Delay In Bringing Charges Didn’t Violate Due Process Without Proof of Government Bad Faith

US v. Minkkinen: Minkkinen and his codefendant, Sambasivam, were charged with numerous counts arising from allegations that they used proprietary accounting software to produce their own rival product (it’s more complicated than that, but that’s the gist). A whistleblower complaint started the investigations (criminal and internal) in 2016, but an indictment was not returned until August 2022. In the meantime, two key witnesses died and documents relevant to the case were destroyed by third parties. The defendants moved to dismiss, arguing that the delay in bringing the indictment violated their right to due process. The district court granted that motion.

On appeal, the Fourth Circuit reversed the denial of the motion to dismiss. In order to prevail on a due process claim for delay, defendants must show actual prejudice from the delay, then the court must balance “the prejudice of the defendant with the Government’s justification for delay.” Here, the court “accepted for the sake of argument” that the delay prejudiced the defendants. Nonetheless, their due process claim failed because the Government’s reasons for the delay were not rooted in bad faith or an attempt to disadvantage the defendants. The court agreed with the district court’s findings (which the defendants did not dispute) that “the Government’s delay was the product of a ‘prolonged investigation’ untainted by any ‘improper motive.’” But Supreme Court and Fourth Circuit precedent requires more, which the defendants could not show on this record.

Supervised Release Search Condition Did Not Allow Warrantless Search of Property Occupied by Non-Supervisee

US v. Perez: Perez was on supervised release, one of the conditions of which was the he submit himself or property to searches directed by a probation officer. He owned a home on Teal Drive, which he rented to his girlfriend, Coleman (signed lease and everything), as well as one on Lawndale Drive, where he lived. After his probation officer received information that Perez was dealing drugs, police officers (at the probation officer’s direction) executed searches at both homes – Perez was at Teal Drive, Coleman at Lawndale Drive – which uncovered not only evidence indicating Perez might be staying at Teal Drive, but also about $25,000 in cash there. The Government seized the cash, arguing it was drug proceeds. Perez and Coleman both unsuccessfully challenged the searches, with each claiming part of the money.

On appeal, the Fourth Circuit held that the search of Teal Drive violated Perez’s rights under the Fourth Amendment and could not support forfeiture. The court first held that the condition of Perez’s term of supervised release that allowed searches of his property did not extend to Teal Drive, where Coleman resided, likening the situation to one where one party consents to a search of a jointly shared residence while another objects (as Coleman did), while also noting that a landlord cannot given consent to search his tenant’s property. The court also held that the police lacked sufficient belief – defined as probable cause – that Perez actually lived at Teal Drive (evidence of such recovered at Lawndale Drive was discovered while the other search was ongoing).

No Error In Joinder of Witness Murder and Marijuana Conspiracy Counts

US v. Mosley: Mosley was “friends and drug-trafficking partners” with Carter and Hightower. After Hightower was indicted for healthcare fraud and extortion, he singled out the complaining witness as a woman named Edmonds. The three worked together (while Hightower was detained) to kill Edmonds, but instead succeeded in Carter shooting and killer her neighbor. Mosley was charged with numerous counts arising not just from the murder of Edmonds’ neighbor, but the marijuana operation. He was convicted on all counts (in a joint trial with Carter) and sentenced to life in prison.

On appeal, the Fourth Circuit affirmed Mosley’s convictions. Primarily, Mosley argued that the district court erred by not severing his trial from Carter’s (who was not part of this appeal) and the murder charges from the marijuana charges. The court concluded, reviewing de novo, that the charges were properly joined at the outset and that the district court did not abuse its discretion in denying motions to sever. The court concluded that the “allegations connect Carter and Mosley to the same conspiracy” and that the “underlying marijuana offenses are essential to establishing the connection between” the three men. Even if there was an error, it was harmless. The court also rejected Mosley’s argument that the district court erred by denying Carter’s motion to suppress, as Mosley had no standing in the places searched.

