Thursday, March 01, 2018

SC Involuntary Manslaughter Not Violent Felony; Irby and Reid In Doubt?

US v. Middleton: Middleton was convicted of being a felon in possession of a firearm. The district court determined he qualified for sentencing under the Armed Career Criminal Act based on (among other things) a 1980 conviction in South Carolina for involuntary manslaughter. Middleton was sentenced to 180 months in prison. In 2016, in the wake of the Supreme Court's decision in Johnson, Middleton filed a second 2255 motion to vacate his sentence, arguing that he no longer qualified for ACCA. The district court denied the motion, but issued a certificate of appealability on the involuntary manslaughter issue.

On appeal, the Fourth Circuit reversed, holding that involuntary manslaughter is not a violent felony for ACCA purposes. Although the ultimate result was unanimous, the court divided over the best way to reach that result. Chief Judge Gregory, writing for himself and Judge Harris, focused on whether the offense "sweeps more broadly than the physical force required under the ACCA's force clause" and agreed with Middleton that it did. The court in particular looked to a South Carolina Court of Appeals opinion that affirmed an involuntary manslaughter conviction in a case where an adult sold a minor alcohol, after which the minor drove drunk and was killed in an accident. Thus, as Chief Judge Gregory put it, under the categorical approach "the ultimate issue in this case is whether selling alcohol to a minor involves the requisite use of violent force." The Government argued, as they have frequently, that the Supreme Court's decision in Castleman settled this because it rejected the idea that one can be convicted of an offense resulting in death without using violent force. The court turned away that argument, concluding that the Government "ignores the distinction between de minimus force, as discussed in Castleman and violent force" and "erroneously conflates the use of violent force with the causation of injury." The court concluded that "Castleman's discussion of force does not control this case" because the force at issue there was different than the force required under ACCA. As to the concept that "causing injury categorically means violent force was used," the court concluded that the portion of its 2012 decision in Torres-Miguel holding that "a crime may result in death or serious injury without involving the use of physical force" had not been abrogated by Castleman. Subsequent decisions, such as Irby and Reid, did not change that. Those cases "cannot rely on Castleman - for a holding it did not make" to "surmount this Court's prior decision in Torres-Miguel." which remains binding. However, those cases do "confirm[] that a defendant may cause injury indirectly as well as directly for purposes of ACCA's force clause," but that has no impact on this case because the state court decision does not meet that standard.

Judge Floyd concurred in the result, but would have done so on the ground that involuntary manslaughter in South Carolina could not be a violent felony because ACCA "requires a higher degree of mens rea than recklessness" and "an individual can be convicted of involuntary manslaughter in South Carolina based on reckless conduct." However, Judge Floyd spent some time in his concurrence arguing that "[c]ontrary to the majority's attempt to limit Castleman to the MCDV force clause, this Court in Irby and Reid already extended Castleman's reasoning to other force clauses, including the ACCA force clause." Thus, Judge Floyd concluded, "the majority's analysis does not adequately address this Court's post-Castleman decisions." Based on those cases, he "question[s] the viability of distinguishing between use of force and causation of injury." Those cases also, Judge Floyd argues "raise questions as to whether" the distinction the majority draws between the use of force and causation of injury "remains viable."

Congrats to the Defender office in South Carolina on the win!

Thursday, February 22, 2018

Cop's Prior Uses of Force Properly Admitted Under 404(b) In Civil Rights Prosecution

US v. Cowden: Cowden was an officer with the Hancock County (WV) Sheriff's Office. One night in January, 2015 he was on duty when a driver, Hamrick, was brought in after being arrested for DUI.  At the scene of the arrest Hamrick "resisted and engaged in a physical altercation" with another officer, but by the time he arrived at the station he was "loud" and had a "drunken demeanor" but was no longer "physically resisting." Nonetheless, Cowden said Hamrick was "not going to act that way with us, this is our house, play by our rules" and another officer called his mood "unusually hostile." Cowden "pulled Hamrick toward the elevator and threw him against the wall" then "pulled Hamrick's head away from the wall and slammed his head and face back into the wall." Cowden again said that this was "our house" and that Hamrick would "play by our rules" in a "tone of voice and use of force that indicated he was losing control." Cowden also punched Hamrick in the back of the head and threw him into the elevator. Hamrick received injuries that needed medical treatment to the tune of $3044. Hamrick was charged with deprivation of rights under the color of law and making a false statement. He was convicted on the first charge, but acquitted on the second. He was sentenced to 18 months in prison and ordered to pay restitution to Hamrick to pay his medical bill.

