to the district court for further proceedings on the 1983 claim.

Judge King dissented on the Fourth Amendment issue, arguing that there was no violation and, even if there was, Abbot was entitled to qualified immunity.

North Carolina Robbery Matches "Generic" Robbery Listed In Guidelines

US v. Gattis: Gattis was convicted of being a felon in possession of a firearm. Of the many Guideline calculation issues in his case the primary one was whether his prior conviction for robbery in North Carolina was a "crime of violence" that would drive up his base offense level. Gattis was sentenced under the current/post-Johnson Guidelines, so to qualify as a crime of violence it either had to involve as an element the use of force or match one of the offenses specifically set forth in the Guidelines - which now includes robbery. The district court concluded it did qualify as a crime of violence and sentenced Gattis accordingly.

On appeal, the Fourth Circuit affirmed. The court recognized that, based on Gardner, robbery in North Carolina does not require the use of "violent force" and could not qualify as crime of violence under the force clause. Therefore, the court dove into, for the first time so far as I can tell, defining what "generic" robbery under the Guideline meant. The court ultimately rejected the Model Penal Code formulation in favor of the one used by Professor LeFave. This is because the MPC version - which requires "serious bodily injury" (or the threat thereof) has "not been widely adopted" in the states. Instead, relying on LeFave, the court concluded that "generic robbery is defined as the 'misappropriation of property under circumstances involving [immediate] danger to the person.'" The court went on to concluded that "immediate danger" is "categorically satisfied by the taking of property 'from a person or a person's presence by means of force or putting in fear.'" It distinguishes robbery from larceny from the person as occurring "only when the offender takes property by using force or by threatening immediate physical harm." Such a threat "may be express or implicit but it must be sufficient to include the victim to part company with the property." Applying this definition, North Carolina robbery was a "clean match" where "North Carolina common law robbery is thus subsumed within - and is a categorical match with - generic robbery." The amount of force necessary to match the generic offense is less than needed under the force clause.

Tuesday, November 28, 2017

Fraudulent mortgage lending conspiracy convictions affirmed

US v. Raza, et al.:  Four former employees of SunTrust Mortgage in Annadale, Virginia, appealed their wire fraud and conspiracy to commit wire fraud convictions, specifically, the jury instructions on materiality and intent to defraud instructions.  Additionally, the defendants argued that the district court failed to instruct the jury that it had to individually assess the guilt of each of the defendants as to each count.  The Fourth Circuit, finding no errors, affirmed the convictions.

In its reasoning, the Fourth Circuit noted that the defendants’ proposed instruction for the wire fraud offense required proof of five elements that the court tracked in its charge to the jury.  The Fourth Circuit found several similarities between this case and one from the 9th Circuit, wherein it concluded that adopting a subjective test of materiality, as defendants urged here, would “essentially grant blanket absolution to low-level fraudsters because of the widespread sins of the mortgage industry.”  Further, the Fourth Circuit discussed the controlling import of its earlier cases, finding that the correct test for materiality is an objective one, “which measures a misrepresentation’s capacity to influence an objective ‘reasonable lender,’ not a renegade lender with a demonstrated habit of disregarding materially false information.”

As to the intent instruction, the Fourth Circuit found that its earlier decision in Wynn explained how the district court’s instruction in this case was correct, that is, the government had to prove more than an intent to deceive; it also had to prove an intent to harm “in some sense.”

With the last challenge, the defendants claimed that the district court’s instructions allowed the jury to find guilty by association.  During the jury’s three days of deliberations, the jury sent a question to the court to clarify if they found the defendants guilty of the conspiracy, was guilt to be assumed, then, for all other counts, and the district court advised them that no, the jury had to look at each count facing each defendant.  The Fourth Circuit found the instructions and the supplement, as well as the separate verdict forms for each defendant, with the counts listed separately, appropriately gave individual consideration to each count alleged. 

Wednesday, November 15, 2017

Jury instruction challenge fails in sex trafficking appeal

US v. Banker:  In this appeal, the Fourth Circuit heard Banker’s appeal of his convictions for conspiracy to engage in sex trafficking of a minor, sex trafficking of a minor, and enticement of a minor for illegal sexual activity.  Chiefly, he contended that his jury had been instructed improperly on the scienter element of each offense because they require proof that he knew the victim was a minor.  Secondly, he argued the insufficiency of the evidence.  The Fourth Circuit affirmed.

To reach its decision, the Fourth Circuit agreed with the government’s arguments that unpublished opinions from this Circuit and sister circuits have held that the element of age can be proven by either “knowledge” or “reckless disregard,” a position consistent, according to the Fourth Circuit, with the wording and punctuation of the pertinent statutes.  Accordingly, the Fourth Circuit held that the district court did not err in its instructions to the jury as to the scienter elements of the offenses.  Further, the government had to prove only that the victim was a minor, not that the defendant had actual knowledge of that fact. 

