Tuesday, October 21, 2014

Lack of Loss Amount In Verdict Leads to Misdemeanor; Lack of Proof to Limited Remand

US v. Catone: Catone was charged with three counts related to federal workers comp fraud, essentially for receiving income while receiving benefits and not informing the proper authorities.  At trial, the main evidence of this fraud was a $635 check that Catone had received from a local maintenance service.  The jury convicted on one count of filing a false form under 18 USC 1920.  Catone's relevant conduct was identified as over $128,000 dollars (everything he ever got for worker's comp, in essence) and his restitution obligation at over $106,000.  Catone argued that his offense was a misdemeanor, capped at one year of imprisonment, because the jury did not make a finding as to a particular loss amount.  The district court disagreed, sentencing Catone to a 16-month term of imprisonment and ordering him to pay the entire restitution amount.

On appeal, the Fourth Circuit affirmed Catone's conviction, but reversed his sentence.  As to his conviction, the court rejected (reviewing for plain error) his argument that the Government violated Brady by withholding a particular document, noting that (a) it was a document Catone signed and therefore was aware of, (b) was public and could have been uncovered by diligent investigation, and (c) wouldn't have changed the verdict anyway.  As to the sentence, the court first held that the 16-month term of imprisonment was over the one-year statutory maximum for a misdemeanor offense.  Section 1920 defines two offenses, based on the amount of loss involved - a misdemeanor ($1000 or less) and a felony (more than $1000).  Because the amount of loss increases the statutory maximum offense, it was an element of the offense that had to be charged in the indictment and found by the jury.  As it was not, Catone's sentence had to be vacated.  Turning to the loss and restitution amounts, the court found that the district court failed to apply the proper analysis (as the Government conceded) in calculating those amounts, thus requiring reversal.  But the court went further: "Because there is no evidence in the record that could support a loss amount exceeding $5,000, we direct the district court on remand to resentence Catone under U.S.S.G. §2B1.1(b)(1)(A), without any offense-level enhancements for loss amount."  In other words, the court denied the Government a chance at a "do over" on remand.

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

No Pretrial Motion = No Suppression Review

US v. Moore: Moore was apprehended by Maryland police after running from an officer (who was interested in Moore because he might have been walking in public with an open beer).  Moore tossed a package into a dumpster during his flight which contained $10,000 worth of cocaine.  While Moore was in jail, his apartment was burglarized.  A subsequent search (conducted pursuant to a warrant) uncovered drugs, paraphernalia, $45,000 in cash, and two guns.  Moore was charged with multiple offenses, including possessing a firearm in connection with a drug trafficking crime.  Just prior to closing arguments at his bench trial, Moore moved to suppress "all the tangible evidence" because the original officer who wanted to talk to Moore lacked reasonable suspicion to make a Terry stop.  The district court denied the motion and convicted Moore on all counts.  He was sentenced to 271 months in prison.

Moore appealed both the denial of his motion to suppress and his firearm conviction, but the Fourth Circuit rejected his arguments.  On the suppression issue, the court noted that Rule 12 of the Rules of Criminal Procedure requires such motions to be made before trial and the failure to do so waives the ability to file such motions unless "good cause" is shown.  The court concluded that the district court found no good cause to excuse waiver and there was none in this case, rejecting the argument that it was based only on evidence that came to light at trial.  On the firearm conviction, the court found there was sufficient evidence to demonstrate a nexus between the firearm and a drug trafficking offense.