On appeal the Fourth Circuit affirmed Cowden's conviction. Cowden's primary argument on appeal was that the district court should not have allowed the jury to hear 404(b) evidence about two prior incidents where he used excessive force. The court disagreed, holding that the incidents were relevant to "Cowden's use of force in circumstances when Cowden or others were not actually threatened, but Cowden perceived that an individual was not showing adequate respect to law enforcement officers." That was particularly true because Cowden testified at trial that he "had not intended to punish Hamrick." Finally, while the evidence was "unquestionably . . . prejudicial" it also "provided information about Cowden's actions when dealing with individuals he perceived as manifesting resistance to law enforcement authority." The court also rejected Cowden's arguments that the Government had failed to show that he acted "willfully" in dealing with Hamrick and that he should not have been ordered to pay restitution.

NC Voluntary Manslaughter Is ACCA Violent Felony

US v. Smith: Smith was convicted of being a felon in possession of a firearm and was sentenced under ACCA. The only issue on appeal was whether his prior conviction in North Carolina for voluntary manslaughter was a "violent felony." The offense in North Carolina involves "the unlawful killing of a human being without malice, express or implied, and without premeditation and consideration" and,  according to the state supreme court, "generally . . . occurs when one kills intentionally but does so in the head of passion." The court rejected Smith's argument that the offense could be committed negligently, noting that (quoting a North Carolina appellate court) that voluntary manslaughter is "essentially a first-degree murder, where the defendant's reason is temporarily suspended by legally adequate provocation." Based on this "it is certain that the intent required is sufficient to qualify it as a categorically violent predicate."

Evidence Sufficient to Sustain CP Convictions

US v. Miltier: Investigators downloaded child pornography from an IP address they traced back to Miltier. They later executed a search warrant at his home, seizing a laptop and thumb drive that both contained images of child pornography. The laptop's only logged in email address was Miltier and he admitted that he used it. Several searches on the computer related to his work, his car, and home repairs he was making. He was charged with seven counts of receipt of child pornography and one count of possession. He was convicted on all counts and sentenced to concurrent terms of 120 months in prison and a lifetime term of supervised release.

The Fourth Circuit affirmed Miltier's convictions and sentence. First, he argued that the evidence on all counts was insufficient to show that he knowingly received or possessed the images in question. The court disagreed, noting that the "ten files that form the basis for these charges were found on the [laptop], and significant evidence links the computer to Miltier." He admitted knowing that the laptop included a peer-to-peer file sharing software, which showed evidence of searches relating to terms associated with child pornography. Second, Miltier argued that there was insufficient evidence on two counts to show that the files involved were downloaded from the internet and "thus the government failed to demonstrate the required interstate nexus element." The court rejected that argument, noting that there was evidence that those files had been downloaded by the peer-to-peer program. Third, the court rejected Miltier's argument that the Government was required to prove that the child pornography files themselves, rather than the laptop, had travelled in interstate commerce, concluding that "we find no indication in the statute that Congress intended to limit" the statute in such a way. Finally, the court rejected his argument that instructing the jury in that manner was a constructive amendment of the indictment.

