Tuesday, November 29, 2011

Effective assistance and CBLA evidence

US v. Higgs: The Fourth Circuit affirmed the district court’s denial of Higgs’ 28 U.S.C. § 2255 motion, having granted a certificate of appealability to consider his due process and ineffective assistance arguments predicated on the introduction of Comparative Bullet Lead Analysis ("CBLA") evidence.

Higgs had been convicted in 2000 in federal district court for his involvement in the abduction and murders of three women at the Patuxent National Wildlife Refuge; Higgs received nine death sentences, which the Fourth Circuit affirmed. Higgs filed motions for a new trial, which the district court denied and the Fourth Circuit affirmed. The government presented the contested CBLA evidence along with other forensic evidence of "rifling" at Higgs’ trial. Prior to Higgs’ attempt at attacking his convictions collaterally, the FBI and others began questioning the significance of bullet lead matching, which resulted in a study conducted by the National Research Council in 2004. Upon the findings of this study, the FBI Laboratory announced that it would no longer perform CBLA, whereas it had been widely used in courts at the time of Higgs’s trial and until at least 2003. Higgs claimed that a Brady violation occurred when the government failed to produce the internal reports that he believed could have impeached the forensic expert’s testimony on CBLA; he also argued that trial counsel were ineffective for failing to present any available expert testimony to challenge the CBLA evidence, and post-trial counsel were also ineffective because they failed to file a motion for a new trial on the basis of the studies on CBLA.

The Fourth Circuit concluded that there was no reasonable probability that the district court would have excluded the CBLA testimony at Higgs’ trial if his attorneys had challenged it, or that the penalty phase of the trial would have ended differently if the CBLA evidence had been excluded or subject to additional cross-examination. Additionally, criticisms of CBLA appear to have been available to others, not just the within the government, so the Fourth Circuit determined that counsel had not been constitutionally ineffective for failing to file a motion under Rule 33 for a new trial because of the post-trial studies.

Monday, November 28, 2011

Habeas relief awarded to remedy 29 years of injustice

Elmore v. Ozmint: The Fourth Circuit awarded Edward Elmore habeas relief on his ineffective assistance of counsel claims, arising from his original 1982 murder conviction. The Fourth Circuit, in its 194-page tome, found that Elmore's attorneys blindly accepted South Carolina's forensic evidence against their client. The Fourth Circuit also noted that there were grave concerns as to whether Elmore actually committed the murder.

"If our opinion embarrasses anyone, so be it. It would be entirely inappropriate for us to pull our punches or take any such consideration into account. There are far greater interests at stake: the fairness of our judicial system and, more specifically, Elmore's Sixth Amendment right to the effective assistance of counsel."

Elmore will be free unless the State of South Carolina decides to prosecute him a fourth time for the murder of Dorothy Edwards. The State has not yet announced its decision, though it must do so within a reasonable time.

Wednesday, November 16, 2011

Reasonable suspicion not established for patdown

US v. Powell: The Fourth Circuit vacated Powell’s conviction for simple possession of crack, holding that the government did not present a set of facts which sufficiently establish reasonable suspicion.

The Fourth Circuit, without hesitation, concluded that the government failed to establish that the officers in traffic stop here had reasonable suspicion that Powell was armed and dangerous when they began the patdown in question. First, the context of the stop provided no basis for the officers to reasonably suspect that Powell might have been armed and dangerous. In fact, he was eating at the time the traffic stop began, and he and one of the police officers discussed their mutual appreciation for fish sandwiches. The traffic stop, prior to Powell’s removal from the back seat was "remarkable" for its "amicable, cooperative, and relatively safe nature."

The government urged two factors weighed in support of their reasonable suspicion argument: 1) caution data, or a person’s possible involvement in prior criminal activity; and 2) Powell’s purported deliberate misrepresentation of his driver’s license. While a prior criminal record can be relevant in establishing reasonable suspicion, the Fourth Circuit explained, in most instances, standing alone it is not enough to create reasonable suspicion. The caution data here (a prior armed robbery) was the sole basis for the police officer’s pat down of Powell, and the Fourth Circuit found that it certainly did not justify a reasonable suspicion that Powell was armed and dangerous on the night in question. And, while a false statement can be considered in establishing reasonable suspicion, Powell’s purported misrepresentation, did not "remotely" tend to suggest that he was armed and dangerous.

In dissent, Justice King stated that he found an ample basis here for suspecting that Powell may have been armed and dangerous, and that the risk of dismissing a "common sense" suspicion that a suspect may be armed is "inherently perilous to arresting officers."

