Wednesday, July 01, 2015

Erroneous Simmons Fueled ACCA Designation Can Be Attacked In 2255

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

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

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

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

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

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

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

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

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

Tuesday, June 16, 2015

Crime of Violence, Recklessness Enhancements Vacated

US v. Shell: Shell was speeding down a highway when he was spied by a police officer going the other direction. By the time the officer turned around he had lost sight of Shell, but quickly found his car wrecked down an embankment. Shell had fled. He was later apprehended and admitted possessing a firearm found in a bag near the car. After pleading guilty to being a felon in possession of a firearm, his sentence was enhanced for having a prior "crime of violence" - a North Carolina conviction for second degree rape - and for recklessly fleeing from a police officer. He was sentenced to the bottom of the resulting Guideline range, 57 months in prison.

On appeal, a divided Fourth Circuit vacated Shell's sentence, finding the district court erred by applying both enhancements. As to the crime of violence (which increased Shell's base offense level from 14 to 20), the court found that the second degree rape in North Carolina is not categorically a crime of violence. Although it can be committed in a way that requires violent force (and therefore would be a crime of violence), it also includes offenses involving victims who are unable to consent (for various reasons) but without violent force. Because it was unclear under which section Shell was convicted, the court concluded the enhancement did not apply. As to the reckless endangerment, the court concluded that it was necessary that any flight be an attempt to flee from the police, not merely conduct that is otherwise reckless. Because the district court did not examine whether Shell was fleeing the officer or merely being generally reckless, it remanded the issue to the district court.

Judge Wilkinson dissented, arguing that the North Carolina conviction was a crime of violence, even under the incapacitated victim section because it required knowledge of such incapacitation and "protects people considered incapable of volitional acts from such callous conduct." He agreed on the law on the reckless conduct enhancement, thought "the district court's discussion has already incorporated the fact of such knowledge," but did not oppose remand on that issue.

Congrats (again!) to the Defender office in Western NC on the win!

Court Clarifies Supervise Release Revocation Review

US v. Padgett: Padgett was serving a pair of concurrent terms of supervised release when was allegedly involved in an incident in which he fired a gun five times after an argument. As a result, he was charged with violating the conditions of his term of supervised release in various ways. He contested the allegations, but the district court found he committed them and sentenced him to consecutive terms of imprisonment of 10 and 14 months, followed by more (concurrent) terms of supervised release.

On appeal, the Fourth Circuit affirmed Padgett's revocation and sentence. First, it clarified that while the ultimate decision to revoke a term of supervised release, factual determinations about the defendant's conduct were reviewed for clear error. Applying that standard, the court found that the district court did not clearly err by crediting the eyewitness testimony presented by the Government that Padgett possessed a firearm, was in an argument with someone else, and fired the gun in the air. Second, the court concluded that the sentences were within the advisory Guideline range and statutory range and were not plainly unreasonable.

Ambiguous Offense Dates Can't Support ACCA Enhancement

US v. Span: Span pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government argued that he qualified for an enhanced sentence under ACCA thanks to four prior North Carolina robbery convictions. It provided state court documents - indictments, judgment, and a plea "transcript" (actually a filled in form) - to support its position. Span agreed that the convictions qualified as "violent felonies," but argued that the Government had not proven that they occurred "on occasions different from one another." In particular, the dates of the offenses on the various documents provided by the Government were inconsistent. The district court concluded that ACCA applied based on three of the four priors, that the date discrepancies were likely typographical errors, and that the robberies were "separate criminal episodes" that involved different individual victims (although they all involved the same business). Span was sentenced to the mandatory minimum term of 180 months in prison.

On appeal, a divided Fourth Circuit vacated Span's sentence. Noting that while the ultimate conclusion that ACCA applied was a legal one subject to de novo review, the court reviewed the district court's factual determinations only for clear error. Nonetheless, it found clear error in the district court's conclusion that the three prior convictions occurred on occasions different from one another. Looking to the Government's documents, the court recognized that '[n]o single offense date for any predicate robbery conviction is consisted across all three sources." In light of those discrepancies, the district court clearly erred in its conclusion. Without that factual finding, the legal conclusion that ACCA applied was also incorrect. As a result, Span's sentence was vacated (the court did not reach Span's constitutional challenge to the ACCA finding).

