US v. Green: Each of the fifty states has its own laws regarding the legally permissible amount of tint that may be present on car windows, and not surprisingly, the levels of acceptable tint can vary significantly when crossing state borders. Illegally tinted windows, or those which appear to violate local laws, can provide a sufficient basis for a traffic stop.
Virginia police stopped Herbert Green for the level of tint in his car windows, as well as a partially obscured license plate. Green did not argue prior to pleading guilty that the traffic stop was illegal at its inception. He did, however, file two motions to suppress, to contest the length of the traffic stop and the reliability of the drug-detecting dog that alerted to the vehicle. The district court denied both motions; Green entered a conditional guilty plea to preserve his right to appeal the denial of his two motions to suppress; and the Fourth Circuit affirmed.
On appeal, Green argued that the traffic stop was unreasonably long without justification by reasonable suspicion. Focusing on the second prong of inquiry under Terry (since the stop was considered legal at its inception), the scope component, the Fourth Circuit panel found the stop scope and duration was reasonable based on several “prompt” actions taken by the police to establish that the windows were, in fact, in violation of Virginia law.
Secondly, Green argued that the police dog’s field performance was so poor that his alert was insufficient probable cause to search the vehicle. Under totality of the circumstances review, the Fourth Circuit rejected Green’s second claim because the government was able to present sufficient evidence of the dog’s reliability in detecting drugs.
Friday, January 31, 2014
MD resisting arrest not crime of violence
*Reversal on Rehearing En Banc*
US v. Aparicio-Soria: Mr. Aparicio-Soria received a conviction for illegal reentry. He appealed his conviction, and he had a prior Maryland conviction for resisting arrest. The Fourth Circuit panel determined Mr. Aparicio-Soria’s prior offense contained the requisite element of physical force to qualify as a crime of violence for sentencing enhancement purposes (decided here, blogged here). The Fourth Circuit then granted Mr. Aparicio-Soria’s petition to rehear the case, and the Fourth Circuit reversed on rehearing en banc.
In the original appeal, the parties agreed that the district court’s application of the modified categorical approach was incorrect, but disagreement developed over the result reached with respect to the categorical approach. The split panel ultimately determined that the Maryland conviction for resisting arrest triggered the sentencing enhancement, because force meant “violent force,” and state courts required that force be “violent” and directed against another.
On rehearing, the Fourth Circuit found contrary precedent from Maryland’s highest court, through "simple legal research", that the degree of force required as an element of resisting arrest is “offensive physical contact,” and “crimes requiring offensive physical contact are not crimes of violence containing an element of violent force, as required under federal enhanced sentencing regimes.” Finally, the Fourth Circuit quoted the Supreme Court in Descamps, that “key” to the resolution here are “elements, not facts,” and violent force was “simply not an element of resisting arrest in Maryland.”
US v. Aparicio-Soria: Mr. Aparicio-Soria received a conviction for illegal reentry. He appealed his conviction, and he had a prior Maryland conviction for resisting arrest. The Fourth Circuit panel determined Mr. Aparicio-Soria’s prior offense contained the requisite element of physical force to qualify as a crime of violence for sentencing enhancement purposes (decided here, blogged here). The Fourth Circuit then granted Mr. Aparicio-Soria’s petition to rehear the case, and the Fourth Circuit reversed on rehearing en banc.
In the original appeal, the parties agreed that the district court’s application of the modified categorical approach was incorrect, but disagreement developed over the result reached with respect to the categorical approach. The split panel ultimately determined that the Maryland conviction for resisting arrest triggered the sentencing enhancement, because force meant “violent force,” and state courts required that force be “violent” and directed against another.
On rehearing, the Fourth Circuit found contrary precedent from Maryland’s highest court, through "simple legal research", that the degree of force required as an element of resisting arrest is “offensive physical contact,” and “crimes requiring offensive physical contact are not crimes of violence containing an element of violent force, as required under federal enhanced sentencing regimes.” Finally, the Fourth Circuit quoted the Supreme Court in Descamps, that “key” to the resolution here are “elements, not facts,” and violent force was “simply not an element of resisting arrest in Maryland.”
Plain error review does not alter life sentence
US v. Shepperson: Chinua Shepperson faced several capital-eligible charges including murder and racketeering activities. After a two-week trial, a jury found him guilty on all counts. Shepperson appealed, raising two claims of error: 1) the district court should have appointed him a second attorney, pursuant to 18 U.S.C. sect. 3005; and 2) the district court should have excluded a witness based on the government’s failure to disclose its witness list at least three days prior to trial, pursuant to 18 U.S.C. sect. 3432.
