US v. Allen: Allen was involved in a large crack distribution operation in North Carolina. Although he conceded that he had sold drugs to a member of the conspiracy, he denied being part of the conspiracy itself. He was convicted of conspiracy to possess with intent to distribute 50 grams or more of crack cocaine and sentenced to the then applicable mandatory minimum sentence of 10 years.
On appeal, Allen challenged his conviction and sentence. As to his conviction, Allen first argued that the evidence showed two transactions, but not any involvement in the larger conspiracy. The court disagreed, noting that the amount Allen sold, over such a short period of time, was certain to be distributed by the conspiracy. Second, Allen argued that the district court erred by refusing to let him see the PSRs and sealed sentencing memoranda of others convicted in the conspiracy. The court disagreed, holding that Allen's "conclusory" claims about what those document might reveal did not justify disclosure. Third, Allen argued that the district court erred by not allowing him to present expert testimony to help explain the impact of the plea agreements entered into by other codefendants. The court disagreed, concluding that expert testimony of that nature was not appropriate under the Federal Rules of Evidence. As to Allen's sentence, the Fourth Circuit agreed that the Fair Sentencing Act applied and Allen was not subject to a 10-year mandatory minimum sentence. It vacated the sentence and remanded.
Monday, April 29, 2013
Unnecessary Cardiac Stents Can Support Health Care Fraud Conviction
US v. McLean: McLean was a heart doctor who performed (among other things) procedures that inserted stents into the arteries of those with blockages. Following an internal investigation at the hospital where he worked, which led his resignation, McLean was charged with health care fraud and several counts of filing false paperwork as a part of the fraudulent scheme. The basis for the fraudulent scheme was that McLean would bill insurance companies for medically unnecessary stent procedures (i.e., a procedure where the arteries weren't blocked enough to warrant it). After trial, McLean was convicted and sentenced to 97 months in prison.
On appeal, McLean challenged both his convictions and his sentence. The Fourth Circuit affirmed. As to his convictions, McLean raised three arguments. First, he argued that the health care fraud statute as applied to him was unconstitutionally vague because it contained no clear standard of "medical necessity." The court disagreed, concluding that the requirement that the Government prove the fraud was done "knowingly and willfully" covered any fair notice argument McLean might have. Second, McLean argued that there was insufficient evidence to support his convictions. The court disagreed, concluding that there was sufficient evidence from which a jury could conclude he was guilty (see the opinion for a lengthy discussion of those facts). Third, McLean argued that several evidentiary issues deprived him of a fair trial. The court disagreed, finding no Brady error with regard to one piece of evidence and no abuse of discretion on the district court's part on the others. As to his sentence, McLean argued that the district court erred when calculating the amount of loss attributable to him. The court disagreed, finding no clear error in the district court's acceptance of the hospital's calculation of loss that included additional expenses incurred beyond the actual payments fraudulently obtained.
On appeal, McLean challenged both his convictions and his sentence. The Fourth Circuit affirmed. As to his convictions, McLean raised three arguments. First, he argued that the health care fraud statute as applied to him was unconstitutionally vague because it contained no clear standard of "medical necessity." The court disagreed, concluding that the requirement that the Government prove the fraud was done "knowingly and willfully" covered any fair notice argument McLean might have. Second, McLean argued that there was insufficient evidence to support his convictions. The court disagreed, concluding that there was sufficient evidence from which a jury could conclude he was guilty (see the opinion for a lengthy discussion of those facts). Third, McLean argued that several evidentiary issues deprived him of a fair trial. The court disagreed, finding no Brady error with regard to one piece of evidence and no abuse of discretion on the district court's part on the others. As to his sentence, McLean argued that the district court erred when calculating the amount of loss attributable to him. The court disagreed, finding no clear error in the district court's acceptance of the hospital's calculation of loss that included additional expenses incurred beyond the actual payments fraudulently obtained.
Categorical Approach, Not Modified, Applies to Oregon Prior Drug Distribution Charge
US v. Medina-Campo: Medina-Campo, a Mexican national, was deported in 2005 following his conviction in Oregon on several drug counts, including distribution of heroin, for which he was sentenced to 24 months in prison. After being stopped for DUI in Maryland, Medina-Campo was charged with illegal reentry after having been deported due to an "aggravated felony." He pleaded guilty. At sentencing, the district court applied a 16-level enhancement based on Medina-Campo's prior conviction being a "drug trafficking offense" (over Medina-Campo's objection) and sentenced him to 50 months in prison, 7 months below the bottom of the Guideline range.
