Tuesday, July 13, 2010

Conflict of Interest Led to Failure to Pursue Departure

US v. Nicholson: Nicholson was arrested in 2001 for being a felon in possession of a firearm. At the time he told police that he got the gun for protection because he feared for his life. That reasoning was never contradicted and even confirmed by the Government during plea and sentencing hearings. Nevertheless, Nicholson's counsel never argued it as a reason for the district court to depart (this was pre-Booker) from the Guideline range at sentencing. Nicholson was sentenced to 189 months in prison, just above the mandatory minimum required by the ACCA.

Nicholson filed a 2255 alleging ineffective assistance of counsel due to a conflict of interest - during the time trial counsel represented Nicholson, he also represented Butts, the person who had made threats against Nicholson's life that led him to get a gun. Nicholson argued that conflict prevented counsel from using the threats in an argument for a lower sentence. The district court initially concluded that there was no conflict of interest, a conclusion that the Fourth Circuit rejected in 2007. On remand, the district court concluded that the conflict did not adversely affect trial counsel's performance and therefore denied Nicholson's motion.

The Fourth Circuit disagreed, again, and reversed the district court's holding. As for exactly what Nicholson was facing when he was arrested:
[H]is brother, Rudolph Nicholson, agreed in early 2000 to assist federal officers in their criminal investigation of Butts and his associates — prompting Butts to issue a series of threats against Rudolph and other Nicholson family members. On March 3, 2000, brother Rudolph was shot seven times by Butts’s son in Portsmouth, but survived the attack. Rudolph was treated for two months in a Norfolk, Virginia hospital,where a would-be assassin disguised as a priest — actually Butts himself — unsuccessfully attempted to enter Rudolph’s room and kill him. Around May 2000, federal officers informed Nicholson and his mother, Sandra Nicholson (whom Butts also threatened), that Butts had placed a contract on Nicholson’s life. On September 18, 2000, Nicholson’s stepfather, Charles Nicholson, was fatally shot multiple times on a Portsmouth street by Butts and his accomplices.
(footnote omitted).

Applying the three-part test in Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001), the court held that (1) there was a plausible alternative strategy that trial counsel could have pursued, (2) that strategy was objectively reasonable based on the facts of the case known to counsel at the time, and (3) counsel's failure to pursue that strategy was due to the conflict of interest. On the record there was "overwhelming evidence - believed and even endorsed by the Government - that Nicholson faced . . . a genuine threat of death." Thus, the court vacated Nicholson's sentence and remanded the case for resentencing before a different judge.

District Judge Neely dissented to the court's opinion only in its requirement that a new judge preside at the resentencing.

Failure to Request Informant Instruction Ineffective Assistance of Counsel

US v. Luck: Luck was convicted on four counts of drug and firearm violations by a jury. He filed a 2255 challenging his convictions on numerous grounds. After the district court determined that three of the counts were tainted by ineffective assistance of appellate counsel those counts were dismissed by the Government. As to the remaining count, conspiracy to distribute more than 50 grams of crack cocaine, the district court concluded that Luck's trial counsel was not ineffective and refused to vacate that conviction.

On appeal the Fourth Circuit disagreed and reversed the district court's ruling. Specifically, the court held that Luck's trial counsel rendered ineffective assistance by failing to request an "informant instruction" that would explain to the jury the special duty it has to weigh an informant's testimony against his motives for testifying. Two of the main witnesses against Luck were paid informants. While the court declined to adopt a rule that such an instruction must be given in any case involving informant testimony, it did conclude that such an instruction should have been given in Luck's case based on the evidence presented at trial. Trial counsel was ineffective for failing to request such an instruction and that failure was prejudicial to Luck, even though the trial court's jury instructions as a whole "contained all of the elements of the informant instruction."

Judge Shedd dissented, agreeing that counsel should have requested the instruction but arguing that Luck had not demonstrated prejudice.

Alford Plea Can't Support ACCA Prior

US v. Alston: Alston was convicted of being a felon in possession of a firearm. The PSR suggested that Alston was subject to the 15-year mandatory sentence under the ACCA due to having three prior convictions in Maryland. One of those convictions, for second-degree assault, an offense which may or may not be a "violent felony" under the ACCA, depending on how it is committed. Unable to determine how the offense was committed from the charging documents, the Government presented a transcript of the guilty plea hearing, at which the prosecutor proffered evidence alleging that Alston threatened several people with a gun - thus committing a violent felony. The plea, however, was an Alford plea, which Alston argued did not establish with "the kind of certainty that Shepard requires" which particular version of the offense he was convicted of committing. The district court disagreed and imposed a 15-year sentence.

On appeal, the Fourth Circuit vacated Alston's sentence. Noting that most circuits that have addressed the issue have adopted Alston's position, the court concluded that "a prosecutor's proffer of the factual basis for an Alford plea does not satisfy the requirements of the modified categorical approach" set forth in Shepard. Thus, Alston's sentence was vacated and remanded for resentencing.

