Wednesday, July 29, 2015

Illegal re-entry 16-level bump error

US v. Parral-Dominguez:  Mr. Parral-Dominguez was arrested in North Carolina in 2010 in possession of more than an ounce of cocaine.  He pleaded guilty in state court to drug trafficking charges, and state authorities informed ICE of his illegal status; he had been previously deported in 2007.  He was indicted federally for illegal reentry at the end of 2013, and pleaded guilty in March 2014 without a plea agreement.

Parral-Dominguez made a single objection to the PSR, to a 16-level bump to his offense level for having been convicted previously of a crime of violence, arguing that as a matter of law, the North Carolina state offense of shooting into an occupied building (for which he had been convicted in 2007, which lead to his deportation) did not constitute a crime of violence.  The district court disagreed, and imposed the enhancement, and in its sentencing order, it relied heavily on an unpublished decision to conclude that the state offense was a crime of violence.  Parral-Dominguez appealed.

The Fourth Circuit resolved the issue in Parral-Dominguez’s favor, finding that the North Carolina state offense of discharging a firearm into an occupied building does not constitute a crime of violence for federal sentencing purposes.  The Fourth Circuit applied the categorical approach, finding that the statute at stake does not require that an offender use force against another person in order to complete the crime.

The Fourth Circuit found that this procedural error was not harmless because it could not say that regardless of the calculated Guidelines range, 65 months is the “only” sentence the defendant would have received, and the district court gave no indication that it would have imposed a similar sentence regardless of any procedural error.

Divided panel vacates dismissal

US v. Vinson:  The government appealed the district court’s order that granted the defendant’s motion to dismiss the indictment in this case; the defendant had been indicted for being a felon in possession after a consensual search of his residence revealed a rifle and ammunition, and in 2004, he had been convicted of misdemeanor domestic violence in North Carolina.  At issue is whether the prior conviction qualified Vinson as a person not to possess a firearm under 18 U.S.C. §922(g)(9).

This case arose from a January 2013 incident in which police received information that Vinson allegedly threatened his wife and children’s lives, and then fled.  The police put the kids’ school on lock-down and Vinson’s wife permitted the police to search their home, wherein the gun and ammo were discovered.  In making its determination on the motion to dismiss, the district court stated that, under the law, assault and battery charges don’t necessarily connote acts of violence.  The district court concluded that Vinson’s prior conviction did not qualify as a misdemeanor crime of domestic violence under the categorical approach.  The government appealed.

On appeal, the government argued that contrary to the district court’s conclusion, the modified categorical approach may be applied in this case, as the state statute of Vinson’s prior conviction is divisible because it has elements creating several different crimes, some of which match a generic federal offense.  The Fourth Circuit agreed with the government here, vacated the order dismissing the indictment, and remanded with instruction to reinstate the indictment against Vinson.

Judge Gregory dissented, arguing that the majority relied upon “tenuous suppositions, inapposite jury instructions, and the decision of a state intermediate appellate court (at odds with the state supreme court) to hold that assault is a divisible offense in North Carolina.”

Reversal of order requiring medication by force

US v. John Watson, Jr.:  In this appeal, the Fourth Circuit reversed the district court’s order that granted the government’s request to forcibly medicate Watson to attempt to make him competent to stand trial.  A divided panel concluded that the government had not met its burden of proving that forcibly medicating Watson, in particular, was substantially likely to restore his competency.  Watson had been indicted with several charges after he shot at a Coast Guard helicopter with a handgun.

The issue of whether to forcibly medicate a defendant to render them competent to stand trial is controlled by the Supreme Court’s 2003 decision in Sell v. United States.   In Sell, the Supreme Court developed a four-part test; each part must be proven to the “deliberately high” standard of clear and convincing evidence.

On appeal, the first two parts of the Sell test were at issue: whether the government showed important governmental interests at stake; and whether the government showed that involuntary medication would significantly further its interests, requiring proof that the medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects which would interest significantly with the defendant’s ability to assist counsel at trial.

The Fourth Circuit held that because the district court had clearly erred in finding that the government met its burden on the second prong of the test, it did not decide whether the district court erred with respect to its conclusions on the first prong of the Sell test.  With regard to the second part of the test, the Fourth Circuit discussed the lack of findings below that assessed the likely success of the government’s proposed treatment plan in relation to Watson and his condition in particular; the Fourth Circuit stated that the proper enquiry for courts is not whether the proposed treatment plan will work in general, but whether it will work as applied to a particular defendant.  The Fourth Circuit held that the district court did not undertake the searching and individualized assessment of Watson’s likely susceptibility to forcible medication that is required by law.

