Court Affirms Wire Fraud Convictions

US v. Golestan: Golestan (a naturalized United States citizen) was founder and CEO of Micfo, a company that provided Internet services. Starting in 2014, the company fictitious other companies to acquire lots of assigned IP addresses for resale, eventually obtaining 1.3 million of them and over $3 million in profits. Eventually, Golestan and Micfo were both charged with numerous counts of wire fraud. Golestan, both for himself and Micfo, wound up pleading guilty to all counts midway through a bench trial. After his motion to withdraw his guilty pleas were denied, Golestan was sentenced to 60 months in prison and Micfo to 30 days probation.

On appeal, the Fourth Circuit affirmed both Golestan and Micfo’s convictions, concluding that the district court did not err in denying his motion to withdraw the guilty pleas for several reasons. First, the court held that while the district court did violate Rule 11(b)(1)(O) by not informing Golestan that “if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future” as part of his plea colloquy. However, the error did not impact Golestan’s substantial rights because the rule only applies to non-citizens, which Golestan was at the time. Second, the court concluded that the Supreme Court’s recent decision in Ciminelli did not undermine the wire fraud convictions as it involves a theory that was not at issue in his case. Finally, the court held that the record supported the conclusion that Golestan had the authority to enter a guilty plea on Micfo’s behalf.

State Court’s Unreasonable Factual Conclusions About Use of Attorney/Client Privileged Material Required Remand

Kaur v. Warden: In October 2013 a woman was shot and killed outside her home in Maryland. Arrested shortly thereafter in Tennessee (where they lived) were her ex-husband, Taneja, and his new wife, Kaur, who were both charged with first degree murder. At a joint trial, both were convicted, on the state’s theory that one or the other had done the actual shooting.

Kaur filed a motion for new trial, along with an affidavit from her trial attorney, arguing that she had received ineffective assistance of counsel, particularly because she had been incorrectly informed that she could not testify on her own behalf due to marital privilege. Proceedings resulting in a new trial ensued, during which Kaur was required to disclose “all investigative and trial files belonging to Kaur’s defense counsel,” which disclosed the possibility of a piece of evidence (a second wig potentially used during the shooting) about which the state did not know. She also testified at length about what her trial testimony would have been. The district court granted Kaur’s new trial motion.

However, the trial court allowed the same prosecutors who appeared at the first and second trials to conduct the evidentiary hearing, meaning that they had considerable knowledge of attorney/client protected facts produced during that proceeding. The trial court entered a weak protective order that largely left the issue of just want information the state might be able to use at the second trial up in the air. At the second trial, the state shifted its theory to Taneja being the shooter and Kaur acting as an accomplice, relying heavily on the second wig. Kaur decided not to testify at the second trial out of concerns that she could be cross-examined based on privileged material that had come out during the hearing. Kaur was again convicted.

The Maryland appellate court affirmed Kaur’s conviction, assuming (but not deciding) that her Sixth Amendment rights had been violated, but concluding she had not been prejudiced. Kaur sought §2254 relief in the district court, which denied her motion, but did issue a certificate of appealability on the issue of whether Kaur’s Sixth Amendment right to counsel was violated.

On appeal, the Fourth Circuit vacated the district court’s order and remanded for further proceedings. Looking to the state appellate court decision, the court concluded that the state court was based on “an objectively unreasonable determination of the facts in light of the evidence presented in the state court proceedings.” Specifically, the court found error with two conclusions: First, that the disclosure of the second wig evidence actually helped Kaur’s case, rather than strengthened the state’s case (the state referenced the second wit 13 times in closing). Second, that Kaur had not adequately set forth what she would have testified about at the second trial so it was impossible to determine how it might have impacted the trial. However, because the state court had assumed, rather than deciding, whether a Sixth Amendment violation had occurred, the court remanded for an initial determination on the merits of that claim.

Officers Searching for Subject of Arrest Warrant Were Able to Detain Defendant Who Was Not That Person

US v. Morillo-Lopez: Members of a state-federal task force had a warrant to arrest a person suspected of armed robbery and information that he would be at “one of a few specific residences” in the same block. Officers were armed with a photograph and physical description, Surveilling the block, officers saw two or three men “at least one of whom” matched the description of their target, leave one of the homes and get into a Ford Explorer that then drove away. The Explore stopped at a convenience store and picked up two more men, then went to a nearby gas station.

There officers approached and found M-L in the driver’s seat of the Explorer, with another man in the back seat. An officer “did not believe the picture eliminated M-L” as the target of the warrant and had a brief interaction with him, during which he discovered a firearm in a “cross-body satchel” that was “tightly affixed” to M-L’s body. Another officer with a “fingerprint identification machine” confirmed that the backseat passenger, not M-L, was the wanted man. Nonetheless, because M-L was in the United States unlawfully he was charged with unlawful possession of a firearm. After his motion to suppress was denied, M-L was convicted at trial and sentenced to 8 months in prison.

On appeal, the Fourth Circuit affirmed M-L’s conviction. M-L’s primary contention was that his seizure and search of his satchel violated the Fourth Amendment because there was no evidence that he was engaged in any ongoing criminal activity. The court rejected that argument, holding that because the officers were executing an arrest warrant “there is no additional requirement that officers also have reasonable suspicion of then-ongoing criminal activity.” That M-L was the wrong guy did not make the seizure unlawful, as officers had sufficient evidence to “eliminate a substantial portion of innocent travelers.” The court also found no clear error in the district court’s conclusion that M-L consented to the search of the satchel. The court also held that the evidence was sufficient to sustain M-L’s conviction and that its prior precedent rejecting a Second Amendment challenge to 18 U.S.C. § 922(g)(5) was unchanged by Bruen and Rahimi.

Career Offender Predicate Comparisons Made at Time of Sentencing, Not Time of Original Conduct

US v. Nelson: Nelson pleaded guilty to a drug offense and being a felon in possession of a firearm. At sentencing, the district court classified him as a career offender based on a 2017 Virginia drug distribution conviction and a 2012 federal conviction for distribution of crack. He was sentenced to 151 months in prison, the bottom of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed Nelson’s sentence, concluding that both prior convictions were “controlled substance offenses,” but for different reasons. As to the Virginia conviction, the court rejected Nelson’s argument that the statute at issue there was similar enough to the West Virginia one in Campbell for that case to apply. Instead, the court found it closer to the federal statute it concluded in Groves was a controlled substance offense. As to the federal conviction, the court rejected Nelson’s argument that it was no loner a controlled substance offense because it covered a pair of substances (a cocaine derivative and “hemp-type marijuana”) that are no longer covered by Schedule I or II. Relying on prior precedent, and the Supreme Court’s recent decision in Brown, the court concluded that a “time of sentencing” test is appropriate and so longer as “every substance that could have supported his 2012 conviction was in schedule I or II at the time of his present sentencing.” Because Nelson’s prior conviction involved crack cocaine, which is still covered, the conviction counted as a controlled substance offense.

