US v. White: White was convicted of being a felon in possession of a firearm and was sentenced as an Armed Career Criminal. The only issue on appeal was whether one of White's priors - a North Carolina conviction for conspiracy to commit robbery with a dangerous weapon - qualifies as a "violent felony" for ACCA purposes. The Fourth Circuit concluded that it does.
White argued that because conspiracy in North Carolina does not have an overt act as an element, it failed to present the a degree of risk similar to the offenses listed in the definition of violent felony. The court disagreed, noting that a defendant must intend the conspiratorial agreement be carried out in order to be guilty of the offense. In addition, the conspiracy offense is similar in kind to the other enumerated offenses in the ACCA.
Tuesday, July 07, 2009
Carjacking Conviction Affirmed Over Numerous Objections
US v. Blake: Blake and Tolbert were involved in a carjacking in Maryland, during which the driver of the car was shot in the head, run over, and killed. Tolbert was arrested shortly thereafter and gave a statement basically admitting to being part of the process but putting the gun in Blake's hand and the ideas in Blake's head. That statement provided probable cause to arrest Blake.
Once at the station, Blake demanded a lawyer and was placed in a cell. He received a notice of the charges to be filed against him, which incorrectly stated that he faced the death penalty (at 17, he was too young to qualify in Maryland). The notice of charges also included a summary of what Tolbert had told the officers. At one point, while Blake was in the cell, an officer not otherwise involved in the investigation who was accompanying the lead officer taunted Blake, saying "I bet you want to talk now, huh?" He was escorted out by the lead officer, who said, "no, he doesn't want to talk to us, you can't say anything to him, he asked for a lawyer." Later, when the lead officer went to take Blake some clothes, Blake asked if he could talk to him. Blake was re-Mirandized and gave a statement, admitting to being present during the carjacking, but putting the gun in Tolbert's hands.
Blake was charged in Maryland with murder. He moved to suppress the statements he made after his arrest, arguing that they were made in violation of his already invoked right to counsel. The case bounced around the Maryland courts and was eventually accepted for review by the Supreme Court, which later dismissed the case as having been improvidently granted. As a result, Blake was never convicted of the charges in Maryland. Blake was then charged in federal court of, among other things, carjacking causing death. He was convicted and sentenced to life in prison.
On appeal, Blake made several arguments attacking his conviction, all of which the Fourth Circuit rejected. First, Blake made the same argument that had been successful in the Maryland courts, that his statements should have been suppressed. The court disagreed, holding that the officer's taunt about Blake wanting to talk wasn't interrogation and therefore did not violate Blake's right to counsel. The fact that Blake was re-Mirandized and otherwise cooperative after asking to resume conversations with the lead officer was also key. Second, Blake argued that the federal court lacked jurisdiction over him because he was only 17 at the time of the crime and the Government had not complied with the procedures set forth in the Juvenile Delinquency Act.
The court also concluded that Blake was, in fact, not a juvenile by the time federal charges were brought (three months after his 21st birthday) and therefore the JDA had no application to him. The court also concluded that the trial court did not abuse its discretion by denying Blake's request for a mistrial based on statements made during the Government's opening statement, in allowing evidence about a polygraph examination Blake took, allowing a prosecution witness to testify sooner rather than later at trial, or in excluding as hearsay the testimony of a defense witness. Finally, the court rejected Blake's argument that the district court erred in instructing the jury on the death element of the carjacking offense.
Once at the station, Blake demanded a lawyer and was placed in a cell. He received a notice of the charges to be filed against him, which incorrectly stated that he faced the death penalty (at 17, he was too young to qualify in Maryland). The notice of charges also included a summary of what Tolbert had told the officers. At one point, while Blake was in the cell, an officer not otherwise involved in the investigation who was accompanying the lead officer taunted Blake, saying "I bet you want to talk now, huh?" He was escorted out by the lead officer, who said, "no, he doesn't want to talk to us, you can't say anything to him, he asked for a lawyer." Later, when the lead officer went to take Blake some clothes, Blake asked if he could talk to him. Blake was re-Mirandized and gave a statement, admitting to being present during the carjacking, but putting the gun in Tolbert's hands.
