US v. Hornsby: In this appeal, the CEO of Prince George’s County Public Schools challenged his convictions for honest-services fraud, tampering with evidence, and obstruction of justice, for his involvement in securing two public contracts for school products and services. The Fourth Circuit reversed Andre Hornsby’s convictions for honest-services fraud, and affirmed the obstruction of justice and tampering with evidence convictions. Hornsby’s case was remanded to the district court in Maryland for re-sentencing in accordance with this opinion.
The Fourth Circuit reversed the honest-services fraud convictions because the district court erroneously instructed the jury, in a way the Fourth Circuit found was not harmless, that the jury could convict Hornsby for honest-services fraud based on a conflict of interest.
Thursday, February 02, 2012
922(g)(1) upheld as constitutionally valid
US v. Moore: Not to be outdone by other circuits who have already published on this issue, the Fourth Circuit holds that § 922(g)(1) passes constitutional muster. This statute prohibits formerly convicted felons from possessing firearms. Police had arrested Moore for an outstanding warrant, and while searching him incident to the arrest, officers discovered on him a handgun and ammunition. Moore had prior felony convictions for several offenses.
Because Moore could not distinguish his circumstances from those of other felons who have been traditionally barred from Second Amendment protections, the Fourth Circuit found the statute constitutional as applied to him. In fact, the Fourth Circuit found that Moore’s criminal history (three prior felony convictions for common law robbery and two prior convictions for assault with a deadly weapon on a government official) "clearly demonstrate that is a far from a law-abiding, responsible citizen."
The Fourth Circuit did throw Moore a bone, albeit a small one, when it vacated the order requiring him to pay his court-appointed attorneys’ fees. It was not disputed that Moore was indigent and qualified for a court appointed attorney under the Criminal Justice Act. Additionally, the district court failed to make the necessary findings to support an order of reimbursement, in error. The Fourth Circuit left open the issue of whether it could impose payment of fees at a later date, such as when Moore went on supervised release, i.e., as a condition of release; the Court limited its holding to whether the district court erred in failing to make the statutorily mandated factual finding that "funds were available" for repayment.
Because Moore could not distinguish his circumstances from those of other felons who have been traditionally barred from Second Amendment protections, the Fourth Circuit found the statute constitutional as applied to him. In fact, the Fourth Circuit found that Moore’s criminal history (three prior felony convictions for common law robbery and two prior convictions for assault with a deadly weapon on a government official) "clearly demonstrate that is a far from a law-abiding, responsible citizen."
The Fourth Circuit did throw Moore a bone, albeit a small one, when it vacated the order requiring him to pay his court-appointed attorneys’ fees. It was not disputed that Moore was indigent and qualified for a court appointed attorney under the Criminal Justice Act. Additionally, the district court failed to make the necessary findings to support an order of reimbursement, in error. The Fourth Circuit left open the issue of whether it could impose payment of fees at a later date, such as when Moore went on supervised release, i.e., as a condition of release; the Court limited its holding to whether the district court erred in failing to make the statutorily mandated factual finding that "funds were available" for repayment.
Wednesday, February 01, 2012
Criminal acts after illegal search not intervening event
US v. Gaines: The government appealed a district court’s decision to grant a motion to suppress in this case, in which the district court held that a gun found on a passenger in a vehicle illegally stopped by the police should be suppressed as fruit of the poisonous tree. Gaines was a passenger in a vehicle stopped by police who testified they observed a crack in the rear windshield the vehicle from across an intersection and through a tinted window. The district court did not find the police officers’ testimony credible, and determined that the stop in this case was supported by reasonable suspicion and was unlawful.
The government appealed under an attenuation doctrine theory, in which an assault on the police officers by the defendant after the police located a gun on the defendant served as an intervening event, purging the taint of the initial illegal stop. This government theory relied heavily upon the Fourth Circuit’s decision in U.S. v. Sprinkle, in which the Fourth Circuit recognized that it has "strong policy reason for holding that a new and distinct crime, even if triggered by an illegal stop, is a sufficient intervening event to provide independent grounds for arrest."
Here, however, the Fourth Circuit disagreed with the government’s application of Sprinkle to the facts in Gaines’ case, as the attenuation doctrine placed greatest legal importance and emphasis on the discovery of the evidence, rather than the seizure of evidence. The Fourth Circuit agreed with the district court, finding that Gaines’ illegal conduct occurred after the police had located the gun in his waistband. Thus, because the gun was located prior to any criminal act by Gaines, his criminal act did not serve as an intervening event for purposes of the attenuation doctrine.
Way to go, FPD in MD!
The government appealed under an attenuation doctrine theory, in which an assault on the police officers by the defendant after the police located a gun on the defendant served as an intervening event, purging the taint of the initial illegal stop. This government theory relied heavily upon the Fourth Circuit’s decision in U.S. v. Sprinkle, in which the Fourth Circuit recognized that it has "strong policy reason for holding that a new and distinct crime, even if triggered by an illegal stop, is a sufficient intervening event to provide independent grounds for arrest."