District Court’s Noting of “Exceptions” by Defense Counsel at Suppression Hearing Did Not Restart Speedy Trial Act Clock

US v. Myrick: Myrick fled from a traffic stop, eventually crashing into a tree before running away. In the car, officers found drugs and guns. They tracked down Myrick (via DMV paperwork in the car) and arrested him. Initially, Myrick was charged only with possession with intent to distribute methamphetamine, but a superseding indictment returned four months later added charges related to the firearms and cocaine. On the day of trial, Myrick filed a pro se motion arguing that his Speedy Trial Act rights had been violated. The district court denied the motion, concluding that sufficient time had been excluded from STA calculations to render the trial timely. Following Myrick’s conviction, his (new) counsel filed a renewed STA motion, arguing that the 16 days between the conclusion of a pretrial motions hearing and the district court’s written ruling on the motion to suppress should not be excluded from the STA calculations. The district court denied the motion and sentenced Myrick to 270 months, the bottom of the calculated Guideline range.

On appeal the Fourth Circuit affirmed Myrick’s convictions and sentence. The primary argument involved the STA issue which, as the court pointed out, involved only the original methamphetamine charge, not the two later charges in the superseding indictment (for which trial was timely whatever was excluded from the STA calculations). The court rejected Myrick’s argument that the 16 days between suppression hearing and written opinion shouldn’t be excluded because the district court had actually denied the motion to suppress at the hearing itself. Myrick pointed to the district court taking note of a pair of “exceptions” by defense counsel related to particular issues at the hearing, but the court concluded those were not the same as a ruling on the motion to suppress itself, which only came in the written opinion. Therefore, the 16-day gap should be excluded.

Defendant Could Not Withdraw First Two Guilty Pleas After Third Case Uncovers Search Warrant Anomaly

US v. Milam: First, Milam, “the leader of the Aryan Kings” gang, was charged with being a felon in possession of a firearm after the execution of a search warrant at his home uncovered drugs and multiple firearms. He pleaded guilty without a plea agreement. Second, months later (and after his initial plea), Milam was charged in a second indictment with drug offenses related to the search. He also pleaded guilty to that indictment, but pursuant to a plea agreement.

While in custody awaiting sentencing, Milam “began to receive drugs and other contraband” mailed to him from gang members disguised as “legal mail” bearing the return address of Milam’s attorney. This blew up when a package was “returned” for insufficient postage to his lawyer (who opened it, found drugs, and promptly withdrew). Milam also assaulted “multiple sheriff’s deputies” during an incident at the jail. Third, therefore, Milam was charged with assaulting persons assisting federal law enforcement. During the pendency of that case, Milam’s new lawyer noted that the search warrant underlying the first two cases was missing every other page. When asked the Government provided a complete copy (there had been a scanning error during the initial discovery prep). Milam filed a motion to withdraw his prior guilty pleas, which was denied. He then pleaded guilty to the assault charge without a plea agreement. Ultimately, he was sentenced to 300 months in prison, a variance down from the advisory Guideline range of 360 months to life.

On appeal, the Fourth Circuit affirmed Milam’s convictions and sentence. The court held that the district court properly denied Milam’s motion to withdraw his first two guilty pleas. Not only were the Rule 11 hearings sufficient to show that Milam entered his pleas knowingly, but the late revelation of the search warrant did not undermine that. Particularly because the full search warrant and affidavit only made any potential suppression argument weaker. The court also agreed that Milam’s first lawyer had not been ineffective, crediting her testimony that she discussed the warrant issue with Milam, but that he was determined to enter a quick guilty plea in hopes of heading off the Government filing additional charges. The court also held that there as no error in denying Milam credit for acceptance of responsibility, although the Government agreed to it in the second-charge plea agreement, given Milam’s later conduct. Finally, the court concluded that Milam’s sentence was substantively reasonable.

Court Vacates Prison Contraband Conviction on Jurisdictional Grounds

US v. Perez: Perez was incarcerated at FCI Petersburg for possessing child sex abuse material when he was found in possession of images he had made involving children engaging in sexual acts that “looked almost real.” As a result, he was charged with producing and possessing obscene visual depictions of the sexual abuse of children. At the conclusion of his bench trial, Perez argued that the Government had not proven that FCI Petersburg was “in the . . . territorial jurisdiction or possession of the United States” and, therefore, he should be acquitted. The district court disagreed, taking judicial notice that FCI Petersburg “a federal prison, falls under federal jurisdiction.”

On appeal, a divided Fourth Circuit reversed Perez’s conviction and remanded for additional proceedings. As an initial matter, the court was required to determine whether the jurisdiction hook involved was a matter to be resolved by the factfinder or the court as a question of law. The court concluded that it was mixed, with factual determinations about what occurred where being factual issue, but questions about the impact of that being legal questions for the court. While the district court did not error in that manner, the court did conclude that it erred in not doing the required three-step analysis for determining whether something is within federal jurisdiction. Because that was, ultimately, a legal question for the court to decide, the court ordered the case remanded for additional proceedings on the issue.

Judge Wynn issued a short concurring opinion, emphasizing that the fact/law issue would have been different if Perez has a jury trial. Had it been, “I doubt that we could remand this case without infringing upon Perez’s Sixth Amendment right to trial by jury.”

Judge Harris concurred in part and dissented in part, agreeing that the district court did not do the proper three-step analysis, but arguing that because the Government “did not prove facts necessary to satisfy all the elements of the criminal offense with which Perez was charged,” his conviction must be reversed.

Congrats to the Defender office in the ED Virginia on the win! 

Defendant Did Not “Use Fire” During Domestic Violence Case By Attempting to Burn Dead Victim’s Body

US v. Florentine: Florentine kidnapped his wife, taking her from North Carolina to South Carolina before killing her. After she was dead, Florentine buried her body in a “makeshift grave” and set it on fire. In addition to being charged with interstate domestic violence resulting in death, use of a firearm, and obstruction of justice, Florentine was charged with use of fire to commit a felony (domestic violence). He unsuccessfully moved to dismiss that count, arguing that the domestic violence offense was complete prior to his use of fire. Florentine pleaded guilty to all four counts and was sentenced to a total of 360 months in prison – 240 months to be served concurrently on the first three counts, plus a consecutive 120-month sentence on the use of fire charge (the mandatory minimum).

On appeal, the Fourth Circuit reversed the district court’s denial of Florentine’s motion to suppress, but ultimately concluded that resentencing was not required. The court noted that “the critical statutory issue in this appeal is determining when the commission of the predicate felony, interstate domestic violence . . . came to an end.” It rejected the Government’s argument that it was a continuing offense that extended to attempts to cover up the offense, concluding that the plain language of the statute shows that the offense ends when the victim of the domestic violence is dead. That is because the language of the statute is involves causing “a spouse [or partner] . . . to travel in interstate commerce” and “once a person has died, they are no longer anyone’s ‘spouse’ or ‘partner.’” As a result, Florentine’s conviction on that count had to be vacated. However, resentencing was not required, as the district court made clear at sentencing that if the use of fire count had been dismissed it would have imposed the same sentence (even though it would be an upward variance).