Blake was charged in Maryland with murder. He moved to suppress the statements he made after his arrest, arguing that they were made in violation of his already invoked right to counsel. The case bounced around the Maryland courts and was eventually accepted for review by the Supreme Court, which later dismissed the case as having been improvidently granted. As a result, Blake was never convicted of the charges in Maryland. Blake was then charged in federal court of, among other things, carjacking causing death. He was convicted and sentenced to life in prison.
On appeal, Blake made several arguments attacking his conviction, all of which the Fourth Circuit rejected. First, Blake made the same argument that had been successful in the Maryland courts, that his statements should have been suppressed. The court disagreed, holding that the officer's taunt about Blake wanting to talk wasn't interrogation and therefore did not violate Blake's right to counsel. The fact that Blake was re-Mirandized and otherwise cooperative after asking to resume conversations with the lead officer was also key. Second, Blake argued that the federal court lacked jurisdiction over him because he was only 17 at the time of the crime and the Government had not complied with the procedures set forth in the Juvenile Delinquency Act.
The court also concluded that Blake was, in fact, not a juvenile by the time federal charges were brought (three months after his 21st birthday) and therefore the JDA had no application to him. The court also concluded that the trial court did not abuse its discretion by denying Blake's request for a mistrial based on statements made during the Government's opening statement, in allowing evidence about a polygraph examination Blake took, allowing a prosecution witness to testify sooner rather than later at trial, or in excluding as hearsay the testimony of a defense witness. Finally, the court rejected Blake's argument that the district court erred in instructing the jury on the death element of the carjacking offense.
Friday, June 19, 2009
Court Rejects Numerous Challenges to SORNA Conviction
US v. Gould: Gould was convicted of a sex offense in DC in 1985. After his release he moved several times in the states surrounding the District. He finally settled in Maryland in August 2006. He did not register as a sex offender, as required by state law. In July 2007, Gould was charged federally with failing to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"). He moved to dismiss the indictment on various grounds, but the district court declined to do so. He entered a conditional plea and was sentenced to 24 months in prison.
On appeal, the Fourth Circuit affirmed Gould's conviction, rejected several of the arguments he had raised below.
First, Gould had argued that SORNA could not be applied to him because, at the time of his indictment, Maryland had not yet updated its sex offender registration procedure to conform with SORNA requirements. In other words, because he could not register in the way SORNA set forth, he could not be convicted for failing to do so. The court concluded otherwise, holding that the criminal provisions of SORNA are separate and apart from the spending/state mandate provisions of SORNA that requires action from the states. Maryland had a means for registration and Gould's failure to avail himself of it was sufficient. For similar reasons, Gould's ex post facto claim was also rejected.
Second, Gould argued that he could not comply with SORNA's registration requirement because it requires registration before completion of a sentence, which he completed in 2002, prior to SORNA's passage. The court noted that this argument "bootstraps on his first argument" due to Maryland's failure to come up to SORNA standards with its registration scheme. Regardless, because Maryland law required Gould to register when he came to the state, SORNA applied to him. The court also noted that Gould was aware of his general duty to register, as he had done so in other states before he moved to Maryland. He was not in the (very small) category of offenders who wasn't required to register with anybody until SORNA's passage.
Third, Gould argued that it could not be proven that he "knowingly" failed to comply with SORNA registration requirements because the Government never notified him of those requirements, as the law requires. However, the court held that the word "knowingly" modifies "fails to register" and thus relates to the Maryland state requirement that he register, not SORNA's specific requirements. Conviction under SORNA does not require knowing that a failure to register violates federal law.
Fourth, Gould argued that the interim regulations promulgated by the Attorney General clarifying that SORNA applied to defendants convicted before it was enacted violated the Administrative Procedures Act. The regulation was enacted without notice and without the required 30-day waiting notice. The court concluded that the AG had good cause to do so, given the "need for legal certainty about SORNA's 'retroactive' application . . ." Delay "could reasonably be found to put the public safety at greater risk."
