Friday, February 17, 2017

Conspiracy connections need only be slight

US v. Chittenden:  In this appeal, the Fourth Circuit affirmed the bank fraud and conspiracy to commit bank fraud and mail fraud convictions of a former loan officer for drafting and submitting fraudulent mortgage loan applications, mostly for first-time Hispanic home buyers.  Chittenden, the government alleged, submitted loan applications with false income, asset, and employment information, and she undertook this fraud in concert with multiple realtors.

Chittenden went to trial and subsequently was convicted, and the district court entered judgment against her.  It did not, however, enter a forfeiture penalty, and it directed counsel to schedule an evidentiary hearing on the issue of forfeiture.  Chittenden objected that because the judgment was entered against her, the district court lacked jurisdiction to impose a forfeiture any longer.  Over her objection, the parties litigated forfeiture for the next year.  Ultimately, the Fourth Circuit determined that a court’s failure to enter a forfeiture order at sentencing did not deprive it of jurisdiction to impose such an order after sentencing.  Here, the court entered the forfeiture order against Chittenden just over a year after sentencing, for over $1.5 million, the amount of conspiracy proceeds reasonably foreseeable to Chittenden.  She appealed.

Prior to trial, the government froze Chittenden’s assets.  She argued on appeal that this asset forfeiture violated her Sixth Amendment right to counsel.  Chittenden had hired attorneys of her choice to conduct a pre-indictment investigation, and she retained the same counsel for trial and throughout sentencing.  She amassed considerable debt to pay her attorneys, borrowing money from relatives to foot her legal bills.  The Fourth Circuit found, however, that her right to counsel of choice was not implicated here, as she was not forced to change counsel or rely on appointed counsel.

Additionally, Chittenden argued a lack of evidence to support her convictions.  The Fourth Circuit disagreed, finding that the co-conspirator testimony as well as borrower testimony provided a link between Chittenden and the conspiracy, namely her preparation of applications that contained false information.  The Fourth Circuit held that Chittenden’s connection to the conspiracy needed only to be slight, and the other realtors and borrowers provided more than sufficient evidence of her guilt.

Incorrect approach but correct result: career offender designation ok'd

US v. Dozier:  In this appeal, the Fourth Circuit considered whether the career offender enhancement was properly applied to Dozier’s sentence for distributing crack cocaine.  The district court applied the modified categorical approach to determine whether Dozier’s WV prior attempt conviction qualified as a controlled substance offenses for sentencing purposes.  Using de novo review, the Fourth Circuit concluded that the district court erred, analyzed the prior conviction under the categorical approach, and determined that the attempt conviction did qualify as a prior controlled substance offense.  So while the district court may have used the wrong approach, it reached the correct result; the Fourth Circuit affirmed.

At issue here is the WV statute for general attempt (i.e. Dozier was convicted for attempting to distribute a controlled substance) .  The Fourth Circuit determined that sentencing courts must compare the state and generic elements of attempt statutes, as well as the elements of the underlying substantive statutory offense in an analysis of whether a prior attempt conviction qualifies as a controlled substance offense.  Based on its clear precedent, the panel found that the general divisibility of the punishment scheme in the WV attempt statute is not sufficient to compel the application of the modified categorical approach.  Further, the modified categorical approach will apply only where the statute is divisible and at least one of the alternative definitions of “attempt” categorically matches the generic definition.  Finally, the panel held that the underlying offense that Dozier attempted to commit was also a categorical match for a generic controlled substance offense, and concluded that he was properly deemed a career offender.

Illegal re-entry not aided by Padilla

US v. Moreno-Tapia:  In 2009, Moreno-Tapia was deported for North Carolina State convictions for indecent liberties with a child from 2007, when, he argues, neither his counsel nor the court advised him of the immigration consequences of a guilty plea.  Moreno-Tapia re-entered the country without permission, and in 2014, he drew a federal charge for illegal re-entry.  He argued that his underlying 2007 convictions were unconstitutional in light of Padilla, and in 2015, the State of North Carolina vacated his convictions.  Nonetheless, Moreno-Tapia received a 12-level enhancement for the vacated convictions at sentencing for his illegal re-entry charge.  He appealed.

The Fourth Circuit considered here what impact, if any, the alleged constitutional deficiency in Moreno-Tapia’s 2007 convictions has on the instant prosecution for illegal re-entry.  The Fourth Circuit found that there was no effect, because Padilla does not apply retroactively to defendants like Moreno-Tapia, who were convicted before it was decided (in 2010).

