Border Search Exception Allows Seizure of Electronic Devices With Certain Nexus to Suspected Criminal Activity

US v. Nkongho: Starting in 2016, various persons ran a scheme in which they posed as US Navy personnel to procure equipment without actually paying for it. The mastermind of the scheme was arrested, imprisoned, and deported to Nigeria, but his wife, Nkongho, remained in the United States, where she “handled the money for the organization.” She, too, came under investigation and, when returning from a trip to Cuba with her children, was stopped by authorities, who seized several electronic devices. After debating (for nine days) whether a warrant was needed to search them, warrants were obtained. Evidence from the devices later played a key part in the Government’s evidence at Nkongho’s trial. She was convicted of conspiracy to launder money and money laundering related to the scheme. She was sentenced to 24 months in prison, a significant downward variance.

On appeal, the Fourth Circuit affirmed Nkongho’s convictions and sentence. Nkongho’s primary argument on appeal was that the district court had erred when it denied her motion to suppress the evidence recovered from the devices that had been seized when she returned from Cuba. Nkogho conceded that there was probable cause to seize her devices for committing a domestic offense – which would not trigger the border exception to the Fourth Amendment – there was not similar evidence of international offenses “tethered enough to the exception’s justifications of stopping transnational crime.” The court disagreed, concluding that there was “probable cause to believe that Nkongho was part of an international munitions export scheme,” noting that such cause was found nine days later when the search warrants were obtained. The court also rejected the argument that the obtaining of the warrants was untimely, given that the reason for the delay was uncertainty as to the law regarding the necessity of warrants in that context.

Court Affirms Child Pornography Convictions Against Fourth Amendment, Instructional Challenges

US v. Sanders: In 2019, a foreign law enforcement agency tipped the FBI to an IP address that had been used to access child pornography. A second report assured that the information was “lawfully obtained” and had not involved the interference with any computer in  the United States by the foreign entity. The FBI investigated and eventually tracked the IP address to the home where Sanders lived with his parents. They executed a search warrant there, seizing numerous electronic devices. Sanders gave a statement during the search in which he admitted accessed child pornography using a TOR browser. In addition to videos of child pornography, further investigation of the devices showed that Sanders has messaged a half-dozen boys to send pictures and videos of themselves nude to him. Sanders was charged with a dozen charges relating to the production, receipt and possession of child pornography. He was convicted on all counts at trial and sentenced to 216 months in prison.

On appeal, the Fourth Circuit rejected several challenges by Sanders and affirmed his convictions. One notable issue was Sanders argument that the district court erroneously denied his motion to suppress the evidence seized at his home because the affidavit in support of the search warrant was insufficient. The court disagreed, holding that although evidence of one click on a website where child pornography was available would not sufficient to support probable cause, there was additional evidence here (particularly a “disclaimer” on the site’s homepage that made clear what kind of material was available on it) that demonstrated probable cause. Another notable issue, or collection of issues, were those related to whether Sanders either could present evidence about or have the jury instructed on whether the minors he was involved with were willing participants in the generation of the images related to them. The court rejected Sanders’ definition of “use” in the relevant statutes to require the Government to prove the defendant had “overcome the will” of the minor involved. Finally, the court found no error in the district court instructing the jury on “lascivious exhibition of the genitals” by reference to the Dost factors, concluding that the district court had not required their use, only laid them out as potentially helpful guideposts.

The same panel released a separate opinion in a related civil case on the same day, in which Sanders challenged the forfeiture of the electronic devices seized during the investigation. The court affirmed the district court’s rejection of Sanders’ argument that the forfeiture should be limited to contraband images on the various devices, rather than the complete devices themselves. The plain language of the relevant statute, the court ruled, does not permit such parsing of materials in a forfeiture context.

