Consecutive Sentences Hadn’t Been Served So As to Create Double Jeopardy Problem at Resentencing

US v. Bullis: In 1996, Bullis was convicted for six separate offenses after mailing pipe bombs to his wife’s office (one went off, injuring her, the other was intercepted). Of the six offenses, two were for use of a “firearm” during crimes of violence under §924(c). At sentencing, the district court imposed a 235-month sentence on the other four counts to run concurrently with each other, then imposed a 360-month consecutive sentence on one §924(c) offense and a life sentence on the other, to also run consecutively to the other four. In the wake of the Supreme Court’s decision in Johnson (and its progeny), Bullis filed a §2255 motion that resulted in the two §924(c) counts being vacated.

At the time of resentencing, Bullis had served 331 months in prison. The district court imposed concurrent sentences of 240 months on three counts, but a sentence of 450 months on the other, leaving Bullis approximately 119 months to serve. The district court also attempted to impose conditions of supervised release by referencing “standard” conditions adopted in the district.

On appeal, the Fourth Circuit vacated Bullis’ sentence due to error in imposing conditions of supervised release, but approved of the term of imprisonment imposed at resentencing. Bullis’ primary argument was that the new sentence violated Double Jeopardy because he was resentenced on counts for which his sentence was already complete. The court disagreed, distinguishing between situations where multiple sentences are imposed to run concurrently with each other and those where consecutive sentences are imposed. In the former, each sentence imposed stands on its own, but in the latter the sentences running consecutive to each other form unified “packages.” In Bullis’ case there were two “packages” consisting of each §924(c) offense plus the other terms to which they were ordered to run consecutively. Analyzed that way, Bullis had not fully served either sentence package. Nonetheless, the court had to vacate the sentence due to yet another Rogers error in the imposition of conditions of supervised release.

Evidence of Domestic Abuse Inadmissible Without Pursuing Duress Defense

US v. Nsahlai: Nsahlai’s husband (an “international businessman”) had two businesses incorporated in Virginia which had no employees. Nonetheless, the businesses applied for PPP loans to cover payroll costs, using fraudulent payroll data generated by Nsahlai. She was charged with conspiracy to commit bank fraud and related offenses and went to trial. Prior to trial, the district court granted a Government motion to exclude portions of a recording in which Nsahlai and her sister discussed abuse (violence and threats) Nsahlai suffered at the hands of her husband. Nsahlai stated that she was not pursuing a duress defense, but that she intended to argue that “the overall circumstances of [her abusive] relationship” explained why she engaged in the charged conduct, attacking the mens rea elements of the offenses. The district court clarified that if Nsahlai testified she could go into the abuse somewhat. Nsahlai did not testify and was convicted of all counts at trial.

On appeal, the Fourth Circuit affirmed Nsahlai’s convictions. Nsahlai’s primary argument was that the district court erred by excluding the recording (the court noted that while Nsahlai referred to other evidence of abuse that might have been introduced there was no proffer of what that was). The court found that there was no abuse of discretion in the district court’s ruling, concluding that the recording (which took place after the conduct at issue in the indictment) was “vague” and referred to “events that occurred at an unknown point in time and without context” and thus was not relevant. That was because the court rejected Nsahlai’s argument that the abuse had anything to do with the mens rea elements of the offense, given the lack of duress defense. Even if it was relevant, the court held it would have been properly excluded under Rule 403 as unduly prejudicial and, additionally, harmless given the weight of evidence against Nsahlai.

Shorter Term of Imprisonment With Significantly Longer Term of Supervised Release Is Presumptively Vindictive

US v. Chang: Chang and Campbell were convicted of conspiracy to distribute cocaine. Campbell was sentenced to 72 months in prison, plus a four-year term of supervised release. Chang, sentenced later, received the same sentence. His sentence was vacated, however, because the district court had erred in concluding he wasn’t eligible for safety valve relief. At resentencing, the district court focused on what it called Chang’s “leap into a criminal lifestyle” and ultimately imposed a 69-month term of imprisonment – a slight reduction from the original, but above the now applicable 37-46 month Guideline range – and a ten-year term of supervised release.

On appeal, the Fourth Circuit vacated Chang’s sentence and remanded for another resentencing. Chang’s primary argument was that his sentence was vindictive and he was punished as the result of his successful initial appeal. The court agreed that Chang’s sentence was “harsher than his first,” even though it involved a lesser term of imprisonment. While “courts cannot weigh terms of incarceration and supervised release with any mathematical certainty,” with the supervised release term more than doubled this was not a particularly close case. The court then went on to conclude that the district court did not adequately explain its harsher sentence, noting that what the district court did rely on imposing the second sentence was information available to it during the initial sentencing. In other words, there was not new information upon which the district court could base a decision to impose a harsher sentence. Chang’s sentence had to be vacated, even under plain error review (as Change did not object to the harsher sentence when imposed).

