Federal Land Element of Arson Statute Is Only Jurisdictional, but Mistake of Fact May Apply

US v. Evans: Evans set a fire that eventually burnt 70 acres of a national forest in North Carolina. He was charged with arson “on land owned by the United States.” Prior to trial, the Government moved in limine to exclude any testimony or evidence that Evans knew whether or not he was on federal land, arguing that the location element was merely jurisdiction. Evans argued that knowledge of federal ownership of the land was an element that included a scienter requirement. The district court sided with the Government, preventing Evans from testifying at trial that he thought the land where he started the fire belonged to his family (but abutted the national forest). Evans was convicted and sentenced to time served.

On appeal, the Fourth Circuit reversed Evans’ conviction. On the issue of the nature of the “on land owned by the United States” element, the court held that the district court had been correct – it was a jurisdictional element only and didn’t require proof of the defendant’s knowledge of the status of the land.  However, the court went on to conclude that a mistake of fact defense was available to Evans because the statute “requires that the defendant set the fire willfully – that is, with a bad purpose or with knowledge that his conduct is unlawful.” What makes the conduct unlawful is whether he willfully burned “the property of another – not whether the government owns the burned property.” Thus, a “defendant may attempt to negate the willfulness element by showing that he mistakenly believed he was not on federal land and had authorization to set the fire.” Because the district court prevented Evans from presenting such testimony, the court reversed his conviction.

Potential Police Promise Not to Arrest Defendant Can Be Enforced

US v. Bailey: A police officer, Page, stopped someone as they drove away from Bailey’s home, recovering 0.1 gram of crack cocaine. Page returned to Bailey’s home and talked to him. During that conversation, Page (allegedly) made representations to Bailey about helping him find work and that if Bailey handed over any additional drugs “everything is still squared away” between them. Bailey produced a bag with 0.7 gram of crack in it, which Bailey seized. Afterwards, Bailey helped Page locate another person with an outstanding warrant, but did not otherwise assist police in any investigations. Eventually, Bailey got two arrests warrants, one for distribution of the 0.1 gram of crack and one for possession with intent to distribute the 0.7 gram of crack (more drugs were found during the execution of the arrest).

Bailey filed a motion to suppress the 0.7 gram of crack, arguing that Page had wrongfully entered his home that night. At the end of the suppression hearing, the district court raised concerns about Page’s statement (in the court’s words) that Bailey could “put the drugs here and we’re square,” interpreting that as meaning “I’m not going to do anything. Give it here and you get immunity, zero for it.” In supplemental briefing, Bailey argued Page breached his promise by arresting him. The Government countered that it was Bailey who breached a promise, by not providing substantial assistance to Page with regard to other drug dealers. In addition, it argued that even Page had breached a promise it led only to suppression of the 0.7 gram of crack, not the 0.1 gram and the charge based on that. The district court sidestepped the issue of whether a promise was made and breached, but agreed that the suppression of 0.7 gram of crack didn’t impact the other charge and denied the motion to suppress.

On appeal, the Fourth Circuit vacated the district court’s decision and remanded for further proceedings. The court’s primary analysis involved whether a promise that Page is alleged to have made can be enforced by the defendant. The court concluded it could, analogizing it to non-prosecution agreements negotiated by prosecutors. The court rejected the Government’s argument that Page didn’t have the authority to make such promises, noting that his promise was not to arrest Bailey, which was within his authority as a police officer (as opposed to promising not to charge him). Because the district court had not reached a conclusion on whether a promise had been made (or breached), the case was remanded for additional proceedings.

Rule of Completeness Doesn’t Allow for Admission of Exculpatory Portion of Phone Call

US v. Davis: Davis was the driver, and lone occupant, of a car that was subject to a traffic stop. After a short car chase, Davis tried to flee further on foot. Once apprehended, officers found 25 pills (of a couple of different varieties) in Davis’ pocket along with cash. From the car they recovered a pistol “lodged between the front passenger seat and the center console.” While in custody awaiting trial, Davis had a phone call with his girlfriend in which he first said that “none of that ain’t mine. If it was mine I would claim it,” then two minutes later said, “I ain’t want to talk about how the gun got in the car.” At trial the Government used the second statement against Davis, who was prevented from presenting the first statement to the jury as well. The district court also denied Davis’ request to instruct the jury on simple possession of drugs as an alternative to possession with intent. Davis was convicted on drug and firearm charges, then sentenced as a career offender.

On appeal, the Fourth Circuit affirmed Davis’ conviction and sentence. Davis’ main argument as to his drug conviction was that the district court should have allowed the jury to hear the “none of that ain’t mine” statement under the Rule of Completeness. Bypassing whether the statement was inadmissible hearsay, the court applied prior precedent that the Rule does not require (or allow) the admission of self-serving statements from the party against whom the other portion of the statement is being admitted. Davis also argued that there was insufficient evidence to support the firearm conviction, which the court rejected because “substantial evidence demonstrates that Davis was in constructed possession of the stolen and loaded” firearm found in his car. Finally, the court rejected Davis’ argument that under Campbell his prior South Carolina drug distribution convictions were not “controlled substance offenses” so as to support his career offender designation. The court, again, limited Campbell to the peculiarities of the West Virginia statute at issue in that case.

No Error Where Court Refers to Defendant By Name During In-Court Witness ID

US v. Ross: Police got a report that Ross might be sexually abusing children and began investigating. The investigation uncovered images of child pornography and evidence that Ross had livestreamed video of a child in the Philippines being sexually abused at his command by an adult. He was eventually charged with multiple counts of production of child pornography as well as possession. At Ross’ trial, a woman named Peters testified about her relationship with Ross and what she witnessed during it. Early in her testimony she had trouble identifying Ross as the defendant. As a result, the Government asked the court to direct “the defendant to remove his mask and we’ll see if Ms. Peters can recognize him if he’s not wearing a mask,” to which the district court stated, “Mr. Ross, if you would please take down your mask.” Peters made a positive identification. Ross was convicted on all counts and sentenced to 660 months in prison, a variance from the 2040 months recommended by the Guidelines, but still a de facto life sentence.

On appeal, the Fourth Circuit affirmed Ross’ conviction and sentence. As to Ross’ conviction, the court initially held that any error in the in-court identification process on the district court’s part would not be a structural error, entitling Ross to relief even though he had not objected during trial. Having decided that, however, the court then concluded that there was no error at all by the district court, much less one that was plain. Assuming that the district court’s use of Ross’ name was unnecessarily suggestive, Ross could not show that the identification was unreliable under the totality of the circumstances. That was due to several factors, including that Peters had a “month-long intimate relationship with Ross” that “gave her numerous opportunities to view Ross around the time of his offenses.” As to Ross’ sentence, the court held that it did not violate the Eighth Amendment.