Thursday, December 30, 2010

Intermediate Scrutiny for Second Amendment Review of MCDV Cases

US v. Chester: Police were called to Chester's home during a dispute with his then wife. A search of the home uncovered a pistol and a shotgun, which Chester admitted belonged to him. He was charged with possession of firearms after being convicted of a misdemeanor crime of domestic violence, based on an earlier incident involving his daughter. Chester moved to dismiss the charge, arguing that it violated his Second Amendment right to keep and bear arms, as set forth in the Supreme Court's Heller decision. The district court denied the motion, and Chester pleaded guilty, reserving his ability to appeal the denial of the motion to dismiss.

On appeal, the Fourth Circuit initially vacated Chester's conviction in an unpublished opinion, remanding for the district court to identify a specific level of scrutiny and apply it. The Government sought rehearing, which the panel granted. In this published opinion, the court identifies the correct level of scrutiny, but vacates Chester's conviction to remand for application of that standard. The court adopted the two-step process set forth in the first opinion, based on the panel decision in US v. Skoien, 587 F.3d 803 (7th Cir. 2009), although that decision was later vacated by an en banc court.

As a first step, the court assumed (because the historical evidence was unclear) that Chester's possession fell within the general parameters of the Second Amendment. The court then held that the proper level of scrutiny to apply was intermediate scrutiny, analogizing to the lesser protections under the First Amendment for commercial speech and time, place, manner restrictions. On this record, the court could not conclude that the Government met its burden under that standard, noting that while the Government "has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal . . . it has not attempted to offer sufficient evidence to establish a relationship between [this prohibition] and an important government goal." Therefore, the court remanded to the district court for further proceedings.

Judge Davis concurred in the judgment, but took the majority to task for relying too heavily on analogies between the First and Second Amendments. He endorses the result of the en banc decision in Skoien and argues that the district court will have no trouble concluding that Chester is not protected from conviction by the Second Amendment.

Watson's New Rule Applies Retroactively

US v. Thomas: Thomas was convicted of methamphetamine possession and possession of a firearm in connection with a drug trafficking offense. He received a total sentence of 90 months in prison. He did not appeal. After Thomas was sentenced, the Supreme Court handed down the Watson decision, in which it held that a person doesn't "use" a firearm under the statute if he receives it in trade for drugs. Thomas filed a pro se 2255 motion seeking to vacate his sentence. Although it was filed after the normal 1-year statute of limitations had run, it was filed within one year of Watson being decided. The district court dismissed Thomas's motion, holding that Watson did not announce a new rule of constitutional law and, at any rate, was not retroactive.

On appeal, the Fourth Circuit disagreed and overruled the district court's decision. The Government conceded that Watson announced a new rule and was retroactive. However, it argued that Thomas defaulted on the issue by not raising it on direct appeal. Turning first to the impact of Watson, the court agreed with other circuits that it may determine retroactivity, rather than waiting for the Supreme Court to do so. It then concluded that Watson announced a new rule and that rule applied retroactively, thus obliterating the district court's basis for denying Thomas's motion. However, because that dismissal came before the Government responded to the motion, and due to some ambiguity in the motion itself, the court declined to decide the waiver issue raised by the Government and simply remanded the case to the district court for further proceedings.

Possession of Sawed-Off Shotgun Is Crime of Violence

US v. Hood: Hood was convicted of drug and gun offenses and sentenced as a career offender. He objected to that classification, arguing that a prior North Carolina conviction for "possession of a weapon of mass death and destruction" (actually a sawed-off shotgun) was not a crime of violence. The district court disagreed and the Fourth Circuit affirmed.

Holding that earlier precedent on the issue was obsolete in light of Begay, the court nevertheless found that possession of a sawed off shotgun was a crime of violence. Distinguishing the Guideline issue from the related Armed Career Criminal Act definition of "violent felony" (the court has held, in an unpublished case, that possession of a sawed-off shotgun is not a violent felony), the court noted that Guideline commentary specifically includes possession of a sawed-off shotgun in the definition of crime of violence. Therefore, it qualified as such, even under a Begay analysis.

