US v. Phillips: Phillips was charged with and convicted of numerous fraud counts related to the fraudulent use of credit cards and businesses called Phydea (and it's associated website, Phydea.com) and Phydea Equity Fund. After an investigation, postal inspectors executed a search warrant at Phillips's home, which specifically authorized the seizure of documents related to Phydea.com and generally items "relating to fraudulent conduct and financial crimes." Among the items seized, after consultation with the US Attorney's office, were documents related to the Phydea Equity Fund. Prior to trial, Phillips moved to suppress the evidence seized because the material exceeded the scope of the seizure authorized by the search warrant. The district court denied the motion, Phillips was convicted at trial, and sentenced to a 121-month term of imprisonment.
Phillips appealed on the issue of the scope of the search and seizure, but the Fourth Circuit affirmed the district court's decision and Phillips's convictions. The court concluded that the items seized fell "comfortably within the warrant's scope," which the court described as "broad and permissive." The court rejected Phillips's reading that would "require us to hold that an item reasonably encompassed by the terms of the warrant somehow falls outside its scope because the item is probative of charges other than those initial charges set forth by the warrant." Given the intermingling of Phillips's frauds and the links between him, Phydea, and Phydea Equity Fund, the officers executing the search warrant were reasonable in seizing items related to all of them.
Wednesday, November 25, 2009
Court Can't Consult Statement from Related Case to Determine ACCA Applicability
US v. Harcum: Harcum pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was whether Harcum was an Armed Career Criminal, with particular focus on a prior Maryland conviction for second degree assault and whether it was a "crime of violence" under the ACCA.
Harcum was originally charged with assault in the District Court of Maryland in Baltimore City with a supporting Statement of Charges that alleged Harcum punched the victim in the face (sending said victim through a glass window). However, he was not convicted on that charge in that court. Instead, an information was filed in the Circuit Court for Baltimore City, alleging the same offense, on the same day, against the same victim as the District Court charge. However, unlike the District Court charge, the Circuit Court charge did not have an equivalent to the Statement of Charges laying out the offense conduct. Harcum pleaded guilty to second-degree assault based on the information in the Circuit Court.
The issue, both in the district court and in the Fourth Circuit, was whether the district court could look to the Statement of Charges filed in the District Court to determine whether the conviction sustained in the Circuit Court was a crime of violence (the Fourth has previously held that a conviction under the Maryland statute is not per se a crime of violence). The district court concluded that it could and, based on what it found there, concluded that Harcum's conviction was for a crime of violence and sentenced him as an Armed Career Criminal.
The Fourth Circuit disagreed and vacated Harcum's sentence, holding that nothing in the Circuit Court information incorporated the District Court Statement of Charges, either directly or implicitly.
Congrats to the defender office in Maryland on the win!
Harcum was originally charged with assault in the District Court of Maryland in Baltimore City with a supporting Statement of Charges that alleged Harcum punched the victim in the face (sending said victim through a glass window). However, he was not convicted on that charge in that court. Instead, an information was filed in the Circuit Court for Baltimore City, alleging the same offense, on the same day, against the same victim as the District Court charge. However, unlike the District Court charge, the Circuit Court charge did not have an equivalent to the Statement of Charges laying out the offense conduct. Harcum pleaded guilty to second-degree assault based on the information in the Circuit Court.
The issue, both in the district court and in the Fourth Circuit, was whether the district court could look to the Statement of Charges filed in the District Court to determine whether the conviction sustained in the Circuit Court was a crime of violence (the Fourth has previously held that a conviction under the Maryland statute is not per se a crime of violence). The district court concluded that it could and, based on what it found there, concluded that Harcum's conviction was for a crime of violence and sentenced him as an Armed Career Criminal.
The Fourth Circuit disagreed and vacated Harcum's sentence, holding that nothing in the Circuit Court information incorporated the District Court Statement of Charges, either directly or implicitly.
Congrats to the defender office in Maryland on the win!
