Court Affirms Denial of Multiple Suppression Motions

US v. Joseph: Joseph had two encounters with police in the Charleston, West Virginia, area that resulted in the seizure of drugs and firearms. The first arose from a tip about possible drug activity in a particular motel room. Officers surveilled the room and saw only Joseph enter and leave over a four-to-five hour period. Officers were also able to see drug sale paraphernalia through the window. Eventually, Joseph left the motel room carrying a duffel bag, walking into a nearby McDonald’s where police moved to intercept him. Joseph briefly ran (during which he threw the bag away) and a search of the bag uncovered drugs and firearms. The second incident arose from a traffic stop of a vehicle in which Joseph was a passenger. After a drug dog alerted to the car, officers found a firearm and more drugs. Joseph unsuccessfully sought to suppress evidence recovered from both incidents and was convicted of multiple drug and firearm offenses.

On appeal, the Fourth Circuit affirmed the denial of both motions to suppress. As to the initial encounter starting at the motel, the court concluded that “there was neither a search nor a seizure until Joseph was apprehended” and by that point officers “had seen items suggesting drug distribution in the motel room . . . and witnessed Joseph’s unprovoked flight upon noticing the police” and thus they had reasonable suspicion to make a stop and probable cause to search the duffle bag (based on a drug dog alert). Nor was Joseph under arrest simply because he was placed in handcuffs once he was seized. As to the traffic stop, the court rejected Joseph’s argument that the officer who made the stop unlawfully prolonged it, finding that the district court’s findings to the contrary were not clearly erroneous.

Court Clarifies Ineffective Assistance Standard for Rejected Plea Agreements

US v. Brown: In 2016, Brown was indicted on four counts of possession with intent to distribute crack cocaine and one count of being a felon in possession of a firearm, for which he faced a combined total maximum sentence of 90 years in prison. Brown’s initial attorney negotiated with the Government, who eventually offered a plea bargain in which Brown would plead guilty to the firearm charge, capping Brown’s exposure at 10 years I prison. Brown turned down the offer because he felt like his lawyer “could’ve got him a better plea.”

New counsel was appointed and he and Brown discussed the same offer, with counsel erroneously advising Brown that it “did not matter whether he accepted the plea agreement because the guideline range would be the same” and that Brown “would be facing a statutory maximum of ten year’ imprisonment regardless of whether he accepted a plea offer or not.” Brown rejected the agreement and pleaded guilty to all five charges, during a Rule 11 colloquy in which he stated that he understood the statutory maximum for each offense. The district court eventually sentenced Brown to 210 months in prison – an upward departure from the 87-108 month Guideline range and seven-and-a-half years longer than the maximum sentence under the plea agreement.

Brown filed a §2255 motion, alleging ineffective assistance of counsel with regard to advice as to the effect of agreeing to the plea bargain (or not). The Government conceded counsel had rendered deficient performance, but argued Brown could not show prejudice. The district court agreed, applying the Supreme Court’s decision in Lee v. US and holding that Brown could not show contemporaneous evidence that he would have accepted the plea bargain if properly advised, rather than post hoc regrets about his decision.

A divided Fourth Circuit reversed the denial of Brown’s §2255 motion. First, it concluded that review was de novo, although the district court had held an evidentiary hearing, because the lower court’s ultimate ruling “rendered a conclusion, but made no findings of fact” that would only be reviewed for clear error. Second, the court concluded that the district court had misapplied Lee, which dealt with ineffective assistance claims where plea bargains were accepted, but not rejected (which the Supreme Court in Lee identified as being different beasts). Brown was not required, therefore, to show contemporaneous evidence that he would have accepted the plea agreement if properly advised. It was enough that Brown testified he would have taken the deal, that he eventually pleaded guilty to more serious charges, and that the end result would have been more favorable to him if he had taken the plea.

Judge Rushing dissented, relying on Lee and applying clear error.

Court Affirms CSAM Convictions, Clarifies Status of Dost Factors

US v. Deritis: In 2019, a tip from Microsoft led investigators to Deritis. In addition to seizing and searching his computer (where they found images of Deritis’ 12-year-old stepdaughter naked in his bathroom (they later found a hidden camera), they submitted a “preservation request” to Google for his email account for “Google to pull and hold the records associated with” the account while investigators obtained a warrant. Google provided two sets of a data that included on “minor differences” – one from the date of the preservation request and one from the date of the search warrant. In the Google account, investigators found a photo taken on Deritis’ phone of his “stepdaughter’s hand touching his penis” and another showing him “touching her genitals.” The district court denied Deritis’ motion to suppress the Google information and he was convicted at trial of four counts related to the production and possession of child sexual abuse material (CSAM). He was sentenced to 600 months in prison.

On appeal, the Fourth Circuit affirmed Deritis’ conviction, although it vacated his sentence as to the special assessments imposed. First, the court affirmed the district court’s denial of Deritis’ motion to suppress. The court ultimately concluded that it did not need to reach the main challenges (that Detritis was subject to a warrantless seizure and an unreasonably lengthy delay in getting the warrant) because Google had provided two “identical set[s]” of data and there was no claim that the warrant itself was defective. Second, the court held that the district court’s jury instructions were not erroneous, in the process summing up the status of the Dost factors in determining whether images involve “lascivious exhibition” of genitals, noting that the factors can be utilized by a jury, so long as they are not definitive or given undue weight by the instructions. Third, the court found that while the district court erred by not allowing Deritis’ ex wife to testify about instructions not to let the stepdaughter use the bathroom where the camera was found (they were admissible as non-hearsay commands), the error was harmless. Finally, the court found plain error in the district court’s failure to make the require findings to impose enhanced special assessments at sentencing.

