Thursday, March 29, 2012

One conviction (of eleven) vacated for improper venue

US v. Jefferson:   This appeal stems from a highly-publicized corruption case involving a former United States House member from Louisiana, William J. Jefferson, who engaged in "an ongoing course of illicit and repugnant conduct - conduct for which he was compensated considerably by those on whose behalf he was acting." The facts of the case below are described in great detail in this opinion, and can be located elsewhere on the Web; briefly, Jefferson received 11 convictions and the longest sentence ever given to a congressman for bribery or any other crime.

Important for this appeal is the definition of the term "official act," and venue for the honest services wire fraud offense. The Fourth Circuit discusses what constitutes an "official act" at great length, and for anyone representing a public official, this discussion may be useful. More relevant may be the discussion of venue for an honest services wire fraud offense, in which the Fourth Circuit determined the venue was improper and vacated this conviction.

Here, there is no specific venue provision in the statutes at stake, 18 U.S.C. §§ 1343 and 1346, so venue lies where the essential conduct elements took place. Jefferson contended that venue did not lie in the Eastern District of Virginia because the phone call underlying this count was neither begun nor completed in that district. The Fourth Circuit reviewed the essential elements of the honest services wire fraud offense and determined that the misuse of mail or wire is the actus reus punishable by federal law. Finding itself in agreement with the 2nd and 9th Circuits, the Fourth Circuit determined that venue is established in those locations where the wire transfer either originated or was received, so it did not lie in Virginia here. It could lie in Kentucky, though, and the Fourth Circuit pointed out that as the location where the call was received, and where this charge could be properly brought.

Issues a lower court may consider on remand

US v. Susi:  This appeal challenges the sentence imposed following a remand for re-sentencing. Susi raises three issues here: 1) the district court did not recalculate the Sentencing Guidelines as part of the re-sentencing; 2) the re-sentencing court imposed sentence based on the impermissible factor that Susi exercised his right to trial; and 3) the sentence was procedurally and substantively unreasonable because the court did not provide an adequate explanation on the record for the sentence. The Fourth Circuit affirmed the sentence.

The main issue in this appeal is what a lower court may consider on remand: is the defendant entitled to a de novo hearing at re-sentencing, does the re-sentencing court consider the entire sentence anew, including any objections to the Guidelines range? Or is the re-sentencing limited in correcting the error in the original sentence? The Fourth Circuit considers here the "mandate rule," wherein the re-sentencing court is bound to carry out the mandate of the superior court, and may not reconsider issues that mandate laid to rest, referring to its earlier case, United States v. Bell, for its explanation of the "law of the case" doctrine, of which the mandate rule is a "specific application." Under this doctrine, the dictates of the higher court forecloses re-litigation of issues decided by the lower court but foregone on appeal or otherwise waived.

The sentencing error identified by the Fourth Circuit when it vacated Susi’s sentence originally, dealt with the district court’s consideration of factors outside the scope of the record during the § 3553(a) analysis and calculating the restitution ordered, so the error below, according to the Fourth Circuit, in no way impacted the calculation of his Guidelines range. Since the guidelines range was not objected to in the original appeal by Susi, it was unnecessary and duplicative to recalculate the Guidelines in order to address the error that caused the remand.

Additionally, Susi’s second argument that he was penalized merely by exercising his constitutional right to a trial (he received a higher sentence than his co-conspirators who took plea deals to resolve the charges against them) was undercut by the fact that he received a lower sentence on remand of 160 months than he originally received, 180 months. The Fourth Circuit has previously stated in United States v. Perry, that in order to prove improper or vindictive motive by the government against someone exercising a constitutional right, a presumption of improper vindictive motion must arise, a presumption only warranted in cases in which a reasonable likelihood of vindictiveness exists, e.g. when a defendant succeeds in attacking his sentence on appeal, and then receives a higher sentence on re-trial. That did not happen here, so this appeal issued failed.

Finally, in discussing Susi’s third appeal issue, the Fourth Circuit held for the first time that a below-Guidelines sentence is entitled to a presumption of reasonableness, when a defendant challenges the length of the below-Guidelines sentence as being substantively unreasonable. Also, this presumption would not apply where a defendant challenged the substantive reasonableness on other grounds, nor would this presumption apply when the government appeals a district court’s sentence as substantively unreasonable.