Friday, August 29, 2014

Pre-Jones Warrantless GPS Attachment Doesn't Require Suppression

US v. Stephens: Stephens was the subject of an investigation by a Baltimore area state/local drug task force.  As part of that investigation, officers installed a GPS tracker on Stephens's car.  They did not have a warrant to do so.  Officers then used a combination of the GPS tracker and surveillance to intercept Stephens, who they believed to be armed, at a club when he arrived there.  Stephens was only carrying an empty holster, but a gun was found in his car (after a drug dog alerted).  Stephens was charged with being a felon in possession of a firearm.  Afterwards, the Supreme Court decided Jones, concluding that placing a GPS tracker on someone's car constitutes a search under the Fourth Amendment.  Stephens moved to suppress the gun.  The district court concluded that search was unreasonable under Jones, but declined to suppress the firearm because the officers were acting in good faith.  Stephens entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed, 2-1.  Relying largely on US v. Knotts and its progeny in the lower courts, the court concluded that "a significant body of federal law existed nationally in 2011 to support the view that warrantless attachment of a GPS . . . was not a search within the meaning of the Fourth Amendment."  In addition, the Maryland courts had expressly found that to be the case.  Against that background, the court rejected Stephens's argument that because the Fourth Circuit hadn't specifically OK'd warrantless GPS searches pre-Jones there could be no good faith on the officers' behalf.  Davis, the Supreme Court decision from which Stephens took this "negative implication" did not "alter the general good-faith inquiry," only provide one situation in which good faith was evident.  At any rate, the court concluded that Knotts was controlling at the time of the search and, thus, officers were acting in good faith compliance with it, even though Knotts was "not exactly on point," because "it is the legal principle of Knotts, rather than the precise factual circumstances, that matters."

Judge Thacker dissented, arguing that exclusion was proper where officers "relied on non-binding, non-precedential authority regarding emerging technology -- without first bothering to seek legal guidance -- in order to conduct a warrantless search which spanned . . . nearly two months."  She noted that Davis was all about binding authority and that Justice Sotomayor pointed out, in her concurrence, that "whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled" is a "markedly different question."  That was the case at the time of this search, Judge Thacker argues, noting that Knotts is easily distinguished because the beeper (hardly a modern GPS tracker) in that case had been placed in the suspect cargo with the owner's permission.  As a result, the officers didn't act in an "objectively reasonable" manner suggestive of good faith.

Stash House Robbery Conspiracy Convictions Affirmed, Sentence Vacated

US v. McLaurin: McLaurin sold two guns to a CI and, after the offer of a third sale, was introduced to undercover officers who recruited him to be part of a "stash house robbery."  That is, to rob drug dealers of their product in bulk and then sell it themselves.  McLaurin said he was interested and had committed a "similar" robbery in the past.  He also talked about the need to acquire a gun, since he had sold his.  After a couple of weeks passed, McLaurin contacted the officers and arranged a meeting to discuss the robbery.  He brought along Lowery, his codefendant, to this meeting.  At the meeting, they discussed what weaponry would be needed and how the take from the robbery would be split.  On the appointed day, the defendants and the officers met at a storage area that was to be the staging area for the robbery.  Instead, McLaurin and Lowery were arrested and charged with multiple conspiracy counts.  They were convicted on all counts, with McLaurin also being convicted of two counts of being a felon in possession of a firearm.

On appeal, both defendants challenged their conviction, which McLaurin challenging his sentence as well.  The Fourth Circuit affirmed the convictions, but vacated McLaurin's sentence.  On the convictions, the court first found that the district court had correctly instructed the jury that inducement, in the context of an entrapment defense, "is a term of art necessitating government overreaching," which the defendants argued allowed the jury to rejected their defense based on a "non-factual, value-laden determination" while avoiding "the corse issue of an entrapment defense - predisposition."  Read in conjunction with the rest of the entrapment instructions, the court held that language did no remove predisposition and only "elaborated on the circumstances that can be considered inducement."  The court also affirmed the district court's admission of prior bad act evidence against McLaurin (the earlier robbery) and Lowery (firearm possession).  Finally, the court concluded that the district court's decision to deny McLaurin's motion to sever his felon in possession counts was not error and, if it was, not harmless, as the evidence underlying those charges were admissible under FRE 404(b).  As to McLaurin's sentence, the court found that the district court erred by including two robberies committed as a juvenile in McLaurin's criminal history calculation.  Although limited to plain error review, the court found the error plain, affecting substantial rights, and in need of notice.

Judge Floyd dissented in part, arguing that the district court erred in not granting McLaurin's motion to sever and that the error was not harmless.

