Tuesday, August 22, 2017

No Johnson Relief for Pre-Booker Defendants

US v. Brown: Brown was convicted on drug and gun charges and sentenced as a career offender back in the pre-Booker mandatory Guideline era. One of his prior convictions was for assaulting a police officer while resisting arrest in South Carolina. After Johnson was decided in 2015, Brown filed a 2255 motion arguing that Johnson made the residual clause of the "crime of violence" definition inactive and that his assault conviction didn't otherwise require the use of force. The district court denied the motion.

The Fourth Circuit affirmed the denial, 2-1. We know that after Beckles defendants sentenced after Booker came out are doomed, because the Supreme Court held that advisory Guidelines are not subject to challenge as being unconstitutionally vague. But what about pre-Booker defendants like Brown? Brown argued that Beckles didn't address that issue and that a close reading of Johnson, Booker, and Beckles shows that the Supreme Court has recognized the right he is trying to assert - to not be sentenced pursuant to a unconstitutionally vague mandatory Guideline range. The Fourth Circuit concluded that was precisely the problem - by leaving the question open, the Supreme Court has not actually recognized the right Brown needs to take advantage of. As a result, there is no new declaration of a right that restarts the 1-year limitation on filing 2255 motions. As a result, Brown's motion was untimely because it was filed well after his conviction became final in 2003.

Chief Judge Gregory dissented, arguing that a newly recognized right it not just the "four corners of that holding" in which it is announced, but "is more sensibly read to include the reasoning and principles that explain it."

Wednesday, August 16, 2017

Trial Judge's Comments About Immigration Program (and the People Who Use It) Require Reversal

US v. Lefsih: Lefsih came to the United States from Algeria via the Diversity Immigrant Visa Program ("DIVP") - a program that provides chances for people from countries without a lot of immigration to the United States to qualify for a lottery and, if they win the lottery, to legally enter the United States. After five years in the United States, Lefsih sought citizenship. On an application form he answered "no" to a question about whether he had "ever been arrested, cited, or detained" by law enforcement. In truth, he had received multiple traffic citations while working as a cab driver. Lefsih claimed that he didn't think such tickets fit the definition of "arrested, cited, or detained" and didn't knowingly provide a false answer. Lefsih was charged with two counts each of making a false statement and immigration fraud and went to trial.

At trial the Government presented testimony from an immigration officer who explained how the DIVP worked. During his testimony the district court repeatedly interjected with its feelings on the program, expressing its amazement that such a thing existed: "Do you think anybody in American knows about this, other than the Committee that sent it through Congress? Probably not."; "Don't you love Congress? I mean, unbelievable, unbelievable. I'm sitting here 32 years, first time I ever heard this." The district court later asked if the witness was "talking about the hundred countries that nobody could name," which were "the bottom hundred," such as Mauritania or Moldova. The court contrasted immigration policies involving "countries that send a lot of people here" and where "you have to show you're . . . someone who is going to contributed to the well-being of the"country with those in the DIVP who "don't have to be a back surgeon or anything."  Finally, the court asked "if you get luck and win the lottery and get a card to come to America you can drag along you ten kids and four wives or what?" Lefsih didn't object to any of this and was eventually convicted on all counts. The district court dismissed the two false statement counts to avoid double jeopardy issues and imposed a sentence of time served (Lefsih was turned over to ICE custody for deportation).

The Fourth Circuit reversed Lefsih's convictions. Although the court found that Lefsih's convictions were supported by sufficient evidence, the court concluded that the district court's repeated interjections about the DIVP denied Lefsih of his right to a fair trial (even applying plain error review). The district court's interjections had the effect of "unfairly lending credibility to the government's case." That was particularly true because the comments went beyond isolated statements about DIVP itself to include criticism of the people who took advantage of the program, like Lefsih. The problem was not "the extent of the judicial participation at trial, but instead the actual content of the court's questions and comments." Lefsih was able to demonstrate prejudice because the Government's case was "substantially weaker" than the "compelling and overwhelming" evidence in similar cases. Furthermore, the district court's belated instruction to the jury that anything it says should not impact their decision was insufficient to cure the prejudice.

