US v. Kokinda: Due to a pair of state convictions in the 2000s, Kokinda was required to register as a sex offender. He effectively disappeared, and ceased registering. He resurfaced in Elkins, West Virginia, in September 2019, where he was charged with sexual abuse in the third degree after grabbing the buttocks of a girl while pushing her on a swing in a public park. In addition, images of child pornography were found on his phone. Kokinda was charged with failing to register under SORNA. He went to trial, where the Government produced evidence that Kokinda had been in the Elkins area for about a month, staying at various campsites. Kokinda’s defense was that while he had offenses that would require him to register with SORNA, he never “resided” in West Virginia and triggered the registration requirement. He was convicted and sentenced to 63 months in prison, the top of an advisory Guideline range enhanced for committing a sex offense against a minor while failing to register.
On appeal, the Fourth Circuit affirmed Kokinda’s conviction and sentence. As to his conviction, Kokinda’s main argument was that the district court had erred in instructing the jury on the definition of “resides” and “habitually lives,” particularly in taking the definition of the latter term from the SORNA guidelines promulgated by the Attorney General. The court rejected that argument, holding that the guidelines are part of a civil regulatory scheme and entitled to Chevron deference in defining the ambiguous term “habitually lives.” The court also held that there was no conflict with the Supreme Court’s decision in Nichols. As to Kokinda’s sentence, the court found no clear error in the district court’s determination that he had committed a sex offense against a minor, either by grabbing her buttocks or by possessing child pornography.Friday, March 01, 2024
Judges Express Concern Over Johnson VICAR Analysis
US v. Kinard: Last year, in United States v. Thomas, the Fourth Circuit held that assault with a deadly weapon under the violent crimes in aid of racketeering statute (VICAR) was a crime of violence. In doing so, the court held that because the federal VICAR offense itself had, as an element, a requirement that the offense was done for purposes related to the racketeering enterprise that it required a “deliberate choice” that satisfied the mens rea requirement for the crime of violence analysis, even when the underlying state offense could be committed recklessly.
Kinard raised the same issue with a related state offense and the Fourth Circuit affirmed his conviction, based on Thomas.
Judge Keenan, joined by Judge Heytens, concurred in the result, agreeing that the panel was bound by Thomas, “which issued after briefing and argument in this case.” Regardless, she had “concerns with the resulting analysis,” arguing that looking to the mens rea of the racketeering element of the offense is incorrect and out of step with the approaches of other circuits. As she explained, “the mens rea required under the force clause thus differs from the mens rea required under the purpose element in that the latter does not require a showing that the defendant knowingly directed force at a target,” as required by the Supreme Court’s decision in Borden.
Court Approves Broad Search Warrants for Facebook Data
US v. Zelaya-Veliz: Zelaya-Veliz, along with five codefendants, were involved in a conspiracy to traffic minor girls for prostitution in and around Virginia and Maryland. As part of the investigation into their operation (after one of the girls managed to escape), authorities sought a series of search warrants – four in total – for Facebook data related to Zelaya-Veliz and his codefendants, other coconspirators, and the trafficked victims. Two of the four warrants had no temporal limitation to the data that Facebook was required to disclose and all allowed authorities to search a wide swath of information, although they allowed only for a seizure of information related to specific federal crimes under investigation. Motions to suppress the information from those warrants were denied. Zelaya-Veliz and his codefendants were convicted of conspiracy and substantive sex trafficking counts at trial and sentenced to between 180 and 300 months in prison.
On appeal, the Fourth Circuit affirmed the defendants’ convictions. Their primary argument was that the district court erred by denying their motions to suppress the evidence from the Facebook warrants (which the court notes was substantial and critical to the Government’s case at trial). Initially, the court concluded that the defendants could challenge all the warrants other than the first, noting that none of their data or accounts were involved with the first warrant. In doing so, the court made clear that Facebook (or other social media) account holders have Fourth Amendment standing to challenge searches of those accounts. Turning to the merits of the defendants’ challenges, the court first held that there was sufficient probable cause for issuance of the warrants. Next, the court held that they were sufficiently limited both temporally (for two of the remaining warrants) and in terms of their scope (for all of them). As to the latter, the court held that the two-step process employe here – where investigators were allowed to search essentially all of a Facebook account but only seize that evidence related to specific federal crimes – resulted in a sufficiently particularized warrant. As to the former, for the warrant that had no temporal limitations at all, the court held that was problematic, but that ultimately the search was saved by good faith.
Defendant Cannot Take Interlocutory Appeal from Denial of Motion for Resentencing Without His Presence
US v. Castellon: In 2022, the Fourth Circuit vacated Castellon’s conviction under 18 U.S.C. § 924(c) and remanded for resentencing. On remand the parties agreed to the newly calculated Guideline range, that 210 months was the appropriate sentence, and that a resentencing hearing was not required. The district court “rejected the parties’ claim that Castellon could be resentenced in absentia, concluding that the only situation covered by the “voluntarily absent” language in Rule 43(c)(1)(B) of the Rules of Criminal Procedure was when the defendant fled proceedings and refused to submit themselves to the court. While noting that Castellon had “asserted valid reasons for sentencing in absentia, he hadn’t provided the court authority to do so.”