Tuesday, November 10, 2009
16-Level Enhancement Requires Actual Trafficking in Prior Offense
US v. Maroquin-Bran: Maroquin-Bran was deported following a 1989 conviction in California for "the crime of SALE OR TRANSPORTATION OF MARIJUANA" (yelling in original statute). He reentered the country illegally in 2002 and was charged with illegal reentry in 2007. After pleading guilty, the main issue at sentencing was whether Maroquin-Bran's prior conviction was a "drug trafficking conviction" that triggered the 16-level enhancement under USSG 2K1.2(b)(1)(A). The district court concluded that it was and sentenced to Maroquin-Bran to 57 months in prison, the bottom of the resulting Guideline range.
On appeal, the Fourth Circuit reversed and vacated for further proceedings. Following in the footsteps of every other circuit to resolve the issue, the court held that in order for the enhancement to apply, the specific offense that the defendant was convicted of committing must be a "drug trafficking offense." It is not enough that the statute under which the conviction was obtained includes both trafficking and non-trafficking offenses. In other words, if the same statute addresses possession and distribution, the enhancement only applies if the prior conviction was actually for distribution, not possession. Because the district court was without that guidance initially, the court remanded the case for a determination of whether Maroquin-Bran's actual conviction was a drug trafficking conviction.
Congrats to the EDNC defender office on the win!
On appeal, the Fourth Circuit reversed and vacated for further proceedings. Following in the footsteps of every other circuit to resolve the issue, the court held that in order for the enhancement to apply, the specific offense that the defendant was convicted of committing must be a "drug trafficking offense." It is not enough that the statute under which the conviction was obtained includes both trafficking and non-trafficking offenses. In other words, if the same statute addresses possession and distribution, the enhancement only applies if the prior conviction was actually for distribution, not possession. Because the district court was without that guidance initially, the court remanded the case for a determination of whether Maroquin-Bran's actual conviction was a drug trafficking conviction.
Congrats to the EDNC defender office on the win!
Monday, November 09, 2009
Consideration of Uncharged Conduct at Sentecing OK
US v. Grubbs: Grubbs pleaded guilty to six counts of transporting a minor with intent to engage in sexual activity and six counts of travelling interstate to engage in sexual activity with a minor. Those charges involved two victims. In the PSR, the probation officer set forth allegations from nine other victims of similar conduct by Grubbs in the past.
At sentencing, the district court "expressed its concern" that the Guideline range of 151-188 months was not sufficient to fully account for Grubbs's conduct, as it was based only on the counts in the indictment and did not take into account the additional allegations in the PSR. Over Grubbs's objection, the district court concluded that the uncharged conduct was reliable enough to be used at sentencing and departed upwards both as to offense level and criminal history category, raising the Guideline range to 210-262 months. Grubbs received a 240-month sentence.
On appeal, the Fourth Circuit affirmed Grubbs's sentence. Grubbs's primary arguments on appeal related to the use of uncharged conduct to enhance his sentence.
First, he argued that the sentence violated his Sixth Amendment rights under Booker because the 240-month sentence is unreasonable if based only on the offenses of conviction. In other words, only by using uncharged conduct could the sentence be reasonable (this is essentially the argument from Scalia's dissent in Rita). The court rejected that argument as "nullified by clear Supreme Court and Fourth Circuit precedent" allowing the use of uncharged and acquitted conduct at sentencing. Booker, the court held, did not change that precedent.
Second, Grubbs argued that the sentence violated his Fifth Amendment due process rights because it was based on conduct not proven by clear and convincing evidence. Applying plain error (Grubbs did not specifically object to the use of a preponderance standard), the court concluded there was no error, "plain or otherwise," In doing so, the court concluded that whatever viability the potential exception to the general preponderance standard at sentencing suggested in McMillan v. Pennsylvania - where the enhancement is the "tail that wags the dog of the substantive offense" - has been "nullified" in light of Booker. Adopting a Sixth Circuit formulation, the court explains that challenges to large sentencing enhancements are properly dealt with in terms of Booker reasonableness review, not due process.