Dismissal of Emotionally Fragile Juror Ex Parte Required Reversal of Convictions

US v. Laffitte: Laffitte was charged and stood trial for conspiracy and related fraud counts. During jury deliberation, several notes were received from the jury. Two were from Juror 93, who first explained that they needed medication from home and then that they were “feeling pressured to change my vote.”  The district court stated that it intended to utilize an alternate rather than delay deliberations (Laffitte suggested sending the jury home to start again the next morning). Two additional notes emerged, one from most of the jurors that another juror’s “prior court experience” was influencing their “ability to discuss the trial in a group setting.” The final note, from Juror 88, asked for an alternate because “I am experiencing anxiety and [am] unable to clearly make my decision.”

The district court, “with the consent of the parties” decided to question Juror 88 alone with a court reporter to “create a record.” The district court also said “I’m going to take action.” It then performed an in camera interview with Juror 88, in which they said they could not “perform your duties as a juror.” Therefore, the district court told Juror 88 “I’m going to honor your request and replace you then” and did so without seeking further input from the parties. Lafitte objected to the removal of Juror 88 but “not to the juror that was replaced for medication,” Juror 93. After additional instructions, the jury deliberated for less than an hour before convicting Laffitte on all counts.

On appeal, the Fourth Circuit reversed Laffitte’s convictions, ultimately concluding that the district court should have granted Laffitte’s motion for a new trial. While concluding that the district court did not err by refusing to consider an affidavits from Jurors 88 and 93 under Rule of Evidence 606(b)(1), the court did conclude that the district did err in removing Juror 88 (the court held Laffitte had waived his argument as to Juror 93), for two reasons. First, the dismissal of Juror 88 violated Laffitte’s Sixth Amendment right to an impartial jury because Juror 88’s note and colloquy with the district court showed that the distress they felt was due to their position on Laffitte’s guilt or innocence during deliberations. Second, the dismissal violated Laffitte’s right to be present during a critical stage of his trial, as the decision was made by the district court without input from Laffitte (or the Government, for that matter).

Single-Count Conspiracy Conviction Supports Sentencing for Multiple Counts

US v. Mitchell: In 2021, Mitchell (and codefendants) was charged in an eight-count indictment with conspiracy to commit Hobbs Act robbery and seven substantive robbery counts. Mitchell pleaded guilty to the conspiracy count and one substantive count. In the PSR, the probation officer identified five robberies (or attempted robberies) in which Mitchel was involved (not all of which were substantive counts from the indictment). Applying USSG § 1B1.2(d), the probation officer treated Mitchell as if he had four separate convictions which, because they did not group, led to a four-level multi-count increase in his offense level. The district court adopted those calculations and imposed a sentence of 108 months, below the 120-150 month Guideline range.

On appeal, the Fourth Circuit affirmed Mitchell’s sentence. Before reaching the merits, the court returned to the question of Guideline commentary and the Supreme Court’s decision in Kisor, concluding that under Campbell that Kisor applies to questions of Guideline commentary interpretation (as opposed to the later-decided Moses which concluded it did not). That done, the court § 1b1.2(d) applies to robberies, “even if those underlying robberies would constitute violations of the same statute.” The court did not need to reach the issue of how to determine which other robberies are counted as Mitchell never contested that he committed the four robberies at issue.

Michigan Robbery by Confinement Requires Use of Force, Is “Serious Violent Felony”

US v. Lightfoot: In 2000, Lightfoot was convicted of bank robbery and a firearm offense after having been previously convicted of the same offense in Virginia and Michigan state courts. As a result, Lightfoot was sentenced to a mandatory life term under the “three strikes” provision of 18 U.S.C. § 3559(c), plus a consecutive life sentence for the firearm offense. After Johnson was decided in 2015, Lightfoot filed a §2255 motion arguing that the Michigan bank robbery conviction was no longer a “serious violent felony” under either the enumerated offense clause or force clause. The district court disagreed and denied the motion.

