Friday, July 28, 2006

Court Upholds Death Sentence For Multi-State Crime Spree

US v. Fulks: Fullks and his codefendant Basham (trials and appeals were severed) met while incarcerated in a jail in Kentucky awaiting sentencing on various charges. They escaped and embarked on a multi-state crime spree that took them from Indiana to West Virginia to the Carolinas (and back) and left one man tied to a tree and two women dead in the process. They were apprehended in Indiana and brought to South Carolina to face federal charges, including carjacking resulting in death and kidnapping resulting in death for the second murder victim (who was taken from South Carolina to North Carolina and killed).

The Government sought the death penalty. Fulks pleaded guilty to the carjacking and kidnapping (as well as others) charges and proceeded to trial on the issue of whether he should be sentenced to death. After more than a month of trial proceedings, the jury returned a verdict recommending that Fulks be put to death. The district court, after denying a motion for new trial, sentenced Fulks to death on both the kidnapping and carjacking counts and 744 months on the other charges (to be served consecutively to the death sentences, for good measure).* Fulks appealed his death sentence.

In a lengthy opinion (that can't really be adequately summarized in a blog post), the Fourth Circuit affirmed Fulks's sentence. In doing so, the court rejected arguments that:

  • the district court erred by not excluding the testimony of two witnesses who were not on the Government's witness list prior to trial;
  • the district court erred by not striking from the jury three jurors who were unconsitutionally prone to impose the death penalty;
  • the district court erred in denying the motion for new trial based on revelations that one of the jurors failed to answer a question during voir dire that her husband had been murdered
  • the district court erred by not striking two other jurors whose personal experiences biased them against Fulks
  • the district court erred by not allowing Fulks to introduce evidence of three polygraph exams he took
  • the district court erred by allowing the victim's sister to read a 14-year old letter the victim wrote to her about leaving her abusive husband; and
  • that the Federal Death Penalty Act is unconstitutional because of its lax evidentiary standards.
Judge Williams concurred, disagreeing with the court on whether the district court properly allowed two witnesses to testify who were not on the Government's witness list. While he felt that the district court erred on that issue, the error was harmless.

* Fulks also pleaded guilty in relation to the other murder in the Southern District of West Virginia and received a life sentence.

Wednesday, July 26, 2006

Extensive District Court Involvement in Plea Negotiations Is Plain Error Requiring Reversal

US v. Bradley: Bradley and his co-defendants Jones and Bennett were charged with various drug and firearm offenses relating to a conspiracy to distribute crack in and around Baltimore. Early in the proceedings, Bennett sought to enter a guilty plea, but balked when informed that a charge that he thought had a sentence of 10 years in prison actually exposed him to at least 10 years, and possible life, in prison. Bennett backed out of the deal and the Government obtained a five-count superseding indictment against the three men, charging conspiracy to distribute 50 grams or more of crack, distribution of crack, possession of crack with intent to distribute, and two separate counts of possessing firearms in connection with drug trafficking. Bennett was charged in all five counts, while Bradley and Jones were charged with conspiracy and one firearm count.

Trial began on January 28, 2002, with the first witness testifying the next day. On January 30, before the jury arrived, the district court met privately with the defendants and counsel and encouraged them to consider entering guilty pleas. At one point, the court said "frankly, based on what I am hearing now . . . your clients may be better off pleading guilty to the indictment." The court then called the Government's counsel into the courtroom and discussed the situation with them as well. After a 3-hour adjournment, the Government reported that no plea agreement could be reached because of sentencing issues. Bradley attempted to enter a guilty plea to the indictment, but would not admit that he was guilty of conspiracy, so the district court rejected the plea.

Two weeks passed and the trial continued, until the court again brought up the possibility of the defendants entering plea bargains. After badgering the defendants about pleading guilty, the court asked for a response from the defendants themselves:

Jones objected to 'the way you keep on judging us.' The court responded that the jury would be judging them, not the court. Jones replied: 'You keep telling us to cop out, like we are already guilty.' The court replied, 'I keep telling you that you are presumed innocent.' Jones then stated, 'It don’t seem like it.' Jones went on to state that he was not satisfied with the plea option the Government had presented to him: 'The only deal they give is they tell [us] to cooperate or go to trial. I’m going to trial because I won’t cooperate with them.'

The next day, Bennett indicated that he wanted to plead guilty, but the district court said it would only accept guilty pleas from all three defendants at the same time. Six days later, all three agreed to plead guilty to the indictment. Ironically, when the Government during the Rule 11 proceedings indicated that the two firearm charges against Bennett would have to be run consecutively, producing a 40-year mandatory minimum, Bennett stated that he didn't want to plead guilty to that much time, to which the court responded, "I don't blame you." The Government eventually dropped one of the firearm charges, dropping the mandatory minimum sentence to 20 years. The district court accepted the defendants' pleas and sentenced them to 296 months (Bradley), 720 months (Jones), and life in prison (Bennett).

