Fourth Circuit Blog

When unidentified witnesses may be okay

2012-01-27T16:17:00.003-05:00

US v. Ramos-Cruz: In this case, Israel Ramos-Cruz appeal his convictions for several offenses related to his activities with a gang. At issue was the jury instruction for the aiding and abetting witness-tampering murder, which was abrogated by the Supreme Court’s decision in Fowler v. United States after trial but while this appeal was pending; Ramos-Cruz challenged the denial of his motion for judgment of acquittal, in that he argued he was not in the country illegally; also, Ramos-Cruz challenged the district court’s decision to permit two unidentified witnesses to testify against him as violative of the Confrontation Clause; and finally, Ramos-Cruz took issue with the district court’s denial of his motion to suppress evidence seized at his home during a search. The Fourth Circuit affirmed the district court’s judgment.

The Supreme Court’s decision in Fowler abrogated the Fourth Circuit’s instruction given here, rendering them incorrect, but the Fourth Circuit found that the error in giving this instruction was harmless. Fowler changes the burden of proof necessary to sustain a conviction under § 1512(a)(1)(C), in circumstances in which a defendant kills a victim in order to prevent that individual from talking to federal authorities. The government must now show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer, as opposed to a possible or potential communication. The test that the Fourth Circuit had articulated here was similar to the 11^th Circuit test that the Supreme Court overturned in Fowler; however, the Fourth Circuit found uncontroverted and overwhelming evidence of the reasonable likelihood of communication with a federal officer, and concluded any error in its instruction was harmless.

Next, Ramos-Cruz argued that he had a pending TPS ("temporary protected status") application at the time he was found in possession of a firearm, and thus he was not illegally in this country. Temporary protective status can provide some benefit to individuals from foreign countries where ongoing conflict or natural disaster prevents its nationals from returning in safety. El Salvador, where Ramos-Cruz is from, has been designated such a country, but at issue here was not whether Ramos-Cruz’s country of origin enabled him to apply for TPS, but whether his application had been pending here, as Ramos-Cruz asserted. The district court and the Fourth Circuit disagreed with Ramos-Cruz, however, finding evidence that Ramos-Cruz’s application for TPS had been effectively denied prior to the relevant events.

With respect to the two El Salvadorian witnesses which the district court allowed to testify anonymously in order to protect the safety of the witnesses and their families, Ramos-Cruz contended that this ruling violated his 6^th Amendment confrontation rights, that he could not conduct independent research into the witnesses’ veracity. The government had the burden to prove an actual threat existed in order to protect the witnesses’ identities; the government submitted affidavits to the district court and it examined the two witnesses in camera, and concluded that "the threat to the witness [was] actual and not a result of conjecture." Defense counsel received details of these two witnesses prior to trial, so that they could be cross-examined without a threat to their safety. The Fourth Circuit did not find an abuse of discretion with the district court’s actions, as the witnesses were testifying only to background information on the internal workings of Central American gang activity, not Ramos-Cruz or his activities.

Finally, the search of Ramos-Cruz’s residence pursuant to warrant was held to have given the issuing judge sufficient facts upon which to provide a basis for determining the existence of probable cause. The Fourth Circuit did not disturb the district court’s decision here, considering the deferential standard of review given to the issuing judge’s finding of probable cause.

Selective prosecution claim fails

2012-01-24T15:02:00.000-05:00

US v. Venable: James Venable was charged with being a felon in possession of a firearm. Venable moved for discovery and to dismiss the indictment on a theory of selective prosecution, that he, an African American male, had been prosecuted for his race in violation of his Fifth Amendment right to Due Process, while two other individuals, both white, were not prosecuted for the same firearms. The district court denied Venable’s motions, and the Fourth Circuit affirmed.

Venable was prosecuted in a program known as Project Exile, a joint effort of the United States Attorney’s Office and the Richmond Commonwealth Attorney’s Office, which specifically targets convicted felons who possess guns, with the goal of reducing Richmond’s high rates of gun crime, federally. Basically, local law Virginia law enforcement officers will contact the U.S. Marshals whenever they encounter a gun; the U.S. Attorney’s Office will review the case and then determine whether to file federal criminal charges.

In making a selective prosecution claim, a defendant has a high burden, as the government is given wide discretion in its decisions to prosecute. A defendant must present clear evidence that the government has violated equal protection, and was motivated by a discriminatory purpose to adopt a prosecutorial policy with a discriminatory effect. To meet the burden, a defendant must show: 1) that similarly situated individuals of a different race were not prosecuted; and 2) the decision to prosecute was "invidious or in bad faith," as determined by the Fourth Circuit in United States v. Olvis, from 2006.

Here, the Fourth Circuit finds that similarly situated individuals are so only when prosecuted by the same sovereign; Venable’s case originally began in eastern Virginia, whereas the other two individuals involved in his case were prosecuted in state court in western Virginia. Project Exile solely applies in the Eastern District of Virginia. Of the nine factors from Olvis for determining whether the individuals in this case were similarly situated, the Fourth Circuit found that Venable was only able to establish one, to wit, that each of the three individuals were convicted felons not permitted to possess firearms; the Fourth Circuit concluded that these individuals were not similarly situated.

Next, the statistical evidence that Venables presented in support of the position that the prosecutors acted in bad faith, the Fourth Circuit did not find probative of discriminatory intent; holding, instead, that absent an appropriate basis for comparison, statistical evidence of racial disparity alone cannot establish any element of a discrimination claim.

Finally, the Fourth Circuit includes a gem of a footnote here regarding the disrespectful and uncivil language some attorneys, even government ones, have included to their own disservice in their briefs against district courts, parties, opposing counsel and witnesses, and cautions that such briefs "should be stricken from the files." Take heed.

4th Circuit abstains from intervening in court martial proceeding

2012-01-24T09:40:00.001-05:00

Hennis v. Hemlick: In this appeal, the Fourth Circuit upholds the Councilman abstention doctrine, against a petitioner pursuing habeas corpus relief in relation to a death penalty conviction handed down by a military court.

Hennis filed among other papers, a writ of habeas corpus, to appeal a district court’s decision not to reach the merits of his challenge to the Army’s exercise of court martial jurisdiction over him. The district court based its decision to abstain on Schlesinger v. Councilman, in which the Supreme Court held that federal courts should abstain from intervening in pending court martial proceedings and should require the exhaustion of remedies within the military justice system before collaterally reviewing cases.

The Fourth Circuit affirmed the district court, disagreeing with Hennis that his case had extraordinary facts sufficient to warrant any intrusion on the integrity of the military court processes.

Revocation of supervised release not equal to termination of the release

2012-01-23T16:45:00.003-05:00

US v. Winfield: A supervised release revocation sentencing here occurred over the course of two bifurcated hearings, the first part of which occurred in May 2010 dealing with the technical violations (i.e., charges not related to the commission of some state offenses during the appellant’s supervised release), and the second occurred in September 2010, following the resolution of the appellant’s substantive violations in state court.

At the May 2010 hearing, the district court imposed a 12-month sentence on Winfield for his technical violations, e.g. failing to follow his probation officer’s instructions, failing to work regularly, and twice testing positive for cocaine. Winfield’s probation officer had filed a petition for violations of the terms of Winfield’s supervised release in October 2009 on the technical violation behavior. The probation officer subsequently filed two amended petitions for revocation, the first for receiving a state court charge while he was on supervised release, and the second for failing to inform the probation officer of his arrest for the state court charge within 72 hours of his arrest. In the September 2010 hearing, the district court imposed a second 12-month sentence on the substantive violations, the state court convictions, for crimes committed while Winfield was on federal supervised release.

At issue is the definition of the term "revoke" under 18 U.S.C. § 3583(e) and whether an effective revocation of a term of supervised release also ends the court’s supervision over that release when the term has not yet expired. Based upon an unpublished 3^rd Circuit case from 2007 and Supreme Court precedent, the Fourth Circuit here determined that because a revoked term of supervised release continues to have some effect post-revocation, a district court retains authority to alter a defendant’s punishment during a re-incarceration for supervised release violations. Moreover, a revocation of a term of supervised release, according to the Fourth Circuit, is not equivalent to a termination of the release and the revoked term remains in effect. Thus, a district court may hold bifurcated hearings based on a petition for revocation filed prior to the expiration of the term of supervised release, provided the individual is sentenced according to the Rules of Criminal Procedure, the court makes a finding of guilt by a preponderance of the evidence, and does not exceed the statutory maximum for re-incarceration.

Career offender enhancement principles warrant remand

2012-01-23T10:21:00.002-05:00

United States v. Jones: A husband and wife appeal their convictions for methamphetamine possession and conspiracy to distribute it. The couple’s convictions resulted from their conditional guilty pleas, which preserved their right to appeal the denial of pretrial motions to suppress. The Fourth Circuit upheld the denial of the motions to suppress, but vacated the husband’s sentence and remanded.

A burn victim at a hospital in North Carolina informed police that he received his injuries from a meth lab explosion at the defendants’ home. The police went to the home, but did not detect any evidence of a meth lab explosion. Mr. Jones spoke with police and denied knowing anything about the burn victim or alleged explosion. When the police were leaving the scene, one of the officers recalled that Mr. Jones may have had an outstanding warrant, and placed him, standing in his doorway, under arrest. Mrs. Jones objected to the arrest, but she did not obstruct the police.

The officers then decided to conduct a protective sweep of the Jones residence for officer safety. The police officers located a marijuana cigarette near where Mrs. Jones was sitting in the house, so they placed her under arrest for possession of marijuana. An officer remained at the residence after both Joneses were taken to the county sheriff’s office, in order to secure the residence until other officers could secure a search warrant. Later that day, pursuant to warrant, the police seized drug paraphernalia and a meth mixture.

In the hearing on defendants’ motion to suppress, the court concluded that the protective sweep of the Jones residence was constitutionally permissible under Maryland v. Buie. Subsequently, the couple entered their conditional guilty pleas to possession of meth, and conspiracy to manufacture and distribute it. At Mr. Jones’ sentencing, he objected to the determination in the PSR of his career offender enhancement, and both defendants objected to the amount of relevant drug conduct recommended by the PSRs.

Prior to oral argument in this appeal, the Fourth Circuit decided United States v. Simmons, in which the Fourth Circuit concluded that a conviction like Mr. Jones’ predicate conviction, one that was not punishable by more than one year in prison, does not qualify as a prior felony for the purposes of the career offender provision. So, the government conceded that Mr. Jones’s sentence was procedurally unreasonable and should be vacated and remanded, which the Fourth Circuit did here.

The protective sweep in question was found constitutionally permissible because the police reasonably believed that other individuals may have been present who presented a danger to them based on the following: surveillance of the residence, known drug users frequented the house, information that a fugitive from Georgia was staying there, and seven vehicles present at the scene despite assurances from Mr. and Mrs. Jones that they were alone.

As-applied challenge to Sect. 922(g)(8) shot down, too

2012-01-09T16:30:00.003-05:00

US v. Chapman: Similar to the Fourth Circuit's recent holding in United States v. Staten (see blog post here), it upheld another portion of this statute against an as-applied challenge that it violates the Second Amendment right to bear arms in self-defense of the home.

Chapman, subject to a domestic violence protective order, pleaded guilty to possessing several firearms in violation of that DVPO, following an incident with his ex-wife that began with his threats to commit suicide on December 28, 2009. Chapman’s DVPO was to last 180 days, not a lifelong prohibition. Prior to his guilty plea, Chapman filed a motion to dismiss the indictment on grounds that as-applied, the statute violated his Second Amendment rights to bear arms in defense of his home, which the district court rejected. Chapman reserved the right to appeal with respect to his Second Amendment challenge.

On appeal, the Fourth Circuit recognized the "core" of an individual’s Second Amendment right to be "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," from District of Columbia v. Heller, 554 U.S. 570 (2008), and employed a two-part approach to analyze Chapman’s as-applied challenge. In the first part, the court must inquire whether the law imposes a burden on conduct falling within the "historically understood" scope of the Second Amendment’s guarantee. If yes, then the court moves to part two; if no, the analysis ends. Here, the Fourth Circuit determined that even if Chapman’s Second Amendment rights were intact and that he was entitled to some protection to keep his guns for defense of his home, intermediate scrutiny will apply and his challenge will fail.

