Monday, December 31, 2007

Fourth Lays Out Post-Gall Procedures, Upholds Downward Variance

US v. Pauley: Pauley pleaded guilty to one count of possessing child pornography. The unusual facts of the case involve Pauley, a middle school (later high school) teacher, being approached by a female student who asked whether he was interested in paying her for nude pictures she took of herself. Pauley agreed and pictures were exchanged during successive school years. When both Pauley and the student moved to high school, she proposed to take pictures of herself and another female student. The pictures were taken, but the other student informed authorities, who recovered the pictures.

At sentencing, the district court calculated Pauley's advisory Guideline range to be 78 to 97 months in prison. After hearing arguments from the parties, the district court imposed a sentence of 42 months in prison, for numerous reasons:
(1) in buying the nude photographs each time, Pauley initially was approached by the victim with such a proposal; (2) fewer than two dozen pornographic photographs were taken with the victim’s Polaroid camera; (3) the victim’s face did not appear in any of the photographs; (4) Pauley displayed deep remorse; (5) besides the criminal conduct at issue, Pauley was a model citizen and a good father and teacher; (6) as a result of his conviction, Pauley lost his teaching certificate and his state pension; (7) Pauley agreed to a lifetime of supervised release; (8) no other child pornography was found in Pauley’s house; and (9) the counseling Pauley would receive during incarceration would rehabilitate him, allow him to lead a productive life upon release, and make further crimes by Pauley extremely unlikely.
The Government appealled, arguing that Pauley's sentence was unreasonable. The Fourth Circuit unanimously rejected that argument. In doing so, it set forth the procedure to be used in a post-Gall world:
Recently, the Supreme Court decided two cases which together explain in detail the mechanics of Booker’s remedial holding. See Gall v. United States, No. 06-7949, 2007 WL 4292116 (U.S. December 10, 2007); Kimbrough v. United States, No. 06-6330, 2007 WL 4292040 (U.S. December 10, 2007). In Gall, the Court instructed that the sentencing court should first calculate the applicable Guidelines range. 2007 WL 4292116, at *7. This starting point furthers Congress’ desire for efficient administration and nationwide consistency in sentencing. Id. After calculating the Guidelines range, the sentencing court must give both the government and the defendant 'an opportunity to argue for whatever sentence they deem appropriate.' Gall,
2007 WL 4292116, at *7. The sentencing court should then consider all of the §3553(a) factors to determine whether they support the sentence requested by either party. Id.; see also Kimbrough, 2007 WL 4292040, at *10 (noting that, while § 3553(a) requires the sentencing
court to give due consideration to the Guidelines, Booker allows the sentencing court to fashion the sentence in light of other statutory considerations). In so doing, the sentencing court may not presume that the Guidelines range is reasonable. Gall, 2007 WL 4292116, at *7. In the event the sentencing court decides to impose a variance sentence, i.e., one outside of the recommended Guidelines range, the sentencing court 'must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.' Id. As noted by the Gall Court, it is an 'uncontroversial' proposition that a 'major departure should be supported by a more significant justification than a minor one.' Id.
Reviewing Pauley's sentence, the court held that the district court's variance "is reasonable and premised on the factors set forth in §3553(a)."

Congrats to CJA counsel Ben Baily and Deirdre Purdy on the win!

Friday, December 21, 2007

"Custody" Doesn't Turn on Interogator's Assurance That Defendant Is Not In Custody

US v. Colonna: Colonna was convicted by a jury of two counts related to child pornography. The investigation of Colonna began with an FBI agent infiltrating an online file-sharing service dedicated to child porn, which led to the execution of a search warrant at Colonna's home (where he lived with his parents and sister). It took 23 agents to execute the warrant on this vicious criminal. While the search was ongoing, Colonna was interviewed by two of the agents and made inculpatory statements. At no time was he provided Miranda warnings. Colonna moved to suppress his statements, at which time the district court found:
that Colonna was awakened by armed agents and guarded by agents until the search and interview concluded. The home was inundated with approximately 24 officers who gave Colonna and his family members instructions; that is, they told them where to sit and restricted their access to the home. Colonna did not voluntarily request to speak with Agent Kahn. Instead, Agent Kahn requested that Colonna accompany him to a FBI vehicle to answer questions, wherein a full-fledged interrogation took place. Agent Kahn questioned Colonna for almost three hours, albeit with breaks. But, even during these breaks, Colonna was constantly guarded. Although Colonna was not placed under formal arrest, he was told twice that lying to a federal agent was a federal offense. And, at no time was he given Miranda warnings or informed that he was free to leave.
Nonetheless, the district denied the suppression motion, holding that Colonna was not in custody because (1) the agent interviewing him said so and (2) Colonna was not arrested until nearly two months after the search.

On appeal, the Fourth Circuit reversed. The court held that the district court had put entirely too much weight on the agent's statement to Colonna that he wasn't in custody during the search, noting that such statements are but one part of the totality of the circumstances to be considered in such cases. Due to the lack of Miranda warnings, Colonna's statements should have been suppressed. The failure to do so was not harmless. Therefore, the case was remanded for a new trial.

Wednesday, December 19, 2007

Court Joins Majority in Tax Loss Calculation Circuit Split

US v. Delfino: The Delfinos (husband and wife) ran several computer consulting businesses. The income generated by those businesses, rather than being taken directly by the Delfinos, was put into several trusts. Neither the Delfinos nor the trusts paid taxes on that income. After an audit (with which they refused to cooperate), the Delfinos were indicted for mail fraud and attempted tax evasion. At trial, they relied on a good faith defense based on the advise of a "trust promoter and self-described tax consultant." The jury rejected that defense and convicted the Delfinos on all counts. At sentencing, the tax loss was based on the audit with which the Delfinos did not cooperate and did not take into account deductions which they would have been entitled to take had they paid their taxes on time.

On appeal, the Fourth Circuit turned back the Delfinos' challenges to both their convictions and sentences. First, the court rejected the argument that the trial court improperly excluded the testimony of other people who relied on the same "trust promoter" as the Delfinos, holding that because there was no evidence that those witnesses received the same advice as the Delfinos it was irrelevant to the question of the Delfinos' subjective beliefs. Second, the court held that there was sufficient evidence to support the convictions.

Finally, as to sentencing, the court held that the amount of tax loss was properly calculated. Specifically, the court held that potential deductions should not have been subtracted from the amount of loss because the Delfinos failed to file tax returns as required and cooperate with the initial audit, during which they could have claimed the deductions. Those deductions were therefore waived. There is a split in the circuits on this issue, with the Fourth Circuit joining the Seventh and Tenth Circuits in the majority (the Second Circuit disagrees).

Monday, December 17, 2007

True Threats Can Extort State University

US v. Bly: Bly was a long-time doctoral student at the University of Virginia. After he was dropped from the program, he began to write letters and Emails to the UVa administration claiming that he had been treated unfairly and that his work had been plagiarized.

In one letter, addressed to more than 40 people, Bly made a series of demands backed by threats of violence, referencing the ability to "end elements of long standing dispute with the twitch of my index finger." A cover sheet included practice targets from a shooting range and screaming all-caps text attesting to Bly's proficiency with high-powered rifles. Bly was charged under 18 USC 876(b) with attempting to extort UVa with threats of violence. Bly pleaded guilty to that offense, but only after the district court denied a motion to dismiss on grounds that the letter was First Amendment protected "hyperbolic" political speech and that UVa was a "person" that could be the target of an attempted extortion.

On appeal, the Fourth Circuit followed the district court and affirmed Bly's conviction. First, the court concluded that the letter contained true threats that were not entitled to First Amendment protection. Second, the court concluded that UVa was a person that could be the target of extortion.

Factual Basis Insufficient to Sustain Guitly Plea

US v. Mastrapa: Mastrapa pleaded guilty to being part of a conspiracy to distribute 500 grams or more of methamphetamine. However, Mastrapa had consistently denied that he had any real part in the conspiracy and was nabbed with the meth while helping two strangers (the other co-conspirators) carry some grocery bags into their hotel room. At the guilty plea hearing, Mastrapa brought this up, but the district court relied on a DEA affidavit submitted by the Government as a factual basis to accept the plea. The same issue arose at sentencing, where Mastrapa's counsel suggested that the guilty plea had been an Alford plea. The district court sentenced Mastrapa to the mandatory minimum 120 months in prison.

On appeal, Mastrapa's counsel initially filed an Anders brief. Noting concerns about the guilty plea, the Fourth Circuit requested briefing on the issue and appointed new counsel. After arguments the court concluded that the district court plainly erred by finding that there was a factual basis to support Mastrapa's guilty plea. The court concluded that Mastrapa essentially denied the mens rea element of the conspiracy charge and that it was not proven by the affidavit on which the district court relied.

Court Addresses Prior Convictions in Travel With Intent Case

US v. Kelly: Kelly was a long-haul trucker who routinely hauled loads between North Carolina and the Midwest. He frequently stopped at a truck stop in Charleston, West Virginia, where he became associated with a prostitute named Carder. Over the course of several visits, Carder alleged that Kelly wanted her to procure a young girl with which he could have sex. Carder took these allegations to the local police, with whom she was familiar from various legal problems. Eventually, when Kelly stopped in Charleston on a haul, Carder took money from him to procure the child, in a transaction that produced an audio recording. Kelly was arrested and charged with interstate travel with intent to have sex with a minor. At trial, the Government introduced evidence that Kelly had been convicted of attempted rape of a 12 year old in 1984. Meanwhile, Kelly was not allowed to impeach Carder with a prior conviction from Florida for passing a worthless check. Kelly was convicted and sentenced to 63 months in prison.