Judge Motz dissented, arguing that the majority had misapplied the clear error standard. She argued that the district court's conclusion about when the offenses occurred was plausible, although possibly incorrect. Given the deference afforded factual determinations on appeal, such a conclusion was not clearly erroneous.

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

Tuesday, June 02, 2015

Court Vacates Something for Reasons Unknown - But Is Unhappy With the Government

US v. Adams: Adams was charged with . . . something. Based on a check of the docket sheet on PACER, it was multiple counts of conspiracy, racketeering, and murder. I have no idea what the outcome of the proceedings were, however, because most of the documents below are sealed. But I assume he was convicted of something, since he appealed.

Good news for Adams - he won. On plain error review, no less. But, again, I have no idea how or why, because the court's nearly unanimous opinion is, likewise, sealed (although, to be fair, it urges the district court to revisit whether the documents should stay sealed). What isn't sealed, however, is the Fourth Circuit's sealing order, which has little to do with sealing (on which the panel was unanimous), and everything to do with questioning why the Government put up a fight on appeal.

The opinion, written by Judge King, contains a footnote (set forth in the sealing order) that expresses surprise "that the government failed to confess plain error on appeal and thereby enhance the integrity of judicial proceedings." It invoked Berger v. US and the old chestnut that a prosecutor's first duty was to justice.

Judge Agee joined all of the panel opinion except that footnote. In a concurrence issued as part of the sealing order (and itself partially redacted). He emphasized the Government's "'broad' prosecutorial discretion," that said discretion applies on appeal, and that this "case does not present one of those rare occasions when we should disparage a coordinate branch for doing what the Constitution and its statutory mandate charge it to do." Of course, we have no idea if Judge Agree is correct, since we don't even know what the issue(s?) on appeal was, much less what the Government's argument was.

Senior Judge Davis issued his own concurrence, joining Judge King's opinion "in full." He contrasted himself to Judge Agee, "who apparently believe[s] it is never appropriate for those of us in the Judicial Branch to express reservations or disapproval of manifestly irregular, if not illegal, 'strategic choices' by prosecutors," and instead "believe[s] judges need to say more, not less, to the political deficits in our criminal justice system." He goes on to say (internal citation omitted):

Contemporary discord in this country we all love, especially in stressed communities where interaction with the criminal justice system is a regular and dispiriting occurrence for many residents, might well be reduced if we judges better used our voices to inform and educate the political branches about how the decisions they make actually operate down here on the ground floor of the criminal justice system. In an era of mass incarceration such as ours, any fear that restrained judicial commentary on dicey prosecutorial practices or “strategic choices” might result in 'the Government [] becom[ing] a less zealous advocate,' is most charitably described as fanciful.

Tuesday, May 26, 2015

Prior offenses impact grading of supervised release violations

US v. Wynn:  Anthony Wynn began a 5-year term of supervised release upon completion of the imprisonment portion of a 150-month drug trafficking sentence.  His PO filed a petition for revocation of Wynn’s supervised release after Wynn tested positive for marijuana use 6 times, as well as other allegations, e.g., driving without a license, operating an uninsured vehicle, and tinted windows, failing to submit monthly reports, failure to complete substance abuse treatment, and failing to timely advise his PO of a new arrest.  Wynn admitted his violation conduct; the district court found that Wynn had violated his supervised release, and revoked him.

Wynn’s PO calculated a term of imprisonment based on Wynn’s prior drug convictions.  Even though his marijuana charges would have been grade C violations absent any consideration of Wynn’s criminal history, the PO counted the violations as grade B violations under a recidivist enhancement.  Wynn had prior convictions in state court for possession of heroin, possession with intent to deliver heroin, possession of marijuana, and possession of heroin, and possession of cocaine and marijuana, dating from 1994 through 2002.  The district court held that Wynn’s recidivism directly affected the grade of his violations; Wynn challenged the procedural calculations of his revocation sentence on appeal.

The question on appeal was whether the court properly applied a statutory enhancement in calculating the applicable policy statement range, whether Wynn’s conduct of possessing marijuana was a grade B or C violation under the policy statements.  The difference between these two violations is the length of the term of imprisonment the offense may by punishable by:  grade C violations call for one year or less; grade B violations call for term exceeding one year.  Application Note 1 to USSG §7B1.1, according to the panel here, allows the “district court to consider not only conduct for which a defendant is prosecuted in a criminal case, but all of a defendant’s conduct,” whether or not the defendant has been prosecuted for it.  The commentary, the panel found, suggests that district courts should consider all conduct that affects the maximum penalties for a violation of supervised release.  The Fourth Circuit upheld the determination that this defendant’s possession of marijuana during his supervised release constituted grade B, not grade C, violations.

