Wednesday, April 09, 2014

Simmons-Fueled Miscalculation of Career Offender Status Can Be Reviewed In 2255 Proceeding

Whiteside v. US: This is yet another in the line of cases arising from the Fourth Circuit's sea change on how it views North Carolina's sentencing scheme in Simmons.  Whiteside was classified as a career offender before Simmons based on a pair of North Carolina convictions.  Within a year of Simmons being decided, but more than a year after his case had become "final," Whiteside filed a 2255 motion seeking to vacate his sentence.  The district court dismissed the motion, concluding that it was untimely, that Whiteside had waived his right to file it due to a waiver in his plea agreement, and that, at any rate, he had no right to relief because his sentence was within the correct statutory range.

A deeply divided Fourth Circuit reversed.  Judge Gregory, for the majority, first concluded that Whiteside had not waived his right to file the 2255 motion, noting that there was conflicting language in the agreement and, when construed against the Government, Whiteside's challenge to his career offender status was not waived.

Second, the court concluded that although Whiteside's motion was filed outside the usual one-year window, it was filed within one year of the decision in Simmons and equitable tolling applied because extraordinary circumstances (of which Whiteside had no control) prevented him from filing the motion earlier.  Those circumstances, the court candidly acknowledges, included its own incorrect decisions about the North Carolina scheme before it reversed course in Simmons.  Specifically, had Whiteside filed a 2255 motion within one year of his case becoming final, it would have been futile under then binding Fourth Circuit law.  The court labelled the Government's argument that he should have filed one anyway as "having an air of absurdity about it."

Finally, turning to the merits, the court concluded that Whiteside could challenge his sentence collaterally due to "an incorrect application of the career offender enhancement."  It distinguished this from the "ordinary misapplication" of the Guidelines, which is not a "miscarriage of justice" and not subject to collateral attack.  In response to the dissent, it points out that the "career offender enhancement is plainly not a run-of-the-mill guideline."  In doing so, the court noted that other circuits have not reached the same conclusion, except for the Eleventh Circuit, in a panel decision that's already been vacated pending an en banc rehearing.  Nonetheless, relying on recent Supreme Court decisions emphasizing the key role of the Guidelines in a post-Booker world, the court held that an erroneous career offender designation meets the high standard required for 2255 relief.  It rejected the Government's argument that the sentence was "lawful" because it was within the applicable statutory range, aside from any Guideline issues.  Whiteside's sentence was vacated and remanded for further proceedings.

Judge Wilkinson wrote a lengthy dissent, in which he argued that the court's decision was a "dramatic expansion of federal collateral review" that "makes a shambles of the retroactivity doctrines that have long safeguarded the basic finality of criminal convictions."  He argued that Whiteside's sentence was not improper when it was applied and that no change in the law sense makes it the kind of violation (a due process violation, specifically) that is reviewable in a 2255 proceeding.  He also argued that there was no miscarriage of justice in Whiteside's sentence, noting how divided the court was when Simmons itself was decided.  To conclude otherwise was to "adopt a naively Whig history of law as an unbroken march toward progress and enlightenment." (To which the majority responds that the dissent is "rank with the fearful mistrust of individualized decision-making inherent to traditional conservatism.").  He also argued that Whiteside's motion was untimely and that futility was not a valid reason for not filing a 2255 before Simmons was decided.  Wilkinson concluded that "I view this decision as wholly wrong and deeply damaging to our criminal-justice system."

Senior Judge Davis concurred, noting that the majority opinion "fully responds to the dissent's overwrought and formalistic protestations that our judgment here presages an end to law as we know it." He called the dissent "hopelessly pleased with itself . . . as it prostrates itself at the altar of finality."  He also took the dissent and the Government to task for putting control of whether such cases would be reviewed in the hands of the Department of Justice (which, the opinion shows, had frequently not invoked waivers in similar cases), rather than the courts.

Congrats to the Defender office in the Western District of NC on the win!