On appeal, Medina-Campo challenged his sentence, arguing that his prior conviction was not a drug trafficking offense, as defined by the Guidelines, and his true sentencing range was only 15 to 21 months, because Oregon law include solicitation of the delivery of drugs within the delivery statute. The Fourth Circuit disagreed and affirmed his sentence. The court concluded that a regular categorical approach, rather than a modified one, was appropriate, rejecting Medina-Campo's argument that the Oregon statute at issue delineated multiple offenses. Applying that approach, the court concluded that any conviction under the Oregon statute is a "drug trafficking offense."
On appeal, Medina-Campo challenged his sentence, arguing that his prior conviction was not a drug trafficking offense, as defined by the Guidelines, and his true sentencing range was only 15 to 21 months, because Oregon law include solicitation of the delivery of drugs within the delivery statute. The Fourth Circuit disagreed and affirmed his sentence. The court concluded that a regular categorical approach, rather than a modified one, was appropriate, rejecting Medina-Campo's argument that the Oregon statute at issue delineated multiple offenses. Applying that approach, the court concluded that any conviction under the Oregon statute is a "drug trafficking offense."
Saturday, April 20, 2013
Duplicates are counted as separate images for §2G2.2(b)(7)
US v. Price: Sean Price uploaded images of child pornography to
photobucket.com and West Virginia State Police traced the images to Price’s
email account. The state police obtained
a search warrant and seized several computers and hard drives from Price’s
home. Fifteen images were discovered on
the hard drives; Price also submitted to an interview with police in which he
admitted to possessing child pornography.
Sometime after the police search and seizure at Price’s
residence, four emails containing attachments of child pornography were sent to
ninety-three individuals. The emails
were sent to appear as if the sender was a West Virginia State Police
Sergeant. Price later admitted that he
created the subterfuge of sending the emails.
A grand jury indicted Price with accessing the internet via
computer with the intent to view child pornography; Price pleaded guilty. The district court sentenced Price as if he
had possessed well over 600 images, based on the images sent in the emails,
multiplied by the number of recipients.
Price wanted the district court to count only those images he actually
possessed, 113, and that he did not duplicate the images when he sent them to
multiple individuals via email.
The Fourth Circuit determined that the language of the
Application Note 4 to U.S.S.G. §2G2.2 , “[f]or the purpose of determining the
number of images under subsection (b)(7):
each photograph, picture, computer or computer-generated image, or any
similar visual depiction shall be considered to be one image,” means that each and every image, regardless
of originality, must be counted separately.
Two trial errors not reversible error in tax fraud case
US v. Woods: A grand jury charged Michael Woods with multiple counts of
preparing and presenting false and fraudulent tax returns, wire fraud, identity
theft and aggravated identity theft, in connection with his side business of
preparing tax returns for private individuals (Woods worked full-time for the
U.S. Department of Veterans’ Affairs as
a data warehouse manager).
The government alleged that Woods added false information to
his private customers’ tax returns in order to qualify them for substantial
refunds. Woods also allegedly listed
non-existent dependents for some customers, for which he charged $500 in extra
fees, by stealing names of false dependents from the VA computer system. Woods represented himself at trial with
stand-by counsel; after a four-day trial, a jury convicted him on all counts.
Woods appealed several trial issues, two of which the Fourth
Circuit determined to be errors: 1) that
the government made an improper statement in closing argument, by stating that
Woods lied under oath at trial about part of his fraud scheme; and 2) the
district court improperly declined to issue a jury instruction about Woods’
good character. Despite a finding that
the government’s statement in closing was improper and that plain error results
when the government statutes that a defendant has lied under oath at trial, the
Fourth Circuit determined that the trial was not impacted by the improper
statement, because a considerable portion of the government’s evidence directly
contradicted Woods’ theory of defense.
Further, the government’s line of questioning a defense witness, in
which Woods’ guilt was assumed for the purpose of influencing the content of
the witness’s character testimony, and the district court’s decision not to
give a good character jury instruction based on the tainted line of
questioning, was similarly improper. The
Fourth Circuit concluded that the jury would have concluded that Woods was
guilty with or without the jury instruction.
Ultimately, the two errors were not reversible error, and the Fourth
Circuit affirmed the convictions.
TN statutory rape conviction not “crime of violence” for sentencing enhancement
US v. Rangel-Castaneda: Rangel-Castaneda received an indictment for one count of
illegal re-entry after his arrest in 2010 for driving while impaired and
failing to register as a sex offender. He pleaded guilty to this offense in
June 2011. Previously, Rangel-Castaneda
had received a conviction in Tennessee for having sex with his then-girlfriend,
who was 16 years old at the time, for aggravated statutory rape. At Rangel-Castaneda’s sentencing for illegal
re-entry, the district court considered the Tennessee statutory rape conviction
a “crime of violence” for sentencing enhancement purposes. Rangel-Castaneda appealed the propriety of
this sentencing decision.