Tuesday, December 28, 2010

District Court Must ID Statutory Basis for Restitution Order

US v. Leftwich: Leftwich was convicted of mail fraud and making false claims, after participating in a scheme that saw the IRS pay out more than $2 million in false tax refunds. An issue at sentencing was whether the district court would order restitution. At the guilty plea hearing, the district court noted it had the authority to order restitution, but did not indicate the source of that authority. Prior to sentencing, Leftwich filed a memorandum arguing that the Mandatory Victims Restitution Act did not apply in his case and that, while the Victim Witness Protection Act did apply, the statutory factors to be considered under that Act negated an award of restitution. The Government did not respond to that argument at all (leading to a written lashing from the Fourth Circuit). At sentencing, the district court ordered restitution, but did not indicate its statutory basis for doing so.

On appeal, the Fourth Circuit vacated the order of restitution. The court held that without the district court identifying on what basis it ordered restitution, the court could not review that order for abuse of discretion. The MVRA and VWPA each have different procedural and substantive nuances which must be taken into account before ordering restitution. The court vacated and remanded to the district court for further proceedings as to the basis for the restitution issue.

Court OK's Assault Enhancement & Felony Enhancement Arising From Flight From Police

US v. Hampton: Hampton was a passenger in a car that was stopped for a broken taillight. During the stop, officers noticed that he was "exhibiting signs of nervousness." When the driver was arrested on an outstanding warrant, Hampton was ordered out of the car. He complied, but then pushed the officer closest to him and fled. He was captured, and, after a struggle, a pistol was found in his pants pocket. One of the officers was injured during the struggle. Hampton was charged with being a felon in possession of a firearm and ammunition. After an unsuccessful motion to suppress, Hampton was convicted and sentenced to 300 months in prison.

On appeal, Hampton challenged the calculation of his advisory Guideline range on several grounds.* First, he argued that an enhancement under USSG 3A1.2(c)(1) for assault of a police officer during flight was not appropriate. Specifically, he argued that his conduct did not create a substantial risk of serious bodily injury, as required to trigger the enhancement. The Fourth Circuit disagreed, holding that Hampton assaulted a police officer during the struggle to subdue him and that assault resulted in serious bodily injury. Second, Hampton argued that his conduct did not constitute another felony offense, so as to trigger the enhancement under USSG 2K2.1(b)(6). The court disagreed, holding that because Hampton assaulted an officer during the struggle, he committed a felony under South Carolina law. Finally, Hampton argued that the application of both enhancements (for a total of 10 levels) was impermissible double counting. The Fourth Circuit disagreed, holding that there was nothing in the Guidelines to change the presumption that double counting is acceptable.

* Hampton also challenged the district court's denial of his motion to suppress, but conceded that his argument was precluded by Fourth Circuit precedent and was presented only to preserve it for further review.

Divided Court OKs Extension of Traffic Stop

US v. Mason: Mason was driving on Interstate 20 in Georgia when he was pulled over due to having illegally tinted windows. Prior to writing Mason a warning, the officer talked with him and his passenger, who told different stories about where they had been and why. The officer, suspecting they were involved in drug activity (I-20 is a know drug corridor and Atlanta, the direction from which Mason was travelling, a source city) radioed for a K9 unit to assist him. When the K9 unit arrived, the dog alerted, first on the outside of the car and then by leaping inside an open window and further alerting. A search of the trunk revealed 10 kilograms of cocaine. Mason was charged and convicted, following an unsuccessful motion to suppress, of trafficking in more than five kilograms of cocaine and was sentenced to a mandatory sentence of life in prison.

On appeal, Mason challenged both the denial of his motion to suppress and his life sentence. As to the motion to suppress, Mason argued that the officer lacked reasonable suspicion to prolong the stop past the issuance of the warning ticket and that the dog's entry into the car violated the Fourth Amendment. On the first argument, the Fourth Circuit disagreed, holding that the officer had sufficient evidence to conclude that criminal activity was afoot. Although several of the facts were consistent with innocent travel, when taken as a whole the facts rose to the level of reasonable suspicion. As to the dog, the court noted that once the dog alerted to the presence of drugs outside the car there was probable cause to search the vehicle, so the dog's entry did not violate the Fourth Amendment. The court also held, addressing an argument that appeared only during oral argument, that the officer's questions prior to issuing the warning did not unduly lengthen the stop. As to Mason's sentence, the court held that he had not carried his burden of showing that two prior state convictions were obtained without counsel, even if the statute of limitations in 21 USC 851(e) did not prevent review of the issue.