Friday, August 15, 2014

Post-Jeopardy Notice of Appeal Don't Give Circuit Court Jurisdiction

US v. Modanlo: Modanlo was charged in ten counts of an 11-count indictment with aiding the 2005 launch of an Iranian communications satellite, via a state-owned Russian consortium.  He was also charged with obstructing bankruptcy proceedings that arose out of that scheme.  Prior to trial, Modanlo moved to dismiss the obstruction count, arguing that the dismissal of the bankruptcy actions constitued collateral estopell and prevented the Government from prosecuting him.  That motion was denied.  Modanlo filed a notice of appeal after his trial had been going on for 12 days (the district court only issued its written opinion six days in, although it had denied it orally pretrial).  The district court denied the Government's motion to label the appeal frivolous, but refused to sever the obstruction count from the rest of the case.  Modanlo filed a notice of appeal from that decision as well.  Modanlo was convicted on all counts  but one and sentenced to 96 months in prison.  He has filed an appeal from the convictions and sentence, although it hasn't reached the briefing stage yet.

The Fourth Circuit dismissed both of Modanlo's appeals, concluding that the notices of appeal he filed didn't confer jurisdiction upon it.  His "premature appeals . . . are a nullity and must be dismissed."  The court noted that jurisidiction cannot be divested from the district court once trial has begun and jeopardy has attached.  Although the issue Modanlo initially sought to appeal could be the subject of an interlocutory appeal that could have stayed proceedings in the district court, that is true only if the notice of appeal had been filed before trial began.  However, since the order denying Modanlo's motion to dismiss was not entered prior to trial, Modanlo's only option was to wait until a final judgment had been entered and seek appeal from there.  To be fair, the Fourth Circuit pointed out that the district court messed up by not entering that order before trial, but given that Modanlo didn't challenge the failure to do so, he was precluded from trying to appeal the order once it was entered.

Tuesday, August 05, 2014

Prior conviction is predicate for sentencing enhancement in illegal reentry case

US v. Valdovinos:  In this appeal, the Fourth Circuit considers a novel issue, whether a prior conviction under North Carolina’s Structured Sentence Act, imposed after a binding plea agreement to a sentence of less than one year, is a predicate felony offense for purposes of the sentencing enhancement applicable to those convicted of illegal reentry after deportation.  Valdovinos pleaded guilty in North Carolina state court in 2008 to selling heroin, a conviction which carried a maximum penalty of 16 months in prison; by virtue of Valdovinos’ plea agreement, however, he received a sentence of 10-12 months.  Under NC law, once the judge accepted the plea, the judge was forced to sentence him within the range recommended in the plea agreement.  Valdovinos was deported after serving this sentence.  In May 2013, he returned to North Carolina, got arrested for resisting a public officer, and received an illegal reentry charge, to which he pleaded guilty.

Valdovinos objected to the application of this sentencing enhancement because his prior conviction did not, in his view, qualify as a felony under the Guidelines as his sentence was between 10 and 12 months, less than a term exceeding one year, as defined in the Guideline.  His prior conviction could not serve as a predicate offense, he argued, to enhance his sentence for illegal reentry.

The Fourth Circuit affirmed the district court’s imposition of the sentencing enhancement for illegal reentry defendants with prior felony offenses, because North Carolina’s Structured Sentencing Act, not Valdovinos’ plea agreement, determined whether a defendant’s conviction was punishable by imprisonment exceeding one year, qualifying as a federal sentencing predicate.  The dissent lambasts the majority holding, and the panel’s decision to hinder the progress of federal sentencing jurisprudence with its decision, and is totally worth reading (begins on page 19 of the published opinion).

Friday, August 01, 2014

$1.2 million restitution order affirmed

US v. Seignious:   In this appeal, the Fourth Circuit considered the restitution order that resulted from Ehizele Seignious’ convictions for an extensive credit card scheme.  In crafting the restitution order, the district court imposed an amount, $1,213,347, sought by the government, as representing the actual losses caused by the fraud conspiracy, pursuant to the Mandatory Victims Restitution Act (“MVRA”).  The amount, however, was determined without the district court having made findings on the record of actual losses caused to specific victims.

Seignious timely appealed the restitution order, and approximately one week later, the government provided a document to the court, itemizing losses to banks and retailers, as well as victims’ names and addresses, entered as a sealed document.  Appellate counsel for Seignious filed an Anders brief, the government responded, Seignious filed a pro se supplemental reply, and the Fourth Circuit set the case for oral argument on the issue of the restitution order.

