Wednesday, May 16, 2018

Ocean polluters' convictions upheld

US v. Oceanic:  Two closely related corporate entities, Oceanic and Oceanfleet, had ships wherein the crews ignored the waste disposal procedures required by statute and international convention, and illegally dumped bilge water consisting of large quantities of oily pollutants into the ocean.  Such waste must normally be incinerate onboard the vessel, or offloaded at port to a licensed hauler and disposal facility.  The foregoing proper disposal must be recorded in a ship’s Oil Record Book.  In this case, the appellants’ Oil Record Books were allegedly falsified.  Both companies were charged in nine counts of obstruction, falsification of the Oil Record Book, witness tampering, and lying to the Coast Guard.  The parties went to trial in South Carolina in September 2016.  The two corporations, as well as two chief crew members, were found guilty on all counts.   On appeal, Oceanic and Oceanfleet argued that the evidence was insufficient to prove corporate criminal liability.  Oceanic was ordered to pay $675k in fines plus $225k in restitution to the Gray’s Reef National Marine Sanctuary Foundation; Oceanfleet was ordered to pay $1.35 million in fines plus $450k restitution to the same foundation.  The companies’ ships were also prohibited from using US ports. 

According to the Fourth Circuit, the evidence presented at trial proved that bilge water and sludge was discharged consistently during the appellants’ transoceanic journeys.  Also, the Oil Record Books were falsified, and attempts to conceal the illegal activities were made.  Two Coast Guard investigators testified that they had been tipped off by a spouse of one ship’s third engineer to the illegality.  That engineer agreed to fully cooperate with investigators, which prompted a criminal investigation. 

Under a theory of vicarious liability, the Fourth Circuit held that there was sufficient evidence for the guilty verdicts.  The corporations were criminal liable for the illegal dumping activity taken by the chief and first engineers aboard their ships.  The Fourth Circuit affirmed the convictions and sentences. 

Border search exception clarifications

US v. Kolsuz:  In this appeal, the Fourth Circuit analyzes how privacy rights apply to searches of cell phones seized at an international border.  Kolsuz was stopped by federal agents as he attempted to board a plane at Dulles International, bound for Turkey.  Firearm parts were discovered in his bags.  After arresting Kolsuz, agents seized his smartphone, and took 90 days to conduct forensic analysis on it and generated a report of some 900 pages.  Kolsuz filed a motion to suppress, arguing that the seizure of his phone was a non-routine border search not justified by reasonable suspicion, which motion was denied.  Kolsuz was eventually convicted of attempting to smuggle firearms out of the country and also a conspiracy count.  He appealed, challenging the denial of his motion to suppress, arguing that even under the border exception, a forensic search of a smartphone requires more than reasonable suspicion, and may only be conducted with a warrant based upon probable cause. 

The Fourth Circuit held that the forensic analysis of Kolsuz’s phone was properly categorized as a border search, and it was non-routine, so pursuant to Supreme Court precedent, it required some measure of individualized suspicion.  However, because the agents involved believed no warrant was required, the Fourth Circuit found suppression of the forensic analysis report on the phone was not appropriate, and affirmed the district court. 

In its analysis, the Fourth Circuit discusses how border searches are an exception to the normal rule requiring warrants; at borders, agents can conduct “routine” searches and seizures of people and property with no warrant or individualized suspicion.  However, now the Fourth Circuit requires suspicion for forensic, advanced, searches of cell phones seized at the border.  Basic, or manual, searches can still be conducted without suspicion - these searches do not involve the use of external equipment or software. 

Further, the Fourth Circuit sets out the following test for future cases, requiring the government to identify its border search-related interest justifying that particular search in order to rely on the border search exception.

Wednesday, April 11, 2018

Bank fraud convictions upheld

US v. Savage:  A conspiracy of folks recruited a Capital One Bank teller to provide them with customer account information, and developed a scheme to defraud the bank.  The teller, Ms. Conteh, went to trial and was later convicted; she was sentenced to 64 months of imprisonment and ordered to pay $36k in restitution.  She decided to enter a proffer agreement with the government, to provide information about the conspiracy on condition that the information would not then be used against her.  Conteh provided investigators with evidence about Savage, which lead to the instant case against him.