Wednesday, March 28, 2012

What constitutes a claim of citizenship?

US v. Castillo-Pena:  Appellant Humberto Jose Castillo-Pena appeals his convictions for falsely representing himself as a United States citizen and of committing identity theft of another individual in relation to his false claim of citizenship.  The Fourth Circuit affirmed the convictions. 

Castillo-Pena first came to the U.S. in 1987, when he began dating Yolanda Bernal.  The two married and subsequently divorced; Bernal served as a witness at her then-husband's first INS immigration proceeding in 1991.  As part of this proceeding, Castillo-Pena provided a sworn affidavit including his full name, his birthplace and citizenship in Nicaragua; he was also fingerprinted at that time. 

After the couple divorced in 1995, Castillo-Pena informed his wife that he would henceforth be known as Erick Cardona.  He attempted to apply for a passport under this pseudonym.  The real Erick Cardona, born in Puerto Rico and a U.S. citizen, had never met Castillo-Pena. An investigation of Castillo-Pena for deportation began with an interview with ICE agent Cindy Yang.  At the interview, Castillo-Pena responded to Yang's question about whether he would like to make a statement that he was a United States citizen, and Castillo-Pena, claiming to be Cardona, responded, "yes, I would like to."  Additionally, Castillo-Pena's fingerprints, taken in 2010, matched those taken in 1991. 

This statement constituted a false representation of U.S. citizenship, and the jury at Castillo-Pena's trial concluded that he willfully misrepresented himself as a U.S. citizen, and that this statement constituted a direct claim of American citizenship.  Additionally, on appeal, Castillo-Pena did not challenge the evidence put on by the government that he attempted to assume the identity of Erick Cardona to apply for a passport. 


Rockfish wholesalers' convictions affirmed

US v. Oceanpro Industries:  In this appeal, a D.C. seafood wholesaling operation, its vice president, and an employee challenged their convictions for purchasing untagged and oversized striped bass (known colloquially as "rockfish") in violation of the Lacey Act (prohibiting the purchase in interstate commerce of fish or wildlife sold in violation of state law), and also for lying to federal agents investigating the crimes.  The appellants disputed the District of Maryland's venue for the false statement offense, because the statements were uttered in D.C., not Maryland.  Secondly, the appellants argued that the $300,000 order of restitution (well below the market value for the fish allegedly caught and sold illegally) was improper because the States were not "victims," as they lacked a sufficient interest in the illegally caught fish.  The Fourth Circuit affirmed the convictions.

The statute governing the false statement, 18 U.S.C. sect. 1001, does not contain an express venue provision; in this event, the Supreme Court has instructed that the place of the crime, its locus delicti, controls venue, and the place is "determined from the nature of the crime alleged and the location of the act or acts constituting it."  The Fourth Circuit has held that the "circumstance" elements of an offense, even if essential, are without moment to a venue determination.  The mens rea element of the false statement offense is such a circumstance element, and the essential conduct prohibited by the statute is "making any materially false statement."  The Fourth Circuit concluded that the District of Maryland had a substantial connection to the employee's criminal conduct and to the charges based on that conduct against him and Oceanpro. 

The Fourth Circuit held the restitution order, $300,000 to the states of Maryland and Virginia as compensation for the rockfish that had been illegally harvested from the Potomac River and sold to Oceanpro, was proper because the states had a proprietary interest in the illegally harvested fish after they were caught, so they were entitled to restitution under the Mandatory Victims' Restitution Act ("MVRA").  The Fourth Circuit relied on a Second Circuit case, United States v. Bengis, for its reasoning, a case involving illegally harvested South African lobsters, where restitution was mandated under the MVRA because the lobsters were forfeited to the state. 

Safety valve ineligibility affirmed and thermal imagery warrant held valid

US v. Henry:  Mr. and Mrs. Henry received two convictions related to growing marijuana at their rural West Virginia home. On appeal, they challenged whether there was probable cause to support the issuance of the thermal imaging warrant; whether the district court erred when it granted the government’s motion in limine to exclude testimony that Mr. Henry used marijuana to improve his symptoms from medical illnesses; and whether the district court erred in finding them ineligible for safety valve relief at sentencing.

