Monday, January 11, 2016

Ex-husband attempts to extort alimony payments

US v. White:  William White had received a 30-month sentence for making threatening phone calls to a university administrator and sending letters of intimidation to several tenants that filed a fair housing complaint against him in 2010.  He had appealed his conviction and sentence, and the Fourth Circuit remanded his case for re-sentencing on May 14, 2012.  Out on supervised release, Mr. White failed to appear for re-sentencing, having absconded to Mexico.  White’s then-estranged wife, with whom he had at least an informal alimony agreement, stopped making alimony payments when she learned he was “on the lam” because she feared that she’d be charged with aiding a fugitive.  White began threatening her to get his cash.  The woman he went to Mexico with began cooperating with the FBI; Mr. White’s attempts to extort his ex-wife formed the basis for this case.   After an anonymous jury convicted him (he also had a prior history of interfering with witnesses and a juror) for felony transmission of threats through interstate commerce with the intent to extort, as well as the lesser-included offense of transmitting a threat (without the intent to extort), White received a 92-month federal sentence.

On appeal, White challenged the sufficiency of the evidence presented at trial, and disputed the procedural and substantive reasonableness of his sentence.  The Fourth Circuit affirmed.  The main focus of White’s appeal concerned the legal requirements for his convictions, specifically whether he could have intended to “extort” alimony payments to which he claims he was legally entitled.  While the instruction that the district court gave at trial was erroneous in light of the Supreme Court’s 2015 decision in Elonis v. United States (a case which considered true threats and the limits of speech on social media), the Fourth Circuit held that the error here was harmless, the jury having “soundly rejected” White’s defense that he did not send any emails to his ex-wife.  After Elonis, a conviction pursuant to § 875(c) requires that the following three elements be met: 1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; 2) that the defendant subjectively intended the communication as a threat; and 3) the content of the communication contained a “true threat” to kidnap or injure.

One district judge's two cents on the guidelines

US v. Martinovich:  In this appeal, the Fourth Circuit upheld the appellant’s convictions in connection with his investment consulting activities, but vacated the sentence imposed for the district court’s insistence on referring to the advisory federal sentencing guidelines as mandatory.  What’s more, the district court’s “ill-advised comments and interference” at trial were so “imprudent and poorly conveyed” as to narrowly miss depriving the appellant of a fair trial.  Further, the Fourth Circuit ordered that a different judge be assigned to handle sentencing upon remand.

A jury convicted Martinovich after a four-week trial, and he was sentenced him near the low end of the guidelines, 140 months, with fines & restitution totaling $1.76 million.  The government had charged Martinovich with defrauding clients of his investment firm and a subsidiary hedge fund group, alleging that he invested client funds in a solar energy company in anticipation of large returns from the company’s planned initial public offering, which the company eventually abandoned (and it subsequently filed for bankruptcy).  Earlier, Martinovich had persuaded a shareholder of the energy company to provide inflated valuations of the company’s stock, so Martinovich could collect higher fees.  His convictions included conspiracy to commit mail and wire fraud, wire fraud, mail fraud, and money laundering.

Martinovich argued on appeal that the district court improperly interfered with the trial proceedings and misstated the law during his sentencing proceedings.  While the Fourth Circuit found that the district court had, indeed, erred in interrupting trial and interfering with the defense’s presentation of its case, the error did not give rise to prejudice, in light of the “overwhelming” evidence of Martinovich’s guilt.  Moreover, Martinovich’s attorneys did not object at trial to the district court’s conduct.  The Fourth Circuit held that Martinovich had not been deprived of a fair trial.

The panel did agree, however, that Martinovich’s sentence was improperly imposed as a result of the district court’s insistence, despite objections from both the government and defense counsel, that the guidelines were mandatory.  The Fourth Circuit also determined that it would be futile to remand the case for re-sentencing before the trial court, so it remanded with instructions for a new judge to be assigned for re-sentencing.

Monday, December 21, 2015

Officer Lie About Having Search Warrant Required Suppression

US v. Rush: Rush was a guest at the apartment of Wills, who suspected he was selling drugs. She called police and asked them to remove him from her apartment. She met them at her place of employment, signed a consent to search her apartment, and provided officers with the key. Officers went to the apartment, bust in yelling "police!," and rousted Rush out of bed, putting him in handcuffs. When he asked what was going on, one of the officers lied and said they had a warrant to search the apartment. That they did, finding crack cocaine (at Rush's direction). Rush was cooperative, providing information about his supplier. The officers left without arresting Rush, or otherwise ejecting him from the apartment (he later went to the station, talked to the police some more, and was again released). He was eventually charged with possession with the intent to distribute crack and moved to suppress the evidence recovered in the apartment.