Savage went to trial on charges of bank fraud and aggravated identity theft and a jury convicted him.  He appealed on several grounds: the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of bank fraud conspiracy; the district court erred in failing to conduct an in camera review to determine whether some material required disclosure pursuant to the Jencks Act or Brady; the district court erred by not providing his requested jury instruction on accomplice testimony and by giving the jury a copy of an instruction on aiding and abetting liability; and lastly, the district court erred in its application of the guidelines on several grounds.  The Fourth Circuit affirmed the convictions and sentence. 

The Fourth Circuit considered each of Savage’s issues, starting with his challenge to the sufficiency of the evidence of a bank fraud conspiracy.  Largely reliant on Conteh’s testimony, the government  showed Savage’s involvement in the conspiracy and the steps he took to carry out the fraud.  The Fourth Circuit found that Conteh’s testimony alone was sufficient to support Savage’s conviction for bank fraud. 

Savage argued that material gathered by the government in its meetings with Conteh was subject to disclosure under either the Jencks Act or Brady.  The material involved was the prosecutor’s personal notes.  The Fourth Circuit discussed how before a court must conduct an in camera review to determine whether a Brady violation has occurred, the defendant must make a “plausible showing” that the government’s information was material and favorable to the defense.  Further, a Jencks Act review is only required if the defendant provides a proper foundation.  Here, the Fourth Circuit held that Savage did not even attempt to argue a Jencks Act statement existed, or that the defense was entitled to review the prosecutor’s notes; he merely asserted that inconsistent statements might exist, which the Fourth Circuit found insufficient to require the court to conduct an in camera review.

Regarding the jury instructions, the Fourth Circuit found that the district court “substantially covered” Savage’s requested instruction on accomplice testimony because it warned the jury that it had to scrutinize all witness testimony and to take prior inconsistent statements into account.  It found no abuse of discretion.  Also, during deliberations, the jury requested a copy of all the jury instructions, which request the district court rejected, because the full copy of instructions contained the “judge’s interlineations.”  However, the court did provide the jury with a copy of the aiding and abetting liability instruction without any interlineations.  Savage argued that this caused him prejudice by emphasizing the based of conviction without taking measures to dilute any undue suggestiveness.  The Fourth Circuit found no abuse of discretion, finding that the court has discretion whether and how to respond to jury questions.

At sentencing, Savage received several enhancements: for obstruction of justice; for amount of loss; for the use of sophisticated means; and for his role as manager or supervisor.    Savage reportedly  gave perjured statements during his interviews with pretrial services (e.g. failing to give his address in Ohio where he allegedly resides, while providing that he lives in Maryland; concealing international travel to Sierra Leone where members of his family reside).  The Fourth Circuit found no error the application of this enhancement, as only one penjurious statement is necessary to apply  this one.  One the amount of loss, the district court applied the same loss calculation for Savage as it used in Conteh’s sentencing, and the Fourth Circuit found that the sentencing court need only make a “reasonable estimate of loss, given the available information” and found no error.  The Fourth Circuit found that the use of sophisticated means enhancement was not in error by Savage taking several steps to conceal his own identity and distance himself from the scheme, and having the means to store money in Africa and disguising the source of his money.  Finally, the enhancement for managerial role was not in error because of Conteh’s testimony about how he managed her activities, and it was uncontested that the scheme involved five or more participants.

Not a COV: federal crime of conspiracy to commit murder in aid of racketeering

US v. McCollum:  McCollum pleaded guilty to possession of a firearm by a convicted felon.  The PSR indicated McCollum had two prior convictions that qualified as crimes of violence: one for aggravated manslaughter in NJ, and one for conspiracy to commit murder in aid of racketeering.  McCollum objected, and the district court sustained his objection to the NJ conviction, but not the conspiracy conviction.  That conviction elevated his base offense level from 14 to 20.  McCollum raised the issue of whether this prior conviction was a crime of violence. 

The Fourth Circuit held, under constraint, that conspiracy to commit murder in aid of racketeering is not a crime of violence since it does not require an overt act, while conspiracy under the Guidelines does. It found conspiracy to commit murder in aid of racketeering is broader than generic conspiracy. 

