US v. Lentz: Lentz was charged with kidnapping resulting in death stemming from the disappearance of his wife. The Govt theorized that Lentz lured his wife from her home in Virginia to his home in Maryland, where he then killed her.After trial, the district court granted Lentz's motion for a judgment of acquittal on the ground that the Govt failed to prove that Lentz "held" his wife for any period of time before killing her. The district court also granted Lentz's motion for a new trial due to two of the victim's dayplanners that had not been admitted into evidence popping up in the jury room. The district court went so far as to find that an AUSA had intentionally slipped the dayplanners, which contained notes from the victim detailing her abusive relationship with her husband, into the jury room to taint the jury. The Fourth Circuit affirmed the new trial motion and remanded for a new trial.
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.
Tuesday, May 20, 2008
Court Upholds Terry Patdown in High-Crime Area
US v. Black: Black was walking home in a "high crime" area of Richmond when he passed a marked police car. An officer in the car engaged Black in conversation and became suspicious that Black might have a weapon in his pocket. When asked, Black took his left hand out of his coat pocket, but only after being asked twice. At that point, the officer saw a bulge that he suspected was a firearm. Asked what he had in his pocked, Black said it was just money and an ID. Black then put his hand back in his pocket. At that point, the officer said, "take your hand out of your pocket, I don't want to have to shoot you." Another officer then patted down Black and identified the bulge as a firearm. After being hand cuffed, Black admitted that he did not have a permit to carry the weapon and was a convicted felon.
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.
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.
Court Upholds Defendant-Initiated Post-IA Questioning Without Counsel
US v. Cain: Cain was arrested as part of a DEA sting. After his arrest, he told the DEA agents that he wanted to cooperate with them. The next day, Cain made an initial appearance, at which time he was determined to be eligible for court appointed counsel, although no specific attorney was appointed at that time. After the initial appearance, Cain again told the agents that he wanted to cooperate. They were unable to talk with Cain at that time.
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.
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.
Inidividual Liability Still Jury Found After Booker
US v. Brooks: Brooks and several codefendants, including Mathis, were charged with several drug counts, including conspiracy to distribute more than 500 grams of cocaine and 50 grams of crack. On appeal, Mathis and another codefendant argued that their convictions violated US v. Collins, 415 F.3d 304 (4th Cir. 2005), which required the jury to determine the amount of drugs attributable to each member of a conspiracy before a mandatory minimum could be triggered.
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.
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
Retail Value of Bootlegs Based on Value of Legit Copies
US v. Armstead: Armstead was charged with and convicted of distribution of bootlegged DVDs (100 on one occasion, 200 on another) with "a total retail value of more than $2500." The only issue below and in the Fourth Circuit was how to make a proper measure of "retail value." Armstead argued that it should be the value of bootleg DVDs on the black market, which would be the price paid in the transactions, $500 and $1000, respectively. The Government argued that it should be the value of legitimate copies of what is on the DVDs, which would make each transaction worth well over the $2500 threshold.
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.
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.
Defendant Entitled to Franks Hearing Due to Omitted Facts
US v. Tate: Tate was charged with being a felon in possession of a firearm. The gun came to light during a search of Tate's home based on a warrant obtained by a Baltimore police officer. As basis for obtaining the warrant, the officer told the state judge that he had searched through two of Tate's trash bags that were "easily accessible from the rear yard of" Tate's home and discovered marijuana residue. Prior to trial, Tate sought a Franks hearing, arguing that the officer omitted a material fact from the warrant application - that the trash bags were only "easily accessible" because the officer hopped fence (with a locked gate) and took the bags off the home's back porch. The bags had not been placed in the nearby alley, as they would be on trash pick up day. The district court denied Tate's request for a Franks hearing, holding that the officer's application was "literally true."
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 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.
Right to Counsel on Underlying Charges Not Violated by Witness Tampering Investigation
US v. Mir: Mir was an immigration lawyer who assisted employers in completing the necessary paperwork to sponsor aliens for work in the United States and to allow alien workers to become permanent US residents. The Government began an investigation of Mir and his law firm on suspicion that some of the forms he completed contained false information. During the investigation, Mir sent a letter to the Government stating that he was represented by counsel. Eventually, a grand jury indicted Mir and his law firm for conspiracy to commit labor certification fraud, fraud, and racketeering. After the indictment, investigators suspected that Mir was tampering with witnesses. The Government used two aliens as CIs, sending them to Mir's office to record conversations with him. Based on those recordings, a witness tampering charge was added to the indictment. Mir unsuccessfully moved to suppress those recordings as a violation of his right to counsel or, alternately, sever the witness tampering charge from the rest of the indictment. Mir was convicted of fraud, but acquitted of conspiracy and witness tampering.
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."
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
Magistrate Judges May Accept Guilty Pleas
US v. Benton: Benton was charged with conspiracy to distribute drugs. He reached a plea agreement with the Government, which included a provision allowing a magistrate judge to perform the Rule 11 plea hearing. That hearing took place and the magistrate judge accepted Benton's plea. Months later, Benton complained that his attorney had been ineffective by failing to adequately explain the elements of the offense to him. As a result, new counsel was appointed. After new counsel was appointed, Benton filed a motion to withdraw his guilty plea alleging that there was an inadequate factual basis, the terms were unconscionable, the Government had breached by failing to file a motion for substantial assistance, and ineffective assistance of counsel. The district court denied the motion. Benton reiterated his motion at sentencing, but it was again denied. He was sentenced to 262 months in prison.
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 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.
Court Affirms Second-Chance Variance
US v. Curry: Curry sold gold coins on eBay. Problem was, he "sold" coins which he never had in his possession. When the deals began to fall apart and jilted buyers complained, the FBI came calling. Curry was charged and convicted by a jury of multiple counts of mail fraud, wire fraud, and unlawful monetary transactions. At sentencing, Curry's Guideline range came out to be 41 to 51 months. However, the district court imposed a sentence of 12 months on each count (served concurrently), along with 12 months of home confinement, following Curry's argument for a Booker variance. The Government appealed the sentence and the Fourth Circuit vacated and remanded for resentencing.
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 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.
Cocaine Purchase for Personal Use Triggers 843(b) Liability
US v. Abuelhawa: A was charged and convicted of using a communication facility to facilitate a crime, the distribution of cocaine, in violation of 21 USC 843(b). The conviction was based on a two groups of phone calls between Abuelhawa and Said, from whom Abuelhawa purchased cocaine. After he was arrested, Abuelhawa gave a statement in which he explained that Said was his dealer. Abuelhawa was sentenced to 24 months in prison.
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.
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.
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