The court also rejected Grubbs's argument that the Guidelines had been improperly calculated.
At sentencing, the district court "expressed its concern" that the Guideline range of 151-188 months was not sufficient to fully account for Grubbs's conduct, as it was based only on the counts in the indictment and did not take into account the additional allegations in the PSR. Over Grubbs's objection, the district court concluded that the uncharged conduct was reliable enough to be used at sentencing and departed upwards both as to offense level and criminal history category, raising the Guideline range to 210-262 months. Grubbs received a 240-month sentence.
On appeal, the Fourth Circuit affirmed Grubbs's sentence. Grubbs's primary arguments on appeal related to the use of uncharged conduct to enhance his sentence.
First, he argued that the sentence violated his Sixth Amendment rights under Booker because the 240-month sentence is unreasonable if based only on the offenses of conviction. In other words, only by using uncharged conduct could the sentence be reasonable (this is essentially the argument from Scalia's dissent in Rita). The court rejected that argument as "nullified by clear Supreme Court and Fourth Circuit precedent" allowing the use of uncharged and acquitted conduct at sentencing. Booker, the court held, did not change that precedent.
Second, Grubbs argued that the sentence violated his Fifth Amendment due process rights because it was based on conduct not proven by clear and convincing evidence. Applying plain error (Grubbs did not specifically object to the use of a preponderance standard), the court concluded there was no error, "plain or otherwise," In doing so, the court concluded that whatever viability the potential exception to the general preponderance standard at sentencing suggested in McMillan v. Pennsylvania - where the enhancement is the "tail that wags the dog of the substantive offense" - has been "nullified" in light of Booker. Adopting a Sixth Circuit formulation, the court explains that challenges to large sentencing enhancements are properly dealt with in terms of Booker reasonableness review, not due process.
The court also rejected Grubbs's argument that the Guidelines had been improperly calculated.
Friday, October 30, 2009
Forced Medication Requries Clear and Convincing Evidence
US v. Bush: Barbara Bush (no, not that one) was charged with two counts of threatening a federal judge. She suffers from "Delusional Disorder, Persecutory Type," which manifests itself in "extreme litigiousness" - she filed more than 100 civil suits since 1995, one of which exploded into this case. As part of that litigation, she wrote a letter to several federal judges whom she believed had wronged her, outlining a theory of self defense (taken from a 1907 treatise) that she concluded would allow her to "slay any of such persons or all of them" (or attempt to "if she misses") who might do her continued harm. A second letter followed shortly thereafter.
After being arrested on the threat charges, Bush was sent to FMC Carswell for an evaluation where she was diagnosed. The evaluation concluded that Bush was incompetent to stand trial but that medication could restore her competency. Bush refused to take the medication, so the Government moved for an order to forcibly medicate her. At one of several hearings, Bush's personal physician agreed with the diagnosis from FMC Carswell, but disagreed that medication would help. One of the FMC Carswell docs testified that despite the "common wisdom" that conditions like Bush's would not respond to medication, he disagreed, partly based a fresh study (done after Bush's evaluation) from FMC Butner. The district court ordered Bush medicated, applying the analysis from Sell v. US.
Bush sought an interlocutory appeal and the district court's order was stayed. On appeal, the Fourth Circuit unanimously reversed the district court and remanded for further proceedings. First, the court held that in order to obtain an order to forcibly medicate a defendant the Government must satisfy all four prongs of the Sell analysis by clear and convincing evidence, rather than a mere preponderance. Applying that standard of proof, the court found the record lacking on the second Sell prong - whether medication will "significantly further" the government's interest in prosecution - and remanded to the district court for further proceedings on that issue. The court also remanded because the district court failed to address whether forced medication was medically appropriate and would serve Bush's best medical interests.