Excused Juror’s Statements Don’t Show Bias, But Government Failed to Prove Statutory Loss Amount

US v. Umeti: Umeti and two codefendants created a scheme by which they utilized phishing scams and malware to “deceive businesses into executing wire transfers” into accounts they controlled. As a result, they were charged with numerous offenses, including wire fraud and conspiring to cause intentional damage to a protected computer causing a loss of at least $5000. During voir dire at Umeti’s trial (one co-conspirator pleaded guilty, the other’s “charges remain pending”), a potential juror indicated he “worked in cybersecurity,” his company “might have done some of the remediation work,” and “I’ve heard of the defendants.” He was struck for cause, but Umeti expressed concern that the entire jury had heard the statements which indicated “he had firsthand knowledge that the defendants . . . were involved in fraud.” Umeti was convicted on all counts. The district court later denied amotion for new trial based on the excused juror’s statements. Umeti was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed most of Umeti’s convictions, but vacated the computer damage charge. As to the excused juror, the court concluded that the district court did not abuse its discretion in denying Umeti’s new trial motion. Umeti could not show that he was entitled to a rebuttable presumption of prejudice due to an extrinsic influence on the jury because the excused juror’s statements were only “innocuous interventions” and “nothing” in his statements “show any disposition toward Umeti’s guilt or innocence.” As to the computer damage conviction, however, the court held that the Government failed to prove at least $5000 in damages were incurred, which raised the statutory maximum on that count from one year to ten. While the Government presented witness testimony from the impacted companies about things they had to do because of the hacking, specific amounts of loss were never mentioned, so the jury could not conclude that any particular amount of damages were done.

No Error in Precluding Cross-Examination About Decades-Old Drug Conviction

US v. Jones: In 2020 police in North Carolina were investigating Jones and his relationship to a particular drug stash house which he visited frequently. Evidence showed that he worked with others to bring marijuana from California to North Carolina for resale, along with other drugs. After a traffic stop of one of his associates, Jones was arrested at the stash house along with drugs, paraphernalia, and two guns. He was convicted at trial of various drug and firearms offenses and sentenced to 480 months in prison.

On appeal, the Fourth Circuit affirmed Jones’ convictions and sentence. His primary argument as to his convictions was that he should have been allowed to cross-examine his associate about his prior drug convictions from the 1990s. Jones argued that they were relevant because the associate was the only cooperator testifying and had “previous experience with federal sentencing” that “motivated him to do so.” The court disagreed, noting that the jury had already heard the witness was “testifying pursuant to a plea agreement in order to get a reduced sentence” and had testified to selling drugs before meeting Jones. The court also rejected Jones’ argument that the evidence was insufficient to connect him to the firearms at issue. As to sentencing, the court found no clear error in the imposition of enhancements for obstruction (based on jail calls directing people what to do with large sums of cash) and his leadership role.

Court Affirms Hate Crime Murder

US v. Ritter: Ritter would return to his rural, South Carolina hometown during the summers, when he engaged in a sexual relationship with a trans woman, Dime. While Dime was open about their relationship, Rigger tried to keep it a secret. Dime was killed, found in a car along the side of a rural road. She had earlier been pulled over for speeding and Ritter was in the passenger’s seat. Sometime later, Ritter appeared at his uncle’s house nearby asking for a ride. He also asked friends to help dispose of a gun and burn his clothes. He was eventually charged with killing Dime because of her gender identity and related charges. He was convicted at trial and sentenced to life in prison.

The Fourth Circuit affirmed Ritter’s convictions. Ritter argued that he should receive a new trial due to bias of a juror – a trans woman who talked to the media after the trial, but who stated that her identity didn’t have any impact on her decision and she “followed the evidence of the law and the judge’s instructions.” The court found no “manifest error” in the district court’s conclusion that the juror did not violate her oath of impartiality. Ritter also argued that he should have gotten a mistrial after a Government witness testified that someone else had heard that Ritter killed Dime. The court held that the district court’s curative instruction, coupled with the witness’ impeachment on that statement (including by the Government) cured any potential prejudice. Finally, the court held there was sufficient evidence to support Ritter’s conviction for killing Dime, concluding that Ritter’s desire to hide their relationship was due to Dime’s trans identity and therefore her “gender identity.”

