Court Affirms Wire Fraud Convictions

US v. Golestan: Golestan (a naturalized United States citizen) was founder and CEO of Micfo, a company that provided Internet services. Starting in 2014, the company fictitious other companies to acquire lots of assigned IP addresses for resale, eventually obtaining 1.3 million of them and over $3 million in profits. Eventually, Golestan and Micfo were both charged with numerous counts of wire fraud. Golestan, both for himself and Micfo, wound up pleading guilty to all counts midway through a bench trial. After his motion to withdraw his guilty pleas were denied, Golestan was sentenced to 60 months in prison and Micfo to 30 days probation.

On appeal, the Fourth Circuit affirmed both Golestan and Micfo’s convictions, concluding that the district court did not err in denying his motion to withdraw the guilty pleas for several reasons. First, the court held that while the district court did violate Rule 11(b)(1)(O) by not informing Golestan that “if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future” as part of his plea colloquy. However, the error did not impact Golestan’s substantial rights because the rule only applies to non-citizens, which Golestan was at the time. Second, the court concluded that the Supreme Court’s recent decision in Ciminelli did not undermine the wire fraud convictions as it involves a theory that was not at issue in his case. Finally, the court held that the record supported the conclusion that Golestan had the authority to enter a guilty plea on Micfo’s behalf.

State Court’s Unreasonable Factual Conclusions About Use of Attorney/Client Privileged Material Required Remand

Kaur v. Warden: In October 2013 a woman was shot and killed outside her home in Maryland. Arrested shortly thereafter in Tennessee (where they lived) were her ex-husband, Taneja, and his new wife, Kaur, who were both charged with first degree murder. At a joint trial, both were convicted, on the state’s theory that one or the other had done the actual shooting.

Kaur filed a motion for new trial, along with an affidavit from her trial attorney, arguing that she had received ineffective assistance of counsel, particularly because she had been incorrectly informed that she could not testify on her own behalf due to marital privilege. Proceedings resulting in a new trial ensued, during which Kaur was required to disclose “all investigative and trial files belonging to Kaur’s defense counsel,” which disclosed the possibility of a piece of evidence (a second wig potentially used during the shooting) about which the state did not know. She also testified at length about what her trial testimony would have been. The district court granted Kaur’s new trial motion.

However, the trial court allowed the same prosecutors who appeared at the first and second trials to conduct the evidentiary hearing, meaning that they had considerable knowledge of attorney/client protected facts produced during that proceeding. The trial court entered a weak protective order that largely left the issue of just want information the state might be able to use at the second trial up in the air. At the second trial, the state shifted its theory to Taneja being the shooter and Kaur acting as an accomplice, relying heavily on the second wig. Kaur decided not to testify at the second trial out of concerns that she could be cross-examined based on privileged material that had come out during the hearing. Kaur was again convicted.

The Maryland appellate court affirmed Kaur’s conviction, assuming (but not deciding) that her Sixth Amendment rights had been violated, but concluding she had not been prejudiced. Kaur sought §2254 relief in the district court, which denied her motion, but did issue a certificate of appealability on the issue of whether Kaur’s Sixth Amendment right to counsel was violated.

On appeal, the Fourth Circuit vacated the district court’s order and remanded for further proceedings. Looking to the state appellate court decision, the court concluded that the state court was based on “an objectively unreasonable determination of the facts in light of the evidence presented in the state court proceedings.” Specifically, the court found error with two conclusions: First, that the disclosure of the second wig evidence actually helped Kaur’s case, rather than strengthened the state’s case (the state referenced the second wit 13 times in closing). Second, that Kaur had not adequately set forth what she would have testified about at the second trial so it was impossible to determine how it might have impacted the trial. However, because the state court had assumed, rather than deciding, whether a Sixth Amendment violation had occurred, the court remanded for an initial determination on the merits of that claim.