First, the Henrys argued that the affidavit from the police to the magistrate for the thermal search warrant failed to meet the probable cause standard, as the information to support the application was provided by a cooperating inmate interviewed twenty months before the warrant issued, and two other, unidentified sources. The Fourth Circuit concedes that none of the information provided by the three sources was recent, and any one of the sources considered alone would not have been sufficient information to base the application on; however, taken collectively, the three sources were unrelated and provided consistent information about the marijuana at the Henry residence, or that they had purchased from the couple. The Fourth Circuit held that the affidavit provided a sufficient basis to establish probable cause, and the district court did not err in denying the Henrys’ pre-trial motion to suppress.

Next, with respect to the government’s motion in limine to exclude testimony of the beneficial effect of marijuana on Mr. Henry’s health, the Fourth Circuit held that with the exception of government-approved research projects, medical necessity is not a defense to conduct prohibited by the Controlled Substances Act, including the manufacture and possession of marijuana to distribute. Additionally, as if to put a final nail in this coffin, the Fourth Circuit pointed out that the Supreme Court has explained and Congress has determined that there is no medical benefit from the use of marijuana. Thus, it found that the district court did not err here.

Finally, the district court declined to grant safety valve eligibility to Mr. and Mrs. Henry because it found that they did not provide truthful information to the government concerning their offenses. The safety valve program permits shorter sentences for first-time offenders who would otherwise be subject to a mandatory minimum sentence, provided the defendant can meet the following five requirements: 1) the defendant does not have more than one criminal history point; 2) the defendant did not use violence or weapons in connections with the criminal conduct; 3) the offense did not result in death or bodily harm; 4) the defendant did not have a supervisory or managerial role in the offense; and 5) prior to sentencing, the defendant was truthful in providing evidence and information concerning the offense to the government. The Henrys satisfied the first four prerequisites, but the district court concluded that they were not credible witnesses, as they provided "certain representations" that "were inconsistent with a full and truthful disclosure of all relevant information." The district court’s credibility determinations were accorded "substantial deference" by the Fourth Circuit and it held that the district court did not clearly err in this decision.

Objective test for true threats affirmed

US v. White:  White, leader of a neo-Nazi white supremacist group, received several convictions for threats to injure or intimidate others, and intimidating others to "influence, delay, or prevent the[ir] testimony." White filed a Rule 29 motion for acquittal, which the district court denied; both White and the government appealed aspects of White’s sentencing, in particular the district court’s application of a certain standard in imposing an enhancement for victims’ vulnerability. The Fourth Circuit affirmed White’s convictions, but vacated his sentence, remanding for re-sentencing, because the district court employed an incorrect standard in its analysis of enhancing a defendant’s sentence for the vulnerability of victims.

White argued that his communications were political speech protected by the First Amendment, and that there was no showing made of a specific, subjective intent to threaten, the test adopted by the Ninth Circuit after the Supreme Court’s decision in Virginia v. Black. The Fourth Circuit disagreed with White’s interpretation of the statute and affirmed the district court’s holding that the statute required a showing that the defendant specifically intended to "communicate a threat and not that the defendant specifically intended to threaten the victims," quoting from the Court’s earlier decision of precedent, United States v. Darby. The Fourth Circuit also held that Virginia v. Black was not contrary to its precedent in Darby, such that the Court had to re-examine precedent. The reasonable recipient test from Darby continues to define a true threat.

Tuesday, March 20, 2012

Alford pleas are adjudications of guilt

US v. King:  The Fourth Circuit affirmed the sentence imposed by the district court in this possession of a firearm by a convicted felon case. The appellant argued the following errors were made: 1) that his prior, South Carolina conviction for pointing and presenting a firearm qualified as a "crime of violence" at sentencing; 2) a prior case in which he entered an Alford plea to involuntary manslaughter was a "prior sentence" under the Guidelines; and 3) the district court did not provide a sufficient explanation for the sentence imposed.