Court Affirms Restitution, Non-Recusal In Mortgage Fraud Case

US v. Stone: Stone ran a mortgage fraud scheme, where she "convinced financially distressed homeowners to engage her services as a real estate agent to negotiate 'short sales' with the mortgage holders on behalf of those homeowners." She would buy the properties at an artificially low price, then "flip" the houses, selling them to "predetermined buyers" for much higher prices. As a result, she was charged with numerous fraud offenses as well as conspiracy. Prior to trial she filed a pro se (and "largely unintelligible") motion for the district court to recuse itself because he "sits in consort with the accuser(s)." At a hearing on the motion, Stone (still acting pro se on this issue, although she was represented by counsel) asked if the court had stock or other interests in any of the banks involved in the mortgages. The court responded that "if there was a conflict I wouldn't be here," repeatedly, and denied the motion. Stone was found guilty by a jury on all counts. Prior to sentencing, the PSR calculated the losses of the various mortgage lenders to be just over $2.3 million. Stone objected to that figure for sentencing purposes, but not restitution, arguing that it inflated the true losses suffered and "gives the lenders and windfall the never would have realized." The district court adopted the PSR's calculation, sentenced to Stone to 60 months in prison and required her to pay the full amount in restitution.

While the appeal was pending. Stone filed a motion for a new trial, arguing that the district court should have recused himself due to "an alleged conflict of interest stemming from its ownership of stock in some of the victim banks." The court denied the motion, but did admit that it "did have a financial interest in some of the victim banks" but that still did not require recusal.

On appeal, the Fourth Circuit affirmed Stone's conviction and sentence. Reviewing the amount of restitution for plain error, the court found no error at all, concluding that the "preponderance of evidence shows that Stone fraudulently induced the lenders to approve the short sales and forego the full value of the mortgages." Particularly, Stone had not presented any evidence to support her argument that the lenders wouldn't have gotten the full value of the mortgages in the regular course of business anyway. For the same reason, the court also concluded that the district court did not clearly err in calculating the loss amount for purposes of calculating the advisory Guideline range.  On the recusal, the court found that the "district court's ownership of stock in the victim lenders is not a . . . financial interest" that required recusal because "the victim lenders here are not parties to the action; this is a criminal case between Stone and the Government." Moreover, any financial interest involved is so small as to be practically nil where the $2.3 million in restitution "will have a negligible effect, if any, on the value of these lenders, each of which is worth many hundreds of millions - if not billions - of dollars."

Adam Walsh Act Has Low Standard for Hearing on Motion to Release

US v. Maclaren: In 2009 the Government declared that Maclaren was a "sexually dangerous person" and subject to indefinite detention under the Adam Walsh Act (the opinion doesn't report what his initial conviction was for, but a footnote states he is "believed to have sexually abused" over 38 children over  period of more than 40 years). In 2013, the district court found the Government had met its burden and ordered Maclaren committed. In 2015, Maclaren filed a motion seeking a hearing on whether he should be discharged pursuant to a conditional release plan. The district court denied the motion, holding that Maclaren had not shown in his motion that his condition had improved since his commitment and he had failed to provide information about a release plan.

On appeal the Fourth Circuit reversed the district court's decision, but not on the merits. Rather, the issue was what showing a person like Maclaren had to show in such a motion to get a hearing, not get release. The court agreed with Maclaren that "a successful motion for a discharge hearing need only plausibly allege that the detainee is entitled to discharge." The district court erred by treating the motion as an vehicle for reaching the substantive issue of whether Maclaren should be released, not whether he was entitled to a hearing on whether he should be released.

Congrats to the Defender office in the ED North Carolina on the win!

Thursday, July 27, 2017

Flight crew interference not categorically COV

US v. Diaz:  In this appeal, the Fourth Circuit considered whether the Victim and Witness Protection Act (VMPA) or the Mandatory Victims Restitution Act (MVRA) applied in the defendant, David Diaz’ case, after he pleaded guilty to interfering with the flight crew on a cross-country flight he tried to take in 2015.  Diaz, who self-medicated his declining mental health, got drunk before a flight that he was supposed to take to move from his father’s home in Northern Virginia, to his mother’s home in Texas.  Approximately 45 seconds after take off, an inebriated Diaz left his seat and rushed the cockpit, and resisted attempts to restrain him.  After the plane landed back in D.C. a short 13 minutes later, the flight crew refused to get back on the plane, the flight was canceled and passengers booked onto other flights.  United Airlines lost approximately $22k as a result.