No Fourth Amendment Search in Drug Dog Sniff of Common Hallway Outside Apartment

US v. Johnson: Police suspected Johnson was selling drugs from his apartment in Maryland, but didn’t feel confident they had enough evidence to secure a warrant. With the permission of Johnson’s landlord, at 3am in the morning, an officer took a drug-sniffing dog to Johnson’s front door – on the second floor of the building, near the elevator. The dog alerted on the seam of Johnson’s door. Officers obtained a warrant and the resulting search uncovered drugs and related evidence. Johnson unsuccessfully moved to suppress, arguing that the dog sniff had violated the Fourth Amendment. He was convicted by a jury and sentenced to 150 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Johnson’s motion to suppress, concluding that the dog sniff was not a “search” for Fourth Amendment purposes. First, the court held that Johnson lacked an expectation of privacy because the dog’s sniff could detect only contraband, in which nobody has a legitimate expectation of privacy. Second, the court held that brining the dog to Johnson’s front door was not a trespass, as the dog remained in a common area accessed by numerous others.

Defendant “Used” Firearm that Was Visible in Vehicle During Kidnapping

US v. Faulls: Faulls kidnapped his “intimate partner,” following previous incidents of domestic violence, some of which involved a gun. As she was getting in Faulls’ truck she saw a gun in the back seat (the door handle had been rigged so she couldn’t get out). She forgo at least one chance to escape because she worried that Faulls would “go out and get that gun and maybe bring it in and hurt other people.” She eventually did escape, after which Faulls was arrested and the gun recovered from the bed of the truck. After being convicted on multiple offenses, Faulls was sentenced to 295 months in prison.

On appeal, the Fourth Circuit affirmed Faulls’ sentence. At issue was a two-level enhancement to his Guideline offense level for “use” of a dangerous weapon. Faulls argued that while the gun was present during the kidnapping, he never actually “used” it. The court disagreed, concluding that a gun is used when “it is employed to create a personalized threat of harm rather than to generally intimidate.” The enhancement does not require that the gun be pointed at a victim. Rather the “combined force” of the incidents that occurred “went beyond non-specified intimidation.”

Reversing Motion to Dismiss Based on Equal Protection Violation in Traffic Stop

US v. Moore: One evening in Richmond, police officers stopped three different vehicles that all had the same license plate number. The first two drivers were allowed to go. The third driver “fled, running several stop signs before crashing into the curb,” with the driver, Moore, then trying to escape on foot. Officers found a gun in the floorboard of the car and Moore was charged with being a felon in possession of a firearm.

Moore filed a motion to suppress in which he argued that the neighborhood in which he was stopped was home to “almost exclusively black residents” and that all the stops were pretextual. At a hearing, Moore presented evidence that “Black drivers were, on average, pulled over more frequently than White drivers.” In supplemental briefing Moore shifted his argument, arguing that the indictment should be dismissed “because the police officers had violated his Fourteenth Amendment right to equal protection by targeting him and other Black residents of the Fourth Precinct, using pretextual stops to search their cars.” An expert witness would confirm that Black drivers were pulled over much more frequently than White ones in Richmond, but admitted the data “revealed a ‘somewhat weak’ but still ‘important’ relationship between race and the likelihood of being pulled over.” He could not, however, determine whether any particular stop was a result of bias or profiling. The district court denied the motion to suppress, but granted the motion to dismiss, concluding that Moore had proven selective enforcement of traffic laws along racial lines and that “this selective enforcement led to his current charges.”

On appeal, the Fourth Circuit reversed the dismissal of the indictment against Moore. The court noted that in order to prevail on an equal protection claim Moore had to prove both a discriminatory effect in enforcement as well as that the enforcement was motivated by a discriminatory purpose. Going to the second factor, the court concluded that “there is a complete absence of evidence that the officers acted with discriminatory purpose,” much less the clear evidence required, noting that aside from the stop, that Moore fled. The expanded nature of the inquiry in the district court, bolstered by the statistical information, “was insufficient to show a discriminatory purpose.”

Court Affirms Denial of Compassionate Release in Carjacking Case

US v. Burleigh: In 2010, Burleigh (and another person) carjacked and kidnapped a driver of a recently-parked car, forcing him to withdraw money from multiple ATMs. Burleigh “punched” the victim “multiple times,” threatened to kill him and his family, as well as shoving a shotgun in the victim’s “mouth and forced him to suck on its barrel.” Burleigh pleaded guilty to being a felon in possession of a firearm and two §924(c) firearm counts. He was sentenced to a total of 545 months in prison (420 months derived from the §924(c) charges). In 2020, Burleigh filed a compassionate release motion based on his young age, rehabilitation while incarcerated, and the stacked §924(c) sentences. While recognizing Burleigh’s rehabilitation and the impact of the §924(c) charges, the district court noted that Burleigh was 24 years old when the offense was committed and concluded that a reduction was not warranted in light of the serious nature of that offense.

A divided Fourth Circuit affirmed the denial of Burleigh’s compassionate release motion. It concluded that the district court by “its express terms” considered the §924(c) disparity issue but “simply did not find compelling” the argument that Burleigh would get a lower sentence today, noting that it did not feel that the disparity warranted a reduced sentence. The court also concluded that the district court had properly considered Burleigh’s arguments in total, not just as separate individual bases for relief. Finally, the court found the district court’s discussion of the §3553(a) factors sufficient.

In dissent, Judge Gregory argued that the district court’s consideration of those issues was not sufficient and, therefore, the denial of Burleigh’s motion was an abuse of discretion.

Facial Challenge to §944(g)(4) Fails

US v. Gould: Between 2016 and 2019 Gould was (temporarily) committed to mental health facilities four times. In 2022, officers found a shotgun in Gould’s home. As a result, he was charged with possession of a firearm after having been “committed to a mental institution” under 18 U.S.C. §922(g)(4). Gould moved to dismiss the indictment, arguing that it violated the Second Amendment. The district court denied the motion and Gould pleaded guilty, ultimately being sentenced to time served plus three years of supervised release.

On appeal, the Fourth Circuit affirmed the denial of Gould’s motion to dismiss. Utilizing the two-step analysis from Bruen, the court first concluded that the applicable conduct at issue – Gould’s possession of  a shotgun in his home – fell within the confines of the Second Amendment. The court then held that §922(g)(4) was not a permanent disability because many states (including West Virginia, where Gould lived) had mechanisms to get relief from its provisions. In light of that, and considering the nature of Gould’s facial challenge, the court ultimately concluded that §922(g)(4) did not violate the Second Amendment, as historical authority showed longstanding regulations related to disarming dangerous peoples and the treatment of the mentally ill who would fall into that category.

NOTE: I was co-counsel on this case, along with my colleague Lex Coleman from the SDWV FPD Office. 