The district court found that the lie about the warrant kept Rush from exercising his right to refuse the consent search under Randolph, but declined to suppress the evidence because the lie was motivated by the officer's desire to protect Wills (by not informing Rush that she called the police on him). Rush entered a conditional plea, was sentenced to 12 months and a day in prison, and left on bond pending appeal.

On appeal, the Fourth Circuit reversed, concluding that the evidence from the apartment should have been suppressed. The court concluded that the good-faith exception to the exclusionary rule did not apply because Rush's case "bears no resemblance to the previous applications of the good-faith exception" because "the search was unconstitutional due to the intentional decision" of the officer to lie about having a search warrant. There was "no doubt that a reasonable officer would know that deliberately lying about the existence of a warrant would violate Defendant's Fourth Amendment rights." The officer's decision to lie was "deliberate, contrary to long-standing precedent and objectively unreasonable." The court also rejected the Government's argument that the alleged reason for the lie (protecting Wills) was relevant, given that the analysis was objective, not subjective (and doubted whether it was true, anyway).

Congrats to the Defender office in SDWV on the win!

Acquiescence After Abandonment Avoids Fourth Amendment Problems

US v. Stover: Stover was sitting in a parking lot in a SUV, along with a passenger, when police arrived, Police decided to investigate because the SUV had out of state plates, was in a high crime area, and had not moved in some time. When an officer approached the SUV, Stover got out, opened the rear driver's side door, then walked to the front of the SUV and tossed a gun away. At all times, the officer was ordering Stover to get back in the car, but Stover never said anything. He only got back in the car once the gun had been tossed away. The gun was recovered and Stover was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the police didn't have reasonable suspicion to justify a stop. The Government agreed, but argued that Stover wasn't "seized" until the gun had been tossed away (and thus abandoned) because he hadn't acquiesced to any of the officer's commands up to that point. The district court agreed and denied the motion.

On appeal, the Fourth Circuit affirmed, 2-1 noting that the question was not whether Stover was seized, but when he was seized. The court held, contrary to the Government's position, that Stover was seized when the officers pulled up and began giving him orders, for at that point he would not have felt that he was free to leave. However, the court agreed with the Government that Stover's conduct after that point showed that the district court did not clearly err in concluding that he did not acquiesce until after the gun had been tossed away. The court distinguished prior case where someone acquiesced before the discovery of contraband and noted that things might be different if Stover had dropped the gun while he remained seated in the car, as per the officer's orders.

Judge Gregory dissented, arguing that while the majority used the right analysis, it did not consider all the relevant facts and reached the wrong conclusion.

Tuesday, December 15, 2015

Sentencing Reduction for Defendant With Mandatory Minimum and Substantial Assistance

US v. Williams: Williams (a completely different one from above - even though they both came out of the same district and same judge!) pleaded guilty to distribution of crack cocaine in 2008, a plea which, thanks to an 851 information, carried a mandatory minimum sentence of 20 years. Williams's Guideline range, however, was only 130 to 162 months. Williams received a substantial assistance departure and was sentenced to 180 months. Williams moved for a reduced sentence under 18 USC 3582 when recent amendments to the Guidelines reduced his range to 77 to 96 months. Although the Government joined in the motion, the district court denied the reduction, concluding that Williams's sentence was based on a statutory mandatory minimum, not a Guideline range, and that mandatory minimum (and subsequent departure) had not been changed.

On appeal, the Fourth Circuit reversed the district court's decision, 2-1. The court held that a recent amendment to USSG 1B1.10 that addressed situations such as these - where a statutory substantial assistance motion allowed the district court to impose a sentence below a mandatory minimum - overrode prior Fourth Circuit case law and made Williams eligible for a reduction. Specifically, in these cases the statutory mandatory minimum does not become the Guideline range as it otherwise would. Because Williams's Guideline range (regardless of any statutory requirement) goes down, he is eligible for a reduction. The court remanded to the district court to determine whether a reduction was appropriate and, if so, the extent of such a reduction.

Chief Judge Traxler dissented, arguing that Williams's sentence was "based on a statutory mandatory minimum" that has not been lowered by Congress and that the Sentencing Commission has no power to alter.