On appeal, Bradley and company argued that their pleas were involuntary because the district court was impermissibly engaged in the plea negotiations. After first determining that the issue was subject to plain error review, the Fourth Circuit agreed and reversed the convictions. The Government conceded the error and that it was plain, but argued that the error did not affect the defendants' substantial rights and did not seriously affect the fairness and integrity of the judicial proceedings. The Fourth Circuit rejected both arguments, holding that the Government's focus on defense counsel's role in the pleas "totally ignores the applicable standard for determining the effect on substantial rights in cases involving Rule 11 violations." The Fourth also rejected the Government's argument regarding the impact on the fairness and integrity of the proceedings, noting that "[w]e have not found a single case in which the extent of judicial involvement in plea negotiations equalled that in the case at hand."

You really have to read the full facts of the case to get a grasp of how much influence the district court had on these pleas.

Tuesday, July 25, 2006

Full Court Discusses Sufficiency, Aiding and Abetting While Reversing Panel Reversal of Convictions

US v. Moye: Moye was convicted of being a felon in possession of a firearm and possession of stolen firearms. The counts in which he was charged with those offenses also charged him with aiding and abetting those offenses.

The convictions stemmed from the robbery of a sporting goods store. When police arrived, they spotted Moye crawling out of a side door to the store while two companions fled (the getaway driver took off without waiting for anyone else, while another guy took off on foot). Moye tried to run, but was quickly caught. Lots of guns were found in the vehicle driven by one of Moye's companions when it was stopped. Moye had no weapons on him when he was arrested and none of the weapons recovered in the car had his fingerprints on them.

Nonetheless, he was convicted after a jury trial. The district court gave a "flight as evidence of guilt" instruction as well as an aiding and abetting instruction.

A panel of the Fourth Circuit, 2-1, reversed both of Moye's convictions. First, the court held that there was insufficient evidence to conclude that Moye possessed, even constructively, the firearms in question. Second, the court found that there was insufficient evidence to support giving an aiding and abetting instruction on the felon in possession charge and insufficient evidence to sustain a conviction on the possession of stolen firearms by aiding and abetting charge.

The court vacated its original panel opinion and reheard Moye's case en banc. In an opinion by Senior Circuit Judge Hamilton (the dissenter on the original panel), the court changed course and upheld Moye's convictions. Diving deeply into the facts, the court held that there was sufficient evidence to support the jury's conclusion that Moye actually possessed firearms during the robbery (specifically, the court speculated that Moye was the person inside the store who handed the guns out to his accomplices). While "an argument can be made that Moye was merely present at the same location from which the firearms were stolen . . . it was for the jury, not this court, to determine which version of the events - the government's or Moye's - was more credible."

The court also held that Moye's multiple convictions for possession of the same weapons did not violate the multiplicity principle of Bell v. United States, 349 U.S. 81 (1955), because the charges involved difference subsections of 18 USC 922.

Finally, the court held that the district court did not err in giving an aiding and abetting instruction, even though it was not supported by the facts, because it was a correct statement of law and another theory of liability was presented to the jury in the instructions that was both legally and factually supported.

Judge Motz concurred (along with Judge Michael), agreeing with the majority opinion in all aspects of the case except for the aiding and abetting instruction. Giving the instruction in this case was error, Motz argued, but was harmless because there was sufficient evidence to convict Moye on another theory.

Judge Gregory (who wrote the panel majority opinion) dissented, arguing that the aiding and abetting instruction was erroneous and was not harmless error because it was too confusing to the jury on the elements of being a felon in possession and aiding and abetting. Gregory would have vacated Moye's felon in possession conviction, but upheld the stolen firearms conviction.

It's interesting to note that both Judge Duncan and Judge Gregory (who voted with the majority on the rehearing) changed their positions from the original panel opinion in this case.

Thursday, July 20, 2006

Government Expert May Testify About What Other Inmates Say About Defendant

US v. Leeson: Leeson appeared at the VA hospital in Pittsburgh and interacted with the admissions nurse. Concerned with Leeson's use of different names and that a bulge in Leeson's jacket might be a gun, the nurse called police. When police arrived, they talked to Leeson, who claimed to be an FBI agent and was therefore armed. The police let Leeson go to his car to retrieve identification.

Rather than return, Leeson sped away and led a high-speed chase down I-79 into West Virginia. Once apprehended (his car broke down), Leeson was observed with a pistol in a holster and was arrested. During the arrest, Leeson told an officer "easy, I could have made this bad for you." Leeson was indicted for being a felon in possession of a firearm.