After Diaz pleaded guilty, the PSR noted United’s losses but did not indicate a statutory basis for restitution.  Diaz argued that his offense fell within the scope of the VMPA and restitution was not mandatory, but he suggested that he could more readily afford a slightly lesser amount of restitution, in light of his financial situation.  At sentencing, the government argued for the application of the MVRA and mandatory restitution.  The district court agreed with the government, and did not rule on whether flight crew interference was a crime of violence.  Diaz appealed the restitution order.

The issue for the Fourth Circuit was whether it is possible for a crime presumptively covered by the VWPA to instead fall within the scope of the MVRA, and the court says yes.  It is clear that the MVRA may apply in determining restitution for a defendant who interferes with a flight crew, but only if it is also determined that flight crew interference falls within the scope of a statutory list of certain crimes.  If it is not a crime of violence, it won’t fit on the list.  The Fourth Circuit did a categorical approach analysis of whether flight crew interference is a crime a violence and determined the statute is indivisible, that it did not qualify as a crime of violence under the force clause (and the government, by failing to address the argument, waived the residual clause possibility).  It concluded that the appropriate statute to apply in Diaz’s case for determining the restitution question here was the VWPA.

Thursday, July 20, 2017

Survivor's benefits are "things of value"

US v. Kiza:  Social Security survivor’s benefits are benefits paid to eligible surviving spouses and children, and they come from a trust fund established by Congress.  To oversee the trust, Congress created a Board of Trustees that reports to Congress on its operation and “actuarial status,” recommends improvements to its administration, and notifies Congress when the amounts in the fund grew too small.

In this case, Kiza began receiving survivor’s benefits as the representative payee for his two children, after representing to the Social Security Administration that his minor children were entitled to benefits upon the death of their father.  Except he wasn’t dead, just created a fake identity, his “twin brother.”  In total, Kiza received survivor’s benefits around $51,860.  

Kiza was indicted for theft of government property and he went to trial.  The jury found Kiza guilty of the sole charge against him.  He appealed, arguing that the survivor’s benefits were not “things of value.”  In Kiza’s argument, the benefits he received from the trust were money from individual citizens, not money from the U.S. Government.  The Fourth Circuit agreed with the government’s position that the money originated from the government, were regulated and accounted for by the government, so the benefits were a thing of value.  The Fourth Circuit upheld the verdict against him.

(Decided 5/1/17).

Residual Clause of career offender guideline valid for MD robbery with dangerous weapon

US v. Riley:  On appeal, Riley challenged his classification as a career offender, arguing that his prior conviction for Maryland robbery with a dangerous weapon was not a predicate “crime of violence” to enhance his sentence (from a guidelines range of 21-27 months to a whopping 210-262 months).  Riley did not object at the time of sentencing, so the Fourth Circuit reviewed Riley’s issue for plain error, instead of review de novo.

The Fourth Circuit held that the district court did not err in classifying Riley as a career offender, as Maryland robbery with a dangerous weapon “fits comfortably” within the residual clause’s definition of a crime of violence.  Despite Johnson and because of Beckles, the Fourth Circuit concluded, the residual clause of the career offender guideline remains valid.

(Decided 5/9/17).

16-level bump affirmed

US v. Walker:  In this case, a Jamaican national pleaded guilty to illegal reentry, and the district court that sentenced him found him to have been previously convicted of an aggravated felony.  This prior offense was a drug conviction from Ohio, which the district court concluded was a “drug trafficking offense” which called for a 16-level enhancement of Walker’s sentence, yielding an advisory guidelines range for Walker of 46-57 months.  The district court imposed a 30-month sentence, and Walker appealed the issue of whether his drug crime was a “drug trafficking offense.”

The Fourth Circuit affirmed the application of the enhancement to Walker’s sentence, after concluding that his prior drug conviction from Ohio qualified as a “drug trafficking offense” under the illegal reentry guideline, then in effect.  In 2004, Walker pleaded guilty to a charge of drug trafficking under Ohio law.  Walker argued that the conviction should not qualify as a “drug trafficking offense” because the statute required only that the defendant act knowingly, rather than with specific intent, as he argued was required by the guidelines.  The Fourth Circuit disagreed, finding that Walker misread the guidelines’ definition of “drug trafficking offense,” and that the absence of a specific-intent requirement in the Ohio statute does not prevent the 2004 conviction from qualifying as a drug trafficking offense under the guidelines.

