Wednesday, March 29, 2006

No Intent Requirement for Aggravated ID Conviction

US v. Montejo: Montejo was convicted under 18 USC 1028A(a)(1) for aggravated identity theft. The conviction stems from Montejo's purchase of a fake Social Security card and fake Alien Registration Number when he illegally entered the country. He later used those documents to secure employment in Norfolk, Virginia. Unknown to Montejo, the number on the Social Security Card and the Alien Registry Number he purchased already belonged to other (separate) people. Having pleaded guilty to two predicate ID theft offenses, Montejo argued that he was not guilty of aggravated ID theft due to his lack of intent to use "a means of identification of another person." The district court disagreed and convicted Montejo (after a bench trial) and imposed the mandatory two-year sentence (consecutive to sentences on the other counts).

On appeal, the Fourth Circuit affirmed. Examining the language of the statute, the court held that the word "knowingly" did not modify "means of identification of another person." The court analogized this statute to 21 USC 861(a)(3), to which the court reached the same conclusion with similar language in US v. Cook, 76 F.3d 596 (4th Cir. 1996).

Tuesday, March 28, 2006

Consulting Maryland "Statement of Charges" Proper When Applying ACCA

US v. Simms: Simms pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the Government served notice that it would seek an enhanced sentence under the Armed Career Criminal Act (18 U.S.C. 924(e)), based on three prior convictions in Maryland. Two of those convictions were for battery and assault. Simms argued that those two convictions were not "violent felonies" as defined by the ACCA. The district court referred to the statement of charges contained in the charging papers and determined that they were violent felonies. The district court sentenced Simms to a 15-year term of imprisonment.

The Fourth Circuit affirmed. First, the court noted that assault and battery in Maryland are among those offenses that can be committed in so many different ways that their are neither violent felonies per se nor excluded from ACCA consideration. Second, the court held that the district court was correct in looking to the statement of charges to determine the underlying facts of the offenses. The court rejected Simms's argument that such reliance violated Sheppard v. US, 125 S.Ct. 1254 (2005), because the statement of charges was part of the charging document to which Simms pleaded guilty. Maryland law required such a statement as a factual basis for the plea. For that reason, the statement of charges in Maryland is different from the document as issue in Sheppard. Finally, the court held that it was clear that the facts set forth in the statement of charges supported the conclusion that Simms's battery and assault convictions were violent felonies.

Friday, March 24, 2006

Failure to Seek Funds for Expert Leads to Actual Conflict of Interest; Requires Vacation of Sentence

US v. Stitt: Stitt was convicted after a jury trial of three counts of murder related to an ongoing criminal enterprise, as well as related drug and firearm offenses. Following a penalty phase trial, the jury recommended that Stitt be sentenced to death, which he was. He directly appealed his sentence without success.

Stitt filed a petition under 28 USC 2255 seeking a new trial on both guilt and sentencing. The district court denied Stitt relief as to the guilt phase of his trial, but vacated Stitt's sentence. The district court found that Stitt's retained attorney at trial had an actual conflict of interest based on his failure to request the court to appoint an expert to assess Stitt's propensity for future dangerousness. Such a request would have required an examination by the district court of the fee arrangement between Stitt and his attorney, which the attorney sought to avoid (the Government claimed that his fees came from drug money). Applying the standard of Cuyler v. Sullivan, 446 U.S. 335 (1980), that prejudice is presumed when defense counsel has an actual conflict of interest in representing his client, the district court concluded that Stitt was denied his right to effective assistance of counsel.

The Government appealed, conceding that there was an actual conflict of interest between Stitt and his counsel, but that the Sullivan presumption of prejudice applied only to conflicts caused by simultaneous representation of multiple defendants. The Fourth Circuit rejected the Government's argument and affirmed the district court.

UPDATE: Opinion withdrawn and appeal dismissed for lack of jurisdiction.

