Tuesday, December 23, 2008
On appeal, Whorley challenged the obscenity convictions - those involving the Emails and cartoons - and the enhanced sentence for the cartoon charges, arguing that they violated the First Amendment, in several ways. The Fourth Circuit affirmed, shooting down all those arguments. First, the court disagreed that because 18 USC 1642 did not make an exception for the private receipt or possession of obscene material it violated the First Amendment as interpreted in Stanley v. Georgia. As the court points out, the Supreme Court has repeatedly held that just because Stanley protects the private possession of obscene materials there does not exist a related right to receive obscene material. Second, the court rejected the argument that section 1642 was impermissibly vague. Third, the court rejected Whorley's as applied challenges to 1642, for largely the same reasons as it rejected the facial challenges. Specifically, it rejected the argument that the text Emails or cartoons could be obscene. Finally, the court rejected the argument that the enhancement provisions of 18 USC 1466A(a)(1) was unconstitutional as applied to the cartoons at issue because they did not depict actual children. The court also rejected (and briefly discussed) Whorley's challenges to some trial issues and his sentence.
Judge Gregory dissented on the issue of whether the Emails could be obscene and the sentencing enhancements. With regards to the Emails, he did so based on an argument admittedly not raised by Whorley, that the Emails "were pure speech protected by the First Amendment." Judge Gregory contends that the majority's note that the Supreme Court has held that words can be obscene "is not sufficient, on its own, to criminalize pure speech." However, Judge Gregory never defines what "pure speech" is and how it is distinguishable from words that can be obscene. His dissent seems to be more an objection to Supreme Court holdings that obscenity lies outside the protection of the First Amendment (an objection I share, BTW). As for the sentence enhancements, Judge Gregory reads the applicable statutes to require the pictures at issue to depict an actual child, so the cartoons at issue in this case do not apply.
UPDATE: My apologies - apparently "pure speech" is a term of art in First Amendment cases with which I was not familiar. It refers to speech that is not bound up with conduct and is thus "pure."
White sought to suppress the cocaine recovered during the search of the car. The district court denied the motion, concluding that Ali's information provided to the investigators was reliable and that they had probable cause to believe White was transporting drugs when he was stopped (alternatively, that they had reasonable suspicion to make a Terry stop, which ripened into probable cause). White pleaded guilty to one count of possession with intent to distribute cocaine and was sentenced to 240 months in prison.
On appeal, the Fourth Circuit affirmed the district court's suppression ruling and the sentence imposed. It agreed with the district court that Ali was a reliable source and that the investigators had probable cause to support White's arrest and a search of his car. As the court noted, "every bit of information that Ali provided was quickly borne out by actual events." The court dismissed White's claim of sentencing error in a footnote.
Friday, December 05, 2008
In each case, the affidavit set forth in some detail the fruits of the investigation into Williams and Thomas, including details of controlled purchases, tips from CIs, etc. to establish a conspiracy to distribute narcotics. However, neither warrant affidavit included any evidence that any sales or other drug-related activity took place at either man's residence. Instead, the affidavit's explained that, based on the agent's experience, those involved in the drug trade frequently kept evidence of it (cash, registers, possibly a "stash" of product) in their home. On that basis, the warrants were issued.
The district court granted Williams and Thomas's motion to suppress the fruits of those searches. The Government conceded the lack of probable cause, but relied on the Leon good-faith exception to save the search. The district court disagreed and concluded that the warrants were based on bare bones affidavits that did not clearly demonstrate probable cause to believe there would be evidence at the locations searched. It also concluded that there was no basis on which to determine whether Williams and Thomas were actually residing at those locations.
The Government appealed and the Fourth Circuit unanimously reversed. Applying Leon (and avoiding the question of whether the Government could not argue the probable cause issue it conceded below), the court concluded that the affidavits were not bare boned after all. The court held that warrants to search a home are proper if (1) there is probable cause to support a charge of criminal activity and (2) the reasonable suspicion that drug dealers store evidence in their homes. Thus, it was error for the district court to disregard the agent's experience on the second prong. Had it properly considered the agent's statement, it could not have concluded that the affidavits were bare boned. The court also concluded that the agent's uncorroborated statement that the homes search were the defendants' residence was enough to save the affidavits from being bare boned.
Tuesday, November 25, 2008
The Fourth Circuit reverses, holding that the plain language of the statute clearly makes district judges judicial officers. The court vacated the district court's order and sent the case back for consideration of whether the defendant should be able to "go forth."
Tuesday, September 09, 2008
The Government appealed and the Fourth Circuit reversed. The court concluded that the documents seized at Srivastava's home was within the scope of the warrant. Specifically, the warrant allowed the seizure of "financial" documents which, given the nature of Srivastava's medical practice, covered personal as well as business documents. The court also concluded that the documents fell within the warrant's scope that the only documents seized be those that "may constitute evidence of [health care fraud]." The court also concluded that the district court's blanket suppression order, covering all the evidence seized during the three searches, was an abuse of discretion.