Simmons does not shield defendant from 12-level enhancement

US v. Bercian-Flores:  In this appeal, Jose Bercian-Flores challenged the sentencing enhancement he received in his illegal re-entry case, a 12-level bump based upon his prior 1997 conviction for unlawfully transporting aliens.  Bercian-Flores argued on appeal that Simmons shielded him from this enhancement, as his guidelines range for his 1997 conviction (when the guidelines were mandatory) was zero to 6 months; the Fourth Circuit found, however, that since the sentencing judge in 1997 had the discretion to sentence Bercian-Flores for up to five years then, the enhancement here was not an error.  The Fourth Circuit affirmed the sentence.

Bercian-Flores emphasized that he was not punished for more than a year for his 1997 conviction, and the guidelines prescribe a 12-level enhancement for illegal re-entry defendants when such an individual has a prior felony conviction for smuggling other aliens “punishable by imprisonment for a term exceeding one year.”  U.S.S.G. §2L1.2.  What’s more, the judge who sentenced Bercian-Flores in 1997 had found no aggravating factors, and no factual findings that warranted an upward departure beyond zero to six months.  The Fourth Circuit disagreed, finding that the top sentence in a guidelines range is not the maximum term of imprisonment, as determined by the Supreme Court.  The statutory maximum sentence as set by Congress controls whether Bercian-Flores’ prior convictions counts as a predicate felony for sentencing enhancement here, not the top sentence in his guidelines range.

Pretrial motions improperly reduced government's ability to put on case

US v. Bajoghli:  In this interlocutory appeal, the Fourth Circuit analyzed the propriety of a district court’s decisions on certain pretrial motions.  The Fourth Circuit panel reversed and remanded, and found that the evidence the defendant attempted to strike or exclude was relevant to the government’s ability to prove its case, and it was an abuse of the district court’s discretion to “unduly restrict the latitude reasonably necessary for the government to carry its burden of proof.”

Bajoghli stands accused of healthcare fraud.  The government has alleged that over a three-and-one-half-year period, Bajoghli, a dermatologist, orchestrated a scheme of falsely diagnosing patients with cancer, and performing unnecessary procedures on his unsuspecting patients.  Bajoghli would also direct “unqualified” medical assistants to perform a variety of procedures without supervision, but he would bill healthcare benefits programs as if he, himself, had performed them, billing the programs at a higher rate.

The government argued in its appeal that in order to prove a healthcare fraud scheme existed, it must be able to prove the “entire scheme,” with evidence that may not be directly related to the 53 charges, yet was relevant to proving the scheme.  The district court had ruled that evidence presented at trial must relate to one of the 53 instances of fraud named in the indictment, and Bajoghli argued that evidence of uncharged conduct would only be “loosely relevant” to the charged offenses and should be excluded under Rule 403 as unfairly prejudicial as well as under Rule 404(b)’s notice requirement, as “other acts” evidence.  The Fourth Circuit found that evidence of the entire scheme is relevant to proving the 53 charged acts, in proving the “boundaries” of the scheme.  Additionally, the Fourth Circuit found that since evidence of conduct not charged in a specific execution may be relevant to the healthcare fraud scheme, Rule 404(b) does not regulate it as “other bad acts.”

The district court ruled that post-scheme conduct should be excluded as “prior bad acts evidence” governed by 404(b), for which the government failed to provide adequate notice to Bajoghli.  The district court also excluded this evidence under Rule 403.  In his appeal, Bajoghli argued that Rule 404(b) does apply to this evidence because it would not be “intrinsic” to any of the charged executions of healthcare fraud.  However, the Fourth Circuit agreed with the government that this evidence was probative of Bajoghli’s knowledge and intent, which are elements of healthcare fraud, and since Rule 404(b) does not apply to conduct that is “intrinsic” to the charged crime, it was an error for the district court to use it as a basis for the exclusion of this evidence.  The district court further misapplied Rule 403 here, according to the panel, because it reflects a misunderstanding of what constitutes unfair prejudice, i.e., evidence that would “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” [Emphasis in original].