On appeal, the Fourth Circuit upheld Kelly's conviction and sentence. First, the court held that the district court properly admitted Kelly's prior conviction under FRE 414 and that it was not unduly prejudicial under FRE 403. Second, the court held that not allowing Kelly to introduce evidence of Carder's prior conviction, if it was error at all, was harmless given the other myriad ways that Carder was impeached at trial. Third, the court rejected Kelly's argument that the evidence was insufficient to prove that his intent to when he traveled to West Virginia on that particular trip was to have sex with a minor. Finally, the court stepped in line with the rest of the Circuit Courts and held that no actual child victim is necessary to sustain a conviction for interstate travel with intent to have sex with a minor. The court also concluded that Kelly's sentence was reasonable.

Wednesday, December 05, 2007

Plea Agreement Bars Subsequent Prosecutions

US v. Jordan: Jordan and co-defendant Gordon were convicted by a jury of conspiring to commit multiple drug, firearm, and murder offenses arising from the killing of a drug courier (the defendants "forcibly abducted [the victim], took him to another location, and set him on fire."). The conspiracies allegedly took place between 2002 and 2004. Prior to trial, Gordon, moved to dismiss the indictment against him because it was barred under a plea agreement he entered into with the Government in 2002. The district court denied that motion. It also overruled both defendants' objections to the use of hearsay testimony from a deceased co-conspirator during trial.

On appeal, the Fourth Circuit reversed as to Gordon but affirmed Jordan's convictions.

As to Gordon, the court concluded, 2-1, that the 2002 plea agreement barred his prosecution. The agreement was ambiguous as to whether its non-prosecution provision applied only to crimes committed by Gordon at that time or any conduct in which he was engaged. Construing the ambiguity against the Government, the court held that it applied to all conduct, which included the charged conspiracies in the instant case. Therefore, Gordon's convictions were vacated. District Judge Wilson, sitting by designation, would have remanded for further proceedings to determine if extrinsic evidence would show a "mutually agreed upon meaning" to the ambiguous language.

As to Jordan, the statements at issue were made by a co-conspirator who was involved in the murder setup to a friend with whom she lived for a while afterwards. The court held that the statements were not barred under Crawford because they were not testimonial because the co-conspirator would not have reasonably believed her friend would eventually testify about those statements in court. In addition, the court concluded that the statements were admissible as statements against penal interest because they related to the co-conspirator's role in the crime.

Hospital Questioning Not "Custodial"

US v. Jamison: Jamison was driven to the hospital by two friends. When he arrived, he told a police officer hanging around near the front door that he'd been shot. While he was being treated for his wound, Jamison was questioned by that officer regarding how he got shot. The officer had Jamison's hands bagged so they could be tested for evidence of gun shot residue. A detective, who responded to the hospital after word of a shooting had gone out, then questioned Jamison about what happened. Jamison told a different story than he originally told the officer. The detective then examined Jamison's wound and clothing and concluded that they did not match up with Jamison's story. After further questioning, Jamison eventually admitted that he shot himself. He was charged with being a felon in possession of a firearm.

Prior to trial, Jamison sought to suppress his statements at the hospital because he had never been given Miranda warnings while being questioned in police custody. The district court agreed and suppressed the statements. The Government appealed.

On appeal, the Fourth Circuit reversed. The court held that there was no requirement that Jamison be given Miranda warnings because he was never "in custody" of the police. Instead, the restraints on Jamison's liberty that allowed him to be questioned were ones directly related to medical treatment that he sought ("Absent police-impose restraint, there is no custody."). Furthermore, the questioning by police was the type that a reasonable person would expect to occur when he reports that he has been the victim of a violent crime. As for the bagging of the hands, the officer testified that it was a routine procedure done to both potential victims and perpetrators of shootings.

Friday, November 16, 2007

South Carolina Youthful Offender Sentence Is "Serious Drug Offense" Under ACCA

US v. Williams: Williams pleaded guilty to being a felon in possession of a firearm. In the PSR, the probation officer recommended that Williams be treated as an Armed Career Criminal because of three prior qualifying convictions. Williams did not dispute the convictions, but argued that a prior South Carolina drug conviction, for which he was sentenced under the Youthful Offender Act, did not meet the definition of "serious drug offense" in the ACCA, because the maximum term to be served as a Youthful Offender is six years in prison. The district court disagreed and sentenced Williams to 180 months in prison.

On appeal, the Fourth Circuit affirms. The court notes that the ACCA's definition of "serious drug offense" includes only those drug offenses with a statutory maximum penalty of more than 10 years in prison. The South Carolina statute under which Williams was previously convicted provides for a maximum sentence of 15 years. However, if the court exercises its discretion under the Youthful Offender Act, the maximum sentence is only six years. The Fourth Circuit concluded that, for ACCA purposes, the maximum potential sentence was the 15-year term in the violated statute, not the six-year Youthful Offender term. The Youthful Offender designation is entirely discretionary on the state sentencing court's part and the plea colloquy in Williams's case showed that the court could have declined that designation. Therefore, the maximum sentence to which Williams was exposed by that conviction was 15 years, making it a serious drug offense under the ACCA.

Thursday, November 15, 2007

Court Upholds Convictions, Sentences In Large Drug Conspiracy Case

US v. Foster: Foster, Moses, and Taylor were all involved in a massive conspiracy to sell drugs in West Baltimore (the statement of facts makes it sound exactly like something out of Homicide: Life on the Street or The Wire). The conspiracy lasted for three years and included multiple murders and a kidnapping. In the end, all three defendants were convicted at trial of conspiracy to distribute more than 50 grams of crack. Foster was also convicted of witness tampering, a 924(c) violation, and carjacking; Moses of three counts of murder in relation to a drug trafficking crime and one 924(c) violation; and Taylor of one count of murder and one count of witness tampering. All three were sentenced to life in prison on the conspiracy count, with concurrent sentences imposed for the other offenses, including life on the murder charges (the jury after the capital sentencing phase recommended life rather than death).

On appeal, the defendants raise many issues that were quickly rejected by the Fourth Circuit. First, the court rejected the argument that the Government, through a statement during closing argument, constructively amended the indictment to widen the scope of the charged conspiracy. Second, the court rejected a claim by Taylor and Moses that the district court's response to a jury question during deliberations regarding who they could have aided and abetted with in relation to one of the murders. Third, the court rejected sufficiency of the evidence arguments raised by all three defendants. Finally, the court rejected the argument that the district court erred by only having the jury determine the amount of drugs attributable to the conspiracy as a whole, rather than to each defendant specifically.

Friday, November 09, 2007

Identity Evidence Suppressable

US v. Oscar-Torres: Oscar-Torres was arrested as part of a project to round up illegal immigrants who were also alleged gang members. It went like this:
On July 22, 2005, ICE agents and Raleigh police officers went to the Fox Ridge Manor apartment complex in Raleigh, the last known address of a number of suspected gang members. Several teams of officers went to individual apartments seeking to arrest specific gang members. One team stationed itself at the only entrance to the complex and stopped all vehicles entering and leaving in order to question the occupants.

The officers stationed at the entrance stopped and questioned Oscar-Torres, among others. In response to their questions, he admitted to being an illegal alien and, at their request, lifted his shirt to display a tattoo that they believed signified gang membership. Without a warrant, the officers then arrested Oscar-Torres and transported him to ICE headquarters . . ..
There he was fingerprinted and interrogated (sans Miranda warnings), during which it was discovered that Oscar-Torres had been previously deported for entering the country illegally. He was charged with illegal reentry.

Prior to trial, Oscar-Torres moved to suppress the evidence against him that was secured as a result of his arrest, including his statements and the fingerprints. The district court concluded that the arrest was illegal and ordered Oscar-Torres's statement suppressed. However, the court refused to suppress the fingerprints, holding that evidence of identity could never be suppressed.

On appeal, the Fourth Circuit reversed. It noted that there was a split in the circuits (and within the Ninth Circuit, apparently) on the issue of whether evidence of identity could be suppressed, stemming from different interpretations of language in INS v. Lopez-Mendoza, 468 US 1032 (1984). The Fourth Circuit adopted the view that the language in Lopez-Mendoza only stands for the proposition that courts are not deprived of jurisdiction over a defendant because of an illegal arrest. It therefore reversed the district court's blanket rule and remanded for further proceedings. On remand, the court is to examine whether the fingerprints were taken with investigatory purposes in mind (not OK) or as part of the administrative arrest/booking process (OK).

Wednesday, September 12, 2007

Photo Array Impersmissibly Suggestive, but ID Still Reliable

US v. Saunders: Saunders and two other men robbed a liquor store in Baltimore. After they fled the store, the van in which they made their getaway was stopped by police. Saunders got out of the van and fled. As he exited the van, a gun dropped to the ground by the vehicle. During the ensuing chase, Saunders was seen throwing away what appeared to be other weapon. Once Saunders was apprehended, police recovered three pistols - two from the scene near the van and one from along Saunders's route of flight. Officers brought the store clerk to the police station, where he was shown photo arrays containing pictures of the suspects. He identified Saunders, but not the other suspect then in custody. The photo array in which Saunders picture was displayed contained six pictures - the five not of Saunders were all shot against a light background with overhead lighting, whereas Saunders's picture was not. As a result, his photograph was darker than the others in the array.

