Tuesday, November 17, 2015

Insufficient evidence of "purpose"

US v. Palomino-Coronado:  In this appeal, the defendant challenged his conviction for one count of enticing a minor to engage in sexual conduct for the purpose of producing a visual depiction of that conduct.  In this case, there was only one photograph involved.  Further, at trial, expert testimony revealed that during the course of the investigation, the child forensic interviews were coercive and did not follow established protocols.  The defendant moved for an acquittal at the close of the government’s case, based on insufficient evidence, which the district court denied.  The jury found the defendant guilty.  On appeal, the Fourth Circuit determined that the district court erred in denying the defendant’s Rule 29 motion, reversing and vacating the conviction.

As a matter of first impression, the Fourth Circuit considered a sufficiency of the evidence challenge to the statute at issue here, and focused its analysis on what evidence may show that a defendant acted with purpose.  The Fourth Circuit stated that many times, courts are left with only circumstantial evidence to demonstrate a defendant’s purpose.  The Fourth Circuit also found instructive the cases wherein the number of sexually explicit recordings or depictions as indicators of purpose, as well as evidence presented of “purposeful conduct,” considering the types of photography or video tools used.

On appeal, the defendant here argued that the government failed to prove that he acted for the purpose of producing a visual depiction [emphasis in original], as the government had offered only one cell phone image of sexually explicit conduct with the victim, a photo that the defendant had deleted from his phone.  Without more, the Fourth Circuit concluded, the facts of the case did not support the conclusion that the defendant here acted in order to take a picture, as required by the statute of his conviction.

On rehearing, indictment properly dismissed

US v. Vinson:  Vinson filed a petition for rehearing after a Fourth Circuit panel earlier (see here) vacated the district court’s order granting his motion to dismiss the indictment against him, asserting a new basis for affirming the dismissal of his indictment.  On rehearing, the Fourth Circuit changed course, affirming the district court’s order dismissing the indictment.

The Fourth Circuit begins its analysis here by stating that Vinson did not raise the issue it finds dispositive in his opening brief to the Fourth Circuit or the district court; the rule precluding consideration of issues for the first time on appeal to the Fourth Circuit is prudential, not jurisdictional, so the Fourth Circuit determined that under the circumstances presented in this case, it would exercise its discretion to consider the issues Vinson raised in his petition for rehearing.

Vinson raised the issue of whether Vinson’s conviction under North Carolina’s assault and battery statute qualifies as a conviction for a misdemeanor crime of domestic violence (“MCDV”).  The Fourth Circuit held here that none of the categories of assault under North Carolina law have elements matching the elements of an MCDV under 18 U.S.C. §921(a)(33)(A), so the district court properly dismissed the indictment against Vinson.

Monday, November 02, 2015

ACCA Sentence Based on South Carolina Burglary Convictions Vacated

US v. McLeod: McLeod pleaded guilty to being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act based on several prior South Carolina burglary convictions, even though McLeod argued that his convictions did not match the generic definition of burglary. He was sentenced to 188 months in prison.

On appeal, McLeod argued (among other things) that the South Carolina convictions didn't meet the generic definition of burglary with regard to the location involved. The Fourth Circuit agreed and vacated his sentence. The court held that while the South Carolina statute involved burglary of a "building" and "appears at first glance to parrot the language of generic burglary," the term "building" is defined as including "any structure, vehicle, watercraft, or aircraft." The district court could apply the modified categorical approach to determine which type of "building" was involved. However, a closer review of the relevant plea transcript show that McLeod actually pleaded guilty to a different form of burglary, although one with an equally broad definition of the place to be broken into (a "dwelling" instead of a "building"). Because the Government could present no appropriate documents to show which of the various "dwellings" McLeod broke into it could not show that his prior convictions qualified as ACCA predicates.

Obstruction Enhancement OK'd Based on False Alibi Testimony of Defense Witnesses

US v. Andrews: Andrews robbed a pizza joint, making off with some cash and the manager's wallet. Pursuing police found an abandoned car, in which they found two wallets (the manager's and Andrews's), a cell phone with pictures of Andrews's family, a traffic ticket with his name on it, and a "bill of sale showing that Andrews owned the vehicle." Officers also found a cap that matched the description of the robber and was matched to Andrews via DNA testing. He was charged with Hobbs Act robbery and using a firearm in relation to a crime of violence. Prior to trial he gave notice of an alibi defense (as well as filing a pro se motion suggesting the prosecutors were intimidating witnesses). The defense was provided by two witnesses, Andrews's mother and girlfriend, who testified that Andrews was at home the night of the robbery. Andrews didn't testify. He was convicted on all counts. At sentencing, his sentence was enhanced for obstruction of justice based on his "prior knowledge of the false testimony" provided by his alibi witnesses and his "subsequent silence during trial."

Andrews appealed only his sentence, particularly the imposition of the obstruction enhancement, which the Fourth Circuit affirmed. While the court noted that the paradigmatic example of the enhancement applying after a trial is perjury on the defendant's part, or subornation thereof, it is "warranted if the court below made a proper finding of obstruction even if it did not specifically find the subornation of perjury." The court also rejected the application of de novo review, stressing the discretion involved by the district court after evaluating evidence. In this case, the district court rested "the enhancement on the very essence of [obstruction] - the willful obstruction of justice" because of Andrews's knowledge of the false alibi testimony, at least after the first alibi witness had testified.