The Fourth Circuit analyzed the Ohio statute using the categorical approach, stating that the Ohio statute qualifies as a drug trafficking offense only if all of the ways of violating the statute, including the least culpable, satisfy the definition of “drug trafficking offense.”  The 10th circuit considered the same Ohio statute and found that it qualified as a “controlled substance offense” under the career-offender guideline, concluding that all the acts prohibited by the Ohio statute qualified as “distribution.”  The Fourth Circuit agreed with 10th Circuit and concluded here that Walker’s conviction from Ohio qualified as a “drug trafficking offense” and the 16-level enhancement to his sentence was proper.

(Decided 5/24/17).

NC robbery with a dangerous weapon qualifies as ACCA predicate under force clause

US v. Burns-Johnson:  The mandatory minimum 15-year term of imprisonment imposed here was upheld by the Fourth Circuit, which found that even though robbery is not an enumerated offense, statutory armed robbery in North Carolina qualifies as a violent felony under the force clause of the ACCA.  Under a categorical approach, the Fourth Circuit held that robbery with a dangerous weapon categorically qualified as a violent felony under the ACCA force clause.

Burns-Johnson argued on appeal that his prior conviction did not qualify as a violent felony because the crime did not require the use of violent physical force “capable of causing physical pain and injury to another person,” e.g. administering poison.  The Fourth Circuit disagreed, holding that Torres-Miguel was not dispositive here, and even if NC statutory armed robbery could by committed by use of poison, the crime would still entail the use, attempted use, or threatened use of violent physical force under the ACCA, based on its holding in In re Irby and the Supreme Court’s holding in Castleman.

Burns-Johnson also argued that his prior conviction did not constitute a violent felony because it did not explicitly require that a person intentionally use or threaten to use force, which argument the Fourth Circuit foreclosed in its recent decision, United States v. Doctor.  The Fourth Circuit found that it would require the exercise of pure “legal imagination” to suppose that NC appellate courts would apply this statute when a robbery occurred with the unintentional use of a dangerous weapon.

Mandate Rule and Sentencing Package Doctrine in Re-sentencing appeal

US v. Ventura:  The Fourth Circuit granted Ventura relief from one count of seven for which he had received convictions, and remanded his case to the district court for re-sentencing.  Originally, he received a sentence of 420 months for his part in operating several brothels in Annapolis and Easton, Maryland, and in Portsmouth, Virginia.  On re-sentencing, Ventura received a sentence of 420 months again.  He appealed, arguing that the district court violated the mandate rule, arguing that the district court acted vindictively in sentencing him a second time to 420 months, even though one of his convictions had been overturned.  Third, he argued the new sentence was unreasonable because the court considered facts related to the count that had been vacated as well as some of his conduct while he was incarcerated with the BOP.  The Fourth Circuit affirmed.

In its analysis, the Fourth Circuit determined that the mandate rule was not violated because the lower court was permitted to consider the issue de novo and it could entertain any relevant evidence on that issue that it could have heard at the first hearing.  Additionally, pursuant to the Sentencing Package Doctrine, when a court of appeals vacates and remands a case for re-sentencing, the original sentence becomes void in its entirety and the district court is free to revisit any rulings from the initial sentencing.  The Fourth Circuit found that the sentencing package doctrine controlled the result in this case.  Moreover, the Fourth Circuit determined that its remand did not automatically entitle Ventura a 60-month reduction merely because his count seven conviction had been vacated; rather, the mandate left plenty of room for the district court to recalculate the sentences for the other six convictions that were not vacated.  The Fourth Circuit held that the district court did not exceed the mandate in the First Decision (appeal).  

Regarding the vindictiveness challenge, the Fourth Circuit held that Ventura’s challenge failed because he did not receive an increase in his aggregate sentence upon re-sentencing; the district court imposed the same term.  Under the “aggregate package” approach, courts compare the total original sentence to the total sentence after re-sentencing.  If the new sentence is greater than the original sentence, the new sentence is considered more severe.  Since Ventura received the same sentence, 420 months in prison, his attempt to establish a presumption of vindictiveness fails.

Finally, Ventura’s reasonableness challenges fail because the district court was permitted to consider Ventura’s violent conduct and alleged possession of firearms in crafting his sentence, and secondly, the factual underpinnings of the vacated count against Ventura were nonetheless proved by a preponderance of the evidence and could be considered in connection with Ventura’s re-sentencing.  With regard to Ventura’s conduct while in BOP custody, the Fourth Circuit held that a re-sentencing court could account for and decrease a sentence based on a defendant’s rehabilitation, or, by the same token, potential misdeeds.