The vacatur of the state convictions, according to the Fourth Circuit, was not dispositive.  The government had only to show that Moreno-Tapia had, in fact, been previously removed.  The illegal re-entry charge is based, not on the old vacated conviction, but on the deportation, and at the time he was deported, Moreno-Tapia had a valid conviction.

Pharmacist Intern convictions upheld

US v. Agyekum:  Investigation of illegal distribution of oxycodone pills in West Virginia lead officials to A+ Care Pharmacy in Barboursville, WV, as a source of drugs.  The defendant and his wife opened their pharmacy in 2012, and while Patricia was actually the credentialed pharmacist, her husband exclusively ran the business, “controlling everything.”  Officials in the investigation sent a confidential informant to the pharmacy, who twice made controlled purchases of drugs.   Officials also investigated the defendant’s banking practices; eventually investigators obtained a search warrant for the pharmacy recovering tens of thousands of dollars and pills hidden there.

Agyekum agreed to plead guilty to two counts of structuring cash transactions to evade reporting requirements, and also agreed not to contest the judicial forfeiture of over $2 millions, his Lexus station wagon and his residence.  Further, the PSR included enhancements for Agyekum’s role as an organizer or leader, as well as abusing a position of public or private trust, yielding a guidelines range of 57-71 months.  At sentencing, Agyekum objected to the enhancements, all of which were overruled.  On appeal, Agyekum averred that the enhancements were improper, and that the district court failed to ensure that his waiver of rights with regard to the forfeiture of property was knowingly and intelligently made.

The Fourth Circuit held that the enhancements were supported by the defendant’s role in the drug distribution activity and were properly applied.  The majority found that the offenses of conviction, structuring his cash transactions to evade reporting requirements, were temporally and qualitatively linked to the illegal drug distribution activities, so that the transactions would be considered relevant conduct.  Further, the panel described Agyekum’s conspiratorial activities to be broader than the individual drug transactions that occurred, solidifying the drug deals as conduct that went hand-in-hand with the structuring offenses.  As to whether the relevant conduct indicated Agyekum had a leadership role and abused a position of trust, the testimony of Agyekum’s wife that he ran the business and directed her activities as well as the pharmacy activities justified, to the majority, the application of the leadership-role enhancement.  Moreover, the panel found that Agyekum’s “clear abuse of his positions of trust” with his drug distributor and the state board of pharmacy justified the enhancement for position of trust.

Dissenting in part, Judge Wynn found that Agyekum did not occupy a position of trust as he was not a pharmacist, rather an intern, and he did not have a fiduciary-type relationship with the state board of pharmacy or the drug distributor, unlike his wife, who actually was a pharmacist.

Blankenship conviction affirmed

US v. Blankenship:  In this appeal, former chairman and CEO of Massey Energy Company challenged his conviction for conspiracy to willfully violate federal mine safety laws and regulations, arising from the 2010 Upper Big Branch Mine disaster, which caused the death of 29 miners.  Blankenship challenged the district court’s decision not to dismiss the superseding indictment, denying Blankenship the opportunity to re-cross an alleged co-conspirator, the jury instruction for “willfully” under 30 U.S.C. § 820(d), and the jury instruction on the government’s burden of proof.  The Fourth Circuit affirmed Blankenship’s conviction and sentence.

The Fourth Circuit found that the district court’s decision not to dismiss the indictment was proper, as the language of the indictment tracked the language of the statute, and it included a 30-page factual background that identified numerous mine safety regulations that Blankenship allegedly conspired to violate.  The second claim of error, whether Blankenship was properly denied the opportunity to re-cross examine his former colleague.  The Fourth Circuit determined that the district court here “commendably” heard oral argument on the issue of whether the witness, Blanchard, raised new matter in his redirect testimony, and it concluded that he did not.  The Fourth Circuit held that all of the subjects on which Blankenship requested re-cross examination on were either dealt with on cross or were cumulative of other evidence introduced at trial, so no error occurred.