The Fourth Circuit began its analysis with a determination that the categorical approach applies to federal crimes, like conspiracy to commit murder in aid of racketeering, as the Sentencing Commission publications and the guidelines text strongly suggest that it does, and there is no textual or analytical basis in precedent to distinguishing the treatment of state and federal statutes to determine whether a predicate offense is a crime of violence. 

The Fourth Circuit then proceeded to conduct the 4-part categorical approach.  First, it determined the relevant offense of comparison.  Second, it determined the elements of generic conspiracy, and found that generic conspiracy requires an overt act (more than 32 states require an overt act, which it found sufficient to establish the contemporary definition as such).  Third, it compared the elements of the crime of conviction to those of the enumerated offense.  Last, it considered whether the scope of the conduct criminalized by statute is categorically overbroad when compared to the generic definition of the Guideline crime. 

The government did not dispute that McCollum’s conspiracy conviction did not require an overt act.  As such, it criminalizes a broader range of conduct than that covered by generic conspiracy, and it is not categorically a crime of violence. 

Evidence from Facebook in felon in possession trial

US v. Recio:  Two police officers on patrol encountered Recio, whom they knew had outstanding warrants, with a gun visible in his waistband.  Recio fled to police, and tried to throw away the gun, which police recovered.  Recio got away but a month later was arrested.  Before trial, the government moved in limine to introduce a Facebook post, purportedly of Recio’s, with a rap lyric about carrying a firearm.  At a pre-trial hearing, the government sought to admit the Facebook post under two theories: as a direct admission; and as an adoptive admission.  The district court granted the government’s motion.  A jury found Recio guilty, and on appeal, he challenged the admission of the Facebook post, and the refusal to grant a mistrial but instead give an Allen charge. 

Recio challenged the admission of the rap lyric he purportedly posted to his Facebook account, first contending that it was not his statement, but inadmissible hearsay.  The government maintained the Facebook post was not hearsay.  The government pointed to “foundational facts,” such as Recio’s failure to use quotation marks, or attribute the lyric to an artist, or provide any other signal to his Facebook followers that someone else authored the statement.  In addition, he got the lyric slightly wrong.  Based upon these facts, according to the Fourth Circuit, a jury could infer that Recio meant to adopt the lyric as his own words. 

Next, Recio argued that the Facebook post was not relevant.  In its analysis, however, the Fourth Circuit discussed how lyrics posted by a defendant can be relevant when they match details of an alleged crime, making it more probable that a defendant, in fact, had engaged in that conduct.  Further, the Fourth Circuit stated, lyrics can show a defendant’s knowledge or motive.  The Fourth Circuit found the Facebook post relevant here, and that the risk of unfair prejudice did not substantially outweigh the probative value of the evidence.

As to Recio’s argument that the government failed to properly authenticate the Facebook post because it failed to sufficient establish that Recio authored the post, the Fourth Circuit stated that what mattered what not whether Recio did not author the post, but whether the jury could reasonably find that he did, and in light of the government’s evidence of certification by a Facebook records custodian, the Fourth Circuit found the government properly authenticated the post. 

Finally, Recio argued that the Facebook post was inadmissible character evidence.  The Fourth Circuit found that the Facebook post was not evidence of “other acts” from which the jury could make negative inferences about Recio’s character, it was direct evidence of the charged crime itself. 

Scope of traffic stop unlawfully extended

US v. Bowman:  Bowman was convicted of possession with intent to distribute methamphetamine, after police executed a dog sniff on Bowman’s vehicle after completing a traffic stop (Bowman had been stopped for speeding and weaving).  He moved to suppress the evidence obtained from his vehicle, and he was denied at the district court.  The Fourth Circuit held that the police officer had no consent to extend the traffic stop, nor did the police have a reasonable, articulable suspicion of ongoing criminal activity to justify extending the stop, and vacated the conviction.