The Fourth Circuit determined that Rangel-Castaneda’s
Tennessee statutory rape conviction was not a “crime of violence” for
sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(c). Because Tennessee’s statute sets the age of
consent at 18, significantly broader than the generic statutory rape offense
across the country (the generic age of consent, based on a canvas of many
states’ rape statutes, is 16), the Tennessee statute is overbroad under a
“categorical” approach to determine whether a conviction qualifies as a “crime
of violence.” According to the Fourth
Circuit, the disparity between the predicate state crime here and
Rangel-Castaneda’s contended generic offense “cannot be considered
insignificant.” Moreover, to hold the
statutory rape conviction here as a “crime of violence” would criminalize
behavior that in neighboring states would be perfectly legal is just the kind
of odd and unjust result that the Supreme Court intended to preclude with Taylor v. United States.
Crack sentence reduction permitted when district court made no specific finding of defendant’s drug relevant conduct
US v. Mann: Convicted in
1998 for cocaine and crack offenses, Mann had
originally been sentenced according to the Sentencing Guidelines in place at
that time. Then, a defendant responsible
for 1.5 kilograms of more of crack received a base offense level of 38, the
highest quantity-based base offense level, no matter how much cocaine was also
involved in Mann’s convictions. Mann
petitioned for a reduction in his sentence when the Sentencing Commission
changed the penalties for crack offenses in 2008 and in 2011. Pertinent to this appeal, the district court
that originally sentenced Mann gave him a sentencing reduction, finding that
the record did not support a finding, as the government argued, that Mann
should have been held responsible for 8.4 kilograms of crack and that he should
be ineligible for a sentencing reduction.
The Fourth Circuit held that the district court did not
clearly err in its decision that it made no (uncorrected) finding that Mann had
been responsible for any specific amount above 1.5 kilograms of crack. Additionally, the Government argued that the
district court, at Mann’s resentencing, could make additional findings as to
drug amounts, consistent with its original findings, in making a resentencing
determination. Other circuits have held
that addition findings are within the district court’s discretion; however, the
Fourth Circuit held that the district court did not abuse its discretion by
deciding not to make additional findings here, more than a decade after the
original sentencing.
Tuesday, April 02, 2013
Officer Lie to Obtain Search Warrant Voids Guilty Plea
US v. Fisher: Fisher was arrested and charged with possession with intent to distribute crack and being a felon in possession of a firearm after a search of his home, pursuant to a warrant, uncovered drugs and a gun. Fisher pleaded guilty to the felon in possession count and was sentenced to 10 years in prison. The warrant to search Fisher's home had been procured by a DEA agent named Mark Lunsford who, in the affidavit supporting the warrant application, told of a tip from a confidential informant who had provided reliable information in the past. A year after Fisher pleaded guilty, Lunsford himself was charged with crime related to his duties as a DEA agent. As relevant to Fisher's case, he admitted that the CI identified in the warrant affidavit "had no connection to the case" and that someone else was the "real informant."
After Lunsford entered a guilty plea based on his misconduct, Fisher filed a pro se motion to vacate his guilty plea. The district court eventually (after appointing counsel for Fisher) denied the motion, concluding that although Fisher almost certainly would have filed a motion to suppress had he known of Lunsford's false affidavit and that motion might have been successful, he nonetheless admitted his illegal possession of the firearm. Thus, not allowing him to withdraw his guilty plea would not work a "miscarriage of justice." The district court also noted that neither Fisher's counsel nor the Government knew of Lunsford's duplicity and could not be faulted for allowing him to enter the plea.
On appeal the Fourth Circuit reversed, 2-1. The court recognized that to set aside a guilty plea because it is involuntary a defendant must show (1) some egregiously impermissible conduct and (2) that the misconduct influenced the decision to plead guilty. The court found that Fisher met the first requirement because "government misrepresentation constitutes impermissible conduct." It recognized that this case involved "highly uncommon circumstances in which gross police misconduct goes to the heart of the prosecution's case." Furthermore, Fisher did not seek to withdraw his plea merely because of buyer's remorse - he calculated his options and calculated incorrectly - but because of a misapprehension about the strength of the Government's case brought about by police misconduct. The court held that it was immaterial that Fisher did not claim to be actually innocent of the charge to which he pleaded guilty. The court also concluded that Fisher likely would not have pleaded guilty had he known about Lunsford's fraudulent affidavit. As a result, the totality of the circumstances required the vacation of Fisher's plea because it was involuntary and made in violation of his due process rights.