Court Affirms Drug Conspiracy and Related Convictions

US v. Henderson: Police went to Henderson’s home to execute a search warrant. Once there, they saw a blue car pull into the front yard. Henderson walked toward the car, but as the officers approached, he “opened his hand and tossed items underneath the vehicle,” including a firearm and a plastic bag with small amounts of crack and powder cocaine. The search of the residence uncovered additional drugs and firearms, as well as a digital video recorder with a week’s worth of footage from security cameras around the home. The video showed Henderson selling drugs “with an easily accessible handgun placed on the table in front of him” and “Henderson and other men, armed with multiple handguns and an AR-15 style rifle, standing in the front yard of the residence as cars and people would approach it.” He was convicted at trial on conspiracy, drug, and firearm counts and sentenced to a downward variance sentence of 324 months in prison.

On appeal, the Fourth Circuit affirmed Henderson’s convictions and sentence. As Henderson’s conspiracy conviction (and related firearm conviction), the court held that there was sufficient evidence to support the verdicts. It rejected Henderson’s argument that the evidence was insufficient because it was only on his confession, which he later recanted (his family testified at trial that he was a liar, as well), noting that there was significant additional evidence (largely on video) to corroborate the confession. As to the other counts, the court held that there was sufficient evidence to demonstrate an intent to distribute drugs on Henderson’s part. As to Henderson’s sentence, the court rejected Henderson’s argument that it was procedurally unreasonable (based, again, on the argument that his confession, upon which relevant conduct was based, was false) and then concluded that he did not rebut the presumption of reasonableness that attached to the below-the-Guidelines sentence.

Revised Sentence Imposed After Vacation of §924(c) Convictions Affirmed

US v. Sherifi: In 2011, Sherifi was convicted on five counts related to terrorism activities, including a plot to attack the US Marine base at Quantico, Virginia. Two of those counts were convictions for possession of firearms in connection with a crime of violence, under 18 U.S.C. §924(c). He was convicted on all five counts and sentenced to a total of 540 months in prison. After the Supreme Court’s decision in Davis, however, Sherifi filed a §2255 motion arguing that his two §924(c) convictions were no longer valid. The district court agreed, vacated those counts, and scheduled a full resentencing. The district court eventually imposed a new sentence of 516 months in prison.

On appeal, the Fourth Circuit affirmed Sherifi’s sentence. The court rejected Sherifi’s argument that his sentence was procedurally unreasonable because the district court failed to engage with his argument that the terrorism enhancement under the Guidelines overwhelmed his personal history and characteristics. To the contrary, the court held that the district court did consider Sherifi’s history and that was part of the basis for its decision to impose a downward variance from a Guideline sentence of life (Sherifi was already doing a life sentence imposed following a conviction for conspiring to kill witnesses who testified against him in this trial). The court did find error in the sentence on one count, where the jury did not make a finding of whether the object of the conspiracy was to murder, kidnap, or maim persons, which impacts the statutory maximum. However, under plain error review, Sherifi could not show prejudice (due to valid sentences on other counts) or that his sentence undermined the integrity of the criminal justice system.

Defendant Lacked Standing to Challenge Geofence Warrant Under Third-Party Doctrine

US v. Chatrie: In 2019 someone robbed a bank in Midlothian, Virginia. There were no leads, except that a police officer noticed that the bank robber, on video, could be seen using his cell phone. Police obtained a “geofence warrant” from a state court, ordering Google to turn over anonymized location data for any Android phone within a 150-meter radius of the bank for a half-hour before and after the robbery. Over the course of subsequent requests and data dumps from Google, investigators identified Chatrie as being in the area at the time of the robbery. He was arrested, charged with bank robbery and use of a firearm, and moved to suppress the evidence obtained from the geofence warrants. The district court denied the motion. Chatrie entered into a conditional guilty plea and was sentenced to 142 months in prison.

On appeal, a sharply divided Fourth Circuit affirmed Chatrie’s conviction. While the district court had denied Chatrie’s motion by applying the good-faith exception to the exclusionary rule, the court affirmed on a different ground – that Chatrie lacked standing to challenge the geofence warrant in the first place. Applying the third-party doctrine, the court concluded that given the temporally limited nature of the information gathered and the fact that Android users had to affirmatively choose to have location data collection on their phones (2/3ds of users don’t), that Chatrie voluntarily provided the data to the third party.