Third, Blankenship argued that the jury instruction for “willfully” violating federal mine safety and health standards was wrong.  The Fourth Circuit determined that “willfully” in the pertinent criminal statute could be defined in terms of “reckless disregard” as well as “plain indifference,” and that Blankenship’s willful conduct tracked the government’s theory of the case, in that he was repeatedly informed of safety violations at Upper Big Branch and instead of taking steps to prevent the violations from continuing, he chose to prioritize production and pay fines.  Further, for the purposes of the criminal statutes at stake in this case, the Fourth Circuit found that the district court properly concluded that willfulness encompasses reckless disregard, per congressional intent and the conclusions of other courts.  Moreover, Congress imposed penalties on corporate officers in addition to enterprise penalties because corporate officers will treat criminal penalties as a ‘license fee for the conduct of an illegitimate business’ to be factored into profit-maximization analyses, which the Fourth Circuit found that the government’s evidence showed Blankenship did here.  

Finally, Blankenship argued that the district court provided an improper “two-inference” jury instruction, which impermissibly reduced the government’s burden of proof.  While the Fourth Circuit definitely disapproved of the instruction, it found that the court’s instructions correctly stated the government’s burden, so the district court did not reversibly err in providing the two-inference instruction.

Sentencing Court determines "applicable guidelines range"

US v. Tate:  Tate pleaded guilty to possession with intent to distribute and distribution of crack, and his plea agreement contained a clause wherein the government would seek a sentence at the low end of the applicable guidelines range; it also contained an appellate waiver.  At Tate’s sentencing, the district court included some criminal history points that Tate had disputed in its calculus of Tate’s sentence, resulting in a higher guidelines range than he had previously expected.  The government requested a sentence at the lowest end of the higher guidelines range.  Tate argued on appeal that the government breached the plea agreement because it did not request a sentence in the range for which Tate had argued.

The Fourth Circuit disagreed with Tate and affirmed the conviction and sentence.  In doing so, the Fourth Circuit reasoned that Tate’s claim had to be reviewed for plain error because he failed to raise the issue at his sentencing.  Under plain error review, an appellant must show four things: that an error occurred, the error was plain, the error affected the appellant’s “substantial rights,” and the error must affect the fairness, integrity, or public reputation of judicial proceedings.  The Fourth Circuit here held that Tate could not succeed because he could not establish the first prong of plain error review, than an error occurred.  The Fourth Circuit held that the meaning of “applicable guidelines range” is the range found by the district court; therefore, the government’s sentencing recommendation for Tate complied with the plea agreement.

Wednesday, February 15, 2017

Court Affirms Above-Guideline Sentence for Mailing Threatening Letter

US v. Spencer: Spencer was an inmate in a local jail in Virginia when he sent a letter to the federal clerk's office that contained a letter "covered in white powder" that stated (among other things) that the "very letter you hold may indeed by the last that you hold." The letter asked "Are you already infected with the pain?", then answered that "Only time will tell." US Marshals instructed the clerk, who was "disconcerted and afraid" to lock herself in the mailroom, alone, until inspectors could arrive. Ultimately, the powder was harmless - dried toothpaste. Interviewed at the jail, Spencer admitted sending the letter and explained that the powder was "to enhance the effect . . . in order to put fear into the reader" that the powder was poison.

Spencer pleaded guilty to mailing a threatening communication. At sentencing, the district court overruled Spencer's objection to a six-level enhancement for "conduct evidencing intent to carry out [the] threat" and sentenced him to the top of the resulting Guideline range, 46 months. Spencer appealed and the Fourth Circuit vacated his sentence, finding that the enhancement should not apply. On remand, the district court concluded that a sentence within the new Guideline range - 21 to 27 months - was "totally inadequate" for the facts of the case, which included the "lady who got that letter thought it was anthrax, and she thought somebody had sentenced her to death." Therefore, the district court announced it was going to "upwardly depart" and impose a sentence of 45 months based on several factors, including that Spencer "ha[s] successfully appealed the prior sentence." Such a sentence was "fair" and was the sentence the district court "would have given" without any advice from the Guidelines. When imposing the 45-month sentence, the district court  made clear it was "strictly an upward departure," but on the Sealed Statement of Reasons checked the box for a variance.