Tuesday, November 15, 2011

Matters unrelated to justification for traffic stop

US v. Guijon-Ortiz: Saul Guijon-Ortiz took issue with his conviction for illegal reentry after deportation; the Fourth Circuit affirmed. Guijon-Ortiz appealed the denial of his motion to suppress, in which he argued that during a traffic stop of a vehicle wherein he was a passenger, Guijon-Ortiz provided a fake ID, which the police officer discovered by calling ICE while the traffic stop was ongoing. Guijon-Ortiz argued that because of the length of time it took for the officer to contact ICE, he was subjected to an unconstitutional seizure. Guijon-Ortiz’s fingerprints were obtained when he was subsequently taken to an ICE office and questioned. The Fourth Circuit concluded that under a totality of the circumstances, the traffic stop was not unreasonably prolonged by the officer’s call to ICE.

Guijon-Ortiz’s appeal issue is this: once the officer learned that no one in the stopped vehicle had outstanding warrants, and since Guijon-Ortiz had given the officer an LPR card as identification, was the officer then permitted to call ICE to verify the validity of the LPR card? Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?

The Fourth Circuit relies on its decision from earlier this year, United States v. Digiovanni, in which it held that a stop exceeded the permissible duration and scope when an officer "failed to diligently pursue" the purpose of the stop and went off on a tangential investigation into drugs in the vehicle, the latter investigation constituting the bulk of the encounter. The officer’s diligence in pursuit of the investigation of the justification for the stop, is key, though the duration and scope of the stop are still relevant to the Terry analysis.

The Fourth Circuit finds it decision is consistent the position of the Sixth, Eighth and Ninth Circuits, which is at odds with the Seventh Circuit, which holds that questions unrelated to the justification for a stop that hold potential for detecting crime, that create little or no inconvenience, do not turn reasonable detention into unreasonable detention.

However, the Fourth Circuit affirmed for the following reasons: 1) calling ICE is analogous with how an officer routinely runs a driver’s license and registration to check their validity; 2) the time it took to call ICE was very brief; 3) the purpose of the stop was "still alive" when the officer called ICE; and 4) although the call to ICE was unrelated to the purpose of the stop, the call was a single, brief detour from an otherwise diligent investigation into whether the driver was impaired. They did not decide whether the officer had reasonable suspicion to believe that criminal activity was afoot at the time he called ICE. And, to the extent that the reasonableness of a traffic stop would be judged solely on the duration of the stop, the Fourth Circuit rejects that reasoning.

Drug conspiracy, and the vehicles of its operation

US v. Cabrera-Beltran: A jury in Alexandria, VA, convicted Cabrera-Beltran of conspiracy to import and distribute cocaine and heroin. On appeal to the Fourth Circuit, Cabrera-Beltran raised several issues, including violations of his 6th and 14th Amendment rights.

On appeal, Cabrera-Beltran argued that three Spanish-speaking venirepersons should not have been struck by the district court after each of them expressed an inability to accept the translations of their native tongue by a court interpreter. The Fourth Circuit determined that the district court did not abuse its discretion in striking the potential jurors, holding that the "for-cause striking of prospective jurors based upon their perceived inability to accept an interpreter as the final arbiter of what was said or written does not violate the Equal Protection Clause" of the 14th Amendment, as it is integral to a fair trial that all jurors base their decision on the same evidence.

Next, Cabrera-Beltran argued that case management documents (Treasury Enforcement Communications System, or TECS) maintained by Customs and Border Patrol, to monitor the vehicles and license plates that cross the national borders, should not have been admitted because he could not cross-examine the border patrol agent who produced the information. The Fourth Circuit found that these documents were not testimonial, and did not violate the rule against hearsay because they are kept in the normal course of business, not for the purposes of a subsequent legal action. Additionally, at least two federal courts (5th and 9th) have held that these TECS records are admissible under the public records exception to hearsay.

Cabrera-Beltran also argued that because the jury convicted him for an amount of cocaine less than the amount alleged in the indictment, that he essentially received a variance which required reversal. The Fourth Circuit found, however, that a lesser included offense is included in the charged offense, and hence, there is no variance. Further, Cabrera-Beltran raised the issue of whether the indictment was effective, but since he had not raised this issue prior to trial, this claim was found to be waived. Cabrera-Beltran argued that the district court erred in giving an Allen charge as opposed to granting his request for a mistrial, when the jury announced its failure to reach a verdict. After two days, the jury eventually reached a verdict.