Judge Wynn dissented, at length (the dissent is longer than the majority opinion), which prompted a substantial rebuttal in the majority opinion. Judge Wynn argued that the Supreme Court’s decision in Carpenter had changed the legal landscape when it came to information like the location data at issue here and that the third-party doctrine no longer applied.

Non-Overnight Guest Had Standing to Contest Entry Into Backyard, But Seizure Justified by Plain View Doctrine

US v. Green: Green was the suspect in an armed home invasion and a state arrest warrant was issued for him. Police located Green in the backyard of a home, surrounded by a chain-link fence, speaking with an unknown man. Police arrived in force, leading Green to stand up, “pull a handgun from his shorts, holding it in . . . a non threatening manner.” An officer yelled “gun!,” at which point other officers climbed the fence and arrested Green. While that was in process, the other officer jumped over the fence and went to the secure the handgun (which was later seized).

Green was charged with being a felon in possession of a firearm and moved to suppress the gun, arguing that police actions had violated the Fourth Amendment. The district court denied the motion, agreeing with the Government that Green lacked standing to challenge the entry of the yard of a home where he had never been an overnight guest. It did not otherwise reach the issue of whether the search violated the Fourth Amendment. Green was convicted at trial and sentenced to 84 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Green’s motion to suppress, although on different grounds than the district court. As to standing, the court concluded that the district court had erred in concluding that Green could not challenge the entry of the home. The court emphasized the distinction between “business visitors” who do not have standing to make Fourth Amendment challenges and “social visitors” who do, rejecting the categorical requirement that the later must be an overnight guest. Rather, someone who, like Green, was a frequent visitor to the home of a friend, who was also a relation, for a long period of time and who had, by the home owner’s testimony, “free rein of the house.” That Green brought a firearm (illegally) into the home does not destroy standing (otherwise nobody in a criminal  case would have it). While the court disagreed with the district court on standing, it nonetheless affirmed the denial of Green’s motion to suppress under the plain view doctrine.

Separate Convictions for Conspiracy to Distribute Different Drugs Violates Double Jeopardy, Could Support Ineffective Assistance Claim

US v. Slocum: In 2013, Slocum was charged with (among other things) one count of conspiracy to distribute heroin and one count of conspiring to distribute oxycodone, both occurring “from before May 2012 through October 2013, at or near Charleston, Kanawha County, West Virginia.” He went to trial, where the Government argued to the jury that Slocum recruited addicts who sold “heroin and pills” for him, many of which testified at trial. It was, in the Government’s words, “a big drug conspiracy.” Slocum was convicted on all counts and received concurrent sentences of 360 months and 240 months on the conspiracy counts.

In 2017, Slocum filed a 2255 motion alleging he had received ineffective assistance of counsel when trial counsel failed to object to this convictions and sentences on both conspiracy counts as violating Double Jeopardy because his case involved a single conspiracy. The district court concluded Slocum was “clearly not entitled to relief” and denied the motion, without having an evidentiary hearing on the underlying ineffective assistance of counsel claim, holding that there were two separate conspiracies under the Blockburger analysis.

On appeal, the Fourth Circuit reversed the denial of Slocum’s 2255 motion and remanded with instructions to hold an evidentiary hearing. The court concluded that the Blockburger test, with its focus on elements and comparing offenses to another, “is a poor fit for a double jeopardy challenge . . . which concerns two counts alleging distinct violations of the same statute.” Instead, the court applied a test from a prior Fourth Circuit case, MacDougall, which involves a “flexible consideration of five factors” examining the totality of the circumstances. Reviewing the evidence in this case, the court concluded that the “level of overlap in the facts underlying the two charged conspiracies leads us to conclude that there was one overall agreement with multiple objects.” While the court concluded that Slocum had a Double Jeopardy claim, it did not reach the underlying vehicle for the district court to review that claim – whether trial counsel was ineffective in the first instance by failing to raise it. The court remanded with instructions to hold an evidentiary hearing into trial’s decision not to make such an objection.