§922(g)(9) Survives Second Amendment Facial Challenge

US v. Nutter: Nutter was found in possession of firearms in spite of having three prior convictions that met the definition of “misdemeanor crimes of domestic violence” and was charged with a violation of 18 U.S.C. §922(g)(9). Pre-Bruen, Nutter moved to dismiss the charges, arguing that §922(g)(9) violated the Second Amendment. After the motion was denied, but prior to sentencing, Nutter renewed his motion after Bruen, but it was also denied. Nutter entered a conditional guilty plea and was sentenced to 12 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Nutter’s motion to dismiss. The court started by noting that Nutter’s challenge could only be construed as a facial challenge, given his general attacks on §922(g)(9). Without more specific as applied arguments, Nutter was limited to the “most difficult challenge to mount successfully,” and could not prevail. Skipping directly to Bruen’s second step, the court concluded that there were “some circumstances in which §922(g)(9) is constitutional” – enough to survive a facial challenge. The court relied on Rahimi (which involved §922(g)(8)), finding that it’s basis for allowing disarmament there was sufficiently similar, even though the restriction in Rahimi was temporary.

Court Affirms Drug Convictions Against Search, Jury Instruction Challenges

US v. Henderson: In 2018 police pulled over Langley for “erratic driving.” A search of the vehicle uncovered some meth, “distribution paraphernalia, and the firearm” and police were told (by Langley and her passengers) that there was more meth at Langley’s home, where her “out-of-state methamphetamine supplier was currently staying” and armed with a firearm. Police obtained a warrant to search the home, including any digital devices, including phones, on the assertion that items related to drug distribution “may be stored in digital media.”

The search of the home uncovered drugs, paraphernalia, and a firearm – as well as Henderson, who “was there alone.” Two phones belonging to Henderson were also seized, which uncovered “text messages suggesting of drug dealing,” along with photos of cash and drugs. Henderson was charged with drug and firearm offenses as a result. After he unsuccessfully moved to suppress the data from the phones, he was convicted on the drug offenses, but acquitted on the firearm offenses. He was sentenced to 240 months in prison.

On appeal, the Fourth Circuit affirmed Henderson’s convictions and sentence. As to the phone search, the court rejected Henderson’s argument that the good-faith exception should not apply, concluding the “affidavit here was not so lacking in indica of probable cause as to prevent the officers from relying on the warrant to search Henderson’s phones.” The court also rejected Henderson’s argument that the jury should have been instructed that a buy-sell agreement was not enough to prove conspiracy, noting that it was “contrary to longstanding Fourth Circuit precedent, given that the evidence in this case showed Henderson brought Langley methamphetamine in excess of a user amount.”

Whether Prior Conviction Is “Felony” for § 922(g)(1) Purposes Is Question of Law

US v. Fulton: Fulton had a hobby of trying, and failing, to buy firearms. In 2023 he tried to so 11 times (from licensed dealers), each time answering “no” to the required question of whether he had ever been convicted of a felony. None of the “denials” specified a reason. Still, “after Fulton’s eighth attempt,” an ATF agent, working with a local police officer, spoke to Fulton and told him he could not buy a gun because of a prior felony conviction from New Jersey. After trying a couple of more times, the agent visited in person and told him the same thing. After the eleventh attempt, Fulton was charged with making a false statement during the attempted purchase of a firearm.

At trial, the Government introduced a judgement from New Jersey for Fulton’s prior conviction, but it showed only a 13-day sentence (followed by probation), did not state a maximum potential sentence, and did not contain the word “felony.” Fulton made a motion for a judgment of acquittal, arguing that the Government had failed to prove that the prior conviction was, in fact, a felony. The Government responded that the district court could determine that the prior conviction was a felony as a matter of law. Ultimately (after the jury convicted), the district court granted Fulton’s motion, along with a motion for a new trial, holding that the Government had failed to establish the nature of the prior conviction, including by not introducing the New Jersey statute at issue into evidence.

On appeal, the Fourth Circuit reversed. The court first concluded that the Government proved that Fulton had a prior felony conviction, holding that the nature of the offense is a “question of law for the judge to determine” (the ATF agent also testified, without objection, that it was a felony). As a result, the district court “was empowered to consider whatever authorities or sources it needed to resolve it, without regard to whether such sources were admitted into evidence or subject to judicial notice.”  The court the concluded that the grant of a new trial was also erroneous, rejecting the district court’s conclusion that there was an “absence of proof of Fulton’s knowledge that he was a felony,” pointing to the repeated failed attempts to purchase guns and the ATF agent’s warnings. The district court erred by focusing “exclusively on Fulton’s 2007 sentence . . . and the text of the criminal judgement.” In the end, the “jury was not required to find Fulton guilty. But it did, and the evidence supports its verdict.”

Court Affirms Denial of Motions Involving Suppression of Data Discovered Pursuant to Foreign Investigation

US v. Dugan: In 2019, the FBI got information from “a foreign agency known to the FVI, and with a history of providing reliable and accurate information” that a particular IP address had accessed a “dark web” site known to share child pornography. The IP address was traced to Dugan’s home, where a search warrant was executed and more than 1200 images of child pornography were recovered. Charged with accessing child pornography with intent to view it, Dugan sought to compel discovery regarding the foreign investigation and, ultimately, to suppress the evidence discovered as a result. The district court denied both motions and Dugan entered a conditional guilty plea, after which he was sentenced to 54 months in prison.

On appeal, the Fourth Circuit affirmed Dugan’s conviction and sentence. As to the motion to compel, the court agreed with the district court that Dugan’s request lacked necessary evidentiary support as to the foreign investigation, relying “primarily on speculative conclusions drawn by his counsel,” such as a “generalized understanding of how the TOR networks operate.” Nor could Dugan show that the foreign investigation demonstrated the necessary agency relationship with the FBI that would be needed to raise a Fourth Amendment issue. As to the motion to suppress, the court held that although there was only evidence of “a single instance of Dugan accessing” website, the “affirmative steps required for access to the site,” including requiring users to upload “50 to 100 megabytes of ‘indecent material of children’”, demonstrated that “Dugan knew that such content was available and he actively sought it out.”