Friday, March 28, 2014

Defendant appeals conviction; government cross-appeals forfeiture request rejection

US v. Blackman:  Khalil Blackman received two convictions after a bench trial for his part as the fence in an armed robbery conspiracy.  The other conspirators took pleas and agreed to cooperate with the Government.  He was convicted of conspiracy to commit robbery, and using or carrying a firearm during and in relation to a crime of violence.  At sentencing, the district court imposed a restitution award of the value of the stolen goods (imposed jointly and severally with co-conspirators), but rejected the Government’s request for forfeiture in the same amount.  On appeal, Blackman challenged the sufficiency of the evidence; the Government cross-claimed, arguing the district court erred in denying its forfeiture request.

On appeal, Blackman argued that the evidence was insufficient to support his conviction, especially his conviction for carrying a firearm during a crime of violence, as he did not personally participate in the armed robberies; also, that the district court erred in basing its judgment on Pinkerton when the indictment did not mention that case.  The Fourth Circuit panel cited to an earlier case, U.S. v. Ashley, in which it held that it is not necessary for an indictment to mention Pinkerton in order for that case to serve as the basis for a conviction. Further, “when one reaps the benefits of a collective criminal enterprise, one should be prepared to accept collective consequences.”

With respect to the government’s cross-claim, the panel reversed the district court’s forfeiture ruling as unsupported by any legal authority.  According to statute, when the necessary prerequisites are met, forfeiture must be imposed; it is not a matter for judicial discretion.  Here, the necessary predicates had been met, and the Fourth Circuit determined that the district court erred when it decided to not order forfeiture.  The panel remanded this portion of the case back to the district court for the imposition of a forfeiture money judgment in the amount of the stolen goods.

Tuesday, March 18, 2014

Supervised release does not begin during civil detention under Adam Walsh Act

US v. Neuhauser:  The issue in this case reached the Fourth Circuit following Neuhauser’s appeal of the district court’s decision to deny his motion to terminate his supervised release.  In 1999, he had been imprisoned for child sex offenses, a sentence which included three years of supervised release.   Prior to his release from prison, the government certified him as “sexually dangerous,” under the Adam Walsh Act, preventing his release from incarceration for the next four-and-a-half years.  At that time, the district court determined that Neuhauser did not meet the criteria for further civil commitment, so he was released from prison.

Upon his release from civil detention, Neuhauser moved to terminate his supervised release, arguing that the term imposed had started upon the end of his criminal sentence while he was still in jail on a civil commitment.  Further, he argued that civil confinement does not constitute imprisonment.  The district court disagreed, reasoning that “release from imprisonment” occurs only when a person is freed from confinement; and that Neuhauser’s supervised release started when his civil detention ceased.  Neuhauser timely appealed.

The Fourth Circuit panel started with the statute governing release from prison, 18 U.S.C. § 3624(e), in which it states, the “term of supervised release commences on the day the person is released from imprisonment.” The panel found Neuhauser’s definition of imprisonment did not jive with the broad definition of “imprisonment” it read in the statutory language.  Moreover, the panel found related Supreme Court analysis which rejected Neuhauser’s argument, holding that supervised release has no statutory function until confinement ends.  Additionally, other courts considering this precise issue have recently held that supervised release does not begin until an individual detained pursuant to the Adam Walsh Act is released from confinement (Eighth Circuit and District of Maryland).  The Fourth Circuit affirmed the denial of Neuhauser’s motion to terminate his supervised release.

NCIC report & other government corroboration establish the fact of an old conviction by a preponderance of the evidence, yet Sixth Amendment claim carries some force

US v. McDowell:  Ernest McDowell pleaded guilty to possession with intent to distribute heroin and being a felon in possession of a firearm.  At sentencing, the probation officer recommended McDowell be sentenced as an armed career criminal, based upon three prior convictions that allegedly met the definition of “violent felony,” except that one of these convictions, a 1971 NY conviction for second degree assault, lacked a formal judgment documenting it.  The government, in order to establish the existence of this conviction, relied on an NCIC report for its proof but failed to incorporate it into the record.  The district court sentenced McDowell as an armed career criminal, and he appealed.