No credit for time on improper release from jail

US v. Grant:  In this case, Briceton Grant pled guilty to an information that charged him with possession of PCP, and received a sentence that included one year of supervised probation.   A mere four days later, Grant received an additional charge of PWID marijuana and a schedule I/II drug.  His PO filed a petition to revoke his supervised probation.  A magistrate judge found Grant in violation and revoked his probation, and remanded Grant to the marshals for 15 days of incarceration as punishment for the violation.

The marshals erroneously allowed Grant to be released eleven days too early.  Grant’s attorney contacted the government to determine how to proceed given the error.  Grant’s PO filed a petition to have Grant remanded to serve the additional days, and Grant surrendered to the marshals.  Grant filed a motion to receive credit for the 10 days during which time he was mistakenly release.  After the magistrate denied the motion, Grant filed the instant appeal.

According to the Fourth Circuit, there appeared to have been a federal common law right to credit for time erroneously spent at liberty that dated back to the 1930s, and since then, some sister circuits have recognized a federal common law right to credit for time erroneously spent at liberty.  Some circuits award this credit when the government has been shown to have acted maliciously.  Other courts award credit whenever the government errs, even if it was merely negligent.  The Court notes that it is not certain at all that a federal common law right to credit for time erroneously spent at liberty currently exists.  Grant played no role in causing the premature release, and the government did not act with malice when it negligently released him.  Yet, the Fourth Circuit held that the district court did not abuse its discretion in denying Grant his credit for time erroneously at liberty because Grant had paid only 1/3 of his debt to society, he could serve his time on weekends to accommodate his employment, the ten days will not disrupt his life in a way that months or years of re-incarceration might do, and the government promptly recognized its mistake.  The Fourth Circuit affirmed the district court’s judgment.

Wednesday, July 05, 2017

Indirect Force Enough to Sustain ACCA Sentence

US v. Reid: Reid was convicted of being a felon in possession of a firearm. He had three prior conviction in Virginia for inflicting bodily injury on a correctional officer. The district court concluded that these were "violent felonies" for ACCA purposes and sentenced Reid to 15 years in prison.

The Fourth Circuit affirmed the sentence. Applying the categorical approach, the court concluded that the Virginia offense was a violent felony and, therefore, the ACCA mandatory minimum was triggered. It rejected Reid's argument that although the offense requires the causing of bodily injury, it did not meet the meaning of "force" (as the Supreme Court set forth in 2010's Johnson) because such injuries could be sustained by "indirect means." In other words, Reid relied on Torres-Miguel and it's conclusion that just because an offense requires a particular level of energy does not mean it has an element requiring the use of force. The court adopted the Government's position that the Supreme Court's decision in Castleman eclipses Torres-Miguel ("while the holding may still stand . . . it's reasoning can no longer support" the argument) and, therefore, indirect force is good enough. The court cites Irby, but does note that it doesn't apply directly to ACCA. Again, there doesn't seem to be any engagement with the idea that the language of Castleman (and Voisine) itself limits its reach to misdemeanor crime of domestic violence situations.

Wednesday, June 28, 2017

Only Assistance Itself Is Relevant to Guideline-Based Substantial Assistance Departure

US v. Concha: Concha was convicted of conspiracy to distribute cocaine on the basis of 43 kilos of cocaine that were found in his tractor trailer. After his arrest, Concha worked with law enforcement to deliver his cargo, thus leading to the arrest of his co-conspirators. At sentencing, his advisory Guideline range was 168 to 210 months in prison. The Government moved for a departure for substantial assistance, "viewed Concha's assistance very favorably," and asked the court to depart 50% from the bottom of the Guideline range. The district court granted the departure, but balked at the 50% request due to "his involvement in these drug crimes, and it's huge" and a recognition that he was able to provide such valuable assistance precisely because he was so deep in the conspiracy. The district court eventually imposed a sentence of 126 months, a 40% reduction from the top of the advisory Guideline range.

The Fourth Circuit vacated Concha's sentence. Noting that it's review was based on the district court's error of law in giving the departure, not the amount of the departure itself, the court distinguished between assistance departures under Rule 35 and the Guidelines. Under Rule 35, a court may only consider the defendant's assistance in deciding whether to grant a departure, but may consider other factors in determining the extent of the departure. Under the Guidelines, however, the sentencing court may only consider assistance related factors when determining the extent of the departure. In Concha's case, the district court considered factors beyond his assistance in deciding the extent of the departure. Those factors were appropriate for the determination of what the non-departure sentence would have been (top of the Guideline range), but not the extent of a subsequent departure.