On appeal for the second time the Fourth Circuit affirmed Spencer's sentence. First, the court rejected Spencer's argument that the district court erred by departing from the Guideline range without providing prior notice, as required by the Rules of Criminal Procedure. Although the court noted that "the boundary between departures and variances is often murky," especially so in this case, it treated the sentence as a departure ("a measure of formality must mark the sentencing procedure"). However, because Spencer did not object to the lack of notice, review was only for plain error and Spencer could not show any prejudice because "the district court repeatedly telegraphed that it might deviate from the Guidelines" and after the initial successful appeal eliminated the six-level enhancement "Spencer had every reason to believe that the court might adopt an above-Guidelines sentence." Second, Spencer argued that the 45-month sentence was substantively unreasonable. The court disagreed, holding that the district court did not abuse its discretion in imposing the sentence. The court relegated the comment about Spencer's successful appeal to a footnote, stating that the district court's "passing reference" was not enough to give rise to a presumption of vindictiveness.

Carjacking Is Crime of Violence

US v. Evans: Evans was a passenger in a car driven by his friend, Duke. Duke pulled into a parking lot where Evans was supposed to meet his cousin. Instead, Evans pulled out a gun, shot Duke twice (once in each leg), and stole his car. For his trouble, Evans was charged with carjacking resulting in serious bodily injury and using a firearm in during that crime of violence, in addition to two counts of Hobbs Act robbery, each with a matching use of a firearm charge. Evans moved to dismiss the firearm charges, arguing that neither carjacking nor Hobbs Act robbery were crimes of violence. The district court denied the motion and Evans pleaded guilty to one Hobbs Act robbery, carjacking, and discharging a firearm during the carjacking. He was sentenced to a total of 216 months in prison.

Evans appealed, renewing his argument that carjacking was not a crime of violence. The Fourth Circuit disagreed and affirmed his conviction. At the outset, the court noted that while Evans was convicted under the subsection of carjacking that required causing bodily injury it "consider[ed] on appeal the more general offense," without regard to injury. As a result, the analysis focused on whether the offense categorically involves the use of violent force as defined in the Supreme Court's 2010 Johnson decision. Evans argued that carjacking committed via "intimidation" does not meet that standard. The court found that the issue had been resolved in McNeal, in which the Fourth Circuit held that federal bank robbery was a crime of violence. It can also be committed via intimidation and there was no reason to read the term differently in the carjacking statute.

Tuesday, January 03, 2017

Court Clarifies 3582, Guideline Ranges, and Departures

US v. Muldrow: This case involved two defendants (consolidated on appeal) who were granted reduced sentences under 18 USC 3582(c)(2), but not to the extent they wanted. Each had received a downward departure in their criminal history categories at their original sentencing and the issue was how that departure figured in the 3582 analysis. Under a 2010 Fourth Circuit decision, Munn, the applicable guideline range is the one calculated after the departure. That holding was at odds with decisions in other circuits, however, and in 2011 the Sentencing Commission amended USSG 1B1.10 to adopt the other position - that the applicable guideline range is the one calculated before the departure. As a result, the defendants in this case had their reductions limited to the bottom of the new Guideline range calculated with their original criminal history categories (denying a further reduction of 22 months in one case, 32 months in the other). The district courts concluded they were bound by the new Guideline amendment, which abrogated Munn.

The Fourth Circuit agreed and affirmed the reductions. The court concluded that the amendment, which revised the commentary to 1B1.10, did not conflict with the text of the Guideline itself and was therefore controlling. The court also held that the district courts did not improperly apply the amendment retroactively because it was binding commentary that was not inconsistent with the Guideline itself.

Monday, December 12, 2016

No Second Amendment Issue With Prosecution for Selling Unlicesnsed Firearms

US v. Hosford: Hosford sold several firearms to an undercover cop. Hosford did not have a federal firearms license. Therefore, he was charged with multiple counts of unlicensed firearms dealing and conspiracy (a confederate bought the guns at gun shows that Hosford then sold). He entered a guilty plea, preserving the right to appeal the district court's denial of his motion to dismiss the charges as violating the Second Amendment, due process under the Fifth Amendment, and he Commerce Clause.

On appeal, the Fourth Circuit affirmed the denial and Hosford's convictions. On the Second Amendment challenge, it held that Hosford's facial challenge was to the "type of regulation deemed 'presumptively lawful' in Heller and "thus facially constitutional." On the as applied Second Amendment challenge, the court applied intermediate scrutiny (after assuming, arguendo, that the law burdens "conduct protected by the Second Amendment") and concluded that the important Government interests involved in regulating the commercial sale of firearms satisfied that burden. Next, the court held that the unlicensed firearm statute was not unconstitutionally vague, even though it did not clarify whether someone is a "dealer" versus a "collector." The statute "clearly gave notice to Hosford that he ought not to regularly sell firearms that he only purchased and resold for profit." Finally, the court held (joining all the other circuits to consider the issue) that the regulation of commercial firearms transactions falls within Congress's power under the Commerce Clause.