Hobbs Act Robbery Not Lesser-Included Offense of Carjacking

US v. Whitley: Whitley and his girlfriend were involved with the robbery of a Peloton delivery truck, with Whitley climbing into the truck when it stopped at 7-Eleven and pointing a gun at the driver. As a result, Whitley and the girlfriend were charged and convicted both with carjacking and Hobbs Act robbery. The district court rejected Whitley’s argument that the robbery count was a lesser included offense of carjacking and, under Double Jeopardy principles, he could not be convicted of both. He received a sentence of 168 months (the girlfriend’s carjacking conviction was vacated via a post-verdict motion for acquittal – she got a sentence of time served plus supervised release).

On appeal, the Fourth Circuit affirmed Whitley’s convictions on both carjacking and robbery. At issue is whether the two offenses had the same elements under the Blockburger analysis. Whitley argued that they did, with carjacking having an additional intent requirement. The court disagreed, holding that they two offenses have different jurisdictional elements (which the Fourth Circuit has previously held is part of the Blockburger analysis). In essence, the court concluded that the jurisdictional element for carjacking is backward looking – had the vehicle in question moved across state lines in the past? – where the same element for Hobbs Act robbery was prospective – did the robbery obstruct, delay, or affect interstate commerce? That a carjacking may impact interstate commerce does not make the elements the same. The court also affirmed the sufficiency of the evidence underlying Whitley’s carjacking conviction, refusing to step into the debate of whether carjacking requires brandishing of a weapon “plus” something else, concluding that, in the light most favorable to the Government, the evidence demonstrated the necessary intent in this case.

Court Can Modify Announced Sentence During Same Sentencing Hearing

US v. Melvin: Melvin was sentenced to life in prison, plus 300 months, plus five years of supervised release in 1998. In 2020, the district court reduced his sentence under the First Step Act to 306 months and he was released from prison the next year. Melvin had mental health issues that manifested in accusations of state criminal law violations that led to him being charged with violating conditions of his supervised release.

The parties agreed to a sentence of time served and no further term of supervised release. The district court said it agreed, but Melvin asked to address the court. He then proceeded to launch into what his own brief calls a “stream-of-conscious outburst” and what the district court called “one of the worst outbursts it had never seen in an open courtroom” (that said, what’s quoted in the opinion is pretty much just griping about probation officers). The district court it would “withdraw its previous rulings” because Melvin was “a danger to the law and to law enforcement and to the probation” officers. After a five-hour recess, the district court ordered that Melvin was to remain on supervised release, although it also ordered him committed to a mental hospital.

On appeal, the Fourth Circuit affirmed Melvin’s sentence. All agreed that once a sentence was imposed the district court could not simply change its mind and alter the sentence – the main issue was when a sentence was “imposed.” Following other circuits, the court rejected Melvin’s argument that the sentence was imposed once the district court agreed to the parties’ recommendation. Instead, a sentence is not imposed until both a sentence has been “unequivocally announced” and there has been a “formal break” in proceedings that shows sentencing has concluded.

Cellphone Seizure Violated Fourth Amendment, But Error Was Harmless

US v. Horsley: Between 2016 and 2019, Horsley (and a pair of associates who eventually testified against him) was a drug “dealer and a mid-level distributor” in the Lynchburg, Virginia area. As part of the investigation of Horsley, police seized a pair of cell phones from his apartment at the time of his arrest and searched a Jaguar that allegedly belong to Horsley (in which was found cash and cellphones). Horsley unsuccessfully moved to suppress all that evidence and was convicted by a jury of conspiracy and possession with intent to distribute various controlled substances.

