Tuesday, February 25, 2014

Acquiescence to Sentencing Going Forward Where Relevant Conduct Disputed Leads to Waiver of Appellate Review

US v. Robinson: Robinson pleaded guilty to conspiring to distribute 50 grams or more of crack cocaine, along with several substantive counts of distribution.  In the PSR, the probation officer attributed 1.43 kilograms of crack as relevant conduct to Robinson, based on the testimony of a source named Battle.  Robinson objected to that calculation, arguing that Battle was unreliable based on inconsistencies in prior statements and that he lied about buying PCP cigarettes from Robinson during a period where Robinson was living in another state.  Robinson also objected to the calculation of his criminal history.

At sentencing, the Government did not produce Battle to testify, but argued that it was not unusual for sources to give multiple statements that differed from one another and that the PCP issue was irrelevant because it was not part of the relevant conduct calculation.  The Government also argued that there were three other witnesses, whose statements "did not 'make their way' to the probation office," who could provide testimony that would result in a higher relevant conduct determination than the 1.43 kg amount.  The district court presented Robinson with two alternatives.  First, it would conclude the sentencing that day "with what's here and now, and I'll make the decisions that I need to make by a preponderance of the evidence."  Second, it would continue the hearing, "unwind the whole thing," and get a revised PSR that would include the Government's new witnesses.  Robinson chose to go ahead, after again asserting that Battle was not credible.  The district court overruled Robinson's objection as to relevant conduct (criminal history, too) and imposed a sentence of 140 months in prison.

Robinson appealed, challenging both the relevant conduct and criminal history calculations.  The Fourth Circuit affirmed his sentence, 2-1.  On the relevant conduct issue, the court concluded that Robinson had waived his right to challenge the calculation by electing to go forward with sentencing, stating that he "Was agreeing that his drug quantity would be calculated on the basis of the PSR, which relied on Battle's statement."  As to criminal history, the court concluded that a possession of marijuana charge that occurred during the time of the conspiracy charged in the indictment was not relevant conduct and, therefore, counted as both a prior sentence and triggered the two-point enhancement for committing the offense while under a sentence of probation.

Judge Diaz dissented.  He argued that Robinson's choice to proceed with sentencing was done after the district court said it would make findings "by a preponderance of the evidence" and therefore he did not waive his challenge to the relevant conduct calculation.  In conclusion, wrote:
The majority declares that Robinson made a considered decision and should have to live with the consequences. But that rationale upends the equities--and, indeed, facts--of the case before us. It is not Robinson who seeks a mulligan, but the government. 
When Robinson objected to the PSR--before the hearing--the government was put on notice that its “evidence” was suspect. Yet it did not produce Battle. Nor did it produce the probation officer who interviewed Battle. And it had never even submitted the other witnesses’ statements to the probation officer in the first place. Despite its lack of preparation, the government was presented--as the majority sees it--with a win-win scenario: either it would have a second chance to do the job right (securing an even longer sentence), or it would get a pass on the evidentiary standard. “In this case, the district court did not ensure--as it was obligated to--that the Government carried its burden of proof.” [US v.] Lawrence, 47 F.3d [1559] at 1568 [(11th Cir. 1995)]. 
Thus, I would vacate and remand with instructions that the district court resentence Robinson on the record--but without crediting Battle’s statements as to drug weight. Any other result would grant the government the very benefit--a second chance to present evidence--that it does not merit.

Friday, February 07, 2014

Evidence of “Gray Market” Excluded

US v. Zayyad:  Awni Zayyad received several felony convictions in connection with his sales of counterfeit prescription drugs (more specifically, erectile dysfunctions drugs that looked like Viagra and Cialis).  On appeal, Mr. Zayyad mounts two related evidentiary challenges, that the district court erred in excluding evidence of the “gray market” for prescription pills, and that the Government did not establish that he knew the pills he peddled were fakes.

At Mr. Zayyad’s first trial, which ended in a deadlock, the district court permitted Mr. Zayyad to suggest through cross-examination of Government witnesses from pharmaceutical companies, that he believed he obtained the drugs from the “gray market,” inferring that the pills were real; the trial ended in with a mistrial.  The Government filed a superseding indictment, and moved to exclude and evidence of the “gray market,” as it would only be relevant if the defendant testified about his state of mind, i.e., that he believed the pills he sold were genuine.  The district court granted the motion under F.R.E. 401 and 403, holding that there was no evidence that showed Mr. Zayyad had any genuine pills, and that confusion of the issue, misleading the jury, and wasting time would overwhelm the probative value of the evidence; Mr. Zayyad did not take the stand.  The jury convicted Mr. Zayyad after the second trial.

On appeal, the Fourth Circuit panel noted that Mr. Zayyad had the option of testifying, and he could have introduced evidence of a “gray market” but he chose not to take the stand to justify his actions.  The panel stated that it considered the district court’s order as an appropriate limit on Mr. Zayyad’s right to cross-examine, since the ruling did not interfere with the right of the defendant to elect not to testify at trial.  Further, the panel determined that it was unlikely that Mr. Zayyad preserved his appeal issues because he failed to raise an argument that the contested evidence went to show his knowledge that the pills were "gray market" items.