In the first appeal, the Fourth Circuit found error by the district court by basing its sentence on the NCIC without making the report part of the record.  On remand, McDowell renewed his argument that the NCIC was “inherently unreliable” as a means of proving the existence of this conviction (which he never conceded) for ACCA purposes.  The district court entered the NCIC into the record, in addition to some other corroborative information the government located, i.e., NY Dept. of Corrections info and fingerprint analysis results that indicated the 1971 conviction was McDowell’s.  The district court sentenced McDowell again as an armed career criminal, but imposed a shorter sentence than the first one imposed, on account of McDowell’s “good behavior in the interim.”

On this appeal, McDowell raises a procedural and constitutional challenge to his sentence, arguing that the NCIC report cannot establish the fact of the 1971 conviction by a preponderance of the evidence, and that his Sixth Amendment rights have been violated because he has a right to have a jury find each element of his offense beyond a reasonable doubt.  The constitutional question provided McDowell more traction, as the Fourth Circuit panel finds the Supreme Court’s Sixth Amendment exception at play here (normally, “any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime” that a jury must find beyond a reasonable doubt,” Shepard v. United States) “incompatible with constitutional principles that are by now well settled.” Yet, the panel affirmed McDowell’s sentence based on the current state of the law.

Friday, March 14, 2014

Restitution Order affirmed

US v. Abdelbary:  In this appeal, the Fourth Circuit considers the propriety of an order requiring a defendant to pay attorneys’ fees incurred by a creditor in a bankruptcy proceeding as a part of restitution; the Fourth Circuit approved and affirmed.

Youssef Abdelbary received convictions in connection with a fraudulent bankruptcy filing. As part of his sentence, the district court imposed a restitution award to his creditor, Jordan Oil, for its attorneys’ fees. On his first appeal, the Fourth Circuit remanded because the district court failed to designate the statutory basis for the restitution, and overlooked the predicate factual findings required by the appropriate act, here, the Victim and Witness Protection Act ("VWPA") or the Mandatory Victim Restitution Act ("MVRA"). On remand, the parties agreed that the MVRA governed the issue. The district court again imposed a restitution award, finding as a factual matter that the attorneys’ fees for Jordan Oil were incurred as a result of the bankruptcy fraud; Abdelbary countered that attorneys’ fees should never be included as compensable costs as part of restitution under the MVRA, or in the alternative, that Jordan Oil was not a victim of Abdelbary’s bankruptcy offense.

In order to reach its decision, the Fourth Circuit discussed the background of both the VWPA and the MVRA, showing how particular types of losses could be included in restitution for certain types of crimes, including those involving damage to or loss or destruction of property, crimes involving bodily injury, and pertinently, for certain categories of offenses "that directly and proximately caused a victim to suffer either a physical or a pecuniary loss." The district court in this case found that Jordan Oil was a "victim" of Abdelbary’s offense because his attempt to discharge his debts to that company (via fraudulent bankruptcy filings) directly and proximately caused Jordan Oil to shell out cash for attorneys’ fees in order to protect its interests against Abdelbary’s fraud.

In dissent, Justice Diaz argues that the finding that all of Jordan Oil’s attorneys’ fees were directly and proximately caused by Abdelbary’s fraudulent bankruptcy, and that such a conclusion takes too broad a view of Abdelbary’s criminal conduct. He posits that Abdelbary may well have been able to file for bankruptcy without making any fraudulent representations, which would have dragged Jordan Oil into court, incurring attorneys’ fees all the while; the government failed to show, he states, that even if the defendant had been utterly truthful, that Jordan Oil would not have suffered the same harm.

Cross-reference's "purpose" requirement construed broadly

US v. Cox:  In this appeal, the Fourth Circuit considered a challenge to the application of a sentencing guideline cross-reference, which application resulted in a 13-level increase to the defendant’s sentence. The sentencing guideline in play was U.S.S.G. § 2G2.2, governing possession of material depicting the sexual exploitation of a minor.