Monday, February 05, 2018

Fourth Circuit weighs in on "Playpen" cases

US v. McLamb:  In this appeal, the Fourth Circuit considered whether the defendant’s motion to suppress evidence was properly denied for an invalid warrant obtained by the FBI in its investigation of a child pornography website known as “Playpen,” a hidden services message board located on the “dark web.”   After seizing Playpen’s servers, the FBI sought a warrant to deploy the Network Investigative Technique (“NIT”) to locate Playpen’s users.  A federal magistrate judge issued the warrant, authorizing use of the NIT on Playpen visitors for 30 days.  The NIT identified thousands of computers across the world that accessed Playpen during this month-long period.  McLamb was one of those thousands.  He moved to suppress evidence on his computer as the fruit of an invalid warrant, challenging the warrant’s particularity and its execution, as well as the jurisdiction of the magistrate who authorized the search.  The district court denied McLamb’s motion, and the Fourth Circuit affirmed, finding that even if the warrant was unconstitutional, the district court properly denied the motion to suppress because the good faith exception from Leon applies. 
Three other circuits (Eighth, First, and Tenth) have analyzed the same NIT warrant at issue here, and each has concluded that even if the warrant violates the Fourth Amendment, the Leon good faith exception precludes the suppression of evidence.  The Fourth Circuit agreed.

Tardy motion to dismiss, in response to tardy pro se notice of appeal, granted

US v. Hyman:  In this appeal, the Fourth Circuit considered whether to grant the government’s motion to dismiss an appeal due to the appellant’s failure to meet the requirement for timely filing.  Hyman, the defendant, had been convicted of one count of crack distribution, and received a sentence of fifty-seven months’ imprisonment on July 27, 2016.  On November 22, 2016, Hyman filed a notice of appeal challenging his sentence.  The Fourth Circuit appointed counsel to Hyman, and he filed his opening brief and joint appendix in February 2017.  The government subsequently filed its motion to dismiss and suspend briefing.  Hyman responded that the Court should allow his appeal because the government unnecessarily delayed filing its motion to dismiss until after Hyman filed his opening brief.  The Fourth Circuit scheduled the motion to dismiss for oral argument.  After oral argument, the Fourth Circuit granted the government’s motion to dismiss.

Because, the Fourth Circuit states, we are required to strictly apply claim-processing rules if they are raised timely, and because the local rules permit a party to raise timeliness at any time, it granted the government’s motion.  To hold otherwise, it argued, would be to sanction the government for adhering to the Fourth Circuit’s rule.  It dismissed Hyman’s appeal.

WV unlawful wounding COV

US v. Covington:  In this appeal, the Fourth Circuit considered whether the West Virginia crime of unlawful wounding was a crime of violence under the guidelines.  As the government did not argue in this case that the predicate offense was an enumerated offense, the Fourth Circuit considered  whether it qualifies as a crime of violence under the force clause only. 

Using the categorical approach, the Fourth Circuit found that the WV statute in question is divisible, in that it listed two separate crimes with different elements and punishments, i.e. unlawful wounding and malicious wounding.  There was no question which part of the statute was at issue here, so the Court moved on to compare the offense of unlawful wounding with the requirements of the force clause.

Considering the elements of the force clause, the Fourth Circuit found that the elements of WV unlawful wounding categorically qualified as a crime of violence under the force clause.  Further, Covington did not identify for the Court a WV case that interprets the offense of unlawful wounding to apply to an individual who uses force that is not “capable of causing physical pain or injury to another person,” whereas the government provided “scores” of cases that seemed to confirm that unlawful wounding in WV only criminalizes the degree of force required under Johnson.

Friday, December 22, 2017

Defendant Who Fails on Plain Error Appellate Review Can Prevail on Ineffective Assistance of Counsel for Failure to Raise Issue

US v. Carthorne: In 2010 Carthorne pleaded guilty to drug and gun charges and was determined, in the PSR, to be a career offender based on a Virginia conviction for assault and battery against a police officer. Trial counsel didn't object to the classification of that offense as a crime of violence or Carthorne's designation as a career offender. He explained at sentencing that he had "labored over that case long" and asked "providence for a lucky break," but conceded that he couldn't find anything to support an argument that Carthorne wasn't a career offender. Counsel admitted "I'm not a good lawyer" and went on to argue for a variance based on the facts of the actual prior offense - Carthorne spit at a cop. The district court varied slightly and imposed a sentence of 300 months, 89 months higher than the top of the non-enhanced Guideline range.