Judge Gregory dissented on the search issue. He argued that the officer did not have reasonable suspicion to extend the traffic stop, after "supplementing and clarifying some key facts . . . that are omitted by the majority."

Walk Away Escape Not Crime of Violence

US v. Clay: Another round in the ongoing saga of whether a prior escape conviction triggers enhanced recidivist penalties. In this case, the prior conviction was a Georgia conviction for felony escape, incurred at the same time as a conviction for interference with government property. At issue was whether that escape conviction was a "crime of violence" as defined by the Guidelines, which would enhance the base offense level for Clay's offense of conviction, being a felon in possession of a firearm. The district court held that it was a crime of violence and applied the Guidelines accordingly.

The Fourth Circuit disagreed and vacated Clay's sentence. It noted that the Georgia escape statute covered at least three kinds of conduct: escape from a secure facility, failure to return from to custody, and walking away from an unsecured facility. The parties agreed that the first type of conduct would be a crime of violence, while the other two would not (the court agreed on the third type of conduct, previously an open issue in the Fourth Circuit). Nonetheless, the Government argued that Clay's conduct fell in the first category because, when the escape conviction was read in conjunction with the interference with government property conviction, it was clear that Clay was shackled and did something to those shackles to effect an escape. Hence, he escaped from a secure facility. The court disagreed, holding that the applicable evidence did not necessarily show that inference to be true. Thus, Clay's sentence was vacated and his case remanded for resentencing.

Congrats to the Defender office in WDNC on the win!

Tricking Agency Into Issuing Invalid Passport Supports Conviction

US v. Luke: A person claiming to be Luke's son applied for a passport in Philadelphia. Luke, a naturalized citizen, accompanied him to a subsequent interview. Although the applicant left during the interview when his identity was questioned, Luke remained and argued that the passport should be issued. When it was not, he left. Another suspicious passport application, made in Maryland, provided Luke's address as that of the applicant. During the subsequent investigation, Luke made several false statements about the alleged applicant and his knowledge of him. As a result of the investigation, Luke was charged with (among other things) conspiracy to commit identification document fraud and aggravated identity theft. He was convicted on both counts.

On appeal, Luke argued that the district court erred by denying his motion for a judgment of acquittal on the conspiracy count because his behavior did not fall within the ambit of the substantive offenses he was allegedly conspiring to commit. Specifically, he argued that the passports at issue could not have been "produced without lawful authority" where government employees simply produce genuine documents based on information they did not know to be false. In other words, if the applicant can trick the agency into issuing the passport, it was produced with lawful authority. Relying on earlier precedent, the Fourth Circuit rejected that argument. The court also rejected Luke's argument that he could not conspire to with an intent to defraud the United States because a falsely issued passport has no inherent value and did not deprive the government of anything of value.

Sexually Dangerous Persons Comittment Scheme Does Not Violate Due Process

US v. Comstock: This decision comes following the remand of this case by the Supreme Court following it's decision last year upholding Congress's authority to enact the civil commitment scheme for "sexually dangerous" offenders in the Adam Walsh Act of 2006. Because the Fourth Circuit had agreed with the district court that Congress lacked that authority, it did not address the defendants' due process attacks on the law the first time around. This time, with the issue of Congressional authority resolved, it addressed the due process argument. Under the Act, a person may be committed if a court finds by clear and convincing evidence both that that person "has engaged or attempted to engage in sexual violence or child molestation" and is "sexually dangerous to others."