After being arrested on the threat charges, Bush was sent to FMC Carswell for an evaluation where she was diagnosed. The evaluation concluded that Bush was incompetent to stand trial but that medication could restore her competency. Bush refused to take the medication, so the Government moved for an order to forcibly medicate her. At one of several hearings, Bush's personal physician agreed with the diagnosis from FMC Carswell, but disagreed that medication would help. One of the FMC Carswell docs testified that despite the "common wisdom" that conditions like Bush's would not respond to medication, he disagreed, partly based a fresh study (done after Bush's evaluation) from FMC Butner. The district court ordered Bush medicated, applying the analysis from Sell v. US.
Bush sought an interlocutory appeal and the district court's order was stayed. On appeal, the Fourth Circuit unanimously reversed the district court and remanded for further proceedings. First, the court held that in order to obtain an order to forcibly medicate a defendant the Government must satisfy all four prongs of the Sell analysis by clear and convincing evidence, rather than a mere preponderance. Applying that standard of proof, the court found the record lacking on the second Sell prong - whether medication will "significantly further" the government's interest in prosecution - and remanded to the district court for further proceedings on that issue. The court also remanded because the district court failed to address whether forced medication was medically appropriate and would serve Bush's best medical interests.
Tuesday, October 20, 2009
Sex-Related SR Conditions Vacated in Threats Case
US v. Armel: Armel called a local FBI office in Virginia, claiming that the Bureau tried to kill him and owed him money. He called back shortly thereafter and claimed that if he didn't get "paid" the people in the office were "gonna' lose you're [sic] genitalia," that "God promised me he would curse you," and that if "[y]ou come and try to pull on me . . . [y]ou will die." He punctuated the final phone call (of three total) with a warning to "[g]et it straight or fucking die!" Armel was arrested and charged with threatening federal officials under 18 USC 115(a)(1)(B). After being convicted at a bench trial, Armel was sentenced to prison and a term of supervised release term that included special conditions involving pornography, contact with children, and mandated sex offender testing.
Armel appealed both his conviction and his sentence to the Fourth Circuit, which affirmed the conviction but vacated the special conditions of supervised release (Armel's term of imprisonment had ended by the time the case was decided).
On the conviction, the court concluded that there was sufficient evidence to support Armel's conviction, both because the statements at issue were true threats and they were directed to a small group of specific people (the employees in one particular FBI office) even if they were not directed at specific named individuals.
With regards to the supervised release conditions, the court found that, while the district court noted that they were "very rigid," it did not provide any basis for why such conditions were necessary in this case, in light of 3553(a). The conditions were not asked for by the Government, which did not argue that they were appropriate on appeal. Lacking any support in the record, the conditions were vacated and the case remanded for resentencing.
Congrats to the Defender office in the Eastern District of Virginia on the win!
Armel appealed both his conviction and his sentence to the Fourth Circuit, which affirmed the conviction but vacated the special conditions of supervised release (Armel's term of imprisonment had ended by the time the case was decided).
On the conviction, the court concluded that there was sufficient evidence to support Armel's conviction, both because the statements at issue were true threats and they were directed to a small group of specific people (the employees in one particular FBI office) even if they were not directed at specific named individuals.
With regards to the supervised release conditions, the court found that, while the district court noted that they were "very rigid," it did not provide any basis for why such conditions were necessary in this case, in light of 3553(a). The conditions were not asked for by the Government, which did not argue that they were appropriate on appeal. Lacking any support in the record, the conditions were vacated and the case remanded for resentencing.
Congrats to the Defender office in the Eastern District of Virginia on the win!
Tuesday, August 18, 2009
Good Faith Saves Search Based on Anticipatory Warrant
US v. Andrews: Andrews was convicted of being a felon in possession of a firearm after officers recovered a gun during the search of his home pursuant to a warrant. The warrant was issued after a package was intercepted at the local FedEx depot that contained marijuana. Although it was not addressed to Andrews (by name or by street address), circumstances, including a call from the shipper modifying the address (still not Andrews's), led officers to believe it was meant for him. They obtained an anticipatory search warrant set to become effective once Andrews took delivery of the box. Andrews took delivery of the box, took it inside briefly, and then took it to another nearby home. He was arrested at that point and the search, which uncovered the gun, took place.