Carthorne appealed his career offender designation, but was stuck with plain error review. The Fourth Circuit affirmed, finding that the Virginia prior was not a crime of violence, and thus there was an error, but that the error was not plain because existing precedent didn't require that result. Carthorne then filed a 2255 motion alleging that his trial counsel had been ineffective for failing to object to the career offender designation on the ground that his prior conviction wasn't a crime of violence. The district court denied the motion. While Carthorne could easily show prejudice - had he been on de novo review on appeal he would have prevailed - the court concluded that he could not show that his counsel's performance had been deficient "essentially for the same reasons that the Fourth Circuit found not plain (i.e., obvious) error on direct appeal."

On appeal the Fourth Circuit reversed the denial of Carthorne's 2255 motion. The court concluded that the plain error standard and the Strickland ineffective assistance standard are fundamentally different and based in different sources - Federal rules and the Sixth Amendment, respectively. Therefore, they serve "different, yet complementary, purposes" and involve different variants of prejudice. While plain error looks only to settled law, effective assistance of counsel frequently requires "that counsel raise material issues even in the absence of decisive precedent." At the time of Carthorne's original sentencing although there was no precedent directly on point there were cases that "strongly suggested at the time that [the offense] did not qualify as a crime of violence." The sentencing transcript showed that counsel didn't really understand the crime of violence analysis and there was no strategic reason for failing to make an objection to the career offender determination. Therefore, Carthorne had demonstrated deficient performance of counsel, as well as prejudice, and was entitled to be resentenced.

Court Can Sua Sponte Dismiss Untimely Appeals, But Should Do So Sparingly

US v. Oliver: Oliver pleaded guilty to drug charges in 2011. The next year he filed a timely 2255 motion challenging his sentence. The district court ultimately denied the motion in 2015. Three months later, Oliver filed a pro se notice of appeal - from the 2011 original judgment in his case. Counsel was appointed, who filed an Anders brief. The Government didn't file a response brief and Oliver did not file a pro se brief.

There was no doubt that Oliver's notice of appeal was filed years after the 14-day deadline in the Rules of Appellate Procedure. This does not deprive the Fourth Circuit of jurisdiction, because the deadline is merely a claims processing rule, but would generally result in dismissal if the Government asked for it. Since the Government did not, the issue was whether the court could dismiss the appeal sua sponte. The court concluded that it could, given "the potential consequences of adjudicating untimely criminal appeals," including situations - like this one - where the defendant has already unsuccessfully sought collateral review. Having said that, the importance of preserving the adversary system "and its benefits weigh heavily against" invoking that authority. This case, however, was one in which that authority could be exercised, particularly because Oliver had already sought collateral review of his conviction. In doing so he relied upon the finality of his conviction and could not later go back and seek to undermine it. The court dismissed Oliver's appeal.

Wednesday, December 20, 2017

Court Allows Serial Revocation, Sentencing, of Supervised Release Violations

US v. Harris: Harris was serving a term of supervised release when he was subject to a traffic stop that uncovered guns and drugs. He was arrested and a petition to revoke was filed alleging that he had violated the law by possessing those items. Addenda were filed with additional allegations (after the Government learned that Harris was part of a state murder investigation), including failing to notify his probation officer after contact with law enforcement and new state criminal charges. At a revocation hearing the district court concluded Harris had violated by failing to report, revoked Harris, and sentenced him to a month in prison, followed by 40 more months of supervised release. The other allegations were held in abeyance pending the outcome of proceedings in state court. While in prison, Harris was indicted federally for being a felon in possession of a firearm during the traffic stop. The Government filed another addendum based on that indictment and sought to dismiss the remaining allegations. The district court granted that motion, then revoked Harris a second time, imposing a 36-month term of imprisonment and a further 24-month term of supervised release.