With respect to the sufficiency of evidence at trial, the Fourth Circuit found that Banker could not meet his burden to disrupt the jury’s verdict, as testimony from his co-conspirator and victim, as well as “numerous” other pieces of evidence, including Facebook posts, supported a finding that Banker recklessly disregarded the victim’s age.  The evidence at trial, according to the Fourth Circuit, readily satisfied the standard, i.e., supported a rational determination of guilty beyond a reasonable doubt. 

Wednesday, November 01, 2017

Any Materiality Error in Health Care Fraud Prosecution Harmless

US v. Palin: Palin owned an operated a drug testing facility (assisted by her co-defendant, Webb), which used two kinds of tests: a less expensive "quick-cup" test and a more expensive "analyzer" test. They ran a system whereby uninsured patients who paid cash were only given the quick-cup tests, while insured patients were given both tests, with insurers (including Medicare) being billed for both. As a result, insurers were billed for additional and more expensive tests that were not medically necessary. Palin and Webb were convicted after a bench trial of health care fraud and conspiracy. After the Supreme Court's decision in Universal Health Services, they filed a motion for acquittal or a new trial arguing that the case had changed the standard for materiality in such cases and the court had not found that element proven by the Government. The court denied the motion.

On appeal, the Fourth Circuit affirmed Palin and Webb's convictions. Accepting the Government's concession that materiality was an element of health care fraud, the court held that even if the district court overlooked materiality (it's initial opinion convicting Palin and Webb didn't mention it at all), any error was harmless because the record showed that the insurers wouldn't have paid for the more expensive tests had they known they weren't medically necessary. As for Palin and Webb's argument that Universal Health Services require the use of a more stringent materiality standard, the court did not decide whether that was correct, but concluded that the standard was met, anyway. The court distinguished Universal Health Services, where the victim of the fraud knew the requirements for the payments it made were being violated, there was no such evidence in the record of this case.

North Carolina Assault Inflicting Serious Bodily Injury Crime of Violence Under Residual Clause

US v. Thompson: Thompson pleaded guilty to being a felon in possession of a firearm and drug possession with intent to distribute. In the PSR, his offense level was enhanced because he had a prior conviction for a "crime of violence" - North Carolina assault inflicting serious bodily injury ("AISBI"). He was sentenced to 120 months in prison. On appeal, Thompson argued that AISBI was not a crime of violence. The Fourth Circuit held the case in abeyance pending Beckles. Once that case was decided, it ordered additional briefing on whether AISBI was still a crime of violence under the residual clause of the crime of violence definition.

The Fourth Circuit ultimately concluded it was a crime of violence under the residual clause and affirmed Thompson's sentence. In doing so, the court was forced to determine what the Supreme Court's 2015 decision in Johnson meant for Guideline residual clause analysis going forward. The court concluded that Johnson did not overrule the Begay "similar in kind" test the court adopted before Johnson, but it did clarify that the analysis is to be based on "the ordinary case" in both the similar in kind and "degree or risk" assessments. Noting that under state law AISBI involves assaults that are "especially violent and result in the infliction of extremely serious injuries" and therefore had a degree of risk similar to the enumerated offenses in USSG 4B.2. The court rejected Thompson's argument that North Carolina's case law was so broad as to make it impossible to identify the "ordinary case" of AISBI, concluding that it requires actual intent and thus is similar in kind to the "purposeful, violent, and aggressive" offenses enumerated in the Guideline.

26-month CP Sentence Substantively Unreasonable

US v. Zuk: Zuk began collecting and sharing child pornography while in high school, then continued when he began college. As part of his involvement with CP, he corresponded with a 16-year old in Texas who was sexually abusing his 5-year old cousin. Among other things, Zuk had this person produce CP images of the cousin as his specific request. Eventually, Zuk was charged with multiple counts related to CP, including possession, receiving, and distributing. Pursuant to a plea agreement, he pled to one count of possession. Although his advisory Guideline range was 324 to 405 months, his plea capped his statutory maximum at 240 months, with no mandatory minimum. After a two-day sentencing hearing, which included testimony from multiple experts on Zuk's mental issues and potential for treatment, the district court imposed a sentence of time served (26 months) and a lifetime term of supervised release "contingent on his successful completion of [a] residential treatment program."

The Government appealed and the Fourth Circuit vacated Zuk's sentence.

First, the court concluded that the Government could, in fact, appeal the sentence. Zuk waived his right to appeal on any grounds other than ineffective assistance of counsel, which he argued meant that the Government had "implicitly" waived similar rights. However, in this plea agreement the Government explicitly reserved its appeal rights. The court found there was no great asymmetry in this, as the Government gave up a lot (dismissing the other charges, all of which included mandatory minimums higher than the sentence Zuk received). That distinguished this case from one where the plea agreement was silent on the Government's appeal rights.