Friday, December 09, 2016

ACCA enhancement upheld

US v. Doctor:  Police in North Charleston, SC, received a call from a woman who claimed Doctor stole her cell phone and was inside a residence there with a gun.  Officers arrived at the location, gave Doctor his Miranda warnings, and questioned him about the firearm.  He lead the police to a pistol on the couch.  Doctor later pleaded guilty to being a felon in possession.

Doctor had two prior convictions for possession with intent to distribute cocaine, and one conviction for South Carolina strong arm robbery.  Doctor objected at sentencing to the characterization of the robbery as an ACCA violent felony.  His objection was overruled.  After receiving the mandatory minimum 15-sentence, Doctor appealed.

On appeal, Doctor argued that his conviction for strong arm robbery should not be a crime of violence for ACCA purposes because a defendant can effectuate a robbery with only a slight threat, and his conviction does not match the force clause requirement that force be directed “against the person of another.”  Further, Doctor argued that his conviction could be committed without an intentional use or threat of physical force.  The Fourth Circuit disagreed with Doctor, and using the categorical approach, found that there was no basis to conclude that Doctor’s robbery conviction could be accomplished with force below the physical force threshold.  The Fourth Circuit concluded that Doctor’s prior conviction qualified as a predicate violent felony within the meaning of ACCA.

Attempt to entice minors conviction upheld

US v. Clarke:  Appellant Clarke challenged his conviction for attempting to persuade minors to engage in sexual activity in violation of 18 U.S.C. § 2422.  He had arranged to meet with an undercover officer who he had met on an incest social networking site, after he had expressed an interest in the officer’s fake minor children; on arrival at the meeting place, police arrested Clarke.  While he was being interviewed, the police inventoried and towed Clarke’s vehicle.  A search warrant was later executed on the vehicle.  During the initial search, police located lubrication, condoms, a bag of candy, and an overnight bag, as well as the officer’s phone number, his age and the ages of the “children.”  A jury found Clarke guilty, and the district court sentenced him to 120 months imprisonment and lifetime supervised release; Clarke appealed.  The Fourth Circuit affirmed.

Clarke argued that the police inventory search, prior to obtaining a warrant, was illegal.  The Fourth Circuit held that the district court properly denied Clarke’s motion to suppress, as the evidence produced by the government (i.e. the departmental inventory search policy and a standard inventory search form signed by the officer who conducted the search) was sufficient to establish that the search was conducted according to the standard criteria.

Next, Clarke argued that the district court violated Rule 30(b) by failing to advise the defendant of how it would instruct the jury before closing arguments.  Here, the Fourth Circuit held that while the district court should have provided its instructions to counsel before closing argument, the violation did not, however, cause Clarke to experience any actual prejudice.  Clarke’s counsel has been able to make any “essential” arguments, because those arguments reflected the instructions ultimately provided by the court, and because the government produced sufficient evidence to convict him under the correct legal standard, the Fourth Circuit found no prejudice.

Clarke also argued that the district court improperly instructed the jury as to the meaning of “induce” under § 2422(b).  The Fourth Circuit held that the terms of the statute in question, “persuade,” “induce” and “entice” are not statutorily defined, but are “words of common usage” and have “accord[ed] them their ordinary meaning.”  Further, in ordinary usage, the court reasoned, these words are effectively synonymous, which it has previously held elsewhere.  The Fourth Circuit held here that the jury instructions were fair and accurately reflected the law.

Lastly, Clarke argued that the government did not provide sufficient evidence to sustain the conviction, and that the district court erred in denying his motion for acquittal.  The Fourth Circuit had to consider here whether 18 U.S.C. § 2422 can be violated when the defendant does not communicate directly with any minors, rather indirectly through an adult intermediary.  The other circuits to consider this question have held that Section 2422(b) extends to adult-to-adult communications that are designed to persuade a minor to commit the prohibited acts.  The Fourth Circuit agreed.  Moreover, the Fourth Circuit found that the government had introduced enough evidence that, taken together, would allow reasonable jurors to conclude that Clarke intended to coerce minors to engage in sexual acts and that he took substantial steps towards doing so.