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

Collection of Innocent Factors Doesn't Add Up to Reasonable Suspicion During Traffic Stop

US v. Williams: Williams was in a car that was pulled over on the Interstate in North Carolina, just behind a car drive by his brother (which was also pulled over). Williams was given a written warning for speeding, but was then asked by the officer if there was anything illegal in the car. Williams said no and denied consent to search the car. The officer then told Williams to "hold on" while another officer conducted a dog sniff of the car, The dog alerted and drugs were found in the car. Less than three minutes passed between Williams getting the warning and the dog's alert. Williams moved to suppress the evidence discovered as a result of the search. The district court denied the motion after holding two hearings on the matter, concluding that the officers had reasonable suspicion based on four factors, that: (1) Williams was in a rental car; (2) he was on a "known drug corridor" after midnight; (3) his travel plans were inconsistent with the date by which the rental car needed to be returned; and (4) he was unable to provide a permanent home address, having given a PO Box (which differed from the address on his New York drivers license) and stated that he lived sometimes with his girlfriend in New Jersey.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. The court found that the factors relied upon by the district court did not create reasonable suspicion that criminal activity was afoot. For example, none of the officers "explained any connection between use of a rental car and criminal activity." Similarly, while the Interstate may be a known route for drug traffickers, "the number of persons using the interstate highways as drug corridors pales in comparison to the number of innocent travelers on the road." That the rental agreement seemed inconsistent with travel plans was also irrelevant because rental agreements could be easily extended or modified and "no reasonable, articulable suspicion of criminality arises from the mere fact that Williams's travel plans were likely to exceed the initial duration of the rental agreement." Finally, as to the addresses, none of the officers "explained how using a post office box address, or living in New York or New Jersey, raised some suspicion of criminal activity." Even taken together, the four factors "fail to eliminate a substantial portion of innocent travelers" and did not provide reasonable suspicion to extend the stop.

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

Court Tears Apart Factual Support for Heroin Convictions

US v. Blue: Baltimore cops were surveilling a potential drug operation that eventually brought them to Blue, who met briefly with the target of their surveillance and gave him a "brownish-tannish item." Blue walked away, while the target was arrested and found in possession of almost 50 grams of heroin. A month later investigators surveilled Blue himself, following him to an apartment complex which he entered, then exited five minutes later "holding a sandwich-sized, cloudy white container in his hand." Investigators followed Blue to another brief meeting then arrested him. Following his arrest, Blue admitted that the brief meeting had been to discuss a drug deal. Blue was found in possession of a key to an apartment in the complex where he had been followed earlier in the day, a search of which uncovered 108 grams of heroin. There was no indication that Blue lived in the apartment or had any connection to the people who did. Blue was charged and convicted at trial of conspiracy to possess with intent to distribute more than 100 grams of heroin (Count 1 - based on the first incident) and possession with intent to distribute more than 100 grams of heroin (Count 3 - based on the second incident).

On appeal, the Fourth Circuit reversed both of Blue's convictions because there was insufficient evidence to support them. On Count 3, the court held that the fact that Blue possessed the key to the apartment where he (presumably - nobody saw which apartment he entered) stayed for five minutes was "insufficient evidence to establish his constructive possession of the heroin found" in the apartment. It rejected the Government inference that Blue used the apartment as a stash house as "an unreasonable one given the complete lack of evidence establishing any connection to any of the occupants." Nor was the "sandwich-sized plastic container" of any probative value, as it was never linked to heroin. The court also rejected the Government's reliance on an Eighth Circuit holding that someone in possession of a key to a dwelling has constructive possession of its contents. Count 1 suffered the same fate, as the only way the Government could reach the 100-gram threshold was to bring in the heroin seized from the apartment which, the court had already ruled, wasn't sufficiently tied to Blue.

Congrats to the Defender office in Maryland on the win!

Separate Sources for Child Porn Images Defeat Double Jeopardy Claim

US v. Schnittker: Schnittker was charged with two counts related to child pornography, one for receipt and one for possession. The charges were based on evidence found during a search of his home, including two hard drives, one Western Digital and one Maxtor. Both counts of the indictment spoke generally of "child pornography" being possessed, but during plea negotiations the Government informed Schnittker that the possession charge would be based on images found on the Western Digital drive, while the receipt charge was based on images found on the Maxtor drive. Although the drives had some overlap in terms of images, each had images unique to it. Schnittker pleaded guilty to the possession charge. The statement of facts at the plea hearing referenced the Western Digital drive, but didn't mention the Maxtor. Schnittker then went to trial on the receipt charge, where the Government used his guilty plea on the possession charge as 404(b) evidence against him. The district court denied Schnittker's motion to dismiss that charge on double jeopardy grounds and convicted him on receipt.