Finally, Gould argued that SORNA exceeded the scope of Congressional power under the Commerce Clause. The court noted that one of the elements of a SORNA offense is that the defendant "must travel in interstate commerce" and that the Act applies even when the act of failing to register is purely intrastate. The court pointed out several other statutes that criminalize "local acts" undertaken after interstate travel. As explained by the court, "[t]here must be a conviction that gives rise to the registration requirement, subsequent interstate travel, and a failure to register." That conclusion is in line with other circuits have decided the issue.
Judge Michael dissented, arguing that the AG's reason for promulgating a rule without following the APA procedures was inadequate. Because Gould's conviction relied upon that regulation, it must be reversed.
On appeal, the Fourth Circuit affirmed Gould's conviction, rejected several of the arguments he had raised below.
First, Gould had argued that SORNA could not be applied to him because, at the time of his indictment, Maryland had not yet updated its sex offender registration procedure to conform with SORNA requirements. In other words, because he could not register in the way SORNA set forth, he could not be convicted for failing to do so. The court concluded otherwise, holding that the criminal provisions of SORNA are separate and apart from the spending/state mandate provisions of SORNA that requires action from the states. Maryland had a means for registration and Gould's failure to avail himself of it was sufficient. For similar reasons, Gould's ex post facto claim was also rejected.
Second, Gould argued that he could not comply with SORNA's registration requirement because it requires registration before completion of a sentence, which he completed in 2002, prior to SORNA's passage. The court noted that this argument "bootstraps on his first argument" due to Maryland's failure to come up to SORNA standards with its registration scheme. Regardless, because Maryland law required Gould to register when he came to the state, SORNA applied to him. The court also noted that Gould was aware of his general duty to register, as he had done so in other states before he moved to Maryland. He was not in the (very small) category of offenders who wasn't required to register with anybody until SORNA's passage.
Third, Gould argued that it could not be proven that he "knowingly" failed to comply with SORNA registration requirements because the Government never notified him of those requirements, as the law requires. However, the court held that the word "knowingly" modifies "fails to register" and thus relates to the Maryland state requirement that he register, not SORNA's specific requirements. Conviction under SORNA does not require knowing that a failure to register violates federal law.
Fourth, Gould argued that the interim regulations promulgated by the Attorney General clarifying that SORNA applied to defendants convicted before it was enacted violated the Administrative Procedures Act. The regulation was enacted without notice and without the required 30-day waiting notice. The court concluded that the AG had good cause to do so, given the "need for legal certainty about SORNA's 'retroactive' application . . ." Delay "could reasonably be found to put the public safety at greater risk."
Finally, Gould argued that SORNA exceeded the scope of Congressional power under the Commerce Clause. The court noted that one of the elements of a SORNA offense is that the defendant "must travel in interstate commerce" and that the Act applies even when the act of failing to register is purely intrastate. The court pointed out several other statutes that criminalize "local acts" undertaken after interstate travel. As explained by the court, "[t]here must be a conviction that gives rise to the registration requirement, subsequent interstate travel, and a failure to register." That conclusion is in line with other circuits have decided the issue.
Judge Michael dissented, arguing that the AG's reason for promulgating a rule without following the APA procedures was inadequate. Because Gould's conviction relied upon that regulation, it must be reversed.
Thursday, June 18, 2009
Court Affirms Drug, Gun Convictions Against Multiple Claims of Error
US v. Jeffers: Jeffers was involved with crack distribution in western Virginia. After a three-day trial, he was convicted of conspiracy to distribute 50 grams or more of crack and carrying a firearm in connection with that offense. He was sentenced to a total of 302 months in prison. He raised several challenges on appeal to his conviction and sentence, all of which the Fourth Circuit rejected.
First, Jeffers argued that his due process rights were violated when certain proceedings were held but not transcribed by the court reporter, particularly the charge conference. While noting that Jeffers had a due process right to an appeal with a complete transcript, the court concluded that there is no requirement that the charge conference be held in open court and that counsel had ample opportunity to make any objections to the jury instructions on the record.
Second, Jeffers argued that the evidence was insufficient to sustain the firearm conviction. The court noted that several witnesses linked Jeffers to firearms in relation to drug trafficking and concluded that, in the light most favorable to the Government, the evidence was sufficient.