Burton was charged with being a felon in possession of a firearm for possession of all three pistols recovered on the night of the robbery. Prior to trial, he moved to suppress the clerk's identifications, both from the photo array and in court, because the array was so suggestive that it violated his right to due process. The district court denied that motion and the jury convicted him. After receiving a four-level enhancement for possessing the firearm(s) in connection with another felony offense (the robbery), Saunders was sentenced to 120 months in prison.

Saunders unsuccessfully raised several arguments on appeal. First, the court agreed with the argument that the photo array was impermissibly suggestive, both because Saunders's picture looked so different from the other pics in the array and the police failed to follow their own internal policies regarding arrays (to tell the witness that the suspect may or may not be in the array, etc.). However, the district court did not err in failing to suppress the identification because, after applying five factors to determine the reliability of an out-of-court identification, the court held that the identification in this case was reliable. Second, the court rejected Saunders's argument that the failure of the district court to provide a special verdict form on which the jury could indicate which (if any) of the three pistols Saunders possessed was error, noting that the jury instructions overall were sufficient. Finally, the court rejected Saunders's sufficiency arguments regarding his conviction and the four-level sentencing enhancement.

Thursday, September 06, 2007

Defendant Cannot Withdraw Plea "Provisionally" Accepted by District Court

US v. Battle: Battle was charged with being a felon in possession of a firearm and decided to plead guilty. At his guilty plea hearing, the district court "provisionally accepted" Battle's guilty plea "pending receipt" of the PSR. The district court deferred "final acceptance" of the plea agreement and "final adjudication of guilt" until the parties reviewed the PSR. Battle moved to withdraw his plea after reviewing the PSR based on the high sentence recommended therein. The district court denied the motion under Rule 11's "fair and just reason" standard and imposed the Guideline minimum and statutory maximum sentence of 120 months.

On appeal, Battle argued that the district court applied the wrong standard to his plea withdrawal motion because the plea had not actually been accepted at the time he made the motion. Noting this was a case of first impression in the Fourth Circuit, the court, 2-1, rejected Battle's argument. The court held that the district court accepted Battle's guilty plea at his plea hearing, provisional language notwithstanding, noting that under Rule 11 pleas are "inherently conditional" and not final until sentence is imposed. Allowing withdrawal for any reason would undermine the importance of the plea colloquy. Judge Gregory dissented, arguing that the district court's clear language at the plea hearing showed that the plea had not been accepted and thus Battle had the right to withdraw it for any reason prior to sentencing.

The court also rejected several minor sentencing arguments made by Battle.

Thursday, August 23, 2007

Raw Data from Computer Tests Not "Statements" Subject to Confrontation

US v. Washington: Washington was pulled over on the Baltimore-Washington Parkway (over which the Government has jurisdiction) and charged with driving under the influence of alcohol and drugs and reckless driving. At trial, the Government presented expert testimony from the head of a local toxicology laboratory that a blood sample taken from Washington that night showed he had consumed PCP and alcohol. Washington objected to that testimony, arguing that the raw data reports of the drug testing upon which the doc relied were testimonial hearsay statements of the technicians who actually performed the test and Washington was entitled to confront them. The court disagreed and Washington was convicted.

On appeal, the Fourth Circuit affirms, 2-1. The court held that, to the extent that the raw data upon which the witness relied were "statements" at all, they were statements of the equipment and computer program that actually performed the testing, not the technicians who ran the tests. Because the equipment were not "persons," they could not produce "statements" within the meaning of the Rules of Evidence. Cross examination of the technicians would have been pointless, as they had no testimony to offer regard what the raw data actually meant. Dissenting, Judge Michael argued that the test results were statements of the technicians (because they were produced via human inputs), that they were testimonial, and that whether their cross examination would prove useful is a decision for the defendant, not the court, to make.

Potential Federal Criminality Produces Sufficient Nexus for Witness Tampering

US v. Harris: Codefendants Harris, Royal, and Smith were involved in a firebomb attack on the home of a community activist in Baltimore. The woman, a long time resident of the neighborhood, had begun providing information to Baltimore police regarding drug dealing in the area. As a result, she was subjected to a pattern of harassment that culminated with a firebomb attack on her home. Harris, Royal, and Smith were charged and convicted of, among other things, witness tampering and conspiracy to commit witness tampering.

The main issue at trial, and the crux of the defendants arguments on appeal, was whether there was a sufficient nexus between the information provided by the victim, the attempt to silence her, and a federal investigation. The district court rejected arguments that the Government, so secure convictions for witness tampering, was required to prove that the victim had or was likely to contact federal authorities. On appeal, the Fourth Circuit did the same. First, the court held that it was sufficient that the information provided by the victim concerned a potentially federal offense - drug trafficking - even though she never communicated directly with federal authorities. Second, the court held that the Government was not required to prove that the defendants specifically intended to prevent the communication of information to federal officers, so long as the information related to a potential federal offense.

The court also rejected arguments that Royal and Harris's trial should have been severed from Smith's because of the introduction of a gang video in which Smith appeared and that the prosecution engaged in improper rebuttal closing argument.

However, the court did vacate Smith's sentence because the district court failed to sufficiently justify its variance from the top of the advisory Guideline range (773 months) when imposing his 960-month sentence.

Tuesday, August 07, 2007

Failure to Recogzie Justification Defense to 922(g) Charge is Ineffective Assistance of Counsel

US v. Mooney: Mooney was a convicted felon. One night, after returning home from work at a nearby bar in Huntington, West Virginia Mooney found himself in a room with his ex-wife (with whom he shared the home), who was putting a gun to his head. Mooney's ex had (as the court put it) "a propensity to brandish and shoot guns at the men in her life," having previously shot another husband, shot at a boyfriend, and brandished a gun at Mooney on a prior occasion. Mooney took the gun away from his ex and called his boss at the bar to let him know he was bringing the gun to the bar in order to turn it in to the police. Mooney then tried twice to call 911, but his ex disconnected the calls. As he left the house, she ripped his shirt off and yelled at him that he was going to jail. Mooney escaped and made it to the bar. The police arrived shortly thereafter. Mooney turned the gun over to the police and was arrested.

Mooney was charged with being a felon in possession of a firearm. He pleaded guilty, after his attorney told him that there was no defense to his possession of the gun, even though he "did the right thing." At sentencing, Mooney moved to withdraw his plea, but the district court denied his motion after his attorney asserted (and the court agreed) that there was no justification defense available. Mooney was sentenced to 180 months in prison. His conviction and sentence were affirmed on appeal. Mooney they filed a habeas petition alleging ineffective assistance of counsel. The district court denied that petition, holding that Mooney could not claim justification for the offense once he carried the gun outside the home.

On appeal, the Fourth Circuit reversed. In doing so, it recognized a fact pattern that would support a justification defense for a felon-in-possession charge. The court held that Mooney's counsel was ineffective because the Fourth Circuit law at the time of Mooney's plea was clear that justification was, in theory, available as a defense in such cases and had been specifically recognized by other courts. The court also held that Mooney was prejudiced by counsel's deficient performance, noting that it was clear Mooney would not have pleaded guilty had he been properly informed of the law and that, as presented in the habeas proceeding, Mooney would be entitled to present the justification defense to a jury.

Mooney's conviction was vacated, and the case remanded to allow Mooney to withdraw his guilty plea.

Monday, August 06, 2007

Court Affirms Life Sentence for Witness Tampering Conviction

US v. Ruhbayan: Ruhbayan's case deals with sentences imposed following convictions for perjury, subornation, conspiracy and witness tampering. Ruhbayan was previously charged with drug conspiracy and using a firearm in connection with that offense. At that trial, Ruhbayan's girlfriend, Goodman, testified on his behalf in a generally exculpatory way. The jury believed her and he was acquitted of the most serious offenses (he was convicted on some misdemeanors). Sometime after that proceeding, Goodman was charged with firearm charges based on what she said in her testimony at Ruhbayan's trial. She cracked and admitted that she lied at Ruhbayan's trial at his behest. As a result, Ruhbayan was then indicted and ultimately convicted of perjury, subornation of perjury, conspiracy and witness tampering.

At sentencing, the district court found that the witness tampering offense related to an underlying charge that carried a life sentence (the original 924(c) count) and accordingly sentenced Ruhbayan to life in prison on that count, along with concurrent 60-month terms on the other charges. On appeal in 2005, the court upheld Ruhbayan's convictions, but remanded for resentencing in light of Booker. At resentencing, the district court imposed the same sentences.

On appeal, Ruhbayan first argued that the enhancement of his maximum sentence on the jury tampering count from 10 years to life violated the Sixth Amendment because it relied on a fact - that the tampering occurred in a criminal prosecution - not charged in the indictment. The Fourth Circuit disagreed, holding that the indictment and subsequent jury instructions were sufficient to trigger the enhancement and not run afoul of the Sixth Amendment. Next, Ruhbayan argued that the district court improperly calculated his advisory Guideline range due to (1) improper calculation of drug amounts for the underlying conspiracy offense, (2) an improper upward departure due to an understated criminal history, and (3) an improper upward departure for the offense level based on the Guidelines' failure to properly address his conduct. The court rejected all those arguments. Finally, the court held that Ruhbayan's sentence, having been within the range available under the Guidelines, was reasonable.

Minor Victim's Statements to Fellow Plane Passengers are Excited Utterances; Government Need Not Prove Defendant Knew Age of Victim

US v. Jennings: Jennings was convicted of abusive sexual conduct with a minor based on his actions on a flight from San Diego to Dulles, during which he hit on, groped, and fondled a 13 year old girl. On appeal, Jennings made several arguments regarding his trial, which were rejected by the Fourth Circuit.