Further, by resolving the appeal issues in this case by deciding that the government has not justified forcible medication in this case, the Fourth Circuit determined that the district court’s order be reversed, rather than remanding the case to the district court for further proceedings.  The Fourth Circuit concluded that the district court had ample opportunity to assemble and defend the evidence necessary to meet its burden here, and it failed to do so.

Monday, July 13, 2015

Former Virginia Governor's convictions affirmed

US v. McDonnell:  Despite an impressive group of amici in support of his appeal, the former governor of Virginia, Robert McDonnell, lost the appeal of convictions he received following his five-week trial.  The Fourth Circuit affirmed the judgment of the district court.

Two most important issues on appeal: 1) McDonnell argued that the district court’s jury instructions misstated fundamental principles of federal bribery law; and 2) the government’s evidence was insufficient to support his convictions pursuant to the honest-services wire fraud statute and the Hobbs Act.  The Fourth Circuit was unpersuaded by each of McDonnell’s jury instruction claims, e.g. the instructions were over-inclusive, broad, incomplete, misleading, or unprecedented. Further, McDonnell claimed one instruction was a misstatement of the law, a statement with which the Fourth Circuit disagreed, finding the instruction “indisputably correct,” and “not erroneous with respect to the Hobbs Act extortion charges."  Further, one instruction that may have been debatable to the Fourth Circuit, that the subjective beliefs of a third party in an honest-services wire fraud case cannot “convert non-official acts into official ones,” was found to be harmless, if indeed an error occurred.    The Fourth Circuit held that McDonnell failed to show that the “official act” instructions, taken as a whole, were anything less than a “fair and accurate statement of law.”

McDonnell’s claim about the sufficiency of the evidence also failed on appeal, with the Fourth Circuit finding ample “official acts” of McDonnell exploiting the power of his office in furtherance of an ongoing effort to influence state university researchers.  The Fourth Circuit found his corrupt intent was evidenced by expensive vacations, accepting loans, etc., as well as shopping sprees, cash, golf outings and vacations, all free to McDonnell and his family.  These were not goodwill gifts from one friend to another, but gifts in exchange for official acts to help a pharmaceutical company secure independent testing for its product, Anatabloc, and that McDonnell acted in the absence of good faith in receiving them.  Thus, McDonnell failed in his efforts to sustain the burden of bringing a sufficiency of the evidence challenge.

Supervised release term of illegal re-entry sentence affirmed

US v. Aplicano-Oyuela:  Appellant Aplicano-Oyuela pleaded guilty to illegal re-entry via plea letter he submitted to the court, rather than plea agreement.  The PSR included a calculated guidelines range of 10 to 16 months, with the possibility of a supervised release term of up to three years.   Aplicano requested that the court impose a sentence of 8 months, but he did not address the suggested supervised release term in the PSR.  At sentencing, the district court repeatedly expressed its perceived belief of the likelihood of Aplicano’s recidivism, as well as his likely return to the US after deportation, and it imposed a 13-month term of imprisonment, to be followed by three years of supervised release, so that he could be punished for a long time should he choose to come back to the US and/or commit any further crimes.

On appeal, Aplicano challenged his 3-year term of supervised release, arguing that it is both procedurally and substantively unreasonable, and that his guilty plea was “fatally flawed.”  Since Aplicano did not object to his supervised release term until his appeal, the Fourth Circuit reviewed his issues for plain error only.  The Fourth Circuit began its analysis with a review of the supervised release system, pertinently how the Guidelines were amended in 2011, so that when an alien is facing post-incarceration removal and supervised release is not required by statute, courts should ordinarily not impose a term of supervised release.  While imposing a term of supervised release on removable aliens is not forbidden, the public is “ordinarily” and “adequately” served by a new prosecution alone.

The Fourth Circuit, in non-precedential unpublished decisions, has generally affirmed the imposition of supervised release on aliens likely to be removed post-incarceration.  The Fourth Circuit found the imposition of a term of supervised release procedurally reasonable, as the district court believed that it would deter Aplicano from committed future crimes, curb his desire to return to the US again, to protect US citizens, and that Aplicano’s need to be deterred was a great concern than punishing him.  Next, the Fourth Circuit held the imposition of supervised release was substantively reasonable because of the district court’s intention to provide deterrence and protection for the community.  Finally, with regard to Aplicano’s guilty plea, the Fourth Circuit decided that even if the district court had erred in advising Aplicano of the nature of supervised release, Aplicano did not show that such error affected his substantial rights, nor that but for the error, he would not have entered the plea.  The judgment of the district court was affirmed.

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."