On appeal, the Fourth Circuit affirmed Harris's revocations and sentences. The court noted that it "it well-established that a revocation does not end a term of supervised release" and that "[a]fter revocation, the defendant continues to serve his term of supervised release, but does so in prison." Previously, the court had held that "the district court's jurisdiction over the supervised release continues past revocation" and "the district court's supervisory authority continues as well." As a result, it does not matter that the second revocation was based on an allegation that was made after the first revocation, but involving conduct that occurred before the first revocation. Furthermore, the court found that the combined sentences imposed for Harris's revocations did not exceed the statutory maximum because those limits apply to every revocation and do not aggregate. Thus, with regard to the total new supervised release terms imposed - 64 months, beyond the 60-month statutory maximum - the court held that 18 USC 3583(e)(3) "does not require the district court to credit time previously served on post-release supervision" and so the "district court could sentence Harris up to 60 months of supervised release upon his second revocation without giving credit for any of the time that he had already served." The same is true for the terms of imprisonment. The court also rejected Harris's argument that the second revocation was "additional punishment for his already-revoked, original term" because that "theory would convert per-revocation maximums into per-term of supervised release maximums" which is "contrary to Congress's intent to create a per-revocation maximum."

Use of Peer-to-Peer Software Constitutes Distribution for CP Cases

US v. Stitz: Stitz entered into a plea agreement with the Government to plead guilty to distribution of child pornography. He agreed to a stipulation which set forth that the FBI had used the ARES peer-to-peer file sharing network to download images of child pornography from Stitz's computer (three times). The stipulation also set forth that Stitz told the FBI that he knew "his computer was sharing child pornography files on the ARES network." At sentencing, Stitz argued that he did not intend to distribute any images and his distribution was "passive." In light of that, and other sentencing factors, the district court varied and imposed a sentence or 121 months in prison.

On appeal, the Fourth Circuit affirmed Stitz's conviction. In spite of the plea agreement and stipulation, Stitz argued that there was no factual basis to support a plea of guilty to distribution of child pornography. Reviewing for plain error, the court found not error in the district court accepting Stitz's guilty plea, plain or otherwise. The court noted that the only mens rea requirement for distribution of child pornography is that it was done knowingly, not with bad or evil intent. The record contained multiple instances where Stitz admitted that he knew the files on his computer were being shared with others. The court went on to conclude that the use of a peer-to-peer file sharing system constitutes distribution of child pornography, so long as files are actually available to others. The court had already reached the same conclusion with regard to distribution under the Guidelines and every other Circuit that has decided the issue has reached the same conclusion.

Friday, December 08, 2017

Forcing Minor to Masturbate to Collect Evidence Violates Fourth Amendment

Sims v. Labowitz: This is a 1983 civil rights case arising from a state child pornography investigation in Virginia. 17-year old Sims got in trouble for sending a video of his erect penis to his 15-year old girlfriend. While investigating that an officer, Abbott (who died before the suit - Labowitz his the administrator of his estate), with the aid of a prosecutor, obtained a search warrant allowing him to take pictures of Sims's penis, including while erect. Abbot snatched up Sims, took him to a juvenile detention center and, in a room with two other officers, took pictures. During the process he instructed Sims to "use his hand to manipulate his penis" in order to get a picture of it while erect. Sims couldn't meet the challenge. Undeterred, Abbot got a second warrant and told Sims's attorney that if Sims couldn't perform again he would be "taken to a hospital to give him a an erection-producing injection." The second warrant was never executed and the more-senior prosecutor agreed not to use any of the pics taken pursuant to the first warrant. Sims was basically given a pretrial diversion, with the charges dismissed if he performed well on probation. Once his probation term was over (and the charges gone), Sims sued on two grounds: (1) that the execution of the warrant violated his Fourth Amendment rights, and (2) that under 18 USC 2255(a)(1) he was a victim of the production of child pornography. The district court dismissed the case.

On appeal the Fourth Circuit reversed the dismissal, 2-1, on the Fourth Amendment issue. First, the court found that Abbot's search did violate Sims's Fourth Amendment rights. Walking through a four-step analysis, the court concluded that both the scope of the intrusion and the manner in which the search was convicted were unreasonable, noting that sexually suggestive searches are "terrifying, demeaning, and humiliating." Furthermore, the place where the search was conducted contributed to the violation. Finally, the court held that there was no legitimate evidentiary purpose behind the warrant (so far as I can tell there's nothing suggesting that someone - the victim, presumably - was going to identify Sims based on some particular characteristic of his anatomy). In fact, the court concluded that it "cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others." Second, the court concluded that Abbot was not entitled to qualified immunity because a reasonable officer in his position would have known such a search was unreasonable, even in light of the warrant authorizing it. The court affirmed the dismissal of the production of CP count (because Abbot wasn't doing what he did for "lascivious" reasons) and remanded the case to the district court for further proceedings on the 1983 claim.

