Friday, December 22, 2006

2423(a) Conviction Does Not Require Defendant's Knowledge of Victim's Age

US v. Jones: Jones was convicted by a jury of conspiracy to transport a minor across state lines for the purposes of prostitution and three substantive counts transportation. Jones and a buddy in Ohio found a 13-year-old runaway from Wheeling, West Virginia, whom they drafted into a prostitution scheme where they would drive the girl to a truck stop in West Virginia in order to service truckers.

The Fourth Circuit upheld Jones's convictions against two attacks. First, Jones argued that the Government was required to prove that he knew the girl involved was under 18, arguing that the "knowingly" requirement in section 2423(a) applies to the age of the victim, not (or in addition to) the transportation. The Fourth rejected this argument, noting that the other Circuits were unanimous in not adopting Jones's reading. Second, the court rejected Jones's argument that statements made by the AUSA during closing arguments prejudiced his case. One statement - "if [the defense] had real evidence, don't you think they would have presented it to you?" - was not an impermissible comment on Jones's exercise of his Fifth Amendment rights, because during closing argument Jones had suggested an "alternate scenario" of events that was not supported by defense witnesses (7 of whom testified) or cross-examination of Government witnesses. The other statement - "[Y]ou can be confident that [a witness] is telling the truth about this conspiracy. You know why? Because he pled to it." - was not improper vouching because it did not convey any indication of the AUSA's personal belief in the witnesses veracity.

Monday, December 18, 2006

Updward Departure Based on Criminal History Violates Booker

US v. Guyon: Guyon pleaded guilty to several fraud charges and faced a post-Blakely/pre-Booker Guideline range of 140 to 175 months. At sentencing, the Government moved for an upward departure because the Guideline range did not adequately reflect Guyon's criminal history, the similarity of his present offense to prior ones, and his likelihood of recidivism. Guyon objected on Sixth Amendment grounds, arguing that such a departure would depend on facts found by the district court beyond those to which Guyon pleaded guilty. The district court rejected Guyon's argument and sentenced him to 180 months in prison.

The Fourth Circuit vacated Guyon's sentence, holding that it violated Booker. Most notably, the court shot down the Government's argument that because the departure dealt with criminal history, it was covered by the Almendarez-Torres exception to the Apprendi/Blakely/Booker rule.

Wednesday, December 06, 2006

Pain-Management Related Convictions Upheld

US v. McIver: McIver was a South Carolina doctor who specialized in pain management. After concerns were raised about McIver's prescription practices, the DEA began investigating. Eventually, McIver was charged with conspiracy to distribute various narcotic pain medications, distribution of those drugs, and distribution of controlled substances resulting in death (one of this patients overdosed on oxycodone). McIver was convicted by a jury of conspiracy, distribution, and distribution resulting in death and sentenced to 240 months in prison for the conspiracy and distribution counts and 360 months (concurrent) on the distribution resulting in death counts. McIver challenged his conviction on numerous grounds on appeal.

In an opinion that covers similar ground to Alerre from this time last year, the Fourth Circuit affirmed McIver's convictions. First, the court rejects McIver's argument that the district court's jury instructions, fueled by the Government's expert witness testimony about whether McIver's actions were "outside the parameters of legitimate medical practice," lowered the burden of proof for the Government to a negligence standard. Second, the court rejected the argument that the Government's expert improperly offered inadmissible legal conclusions during his testimony. Finally, the court upholds McIver's convictions as being supported by sufficient evidence.

Tuesday, December 05, 2006

18 USC 3553(b)(2) Violates Booker

US v. Hecht: Hecht pleaded guilty to possession of child pornography. At sentencing, the district court rejected Hecht's argument that 18 USC 3553(b)(2), which requires a Guideline sentence in certain sex offense cases, violated Booker. As a result, the district court applied a two-level enhancement under USSG 2G2.2(b)(2)(E) (2003) for distribution of child pornography. He was sentenced to 33 months in prison, the bottom of the Guideline range.

On appeal, the Fourth easily concludes that 3553(b)(2)'s mandatory Guideline sentence provision violates the Sixth Amendment as explained in Booker (thanks to the Government's concession, in part). The court recognized that all other Circuits to deal with the issue have reached the same conclusion. Furthermore, the court concluded that vacation of Hecht's sentence was required because be properly objected to being sentenced under a mandatory Guideline scheme and the record was not sufficiently clear to show lack of prejudice. Hecht also challenged the two-level distribution enhancement, arguing that his act of using a web camera to transmit images of child pornography displayed on his computer did not meet the definition of "distribution." The Fourth Circuit disagreed and concluded that the enhancement applied in this case.