Moses moved to suppress the evidence recovered from the two homes. The district court concluded that the first warrantless search was justified by exigent circumstances. The second warrantless search was not. However, the district court nevertheless refused to exclude the evidence found there, because the second search was made pursuant to a warrant based on probable cause that was untainted by the unsupported warrantless search. On appeal the Fourth Circuit agreed, affirming Moses's convictions. The court concluded that probable cause existed to enter the first home and that exigent circumstances were present to allow entry without a warrant. The court also concluded that the search warrant that was obtained for the second home was sufficient, once stripped of any information gained from the illegal initial warrantless entry. Judge Gregory dissented, on all those arguments.
Wednesday, August 20, 2008
At a pretrial motions hearing on June 27, 2006, the district court brought up the Zedner issue sua sponte. After concluding that the Henrys' speedy trial rights waivers were invalid, the district court nonetheless concluded that the continuances granted on July 7, 2005 and March 24, 2006 satisfied the "ends of justice" criteria for being excluded from speedy trial calculations, the first to facilitate plea negotiations and the second because the need for proper trial preparation outweighed interests in a speedy trial. The district court acted on its memory of the March 24 hearing, without reference to a transcript. Nonetheless, the Henrys moved to dismiss the indictment due to speedy trial violations. The district court denied the motion, the Henrys pleaded guilty, and were sentenced to 60 months in prison.
On appeal, the Fourth Circuit reversed the district court. Reviewing the entirety of the record, including a transcript of the March 24 hearing, the court concluded that the district court in granting the continuance relied upon the Henrys' waivers of their speedy trial rights. Under Zedner, those waivers were now invalid. Critically, at the March 24 hearing the district court did not consider whether the ends of justice supported a continuance, as Zedner now requires. The court remanded with orders to dismiss, but left it to the district court to decide whether to do so with prejudice.
Congrats to the Northern WV FPD office on the win!
Tuesday, August 19, 2008
The Fourth Circuit reversed the district court. In doing so, it first had to determine whether it had jurisdiction to entertain such an interlocutory appeal at all. The court concluded that it did, as the district court's order was final, even if couched as a preliminary order. It precluded the Government's use of the evidence in its case in chief. While the court indicated that it might reconsider its ruling, it said it would do so only at the close of evidence, after jeopardy had attached. Given the finality of the order, the Fourth Circuit concluded it had jurisdiction.
On the merits, the Fourth also sided with the Government. As to the 404(b) evidence, the Government argued that it demonstrated how Siegel would defraud "anyone available, be it family or friend." The Fourth Circuit agreed, holding that such evidence demonstrated Siegel's scheme and her motive for murder. That evidence was also not precluded under FRE 403 as it was neither unduly prejudicial nor likely to cause confusion or repetition at trial. Given those conclusions, the Fourth Circuit held that there was no basis for striking any language from the indictment.
District Judge Kiser (WDVa) dissented with respect to the evidentiary issues, arguing that the majority failed to show appropriate deference to the district court findings and that the district court did not abuse its discretion in excluding the evidence.
The first was the result of a traffic stop for an inoperable tag light. After Farrior was given a verbal warning, the officer who pulled him over asked if he would step out of the car and talk. Farrior agreed and eventually consented to a search of the car, which uncovered nothing. In the interim, another officer arrived on the scene with a drug dog, which sniffed the outside of the car, alerting to the trunk. The officers eventually searched one of Farrior's boots, finding 5.5 grams of crack cocaine and cash.
The second search occurred when Farrior was the victim of a shooting. After towing his vehicle, officers searched it and found 469 grams of crack cocaine (also in boots). Farrior was convicted of possession with intent to deliver crack cocaine and possession of more than 50 grams of crack cocaine and sentenced to life in prison. On appeal, Farrior challenged both his convictions and sentence, which the Fourth Circuit affirmed.
First, the court rejected Farrior's argument that the evidence uncovered during the first traffic stop should be suppressed. The court concluded that the officers did not unduly prolong the valid traffic stop such that it violated the Fourth Amendment. Second, the court rejected Farrior's Batson challenge to the Government's strike of his jury's only African-American member, pointing out the numerous race-neutral reasons given by the Government to support its decision. Third, the court concluded that the district court properly denied Farrior's request for a new trial due to statements of the prosecution about reasonable doubt during closing argument.
As to Farrior's sentence, the Fourth Circuit first rejected Farrior's argument that the court document used to prove a prior conviction was not sufficient because it did not contain an actual judge's signature, only a mechanical "authorized signature." The court noted that the records relied upon by the district court were certified, signed, and produced by the court of conviction. Even without the "authorized signature" they would have been sufficient. The court also rejected Farrior's argument that his sentence was unreasonable, noting that the life sentence was mandatory.
Tuesday, July 22, 2008
On appeal, the Fourth Circuit affirmed, dealing with the first time with the issue of whether a sexual offense committed based on lack of consent, as opposed to physical force, constituted a "forcible sex offense" and, therefore, a crime of violence. The Maryland information to which Chacon pleaded guilty did not specify which of the three subsections he violated - rape by force, rape of a person unable to give consent, or statutory rape. The Fourth Circuit began by noting that it was clear that the first and third provisions were forcible sex offenses by the language in the Guidelines. As to the second provision, noting a circuit split on the issue, the court held that sex offenses committed based on the inability to give consent are forcible sex offenses. Thus, the court affirmed Chacon's sentence.
They appealed both their convictions and sentences. The Fourth Circuit affirmed the convictions and prison terms, while vacating the restitution award.