When choosing the most applicable guideline goes awry

US v. Williams:  In this appeal, the Fourth Circuit reviewed a guidelines challenge, whether the correct guideline was applied, when compared with the actual misconduct charged.  Here, Ernest Lee Williams, Jr. attempted to rob a bank, but didn’t make it inside the building.  The district court applied the robbery guideline at sentencing, mainly because it included an enhancement for targeting financial institutions.  Williams appealed.

The Fourth Circuit agreed with Williams that the misconduct charged here most closely resembled burglary than robbery, and the burglary guideline should have been applied.  The burglary guideline yielded Williams an imprisonment range of 10 to 16 months, while the robbery guideline produced a range of 37 to 46 months; Williams had originally been sentenced to 38 months.

Williams had been indicted, the Fourth Circuit explained, for attempting to enter a back with the intent to commit a felony and larceny therein, i.e., a bank burglary.  There was no mention in his indictment of any element of “force or violence, or [extortion or] intimidation, which is required for conviction of bank robbery” under statute.  The Fourth Circuit states that it is clear that Williams should have been sentenced under the burglary guideline; it vacated Williams’ sentence, remanding for re-sentencing.

Friday, November 04, 2016

Omitted Information Doesn't Undermine Search Warrant

US v. Wharton: Wharton and her husband, John, were investigated for offenses related to the unlawful receipt of federal benefits (it involved the mismanagement of benefits received for their granddaughters). As part of the investigation, authorities executed a search warrant at their home which uncovered incriminating documentation. The warrant affidavit focused on John, rather than Wharton, although the evidence seized implicated them both. Wharton moved to suppress all the evidence seized, arguing that the affidavit omitted critical information, particularly that while Wharton and John shared the house, they had very separate bedrooms - Wharton's was on the second floor, while John's was in the basement. The district court granted the motion with respect to evidence found in Wharton's bedroom, but otherwise denied it. Wharton was convicted at trial of Social Security fraud, conspiracy, and embezzlement.

On appeal, Wharton argued that the district court erred by not suppressing all the evidence found in the house. The Fourth Circuit rejected that argument and affirmed Wharton's conviction, finding that the omitted material did not undermine the warrant itself. Comparing the case to two recent cases that also involved withheld information, "correcting the affidavit to include the omitted information [in those cases] undermined the foundational core of the affidavit. Here, the inclusion of the omitted information does not do that." That was due to other statements in the affidavit (from earlier in the investigation) that Wharton and John had been married for 43 years, lived together, and John's payment of some of the utilities to the house "support the view that John Wharton had access to the common areas of the house" and supported probable cause, at least to search the common areas of the house.

More Detailed Reasons Need to Exclude Grand Jury Evidence

US v. McTeague: McTeague and her codefendants were indicted on charges related to their alleged importation of undocumented workers to work at their restaurant as well as the treatment of those workers. After returning a superseding indictment that included allegations of witness tampering, the Government went back to the grand jury and obtained an indictment against some others involved in the witness tampering scheme. McTeague moved to dismiss the indictment, arguing that the Government had improperly used the proceedings leading to the third indictment to continue to investigate the offenses already charged. While the district court found no such prosecutorial misconduct, it nonetheless limited the Government's use of such evidence at trial due to the "unique combination of circumstances" in the case which made it "fundamentally unfair."

The Government took an interlocutory appeal to the Fourth Circuit. The court vacated the district court's order, but didn't go so far as the Government asked. Specifically, the Government argued that the kind of sanctions levied by the district court could only come after a finding of prosecutorial misconduct, which didn't happen in this case. The court declined to adopt such a bright line rule, but found that the district court's explanation of its sanctions was so sparse that it abused its discretion by imposing the sanctions. Without a finding of prosecutorial misconduct, it is "particularly incumbent upon the district court to explain both the reasoning for and the parameters of any exclusion of evidence derived from grand jury proceedings." The court therefore vacated the district court's decision and remanded for further proceedings.

Wednesday, September 14, 2016

WV priors not predicates under the ACCA

US v. White:  On appeal, White challenged the district court’s denial of his motion to suppress evidence (i.e., a firearm) obtained during a traffic stop that he argued was unconstitutionally prolonged.  The Fourth Circuit upheld the conviction, finding no constitutional problem with the traffic stop that occurred; it vacated White’s sentence, however, because the district court imposed an enhancement under ACCA for state burglary convictions that had been considered “violent felonies” under the residual clause at the time of White’s original sentencing, which Johnson, decided during the pendency of the appeal, later invalidated.