En Banc Court Affirms Denial of Geofence Warrant Challenge

US v. Chatrie: Recall last July when a panel of the Fourth Circuit affirmed the denial of Chatrie’s motion to suppress evidence gathered pursuant to a geofence warrant. Where the district court had denied the motion by applying the good-faith exception to the exclusionary rule, a divided Fourth Circuit panel concluded that Chatrie lacked standing to challenge the warrant in the first place under the third-party doctrine. Chatrie sought, and was granted, rehearing en banc.

After oral argument, the en banc Fourth Circuit released a per curiam opinion stating simply that the “judgment of the district court is affirmed,” with no further explanation. There were, however, many other opinions (totally 120 pages) discussing the issues raised in the case.

Judge Diaz concurred, emphasizing the court was affirming “solely on the court’s finding of good faith” and arguing that “judicial modesty counsels that we not make grand constitutional pronouncements merely because we can.”

Judge Wilkinson (joined by Judges Niemeyer, King, Agee, and Richardson) argued that “with due regard for my fine colleagues, there was no search here” and even if there was, there were “many good reasons why courts should respectfully rejected the assault on geofence warrants” mounted by, among others, the Fifth Circuit, which not only held that a defendant could challenge geofence warrants but that they violated the Fourth Amendment.

Judge Richardson also concurred separately (joined by Judges Wilkinson, Niemeyer, King, Agee, Quattlebaum, and Rushing), arguing that “obtaining just two hours of location information that was voluntarily exposed is not a Fourth Amendment search and therefore doesn’t require a warrant at all.”

Judge Niemeyer also concurred separately, emphasizing the long history of law enforcement “collecting and following ‘markers,’ or clues, voluntarily left behind and abandoned by a person at the scene of a crime.” Judge King also similarly concurred separately, briefly, to express his agreement with both the no-search rationale and good faith rationale.

Judge Wynn (who dissented on the initial panel) concurred in the result (joined by Judge Thacker, Harris, Benjamin, Berner and, with the exception of a footnote, Gregory), arguing that the “surveillance technologies at issue in this case – the very same ones that seem to thrill my colleagues who join Judge Wilkinson’s separate opinion – would have been unimaginable to the Founders” and that, applying the Supreme Court’s decision in Carpenter, the geofence warrant was a search. In a footnote (to which Gregory did not join), Wynn states that he nonetheless agrees that good faith applies, but doesn’t explain why he changed his mind on that from the panel opinion. Nonetheless, he criticizes the court’s “unwillingness to confront” the Fourth Amendment question “head-on” by taking “shelter in the judge-made doctrine of ‘good faith.’”

Judge Heytens (joined by Judges Harris and Berner) concurred, arguing that the “strong medicine” of exclusion was unwarranted in this case (even if there was a search) because the legal landscape at the time was “uncertain” and that the officer did “what we expect reasonable officers to do when face with such uncertainty” by getting a warrant and consulting with prosecutors beforehand.

Judge Berner (joined by Judges Gregory, Wynn, Thacker, Benjamin, and (largely) Heytens) concurred, arguing against the Fifth Circuit position of geofence warrants always violate the Fourth Amendment, but that there is an expectation of privacy in the non-anonymized data that is produced during the process. Here, the warrant violated the Fourth Amendment and she saw “little benefit in postponing these issues until another day.”

Finally, Judge Gregory dissented, stating that he largely concurred in the opinions of Wynn and Berner, but that he would go further and hold that the good-faith exception did not apply in this case because the warrant violated long-held understandings of what warrants require, regardless of whether the particular circumstances had been previously addressed by the court.

Consent Given, and Not Revoked, For Quick Search of Home That Uncovered Firearms

US v. Dubon: Richmond police officers got a tip that a man (not Dubon) was preparing to engage in a mass shooting. They knocked on Dubon’s door as part of that investigation. After Dubon allowed them in and some questions were asked, an officer said to Dubon (in Spanish) that they were going to “check and see if there is anyone else here in the house.” Dubon responded (also in Spanish) “[g]o check . . . there’s no one else,” and “nodded and, with un upturned palm, gestured forward toward the rooms in the rear of the residence.” A few seconds later, Dubon said “I understand you can’t get into my house without warrant, then. But . . .” and shrugged his shoulders. The search uncovered firearms and Dubon was charged with being an unlawful alien in possession of a firearm. After the district court denied his motion to suppress, Dubon entered a conditional guilty plea and was sentenced to 16 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Dubon’s motion to suppress. While the district court did so on two bases, the Fourth Circuit relied on only one – that Dubon consented to the search of his home. The court held that the district court’s factual conclusions regarding consent were not clearly erroneous. That included not just the initial consent but what Dubon argued was revocation, the statement about a warrant accompanied by a shoulder shrug, with the court concluding that it was not a clear withdrawal of consent and “readily susceptible to different meanings” including an expression of resignation that he was allowing the search anyway. Because the court affirmed on that basis it explicitly did not address the district court’s other basis for denying the motion, that the search was a lawful protective sweep.

Erlinger Error Subject to Harmless Error Analysis

US v. Brown: In 2019, Brown sold a firearm to an undercover officer, for which he was charged with being a felon in possession of a firearm. In compliance with applicable law, the indictment did not set identify three prior offenses committed on “occasions” separate from one another. After Brown’s plea, the probation officer recommended he be sentenced under the Armed Career Criminal Act because he did, in fact, have three prior convictions that he committed on occasions separate from one another. Brown’s objection that such a sentence violated the Fifth and Sixth Amendments was overruled and he was sentenced to 180 months in prison.

The Fourth Circuit affirmed Brown’s sentence, concluding it was bound by prior precedent (even though, by that point, even the Government agreed such precedent was incompatible with Apprendi). The Supreme Court then decided Erlinger v. United States, in which it held that the separate occasions information must be charged in the indictment and found beyond a reasonable doubt by a jury. Brown’s case was remanded to the Fourth Circuit.