First, Jennings argued that the district court erred by admitting into evidence the testimony of two other passengers on the flight who recounted allegations the victim made against him during the flight. The court held that the statements were properly admitted as excited utterances under FRE 803(2) and rejected Jennings argument that the five minutes that passed between the alleged events and the victim's recitation of them to another passenger gave her sufficient time to reflect upon her statements. Second, Jennings argued that the Government was required to prove (and failed to do so) that he knew the victim was between 12 and 16 years of age. Applying plain error review (Jennings first raised the issue in a motion for a new trial), the court found there to be no error, plain or otherwise, based on the language of the statute. Finally, Jennings argued that the district court erred by giving the jury a deliberate ignorance instruction. The court held that the district court did not abuse its discretion in giving that instruction.

Thursday, July 26, 2007

851 Information Filed Between Jury Selection & Opening Statements Not Plain Error

US v. Beasley: Beasley was charged with conspiracy to distribute more than 50 grams of crack and possession with intent to distribute more than 5 grams of crack. Jury selection took place on January 6, 2004. However, the jury was not sworn and opening statements didn't take place until three weeks later. In the interim, the Government filed an information pursuant to 21 USC 851, increasing Beasley's potential maximum sentence from 5 to 40 years up to 10 years to life. Beasley was convicted, found to be a career offender, and sentenced to 408 months in prison.

On appeal, for the first time, Beasley argued that the 851 motion was not timely filed. Section 851 requires that the information be filed "before trial, or before entry of a plea of guilty." Beasley argued that the trial began when the jury was selected on January 6, before the information was filed. He also argued that the 851 information is a jurisdictional requirement and therefore the issue was not subject to plain error review.

The Fourth Circuit rejected Beasley's arguments. First, it concluded that the 851 information was not jurisdictional, holding that it merely allows for increased punishment and does not confer on the district court any additional jurisdictional authority beyond 18 USC 3231. Proceeding to plain error review, the court held the term "before trial" is ambiguous and that, without any controlling precedent discussing the issue, any error (if there was one) is certainly not plain. Notably, the court does not go on to resolve the issue of whether there actually was an error in the first place. The court also briefly disposed of two evidentiary issues raised by Beasley.

Thursday, July 12, 2007

Illegal Reentry Conviction Upheld Against Fourth Amendment, STA Challenges

US v. Soriano-Jarquin: Soriano-Jarquin was a passenger in a van that was stopped along I-95 in Virginia due to a defective headlight. While citations were being prepared on the headlight and other violations, a state trooper asked to see the identification of the dozen passengers in the van. It became apparent that the passengers did not speak English and the trooper suspected they were illegal immigrants. He was right, as discovered by an ICE agent shortly thereafter. Of the bunch, Soriano-Jarquin has been previously deported for illegal entry (a month prior in Arizona) and was therefore arrested for illegal reentry.

What happened next is best tucked in the "go see your client before the prelim" file:
At a preliminary hearing before a magistrate judge on May 17, 2005, the government mistakenly produced an individual named Francisco Almaraz Soriano, rather than the defendant, Francisco Soriano-Jarquin. At the time, no one alerted the court to the error. On the stand, ICE Special Agent Jason Fulton identified the individual present as Francisco Soriano-Jarquin, though upon cross-examination Fulton stated that he could not be sure the individual was Soriano-Jarquin. The judge found probable cause to hold Soriano-Jarquin.
Soriano-Jarquin was later indicted for the same offense, although the body of the indictment named another defendant (not even Almaraz Soriano). It was dismissed, without prejudice, and a new indictment obtained the same day. Soriano-Jarquin then moved for a dismissal pursuant to the Speedy Trial Act, arguing that the second indictment was not timely filed. The district court rejected that motion, as well as Soriano-Jarquin's motion to suppress evidence obtained during the stop of the van. A jury convicted Soriano-Jarquin of illegal reentry.

On appeal, the Fourth Circuit rejected all of Soriano-Jarquin's arguments. First, the court rejected the argument that the trooper violated the Fourth Amendment by asking to see the identification of the van's passengers, noting that such a request is part of a legitimate traffic stop and is related to officer safety. In addition, the request in this case did not prolong the stop. Second, the court held that the mistake of not having Soriano-Jarquin at his own preliminary hearing was not fatal to the prosecution, because he failed to timely raise the issue and the later-filed indictment essentially mooted any problems with the prelim. Third, the court rejected the claim that the prosecution violated the Speedy Trial Act because of the problems with the initial indictment, noting that an incorrect indictment is not the same as the "no indictment" required for dismissal under the STA. Finally, the court rejected the argument that the district court erred by not allowing Soriano-Jarquin to call an ICE agent to testify after Soriano-Jarquin failed to follow the proper regulatory procedures to secure that testimony.

Thursday, July 05, 2007

Court Affirms Use of Testimony from Co-conspirator ID'd by Defendant

US v. Sweets: Sweets (yes, that's his real name) was convicted at trial of conspiracy to distribute 50 or more grams of crack and conspiracy to possess a firearm in connection with a drug offense. At issue in his appeal were two interactions with police that Sweets claimed violated his constitutional rights. First, police came to Sweets' home looking for another man, Long, who was a suspect in a murder investigation. Sweets first denied knowing where Long was hiding, but after police threatened to have everyone locked up (Sweets, his girlfriend, etc.), Sweets agreed to lead police to a hotel where Long was hiding. Once arrested, Long provided testimony against Sweets regarding his role in the drug conspiracy. Second, Sweets gave a statement to police after he was arrested which he claimed was taken after he requested a lawyer and before he was Mirandized. The district court rejected both of those claims.

On appeal, the Fourth Circuit affirmed. With regard to the Long location and testimony, the court assumed arguendo that Sweets's cooperation in locating Long was coerced. Nevertheless, there was no Fifth Amendment violation because Sweets's act did not provide "incriminate Sweets in any real and substantial way," and, in any regard, was not actually used against him at trial. Long's actual testimony was sufficiently attenuated from the coercion to be admissible. With regard to the Miranda issue, the court affirmed the district court's factual findings that Sweets was given Miranda warnings both before an initial statement was given and then again before he repeated the statement on tape.

Judge Michael and District Judge Goodwin (SDWV) concurred separately, refusing to join in the court's use of a "substantial incrimination" standard, but agreeing that Long's testimony was appropriately admitted.

Tuesday, July 03, 2007

No Suppression of Testimony Following Illegal Search; Proper to Look to Sentencing Facts in Suppression Review

US v. Gray: Gray and Askew were at Gray's apartment in Huntington when police arrived to conduct a "knock and talk." When Gray refused them entry into the apartment, they pushed their way in anyway, discovering Askew inside along with drugs, money, and other paraphernalia. Based on what they saw, police obtained a warrant and conducted a more thorough search. While the search was in process, two people came to the apartment to buy drugs. They were intercepted by police. One of them gave a statement at that time, while the other gave a statement to police several months later - both implicating Gray and Askew in a scheme to sell crack. Askew and Gray both filed motions to suppress. The district court denied Askew's based on lack of standing to object to the search of Gray's apartment. As to Gray, the district court granted the motion with regards to the physical evidence found in the apartment, but refused to suppress the statements of Askew or the two folks who showed up at the apartment. Askew and Gray pleaded guilty, reserving their rights to appeal the search issues.

On appeal, the Fourth Circuit affirmed the district court's rulings, 2-1. First, the court held that Askew did not have standing to object to the search of Gray's apartment. Applying Minnesota v. Carter, 525 U.S. 83 (1998), the court held that Askew was more of a business visitor than social guest and therefore lacked any standing in Gray's apartment. Although the court reached that conclusion based on the evidence adduced at the suppression hearing, the court engaged in a lengthy review of Askew's sentencing proceedings, finding "confirmatory" information to support its conclusion. The court likened sentencing information to evidence produced during trial, which courts have traditionally utilized when resolving suppression issues.

Second, the court agreed with the district court that the statements of the two drug seekers and Askew should not be suppressed. As to the two drug seekers, the court held that the illegal search was not a "but-for cause of their" statements, but that it was "pure happenstance" (or stupidity, take your pick) that they came to Gray's apartment while the police were there. Regardless, their statements were given of their own free will, free from coercion (even though one of them failed to appear to testify pursuant to a subpoena). As to Askew's statements, the court held that he was not coerced into cooperated with the police, even though he was forced to cooperate due to the evidence seized during the illegal search of Gray's home (because Askew lacked standing to challenge the search).

Judge Michael unleashed a fiery dissent, disagreeing with the majority on just about everything. The dissent particularly takes issue with the majority's exploration of Askew's sentencing proceedings for evidence to support the denial of suppression, even though the majority admits it need not do so. Judge Michael calls such an approach "unprecedented." The dissent also substantively disagreed with the majority's conclusion as to Askew's standing to object to the search and the suppression of Aksew's statements in Gray's prosecution (no mention is made of the two drug seekers).

Friday, June 29, 2007

Appeal Waiver Does Not Excuse Counsel's Failure to File Appeal

US v. Poindexter: Poindexter pleaded guilty to three counts of distribution of heroin after beginning trial. He entered into a plea agreement with the Government in which other charges were dropped, the parties agreed on the amount of drugs attributable to Poindexter, and Poindexter waived his right to appeal his sentence unless the district court upwardly departed or imposed a sentence above the statutory maximum. Poindexter received a sentence within the Guideline range and did not appeal. A few years later, Poindexter files a habeas petition under 2255 alleging ineffective assistance of counsel. Specifically, he argued that he told his trial attorney to file an appeal and the attorney did not do so. The district court denied Poindexter's claim because of the plea agreement appeal waiver.