Relying on its 2010 opinion in United States v. Chester, the Fourth Circuit holds that intermediate scrutiny is the appropriate standard to analyze the defendant’s statutory challenge here, and decides that Chapman’s claim does not fall within the core right identified in Heller because he is neither responsible nor law-abiding: he likely committed domestic abuse (judicial determination); he engaged in behavior which caused him to be judicially prohibited for 180 days from causing or threatening to cause bodily injury to his partner; his suicidal thoughts and actions; and his discharge of the firearms in his ex-wife’s direction.

Under intermediate scrutiny, the government must establish a "reasonable fit" between the challenged statute and a substantial governmental objective. The government identified reducing domestic gun violence as the substantial objective behind this statute. Also, the statutory language, the Fourth Circuit explained, keeps the prohibitory sweep of people affected by the statute exceedingly narrow.

Knife Removal of Baggie from Penis Violates Fouth Amendment

2012-01-04T11:58:00.000-05:00

US v. Edwards: Edwards was arrested late at night on a Baltimore street based on an allegation that he had earlier brandished a firearm. After his hands had been cuffed behind his back, an officer patted him down, finding neither a weapon nor contraband. After a van arrived to transport Edwards to the police station, the officers did another search. This time, one officer "pulled Edwards' pants and underwear six or seven inches away from his body" while another "directed a flashlight beam inside both the front and back of Edwards' underwear." The officers saw "a plastic sandwich baggie tied in a knot around Edwards' penis" that appeared to contain several smaller baggies indicative of drug trafficking. At this point, while one officer held the pants open, another "put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards' penis with the knife." Edwards was eventually charged with possession with intent to distribute crack. He unsuccessfully moved to have the crack suppressed, then entered a conditional guilty plea.

On appeal, the Fourth Circuit reversed the denial of the motion to suppress, 2-1. The court first held that the search that uncovered the baggie was a strip search, rejecting the Government's contention otherwise. Furthermore, the search fell into the category of "sexually invasive searches" which the Supreme Court addressed in Bell v. Wolfish, 441 US 520 (1979). Thus, among other things, the "manner in which the contraband is removed from a suspect" is a relevant consideration as to whether the search was reasonable. Looking to that issue, the court concluded that the officer's "use of a knife in cutting the sandwich baggie off Edwards' penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness." The court noted the lateness of the hour and that, in spite of needing a flashlight to find Edwards's stash, he did not use the light when actually removing it. The court also rejected the Government's argument that the nature of the underlying arrest (a firearm charge) justified the search. The application of the exclusionary rule in this situation, the court concluded, was "especially appropriate."

Judge Diaz dissented, arguing that the majority relies on the use of the knife alone to sink the search, which does not in and of itself render the search unreasonable.

Congrats to the FPD office in Maryland on the win!

Producing False ID Convicion Affirmed

2012-01-04T11:56:00.000-05:00

US v. Jaensch: Jaensch was convicted of producing a false identification document that appeared to be issued under the authority of the US government, based on his presentment of an ID to a state court security official. Although, according to an expert witness from the State Department testified that "almost everything about [the ID] is wrong," Jaensch told investigators he used it to get through TSA checkpoints. He ordered it from a company in Florida. After his conviction (at a second trial - the first ended in a hung jury), Jaensch was fined and sentenced to probation.

On appeal, Jaensch challenged his conviction on numerous grounds, each of which the Fourth Circuit rejected. First, the court rejected the argument that the statute under which Jaensch was unconstitutionally vague because it does not define how one can tell whether the ID "appears to be" issued by the United States. Because the statute requires knowledge to sustain a conviction, there was no vagueness. Second, the court rejected the argument that the district court erred by instructing the jury that a "reasonable person standard" applied when determining whether the ID appeared to be issued by the United States. Third, the court rejected the argument that the district court erred by denying Jaensch's motion for an acquittal after the first jury hung.

Court's Guideline Findings Not Clear Enough for Review

2012-01-04T11:52:00.001-05:00

US v. Bell: Bell, who suffers from numerous maladies, was a patient at a pain management clinic in Tennessee who was prescribed large amounts of Oxycontin. Although complying with the controls of the clinic to ensure no improper use of the pills, Bell was taking some of the pills she received to Virginia, where she distributed them along with her codefendant, Gibson (at whose home the transactions took place). Following a series of controlled buys and a search of the home, Bell and Gibson were charged with a pleaded guilty to several drug offenses. At sentencing, the main issue was the amount of relevant conduct attributable to Bell and Gibson. Although Bell had been prescribed the equivalent of 4695 40-mg Oxycontin pills during the relevant time, she argued that she used many of the pills prescribed as intended and distributed only the equivalent of 888 40-mg pills. At sentencing, several witnesses testified about Bell and Gibson's distribution scheme. The district court rejected Bell's claim that the amount of relevant conduct should be reduced based on what she used herself on legal grounds, but concluded that the testimony had "obvious discrepancies" and reduced the relevant conduct amount to the equivalent of 2612 40-mg pills. Both Bell and Gibson were then sentenced within the resulting advisory Guideline ranges.

On appeal, the Fourth Circuit vacated the sentences and remanded for resentencing. The court drew a distinction between relevant conduct determinations involving Schedule I drugs, with no recognized medical use, and all others, noting that the key issue when determining relevant conduct is the defendant's illegal conduct. Drugs obtained and used legally, therefore, cannot necessarily be included simply because the defendant once possessed them. In this particular case, the court concluded, the district court's findings were not explained with enough sufficiency to allow for meaningful appellate review. The court rejected the Government's attempts to divine the basis for the district court's findings ex post. It also rejected the Government's contention that anyone who sells a majority of pills prescribed to them to others lacks the medical need to make their possession of the pills legal.

There is some interesting positioning by the panel with regards to the burden of proof. In footnote 8 of the opinion, it states that the Government ultimately bears the burden of proving relevant conduct, even though it may be difficult to do so in cases like this. However, that footnote expresses only the view of Judge Davis. In a brief concurrence, Judge Hamilton (joined by Judge Floyd) does not embrace footnote 8 and notes that the defendant bears some burden to bring forth evidence of personal use.

Congrats to the WDVA FPD office on the win!

No Crawford Issue With Supervisor Testimony About DNA

2012-01-04T11:51:00.001-05:00

US v. Summers: Summers and another man were standing on a Baltimore street corner when approached by a police officer. They ran. When the officer first approached Summers, Summers was wearing a black jacket, but he was not wearing it when apprehended shortly thereafter. A jacket was found "atop one of the houses along Summers's flight path" which contained a firearm, ammunition, and cocaine. As a result, Summers was charged with various gun and drug offenses. At trial, officers identified the jacket (with varying degrees of certainty) as the one Summers was wearing. In addition, DNA evidence linked Summers to the jacket, although there was a gap in the chain of custody between the officer who seized the jacket and its contents at the scene and the lab where the testing was done. Summers was convicted of possession with intent to distribute crack and being a felon in possession of a firearm and sentenced to 262 months in prison.

On appeal, Summers argued that the manner in which the DNA evidence about the jacket was produced at trial - via testimony only of supervisor at the lab that did the testing, rather than those who actually handled and tested the jacket - violated the Confrontation Clause. The Fourth Circuit rejected his arguments and affirmed the convictions. With regards to the chain of custody of the jacket at the lab, the court noted that the evidence about that issue was introduced by Summers, not the prosecution, and thus there was no confrontation issues. Similarly, the district court did not err by admitting the jacket itself into evidence, regardless of any chain of custody issues, because it was identified by witnesses as the one Summers had been wearing that night. With regards to the supervisor's testimony, the court concluded that his testimony was admissible because, although subordinates did the testing underlying his opinion, the opinion itself was "original product" of his own analysis and he was not merely passing on information from others.

Judge Floyd concurred in the result, but not the reasoning, and would rested the decision on the conclusion that any Confrontation Clause error was harmless, thus avoiding the "thorny issue" resolved by the court.

Leon Saves Search Warrant Without Nexus Between Suspect, Home

2012-01-04T11:44:00.001-05:00

US v. McKenzie-Gude: The aunt of McKenzie-Gude's friend Yevsukov alerted police that McKenzie-Gude had brought an AK-47 (which was registered to McKenzie-Gude's father) and various chemicals to her home. She also alleged that McKenzie-Gude and Yevsukov were "constantly" discussing weapons and explosives, providing police with "data sheets" about the chemicals, as well as other information. Police talked with Yevsukov, who denied that McKenzie-Gude brought the gun to the aunt's home. McKenzie-Gude refused to talk to police. Based on the aunt's information, a state police officer and fire marshal obtained a warrant to search the home McKenzie-Gude shared with his father, although it failed to state that either of them actually lived there. The search uncovered evidence that led to McKenzie-Gude being charged with possession of a firearm not registered to him. After an unsuccessful suppression motion, McKenzie-Gude entered a conditional guilty plea and was sentenced to 61 months in prison.

On appeal, McKenzie-Gude challenged both his conviction and sentence. As to the conviction, he renewed his argument that the evidence seized from his home should have been suppressed. The Government conceded that the warrant was defective because the affidavit did not link McKenzie-Gude to the residence to be searched, but argued that the Leon good-faith exception saved the evidence from suppression. Specifically, it argued that the officers acted with "objective reasonableness" because they had evidence that McKenzie-Gude lived at the house even if it was not in the warrant application. The court agreed that such evidence could be considered and concluded that the officers who executed the warrant, who also obtained it, acted in good faith. The court also rejected McKenzie-Gude's argument that he was entitled to a Franks hearing based on either inaccuracies in the warrant application or omissions from it. As to McKenzie-Gude's sentence, the court rejected (after brief discussions) each of his three factual challenges to the district court's Guideline calculations.

Terry-like Scenario Produces Terry-like Result

2011-12-15T11:55:00.001-05:00

US v. Glover: Glover was convicted of being a felon in possession of a firearm after being subject to a stop-and-frisk in a parking lot in the "wee hours of the morning." Two officers on patrol drove to a 24-hour gas station which both knew had been the site of prior armed robberies (one of the officers had personally investigated one of the robberies). Only two people were present - the station attendant, who was outside checking the tank levels, and Glover, who was standing 45-60 feet away in an area that was not captured by the station's security cameras. Officers saw Glover glance around a corner and pull his head back, as if trying to hide. When they drove out of the lot, he watched them. The officers were concerned and decided they should talk to Glover. By the time they circled back around to the station, Glover was "standing, basically overtop" of the attendant, who appeared unaware of his presence. The officers walked over to Glover and one of the officer's patted him down, uncovering a gun in his right pants pocket. The district court refused to suppress the gun and Glover was sentenced to 60 months in prison.

On appeal, Glover argued that the officers lacked reasonable suspicion upon which to base a legitimate stop-and-frisk. The Fourth Circuit disagreed and affirmed his conviction. The court held that the actions of the officers in this case were essentially the same as in Terry, undertaken for the same reason. Based on the totality of the circumstances the officers had reasonable suspicion to believe an armed robbery might be in the offing. Among the factors supporting that conclusion was the high-crime nature of the area (not just in general, but the gas station's history itself), the time of night, lack of others around, and the vulnerable position of the attendant, as well as Glover's actions themselves.

Command While Using Gun Supports "Physical Restraint" Enhancement

2011-12-15T11:53:00.001-05:00

US v. Dimache: Dimache pleaded guilty to armed bank robbery. He and an accomplice robbed a bank in South Carolina, during which Dimache brandished a gun, using it first to direct a teller to give money to his accomplice and then to force other tellers to get down on the floor. In the PSR, the probation officer recommended a two-level enhancement under USSG 2B3.1(b)(4)(B) for physical restraint of a person to facilitate the offense. In this case, the basis for the enhancement was Dimache using the gun as a threat to force the tellers to the ground. Dimache objected, but the district court imposed the enhancement. The district court sentenced him to 90 months in prison.

On appeal, Dimache argued that the two-level enhancement should not apply in his case because merely pointing a gun at some one and ordering them to move does not constitute "physical restraint." The court rejected that argument. It noted that the "essential nature" of the conduct justifying the enhancement is the "deprivation of a person's 'freedom of physical movement.'" While it was "not an easy question to answer" whether the presence of a gun can lead to physical restraint, the court has previously read the enhancement to apply broadly. Therefore, the use of the gun to restrict the tellers' movements supported imposition of the enhancement.