At issue this time for the Fourth Circuit was whether the Erlinger error in this case was subject to harmless error analysis and, if so, whether the error was harmless in this case. The court adopted the Government’s position that Erlinger error is a species of Apprendi error which courts have long recognized is not “structural,” and thus subject to harmless error analysis. Applying harmless error, the court noted that the real issue is not whether a jury would have found ACCA would apply, but whether Brown would have pleaded not guilty and gone to trial if the indictment had been sufficient and he had been informed of the jury requirement during his guilty plea colloquy. The court concluded he would not have, relying partly on a conclusion that “absolutely no one” would conclude that the two robberies at issue – two months apart with separate victims – occurred on the same occasion.

Court Affirms Murder Conviction Over Multiple Trial Challenges

US v. Seward: In 2019 a US Postal Service employee was found dead, shot multiple times, along the side of a South Carolina road. Two miles down the road investigators found a rifle, 21 bullet casings, and a package containing two pounds of marijuana addressed to Seward that had the mail carrier’s blood on it. Investigation led to Seward being charged with the carrier’s murder, along with related charges, for which the jury found him guilty on all counts.

The Fourth Circuit affirmed Seward’s convictions, rejecting three arguments on appeal. First, it concluded that the district court did not abuse its discretion in allowing the Government’s toolmark expert to testify. Noting that it had already rejected a head-on challenge to the “science” of toolmark matching, the court also held that issues with the expert’s qualifications were adequately addressed via cross examination. Second, the court held there was no error in excluding evidence that an alternate suspect failed a polygraph test, noting the general inadmissibility of such results and that Seward was able to address the issue of that subject’s inconsistencies with the postal inspector who led the investigation. Finally, the court held that the Government’s DNA expert’s testimony may have violated Seward’s confrontation clause rights (it could not reach a conclusion on that issue due to lack of development in the district court), but that any error was harmless in light of “overwhelming evidence of Seward’s guilt.”

Evidence of Uncharged Threat, Anonymous Jury, Did Not Require Reversal of Threat Convictions

US v. Beeman: Beeman was convicted of making interstate threats. After his guilty plea, he sent more threatening letters, this time to the AUSA and NCIS agent who worked on his case. For that he was charged with three counts of threatening federal officials. He went to trial, where the Government was allowed to introduce evidence of a fourth, uncharged, threatening letter (to the NCIS agent) and was convicted on all counts by an anonymous jury.

On appeal, the Fourth Circuit affirmed Beeman’s convictions. First, it rejected his argument that the uncharged fourth letter should have been excluded. Finding no abuse of discretion on the district court’s part, the court concluded that the letter was admissible as res gestae for the charged offenses (it helped “complete the story” of those offenses) or under Rule 404(b) and was not unduly prejudicial. Second, it concluded there was no abuse of discretion in using an anonymous jury (assuming it actually was – defense counsel had the names, but Beeman didn’t), noting Beeman’s history of interfering with judicial proceedings. Finally, the court held there was no abuse of discretion in denying Beeman a mistrial during closing argument when the Government improperly stated the legal standard, noting that it was brief and corrected by the district court.

Appeal Waiver Invalid Due to Failures of District Court During Rule 11 Hearing

US v. Smith: After he and a codefendant robbed a gas station, Smith pleaded guilty, pursuant to a plea agreement, to Hobbs Act robbery and brandishing a firearm in connection with that robbery. The plea agreement included a waiver of his right to appeal his sentence. The plea hearing was brief, with the district court asking if Smith understood that he was waiving various rights all at once (Smith said he did). As to the waiver, the district court noted that he “waive[d] your right to appeal” (among other things), concluding with “is that what you’ve agreed to?” (Smith said he did). The district court imposed a total sentence of 144 months, stating that it had considered the Guideline range as well as the statutory sentencing factors. It also told Smith he could appeal his conviction, but did not mention the waiver of his right to appeal his sentence.

On appeal, the Fourth Circuit vacated Smiths’ sentence and remanded for resentencing before a different district court judge. Smith did not argue that the deficiencies in his plea colloquy rendered his guilty plea invalid, but that they did render the appeal waiver invalid. The court agreed, concluding that an appeal waiver is severable from the rest of the plea agreement. In this case, the district court’s failure to adequately inquire into Smith’s understanding of the waiver, combined with his “history of severe mental illness and his minimal education” rendered the waiver unknowing and involuntary. The court also took the district court to task for repeatedly failing to comply with Rule 11 proceedings, usually in cases with appeal waivers that effectively insulated proceedings from review. The court vacated Smith’s sentence, as the Government conceded it was procedurally flawed, and remanded for sentencing before a different judge.

Congrats to the Defender office in Eastern North Carolina on the win!

Failure to Investigate Lease Related to Premises Enhancement Not Ineffective Assistance of Counsel

US v. Powell: In 2016, Powell pleaded guilty to a drug conspiracy involving more than 100 grams of heroin. At sentencing, the issue was whether he would be given a two-level Guideline enhancement for maintaining a premises for the purpose of distributing a controlled substance based largely on a statement from one of Powell’s codefendants, Wilson (also a relative). Wilson testified that she bought drugs from Powell at his home and once witnessed someone deliver a kilogram of heroin there. Powell’s counsel cross examined Wilson, damaging her credibility. The district court overruled Powell’s objection, applied the enhancement, and imposed a sentence of 300 months (below the Guideline range of 360-480 months).

Just a few months later, Powell filed a §2255 motion arguing that his counsel had rendered ineffective assistance at sentencing. Specifically, he argued that he told counsel to investigate the lease at the home, which would prove that Powell did not lease the home during the time Wilson testified she bought drugs from him. Counsel disputed ever getting that information. The district court concluded that there was no deficient performance in failing to track down the lease and, even if there was, Powell suffered no prejudice because the enhancement does not turn on whether the defendant owned or leased the property in question.