On appeal, the Fourth Circuit reversed. Applying Roe v. Flores-Ortega, 528 U.S. 470 (2000), the court held that when a defendant tells his attorney he wants to file an appeal, the attorney is under a duty to do so. Because the district court failed to hold a hearing to determine whether Poindexter actually made such a demand, the case required remand. The court rejected the Government's argument that the appeal waiver had any effect on that holding, noting that such waivers do not prevent the filing of appeals and the Government is free to rely upon it when fighting the appeal.

Thursday, June 28, 2007

Forcible Rape Conviction Does Not Preclude Enhancement for Restraint of Victim

US v. Johnson: Johnson and other man rapped a woman on a naval base. He pleaded guitly to two counts of aggravated sexual abuse. At sentencing, his offense level was enhanced by two levels under USSG 3A.13 for physical restraint of the victim. He argued that physical restraint was already taken into account by the Guideline for his offense, 2A3.1(b)(1), which included a four-level increase for forcible rape. The district court disagreed, and sentenced Johnson to 188 months in prison.

On appeal, Johnson raised the same issue, which the Fourth Circuit rejected. Noting that the two-level restraint enhancement does not apply when such restraint is an element of the offense itself. The court concluded that the offense to which Johnson pleaded guilty, 18 USC 2241(a)(1) includes "force" an element, but not restraint. Specifically, while restraint of the type involved in this case can constitute force under 2241(a)(1), force may include various other actions which would not be considered restraint.

Monday, June 25, 2007

Court Upholds Wire Fraud Convictions

US v. Allen: Allen and his codefendant Reinhardt were involved in a fraud scheme in which they would provide "loans" to businesses that were structured as lease agreements for equipment (computers, etc.) that was never actually delivered. They were each convicted of multiple counts of wire fraud.

Both defendants made several unsuccessful arguments on appeal challenging their convictions. First, they both argued that the evidence against them was insufficient to support their convictions, primarily because the scheme itself was masterminded by someone else (it's unclear whether he was charged). The court rejected that argument, holding that the evidence of Allen and Reinhardt's guilt was overwhelming. Second, they argued that the district court erred by omitting a paragraph of the jury instructions on intent when providing the written summary to the jury. The court rejected that argument as well, holding that the omitted language was repeatedly told to the jury during oral instructions. In addition, Allen argued that his trial should have been severed from Allen's due to the use at evidence of corporate documents produced under subpoena by Reinhardt (thus preventing cross examination) and due to Reinhardt's trial strategy. First, the court held that the documents at issue were not statements by Reinhardt, as the jury was never told who produced the documents. Second, the court held that the defense theories of the two defendants were the same, although Allen sought to prove the defense with positive evidence, while Reinhardt relied on the Government's failure of proof. Therefore, severance was not necessary. Finally, the court rejected an argument that the district court erred by requiring the defense to provide argument regarding potential cross examination of a witness to the court and, later, to the Government, noting that neither defendant alleged any prejudice from the decision.

Reinhardt also made several arguments that his sentence was improperly calculated and imposed, which were dismissed by the court in summary fashion.

Wednesday, May 30, 2007

Court Upholds Conviction in Bank Robbery (Using Gasoline) Case

US v. Midgett: How's this for a statement of facts:
Around 12:30 on the afternoon of October 19, 1999, J.W. Shaw, a construction worker, was sitting in a van eating lunch at his worksite in Charlotte, North Carolina, when another van pulled up on his driver’s side. Defendant Paul Midgett was the driver of this second van, and his girlfriend, Theresa Russell, was a passenger. Midgett emerged from his van, walked over to Shaw, doused Shaw with gasoline from a large fast-food drink cup, and demanded that Shaw hand over his wallet. Shaw complied with this demand, but Midgett nonetheless proceeded to ignite the gasoline, setting Shaw on fire. Shaw suffered burns that caused him to be hospitalized and miss between six and seven weeks of work.

After fleeing the scene of the attack on Shaw, Midgett and Russell decided to rob a bank. They stopped at a gas station and filled an empty Dr. Pepper soda bottle with gasoline. Midgett and Russell then drove to a BB&T bank branch in Indian Trail, North Carolina. Midgett told Russell that he planned to enter the bank, demand money from a teller, and, if his demand was refused, douse the teller with gasoline and ignite it.
Midgett carried through with the bank robbery plan, making off with approximately $3000. He was tried and convicted on charges of malicious damage to property used in interstate commerce resulting in personal injury (Count 1), bank robbery by force or violence (Count 2), and putting in jeopardy the life of another by use of a dangerous weapon or device in committing a bank robbery by force or violence (Count 3). On the malicious damage charge he received a sentence of 360 months, with concurrent life sentences on the other two counts.

Midgett made several arguments on appeal, challenging both his conviction and sentences, which were all save one briefly dealt with and rejected by the Fourth Circuit.

The court rejected Midgett's arguments that the district court erred when it (1) denied his pretrial request to plead guilty to Count 2, (2) denied his motion for judgment of acquittal on Count 3, (3) allowed him to be placed in leg restraints during his trial, (4) denied his request for injections of the painkiller Nubain (even though medical science says the condition Midgett claimed to have did not cause pain), (5) excluded from evidence an exculpatory letter allegedly written by his coconspirator and onetime girlfriend and limiting the use of other letters also purportedly written by her to impeachment, (6) limited the direct examination of Midgett; (7) limited Midgett’s cross-examination of his girlfriend, and (8) acted out of bias against Midgett.

As to sentences, court rejected Midgett’s argument that the district court erred in declining to continue his sentencing hearing and contravened his constitutional rights in enhancing his sentences on Counts 2 and 3 based on his prior convictions. However, the court did agree that the district erred in imposing separate sentences on Counts 2 and 3, as one was a lesser included offense of the other, vacated the sentences on those counts, and remanded for resentencing.

Thursday, May 17, 2007

Lenient Sentences for Tax Protestors Vacated

US v. Baucom: Baucom and his codefendant ran a land surveying and computer consulting business. Between 1990 and 2002, they filed neither personal nor business related tax returns. Why? Because they're tax protestors. Their beliefs regarding the constitutionality of the tax system led to multiple pretrial delays as they unsuccessfully tried to find counsel willing to put forward those arguments. The district court eventually ran out of patience. Baucom and chum proceeded pro se and were convicted. At sentencing, they were granted credit for acceptance of responsibility and their failure to pay state income taxes were excluded from relevant conduct calculations. In addition, the district court imposed sentences below the advisory Guideline range on the theory that there was little deterrent impact for tax protestors when long sentences were imposed.

Both sides appealed. Baucom and colleague appealed their convictions, arguing that they were denied their Sixth Amendment right to counsel. The Fourth Circuit made quick work of that argument, noting the lengths to which the district court went to ensure that they had time to find counsel and the offers to appoint counsel.

The Government appealed the sentences, both on Guideline calculation grounds and as to the reasonableness of the sentences imposed. On the Guideline issues, the Fourth Circuit concluded that the district court had erred in two ways. First, the district court improperly excluded the North Carolina taxes Baucom and his codefendant failed to pay during their scheme, noting that they were "part of the same course of conduct or common scheme or plan" as their failure to pay federal taxes. Second, the court concluded that the district court should not have awarded Baucom and codefendant credit for acceptance of responsibility, based on their obstructive behavior and factual arguments made during trial. Finally, the court, while not reaching the issue directly, rejected the district court's argument about deterrence, noting that the Guideline commentary specifically emphasizes deterrence in tax cases due to the low number of prosecutions.

Friday, May 11, 2007

Upward Variance for Steroid Scheme Upheld

US v. Shortt: Shortt was a South Carolina doctor who ran a 7-year scheme in which he provided steroids and human growth hormone to athletes (including some of the Carolina Panther, apparently). In addition to providing the substances, he helped craft means by which the use of those substances could be hidden from officials and testers. Charged in a 43-count indictment with conspiracy and substantive distribution charges, Shortt eventually pleaded guilty to the conspiracy charge. Shortt's Guideline calculations produced an advisory range of 0-6 months. At sentencing, the Government moved for an upward variance, arguing that the Guidelines did not adequately address Shortt's conduct (there is no Guideline dealing with human growth hormone, for instance). The district court agreed and sentenced Shortt to 12 month and 1 day in prison.

On appeal, Shortt argued that his sentence was unreasonable. The Fourth Circuit disagreed, upholding the district court's findings regarding the scope and seriousness of Shortt's offense and his general lack of contrition (in spite of getting credit for acceptance of responsibility). Along the way, the court makes some bold statements about the purposes of sentencing and the proper consideration of sentences (as Doug Berman highlights here).

Post-Arrest Distribution in Jail Not Relevant Conduct

US v. Dugger: Dugger was charged with distribution of crack based on a controlled buy made in Huntington, West Virginia. Denied bond, he was shipped to Carter County, Kentucky. While there, he joined with other inmates and guards to bring in and distribute marijuana and Xanax. The scheme was detected and Dugger freely admitted his role in it. There is no indication that he has been charged with an offense related to that conduct. At sentencing, Dugger was denied credit for acceptance of responsibility due to his participation in the Carter County scheme. He was also assessed a two-level enhancement under USSG 2D1.1(b)(3) because "the object of the offense was the distribution of a controlled substance in a prison . . .." He received a sentence of 121 months, the bottom of the advisory Guideline range.