Prior to trial, Leeson moved for a mental evaluation and gave notice of the intent to pursue an insanity defense. Leeson was sent to MCC Chicago and evaluated by Dr. Jason Dana, who concluded that Leeson was not mentally ill at the time of the offense and was malingering.

Leeson went to trial on an insanity defense, during which a defense expert testified that Leeson suffered from several mental disorders that came together to render him insane at the time of the offense. Dana testified in rebuttal. While explaining his conclusion that Leeson was malingering, Dana testified that his opinion was partly based on information from two other inmates who told him that Leeson tried to enlist their aid in looking crazy. Leeson objected to the introduction of that testimony, as well as the Government's use of his post-arrest statement. Leeson was convicted.

At sentencing, he was determined to be an Armed Career Criminal and sentenced to 230 months in prison.

On appeal, Leeson argued that the district court erred by allowing two pieces of evidence to go to the jury.

First, Leeson argued that the district court violated FRE 403 by allowing his statement ("easy, I could have made this bad for you") into evidence due to its prejudicial nature. The Fourth Circuit rejected that argument, holding that the statement was relevant to whether Leeson knowingly possessed a firearm, particularly given his insanity defense (although I don't understand the relevance) and that the statement was only "mildly menacing" in nature.

Second, Leeson argued that Dana's testimony about information gleaned from two other MCC Chicago inmates should not have been introduced. The Fourth also rejected that argument, holding that the statements were admissible under FRE 703 (even if the were hearsay) because observations of other inmates are used in determining whether an inmate is mentally ill, that the reliability of those inmates was an issue for jury resolution after cross examination (of Dana, not the inmates) and argument, and that the prejudicial value of the statements were not so great as to warrant exclusion. In a footnote, the court swatted away a Crawford challenge because Leeson's opening brief did not raise the issue, even though Crawford had been decided at that time.

Leeson also challenged his Armed Career Criminal status. Particularly, he argued that two of his three prior qualifying convictions, an armed robbery of a grocery store and an attempted murder of a police officer that occurred in the parking lot of the robbed store, were part of a single criminal episode. The Fourth Circuit disagreed, applying the five-factor test of US v. Letterlough, 63 F.3d 332 (4th Cir. 1995), concluding that all but one of those factors supported the conclusion that the two offenses were distinct "occasions" for ACCA purposes.

Great (and Very Useful) Critique of the Sentencing Guidelines

In the context of a letter to the Sentencing Commission regarding this year's Sentencing Guideline amendment cycle, the Federal Defenders have produced a comprehensive and persuasive critique of the Guidelines' many egregious shortcomings and the Commission's persistent failure to correct them.

In a lengthy memorandum backed up by both by case law and data (much of it from the Commission's own research), the Defenders address, among other things, the procedural unfairness and inadequacy of the Guidelines, the major structural flaws in the career offender, relevant conduct, drug and immigration guidelines, as well as the Commission's failure to act on Congressional directives to provide alternatives to incarceration and reduced punishment for first offenders and its failure to take into account or permit consideration of a number of factors, such as the defendant's age, family circumstances, and employment that are directly linked to a reduced risk of recidivism.

The Defenders then propose fair, commonsense fixes for each of the problems identified. Though the letter is directed at the Sentencing Commission, many of the proposals contained in the letter can easily be adapted into case-specific arguments for variance to present to individual sentencing courts. It is a gold-mine of ideas for defense counsel looking for powerful, data-driven sentencing arguments.

Wednesday, July 12, 2006

Pre-Booker Sentences In Drug & Gun Case Split Court

US v. Sullivan: Convolution, they name is Fourth Circuit. How's this for an opening paragraph:

PER CURIAM:

Pursuant to the following opinions of Judge Widener and Judge King, the convictions of the defendants are hereby affirmed, and their sentences are hereby vacated. Judge Widener’s opinion in these appeals, to the extent that it affirms the convictions of the defendants, is joined by Judge King and Judge Duncan. Judge King’s separate opinion, which agrees with the result reached by Judge Widener as to Sullivan’s sentence, but for different reasons, addresses the sentencing issues only, vacates both defendants’ sentences, and remands for resentencing. It is joined by Judge Duncan. Judge Widener agrees in the result reached by Judge King as to Sullivan’s sentence, but for the reasons expressed in his opinion. He dissents from Judge King’s opinion and the result there reached as to the sentencing of Campbell.

Sullivan and Campbell were tried a convicted of multiple counts related to a crack distribution conspiracy and related firearm offenses. Each defendant got a life sentence, imposed before Blakely and Booker were handed down. The district court reached the appropriate Guideline range to support those sentences via post-trial factfinding, particularly of drug quantity and that both defendants were responsible for two murders during the course of the conspiracy. Both Sullivan and Campbell appealed their sentences and convictions.

