Thursday, October 31, 2013

Traffic Stop Affirmed; Officer Question After Offer of Cooperation Not "Interrogation" for Miranda Purposes

US v. Johnson: Johnson was driving through a part of Baltimore in which officers "often stops motorists  . . . for minor offenses in the hope that these encounters will lead them to information about more serious crimes."  Johnson was pulled over due to a "bent and illegible temporary registration tag."  Further investigation uncovered marijuana, which led to Johnson being arrested.  While being transported to the police station Johnson said "I can help you out, I don't want to go back to jail, I've got information for you," to which one of the officers responded, "what do you mean?"  Johnson explained that he could "get you a gun," meaning lead them to a gun in his own home which, as a convicted felon, he could not possess.  That led to a consensual search of Johnson's home, the recovery of a firearm, and Johnson's conviction for being a felon in possession thereof.

On appeal, Johnson challenged the district court's denial of his motion to suppress evidence recovered from the traffic stop, as well as his statements to the officers in response to the "what do you mean?" question.  The Fourth Circuit affirmed Johnson's conviction and sentence.  With regard to the stop, the court rejected Johnson's argument that the district court clearly erred by crediting the officers' testimony - that the tag was bent and unreadable - over his own - that it was fine.  It further held that even if the intent of the officers was investigation beyond the traffic violation itself, that didn't undermine the stop as it was based on probable cause of a violation.  With regard to the statements made in response to "what do you mean?", the court held that because Johnson was offering information to try and help himself the question was not "interrogation" as would have required Miranda warnings to be given.  Presumably, when someone in custody offers to "help" the cops, it means something other than "help convict me of a serious federal felony."

Gigatribe Use Doesn't Automatically Lead to Distribution In Expectation of Receipt

US v. McManus: McManus possessed child pornography on his computer, on which he had installed the file-sharing software Gigatribe.  An FBI agent downloaded some of the child pornography files in McManus's shared folder using that software, although it's not clear precisely how he did it.  McManus pleaded guilty to possession of child pornography.  At sentencing, his offence level was enhanced five levels for "distribution . . . for the receipt, or expectation of receipt, of a thing of value."  The Guideline range was well above the 120-month statutory maximum and the district court varied down to impose a sentence of 72 months in prison.

McManus challenged his sentence on appeal and the Fourth Circuit agreed, vacating it for being procedurally erroneous.  McManus argued that his use of the Gigatribe software supported a mere two-level enhancement for simple distribution, not the five-level enhancement.  The court agreed, refusing to adopt the Government's position that the simple use of a limited-access program like Gigatribe (unlike a program that allows anyone access at anytime) implied a quid-pro-quo in the user's decision to allow someone else access to his files.  It would create a per se rule that is inappropriate when dealing with an enhancement so closely tied to the defendant's state of mind.  Other courts have reached the same conclusion.  As the error in calculating McManus's Guideline range wasn't harmless, the court vacated and remanded for resentencing.

3-Hour Interrogation During SWAT-style Execution of Search Warrant Was "Custodial," Required Miranda Warnings

US v. Hashime: Investigators who had obtained child pornography via Email eventually tracked the address to the Hashime home, where the 19-year old lived with his parents. Investigators obtained a search warrant and went to execute it:
Shortly after 9:00 AM on May 18, 2012, a team of 15-30 state and federal law-enforcement agents equipped with a battering ram descended on Hashime’s home. Hashime, at the time a 19-year-old community-college student, lived with his parents in suburban northern Virginia. The agents banged on the entrance, yelling “Open the door.”

After being let in by Hashime’s aunt, the officers streamed into the house with their guns drawn. An officer entered Hashime’s bedroom and pointed a gun at him. Hashime was in bed, naked and asleep, having gone to bed at 5 AM that morning. The officer ordered Hashime to 'Get up. . . . Get out of bed,' and instructed Hashime to show his hands. After Hashime put on boxer shorts, the officer held Hashime by the arm, issuing orders to him, and marched him out to the front lawn, where officers were corralling the other members of his family. Despite the chilly weather, the Hashime family members were kept outside, several of them dressed only in their nightclothes.
Hashime was taken to the basement and interrogated for three hours in a storage area, with Miranda warnings only given about two hours into the process. His mother was told he was under arrest, was denied the ability to obtain a lawyer for him, and could not speak or contact him during the questioning. The interrogation, during which Hashime made several inculpatory statements, was secretly recorded by the cops. Although they told Hashime he wasn't under arrest one officer explained that he "need[ed] to know the truth . . . even if you're afraid, I don't care if you say I don't want to answer that or I'm afraid to answer it."