Child Pornography Warrant Based on Observations of Other Officers Saved by Good Faith

2011-12-15T11:51:00.001-05:00

US v. Wellman: Wellman was convicted at trial of possessing child pornography, possessing an obscene image depicting minors, and doing so while being required to register as a sex offender, an offense which requires a 10-year mandatory minimum sentence to run consecutive to any other sentence imposed. The convictions were based on evidence obtained from Wellman's home pursuant to a search warrant. The warrant in turn was based primarily on assertions from a child pornography task force in Wyoming that known images of child pornography was present on Wellman's computer. Prior to trial, Wellman sought to suppress the evidence found pursuant to the warrant, arguing that the factual basis for the warrant was not sufficient to demonstrate probable cause because neither the images of alleged child pornography were attached to the warrant application, nor was there any description of the images in the application. The district court denied the motion. After his convictions, Wellman was sentenced to 300 months in prison, including the 10-year consecutive mandatory minimum.

On appeal, Wellman challenged his convictions as well as his sentence. First, he renewed his argument that there was insufficient evidence to support the probable cause needed to issue the search warrant and that in issuing the warrant the issuing judge simply rubber stamped the requesting officer's conclusions. The court rejected that argument, but did so by finding the Leon good-faith exception applied (assuming arguendo that the warrant was invalid) and that the issuing judge did not act as a rubber stamp, nor was the application so lacking in indicia of probable cause to render reliance on it unreasonable. Second, Wellman argued that the district court erred by not instructing the jury that to convict on the obscenity charge he must have known that the image was obscene. Relying on the Supreme Court's 1974 decision in Hamling, the court held that knowledge of such a legal conclusion is not necessary to sustain the conviction. Finally, Wellman argued that the 10-year consecutive mandatory minimum sentence was cruel and unusual punishment, given his age and likelihood that the sentence imposed was actually a life sentence. The court rejected that argument, concluding that the sentence was not a "disproportionate sentence of constitutional magnitude," as it was based largely on Wellman's prior record.

Convictions Affirmed for Drug Conspiracy (Barely), Scheme to Kill Witness

2011-12-15T11:49:00.004-05:00

US v. Hackley: Hackley sold crack cocaine to Jackson, whom had known Hackley since 1992 and acted as a confidential informant almost as long. According to Jackson, Hackley told him he "just got back from Maryland" with some crack. Jackson then contacted local law enforcement, who arranged several controlled buys of crack from Hackley. As a result, he was charged with conspiracy to distribute crack and six counts of distribution. While in jail, Hackley told a fellow inmate, Johnson (among others), that he did not want Jackson showing up in court and that he needed to be killed. He also told Johnson about a pistol he owned. Johnson went to the authorities, after which an ATF agent posed as another inmate. The agent, essentially, became the hit man Hackley sought to hire to kill Jackson. In fact, Jackson's death was staged, complete with a fake news story, which made Hackley "ecstatic." As a result, Hackley was also charged with murder for hire, solicitation of murder, obstruction of justice, and being a felon in possession of a firearm.

After a plea agreement broke down, Hackley moved that he be appointed new counsel. The district court declined and the case went to trial. The district court denied Hackley's request for an entrapment instruction on the murder for hire count. He was convicted on all counts and sentenced to 306 months in prison.

On appeal, Hackley challenged both his convictions and sentence, all of which the Fourth Circuit upheld. First, Hackley argued that there was insufficient evidence to sustain the convictions for conspiracy to distribute crack, solicitation to murder, and being a felon in possession of a firearm. The evidence on the conspiracy count, the court held, "represents the very boundary of what passes for substantial evidence of a conspiracy." However, though the evidence was sparse, it was sufficient to "support an inference that Hackley had a continuous relationship with Maryland suppliers." The evidence was more abundant on the solicitation to murder count, although the communications at issue went to Hackley's "many girlfriends" rather than the ultimate "assassin." There was also sufficient evidence that Hackley possessed the firearm stored in the home of one of those many girlfriends. Second, Hackley argued that the district court should have given an entrapment instruction because the jury could have concluded that Johnson, rather than Hackley, began the conversation about killing Jackson. The court rejected that argument, noting that because Johnson was not a agent of the police at that time, it didn't matter who started the conversation. Third, Hackley argued that the felon in possession charge should have been severed from the rest of the counts. The court disagreed, noting that the gun at issue was offered as a potential tool for dealing with Jackson. Fourth, Hackley argued that the district court erred by denying his request for new counsel a week before the trial was to begin. The court rejected that argument, holding that Hackley never expressed concern about counsel's inadequacy, merely her "style," which was not a sufficient basis for granting the request. Finally, the court affirmed Hackley's sentence, holding that the district court was aware of its ability to impose a below-the-Guidelines sentence and exercised its discretion not to do so.

Detention of Defendant Away from Home Being Searched OK'd

2011-12-15T11:49:00.003-05:00

US v. Montieth: After receiving a tip from an ATF agent that Montieth was selling marijuana, local law enforcement (based on the tip and evidence recovered from Montieth's trash) obtained a warrant to search his home. Rather than go straight to the home, they waited until Montieth drove away from the home, stopped and detained him (officers smelled marijuana), and secured his cooperation in executing the search warrant without the need for a "dynamic entry" (I think that's cop speak for "breaking down the front door with the SWAT team"). Once Montieth's wife and children left the home, officers searched the home and, with Montieth's assistance, recovered marijuana and firearms. As a result, Montieth was charged with several offenses, including carrying a firearm in connection with a drug trafficking offense. Montieth moved to suppress both the physical evidence recovered from his home, as well as his statements made during the search. The district court denied the motion and Montieth entered a conditional plea to the gun charge.

On appeal, Montieth reiterated his arguments about the suppression of the physical evidence and his statements. The Fourth Circuit disagreed with those arguments and affirmed. First, the court concluded that the warrant itself was based on sufficient evidence to show probable cause, particularly the evidence recovered from the trash. The warrant also particularly described the items to be seized. Second, the court concluded that the fact a warrant had been obtained justified a Terry stop of Montieth's car, particularly because the warrant allowed the search of Montieth himself, not just his home. It is not necessary for that detention to take place in the location being searched. Third, the court concluded that Montieth's statement during the traffic stop that there was marijuana in the home was not made pursuant to any questioning by the officers and thus there had been no Miranda violation there. Finally, with regards to the search itself, the court held that the statements Montieth made during the search were made following an oral waiver of his Miranda rights and the warrant itself had been validly issued.

Convictions, Sentence Affirmed In "Pump & Dump" Stock Case

2011-12-15T11:47:00.000-05:00

US v. Offill: Offill, an attorney and securities specialist, was contacted by another attorney , Stocker, in 2004 about how to issue stock without the need to register it. The two eventually engaged in a "pump and dump" scheme in which they inflated the value of stock they owned before selling it to members of the public at a great profit. Offill was charged with one count of conspiring to artificially manipulate stock prices and nine counts of wire fraud. After a jury trial, he was convicted on all counts. At sentencing, the district court imposed a sentence of 96 months in prison, well below the advisory Guideline range of 168 to 210 months.

Offill appealed, raising issues related to both his convictions and his sentence, all of which the Fourth Circuit rejected. As to the trial issues, the court first rejected Offill's argument that two of the Government's expert witnesses improperly addressed the ultimate issue in the case, making conclusions reserved for the jury. Although the testimony involved discussion of legal issues that were ultimately covered by the judge's instructions to the jury, the court found no abuse of discretion in allowing the testimony. The court also concluded that the district court did not abuse its discretion by allowing lay expert testimony from two coconsiprators (including Stocker) about their own activity. The court also found no error in the admission of evidence of Offill's subsequent acts or the failure of the district court to give a multiple conspiracies instruction. As to Offill's sentence, the court first concluded that there was sufficient evidence to support the district court's decision that Offill should not have received a Guideline reduction for a minor role in the offense. The court also rejected the argument that Offill's sentence was unreasonable because it was longer than his codefendants (who pleaded guilty and cooperated with the Government). Finally, the court held that the district court properly calculated the loss attributed to Offill.

As-Applied Challenge to 922(g)(9) Shot Down

2011-12-15T11:43:00.001-05:00

US v. Staten: Staten was charged with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. He filed a motion to dismiss, arguing that 922(g)(9) violated his Second Amendment rights. The district court denied the motion and Staten entered a conditional guilty plea preserving the Second Amendment issue.

Between conviction and appeal, the Fourth Circuit issued its published decision in Chester (the second opinion), which laid out a two-step process for evaluating Second Amendment claims (at least in 922(g)(9) cases), but ultimately concluded that the Government hadn't met its burden of proving there was a "reasonable fit" between 922(g)(9) and a substantial governmental objective and remanded for further proceedings. In Staten's case, the Government did not provide the kind of evidence it has on remand in Chester, but did cite numerous social science studies linking domestic violence and firearms.

Ultimately, the Fourth Circuit affirmed the denial of Staten's motion to dismiss because the Government's citations, while not the best way of proving a reasonable fit, did do the job. They were all (but one) available publicly and could have been countered by Staten. What objections he did raise were easily dismissed. In making its ruling, the court repeatedly noted that Staten's challenge on appeal was an as-applied, rather than facial, challenge, so it's unclear what sort of impact it might have on other cases (like Chester itself on remand).

Criminal forfeiture of assets affirmed

2011-12-05T11:21:00.002-05:00

US v. Martin, et al.: The Appellants in this case challenged the district court’s criminal forfeiture orders concerning the seizure of property purportedly connected to their drug crimes. The government initially moved civilly to forfeit the property, and following the filing of the fourth superseding indictment, filed criminal forfeiture warrants for the same property.

Appellant Martin argued that the government violated the pre-trial civil forfeiture statute, which renders the later criminal forfeiture invalid. Collectively, the appellants argued that the district court lacked jurisdiction to order the criminal forfeiture (which occurred after their sentences and entry of judgments against them).

With respect to Appellant Martin’s issue, the Fourth Circuit stated that even assuming the government did seize the property at issue illegally (which it declined to decide), the illegal seizure of property does not immunize that property from forfeiture as long as the government can sustain the claim with independent evidence, citing to a 2007 First Circuit case, United States v. Pierre, for support. Here, Martin did not challenge the sufficiency of the evidence produced by the government, independent of the property, to justify the forfeiture; so, the Fourth Circuit rejected this challenge.

The jurisdiction claim failed because of a Supreme Court decision, Dolan v. United States, which guided the Fourth Circuit here to held that missing the deadline under Rule of Criminal Procedure 32.2 for finalizing forfeiture orders at the time of sentencing, does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so long as the sentencing court has clarified prior to sentencing that it intends to order the forfeiture. In Dolan, the Supreme Court provided an analytical structure for examining a statute that sets forth a deadline without specifying a consequence for missing the deadline (e.g., a defendant is ordered to pay restitution to the victim of the crime, and the statute says that the court shall set a date for the determination of the victim’s losses, not to exceed 90 days after sentencing).

The Fourth Circuit considered the kind of deadline in this forfeiture case as a "time-related directive," or the most forgiving type of deadline. This type of deadline is "legally enforceable but does not deprive a judge or other public official of the power to take action to which the deadline applies if the deadline is missed," citing Dolan. The deadline was held not to bar the district court’s exercise of jurisdiction, stating that the purpose of the deadline was not to create a coercive sanction, but to ensure the defendant’s notice of any and all aspects of sentencing, including forfeiture. There was no dispute here that appellants had notice prior to sentencing that a forfeiture was pending at their sentencing.

The dissent argued that the majority’s holding will allow courts to subject defendants to the punishment of forfeiture without discussing it at sentencing or ordering it in judgment, if the defendant has notice that such punishment may be ordered. Also, Judge Gregory argued that the majority took Dolan out of context and expanded the breadth of its holding into a qualitatively separate area of the law. Dolan, the dissent stated, was limited to restitution cases in which the amount of restitution was not yet determined; moreover, the restitution and forfeiture statutory schemes have differing purposes and structures.

Common sense in ACCA cases?

2011-12-02T15:39:00.002-05:00

US v. John Joel Foster: In an unfortunate twist for the appellant, the Fourth Circuit vacated Mr. Foster’s twenty-four month sentence for being a felon in possession of a firearm, and remanded the case for re-sentencing under the Armed Career Criminal Act, for the mandatory minimum fifteen-year sentence.

At issue in this appeal was whether Mr. Foster’s prior state convictions for breaking and entering under Virginia’s non-generic burglary statute qualified as violent felonies under ACCA. The Fourth Circuit found that the language of the indictments for Foster’s three prior convictions for breaking and entering mandated that the prior convictions were based on entries into buildings or structures, to wit, the "Sunrise-Sunset Market," the "blacksmith shop," and the "Corner Market," and as such, the convictions qualified as predicate violent felonies of the ACCA.