Court Vacates Aggravated ID Theft Count for Because Use of ID Wasn’t “Crux” of Related Offense

 US v. McDonald: McDonald was the executive director of a local economic development authority in Virginia who was charged with 34 counts of fraud and identity theft related to her time there. At trial she argued the development authority had “entered into a secret settlement agreement” with her to resolve a sexual assault and harassment claim and “authorized her various frauds as a way to pay” her an agreed sum. She was convicted on all counts but one.

On appeal, the Fourth Circuit affirmed McDonald’s conviction, except for the aggravated identity theft count. On that count, the issue was whether the identity theft was the “crux” of the specifically identified fraud offense in the indictment. The court held it was not, that the use of someone else’s identity “was an element of her broader scheme to profit from fraudulent behaviors, but it was ancillary to the particular wire fraud charged.” Otherwise, the court found no abuse of discretion in the denial of McDonald’s request for mistrial due to the various delays (COVID and other health related issues, primarily) during the course of her trial.

Court Remands As-Applied §922(g)(9) Challenge for Factual Development, Application of New Post-Bruen Law

US v. Jacobs: Jacobs allegedly (that’s important!) fired a gun during a domestic dispute. Police responding to the report recovered a pistol and a rifle. Jacobs admitted to possessing the firearms and that he was felon who knew he could not possess him. He was ultimately charged both with being a felon in possession of a firearm, under §922(g)(1), and possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, under §922(g)(9). Jacobs successfully argued that both were unconstitutional under the Second Amendment as applied to Jacobs.

On an appeal by the Government, the Fourth Circuit reversed the district court’s decision and remanded for additional proceedings. As to the §922(g)(1) count, all agreed that, by the time of appeal, both facial and as-applied challenges were not available. As to the §922(g)(9) count, while facial challenges are no longer available, the Court has yet to address whether as-applied challenges are. The Court refused to apply the §922(g)(1) precedent on as-applied challenges to §922(g)(9), leaving open the possibility of a successful challenge. However, the Court noted the numerous factual issues that needed to be resolved and that the district court’s initial decision lacked the benefit of the Fourth Circuit’s post-Bruen cases. Therefore, the Fourth Circuit remanded for further proceedings on that count.

Misclassification of Defendant as Career Offender Harmless When District Court Would Impose Same Sentence Regardless

US v. Cox: Cox pleaded guilty to multiple drug charges. In the PSR, the probation officer identified two of his prior convictions as “controlled substance offenses,” making him a career offender. One of them was a 2009 drug conviction from Florida that applied not only to distribution and possession with intent to distribute but to purchasing drugs. The district court overruled Cox’s objection and imposed a sentence of 120 months – a “compromise” between the Government’s request for a bottom of the career offender Guideline sentence (151 months) and Cox’s argument for a nearly top-of-the-unenhanced Guideline sentence (104 months). The district court said it would impose the same sentence “in the event I am wrong” about the career offender determination because the un-enhanced Guideline would understate Cox’s history of recidivism.

On appeal, the Fourth Circuit affirmed Cox’s sentence. Although “there can be little doubt that the probation officer and the district court erred in their Guidelines calculations” (and the Government didn’t argue otherwise), the error was harmless. “The district court left no room for doubt as to what it would do upon any remand” and imposed the same 120-month sentence. Further that sentence was not substantively unreasonable.

No Due Process Violation in Shifting State Prosecution Theories

Richardson v. Frame: Richardson was involved in altercation with Cool, to whom he sold a batch of low-quality cocaine. Richardson beat up Cool and, according to her, took about $100 in cash she had in her apartment. Richardson was charged in West Virginia state court with assault and robbery (among other things). The robbery was charged under the portion of the West Virginia statute that requires the threatened use of force involving a weapon, rather than the portion that involved the actual use of force.

At trial, the Government pivoted and presented a case that turned entirely on the actual use of force. Richardson’s counsel did not object. Richardson was convicted of robbery and sentenced to 100 years in prison. On direct appeal the state supreme court found no fatal variance in Richardson’s trial and, in state habeas proceedings, rejected his argument that he’d received ineffective assistance of counsel. Richardson filed a §2254 petition, which the magistrate recommended granting, only to have the district court sustain the state’s objections and deny.