As before the district court, on appeal Andrews argued that the search of his home violated the Fourth Amendment. The Fourth Circuit disagreed (as did the district court, obviously) and affirmed his conviction. Applying Leon, the court concluded that the facts presented to the issuing magistrate were not so deficient such that they clearly failed to establish probable cause or that the magistrate acted merely as a rubber stamp for the officer. The court also rejected Andrews's argument that the officer who obtained the warrant had misled the issuing magistrate by leaving out relevant information about the location of the search.
As before the district court, on appeal Andrews argued that the search of his home violated the Fourth Amendment. The Fourth Circuit disagreed (as did the district court, obviously) and affirmed his conviction. Applying Leon, the court concluded that the facts presented to the issuing magistrate were not so deficient such that they clearly failed to establish probable cause or that the magistrate acted merely as a rubber stamp for the officer. The court also rejected Andrews's argument that the officer who obtained the warrant had misled the issuing magistrate by leaving out relevant information about the location of the search.
Jurisdiction Proper in North Carolina to Prosecute Assault in Afghanistan
US v. Passaro: This case arises from an "interrogation" Passaro, a former special forces medic (apparently a civilian contractor at the time of the incident), inflicted upon an Afghan detainee at a small US base in Afghanistan in 2003. The interrogation consisted mostly of beating and kicking (the suspect died shortly thereafter), which led to Passaro being charged and convicted of assault with a deadly weapon and assault resulting in serious bodily injury (two counts of each) and being sentenced to a 100-month term of imprisonment. The wrinkle is that, while the crime occurred in Afghanistan, it was prosecuted in the Eastern District of NC when Passaro returned to the United States.
On appeal, Passaro challenged his conviction and both he and the Government challenged his sentence. As to the conviction, Passaro first argued that the district court in North Carolina lacked the jurisdiction over acts committed in Afghanistan. The Fourth Circuit disagreed, arguing that the language of 18 USC 7(9) extended jurisdiction to incidents that happened at the US base in Afghanistan. The court also turned away Passaro's argument that the prosecution violated separation of powers principals because the courts were interfering with the executive's foreign policy authority, noting that the executive was the one that brought the prosecution in the first place. In addition, the court concluded that the statute under which Passaro was convicted, 18 USC 113, was not unconstitutionally vague, rejecting his argument that his "battlefield interrogation" could not be an "assault." Passaro's argument that the district court erred in dealing with classified information denied him a fair trial was similarly turned away.
As to sentencing, both Passaro and the Government agreed that the district court's Guideline calculations were wrong (although for slightly different reasons), therefore Passaro's sentence was vacated and the case remanded for resentencing.
On appeal, Passaro challenged his conviction and both he and the Government challenged his sentence. As to the conviction, Passaro first argued that the district court in North Carolina lacked the jurisdiction over acts committed in Afghanistan. The Fourth Circuit disagreed, arguing that the language of 18 USC 7(9) extended jurisdiction to incidents that happened at the US base in Afghanistan. The court also turned away Passaro's argument that the prosecution violated separation of powers principals because the courts were interfering with the executive's foreign policy authority, noting that the executive was the one that brought the prosecution in the first place. In addition, the court concluded that the statute under which Passaro was convicted, 18 USC 113, was not unconstitutionally vague, rejecting his argument that his "battlefield interrogation" could not be an "assault." Passaro's argument that the district court erred in dealing with classified information denied him a fair trial was similarly turned away.
As to sentencing, both Passaro and the Government agreed that the district court's Guideline calculations were wrong (although for slightly different reasons), therefore Passaro's sentence was vacated and the case remanded for resentencing.
DC Use of Presumption of Reasonableness Requires Resentencing
US v. Raby: Raby pleaded guilty to possession of child porn and faced a Guideline range of 210-262 months. Over the course of several sentencing hearings, during which Raby argued for a variance and the Government sang from the Guideline hymnal, the district court judge repeatedly stated that he didn't see how he could impose anything other than a Guideline sentence without getting reversed on appeal. In the end, he imposed a 210-month sentence, explaining that he wasn't at liberty to consider any of the several mitigating factors without being "unreasonable."