The concurrence and dissent gain purchase from Judge Agee's statement that "courts are, of course, permitted to draw reasonable inferences from the underlying state documents." The dissent finds that the government "must show more than the possibility, based solely on common sense and logic, that Defendant's prior convictions may qualify under ACCA." The concurrence chides the dissent that "our common sense neither is an outside evidentiary source that is prohibited by Shepard nor is our use of it going to create a trial within a trial in ACCA cases."

Effective assistance and CBLA evidence

2011-11-29T14:04:00.002-05:00

US v. Higgs: The Fourth Circuit affirmed the district court’s denial of Higgs’ 28 U.S.C. § 2255 motion, having granted a certificate of appealability to consider his due process and ineffective assistance arguments predicated on the introduction of Comparative Bullet Lead Analysis ("CBLA") evidence.

Higgs had been convicted in 2000 in federal district court for his involvement in the abduction and murders of three women at the Patuxent National Wildlife Refuge; Higgs received nine death sentences, which the Fourth Circuit affirmed. Higgs filed motions for a new trial, which the district court denied and the Fourth Circuit affirmed. The government presented the contested CBLA evidence along with other forensic evidence of "rifling" at Higgs’ trial. Prior to Higgs’ attempt at attacking his convictions collaterally, the FBI and others began questioning the significance of bullet lead matching, which resulted in a study conducted by the National Research Council in 2004. Upon the findings of this study, the FBI Laboratory announced that it would no longer perform CBLA, whereas it had been widely used in courts at the time of Higgs’s trial and until at least 2003. Higgs claimed that a Brady violation occurred when the government failed to produce the internal reports that he believed could have impeached the forensic expert’s testimony on CBLA; he also argued that trial counsel were ineffective for failing to present any available expert testimony to challenge the CBLA evidence, and post-trial counsel were also ineffective because they failed to file a motion for a new trial on the basis of the studies on CBLA.

The Fourth Circuit concluded that there was no reasonable probability that the district court would have excluded the CBLA testimony at Higgs’ trial if his attorneys had challenged it, or that the penalty phase of the trial would have ended differently if the CBLA evidence had been excluded or subject to additional cross-examination. Additionally, criticisms of CBLA appear to have been available to others, not just the within the government, so the Fourth Circuit determined that counsel had not been constitutionally ineffective for failing to file a motion under Rule 33 for a new trial because of the post-trial studies.

Habeas relief awarded to remedy 29 years of injustice

2011-11-28T14:22:00.003-05:00

Elmore v. Ozmint: The Fourth Circuit awarded Edward Elmore habeas relief on his ineffective assistance of counsel claims, arising from his original 1982 murder conviction. The Fourth Circuit, in its 194-page tome, found that Elmore's attorneys blindly accepted South Carolina's forensic evidence against their client. The Fourth Circuit also noted that there were grave concerns as to whether Elmore actually committed the murder.

"If our opinion embarrasses anyone, so be it. It would be entirely inappropriate for us to pull our punches or take any such consideration into account. There are far greater interests at stake: the fairness of our judicial system and, more specifically, Elmore's Sixth Amendment right to the effective assistance of counsel."

Elmore will be free unless the State of South Carolina decides to prosecute him a fourth time for the murder of Dorothy Edwards. The State has not yet announced its decision, though it must do so within a reasonable time.

Reasonable suspicion not established for patdown

2011-11-16T09:49:00.002-05:00

US v. Powell: The Fourth Circuit vacated Powell’s conviction for simple possession of crack, holding that the government did not present a set of facts which sufficiently establish reasonable suspicion.

The Fourth Circuit, without hesitation, concluded that the government failed to establish that the officers in traffic stop here had reasonable suspicion that Powell was armed and dangerous when they began the patdown in question. First, the context of the stop provided no basis for the officers to reasonably suspect that Powell might have been armed and dangerous. In fact, he was eating at the time the traffic stop began, and he and one of the police officers discussed their mutual appreciation for fish sandwiches. The traffic stop, prior to Powell’s removal from the back seat was "remarkable" for its "amicable, cooperative, and relatively safe nature."

The government urged two factors weighed in support of their reasonable suspicion argument: 1) caution data, or a person’s possible involvement in prior criminal activity; and 2) Powell’s purported deliberate misrepresentation of his driver’s license. While a prior criminal record can be relevant in establishing reasonable suspicion, the Fourth Circuit explained, in most instances, standing alone it is not enough to create reasonable suspicion. The caution data here (a prior armed robbery) was the sole basis for the police officer’s pat down of Powell, and the Fourth Circuit found that it certainly did not justify a reasonable suspicion that Powell was armed and dangerous on the night in question. And, while a false statement can be considered in establishing reasonable suspicion, Powell’s purported misrepresentation, did not "remotely" tend to suggest that he was armed and dangerous.

In dissent, Justice King stated that he found an ample basis here for suspecting that Powell may have been armed and dangerous, and that the risk of dismissing a "common sense" suspicion that a suspect may be armed is "inherently perilous to arresting officers."

Matters unrelated to justification for traffic stop

2011-11-15T16:14:00.003-05:00

US v. Guijon-Ortiz: Saul Guijon-Ortiz took issue with his conviction for illegal reentry after deportation; the Fourth Circuit affirmed. Guijon-Ortiz appealed the denial of his motion to suppress, in which he argued that during a traffic stop of a vehicle wherein he was a passenger, Guijon-Ortiz provided a fake ID, which the police officer discovered by calling ICE while the traffic stop was ongoing. Guijon-Ortiz argued that because of the length of time it took for the officer to contact ICE, he was subjected to an unconstitutional seizure. Guijon-Ortiz’s fingerprints were obtained when he was subsequently taken to an ICE office and questioned. The Fourth Circuit concluded that under a totality of the circumstances, the traffic stop was not unreasonably prolonged by the officer’s call to ICE.

Guijon-Ortiz’s appeal issue is this: once the officer learned that no one in the stopped vehicle had outstanding warrants, and since Guijon-Ortiz had given the officer an LPR card as identification, was the officer then permitted to call ICE to verify the validity of the LPR card? Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?

The Fourth Circuit relies on its decision from earlier this year, United States v. Digiovanni, in which it held that a stop exceeded the permissible duration and scope when an officer "failed to diligently pursue" the purpose of the stop and went off on a tangential investigation into drugs in the vehicle, the latter investigation constituting the bulk of the encounter. The officer’s diligence in pursuit of the investigation of the justification for the stop, is key, though the duration and scope of the stop are still relevant to the Terry analysis.

The Fourth Circuit finds it decision is consistent the position of the Sixth, Eighth and Ninth Circuits, which is at odds with the Seventh Circuit, which holds that questions unrelated to the justification for a stop that hold potential for detecting crime, that create little or no inconvenience, do not turn reasonable detention into unreasonable detention.

However, the Fourth Circuit affirmed for the following reasons: 1) calling ICE is analogous with how an officer routinely runs a driver’s license and registration to check their validity; 2) the time it took to call ICE was very brief; 3) the purpose of the stop was "still alive" when the officer called ICE; and 4) although the call to ICE was unrelated to the purpose of the stop, the call was a single, brief detour from an otherwise diligent investigation into whether the driver was impaired. They did not decide whether the officer had reasonable suspicion to believe that criminal activity was afoot at the time he called ICE. And, to the extent that the reasonableness of a traffic stop would be judged solely on the duration of the stop, the Fourth Circuit rejects that reasoning.

Drug conspiracy, and the vehicles of its operation

2011-11-15T15:00:00.002-05:00

US v. Cabrera-Beltran: A jury in Alexandria, VA, convicted Cabrera-Beltran of conspiracy to import and distribute cocaine and heroin. On appeal to the Fourth Circuit, Cabrera-Beltran raised several issues, including violations of his 6th and 14th Amendment rights.

On appeal, Cabrera-Beltran argued that three Spanish-speaking venirepersons should not have been struck by the district court after each of them expressed an inability to accept the translations of their native tongue by a court interpreter. The Fourth Circuit determined that the district court did not abuse its discretion in striking the potential jurors, holding that the "for-cause striking of prospective jurors based upon their perceived inability to accept an interpreter as the final arbiter of what was said or written does not violate the Equal Protection Clause" of the 14th Amendment, as it is integral to a fair trial that all jurors base their decision on the same evidence.

Next, Cabrera-Beltran argued that case management documents (Treasury Enforcement Communications System, or TECS) maintained by Customs and Border Patrol, to monitor the vehicles and license plates that cross the national borders, should not have been admitted because he could not cross-examine the border patrol agent who produced the information. The Fourth Circuit found that these documents were not testimonial, and did not violate the rule against hearsay because they are kept in the normal course of business, not for the purposes of a subsequent legal action. Additionally, at least two federal courts (5th and 9th) have held that these TECS records are admissible under the public records exception to hearsay.

Cabrera-Beltran also argued that because the jury convicted him for an amount of cocaine less than the amount alleged in the indictment, that he essentially received a variance which required reversal. The Fourth Circuit found, however, that a lesser included offense is included in the charged offense, and hence, there is no variance. Further, Cabrera-Beltran raised the issue of whether the indictment was effective, but since he had not raised this issue prior to trial, this claim was found to be waived. Cabrera-Beltran argued that the district court erred in giving an Allen charge as opposed to granting his request for a mistrial, when the jury announced its failure to reach a verdict. After two days, the jury eventually reached a verdict.

Cabrera-Beltran moved for acquittal based on insufficient evidence, that the witness testimony against him was vague, uncertain and incredible. The Fourth Circuit found substantial evidence supporting the verdict and found that the district court did not err in denying that motion. Cabrera-Beltran raised the issue that the district court erred in admitting testimony from Lorenzo Salgado as 404(b) evidence, testimony which detailed heroin transactions that occurred prior to the conduct alleged in the indictment. The Fourth Circuit concurred with the government that the testimony was relevant to prove knowledge and intent. Finally, Cabrera-Beltran raised two sentencing issues, that the district court erred in calculating the drug quantity by accounting for drugs that were sld to Salgado prior to the events of the indictment; second, that the district court erred in adding a two-level enhancement for his managerial role in the conspiracy. The Fourth Circuit found no sentencing errors.

Former sheriff's convictions affirmed

2011-11-10T11:26:00.002-05:00

US v. Medford: Medford, formerly the Buncombe, North Carolina, County Sheriff appealed his convictions for conspiracy and other charges related to his receipt of bribes in connection with an unlawful video poker machine scheme in that state, involving a South Carolinian video poker machine operator, Henderson Amusement, Inc. The Fourth Circuit affirmed the convictions on all counts.

Medford raised five issues in his appeal: the court committed error in admitting the recording of a meeting between Henderson Amusement reps and people affiliated with a sheriff’s department outside of Buncombe County; the court denied Medford’s motion to sever his trial from a co-defendant’s (Penland); insufficient evidence was presented for a conviction under the Hobbs Act; Medford was subjected to inconsistent and biased treatment from the court; and the Honest Services Statute, 18 U.S.C. sect. 1346 is unconstitutionally vague.

With respect to the admission of the recording, the Fourth Circuit did not decide whether the recording was admissible under Rule 801(d)(2)(E), concluding that any error in the admission of the recording was harmless in light of the "overwhelming evidence" supporting the jury’s verdict. The Fourth Circuit affirmed the district court’s decision not to sever the trials of Medford and Penland, a self-described "captain" in the Buncombe sheriff department, relying on its decision in United States v. Parodi for support. In Parodi, the Fourth Circuit established a four-factor test was issued for the analysis of motions to sever based upon the asserted need for a co-defendant’s testimony. The defendants here failed to satisfy the test because of Penland’s equivocation on his willingness to waive his 5th Amendment rights if the trials were indeed severed.

The Fourth Circuit quickly dispensed with the claim that the district court subjected Medford to inconsistent and biased treatment, reminding that there is a difference between "fair" and "perfect" trials, and concluded that Medford’s treatment was not unfair or biased.

The Fourth Circuit reviewed Medford’s claim that insufficient evidence had been presented to sustain a conviction under the Hobbs Act, under the plain error standard of review, as Medford failed to raise the issue at trial. Here, Medford argued incorrectly that all the parties from whom the conspirators obtained property were part of the conspiracy, which the Fourth Circuit found to be a false premise, and consequently rejected Medford’s claim that the evidence was insufficient.

Finally, the Fourth Circuit found that Medford’s position on the Honest Services statute has been foreclosed by the Supreme Court’s 2010 decision in Skilling v. United States, in which the "bribery and kickback schemes" provisions of the statute, under which Medford was convicted, were not unconstitutionally vague.