On appeal, a divided Fourth Circuit affirmed the denial of Lightfoot’s §2255 motion. The court first concluded that the Michigan robbery statute was divisible and that Lightfoot had been convicted of the version of the offense known as “assaultive bank robbery.” The court then concluded that the offense fell under the enumerated offense clause because it shared the “essence of robbery in the federal statutes.” It rejected Lightfoot’s argument that because the offense could be committed by “confinement” it was not sufficiently similar to federal bank robbery, concluding that Michigan law showed that “confinement requires force or intimidation, just like all the other assaultive acts listed in the robbery statute.” The court noted that Lightfoot “has not identified any case where confinement without force or fear was the basis of an assaultive bank robbery conviction” under Michigan law.

 Judge Benjamin dissented, arguing that Michigan assaultive bank robbery “in its lease culpable form, can be accomplished without the use or threat of physical force.”

Completed Carjacking Remains Crime of Violence

US v. Fulks: Fulks and his codefendant, Basham, escaped from prison together and went on a multi-state crime spree that resulted in a kidnapping, rape, and murder in West Virginia (which is not the subject of this appeal) and a similar kidnapping, rape, and murder in South Carolina (which is the subject of this appeal). They were both charged with numerous offenses, including kidnapping, carjacking, and use of a firearm in connection with a crime of violence and conspiracy to use a firearm during a crime of violence. Fulks pleaded guilty to all counts, while Basham was convicted at trial on all counts. Both were sentenced to death (plus 744 months in prison). They challenged, via a second or successive §2255 motion, whether their firearm convictions were invalid after Johnson and its progeny because the alleged crimes of violence in which the firearms were used no longer qualified as such. The district court denied their motions.

On appeal, the Fourth Circuit affirmed the denial of Fulks’ and Basham’s §2255 motions. The parties agreed that, under Fourth Circuit precedent, kidnapping could no longer serve as a predicate crime of violence. Fulks and Basham argued the carjacking statute was indivisible and that because attempted carjacking could not be a crime of violence (as the Supreme Court held that attempted Hobbs Act robbery was not) then carjacking categorically was not a crime of violence. The court disagreed on both fronts. First, the court concluded that the carjacking statute was divisible between completed and attempt offenses. Second, the court held that it was clear that what Fulks and Basham were convicted of was completed carjacking, not attempt. Third, the court held that because completed carjacking requires the use or threatened use of force it was a crime of violence that could sustain Fulks’ and Basham’s convictions. Finally, the court held that the record was clear that their convictions were based on both a valid (carjacking) and invalid (kidnapping) predicate and therefore could not be vacated.

No Breach of Plea Agreement by Government Arguing for Upward Variance on Remand

US v. Johnson: In 2018, Johnson was charged with a drug conspiracy count and possession with intent count and entered into a plea agreement with the Government to plead guilty to the possession-with-intent count. The parties stipulated to the relevant conduct and that Johnson was entitled to a reduction for acceptance of responsibility. Johnson agreed to waive his right to appeal “from a sentence in excess of the applicable Guideline range that is established at sentencing,” while the Government reserved the ability to “make a sentence recommendation” and present additional evidence to respond to arguments made by Johnson. The probation officer concluded that Johnson was a career offender and calculated his Guideline range accordingly. At sentencing, the district court varied down from the career offender Guideline range and imposed a sentence of 128 months in prison.

Johnson appealed, initially arguing that one of his prior conviction upon which the career offender designation was based had been modified in state court “such that it no longer qualified as a felony.” The Fourth Circuit granted a motion to remand the case for resentencing. The probation officer recalculated the Guideline range as 57 to 71 months in prison. The Government filed a motion for an upward departure or variance, arguing the court should reimpose the original 128-month sentence. The district court imposed a sentence of 120 months.

The Fourth Circuit affirmed Johnson’s 120-month sentence. Johnson argued that by arguing for the upward departure/variance the Government had breached the plea agreement. The court disagreed, noting first that Johnson had not made that argument in the district court, so it was reviewing for plain error. Regardless, the court rejected Johnson’s argument that “reading the agreement as a whole, the Guidelines Stipulation must be interpreted to limit the Government’s sentencing recommendation rights,” holding that no such agreed-to-limit was present in the agreement. In addition, the reservation of the ability to “make a sentence recommendation” was broad, “but that doesn’t make it ambiguous or vague.”