Judge Agee dissented, arguing that the court's application of the "affirmative misrepresentation" standard had no basis in prior precedent and that, ultimately, Fisher is stuck with his guilty plea.
After Lunsford entered a guilty plea based on his misconduct, Fisher filed a pro se motion to vacate his guilty plea. The district court eventually (after appointing counsel for Fisher) denied the motion, concluding that although Fisher almost certainly would have filed a motion to suppress had he known of Lunsford's false affidavit and that motion might have been successful, he nonetheless admitted his illegal possession of the firearm. Thus, not allowing him to withdraw his guilty plea would not work a "miscarriage of justice." The district court also noted that neither Fisher's counsel nor the Government knew of Lunsford's duplicity and could not be faulted for allowing him to enter the plea.
On appeal the Fourth Circuit reversed, 2-1. The court recognized that to set aside a guilty plea because it is involuntary a defendant must show (1) some egregiously impermissible conduct and (2) that the misconduct influenced the decision to plead guilty. The court found that Fisher met the first requirement because "government misrepresentation constitutes impermissible conduct." It recognized that this case involved "highly uncommon circumstances in which gross police misconduct goes to the heart of the prosecution's case." Furthermore, Fisher did not seek to withdraw his plea merely because of buyer's remorse - he calculated his options and calculated incorrectly - but because of a misapprehension about the strength of the Government's case brought about by police misconduct. The court held that it was immaterial that Fisher did not claim to be actually innocent of the charge to which he pleaded guilty. The court also concluded that Fisher likely would not have pleaded guilty had he known about Lunsford's fraudulent affidavit. As a result, the totality of the circumstances required the vacation of Fisher's plea because it was involuntary and made in violation of his due process rights.
Judge Agee dissented, arguing that the court's application of the "affirmative misrepresentation" standard had no basis in prior precedent and that, ultimately, Fisher is stuck with his guilty plea.
Friday, March 22, 2013
Only one Orioles fan in Baltimore? Well, it was the off-season
US v. Moore: Tyrone Moore was charged with carjacking, using a firearm in furtherance of carjacking, and conspiracy. Police encountered Moore wearing Orioles gear, in the company of another individual, Walton, who had a key to the stolen car in his pocket. The vehicle in question had been stolen seven days earlier, and had been involved three days after the carjacking in a controlled buy, when it had been driven by another individual known to police, Michael Pollin. When the police took the key from Walton, they located the stolen vehicle nearby; inside the vehicle, police discovered an Orioles baseball hat. From Moore’s friendship with Walton, as well as his attire that evening, police photographed Moore. The owner of the stolen vehicle, who admittedly only saw the carjacker’s eyes and dreadlocks on the evening of the theft, later identified Moore as the car thief in a photo line-up (the perpetrator wore a hat and bandana covering his face).
As his defense at trial, Moore made the identity of the carjacker the main focus. Pollin was the first individual seen by police driving the stolen vehicle three days after the carjacking. The government had provided Moore with a picture of Pollin allegedly taken around the time of the car theft; the government presented at trial the photo of Pollin which showed that he did not have dreadlocks around that time. Additionally, a police detective familiar with Pollin testified at trial that he was not aware that Pollin had ever worn dreadlocks. A defense witness offered testimony that Pollin indeed had dreadlocks around this time, but this testimony was weak in comparison to the detective’s testimony and the government’s photos of Pollin. Moore was convicted.
Shortly after trial, Moore continued to insist that Pollin had dreadlocks at the time of the carjacking, and the government continued to insist that Moore was either mistaken or lying. Moore’s counsel met with a former attorney of Pollin’s, who was in possession of a properly dated booking photograph of Pollin with dreadlocks, taken around a month after the carjacking. Upon the basis of this photograph as newly discovered evidence and the government’s failure to disclose it as a Brady violation, Moore petitioned the district court for a new trial, which the district court denied. Moore appealed to the Fourth Circuit, which determined that Moore was entitled to a new trial.
In the Fourth Circuit, to succeed on a Rule 33 motion for a new trial, a defendant must satisfy a five-part test by demonstrating: 1) newly discovered evidence; 2) defendant exercised due diligence; 3) the newly discovered evidence is neither cumulative nor impeaching; 4) the evidence is material; and 5) the evidence would probably result in acquittal at a new trial. The district court did not believe that the newly discovered evidence Moore possessed was material; however, the Fourth Circuit determined that Moore had made the carjacker’s identity the chief focus of the trial, and thus, any newly discovered evidence relevant to the carjacker’s identity was “undoubtedly” material. The Fourth Circuit vacated Moore’s conviction and remanded to the district court.