Obstruction of justice enhancement not a foregone conclusion when a defendant takes the stand

2011-11-03T10:24:00.003-04:00

US v. Perez: Perez challenged the denial of his request for new counsel, as well as an obstruction of justice imposed on his sentence. The Fourth Circuit affirmed the denial of his request for new counsel, but reversed and remanded on the sentencing enhancement, holding that the district court failed to make the necessary factual findings to support the imposition of the enhancement.

Prior to trial, Perez moved for new counsel, which request the district court denied. After trial and prior to sentencing, Perez moved for new counsel a second time, which the district court denied again (without a hearing), deciding that it would be better for Perez to be represented at sentencing by an attorney familiar with his case. On appeal, the Fourth Circuit found that there had been neither a lack of communication nor an inadequate defense, despite Perez’s complaint that counsel had "avoided my rights. He has not been paying attention to them." In the balance with the district court’s interest in efficiently administering justice, the Fourth Circuit found the district court correctly denied Perez’s request for new counsel.

In considering Perez’s obstruction of justice enhancement, the Fourth Circuit discusses the irregular application of United States v. Dunnigan by its district courts. In that case, the Supreme Court said that an enhancement based on perjury does not unconstitutionally undermine the right to testify in one’s own defense, as "not every accused who testifies at trial and is convicted will incur an enhanced sentence." If a defendant receives the enhancement and object to it, the district court is supposed to conduct a review of the evidence and make "independent findings necessary to establish a willful impediment to, or obstruction of, justice..."

District courts, after Dunnigan, are also supposed to make separate and clear findings to address each element of the alleged perjury, but it will suffice if they make a finding that encompasses all of the factual predicates for perjury. It is this sufficiency that has apparently caused some problems, and the Fourth Circuit gives a little mea culpa, stating, "[t]o date, we have not provided a great deal of guidance to the district courts in applying Dunnigan..." and resolves to remedy the situation by holding that "if a district court does not make a specific finding as to each element of perjury, it must provide a finding that clearly establishes each of the three elements...and requiring district courts to clearly articulate the findings necessary to reach a legal conclusion preserves our ability to conduct meaningful appellate review."

Statment of PC Not Sufficient to Determine Prior

2011-11-02T14:03:00.000-04:00

US v. Donnell: This is a pretty straight forward application of Shepard. Donnell was convicted of being a felon in possession of a firearm. His Guideline range was enhanced because the district court concluded that his prior Maryland conviction for second-degree assault was a "crime of violence." That conclusion was based on a "statement of probable cause" that the Government presented at sentencing in order to sort out the facts of the incident. Of course, such a statement was not part of the Shepard-approved documents during the plea hearing in Maryland, thus the Fourth Circuit concludes that the district court erred by considering it. Sentence vacated and remanded for further proceedings.

No mens rea Required for Stolen Firearm Enhancement; Counsel's Affirmation OK Basis for ACCA Prior

2011-11-02T13:54:00.001-04:00

US v. Taylor: Taylor and his codefendant, Thompson, were both convicted by a jury of being felons in possession of a firearm (same one, actually). A police officer in Baltimore saw Taylor hand the weapon to Thompson. When officers approached to arrest them, Thompson fled, dropping the gun along the way. Taylor received a sentence 96 months in prison, partly due to a two-level enhancement based on the firearm being stolen, while Thompson got a sentence of 180 months in prison, based on the application of the ACCA.

Taylor challenged both his conviction and sentence on appeal. As to the conviction, the Fourth Circuit concluded that there was sufficient evidence to support it, even though it was based on the direct observation of only one police officer (upon whose credibility Taylor launched "an extended attack"). As to the sentence, Taylor argued that the two-level enhancement for possession of a stolen firearm could not apply because it lacks a mens rea requirement. The court rejected that argument, noting that every other Circuit has rejected it and concluding that a mens rea requirement, while important in general, is not required for every sentencing enhancement to apply. The court also concluded that Taylor's bottom-of-the-Guideline range sentence was substantively reasonable.

Thompson challenged only his sentence on appeal, specifically whether a prior Maryland conviction for second-degree assault was a "violent felony" under the ACCA. The district court had relied upon a recitation of facts at Thompson's state plea hearing as a basis for concluding that the conviction was a violent felony. Thompson did not directly affirm those facts, but his counsel said there were no "additions or corrections" to that recitation. The court turned away Thompson's reliance on Alston, noting that his plea was not an Alford plea. That his lawyer, rather than Thompson himself, affirmed the factual basis for the plea was irrelevant.

Judge Davis dissented with regards to Thompson's sentence, arguing that the majority effectively rewrites Shepard and its protections for a defendant to not be bound by anything not explicitly agreed to by him.

"Employment" Can Include, Doesn't Require, Payment of Wages

2011-11-02T13:47:00.001-04:00

US v. Weaver: Weaver and his codefendants were members of the Pagans Motorcycle Club, which the Government alleged was involved in various nefarious activities. They were charged with "being employed" by a prohibited person and possessing a firearm "in the course of such employment." The "employer" was the president of the club, who was a convicted felon and, thus, could not legally possess firearms. The district court concluded that the statute required the Government to prove that Weaver and the others were "employed for wages," a standard which the Government admitted it could not meet. Therefore, the district court dismissed that charge.

The Government appealed and the Fourth Circuit reversed. After dealing with the procedural irregularities of the appeal (in a footnote), the court concluded that the district court's reading placed "an artificial restriction on the statute." The statute's plain language, the court concluded, does not show a "rigid requirement that defendants be hired for tangible compensation," because the word "employ" has many potential meanings. A more flexible test is appropriate and better implements the structure and purpose of the statute. However, the court declined the opportunity to set out that test in detail, remanding to the district court for further proceedings.

En Banc Court Addresses ACCA, Categorical Approach, and Indecent Liberties

2011-10-12T11:07:00.004-04:00

US v. Vann: Vann was convicted of being a felon in possession of a firearm. The PSR recommended that he be classified as an Armed Career Criminal based on three prior convictions in North Carolina for "indecent liberties" (aka sex offenses against children), which were violent felonies under the ACCA. Vann objected, arguing that in a post-Begay world some indecent liberties convictions would be violent felonies, while others would not and the record did not prove that his were violent felonies. The district court and a panel of the Fourth Circuit disagreed and Vann was sentenced to 180 months in prison.

Sitting en banc, the Fourth Circuit reversed course and vacated Vann's sentence. In a brief per curiam opinion (in which nine judges joined), the court explained that it "assumed" that (applying a "modified" categorical approach) any conviction under subsection (a)(2) (as opposed to (a)(1)) of the North Carolina indecent liberties statute was a violent felony, the Government could not prove that Vann's convictions were sustained under that subsection. It rejected the conclusion of Judge Niemeyer (concurring and dissenting) that because the charging documents were worded conjunctively and cited both subsections that Vann pleaded guilty to violating both of them, holding that (a) those documents weren't part of the record before the district court and shouldn't be considered and (b) even if they were, prior circuit precedent on conjunctively worded indictments did not support the dissent's position.

That's the first 10 pages. The other 90 pages of the opinion consist of a plethora of concurrences and one dissent:

Judge King concurred (with three others signed on),arguing against adopting a modified version of the categorical approach, concluding that such would "contravene Supreme Court precedent and the interests of justice," although noting that the result is the same in this particular case.

Judge Agee concurred both with the per curiam opinion Judge Keenan's concurrence and picks up Justice Scalia's withering attack on the vagueness of the ACCA (a "black hole of confusion and uncertainty stymies our best efforts," Judge Agee writes) in Sykes, calling upon Congress to fix it, and lays the blame squarely at Congress's feet "should a majority of the Supreme Court come to find Justice Scalia's conclusion the only constitutionally valid course."

Judge Davis (who joined Judge King's concurrence) concurred, offering more thoughts on the perils of the modified categorical approach.

Judge Keenan's concurrence (to which four other judges signed on) offers a defense of the modified categorical approach.

Judge Wilkinson concurred, offering another defense of the modified categorical approach, noting that "too many courts are too deep in the weeds on the matter of the ACCA's residual clause."

Judge Niemeyer dissented (joined by Judge Shedd), arguing that the record showed that Vann's prior convictions were ACCA violent felonies. He concurred in the use of the modified categorical approach, however.

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

Warrantless Entry Violates Fourth Amendment, Will Later Consent Avoid Suppression?

2011-08-22T14:13:00.002-04:00

US v. Hill: Police obtained a warrant for Hill's arrest on drug charges. They went to his last known address, a townhouse he shared with his girlfriend and their son. However, from prior experience the officers knew that Hill only spent about half of his time there and one officer speculated there was only a 20% chance he would be there (a previous visit to the home on a 911 hang-up led Hill's girlfriend to tell the officers he knew he had an arrest warrant out against him). Officers knocked on the door, but no one answered. They could hear what sounded like the TV playing inside. One officer called Hill's wife, who was at work. She said the only person who would be there was her sister. She did not give the officers' permission to enter.

Nonetheless, one of them turned the knob, opened the door, and saw Hill (and a friend) sitting on the couch. Officers did a protective search of the home, finding some marijuana. One officer went to obtain a search warrant. Before he returned, however, Hill's girlfriend arrived home. She may or may not have consented to a search of the home at that time. Regardless, a search was done by the time the warrant arrived. Officers found a gun and more drugs in the home, leading to Hill being charged with drug and firearm offenses. Hill moved to suppress the evidence, but the motion was denied. He entered a conditional guilty plea and was sentenced to 120 months in prison.

On appeal, the Fourth Circuit reversed the denial of the motion to suppress. First, the court held that the officers did not have sufficient evidence to suggest that Hill was actually in the home to execute the arrest warrant. Hill conceded he resided there (he had to in order to assert a Fourth Amendment protection), but the court held there was not sufficient evidence from which the officers could conclude he was actually there. Second, the court concluded that there were no exigent circumstances present that would justify entry into the home without a warrant. Third, the court held that Hill's girlfriend did consent to a search once she arrived at the home. However, the court did not decide whether the consent dissipated the taint of the initial illegal entry, an issue the district court did not reach. It remanded to the district court for further proceedings on that issue.

Judge Agee dissented, arguing that the majority did not give sufficient deference to the district court's finding of facts. When viewed with the proper deference, there was no basis for overturning the district court's ruling.

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

Court Reverses on North Carolina Priors

2011-08-22T14:03:00.002-04:00

US v. Simmons: Simmons was convicted on a federal drug charge and faced an enhanced sentence for a prior drug conviction "punishable by imprisonment for more than one year." The prior at issue was a North Carolina conviction for possession with intent to distribute marijuana. A "Class I" felony, it carried a potential sentence of more than one year in prison only if (a) certain aggravating factors were present and (b) Simmons had a "prior record level" of at least 5. Neither condition was met in Simmons's case. Nevertheless, the district court found that Simmons's prior qualified him for an enhanced sentence, applying an old Fourth Circuit case which held that the applicable potential maximum sentence in such cases was based on an offender with the worst possible criminal history. A panel of the Fourth Circuit affirmed that sentence, both before and after a remand from the Supreme Court.

On a rehearing en banc, the court changed course, 8-5, and vacated Simmons's sentence. The court, via Judge Motz, concluded that the Supreme Court expressly rejected the "hypothetical defendant" approach for analyzing North Carolina convictions. Because a defendant's maximum potential sentence on an offense in North Carolina is tied directly to his criminal history, the correct analysis is to determine what the maximum sentence possible a defendant with the same criminal history could have received (the actual sentence received is, of course, irrelevant). That brings the Fourth Circuit into line with the other two circuits that have looked at the North Carolina system.

Judge Agee led the dissenters, arguing that the language of the enhancement statute talks about an "offense" that is "punishable" by a certain potential sentence and does not allow for any consideration of a particular defendant's criminal history.

Congrats the Defender office in Western North Carolina, which headed up the amicus forces on this win!