Same Result on Remand for SORNA Registrant Who Frequently Changed Residence

US v. Kokinda: Due to a pair of state convictions in the 2000s, Kokinda was required to register as a sex offender. He effectively disappeared, and ceased registering. He resurfaced in Elkins, West Virginia, in September 2019, where he was charged with sexual abuse in the third degree after grabbing the buttocks of a girl while pushing her on a swing in a public park. In addition, images of child pornography were found on his phone. Kokinda was charged with failing to register under SORNA. He went to trial, where the Government produced evidence that Kokinda had been in the Elkins area for about a month, staying at various campsites. Kokinda’s defense was that while he had offenses that would require him to register with SORNA, he never “resided” in West Virginia and triggered the registration requirement. He was convicted and sentenced to 63 months in prison, the top of an advisory Guideline range enhanced for committing a sex offense against a minor while failing to register.

On appeal initially the Fourth Circuit affirmed Kokinda’s conviction and sentence, holding that the SORNA guidelines promulgated by the Attorney General were entitled to Chevron deference as to defining the ambiguous term “habitually lives.” The Supreme Court granted cert in the wake of Loper Bright, but on remand the Fourth Circuit reached the same conclusion. The court held that while the regulations are no longer entitled to Chevron deference, under Loper Bright they “provide an accurate construction of the law” and the jury instructions based on them were not erroneous.

Divided Court Affirms Supervised Release Revocation Where Defendant Proceeded Pro Se

US v. Walton: In 1994, Walton was convicted of multiple counts related to a conspiracy to distribute marijuana and sentenced to life in prison. “Shortly thereafter,” he was also convicted for jury tampering and given a consecutive 60-month sentence. Both sentences had terms of supervised release as well (13 years in total). In 2017, President Obama granted Walton clemency, reducing his total sentence to 387 months while “leaving intact and in effect that 13-year term of supervised release with all its conditions and all other components of the sentence.” Walton finished his term of incarceration in May 2021.

In February 2022, Walton was pulled over for speeding twice, with the second stop leading to the discovery of $26,000 in cash (“stuffed inside a teddy bear”) and a ledger that showed Walton was owed approximately $200,000 in drug proceeds. Walton explained that “he was collecting old drug debts . . . owed to him before he went to prison decades earlier.” He was convicted in Kansas for criminal transportation of drug proceeds, after which his home in West Virginia was searched, leading to the discovery of 13.5 pounds of marijuana. He was charged in West Virginia with possession with intent to distribute the marijuana.

Based on all this, Walton’s federal probation officer filed a motion to revoke his term of supervised release. Prior to the revocation hearing, Walton filed a pro se motion seeking to represent himself during his revocation proceedings. He also made substantive arguments as to the nature of the state offenses and whether the court had jurisdiction to revoke him. Walton’s appointed counsel also moved to withdraw because Walton would not speak to him. Newly appointed counsel appeared with Walton at the revocation hearing, but was unsure as to his role. Walton told the district court that he wanted to proceed “without counsel. Stand-by counsel, yes, sir” and the hearing proceeded in that manner. Walton admitted the violations, but renewed his jurisdictional argument. The district court held that it had jurisdiction, ordered Walton’s term of supervised release revoked, and imposed a sentence of 60 months in prison (in addition to additional terms of supervised release).

On appeal, a divided Fourth Circuit affirmed Walton’s revocation and sentence. First, the court addressed Walton’s jurisdictional argument – that his sentence was a “Presidentially commuted sentence, not a judicially imposed sentence.” The court disagreed, noting the language in the clemency order specifically keeping in place the terms and conditions of supervised release. Second, the court held that the district court did not abuse its discretion in allowing Walton to proceed pro se during his revocation. That standard of review applied because there is no Sixth Amendment right to counsel during revocation proceedings. Here, the court held, Walton made clear (multiple times) that he wished to represent himself and explained the large amount of legal work he had done while incarcerated. Finally, the Court held that Walton’s sentence was not plainly unreasonable because he understood the alleged violations, the violations were graded correctly (even though the court recognized Walton failed to make a timely Campbell argument as to them), and that the district court adequately explained the basis for the sentence it imposed.

Judge Gregory concurred in part, but mostly dissented. Agreeing only that the court had jurisdiction over Walton’s revocation, Judge Gregory argued that Walton “did not knowingly and voluntarily waive his right to an attorney,” which was enough to reverse, but that the “supervised release revocation hearing was riddled with procedural errors” as well.

Evidence of Ineffectiveness Not Sufficient to Prevail on Direct Appeal

US v. Richardson: Richardson was involved in the distribution of methamphetamine. After a traffic stop, police went to his home to execute a search warrant where they found drugs, cash, and a shotgun in a car parked on the property. Richardson pleaded guilty to conspiracy and possession with intent to distribute methamphetamine pursuant to a plea agreement where he agreed to give up his right to appeal his sentence “on any ground,” aside from ineffective assistance of counsel or prosecutorial misconduct. He was sentenced to 240 months in prison, in the middle of a 210-262-month advisory Guideline range.

On appeal, the Fourth Circuit partially dismissed Richardson’s sentence and otherwise affirmed his sentence. Richardson raised two issues related to a two-level enhancement for possession of a firearm (the shotgun) during commission of the offense. The court concluded that the first issue – whether the enhancement was properly applied – was clearly precluded by the appeal waiver and was dismissed. The court then concluded that the second – that Richardson’s counsel was ineffective for failing to object to the enhancement – could not meet the high standard for finding ineffectiveness on direct appeal, as the record showed that the enhancement was properly applied, or at least did not show counsel was “unequivocally wrong” in failing to make the objection.

Delays in Warrant Executions Does Not Violate Fourth Amendment in CSAM Case

US v. Krueger: Police detected an IP address uploading and downloading child sexual abuse material (“CASM”) that they tracked to Krueger in January 2019. Eleven months later, in November, Virginia authorities obtained a search warrant and executed it, seizing devices that contained evidence of CSAM. In July 2022, the state case was dismissed after Krueger prevailed on a motion to suppress based on state procedural rules. In September 2022, federal investigators obtained copies of the devices (the originals still being held by the state) and executed a second search warrant. Krueger unsuccessfully moved to suppress.

On appeal, the Fourth Circuit affirmed the denial of Krueger’s motion to suppress, rejecting two arguments rooted in delay in executing the warrants. First, Krueger argued that the 11-month delay in obtaining and executing the state warrant meant the evidence generating probable cause (which he agreed was there) had gone stale. Applying now long-settled precedent, the court held that CSAM evidence rarely goes “stale” and the evidence did not show that it would have been in this case (there was evidence to suggest Krueger was a “collector” based on repeated uploads/downloads). Second, Krueger argued that the federal investigators unduly delayed searching the devices, either during the years while the state case was pending or the months after the state case was dismissed. The court disagreed, holding that Krueger’s argument failed regardless of the delay because the original devices were always in state custody (the feds got copies) and Krueger never sought their return, so any delay did not interfere with his rights in the property.