Years pass, as the case languishes on appeal. In the interim, the Supreme Court decides Gall and other cases that both uphold the presumption of reasonableness as an appellate review tool, but make clear that district court's cannot apply it at the initial sentencing. The Fourth Circuit, after lots of direct quotations from the numerous sentencing hearings, concluded that the district court erroneously applied the presumption at sentencing and, thus, Raby's sentence was procedurally unreasonable. His sentence was vacated and the case remanded for a new sentencing hearing.
Congrats to the defender office in the SDWV for the win!
Years pass, as the case languishes on appeal. In the interim, the Supreme Court decides Gall and other cases that both uphold the presumption of reasonableness as an appellate review tool, but make clear that district court's cannot apply it at the initial sentencing. The Fourth Circuit, after lots of direct quotations from the numerous sentencing hearings, concluded that the district court erroneously applied the presumption at sentencing and, thus, Raby's sentence was procedurally unreasonable. His sentence was vacated and the case remanded for a new sentencing hearing.
Congrats to the defender office in the SDWV for the win!
Wednesday, July 22, 2009
Maker of Fake Money Not Necessarily a "Leader" of Operation
US v. Cameron: Cameron was caught trying to pass a counterfeit $20 bill at a store in Dunbar. Police who responded secured a second fake $20 and an admission from Cameron that he intended to pass it. Searches of Cameron's grandmother's home and his sister's home follow, uncovering various implements and equipment that could be used for making counterfeit bills. In particular, officers seized a computer from his sister's house that had, on the hard drive, a single image of a counterfeit $20 bill. Cameron went to trial and was convicted of producing and uttering counterfeit currency.
At sentencing, his offense level was enhanced under USSG 3B1.1(a) for being an "organizer or leader" of the counterfeiting operation. However, at sentencing, the Government's sole witness actually testified that she barely knew Cameron, didn't know much of his role in the operation, that he did not recruit her, nor did he get a cut of the scheme's proceeds. Nonetheless, the district court overruled Cameron's objection and imposed the enhancement. Cameron was sentenced to 46 months in prison.
On appeal, Cameron challenged both his production conviction and the application of the leadership enhancement. The Fourth Circuit affirmed the conviction, concluding that there was sufficient evidence collected from the two searches (there was no testimony from inside the operation at trial) to allow a jury to conclude that the Government met its burden of proof.
However, the Fourth Circuit vacated the sentence because of the application of the leadership enhancement. Reiterating both earlier precedent and Guideline commentary that the enhancement only applies to the supervision of other people, not property. It rejected the Government's argument that because Cameron made the bills he must have exercised some leadership role in the operation. The court also noted that the Guidelines provide a separate enhancement in counterfeiting cases for the person who actually makes the fake bills.
Congrats to the SDWV defender office on the win!
At sentencing, his offense level was enhanced under USSG 3B1.1(a) for being an "organizer or leader" of the counterfeiting operation. However, at sentencing, the Government's sole witness actually testified that she barely knew Cameron, didn't know much of his role in the operation, that he did not recruit her, nor did he get a cut of the scheme's proceeds. Nonetheless, the district court overruled Cameron's objection and imposed the enhancement. Cameron was sentenced to 46 months in prison.
On appeal, Cameron challenged both his production conviction and the application of the leadership enhancement. The Fourth Circuit affirmed the conviction, concluding that there was sufficient evidence collected from the two searches (there was no testimony from inside the operation at trial) to allow a jury to conclude that the Government met its burden of proof.
However, the Fourth Circuit vacated the sentence because of the application of the leadership enhancement. Reiterating both earlier precedent and Guideline commentary that the enhancement only applies to the supervision of other people, not property. It rejected the Government's argument that because Cameron made the bills he must have exercised some leadership role in the operation. The court also noted that the Guidelines provide a separate enhancement in counterfeiting cases for the person who actually makes the fake bills.
Congrats to the SDWV defender office on the win!
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