The Fourth Circuit concluded that this scheme did not violate due process. It set out three criterion that must be met before commitment could take place: that the defendant has engaged or attempted to engage in sexual violence or child molestation (the "prior bad act finding"); that the defendant suffers from a serious mental illness, abnormality, or disorder; and that, as a result, the defendant would have serious difficulty refraining from sexually violent conduct or child molestation if released. The court concluded, and the defendants agreed, that Supreme Court precedent required only proof by clear and convincing evidence on the second and third criterion. As to the prior bad act finding, however, the defendants argued that a beyond a reasonable doubt standard was required. The court disagreed, holding that the prior bad act finding is not limited to criminal behavior and thus no "prior criminal act finding" is required by the Act. Furthermore, the nature of the Act was that of a civil, rather than criminal, proceeding and thus was not subject to the higher standard of proof.

Monday, December 06, 2010

Unrelated Police Misconduct Does Not Require New Trial

US v. Robinson: Robinson was convicted by a jury of several drug and gun charges, including a 924(c) charge, and sentenced to 50 years in prison. After his trial, Robinson learned that four of the officers involved in the investigation against him had committed misconduct in other cases. Robinson moved for a new trial, based on that misconduct. The district court initially granted the motion because the misconduct, although taking place in other cases, went "to the integrity of the investigation." However, after reconsideration, the court limited its decision to the several counts which those officers initiated - those convictions were vacated and the Government subsequently dismissing them. The counts which were initiated by another agency, although the rogue officers were involved in them, however, were affirmed and Robinson was resentenced to 600 months in prison.

On appeal, Robinson argued that the district court erred by not vacating all of his convictions, relying on the district court's initial observation about the integrity of the investigation. The Fourth Circuit disagreed and affirmed the district court. It held that, on the remaining counts, the testimony of the disgraced officers was "amply corroborated" by other witnesses and physical evidence. The misconduct would have served as impeachment evidence, of little value, but nothing else - it provided no alternate theory of defense, for example. Finally, the court held that Robinson could not show that the new evidence, if presented at trial, probably would have produced an acquittal. The court also rejected a Brady argument with regards to the evidence of misconduct, holding that the Government had no knowledge of the misconduct.

Robinson also appealed his conviction under 18 USC 924(c) due to incorrect jury instructions and insufficient evidence. The Fourth Circuit also rejected those arguments. Applying plain error review on the jury instruction issue, the court held that the instructions on that charge were erroneous and plain, in light of the Supreme Court's decision in Watson, but Robinson could not show prejudice and, even if he could, the court would not notice the error under the final prong of Olano. As to the sufficiency argument, it "like many of the claims before it, runs directly into the wealth of evidence detailing Robinson's activities."

Court Vacates One Drug Conspiracy Conviction Only to Mandate Another

US v. Hickman: Hickman was charged in a multi-defendant indictment with conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin and possession with intent. He alone went to trial and was convicted. Pursuant to 21 USC 851, he was sentenced to life on the conspiracy count and 360 months on the possession count. He was arrested in a traffic stop after he drove away from purchasing 32.14 grams of heroin from a codefendant. Subsequent searches of one of his codefendant's offices uncovered 25,000 empty vials of the type typically used to distribute heroin. Although Hickman contacted his codefendant after being released by police and inquired about further purchases, none ever transpired.

At trial, although all of Hickman's six codefendants had pleaded guilty, none of them testified, nor did the Government produce testimony from any other participant in the conspiracy. All the evidence came from investigators involved in the case. One testified as an expert in narcotics investigations. He both "interpreted" the contents of wiretapped phone conversations for the jury and how the 25,000 empty vials would be enough to hold 1 kilogram of "user-strength" heroin. Hickman moved for a judgment of acquittal on the conspiracy count, which the district court denied. Neither Hickman nor the Government made any argument or request for a lesser included offense on the conspiracy.

On appeal, Hickman challenged both his convictions and sentence. As to the conspiracy conviction, the Fourth Circuit agreed that there was insufficient evidence to sustain it. While "easily" concluding that the evidence demonstrated a conspiracy, the court held that there was insufficient evidence that it involved more than 1 kilogram of heroin. The inferences from the evidence relied upon by the Government required, to reach the 1 kilogram threshold, "if not a mathematical impossibility, . . . reasoning so attenuated as to provide insufficient support for the jury's verdict." The court rejected the Government's arguments that the amount of heroin involved was sustained by the fact that one of Hickman's codefendants ran a store that sold drug paraphernalia (it was a "one stop shop" for heroin) and that the members of the conspiracy were experienced enough in the drug trade that the conspiracy "encompassed far more drug distribution activity . . . than that of which the Government could produce competent evidence." Therefore, the court vacated Hickman's conviction, but remanded with instructions to enter a conviction on the lesser included offense of conspiracy to distribute more than 100 grams of heroin, even though neither party sought a lesser offense at trial.

