Friday, March 22, 2013

Only one Orioles fan in Baltimore? Well, it was the off-season

US v. Moore:  Tyrone Moore was charged with carjacking, using a firearm in furtherance of carjacking, and conspiracy.  Police encountered Moore wearing Orioles gear, in the company of another individual, Walton, who had a key to the stolen car in his pocket.  The vehicle in question had been stolen seven days earlier, and had been involved three days after the carjacking in a controlled buy, when it had been driven by another individual known to police, Michael Pollin.  When the police took the key from Walton, they located the stolen vehicle nearby; inside the vehicle, police discovered an Orioles baseball hat.  From Moore’s friendship with Walton, as well as his attire that evening, police photographed Moore.  The owner of the stolen vehicle, who admittedly only saw the carjacker’s eyes and dreadlocks on the evening of the theft, later identified Moore as the car thief in a photo line-up (the perpetrator wore a hat and bandana covering his face).

As his defense at trial, Moore made the identity of the carjacker the main focus.  Pollin was the first individual seen by police driving the stolen vehicle three days after the carjacking.  The government had provided Moore with a picture of Pollin allegedly taken around the time of the car theft; the government presented at trial the photo of Pollin which showed that he did not have dreadlocks around that time.  Additionally, a police detective familiar with Pollin testified at trial that he was not aware that Pollin had ever worn dreadlocks.  A defense witness offered testimony that Pollin indeed had dreadlocks around this time, but this testimony was weak in comparison to the detective’s testimony and the government’s photos of Pollin.  Moore was convicted.

Shortly after trial, Moore continued to insist that Pollin had dreadlocks at the time of the carjacking, and the government continued to insist that Moore was either mistaken or lying.  Moore’s counsel met with a former attorney of Pollin’s, who was in possession of a properly dated booking photograph of Pollin with dreadlocks, taken around a month after the carjacking.  Upon the basis of this photograph as newly discovered evidence and the government’s failure to disclose it as a Brady violation, Moore petitioned the district court for a new trial, which the district court denied.  Moore appealed to the Fourth Circuit, which determined that Moore was entitled to a new trial.

In the Fourth Circuit, to succeed on a Rule 33 motion for a new trial, a defendant must satisfy a five-part test by demonstrating: 1) newly discovered evidence; 2) defendant exercised due diligence; 3) the newly discovered evidence is neither cumulative nor impeaching; 4) the evidence is material; and 5) the evidence would probably result in acquittal at a new trial.  The district court did not believe that the newly discovered evidence Moore possessed was material; however, the Fourth Circuit determined that Moore had made the carjacker’s identity the chief focus of the trial, and thus, any newly discovered evidence relevant to the carjacker’s identity was “undoubtedly” material.  The Fourth Circuit vacated Moore’s conviction and remanded to the district court.

Monday, March 04, 2013

No Requirement That Courts Apply Higher Competency Standard for Self Representation

US v. Bernard: Bernard was charged with gun and drug offenses.  Based on a long history of mental illness, the district court ordered a competency evaluation.  He was initially deemed incompetent to stand trial (due to schizophrenia, paranoid delusions, and disorganized thought processes), but after treatment was determined to have been restored to confidence.  At the second competency hearing, the district court addressed a motion by Bernard to proceed pro se (with then assigned counsel as standby).  The district court, having found Bernard competent, granted the motion, although it noted it was "not real comfortable with this" because it was a "fluid situation" that "may not be the same tomorrow."  Bernard went to trial and was convicted (after 12 minutes of deliberation!).  Sentencing, at which Bernard was again fully represented by counsel (although it's unclear precisely how that came to be) was initially delayed "after it became clear that [Bernard]'s mental condition was wholly compromised at that time."  When sentencing reconvened, Bernard was sentenced to 180 months in prison.

Bernard appealed his convictions, arguing that the district court erred by allowing him to proceed pro se and represent himself at trial and that, under the Supreme Court's 2008 decision in Edwards, the court was required to apply a higher standard to the pro se issue than the competency issue.  The Fourth Circuit disagreed and affirmed, 2-1.  Proceeding with a plain error analysis, the court first noted the fundamental nature of the Sixth Amendment right to self representation and that the Supreme Court in Godinez (1993) rejected the argument that the competency to waive constitutional rights (including the right to counsel) was a higher threshold than the competency to be tried in the first place.  Edwards, the court concluded, did not change that standard, but only permits the states to require counsel in cases where a defendant is competent to stand trial, but perhaps not competent to proceed pro se, but the Constitution does not require it.  As a result, there was no error, much less plain error, in the district court allowing Bernard to proceed pro se at trial.  Nor was the district court required to sua sponte revisit the issue of competency during trial.