Jury Instruction Allowing Intent to Be Inferred from How Fraudulent Transactions Are Carried Out Appropriate

US v. Sanders: Sanders owned a company that contracted with the Government to provide IT equipment and services, but did so fraudulently. In one case he accepted payment for equipment never delivered. He falsely claimed to deliver equipment that was new and under warranty and that he was certified by the companies who built the equipment. When his company’s substandard work was discovered, he set up another one and continued on. He was charged with several counts related to wire fraud and convicted at trial, after which he was sentenced to 45 months in prison (one month below the bottom of the advisory Guideline range).

On appeal, the Fourth Circuit affirmed Sanders’ convictions and sentence. As to his convictions, Sanders argued that the district court had erred in instructing the jury that it could infer intent to defraud from “the secretive or irregular manner in which a transaction is carried out.” While recognizing that the instruction, standing alone, “could risk run the risk of confusing the jury,” in the context of the other six instructions that addressed intent (none of which Sanders challenged) there was no error. As to sentencing, the court rejected Sanders’ argument that the district court erred by imposing an enhancement for sophisticated means. The court concluded that the Guideline provision was genuinely ambiguous, but that the commentary properly defined the scope of “sophisticated means.” Sanders’ conduct, which included several “relatively straightforward and unsophisticated” steps, fell within that scope because of “the way all the steps were linked together.”

Yearslong Delay In State Post-Trial Proceedings Moot Because of Decisions During Pendency of Appeal

Hicks v. Frame: Hicks was convicted of first-degree murder in West Virginia and sentenced to life in prison in 1988. While his direct appeal was still pending, in 1989, he filed a motion for a reduced sentence, which sat for eight years without activity. In 1997, he filed a motion in state court for habeas corpus relief which was assigned to a judge who had been one of the prosecutors in Hicks’ case. In the years since nothing had come of Hicks’ pending motions, through a combination of judicial turnover (five judges have been assigned to his case, including two of his former prosecutors), attorney turnover (several attorneys appointed to represent Hicks did nothing for years before being replaced), and issues gathering the trial transcript.  In 2021, Hicks filed a §2254 motion in federal court, arguing that he should be excused for not exhausting state remedies due to the lengthy delay. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the denial of Hicks’ §2254 motion, although on a different basis that the district court. Limiting the issues (due to the wording of the certificate of appealability) to whether the state process was ineffective to protect his rights, the court noted that by the time of oral argument the state court, at long last, had ruled on (and denied) Hicks’ pending motions. Because the inquiry as to the ineffectiveness of state proceedings is prospective, rather than retrospective, it was controlling that Hicks’ case had been ruled upon in state court, regardless of the decades-long delay in getting there.

District Court’s Statement It Considered All Sentencing Factors Satisfies Need to Explain Basis of Sentence

US v. Solis-Rodriguez: S-R was involved in two incidents with a gun, the first when he was just in possession of it, the second when he shot someone in the hand. As a result, he was charged with two counts of possession a firearm as an undocumented alien. At the plea hearing before a magistrate, S-R was informed that the statutory maximum for his offenses was 10 years in prison – not 10 years each. After pleading guilty, S-R was sentenced to 180 months in prison, just below the top of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed S-R’s conviction and sentence. As to the conviction, the court found that while the failure to ensure S-R knew that each charge against him carried a 10-year maximum sentence and that the error was plain, it concluded S-R could not show he was prejudiced by that error because he could not prove that he would have not pleaded guilty had he known that information. As to the sentence, the court concluded that the district court sufficiently addressed S-R’s arguments for a lesser sentence. S-R had presented arguments based on his youth and lack of criminal history. While the district court did not specifically address those, it did (twice) ensure it had considered all the §3553(a) factors before focusing on other factors it found “particularly important” (the nature of the offenses). The court also noted that the district court asked counsel after sentence was imposed if there was “any legal reason why this sentence as proposed should not be imposed,” thus “offer[ing] both parties an opportunity to raise concerns with the sentence.”

Judge Traxler concurred in the judgment, arguing plain error was the proper standard of review of the sentence because “defense counsel’s silence in the face of that question” about whether there was any reason not to impose the “proposed” sentence “operated as a forfeiture of defendant’s argument.”

Court Affirms Medicaid Fraud Convictions and Sentence

US v. Booker: Booker ran two companies, one that provided substance abuse treatment and another that provided drug testing services, for which he billed Medicaid. He developed a scheme in which he partnered with two other organizations to provide “patients” who were drug tested (and Medicaid billed as a result) even though such tests were not medically required. Booker was tried and convicted of conspiracy, violating the Anti-Kickback Statute, and money laundering. He was sentenced to 200 months, a light variance from the 210-262-month Guideline range.

On appeal, the Fourth Circuit affirmed Booker’s convictions and sentence. After concluding that there was sufficient evidence to support Booker’s convictions, the court turned to a pair of his arguments regarding evidentiary issues. First, the court concluded there was no error in the district court allowing the Government to question a witness about the results of a state administrative audit of Booker’s companies because Booker (who represented himself) opened the door for such questions during his cross examination of the witness. The court also concluded that even if the audit findings were testimonial there was no Confrontation Clause issue because they were presented to prove that Booker (and others) had notice of the results, not the truth of the results themselves. Second, the court concluded that admission of evidence that Booker deposited $1 million in his personal bank account the same day the same amount was removed from his company’s account was not unduly prejudicial and “highly probative of Booker’s intent or motive to commit Medicaid fraud.”

Court Reinstates Guilty Verdicts In Healthcare Fraud Case

US v. Elfenbein: Elfenbein was a doctor who ran an urgent-care clinic in Maryland. When COVID hit he reconfigured the business into a drive-thru COVID testing operation, with patients being there only for a few minutes. Elfenbein billed insurance for these visits using a billing code that indicated COVID was “a condition likely to result in a high risk of morbidity without treatment” rather than a more mundane condition. For five patients, the Government alleged that Elfenbein inflated the billing code and doctored medical records to support the code. He was tried on five counts of healthcare fraud, for which the jury found him guilty. The district court, however, granted Elfenbein’s motion for acquittal after trial, holding in the alternative that he was entitled to a new trial, concluding that the Government had not proven that Elfenbein’s reading of the billing guidance in terms of the codes had been unreasonable.

On appeal, the Fourth Circuit reversed the district court’s granting of the motion of acquittal, but affirmed the grant of a new trial. The court concluded that there was sufficient evidence from which a jury, “armed with a dose of common sense,” could conclude that COVID did not have a high risk of morbidity, noting that Elfenbein himself testified that “for the vase majority of our COVID patients . . . it was very low, minimal or low risk.” The court also noted that the treatments prescribe for those who tested positive “matched his low-risk assessment.” Testimony from Elfenbein’s employees backed up that assessment. As to Elfenbein’s argument that his statements were not false because they were based on reasonable interpretations of the codes at issue, the court held that “it is the jury’s job to decide . . . which interpretation is better.” That said, the court found no abuse of discretion in the district court’s grant of a new trial, noting that while “the jury had enough evidence to convict Elfenbein . . . it got that evidence in an unusual way” – that is, largely through defense witnesses  (“at the close of the government’s case-in-chief, the jury had little of the key evidence”).

