Wednesday, April 20, 2016

Court Affirms Convictions Following Stash House Robbery Sting

US v. Hare: This is a case that revolves around a favorite new technique of federal law enforcement (the ATF, in this case), the fake drug stash house sting. In these stings, undercover federal officers find people who are willing to rob a drug stash house and then turn around and arrest them at some point before the actual robbery would have taken place. Of course, there are no drugs, much less an actual stash house. What makes this case a little different is that the three defendants - Hare, Williams, and Edwards - weren't brought into the scheme by law enforcement, but by Bowden, who had been the target of the sting (when the undercover asked Bowden if he'd be interested in a robbery, Bowden replied - repeatedly - "that's what I do!". Hare and the others were eventually convicted of various counts, including a Hobbs Act robbery and conspiracy, and received sentences of 132 (Hare), 150 (Williams), and 240 months (Edwards).

On appeal, Hare and the others challenged the district court's decisions related the sting itself. The Fourth Circuit affirmed their convictions and sentences and found no error in the district court's rulings. First, Hare and the others had demanded discovery of how the ATF determines who to pursue in these sting investigations, in order to determine whether the use of these sting operations was racially motivated. The district court denied the motion, aside from a single page from an ATF manual related to "guidelines for selecting a target." The court affirmed that decision, finding that the defendants didn't meet the high burden necessary to compel discovery when pursuing a selective enforcement argument. Noting that the burden for discovery is almost as high as the burden to prevail on the claim, the court held that the evidence the defendants did have (of 8 similar cases involving 32 defendants in the District of Maryland, all the defendants were African-American) didn't meet that threshold. Second, the court affirmed the district court's decision to deny the defendants' motion to dismiss for egregious Government conduct - the sting operation. The court rejected the arguments that the officers should have investigated the defendants' predisposition to committing such a crime, that the amount of cocaine that was allegedly involved as an "inducement so lucrative as to be unreasonable," and that stash house robbery stings were, per se, objectionable.

Monday, April 18, 2016

No Intent to Kill In Carjacking Case Without Weapon

US v. Bailey: Bailey was the driver of a car that got into a high-speed chase with police. When he wrecked the car, Bailey got out and fled on foot to a nearby parking lot. There, he approached a pickup truck with three people inside while he was "panicked and bloodied." He asked the driver for a ride and offered to pay, but the driver said no. A "flurry of activity" allowed Bailey to get into the back seat. The two passengers got out, but the driver stayed put, at which point Bailey told him to "drive, drive, drive," while placing something "hard and cold" against the driver's neck. The driver never saw a gun and didn't know what Bailey pressed against his neck but was certain Bailey "was about to kill [him]." He jumped from the truck. Bailey got behind the wheel and sped off, eventually to be captured. Bailey was charged with carjacking under 18 USC 2119, convicted by a jury, and sentenced to 105 months in prison.

On appeal the Fourth Circuit unanimously reversed Bailey's conviction. The court concluded that there was insufficient evidence to sustain a conviction for carjacking. Specifically, section 2119 requires an "intent to cause death or serious bodily injury" to sustain a conviction for carjacking. The court rejected the Government's argument that the totality of the evidence - Bailey's reckless driving, his appearance when he approached the truck, and the "hard and cold" object - showed such intent. Even though Bailey conceded that he intended to scare the driver, that isn't enough to meet the 2119 threshold, particularly when no witness saw him with a weapon. Noting that 2119 requires a showing of a certain intent "at the precise moment" Bailey demanded or took control of the truck, the court concluded that the evidence did not show such an intent at that time.

Congrats to the Defender office in the Middle District of North Carolina on the win!

Friday, April 01, 2016

Juvenile prosecutions for murder in aid of racketeering post-Miller unconstitutional

US v. Under Seal:  In this interlocutory appeal, the Fourth Circuit considered whether the government could legally prosecute a juvenile for murder in aid of racketeering, involving events that occurred after the Supreme Court made unconstitutional the only two authorized penalties for that offense, i.e., death or life without parole, for juvenile offenders.  The Fourth Circuit held that such a prosecution cannot constitutionally proceed.

At the district court, the government alleged that the defendant here, when he was a few months shy of turning 18, participated in a gang-related murder.  The government moved to prosecute this juvenile for murder in aid of racketeering pursuant to a delinquency information.  The defendant opposed the government’s motion, based upon recent Supreme Court cases that have drastically altered the legal landscape for juveniles charged with crimes that were penalized by death or mandatory life imprisonment, making such penalties illegal.  Congress, since the advent of these cases, especially Miller v. Alabama, which constitutionally prohibited a mandatory life sentence on a juvenile, has yet to legislatively act in response.  The government appealed here, with proposals for severing or excising the unconstitutional portions of the statute at issue, and leaving the constitutional portions of the statute intact.  