Career Offender Predicate Comparisons Made at Time of Sentencing, Not Time of Original Conduct

US v. Nelson: Nelson pleaded guilty to a drug offense and being a felon in possession of a firearm. At sentencing, the district court classified him as a career offender based on a 2017 Virginia drug distribution conviction and a 2012 federal conviction for distribution of crack. He was sentenced to 151 months in prison, the bottom of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed Nelson’s sentence, concluding that both prior convictions were “controlled substance offenses,” but for different reasons. As to the Virginia conviction, the court rejected Nelson’s argument that the statute at issue there was similar enough to the West Virginia one in Campbell for that case to apply. Instead, the court found it closer to the federal statute it concluded in Groves was a controlled substance offense. As to the federal conviction, the court rejected Nelson’s argument that it was no longer a controlled substance offense because it covered a pair of substances (a cocaine derivative and “hemp-type marijuana”) that are no longer covered by Schedule I or II. Relying on prior precedent, and the Supreme Court’s recent decision in Brown, the court concluded that a “time of sentencing” test is appropriate and so long as “every substance that could have supported his 2012 conviction was in schedule I or II at the time of his present sentencing.” Because Nelson’s prior conviction involved crack cocaine, which is still covered, the conviction counted as a controlled substance offense.

Officers Searching for Subject of Arrest Warrant Were Able to Detain Defendant Who Was Not That Person

US v. Morillo-Lopez: Members of a state-federal task force had a warrant to arrest a person suspected of armed robbery and information that he would be at “one of a few specific residences” in the same block. Officers were armed with a photograph and physical description, Surveilling the block, officers saw two or three men “at least one of whom” matched the description of their target, leave one of the homes and get into a Ford Explorer that then drove away. The Explore stopped at a convenience store and picked up two more men, then went to a nearby gas station.

There officers approached and found M-L in the driver’s seat of the Explorer, with another man in the back seat. An officer “did not believe the picture eliminated M-L” as the target of the warrant and had a brief interaction with him, during which he discovered a firearm in a “cross-body satchel” that was “tightly affixed” to M-L’s body. Another officer with a “fingerprint identification machine” confirmed that the backseat passenger, not M-L, was the wanted man. Nonetheless, because M-L was in the United States unlawfully he was charged with unlawful possession of a firearm. After his motion to suppress was denied, M-L was convicted at trial and sentenced to 8 months in prison.

On appeal, the Fourth Circuit affirmed M-L’s conviction. M-L’s primary contention was that his seizure and search of his satchel violated the Fourth Amendment because there was no evidence that he was engaged in any ongoing criminal activity. The court rejected that argument, holding that because the officers were executing an arrest warrant “there is no additional requirement that officers also have reasonable suspicion of then-ongoing criminal activity.” That M-L was the wrong guy did not make the seizure unlawful, as officers had sufficient evidence to “eliminate a substantial portion of innocent travelers.” The court also found no clear error in the district court’s conclusion that M-L consented to the search of the satchel. The court also held that the evidence was sufficient to sustain M-L’s conviction and that its prior precedent rejecting a Second Amendment challenge to 18 U.S.C. § 922(g)(5) was unchanged by Bruen and Rahimi.

District Court’s Noting of “Exceptions” by Defense Counsel at Suppression Hearing Did Not Restart Speedy Trial Act Clock

US v. Myrick: Myrick fled from a traffic stop, eventually crashing into a tree before running away. In the car, officers found drugs and guns. They tracked down Myrick (via DMV paperwork in the car) and arrested him. Initially, Myrick was charged only with possession with intent to distribute methamphetamine, but a superseding indictment returned four months later added charges related to the firearms and cocaine. On the day of trial, Myrick filed a pro se motion arguing that his Speedy Trial Act rights had been violated. The district court denied the motion, concluding that sufficient time had been excluded from STA calculations to render the trial timely. Following Myrick’s conviction, his (new) counsel filed a renewed STA motion, arguing that the 16 days between the conclusion of a pretrial motions hearing and the district court’s written ruling on the motion to suppress should not be excluded from the STA calculations. The district court denied the motion and sentenced Myrick to 270 months, the bottom of the calculated Guideline range.

On appeal the Fourth Circuit affirmed Myrick’s convictions and sentence. The primary argument involved the STA issue which, as the court pointed out, involved only the original methamphetamine charge, not the two later charges in the superseding indictment (for which trial was timely whatever was excluded from the STA calculations). The court rejected Myrick’s argument that the 16 days between suppression hearing and written opinion shouldn’t be excluded because the district court had actually denied the motion to suppress at the hearing itself. Myrick pointed to the district court taking note of a pair of “exceptions” by defense counsel related to particular issues at the hearing, but the court concluded those were not the same as a ruling on the motion to suppress itself, which only came in the written opinion. Therefore, the 16-day gap should be excluded.