Nolo contendere plea “without adjudication” held a SORNA predicate

US v. Bridges:  In this appeal, the Fourth Circuit addressed the issue of whether a nolo contendere plea in the State of Florida to an attempted sexual battery charge, counts as a predicate offense under SORNA, and held that it does.

William Bridges entered a plea in 1999 to a charge of attempted sexual battery upon a child under 16 with adjudication of guilt withheld.  As a result of this judgment, Mr. Bridges was required to register as a sex offender under Florida law, and he was placed on probation for a year.  At some point, he failed to report to his probation officer, and the state revoked his probation; he served just over two months for the revocation.
In 2010, Mr. Bridges moved to Virginia and registered there as a sex offender.  In 2011, he moved to Michigan without updating his registration with a new address. Mr. Bridges did not register as a sex offender with his new address.  Mr. Bridges received an indictment in 2012 for traveling in interstate commerce without updating his sex offender registration.  He moved to dismiss the indictment, arguing that his nolo contendere plea without adjudication meant that he had not actually been “convicted” of a sex offense for the purposes of SORNA.  The district court disagreed; Mr. Bridges entered a conditional guilty plea in order to challenge the denial of his motion to dismiss.

The Fourth Circuit panel discussed how Congress left the statutory term “convicted” undefined in SORNA, so that the Attorney General could issue guidelines and regulations for the interpretation and implementation of SORNA, which guidelines have the force and effect of law.  Here, the panel cites that so long as “the sex offender is nevertheless required to serve what amounts to a criminal sentence for the offense,” he is “‘convicted’ of a sex offense and falls within the ambit of SORNA’s registration requirements.”  The panel pointed to his two-year probation term pursuant to his plea, and the fact that Mr. Bridges served three days in jail for the plea, as penal consequences.

Additionally, the Fourth Circuit determined that “without adjudication” does not work to exempt Mr. Bridges from registering as a sex offender.  It reached this conclusion after reviewing decisions from the Eleventh and Eighth Circuits, which held that Floridian nolo contendere pleas with adjudication withheld do constitute “convictions” under federal law.

What is "willful" violation of AECA?

US v. Bishop:  Brian Bishop received a conviction for attempting to export small-arms ammunition to Amman, Jordan without a license in violation of the Arms Export Control Act, “AECA,” which the Fourth Circuit panel affirmed.

On appeal, Mr. Bishop raised the issue of whether the AECA requires specific intent.  The Fourth Circuit panel  discussed the difference between specific and general intent, which distinction “has been the source of a good deal of confusion,” quoting the Supreme Court in United States v. Bailey, 444 U.S. 394, 403 (1980).  Further, the panel states that “although courts often use the language of general and specific intent, scienter, and the related concept of mens rea interchangeably, [citation omitted] none of these terms by itself adequately defines willfulness under the AECA.”

The panel looked to the Supreme Court’s statutory interpretation in Bryan v. United States, 524 U.S. 184 (1998) for guidance.  In that case, the Supreme Court interpreted the Firearm Owners’ Protection Act, holding that “to establish a ‘willful’ violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful,” and rejecting the argument that the Government had to prove that a defendant knew of a federal licensing requirement.  The Fourth Circuit panel found a link between FOPA and AECA’s language and structure, stating “that Congress struck a balance between punishing those who intentionally violate the law and ensnaring individuals who make honest mistakes,” and noting that exporting ammunition to Jordan would strike someone of ordinary intelligence as potentially unlawful.  The Fourth Circuit found support from three other Circuits which squarely addressed the issue here.

With respect to the sufficiency of the evidence argument, the Fourth Circuit considered the evidence in the light most favorable to the prosecution: that Mr. Bishop had been trained in the rules and regulations surrounding the State Department’s transportation policies, he had received an email from that he could not transport ammunition and he was told explicitly that he could not keep firearms in Jordan.  Further, Mr. Bishop engaged in “numerous” acts of deception that indicated his awareness of wrongdoing.

Wednesday, February 05, 2014

"Closely related" law provides reasonable suspicion

US v. Williams:  Leconie Williams, IV, received two firearms charges after police stopped his vehicle for violating the section of Maryland’s traffic code that prohibits leaving a vehicle in the street in a manner that obstructs traffic.  Mr. Williams filed a motion to suppress the evidence discovered as a result of the stop, arguing that police lacked probable cause.  The district court denied the motion because it found that the police had reasonable suspicion that Mr. Williams violated a different, but closely related, section of the Maryland traffic code.  The government moved to exclude evidence of earlier alleged police misconduct by the officers involved in this case.

After an initial mistrial in which Mr. Williams was acquitted of one count and the jury could not reach a decision on the second count, a second jury found Mr. Williams guilty on one count.  On appeal, Mr. Williams challenged the district court’s decision to deny his motion to suppress, as well as the decision to exclude evidence of earlier alleged incidents of police misconduct.