Third, Jeffers raised several instructional errors relating to the conspiracy charge, including the failure to give a multiple conspiracy instruction, giving an instruction allowing the inference of guilt from attempts to conceal himself after indictment, and the failure to instruct the jury to determine the amount of crack attributable to Jeffers. The court rejected all those argument on a plain error review, as none of them had been preserved at trial.
Fourth, Jeffers challenged two aspects of his sentence: the amount of crack attributed to him and the imposition of a $25,000 fine. The court held that the determination of relevant conduct was amply supported by the evidence in the record and that the fine was not imposed in retaliation for Jeffers not providing financial information to the probation officer on Fifth Amendment grounds.
Finally, Jeffers argued that the Government failed to abide by the discovery provisions in Rule 16 of the Rules of Criminal procedure in that it would not allow him to have copies of certain documents related to controlled buys in the case, although his counsel had access to them at the US Attorney's office. While concluding that the Government failed to abide by the terms of Rule 16, the court held that Jeffers failed to show how he was prejudiced and thus the error was harmless. The court also concluded that Jeffers was not entitled to an acquittal of his convictions under Brady for material that related to several other charges for which he was acquitted.
First, Jeffers argued that his due process rights were violated when certain proceedings were held but not transcribed by the court reporter, particularly the charge conference. While noting that Jeffers had a due process right to an appeal with a complete transcript, the court concluded that there is no requirement that the charge conference be held in open court and that counsel had ample opportunity to make any objections to the jury instructions on the record.
Second, Jeffers argued that the evidence was insufficient to sustain the firearm conviction. The court noted that several witnesses linked Jeffers to firearms in relation to drug trafficking and concluded that, in the light most favorable to the Government, the evidence was sufficient.
Third, Jeffers raised several instructional errors relating to the conspiracy charge, including the failure to give a multiple conspiracy instruction, giving an instruction allowing the inference of guilt from attempts to conceal himself after indictment, and the failure to instruct the jury to determine the amount of crack attributable to Jeffers. The court rejected all those argument on a plain error review, as none of them had been preserved at trial.
Fourth, Jeffers challenged two aspects of his sentence: the amount of crack attributed to him and the imposition of a $25,000 fine. The court held that the determination of relevant conduct was amply supported by the evidence in the record and that the fine was not imposed in retaliation for Jeffers not providing financial information to the probation officer on Fifth Amendment grounds.
Finally, Jeffers argued that the Government failed to abide by the discovery provisions in Rule 16 of the Rules of Criminal procedure in that it would not allow him to have copies of certain documents related to controlled buys in the case, although his counsel had access to them at the US Attorney's office. While concluding that the Government failed to abide by the terms of Rule 16, the court held that Jeffers failed to show how he was prejudiced and thus the error was harmless. The court also concluded that Jeffers was not entitled to an acquittal of his convictions under Brady for material that related to several other charges for which he was acquitted.
Monday, June 08, 2009
Evidence Not Sufficient for Enhanced Statutory Drug Penalties
US v. Kellam: Kellam and his codefendant were convicted on multiple drug counts and, on appeal, each alleged multiple errors at trial. Although the Fourth Circuit affirmed their convictions, the court vacated Kellam's life sentence.
That sentence was imposed after the Government filed an information under 21 USC 851 alleging Kellam had prior convictions that made her eligible for an enhanced sentence. In response to the 851 information, Kellam disputed both of the alleged prior convictions and argued that the Government and not proven beyond a reasonable doubt that she had been convicted of them. The Government produced certified copies of the criminal dockets in the two cases, which the district court concluded proved the convictions.
On appeal, the Fourth concluded that it was "unable to conclude" that the Government had met its burden of proof with regards to the prior convictions. The district court made no finding, and the Government made no effort to prove, that Kellam was the same person named in the documents showing the prior convictions. No photographic or fingerprint evidence was produced to link Kellam with the prior convictions. In addition, the district court failed to ask Kellam at the hearing whether she affirmed or denied that she had been previously convicted. In summary, the court concluded that it was possible, "or perhaps probable," that Kellam was convicted of the prior offenses, but such speculation does not satisfy the burden the Government has to prove that fact beyond a reasonable doubt.