Mr. Cox pleaded guilty to faking his death which caused to Coast Guard to search for him off the Carolinas when he was hiding out in Florida; and also to his knowing possession of material containing images of child pornography. Mr. Cox had in his possession multiple polaroid images he had taken while he sexually abused his minor niece. At sentencing, the district court determined that Mr. Cox was responsible for causing a minor to engage in sexually explicit conduct "for the purpose of" producing a visual depiction of that conduct.

On appeal, Mr. Cox claimed that the district court improperly applied the cross-reference found in the sentencing guideline that pertains to the possession of material depicting the sexual exploitation of a minor. The cross-reference applies when the offense conduct involved causing a minor to pose for the purpose of producing a visual depiction of the criminal conduct. Mr. Cox argued that there was insufficient evidence to support a finding that he acted for the purpose of producing a visual depiction, though he did not dispute that he caused the victim to engage in sexually explicit conduct, nor that he took pictures; rather, he contended that taking the pictures was not a "central component" of the criminal activity.

The Fourth Circuit agreed with the Ninth and Seventh Circuits on this issue, that producing the depiction need not be the defendant’s sole or primary purpose. The cross-reference’s "purpose" requirement "is satisfied anytime one of the defendant’s purposes was to produce a visual depiction" of the criminal conduct. The Fourth Circuit affirmed the application of the cross-reference.

Thursday, March 06, 2014

Knowledge of Minor's Age Not Necessary For Sex Trafficking Conviction

US v. Washington: In 2012 Washington met RC, a teenage runaway, in Maryland.  Although she was actually 14 years old, she told Washington she was 19.  He became her pimp, taking her to various states and advertising her availability on the internet.  Washington was arrested as part of a sting operation in Richmond.  He was charged with interstate transportation of a minor to engage in prostitution.  He was found guilty at trial, after the district court instructed the jury that the Government did not need to prove that he had any knowledge of MC's actual age.  At sentencing, the district court imposed a sentence of 240 months in prison, well above the top of the advisory Guideline range

Washington appealed, challenging his conviction and sentence, both of which the Fourth Circuit affirmed.  On the conviction, the court rejected Washington's argument that the district court erred by instructing the jury that he did not have to know MC was a minor in order to convict him.  The court concluded that its prior decision rejecting that argument had not been undermined by a more recent Supreme Court decision (involving identity theft) that expanded the reach of "knowingly" in a criminal statute, a conclusion reached by other Circuits.  As for the sentence, the court concluded that the district court properly considered the Guidelines, the 3553(a) factors, and that the variance itself and its extent were reasonable.

Tuesday, February 25, 2014

Acquiescence to Sentencing Going Forward Where Relevant Conduct Disputed Leads to Waiver of Appellate Review

US v. Robinson: Robinson pleaded guilty to conspiring to distribute 50 grams or more of crack cocaine, along with several substantive counts of distribution.  In the PSR, the probation officer attributed 1.43 kilograms of crack as relevant conduct to Robinson, based on the testimony of a source named Battle.  Robinson objected to that calculation, arguing that Battle was unreliable based on inconsistencies in prior statements and that he lied about buying PCP cigarettes from Robinson during a period where Robinson was living in another state.  Robinson also objected to the calculation of his criminal history.

At sentencing, the Government did not produce Battle to testify, but argued that it was not unusual for sources to give multiple statements that differed from one another and that the PCP issue was irrelevant because it was not part of the relevant conduct calculation.  The Government also argued that there were three other witnesses, whose statements "did not 'make their way' to the probation office," who could provide testimony that would result in a higher relevant conduct determination than the 1.43 kg amount.  The district court presented Robinson with two alternatives.  First, it would conclude the sentencing that day "with what's here and now, and I'll make the decisions that I need to make by a preponderance of the evidence."  Second, it would continue the hearing, "unwind the whole thing," and get a revised PSR that would include the Government's new witnesses.  Robinson chose to go ahead, after again asserting that Battle was not credible.  The district court overruled Robinson's objection as to relevant conduct (criminal history, too) and imposed a sentence of 140 months in prison.