Cabrera-Beltran moved for acquittal based on insufficient evidence, that the witness testimony against him was vague, uncertain and incredible. The Fourth Circuit found substantial evidence supporting the verdict and found that the district court did not err in denying that motion. Cabrera-Beltran raised the issue that the district court erred in admitting testimony from Lorenzo Salgado as 404(b) evidence, testimony which detailed heroin transactions that occurred prior to the conduct alleged in the indictment. The Fourth Circuit concurred with the government that the testimony was relevant to prove knowledge and intent. Finally, Cabrera-Beltran raised two sentencing issues, that the district court erred in calculating the drug quantity by accounting for drugs that were sld to Salgado prior to the events of the indictment; second, that the district court erred in adding a two-level enhancement for his managerial role in the conspiracy. The Fourth Circuit found no sentencing errors.

Thursday, November 10, 2011

Former sheriff's convictions affirmed

US v. Medford: Medford, formerly the Buncombe, North Carolina, County Sheriff appealed his convictions for conspiracy and other charges related to his receipt of bribes in connection with an unlawful video poker machine scheme in that state, involving a South Carolinian video poker machine operator, Henderson Amusement, Inc. The Fourth Circuit affirmed the convictions on all counts.

Medford raised five issues in his appeal: the court committed error in admitting the recording of a meeting between Henderson Amusement reps and people affiliated with a sheriff’s department outside of Buncombe County; the court denied Medford’s motion to sever his trial from a co-defendant’s (Penland); insufficient evidence was presented for a conviction under the Hobbs Act; Medford was subjected to inconsistent and biased treatment from the court; and the Honest Services Statute, 18 U.S.C. sect. 1346 is unconstitutionally vague.

With respect to the admission of the recording, the Fourth Circuit did not decide whether the recording was admissible under Rule 801(d)(2)(E), concluding that any error in the admission of the recording was harmless in light of the "overwhelming evidence" supporting the jury’s verdict. The Fourth Circuit affirmed the district court’s decision not to sever the trials of Medford and Penland, a self-described "captain" in the Buncombe sheriff department, relying on its decision in United States v. Parodi for support. In Parodi, the Fourth Circuit established a four-factor test was issued for the analysis of motions to sever based upon the asserted need for a co-defendant’s testimony. The defendants here failed to satisfy the test because of Penland’s equivocation on his willingness to waive his 5th Amendment rights if the trials were indeed severed.

The Fourth Circuit quickly dispensed with the claim that the district court subjected Medford to inconsistent and biased treatment, reminding that there is a difference between "fair" and "perfect" trials, and concluded that Medford’s treatment was not unfair or biased.

The Fourth Circuit reviewed Medford’s claim that insufficient evidence had been presented to sustain a conviction under the Hobbs Act, under the plain error standard of review, as Medford failed to raise the issue at trial. Here, Medford argued incorrectly that all the parties from whom the conspirators obtained property were part of the conspiracy, which the Fourth Circuit found to be a false premise, and consequently rejected Medford’s claim that the evidence was insufficient.

Finally, the Fourth Circuit found that Medford’s position on the Honest Services statute has been foreclosed by the Supreme Court’s 2010 decision in Skilling v. United States, in which the "bribery and kickback schemes" provisions of the statute, under which Medford was convicted, were not unconstitutionally vague.

Thursday, November 03, 2011

Obstruction of justice enhancement not a foregone conclusion when a defendant takes the stand

US v. Perez: Perez challenged the denial of his request for new counsel, as well as an obstruction of justice imposed on his sentence. The Fourth Circuit affirmed the denial of his request for new counsel, but reversed and remanded on the sentencing enhancement, holding that the district court failed to make the necessary factual findings to support the imposition of the enhancement.

Prior to trial, Perez moved for new counsel, which request the district court denied. After trial and prior to sentencing, Perez moved for new counsel a second time, which the district court denied again (without a hearing), deciding that it would be better for Perez to be represented at sentencing by an attorney familiar with his case. On appeal, the Fourth Circuit found that there had been neither a lack of communication nor an inadequate defense, despite Perez’s complaint that counsel had "avoided my rights. He has not been paying attention to them." In the balance with the district court’s interest in efficiently administering justice, the Fourth Circuit found the district court correctly denied Perez’s request for new counsel.