In its analysis of the case, the Fourth Circuit described in detail the facts of the traffic stop, and how the officer involved issued Bowman a warning for speeding and unsafe movement of the vehicle, and then returned his license and registration, completing the traffic stop.  Unfortunately, the officer then kept Bowman in custody in his police cruiser and continued asking Bowman questions about his activities that evening.  Further, the officer forced Bowman to remain in the police cruiser while the officer proceeded to question Bowman’s passenger.  The Fourth Circuit determined that the officer unlawfully prolonged the completed traffic stop without consent or reasonable suspicion; the officer detained Bowman without his consent in order to interrogate Bowman’s passenger and search the vehicle.

The main question the Fourth Circuit sought to answer in this appeal was whether the officer’s actions during the stop were reasonable under the circumstances, and whether the officer violated Bowman’s Fourth Amendment rights when the otherwise-completed stop was extended.  It found that Bowman did not consent to extending the stop, so the panel moved on to the next question, whether the prolonged seizure was justified by reasonable suspicion.  The Fourth Circuit ticked methodically through each of the factors the police officer mentioned as his basis for suspecting criminal activity and justified the questioning of Bowman’s passenger (i.e., nervousness, the presence of clothing, food, and an energy drink in the vehicle, Bowman’s uncertainty about his passenger’s girlfriend’s address where they had recently been, and Bowman’s statements about purchasing vehicles.  The Fourth Circuit determined that these factors were individually totally innocuous, and even in combination, did not become suspicious.  Thus, it concluded that Bowman’s motion to suppress should have been granted.

Thursday, March 01, 2018

SC Involuntary Manslaughter Not Violent Felony; Irby and Reid In Doubt?

US v. Middleton: Middleton was convicted of being a felon in possession of a firearm. The district court determined he qualified for sentencing under the Armed Career Criminal Act based on (among other things) a 1980 conviction in South Carolina for involuntary manslaughter. Middleton was sentenced to 180 months in prison. In 2016, in the wake of the Supreme Court's decision in Johnson, Middleton filed a second 2255 motion to vacate his sentence, arguing that he no longer qualified for ACCA. The district court denied the motion, but issued a certificate of appealability on the involuntary manslaughter issue.

On appeal, the Fourth Circuit reversed, holding that involuntary manslaughter is not a violent felony for ACCA purposes. Although the ultimate result was unanimous, the court divided over the best way to reach that result. Chief Judge Gregory, writing for himself and Judge Harris, focused on whether the offense "sweeps more broadly than the physical force required under the ACCA's force clause" and agreed with Middleton that it did. The court in particular looked to a South Carolina Court of Appeals opinion that affirmed an involuntary manslaughter conviction in a case where an adult sold a minor alcohol, after which the minor drove drunk and was killed in an accident. Thus, as Chief Judge Gregory put it, under the categorical approach "the ultimate issue in this case is whether selling alcohol to a minor involves the requisite use of violent force." The Government argued, as they have frequently, that the Supreme Court's decision in Castleman settled this because it rejected the idea that one can be convicted of an offense resulting in death without using violent force. The court turned away that argument, concluding that the Government "ignores the distinction between de minimus force, as discussed in Castleman and violent force" and "erroneously conflates the use of violent force with the causation of injury." The court concluded that "Castleman's discussion of force does not control this case" because the force at issue there was different than the force required under ACCA. As to the concept that "causing injury categorically means violent force was used," the court concluded that the portion of its 2012 decision in Torres-Miguel holding that "a crime may result in death or serious injury without involving the use of physical force" had not been abrogated by Castleman. Subsequent decisions, such as Irby and Reid, did not change that. Those cases "cannot rely on Castleman - for a holding it did not make" to "surmount this Court's prior decision in Torres-Miguel." which remains binding. However, those cases do "confirm[] that a defendant may cause injury indirectly as well as directly for purposes of ACCA's force clause," but that has no impact on this case because the state court decision does not meet that standard.

Judge Floyd concurred in the result, but would have done so on the ground that involuntary manslaughter in South Carolina could not be a violent felony because ACCA "requires a higher degree of mens rea than recklessness" and "an individual can be convicted of involuntary manslaughter in South Carolina based on reckless conduct." However, Judge Floyd spent some time in his concurrence arguing that "[c]ontrary to the majority's attempt to limit Castleman to the MCDV force clause, this Court in Irby and Reid already extended Castleman's reasoning to other force clauses, including the ACCA force clause." Thus, Judge Floyd concluded, "the majority's analysis does not adequately address this Court's post-Castleman decisions." Based on those cases, he "question[s] the viability of distinguishing between use of force and causation of injury." Those cases also, Judge Floyd argues "raise questions as to whether" the distinction the majority draws between the use of force and causation of injury "remains viable."