Judge King dissented on the Fourth Amendment issue, arguing that there was no violation and, even if there was, Abbot was entitled to qualified immunity.

North Carolina Robbery Matches "Generic" Robbery Listed In Guidelines

US v. Gattis: Gattis was convicted of being a felon in possession of a firearm. Of the many Guideline calculation issues in his case the primary one was whether his prior conviction for robbery in North Carolina was a "crime of violence" that would drive up his base offense level. Gattis was sentenced under the current/post-Johnson Guidelines, so to qualify as a crime of violence it either had to involve as an element the use of force or match one of the offenses specifically set forth in the Guidelines - which now includes robbery. The district court concluded it did qualify as a crime of violence and sentenced Gattis accordingly.

On appeal, the Fourth Circuit affirmed. The court recognized that, based on Gardner, robbery in North Carolina does not require the use of "violent force" and could not qualify as crime of violence under the force clause. Therefore, the court dove into, for the first time so far as I can tell, defining what "generic" robbery under the Guideline meant. The court ultimately rejected the Model Penal Code formulation in favor of the one used by Professor LeFave. This is because the MPC version - which requires "serious bodily injury" (or the threat thereof) has "not been widely adopted" in the states. Instead, relying on LeFave, the court concluded that "generic robbery is defined as the 'misappropriation of property under circumstances involving [immediate] danger to the person.'" The court went on to concluded that "immediate danger" is "categorically satisfied by the taking of property 'from a person or a person's presence by means of force or putting in fear.'" It distinguishes robbery from larceny from the person as occurring "only when the offender takes property by using force or by threatening immediate physical harm." Such a threat "may be express or implicit but it must be sufficient to include the victim to part company with the property." Applying this definition, North Carolina robbery was a "clean match" where "North Carolina common law robbery is thus subsumed within - and is a categorical match with - generic robbery." The amount of force necessary to match the generic offense is less than needed under the force clause.

Tuesday, November 28, 2017

Fraudulent mortgage lending conspiracy convictions affirmed

US v. Raza, et al.:  Four former employees of SunTrust Mortgage in Annadale, Virginia, appealed their wire fraud and conspiracy to commit wire fraud convictions, specifically, the jury instructions on materiality and intent to defraud instructions.  Additionally, the defendants argued that the district court failed to instruct the jury that it had to individually assess the guilt of each of the defendants as to each count.  The Fourth Circuit, finding no errors, affirmed the convictions.

In its reasoning, the Fourth Circuit noted that the defendants’ proposed instruction for the wire fraud offense required proof of five elements that the court tracked in its charge to the jury.  The Fourth Circuit found several similarities between this case and one from the 9th Circuit, wherein it concluded that adopting a subjective test of materiality, as defendants urged here, would “essentially grant blanket absolution to low-level fraudsters because of the widespread sins of the mortgage industry.”  Further, the Fourth Circuit discussed the controlling import of its earlier cases, finding that the correct test for materiality is an objective one, “which measures a misrepresentation’s capacity to influence an objective ‘reasonable lender,’ not a renegade lender with a demonstrated habit of disregarding materially false information.”

As to the intent instruction, the Fourth Circuit found that its earlier decision in Wynn explained how the district court’s instruction in this case was correct, that is, the government had to prove more than an intent to deceive; it also had to prove an intent to harm “in some sense.”

With the last challenge, the defendants claimed that the district court’s instructions allowed the jury to find guilty by association.  During the jury’s three days of deliberations, the jury sent a question to the court to clarify if they found the defendants guilty of the conspiracy, was guilt to be assumed, then, for all other counts, and the district court advised them that no, the jury had to look at each count facing each defendant.  The Fourth Circuit found the instructions and the supplement, as well as the separate verdict forms for each defendant, with the counts listed separately, appropriately gave individual consideration to each count alleged.