Here, however, the Fourth Circuit disagreed with the government’s application of Sprinkle to the facts in Gaines’ case, as the attenuation doctrine placed greatest legal importance and emphasis on the discovery of the evidence, rather than the seizure of evidence. The Fourth Circuit agreed with the district court, finding that Gaines’ illegal conduct occurred after the police had located the gun in his waistband. Thus, because the gun was located prior to any criminal act by Gaines, his criminal act did not serve as an intervening event for purposes of the attenuation doctrine.
Way to go, FPD in MD!
Assault convictions affirmed
US v. Thomas: In this appeal, a federal inmate challenged his convictions stemming from the assault of a female corrections officer at U.S.P. Hazelton. The Fourth Circuit affirmed the district court.
First, the indictment contained two plain errors, which the government conceded, that count one failed to allege an intent to commit another felony as required under 18 U.S.C. § 111(a) and that count two failed to allege infliction of bodily injury as required under 18 U.S.C. § 111(b). The government contended that while these defects were plain error, they did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings," and the Fourth Circuit agreed, finding that the prison guards’ testimony at trial satisfied the elements missing from the indictment.
Next, the appellant argued that the indictment was "multiplicitous," in that a single offense was charged in two counts in the indictment. The appellant relied on the Supreme Court’s decision in Ladner v. U.S., from 1958, in which the Court held that a single shot fired at multiple officers constituted a single offense. According to the Fourth Circuit, courts have applied Ladner in situations where there is more than one act resulting in assaults, not whether more than one federal officer is injured by the same act. Here, the district court determined, and the Fourth Circuit agreed, that Thomas committed two separate acts, the verbal threats and a punch to the guard’s face; thus, the indictment was not found to be multiplicitous.
Additionally, the appellant argued that the district court improperly sustained hearsay objections to his testimony, thereby denying him the ability to adequately present his defense. The appellant stated that the intended purpose of the statements in question went to his state of mind, not to prove the truth of the matter. The Fourth Circuit disagreed, and found that the statements were properly excluded because they were irrelevant and bore no relation to whether he committed the charged offense.
First, the indictment contained two plain errors, which the government conceded, that count one failed to allege an intent to commit another felony as required under 18 U.S.C. § 111(a) and that count two failed to allege infliction of bodily injury as required under 18 U.S.C. § 111(b). The government contended that while these defects were plain error, they did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings," and the Fourth Circuit agreed, finding that the prison guards’ testimony at trial satisfied the elements missing from the indictment.
Next, the appellant argued that the indictment was "multiplicitous," in that a single offense was charged in two counts in the indictment. The appellant relied on the Supreme Court’s decision in Ladner v. U.S., from 1958, in which the Court held that a single shot fired at multiple officers constituted a single offense. According to the Fourth Circuit, courts have applied Ladner in situations where there is more than one act resulting in assaults, not whether more than one federal officer is injured by the same act. Here, the district court determined, and the Fourth Circuit agreed, that Thomas committed two separate acts, the verbal threats and a punch to the guard’s face; thus, the indictment was not found to be multiplicitous.
Additionally, the appellant argued that the district court improperly sustained hearsay objections to his testimony, thereby denying him the ability to adequately present his defense. The appellant stated that the intended purpose of the statements in question went to his state of mind, not to prove the truth of the matter. The Fourth Circuit disagreed, and found that the statements were properly excluded because they were irrelevant and bore no relation to whether he committed the charged offense.
Two five-level enhancements approved
US v. Strieper: At Strieper’s sentencing for attempted enticement, receipt of child porn, and possession of child porn, the district court applied two different five-level enhancements under U.S.S.G. §2G2.2(b)(5), the first for engaging in a pattern of sexual abuse or exploitation of a minor, and the second for distribution of child pornography for receipt of a thing of value. On appeal, the Fourth Circuit considered the propriety of these enhancements, and affirmed the district court’s judgment.
The Sentencing Guidelines permit a five-level enhancement for a "pattern of activity involving the sexual abuse or exploitation of a minor." A "pattern of activity" consists of two or more separate instances of such conduct. A "minor" may include unidentified children, as application of the enhancement indicates a focus on the danger a defendant would pose if given the opportunity to carry out his plans, rather than on the whether a defendant actually has exposed a child to direct harm. Here, one of the bases for the enhancement included Strieper’s communication with "Stu," a confidential source from the U.S. Department of Homeland Security. Strieper argued unsuccessfully that his attempt to entice Stu does not qualify for the enhancement because the definition of "minor" required a specific victim, a requirement that the Fourth Circuit rejected.