Writing, ostensibly, for the court, Judge Widener concluded that Campbell's sentence can be upheld, while Sullivan's must be vacated. As to Campbell, Widener concluded that while some Booker prohibited factfinding could produce his sentence, Campbell's status as a career offender also produced a Guideline range with a maximum sentence of life (the drug conspiracy count involved more than 50 grams of crack, so it had a statutory maximum of life as well). Therefore, because Campbell's sentence was within the Guideline range and statutory range supported by the jury's findings and was "reasonable," Campbell could not meet the plain error requirements of White or Hughes. Sullivan's sentence, on the other hand, was supported only by the district court's post-trial factfinding and thus must be vacated.

While Judge Widener's per curiam opinion spoke of "we" concluding that Campbell's sentence must be upheld, Judges King and Duncan disagreed, in a concurrence/dissent authored by King. In his concurrence, King avoids the question of whether Campbell's sentence was based on Sixth Amendment Booker error (i.e., Hughes error) by pointing out a fact overlooked by Widener - that Campbell (and Sullivan, too, for that matter) objected to the district court's post-trial factfinding under Apprendi at sentencing. Therefore, it wasn't plain error review that should control, but harmless error review of the so-called statutory Booker error. King concluded that the Government could not meet its burden of showing that the district court would have imposed the same sentence on Campbell or Sullivan under an advisory Guideline scheme. Therefore, both sentences required vacation.

On the topic of Sullivan and Campbell's convictions, the court was unanimous in rejecting their arguments. The court turned away Sullivan's sufficiency argument as to the firearm counts of which he was convicted and also rejected his claim that the district court should have given a multiple conspiracy instruction. Campbell's arguments, challenging the admissibility of co-conspirator statements and documents relating to their plea agreements were also rejected.

Monday, July 03, 2006

Sentencing Disparity With Fast Track Districts OK'd

US v. Perez-Pena: In this case, the Fourth Circuit joins in on the issue of variances from the Guidelines in immigration cases in districts that do not have a "fast track" program, which allows for a 4-level reduction for defendants who plead guilty in illegal reentry cases. Perez-Pena illegally entered the US from Mexico in 1993. Six years later, he was convicted of (basically) statutory rape and was deported after serving his sentence. He returned to the US without permission and was arrested after a traffic stop in the Eastern District of NC. EDNC, like the rest of the Fourth Circuit, does not have a fast track program by which an illegal reentry defendant can get a 4-level reduction in his offense level after pleading guilty (on the Government's motion). As sentencing, Perez-Pena argued for a sentence below his 37 to 46 month Guideline range on the ground that such a sentence was produce an unwarranted disparity with similarly situated defendants in fast track districts. The district court agreed and sentenced Perez-Pena to 24 months in prison. The Government appealed.

Joining other circuits that have faced the issue, the Fourth vacated Perez-Pena's sentence. The court concluded that a sentence within Perez-Pena's Guideline range would have been a warranted, rather than unwarranted, disparity with defendants in fast track districts, and therefore permissible. In fact, the PROTECT ACT provisions that allowed for fast track programs shows that Congress explicitly sanctioned such disparities. The Fourth also concluded that the variance was improper as a reflection of Perez-Pena's minor criminal history, as his Guideline calculation already did so.

Court Upholds Conspiracy, Murder Conviction Over Charges of Judicial Bias

US v. Smith: Smith and a co-defendant, Smallwood, were convicted of conspiracy to distribute crack and murder in furtherance of that conspiracy. Smith and Smallwood were part of a large-scale crack distribution operation in and around Washington, DC. During the operation, they suspected one of their regular customers of providing information leading to a robbery at Smith and Smallwood's apartment that they used to process cocaine into crack. Once they tracked down the customer, they took him to an alley in downtown DC and shot him in the head multiple times at close range. They were tried and convicted in the Eastern District of VA and sentenced to life in prison.

The Fourth Circuit rejected all of Smith and Smallwood's arguments on appeal. First, the court brushed aside the contention that the district court was unduly biased towards the prosecution and improperly questioned witnesses and undermined defense strategy. The court held, using a plain error standard of review, that the district court did nothing wrong in questioning some witnesses to clarify matters (the trial lasted two weeks) and did not cast dispersions upon defense witnesses. Second, the court held that venue was proper in the EDVA. Because the underlying offense was conspiracy, and some of the actions of the conspiracy took place in EDVA, venue for both the conspiracy and murder charge was proper there. Third, the court rejected Smallwood's argument that a prior plea agreement with the Government prohibited the Government from prosecuting him in this case. Finally, the court held that neither defendant could show prejudice under White and therefore upheld their sentences under Booker.