Defendant Could Not Withdraw First Two Guilty Pleas After Third Case Uncovers Search Warrant Anomaly

US v. Milam: First, Milam, “the leader of the Aryan Kings” gang, was charged with being a felon in possession of a firearm after the execution of a search warrant at his home uncovered drugs and multiple firearms. He pleaded guilty without a plea agreement. Second, months later (and after his initial plea), Milam was charged in a second indictment with drug offenses related to the search. He also pleaded guilty to that indictment, but pursuant to a plea agreement.

While in custody awaiting sentencing, Milam “began to receive drugs and other contraband” mailed to him from gang members disguised as “legal mail” bearing the return address of Milam’s attorney. This blew up when a package was “returned” for insufficient postage to his lawyer (who opened it, found drugs, and promptly withdrew). Milam also assaulted “multiple sheriff’s deputies” during an incident at the jail. Third, therefore, Milam was charged with assaulting persons assisting federal law enforcement. During the pendency of that case, Milam’s new lawyer noted that the search warrant underlying the first two cases was missing every other page. When asked the Government provided a complete copy (there had been a scanning error during the initial discovery prep). Milam filed a motion to withdraw his prior guilty pleas, which was denied. He then pleaded guilty to the assault charge without a plea agreement. Ultimately, he was sentenced to 300 months in prison, a variance down from the advisory Guideline range of 360 months to life.

On appeal, the Fourth Circuit affirmed Milam’s convictions and sentence. The court held that the district court properly denied Milam’s motion to withdraw his first two guilty pleas. Not only were the Rule 11 hearings sufficient to show that Milam entered his pleas knowingly, but the late revelation of the search warrant did not undermine that. Particularly because the full search warrant and affidavit only made any potential suppression argument weaker. The court also agreed that Milam’s first lawyer had not been ineffective, crediting her testimony that she discussed the warrant issue with Milam, but that he was determined to enter a quick guilty plea in hopes of heading off the Government filing additional charges. The court also held that there as no error in denying Milam credit for acceptance of responsibility, although the Government agreed to it in the second-charge plea agreement, given Milam’s later conduct. Finally, the court concluded that Milam’s sentence was substantively reasonable.

Court Vacates Prison Contraband Conviction on Jurisdictional Grounds

US v. Perez: Perez was incarcerated at FCI Petersburg for possessing child sex abuse material when he was found in possession of images he had made involving children engaging in sexual acts that “looked almost real.” As a result, he was charged with producing and possessing obscene visual depictions of the sexual abuse of children. At the conclusion of his bench trial, Perez argued that the Government had not proven that FCI Petersburg was “in the . . . territorial jurisdiction or possession of the United States” and, therefore, he should be acquitted. The district court disagreed, taking judicial notice that FCI Petersburg “a federal prison, falls under federal jurisdiction.”

On appeal, a divided Fourth Circuit reversed Perez’s conviction and remanded for additional proceedings. As an initial matter, the court was required to determine whether the jurisdiction hook involved was a matter to be resolved by the factfinder or the court as a question of law. The court concluded that it was mixed, with factual determinations about what occurred where being factual issue, but questions about the impact of that being legal questions for the court. While the district court did not error in that manner, the court did conclude that it erred in not doing the required three-step analysis for determining whether something is within federal jurisdiction. Because that was, ultimately, a legal question for the court to decide, the court ordered the case remanded for additional proceedings on the issue.

Judge Wynn issued a short concurring opinion, emphasizing that the fact/law issue would have been different if Perez has a jury trial. Had it been, “I doubt that we could remand this case without infringing upon Perez’s Sixth Amendment right to trial by jury.”

Judge Harris concurred in part and dissented in part, agreeing that the district court did not do the proper three-step analysis, but arguing that because the Government “did not prove facts necessary to satisfy all the elements of the criminal offense with which Perez was charged,” his conviction must be reversed.

Congrats to the Defender office in the ED Virginia on the win! 