Nervousness During Refusal to Consent to Patdown Doesn't Generate Reasonable Suspicion

2011-08-16T11:42:00.002-04:00

US v. Massenburg: Officers in Richmond responded to an anonymous report of shots fired in a "high-crime" neighborhood. They encountered a group of four men, including Massenburg, about four blocks away. The men were generally helpful (one reported hearing shots), provided identification, and consented to patdowns. However, Massenburg refused to consent to a patdown. He was, according to one of the officers, "real reluctant to give consent." Because Massenburg distanced himself somewhat from the other three men and would not make eye contact with an officer repeatedly asking for consent to perform a patdown, an officer patted him down anyway. The patdown uncovered a gun and some marijuana, leading to Massenburg being charged with drug possession and possession of a firearm by a drug user. He moved to suppress the gun and marijuana, but the district court denied the motion. Massenburg entered a conditional guilty plea and appealed that decision.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. Noting that it recently (in Foster) chided the Government for attempting to spin "mundane acts into a web of deception" in order to support a Terry intervention, the court wrote that such concern "is only heightened when the 'mundane acts' emerge from the refusal to consent to a voluntary search," concluding that, if Terry is to mean anything, "refusing to consent to a search cannot itself justify a nonconsensual search." After examining the testimony about the incident in some detail, the court concluded that "there is precious little to sustain the district court's holding" that there was reasonable suspicion to support a patdown. Massenburg's observed nervousness came only when the officer repeatedly sought his consent to pat him down, a situation that would make almost anyone nervous. The court also refused to impart to the officer who searched Massenburg the observation of another officer (not reported at the time) that he saw a bulge in Massenburg's jacket.

3582 Reduction Requires Reliance on Guidelines

2011-08-16T11:38:00.001-04:00

US v. Brown: Brown pleaded guilty to maintaining a crack house in 2005. As part of a Rule 11(c)(1)(C) binding plea agreement, he agreed that the "appropriate sentence in this case is incarceration for not less than 180 months and not more than 240 months." He was sentenced to 210 months in prison. In 2009, Brown filed a motion for a reduced sentence under 3582(c)(2) and the revised crack guidelines. The district court granted the motion and reduced his sentence to 180 months. The Government appealed, arguing that the district court lacked the jurisdiction to reduce a sentence imposed as part of a binding plea agreement.

On appeal, the Fourth Circuit agreed and vacated Brown's reduced sentence. The Supreme Court recently dealt with the issue in Freeman v, United States. However, as the Fourth recognized, that decision was not a hallmark of clarity. Four justices held that reduced sentences are always available in binding plea cases, while four others concluded (in dissent) that such reductions are never available. Justice Sotomayor took a middle approach, concluding that reductions were unavailable in such cases, unless the plea agreement specifically relies upon a particular Guideline range. Concluding that Sotomayor's opinion controls, the court concludes that Brown's plea agreement does not rely on a particular Guideline range. Therefore, the district court lacked the authority to reduce his sentence.

Identity Evidence Insufficient to Sustain Robbery, Firearm Charges

2011-08-16T11:30:00.001-04:00

US v. Bonner: Bonner was charged with a Hobbs Act robbery and use of a firearm. The charges arose from the robbery of a Subway restaurant in North Carolina by two African American men. One was wearing a NY Yankees cap. That was the only description provided by the two employees present during the robbery. Police pulled over an SUV exiting the parking lot shortly thereafter that, while it only included one occupant (who was never charged), did contain items linking the vehicle to Bonner. Police also recovered a Yankees cap from behind the store which contained DNA that matched Bonner (as well as several other people who could not be identified). Finally, a canine followed a scent from the area to a nearby gas station, from which a phone call was placed to Bonner's girlfriend several hours after the robbery.

Bonner was convicted at trial. However, the district court granted his motion for a judgment of acquittal after the conviction, having deferred ruling on Bonner's motion made after the close of the Government's case (and every subsequent opportunity). The Government appealed, arguing that the evidence was sufficient to support the convictions, when considered in the light most favorable to the Government.

The Fourth Circuit affirmed the district court's grant of the motion for acquittal. The court concluded that there was a "conspicuous absence of any contemporaneous 'identity' evidence linking the defendant to the robbery." As for the DNA match to the Yankee cap, the court noted that the cap had several different DNA samples on it and nothing proved that Bonner wore it the night of the robbery (as opposed to some other time). The court also refused to rely on an inference put forth by the Government that the dog tracking a scent from the scene to the gas station did so based on the "predominant DNA" present on the cap (Bonner's). The court noted that the Government's inference lacked any basis in the record. In addition, "not every articulable inference is proper because scientific rigor demands more than a theory of plausible deductions strung together."

Tailgating traffic stop lasts too long

2011-07-28T13:45:00.002-04:00

US v. Digiovanni: The government appealed the district court's decision in this case to suppress evidence found after a traffic stop for tailgating lead to a baseless, involuntary vehicle search on I-95. The Fourth Circuit affirmed the district court's decision to suppress.

In addressing the length of the stop, the district court found that it lasted longer than necessary, at approximately 15 minutes, when the purpose of the stop was to issue Digiovanni with a warning not to tailgate. The police officer did not diligently check Digiovanni's license, instead he embarked on a unwarranted drug investigation, not supported by any reasonable suspicion. The district court also found fault with the officer's coercive attitude during the traffic stop and the involuntariness of the written consent Digiovanni signed.

Neither party disputed the lawful nature of the traffic stop at its inception; however, the seizure was not limited in both scope and duration as required under Terry: if the officer wants to extend the discussion outside the scope of the initial stop, there must be reasonable suspicion or he must receive the driver's consent. Unrelated questions during an investigative stop are okay, but they cannot extend the length of the time in which the defendant is detained.

The articulated facts of the case, according to the district court, simply did not eliminate a substantial portion of innocent travelers, so there was no reasonable suspicion to investigate Digiovanni beyond the traffic stop. The video evidence from the police car helped to expose the absurdity of the stop and its justifications to great effect.

Abuse-of-trust enhancement ok'd for fake bail bondsman

2011-07-08T10:27:00.003-04:00

US v. Brack: Brack pled guilty to wire fraud and aggravated identity theft, after posing as a bail bondsman and pretending to assist an elderly man in posting bond for his granddaughter. Brack took the man's social security card, driver's licence and ATM card, opening up multiple lines of credit and purchasing several items; he later gave Brack cash amounting to $16,568 and the deeds to two properties as collateral for his granddaughter's bond. At Brack's sentencing, the district court applied an abuse-of-trust enhancement, based on her masquerade as a licensed bail bondsman. The Fourth Circuit affirmed.

Brack failed to object to the abuse-of-trust enhancement at sentencing, so the Fourth Circuit reviewed the district court's factual findings only for clear error. The Fourth Circuit discussed how the enhancement applies to imposters, so long as the "defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust." Brack argued that as a matter of law, bail bondsmen in North Carolina do not occupy a position of public or private trust, to which the Fourth Circuit responded that indeed, bail bondsmen are subject to a comprehensive system of regulation to obtain a license, their qualifications are spelled out statutorily, and they must meet residency, educational and training requirements - clearly positions of public trust that entail certain fiduciary duties to customers. The Fourth Circuit concluded that no clear error occurred in the imposition of the abuse-of-trust enhancement in Brack's case.

Just deserts for timely acceptance of responsibility

2011-07-08T10:01:00.004-04:00

United States v. Divens: Divens pled guilty to distributing cocaine, signed his acceptance of responsibility letter, but declined to sign a plea agreement that would waive his right to appellate review and collateral attack. The Government subsequently refused to give Divens a third-level reduction for acceptance of responsibility under sect. 3E1.1(b).

At the time of sentencing, Divens objected to the pre-sentence report Guidelines calculation, acknowledging that the district court could only award the third level reduction upon motion of the Government, and the Government argued that its refusal to move for the additional reduction was "rationally related to the purposes of the guidelines" because it allowed the Government to avoid defense of "a complete appeal" and to "allocate its resources to other matters."

The Fourth Circuit broke with other circuits in determining that the Government does not enjoy the discretion it does under sect. 5K1.1 in sect. 3E1.1, finding that sect. 3E1.1 does not require that a defendant provide the prosecution with assistance that must reduce "expense and uncertainty" at attends an appeal. Nothing in sect. 3E1.1 permits the Government to withold the third level reduction on the basis of an interest in conserving appellate resources. Next, the Fourth Circuit disagreed with the Government that courts should interpret the guidelines in a manner that facilitates the Government's pursuit of appellate waivers. Third, the Fourth Circuit held that when a defendant pleads guilty unconditionally in a timely fashion, that defendant's refusal to sign an appellate waiver has no impact on the ability to challenge a conviction or on the Government's need to "anticipate" such a challenge.

Congrats to Jonathan Byrne in the Southern District of West Virginia!!!

Nearly 20-year sentence vacated by 4th Circuit

2011-05-30T19:22:00.005-04:00

US v. Doyle: Doyle was convicted of receiving, possessing and mailing child pornography, and received a sentence of 235 months. On appeal, Doyle challenged the district court's decision to deny his motion to suppress. The Fourth Circuit disagreed with the district court that the good faith exception from Leon applied in this case, and held that the affidavit in support of the search warrant lacked the necessary information that the neutral magistrate could glean probable cause to support a search for child porn. The Fourth Circuit framed the question for review as not whether the warrant was simply deficient, rather whether the warrant was so deficient that relying upon it was unreasonable, thus precluding the operation of the good faith exception.

Court appointed counsel and their clients are people, too

2011-05-18T16:50:00.002-04:00

US v. Smith, a.k.a. Poe: It's a subject matter close to the hearts of court appointed counsel everywhere, the quality of harmony in attorney-client relations. In this appeal, defendant Smith challenged the voluntariness of his plea, to which he had agreed following several attempts to obtain substitute counsel.

The Fourth Circuit waxes sympathetic as it considers the Sixth Amendment right to assistance of counsel, to deal with Smith's contention that the district court's denial of his substitution of counsel request rendered his guilty plea involuntary (he had been named in a 20-count indictment charging him and 27 others with racketeering and conspiracy to district and possess with intent to distribute drugs). "The mere physical presence of counsel is not enough: it is the marriage of the attorney's legal knowledge and mature judgment with the defendant's factual knowledge that makes for an adequate defense...more than a 'warm body' is required to satisfy the Sixth Amendment." The Fourth Circuit refers to Sixth Circuit's findings in three cases of per se Sixth Amendment violations, and a Ninth Circuit case where the denial of a substitution motion resulted in the constructive denial of counsel. Upon resolving the question of the appropriate standard of review to consider the denial of substitution requests as clear error review, the Fourth Circuit declines to find clear error.

Was Smith's guilty plea rendered involuntary? Was it effectively uncounseled because of a failure to communicate between appointed counsel and client? The parties remained on speaking terms, counsel continued to make visits to his client in prison, and though the two may have argued, the Fourth Circuit found that there was no conclusive break prior to the plea hearing, and Smith's contention that his plea was involuntary failed. Neither did the Fourth Circuit find that the denial of Smith's request for substitute counsel at the time of sentencing cause a clear error.

The Fourth Circuit considered the nature of the communication between counsel and client throughout the representation, and it noted that there had been severe damage by the time of sentencing; yet, since counsel and client had met, reviewed the PSR, and communicated enough to allow counsel to present some concerns to the court, the Fourth Circuit declined to find that counsel failed to render genuinely effective assistance.

And while "there is no one-free-lawyer" rule, the Fourth Circuit found that Smith's one appointed lawyer was sufficient here to protect his Fifth and Sixth Amendment rights.

Confrontation Clause at sentencing hearings

2011-05-17T10:58:00.003-04:00

US v. Powell: Powell was convicted of mail fraud, wire fraud and attempted destruction of evidence, following an investigation made on behalf of customers of his Internet-based electronics sales business. On appeal, Powell challenged the way the government gathered evidence against him for use at his sentencing hearing: the number of victims and amounts of monetary losses were not solely determined by trial testimony, but also through hearsay statements of other victims made to the investigating postal inspector. The government requested an enhanced sentence based on all of this evidence, not just the testimony of the eight victims who testified at trial. Powell argued that these investigatory methods violated his Confrontation Clause rights by relying on hearsay statements from individuals who did not testify.

The Fourth Circuit discussed the distinctions between trial evidence and sentencing evidence, especially with respect to hearsay, finding a long line of established cases in the Supreme Court, sister circuits and its own jurisprudence, indicating the confrontation right does not apply at sentencing. The Fourth Circuit found that Powell was not without some evidentiary protections, however, stating that due process requires a minimal level of reliability sufficient to support its "probable accuracy" as required by the Guidelines.

"Structural" versus "trial error" in discussion of co-defendants' guilty pleas

2011-05-13T16:46:00.005-04:00

US v. Poole: Poole, an accountant, was convicted following a bench trial of four counts of aiding and assisting in the preparation of false tax returns. The Fourth Circuit affirmed.