The Fourth Circuit’s analysis here was a case of first impression, as no case had arisen yet where a criminal act charged against a juvenile is alleged to have been committed after Miller was decided.  It discussed how severance is constitutionally okay, if the severed statute can function independently following severance; if not, severance is not viable.  A criminal statute is not operative without articulating a punishment for the proscribed conduct, and the government’s proposed excision here would, in contravention of both due process and severance principles, combine the penalties for two separate, distinct criminal acts, in a manner that would be “nothing less than judicial legislation pure and simple.” Also, the Fourth Circuit notes that looking to legislative intent is pointless when there is no indication what the legislative intent would be under the circumstances, since Congress hasn’t said anything on the subject since Miller was issued (“in light of Roper, Miller, and Montgomery, juvenile sentencing is undergoing substantive changes”).

The Fourth Circuit notes that the government has other options available in its province to pursue against this defendant; however, it cannot prosecute constitutionally a juvenile defendant for murder in aid of racketeering.

Armed bank robbery a crime of violence

US v. McNeal:  In this appeal, two of three co-defendants raised several trial issues (the third co-defendant pleaded guilty), including the sufficiency of the evidence of their brandishing convictions, the adequacy of proof regarding a conspiracy conviction, the denial of a motion to suppress, and other evidentiary rulings.  The main focus of this appeal appears to be the Fourth Circuit’s determination that the federal offense of armed bank robbery is a “crime of violence” in the context of the brandishing offenses.  The Fourth Circuit rejected all of the defendants’ arguments, affirming the convictions here.

The defendants failed to contend that armed bank robbery was not a crime of violence at the district court, rendering their claim on this issue to plain error review.  The defendants faced a five-year mandatory minimum sentence for the carrying a firearm during or in relation to a crime of violence, consecutive to any sentence for the underlying offense.  Here, the brandishing of a firearm during a crime of violence would add two years to the mandatory minimum sentence the defendants faced.  The co-defendants argued that their convictions for brandishing a firearm must be vacated because the statutory language lacked as an element the use, attempted use, or threatened use of physical force.

The government argued that bank robbery, a lesser included offense of armed bank robbery, satisfied the force element because it includes the element that property must be taken “by force and violence, or by intimidation,” and the Fourth Circuit agreed with the government.  The Fourth Circuit cited to its own earlier case and case law from other circuits which held that other federal crimes with language similar to the instant statute have as an element the use, attempted use, or threatened use of physical force, and those are crimes of violence.  The Fourth Circuit reached the same conclusion here, and held that armed bank robbery is a crime of violence.

Adequacy of jury instructions on results from death language

US v. Alvarado:  Alvarado received a conviction for knowingly and intentionally distributing heroin to Eric Thomas in March 2011, which distribution resulted in Thomas’ death.  Alvarado received a mandatory minimum sentence of 20 years.  On appeal, Alvarado contended that the district court  erred in failing to clarify for the jury that the “results-in-death” statutory language meant that the jury could not convict Alvarado of the charged offense if heroin was only a contributing cause of death.  Alvarado also argued that the district court failed to instruct the jury that Alvarado must have “reasonably foreseen” that Thomas’ death could result from the distribution; and, that admitting hearsay testimony violated the rule against hearsay and Alvarado’s rights under the Sixth Amendment’s Confrontation Clause.

At trial, the jury asked the district court twice to clarify the meaning of the “death results from” element of the heroin distribution offense.  The district court declined to elaborate further.  The main question presented in the appeal is whether the district court should have explained further the statutory phrasing “results from.” Alvarado argued that the district court’s decision not to elaborate further (a decision which the defendant concurred at trial, subjecting this claim on appeal to plain error review) allowed the jury to convict Alvarado even if heroin was only a contributing cause of Thomas’ death, a more lenient standard that “but-for” causation, which standard the Supreme Court set out in Burrage.  As the dissenting opinion notes, the jury here unmistakably expressed its confusion as to the causation requirement, despite the district court’s tracking of the statutory language in its instructions.

The Fourth Circuit panel majority concluded, however, that because there was no evidence in the record that Thomas could have died without the heroin, that the jury’s verdict was consistent with the Supreme Court’s but-for causation requirement.