The Fourth Circuit otherwise affirmed Hickman's conviction and sentence, turning away in brief challenges to the jury instructions, the use of wiretap transcripts during deliberations, and the applicability of his prior offenses to enhance his sentence.

Seizure and Patdown Justified By Association With Apparent Gang Activity

US v. Hernandez-Mendez: Montgomery County (MD) police officers set up surveillance outside a local high school following a gang-related stabbing that had occurred in the area. The high school was noted for gang activity in the past. Hernandez-Mendez was observed with a group of seven young Hispanic men outside the school who appeared to be conducting some sort of meeting. Eventually, Hernandez-Mendez left the group, but remained in the area, and was followed by an officer. When officers approached the seven young men, they split up, with one of them running away. Officers decided to "stop everyone in the group."

Hernandez-Mendez complied when confronted by an officer, gave her name, and handed over her wallet, which included several credit cards in her name but no photo ID. She told the officers that she didn't know any of the three young men, including the one who ran away. An officer asked if she had ID in her purse as he reached towards it, prompting Hernandez-Mendez to pull away and say "no." The officer grabbed the purse and felt an object that he recognized as a firearm. He found a pistol inside. Hernandez-Mendez was charged with being an alien in possession of a firearm and possession of a firearm in a school zone. After the district court denied her motion to suppress the gun, she was convicted on both counts at a stipulated bench trial.

On appeal, Hernandez-Mendez challenged the district court's denial of her motion to suppress. She first argued that the officers lacked reasonable suspicion to detain her. The Fourth Circuit disagreed, holding that the officers' experience with Hispanic gangs, previous history of gang incidents at the school, and the surveillance observations provided reasonable suspicion for the stop, namely that some retaliation was being planned with regards to the earlier stabbing. Hernandez-Mendez also argued that even if the stop was warranted, the frisk of her purse was not. The Fourth Circuit disagreed, holding that the facts developed after the seizure, particularly Hernandez-Mendez's "evasiveness" warranted a patdown. Once the officer felt the gun through the purse, it could be seized. Thus, the Fourth Circuit affirmed the district court's ruling and Hernandez-Mendez's convictions.

Questioning In Kitchen During Execution of Search Warrant Not Custodial

US v. Hargrove: Hargrove spent several months in Internet chat rooms having sexually explicit discussions with several minor girls, one of whom was actually an underage girl, while the others turned out to be cops. At some point, the discussions turned to plans to meet up in real life, leading to the execution of search warrants at Hargrove's home. During the search, Hargrove gave incriminating statements to officers. As a result, he was indicted on obscenity, child pornography, and attempted enticement charges.

Prior to trial, Hargrove sought to suppress the statements made at his home, arguing that they were given with Miranda warnings while subject to custodial interrogation. The district court denied the motion, holding that the questioning was not custodial because Hargrove was not under arrest and told he was free to go. After being convicted on all counts at trial, Hargrove was sentenced to life in prison. In imposing that sentence, the district court noted that Hargrove went to trial (after the court rejected a 20-year plea) and required the minor victim to testify at trial.

On appeal, Hargrove challenged both the denial of his motion to suppress and the substantive reasonableness of his sentence. As to the suppression issue, the Fourth Circuit affirmed the district court, holding that the totality of circumstances did not show that Hargrove was in custody during the search, noting that he was told he was not under arrest and was free to leave at anytime, he was not handcuffed, and the conversation took place in his kitchen in a "comfortable atmosphere."

As to the sentence, the court affirmed the life sentence, reviewing for plain error because Hargrove raised an specific error - that the district court punished him for going to trial - rather than a general argument that his sentence was too long. Assuming, arguendo, that there was error and it was plain, the court found that Hargrove was not prejudiced by the imposition of a Guideline recommended sentence based on the other findings made by the district court.