Thursday, March 23, 2006

Downward Variance to Probation Not Justified by District Court Findings

US v. Hampton: Hampton pleaded guilty to being a felon in possession of a firearm, a rifle. His uncontested advisory Guideline sentencing range was 57 to 71 months. At sentencing, Hampton argued for a non-custodial sentence:

Defense counsel explained that Hampton did not know that he could not own a rifle (he believed the law only precluded felons from owning handguns), that he cooperated with the police, that he did not use the gun in any crime, that he did not steal the gun but rather bought it lawfully, that he had no criminal or malicious intent in possessing or discharging the firearm, that he had straightened out his life by joining a church and obtaining full-time employment, and that he was 'a single parent of two minor children, wh[o] he is raising and supporting with the help and assistance of his mother.' For these reasons, Hampton’s counsel argued that 'there would be no purpose served, either for . . . the government or Mr. Hampton to incarcerate him for
any period of time.'

The district court agreed and sentenced Hampton to three years probation. The Government appealed and the Fourth Circuit vacated. The Court held that the record did not demonstrate that the district court considered all of the 3553(a) factors, but rather focused on Hampton's status as a single father and provider for his children. Therefore, the sentence was vacated and remanded for further proceedings.

Importantly, Judge Motz concurred "to emphasize that a variance of this magnitude is not per se unreasonable."

Leon Saves Search Pursuant to Questionable No-Knock Warrant

US v. Singleton: In 2001, authorities learned that drugs were being sold from an apartment in which Singleton lived. Police used a CI to make two controlled purchases at the apartment, which they used as the basis for obtaining a warrant to search the apartment. The officers applied for, and received, a no-knock warrant under Maryland law, allowing them to enter without first knocking and announcing their presence.

The no-knock warrant was based on Singleton's criminal history, which included a 1987 conviction for second-degree murder. The warrant was obtained on September 26, 2001. On October 3, the CI attempted to make a third controlled buy to make sure Singleton was still living there. On October 9, police executed the warrant, breaking down the front door.

In the house they found Singleton (and others), along with large amounts of crack cocaine and cash and some firearms. Singleton was charged with multiple drug and firearm counts. He moved to have the evidence seized in the house suppressed on the grounds that there were no exigent circumstances to justify a no-knock entry on October 9. The district court disagreed and Singleton was convicted on all counts after a jury trial.

On appeal, the Fourth Circuit affirmed. While doubting that the facts provided to the state magistrate justified the no-knock warrant and subsequent entry, the court held that the "good faith" exception from US v. Leon, 468 U.S. 897 (1984), applied to save the search. Specifically, the court held that the officers had "done all they could do" by getting a no-knock warrant from a magistrate and that penalizing the officers for the magistrates error did not justify suppression. The Court specifically declined to consider whether the delay in execution of a no-knock warrant could lead to the dissipation of the necessity for a no-knock entry.

Singleton's sentence was vacated and remanded in light of Booker and Hughes.

Tuesday, March 21, 2006

Court Applies Promise/Cotton Analysis to Sixth Amendment Booker Error; Distinguishes Hughes

US v. Smith: Smith, Reep, and Moore were all convicted of being part of a conspiracy to distribute drugs, as well as other offenses. In laundry list fashion, the Fourth Circuit affirmed their convictions, covering the following issues (none of Smith's arguments were directly addressed, although the Court admitted in a footnote that some claims "are so clearly without merit that they do not warrant discussion in this opinion"):

  • Indictment was not unconstitutionally vague where is charged that one count of possession with intent to distribute occurred "in or about Winter, 2000."
  • The district court properly admitted testimony of a witness regarding statements made by other unindicted coconspirators, concluding that those were members of the conspiracy and the statements were made in furtherance of that conspiracy.
  • Admission of the testimony of Moore's son that he delivered drugs in DC for his father at six years of age did not violate Rule 404(b) and was therefore not plain error.
  • The district court improperly excluded a defense witness from testifying after she violated a sequestration order by sitting in the courtroom for two days of the trial. The error was harmless, however.
  • Remark made by prosecutor in closing argument regarding guilt of codefendants and witnesses (["t"he only difference is some who sat on that witness stand admitted it and those sitting at these two tables have not") was not plain error.