Unfortunately for Shepperson, both of his claims of error were subject to plain error review on appeal by the Fourth Circuit. First, the panel held that Shepperson was obligated to request additional counsel at the time of trial. Further, the district court was under no obligation to inform Shepperson prior to trial that he had the ability to request a second attorney, even if the district court was aware that Shepperson was not especially pleased with his attorney, or to appoint sua sponte another attorney for him. According to statute, a defendant must request a second attorney under 18 U.S.C. sect. 3005.
The Fourth Circuit also rejected Shepperson’s second claim under plain error review. Since the government proceeded against him without seeking the death penalty, 18 U.S.C. sect. 3432 was not applicable to his case. Shepperson received what the panel considered equivalent notice of the witnesses during trial, so no prejudice was suffered.
Unfortunately for Shepperson, both of his claims of error were subject to plain error review on appeal by the Fourth Circuit. First, the panel held that Shepperson was obligated to request additional counsel at the time of trial. Further, the district court was under no obligation to inform Shepperson prior to trial that he had the ability to request a second attorney, even if the district court was aware that Shepperson was not especially pleased with his attorney, or to appoint sua sponte another attorney for him. According to statute, a defendant must request a second attorney under 18 U.S.C. sect. 3005.
The Fourth Circuit also rejected Shepperson’s second claim under plain error review. Since the government proceeded against him without seeking the death penalty, 18 U.S.C. sect. 3432 was not applicable to his case. Shepperson received what the panel considered equivalent notice of the witnesses during trial, so no prejudice was suffered.
Thursday, January 02, 2014
No Fourth, Sixth Amendment Errors for Robbery (and Related) Conviction
US v. Dargan: Dargan was arrested for being involved in a three-man armed robbery (the other two had guns, Dargan had a knife) of a Maryland jewelry store. After his arrest, officers obtained a search warrant for his home authorizing the recovery of "indicia of occupancy." They recovered a receipt for a $461 belt, bought with cash the day after the robbery. He was charged with a Hobbs Act robbery and use and carrying of a firearm during a crime of violence. Dargan moved to suppress the receipt, but the district court concluded that although it did not fall within the boundaries of the warrant it was properly seized as being in plain view. At trial, the Government produced testimony from a witness who was in jail with one of Dargan's codefendants who allegedly confessed to robbing a jewelry store with two others, although he did not identify Dargan. Dargan was convicted and sentenced to 135 months in prison.
On appeal, Dargan challenged his conviction in two ways, both of which the Fourth Circuit rejected. First, Dargan argued that the receipt should have been suppressed because it was beyond the scope of those things authorized to be seized pursuant to the warrant, namely "indicia of occupancy." The court disagreed (with the district court as well as Dargan) and concluded that the receipt was the type of evidence that officers "could plausibly have thought that the occupant of the premises was also the purchaser." Second, he argued that the admission of the codefendant's statements to a cellmate were both inadmissible hearsay and violated the Confrontation Clause. On the hearsay argument, the court concluded that the statements fell within the hearsay exception for statements against interest, being made by an unavailable witness, being inculpatory, and having corroboration by other evidence. On the Confrontation Clause argument, the court concluded that the clause was not applicable because the codefendant's statements were "plainly nontestimonial" and thus not the kind it covered.
On appeal, Dargan challenged his conviction in two ways, both of which the Fourth Circuit rejected. First, Dargan argued that the receipt should have been suppressed because it was beyond the scope of those things authorized to be seized pursuant to the warrant, namely "indicia of occupancy." The court disagreed (with the district court as well as Dargan) and concluded that the receipt was the type of evidence that officers "could plausibly have thought that the occupant of the premises was also the purchaser." Second, he argued that the admission of the codefendant's statements to a cellmate were both inadmissible hearsay and violated the Confrontation Clause. On the hearsay argument, the court concluded that the statements fell within the hearsay exception for statements against interest, being made by an unavailable witness, being inculpatory, and having corroboration by other evidence. On the Confrontation Clause argument, the court concluded that the clause was not applicable because the codefendant's statements were "plainly nontestimonial" and thus not the kind it covered.
Management Enhancement Upheld for Ex-Cop In Pot Conspiracy
US v. Steffen: Sreffen was a South Carolina Highway Patrolman who was part of a "large-scale" conspiracy involving the cultivation and distribution of marijuana. He pleaded guilty to a conspiracy charge that carried a five-year mandatory minimum. At sentencing, a main issue was whether Steffen was a "manager of supervisor" of criminal activity, worth of a three-level Guideline enhancement. The district court concluded that he was, because he purchased the land on which the marijuana was grown, transported marijuana in his patrol car, and used the car to follow a coconspirator so he would not be pulled over. The district court imposed the mandatory minimum sentence, 60 months, which was also the bottom of the Guideline range.