Under the MVRA, the government has an obligation to provide information concerning restitution to the probation officer 60 days in advance of the scheduled sentencing date; the probation officer must, to the extent practicable, provide notice to victims and collect any necessary information from them, including documentation and testimony.  Further, the defendant must provide the probation officer with information concerning his background, financial resources, and ability to pay restitution.  If the victim’s losses cannot be ascertained by 10 days prior to sentencing, under the MVRA, the district court can set another date for the disclosure of that information up to 90 days after sentencing.

The Fourth Circuit reviewed the record, and found that restitution was imposed without the procedural requirements of MVRA being met.  The standard of review is plain error, though, and the Fourth Circuit upheld the restitution order, denying Seignious relief.  Seignious, according to the Fourth Circuit, failed to carry his burden on appeal of demonstrating that the district court’s error affected his substantial rights.  The record left the panel with no doubt that had the procedural requirements been met, it is unlikely that a different restitution amount would have been imposed.

Seignious did not object to the amount of restitution ordered or dispute the amounts proposed by the government.  The Fourth Circuit found that, although the district court could have done a better job of making a record with respect to restitution, the panel was not convinced an error occurred in finding that the conspiracy caused $1.2 in actual losses.

Disability benefits fraud convictions affirmed

US v. Perry:  Christopher Perry received three convictions for Social Security fraud, federal health benefit program fraud, and health care fraud.  He had begin receiving benefits in 1996 or 1997 under the proviso that if his medical condition improved such that he could work or if he returned to work, he would report this to the Social Security Administration (“SSA”).

Perry, however, began working in 1996, and between 1996 and 2006, he worked for a variety of companies.  When the SSA made inquiries about Perry’s income from other sources, Perry either did not respond or he reported that he was not receiving income other than his disability payments.  In 2007, Perry was accepted into the Federal Career Intern Program, a training program for the SSA, to become a Benefits Technical Examiner - - while he continued to submit claims for Medicare benefits.  In 2009, SSA canceled Perry’s benefits after he failed to respond to two further employment inquiries.

When the government charged Perry with three counts of fraud, he moved to dismiss the indictment, which the district court denied, but it ordered the government to file a bill of particulars, “to delineate specifically the employment Defendant ha[d] failed to report.”  The government responded by identifying Perry’s various employers since 1996.  At trial, a jury found Perry guilty on all counts.

On appeal, Perry made several challenges to the indictment as well as the sufficiency of the evidence for one of the counts.  The Fourth Circuit affirmed the district court’s judgment, finding that the indictment was sufficient to apprise Perry of the charges against him and identify the elements of the crimes charged.  According to the Fourth Circuit, the indictment tracked the statutory language, provided specific details about the nature of the charges, and identified the “event” that triggered Perry’s disclosure obligations.  Perry also argued that the indictment failed to allege specific intent to defraud, but the Fourth Circuit found intent to defraud was charged in each count.  Additionally, Perry argued that the indictment was time-barred under the statute of limitations.  A five-year statute of limitation operated here; the district court found that the charged offenses were “continuing offenses” and part of a course of conduct, which constituted the violation.  Finally, in his challenge to the sufficiency of the evidence on the health care fraud count, the Fourth Circuit found that the government presented evidence showing that Perry knew he had a duty to report employment to the SSA, as well as evidence from Perry’s training to be a Benefits Technical Examiner, including training on the receipt and termination of benefits.  This evidence, according to the Fourth Circuit was sufficient for a rational jury to find Perry guilty of health care fraud.

Course of 10-year drug ring ends in life sentence

US v. Brown:  Jean Brown received convictions for her leading role in a marijuana trafficking operation across several states, Mexico, and Jamaica.  Brown also received convictions for the kidnapping and murder of Michael Knight, a player in the conspiracy.

On appeal, Brown challenges the life sentence she received, based on the district court’s calculation of the drug relevant conduct.  She challenged the admission at trial of videotaped recordings of her police station interviews, arguing in addition that the trial was structurally undermined when the judge left the bench during the playback of one interview.