On appeal, Dugger made two arguments. First, he argued that this Carter County conduct did not support denying him credit for acceptance of responsibility because it was unrelated to his offense of conviction and he admitted his responsibility for that conduct. The Fourth Circuit quickly rejected that argument, noting that post-arrest drug dealing hardly shows that someone charged with distribution of crack has accepted responsibility for his actions. Second, Dugger argued that the 2D1.1(b)(3) enhancement was not applicable because the Carter County conduct was not related to the offense of conviction. The Fourth Circuit agreed, concluding that the Carter County scheme was not part of the relevant conduct of the crack distribution charge. Dugger's sentence was vacated and remanded for further proceedings.

Congrats (again) to CJA panel member Troy Giatras on the win.

Tuesday, May 08, 2007

Look-a-Like Drug Conviction = Controlled Substance Offense Under 2K2.1

US v. Mills: Mills was stopped in his car in Baltimore. During a consensual search, an officer found 120 rounds of ammunition. A later search at Mills's business uncovered a stash of guns and associated paraphernalia. Mills eventually pleaded guilty to being a felon in possession of ammunition. At sentencing, the issue was whether Mills's base offense level under USSG 2K2.1 should be 24 or 20, based on his prior convictions. Mills contended that his prior Maryland conviction for "possession with intent to distribute look-a-like controlled dangerous substances" was not a "controlled substance offense" sufficient to support the higher base offense level (he admitted another prior conviction that fit the definition of "crime of violence"). The district court disagreed, set the base offense level at 24, and sentenced Mills to 70 months in prison.

On appeal, the Fourth Circuit affirmed Mills's sentence. The court concluded that the term "counterfeit substance," as used in USSG 4B1.2(b) and to which 2K2.1 cross references, was not defined by the Guidelines and therefore retained its plain meaning. Under that plain meaning, Mills's prior offense - which involved distributing substances that were not narcotics under the false pretense that they were - involved a counterfeit substance and therefore was a controlled substance offense. The court rejected Mills's attempt to read the definition of "counterfeit substance" from 21 USC 802(7) (which involves falsely labelled prescription drugs) into 4B1.2(b), noting that the Sentencing Commission knows how to cross reference to specific statutory definitions and it's failure to do so in this case must have been intentional. The court also rejected Mills's argument that the fact that simulated drug offenses are not counted for career offender purposes required a definition of counterfeit substance different from the plain meaning.

Thursday, May 03, 2007

Court Reverses Suppression Due to Illegal Arrest; Scolds Government in the Process

US v. McNeill: A Baltimore police officer responded to a 911 call from a nearby convenience store. When he arrived, he found McNeill standing next to a woman and her children who were exiting a phone booth. The woman approached the officer, with McNeill in pursuit, and said that she wanted McNeill to leave her alone and that he had been "following her and messing with her." McNeill tried to interject his version of the situation into the discussion but was told by the officer to "chill out." McNeill decided that discretion was not called for and said to the woman "I'm going to get you, bitch, for this." The officer arrested McNeill for committing "assault by threat." While in custody with the Baltimore PD, McNeill, for reasons not hinted at in the opinion, confessed to participating in two bank robberies.

McNeill was charged with two counts of bank robbery under 18 USC 2113(a). He moved to suppress the statements as the fruit of an illegal arrest, claiming that he did not commit an offense in the presence of the officer who arrested him without a warrant. The district court granted that motion and the Government instigated an interlocutory appeal. As has been its recent trend, the Government failed to file the required certification for such an appeal under 18 USC 3731 until six months after the notice of appeal was filed (i.e., six months late) and it was filed in the wrong court, to boot.

McNeill moved the Fourth Circuit to dismiss the appeal due to the Government's failure to follow the requirements of section 3731. After noting the Government's repeated failures to comply with 3731 in recent years (see Hatfield & Dequasie) and a similar failure in another pending case, the court noted:
In this case, we are presented with the unfortunate fact that after our repeated warnings in 2004, the government continued to neglect the statutory requirements as we construed them. At the least, the government's failures are shameful lapses in professionalism. To his credit, however, the U.S Attorney himself stepped into this case to address the problem. He noted that the Assistant U.S. Attorneys involved in this case and in [the other pending case] were not personally aware of our 2004 decisions and that the requirements of those decisions were not reflected in the manuals used by Assistant U.S. Attorneys.
Emphasis added. Nonetheless, after restating once and for all that the 3731 certification must be filed along with the notice of appeal, the court applied the seven-factor test set forth in Hatfield and concluded that dismissal was not warranted in this case as a remedy for the Government's shortcomings. Thus the court, once again, gives lip service to the importance of the Government actually playing by the rules without actually imposing any negative consequences for failing to do so.

On the merits, McNeill fared no better. While the court initially questioned whether there was an "in the presence" requirement under the Fourth Amendment for warrantless misdemeanor arrests, it concluded that it need not resolve the issue in this case because McNeill did commit an offense in the officer's presence. To be fair, he did not commit "assault by threat," as it is not a crime in Maryland. However, noting that the arrest would be upheld if any offense was committed, regardless of the one given as the reason for arrest at the time, the court held that McNeill committed the Maryland offense of harassment (Md. Code Ann., Crim. Law 3-803). The officer therefore had probable cause to make the arrest and the later statements McNeill made regarding the bank robberies were thus not fruit of an illegal arrest.

Thursday, April 26, 2007

Lack of Notice of Upward Variance Does Not Require Remand

US v. McClung: McClung was an assistant state school superintendent who was responsible for, among other things, getting the Mingo County (WV) school system running again after a series of devastating floods. During his tenure, McClung renewed an old friendship with Philip "Porkchop" Booth, who ran several businesses that sold furniture and other supplies. McClung basically funnelled business Porkchop's way in return for cash. As a result, McClung pleaded guilty to extortion and filing a false tax return. His Guideline range, to which neither party objected, was 51 to 63 months. Without notice, the district court imposed a sentence of 84 months.

McClung made two arguments on appeal regarding his sentence. First, he argued that the district court erred by imposing an above-the-Guidelines sentence without notice. Because McClung did not object to the imposition of that sentence at the time, review was only for plain error. While conceding that the district court was erroneous in proceeding without notice, the court held that McClung could not show any prejudice from the error. He filed a sentencing memorandum that addressed the 3553(a) factors and included a long letter addressing his personal conduct and remorse. Because McClung could not point to any other argument he might have made had he been given notice, the court rejected that argument. Second, and similarly, McClung argued that his sentence was unreasonable. For reasons similar to the first issue, the Fourth Circuit disagreed and upheld McClung's sentence.

Court Upholds Conspiracy and Gun Convictions

US v. Wilson: Wilson and his codefendants were convicted of conspiracy to distribute drugs and firearm offenses. They raised various arguments regarding their trial, all of which the Fourth Circuit rejected. First, the court held that the district court properly allowed a detective to testify as an expert witness regarding "drug lingo" and "translate" numerous phone conversations among the conspirators. There were individual questions/answers which went beyond the scope of proper expert testimony that were not objected to by Wilson, the they did not rise to the level of plain error. Second, the court rejected several challenges to the jury instructions, applying plain error review (although the court concluded that there were no errors to begin with) - that the district court's telling the jury that it was the only one that "has ever decided or will decide" whether the Government proved its case was an impermissible Allen charge; that the instructions failed to require the jury to find the existence of an unlawful agreement before determining who was a part of it; and that the examples of conspiracies provided by the district court of too nearly tracked the facts of this case. Third, the court concluded that the Government's filings in support of the warrants used to wiretap the conspirators' phones were sufficient. Finally, the court rejected challenges to the sufficiency of the evidence.

Tuesday, April 17, 2007

"Misdemeanor Crime of Domestic Violence" Must Include Element Establishing Relationship Between Defendant & Victim

US v. Hayes: Hayes was convicted of the West Virginia misdemeanor offense of battery in 1994. The victim of the crime was his then-wife, but he was not convicted of domestic battery. In 2005, police responded to a domestic disturbance call at Hayes's home which led to a consensual search of the home. The search uncovered a rifle. Hayes was then charged with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence (MCDV), based on the 1994 offense. Hayes moved to dismiss the indictment, arguing that his 1994 conviction was not an MCDV, on various grounds. The motion was denied and Hayes entered a conditional guilty plea, preserving his right to raise the issue on appeal.

On appeal, the Fourth Circuit reversed the district court, 2-1, holding that Hayes's 1994 conviction was not a MCDV because it did not contain an element regarding the relationship of the victim to the defendant. The court engaged in a lengthy analysis of the statutory language of the MCDV definition, 18 USC 921(a)(33)(A), before concluding that the language of the definition "plainly require[s] that a predicate offense have as an element one of the specific domestic relationships between the offender and the victim." That reading is supported by the "rule of the last antecedent," and is not "demonstrably at odds" with the legislative intent of the statute. In addition, if the statutory language was ambiguous, the Rule of Lenity would require the same outcome. In concluding the opinion, the court noted that this holding was "in the minority." Judge Williams, in her dissent, noted that "we are not in the minority, we are the minority." Judge Williams disagreed with the majority's statutory analysis. In addition, she rejected Hayes's argument (which the majority did not reach) that the Government could not prove the relationship between Hayes and the victim in the 1994 conviction by use of extrinsic evidence, as in Shepard.