At his sentencing, Strieper did not object to the second five-level enhancement, for distribution of child porn for the receipt of a thing of value, so the Fourth Circuit reviewed this enhancement for plain error only. The district court applied this enhancement because Strieper used a peer-to-peer file-sharing network; prior to this decision, the Fourth Circuit had previously upheld a two-level enhancement for sharing child pornography files via such a network, but it had not yet addressed the question of whether a five-level enhancement for sharing files this way was appropriate.
The Fourth Circuit followed the reasoning of the Eighth Circuit, which held that a five-level enhancement for file sharing on a peer-to-peer network, e.g. Limewire, is appropriate because these networks exist for the purpose of sharing, exchanging, or trading files with other users (as opposed to the Tenth Circuit’s position, which holds that the enhancement does not always apply to peer-to-peer file sharing network users, because defendants do not always use these networks with the expectation of receiving other users’ files in return). The Fourth Circuit found that no error had been committed in the application of this enhancement.
The Sentencing Guidelines permit a five-level enhancement for a "pattern of activity involving the sexual abuse or exploitation of a minor." A "pattern of activity" consists of two or more separate instances of such conduct. A "minor" may include unidentified children, as application of the enhancement indicates a focus on the danger a defendant would pose if given the opportunity to carry out his plans, rather than on the whether a defendant actually has exposed a child to direct harm. Here, one of the bases for the enhancement included Strieper’s communication with "Stu," a confidential source from the U.S. Department of Homeland Security. Strieper argued unsuccessfully that his attempt to entice Stu does not qualify for the enhancement because the definition of "minor" required a specific victim, a requirement that the Fourth Circuit rejected.
At his sentencing, Strieper did not object to the second five-level enhancement, for distribution of child porn for the receipt of a thing of value, so the Fourth Circuit reviewed this enhancement for plain error only. The district court applied this enhancement because Strieper used a peer-to-peer file-sharing network; prior to this decision, the Fourth Circuit had previously upheld a two-level enhancement for sharing child pornography files via such a network, but it had not yet addressed the question of whether a five-level enhancement for sharing files this way was appropriate.
The Fourth Circuit followed the reasoning of the Eighth Circuit, which held that a five-level enhancement for file sharing on a peer-to-peer network, e.g. Limewire, is appropriate because these networks exist for the purpose of sharing, exchanging, or trading files with other users (as opposed to the Tenth Circuit’s position, which holds that the enhancement does not always apply to peer-to-peer file sharing network users, because defendants do not always use these networks with the expectation of receiving other users’ files in return). The Fourth Circuit found that no error had been committed in the application of this enhancement.
Monday, January 30, 2012
Gun violence and drug use - connection?
US v. Carter: In this appeal, Benjamin Carter raised the issue of the constitutionality of his conviction under 18 U.S.C. § 922(g)(3), which prohibits persons who currently and unlawfully use or become addicted to any controlled substantive (in this case, marijuana) from possessing a firearm. In an opinion in which the Fourth Circuit informed the government not once, but twice, exactly what evidence it could have but chose not to present in order to win, the Fourth Circuit vacated the conviction, finding that the government failed to make the record to substantiate the fit between disarming drug users and its means of accomplishing this goal.
On appeal, the government contended that unlawful drug users deserve no Second Amendment protections whatsoever. The government bore the burden of showing that the statute’s limited imposition on an individual’s Second Amendment rights (unlike other parts of § 922(g) in which an individual receives a permanent disarmament, the statutory provision in this case only applies to person currently using and/or abusing illegal drugs and only temporarily prohibits their possession of guns: once the drug use ends, gun possession can ostensibly occur), advanced the goal of preventing gun violence. The government staked its success here, not on any academic research or empirical data, but by simply asserting that common sense justified taking guns away from drug users, and that addicts are sufficiently dangerous to require disarming them.
The Fourth Circuit joined its sister circuits in concluding that intermediate scrutiny applies to a review of the enforcement of § 922(g)(3), and any other subsection of § 922(g). Under intermediate scrutiny, the government must establish a reasonable fit between the statute in question and a substantial governmental objective, e.g. ending gun violence associated with drug use. Carter argued that as applied to him, the statute does not substantially further the government’s interest without excessively intruding upon his Second Amendment rights. While the Fourth Circuit did not outright disagree with Carter by concluding that Congress had an important objective for enacting the statute here, it did find that the government did not give the court sufficient evidence to substantiate the fit.
Congrats to the FPD in the southern district of WV for the win!
On appeal, the government contended that unlawful drug users deserve no Second Amendment protections whatsoever. The government bore the burden of showing that the statute’s limited imposition on an individual’s Second Amendment rights (unlike other parts of § 922(g) in which an individual receives a permanent disarmament, the statutory provision in this case only applies to person currently using and/or abusing illegal drugs and only temporarily prohibits their possession of guns: once the drug use ends, gun possession can ostensibly occur), advanced the goal of preventing gun violence. The government staked its success here, not on any academic research or empirical data, but by simply asserting that common sense justified taking guns away from drug users, and that addicts are sufficiently dangerous to require disarming them.