As to the convictions, the court first concluded that the evidence was sufficient to convict Harvey and Kronstein of honest services wire fraud, rejecting the argument that the Government failed to show either that their scheme involved a material misrepresentation or concealment of fact or that they had the specific intent to defraud. The court also rejected the argument that there was insufficient evidence to sustain the bribery convictions, holding that there was sufficient evidence of corrupt intent in their dealings.
As to the sentences, the Fourth Circuit turned away factual challenges to Guideline enhancements for the amount of loss, the number of bribes involved, and Harvey's and Kronstein's roles in the offense.
As to the restitution, the court concluded that the Government had failed to prove the amount of actual loss attributable to the defendants, rather than intended loss (which was used in the Guideline calculations). Specifically, the court rejected the practice of using the profit gained from the criminal activity as a proxy for actual loss. Thus, the restitution award was vacated and remanded to the district court for further proceedings.
Tuesday, July 01, 2008
Affirming, the Fourth Circuit first addressed the proper standard of review in a case like this one where there is no applicable Guideline. Applying the holding in US v. Crudup, the court concluded that such sentences are reviewed to determine if they are "plainly unreasonable." In such cases, step one is regular Booker/Gall reasonableness review, followed by a second step of determining whether any unreasonableness is "plain."
Utilizing that standard, the court concluded that Finley's sentence was not unreasonable, much less plainly so. First, the court concluded that the district court did, in fact, consider the Virginia sentencing guidelines, but rejected them as not providing adequate deterrence to Finley. Second, the court concluded that Finley's sentence was substantively reasonable and supported by the district court's findings below.
On appeal, the Fourth Circuit affirmed, holding that while the specific Guideline section cited in 2L1.2 as being used to determine prior sentences does not answer the question, a related section does provide support for the aggregation approach.
On appeal, Benkahla raised several issues, all of which the Fourth Circuit rejected. First, he argued that the Government was collaterally estopped from prosecuting him for false statements after his acquittal on related charges. While recognizing the "tension" inherent in such situations, the Court ultimately found it not to be problematic, focusing on the district court's narrow ground for acquittal in the first trial. Second, he argued that evidence presented at his trial on the nature of radical Islam, jihad, and terrorism was unduly prejudicial. The court concluded otherwise, noting its relevance to the elements of the offenses with which he was charged and noting that the jury acquitted Benkahla on some charges, thus showing it was not unduly swayed by prejudice. Finally, the court rejected Benkahla's argument about the proper application of the terrorism Guideline, specifically rejecting a Sixth Amendment-based Booker argument, noting that "the point is thus that the Guidelines must be advisory, not that judges may find no facts."
Tuesday, June 17, 2008
The Fourth Circuit affirmed, unanimously, in an opinion written by ex-Justice O'Connor. The court rejected Gary's argument that under Franks the information left out of the warrant application required suppression. The court concluded that the information left out of the warrant would not have changed whether probable cause was present. The court also rejected Gary's argument that, notwithstanding the omissions, the warrant application was not sufficient to justify a search because of the discrepancy in dates between the actual investigation and what was written on the application. Noting that the discrepancy wasn't even mentioned until the district court noticed it at the suppression hearing, it was clearly a typo and not destructive to probable cause. Even if it was, the Leon good-faith shield saved the search.
Thursday, June 12, 2008
The real action, from the more mundane perspective, involves sentencing. Ali's Guideline range called for a mandatory life sentence. At sentencing, the district court varied down to 360 months, based on both the particular facts of Ali's offense and background (he never actually perpetrated any violent acts, no violence in his past, etc.) as well as comparison with what the district court thought were two similar cases - those of John Walker Lindh and Tim McVeigh/Terry Nichols. Noting that Lindh only got 20 years and Nichols got life where his offense involved actual killing, the district court concluded that a variance to 360 months was necessary.
On appeal, the Fourth Circuit vacated the sentence, 2-1. The majority heavily dissected the district court's comparison between Ali's case and Lindh/Nichols and concluded that it gave too much weight to those comparisons, which were flawed to begin with. The majority did not state categorically that a 360-month sentence would always be unreasonable, but vacated and remanded for further proceedings. Judge Motz dissented on the sentencing issue, arguing that the majority's review ignored Gall and failed to provide the proper level of deference to the district court's sentence, concluding that it was a reasonable sentence, if not ,perhaps, the most reasonable.
Monday, June 02, 2008
On appeal, Evans argued that his sentence was unreasonable. After holding the case in abeyance pending the outcome of Gall, the Fourth Circuit affirmed the sentence. The court reviewed the record and concluded that the district court "carefully and thoroughly applied the prescribed sentencing factors" when imposing sentence. Affirmance was necessary, given "the requisite deference we must accord to the considered judgment of the district court." The court then specifically rejected Evans's argument that the Guidelines prohibited a departure on the grounds relied upon by the district court (the district court cited some Guideline provisions during the sentencing), concluding that if the sentence is reasonable and the district court was applying the 3553(a) factors the Guideline analysis was irrelevant. The court also rejected Evans's argument that the scope of the variance was too great. Judge Gregory concurred in the judgment, but wrote separately to "encourage a more tempered overall approach to the substantive reasonableness analysis."