Congrats to the Defender office in South Carolina on the win!

Thursday, February 22, 2018

Cop's Prior Uses of Force Properly Admitted Under 404(b) In Civil Rights Prosecution

US v. Cowden: Cowden was an officer with the Hancock County (WV) Sheriff's Office. One night in January, 2015 he was on duty when a driver, Hamrick, was brought in after being arrested for DUI.  At the scene of the arrest Hamrick "resisted and engaged in a physical altercation" with another officer, but by the time he arrived at the station he was "loud" and had a "drunken demeanor" but was no longer "physically resisting." Nonetheless, Cowden said Hamrick was "not going to act that way with us, this is our house, play by our rules" and another officer called his mood "unusually hostile." Cowden "pulled Hamrick toward the elevator and threw him against the wall" then "pulled Hamrick's head away from the wall and slammed his head and face back into the wall." Cowden again said that this was "our house" and that Hamrick would "play by our rules" in a "tone of voice and use of force that indicated he was losing control." Cowden also punched Hamrick in the back of the head and threw him into the elevator. Hamrick received injuries that needed medical treatment to the tune of $3044. Hamrick was charged with deprivation of rights under the color of law and making a false statement. He was convicted on the first charge, but acquitted on the second. He was sentenced to 18 months in prison and ordered to pay restitution to Hamrick to pay his medical bill.

On appeal the Fourth Circuit affirmed Cowden's conviction. Cowden's primary argument on appeal was that the district court should not have allowed the jury to hear 404(b) evidence about two prior incidents where he used excessive force. The court disagreed, holding that the incidents were relevant to "Cowden's use of force in circumstances when Cowden or others were not actually threatened, but Cowden perceived that an individual was not showing adequate respect to law enforcement officers." That was particularly true because Cowden testified at trial that he "had not intended to punish Hamrick." Finally, while the evidence was "unquestionably . . . prejudicial" it also "provided information about Cowden's actions when dealing with individuals he perceived as manifesting resistance to law enforcement authority." The court also rejected Cowden's arguments that the Government had failed to show that he acted "willfully" in dealing with Hamrick and that he should not have been ordered to pay restitution.

NC Voluntary Manslaughter Is ACCA Violent Felony

US v. Smith: Smith was convicted of being a felon in possession of a firearm and was sentenced under ACCA. The only issue on appeal was whether his prior conviction in North Carolina for voluntary manslaughter was a "violent felony." The offense in North Carolina involves "the unlawful killing of a human being without malice, express or implied, and without premeditation and consideration" and,  according to the state supreme court, "generally . . . occurs when one kills intentionally but does so in the head of passion." The court rejected Smith's argument that the offense could be committed negligently, noting that (quoting a North Carolina appellate court) that voluntary manslaughter is "essentially a first-degree murder, where the defendant's reason is temporarily suspended by legally adequate provocation." Based on this "it is certain that the intent required is sufficient to qualify it as a categorically violent predicate."

Evidence Sufficient to Sustain CP Convictions

US v. Miltier: Investigators downloaded child pornography from an IP address they traced back to Miltier. They later executed a search warrant at his home, seizing a laptop and thumb drive that both contained images of child pornography. The laptop's only logged in email address was Miltier and he admitted that he used it. Several searches on the computer related to his work, his car, and home repairs he was making. He was charged with seven counts of receipt of child pornography and one count of possession. He was convicted on all counts and sentenced to concurrent terms of 120 months in prison and a lifetime term of supervised release.