That sentence was imposed after the Government filed an information under 21 USC 851 alleging Kellam had prior convictions that made her eligible for an enhanced sentence. In response to the 851 information, Kellam disputed both of the alleged prior convictions and argued that the Government and not proven beyond a reasonable doubt that she had been convicted of them. The Government produced certified copies of the criminal dockets in the two cases, which the district court concluded proved the convictions.
On appeal, the Fourth concluded that it was "unable to conclude" that the Government had met its burden of proof with regards to the prior convictions. The district court made no finding, and the Government made no effort to prove, that Kellam was the same person named in the documents showing the prior convictions. No photographic or fingerprint evidence was produced to link Kellam with the prior convictions. In addition, the district court failed to ask Kellam at the hearing whether she affirmed or denied that she had been previously convicted. In summary, the court concluded that it was possible, "or perhaps probable," that Kellam was convicted of the prior offenses, but such speculation does not satisfy the burden the Government has to prove that fact beyond a reasonable doubt.
Wednesday, June 03, 2009
No Mistake of Age Defense for Child Porn Manufacture
US v. Malloy: Malloy and a friend twice had sex with a 14-year old girl, one of the times being videotaped by Malloy. He was charged and convicted of sexual exploitation of a minor for the purpose of producing a visual depiction and sentenced to the mandatory minimum sentence of 180 months.
On appeal, the Fourth Circuit affirmed both Malloy's conviction and sentence. As to his conviction, Malloy raised three arguments that the court rejected. First, he argued that a mistake of age defense must be read into section 2251(a) for it to pass First Amendment muster, as without it the statute is overbroad and chills protected speech. Second, he argued that because the indictment charged that he acted "knowingly," although that was not an element of the offense and thus not charged to the jury, the charge against him was constructively amended. Third, he argued that the statute as applied to him exceeded Congress's authority under the Commerce Clause. As to Malloy's sentence, the court rejected his argument that the mandatory minimum penalty violated the Eighth Amendment.
On appeal, the Fourth Circuit affirmed both Malloy's conviction and sentence. As to his conviction, Malloy raised three arguments that the court rejected. First, he argued that a mistake of age defense must be read into section 2251(a) for it to pass First Amendment muster, as without it the statute is overbroad and chills protected speech. Second, he argued that because the indictment charged that he acted "knowingly," although that was not an element of the offense and thus not charged to the jury, the charge against him was constructively amended. Third, he argued that the statute as applied to him exceeded Congress's authority under the Commerce Clause. As to Malloy's sentence, the court rejected his argument that the mandatory minimum penalty violated the Eighth Amendment.
Indicment for Conspiracy Must Define Elements of Underlying Offense
US v. Kingrea: This case arose from a raid on a cockfighting venue in Virginia. Kingrea was there as a vendor of equipment and materials used in the fighting, but did not have an animal involved in the fighting. He was charged with conspiracy to sponsor or exhibit and animal fighting venture and illegal gambling business, conspiracy to sell animal fighting equipment, aiding and abetting the animal fighting operation, and conducing an illegal gambling business. The district court dismissed the substantive animal fighting operation count, but Kingrea was convicted on the other three counts and sentenced to six months in prison and six months of home confinement.
On appeal, the Fourth Circuit reversed Kingrea's conviction on the conspiracy count, while affirming on the other two. On the conspiracy count, the court concluded that the indictment failed to state a necessary element of the offense - that the underlying conspiracy involve "an animal fighting venture" and that the inclusion of that element in the jury instructions amounted to a constructive amendment. The court rejected the Government's argument that because the missing element was part of the object of the conspiracy was not a constitutional error. The court affirmed Kingrea's other two convictions and remanded his case for resentencing.
On appeal, the Fourth Circuit reversed Kingrea's conviction on the conspiracy count, while affirming on the other two. On the conspiracy count, the court concluded that the indictment failed to state a necessary element of the offense - that the underlying conspiracy involve "an animal fighting venture" and that the inclusion of that element in the jury instructions amounted to a constructive amendment. The court rejected the Government's argument that because the missing element was part of the object of the conspiracy was not a constitutional error. The court affirmed Kingrea's other two convictions and remanded his case for resentencing.