Tuesday, May 20, 2008
At a second trial, Lentz was again convicted, partly due to evidence of a murder for hire plot he hatched from jail against witnesses from the first trial and some of the AUSAs. Unfortunately, Lentz discussed the plot with a cellmate who turned informant. Even more unfortunately, Lentz discussed the plot with his attorney in phone calls from the jail that were recorded. Lentz moved to exclude evidence from both sources, with only partial success. While some of the informant's testimony was excluded because it came after a meeting with investigators that essentially turned him into a Government agent, testimony about earlier conversations with Lentz and the attorney phone calls were admitted.
Lentz raised several unsuccessful issues on appeal. First, he argued that the district court constructively amended the indictment by instructing the jury that, for purposes of the kidnapping statute, the District of Columbia was a "state." The Fourth Circuit rejected the argument that the district court's instruction amended the indictment, which alleged travel from Virginia to Maryland, holding that the indictment never required proof of travel directly from Virginia to Maryland, only that they be the starting and ending points. Second, Lentz argued that the district court erred by allowing any evidence of the murder-for-hire plot into evidence. As to the informant's testimony, the Fourth held that the statements from Lentz made prior to the informant becoming a de facto Government agent were not acquired in violation of the Sixth Amendment. As to the phone calls with his lawyer, the Fourth held that the calls fell clearly into the crime-fraud exception to the attorney-client privilege. The Fourth also rejected Lentz's argument that the statements were unduly prejudicial and that, in their redacted form as presented at trial, they violated the rule of completeness found in FRE 106. Third, the Fourth rejected Lentz's argument that hearsay statements made by his wife about the OJ Simpson case (i.e., that Lentz told her "if OJ can do it and get away with it, so can I") were admissible under the "forfeiture by wrongdoing" exception in FRE 804.
Black was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the officers did not have reasonable suspicion to seize and pat him down. The district court denied the motion. On appeal, the Fourth Circuit affirmed. On appeal (at least), everyone agreed that the encounter between Black and the officers was consensual and did not implicate the Fourth Amendment until the officer said. "I don't want to have to shoot you." Based on the totality of circumstances up to that point, the Fourth Circuit held that there was reasonable suspicion to believe Black possessed a weapon.
Judge Gregory dissented, writing that he "cannot accept that Fourth Amendment protections are suspended or reduced in so-called 'high-crime' neighborhoods.'" For Judge Gregory, the seizure took place when Black was first asked to remove his hand from his pocket.
The next day, Cain was returned to the courthouse for a meeting with the DEA agents and an AUSA. By this point, the CJA panel had been informed of its appointment to represent Cain, but it's not clear when a specific attorney was appointed. The interview went ahead, after Cain had been advised of his Miranda rights. Based in part of what was said during that interview, Cain was charged with multiple drug distribution counts. Cain filed a motion to suppress his interview statements, arguing that his Sixth Amendment rights were violated because the agents/AUSA did not attempt to contact his CJA attorney. The district court granted the motion.
On appeal, the Fourth Circuit reversed. Noting that Cain's Sixth Amendment rights had attached, the court nonetheless held that the record showed Cain's repeated attempts to initiate contact with the DEA agents. Furthermore, Cain was advise of his Miranda rights three separate times, including right before the interview. In such circumstances, his Sixth Amendment rights were not violated. The Fourth also rejected the district court's alternate holding that the statements should be excluded under the court's supervisory power because the Government violated the court's CJA plan.
Proceeding only on Mathis's claim (because the other codefendant admitted at oral argument that he was responsible for more than 50 grams of crack), the Fourth Circuit concluded that Collins had been violated and returned Mathis's case to the district court. Of particular importance, the court rejected the Government's argument that Booker effectively overruled Collins, noting that Collins dealt with mandatory statutory sentencing ranges, not advisory Guideline ranges. The court then quickly rejected challenges by other codefendants to their convictions and sentences. Judge Niemeyer dissented from the Collins holding, arguing that the majority's position was incompatible with that case as well as Booker.
Tuesday, May 13, 2008
The district court and the Fourth Circuit agreed with the Government, holding that "retail value" comes from taking the highest of the "face value," "par value," or "market value" in the retail context. Applying that definition, the evidence was sufficient to sustain Armstead's conviction.
On appeal, the Fourth Circuit reversed and held that Tate was entitled to a Franks hearing. The court held that Tate "clearly described the nature of [the officer's] omissions; he gave reasons for why he considered the omissions deliberately deceptive and material; and he proffered evidence in support of his position . . .." The court noted that the Government's argument, which "essentially parrot[ed]" the district court's, that the statement in the application was literally true fails to deal with the nature of the omitted facts. Finally, the court held that if Tate's factual assertions are true the officer illegally searched Tate's garbage and therefore lacked probable cause to obtain the warrant.
On appeal, the Fourth Circuit affirmed. Mir raised his Sixth Amendment argument, which was rejected by the court. The Fourth Circuit held that Mir's invocation of his right to counsel on the conspiracy and fraud charges did not apply to the separate offense of witness tampering. Although the two sets of offenses have "a point of factual overlap," they are still separate offenses. In addition, the Fourth Circuit held that the district court did not abuse its discretion in not severing the witness tampering charge from the others, noting that it "would have made little sense."
