Wednesday, November 14, 2018

Office Knowlege Can Be Considered When Determining Good Faith

USv. Thomas: Thomas was being investigated by state authorities on allegations that he had sexually assaulting two boys. During an interview with investigators, he admitted to touching the boys, one of whom explained how Thomas had used his cell phone to contact the boys’ mother to arrange further contact with them. After he was charged in state court, the lead investigator got a warrant to search Thomas’ phone. Notably, the affidavit did not mention the use of the phone during the offense. The warrant was issued, executed, and child pornography found on Thomas’ phone. The state investigation ceased and Thomas was charged federally with the possession of child pornography. Thomas filed a motion to suppress, arguing that the affidavit in support of the search warrant was insufficient. The district court agreed, but held that the Leon good-faith exception applied because the officer knew about the link between the phone and the offense, even if it didn’t make it into the warrant affidavit.

The Fourth Circuit affirmed the denial of Thomas’ motion to suppress. The court held that under Leon courts could “look beyond the four corners of the affidavit . . . and consider as well facts know” to the officer. It rejected Thomas’ argument that the omission in this case wasn’t inadvertent (as it had been in a similar prior Fourth Circuit case), because the omission here did not “result from the kind of deliberate or bad faith effort to mislead a magistrate” that would avoid the protections of Leon.

Unexplained Variance After 2255 Error, But Harmless

US v. Ketter: Ketter was convicted of being a felon in possession of a firearm and sentence to 192 months in prison under the Armed Career Criminal Act. After Johnson, and after having served 90 months in prison, Ketter successfully had his sentence vacated in a 2255 proceeding.  A New PSR calculated Ketter’s advisory Guideline range as 27 to 33 months, with a supervised release term of 1 to 3 years. The district court imposed a sentence of time served, to be followed by a two-year term of supervised release. That was opposed to the usual three-year term, with the court taking into account that Ketter had served 53 months over the Guideline range.

Ketter appealed, arguing that his sentence was substantively unreasonable. The Fourth Circuit disagreed. First, it held that the matter was not moot (as argued by the Government after being directed to address the issue by the court) because, even though Ketter had served his sentence of imprisonment, the district court on remand could still provide relief in the form of a lower term of supervised release. As to the sentence, the court concluded it was an “unexplained variance . . .and so constituted procedural error,” but that any error was harmless. That was because “the district court fully and expressly accounted for Ketter’s overserved time” when it imposed a two-year term of supervised release. In addition, “any error did not have the practical effect of prolonging Ketter’s incarceration by even one day.”

Statements of Jurors Not Enough to Warrant Further Investigation of Bias

USv. Birchette: Just last term, in Pena-Rodriguez v. Colorado, the Supreme Court created an exception to the general rule that a jury’s verdict cannot be impeached by testimony about deliberations from jurors when there is evidence that racial bias played  a part in the verdict. Birchette, an African-American, was charged with firearm and drug offenses. Shortly after the district court gave an Allen charge to the jury, an African-American juror asked to be released from duty, but didn’t explain why. Eleven minutes later the jury convicted Birchette on all counts. After the verdict, another African-American juror approached defense counsel and said he was “sorry they had to do that.” Another juror, a white woman, said that “the two of you are only doing this because of race” and that “we worked it all out.” One of those jurors (it’s unclear which) also told a defense paralegal that “I appreciate what y’all do” and, to the two African-American jurors, “It’s a race thing for you.” The district court rejected Birchette’s motion to further question the rest of the jurors, concluding that there was not good cause to do so because the reported statements “do not reflect racial bias against” Birchette.

On appeal, the Fourth Circuit affirmed Birchette’s conviction and found that the district court did not abuse its discretion in denying his motion for further jury questioning. Noting that the Supreme Court had not said when parties must be able to investigator jurors when issues of racial bias arise, the court concluded that the Supreme Court had drawn a distinction between “statements exhibiting overt bias that casts serious doubt on the fairness and impartiality of the jury’s deliberations” and “offhand comment[s] indicating racial bias or hostility.” Only statements falling into the first category would allow for further investigation and the statements in this case did not meet that standard. The statements in this case fell short of the comments in Pena-Rodriguez, where a juror said “I think he did it because he’s Mexican.”

The court also held that the district court did not err in keeping Birchette from questioning one of the police officers involved about statements he made in a prior case. In the prior case the officer had acted in the believe he had reasonable suspicion under the Fourth Amendment, but a court later found that he did not. The Fourth Circuit concluded that evidence of that disagreement wouldn’t shed any light on the officer’s truthfulness.