Robinson appealed, challenging both the relevant conduct and criminal history calculations.  The Fourth Circuit affirmed his sentence, 2-1.  On the relevant conduct issue, the court concluded that Robinson had waived his right to challenge the calculation by electing to go forward with sentencing, stating that he "Was agreeing that his drug quantity would be calculated on the basis of the PSR, which relied on Battle's statement."  As to criminal history, the court concluded that a possession of marijuana charge that occurred during the time of the conspiracy charged in the indictment was not relevant conduct and, therefore, counted as both a prior sentence and triggered the two-point enhancement for committing the offense while under a sentence of probation.

Judge Diaz dissented.  He argued that Robinson's choice to proceed with sentencing was done after the district court said it would make findings "by a preponderance of the evidence" and therefore he did not waive his challenge to the relevant conduct calculation.  In conclusion, wrote:
The majority declares that Robinson made a considered decision and should have to live with the consequences. But that rationale upends the equities--and, indeed, facts--of the case before us. It is not Robinson who seeks a mulligan, but the government. 
When Robinson objected to the PSR--before the hearing--the government was put on notice that its “evidence” was suspect. Yet it did not produce Battle. Nor did it produce the probation officer who interviewed Battle. And it had never even submitted the other witnesses’ statements to the probation officer in the first place. Despite its lack of preparation, the government was presented--as the majority sees it--with a win-win scenario: either it would have a second chance to do the job right (securing an even longer sentence), or it would get a pass on the evidentiary standard. “In this case, the district court did not ensure--as it was obligated to--that the Government carried its burden of proof.” [US v.] Lawrence, 47 F.3d [1559] at 1568 [(11th Cir. 1995)]. 
Thus, I would vacate and remand with instructions that the district court resentence Robinson on the record--but without crediting Battle’s statements as to drug weight. Any other result would grant the government the very benefit--a second chance to present evidence--that it does not merit.

Friday, February 07, 2014

Evidence of “Gray Market” Excluded

US v. Zayyad:  Awni Zayyad received several felony convictions in connection with his sales of counterfeit prescription drugs (more specifically, erectile dysfunctions drugs that looked like Viagra and Cialis).  On appeal, Mr. Zayyad mounts two related evidentiary challenges, that the district court erred in excluding evidence of the “gray market” for prescription pills, and that the Government did not establish that he knew the pills he peddled were fakes.

At Mr. Zayyad’s first trial, which ended in a deadlock, the district court permitted Mr. Zayyad to suggest through cross-examination of Government witnesses from pharmaceutical companies, that he believed he obtained the drugs from the “gray market,” inferring that the pills were real; the trial ended in with a mistrial.  The Government filed a superseding indictment, and moved to exclude and evidence of the “gray market,” as it would only be relevant if the defendant testified about his state of mind, i.e., that he believed the pills he sold were genuine.  The district court granted the motion under F.R.E. 401 and 403, holding that there was no evidence that showed Mr. Zayyad had any genuine pills, and that confusion of the issue, misleading the jury, and wasting time would overwhelm the probative value of the evidence; Mr. Zayyad did not take the stand.  The jury convicted Mr. Zayyad after the second trial.

On appeal, the Fourth Circuit panel noted that Mr. Zayyad had the option of testifying, and he could have introduced evidence of a “gray market” but he chose not to take the stand to justify his actions.  The panel stated that it considered the district court’s order as an appropriate limit on Mr. Zayyad’s right to cross-examine, since the ruling did not interfere with the right of the defendant to elect not to testify at trial.  Further, the panel determined that it was unlikely that Mr. Zayyad preserved his appeal issues because he failed to raise an argument that the contested evidence went to show his knowledge that the pills were "gray market" items.