Judge Diaz dissented, agreeing with the majority that Edwards provided a discretionary, not mandatory, duty on trial courts facing this issue, but disagreed that the district court in this case was aware of that discretion.

Fake Distress Call That Summons Coast Guard Suffices for Federal Crime

US v. Deffenbaugh: Deffenbaugh was on probation for a Maryland state conviction and was facing revocation.  To avoid that fate, he attempted to fake his own death, jumping off a boat off the Virginia coast and slipping away (with the help of his girlfriend) while the Coast Guard and others tried to locate him.  Rather that be pronounced dead and avoid incarceration, Deffenbaugh and his girlfriend were apprehended in Texas and returned to Virginia.  Deffenbaugh was charged with conspiring to cause a fake distress call to the Coast Guard and substantively causing that call.  He was convicted of both counts at trial (at which his girlfriend testified against him) and sentenced to a total of 84 months in prison.

On appeal, Deffenbaugh challenged both his conspiracy conviction and sentence, both of which the Fourth Circuit affirmed.  As to the conspiracy conviction, Deffenbaugh argued that the evidence was insufficient because it could not show that he and his girlfriend shared "the same criminal objective" because she didn't know that the Coast Guard would respond to the 911 call made about Deffenbaugh's disappearance.  Because she did not act with that knowledge, the aim of the conspiracy was not commit a federal crime.  The court disagreed, concluding that the knowledge requirement of the statute when to the falseness of the call itself, not the jurisdictional hook (i.e., that the Coast Guard would response).  The evidence was sufficient to show that Deffenbaugh and his girlfriend shared that knowledge.  As to the sentence, the court concluded that the district court was not plainly unreasonable by looking to the fraud Guideline for guidance in sentencing Deffenbaugh for an offense without an applicable Guideline range.  The court also concluded that his ultimate sentence, including the district court's decision to impose consecutive sentences, was not plainly unreasonable.

SORNA Requires Registration of Juvenile Offender

US v. Under Seal: JD (for "juvenile defendant") was judged delinquent based on allegations of sexual assault against his half sisters.  He was sentenced to a term of incarceration and supervision until his 21st birthday.  A special condition of that supervision is that he register as a sex offender under SORNA, over JD's objection.

On appeal, the Fourth Circuit affirmed that condition.  The court first noted that JD fell within the language of SORNA's definition of a "sex offender" because he was over 14 years of age and had been adjudicated as delinquent.  It then rejected JD's two arguments that the registration requirement nonetheless was invalid.  First, JD argued that the registration requirement violated the confidentiality provisions of the Federal Juvenile Delinquency Act.  The court disagreed, concluding that the more specific provisions of SORNA controlled over the general confidentiality provisions of the FJDA and that Congress clearly intended that result.  Second, JD argued that the registration requirement violated the Eighth Amendment's prohibition against cruel and unusual punishment.  The court disagreed, concluding that SORNA is a "non-punitive, civil regulator scheme, both in purpose and effect" that did not implicate the Eighth Amendment.

Waiver Precludes Review of Erroneous Guideline Calculations

US v. Copeland: Copeland pleaded guilty to one count of distribution of more than five grams of crack cocaine.  As part of his guilty plea, Copeland waived his right to appeal any sentence within or below the advisory Guideline range calculated at sentencing (the Government waived nothing).  Prior to sentencing, Copeland was designated as a career offender based on (among others) two prior North Carolina convictions and his advisory Guideline range calculated as 188 to 235 months.  One of those convictions also served to increase Copeland's statutory range from five-to-40 years up to 10-to-life.  Sentencing occurred while Simmons was awaiting rehearing in the Fourth Circuit and Copeland maintained an objection to the use of the North Carolina priors in determining his sentence.  The district court imposed a sentence of 216 months and announced that, even if there were any problems in calculating the Guideline range, it would have imposed the same sentence anyway.

Copeland filed an appeal, challenging his classification as a career offender, the length of his sentence, and the district court's failure to continue his sentencing.  The Government invoked the waiver in the plea agreement and moved to dismiss Copeland's appeal.  As to the career offender and substantive reasonableness of the sentence, the court granted the motion to dismiss.  Finding the waiver valid, the court concluded that the Guideline calculations were at the heart of it, even though the eventual outcome in Simmons shows them to have been wrong (an error which the Government admitted).  A future change in the law does not render an otherwise valid waiver invalid.  Furthermore, the sentence was not substantively "illegal" and therefore outside the scope of the waiver.  As to the continuance, the court found the district court did not abuse its discretion.