On appeal, the Fourth Circuit agreed and affirmed the denial of Powell’s §2255 motion. The court agreed that counsel’s performance was not deficient, given the numerous other ways that he was able to challenge the enhancement (and Wilson’s testimony). It was not enough that the lease might have further degraded Wilson’s testimony. The court also concluded that Powell “overstates the importance of the lease” given that Wilson had not testified that Powell leased or owned the home, only that she bought drugs from him there. It was “not irrelevant,” but “was far from determinative.” In addition, the record shows that the enhancement would have applied, regardless.

Defendant Cannot “Cause” Production of Videos Already In Existence

US v. Avila: Avila pleaded guilty to multiple counts of receiving or distributing child pornography. The probation officer recommended that a Guideline cross reference apply because Avila’s conduct “involved causing . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” Avila objected, arguing that the videos at issue had already been made by the minors and thus he had not “caused” them to be produced. The district court disagreed and imposed a sentence of 132 months (below the 168-210 month Guideline range).

On appeal, the Fourth Circuit vacated Avila’s sentence. The court held that where, as here, the Government proceeded only on the theory that the defendant had “caused” videos to be produced, the fact that they had been produced prior to the defendant’s request for them prevented the cross reference from applying. Specifically, there was no finding from the district court that “at least one victim made sexually explicit videos after and in response to Avila’s request.”

Congrats to the Defender office in Western North Carolina on the win!

Court Clarifies Batson Standard of Review in Affirming Convictions

US v. Parada: Parada and his codefendants were charged “with various racketeering offenses related to their alleged involvement with MS-13.” They objected to the Government’s strike of two Black potential jurors under Batson, but the district court concluded the Government had non-discriminatory reasons for the strikes. After deliberations began a juror contracted COVID, leading the district court to conclude the trial with only 11 jurors (over Parada’s objections). Parada and codefendants were convicted on nearly every charge against them with most ultimately receiving life sentences (except Parada, who received 50 years in prison).

On appeal, the Fourth Circuit affirmed Parada’s convictions. As to the Batson issue and “cognizant of our limited role at this juncture,” the court could not “discern any clear error on the record before us.” The explanations given by the Government for striking the jurors met the necessary standard, which does not require that they be “persuasive or plausible – just facially neutral.” As to proceeding with only 11 jurors, the court noted that both Rule 23(b) and precedent “explicitly permit the course of action taken by the district court” and nothing in the record showed its decision was an abuse of discretion.

Ruan Error Is Not Prejudicial Given Other Evidence In Record

US v. Naum: Naum and other doctors were contracted by a drug treatment center (run by a nurse and a musician) to provide care, although they had full-time jobs elsewhere. The nurse, who pleaded guilty and cooperated with investigators, used Naum’s DEA numbers to prescribe controlled substances to patients (after Naum had seen them on a first visit). Naum and the others were charged with conspiracy as well as substantive counts of unlawful distribution of controlled substances. Naum testified and admitted he was aware of the nurse’s actions and continued to sign off on charts “because he was concerned that if stopped her, patients might get medication on the street or overdose.” Naum was convicted of conspiracy and four substantive counts.

The Fourth Circuit initially affirmed Naum’s conviction, but the Supreme Court remanded in light of its decision in Ruan. On remand, the Fourth Circuit again affirmed. The court did reject the Government’s attempt to rely on invited error, given that the instructions that were erroneous post-Ruan were correct at the time. The court also rejected Naum’s attempt to avoid plain error review based on evidence he introduced that could support post-Ruan instructions, concluding that “attempting to introduce evidence at trial does not preserve an objection to jury instructions.” Applying plain error, the court found error that was plain, but did not affect Naum’s substantial rights, in light of the record developed at trial.

Co-Defendant Can Continue to Assert Fifth Amendment at Defendant’s Resentencing

US v. Oliver: In 2008, Oliver and Brown robbed a convenience store (Brown did the robbery, Oliver drove getaway) and were charged with conspiracy, attempt to commit Hobbs Act Robbery, and two counts of using a firearm in connection with a crime of violence. They were convicted on all counts, with Oliver being sentenced to 630 months and Brown 612 months.

In the wake of Johnson and its progeny, Oliver filed a §2255 motion arguing that his firearm convictions were no longer valid because neither count involved a valid predict “crime of violence.” At resentencing, Oliver called Brown to testify, thinking he would recant prior testimony about Oliver’s role in the robbery. Instead, Brown, who still had an appeal of his own pending, invoked his Fifth Amendment right to remain silent. The district court ultimately sentenced Oliver to 480 months in prison.

On appeal, the Fourth Circuit affirmed Oliver’s sentence. Oliver’s primary argument was that the district court had erred by allowing Brown to invoke the Fifth Amendment because Brown’s pending appeal related only to his sentence. The court disagreed, noting Brown’s counsel’s explanation that testimony about roles in the offense could lead to adverse consequences at resentencing. In light of that, the district court did not abuse its discretion by allowing Brown to invoke the Fifth Amendment.

Forced Labor Statute Applies to Family Relationships

US v. Chaudhri: This case involves a mother, Aman, and her two adult children, Nauman and Rehan. Aman arranged for another of her sons, Salman, to marry MB, who at the time lived in Pakistan. After a wedding there, MB came to Virginia to live with Salman’s family (Salman himself, a doctor, was frequently living in other states while working). Over the next 15 years, Aman and the others largely treated MB like a servant, requiring her to do chores and home maintenance (in addition to care of her own children), punctuated by verbal and physical abuse. As a result, they charged with and convicted of conspiracy to commit forced labor (all three), forced labor (Aman and Rehan), and document servitude (Aman).

On appeal, the Fourth Circuit affirmed their convictions. The defendants’ primary argument was that the district court erred in denying motions for judgements of acquittal because “the federal forced labor statute . . . does not apply to familial relationships like the one here.” Rather, the evidence showed “family domestic violence and abuse, a matter of traditional state law concern.” The court disagreed, holding that the “statutory language is broad” and “makes no exceptions for family relationships,” noting that there could be “no dispute” that MB was required to provide “labor or services” in the household. The court distinguished a case that involved children providing services and also concluded that the statute was not unconstitutionally vague.