Nolo contendere plea “without adjudication” held a SORNA predicate

US v. Bridges:  In this appeal, the Fourth Circuit addressed the issue of whether a nolo contendere plea in the State of Florida to an attempted sexual battery charge, counts as a predicate offense under SORNA, and held that it does.

William Bridges entered a plea in 1999 to a charge of attempted sexual battery upon a child under 16 with adjudication of guilt withheld.  As a result of this judgment, Mr. Bridges was required to register as a sex offender under Florida law, and he was placed on probation for a year.  At some point, he failed to report to his probation officer, and the state revoked his probation; he served just over two months for the revocation.
In 2010, Mr. Bridges moved to Virginia and registered there as a sex offender.  In 2011, he moved to Michigan without updating his registration with a new address. Mr. Bridges did not register as a sex offender with his new address.  Mr. Bridges received an indictment in 2012 for traveling in interstate commerce without updating his sex offender registration.  He moved to dismiss the indictment, arguing that his nolo contendere plea without adjudication meant that he had not actually been “convicted” of a sex offense for the purposes of SORNA.  The district court disagreed; Mr. Bridges entered a conditional guilty plea in order to challenge the denial of his motion to dismiss.

The Fourth Circuit panel discussed how Congress left the statutory term “convicted” undefined in SORNA, so that the Attorney General could issue guidelines and regulations for the interpretation and implementation of SORNA, which guidelines have the force and effect of law.  Here, the panel cites that so long as “the sex offender is nevertheless required to serve what amounts to a criminal sentence for the offense,” he is “‘convicted’ of a sex offense and falls within the ambit of SORNA’s registration requirements.”  The panel pointed to his two-year probation term pursuant to his plea, and the fact that Mr. Bridges served three days in jail for the plea, as penal consequences.

Additionally, the Fourth Circuit determined that “without adjudication” does not work to exempt Mr. Bridges from registering as a sex offender.  It reached this conclusion after reviewing decisions from the Eleventh and Eighth Circuits, which held that Floridian nolo contendere pleas with adjudication withheld do constitute “convictions” under federal law.

What is "willful" violation of AECA?

US v. Bishop:  Brian Bishop received a conviction for attempting to export small-arms ammunition to Amman, Jordan without a license in violation of the Arms Export Control Act, “AECA,” which the Fourth Circuit panel affirmed.

On appeal, Mr. Bishop raised the issue of whether the AECA requires specific intent.  The Fourth Circuit panel  discussed the difference between specific and general intent, which distinction “has been the source of a good deal of confusion,” quoting the Supreme Court in United States v. Bailey, 444 U.S. 394, 403 (1980).  Further, the panel states that “although courts often use the language of general and specific intent, scienter, and the related concept of mens rea interchangeably, [citation omitted] none of these terms by itself adequately defines willfulness under the AECA.”

The panel looked to the Supreme Court’s statutory interpretation in Bryan v. United States, 524 U.S. 184 (1998) for guidance.  In that case, the Supreme Court interpreted the Firearm Owners’ Protection Act, holding that “to establish a ‘willful’ violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful,” and rejecting the argument that the Government had to prove that a defendant knew of a federal licensing requirement.  The Fourth Circuit panel found a link between FOPA and AECA’s language and structure, stating “that Congress struck a balance between punishing those who intentionally violate the law and ensnaring individuals who make honest mistakes,” and noting that exporting ammunition to Jordan would strike someone of ordinary intelligence as potentially unlawful.  The Fourth Circuit found support from three other Circuits which squarely addressed the issue here.

With respect to the sufficiency of the evidence argument, the Fourth Circuit considered the evidence in the light most favorable to the prosecution: that Mr. Bishop had been trained in the rules and regulations surrounding the State Department’s transportation policies, he had received an email from that he could not transport ammunition and he was told explicitly that he could not keep firearms in Jordan.  Further, Mr. Bishop engaged in “numerous” acts of deception that indicated his awareness of wrongdoing.