Friday, May 02, 2008
On appeal, Benton made three arguments, all of which the Fourth Circuit rejected. First, he argued that he had the right to withdraw his plea for "any reason or no reason" because the magistrate judge lacked the authority to accept the plea. Because Benton did not make the argument to the district court, the Fourth reviewed it for plain error. The Fourth found there not to be error at all, concluding that magistrate judges can accept guilty pleas, so long as the district court can review that acceptance de novo. The court noted that a "fair and just reason" for withdrawing a plea (as required once it has been accepted) would be a defective plea proceeding before a magistrate judge. Second, he argued that his plea was not knowing and voluntary because the magistrate judge failed to adequately explain the elements of the offense and incorrectly stated the maximum term of supervised release he faced. Finally, Benton renewed his argument that his original counsel was ineffective.
On remand (pre-Gall), the district court varied again, but only down to 36 months. In doing so, it indicated that any greater variance would only result in another reversal from the Fourth. At a post-sentencing bond hearing, the court said if it were not "laboring under the Fourth Circuit's constraints I would have done something considerably different." Not surprisingly, Curry appealed. Equally unsurprisingly, the Fourth Circuit affirmed the sentence. Noting that it could only pass judgment on the sentence actually given ("That the district court judge expressed frustration with the law does not make the law any less binding"), the court concluded that the 36-month sentence imposed by the district court was reasonable.
On appeal, Abuelhawa unsuccessfully made two arguments. First, he argued that a conviction under 843(b) couldn't be sustained if the crime that was facilitated was the simple distribution of drugs for personal use. Noting that the circuits are split on this issue, the Fourth Circuit focused in on what it meant to "facilitate" a crime, giving that word its plain meaning. The court also noted that the statute prohibits the use of the communication facility to commit a felony, but doe not identify whose felony it must facilitate. As a result, the court concluded that Abuelhawa's use of the phone facilitated Said's distribution of cocaine to him, as it made the distribution easier. That Abuelhawa's simple possession of cocaine is not a felony is "simply irrelevant." Second, Abuelhawa argued that the evidence was insufficient to sustain his conviction because any actual distribution of cocaine as a result of the two sets of phone calls. After reviewing the evidence, the Fourth Circuit rejected that argument and affirmed Abuelhawa's conviction.
Wednesday, April 23, 2008
On appeal, Reid argued (via plain error) that the district court's instructions left the jury with three options: convict of conspiracy involving more than 50 grams of crack, convict of more than 5 but less than 50 grams of crack, or acquit. The Fourth Circuit agreed, in a strange way, holding that the district court did indeed err in its instructions to the jury, but only because it tied the crack amounts to a "guilty" verdict in the first place. As the Fourth explains:
in order to obtain a conviction on Count 1, the government was required to prove that (1) an agreement to possess cocaine with intent to distribute existed between two or more persons; (2) Reid knew of the conspiracy; and (3) Reid knowingly and voluntarily became a part of this conspiracy. In instructing the jury that a specific drug quantity was an element of conviction under § 841(a), the district court misstated the law and heightened the government’s burden of proof.
(citation omitted). So there was error and it was plain, but Reid could not show prejudice because the sentence he received on that count (240 months) was the maximum allowed for a conviction without regard to a specific amount of crack. The court also rejected Reid's sufficiency challenge to his convictions.
Wednesday, April 16, 2008
On appeal, Martin raised two arguments. First, she argued that the evidence was insufficient to sustain convictions for arson and use of fire. The Fourth Circuit rejected that argument, noting that while there was no direct evidence linking Martin to the fire, there was sufficient circumstantial evidence (motive, she was the last person in the building, lying to investigators) for a reasonable jury to conclude that she was guilty. Second, martin argued that her simultaneous convictions for arson, use of fire, and mail fraud violated the Double Jeopardy clause. Again, the Fourth Circuit disagreed, holding that separate sentence for use of fire was clearly meant to apply as punishment in addition to the underlying crime (mail fraud, in this case) and that arson and use of fire are separate offenses when analyzed under the Blockburger test.
Monday, April 14, 2008
On appeal, the Fourth Circuit affirmed the district court's denial of Rodriguez-Amaya's motion. The court held that the Speedy Trial Act clock did not start running until the federal criminal warrant was executed on October 27. The court followed the lead of other Circuits and concluded that the civil detention, as in this case by ICE, does not trigger the running of the STA clock. However, the court also held that there is a "ruse exception" to that rule, which applies when "the 'primary or exclusive purpose of the civil detention was to hold [a defendant] for future criminal prosecution.'" The court had "little trouble" concluding that there was no evidence of such shenanigans in this case.
On appeal, the Fourth Circuit affirmed, concluding that Diaz-Ibarra's prior conviction was a crime of violence. Specifically, "crime of violence" in 2L1.2 is defined as including "sexual abuse of a minor." Diaz-Ibarra conceded that his offense was "sexual" and involved a minor, but argued but it was not "abuse." Applying a definition of abuse that goes well beyond the common sense one, the court concluded that "abuse" included situations where there is no physical contact between the assailant and minor where the assailant intends to gratify himself sexually, regardless of the effect on the victim. Given that definition, Diaz-Ibarra's Georgia conviction constituted sexual abuse of a minor and, thus, a crime of violence.