Court Limits Ability to Raise New Issues in 2254 PF&R Objections

Samples v. Ballard: Samples was convicted of murder in West Virginia and sentenced to life in prison. A first 2254 petition in Federal court was denied because Samples had not yet exhausted his state habeas remedies. In denying the motion, the court stated that Samples might be able to bring a 2254 claim for ineffective assistance of counsel claim under Martinez, which allows defendants to bring IAC claims in federal court even if not made in a state habeas proceeding. After an unsuccessful return to state court, Samples filed a second 2254 petition, which the magistrate judge recommended be dismissed. In the objections to those PF&Rs, Samples raised, for the first time, "contentions related to the effectiveness of trial counsel, and argued that cause existed to excuse his failure to exhaust these issues" under Martinez. The district court overruled the objections, concluding that it had the ability to hear the IAC claims, but exercised its discretion not to do so. The district court also granted a certificate of appealability on the issue of whether it should hear Samples's IAC claims raised for the first time in the objections.

The Fourth Circuit affirmed the district court's decision. First, the court held that a prior decision (George ), in which it held that a district court performing a de novo review of a magistrate's recommendation could not deem issues raised for the first time in objections as "waived" and instead "must entertain them," applied in the context of 2254 proceedings. It conceives of a proceeding as (1) a legal case, that is then divided into (2) issues, which are then divided into (3) arguments. Applying that framework to a 2254 proceeding, (1) the legal case is the petition itself, (2) the issues or claims are the grounds for relief, and (3) the arguments are the positions taken for or against the claims for relief. This rejected Samples's conception, which would have identified only one issue - illegal custody - and transform the grounds for relief in to mere legal arguments. That position would "require us to find that a habeas petitioner could merely state the he is in illegal custody and then make all arguments later" which would "result in an end run around AEDPA."

Venue (Mostly) Proper in Eastern Virginia for Disclosure of Classified Material

US v. Sterling: Sterling worked for the CIA for nearly a decade. During that time, he took part in operations to funnel "realistic but ultimately flawed nuclear plans" to Iran via a Russian scientist. Sterling's term at the CIA didn't end well - he sued the agency for racial discrimination and was ultimately fired. Shortly thereafter, a reporter contacted the CIA about a story (eventually a book) he was going to publish about the Iran program. An investigation showed multiple contacts between Sterling and the reporter (who had written an article about Sterling's lawsuit). During a search of Sterling's house investigators found several classified documents. Sterling was charged, in the Eastern District of Virginia, with multiple counts related to the improper disclosure of classified material, fraud, and obstruction of justice. Sterling was acquitted of fraud, but convicted on all other counts and sentenced to 42 months in prison.

On appeal, the Fourth Circuit affirmed the majority of Sterling's convictions, but reversed on count of disclosure. Sterling's main arguments related to venue - both that the jury was improperly instructed on venue and that it improperly found venue was appropriate in EDVA. In general, the court concluded that venue was proper for Sterling's convictions because the evidence showed that information was either transmitted or retained by him while he lived in EDVA (the court didn't address the Government's broader backup theory - that venue was proper in EDVA because the reporter's book was for sale there). However, on one count of disclosure - which involved a letter, rather than phone or other type of contact - there was no evidence of where the letter was transmitted to the reporter. The court refused to take the Government's "presumption" that since the letter was found in Sterling's Virginia home the transmission must have begun there. Therefore, venue was not proper in EDVA on that count and it had to be reversed. The court found no error with the district court's instructions on venue, however. The court also held that Sterling obstructed justice when he deleted an email to the reporter following the issuance of a subpoena and that evidence of his prior mishandling of confidential material was admissible under Rule 404(b).

Judge Traxler concurred in part and dissented in part, arguing that venue was proper on the vacated disclosure count in EDVA.

Evidence Supports Two-Level Gun Enhancement Following Conspiracy Conviction

US v. Mondragon: Mondragon was convicted of conspiracy to distribute meth and possession with intent to distribute meth. The conspiracy ran from 2012 until 2014. Among the evidence presented at trial was testimony from Mondragon's "closest associate," Carroll, who testified that once at Mondragon's apartment he saw Mondragon "break down" a revolver while, at another time, Mondragon told stories of having killed people in Mexico. Another witness, Young, testified that he saw Mondragon with a gun "a couple of times in the past." Based on that evidence, Mondragon's advisory Guideline range was enhanced for the possession of a weapon.