As his defense at trial, Moore made the identity of the carjacker the main focus. Pollin was the first individual seen by police driving the stolen vehicle three days after the carjacking. The government had provided Moore with a picture of Pollin allegedly taken around the time of the car theft; the government presented at trial the photo of Pollin which showed that he did not have dreadlocks around that time. Additionally, a police detective familiar with Pollin testified at trial that he was not aware that Pollin had ever worn dreadlocks. A defense witness offered testimony that Pollin indeed had dreadlocks around this time, but this testimony was weak in comparison to the detective’s testimony and the government’s photos of Pollin. Moore was convicted.
Shortly after trial, Moore continued to insist that Pollin had dreadlocks at the time of the carjacking, and the government continued to insist that Moore was either mistaken or lying. Moore’s counsel met with a former attorney of Pollin’s, who was in possession of a properly dated booking photograph of Pollin with dreadlocks, taken around a month after the carjacking. Upon the basis of this photograph as newly discovered evidence and the government’s failure to disclose it as a Brady violation, Moore petitioned the district court for a new trial, which the district court denied. Moore appealed to the Fourth Circuit, which determined that Moore was entitled to a new trial.
In the Fourth Circuit, to succeed on a Rule 33 motion for a new trial, a defendant must satisfy a five-part test by demonstrating: 1) newly discovered evidence; 2) defendant exercised due diligence; 3) the newly discovered evidence is neither cumulative nor impeaching; 4) the evidence is material; and 5) the evidence would probably result in acquittal at a new trial. The district court did not believe that the newly discovered evidence Moore possessed was material; however, the Fourth Circuit determined that Moore had made the carjacker’s identity the chief focus of the trial, and thus, any newly discovered evidence relevant to the carjacker’s identity was “undoubtedly” material. The Fourth Circuit vacated Moore’s conviction and remanded to the district court.
Monday, March 04, 2013
No Requirement That Courts Apply Higher Competency Standard for Self Representation
US v. Bernard: Bernard was charged with gun and drug offenses. Based on a long history of mental illness, the district court ordered a competency evaluation. He was initially deemed incompetent to stand trial (due to schizophrenia, paranoid delusions, and disorganized thought processes), but after treatment was determined to have been restored to confidence. At the second competency hearing, the district court addressed a motion by Bernard to proceed pro se (with then assigned counsel as standby). The district court, having found Bernard competent, granted the motion, although it noted it was "not real comfortable with this" because it was a "fluid situation" that "may not be the same tomorrow." Bernard went to trial and was convicted (after 12 minutes of deliberation!). Sentencing, at which Bernard was again fully represented by counsel (although it's unclear precisely how that came to be) was initially delayed "after it became clear that [Bernard]'s mental condition was wholly compromised at that time." When sentencing reconvened, Bernard was sentenced to 180 months in prison.
Bernard appealed his convictions, arguing that the district court erred by allowing him to proceed pro se and represent himself at trial and that, under the Supreme Court's 2008 decision in Edwards, the court was required to apply a higher standard to the pro se issue than the competency issue. The Fourth Circuit disagreed and affirmed, 2-1. Proceeding with a plain error analysis, the court first noted the fundamental nature of the Sixth Amendment right to self representation and that the Supreme Court in Godinez (1993) rejected the argument that the competency to waive constitutional rights (including the right to counsel) was a higher threshold than the competency to be tried in the first place. Edwards, the court concluded, did not change that standard, but only permits the states to require counsel in cases where a defendant is competent to stand trial, but perhaps not competent to proceed pro se, but the Constitution does not require it. As a result, there was no error, much less plain error, in the district court allowing Bernard to proceed pro se at trial. Nor was the district court required to sua sponte revisit the issue of competency during trial.
Judge Diaz dissented, agreeing with the majority that Edwards provided a discretionary, not mandatory, duty on trial courts facing this issue, but disagreed that the district court in this case was aware of that discretion.
Bernard appealed his convictions, arguing that the district court erred by allowing him to proceed pro se and represent himself at trial and that, under the Supreme Court's 2008 decision in Edwards, the court was required to apply a higher standard to the pro se issue than the competency issue. The Fourth Circuit disagreed and affirmed, 2-1. Proceeding with a plain error analysis, the court first noted the fundamental nature of the Sixth Amendment right to self representation and that the Supreme Court in Godinez (1993) rejected the argument that the competency to waive constitutional rights (including the right to counsel) was a higher threshold than the competency to be tried in the first place. Edwards, the court concluded, did not change that standard, but only permits the states to require counsel in cases where a defendant is competent to stand trial, but perhaps not competent to proceed pro se, but the Constitution does not require it. As a result, there was no error, much less plain error, in the district court allowing Bernard to proceed pro se at trial. Nor was the district court required to sua sponte revisit the issue of competency during trial.