On appeal, the Fourth Circuit affirmed the district court's decision denying Schnittker's double jeopardy challenge. The court assumed that the two offenses (possession and receipt) were the "same in law" and moved on to determine they were also "the same in fact." The court concluded that they were not because of the different sources of the images at issue in each charge, holding that an "objective person in Schnittker's position would have understood that he was pleading guilty to possession . . . only in regard to the child pornography on the Western Digital hard drive." Because the receipt charge involved the Maxtor drive and at least one unique image from that drive "the two offense at issue in this case were not the same in fact."

Thursday, December 03, 2015

Statutory penalties for priors controlling, not the sentence received

US v. Sellers:  James Morris Sellers challenged his qualification as an armed career criminal at sentencing for the unlawful possession of a firearm.  He had three prior South Carolina drug convictions for which he had been sentenced under South Carolina’s Youthful Offender Act.  This Act permits lower maximum penalties for certain offenders, a cap of six years of incarceration.  On appeal, Sellers argued that his priors did not qualify him as an armed career criminal because the sentences he had received were not sufficiently long enough to qualify as predicate offenses.  Here, the Fourth Circuit rejected Sellers’ argument that his sentences under the Youthful Offender Act did not qualify as ACCA predicates, reaffirming its earlier cases, Simmons and Williams.

The Fourth Circuit earlier held that whether a prior conviction qualifies as a predicate for a federal sentencing enhancement depends on the statutory penalty for the prior conviction, not the sentence the defendant may have received.  Sellers argued here on appeal that this holding was no longer good law, but the Fourth Circuit rejected that argument, holding instead that the maximum statutory penalty for the prior conviction(s) is unaffected by the state court’s exercise of its discretion to sentence a defendant to less than the maximum penalty.  Sellers, then, had properly been categorized as an armed career criminal for his three prior drug crimes, and the Fourth Circuit affirmed his sentence.

Loss calculation leads to remand

US v. Qazah:  Kamal Qazah and his uncle, Nasser Alquza, received charges for conspiracy to receive and transport stolen cigarettes, conspiracy to commit money laundering, and money laundering.  Qazah received an additional charge for receiving cigarettes purportedly stolen in interstate commerce.  After a jury convicted Qazah and Alquza of these charges, Alquza appealed the district court’s denial of his pre-trial motion to suppress evidence recovered during a search of his home; Qazah appealed the denial of his pre-trial motion to sever.  Both defendants appealed their sentences, specifically the district court’s calculation of the loss amount for which they were held responsible, by relying upon the retail as opposed to wholesale value of the purportedly stolen cigarettes.   The Fourth Circuit upheld the convictions, but vacated the defendants’ sentences for further evidence gathering on the loss calculation.

In its calculation of loss analysis, the Fourth Circuit examined the district court’s basis for its use of the retail value of the stolen cigarettes in determining the defendants’ sentences.  The district court believed that it was obliged to apply the “greatest intended loss” as between the wholesale and retail value of the cigarettes, regardless of whether the value in fact represented a loss.  The retail value of the cigarettes here was $3k per case, and the wholesale value was $2,126 per case.

The parties agreed, as did the district court, that the “intended loss” rather than “actual loss” is the relevant measure under the guidelines.  The general rule that guides the Fourth Circuit is that loss is determined by measuring the harm to the victim, one of whom was Phillip Morris.  The cigarette company’s loss would have been the amount it would have otherwise received for selling the cigarettes, which the record indicated was $2,126 per case (8,000 cases were involved).  The Fourth Circuit noted, however, that there may have been other victims here, e.g. the states that did not make money on the taxes on cigarettes lawfully sold, and sales that legitimate retailers may have made.  The identities, then, of the intended victims and their losses are questions of fact for the district court to resolve, so the Fourth Circuit vacated and remanded.