The Fourth Circuit joined its sister circuits in concluding that intermediate scrutiny applies to a review of the enforcement of § 922(g)(3), and any other subsection of § 922(g). Under intermediate scrutiny, the government must establish a reasonable fit between the statute in question and a substantial governmental objective, e.g. ending gun violence associated with drug use. Carter argued that as applied to him, the statute does not substantially further the government’s interest without excessively intruding upon his Second Amendment rights. While the Fourth Circuit did not outright disagree with Carter by concluding that Congress had an important objective for enacting the statute here, it did find that the government did not give the court sufficient evidence to substantiate the fit.
Congrats to the FPD in the southern district of WV for the win!
Friday, January 27, 2012
When unidentified witnesses may be okay
US v. Ramos-Cruz: In this case, Israel Ramos-Cruz appeal his convictions for several offenses related to his activities with a gang. At issue was the jury instruction for the aiding and abetting witness-tampering murder, which was abrogated by the Supreme Court’s decision in Fowler v. United States after trial but while this appeal was pending; Ramos-Cruz challenged the denial of his motion for judgment of acquittal, in that he argued he was not in the country illegally; also, Ramos-Cruz challenged the district court’s decision to permit two unidentified witnesses to testify against him as violative of the Confrontation Clause; and finally, Ramos-Cruz took issue with the district court’s denial of his motion to suppress evidence seized at his home during a search. The Fourth Circuit affirmed the district court’s judgment.
The Supreme Court’s decision in Fowler abrogated the Fourth Circuit’s instruction given here, rendering them incorrect, but the Fourth Circuit found that the error in giving this instruction was harmless. Fowler changes the burden of proof necessary to sustain a conviction under § 1512(a)(1)(C), in circumstances in which a defendant kills a victim in order to prevent that individual from talking to federal authorities. The government must now show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer, as opposed to a possible or potential communication. The test that the Fourth Circuit had articulated here was similar to the 11th Circuit test that the Supreme Court overturned in Fowler; however, the Fourth Circuit found uncontroverted and overwhelming evidence of the reasonable likelihood of communication with a federal officer, and concluded any error in its instruction was harmless.
Next, Ramos-Cruz argued that he had a pending TPS ("temporary protected status") application at the time he was found in possession of a firearm, and thus he was not illegally in this country. Temporary protective status can provide some benefit to individuals from foreign countries where ongoing conflict or natural disaster prevents its nationals from returning in safety. El Salvador, where Ramos-Cruz is from, has been designated such a country, but at issue here was not whether Ramos-Cruz’s country of origin enabled him to apply for TPS, but whether his application had been pending here, as Ramos-Cruz asserted. The district court and the Fourth Circuit disagreed with Ramos-Cruz, however, finding evidence that Ramos-Cruz’s application for TPS had been effectively denied prior to the relevant events.
With respect to the two El Salvadorian witnesses which the district court allowed to testify anonymously in order to protect the safety of the witnesses and their families, Ramos-Cruz contended that this ruling violated his 6th Amendment confrontation rights, that he could not conduct independent research into the witnesses’ veracity. The government had the burden to prove an actual threat existed in order to protect the witnesses’ identities; the government submitted affidavits to the district court and it examined the two witnesses in camera, and concluded that "the threat to the witness [was] actual and not a result of conjecture." Defense counsel received details of these two witnesses prior to trial, so that they could be cross-examined without a threat to their safety. The Fourth Circuit did not find an abuse of discretion with the district court’s actions, as the witnesses were testifying only to background information on the internal workings of Central American gang activity, not Ramos-Cruz or his activities.
Finally, the search of Ramos-Cruz’s residence pursuant to warrant was held to have given the issuing judge sufficient facts upon which to provide a basis for determining the existence of probable cause. The Fourth Circuit did not disturb the district court’s decision here, considering the deferential standard of review given to the issuing judge’s finding of probable cause.
The Supreme Court’s decision in Fowler abrogated the Fourth Circuit’s instruction given here, rendering them incorrect, but the Fourth Circuit found that the error in giving this instruction was harmless. Fowler changes the burden of proof necessary to sustain a conviction under § 1512(a)(1)(C), in circumstances in which a defendant kills a victim in order to prevent that individual from talking to federal authorities. The government must now show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer, as opposed to a possible or potential communication. The test that the Fourth Circuit had articulated here was similar to the 11th Circuit test that the Supreme Court overturned in Fowler; however, the Fourth Circuit found uncontroverted and overwhelming evidence of the reasonable likelihood of communication with a federal officer, and concluded any error in its instruction was harmless.