The Fourth Circuit affirmed the sentence on appeal. Mondragon argued that the Government failed to carry its burden on the gun enhancement by showing that the firearms had any relation to drug trafficking activity. The court rejected that argument, holding that the testimony of Carroll (who only knew Mondragon during the conspiracy) proved that a gun was present during the conspiracy. Furthermore, the district court did not clearly error by concluding that there was a linkage between the gun and the conspiracy. Because Mondragon "did not even attempt to rebut the government's showing," the enhancement was proper. The court also rejected an argument, made for the first time at oral argument, that the evidence of possession was insufficient because it was based on statements made in the PSR, rather than trial - statements which Mondragon did not challenge as false.

Court Affirms Later Adult Conviction for Hobbs Act Robbery Comitted While Juvenile

US v. Lopez: In 2007 two men robbed a brothel in Maryland, during which a woman was raped and another man stabbed to death. The crime went unsolved until 2012, when DNA testing of a knife sheath left at the crime scene was matched to Lopez. A year later he was indicted for conspiracy to commit Hobbs Act robbery and a substantive Hobbs Act charge. Lopez was only 17 years old at the time of the offense, but 24 by the time of trial. His co-conspirator pleaded guilty to the conspiracy, but Lopez went to trial. He was convicted on both counts and sentenced to 20 years in prison.

On appeal, the Fourth Circuit affirmed Lopez's conviction and sentence. Lopez's arguments on appeal focused mainly in the delay between the commission of the offense and the indictment. First, he argued that because the offense occurred when he was only 17 years old he could not have been tried as an adult. Specifically, he argued that the defining "juvenile" to exclude those who were charged after they turned 21 (where the offense occurred before) violated the Constitution. The Fourth Circuit disagreed, holding that the designation of someone as a juvenile is not about culpability at a particular age, but about assuring that minors are placed into a system that is specially designed to handle their needs. It is thus "entirely rational" to exclude from that definition those who are charged after they turn 21. Second, Lopez argued that the Hobbs Act charge was outside the 5-year statute of limitations, even taking into account the late discovery of the DNA. He argued that he was "implicated" (the point at which the limitations period restarts) in 2008 when his DNA was first put into the database, not in 2012 when the match occurred. The court disagreed, holding that someone is implicated by DNA only once there is a match. Finally, Lopez argued that the delay in his prosecution violated his right to due process. The court disagreed, noting that he could not show any prejudice from the delay.

Monday, June 26, 2017

Court Vacates RICO Conspiracy, Federal Theft Convictions

US v. Pinson: Pinson was a member of the board of trustees at South Carolina State University as well as a participant in various business ventures, including Supremes, LLC (a diaper business) and VRE (real estate), and was charged with RICO and related charges arising from them. As a SCSU trustee, Pinson convinced the school to hire a particular promotor for its homecoming concert, from whom he received money and attempted to have the school purchase a luxury resort (as an "off-campus retreat facility"), for which he was supposed to receive a "commission." As for Supremes, Pinson helped the company receive a federal grant to refurbish an old factory, but the work was not completed and Pinson was involved in sending false invoices. Finally, with VRE, Pinson was involved with a housing contract. Pinson was charged with RICO conspiracy, theft from Government programs, extortion, money laundering, false statements, and various frauds.  After a two week trial he was convicted of numerous counts, including the RICO conspiracy, and sentenced to 60 months in prison and more than $340,000 in restitution and penalties.

On appeal, the Fourth Circuit affirmed most of Pinson's convictions, but vacated several. Specifically, the court found that the evidence did not show that there was a single RICO conspiracy that encompassed all four of Pinson's activities. Pinson and those he worked with did not commit the safe offenses and did not form a RICO "enterprise." The court also concluded that the evidence was not sufficient to sustain Pinson's two convictions for federal program theft related to VRE because one of Pinson's associates was not an "agent" of a covered entity and VRE did not receive a federal benefit.

Judge Diaz dissented on the RICO conspiracy and would have affirmed that conviction.

Aiding and Abetting Rape Can Be Tier III SORNA Predicate

US v. Cammorto: Cammorto pleaded guilty to violating SORNA by failing to register as a sex offender in Virginia. At sentencing, the district court concluded he was a Tier III offender (the most serious classification under SORNA) and, consequently, that his advisory Guideline range was 33-41 months. At issue was Cammorto's prior conviction in Georgia for rape - he argued that he was convicted only of aiding and abetting and, therefore, should be only a Tier I offender. The court disagreed and imposed a sentence of 41 months in prison.