Tuesday, November 17, 2015

Insufficient evidence of "purpose"

US v. Palomino-Coronado:  In this appeal, the defendant challenged his conviction for one count of enticing a minor to engage in sexual conduct for the purpose of producing a visual depiction of that conduct.  In this case, there was only one photograph involved.  Further, at trial, expert testimony revealed that during the course of the investigation, the child forensic interviews were coercive and did not follow established protocols.  The defendant moved for an acquittal at the close of the government’s case, based on insufficient evidence, which the district court denied.  The jury found the defendant guilty.  On appeal, the Fourth Circuit determined that the district court erred in denying the defendant’s Rule 29 motion, reversing and vacating the conviction.

As a matter of first impression, the Fourth Circuit considered a sufficiency of the evidence challenge to the statute at issue here, and focused its analysis on what evidence may show that a defendant acted with purpose.  The Fourth Circuit stated that many times, courts are left with only circumstantial evidence to demonstrate a defendant’s purpose.  The Fourth Circuit also found instructive the cases wherein the number of sexually explicit recordings or depictions as indicators of purpose, as well as evidence presented of “purposeful conduct,” considering the types of photography or video tools used.

On appeal, the defendant here argued that the government failed to prove that he acted for the purpose of producing a visual depiction [emphasis in original], as the government had offered only one cell phone image of sexually explicit conduct with the victim, a photo that the defendant had deleted from his phone.  Without more, the Fourth Circuit concluded, the facts of the case did not support the conclusion that the defendant here acted in order to take a picture, as required by the statute of his conviction.

On rehearing, indictment properly dismissed

US v. Vinson:  Vinson filed a petition for rehearing after a Fourth Circuit panel earlier (see here) vacated the district court’s order granting his motion to dismiss the indictment against him, asserting a new basis for affirming the dismissal of his indictment.  On rehearing, the Fourth Circuit changed course, affirming the district court’s order dismissing the indictment.

The Fourth Circuit begins its analysis here by stating that Vinson did not raise the issue it finds dispositive in his opening brief to the Fourth Circuit or the district court; the rule precluding consideration of issues for the first time on appeal to the Fourth Circuit is prudential, not jurisdictional, so the Fourth Circuit determined that under the circumstances presented in this case, it would exercise its discretion to consider the issues Vinson raised in his petition for rehearing.

Vinson raised the issue of whether Vinson’s conviction under North Carolina’s assault and battery statute qualifies as a conviction for a misdemeanor crime of domestic violence (“MCDV”).  The Fourth Circuit held here that none of the categories of assault under North Carolina law have elements matching the elements of an MCDV under 18 U.S.C. §921(a)(33)(A), so the district court properly dismissed the indictment against Vinson.

Monday, November 02, 2015

ACCA Sentence Based on South Carolina Burglary Convictions Vacated

US v. McLeod: McLeod pleaded guilty to being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act based on several prior South Carolina burglary convictions, even though McLeod argued that his convictions did not match the generic definition of burglary. He was sentenced to 188 months in prison.

On appeal, McLeod argued (among other things) that the South Carolina convictions didn't meet the generic definition of burglary with regard to the location involved. The Fourth Circuit agreed and vacated his sentence. The court held that while the South Carolina statute involved burglary of a "building" and "appears at first glance to parrot the language of generic burglary," the term "building" is defined as including "any structure, vehicle, watercraft, or aircraft." The district court could apply the modified categorical approach to determine which type of "building" was involved. However, a closer review of the relevant plea transcript show that McLeod actually pleaded guilty to a different form of burglary, although one with an equally broad definition of the place to be broken into (a "dwelling" instead of a "building"). Because the Government could present no appropriate documents to show which of the various "dwellings" McLeod broke into it could not show that his prior convictions qualified as ACCA predicates.

Obstruction Enhancement OK'd Based on False Alibi Testimony of Defense Witnesses

US v. Andrews: Andrews robbed a pizza joint, making off with some cash and the manager's wallet. Pursuing police found an abandoned car, in which they found two wallets (the manager's and Andrews's), a cell phone with pictures of Andrews's family, a traffic ticket with his name on it, and a "bill of sale showing that Andrews owned the vehicle." Officers also found a cap that matched the description of the robber and was matched to Andrews via DNA testing. He was charged with Hobbs Act robbery and using a firearm in relation to a crime of violence. Prior to trial he gave notice of an alibi defense (as well as filing a pro se motion suggesting the prosecutors were intimidating witnesses). The defense was provided by two witnesses, Andrews's mother and girlfriend, who testified that Andrews was at home the night of the robbery. Andrews didn't testify. He was convicted on all counts. At sentencing, his sentence was enhanced for obstruction of justice based on his "prior knowledge of the false testimony" provided by his alibi witnesses and his "subsequent silence during trial."