Next, Ramos-Cruz argued that he had a pending TPS ("temporary protected status") application at the time he was found in possession of a firearm, and thus he was not illegally in this country. Temporary protective status can provide some benefit to individuals from foreign countries where ongoing conflict or natural disaster prevents its nationals from returning in safety. El Salvador, where Ramos-Cruz is from, has been designated such a country, but at issue here was not whether Ramos-Cruz’s country of origin enabled him to apply for TPS, but whether his application had been pending here, as Ramos-Cruz asserted. The district court and the Fourth Circuit disagreed with Ramos-Cruz, however, finding evidence that Ramos-Cruz’s application for TPS had been effectively denied prior to the relevant events.
With respect to the two El Salvadorian witnesses which the district court allowed to testify anonymously in order to protect the safety of the witnesses and their families, Ramos-Cruz contended that this ruling violated his 6th Amendment confrontation rights, that he could not conduct independent research into the witnesses’ veracity. The government had the burden to prove an actual threat existed in order to protect the witnesses’ identities; the government submitted affidavits to the district court and it examined the two witnesses in camera, and concluded that "the threat to the witness [was] actual and not a result of conjecture." Defense counsel received details of these two witnesses prior to trial, so that they could be cross-examined without a threat to their safety. The Fourth Circuit did not find an abuse of discretion with the district court’s actions, as the witnesses were testifying only to background information on the internal workings of Central American gang activity, not Ramos-Cruz or his activities.
Finally, the search of Ramos-Cruz’s residence pursuant to warrant was held to have given the issuing judge sufficient facts upon which to provide a basis for determining the existence of probable cause. The Fourth Circuit did not disturb the district court’s decision here, considering the deferential standard of review given to the issuing judge’s finding of probable cause.
Tuesday, January 24, 2012
Selective prosecution claim fails
US v. Venable: James Venable was charged with being a felon in possession of a firearm. Venable moved for discovery and to dismiss the indictment on a theory of selective prosecution, that he, an African American male, had been prosecuted for his race in violation of his Fifth Amendment right to Due Process, while two other individuals, both white, were not prosecuted for the same firearms. The district court denied Venable’s motions, and the Fourth Circuit affirmed.
Venable was prosecuted in a program known as Project Exile, a joint effort of the United States Attorney’s Office and the Richmond Commonwealth Attorney’s Office, which specifically targets convicted felons who possess guns, with the goal of reducing Richmond’s high rates of gun crime, federally. Basically, local law Virginia law enforcement officers will contact the U.S. Marshals whenever they encounter a gun; the U.S. Attorney’s Office will review the case and then determine whether to file federal criminal charges.
In making a selective prosecution claim, a defendant has a high burden, as the government is given wide discretion in its decisions to prosecute. A defendant must present clear evidence that the government has violated equal protection, and was motivated by a discriminatory purpose to adopt a prosecutorial policy with a discriminatory effect. To meet the burden, a defendant must show: 1) that similarly situated individuals of a different race were not prosecuted; and 2) the decision to prosecute was "invidious or in bad faith," as determined by the Fourth Circuit in United States v. Olvis, from 2006.
Here, the Fourth Circuit finds that similarly situated individuals are so only when prosecuted by the same sovereign; Venable’s case originally began in eastern Virginia, whereas the other two individuals involved in his case were prosecuted in state court in western Virginia. Project Exile solely applies in the Eastern District of Virginia. Of the nine factors from Olvis for determining whether the individuals in this case were similarly situated, the Fourth Circuit found that Venable was only able to establish one, to wit, that each of the three individuals were convicted felons not permitted to possess firearms; the Fourth Circuit concluded that these individuals were not similarly situated.
Next, the statistical evidence that Venables presented in support of the position that the prosecutors acted in bad faith, the Fourth Circuit did not find probative of discriminatory intent; holding, instead, that absent an appropriate basis for comparison, statistical evidence of racial disparity alone cannot establish any element of a discrimination claim.
Finally, the Fourth Circuit includes a gem of a footnote here regarding the disrespectful and uncivil language some attorneys, even government ones, have included to their own disservice in their briefs against district courts, parties, opposing counsel and witnesses, and cautions that such briefs "should be stricken from the files." Take heed.
Venable was prosecuted in a program known as Project Exile, a joint effort of the United States Attorney’s Office and the Richmond Commonwealth Attorney’s Office, which specifically targets convicted felons who possess guns, with the goal of reducing Richmond’s high rates of gun crime, federally. Basically, local law Virginia law enforcement officers will contact the U.S. Marshals whenever they encounter a gun; the U.S. Attorney’s Office will review the case and then determine whether to file federal criminal charges.
In making a selective prosecution claim, a defendant has a high burden, as the government is given wide discretion in its decisions to prosecute. A defendant must present clear evidence that the government has violated equal protection, and was motivated by a discriminatory purpose to adopt a prosecutorial policy with a discriminatory effect. To meet the burden, a defendant must show: 1) that similarly situated individuals of a different race were not prosecuted; and 2) the decision to prosecute was "invidious or in bad faith," as determined by the Fourth Circuit in United States v. Olvis, from 2006.