The videotapes of custodial statements were admissible, according to the Fourth Circuit, because there was no legitimate basis to suppress them.  Brown did not challenge the validity or adequacy of the Miranda warnings she received, rather she claimed that her attorney, hired for a separate case (cash smuggling) was ineffective for failing to accompany her to the police station for these interviews concerning as-yet uncharged criminal activity.  The Fourth Circuit declined to address an ineffectiveness claim on direct appeal, as the facts here did not conclusively establish Brown’s ineffectiveness claims were legitimate.

The Fourth Circuit found that no structural error occurred, despite the fact that the district judge did vacate the bench, without warning, while the jury was shown part of the police station interview videos.  Here, the district court was only absent for a short time after all the evidence had been presented, no rulings were requested in the court’s absence, and nothing else occurred.   Any error here, according to the panel, was harmless.

The district court erred in its drug quantity instruction and verdict form, to which Brown failed to properly object according to the Fourth Circuit.  Further, the marijuana ring involved so many thousands of pounds of marijuana, that the amount involved dwarfed the amount required for the district court to impose a life sentence, so the Fourth Circuit found that the district court did not plainly err in its miscalculation.

Wednesday, July 02, 2014

Maryland First-Degree Burglary Conviction Not "Crime of Violence"

US v. Henriquez: Henriquez pleaded guilty to illegal reentry.  His advisory Guideline range included a 16-level enhancement for have been previously convicted of a "crime of violence" - a 2000 first-degree burglary conviction in Maryland.  The district court overruled Henriquez's objection that the Maryland burglary statute is broader than the "generic" burglary recognized by the Supreme Court and imposed a within-Guideline sentence of 41 months.

On appeal, the Fourth Circuit vacated that sentence, 2-1, after concluding that the enhancement was improper.  For illegal reentry purposes, the definition of crime of violence includes "burglary of a dwelling," which the court has recognized previously matches the definition of "generic" burglary promulgated by the Supreme Court.  Although the Maryland statute does specify that it only applies to burglary of a dwelling, it does not define "dwelling."  As a result, Maryland courts have defined the term as being broader than just a home (extending it to include RVs and unoccupied apartments), broadening the definition beyond that set forth by the Supreme Court.  Applying the categorical approach, the court concluded that it was not clear whether Henriquez's 2000 conviction involved a home or one of the places specifically excluded by the Supreme Court, such as a boat or a car.  Therefore, it was error to enhance his sentence.

Judge Motz dissented, arguing that the majority misconstrued Maryland court decisions on the scope of the burglary statute.

Congrats to the Defender office in Maryland on the win!

More Than Fraudulent Scheme Needed for Sophisticated Means Enhancement

US v. Adepoju: Adepoju was involved in a bank fraud scheme, along with another person who happened to be a confidential informant.  Adepoju provided the CI with false identification documents to use to open two bank accounts.  Adepoju was then to provide checks to the CI for deposit, then split the cash withdrawals with the CI and the CI's "insider" at the bank.  As a result, Adepoju was charged with two counts of bank fraud and identity theft.  After a jury convicted him of all counts, the district court sentenced Adepoju to 70 months in prison.

Adepoju appealed his convictions to the Fourth Circuit, which were affirmed, as well as his sentence, which was vacated.  On the convictions,  the court rejected Adepoju's argument that there was insufficient evidence to support them, based largely on the testimony of the CI.  As to his sentence, however, the court concluded that the district court had incorrectly applied a two-level Guideline enhancement for use of a sophisticated means in the scheme.  The court concluded that the Government had failed to prove the enhancement applied, noting that it takes more than mere fraud to qualify as "sophisticated."  The district court had erred by essentially putting the burden on Adepoju to disprove sophistication.  Finally, the court rejected an Allenyne-based due process argument with regard to Adepoju's two-year sentence on the identity theft charge, noting that there is only one possible sentence for such a conviction, not a staggered series of mandatory minimums.