The Fourth Circuit discussed how it employed a "modified categorical approach" that it only uses in a narrow group of cases in which it looks beyond the generic elements of the offense to the specific conduct underlying the prior offense, in order to determine whether the conviction is a "crime of violence." Here, the Fourth Circuit determined that since King’s crime involved his pointing and presenting a firearm in a threatening manner at another person, based on how South Carolina courts interpret the statute under which he was convicted, that his crime qualified as a "crime of violence."

The Third Circuit, in US v. Mackins, provided guidance to the Fourth in determining that convictions resulting from Alford pleas can serve as predicate convictions for the purposes of calculating an individual’s criminal history points. The parties disagreed whether an Alford plea qualifies as an "adjudication of guilt" and the Fourth Circuit concluded that it does because an Alford plea requires a factual basis, and it can only be accepted by the court when the record contains "strong evidence of actual guilt."

Finally, the Fourth Circuit found that the district court was within its discretion when it granted the government’s motion for an upward variance, because the court offered several reasons on the record for its decision, including what it viewed as King’s increasingly violent behavior.

Error in excluding testimony from appellant's mother not harmless

US v. Ibisevic:  Ibisevic was convicted for attempting to leave the United States without reporting some $40,000 in U.S. currency he carried in his luggage. At trial, the district court prohibited his mother from testifying as to Ibisevic’s statements to her at the time of this arrest, which tended to negate a finding of his intent to commit bulk cash smuggling, failing to report the international transportation of currency, and making false statements to authorities. The Fourth Circuit vacated and remanded the district court’s determination that any error it made in prohibiting the admission of Ibisevic’s mother’s testimony at trial was harmless.

According to Ibisevic’s motion for a new trial, which the district court denied, Ibisevic’s mother Rahima would have testified that Ibisevic had told her, immediately upon signing the customs form, that the officers were asking the insurance value of the checked luggage. The district court conceded its error in excluding this testimony; however, it found its error harmless.

The Fourth Circuit used to a three-part test in its analysis of whether the error was harmless from United States v. Ince: 1) the centrality of the issue, 2) the steps taken to mitigate the error, and 3) the closeness of the case. The Fourth Circuit resolved that the excluded testimony went directly to the central issue of this case, Ibisevic’s intent, because Ibisevic’s mother’s testimony was the only evidence that corroborated his claim that he gave truthful answers to customs agents who questioned him. Next, it found that there was no effort made to mitigate the effects of the error. Finally, the Fourth Circuit found that the "closeness" question involved an assessment of whether the evidence was not only sufficient to convict, but whether the evidence was sufficiently powerful in relation to the excluded testimony to ensure the error did not affect the outcome. The Fourth Circuit disagreed with the district court, holding that evidence against Ibisevic was not "overwhelming" and the jury deliberated for more than four hours, so the case was apparently a close one. None of the factors, then, weighed in favor of harmless error.

Great work, FPD in Alexandria!

Valid appeal waiver prevents appeal of Rule 35(b) motion denial

US v. Thornsbury:  In this appeal, the Fourth Circuit determined that the appellant, Thornsbury, waived his right to appeal a district court’s denial of a Rule 35(b) motion filed by the Government to reward his substantial assistance in a separate case (prison assault in which he was the victim). While the district court considered "non-assistance factors" in reaching its decision, the Fourth Circuit did not reach the merits of the district court’s decision; instead, it found dispositive the issue whether Thornsbury waived his right to appeal the denial of the Rule 35(b) motion and dismissed Thornsbury’s appeal.

Thornsbury’s plea agreement contained the following waiver: as long as his sentence fell within the advisory guidelines range, he "knowingly and voluntarily waives his right to seek appellate review of any sentence of imprisonment or fine imposed by the District Court, or the manner in which the sentence was determined, on any other ground whatsoever including any ground set forth in 18 U.S.C. § 3742..."

Thornsbury argued that Rule 35(b) proceedings were not part of the plea agreement, so he could not have intelligently or knowingly waived his rights related to them; and secondly, that his challenge was outside the normal purview of valid appeal waivers. The Fourth Circuit found that to agree with Thornsbury’s arguments would be to undermine the value of appellate waivers. Moreover, Thornsbury’s sentence was not so "illegal," not more than just "touched by a legal error," to warrant disregarding the appellate waiver. Arguments against such "illegal" sentences may include challenging a district court’s exceeding its authority, a district court’s consideration of a constitutionally impermissible factor (e.g., race), or a post-plea violation of the right to counsel.