Judge Diaz dissented, agreeing with the majority that Edwards provided a discretionary, not mandatory, duty on trial courts facing this issue, but disagreed that the district court in this case was aware of that discretion.
Fake Distress Call That Summons Coast Guard Suffices for Federal Crime
US v. Deffenbaugh: Deffenbaugh was on probation for a Maryland state conviction and was facing revocation. To avoid that fate, he attempted to fake his own death, jumping off a boat off the Virginia coast and slipping away (with the help of his girlfriend) while the Coast Guard and others tried to locate him. Rather that be pronounced dead and avoid incarceration, Deffenbaugh and his girlfriend were apprehended in Texas and returned to Virginia. Deffenbaugh was charged with conspiring to cause a fake distress call to the Coast Guard and substantively causing that call. He was convicted of both counts at trial (at which his girlfriend testified against him) and sentenced to a total of 84 months in prison.
On appeal, Deffenbaugh challenged both his conspiracy conviction and sentence, both of which the Fourth Circuit affirmed. As to the conspiracy conviction, Deffenbaugh argued that the evidence was insufficient because it could not show that he and his girlfriend shared "the same criminal objective" because she didn't know that the Coast Guard would respond to the 911 call made about Deffenbaugh's disappearance. Because she did not act with that knowledge, the aim of the conspiracy was not commit a federal crime. The court disagreed, concluding that the knowledge requirement of the statute when to the falseness of the call itself, not the jurisdictional hook (i.e., that the Coast Guard would response). The evidence was sufficient to show that Deffenbaugh and his girlfriend shared that knowledge. As to the sentence, the court concluded that the district court was not plainly unreasonable by looking to the fraud Guideline for guidance in sentencing Deffenbaugh for an offense without an applicable Guideline range. The court also concluded that his ultimate sentence, including the district court's decision to impose consecutive sentences, was not plainly unreasonable.
On appeal, Deffenbaugh challenged both his conspiracy conviction and sentence, both of which the Fourth Circuit affirmed. As to the conspiracy conviction, Deffenbaugh argued that the evidence was insufficient because it could not show that he and his girlfriend shared "the same criminal objective" because she didn't know that the Coast Guard would respond to the 911 call made about Deffenbaugh's disappearance. Because she did not act with that knowledge, the aim of the conspiracy was not commit a federal crime. The court disagreed, concluding that the knowledge requirement of the statute when to the falseness of the call itself, not the jurisdictional hook (i.e., that the Coast Guard would response). The evidence was sufficient to show that Deffenbaugh and his girlfriend shared that knowledge. As to the sentence, the court concluded that the district court was not plainly unreasonable by looking to the fraud Guideline for guidance in sentencing Deffenbaugh for an offense without an applicable Guideline range. The court also concluded that his ultimate sentence, including the district court's decision to impose consecutive sentences, was not plainly unreasonable.
SORNA Requires Registration of Juvenile Offender
US v. Under Seal: JD (for "juvenile defendant") was judged delinquent based on allegations of sexual assault against his half sisters. He was sentenced to a term of incarceration and supervision until his 21st birthday. A special condition of that supervision is that he register as a sex offender under SORNA, over JD's objection.
On appeal, the Fourth Circuit affirmed that condition. The court first noted that JD fell within the language of SORNA's definition of a "sex offender" because he was over 14 years of age and had been adjudicated as delinquent. It then rejected JD's two arguments that the registration requirement nonetheless was invalid. First, JD argued that the registration requirement violated the confidentiality provisions of the Federal Juvenile Delinquency Act. The court disagreed, concluding that the more specific provisions of SORNA controlled over the general confidentiality provisions of the FJDA and that Congress clearly intended that result. Second, JD argued that the registration requirement violated the Eighth Amendment's prohibition against cruel and unusual punishment. The court disagreed, concluding that SORNA is a "non-punitive, civil regulator scheme, both in purpose and effect" that did not implicate the Eighth Amendment.
On appeal, the Fourth Circuit affirmed that condition. The court first noted that JD fell within the language of SORNA's definition of a "sex offender" because he was over 14 years of age and had been adjudicated as delinquent. It then rejected JD's two arguments that the registration requirement nonetheless was invalid. First, JD argued that the registration requirement violated the confidentiality provisions of the Federal Juvenile Delinquency Act. The court disagreed, concluding that the more specific provisions of SORNA controlled over the general confidentiality provisions of the FJDA and that Congress clearly intended that result. Second, JD argued that the registration requirement violated the Eighth Amendment's prohibition against cruel and unusual punishment. The court disagreed, concluding that SORNA is a "non-punitive, civil regulator scheme, both in purpose and effect" that did not implicate the Eighth Amendment.