Defendant Did Not “Use Fire” During Domestic Violence Case By Attempting to Burn Dead Victim’s Body

US v. Florentine: Florentine kidnapped his wife, taking her from North Carolina to South Carolina before killing her. After she was dead, Florentine buried her body in a “makeshift grave” and set it on fire. In addition to being charged with interstate domestic violence resulting in death, use of a firearm, and obstruction of justice, Florentine was charged with use of fire to commit a felony (domestic violence). He unsuccessfully moved to dismiss that count, arguing that the domestic violence offense was complete prior to his use of fire. Florentine pleaded guilty to all four counts and was sentenced to a total of 360 months in prison – 240 months to be served concurrently on the first three counts, plus a consecutive 120-month sentence on the use of fire charge (the mandatory minimum).

On appeal, the Fourth Circuit reversed the district court’s denial of Florentine’s motion to dismiss, but ultimately concluded that resentencing was not required. The court noted that “the critical statutory issue in this appeal is determining when the commission of the predicate felony, interstate domestic violence . . . came to an end.” It rejected the Government’s argument that it was a continuing offense that extended to attempts to cover up the offense, concluding that the plain language of the statute shows that the offense ends when the victim of the domestic violence is dead. That is because the language of the statute is involves causing “a spouse [or partner] . . . to travel in interstate commerce” and “once a person has died, they are no longer anyone’s ‘spouse’ or ‘partner.’” As a result, Florentine’s conviction on that count had to be vacated. However, resentencing was not required, as the district court made clear at sentencing that if the use of fire count had been dismissed it would have imposed the same sentence (even though it would be an upward variance).

No Fourth Amendment Search in Drug Dog Sniff of Common Hallway Outside Apartment

US v. Johnson: Police suspected Johnson was selling drugs from his apartment in Maryland, but didn’t feel confident they had enough evidence to secure a warrant. With the permission of Johnson’s landlord, at 3am in the morning, an officer took a drug-sniffing dog to Johnson’s front door – on the second floor of the building, near the elevator. The dog alerted on the seam of Johnson’s door. Officers obtained a warrant and the resulting search uncovered drugs and related evidence. Johnson unsuccessfully moved to suppress, arguing that the dog sniff had violated the Fourth Amendment. He was convicted by a jury and sentenced to 150 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Johnson’s motion to suppress, concluding that the dog sniff was not a “search” for Fourth Amendment purposes. First, the court held that Johnson lacked an expectation of privacy because the dog’s sniff could detect only contraband, in which nobody has a legitimate expectation of privacy. Second, the court held that brining the dog to Johnson’s front door was not a trespass, as the dog remained in a common area accessed by numerous others.

Defendant “Used” Firearm that Was Visible in Vehicle During Kidnapping

US v. Faulls: Faulls kidnapped his “intimate partner,” following previous incidents of domestic violence, some of which involved a gun. As she was getting in Faulls’ truck she saw a gun in the back seat (the door handle had been rigged so she couldn’t get out). She forgo at least one chance to escape because she worried that Faulls would “go out and get that gun and maybe bring it in and hurt other people.” She eventually did escape, after which Faulls was arrested and the gun recovered from the bed of the truck. After being convicted on multiple offenses, Faulls was sentenced to 295 months in prison.

On appeal, the Fourth Circuit affirmed Faulls’ sentence. At issue was a two-level enhancement to his Guideline offense level for “use” of a dangerous weapon. Faulls argued that while the gun was present during the kidnapping, he never actually “used” it. The court disagreed, concluding that a gun is used when “it is employed to create a personalized threat of harm rather than to generally intimidate.” The enhancement does not require that the gun be pointed at a victim. Rather the “combined force” of the incidents that occurred “went beyond non-specified intimidation.”

Reversing Motion to Dismiss Based on Equal Protection Violation in Traffic Stop

US v. Moore: One evening in Richmond, police officers stopped three different vehicles that all had the same license plate number. The first two drivers were allowed to go. The third driver “fled, running several stop signs before crashing into the curb,” with the driver, Moore, then trying to escape on foot. Officers found a gun in the floorboard of the car and Moore was charged with being a felon in possession of a firearm.