Congrats to SDWV CJA panel member Troy Giatras for the big NDWV win.

Court Rejects Challenges to Inventory Search, Hearsay Claim to Affirm Drug Convictions

US v. Banks: Banks was involved with an elaborate scheme to illegally obtain prescription medication which was then provided to street-level dealers for distribution. Banks and his codefendants used fake prescription pads (containing the relevant DEA numbers of real doctors) from bogus medical clinics they set up to write prescriptions that were filled at local pharmacies. When one pharmacist became suspicious, Banks and a codefendant was arrested. When he was arrested, Banks was asked if there was anything in his car in the pharmacy parking lot that he wanted taken to the police station with him. Banks identified two bags in the trunk which were recovered and brought to the station. During the booking process the bags were opened. A subsequent inventory search revealed numerous pieces of evidence of the scheme. Some time later, a search warrant was executed at one of the fake medical clinics. The search produced two fingerprints which were collected on cards and sent away for analysis. The fingerprint cards including hand written notes from the evidence technician who collected the prints indicating where in the clinic they were found.

Prior to trial, Banks unsuccessfully moved to suppress the evidence found in the bags searched following his arrest. He also unsuccessfully moved to fire his public defender on the grounds the he "worked for the Government." Banks also, in a pro se motion, alleged that the district court lacked jurisdiction over him because he was a "real, live flesh and blood Man." Banks was convicted of multiple counts of drug possession, conspiracy, and fraud and sentenced to 16 years in prison.

On appeal, Banks raised three issues, each of which the Fourth Circuit rejected. First, he argued that the district court should have suppressed the evidence found in the bags taken from his car because the officer who searched the bags did not follow the department's own guidelines for inventory searches. The Fourth concluded that strict compliance with those guidelines was not necessary, as the guidelines were complied with "more generally" in an unusual situation caused, in part, by Banks's request that the bags be brought to the police station. The district court's conclusion that the search was not investigative was not clearly erroneous. Second, Banks argued that the admission of the evidence technician's notes on the fingerprint cards was erroneous because those notes were hearsay and their introduction violated Crawford v. Washington, 541 U.S. 36 (2004). The Fourth did not resolve those issues directly, instead concluding that any error was harmless given the weight of other evidence admitted against Banks. Finally, the Fourth rejected Banks's argument that the district court should have sua sponte moved to evaluate his competency, holding that Banks's odd behavior was simply "an ill-advised, self-defeating legal strategy."

Walk-Away from Work Release is "Crime of Violence" Under ACCA

US v. Mathias: Mathias was convicted of being a felon in possession of a firearm. He was sentenced to 180 months as an armed career criminal under 18 USC 924(e) because he had three prior convictions for "violent felonies." At sentencing, Mathias argued that one of his prior convictions, a Virginia conviction for "escape without force or violence" did not qualify as a "violent felony." The district court disagreed. On appeal, Mathias raises the same argument, which the Fourth also rejects. Restating prior Circuit law from the career offender context, the court explains that any escape offense - including one like Mathias's that was simply walking away from a work release center - pose a "serious potential risk of physical injury to another." The court rejected Mathias's argument that the fact that Virginia specifically provides for non-violent escape convictions made any difference.

Friday, April 13, 2007

Sua Sponte Downward Variance Requires Remand

US v. Blatstein: Blatstein was a podiatrist who concocted a scheme to bill his patients insurance carriers for outpatient surgical procedures in a facility that didn't exist. He pleaded guilty to one count of mail fraud, based largely in documents seized pursuant to a search warrant based on information provided by former employees and patients. Blatstein moved to suppress those documents, arguing that the agent obtaining the warrant failed to tell the magistrate about a Virginia statute allowed the types of procedures he billed for to be performed in his office and not in a separate facility. That motion was denied. At sentencing, both Blatstein and the Government agreed that a 24-month sentence, within the Guideline range, was appropriate. However, on its own motion, the district court varied and imposed a sentence of 12 months in prison.

Blatstein appealed the denial of the motion to suppress and the Government cross-appealled the sentence. The Fourth Circuit easily rejected Blatstein's argument, noting that the Virginia statute at issue was irrelevant to his billing practices, which lead to the mail fraud. As to the sentence, the Fourth recognized that because the Government did not object to the district court's failure to provide notice of intent to vary, it was stuck with plain error review. However, the court found that there was error, the error was plain (per Davenport), that the Government's fundamental rights were violated, and that it appeared the Government could make a valid argument against the 12-month sentence on remand. Thus, Blatstein's conviction was upheld, his sentence vacated, and the case remanded for further proceedings.

Thursday, April 12, 2007

Post-Offense Rehabilitation Doesn't Support Probation in Crack Case

US v. Pyles: Pyles was part of a "circle of drug using friends" in Morgantown who would get drugs for other people and "pinch" a bit for themselves as payment. In May and June, 2004, authorities made three controlled buys of crack from the pinching Pyles, totalling 0.71 gram. In May, 2005, Pyles and several others were indicted on charges of conspiracy to distribute more than 5 grams of crack and substantive delivery charges. Pyles eventually entered a guilty plea to one count of aiding and abetting the distribution of crack. However, in the PSR Pyles was attributed 26.4 grams of crack as relevant conduct. His Guideline range was 63 to 78 months.

Between the time of the controlled buys and Pyles's sentencing hearing, he made significant steps towards rehabilitation. His employer submitted letters to the district court detailing Pyles's efforts to turn his life around and his value as an employee. Concerned as to Pyles's need for drug treatment, the district court postponed sentencing to allow Pyles to seek treatment with a "noted substance abuse counselor in Morgantown." When sentencing reconvened, the counselor reported to the court that Pyles "ha[d] done better than any person I am currently working with." Pyles had successfully completed his term of presentencing bond with no incidents, according to the probation officer.

The district court then asked the parties about the factors found in 18 U.S.C. 3553(a) and whether probation would better serve those factors than imprisonment. The Government objected to the idea of probation, noting that a co-defendant had already been sentenced to 37 months in prison. The district court rejected that argument, noting that the Fourth Circuit has held that inter-defendant disparity is not the type of disparity that is prohibited. The district court finally determined that probation was appropriate and sentenced Pyles to 5 years of probation, including a 6-month term of home confinement. To support her sentence, the district court produced a 22-page opinion detailing Pyles's rehab and working through each of the 3553(a) factors.

The Government, of course, appealed, and the Fourth Circuit reversed, finding the extent of the variance in this case to be unreasonable. Initially, however, the court did affirm the district court's refusal to consider inter-defendant conspiracy as a factor at sentencing. However, the court ultimately decided that a sentence of probation in a case where the unobjected to Guideline range bottomed out at 63 months was too great. The court concluded that the district court would have had to depart 16 levels under the Guidelines to reach a zone in which probation was an option, which was too great given the circumstances of the case. The court praised the district court, somewhat patronizingly, for the time and effort it put in to justifying its decision, but in the end it was not sufficient to justify a sentence that did not include incarceration. Pyles's sentence was vacated and remanded for further proceedings.

The heart of this case really comes down to a quote from the district that's on page 13 of the slip opinion: "federal sentencing policy is not purely retributive. It does not mandate warehousing individuals who reclaimed their lives long before they were indicted and arrested." The Fourth spends the next four pages basically saying, "oh yes it does."

Doug Berman & commentators at Sentencing Law and Policy discusses Pyles here.

Tuesday, April 03, 2007

Confession Not Sufficiently Corroborated to Support Gun, Drug Convictions

US v. Stephens: A Roanoke, Virginia, police officer was on patrol when he heard several shots fired. As he surveyed the scene he saw Stephens crossing the street. When Stephens saw the officer, he ran off and was eventually apprehended in an abandoned house. The officer retraced Stephens's path and discovered a revolver on the ground that he been recently fired. At the police station, Stephens made a statement:
He told the agents that a local drug dealer known as "Red" fronted him one and a half ounces of cocaine approximately two to three months before, for which Stephens was to pay $1,500. Stephens was unable to repay Red, however, because Stephens’s wife consumed all the cocaine. On August 19, 2004, Stephens became aware that Red had spread word on the street that Stephens would be killed because of his failure to pay. That same evening, when Stephens drove past Red and some associates, someone in Red’s group fired a shot at Stephens. Stephens later retrieved his handgun and fired the shots heard by Babb at Red’s vehicle, a white Mazda, when he saw it on the street. Approximately two months after the initial statement to the agents, Stephens repeated this explanation in a proffer to the government.
Stephens was charged with three offenses: conspiracy to distribute narcotics, possession of a firearm in connection with a drug trafficking offense, and being a felon in possession of a firearm.

He pleaded guilty to the felon in possession offense and went to trial on the other two offenses. At trial, Stephens's statement was admitted into evidence. Stephens then testified in his own behalf:
Stephens took the stand in his own defense and asserted that he had lied to the ATF agents following his arrest and in his proffer. According to his testimony, on the night of August 19, Stephens was actually sitting on the porch of his grandmother’s home when an individual approached him and offered to sell a handgun for $75. Stephens paid $60 for the gun and soon after decided to test it to see whether it would fire. He went to a friend’s house, walked behind the home, and fired the gun into the air. Stephens explained that he lied to the agents about his association with Red in hopes that he would be released on bond, or perhaps released so he could provide further information as to Red’s drug dealing activities. Stephens denied any connection to Red, whose real name he professed not to know, and denied that he was involved in selling drugs, or that he owed anyone money for drugs.
Stephens moved for a judgment of acquittal at the close of the evidence, but the district court denied the motion. The jury convicted Stephens on the narcotics and 924(c) counts after a robust 35 minute deliberation.