Court Narrows Understanding of "Best Evidence" Rule
US v. Smith: Smith was charged with (among other things) being a felon in possession of firearms and possessing firearms in connection with a drug trafficking offense. At trial, the Government presented testimony from an ATF agent who explained that all the firearms were manufactured out of state (and therefore traveled in interstate commerce), based upon his review of ATF databases and written reference materials. Smith objected to that testimony, arguing that without entering the materials upon which the agent relied into evidence, allowing his testimony violated the best evidence rule of FRE 1002. The district court disagreed and allowed the testimony. Smith was convicted and sentenced to 197 months in prison.
On appeal, the Fourth Circuit affirmed Smith's conviction. The court concluded that Smith's argument rested on a "misconception" of FRE 1002, namely that it required the Government to produce the "best evidence" of the information to which the agent testified. In fact, FRE 1002 is better understood as the "original document rule," as it is designed to require production of an original document "to prove the content" of it. The Government never sought to prove the contents of the materials upon which the agent relied, only that the firearms at issue moved in interstate commerce.
The Fourth Circuit did vacate Smith's sentence, as the district court employed a presumption of reasonableness for the Guidelines when it imposed sentence.
On appeal, the Fourth Circuit affirmed Smith's conviction. The court concluded that Smith's argument rested on a "misconception" of FRE 1002, namely that it required the Government to produce the "best evidence" of the information to which the agent testified. In fact, FRE 1002 is better understood as the "original document rule," as it is designed to require production of an original document "to prove the content" of it. The Government never sought to prove the contents of the materials upon which the agent relied, only that the firearms at issue moved in interstate commerce.
The Fourth Circuit did vacate Smith's sentence, as the district court employed a presumption of reasonableness for the Guidelines when it imposed sentence.
Wednesday, May 20, 2009
Non-Governmental Interception of Phone Calls Requires Suppression
US v. Crabtree: Crabtree was on supervised release, living with his girlfriend. When she became suspicious about Crabtree's relationship with his ex-wife, she began taping his phone calls. Among other things, the calls showed Crabtree threatened to burn down the ex's home and truck (I assume - it's difficult to say whether the threat was to the ex or the girlfriend, from the way the opinion is written) and set up a third party to be arrested. The girlfriend called Crabtree's probation officer to report that she was throwing him out of the house and turned over the recordings. Crabtree was charged with 13 supervised release violations, the most serious of which sprang from the recorded phone calls. After considering those recordings, the district court revoked Crabtree's term of supervised release and sentenced him to 24 months in prison.
On appeal, the Fourth Circuit vacated and remanded for further proceedings. First, the court noted that the girlfriend clearly violated the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 because neither Crabtree nor his ex consented to the recording and the girlfriend was not a party to the conversations. Second, the court noted that 18 USC 2515 generally excludes the use of evidence procured in violation of Title III. Finally, the court rejected the district court's reading of a "clean hands" exception into section 2515. Noting that the circuits are split on whether such an exception exists, the Fourth sides with the majority and agrees that it does not. The language of 2515 is clear and has no "gaps or shadows in the language that might leave lurking a clean-hands exception."
Although there were other violations found by the district court, those based on the recordings were the most serious and thus required remand.
Congrats to the defender office in the Western District of Virginia on the win!
On appeal, the Fourth Circuit vacated and remanded for further proceedings. First, the court noted that the girlfriend clearly violated the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 because neither Crabtree nor his ex consented to the recording and the girlfriend was not a party to the conversations. Second, the court noted that 18 USC 2515 generally excludes the use of evidence procured in violation of Title III. Finally, the court rejected the district court's reading of a "clean hands" exception into section 2515. Noting that the circuits are split on whether such an exception exists, the Fourth sides with the majority and agrees that it does not. The language of 2515 is clear and has no "gaps or shadows in the language that might leave lurking a clean-hands exception."
Although there were other violations found by the district court, those based on the recordings were the most serious and thus required remand.
Congrats to the defender office in the Western District of Virginia on the win!