Lastly, with respect to the financial gain Bajoghli allegedly earned by charging his healthcare benefits providers for work that Bajoghli allegedly sent off to outside contractors (who completed the work at a fraction of what Bajoghli purportedly received), the Fourth Circuit and the government concurred again, in that this evidence of financial gain was probative of intent to defraud.

Thursday, May 07, 2015

District Court's Advocacy of Plea Bargain Requires Vacation of Plea

US v. Braxton: Braxton was charged with possession with intent to distribute more than 1 kilogram of heroin. His attorney advised him during plea negotiations that, if he went to trial, the Government could file an information increasing his mandatory minimum sentence if convicted from 10 to 20 years. Braxton at first requested a new attorney, but later withdrew the request. He insisted on going to trial, however, before which the Government filed the information.

On the day of trial, the court memorialized the last plea offer that Braxton rejected (he would admit he possessed the heroin, but he wanted to put the Government to its proof) - the Government would withdraw the information and argue for a sentence of 15 years. Braxton again asked for new counsel or, in the alternative, to represent himself. Both of those requests were denied. Wading into the dispute between Braxton and his attorney, the district court expressed reluctance at letting Braxton go to trial, said Braxton was "hurting [his] own interest," and compared his decision to "put[ting] [your] head in a buzz saw that makes absolutely no sense." After a couple of breaks in the proceedings, Braxton changed his mind and agreed to plead guilty. Braxton said he didn't feel coerced or pressured into pleading, although the district court had expressed its concern that he was "unwisely proceeding to trial before a jury." Braxton unsuccessful tried to withdraw his plea and was sentenced to 138 months in prison.

On appeal, the Fourth Circuit vacated Braxton's conviction. Relying on last year's decision in Sanya, the court concluded that the district court had improperly participated in plea negotiations in violation of Rule 11 of the Rules of Criminal Procedure. As in Sanya, the court's "commentary was extensive and persistent, and continued unabated" through the day of trial. In addition, Braxton's change of heart came after one of the district court's more pointed bits of commentary (opining that he "shouldn't put his head in a vice and face a catastrophic result"). The error was plain, affected Braxton's substantial rights, and had to be noticed. It was irrelevant that Braxton said, at the time, that he was entering the guilty plea voluntarily. The court also rejected the Government's argument that the district court was drawn into the issue by Braxton's request to represent himself, noting that issue was resolved before the district court really got going on why he should enter a guilty plea.

Erroneous Career Offender Calculation Cannot Be Corrected in 2255 Proceeding

US v. Foote: Recall last year when the Fourth Circuit, in Whiteside, first concluded that an incorrect career offender calculation due to a Simmons error could be remedied in a 2255 proceeding and then, en banc, concluded that it could not. The issue in Whiteside specifically was the technical 2255 issue of whether the motion in that case (filed within a year of Simmons being decided) was timely. Thus, Whiteside didn't technically address the central substantive issue of whether an erroneous career offender designation could be remedied in a 2255 proceeding. Foote takes that issue head on and, unsurprisingly, comes to a similar conclusion.

Foote pleaded guilty to distributing crack. He was classified as a career offender based, in part, on a pair of prior North Carolina drug convictions that, under Fourth Circuit precedent at the time, carried a potential maximum sentence of more than one year in prison. He challenged the career offender determination on appeal (unsuccessfully) and then in a timely 2255 motion. Simmons was decided while Foote's 2255 motion was pending, showing that his priors were not felonies (because he was not subject to a maximum sentence of more than one year) and he was not, therefore, a career offender. The district court denied the motion, but granted a Certificate of Appealability on the issue of whether the error could be remedied in a 2255 proceeding.

On appeal, the Fourth Circuit concluded that it could not and affirmed the denial of the 2255 motion. Noting that a sentencing error (that does not impact constitutional or jurisdictional claims) can only be remedied in a 2255 proceeding if the error is "a fundamental defect which inherently results in a complete miscarriage of justice," the court concluded that "sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet this remarkably high bar." The court noted that, in general, Guideline errors are not subject to 2255 review in the Fourth Circuit. It also recognized that other circuits had drawn a distinction between career offender errors under a mandatory system (2255 applies) and advisory system (2255 doesn't apply). The court rejected Foote's attempt to stretch the Supreme Court's "actual innocence" cases to include sentencing errors (much less advisory Guideline calculation errors). In conclusion, the court expressed "frustration" at the result (pointing out that Foote had done everything correctly in order to challenge his sentence), but that "the guidance of the Supreme Court and Congress is clear" and it "ties our hands."