Here, the Fourth Circuit finds that similarly situated individuals are so only when prosecuted by the same sovereign; Venable’s case originally began in eastern Virginia, whereas the other two individuals involved in his case were prosecuted in state court in western Virginia. Project Exile solely applies in the Eastern District of Virginia. Of the nine factors from Olvis for determining whether the individuals in this case were similarly situated, the Fourth Circuit found that Venable was only able to establish one, to wit, that each of the three individuals were convicted felons not permitted to possess firearms; the Fourth Circuit concluded that these individuals were not similarly situated.
Next, the statistical evidence that Venables presented in support of the position that the prosecutors acted in bad faith, the Fourth Circuit did not find probative of discriminatory intent; holding, instead, that absent an appropriate basis for comparison, statistical evidence of racial disparity alone cannot establish any element of a discrimination claim.
Finally, the Fourth Circuit includes a gem of a footnote here regarding the disrespectful and uncivil language some attorneys, even government ones, have included to their own disservice in their briefs against district courts, parties, opposing counsel and witnesses, and cautions that such briefs "should be stricken from the files." Take heed.
4th Circuit abstains from intervening in court martial proceeding
Hennis v. Hemlick: In this appeal, the Fourth Circuit upholds the Councilman abstention doctrine, against a petitioner pursuing habeas corpus relief in relation to a death penalty conviction handed down by a military court.
Hennis filed among other papers, a writ of habeas corpus, to appeal a district court’s decision not to reach the merits of his challenge to the Army’s exercise of court martial jurisdiction over him. The district court based its decision to abstain on Schlesinger v. Councilman, in which the Supreme Court held that federal courts should abstain from intervening in pending court martial proceedings and should require the exhaustion of remedies within the military justice system before collaterally reviewing cases.
The Fourth Circuit affirmed the district court, disagreeing with Hennis that his case had extraordinary facts sufficient to warrant any intrusion on the integrity of the military court processes.
Hennis filed among other papers, a writ of habeas corpus, to appeal a district court’s decision not to reach the merits of his challenge to the Army’s exercise of court martial jurisdiction over him. The district court based its decision to abstain on Schlesinger v. Councilman, in which the Supreme Court held that federal courts should abstain from intervening in pending court martial proceedings and should require the exhaustion of remedies within the military justice system before collaterally reviewing cases.
The Fourth Circuit affirmed the district court, disagreeing with Hennis that his case had extraordinary facts sufficient to warrant any intrusion on the integrity of the military court processes.
Monday, January 23, 2012
Revocation of supervised release not equal to termination of the release
US v. Winfield: A supervised release revocation sentencing here occurred over the course of two bifurcated hearings, the first part of which occurred in May 2010 dealing with the technical violations (i.e., charges not related to the commission of some state offenses during the appellant’s supervised release), and the second occurred in September 2010, following the resolution of the appellant’s substantive violations in state court.
At the May 2010 hearing, the district court imposed a 12-month sentence on Winfield for his technical violations, e.g. failing to follow his probation officer’s instructions, failing to work regularly, and twice testing positive for cocaine. Winfield’s probation officer had filed a petition for violations of the terms of Winfield’s supervised release in October 2009 on the technical violation behavior. The probation officer subsequently filed two amended petitions for revocation, the first for receiving a state court charge while he was on supervised release, and the second for failing to inform the probation officer of his arrest for the state court charge within 72 hours of his arrest. In the September 2010 hearing, the district court imposed a second 12-month sentence on the substantive violations, the state court convictions, for crimes committed while Winfield was on federal supervised release.
At issue is the definition of the term "revoke" under 18 U.S.C. § 3583(e) and whether an effective revocation of a term of supervised release also ends the court’s supervision over that release when the term has not yet expired. Based upon an unpublished 3rd Circuit case from 2007 and Supreme Court precedent, the Fourth Circuit here determined that because a revoked term of supervised release continues to have some effect post-revocation, a district court retains authority to alter a defendant’s punishment during a re-incarceration for supervised release violations. Moreover, a revocation of a term of supervised release, according to the Fourth Circuit, is not equivalent to a termination of the release and the revoked term remains in effect. Thus, a district court may hold bifurcated hearings based on a petition for revocation filed prior to the expiration of the term of supervised release, provided the individual is sentenced according to the Rules of Criminal Procedure, the court makes a finding of guilt by a preponderance of the evidence, and does not exceed the statutory maximum for re-incarceration.
At the May 2010 hearing, the district court imposed a 12-month sentence on Winfield for his technical violations, e.g. failing to follow his probation officer’s instructions, failing to work regularly, and twice testing positive for cocaine. Winfield’s probation officer had filed a petition for violations of the terms of Winfield’s supervised release in October 2009 on the technical violation behavior. The probation officer subsequently filed two amended petitions for revocation, the first for receiving a state court charge while he was on supervised release, and the second for failing to inform the probation officer of his arrest for the state court charge within 72 hours of his arrest. In the September 2010 hearing, the district court imposed a second 12-month sentence on the substantive violations, the state court convictions, for crimes committed while Winfield was on federal supervised release.