Moore filed a motion to suppress in which he argued that the neighborhood in which he was stopped was home to “almost exclusively black residents” and that all the stops were pretextual. At a hearing, Moore presented evidence that “Black drivers were, on average, pulled over more frequently than White drivers.” In supplemental briefing Moore shifted his argument, arguing that the indictment should be dismissed “because the police officers had violated his Fourteenth Amendment right to equal protection by targeting him and other Black residents of the Fourth Precinct, using pretextual stops to search their cars.” An expert witness would confirm that Black drivers were pulled over much more frequently than White ones in Richmond, but admitted the data “revealed a ‘somewhat weak’ but still ‘important’ relationship between race and the likelihood of being pulled over.” He could not, however, determine whether any particular stop was a result of bias or profiling. The district court denied the motion to suppress, but granted the motion to dismiss, concluding that Moore had proven selective enforcement of traffic laws along racial lines and that “this selective enforcement led to his current charges.”

On appeal, the Fourth Circuit reversed the dismissal of the indictment against Moore. The court noted that in order to prevail on an equal protection claim Moore had to prove both a discriminatory effect in enforcement as well as that the enforcement was motivated by a discriminatory purpose. Going to the second factor, the court concluded that “there is a complete absence of evidence that the officers acted with discriminatory purpose,” much less the clear evidence required, noting that aside from the stop, that Moore fled. The expanded nature of the inquiry in the district court, bolstered by the statistical information, “was insufficient to show a discriminatory purpose.”

Court Affirms Denial of Compassionate Release in Carjacking Case

US v. Burleigh: In 2010, Burleigh (and another person) carjacked and kidnapped a driver of a recently-parked car, forcing him to withdraw money from multiple ATMs. Burleigh “punched” the victim “multiple times,” threatened to kill him and his family, as well as shoving a shotgun in the victim’s “mouth and forced him to suck on its barrel.” Burleigh pleaded guilty to being a felon in possession of a firearm and two §924(c) firearm counts. He was sentenced to a total of 545 months in prison (420 months derived from the §924(c) charges). In 2020, Burleigh filed a compassionate release motion based on his young age, rehabilitation while incarcerated, and the stacked §924(c) sentences. While recognizing Burleigh’s rehabilitation and the impact of the §924(c) charges, the district court noted that Burleigh was 24 years old when the offense was committed and concluded that a reduction was not warranted in light of the serious nature of that offense.

A divided Fourth Circuit affirmed the denial of Burleigh’s compassionate release motion. It concluded that the district court by “its express terms” considered the §924(c) disparity issue but “simply did not find compelling” the argument that Burleigh would get a lower sentence today, noting that it did not feel that the disparity warranted a reduced sentence. The court also concluded that the district court had properly considered Burleigh’s arguments in total, not just as separate individual bases for relief. Finally, the court found the district court’s discussion of the §3553(a) factors sufficient.

In dissent, Judge Gregory argued that the district court’s consideration of those issues was not sufficient and, therefore, the denial of Burleigh’s motion was an abuse of discretion.

Facial Challenge to §944(g)(4) Fails

US v. Gould: Between 2016 and 2019 Gould was (temporarily) committed to mental health facilities four times. In 2022, officers found a shotgun in Gould’s home. As a result, he was charged with possession of a firearm after having been “committed to a mental institution” under 18 U.S.C. §922(g)(4). Gould moved to dismiss the indictment, arguing that it violated the Second Amendment. The district court denied the motion and Gould pleaded guilty, ultimately being sentenced to time served plus three years of supervised release.

On appeal, the Fourth Circuit affirmed the denial of Gould’s motion to dismiss. Utilizing the two-step analysis from Bruen, the court first concluded that the applicable conduct at issue – Gould’s possession of  a shotgun in his home – fell within the confines of the Second Amendment. The court then held that §922(g)(4) was not a permanent disability because many states (including West Virginia, where Gould lived) had mechanisms to get relief from its provisions. In light of that, and considering the nature of Gould’s facial challenge, the court ultimately concluded that §922(g)(4) did not violate the Second Amendment, as historical authority showed longstanding regulations related to disarming dangerous peoples and the treatment of the mentally ill who would fall into that category.

NOTE: I was co-counsel on this case, along with my colleague Lex Coleman from the SDWV FPD Office.