COVID-required Courtroom Limitation and Testimony of Witnesses by Video Deposition Did Not Violate Constitution

US v. Smith: Smith and his codefendant, Alcorn, were charged with multiple counts relating to schemes to defraud in 2019. Their cases lingered during the lockdown period of the COVID lockdown, finally proceeding to trial in November 2021. That trial took place across multiple courtrooms, due to social distancing requirements, with spectators relegated to a second courtroom to watch via a video feed. Smith and Alcorn objected, arguing that because the public could not see the jury (although they could see the other participants in the trial) violated their right to a public trial under the Sixth Amendment. They also objected, initially to the taking of video depositions of three elderly victim witnesses from California (during which counsel was able to cross-examine them) who could not travel to Virginia for the trial, then to the admission of those depositions at trial. The district court rejected those arguments. Smith and Alcorn were convicted on all counts and sentenced to 156 and 185 months in prison, respectively.

A divided Fourth Circuit affirmed Smith and Alcorn’s convictions, but vacated Alcorn’s sentence. As to the convictions, the court first rejected the argument that Smith and Alcorn’s Sixth Amendment rights were violated. While not specifically holding, but certainly implying, that the COVID protocols did not result in a courtroom that was closed to the public, the court ultimately concluded that, even if it was a partial closure, that the district court did not abuse its discretion. In doing so, the court downplayed the importance of spectators being able to see jurors when they could see all the other participants in the trial. The court also found no abuse of discretion in the district court’s ruling regarding the video depositions, given the health care concerns of the witnesses. As to Alcorn’s sentence, the court concluded that the district court committed Rogers err by imposing terms of supervised release pursuant to a standing order that did not exist in that district.

Judge Agee concurred in the result, but wrote separately to reiterate his argument that the current remedy for a Rogers error (full resentencing) is not required and should be reconsidered.

Judge Heytens dissented, arguing that the district court did not make sufficient findings necessary to partially close the courtroom during trial, specifically whether there were “reasonable alternatives” and whether the restrictions were “no broader than necessary” to serve the stated public health purposes.

Court May Rely on Proffer from Government When Making Bond Determination

US v. Vane: Vane was kicked out of a “pro-gun prepper militia based in Eastern Virginia” when other members, concerned by questions about building explosives, concluded he was a law enforcement plant. He wasn’t. The militia provided information to law enforcement that resulted in a search warrant being executed at Vane’s home. As a result, he was charged by complaint with attempted production of a biological agent or toxin (ricin). After a preliminary hearing, at which an agent testified and was cross examined, the court moved on to the question of detention. Over Vane’s objection, the Government proffered additional information, upon which the district court (partly) relied in deciding to order Vane detained pending trial.

On appeal, the Fourth Circuit affirmed the decision to deny Vane release on bail. Vane’s only argument was that the district court had erred by allowing the Government to proffer at the detention hearing, arguing that the statute only provided the defendant with the ability to proffer in such circumstances. The court disagreed, concluding that the context needed to support Vane’s negative inference (that the Bail Reform Act specifically allows defendants to proffer, while remaining silent on what the Government may or may not do) was not evident in the rest of the Act. In reaching that question, the court first denied Vane’s motion to dismiss the appeal, concluding that it was not moot because the court had already issued an order denying relief (in advance of the opinion) prior to Vane having pleaded guilty below.

No Error in Not Giving Entrapment Instruction, But Court Chastises Police for Conduct; Sua Sponte Procedural Reasonableness Review Leads to Vacation of Sentence

US v. Elboghdady: One evening in February 2020 West Virginia State Trooper, posing undercover online as a single mother of two daughters (11 and 13 years old), posted an ad online “in town for the weekend looking for fun for the family” with “little cubs” who “love to play.” The intent was to “attract child predators that wanted to interact sexually with young children” without being too obvious. Elboghdady, an Egyptian native with a limited facility with English, responded. Over the next day, they conversed and, eventually, Elboghdady agreed to come to Huntington, West Virginia, to meet the undercover and the children. In the process, he repeated expressed his interest in the undercover (who explained that she was gay), while also appearing to be interested in the daughters, albeit in language that was not particularly clear. Upon arrival in Huntington and a meeting with the undercover, Elboghdady was arrested and charged with crossing state lines with the intent to engage in criminal sexual activity.

At trial, Elboghdady proposed a jury instruction on entrapment. The district court rejected that request, agreeing with the Government that there was no evidence of Government inducement. Elboghdady was convicted at trial. At sentencing, the district court imposed an 8-level enhancement because the offense involved a minor who was under 12 years of age (as the PSR recommended – Elboghdady did not object), concluding that the enhancement applied even though the evidence was not strong “as to the 11-year-old’s being a target of the defendant’s travel.”