At issue is the definition of the term "revoke" under 18 U.S.C. § 3583(e) and whether an effective revocation of a term of supervised release also ends the court’s supervision over that release when the term has not yet expired. Based upon an unpublished 3rd Circuit case from 2007 and Supreme Court precedent, the Fourth Circuit here determined that because a revoked term of supervised release continues to have some effect post-revocation, a district court retains authority to alter a defendant’s punishment during a re-incarceration for supervised release violations. Moreover, a revocation of a term of supervised release, according to the Fourth Circuit, is not equivalent to a termination of the release and the revoked term remains in effect. Thus, a district court may hold bifurcated hearings based on a petition for revocation filed prior to the expiration of the term of supervised release, provided the individual is sentenced according to the Rules of Criminal Procedure, the court makes a finding of guilt by a preponderance of the evidence, and does not exceed the statutory maximum for re-incarceration.
Career offender enhancement principles warrant remand
United States v. Jones: A husband and wife appeal their convictions for methamphetamine possession and conspiracy to distribute it. The couple’s convictions resulted from their conditional guilty pleas, which preserved their right to appeal the denial of pretrial motions to suppress. The Fourth Circuit upheld the denial of the motions to suppress, but vacated the husband’s sentence and remanded.
A burn victim at a hospital in North Carolina informed police that he received his injuries from a meth lab explosion at the defendants’ home. The police went to the home, but did not detect any evidence of a meth lab explosion. Mr. Jones spoke with police and denied knowing anything about the burn victim or alleged explosion. When the police were leaving the scene, one of the officers recalled that Mr. Jones may have had an outstanding warrant, and placed him, standing in his doorway, under arrest. Mrs. Jones objected to the arrest, but she did not obstruct the police.
The officers then decided to conduct a protective sweep of the Jones residence for officer safety. The police officers located a marijuana cigarette near where Mrs. Jones was sitting in the house, so they placed her under arrest for possession of marijuana. An officer remained at the residence after both Joneses were taken to the county sheriff’s office, in order to secure the residence until other officers could secure a search warrant. Later that day, pursuant to warrant, the police seized drug paraphernalia and a meth mixture.
In the hearing on defendants’ motion to suppress, the court concluded that the protective sweep of the Jones residence was constitutionally permissible under Maryland v. Buie. Subsequently, the couple entered their conditional guilty pleas to possession of meth, and conspiracy to manufacture and distribute it. At Mr. Jones’ sentencing, he objected to the determination in the PSR of his career offender enhancement, and both defendants objected to the amount of relevant drug conduct recommended by the PSRs.
Prior to oral argument in this appeal, the Fourth Circuit decided United States v. Simmons, in which the Fourth Circuit concluded that a conviction like Mr. Jones’ predicate conviction, one that was not punishable by more than one year in prison, does not qualify as a prior felony for the purposes of the career offender provision. So, the government conceded that Mr. Jones’s sentence was procedurally unreasonable and should be vacated and remanded, which the Fourth Circuit did here.
The protective sweep in question was found constitutionally permissible because the police reasonably believed that other individuals may have been present who presented a danger to them based on the following: surveillance of the residence, known drug users frequented the house, information that a fugitive from Georgia was staying there, and seven vehicles present at the scene despite assurances from Mr. and Mrs. Jones that they were alone.
A burn victim at a hospital in North Carolina informed police that he received his injuries from a meth lab explosion at the defendants’ home. The police went to the home, but did not detect any evidence of a meth lab explosion. Mr. Jones spoke with police and denied knowing anything about the burn victim or alleged explosion. When the police were leaving the scene, one of the officers recalled that Mr. Jones may have had an outstanding warrant, and placed him, standing in his doorway, under arrest. Mrs. Jones objected to the arrest, but she did not obstruct the police.
The officers then decided to conduct a protective sweep of the Jones residence for officer safety. The police officers located a marijuana cigarette near where Mrs. Jones was sitting in the house, so they placed her under arrest for possession of marijuana. An officer remained at the residence after both Joneses were taken to the county sheriff’s office, in order to secure the residence until other officers could secure a search warrant. Later that day, pursuant to warrant, the police seized drug paraphernalia and a meth mixture.
In the hearing on defendants’ motion to suppress, the court concluded that the protective sweep of the Jones residence was constitutionally permissible under Maryland v. Buie. Subsequently, the couple entered their conditional guilty pleas to possession of meth, and conspiracy to manufacture and distribute it. At Mr. Jones’ sentencing, he objected to the determination in the PSR of his career offender enhancement, and both defendants objected to the amount of relevant drug conduct recommended by the PSRs.