Judge Berner, joined by Judge Thacker, wrote a concurrence emphasizing that the majority holding “aligns fully with the purpose of the Thirteenth Amendment, the promise of which the forced labore statute was enacted to implement.”

Court Affirms Supervised Release Revocation Based on Hearsay Testimony

US v. Williams: Williams was serving a term of supervised release following 1999 drug convictions in 2023 when a woman he had been living with contacted police. She alleged, during an in-person interview, that, after an argument, Williams had strangled her and “slapped her repeatedly.” She provided pictures of injuries taken on her cell phone (supplemented by pictures taken by police). She provided the same allegation (and evidence) to Williams’ probation officer, who sought to have his term of supervised release revoked.

At a revocation hearing months later (it’s not clear why it took so long), the complaining witness did not appear. After hearing testimony from the police officer who took her statement (as well as body camera footage of the interview) and other evidence, the district court ordered briefing on whether it could consider those statements. At a second hearing, the district court concluded that the statements were admissible, holding that the Government showed good cause based on its attempts to contact the complainant and that the “totality of the evidence” showed her statements were reliable. The court concluded that Williams violated his conditions of supervised release, revoked that term, and imposed a sentence of 24 months in prison (followed by 12 more months of supervised release).

On appeal, the Fourth Circuit affirmed the revocation and sentence. The court concluded that the district court did not abuse its discretion in concluding that the complainant’s statements were admissible. Unlike the district court in Wheeler, the district court here did recognize the need for balancing the interests of the parties and did so. Furthermore, there was no abuse of discretion in its conclusion that the Government had done enough to try and secure the complainant’s presence at the revocation hearing.

Court Clarifies District Court Authority When Appeal Is Taken

US v. Armstrong: In 2005, Armstrong was sentenced to 384 months in prison following a conviction for two counts brandishing a firearm in connection with a crime of violence, which were “stacked” as required by law at the time. Armstrong later filed a motion for compassionate release, arguing that the disparity between that sentence and the sentence he would get in wake of the First Step Act’s change to the stacking rules constituted “extraordinary and compelling reasons” for relief. The district court denied the motion, citing Armstrong’s criminal history and “exceptionally violent” conduct.

Armstrong both appealed that decision and, while the appeal was pending, filed a motion for reconsideration. The district court denied that motion on the merits and Armstrong appealed from that decision as well.

On appeal from the denial of the motion to reconsider, the issue was whether the district court had the “authority to deny Armstrong’s motion . . . given that his appeal of the district court’s initial order was pending in this court.” The court concluded that it did, pursuant to Rule 37(a) of the Rules of Criminal Procedure, which gives district courts authority to deny or defer consideration of a motion in such circumstances, but not grant it. If the district court would grant it if it had jurisdiction, it could say so and the parties could seek remand from the court of appeals. The court rejected the Government’s reliance on pre-Rule 37 caselaw that held otherwise.

Courts Must Consider Knock-On Effects of Caused by Retroactive Guideline Amendments

US v. Barrett: Barrett was sentenced for drug offenses in 2019. At that time, her final offense level was 33 and Criminal History Category II. She was given two criminal history “status” points for being on probation when committing the instant offense, plus one point for a prior sentence. She received a sentence of 168 months, in the middle of the resulting Guideline range.

In 2023, when the amendment to the status points provision of the Guidelines was made retroactive, the probation office determined that Barrett was eligible for a reduced sentence, as without the two status points she was now in Criminal History Category I with a reduced Guideline range. The Government agreed. Barrett agreed that she was eligible, but argued that her new Guideline range was even lower because now that she only had one criminal history point she was eligible for a two-level offense level reduction under the “safety valve” provision. The district court disagreed and reduced her sentence to 150 months (the middle of the new Guideline range it calculated) rather than 120 months (the middle of the new range Barrett had calculated).

On appeal, the Fourth Circuit vacated the district court’s decision and remanded for additional proceedings. It rejected the Government’s argument that the only thing the district court could do with a retroactive Guideline amendment was look at that particular change in the Guideline calculus. In situations like this, where the retroactive Guideline change has knock-on effects to other calculations, those must be applied as well. The court remanded to allow the district court to make findings as to whether Barrett satisfied the other safety valve requirements.

Congrats to the Defender office in WDVA on the win!

Firearm Made In Same State of Prosecution But That Then Travelled Through Several States Triggers §922(g)(1) Liability

US v. Ervin: Ervin possessed a rifle in North Carolina while he was a convicted felon. On advice of counsel, he pleaded guilty without a plea agreement and he was sentenced to 188 months under the Armed Career Criminal Act. Prior to his plea, Ervin’s counsel had been provided with an ATF report showing that the rifle had been made outside North Carolina, but Ervin later learned that it had actually been made in North Carolina.

Ervin filed a §2255 motion to vacate his conviction, arguing he received ineffective assistance of counsel because his attorney failed to adequately investigate the firearm. In response, the Government provided another ATF report that showed that while the rifle was made in North Carolina, it had been “shipped to a wholesaler in Louisiana before returning to North Carolina” via a retail outlet in Georgia The district court concluded that was sufficient to meet the interstate commerce element of the offense and, therefore, there was no prejudice. The district court denied Ervin’s §2255 motion.

On appeal, the Fourth Circuit affirmed. The court agreed with the district court that even if Ervin’s lawyer should have investigated the origin of the firearm there was no prejudice because evidence showed that it had been possessed “in or affecting commerce” as §922(g)(1) requires. Such a conclusion was required by Supreme Court precedent regarding a prior version of the statute. The court also reached the same conclusion regarding the definition of “interstate or foreign commerce,” concluding that it did not alter the analysis.