Supervised release revocation vacated

US v. Doswell:  In this appeal of a supervised release revocation, the Fourth Circuit vacated and remanded a decision based on hearsay evidence relied upon at Doswell’s revocation hearing, a decision which failed to comply with Fed. R. Crim. P. 32.1(b)(2)(C).

"Rule 32.1 (b)(2)(C) specifically requires that prior to the admission of hearsay testimony in the supervised release revocation setting, that the district court must balance the releasee’s interest in confronting adverse witnesses against any proffered good cause for denying such confrontation." While reliability of the evidence remains a critical factor in this balancing test, hearsay evidence of questionable reliability will not provide sufficient basis for denying a releasee the opportunity to cross-examine an adverse witness.

The "questionably reliable" evidence the Government put forth in this case was a chemist’s report on the drug analysis of some seized capsules suspected of containing heroin, though the chemist who authored the report failed twice to appear in state court proceedings to verify the reliability of the report; the state court charge was nol prossed upon the chemist’s failure to appear. Despite that, the Government asserted that this charge alone (notwithstanding Doswell’s other alleged supervised release violations) mandated revocation of Doswell’s supervised release. The Fourth Circuit disagreed, and remanded the case to the district court for proceedings in accordance with this opinion.

Way to go, Baltimore Office of the Federal Public Defender!!

Friday, March 09, 2012

Defendant Fails to Meet Safety Valve Burden

US v. Aidoo: Aidoo was caught at Baltimore-Washington International Airport coming into the country with nearly 1 kilogram of heroin inside him. He made a proffer to investigators about the man who paid him to smuggle the heroin and other aspects of the scheme. Investigators told Aidoo that they did not think he was being truthful. Aidoo pleaded guilty to importing heroin, pursuant to a plea agreement in which the Government noted its intention to argue that Aidoo did not qualify for a "safety valve" reduction at sentencing. Nonetheless, the probation officer in the PSR did award Aidoo a safety valve reduction, to which the Government did not object until its sentencing memo was filed. The resulting advisory Guideline range was 57-71 months (without the safety valve, Aidoo was subject to a 60-month mandatory minimum).

At sentencing, the Government argued that Aidoo had not been truthful with them, particularly in claiming that this was his first time smuggling drugs. In addition, he never identified his contact in the US and his explanation for his extensive overseas travel was not plausible. Aidoo argued he had been truthful, but "counsel presented no evidence to support Aidoo's story." The district court agreed with the Government, concluded Aidoo had not been truthful and therefore did not qualify for the safety valve, and sentenced him to the mandatory minimum of 60 months.

On appeal, Aidoo argued that the district court erred by concluding he did not qualify for the safety valve. The Fourth Circuit disagreed and affirmed his sentence. It noted that the burden of proving safety valve qualification rests with the defendant and rejected Aidoo's argument that because he provided information to the Government the burden shifted to the Government to prove its falsity. Because Aidoo's proffer was so lacking in credibility, no burden shifting occurred. Although Aidoo did provide information to the Government, he did not testify, nor did he introduce documentation or other evidence to support his version of events. Given the evidence in the record, Aidoo had not met his burden. Furthermore, the district court's consideration of the Government's arguments, given its failure to object to the PSR's recommendation until it filed its sentencing memorandum, was not plain error.

Judge Gregory dissented, arguing that Aidoo had met his burden of proof and should have been awarded safety valve status.

Sexual Exploitation Is Continuing Offense, Venue Proper in Multiple Districts

US v. Engle: Engle was sexually involved with two underage girls. One he travelled from Virginia to Pennsylvania in order to have sex with her (he videotaped it). The other he went to South Carolina and brought back with him to Virginia. He was arrested and then communicated with the SC victim several times while incarcerated. As a result, he was charged with sexual exploitation of a minor (as to the PA victim) and three counts of attempted enticement of a minor (as to the SC victim, based on post-arrest communications), in addition to nine counts of witness tampering. He was convicted on those counts and sentenced to 40 years in prison and a lifetime term of supervised release.