Waiver Precludes Review of Erroneous Guideline Calculations
US v. Copeland: Copeland pleaded guilty to one count of distribution of more than five grams of crack cocaine. As part of his guilty plea, Copeland waived his right to appeal any sentence within or below the advisory Guideline range calculated at sentencing (the Government waived nothing). Prior to sentencing, Copeland was designated as a career offender based on (among others) two prior North Carolina convictions and his advisory Guideline range calculated as 188 to 235 months. One of those convictions also served to increase Copeland's statutory range from five-to-40 years up to 10-to-life. Sentencing occurred while Simmons was awaiting rehearing in the Fourth Circuit and Copeland maintained an objection to the use of the North Carolina priors in determining his sentence. The district court imposed a sentence of 216 months and announced that, even if there were any problems in calculating the Guideline range, it would have imposed the same sentence anyway.
Copeland filed an appeal, challenging his classification as a career offender, the length of his sentence, and the district court's failure to continue his sentencing. The Government invoked the waiver in the plea agreement and moved to dismiss Copeland's appeal. As to the career offender and substantive reasonableness of the sentence, the court granted the motion to dismiss. Finding the waiver valid, the court concluded that the Guideline calculations were at the heart of it, even though the eventual outcome in Simmons shows them to have been wrong (an error which the Government admitted). A future change in the law does not render an otherwise valid waiver invalid. Furthermore, the sentence was not substantively "illegal" and therefore outside the scope of the waiver. As to the continuance, the court found the district court did not abuse its discretion.
Copeland filed an appeal, challenging his classification as a career offender, the length of his sentence, and the district court's failure to continue his sentencing. The Government invoked the waiver in the plea agreement and moved to dismiss Copeland's appeal. As to the career offender and substantive reasonableness of the sentence, the court granted the motion to dismiss. Finding the waiver valid, the court concluded that the Guideline calculations were at the heart of it, even though the eventual outcome in Simmons shows them to have been wrong (an error which the Government admitted). A future change in the law does not render an otherwise valid waiver invalid. Furthermore, the sentence was not substantively "illegal" and therefore outside the scope of the waiver. As to the continuance, the court found the district court did not abuse its discretion.
Tuesday, February 26, 2013
Another Strong Affirmation of the Fourth Amendment's Vitality
US v. Black: Two officers in Charlotte saw a car parked at a gas pump in a convenience store parking lot and thought it suspicious, as the driver sat inside for several minutes before driving off. They followed the car, which parked in a parking lot between two apartment complexes. A computer check on the car returned nothing suspicious. The driver, Troupe, parked and joined a group of five other men, including Black, standing and talking in the parking lot. After calling for backup, in order to make "voluntary contact," the officers approached the men, one of whom an officer recognized from prior arrests. When he saw officers approaching, Troupe pointed to the openly-carried gun in a holster on his hip. An officer seized the gun (even though open carry is legal in North Carolina - the officer "had never seen anyone do it") and then, based on the theory that when one gun is present another is also, officers began frisking the other men.
When another officer began talking to the men Black voluntarily provided his ID, which the officer thought suspicious because the other men were "argumentative and did not give any information." It showed that he living in another part of Charlotte. He told the officer he was visiting friends. The officer kept Black's ID and "pinned it to his uniform" while questioning the others. Another officer described Black as "extremely cooperative." While the others were being frisked, Black was seen leaning forward on the edge of his seat and looking left and right, which officers interpreted as him looking for an escape route. Black got up and started to leave, but was told he wasn't free to go. He walked away anyway, until an officer grabbed his bicep (and felt his "'extremely fast' pulse through Black's t-shirt"). A struggle ensued, during which Black was placed in handcuffs and a firearm was recovered from Black. He was charged with being a felon in possession of a firearm. His motion to suppress was denied, Black entered a conditional guilty plea, and he was sentenced to 180 months in prison.