Friday, April 11, 2008
On appeal, the Government and defense agreed that the district court plainly erred by imposing the enhanced sentence. The Fourth Circuit agreed, as well, following the lead of numerous other courts in importing Lopez's holding into the sentencing process. It therefore vacated Matamoros-Modesta's sentence and remanded for resentencing.
Congrats to the WDNC FPD office on the win!
Tuesday, April 08, 2008
On appeal, the Fourth Circuit vacated and remanded. Hairston argued that the district court failed in not notifying him at the plea hearing that he could be subject to a 15-year term on the felon-in-possession charges. The Government conceded the error. The Fourth Circuit agreed, noting that while Rule 11 does not require courts to inform defendants of what Guideline range they might face, it does require notification of any applicable statutory ranges. Furthermore, the error was not harmless. Without the ACCA enhancement, the district court could have imposed a minimal non-Guideline sentence on the counts without mandatory minimum sentences, effectively sentencing Hairston to only(!) 30 years in prison. For a remedy, the Fourth Circuit vacated Hairston's guilty plea with respect to all counts, not just the felon-in-possession counts, as requested by the Government.
Friday, March 21, 2008
Brewer appealed his sentence, which the Fourth Circuit affirmed. First, the court reasserted its holding that it cannot review a district court's decision not to depart except on the ground that the court was incorrect in its ability to depart. As there was no question that the district court knew it could depart and chose not to do so, the Fourth left that decision intact. Second, the Fourth Circuit held that Brewer's sentence was not unreasonable, given that it was at the bottom of the advisory Guideline range. The court took the opportunity, in the course of its reasonableness review, to address the recent change to the crack Guideline, holding that it would not remand the case for the district court to consider the amended Guidelines, leaving that to a future proceeding under 18 USC 3582(c)(2).
Wednesday, March 12, 2008
On appeal, the Fourth Circuit reversed. The court held that the plain meaning of 18 USC 1028A requires the use of a means of identification that "may be used to identify a specific individual." Ordinarily, a name standing alone would not be sufficient to meet that requirement. While a couple of other bits of information on the fake ID matched one of the real Marcus Jacksons, they were so vague as to not show that Mitchell was presenting himself as a real Marcus Jackson. Because only the name in this case could be traced to a specific person, the Government failed to meet its burden of proof. Mitchell's conviction was reversed and his case remanded for resentencing.
The Fourth Circuit affirmed, concluding no Double Jeopardy violation occurred. First, the court determined that distribution and conspiracy have distinct elements and thus are not the same offense. It rejected Yearwood's attempt to link the "knowingly associate" element of aiding and abetting with the conspiracy element of "knowingly and voluntarily" becoming part of the conspiracy. Second, the court concluded that the collateral estoppel element of Double Jeopardy was not violated, as the conspiracy charge did not require the relitigation of factual issues resolved in the first trial. In doing so, it followed cases from the Fifth and Eleventh Circuits. The court also turned away Yearwood's challenge to the sufficiency of the evidence underlying his conviction.
Wednesday, February 27, 2008
On appeal, Go argued that the district court incorrectly concluded that it could not impose a sentence below the bottom of the advisory Guideline range without committing reversible error. At sentencing, the district court said, in part:
The Fourth Circuit rejected Go's argument, deriding his "selective" use of the record, and holding that the district court ultimately imposed the sentence it did because it was consistent with the other sentences handed out in the case. The court held that it was "clear from the sentencing record that the district court was not under the misapprehension that it could not impose a sentence outside of the advisory Guidelines range." The court also rejected Go's argument that his sentence was unreasonable.
[The presumption of reasonableness] may mean that the guidelines are still mandatory. I don't know. But it sure sounds like when they say that they're reasonable that they're saying if a judge gives a sentence outside the guidelines, then it's per se not reasonable.
There are cases that say that it is not a proper application of the law and maybe some day the Supreme Court will decided that [see Rita, Gall, etc.]. But the point is at this moment, I'm bound to apply the guidelines as a reasonable range of punishment.
* * *
Congress has set forth a range of punishment that I have to choose from, and that range of punishment is what I said earlier, 188 to 235 months.
It's worth noting that, in a footnote, the court noted that Go did not claim that the district court treated the Guidelines as presumptively reasonable and that "if the district court had done so, it would have erred." Still, it's hard to see how a district court that concludes the Guideline range is the "range of punishment that I have to choose from" set forth by Congress hasn't done just that.
Wednesday, February 13, 2008
On appeal, the Fourth Circuit affirmed both Wallace's convictions and his sentence. The court rejected Wallace's argument that he should have been granted a mistrial or immediate curative instruction when a Government witness started to discuss the details of the domestic dispute, which had been ruled off limits in a pretrial order. Counsel objected immediately, but waited until a break in the proceedings to ask for a mistrial or curative instruction. The trial court denied the mistrial and gave a curative instruction during the closing jury charge. The Fourth Circuit found no error. The court also rejected Wallace's challenge to the sufficiency of one of the firearm convictions, using a plain error review (counsel failed to move for a judgment of acquittal at trial). Finally, the court held that Wallace's sentence, within the Guideline range, was reasonable.