Second, the court concluded that Zuk's sentence was substantively unreasonable. That was primarily because the district court "focused almost entirely on Zuk's autism spectrum" diagnosis. That was particularly problematic because the record didn't support a conclusion that Zuk's condition caused his criminal behavior (he admitted, when caught, that he knew what he was doing was illegal). That was a legitimate consideration in determining sentence, but couldn't be the driving factor. In addition, Zuk's sentence created serious issues of disparity with similarly situated defendants - including the 16-year old in Texas who got 50 years in state court for his role and the "other members of his online community [who] received sentences of 96 to 222 months' imprisonment." Zuk's sentence was also much lower than the Guidelines recommended for a non-aggravated possession conviction.

WV Aggravated Robbery Requires Use of Force

US v. Salmons: Salmons was convicted of being a felon in possession of a firearm. In the PSR, his offense level was enhanced because he had a prior conviction for a "crime of violence" - West Virginia aggravated robbery. Salmons objected, back in the pre-Beckles days, that his prior didn't involve the use of force and therefore couldn't be a crime of violence. The district court disagreed and denied the objection, calculating Salmons's Guideline range to be 30 to 37 months. The district court imposed a sentence of 12 months and 1 day.

Salmons appealed his sentence, which the Fourth Circuit affirmed. The court held that "aggravated" robbery - which requires strangulation, suffocation, striking, beating, or other violence to the person, or the threat or presentment of firearms or "other deadly weapon or instrumentality whatsoever" qualified as a crime of violence under the force clause. "These are brutal acts," the court concluded. The court found no distinction between this prior and SC strong-arm robbery and federal bank robbery, all of which require "violent force" as defined by the Supreme Court. The court noted that West Virginia distinguishes between regular and aggravated robberies "to expressly delineate the more violent forms of the offense." Furthermore, Salmons couldn't point to any WV case suggesting the offense could be committed by something other than the use of force.

Monday, October 02, 2017

Following conviction, substitute assets not available to pay for appellate counsel

US v. Marshall:  Marshall petitioned the court to permit him to use funds in a credit union account not specified as part of the government’s forfeiture order, filed after his convictions for several drug-related crimes.  The government then filed a second order of forfeiture for the funds in Marshall’s credit union account, classifying them as substitute assets under § 853(p).   Marshall filed a separate motion to use the untainted funds in the credit union account to hire appellate counsel. 

The Fourth Circuit considered Marshall’s arguments that 1) the Constitution required the release of substitute assets forfeited by a defendant after conviction if the funds are needed for appellate representation, and 2) the government violated a rule of criminal procedure by failing to seek forfeiture for several months after Marshall’s convictions for the credit union funds. 

The Fourth Circuit discussed how defendants are entitled to effective counsel on appeal, but not the right to counsel of choice on appeal.  The Supreme Court has plainly foreclosed Marshall’s request to use his forfeited funds to hire appellate counsel.  When a defendant’s forfeited property is connected to a crime, title to the forfeited property vests in the government at the time of the criminal act that gives rise to the forfeiture.  In contrast, the government may not freeze untainted assets (i.e., those assets not connected to crimes charged) before trial that a defendant needs to hire counsel of choice. 

Marshall’s case involved the restraint of untainted assets post-conviction.  The Fourth Circuit concluded that based on the Supreme Court’s holdings that Marshall may not use his forfeited assets to hire appellate counsel (title to substitute property vests in the government upon order by the district court after conviction, at the latest).  Marshall’s funds ceased to be his upon issuance of the district court’s forfeiture order following his conviction.  The Court will appoint counsel if the forfeiture renders him indigent or he cannot secure pro bono counsel.

Procedurally flawed revocation sentence vacated

US v. Slappy:  Slappy received a supervised release revocation sentence of 36 months; she appealed, arguing that the sentence was plainly unreasonable because the sentencing court failed to address any of her non-frivolous arguments in support of a within-guidelines range sentence, or to explain at all why it imposed the statutory maximum sentence upon her.  The government countered that the court provided enough explanation and that it was not required to address mitigating evidence if it didn’t think a lower sentence was appropriate.  The Fourth Circuit vacated Slappy’s sentence and remanded for resentencing.

The Fourth Circuit reasoned that the district court committed procedural error by failing to address her arguments in favor of a sentence within-policy-statement range, and that the Fourth Circuit and the Supreme Court have both made clear that in imposing revocation sentences, like original sentences, the court must address arguments like Slappy’s, and if it rejects them, it must explain why.
 
The Fourth Circuit held here that a district court, when imposing a revocation sentence, must address the parties’ nonfrivolous arguments in favor of a particular sentence, and if it rejects these arguments, the court must explain why with sufficient detail that the appellate court can meaningfully consider the procedural reasonableness of the sentence imposed.