On appeal, the Fourth Circuit affirmed the denial of Richardson’s §2254 petition. Ultimately, the question came down to whether Richardson was prejudiced by the state’s change of theory at trial. The court held he was not, both because he was already on notice that actual violence was at issue (due to the assault charge) and because trial counsel’s defense strategy was that no money had been taken (and thus no robbery), rather than anything to do with the nature of the charged robbery. Given the required AEDPA deference, the court affirmed.

NOTE: I was counsel for Richardson in this case. 

Conviction for Advocating Participation in Jihad Following 9/11 Violates First Amendment

US v. Al-Timimi: Al-Timimi helped found a mosque in Virginia and was “viewed as a respected elder and a person knowledgeable about Islam.” Prior to the 9/11 attacks, a group of men at the mosque began planning to wage jihad overseas. Al-Timimi was not part of the group and when asked if he approved “didn’t endorse or reject the idea.” Later, he did “chastise them for making their training efforts too obvious” and encouraged them to “be more discreet.” After 9/11, Al-Timimi met with others (including some of the would-be jihadists) and told them (among other things) that they must “leave the United States” and “join the mujahadeen,” that it was “obligatory on all Muslims to go and defend Afghanistan,” and that “it doesn’t matter if we fight the Indians or the Russians or the Americans, that this is all legitimate jihad.” He also encouraged men to “go to Pakistan” and join and train with a particular terrorist group.

In 2004, Al-Timimi was charged with ten counts related to inducing or soliciting others to (among other things) use firearms, levy war against the United States, and aid the Taliban. All the counts were based on speech Al-Timimi had made. He was convicted on all counts and sentenced to a total of 360 months in prison. Twice Al-Timimi appealed, only to have the case remanded for additional proceedings, one of which resulted in several counts being vacated on Johnson/Davis grounds. In 2020, Al-Timimi was released to home confinement due to the Covid-19 pandemic.

On the third go around, the Fourth Circuit vacated Al-Timimi’s remaining convictions, concluding that they violated the First Amendment. The primary argument was whether his speech constituted incitement to imminent lawless action or rose to the level of facilitation or solicitation of unlawful conduct. The Court concluded it was not, applying the Brandenberg standard, which requires that the “advocated-for lawless action must be happening quite soon.” What Al-Timimi urged was “neither sufficiently imminent nor sufficiently definite to lose First Amendment protection,” with the court noting that he “specified no time from in which these actions should be completed and no details as to how they should be carried out.” His “exhortations were vague and general.” Al-Timimi’s speech “was not participation but merely encouragement,” which was not sufficient to support aiding and abetting convictions. Nor did he encourage, “with the requite intent, a specific unlawful act.”

Divided Court Concludes False Documents Submitted During Immigration Process Were “Required” and Covered by Statute

US v. Aborisade: Aborisade, who was not a lawyer, ran a “legal center” where he primarily helped clients file “various immigration petitions,” including those under the Violence Against Women Act’s “self-petitions” system for abused spouses. For those petitions, Aborisade used prior psychological evaluations and modified them for use by other applicants, as well as fabricating lease documents. His clients ultimately submitted the false documents as part of their petitions. Aborisade was ultimately convicted at trial of numerous counts, primarily of vias fraud and aggravated identity theft  and sentenced to 57 months in prison.

On appeal, a divided Fourth Circuit affirmed Aborisade’s convictions. The primary issue was whether the false documents at issue were “required” to be part of the applications at issue, as the statute required. The Court concluded that they were, holding that while those types of documents were not specifically required, some evidence was required to prove eligibility under VAWA and since those documents were that evidence it was “required.” The court also rejected Aborisade’s argument that he could not be convicted under the statute because he did not personally present the petitions (with the false documents) to immigration authorities.

Judge Heytens dissented, arguing that the statute does not require the submission of “any one document or type of document” and that the necessary proof could come from other sources, such as witnesses. Therefore, the documents at issue were not “required” under the statute.