Murder Cross Reference Properly Applied in Felon-in-Possession Case

US v. Ellis: Ellis, a previously convicted felon, had a “tumultuous” relationship with his “former fiancé,” who had unsuccessfully tried to extricate Ellis from the life of her and her son, Gross. As Gross left his mother’s South Carolina apartment to go get his car, Ellis confronted him at the bottom of a stairwell. After a brief, and escalating, conversation, Ellis “pulled out a gun and shot Gross once in the abdomen” from about ten feet away. Ellis said it was an accident. After his guilty plea to being a felon in possession of a firearm, the district court applied a Guideline cross reference for attempted murder and sentenced Ellis to 97 months, the top of the resulting Guideline range.

On appeal, the Fourth Circuit affirmed Ellis’ sentence. First, the court concluded that Ellis could not have raised a defense of intoxication for the cross reference. It could apply if Ellis had committed either federal or state attempted murder and in South Carolina and South Carolina only allowed intoxication as a defense if it was the result from a mental condition (which Ellis never asserted). Second, the court could not conclude that the district court clearly erred in crediting the testimony of Gross about the event, over Ellis’ “self-serving” statements, that the shooting was intentional.

Court Vacates Upward Departure Based on Dissimilar Conduct

US v. Nixon: Nixon pleaded guilty to being a felon in possession of a firearm. While awaiting sentencing he “committed several acts of violence, including multiple stabbings” in custody. Nixon’s attorney procured an evaluation from a psychiatrist who detailed Nixon’s mental health issues and how they helped explain his conduct while in custody. The Government sought an upward departure from the 41-51 month Guideline range to the statutory maximum of 120 months to account for his “criminal history,” which included the incidents that occurred prior to sentencing. The district court granted the motion, jumping directly from a Criminal History Category III to VI and an elevated offense level to produce a Guideline range of 100-120 months, then imposed a sentence of 114 months. In doing so, the district court rejected Nixon’s expert opinion, concluding “I don’t need to hear from her. I read her report. I don’t find it credible.”

On appeal, a divided Fourth Circuit vacated Nixon’s sentence, for multiple reasons. First, the court concluded that the district court erred by relying on Nixon’s conduct while awaiting sentencing as a basis for the departure, as it was not based on “prior similar adult criminal conduct” to either conduct at issue in his offense or conviction or criminal history. The court stressed that the Government could have prosecuted Nixon separately for that conduct but, having decided not to, could not use the same conduct to enhance Nixon’s sentence. Second, the district court procedurally erred in its departure, failing to do the step-by-step analysis required, going up one Criminal History Category at a time (although it recognized such a requirement was necessary). Finally, the court held that the district court erred by disregarding Nixon’s expert report given that it was uncontested by the Government, leading to a clearly erroneous finding that Nixon’s conduct was not impacted by it.

Judge Harris, dissented, arguing that the limitation in the Guidelines related to the departure was not so narrow, that the district court both recognized the need for a step-by-step process and said it did so, and there was no clear error in the treatment of the expert report. Finally, Judge Harris argued that any error was harmless, as the district court said it would impose the same sentence regardless of the departure.

Court Vacates Supervised Release Revocation Based on Unconfronted Hearsay

US v. Wheeler: Wheeler was on supervised release when he had an altercation in a hotel lobby with Mobley, who accused Wheeler of assaulting and strangling her. After his probation officer sought a modification as a  result, the district court “ordered the probation officer to initiate supervised release revocation proceedings instead.” Mobley did not appear for the revocation hearing after failed attempts by the probation officer to contact her and successfully serve a subpoena on her. Over Wheeler’s objection, the district court proceeded with the revocation hearing, with the Government presenting several witnesses, including some who repeated Mobley’s allegations as related to them. Wheeler’s term of supervised release was revoked and he was sentenced to six months in prison and additional supervised release, but was released on bond because, the district court found, “this was a close case” and Wheeler “should have an opportunity for his cause to be heard” on appeal.

On appeal a divided Fourth Circuit reversed the revocation of his term of supervised release. Central to the appeal was whether the district court erred by considering Mobley’s hearsay statements after her failure to appear to testify. The court concluded that it had because it did not properly apply the balancing test required for determining whether such testimony is admissible. The district court is required to balance “the defendant’s interest in confrontation against the Government’s good cause,” which did not occur here. The court also noted that the burden is on the Government to show good cause to admit evidence, not on the defendant to show the evidence is inadmissible. The court also included that the Government did not provide a sufficient explanation for its failure to secure Mobley’s presence and that neither error was harmless.

Judge King’s dissent reads, in its entirety: “Because I am fully satisfied that the very able presiding judge did not abuse his broad discretion in making the challenged evidentiary ruling, I would affirm the judgment of the district court. As a result, I respectfully dissent.”

Congrats to the Defender office in WDNC on the win!

Court Affirms Convictions, Sentences, Versus Various Challenges

US v. Williams: A marijuana supplier disappeared and suspicion fell on Scott Williams and his son, Taeyan, who “operated a large-scale enterprise selling drugs to college students” supplied by the missing supplier. His body was never found, but a search of Scott’s home uncovered a large amount of cash, firearms, sizable amounts of multiple kinds of drugs, and “a drug ledger found under the mattress in Scott’s room.” The Williams’ were charged with numerous counts, including conspiracy to distribute drugs and kidnapping resulting in death. A jury found them guilty of some drug counts (but acquitted on the kidnapping, among others) and Scott guilty of possession with intent to distribute methamphetamine and conspiracy to destroy evidence. Scott was sentenced to a term 276 months in prison, Taeyan to 150 months.

On appeal, the Fourth Circuit affirmed the Williams’ convictions and sentences. Taeyan’s only argument was that there was insufficient evidence that he possessed with intent to distribute the marijuana and cocaine found in Scott’s home. The court disagreed, noting the difficult standard of review (“it is not enough for Taeyan to assert a non-frivolous argument” or show “there is some evidence that supports his position”), and pointing to evidence of his constructive possession of the drugs, noting that whether Taeyan lived there or not (he claimed he did not) was not determinative.