On appeal, Engle raised challenges to both his conviction and his sentence. As to his conviction on the sexual exploitation count, Engle argued that venue was improper in EDVA because the actual alleged exploitation occurred in Pennsylvania, not in Virginia (although Engle returned there with the video he made). The Fourth Circuit rejected that argument, concluding first that because Engle's motion to dismiss due to venue was made before trial, it was limited to the facts charged in the indictment (assuming they were true) and the indictment alleged the act occurred in EDVA "and elsewhere." It also concluded that venue was proper because the exploitation charge was both a continuing offense (so it continued when Engle returned to EDVA with the recording) and began before Engle went to Pennsylvania while he was still in Virginia convincing the victim to participate. As to the attempted enticement counts, the court rejected Engle's argument that the evidence was insufficient to support those convictions, concluding that Engle's incarceration, and thus the impossibility of him actually engaging in further sexual activity with the victim, did not prevent him from taking the substantial step needed to support an attempt charge. Finally, as to his sentence Engle argued that he was denied the ability to meaningfully allocute before sentencing, because the district court first indicated what sentence it might impose upon him. Applying plain error review, the Fourth Circuit concluded there was no error, much less a plain one.

Sexual Abuse Convictions Affirmed Over Due Process, Venue Challenges

US v. Holmes: Holmes was accused of sexually abusing his 9-year old step daughter while the family lived in Japan, where Holmes, who was in the Air Force, was stationed, in 1999 and 2002. In 2007, when Holmes returned to Virginia from a deployment in Qatar, he was interviewed by a pair of Air Force investigators about the allegations. Eventually, Holmes admitted the abuse, in some detail.

He was charged in EDVA with two counts of sexual abuse of a minor (a first indictment was dismissed without prejudice and a second indictment sought after Holmes moved to Ilinois and was arrested in North Carolina). That indictment was dismissed based on lack of venue, because of his arrest in North Carolina. Within hours of his release following the dismissal, Holmes was arrested on a fresh criminal complaint (based on the same conduct) and eventually indicted for the third time. Holmes was convicted after a jury trial, at which the district court precluded his presentation of expert testimony about false confessions, and sentenced to 262 months in prison.

On appeal, Holmes raised several arguments attacking his convictions, all of which the Fourth Circuit rejected. First, the court concluded that Holmes's statements to Air Force investigators should have been suppressed because they were given under circumstances that broke his will and rendered the statements involuntary. Holmes was advised of and waived his Miranda rights, there was no indication that the long journey from Qatar (and lack of time to acclimate to being home) led to him giving the statements, and there was no evidence of improper conduct on the investigators' part. Second, the court concluded that venue was proper in EDVA because the relevant "offense" in the analysis was the same for each of the three indictments and the first arrest in Virginia was proper (it's unclear from the record why the first indictment was dismissed). Finally, the court concluded that the district court did not abuse its discretion by excluding Holmes's expert witness because the disclosure of that witness was untimely.

Strict Meaning of "Father" Leads to False Statement Convictions

US v. Sarwari: Sarwari was born in Afghanistan, was given asylum in the United States, and became a citizen in 1998. In 1992 he married and "gave his last name to [his wife] and her four children." She and the children came to the United States in 1999. In 2004, Sarwari prepared passport applications for three of the children, in which he listed himself as their "father." Although Sarwari had birth certificates from the Afghan embassy naming him as the children's' "father," he was not their biological father nor had he legally adopted them. As a result, he was charged with three counts of making a false statement on a passport application. He was convicted on all three counts and sentenced to concurrent terms of 12 months and a day on each.

On appeal, Sarwari raised several challenges to his convictions, all of which the Fourth Circuit turned away. First, it rejected Sarwari's argument that his answers on the forms were "literally true," concluding that in cases such as this one where the terms at issue are ambiguous and subject to different meanings, that defense is not available. Second, it rejected the argument that the term "father" as used on the forms is so ambiguous as to preclude anyone making a false statement. In the formal context of the passport applications, "father" could not be read to include "stepfather." Third, the court rejected Sarwari's argument that the jury should have been instructed about the lack of a statutory definition of "father." Finally, it found that the evidence was sufficient to support the convictions.