On appeal, the Fourth Circuit affirmed Horsley’s sentence. A primary contention from Horsley on appeal was that the cellphones seized at the time of his arrest, and specifically the one that contained evidence admitted at trial, was seized in violation of the Fourth Amendment. The court agreed, concluding that the seizure of that phone did not fall within the search incident to a lawful arrest doctrine. At the time of the seizure, Horsley was in handcuffs, on the other side of the bed from the table on which that phone rested, and was accompanied by numerous officers. Indeed, one agent testified that Horsley “could not have reached for the phones” because he was in handcuffs. The court rejected the Government’s reliance on its prior decision in Ferebee, which approved the seizure of a backpack following the defendant’s being placed in handcuffs. The court limited Ferebee, holding that it’s discussion of the search incident to a lawful arrest was dicta, as it had already held that the defendant there lacked standing to challenge the search in the first place. That said, the court concluded that the district court’s error in denying Horsley’s motion to suppress was harmless, given the strength of the uncontested evidence presented at trial. 

Ambiguous Record on Whether District Court Accepted Binding Plea Is Construed in Defendant’s Favor

US v. Dunlap: The Dunlaps, mother Vera and daughter Trecika, pleaded guilty to witness tampering after offering a bribe to a juror sitting on a drug case against Trecika’s brother (the juror called the FBI). The Government entered in a binding plea under Rule 11(c)(1)(C) for each with a 12-month-and-1-day sentence. At the plea hearings the district court never explicitly accepted or rejected the plea agreements, although a docket entry stated “Plea Agreement Accepted.” When the Dunlaps appeared for (separate) sentencings, the district court expressed concern about the agreed-to sentences (which the Government then decided had concerns, too) given the nature of the offenses. Ultimately, the court imposed sentences of 36 months in prison.

On appeal, the Fourth Circuit vacated both sentences. The Dunlaps argued that the record showed that the district court had constructively accepted their plea agreements, based largely on the docket entry notation, if it hadn’t done so explicitly. The Government argued there was no acceptance and the imposition of 36-month sentences was evidence they were rejected. The court concluded that the record was ambiguous as to whether the district court had actually accepted the plea agreements. In such situations, the court held that the benefit of the doubt goes to the defendant and the agreements are treated as accepted. As a result, the sentences were vacated and the cases remanded for the original agreed-upon sentences to be imposed.

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

Court Affirms RICO Convictions In Spite of Concerns Over Police Misconduct

US v. Banks: Banks and four codefendants were convicted after a joint trial for multiple offenses related to racketeering as part of the Murdaland Mafia Piru gang. The Fourth Circuit, for the most part, affirmed their convictions and sentences.

Of the man issues raised on appeal, three are worth highlighting. First, this case marks yet another chapter in the Fourth Circuit’s dealings with the corrupt Gun Trace Task Force of the Baltimore police department. In this case, one of those officers was involved in part of the investigation of the defendants, who moved for a new trial once the corruption was uncovered. The court affirmed the denial of the new trial motion, holding that the defendants could not show that any of the officer’s “criminal conduct” was material to their case. That he was corrupt was not enough, on its own, to warrant a new trial. Second, the court did vacate a felon-in-possession conviction for one defendant, Davis, due to a Rehaif error, as the prior conviction on which the Government relied was one that the state of conviction labelled a misdemeanor and for which Davis’ sentence had been suspended. He therefore met the plain error standard for relief. Finally, the defendants argued that the district court abused its discretion in admitting various “music videos, lyrics, and social media posts” of the defendants, arguing that they were irrelevant and unduly prejudicial. The court chastised the defendants for not specifically objecting to particular items, instead objecting with a “broad brush,” and proceeded the analyze the issue with similar generality, finding no abuse of discretion on the district court’s part.

Govt Doesn’t Forfeit Appeal Waiver Argument by Failing to Respond to Anders Brief

US v. Ashford: Ashford pleaded guilty to a drug offense pursuant to a plea agreement in which he waived his “right to contest either the conviction or the sentence in any direct appeal.” He was sentenced to 168 months. After sentence was imposed, the district court realized it hadn’t called on Ashford to allocute. Ashford spoke to the court, after which the district court said: “All right. Well, I believe I have announced my sentence.”