On appeal, a divided Fourth Circuit affirmed Elboghdady’s conviction, but vacated his sentence. As to his conviction, the court agreed, if reluctantly, that the district court had correctly refused to given an entrapment instruction. Here there was no Government overreach and the fact that Elboghdady was repeatedly offered access to the daughters was not enough. Nor was his “sustained interest in the fictitious mother” a contributing factor. Regardless, the court stated that “although our precedent compels affirmance, we feel impelled to speak to the nature of the evidence before the court,” noting that a “plain reading” of the interactions with the undercover officer “exposes his confusion.”  While there was no overreach the undercover officer’s “pursuit to make sure ‘somebody is not out there preying on children when [she] possibly could have done something about it’ should not make not make clear evidence of someone’s confusion obsolete.” Furthermore, the “entrapment standard does not act as a free pass for the government to ignore the context of the interactions they engage in during undercover operations.”

As to Elboghdady’s sentence, however, the court found it was procedurally unreasonable, even though Elboghdady had only challenged its substantive reasonableness. Relying on the Supreme Court’s language in Gall that courts of appeals must “first ensure” there was no procedural error at sentencing, the court reviewed the district court’s application of the 8-level enhancement and found that it was erroneous, concluding that the district court’s findings did not show, by a preponderance of the evidence, that Elboghdady had travelled with intent to engage in a sex act with a minor under 12 years of age. As a result, the court vacated Elboghdady’s sentence without addressing whether the ultimate 120-month sentence imposed (a downward variance) was substantively unreasonable.

Judge Quattlebaum, while concurring with regard to the entrapment instruction (although he did respond to the comments about the conduct in this case), dissented on the court’s resolution of the sentencing issue, primarily for vacating the sentence on the basis of an issue not raised by Elboghdady either in the appeal or in the district court. He argued that Gall merely held that, where procedural issues are raised, they should be addressed before substantive issues, not that the court “must conduct an Anders-like review for procedural issues, whether raised or abandoned.” He also argued that, in doing so, the court erred by not applying a plain error standard of review.

No Error In Discharge of Counsel, Limitation on His Cross Examination by Codefendant

US v. Freitekh: Izzat Freitekh ran a restaurant and related businesses with the help of his family, including son Tarik. In 2020, Izzat obtained PPP loans that were used to (among other things) pay family members, with notes that such payments were for “payroll” or “paycheck,” even though none were listed in business records as being on the payroll. Later investigation showed that “all of the Loan Applications were fraudulent.” As part of the investigation, Izzat met with officials and blamed a third party, Kyber Capital, with filing the false applications, but “under scrutiny” the “story fell apart,” as Kyber Capital appeared to be a fictional creation of Tarik. As part of the investigation, Tarik’s attorney gave investigators evidence of chat logs between Tarik and an “alleged representative of Kyber.”

Izzat and Tarik were each charged with multiple counts of money laundering and conspiracy, with Tarik also charged with making false statements. Proceeding to trial, the Government sought stipulations from Izzat and Tarik with regard to documents turned over by their attorneys. They declined, leading the Government to effectively disqualify counsel as they were the only witness who could authenticate the documents. The district court agreed and delayed trial so Izzat and Tarik could obtain new counsel. At trial, both counsel testified, although questioning (both direct and cross examination) was limited by the court. Izzat and Tarik were both convicted on multiple counts and sentenced to 48 and 87 months in prison, respectively.

On appeal, the Fourth Circuit affirmed Izzat’s and Tarik’s convictions and sentences. Of the several issues raised on appeal, the primary one involved the discharge and questioning of Izzat’s and Tarik’s prior counsel. Tarik argued that he had been denied his Sixth Amendment right to counsel of choice when his original attorney was disqualified from the case, as his eventual testimony was “unwarranted and unnecessary.” The court disagreed, holding that the district court’s actions were “well within the district court’s broad discretion,” and that Tarik’s lawyer was “the only available witness who could lay the foundation of the documents” related to his false statements, thus creating a conflict of interest. Disqualification did not run afoul of the Sixth Amendment, the “essential aim” or which “is to guarantee an effective advocate . . . rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Izzat argued that his Sixth Amendment confrontation right was infringed by the district court’s limited cross examination of Tarik’s lawyer due to privilege concerns. Here the court also found no abuse of discretion, as the testimony of Tarik’s lawyer was not related to Izzat’s charges, only Tarik’s, and, even if there had been some abuse of discretion, any error was harmless. Finally, the court found no abuse of discretion in the district court allowing Izzat’s attorney to testify about how Izzat had provided him documents allegedly from Kyber Capital with instructions to turn them over to investigators, concluding that they were both relevant and not unduly prejudicial.