Court Reverses Mortgage Fraud Conviction for Insufficient Proof of Venue

US v. Mosby: Mosby, the former State’s Attorney for Baltimore, was preparing for retirement and looking to purchase homes in Florida. As part of that she made two pre-retirement withdrawals under a CARES Act provision (to avoid tax penalties) based on the claim she had “experiences adverse financial consequences” as a result of COVID-19 and used the proceeds to cover downpayments and closing costs on two properties. For the second, she also executed a “gift letter” stating that her husband would pay a $5000 shortfall on the second property, after which Mosby provided him with the money to pay her. As a result, Mosby was charged in Maryland with two counts of perjury (for the two CARES Act withdrawals) and two counts of mortgage fraud (one for each property). She had two trials, the first on the perjury counts, the second on the mortgage fraud counts; she was convicted on both perjury counts, but acquitted on the mortgage fraud count related to the first property and convicted on the count related to the second.

On appeal, a divided Fourth Circuit affirmed Mosby’s perjury convictions, but reversed her mortgage fraud conviction. On the perjury convictions, the court rejected Mosby’s argument that the questions on the CARES Act withdrawal forms related to her basis for the withdrawals was too ambiguous to support perjury charges, concluding that in context the questions were sufficiently clear. The court also affirmed the district court’s decision to allow the Government to present evidence as to how Mosby used the withdrawn funds as probative of whether she was in the condition required for the CARES Act benefits. However, on the mortgage fraud conviction, the court found that the proper venue for that offense was in Florida, where the actual transaction occurred, not Maryland, for preparations for the transaction took place and the jury was not instructed properly. As a result, there was insufficient evidence of that element to support a conviction.

Judge Niemeyer dissented on the mortgage fraud issue, arguing that the jury instruction was proper and there was evidence supporting venue in Maryland.

Sentencing Disparity Can Be “Extraordinary and Compelling” Reason for Sentence Reduction

US v. Johnson: In the 1990s, Johnson was part of a drug trafficking scheme during which he was involved with the killing of two people. He was arrested in 1997 and charged, with numerous charges, including two counts of murder in aid of racketeering,  along with two codefendants – Damein and Rickey – who were charged in one of the deaths. The codefendants both pleaded guilty, cooperated with the Government was received sentences of 20 years and 40 years in prison, respectively. In addition, Brown (the hitman used for the second killing) was ultimately charged and pleaded guilty, receiving a sentence of five years in prison. Johnson went to trial and was convicted of (among other things) of manslaughter in connection with one killing and aiding and abetting murder for the second. He received two life sentences, plus 790 months in prison.

In 2021, Johnson filed a motion for a reduced sentence under 18 U.S.C. § 3582(c)(1)(A) arguing that the disparity between his sentence and those of his codefendants (and Brown) constituted “extraordinary and compelling” reasons for a reduction. The district court granted the motion, concluding that disparities did warrant compassionate release.

On appeal, a divided Fourth Circuit affirmed the grant of relief in this case. The court concluded that such sentencing disparities can be the basis for a compassionate release motion, holding that the list of circumstances laid out in the applicable Guideline section was not exhaustive. After that, it was a question of whether the district court abused its discretion in granting relief, which the court held it did not.

Judge Niemeyer dissented, arguing both that such disparities are not a legitimate legal basis for such relief and that, even if they were, the disparities in this case were not sufficient, stressing the cooperation provided by Johnson’s codefendants (and Brown).

Non-NFA Weapons Not Relevant Conduct for NFA Violation Offense

US v. Simmons: Police executed a search warrant at Simmons’ home, where they found 10 unregistered firearms covered by the National Firearms Act, along with 33 other firearms. Also found was “evidence of unlawful drug use,” which Simmons admitted to later (he also tested positive). He pleaded guilty to possession of an unregistered machine gun – four “auto sears” required to be registered under the NFA. The probation officer recommended enhancements to Simmons’ offense level based on the number of firearms and that one of the firearms was stolen. In doing so, all the firearms recovered were considered, not just the 10 NFA ones. The district court overruled Simmons’ objections to the Guideline calculations, but ultimately imposed a downward variance sentence of 36 months in prison.

On appeal, the Fourth Circuit vacated Simmons’ sentence. Although the court did reject Simmons’ argument that his base offense level, elevated by being a “prohibited person” in possession of the firearms, violated the Second Amendment under Bruen, the court did agree that the district court improperly applied the enhancements by considering both NFA and non-NFA weapons. In doing so, the district court failed to find that the non-NFA weapons were either part of the “offense of conviction” (they couldn’t be) or relevant conduct (they weren’t). At bottom, Simmons’ possession of non-NFA firearms was not “relevant” to his possession of the NFA weapons. The court additionally concluded that the error, even in spite of the downward variance, was not harmless.

NOTE: I was counsel on the briefs in this case, which my colleague Lex Coleman argued.

Pennsylvania Drug Offense Fits Within Definition of “Controlled Substance Offense”

US v. Suncar: Suncar pleaded guilty to distribution of fentanyl. The probation officer classified him as a career offender based on two prior convictions from Pennsylvania for delivery of cocaine. Suncar argued that Pennsylvania state law defined delivery to include attempted transfer of drugs, which did not fit the definition of “controlled substance offense.” The district court disagreed and imposed the enhancement, although it ultimately imposed a downward variance sentence of 92 months in prison.

On appeal, the Fourth Circuit affirmed Suncar’s sentence. The court rejected Suncar’s reliance on an unpublished Pennsylvania court decision that suggested that the state offense included attempted transfer, concluding that the state supreme court would “reach a different result under the plain language of the statute.” The court then followed Third Circuit precedent that had held that the offense did qualify as a controlled substance offense as it did not include attempted transfers. The court also concluded that, even if it did, that was a completed offense, not an inchoate one subject to the rule of Campbell.

Divided Court Affirms Drug Convictions, Rejecting Competency Concerns

US v. Cabrera-Rivas: Cabrera-Rivas, who “likely has a learning disability . . . doesn’t speak fluent English” and has a third-grade education, nonetheless “had a side business peddling” cocaine. He met Hector – actually a Homeland Security confidential informant – and arranged for Hector to meet a “dude from Texas” who could sell him methamphetamine. After arranging the deal and bringing all the parties together, Cabrera-Rivas was arrested and charged with conspiracy to distribute and possession with intent to distribute methamphetamine.

Prior to trial, Cabrera-Rivas’s counsel moved for a competency evaluation. At a hearing before a magistrate judge, defense counsel testified about Cabrera-Rivas’s behavior and difficulty communicating with him and a paralegal testified about Cabrera-Rivas’s “anger issues.” The judge also considered a declaration from Cabrera-Rivas’s wife about his “irrational and violent behavior throughout their four-year marriage.” In response, a Government expert who had evaluated Cabrera-Rivas testified that he understood what he was charged with, various legal concepts (when explained in a “simplified” manner), and what the end result of his case might be (conviction and deportation). The magistrate judge found that opinion credible and concluded that Cabrera-Rivas had not shown he was incompetent. Cabrera-Rivas did not object to that decision and it was never reviewed by the district court.