Andrews appealed only his sentence, particularly the imposition of the obstruction enhancement, which the Fourth Circuit affirmed. While the court noted that the paradigmatic example of the enhancement applying after a trial is perjury on the defendant's part, or subornation thereof, it is "warranted if the court below made a proper finding of obstruction even if it did not specifically find the subornation of perjury." The court also rejected the application of de novo review, stressing the discretion involved by the district court after evaluating evidence. In this case, the district court rested "the enhancement on the very essence of [obstruction] - the willful obstruction of justice" because of Andrews's knowledge of the false alibi testimony, at least after the first alibi witness had testified.

Lack of Proabable Cause Dooms Search Undertaken After Traffic Stop

US v. Patiutka: Patiutka was pulled over on an Interstate in Virginia for failure to maintain a lane. He gave the name Roman Pak to the officer who, although he thought Patiutka might have been lying to him, "asked no follow-up questions about Patiutka's purported lie." The officer gave Patiutka a verbal warning, told him was "free to go," but later testified that "in his mind, [Patiutka] wasn't free to leave" because he "intended to reengage Patiutka in conversation and obtain consent to search the car." The officer got what he thought was consent, which led other officers (who arrived during the stop) to search the car and find a credit card reader and "four new, unopened iPads" sitting in a suitcase. Patiutka asked what was going on and objected to any search. The search stopped, but an officer announced he "was placing Patiutka in 'investigative detention'" and put him in a patrol car. The search resumed, further items indicative of credit card fraud were found, and Patiutka was taken to the police station, where he made "a number of incriminating statements."

Patiutka was charged with credit card fraud and identity theft and filed a motion to suppress the evidence found during the stop. At the suppression hearing, the officer who stopped him testified that Patiutka "would have ultimately arrested for providing a false ID" regardless of whether the search uncovered anything or not. The district court granted the motion, rejected several argument by the Government that the evidence was admissible under various exceptions to the warrant requirement in the Fourth Amendment.

On appeal, the Fourth Circuit affirmed the suppression, also rejected the Government's arguments to avoid the Fourth Amendment's warrant requirement. First, the court rejected the argument that the search was done incident to a lawful arrest, namely for the state offense of providing false identity information to the officer. The court noted that there was no probable cause to support such a charge at the time Patiutka revoked his alleged consent and that the district court's conclusion that the officer's testimony wasn't credible (based on video of the stop) was not clearly erroneous. Second, the court rejected the Government's argument that the automobile exception meant a warrant was not required by holding that, regardless of a warrant, there was no probable cause to continue the search once Patiutka revoked his alleged consent. The items that had been found by that point could be legally possessed and "innocuous explanations for a driver's possession of these items abound."  Furthermore, collective knowledge of the officers could not save the search because the information that the first officer would have imparted to the others was, as the court already held, insufficient to support probable cause anyway.

Lack of Particularized Evidence of Wrongdoing Dooms Stop

US v. Slocumb: A bunch of police officers arrived at the parking lot of a business (closed for the night) that they were going to use as a staging area for executing a search warrant nearby. The lot itself was known as a "place for drug activity."  Slocumb was there, along with his girlfriend and their child. Slocumb was transferring a car seat from one car to another. Slocumb explained that his girlfriend's car had broken down and he had come to retrieve her and the child. During the conversation Slocumb "did not make eye contact and gave mumbled responses," which the officer considered suspicious. Another officer said (to the first officer, not to Slocumb directly) that they were "not allowed to leave" and the rest of the officers went to execute the warrant. The officer left behind to guard Slocumb and his girlfriend later said that when he asked Slocumb about "his knowledge of drugs at the target house" he began acting "increasingly nervous and [did] not make eye contact." Slocumb, at some point during the conversation, told the officer his name was Anthony Francis. A second officer arrived and asked the girlfriend for Slocumb's name, to which she answered "Hakeem," a name "the officers recognized as someone who was under investigation for drug trafficking." Slocumb was arrested for providing a false name. Officers recovered $6000 in cash from Slocumb and drugs from where he had been sitting in his car. Slocumb admitted the drugs were his and that his girlfriend knew nothing about them. Slocumb unsuccessfully moved to suppress the evidence recovered from him and the car.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. The court held that although there were several general factors that might have supported reasonable suspicion to detain Slocumb, the only thing that might provide particularized suspicion of wrongdoing - Slocumb's own behavior - was not sufficient to meet that threshold. He did not flee, was not evasive with the officers, and his other behavior was not indicative of wrongdoing. Thus, the court concluded, viewed "in their totality, the factors cited by the district court do not amount to reasonable suspicion to justify Slocumb's seizure."