On appeal, the Fourth Circuit reverses. After noting that it "is beyond dispute that a criminal defendant's conviction cannot rest entirely on an uncorroborated extrajudicial confession," the court concluded that there was insufficient evidence beyond Stephens's initial statement to police to link him to a drug conspiracy. Therefore, the district court erred by denying his motion for a judgment of acquittal. The case was remanded for resentencing on the felon in possession charge.

Thursday, March 29, 2007

Knowledge of Jurisdictional Hook Not Necessary for CWA Conviction

US v. Cooper: Cooper was convicted on 9 counts of violating the Clean Water Act by knowingly discharging a pollutant into the waters of the United States. Cooper ran a trailer park that included a "sewage lagoon" which discharged into a nearby creek. The creek flowed, eventually, into the Roanoke River and into Albemarle Sound. While the discharge from the "lagoon" was treated in some way, but not effectively enough to meet Virginia regulatory requirements. Cooper and the Virginia equivalent of DEP went back and forth for years to resolve the situation. Finally, after Cooper failed to meet the terms of a consent agreement between the parties, DEP revoked his permit to operate the "lagoon." Undaunted, Cooper continued to use the "lagoon" and was eventually charged federally. He received a sentence of 27 months in prison.

On appeal, Cooper made two main arguments, both of which were rejected by the Fourth Circuit. First, Cooper argued that evidence of his dealings with the Virginia DEP - all of which occurred prior to the conduct charged in the federal indictment - was improperly admitted under FRE 404(b). The court concluded that FRE 404(b) was not even implicated in Cooper's case because the evidence was "intrinsic to the story of the crime." In any event, if it was 404(b) evidence it was properly admitted to show knowledge/lack of mistake on Cooper's part. Second, Cooper argued that the Government failed to prove that he knew the creek into which the "lagoon" drained was a "water of the United States" and therefore the Government failed to prove an element of the offense. The court rejected that argument, concluding that the "waters of the United States" element is purely jurisdictional and the defendant need not have knowledge of what makes the offense a federal one (in the same way that a felon in possession of a firearm doesn't need to know it travelled in interstate commerce).

Friday, March 16, 2007

Seach Supported by Evidence Obtained by Third Party

US v. Seldon: Seldon owned a Mazda MPV minivan, which he had modified to include two secret compartments to smuggle drugs. One compartment was in the gas tank. He took the MPV to a local dealership because it was "hard starting" and cutting off after starting. Given the problems, mechanics examined the fuel pump which, in a Mazda MPV, is located in the gas tank. In the course of their diagnosis, the mechanics found the secret compartment in the gas tank, as well as another one, and alerted local police. An officer went to the dealership, observed the compartments, and got information on who brought the minivan in for service. He knew that Seldon was known to local authorities as a major drug dealer. The officer did not pursue the investigation any further at that time.

As it would happen, the same officer pulled Seldon over for speeding in the minivan nine months later. During the stop, the officer noticed various indicia of narcotics trafficking (excessive use of air fresheners, large amounts of cash, Seldon's nervousness) and made the connection with the secret compartments discovered months earlier. The officer searched the minivan and found 500 grams of cocain and 850 grams of marijuana. Seldon was charged with conspiracy to distribute drugs and illegal monetary transactions. He moved to suppress the drugs found in the minivan, arguing that the officer lacked probable cause for the search incident to the traffic stop and that the initial examination at the dealership was also unconstitutional. The district court denied the motion and Seldon pleaded guilty to the charges.

On appeal, the Fourth Circuit affirmed. It rejected Seldon's argument that the initial search at the Mazda dealership violated the Fourth Amendment because the information was revealed by searches conducted by the mechanics prior to the involvement of the police, even if the officer's subsequent examination of the minivan was unlawful. With that information, along with the facts developed during the traffic stop, there was probable cause to search Seldon's vehicle.

Wednesday, March 14, 2007

Details & Emergency Justify Terry Stop Based on Anonymous Tip

US v. Elston: Police in Roanoke, VA, received a 911 call from a woman reporting that a man named "Jimmy" (Elston) had just left her home in his truck and was intoxicated. In addition, he had a handgun with ammunition and threatened to "let[] them off in somebody." The caller provided a detailed description of both Elston and his truck. The woman identified herself, but asked the 911 operator not to pass along her name to police and the operator complied (although the caller is identified in the opinion). Officers located Elston and stopped the truck. After Elston was removed from his truck and handcuffed on the ground, an officer saw a pistol in the truck. Elston was arrested for being a felon in possession of a firearm. He filed a motion to suppress the gun, on the ground that the 911 call was an anonymous tip that was not sufficiently corroborated to support a Terry stop. In the alternative, he argued that what happened wasn't really a Terry stop, but rather a full-fledged arrest, which the officers lacked probable cause to initiate. The district court denied the motion and Elston entered a conditional plea.

On appeal, the Fourth Circuit affirmed the district court's rejection of Elston's suppression arguments. First, the court, assuming without deciding that the 911 call was "anonymous," held that the information provided by the caller was sufficiently detailed to support reasonable suspicion, as she "provided a wealth of detail about Elston's appearance, vehicle, weapon, behavior, and state of mind." In addition, the report that Elston was armed and might use his weapon added an element of emergency to the situation not found in prior anonymous tip cases. Second, the court held that the police officers actions in getting Elston out of his truck and handcuffed on the ground did not constitute an arrest and that the encounter was a Terry stop supported by reasonable suspicion. Finally, the court upheld the discovery of the gun in the truck as incident to a protective sweep of the vehicle.

Tuesday, March 13, 2007

Two-Year Misdemeanor is "Felony Drug Offense"

US v. Burgess: Burgess was convicted of conspiring to distribute more than 50 grams of cocaine base. The Government filed an 851 information to enhanced the mandatory minimum based on Burgess's prior South Carolina conviction for possession of cocaine. For that conviction, a misdemeanor under state law, Burgess received a one-year sentence. The statutory maximum for the offense, however, was two years. Burgess objected, arguing that the definition of "felony drug offense" in 21 USC 802(44), which ties the definition to sentence length regardless of state law classification, must be read in common with the definition of "felony" in 21 USC 802(13), which ties the definition to state law. The district court rejected Burgess's argument and sentenced him to 156 months in prison (following a downward departure for substantial assistance).

Burgess's counsel filed an Anders brief, but the court nonetheless took the case for oral argument. The court upheld Burgess's sentence and rejected his argument regarding the meaning of "felony drug offense." The definition of that term in section 802(44) is unambiguous and has nothing to do with the general definition of "felony" in section 802(13). The court did note that, after Burgess's sentencing, two other Circuits had split on the issue, the First Circuit (US v. Roberson, 459 F.3d 39 [1st Cir. 2006] - adopting Fourth Circuit position) and DC Circuit (US v. West, 393 F.3d 1302 [DC Cir. 2005] - adopting Burgess's argument and applying Rule of Lenity).

Thursday, March 08, 2007

18-month Probation Revocation Sentence Not Plainly Unreasonable

US v. Moulden: Moulden was on probation after pleading guilty to conspiracy to commit bank fraud and repeatedly violated the terms of his probation. The violations were mostly minor - failed drug screens, failure to pay restitution, etc. - and the district court did not revoke Moulden's probation the first two times his violations were brought before the court. The court did extend his term of supervision, however, with Moulden's consent. Finally, Moulden's probation officer filed a petition seeking revocation of Moulden's probation for multiple violations relating to drug use, treatment, restitution, and maintaining contact with his probation officer. Moulden admitted the violations and the district court revoked his probation. The sentencing range suggested in the policy statements in Chapter 7 of the Guidelines was three to nine months. The district court imposed a sentence of 18 months.

On appeal, Moulden argued that his sentence was excessive. The Fourth Circuit rejected that argument and upheld the sentence. Along the way, it clarified the standard of review in probation revocation appeals. Moulden argued that the proper standard for reviewing his sentence was the post-Booker reasonableness standard. However, the Government argued, and the Fourth Circuit agreed, that the proper standard was the same one employed in supervised release cases - plainly unreasonable. With that question settled, the Fourth concluded that Moulden's sentence was not plainly unreasonable given his history of probation violations and the district court's prior leniency in dealing with them.

Tuesday, March 06, 2007

No Allocution = Plain Error in Booker Remand

US v. Muhammad: Muhammad was convicted of wire fraud and money laundering and setenced to the Guideline maximum 121 months in prison. While on appeal, the Supreme Court decided Booker and Muhammad's case remanded to the district court for resentencing. At resentencing, while Muhammad's counsel was able to make arguments with regards to a new sentence, the district court never directly addressed Muhammad and allowed him to allocute. The district court imposed the same 121 month sentence.

On appeal, the Fourth Circuit vacates Muhammad's sentence for a second time. The court holds that the district court erred by failing to allow Muhammad to allocute, that the error was plain, and that it prejudiced his substantial rights. The court went on to notice the error and vacate Muhammad's sentence. In doing so, the court rejected arguments by the Government (which admitted the error and that it was plain) that Muhammad suffered no prejudice because he fully allocuted at the original sentencing and the district court's top-of-the-Guidelines sentence doesn't support an inference that the district court would have imposed a lesser sentence regardless of what Muhammad said during his allocution.

Congrats to the Raleigh, NC FPD Office on the win!