On appeal, the Fourth Circuit reversed the district court's denial of Black's motion to suppress. The court first concluded that Black had been seized (for Fourth Amendment purposes) prior to the officer's statement that he was not free to leave, due to a combination of factors including the "collective show of authority" of the officers, the fact that Troupe's firearm had been seized and that he, at least, was not free to leave, and the retention of Black's ID. Thus Black was seized at the point his ID was pinned to an officer's uniform and another officer began frisking everyone on the scene. The court also noted that, although it did not resolve the issue, it "doubted that this encounter was consensual at its inception." The court then concluded that the totality of circumstances at the time of the seizure (which didn't include Black's looking left and right or his attempt to leave the area) did not support reasonable suspicion to support a seizure. The court called this case "yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot be rationally relied on to establish reasonable suspicion." In conclusion, the court said:
When another officer began talking to the men Black voluntarily provided his ID, which the officer thought suspicious because the other men were "argumentative and did not give any information." It showed that he living in another part of Charlotte. He told the officer he was visiting friends. The officer kept Black's ID and "pinned it to his uniform" while questioning the others. Another officer described Black as "extremely cooperative." While the others were being frisked, Black was seen leaning forward on the edge of his seat and looking left and right, which officers interpreted as him looking for an escape route. Black got up and started to leave, but was told he wasn't free to go. He walked away anyway, until an officer grabbed his bicep (and felt his "'extremely fast' pulse through Black's t-shirt"). A struggle ensued, during which Black was placed in handcuffs and a firearm was recovered from Black. He was charged with being a felon in possession of a firearm. His motion to suppress was denied, Black entered a conditional guilty plea, and he was sentenced to 180 months in prison.
On appeal, the Fourth Circuit reversed the district court's denial of Black's motion to suppress. The court first concluded that Black had been seized (for Fourth Amendment purposes) prior to the officer's statement that he was not free to leave, due to a combination of factors including the "collective show of authority" of the officers, the fact that Troupe's firearm had been seized and that he, at least, was not free to leave, and the retention of Black's ID. Thus Black was seized at the point his ID was pinned to an officer's uniform and another officer began frisking everyone on the scene. The court also noted that, although it did not resolve the issue, it "doubted that this encounter was consensual at its inception." The court then concluded that the totality of circumstances at the time of the seizure (which didn't include Black's looking left and right or his attempt to leave the area) did not support reasonable suspicion to support a seizure. The court called this case "yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot be rationally relied on to establish reasonable suspicion." In conclusion, the court said:
The facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic. In the words of Dr. Martin Luther King, Jr., we are reminded that 'we are tied together in a single garment of destiny, caught in an inescapable network of mutuality,' that our individual freedom is inextricably bound to the freedom of others. Thus, we must ensure that the Fourth Amendment rights of all individuals are protected.Congrats to the Western District of NC defender office on the win!
Wednesday, February 20, 2013
No Evacuation, No Exigent Circumstances
US v. Yengel: Officers were called to Yengel's home during a domestic dispute. He was arrested without incident outside the home, although he was upset and agitated. Notably, he wasn't armed. Yengel's wife told officers that there were guns in the house as well as a grenade in a locked closet in an upstairs bedroom. Officers seized the guns. As for the grenade, the wife showed an officer the closet in which it was kept, which was locked with both an electronic keypad and thumbprint scanner. Yengel's wife didn't know the combination and lacked the correct thumbprint to open it. After several hours the door was pried open and the "grenade" - actually a collection of gunpowder and other materials that could be assembled into a "firearm" - was seized. All this was done without a warrant and without the house being evacuated, including leaving Yengel's sleeping infant son remain in the bedroom next to the one with the "grenade."
Yengel was charged with possession of an unregistered firearm (the "grenade"). He moved to suppress that evidence, arguing that the seizure was done without a warrant and not pursuant to any of the recognized exceptions to the warrant requirement. The district court agreed, concluding that exigent circumstances weren't present when the closet door was pried open. On a Government appeal the Fourth Circuit agreed and affirmed the suppression. Noting that the person making the entry/search in an exigent circumstances case must objectively believe that such an exigency exists, the court concluded that the officer's actions showed he did not have such an objective belief. Most notably, in spite of being in pursuit of an explosive device, the officer did not clear the house or the surrounding area before attempting to retrieve it.
Congrats to defender office in the ED Virginia on the win! Both of 'em!
Yengel was charged with possession of an unregistered firearm (the "grenade"). He moved to suppress that evidence, arguing that the seizure was done without a warrant and not pursuant to any of the recognized exceptions to the warrant requirement. The district court agreed, concluding that exigent circumstances weren't present when the closet door was pried open. On a Government appeal the Fourth Circuit agreed and affirmed the suppression. Noting that the person making the entry/search in an exigent circumstances case must objectively believe that such an exigency exists, the court concluded that the officer's actions showed he did not have such an objective belief. Most notably, in spite of being in pursuit of an explosive device, the officer did not clear the house or the surrounding area before attempting to retrieve it.
Congrats to defender office in the ED Virginia on the win! Both of 'em!
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