Gun On Person Possessed "In Connection With" Simple Possession Felony
US v. Jenkins: Jenkins (aka "Big Tim") was confronted by Charleston, South Carolina, police, while carrying a firearm. After he was arrested, officers noticed "a white rock-like substance between his fingers, later identified as .29 gram[] of cocaine base" while processing him. Jenkins was charged and pleaded guilty to being a felon in possession of a firearm. At sentencing, his offense level was enhanced four levels because he possessed the firearm "in connection with another felony offense" - the possession of cocaine base. Jenkins objected to the enhancement, but the district court applied it and sentenced him to 71 months in prison.
On appeal, the Fourth Circuit affirmed. Jenkins conceded that he committed another felony offense, but argued that his possession of the firearm was not done in connection with it. The court disagreed, concluding that Jenkins's possession of the firearm facilitated, or had the potential to facilitate, his possession of drugs. "[I]t is clear," the court wrote, "that the possession of a firearm can facilitate a simple drug possession offense," as it provides a means for the user to protect his stash and the investment therein. In Jenkins's case, the fact that he took a gun out into the street where a shot had recently been fired showed "there was a heightened need for protection and that the firearm emboldened" him.
On appeal, the Fourth Circuit affirmed. Jenkins conceded that he committed another felony offense, but argued that his possession of the firearm was not done in connection with it. The court disagreed, concluding that Jenkins's possession of the firearm facilitated, or had the potential to facilitate, his possession of drugs. "[I]t is clear," the court wrote, "that the possession of a firearm can facilitate a simple drug possession offense," as it provides a means for the user to protect his stash and the investment therein. In Jenkins's case, the fact that he took a gun out into the street where a shot had recently been fired showed "there was a heightened need for protection and that the firearm emboldened" him.
Monday, May 11, 2009
Disqualification of Counsel Did Not Vioalte Sixth Amendment; Court May Hear Appeals Filed Outside 10-Day Window
US v. Urutyan: Urutyan was convicted of fraud, conspiracy, and aggravated identity theft, based on a scheme to collect PINs from an ATM at a convenience store where he (and other conspirators) worked. Once they had the numbers, the conspirators withdrew about $600,000 from various accounts and wired the money to Russia and Armenia. Urutyan was initially represented by appointed counsel, but eventually retained a California attorney to represent him. Investigation prior to trial revealed that the attorney was being paid by a nearly anonymous third party, likely from some of the proceeds of the conspiracy, and that the attorney was not properly accounting for the cash payments made with the IRS. After a hearing, the district court disqualified retained counsel. Urutyan went to trial with retained local counsel and was convicted.
On appeal, the Fourth Circuit affirmed Urutyan's convictions, rejecting the only argument presented, that the district court violated his Sixth Amendment right to counsel when it disqualified the California attorney. The court concluded that the district court did not abuse its discretion in disqualifying counsel due to a serious potential conflict of interest, given the investigation into the source of the funds with which he was retained (and the implication that counsel was part of the grander conspiracy).
Before reaching that issue, the Fourth concluded, in line with all other circuits to reach the issue, that the failure to file a timely notice of appeal is not a flaw of jurisdictional dimension, preventing the court from hearing an appeal. Applying recent Supreme Court precedent, the court concluded that the non-statutory 10-day deadline to file a notice of appeal is a claim processing rule, not a jurisdictional requirement.
On appeal, the Fourth Circuit affirmed Urutyan's convictions, rejecting the only argument presented, that the district court violated his Sixth Amendment right to counsel when it disqualified the California attorney. The court concluded that the district court did not abuse its discretion in disqualifying counsel due to a serious potential conflict of interest, given the investigation into the source of the funds with which he was retained (and the implication that counsel was part of the grander conspiracy).
Before reaching that issue, the Fourth concluded, in line with all other circuits to reach the issue, that the failure to file a timely notice of appeal is not a flaw of jurisdictional dimension, preventing the court from hearing an appeal. Applying recent Supreme Court precedent, the court concluded that the non-statutory 10-day deadline to file a notice of appeal is a claim processing rule, not a jurisdictional requirement.
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