On appeal, the Fourth Circuit affirmed Cammorto's sentence. Cammorto argued that because Georgia law allowed a person "who never even touched the victim" to be convicted of rape as an aider and abetter, that offense was broader than the federal offense of aggravated sexual abuse and, therefore, could not count as a Tier III offense. Applying the categorical approach, the court concluded that it was "readily apparent . . . that the Georgia rape statute is narrower than the federal offense." That the a person can be convicted as a principal under Georgia law as an aider and abetter was irrelevant because "under federal law, aiders and abetters are also treated as principals." The court also rejected Cammorto's argument (raised for the first time at oral argument) that Georgia's aiding and abetting standard is broader than the federal one.

Drug-Related Gun Bump Doesn't Preclude Safety Valve Relief

US v. Bolton: Bolton was charged with conspiracy to distribute marijuana. A search conducted at his home following his arrest uncovered (among other things) a shotgun and a rifle in his bedroom. The shotgun was stolen. Bolton was released on bond and eventually pleaded guilty to the conspiracy and was released pending sentencing. Prior to sentencing, Bolton's bond was revoked after it was learned that he was involved with the distribution of cocaine. Following his arrest, he was debriefed by law enforcement. He was eventually charged with conspiracy to distribute cocaine, pleaded guilty to that, and a consolidated sentencing hearing was scheduled. At sentencing there was a dispute over the application of a two-level gun enhancement recommended in the PSR and the PSR's failure to include reductions for acceptance of responsibility and because Bolton qualified under the "safety valve" provision. The district court overruled Bolton's objections, applying the gun enhancement because of the circumstances surrounding the possession of the guns (which happened outside of the time frame of the charged conspiracy) and concluding Bolton didn't qualify for the safety valve because of the gun enhancement. Nor did he receive credit for acceptance of responsibility.  Bolton was sentenced to 161 months in prison.

The Fourth Circuit affirmed Bolton's sentence, but no precisely on the grounds identified by the district court. Bolton challenged the district court's rulings on the gun enhancement and the safety valve. On the gun enhancement, the court held that the Government met its burden by showing that the guns were found in Bolton's bedroom along with marijuana and cash and that Bolton did not show that it was "clearly improbable" that the guns were linked to drug trafficking. However, the court also concluded that the district court's finding on the gun enhancement did not preclude Bolton receiving relief under the safety valve. That is because the burdens of proof on the two are different - to avoid the enhancement the defendant must show it was "clearly improbable" that the gun at issue wasn't possessed in connection with drug trafficking, but under the safety valve he must show that he "did not possess a firearm in connection with the offense." This, the court held, "is not a distinction without a difference." Thus, the district court erred by concluding that because the enhancement applied the safety valve could not. However, the court also concluded that the error was harmless because Bolton hadn't proved that he did not possess a firearm under the later standard. Finally, the court concluded that the district court did not err in denying Bolton a reduction for acceptance of responsibility, given that he was continuing to distribute drugs while on bond.

Court Affirms Convictions for Medicare Fraud Resulting in Death

US v. Chikvashvili: Chikvashvili ran a "diagnostic imaging company" - they provided portable x-rays, sonograms and such wherein a company tech would go to a patient's location, do the imaging, then transmit the images to a doctor. However, Chikvashvili developed an "elaborate, longstanding conspiracy to cheat Medicare" via fraud that included (among other things) using the technicians to interpret the imaging results, then fraudulently stating that a qualified doctor had given the results. Then Medicare would be billed for work allegedly done by doctors but actually "done" by lower-paid techs. The techs sometimes misread the images and in two cases patients died after images were misread and various conditions were missed. Chikvashvili was charged with two counts of healthcare fraud resulting in death. After a pair of Government experts testified at trial that the misread images led to the patients' deaths, a jury convicted Chikvashvili on both counts (as well as dozens of others). He was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed Chikvashvili's fraud resulting in death convictions. First, the court held that a resulting in death count can be based on the "execution of a fraudulent scheme" rather than only on the submission of a false claim. There was sufficient evidence to convict on those counts. Second, the court held that the jury was properly instructed about that standard. Finally, the court held that the Government's expert on causation was properly allowed to testify.