In considering Perez’s obstruction of justice enhancement, the Fourth Circuit discusses the irregular application of United States v. Dunnigan by its district courts. In that case, the Supreme Court said that an enhancement based on perjury does not unconstitutionally undermine the right to testify in one’s own defense, as "not every accused who testifies at trial and is convicted will incur an enhanced sentence." If a defendant receives the enhancement and object to it, the district court is supposed to conduct a review of the evidence and make "independent findings necessary to establish a willful impediment to, or obstruction of, justice..."

District courts, after Dunnigan, are also supposed to make separate and clear findings to address each element of the alleged perjury, but it will suffice if they make a finding that encompasses all of the factual predicates for perjury. It is this sufficiency that has apparently caused some problems, and the Fourth Circuit gives a little mea culpa, stating, "[t]o date, we have not provided a great deal of guidance to the district courts in applying Dunnigan..." and resolves to remedy the situation by holding that "if a district court does not make a specific finding as to each element of perjury, it must provide a finding that clearly establishes each of the three elements...and requiring district courts to clearly articulate the findings necessary to reach a legal conclusion preserves our ability to conduct meaningful appellate review."

Wednesday, November 02, 2011

Statment of PC Not Sufficient to Determine Prior

US v. Donnell: This is a pretty straight forward application of Shepard. Donnell was convicted of being a felon in possession of a firearm. His Guideline range was enhanced because the district court concluded that his prior Maryland conviction for second-degree assault was a "crime of violence." That conclusion was based on a "statement of probable cause" that the Government presented at sentencing in order to sort out the facts of the incident. Of course, such a statement was not part of the Shepard-approved documents during the plea hearing in Maryland, thus the Fourth Circuit concludes that the district court erred by considering it. Sentence vacated and remanded for further proceedings.

No mens rea Required for Stolen Firearm Enhancement; Counsel's Affirmation OK Basis for ACCA Prior

US v. Taylor: Taylor and his codefendant, Thompson, were both convicted by a jury of being felons in possession of a firearm (same one, actually). A police officer in Baltimore saw Taylor hand the weapon to Thompson. When officers approached to arrest them, Thompson fled, dropping the gun along the way. Taylor received a sentence 96 months in prison, partly due to a two-level enhancement based on the firearm being stolen, while Thompson got a sentence of 180 months in prison, based on the application of the ACCA.

Taylor challenged both his conviction and sentence on appeal. As to the conviction, the Fourth Circuit concluded that there was sufficient evidence to support it, even though it was based on the direct observation of only one police officer (upon whose credibility Taylor launched "an extended attack"). As to the sentence, Taylor argued that the two-level enhancement for possession of a stolen firearm could not apply because it lacks a mens rea requirement. The court rejected that argument, noting that every other Circuit has rejected it and concluding that a mens rea requirement, while important in general, is not required for every sentencing enhancement to apply. The court also concluded that Taylor's bottom-of-the-Guideline range sentence was substantively reasonable.

Thompson challenged only his sentence on appeal, specifically whether a prior Maryland conviction for second-degree assault was a "violent felony" under the ACCA. The district court had relied upon a recitation of facts at Thompson's state plea hearing as a basis for concluding that the conviction was a violent felony. Thompson did not directly affirm those facts, but his counsel said there were no "additions or corrections" to that recitation. The court turned away Thompson's reliance on Alston, noting that his plea was not an Alford plea. That his lawyer, rather than Thompson himself, affirmed the factual basis for the plea was irrelevant.

Judge Davis dissented with regards to Thompson's sentence, arguing that the majority effectively rewrites Shepard and its protections for a defendant to not be bound by anything not explicitly agreed to by him.

"Employment" Can Include, Doesn't Require, Payment of Wages

US v. Weaver: Weaver and his codefendants were members of the Pagans Motorcycle Club, which the Government alleged was involved in various nefarious activities. They were charged with "being employed" by a prohibited person and possessing a firearm "in the course of such employment." The "employer" was the president of the club, who was a convicted felon and, thus, could not legally possess firearms. The district court concluded that the statute required the Government to prove that Weaver and the others were "employed for wages," a standard which the Government admitted it could not meet. Therefore, the district court dismissed that charge.

The Government appealed and the Fourth Circuit reversed. After dealing with the procedural irregularities of the appeal (in a footnote), the court concluded that the district court's reading placed "an artificial restriction on the statute." The statute's plain language, the court concluded, does not show a "rigid requirement that defendants be hired for tangible compensation," because the word "employ" has many potential meanings. A more flexible test is appropriate and better implements the structure and purpose of the statute. However, the court declined the opportunity to set out that test in detail, remanding to the district court for further proceedings.