  • Reep's conviction does not violate double jeopardy, where prior trial was aborted after jury selection due to problem with competency of Government witness where Reep asked the court for a mistrial.
  • The district court did not improperly restrict his cross-examination of Government witnesses.
  • The district court's sua sponte cutting off of Reep's counsel during cross examination and questioning of some witnesses from the bench did not violate Reep's right to due process.
  • The district court did not abuse its discretion by forcing Reep's counsel to decide on the spot whether to call more witnesses or rest his case.
  • The district court did not abuse its discretion by cutting Reep's counsel off during closing argument when he began to define reasonable doubt for the fourth time.

As to Moore's sentence, the Court began by noting that his sentence of life in prison is beyond the top of the applicable Guideline range supported by the facts supporting his conviction, in violation of Booker. However, the Court goes on to apply the holdings of Johnson v. US, 520 U.S. 461 (1997), and US v. Promise, 255 F.3d 150 (4th Cir. 2001)(en banc), that it would not notice the error where the evidence regarding the determinations at issue was "overwhelming" and "essentially uncontroverted."

For Smith's sentence, the Court deemed that there was no Sixth Amendment error because he was sentenced as a career offender and his sentence was therefore based on prior criminal history. As to Booker error, the Court held that Smith abandoned that argument by making it in this cursory fashion: "Smith's sentence exceeded the maximum sentence then authorized by the jury alone, in violation of Booker." That was "Smith's entire argument" and not sufficient to raise the issue under Rule 28(a)(9)(A) of the Rules of Appellate Procedure.

Reep was also sentenced as a career offender. The district court upheld his sentence.

District Judge Dever, sitting by designation, dissented on the issue of Moore's sentence. Judge Dever correctly points out that the Court's holding is contrary to United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). He notes that after Hughes:

every panel publishing a Fourth Circuit opinion applying Hughes to a Booker Sixth Amendment violation raised for the first time on direct appeal has exercised its discretion at the fourth step of the plain-error analysis to notice the error, vacate the sentence, and remand for resentencing.

Monday, March 13, 2006

State, Federal Charges Arising from Same Act Are Not "Same Offense" Under Sixth Amendment

US v. Alvarado: Alvarado came to the attention of authorities during surveillance by Virginia police of a potential drug conspiracy. Assisting the Virginia police was an ATF agent. After the state officers arrested Alvarado and another man, the ATF agent questioned Alvarado because the agent spoke Spanish and Alvarado spoke Spanish but not English. Based on the statements from Alvarado and the other man, they were charged in Virginia with possession with intent to deliver cocaine and conspiracy to deliver cocaine. Alvarado asked for and was appointed counsel to represent him in state court. At a preliminary hearing two months later, Virginia dropped the charges against Alvarado.

Once the state charges were dropped, Alvarado was immediately arrested by the ATF agent on a warrant obtained the day before based on a criminal complaint. Alvarado (who, we are told was "glad to see" the ATF agent) gave an incriminating statement after being given Miranda warnings by the ATF agent. Alvarado was eventually indicted for distributing cocaine and conspiring to distribute cocaine. At trial, the ATF agent testified about the incriminating statements Alvarado made following his federal arrest. Alvarado moved to have the statements suppressed, arguing that the federal charges were the "same offense" for Sixth Amendment purposes and the ATF agent should not have questioned him without the attorney appointed in state court present. The district court rejected that argument and the jury convicted Alvarado on both counts.

The Fourth Circuit upheld Alvarado's conviction on several grounds. First, the Court held that the Sixth Amendment right to counsel is case specific and that state and federal prosecutions are, by definition, separate cases, under the separate sovereignty doctrine. The fact that a federal agent was involved in the state arrest and charges is irrelevant, as "such collaborative efforts can hardly be dispositive of government misconduct." Second, the Court held that even if such a categorical rule was not appropriate, an examination of the state and federal charges showed them to be different offenses (the dates of the two charged conspiracies, in particular, were different). Finally, the Court held that Alvarado's Sixth Amendment right to counsel in federal court did not kick in with the filing of a criminal complaint because "[t]he filing of a federal criminal complaint does not commence a formal prosecution" and that the use of "such a complaint is to establish probable cause."

Alvarado's sentence was remanded for resentencing in light of Booker.