On appeal, Steffen challenged the management/supervision enhancement, arguing that the evidence showed he only managed property, not other co-conspirators. The court disagreed, holding that the use of Steffen's patrol car to escort another co-defendant (so as to avoid being stopped) was a "management decision regarding the manner in which another participant in the conspiracy was to conduct the conspiracy's business." Similarly, the enhancement was applicable because Steffen transferred the energy bill at the location where the marijuana was grown to another co-defendant to avoid detection.
On appeal, Steffen challenged the management/supervision enhancement, arguing that the evidence showed he only managed property, not other co-conspirators. The court disagreed, holding that the use of Steffen's patrol car to escort another co-defendant (so as to avoid being stopped) was a "management decision regarding the manner in which another participant in the conspiracy was to conduct the conspiracy's business." Similarly, the enhancement was applicable because Steffen transferred the energy bill at the location where the marijuana was grown to another co-defendant to avoid detection.
Specifically Exempted Sentencing Factors for Supervise Release Aren't Off Limits for Revocation Sentence
US v. Webb: Webb was brought to court due to behavior that resulted in him facing new charges as well as allegations that he violated the conditions of his supervised release. As to the supervised release violation, the district court imposed a (upward variance?) sentence of 32 months in prison, to run consecutively to the 80-month sentence imposed for the new charge. In doing so, the district court explained that the supervised release sentence reflected "the seriousness of the violation," provided "just punishment," and promoted "respect for the conditions of supervision imposed by the court."
Webb appealed, arguing that the district court erred by relying on prohibited factors - namely the seriousness of the offense, promoting respect for the law, and providing just punishment - when it imposed the supervised release sentence. Engaging in plain error review, the Fourth Circuit disagreed and affirmed. Although 18 USC 3583(e) lists factors which a court must consider when imposing a supervised release sentence, it does not prohibit the court from considering other factors. In addition, those factors exempted in 3583(e) are "intertwined with the factors courts are expressly authorized to consider." Thus, the simple reference of the district court to those factors "without more" does not render the sentence unreasonable (much less plainly so).
Webb appealed, arguing that the district court erred by relying on prohibited factors - namely the seriousness of the offense, promoting respect for the law, and providing just punishment - when it imposed the supervised release sentence. Engaging in plain error review, the Fourth Circuit disagreed and affirmed. Although 18 USC 3583(e) lists factors which a court must consider when imposing a supervised release sentence, it does not prohibit the court from considering other factors. In addition, those factors exempted in 3583(e) are "intertwined with the factors courts are expressly authorized to consider." Thus, the simple reference of the district court to those factors "without more" does not render the sentence unreasonable (much less plainly so).
NC Prior for Taking Indecent Liberties With a Minor Is "Crime of Violence" for Illegal Reentry Guidelines
US v. Perez-Perez: Perez-Perez, a Mexican citizen, was convicted in 2001 for taking indecent liberties with a minor in North Carolina. As a result, he was deported. He returned to the United States, was caught, and pleaded guilty to illegal reentry. At sentencing, the primary issue was whether his prior North Carolina conviction was a "crime of violence," triggering a 16-level increase under the applicable Guideline. The district court held that it did and sentenced Perez-Perez to the bottom of the resulting Guideline range, 46 months.
Perez-Perez challenged his sentence on appeal and the Fourth Circuit affirmed. Calling itself "constrained by our precedent" in US v. Diaz-Ibarra, the court concluded that Perez-Perez's North Carolina conviction was categorically a crime of violence when its elements were compared to the generic elements of a crime listed in the Guidelines as being a crime of violence, in this case sexual abuse of a minor. The elements of the North Carolina offense set forth by the state courts "correspond in substance" with the Fourth Circuit's prior description of sexual about of a minor in Diaz-Ibarra. That definition, the court noted has "extraordinary breadth."
Judge Davis wrote a concurring opinion, agreeing that the outcome was controlled by Diaz-Ibarra, but concluding that "the time has come to reconsider" that decision.
NOTE: This case was decided on December 18, 2013.