Lack of Proabable Cause Dooms Search Undertaken After Traffic Stop

US v. Patiutka: Patiutka was pulled over on an Interstate in Virginia for failure to maintain a lane. He gave the name Roman Pak to the officer who, although he thought Patiutka might have been lying to him, "asked no follow-up questions about Patiutka's purported lie." The officer gave Patiutka a verbal warning, told him was "free to go," but later testified that "in his mind, [Patiutka] wasn't free to leave" because he "intended to reengage Patiutka in conversation and obtain consent to search the car." The officer got what he thought was consent, which led other officers (who arrived during the stop) to search the car and find a credit card reader and "four new, unopened iPads" sitting in a suitcase. Patiutka asked what was going on and objected to any search. The search stopped, but an officer announced he "was placing Patiutka in 'investigative detention'" and put him in a patrol car. The search resumed, further items indicative of credit card fraud were found, and Patiutka was taken to the police station, where he made "a number of incriminating statements."

Patiutka was charged with credit card fraud and identity theft and filed a motion to suppress the evidence found during the stop. At the suppression hearing, the officer who stopped him testified that Patiutka "would have ultimately arrested for providing a false ID" regardless of whether the search uncovered anything or not. The district court granted the motion, rejected several argument by the Government that the evidence was admissible under various exceptions to the warrant requirement in the Fourth Amendment.

On appeal, the Fourth Circuit affirmed the suppression, also rejected the Government's arguments to avoid the Fourth Amendment's warrant requirement. First, the court rejected the argument that the search was done incident to a lawful arrest, namely for the state offense of providing false identity information to the officer. The court noted that there was no probable cause to support such a charge at the time Patiutka revoked his alleged consent and that the district court's conclusion that the officer's testimony wasn't credible (based on video of the stop) was not clearly erroneous. Second, the court rejected the Government's argument that the automobile exception meant a warrant was not required by holding that, regardless of a warrant, there was no probable cause to continue the search once Patiutka revoked his alleged consent. The items that had been found by that point could be legally possessed and "innocuous explanations for a driver's possession of these items abound."  Furthermore, collective knowledge of the officers could not save the search because the information that the first officer would have imparted to the others was, as the court already held, insufficient to support probable cause anyway.

Lack of Particularized Evidence of Wrongdoing Dooms Stop

US v. Slocumb: A bunch of police officers arrived at the parking lot of a business (closed for the night) that they were going to use as a staging area for executing a search warrant nearby. The lot itself was known as a "place for drug activity."  Slocumb was there, along with his girlfriend and their child. Slocumb was transferring a car seat from one car to another. Slocumb explained that his girlfriend's car had broken down and he had come to retrieve her and the child. During the conversation Slocumb "did not make eye contact and gave mumbled responses," which the officer considered suspicious. Another officer said (to the first officer, not to Slocumb directly) that they were "not allowed to leave" and the rest of the officers went to execute the warrant. The officer left behind to guard Slocumb and his girlfriend later said that when he asked Slocumb about "his knowledge of drugs at the target house" he began acting "increasingly nervous and [did] not make eye contact." Slocumb, at some point during the conversation, told the officer his name was Anthony Francis. A second officer arrived and asked the girlfriend for Slocumb's name, to which she answered "Hakeem," a name "the officers recognized as someone who was under investigation for drug trafficking." Slocumb was arrested for providing a false name. Officers recovered $6000 in cash from Slocumb and drugs from where he had been sitting in his car. Slocumb admitted the drugs were his and that his girlfriend knew nothing about them. Slocumb unsuccessfully moved to suppress the evidence recovered from him and the car.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. The court held that although there were several general factors that might have supported reasonable suspicion to detain Slocumb, the only thing that might provide particularized suspicion of wrongdoing - Slocumb's own behavior - was not sufficient to meet that threshold. He did not flee, was not evasive with the officers, and his other behavior was not indicative of wrongdoing. Thus, the court concluded, viewed "in their totality, the factors cited by the district court do not amount to reasonable suspicion to justify Slocumb's seizure."

Departure Based on Old Juvenile Convictions OK

US v. McCoy: McCoy was charged with two drug charges at trial, at which the jury concluded he was responsible for between 500 grams and 5 kilograms of cocaine. Testimony at trial concerned three separate purchases of cocaine, one of which was "returned for poor quality." At sentencing, the probation officer included all three buys (including the "returned" one) as relevant conduct, producing a total of 7 kilograms and a guideline range of 135 to 168 months. McCoy argued for a sentence of 120 months (the mandatory minimum). while the Government sought an upward departure based on three juvenile convictions which did not factor in the Guideline calculations and a sentence of 192 months. The district court departed (to a slightly higher Guideline range than the Government requested) and imposed a sentence of 188 months in prison.

McCoy appealed, arguing only that his sentence was substantively unreasonable, for several reasons, all of which the Fourth Circuit rejected. First, the court rejected McCoy's argument that the district court should not have considered the juvenile convictions. The court noted that the district court was free to base a departure on convictions that were otherwise too old to count in the criminal history score and that the "seriousness of the juvenile crimes" demonstrated McCoy's likelihood of recidivism. Second, the court rejected McCoy's argument that the district court erred by departing to Criminal History Category V, rather than IV as the Government requested, noting that while the Government's request is an important consideration, it's not binding on the district court. In addition, though the district court's Guideline range was higher than the one requested by the Government, the actual sentence imposed was slightly lower. Finally, the court rejected McCoy's argument that his sentence overstated the seriousness of his offense. The court also pointed out that the proper remedy for the amendment of the Guidelines between sentencing and appeal was to file a 3582 motion seeking a reduction in the district court.