Poole's appeal challenged the district court's verdict in three ways, claiming that the convictions were unlawfully based on the guilty pleas of his co-defendants, on the improperly credited testimony by a key government witness that Poole believed to have been false, and insufficient evidence that he knew the returns were fraudulent and that he acted willfully in filing them.

Poole referred to the district court's multiple mentions of his co-defendants' guilty plea on the record as grounds for denying him a fair trial. The Fourth Circuit found these statements to constitute error on the basis that the district court gave consideration to facts not in evidence. While Poole wanted the Fourth Circuit to find this error as "structural" as opposed to "trial error," as explained in United States v. Blevins, the Fourth Circuit held that the district court's error was "a classic example of trial error subject to harmless error review," and following a harmless error analysis, found the error harmless in light of "overwhelming" evidence of Poole's guilt.

The Fourth Circuit considered Poole's second appeal issue as a request to reverse a credibility determination, made by the district court, which it declined to do; it deferred to the district court's estimation of the witness's credibility and reliability. Finally, the Fourth Circuit determined that Poole purposefully ignored large accounting discrepancies, such that he could not claim willfull blindness about his clients' financial misdeeds.

Overreaching protective sweep "saved" by independent source doctrine

2011-05-12T10:29:00.000-04:00

US v. Bullard: Bullard was convicted of possession with intent to deliver crack. He appealed the denial of a motion to suppress, argued the disparities in sentencing for cocaine and crack offenses violate both Equal Protection and Due Process, and that the FSA should apply to him.

First, the Fourth Circuit held that Bullard's Fourth Amendment rights were not violated by the investigating officers in this case. After finding it unnecessary to determine whether Bullard had a privacy interest as an unregistered hotel guest, the Court focused its attention on the problematic protective sweep the police conducted here. The protective sweep included a search of closed luggage and cabinets, but only after the police had found obviously incriminating evidence in plain view (e.g. the "smell" of narcotics, paraphernalia, and cocaine residue); however, the Fourth Circuit found that the sweep was saved by the independent source doctrine for two reasons: 1) the officers did not rely on the information they obtained in the protective sweep to obtain their search warrant; and 2) the officers intended at the outset of the search to obtain a search warrant. An overly aggressive protective sweep requires suppression, only if the "illegal search tainted the later recovery of the same evidence pursuant to a valid search warrant."

Second, the Fourth Circuit held that only the Supreme Court could overrule Fourth Circuit precedent set by a prior Fourth Circuit panel, declining to adjust the position that the disparities in crack and cocaine sentencing in 21 U.S.C. sect. 841 do not violate Equal Protection or Due Process rights.

Third, the Fourth Circuit held that the Savings Statute precludes the retroactive application of the new penalty provisions of the FSA to individuals who had been sentenced prior to the effective date of the FSA in early August 2010, a decision in concert with sister circuit rulings.

Murder and Conspiracy convictions affirmed following evidentiary challenges

2011-05-12T10:18:00.000-04:00

US v. Byers: Byers and Co-Defendant Goodman were convicted of conspiracy and murder of a witness, Carl Lackl, to prevent Lackl from testifying in a Maryland state murder trial. On appeal, the two challenged several evidentiary rulings, and Goodman appealed the denial of his pretrial motion to suppress. The Fourth Circuit affirmed.

Lackl was to testify as an eyewitness against Byers in the March 2006 shooting of Larry Haynes; another eyewitness recanted, leaving Lackl as the sole person who could place Byers at the Haynes murder scene. Whether Byers had motive to kill and whether Lackl was accurate in his identification of Byers in the earlier murder investigation became crucial at trial.

The Fourth Circuit determined that 404(b) evidence of Byers's invovled in two prior shootings suggested a common theme, and was "necessary" to counter Byers's strategy of negating motive. And, for good measure, even if the district court abused its discretion in allowing this evidence in, the Fourth Circuit found this error was harmless. Byers attacked Lackl's reliability as an effective witness and Lackl's identification of Byers at the scene of Haynes's murder. Also, the Fourth Circuit held that it was not error to admit the statements of Lackl's girlfriend, who warned him of the mortal danger of his involvement as a testimonial witness.

Goodman's appeal issues concerned the testimony of a rebuttal witness, arguing that the proposed testimony failed to counter any new evidence presented in Goodman's case-in-chief. The Fourth Circuit decided that the proposed testimony went to the witness's credibility, and any error in admitting it was harmless. Goodman also appealed the denial of his motion to suppress of his post-arrest statements, which he claimed were involuntary. Under a totality of the circumstances, the Fourth Circuit found no unconstitutional coercion on the record.

Rehearing on Batson claim results in affirmance

2011-05-12T10:10:00.000-04:00

US v. Barnette: Barnette was convicted in 2000 of killing his ex-girlfriend and another person. He received a death sentence, appealed it, had his convictions affirmed but received a new sentencing hearing. His death sentence was affirmed; on his second appeal of the sentencing, the Fourth Circuit rejected his initial Batson challenge. Barnette appealed to the Supreme Court, which granted certiorari, vacated the judgment and remanded the case for reconsideration of the Batson claim in light of the Supreme Court's recently-issued opinion, Miller-El v. Dretke. The Fourth Circuit remanded to the district court, which in turn issued a memorandum order, finding that Barnette had not met his burden of demonstrating that the prosecution had engaged in unconstitutional peremptory strikes against five African American members of the jury venire for his second sentencing in 2002. The Fourth Circuit found no prejudicial error in the district court's findings, and affirmed.

Burglary of "Shop" In Virginia Triggers ACCA Enhancement

2011-05-09T11:10:00.001-04:00

US v. Baxter: Baxter was convicted of being a felon in possession and was sentenced as an armed career criminal. Baxter argued that a 1976 Virginia conviction for burglarizing a "shop" was not a violent felony, within the meaning of ACCA. The district court disagreed. On appeal, the Fourth Circuit affirmed the sentence. Relying on "the definitive construction" of the burglary statute from the Virginia Supreme Court, the court held that "shop" was not so vague as Baxter argued and that the "shop" was "affixed to the ground" and therefore fell within the generic definition of "burglary" found in Taylor v. US, 495 U.S. 575 (1990).

Delay In Mutli-Defendant Drug Case Doesn't Violate STA or Due Process

2011-05-09T11:07:00.001-04:00

US v. Shealey: Shealey was initially charged, along with several codefendants, with several counts related to the distribution of drugs. As trial neared - already delayed by on continuance - one of Shealey's codefendants sought further delay, based on a change of counsel and the late delivery of substantial discovery by the Government. Shealey objected to the continuance and asked for his trial to be severed from the others and to proceed without delay. That motion was denied. After rejecting a plea bargain, Shealey was further charged with two counts of money laundering. He was convicted on all counts at trial and sentenced to life in prison.

On appeal, Shealey raised several arguments challenging his conviction and sentence, all of which the Fourth Circuit rejected. First, Shealey argued that the district court erred by dismissing his motion to sever, particularly given that numerous codefendants who testified at his trial only pleaded guilty after the original trial date had passed. The court disagreed, holding that the district court did not abuse its discretion and that Shealey's argument for why he was harmed is not an injury to a "specific trial right" or other prejudice that resulted from a joint trial. Second, Shealey argued that the late filing of the superseding indictment against him violated his right to due process because it gave the Government time to negotiate plea bargains with other defendants/witnesses. The court disagreed, holding that Shealey could not point to any concrete prejudice he suffered as a result. Finally, Shealey argued that his life sentence was substantively unreasonable. The court disagreed, noting his criminal history and "voluminous quantities of drugs" involved.

Felony Enhancements for Unauthorized Computer Access Misdemeanors Violate Double Jeopardy

2011-05-09T11:02:00.001-04:00

US v. Cioni: Cioni engaged in a pattern of harassment against an ex-lover and those around him. As a result, she was charged with several offenses, including two counts of obtaining information through unauthorized access to computers. Although that offense is ordinarily a misdemeanor, it can become a felony if it was committed "in furtherance" of other offenses. In Cioni's case, she was alleged to have committed the offenses in furtherance of obtaining access to communications in electronic storage. The jury convicted her on those charges (and three others) and found they were committed in furtherance of other offenses, triggering the felony enhancement.

On appeal, the Fourth Circuit reversed Cioni's convictions on those two counts, remanded for the imposition of misdemeanor convictions and for resentencing. The court agreed with Cioni that, the way the offenses were charged, she was convicted of the misdemeanor offense and then had that enhanced to a felony, based on the same conduct. That enhancement violated the Double Jeopardy Clause. The court then rejected Cioni's arguments that the evidence was insufficient to sustain two of the other convictions against her, that she did not knowingly and voluntarily waive her right to counsel at sentencing, where she proceeded pro se, and several other minor arguments. The court vacated Cioni's 15-month sentence, the two felony convictions, and remanded for further proceedings.

Court Clarifies "Evidnce as a Whole" in 2255 Cases

2011-04-20T13:28:00.002-04:00

US v. MacDonald: MacDonald was convicted in 1979 of murdering his wife and two daughters at Fort Bragg in 1970. He has steadfastly maintained his innocence. In 2006, he filed (with permission from the Fourth Circuit) a successive 2255 motion asserting a due process claim of newly discovered evidence with regards to a former US Deputy Marshal named Britt ("Britt claim"). Britt stated that he was present when the prosecutor at MacDonald's trial interviewed another potential suspect (and defense witness) and threatened her with being prosecuted for the murders if the testified consistently with what she told him. Shortly thereafter, results of DNA testing (authorized by the Fourth Circuit in 1997!) became available. MacDonald (without permission) added a claim of actual innocence based on the results of the DNA tests ("DNA claim"). He also urged the district court to consider the DNA evidence as part of the "evidence as a whole" in resolving the Britt claim. The district court denied relief. As to the DNA claim, the court found it lacked jurisdiction because MacDonald failed to get permission to file that claim. As to the Britt claim, after a "more searching" analysis than the Fourth Circuit made, the court denied MacDonald leave to file the new 2255 motion.

The Fourth Circuit (a two-judge panel, due to the death of Judge Michael after oral argument) reversed and remanded for further consideration of both claims. As to the Britt claim, the court found that the district court applied the standard of review applicable to review of state convictions, rather than federal ones. While the standards were very similar, the court remanded for reconsideration rather than find the error be harmless because "the court committed prejudicial error by taking an overly restrictive view of what constitutes the 'evidence as a whole'" by not expanding the record to consider evidence received after trial and MacDonald's initial 2255 petition. The district court erred by limiting its review to only the trial record and the specific newly presented evidence of the Britt claim. As to the DNA claim, the court concluded that the district court had jurisdiction over it because it was properly added to an otherwise authorized successive motion. The court did not reach the substance of either of MacDonald's new claims.

Flight Tolls Supervised Release Term

2011-04-20T13:27:00.001-04:00

US v. Buchanan: Buchanan started his five-year term of supervised release in 1993. He was allowed to relocate to Ohio, but his supervision continued out of the Eastern District of Virginia. In 1994, he was indicted on state drug charges in Ohio. When his trial started in 1995, Buchanan was a no show. His probation officer in Virginia filed a petition to revoke Buchanan's supervised release and a warrant was issued. Years passed, until Buchanan was located and arrested in Georgia in 2008. After his arrest, the probation officer in Virginia filed two addenda to the petition to revoke. Buchanan moved to dismiss the addenda, as they were filed after his five-year term had expired. The district court held that the term was tolled while Buchanan was on the lam, revoked his supervised release, and sentenced him to concurrent sentences of 48, 36, and 27 months on the petition and two addenda.*

On appeal, the Fourth Circuit affirmed the district court. The court noted that the supervised release statute does not address whether a term tolls while a supervisee is AWOL, if no petition/warrant is issued during the supervised release term. For the First Circuit, that means it does not toll. For the Ninth, it read into the statute a tolling mechanism in order to avoid providing supervisees with a reason to abscond. The Fourth Circuit followed the Ninth (I can't believe I actually wrote that!), holding that to do otherwise would foil congressional intent and reward absconders.

* This completely baffles me. In every supervised release case I've seen, there's only been one sentence per SR term, not one per violation (or batch of violations). Since Buchanan didn't challenge the initial petition, which was the basis of the 48-month term, the Fourth Circuit could have dismissed the appeal under the "concurrent sentence doctrine" but declined to do so.

Court Affirms Threatening Mail Convictions for Letters to USMS

2011-04-20T13:23:00.002-04:00

US v. Rendelman: Rendelman went to trial (pro se) on six counts of mailing threatening communications under 18 USC 876(c). The threat in Count Two was directed specifically at the president, while the threat in Count Seven (one count of the indictment was dismissed before trial) was directed against the president and "all White House employees." Both counts involved letters sent to the US Marshal's Service while Rendelman was incarcerated. He was convicted on all counts and sentenced to 180 months in prison, including an enhanced 120-month term on Count Seven (in which the stat max was doubled because of the threat to White House employees).