Ashford directed his attorney to appeal, which led to counsel filing an Anders brief raising only the possibility of ineffective assistance of counsel with regards to a Guideline enhancement. In response, the Government filed a letter stating that it didn’t intend to file a brief unless the court ordered it to do so. Ashford also filed a pro se brief, to which the Government didn’t respond. Months later, the Fourth Circuit sua sponte ordered briefing on whether Ashford had been denied his right to allocate. In its supplemental brief, the Government, for the first time, invoked the appeal waiver in the plea agreement.

The Fourth Circuit dismissed Ashford’s appeal. At issue was whether the Government was required to invoke the waiver in some fashion prior to its brief filed in response to the court’s supplemental briefing order. The court reiterated that the Government was not required to do so when the Anders brief was filed, as “we have consistently told the Government that it need not respond to Anders briefing unless we order otherwise.” In addition, the deadline for filing any brief by the Government under the initial briefing order had passed when Ashford filed his pro se brief (which did raise issues that implicated the waiver). The Government was not required to file a “rote response or letter reserving its right to assert an appeal waiver.”

Bribery-related Convictions for Long-Time Sheriff Affirmed

US v. McCabe: McCabe was elected Sherriff of the City of Norfolk in 1993 and served in that office until 2017. For most of that time, he engaged in a mutually beneficial relationship with suppliers of goods and services (food and medical care) to the jail he oversaw. In return for various financial rewards, McCabe would help his preferred providers bypass the open bidding process or help tailor the bidding process to benefit the suppliers. Eventually, McCabe was charged in a multi-count indictment, along with Boyle (who ran the medical provider) with numerous offenses, including conspiracy, honest services fraud, and extortion. McCabe went to trial first, was convicted, and sentenced to 144 months in prison.

On appeal, the Fourth Circuit affirmed McCabe’s conviction, rejecting several challenges. Primarily, McCabe argued that the district court erred by forcing him to go to trial first, instead of Boyle, arguing that this deprived him of the opportunity to use Boyle as a defense witness in his trial. The court disagreed, noting that nothing in the record suggested that even after a trial and conviction Boyle would have waived his Fifth Amendment rights and testified at McCabe’s trial. McCabe also challenged a district court ruling allowing two employees from testifying that McCabe’s “undersheriff” had told them that McCabe had requested that had directed provide confidential information about bids to the two providers. The court agreed with the district court that the statements were non-hearsay under Rule 801(d)(2)(D) because they were made within the scope of the undersheriff’s employment.  Finally, McCabe also challenged his jury instructions as running afoul of recent Supreme Court decisions narrowing the applicable fraud and bribery offenses. Finding first that McCabe had not properly objected to the instructions given, the court found no error in them, much less plain error.

Fourth Circuit Rejects Facial Challenge to § 922(g)(1)

US v. Canada: Canada was convicted by a jury of being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act in part due to a prior South Carolina domestic violence conviction that Fourth Circuit precedent at the time held was a “violent felony.”

On appeal, the Fourth Circuit affirmed Canada’s sentence, but vacated his sentence. As to his conviction, Canada argued that 18 U.S.C. § 922(g)(1) was facially unconstitutional under NY State Rifle & Pistol Ass’n, Inc. v. Bruen as a violation of the Second Amendment. The court quickly dispatched with that claim, holding (without any particular analysis) that the statute is facially valid, while leaving open the possibility that the statute could be challenged on an as-applied basis. This allowed the court to bypass fundamental questions about how Bruen applies, including the scope of “the people”  and whether history and tradition supports disarming felons (as well as bypassing some procedurally issues regarding the standard of review). As to Canada’s sentence, the court held that because his prior South Carolina offense could be committed recklessly (pursuant to a certified question to the state Supreme Court) it could no longer qualify as an ACCA predicate in the wake of the Supreme Court’s decision in Borden.

NOTE: It’s unclear to me whether Canada’s Second Amendment holding is still good after Rahimi, as the case was also a facial challenge and the Supreme Court resolved as such, instead of holding such challenges couldn’t be made.