Thursday, April 16, 2015

NC Second-Degree Kidnapping Is Crime of Violence

US v. Flores-Granados: Flores-Granados was convicted of second-degree kidnapping in North Carolina in 2007, after which he was deported to his native Honduras. In 2013, he was found in Virginia and eventually pleaded guilty to reentering the country illegally. At issue at sentencing was whether his prior conviction was an "aggravated felony" or "crime of violence" under 2L1.2(b)(1), resulting in an enhancement of either 8 or 16 offense levels. The district court concluded that the conviction was a crime of violence, based on the actual facts underlying the conviction (Flores-Granados broke into a home, threatened the use of a gun, and stabbed the victim with a screwdriver) that showed "the type of violent conduct which justifies the 16-point enhancement."

Flores-Granados appealed his sentence, which the Fourth Circuit affirmed. Although it agreed (and the Government conceded) that the district court erred by analyzing the underlying facts of the prior conviction, rather than the elements or (at most) the Shepard-approved documents, the district court's ultimate conclusion was correct. The court noted that kidnapping is a specifically listed "crime of violence" in the Guidelines and that the elements of second-degree burglary as defined by the North Carolina courts, fall within the generic definition of burglary contemplated by the Guidelines. As the court concluded, "[p]ut simply, the statute is what we mean when we say 'kidnapping.'"

Convictions for Somali Pirates Affirmed

US v. Beyle: Beyle and his codefendant, Abrar, were involved in a Somali pirate raid against a US sailboat, the Quest, which resulted in the death of four Americans on board and the intervention of the US Navy. Both were convicted of 26 counts related to the raid, including murder within the special maritime jurisdiction of the United States (which includes the "high seas") and discharge of firearms during a crime of violence and sentenced to multiple life sentences (some concurrent, some consecutive).

Beyle and Abrar both appealed their convictions, on different grounds, which the Fourth Circuit affirmed. As to Beyle, he argued that the district court lacked jurisdiction on the murder and firearm charges because they took place not on the "high seas" but in Somali territorial waters. The raid occurred in the middle of the Indian Ocean, but the Quest was turned by the pirates toward the Somali coast and was about 30 miles from the coast when the Navy intervened. While that was within the "exclusive economic zone" of Somalia, it was not within the more narrowly defined "territorial waters, which, by international treaty (to which Somalia is a party), extend only 12 miles from the coast.

As to Abrar, he argued that he was denied Fifth and Sixth Amendment rights with regard to his defense of duress - that he had been kidnapped and forced to take part in the raid. The court concluded that his inability to subpoena witnesses was not the fault of the United States, but simply due to the fact that the witnesses were foreign nationals residing in other countries. In addition, there was no evidence that the witnesses actually existed. Therefore, Abrar was not prevented from developing and presented a duress defense.

Lifetime Supervised Release Term Reasonable for CP Defendant

US v. Helton: Helton pleaded guilty to being in possession of child pornography. In a statement to police following the seizure of his computer, Helton admitted the possession, denied sharing it with others, and explained that he had "sought treatment in the past." He was sentenced to 60 months in prison, below the advisory Guideline range, and to a lifetime term of supervised release.

On appeal, the Fourth Circuit affirmed Helton's lifetime term of supervised release. First, the court concluded that there were no procedural errors in the imposition of the sentence. It rejected Helton's argument that the district court had not provided sufficient explanation for why a lifetime term of supervised release was "sufficient, but no greater than necessary." In particular, the court stressed that the district court had concluded that a variance for the term of imprisonment was only appropriate "because she knew that Helton would be subject to a lengthy term of supervised release" and that the district court upheld several of Helton's objections to strict optional conditions of supervised release. Second, the court found the lifetime term (which it described as within the statutory and Guideline ranges) was also substantively reasonable, largely for the same reasons.

Judge Gregory wrote a concurring opinion, in which he praised the district court for "display[ing] courage in varying downward" and hoping that "[p]erhaps, in the future, our Guidelines will evolve to become truly proportional to the severity of our crimes."

NOTE: I argued the case on appeal for Helton.