The Government appealed the district court's post-trial rulings and the Fourth Circuit reversed. As to the money laundering charges, the court rejected the district court's reasoning that the money Powell's prostitutes paid to Singh and Patel for the use of the motel rooms were separate from the underlying Mann Act offense. The court concluded that the Mann Act violation was complete once money was paid for sex and the later passage of some of those funds to the motel managers promoted that unlawful activity. The court also reversed the district court's conclusion regarding the company, holding that Patel's actions at his motel were undertaken within the scope of his employment.
Singh and Patel also appealed. First, the challenged the sufficiency of the evidence supporting the Mann Act convictions. They argued that they neither induced the prostitutes' interstate travel nor knew of Powell's inducements. The Fourth Circuit rejected that argument, noting that the Singh and Patel required the prostitutes to fill out registration forms on which they listed their out of state addresses. The court also noted that given Martinsburg's proximity to Virginia, Maryland, and Pennsylvania, it was reasonable that Singh and Patel knew that Powell would recruit from those areas. Second, the court rejected the argument that the district court erred by preventing Singh and Patel from offering evidence that Powell's daughters were involved in the prostitution ring and Powell made a deal with the Government party to shield them from prosecution. Third, the court rejected Singh and Patel's Batson argument regarding the only minority juror struck by the Government. Finally, the court held that Singh and Patel were properly tried together.
As a result, the entire case was remanded to the district court for resentencing in light of the original verdict being reinstated.
Tuesday, February 05, 2008
At trial, Boynes was convicted on all counts. Before sentencing, Boynes filed a bar complaint against counsel, resulting in the appointment of a third attorney. That attorney then filed a motion for a new trial arguing, for the first time, that Boynes's waiver of a jury trial was not knowing and voluntary. After a hearing, which included testimony from counsel #2 but not Boynes, the district court denied the motion. Boynes was sentenced to life in prison, plus 480 months.
On appeal, Boynes argued that his jury trial waiver was not knowing and voluntary. Specifically, he argued that the district court should have undertaken some on the record inquiry into Boynes's wishes, particularly given the strained relationship he had with counsel. The Fourth Circuit disagreed, 2-1, and upheld the conviction. The court held that, although it is better practice to make such inquiries, it is not required by either the Rules of Criminal Procedure or the Sixth Amendment. Dissenting, Judge Gregory argued that the determination of whether a waiver of a jury trial is knowing and voluntary cannot be made post-trial and therefore must be resolved before a bench trial goes forward.
Monday, February 04, 2008
On appeal, the Fourth Circuit rejected several of Udeozor's arguments on the way towards upholding the convictions. First, the court held that the district court did not err by admitting evidence of Udeozor's husband's sexual abuse of the victim during Udeozor's trial. The court concluded that the use of sexual abuse to maintain control of the victim was part of the conspiracy between Udeozor and her husband, even if there was conflicting evidence as to whether she knew about the abuse. Second, the court held that recordings of phone conversations between Udeozor's husband and the victim were properly admitted as statements against penal interest under FRE 804(b)(3). The court also rejected Udeozor's confrontation argument, holding that her husband's statements (made to the victim who was acting at police behest) were not "testimonial" and thus not subject to a Crawford analysis. Finally, the court held that the district court did not abuse its discretion by using a two-page verdict form, with three special findings (on sentencing issues) on the second page.
Wednesday, January 30, 2008
On appeal, the Fourth Circuit affirmed both his conviction and sentence. Regarding the conviction for conspiracy, Osborne argued that while the evidence was sufficient to support his role in the robbery and possession, it wasn't sufficient to prove that he conspired with McCrae. The Fourth Circuit disagreed, noting evidence of their cooperation before and after the robbery (some of it provided by Osborne's son, who overheard the preparations). As to sentencing, first Osborne argued that his Guideline should not have been enhanced for abducting the pharmacist and technician because he did not take them out of the Walgreens - in other words, to "another location." The court rejected that argument (partly relying on previous unpublished Fourth Circuit authority) and concluded that moving the pair from one part of the store to another met the definition. Second, the court rejected Osborne's argument that a prior conviction for shoplifting should not have been included in his criminal history score.
Monday, January 28, 2008
Loconti approached McCoy and, eventually, placed him in handcuffs. A pat-down search of McCoy produced nothing, but McCoy's girlfriend helpfully responded to Loconti's query admitting that McCoy had participated in a drug deal. A search of the car produced marijuana and cash, which McCoy admitted were his and that he had crack cocaine concealed in his hindquarters. That evidence was supplemented by a search of McCoy's home several months later. McCoy filed a motion to suppress that evidence after being charged with drug and firearms charges. The district court granted the motion, holding that when Loconti seized McCoy, he lacked reasonable suspicion to believe that criminal conduct was afoot.
The Government appalled and the Fourth Circuit reversed, 2-1. The court held that the district court improperly focused on what the officer didn't know about what was going on, rather than the totality of the information he did have. Particularly important to the court was Loconti's previous experience with drug deals occurring in grocery story parking lots. The myriad of potentially innocent behaviors that Loconti observed were sufficient, with his experience, to support reasonable suspicion. However, the court was quick to note that "[t]his is not to say that a wealth of experience will overcome a complete absence of articulable facts." District Judge Wilson concurred, emphasizing the importance of the fact that the truck sped away when Loconti went to intercept McCoy. Judge Gregory dissented, arguing that the majority's "holding renders law enforcement - not the courts - the sole arbiter of what qualifies as reasonable suspicion."