Prior to oral argument in this appeal, the Fourth Circuit decided United States v. Simmons, in which the Fourth Circuit concluded that a conviction like Mr. Jones’ predicate conviction, one that was not punishable by more than one year in prison, does not qualify as a prior felony for the purposes of the career offender provision. So, the government conceded that Mr. Jones’s sentence was procedurally unreasonable and should be vacated and remanded, which the Fourth Circuit did here.
The protective sweep in question was found constitutionally permissible because the police reasonably believed that other individuals may have been present who presented a danger to them based on the following: surveillance of the residence, known drug users frequented the house, information that a fugitive from Georgia was staying there, and seven vehicles present at the scene despite assurances from Mr. and Mrs. Jones that they were alone.
Monday, January 09, 2012
As-applied challenge to Sect. 922(g)(8) shot down, too
US v. Chapman: Similar to the Fourth Circuit's recent holding in United States v. Staten (see blog post here), it upheld another portion of this statute against an as-applied challenge that it violates the Second Amendment right to bear arms in self-defense of the home.
Chapman, subject to a domestic violence protective order, pleaded guilty to possessing several firearms in violation of that DVPO, following an incident with his ex-wife that began with his threats to commit suicide on December 28, 2009. Chapman’s DVPO was to last 180 days, not a lifelong prohibition. Prior to his guilty plea, Chapman filed a motion to dismiss the indictment on grounds that as-applied, the statute violated his Second Amendment rights to bear arms in defense of his home, which the district court rejected. Chapman reserved the right to appeal with respect to his Second Amendment challenge.
On appeal, the Fourth Circuit recognized the "core" of an individual’s Second Amendment right to be "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," from District of Columbia v. Heller, 554 U.S. 570 (2008), and employed a two-part approach to analyze Chapman’s as-applied challenge. In the first part, the court must inquire whether the law imposes a burden on conduct falling within the "historically understood" scope of the Second Amendment’s guarantee. If yes, then the court moves to part two; if no, the analysis ends. Here, the Fourth Circuit determined that even if Chapman’s Second Amendment rights were intact and that he was entitled to some protection to keep his guns for defense of his home, intermediate scrutiny will apply and his challenge will fail.
Relying on its 2010 opinion in United States v. Chester, the Fourth Circuit holds that intermediate scrutiny is the appropriate standard to analyze the defendant’s statutory challenge here, and decides that Chapman’s claim does not fall within the core right identified in Heller because he is neither responsible nor law-abiding: he likely committed domestic abuse (judicial determination); he engaged in behavior which caused him to be judicially prohibited for 180 days from causing or threatening to cause bodily injury to his partner; his suicidal thoughts and actions; and his discharge of the firearms in his ex-wife’s direction.
Under intermediate scrutiny, the government must establish a "reasonable fit" between the challenged statute and a substantial governmental objective. The government identified reducing domestic gun violence as the substantial objective behind this statute. Also, the statutory language, the Fourth Circuit explained, keeps the prohibitory sweep of people affected by the statute exceedingly narrow.
Chapman, subject to a domestic violence protective order, pleaded guilty to possessing several firearms in violation of that DVPO, following an incident with his ex-wife that began with his threats to commit suicide on December 28, 2009. Chapman’s DVPO was to last 180 days, not a lifelong prohibition. Prior to his guilty plea, Chapman filed a motion to dismiss the indictment on grounds that as-applied, the statute violated his Second Amendment rights to bear arms in defense of his home, which the district court rejected. Chapman reserved the right to appeal with respect to his Second Amendment challenge.
On appeal, the Fourth Circuit recognized the "core" of an individual’s Second Amendment right to be "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," from District of Columbia v. Heller, 554 U.S. 570 (2008), and employed a two-part approach to analyze Chapman’s as-applied challenge. In the first part, the court must inquire whether the law imposes a burden on conduct falling within the "historically understood" scope of the Second Amendment’s guarantee. If yes, then the court moves to part two; if no, the analysis ends. Here, the Fourth Circuit determined that even if Chapman’s Second Amendment rights were intact and that he was entitled to some protection to keep his guns for defense of his home, intermediate scrutiny will apply and his challenge will fail.
Relying on its 2010 opinion in United States v. Chester, the Fourth Circuit holds that intermediate scrutiny is the appropriate standard to analyze the defendant’s statutory challenge here, and decides that Chapman’s claim does not fall within the core right identified in Heller because he is neither responsible nor law-abiding: he likely committed domestic abuse (judicial determination); he engaged in behavior which caused him to be judicially prohibited for 180 days from causing or threatening to cause bodily injury to his partner; his suicidal thoughts and actions; and his discharge of the firearms in his ex-wife’s direction.
Under intermediate scrutiny, the government must establish a "reasonable fit" between the challenged statute and a substantial governmental objective. The government identified reducing domestic gun violence as the substantial objective behind this statute. Also, the statutory language, the Fourth Circuit explained, keeps the prohibitory sweep of people affected by the statute exceedingly narrow.
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