As to his conviction, Scott argued that the evidence found in his home should have been suppressed because the search warrant was executed without knocking. Recognizing this was not a basis for suppression under Hudson v. Michigan, Scott relied on 18 U.S.C. § 3109 as the basis for exclusion. The court did not decide the issue, concluding instead that the police had exigent circumstances that justified the no-knock search in the first place. As to his term of imprisonment, the court refused to decide that Scott was eligible for a two-point reduction under the “zero point” amendment to the Guidelines, leaving it for Scott to pursue via a § 3582(c)(2) motion. Finally, the court concluded that a condition of supervised release requiring Scott take part in mental health treatment, which left to the probation officer the nature and location of such treatment, was not an improper delegation of judicial authority.

No Error Where District Court Asked Questions During Allocution, Wouldn’t Let Defendant Read Letter to His Mother

US v. Jennings: Jennings pleaded guilty to being a felon in possession of a firearm after police arrived at a party responding to a noise complaint and heard shots fired (recovered casings matched the gun Jennings had in his possession). At sentencing, Jennings allocated by speaking “at length about how alcoholism had impacted his life and contributed to his criminality,” after which he “read a poem he had written to the court,” as well as a “prepared speech wherein he thanked his defense attorney and again explained how alcohol contributed to his criminal history.”

The district court interrupted Jennings twice to ask clarifying questions. When Jennings said he “don’t hurt or bother or disrespect random people,” the district court interjected “you shot somebody . . . What does it mean you don’t bother random people?” Then, during Jennings’ poem, the district court stopped him to ask, after one particular line, “Wait a minute. Did you just say emotion, clothes, weather, money?” The district court asked more questions, after which Jennings “asked to read a letter he had written to his mother.” The district court declined (“you’ll see your mother”) and imposed a statutory maximum sentence of 120 months in prison.

On appeal, the Fourth Circuit affirmed Jennings’ sentence. It rejected the argument that the district court’s questioning, and refusal to let Jennings read the letter to his mother, was an abuse of discretion that restricted the right to allocution. The court concluded that the district court’s questions did not “terminate” the allocution and that the district court asked “clarifying questions” and “allowed [Jennings] to continue speaking after these questions and did not cut him off.” As for the letter, it was “not addressed the court” and did not include anything that Jennings had not already said.

Extensive Upward Variance Justified by Nature of Offense, Prior Criminal History

US v. Davis: Police tried to stop Davis for driving while using a “handheld device,” but he didn’t stop and eventually crashed. While being transported following his arrest, Davis “repeatedly complained about his handcuffs” and “continued to move around in the back seat.” After repeated inquiries whether he had anything dangerous on him he admitted to being in possession of a firearm (which officers then recovered). Davis pleaded guilty to being a felon in possession of a firearm.

The PSR initially calculated Davis’ advisory Guideline range to be 57 to 71 months, largely due to prior convictions that were deemed “controlled substance offenses.”  Davis objected, arguing under Campbell that his prior offenses were not controlled substance offenses. The probation officer agreed and revised the advisory Guideline range to 21 to 27 months. At sentencing, the Government argued for a variance up to the 120-month statutory maximum based on Davis’ extensive criminal history, his conduct in fleeing and attempting to access the concealed firearm, and the fact that he would have been exposed to sentencing under the Armed Career Criminal Act had the Government charged it in the indictment. Davis argued for a sentence at the bottom of the Guideline range. The district court did vary upward, but not to the extent requested by the Government, imposing a sentence of 72 months in prison.

On appeal, the Fourth Circuit affirmed Davis’ sentence. Davis argued that his sentence was both procedurally and substantively unreasonable, largely because the district court did not adequately address mitigating arguments related to his traumatic upbringing and the limited nature of his current conduct (simple possession of a firearm for no “nefarious purpose”). The court disagreed, concluding that the district court adequately addressed those arguments but either rejected them (the nature of the offense) or found they were outweighed by other factors. On Davis’ argument about his upbringing, which was based around adverse childhood experiences (“ACEs”), the court criticized Davis for not making the ACE argument more specific to his prior conduct.

“Standard” Conditions of Probation Affirmed After Procedural, Substantive Challenges

US v. Notgrass: Rhonda Notgrass and her husband, Robert, pleaded guilty to misdemeanor fraud after fraudulently obtaining unemployment payments during the COVID lockdown. They pled pursuant to a plea agreement in which they waived their right to appeal their “sentence of imprisonment, fine or term of supervised release” or the “manner in which the sentence was determined.” They were sentenced to 60 months probation, which included numerous conditions, to which they objected to three: (1) that they not leave the district without permissions, (2) that they not possess dangerous weapons (although Rhonda was allowed to possess pepper spray or mace), and (3) that if unemployed they register with Work Force West Virginia (by the time of sentencing, they had relocated to Missouri). Robert additionally objected to a condition mandating participation in mental health treatment if ordered by his probation officer. The district court imposed all of them, largely on the basis that they were “appropriate.”

On appeal, the Fourth Circuit affirmed the imposition of the conditions of probation. First, the court denied the Government’s motion to dismiss the appeal under the appeal waiver from the plea agreement. That, the court held, was explicitly limited by its plain language to sentences of imprisonment and supervised release and made no mention of probation (or conditions thereof). The court then turned to the procedural reasonableness of the contested conditions, concluding that the explanation provided by the district court was adequate. Although none of the conditions were mandatory under the statute, the first two were “standard” conditions set forth in the Guidelines and thus required little explanation from the district court when imposed. The other conditions were more specifically related to the convictions and Robert’s history and characteristics, and thus adequately explained. For largely the same reasons (i.e., they were “standard” conditions and connected to the offenses and history) the court also found that the conditions were substantively reasonable.

NOTE: I was counsel for Rhonda Notgrass in this appeal.