Congrats to the FPD office in Maryland on the win!

Courts Affirms Multiple Enhancements for Bringing Gun to Probation Office

US v. Perez: Perez was an illegal alien who was arrested by ICE when he appeared for a meeting with his Maryland state probation officer. A search of his backpack uncovered a loaded handgun and additional ammunition. Perez was charged with and pleaded guilty to being a felon in possession of a firearm. At sentencing, the district court applied several enhancements not set forth in the PSR, bouncing Perez's Guideline range from 27-33 months to 63-78 months. The district court then imposed a sentence of 96 months in prison.

On appeal, Perez challenged both the calculation of his Guideline range and the substantive reasonableness of his sentence. The Fourth Circuit rejected all those arguments and affirmed. As to the Guidelines, Perez first challenged the four-level enhancement under USSG 2K2.1(b)(6), which the district court applied because Perez's carrying a loaded firearm without a safety around in public in a cloth bag constituted reckless endangerment in Maryland. The court found that conclusion was not clearly erroneous. Second, Perez challenged the two-level enhancement under 5K2.3 imposed by the district court after it concluded that it caused the probation officer psychological injury as she began wearing a bullet-proof vest and requested a transfer after 25 years in that position. The court found that conclusion was not clearly erroneous. Third, Perez challenged a two-level enhancement under 5K2.7 imposed after the district court concluded that the probation officer's transfer and the display of a sign stating its policy banning handguns from the office showed that Perez's actions "resulted in a significant disruption of a governmental function." Again, the court found that conclusion was not clearly erroneous. As for the substantive reasonableness of the sentence, the court found that the district court provided sufficient explanation for its sentence.

Defendant's Appeal Brings Successful Government Cross Appeal

US v. Young: Young was the subject of an investigation that led to the execution of an arrest warrant at his home. Police executed the warrant, arrested Young, and saw some drugs in plain view. They obtained a search warrant and eventually recovered a large amount of cash and cocaine. Young moved to suppress that evidence, arguing that the police failed to knock and announce their presence before entering his home. The district court disagreed and denied the motion. Young went to trial and was convicted of two drug offenses by a jury, which returned a special verdict form concluding that Young was responsible for between 500 grams and 5 kilograms of cocaine. The PSR, however, held him responsible for between 50 and 150 kilograms of cocaine. At sentencing, the district court went with the jury's finding, concluding it was bound by it and imposed a sentence in the middle of the resulting Guideline range.

Young appealed both his conviction and sentence and the Government cross appealed on the sentence. The Fourth Circuit affirmed Young's conviction, but vacated his sentence. As to the conviction, the court first affirmed the district court's denial of the motion to suppress. The court rejected Young's argument that the police should have waited longer for a response after knocking. In a footnote, the court rejected the Government's invitation to conclude that the Supreme Court's decision in Hudson, which held that suppression was not an appropriate remedy for knock and announce violations in the execution of a search warrant, also applied to the execution of arrest warrants. Next, the court concluded that the evidence was sufficient to sustain Young's convictions.

As to sentencing, the court rejected Young's arguments as all foreclosed by circuit precedent. The Government's cross appeal, however, was another matter. The Government argued that the district court erred by concluding that the jury's findings as to drug quantity bound it at sentencing, aside from setting the applicable statutory maximum/minimums. The court agreed. Even though the jury's findings were that of a "lesser included offense" of the 5 kilogram amount alleged in the indictment, that finding did not bind the district court. The district court was free to evaluate drug quantity at sentencing as it could with any acquitted conduct. The fact that the Government chose not to present all its drug quantity evidence at trial was irrelevant (the Government did present evidence at sentencing that the district court concluded would support a higher Guideline range). Therefore, the sentence was vacated and the case remanded.

Employee Filing False Timesheets With Employer Under NSA Contract Within Scope of 1001

US v. Jackson: Jackson worked for Northrop Grumman, a sub-contractor on a "time-and-materials" contract with the NSA. During his employment, Jackson submitted false timesheets to his employer. He was charged with 20 counts of making false statements under 18 USC 1001. He moved to dismiss, arguing that his statements were not made "in relation to a matter within the jurisdiction of the executive branch." The district court denied the motion and Jackson entered a conditional guilty plea to three counts.

On appeal, the Fourth Circuit affirmed the denial of the motion to dismiss. On appeal, Jackson argued that because the NSA was created by executive order rather than a statute it had "no statutory basis" to access his timesheets. Noting that the "authority to safeguard federal funds" is "an official, authorized function of the executive branch," the court held that authority was, in itself, a sufficient jurisdictional nexus to bring the case within the reach of 1001. However, the court also noted that the NSA had an additional power when it came to Jackson - it could revoke his security clearance and terminate the contract under which her worked - that strengthened the nexus.