Hashime was charged with just about every child porn charge (production, receipt, possession, etc.). The district court denied his motion to suppress the statements made during the interrogation, finding he was not in custody and therefore no Miranda warnings were needed. In making that decision, it relied heavily on Hashime's demeanor as recorded during the interrogation, which displayed "no kind of hesitation, no nervousness." Hashime pleaded guilty to receipt and possession charges and went to a bench trial on the production and distribution charges, of which he was convicted. At sentencing, the district court rejected Hashime's argument to set aside the mandatory minimums involved on Eighth Amendment grounds, but called the Government's requested 30-year sentence "way more than would be appropriate." Hashime was sentenced to the mandatory minimum term of 15 years in prison, plus a 20-year term of supervised release.

On appeal, Hashime challenged both his conviction and sentence. The Fourth Circuit reversed his conviction, holding that the district court should have granted his motion to suppress his statements made during the interrogation. Noting that the only issue was whether Hashime was in custody, the court concluded that an objective analysis of the situation showed that a reasonable person in his situation would have understood he was in custody. The court rejected the Government's argument that officer statements that Hashime wasn't under arrest and that they were only executing a search warrant "wholly ignores the larger setting." It also rejected the Government's reliance on the fact that the questioning happened in Hashime's home. Finally, the court rejected the district court's reliance on Hashime's demeanor during the interrogation. Thus, the Miranda warnings were given too late and the error in not suppressing Hashime's statements was not harmless.

Given the resolution of the Miranda issue, the court didn't technically reach Hashime's Eighth Amendment issue. However, it did opine that:
It suffices to note that, in line with our own review of the custody issue and the district court’s comments at sentencing, this was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant’s conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.
Judge King concurred, noting that the district court's conclusion that proportionatily review under the Eighth Amendment isn't available to sentences less than life in prison is an incorrect conclusion, based on Fourth Circuit precedent.

Thursday, October 03, 2013

Maryland Second-Degree Assault Conviction Doesn't Trigger ACCA

US v. Royal: Royal was pulled over in Baltimore and found to be in possession of a loaded antique pistol.  He was charged with being a felon in possession of ammunition.  The pistol itself was old enough that it didn't meet the definition of "firearm" set out in 18 USC 921.  He went to trial, at which an ATF agent testified about the antiqueness of the pistol, but did not go into detail about the ammunition.  Royal sought a judgment of acquittal, arguing that the Government failed to prove the ammo met the statutory definition of "ammunition," which is "designed for use in any firearm" (as defined by the statute, of course).  It was denied and Royal was convicted.  He was sentenced to 180 months in prison under ACCA based on a prior Maryland conviction for second-degree assault.

On appeal, the Fourth Circuit affirmed Royal's conviction, but vacated his sentence and remanded for resentencing.  As to the conviction, the court first held that there was no error in denying Royal's motion for a judgment of acquittal because the issue of whether the ammo was "antique" (in the sense that it was designed exclusively for a weapon too old to be a "firearm") was an affirmative defense that Royal did not raise.  The evidence presented by the Government was sufficient to support the conviction.  The court also turned down a plain-error challenge to the jury instructions related to that issue.

As to the sentence, the case had been held in abeyance pending the Supreme Court's decision last term in Deschamps.  In light of that decision, the court concluded that the Maryland second-degree assault statute is a "facially indivisible statute" and rejected the Government's argument that state court decisions had converted it into a divisible statute (assuming, without deciding, that such an analysis was appropriate in the first place).  As a result the correct analysis was the regular categorical approach, not the modified categorical approach (as utilized by the district court).  Based on that analysis, because the statute allows conviction based on "any unlawful touching," whether violent or not, Royal's prior conviction was not a "violent felony" for ACCA.

Congrats to the Defender office in Maryland on the win!