Cabrera-Rivas was convicted on both counts after a jury trial. Following trial, Cabrera-Rivas filed a motion for a “retrospective competency hearing” arguing that Cabrera-Rivas’s conduct at trial (he testified in his own defense) “showed he was unable to comprehend the proceedings.” The district court denied the motion, based on its personal observations of Cabrera-Rivas’s testimony and conduct during trial and the lack of objection to any competency-related issue during trial.

On appeal, a divided Fourth Circuit affirmed Cabrera-Rivas’s convictions, primarily focused on the district court’s handling of Cabrera-Rivas’s competency issues.  The court first rejected the Government’s argument that because Cabrera-Rivas had not objected to the magistrate judge’s competency decision that the court lacked jurisdiction, concluding that an untimely (or absent) filing of objections does not divest the court of appeals of jurisdiction. As to the merits of that decision, the court concluded that there was no clear error in the magistrate judge’s crediting of the expert testimony over the evidence presented by Cabrera-Rivas, noting that the burden is on a defendant to demonstrate lack of competence, not on the Government prove competence.

Next, the court turned to the issue of whether a magistrate judge could “finally decide” the issue of competency. Noting that this issue was “important, but it wasn’t preserved,” the court applied plain error review and found none, noting both the lack of objection in the district court and failure to raise the argument in Cabrera-Rivas’s opening brief. The court rejected the framing that Cabrera-Rivas could not waive issues related to competency issues, concluding that that “isn’t at all what happened here,” where Cabrera-Rivas had a competency hearing, but “forfeited instead . . . his right to challenge the magistrate judge’s powers.” The court also held that there could be no prejudice (in the plan error analysis) because even if the magistrate judge had entered proposed findings and recommendations for the district court to adopt Cabrera-Rivas would have failed to object to those, too. The court also found no clear error in the district court’s denial of his post-trial motion.

Judge Wynn dissented on the competency issue, arguing that the majority “overlooks well-established precedent from the Supreme Court and this Court to deny Cabrera-Rivas the remedy that the Constitution compels – review of his competency by an Article III judge.”

Government Breaches Plea Agreement by Seeking Guideline Enhancements

US v. Craig: Craig pleaded guilty to being a felon in possession of a firearm, part of a plea agreement in which the Government agreed to dismiss three other drug-related counts. One provision of the plea agreement contained a stipulation of Craig’s conduct that addressed only his unlawful possession of a firearm. At the plea hearing, however, the a police officer testified (on cross examination) that the gun had been stolen. During the colloquy with the district court, the Government stated that the stipulation was the “total relevant conduct” for the case, an understanding that Craig said he shared.

The probation officer calculated the advisory Guideline range as 57 to 71 months, based on the nature of Craig’s prior convictions, but did not include any additional enhancements. The Government objected, seeking an enhancement because the gun was stolen and because it was possessed in connection with another felony offense (possession of drugs). The district court rejected Craig’s objections and applied the enhancements, boosting the Guideline range to 100 to 120 months (the statutory maximum) and imposing a sentence of 100 months in prison.

On appeal, the Fourth Circuit vacated Craig’s sentence, agreeing with Craig that the Government had breached the plea agreement when it advocated for the two Guideline enhancements. The provision in the plea agreement, along with the representations during the plea hearing, clearly limited Craig’s relevant conduct, even if the Government might have intended otherwise. Nor did another provision of the plea agreement allowing the Government to correct any inaccuracies, or its duty of candor to the court, apply since the Government went beyond any of that into advocacy for the enhancements.

Court Rejects Challenge to Illegal Reentry Removal Proceedings

US v. Castro-Aleman: Castro-Aleman fled political violence in El Salvador in 1973, when he was eight years old, entering the United States unlawfully. Over the hears he accumulated several criminal convictions (most for DUI, plus an identity theft charge) and, in 2016, was taken into ICE custody and subject to removal proceedings. When Castro-Aleman expressed fear of returning to El Salvador, the immigration judge told him he could apply for asylum and continued the hearing. When the hearing resumed, Castro-Aleman explained he had not completed the asylum paperwork because he could not get his father’s death certificate. The judge asked if Castro-Aleman wanted more time, but Castro-Aleman said no and asked for voluntary departure instead. The judge rejected that request and ordered Castro-Aleman removed and mentioned the possibility of appeal.

Castro-Aleman returned to the United States and was found in 2023 and charged with illegal reentry. He moved to dismiss the indictment, arguing that his removal proceedings had been flawed and therefore his removal was invalid. The district court disagreed and Castro-Aleman entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed the denial of Castro-Aleman’s motion to dismiss, holding he could not show that his removal order was “fundamentally unfair.” First, the court concluded (based on prior precedent) that Castro-Aleman had no constitutional right to be properly advised of his eligibility for discretionary relief and, therefore, it didn’t matter if the immigration judge had failed to adequately develop the record with regard to his asylum claim. Second, the court concluded that even if the immigration judge failed to adequately inform Castro-Aleman of his right to appeal the removal order that Castro-Aleman could not show prejudice because, based on his record, he would not have prevailed.

Court Rejects Ineffective Assistance Claim Related to Additional Offense

US v. Yelizarov: Y was charged with multiple offenses arising from a robbery and was presented with a plea bargain in which the Government promised not to seek a sentence higher than 40 years in prison and prevented local authorities from charging Y with anything related to the conduct set forth in the statement of facts. Y accepted. Afterwards, his counsel was told by the Government that Y was a suspect in an unrelated murder. Y told counsel not to try and resolve that charge along with the others, but he was reconsidering his plea. Ultimately, another plea bargain was negotiated that included a binding 30-year sentence and maintained the limitation on state prosecution. Y pleaded guilty and was sentenced to 30 years in prison. He was then charged separately with the murder, for which he received a consecutive sentence of 20 years. The district court rejected Y’s argument that he received ineffective assistance of counsel related to the plea negotiations.

On appeal, the Fourth Circuit affirmed the denial of Y’s ineffective assistance of counsel claim. Skipping to whether he had been prejudiced by any defective performance, the court concluded that Y had not shown that he would have decided not to plead guilty had he known that the subsequent murder charges had been brought. The court also affirmed Y’s 30-year sentence, holding that any appeal of it was barred by a valid appeal waiver, even after one of the charges had been vacated due to shifts in “crime of violence” law, given that it was a binding plea that specifically provided for such a contingency.

Court Affirms Gang Convictions Arising from Murder of Alleged Informant

US v. Ordonez-Zometa: Ordonez-Zometa and his codefendants, Hernandez-Garcia* and Ortega-Ayala, were charged with being a part of MS-13 and having participated in the murder of a teenage gang member that was believed (incorrectly) to have been talking to police. Ordonez-Zometa was the leader of this particular clique and ordered the murder, in which the others participated and assisted either in disposal of the body or cleanup of the murder scene. Each was charged with multiple offenses, including murder in the aid of racketeering. They were convicted at trial and sentenced to life in prison.