Thursday, June 19, 2014

Court Refuses (Again) to Recognize Parent-Child Testimonial Privilege

Under Seal v. US: Officers responded to a domestic dispute 911 call at the home occupied by Doe, Doe Jr., and Doe's wife.  As a result, they uncovered a large stash of firearms and marijuana, which prompted a federal grand jury to investigate.  The Government subpoenaed Doe Jr. to testify before a grand jury about the ownership of the guns and drugs.  By that time, Doe Jr.'s parents had separated and he was living with Doe, on whom he was largely dependent financially.  Doe Jr. sought to quash the subpoena, invoking a "parent child privilege," arguing that forcing him to testify against his father would irreparably harm their relationship.  The district court granted the request and quashed the subpoena.

On appeal, the Fourth Circuit reversed.  Although a few district courts have recognized such a privilege, the court noted that every court of appeals (including the Fourth Circuit) to address the issue has rejected it.  However, the court found earlier Fourth Circuit cases had not created a "blanket rejection" of the privilege.  Nonetheless, the court concluded it was not proper to create one in this case.  Doe, Jr.  was an adult and admitted that his father would not "cut him off" if he testified against him.  In addition, Doe Jr.'s testimony, according to the Government, might not even wind up implicating his father.  As a result, Doe Jr. had not shown that recognizing the privilege would promote sufficient important interests that outweigh the need for probative evidence.

NC "Breaking or Entering" Conviction is Crime of Violence Under ACCA

US v. Mungro: Mungro was convicted of being a felon in possession of a firearm.  He was sentenced as an Armed Career Criminal based (in part) on prior North Carolina convictions for "breaking or entering."  The district court concluded that those were "violent felonies" under ACCA because they met the generic definition of burglary set out by the Supreme Court.

On appeal, the Fourth Circuit affirmed.  It concluded that, although the statutory language in North Carolina would appear to make "breaking or entering" much broader than the traditional burglary identified by the Supreme Court, state courts had narrowed the language to reflect preexisting North Carolina common law that required the state to prove the defendant was acting without the consent of the building owner.

Search "Fatally Tainted" By Officer's Incorrect Statement of Probable Cause

US v. Saafir: Saafir was pulled over in a residential area for speeding and excessively tinted windows.  During the stop, Saafir admitted that his license had been revoked, a fact confirmed by the officer.  The officer also retrieved information that suggested Saafir was armed and dangerous, a flight risk, and had a significant criminal record.  When the officer ordered Saafir out of the car, he saw a flask "commonly used to carry alcohol" in the driver's door map pocket.  Saafir consented to a patdown (which uncovered nothing), but refused consent to search the car, which was not his.  The officer stated that he had probable cause to believe Saafir was violating a North Carolina law prohibiting the carrying of alcohol in "other than . . . the opened manufacturer's original container," based on the flask.  With that said, Saafir told the officer there "might" be a gun in the vehicle.  A gun was found and Saafir was charged with being a felon in possession of a firearm.  He moved to suppress the gun, but the motion was denied.  He entered a conditional guilty plea.

On appeal, the Fourth Circuit reversed, finding that the only basis for probable cause to search the car - that Saafir admitted there "might" be a gun inside - came after the officer incorrectly stated he had probable cause to search the car.  The officer's incorrect assertion that the flask (which was never shown to contain anything, much less alcohol) provided probable cause "fatally taints the search of the car."

Congrats to the MDNC Defender Office on the win!

Second 2255 Isn't "Second or Successive" After Prior Conviction Vacated

US v. Hariston: Hairston was convicted in 2003 of a drug conspiracy charge.  His sentence was based on a Criminal History Category IV, which was calculated including a prior North Carolina traffic offense that occurred during a time in which, Hairston claimed, he wasn't in North Carolina.    He subsequently filed a 2255 that was denied.  He also filed a motion in North Carolina court to have that conviction set aside.  That motion was granted, in 2011.  Shortly thereafter, Hairston filed a new 2255, seeking a resentencing based on a CHC III.  The district court dismissed the motion as an unauthorized second or successive motion.

On appeal, the Fourth Circuit reversed.  First, the court rejected the Government's argument that Hairston had waived his right to challenge the prior conviction via his plea agreement because, ironically, the Government had failed to raise that argument at the informal briefing stage.  In other words, the Government waived its waiver argument (ha!).  Next, the court concluded that Hairston's second 2255 was not "second or successive" because it was based on facts that weren't available to him when he filed his initial 2255.