Castellon sought an interlocutory appeal to the Fourth Circuit to resolve the issue. While recognizing that the court’s “precedent appears to support their position” that a defendant can waive their presence at sentencing, the court held that it lacked jurisdiction over an interlocutory appeal on the matter. The court held that it did not fall under the collateral order doctrine because Castellon failed to identify “an important right implicated by the orders denying him the opportunity to be resentenced in absentia.” Castellon’s interest did not rise to the level of other issues that defendants can raise in an interlocutory appeal (such as double jeopardy claims), with the court concluding that “the district court’s error in interpreting a rule governing sentencing procedure isn’t compelling enough to warrant interlocutory appeal.”North Carolina Assault by Strangulation Remains Crime of Violence
US v. Robinson: In 2022, in Rice, the Fourth Circuit held that a conviction in North Carolina for assault by strangulation is a “crime of violence” under the Sentencing Guidelines. As I wrote at the time:
Rice argued that the assault conviction was not a crime of violence because it the only intent required to sustain a conviction was culpable negligence. Had his prior offense been “run of the mill assault . . . he would have a point.” The complicating factor here was strangulation, which by its nature involves conduct that “could not be accomplished absent an intentional, knowing or purposeful state of mind.” This was true “even if not expressly stated” in North Carolina law. In addition, no “ordinary person would say that a person could strangle another without a purposeful, knowing or intentional state of mind.” Nor could Rice point to any cases sustaining convictions for strangulation that did not involve purposeful conduct.
Robinson, like Rice, was convicted of being a felon in possession of a firearm and had his base offense level increased because of a prior conviction for assault by strangulation. He argued that after the Supreme Court’s decision in US v. Taylor (decided shortly after Rice), the Fourth Circuit’s precedent was no longer valid and his prior conviction was not a crime of violence. Specifically, Robinson argued that Rice relied on “a survey of the conduct in published state cases” and Rice’s “failure to identify a single case where the conduct described was negligent or reckless,” a methodology that “cannot be squared” with Taylor.
In affirming the outcome of Rice, the Fourth Circuit did not fundamentally disagree with Robinson on the holding of Taylor, but ultimately concluded that Rice would have reached the same conclusion even without considering such survey data. The court noted that in Rice it had “found that North Carolina law suggests that assault by strangulation requires intentional conduct” and that it “independently interpreted the text of the North Carolina statute . . . and concluded that a person cannot commit the act of strangling without knowing or intending it.” The survey analysis “in Rice was only added to the opinion to provide additional confirmation for our holding.”
No Fourth Amendment Violation In Traffic Stop, Seizure of Occupants and Search
US v. Perry: Perry was in a SUV driven by his girlfriend, McCarr, which police observed in “an area well-known for gang activity and violent crimes.” The SUV lacked the necessary front license plate, leading officers to follow. The SUV “tried to flee” from the officers, running two stop signs. They found the SUV in a nearby parking lot, where they saw McCarr get out of the driver’s side door and Perry briefly “lean towards the ground, the floorboard” from the passenger’s seat “before jumping over the center console” to exit the SUV.
Perry and McCarr were both handcuffed. A patdown of Perry uncovered a blue bandana which, along with intelligence that Perry had gang connections, made officers conclude he was affiliated with the Crips. McCarr gave permission to search the car, which uncovered a revolver “protruding from a purse on the passenger’s-side floorboard.” McCarr said the gun belonged to Perry. A second gun was found on the passenger’s-side floorboard, which turned out to be stolen (and also belonged to Perry, according to McCarr). Perry was charged with being a felon in possession of a firearm, multiple counts of witness tampering (based on attempts to keep McCarr from testifying against him), and possession of marijuana. He was convicted at trial on all counts after unsuccessfully moving to suppress the evidence found during the traffic stop. He was sentenced to 210 months in prison.
On appeal, the Fourth Circuit affirmed Perry’s convictions and sentence. Perry’s primary argument was that “he was unconstitutionally seized for much of the” traffic stop. The court disagreed. The SUV was seized when police found it in the parking lot and activated their blue lights, at which point they had “both probable cause of observed traffic violations and reasonable suspicion of other criminal activity.” The court rejected Perry’s argument that the investigation during the stop went beyond the basis for it (running the stop signs), concluding that “this ignores important evidence that drove the mission of the seizure,” which included investigation of other criminal activity. The court also found no violation in either the length of the stop or Perry’s detention during it, based on the observations of the officers.
Ruan Requires Vacation of Doctor’s Drug Convictions
US v. Smithers: Smithers was a rural Virginia doctor who was eventually charged (after a couple of superseding indictments) with hundreds of counts of unlawful dispensing and distribution of controlled substances. Witnesses at trial testified that many of Smithers’ patients did not pay for their own prescriptions, some failed drug tests and other controls meant to root out abuse, and Smithers sent some prescriptions through the mail without seeing patients in the office. An expert witness testified that Smithers’ practices were outside the scope of professional practice and not for legitimate medical purposes. Smithers was convicted on all counts and sentenced to 480 months in prison.
In his appeal, Smithers challenged (among other things) the jury instructions given during his trial. His case was initially put in abeyance pending the outcome of the Supreme Court’s decision in Ruan, which addressed the mens rea which the Government was required to prove in order secure a conviction in cases like this one. In light of Ruan, and after supplemental briefing, the Fourth Circuit vacated Smithers’ convictions.
First, the court concluded that Smithers had properly raised the issue below and, even if he had not, he was not precluded from presenting it in supplemental briefing as “it would have been futile for him to argue for a subjective standard” in his opening brief. Second, the court turned to the instructions given at trial. At issue was the definition of “unauthorized” prescribing, which was defined as either “without a legitimate medical purpose or beyond the bounds of medical practice.” The court held that the instruction “misstated the law post-Ruan” and that the error was not corrected by any other jury instructions that had been given. Nor was the error harmless.