On appeal, the Fourth Circuit affirmed the defendants’ convictions. As to all three, the court concluded that the Government had sufficiently proved that the clique, and MS-13, had the required impact on interstate commerce to support federal jurisdiction. Noting that the standard is a “de minimis effect,” the court held that proven by evidence of the gang’s use of Western Union to collect dues and send them to El Salvador, along with the use of cell phones. As to Ordonez-Zometa specifically, the court concluded that the district court correctly denied his motion to suppress evidence obtained from the traffic stop that led to his arrest (based on the necessary suspicion), a statement he made to police after his arrest (not involuntary and, even if it was, any error was harmless), and evidence recovered pursuant to search warrants (supported by probable cause and sufficiently specific and, if not, good faith applied). As to Ortega-Ayala, the court affirmed the denial of his motion to suppress evidence retrieved from his phone for the same reason. Finally, as to Hernandez-Garcia, the court held that there was no error in the district court’s denial of his motion for a new trial based on testimony regarding an altered cell phone location expert report, holding that while the district court ruling on such motions could reweigh the credibility of witnesses, it was not required to do so.

* NOTE: I represented Hernandez-Garcia in this appeal.

Rapport-Building Section of Sex Abuse Victim Video Admissible

US v. Fergusson: While Fergusson was station in Japan working for the Department of Defense, his 11-year-old stepdaughter, JD, sent at text to her mother alleging that Fergusson had sexually abused her. JD’s mother took her and left the home and contacted investigators. As part of the ensuing investigation, JD was interviewed by an investigator with specialized training in conducting child forensic interviews. After an nearly 10-minute introductory section of rapport building and rule establishing between the interviewer and JD, JD restated the allegations against Fergusson. Fergusson was charged with sexual abuse and went to trial. At trial, after JD had been cross-examined, the Government was allowed to introduce the entire interview with JD into evidence. Fergusson was convicted.

On appeal, the Fourth Circuit affirmed Fergusson’s conviction. At issue was the first portion of the interview video, which Fergusson argued was inadmissible hearsay, not covered (as he agreed the rest was) by the hearsay exception for prior recorded statements. Noting that the record was unclear as to the precise basis on which the video was admitted, the court ultimately concluded that the challenged portion of JD’s interview was not hearsay at all because it was not presented for the truth of the matter asserted, but to show proper forensic interview techniques that went to the reliability of JD’s statements. In addition, the court held that that portion of the video was not more prejudicial than probative.

Court Clarifies Recent Guideline Amendments Involving “Extraordinary and Compelling” Basis for Sentence Reduction

US v. Crawley: In 2016, Crawley was sentenced to 188 months following a drug trafficking conviction, having been designated as a career offender. One of his predicate “crimes of violence” was a 2009 conviction for robbery in Virginia. Crawley unsuccessfully filed a pair of “compassionate release” motions under 18 U.S.C. § 3582(c)(1)(A) related to COVID. Then, following the Fourth Circuit’s decision in White, in which it held that Virginia robbery did not qualify as a “violent felony” under the Armed Career Criminal Act, he filed another motion, arguing that he would no longer be classified as a career offender and the resulting disparity between his sentence and what he would receive now constituted an “extraordinary and compelling” basis for relief. After the Sentencing Commission had amended the applicable policy statements, the district court denied Crawley’s motion.

On appeal, the Fourth Circuit affirmed the denial. First, the court decided that the amended Guidelines (which were more limited in terms of relief for such sentencing disparities) did apply, even though Crawley’s motion was filed before they took effect. The language of the relevant statutes are in the present tense, speaking to the responsibility of courts to apply the currently applicable policy statements. Second, the court decided that there was a sentencing disparity because White applied to the Guideline definition of “crime of violence” and, therefore, Virginia robbery no longer qualifies as a career offender predicate. Finally, however, the court concluded that Crawley was not eligible for relief, as the amended Guideline precluded sentencing disparity relief for those who had “served at least 10 years of the term of imprisonment.” The court held that time frame pointed to time actually served on a sentence, the length of sentence imposed, and thus it did not involve any calculation of good time or similar credits. Because Crawley had not served 10 years, he could not get relief.

Statement Taken by Prison Guard Beating Was Not Involuntary

US v. Purks: Purks was serving a sentence in Florida state prison when he was investigated, and eventually charged, in the Western District of Virginia with conspiracy and numerous substantive counts of distribution of methamphetamine. As part of the investigation, Purks was interviewed by a DEA agent while in state prison. Having been read his Miranda rights, Purks engaged in a “cordial” and “respectful” discussion with the agent, during which he declined to discuss particular topics. He was in a wheelchair and “would grimace and moan,” the result, he said, of a recent assault by prison guards. Purks later moved to suppress his statement as involuntary. The district court denied the motion, crediting the agent’s testimony that Purks never asked for a lawyer (Purks said he did) and concluding that the assault (assuming it happened as Purks described) did not involve any federal agents and thus could not taint his statement to the DEA agent. Purks was convicted at trial on all counts and sentenced to 300 months in prison.

On appeal, the Fourth Circuit affirmed Purks’ convictions. As to the statement, the court agreed with the district court, holding that the DEA agent complied with Miranda (assuming it applied in the first place) and that while Purks was “still recovering from the alleged beating” he “testified that he was not in so much pain that it clouded his understanding of what was happening.” In addition, no federal agents were involved in the beating and the statement itself showed they “did not grill Purks for hours attempting to wear down his will,” as evidenced by the fact that when he declined to discuss particular matters the DEA agent didn’t press the matter. The court also rejected Purks’ argument that venue was not proper in the Western District of Virginia, given that he was in Florida during the alleged offenses. Concluding that distribution of drugs is a continuing offense, the court concluded venue was proper in the locale where the drugs were eventually distributed or seized – here, the Western District of Virginia.

Misstatement In Oral Jury Instructions Does Not Lead to Constructive Amendment

US v. Contreras-Avalos: Castro-Aleman and two codefendants were charged with “various crimes related to their involvement in the transnational gang MS-13.” Specifically, they were charged with two counts of aiding and abetting a violent crime in aid of racketeering for their roles in a pair of murders (one of an alleged informant and the other of a rival gang member). During the oral presentation of jury instructions, the district court told the jury that on each of those counts the charge was conspiracy to commit those murders. The actual elements of the offenses were correct and the written charge that went to the jury was also correct. The defendants were convicted on all counts.

On appeal, the Fourth Circuit affirmed the convictions of Castro-Aleman and his codefendants. The court held that plain error was the proper standard of review, noting that the defendants did not object to the misread instructions, although they did “point one of them out – the government raised the other.” The court rebuffed the Government’s argument that invited error analysis applied, ultimately “choos[ing] not to decide” because the result was the same either way. That is because although there was error and it was plain, the defendants could not show prejudice, due to the correct explanation of the elements and the correct written instructions.