According to the Fourth Circuit, when an intervening decision of the Circuit or the Supreme Court affects precedent relevant to a case pending on direct appeal, an appellant may timely raise a new argument, case theory, or claim based on that decision while his appeal is pending without triggering the abandonment rule.

When White was originally sentenced, his prior state crimes qualified as “violent felonies” under the residual clause, because the crime posed the possibility of “face-to-face confrontation between the burglar and a third party.”  With Johnson, the Supreme Court expressly overruled precedent and invalidated the residual clause, and White sought leave to file a challenge to his sentence under the ACCA.  The question presented was whether White’s prior state convictions still met the definition of ACCA “violent felony” despite the invalidation of the residual clause.

Using the categorical approach, the Fourth Circuit determined that the WV burglary statute “sweeps more broadly than generic burglary.” Since the state convictions would only qualify as  predicates under the ACCA if the state crime elements were the same as or narrower than the ACCA-enumerated generic offense, the prior crimes here did not qualify as predicates.  The Fourth Circuit found that the district court erred in enhancing the sentence under the ACCA, and vacated it.

Harsh ethnic stereotyping amounts to constitutional error, but harmless

US v. Garcia-Lagunas: Garcia-Lagunas was convicted of conspiracy to distribute cocaine, and received a sentence of 188 months.  He appealed to the 4th Circuit, which affirmed his conviction.  He filed a petition for rehearing and rehearing en banc.  In this panel rehearing, the Fourth Circuit considered whether an evidentiary error could be harmless when the error assumes a constitutional dimension.  Here, the error was the Government’s improper use of an ethnic stereotype to rebut the defense theory that Garcia-Lagunas was a drug user but not a major drug dealer.

Police arrested Garcia-Lagunas in a “squalid” trailer with some body armor, a firearm, a large digital scale, and 800 grams of white powdery substance (later revealed by lab tests to contain no controlled substance).   At trial, the government presented its case that Garcia-Lagunas was a large-scale distributor responsible for selling upwards of 40 kilograms of cocaine, a much larger amount than stated in his indictment.  The evidence presented against him included statements from a detective who informed that jury that in his extensive experience investigating “Hispanic drug traffickers,” that “they’re very modest living” and “they send the majority if not all of the proceeds back to their native countries.”  The government also referred to this testimony in its closing to explain the defendant’s lack of extravagant lifestyle.  The government conceded at oral argument that the evidence in question was unconstitutional.

According to the Fourth Circuit, even without the improper use of an ethnic stereotype, however, a rational jury could have found Garcia-Lagunas guilty, so the Fourth Circuit held that it was satisfied the evidentiary error was harmless beyond a reasonable doubt, and affirmed the conviction.  The Fourth Circuit found that the improper evidence “did not pervade the trial.”

In dissent, Senior Judge Davis issued a stern rebuke of the panel’s decision:

“As in any prosecution, whether for a crime involving the infliction of unspeakable violence upon actual victims, or in the prosecution of the most plain-vanilla so-called “white collar” offense, and any prosecution in between, the defendant in our system is entitled to have the jury grapple, if it must, with his defense theory, unaided by blatantly foul blows delivered by the prosecution, abetted by the trial judge, in the use of racial or ethnic entreaties aimed at undermining or dismissing outright the defense theory of the case.”

“The Government’s appeal to an unabashed ethnic generalization was plainly a constitutional error, and as a result, it is the Government’s burden to prove that its error was harmless beyond a reasonable doubt.”

“After this published opinion, future panels of this Court will be required to struggle with the issue of just how much evidence of guilt is enough evidence of guilt to permit the Court to give the Government as pass when it bolsters its pursuit of a conviction through resort to gratuitous racial and ethnic evidence intended to spur one or more jurors to convict.  This case sets a very low bar, considering the level of certainty that the constitutional violation had not effect on any juror is agreed to by “beyond a reasonable doubt,” a standard that, interestingly, this Court has long refused to allow trial judges to define for ordinary jurors.  See United States v. Walton, 207 F.3d 694, 699 (4th Cir. 2000) (en banc) (“We find not reason to alter our current practice of not requiring a jury instruction defining reasonable doubt in criminal cases.”).  Perhaps, as we approach the 50th anniversary of the seminal teachings of Chapman v. California, the time has come for this Court to undertake an examination of just what “beyond a reasonable doubt” means, after all.”