Perez-Perez challenged his sentence on appeal and the Fourth Circuit affirmed. Calling itself "constrained by our precedent" in US v. Diaz-Ibarra, the court concluded that Perez-Perez's North Carolina conviction was categorically a crime of violence when its elements were compared to the generic elements of a crime listed in the Guidelines as being a crime of violence, in this case sexual abuse of a minor. The elements of the North Carolina offense set forth by the state courts "correspond in substance" with the Fourth Circuit's prior description of sexual about of a minor in Diaz-Ibarra. That definition, the court noted has "extraordinary breadth."
Judge Davis wrote a concurring opinion, agreeing that the outcome was controlled by Diaz-Ibarra, but concluding that "the time has come to reconsider" that decision.
NOTE: This case was decided on December 18, 2013.
No Fifth Amendment Protection in Documents Required By Off-Shore Banking Regulations
US v. Under Seal: John and Jane Doe (Husband & wife? Brother & sister? Unrelated business partners given the same phony name? The opinion doesn't say) had Swiss bank accounts and were being investigated for hiding assets there to avoid the IRS. A grand jury subpoena was issued, directing the Does to turn over records about the accounts they were required to keep under Treasury regulations dealing with offshore banking. They sought to crush the subpoena, asserting a Fifth Amendment privilege against self incrimination. The district court denied that request and ordered the records disclosed and ordered the Does held in civil contempt (but stayed that part of the order).
On appeal, the Fourth Circuit affirmed the decision to require the records be disclosed. The court found that the "required records doctrine" applied and that the documents requested were not protected by privilege. The record keeping requirement was "essentially regulatory," the records were of a kind normally kept in the course of business, and contained "public aspects" that rendered them at least analogous to public records.
NOTE: This case was decided on December 13, 2013.
On appeal, the Fourth Circuit affirmed the decision to require the records be disclosed. The court found that the "required records doctrine" applied and that the documents requested were not protected by privilege. The record keeping requirement was "essentially regulatory," the records were of a kind normally kept in the course of business, and contained "public aspects" that rendered them at least analogous to public records.
NOTE: This case was decided on December 13, 2013.
Mid-Scheme Payouts Not Money Laundering
US v. Simmons: Simmons ran a Ponzi scheme from 2007 until 2009. By the end of things, although the statement for the fund he managed claimed assets of more than $292 million, there was actually only $523 in the bank. Simmons was charged with securities fraud, wire fraud, and two counts of money laundering. Rather than pinpointing specific acts of fraud, the indictment on the fraud counts charged a broad "scheme to defraud" covering the entire time of the scheme. Simmons was convicted on all counts and sentenced to 50 years in prison (a considerable variance from the 960-month sentence recommended by the Guidelines).
On appeal, Simmons challenged his two money laundering charges. Both charges involved transactions undertaken as part of the Ponzi scheme. Simmons argued that those transactions did not involved "proceeds" as defined by the statute (pursuant to a 2008 Supreme Court decision that has since been overruled by Congress, but was in effect at the time of Simmons's scheme), but rather the "essential expenses" of maintaining the scheme. In other words, his money laundering was part of the charged scheme to defraud and those charges must merge with the fraud charges. The Fourth Circuit agreed and reversed Simmons's money laundering convictions, 2-1. The court held that the ongoing success of the fraud scheme depended on the payments that were subject to the money laundering counts (among others). As a result, those counts were vacated, his sentence set aside, and the case returned to the district court for resentencing.
Judge Niemeyer dissented, arguing that the particular transactions at issue here, because they furthered the scheme by allowing Simmons to collect money from other victims, fell within the meaning of the statute.
Congrats to the Defender office in Western North Carolina on the win!
NOTE: This case was decided on December 10, 2013.
On appeal, Simmons challenged his two money laundering charges. Both charges involved transactions undertaken as part of the Ponzi scheme. Simmons argued that those transactions did not involved "proceeds" as defined by the statute (pursuant to a 2008 Supreme Court decision that has since been overruled by Congress, but was in effect at the time of Simmons's scheme), but rather the "essential expenses" of maintaining the scheme. In other words, his money laundering was part of the charged scheme to defraud and those charges must merge with the fraud charges. The Fourth Circuit agreed and reversed Simmons's money laundering convictions, 2-1. The court held that the ongoing success of the fraud scheme depended on the payments that were subject to the money laundering counts (among others). As a result, those counts were vacated, his sentence set aside, and the case returned to the district court for resentencing.
Judge Niemeyer dissented, arguing that the particular transactions at issue here, because they furthered the scheme by allowing Simmons to collect money from other victims, fell within the meaning of the statute.
Congrats to the Defender office in Western North Carolina on the win!
NOTE: This case was decided on December 10, 2013.
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