Departure Based on Old Juvenile Convictions OK

US v. McCoy: McCoy was charged with two drug charges at trial, at which the jury concluded he was responsible for between 500 grams and 5 kilograms of cocaine. Testimony at trial concerned three separate purchases of cocaine, one of which was "returned for poor quality." At sentencing, the probation officer included all three buys (including the "returned" one) as relevant conduct, producing a total of 7 kilograms and a guideline range of 135 to 168 months. McCoy argued for a sentence of 120 months (the mandatory minimum). while the Government sought an upward departure based on three juvenile convictions which did not factor in the Guideline calculations and a sentence of 192 months. The district court departed (to a slightly higher Guideline range than the Government requested) and imposed a sentence of 188 months in prison.

McCoy appealed, arguing only that his sentence was substantively unreasonable, for several reasons, all of which the Fourth Circuit rejected. First, the court rejected McCoy's argument that the district court should not have considered the juvenile convictions. The court noted that the district court was free to base a departure on convictions that were otherwise too old to count in the criminal history score and that the "seriousness of the juvenile crimes" demonstrated McCoy's likelihood of recidivism. Second, the court rejected McCoy's argument that the district court erred by departing to Criminal History Category V, rather than IV as the Government requested, noting that while the Government's request is an important consideration, it's not binding on the district court. In addition, though the district court's Guideline range was higher than the one requested by the Government, the actual sentence imposed was slightly lower. Finally, the court rejected McCoy's argument that his sentence overstated the seriousness of his offense. The court also pointed out that the proper remedy for the amendment of the Guidelines between sentencing and appeal was to file a 3582 motion seeking a reduction in the district court.

Friday, September 04, 2015

Defendant didn't forfeit his right to counsel

US v. Ductan:  In this appeal, the Fourth Circuit considered whether Phillip Ductan forfeited his right to counsel with some aberrant behavior.  Ductan, accused of conspiracy to distribute marijuana and carrying a firearm during his drug trafficking crime, appeared in court in May 2012 to answer charges dating back to September 2004.  Originally, Ductan appeared with retained counsel, who immediately moved to withdraw. That motion was granted following a hearing wherein the magistrate court and Ductan could not reach an understanding about Ductan’s representation (and some weird nonsensical behavior from Ductan), the result of which was the magistrate court’s finding that Ductan had forfeited his right to counsel.  Ductan’s appointed/stand-by counsel later attempted to withdraw, but that motion was denied and the case proceeded to trial.  Ultimately, Ductan represented himself and the jury found him guilty on all counts.  

On appeal, the Fourth Circuit determined that, based on its prior holdings, representation by counsel is the default position, because the access to counsel affects a defendant’s ability to assert any other rights the defendant may have.  Further, effective assertion of right to represent oneself requires a defendant to knowingly and intelligently forgo the benefit of counsel after being made aware of the dangers and disadvantages of self-representation.  The assertion of the right to self-representation must also be clear and unequivocal, so a crafty defendant cannot manipulate the 6th Amendment dilemma (there is a “thin line between improperly allowing the defendant to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation.”) to create reversible error.

Ductan argued on appeal that the right to counsel cannot be forfeited by misconduct, and no waiver occurred because he did not “clearly and unequivocally” declare that he wanted to proceed pro se; he wanted retained counsel, not court-appointed defense, and he did not want to represent himself.

Despite Ductan’s lack of cooperation with the magistrate court, essentially rejecting any option presented to him, he never acted out egregiously, in a manner that other courts have found justified forfeiture of the right to counsel (e.g., death threats, unprovoked physical assault).  The Fourth Circuit has not previously endorsed the holding that a defendant can forfeit the right to counsel, and it chose not to do so here.  Additionally, the Fourth Circuit held that Ductan did not waive his right to counsel, and even if he had, no valid waiver occurred because the magistrate court did not complete its Faretta inquiry.  The panel vacated Ductan’s conviction and remanded for a new trial.