After being indicted for drug and firearms offenses, Mowatt moved to suppress the evidence against him, arguing that the officers engaged in an unlawful warrantless search when they barged into his home. The district court denied the motion, holding that the officers had probable cause to arrest Mowatt for marijuana possession and that a warrant wasn't required because they arrived at the apartment to "resolve a noise complaint" rather than search for drugs. Mowatt went to trial, was convicted on all counts, and was sentenced to 197 months in prison.
On appeal, the Fourth Circuit unanimously reversed. First, the court rejected the Government's argument that forcing Mowatt to open his door and thus being able to see inside was not a "search" within the meaning of the Fourth Amendment. Second, the court held that even if the officers had probable cause when the door was opened, they lacked a warrant and there were no exigent circumstances to justify proceeding without one. Third, the court held that the search warrant eventually obtained (after the forced entry, struggle with Mowatt, etc.) was tainted by the illegal entry. Mowatt's convictions were reversed and his case returned to the district court for further proceedings.
Thursday, January 24, 2008
On appeal, Chandia challenged both his convictions and sentence. The Fourth Circuit rejected the arguments Chandia raised with regards to his conviction. First, the court concluded the affidavits submitted to obtain warrants to search Chandia's home and car were sufficient to support probable cause and that Chandia was not entitled to a Franks hearing on the issue of inaccuracies/omissions from those affidavits (using a plain error standard because Chandia did not specifically request a Franks hearing in the district court). Second, the court rejected several constitutional arguments against the statutes under which Chandia was convicted, relying on the prior resolution of those issues in US v. Hammoud, 381 F.3d 316 (4th Cir. 2004). Third, the court rejected Chandia's argument that the counts on which he was convicted were duplicitous and violated due process. Finally, the court rejected Chandia's argument that the district court erred by allowing the Government to play for the jury excepts of a CD-ROM video glorifying the 9-11 attacks that was found in Chandia's home. Even if it was error (which the court doesn't say), the error would be harmless given the limited roll of the excerpts at trial.
While sustaining Chandia's convictions, the court did vacate his 180-month sentence. The court concluded that, although the district court utilized the Guideline range provided by the 3A1.4 terrorism enhancement, it failed to make specific findings supporting the enhancement. The court rejected the idea that the mere fact that Chandia was convicted of one material support count justified the enhancement. In a footnote, the court noted that it was not resolving the issue of the proper burden of proof for 3A1.4 enhancements (preponderance of the evidence v. clear and convincing evidence), leaving the issue open for a case "where we are presented to relevant findings."
Friday, January 18, 2008
Prior to sentencing, the probation officer calculated Fancher's Guideline range to be 180-210 months. The PSR mentioned "mitigating" factors and also that "[g]iven the defendant's criminal history and the ages [of] and relationship to his victims[,] the Court may which to consider a sentence pursuant to [3553(a)] to meet the objectives of sentencing." After the PSR was completed, the probation officer was contacted by the mother of a 16-year-old girl to whom Fancher had been writing letters while incarcerated proclaiming his love for her and requesting (among other things) that she send him pictures. At sentencing, Fancher argued for a 180-month sentence, while the Government sought a 210-month sentence. Concluding that Fancher was beyond rehabilitation, the district court imposed the maximum sentence of 480 months in prison.
On appeal, the Fourth Circuit vacated Fancher's sentence. Applying US v. Spring, 305 F.3d 276 (4th Cir. 2002), the court held that while the language in the PSR was sufficient to meet the notice requirements of Rule 32(h), it was not adequate to prompt the parties to present arguments about the propriety of a variance. In Spring's words, the PSR "informed counsel that it needed to prepare arguments on this issue, but not that they needed to present them." Applying harmless error review (Fancher objected to the lack of notice after sentence was imposed) and concluding that, based on post-sentencing proffers made by counsel, that the district court's concerns would have been addressed (if not alleviated), the court held that the error was not harmless. Fancher's case was remanded for resentencing.
Nice work by the FPD office in the Northern District of WV on the win!
Thursday, January 10, 2008
On appeal, the Fourth Circuit reversed, agreeing with Blackstock that the court's prior decision in US v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), was not consistent with the Supreme Court's later decision in US v. Castro, 540 U.S. 375 (2003). Castro makes notice mandatory in cases like Blackstock's, whereas Emmanuel contained an exception to the notice rule that the district court had applied.
On appeal, the Fourth Circuit reversed. Applying the Supreme Court's decision in Florida v. J.L (as filtered through the Fourth's decision in Perkins), the court easily concluded that the anonymous tip was not sufficiently corroborated to provide a basis for the stop, rejecting several Government arguments to the contrary. First, the court rejected the Government's argument that the caller provided "predictive" details of Reaves's route, correctly noting that "predicting" involves some time of projection into the future, not merely the passing on of information gleaned from following someone. Second, the court rejected the Government's argument that the tip gained reliability from the caller's staying on the line with the dispatcher, even though she wanted to remain anonymous. Finally, the court concluded that the fact that the caller was providing a "nearly contemporaneous" report of criminal activity was not sufficient to support the stop.
Congrats to the FPD office in Baltimore on the victory!