No Prejudice In Failure to Make Jury Perform Pinkerton Analysis

US v. Rangel: Rangel was convicted at trial of various drug charges, including distribution of more than 1000 kilograms of marijuana, which carried a 120-month mandatory minimum sentence. The jury made a finding that the conspiracy involved that much marijuana, but  was not instructed to determine the amount attributable to Rangel himself under a Pinkerton liability analysis. He was sentenced to 121 months in prison, the bottom of the Guideline range. Rangel filed a 2255 motion, arguing that both trial and appellate counsel were ineffective for failing to request a Pinkerton instruction and that trial counsel was ineffective for failing to object to the amount of relevant conduct attributed to Rangel at sentencing. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the dismissal of Rangel's 2255 motion. With regard to the instruction issue, the court agreed (and the Government conceded) that the jury was not properly instructed and should have been required to perform a Pinkerton analysis in rendering a verdict. Therefore, trial counsel's performance fell below the standard required. However, Rangel was unable to show prejudice because he could not show "a reasonable probability of a different result" at sentencing. Reviewing the evidence at trial, the court concluded that "Rangel's sentence would have been the same with a proper jury instruction" in light of the "overwhelming" evidence against him. Furthermore, the district court would have made the same findings with regard to relevant conduct and the Guideline calculation would have been unchanged. The same analysis applied to appellate counsel's performance, as he would have been saddled with plain error review had the issue been raised. Finally, the same prejudice analysis applied to trial counsel's failure to object to the relevant conduct calculations at sentencing.

Tuesday, March 31, 2015

RICO convictions affirmed

US v. Cornell, et al.:  In this appeal, three members of the Latin Kings based in Greensboro, North Carolina, challenged their convictions for conspiracy to violate RICO, asserting trial errors in the jury instructions and a lack of sufficient evidence to support their convictions.

The defendants made several joint arguments: 1) that the government failed to establish that the RICO enterprise affected interstate commerce; 2) the jury instruction on RICO was erroneous because, in the defendants’ view, the district court was required to charge the jury that it had to unanimously agree upon the specific acts that the co-conspirators engaged in during their conspiracy; and 3) the district court gave improper Allen charges, the second of which coerced the jury into an unfavorable verdict.

The district court applied the “minimal effects” standard to determine whether a RICO conspiracy existed.  The Fourth Circuit panel approved the district court’s approach, based on circuit precedent, despite the defendants’ reliance on a Sixth Circuit case, which held that when a gang is not shown to have conducted considerable economic activity, the government must prove that the RICO enterprise substantially effected interstate commerce.  The panel here found that the Sixth Circuit case was not the law, nor did the panel find that case particularly valid in light of a more recent Supreme Court case to the contrary.  Further, even if the Sixth Circuit case did apply here, the district court found evidence that the RICO conspiracy here involved multiple acts of bank fraud, from a false check scheme, as well as the fact that the gang used their cell phones and carried guns during multiple robberies; all of which were economic activities that would trigger a connection to interstate commerce, according to the Fourth Circuit.

With regard to predicate acts, the Fourth Circuit held that there was no requirement that the district court had to instruct the jury as to specific acts that the conspirators engaged in during the conspiracy.  The panel noted that the Supreme Court has held that the RICO conspiracy statute contains no requirement of some overt or specific act, and that the conspirators merely must agree on the same criminal objective, regardless of whether that objective is acted upon or carried out.  So, the panel held that directing a jury to identify what predicate acts occurred is not required.

The defendants argued that the effect of the Allen charges to the jury was improperly coercive.  The Fourth Circuit panel found the district court did not abuse its discretion in the Allen charges it gave to the jury, after analyzing the language of the instruction, its incorporation with other instructions, the timing of the instruction, and the length of the jury’s subsequent deliberations.  The jury here deliberated some three hours after the second Allen charge before returning a verdict, and the jury returned a split verdict, acquitting three co-defendants and finding predicate acts in 5 out of 9 possible categories submitted for review, indicating that the jury carefully considered the evidence against each defendant.

Two defendants raised separate, individual challenges, regarding trial evidence, specifically the striking of one defense witness’s testimony, the admission of a letter written to one defendant purportedly from a former gang member, as well as whether one defendant, a non-gang-member, was properly included in the conspiracy, and the sufficiency of the evidence supporting a portion of the jury’s verdict.  The Fourth Circuit panel found no merit in any of these individual claims of error; it affirmed the judgment of the district court.