The Fourth Circuit affirmed Miltier's convictions and sentence. First, he argued that the evidence on all counts was insufficient to show that he knowingly received or possessed the images in question. The court disagreed, noting that the "ten files that form the basis for these charges were found on the [laptop], and significant evidence links the computer to Miltier." He admitted knowing that the laptop included a peer-to-peer file sharing software, which showed evidence of searches relating to terms associated with child pornography. Second, Miltier argued that there was insufficient evidence on two counts to show that the files involved were downloaded from the internet and "thus the government failed to demonstrate the required interstate nexus element." The court rejected that argument, noting that there was evidence that those files had been downloaded by the peer-to-peer program. Third, the court rejected Miltier's argument that the Government was required to prove that the child pornography files themselves, rather than the laptop, had travelled in interstate commerce, concluding that "we find no indication in the statute that Congress intended to limit" the statute in such a way. Finally, the court rejected his argument that instructing the jury in that manner was a constructive amendment of the indictment.

Monday, February 05, 2018

Fourth Circuit weighs in on "Playpen" cases

US v. McLamb:  In this appeal, the Fourth Circuit considered whether the defendant’s motion to suppress evidence was properly denied for an invalid warrant obtained by the FBI in its investigation of a child pornography website known as “Playpen,” a hidden services message board located on the “dark web.”   After seizing Playpen’s servers, the FBI sought a warrant to deploy the Network Investigative Technique (“NIT”) to locate Playpen’s users.  A federal magistrate judge issued the warrant, authorizing use of the NIT on Playpen visitors for 30 days.  The NIT identified thousands of computers across the world that accessed Playpen during this month-long period.  McLamb was one of those thousands.  He moved to suppress evidence on his computer as the fruit of an invalid warrant, challenging the warrant’s particularity and its execution, as well as the jurisdiction of the magistrate who authorized the search.  The district court denied McLamb’s motion, and the Fourth Circuit affirmed, finding that even if the warrant was unconstitutional, the district court properly denied the motion to suppress because the good faith exception from Leon applies. 
Three other circuits (Eighth, First, and Tenth) have analyzed the same NIT warrant at issue here, and each has concluded that even if the warrant violates the Fourth Amendment, the Leon good faith exception precludes the suppression of evidence.  The Fourth Circuit agreed.

Tardy motion to dismiss, in response to tardy pro se notice of appeal, granted

US v. Hyman:  In this appeal, the Fourth Circuit considered whether to grant the government’s motion to dismiss an appeal due to the appellant’s failure to meet the requirement for timely filing.  Hyman, the defendant, had been convicted of one count of crack distribution, and received a sentence of fifty-seven months’ imprisonment on July 27, 2016.  On November 22, 2016, Hyman filed a notice of appeal challenging his sentence.  The Fourth Circuit appointed counsel to Hyman, and he filed his opening brief and joint appendix in February 2017.  The government subsequently filed its motion to dismiss and suspend briefing.  Hyman responded that the Court should allow his appeal because the government unnecessarily delayed filing its motion to dismiss until after Hyman filed his opening brief.  The Fourth Circuit scheduled the motion to dismiss for oral argument.  After oral argument, the Fourth Circuit granted the government’s motion to dismiss.

Because, the Fourth Circuit states, we are required to strictly apply claim-processing rules if they are raised timely, and because the local rules permit a party to raise timeliness at any time, it granted the government’s motion.  To hold otherwise, it argued, would be to sanction the government for adhering to the Fourth Circuit’s rule.  It dismissed Hyman’s appeal.

WV unlawful wounding COV

US v. Covington:  In this appeal, the Fourth Circuit considered whether the West Virginia crime of unlawful wounding was a crime of violence under the guidelines.  As the government did not argue in this case that the predicate offense was an enumerated offense, the Fourth Circuit considered  whether it qualifies as a crime of violence under the force clause only. 

Using the categorical approach, the Fourth Circuit found that the WV statute in question is divisible, in that it listed two separate crimes with different elements and punishments, i.e. unlawful wounding and malicious wounding.  There was no question which part of the statute was at issue here, so the Court moved on to compare the offense of unlawful wounding with the requirements of the force clause.

Considering the elements of the force clause, the Fourth Circuit found that the elements of WV unlawful wounding categorically qualified as a crime of violence under the force clause.  Further, Covington did not identify for the Court a WV case that interprets the offense of unlawful wounding to apply to an individual who uses force that is not “capable of causing physical pain or injury to another person,” whereas the government provided “scores” of cases that seemed to confirm that unlawful wounding in WV only criminalizes the degree of force required under Johnson.