The Fourth Circuit panel determined that the Maryland traffic code section listed on the citation given to Mr. Williams could not be the basis for conducting the stop of Mr. Williams’ car.  It upheld the district court’s decision to deny the motion to suppress because “the conduct that [the officer] McCann set forth as the basis for the stop was plainly illegal under Maryland law, albeit in a different section than the one in the traffic citation.” Further, the panel stated that Mr. Williams failed to show that the district court clearly erred in finding that he had stopped his vehicle in the middle of the road, conduct which violates some provision of the Maryland traffic code, just not the one the police cited.

With regard to the evidence of earlier incidents of alleged police misconduct by the officers involved in this case, Mr. Williams wanted to admit evidence of misconduct from three civil suits containing allegations of misdeeds by the police officers who arrested him; the government moved to exclude this evidence.  Unfortunately for Mr. Williams, it appears the age of the evidence, dating back more than ten years, gave the district court an easy reason to find little probative value in this evidence and exclude it.  The Fourth Circuit did not find the exclusion “irrational.”

Rights to Counsel and Self-Representation Mutually Exclusive

US v. Beckton:  In this appeal, Reggie Andre Beckton challenged the district court’s rulings surrounding his representation at trial for two counts of bank robbery.  Prior to trial, two public defenders withdrew from representing Mr. Beckton, and he attempted to have a third disqualified; the district court denied this attempt, so Mr. Beckton elected to proceed pro se, despite repeated warnings from the court that self-representation was not in his best interest.  The district court permitted Mr. Beckton to have his court appointed counsel appear as standby; however, problems arose when Mr. Beckton decided to testify.  The district court ordered Mr. Beckton to either permit his standby counsel to assume control of the case, or he could present his testimony by questioning himself.  When Mr. Beckton opted to question himself, he testified in narrative form against the instructions of the district court.  Consequently, the district court limited his testimony.  Mr. Beckton repeated refused the assistance of counsel.  The jury convicted Mr. Beckton on both counts.

In matters of trial management, according to the Fourth Circuit panel, district courts enjoy wide discretion, and so long as restrictions are not “arbitrary or disproportionate to the purposes they are designed to serve,” a district court will not abuse its discretion.  The Fourth Circuit panel found the district court’s rationale “eminently reasonable” in preventing him from testifying in narrative form, and in requiring Mr. Beckton to adhere to substantive and procedural courtroom rules that all litigants must do, the district court was well within its discretion.

Restitution Order Reversed

US v. Freeman:  Robert Freeman received a conviction for obstructing federal bankruptcy proceedings.  As part of his sentence, he was ordered to pay restitution to four people that took out loans to support his ministry business.  However, these four “purported victims” were not specifically victims of Mr. Freeman’s act of obstruction. These folks took out loans to support Mr. Freeman’s ministries, which he then used to finance luxury cars and a home, though these individuals did not have the resources to repay their debts.  

The district court failed to cite a statutory basis for the restitution award, but noted that it would not impose a fine as part of Mr. Freeman’s sentence because it imposed the restitution.  It actually imposed restitution as a condition of the defendant’s supervised release.

The Fourth Circuit reviews restitution awards for an abuse of discretion.  The district court’s discretion to order restitution depends upon statutory, not inherent, authority.  The Fourth Circuit picked out four possible statutory provisions which could have served the basis for the imposed restitution, including as a part of Mr. Freeman’s supervised release, under 18 U.S.C. sect. 3563(b).  This statute, according to the Fourth Circuit, required that victims could be victims only of the offense of conviction.   As these folks were not victims of Mr. Freeman’s obstruction of the bankruptcy proceedings, they were not victims who could receive restitution here.  Accordingly, the Fourth Circuit panel reversed and remanded.

STA Violation Cannot Be Reviewed for Plain Error

US v. Mosteller: Mosteller collected VA benefits as a surviving spouse and to pursue an education following the death of her first husband.  She did not inform the VA when she remarried and did not maintain the educational status needed to continue to receive those benefits.  She was originally charged with one count of theft of government funds - specifically, the surviving spouse benefits after she had remarried.  However, at trial Government witnesses made reference to the education funds as well, causing Mosteller to move for a mistrial.  The district court agreed to grant the mistrial, but only on the condition that Mosteller waive her rights under the Speedy Trial Act.  She did, a mistrial was granted, and the Government obtained a superseding indictment with an additional charge of theft related to the education funds.  A second trial was held beyond the STA's 70-day limit, but Mosteller did not object.  She was convicted on both counts and sentenced to 15 month in prison.

On appeal, Mosteller filed a pro se supplemental brief (to an Anders brief by counsel) alleging that her STA rights had been violated by the district court conditioning the mistrial on her waiver of any STA claim.  The Fourth Circuit agreed that the district court acted improperly by conditioning the mistrial on a STA waiver.  However, because Mosteller did not object under the STA at the second trial, the STA's waiver provision prevented the court from actually reaching the issue, even under a plain error standard of review (as a Sixth Amendment speedy trial claim would have been).