On appeal, Rendelman (no longer pro se) raised several challenges to Counts Two and Seven, which the Fourth Circuit rejected. First, he argued that both counts were fatally defective for failing to allege violations of the statute. As to Count Two, the court rejected Rendelman's argument that the USMS is not a "person" under 876(c), holding that Count Two alleged the fundamental elements of the offense: mailing, threat, and mens rea. The same argument met the same fate on Count Seven, which also set forth the element triggering the enhanced statutory maximum. Second, the court rejected Rendelman's argument that the evidence was insufficient to support the convictions, including the jury's determination that the Count Seven enhancement had been triggered. Finally, the court rejected, with little discussion, his argument that the charges had been constructively amended at trial.

One to watch

2011-03-18T10:07:00.003-04:00

On Wednesday, March 23, 2011, the Fourth Circuit will hear argument in the case, US v. Maurice Williams, No. 10-4368, considering whether the district court erred in imposing the mandatory minimum term on crack cocaine in light of the FSA and a 5-year consecutive term on a Sect. 924(c) count.

The case for changing your email password

2011-03-10T14:10:00.004-05:00

United States v. Blauvelt: Blauvelt appealed from his convictions for possession and production of child porn, as well as possession of cocaine and two counts of distributing controlled substances to minors. Blauvelt received a 293-month sentence. The Fourth Circuit affirmed, with the Honorable Sandra Day O'Connor sitting by designation as an Associate Justice.

Factually, Blauvelt's former girlfriends, Anne Bridges and Erin Ruley, had a phone conversation, in which Bridges revealed that she had received an email from Blauvelt that contained explicit images of Ruley's 14-year-old sister, B.R. Bridges reportedly deleted the email, but she recalled Blauvelt's email account password and used it to open Blauvelt's email account, accessed the images, and showed them to Ruley. Ruley recognized both her younger sister and the interior of Blauvelt's home depicted in the photos. Bridges supplied Ruley with the email password, and Ruley went to her mother's home, printed out the photos and a screen shot of Blauvelt's email inbox, which demonstrated that the explicit photos were taken with Blauvelt's cell phone and were forwarded to his email account.

Ruley's mother called police, who then interviewed her, Ruley, and B.R., who confirmed that she was the girl in the photos. T.J., a minor male who also appears in the photos, arrived and gave statements to the police, incriminating Blauvelt. The police went to Blauvelt's home, and secured the residence while waiting for a search warrant to be signed. When the rest of the investigative team arrived with the warrant, Blauvelt was given his Miranda warnings, and he waived these rights. Blauvelt then gave statements to police; infamously, he said "oops." Officers seized his cell phone, a desktop computer, a media storage card, a digital camera, a mirror and a straw.

On appeal, Blauvelt made numerous challenges, starting with the denial of his motion to suppress evidence seized pursuant to the search warrant (for lack of probable cause), to the denial of his request for a hearing pursuant to Franks v. Delaware, to the legality of his detention for three hours prior to the issuance of the search warrant, to the improper admission of some bad acts evidence under Rule 404(b), the imposition of a two-level obstruction of justice enhancement, and jury tampering. The Fourth Circuit showed little trouble rejecting each of these arguments and affirming the convictions.

Convictions affirmed, Circuit split joined

2011-03-09T13:40:00.003-05:00

US v. Halstead: Halstead was convicted of healthcare fraud and conspiring to launder money, and he received a sentence of 151 months. After his direct appeals failed, Halstead filed a petition for the collateral review of his convictions, attempting to vacate the money laundering conviction. Halstead wanted the Fourth Circuit to find a "merger problem" resolved by the Supreme Court in United States v. Santos, so that his money laundering conviction would be vacated, and dramatically reduce the jail time he could expect.

The Fourth Circuit decides here that Santos does not apply, because the charging documents for Halstead's convictions adequately defined his crimes as separate transactions not subject to merger. Indeed, affirming Halstead's convictions was a sideshow in comparison to the main event in this case, in which the Fourth Circuit joins a circuit split on the correct reading of the Santos holding.

The Fourth Circuit joins the 1st and 8th Circuits, finding that Santos requires the solution that when a merger problem arises in the context of money laundering coupled with illegal gambling, the proceeds of the illegal gambling business are its net profits. When the merger problem rears its ugly head outside of this context, e.g. when a case involves money laundering with some predicate crime other than illegal gamblng, the solution depends on a case-by-case analysis, with a consideration of the legislative history of the predicate offense.

Army Board decision on application for discharge reinstated

2011-03-07T16:25:00.002-05:00

Kanai v. McHugh: Kanai, a West Point cadet in his final year, sought a discharge from the Army as a conscientious objector. The Department of the Army Conscientious Objector Board denied Kanai's application on the basis that he failed to demonstrate sincerely-held beliefs entitling him to conscientious objector status. The Army subsequently relieved Kanai of his duties at West Point; Kanai went home to Maryland and filed a petition for writ of habeas corpus under 28 U.S.C. 2241. The district court granted Kanai's petition, and the Army appealed.

In determining whether the district court had jurisdiction to hear Kanai's habeas petition, the Fourth Circuit was presented with a question the federal courts have not yet resolved: where should habeas suits be filed when the petitioner is not in jail? The Fourth Circuit sidestepped the challenge to formally resolve the precise meaning of the phrase, "within their respective jurisdictions," in section 2241(a), finding instead that this statutory language "identifies the proper location of the federal district court in which a habeas petition should be filed," rejecting a subject-matter jurisdiction analysis (in accordance with the Supreme Court's holding in Rumsfeld v. Padilla). Additionally, the Fourth Circuit states that any challenge based on this language is waived if not asserted at the district court. Since the Army did not assert a jurisdictional challenge until its appeal, the Fourth Circuit deemed it waived.

On the merits of whether the Army Board had a basis to deny Kanai's application for discharge as a conscientious objector, the Fourth Circuit decided against Kanai, though it remarked favorably on him as "contemplative, self-reflective, and honest." The standard of review for the Army Board's decision required the Fourth Circuit to uphold the denial if it were supported by a "basis in fact." Such a basis exists when "conflicting inferences can be drawn from the same evidence." The Fourth Circuit held that three members of the Army Board's five-member panel appropriately found that Kanai had not presented sufficient evidence to demonstrate his "moral opposition to all wars." On this narrow standard of review, it upheld the Army Board's denial of Kanai's application for discharge.

Vitalizing the exclusionary rule

2011-03-03T12:18:00.002-05:00

US v. Foster: Foster pled guilty to one count of possession with intent to deliver cocaine after police officers discovered drugs and some paraphernalia during an investigative stop. Foster reserved the right to appeal the denial of a suppression motion in which he argued that the officers lacked a reasonable suspicion to make the stop.

In a felicitous turn for Foster, the Fourth Circuit on appeal expresses its dismay at what it characterizes as "Government attempts to spin these largely mundane acts into a web of deception," finding a lack of articulable facts to support the district court's finding of reasonable suspicion sufficient to support the investigative stop, and vacates Foster's conviction.

Remarking on the similarity of this case to the factual scenario of US v. Sprinkle, in which the court held officers had unlawfully seized a driver with a known criminal record and his passenger while the two were huddled together in a car parked in a high crime area, the Fourth Circuit here chides the Government for making sinister the actions of Foster in a parked SUV: Foster sat up swiftly from a crouched position in the front passenger seat as a detective walked towards the vehicle; and Foster's "frenzied" arm movements directed towards the floor of the car. In its evaluation of the totality of the circumstances, the Fourth Circuit decided that the defendant's behavior, observed at some distance by the off-duty detective, in the middle of the day, in a parking lot near a restaurant where the detective had just lunched with his wife, could not have supplied the requisite reasonable suspicion necessary for a Terry stop. The Fourth Circuit concludes by advising the Government against a reliance upon "ad hoc rationalizations to validate those seizures that happen to turn up contraband."

Please use this case for the colorful judicial invective in such quotes as "we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous," and "we note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Bookmark this case for your next motion to suppress, folks.

Harp Still Controls Analysis of NC Priors

2011-02-23T14:03:00.002-05:00

US v. Simmons: Simmons pleaded guilty to three drug charges after the Government filed an information under 21 USC 851 to enhance his sentence based on a prior conviction. The prior at issue is a 1996 North Carolina conviction for possession with intent. Under North Carolina law, which ties statutory sentencing maximums to criminal history, Simmons could not have been sentenced to a term of more than 12 months in prison for that offense, as needed to trigger the 851 provisions. However, someone with the worst possible criminal history could have received such a sentence. Under Fourth Circuit law at the time of his sentencing, the conviction therefore triggered the provisions of 851.

After Simmons's sentence was affirmed on appeal, the Supreme Court GVR'd in light of Carachuri-Rosendo v. Holder. On remand, the Fourth Circuit held that Carachuri-Rosendo did not undermine the earlier circuit precedent and again affirmed the sentence. Specifically, the court rejected Simmons's argument that Carachuri-Rosendo required the court to abandon its "hypothetic defendant" analysis when examining prior convictions. The court held that the difference in statutory language between the immigration laws at issue in Carachuri-Rosendo and 851 showed the rule of Carachuri-Rosendo could not be imported into the 851 context. Carachuri-Rosendo was simply "inapplicable to our present inquiry." The court also rejected Simmons's argument with regards to whether his prior conviction was obtained in violation of his right to counsel.

UPDATE: See here, reversed en banc.

Harmless Error Analysis for Guideline Miscalculation

2011-02-23T14:02:00.000-05:00

US v. Savillon-Matute: Savillon-Matute pleaded guilty to illegal reentry. Prior to sentencing, the probation officer recommended an 8-level enhancement because Savillon-Matute's prior Maryland conviction for second-degree assault was an "aggravated felony." The Government objected, arguing that a 16-level enhancement was applicable because that prior offense was a "crime of violence" because the victim was seven years old and force was involved. Savillon-Matute argued that neither enhancement applied. At sentencing, the district court agreed with Savillon-Matute that his Maryland conviction was not a crime of violence, but took judicial notice that the charging documents made the age of the victim and use of force clear. The 8-level enhancement was applied. However, Savillon-Matute was sentenced to 36 months in prison, twice the top of the advisory Guideline range.

On appeal, Savillon-Matute argued that his sentence was unreasonable because the district court incorrectly calculated the advisory Guideline range by using documents outside the scope of those allowed by Shepard to determine the victim's age and use of force. The Fourth Circuit affirmed the sentence, refusing to "wad[e] into the morass of how to apply Shepard in the particular circumstances of this case" because any error in calculating the Guidelines was harmless. Adopting the logic of an 11th Circuit case, the court held that "it would make no sense to set aside [a] reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm." Looking to the statements of the district court in this case, the court concluded that the same sentence would have been applied regardless of the Guideline calculation.

No Suppression Required for ECPA Violation

2011-02-23T14:00:00.000-05:00

US v. Clenney: Clenney pleaded guilty to being a felon in possession of a firearm. The firearm was discovered during a search of his home subsequent to his arrest on state extortion charges. The extortion investigation led officers to Clenney's home. Clenney sought to suppress the gun (and his statement admitting it was his), but the district court denied his motion. He preserved the issue for appeal.

On appeal, Clenney offered two arguments as to why the evidence against him should be suppressed, both of which the Fourth Circuit rejected. First, Clenney argued that the evidence should have been suppressed under Franks due to inaccurate information presented in the applications for the warrants as well as information intentionally left out in order to mislead the issuing judge. The court disagreed, noting that the assertions that Clenney claimed were inaccurate were actually accurate and that the information withheld from the magistrate was not material and would not have changed the probable cause determination.

Second, Clenney argued that information obtained from his cell phone during the search was obtained in violation of the Electronic Communications Privacy Act and Virginia law. The court held that, although the information retrieved from Clenney's phone was covered by those provisions, he had failed to prove it was obtained without following the procedures set forth for obtaining them. In addition, the court held that suppression was not available as a remedy for such a violation because neither of the statutes provided for suppression.

Finally, the court briefly turned away arguments that Clenney's Miranda waiver was not valid and that he was not promptly presented to a magistrate following his arrest.

District Court Must Allow Defendant to Withdraw Plea When It Overrides Mandatory Provision

2011-02-23T13:59:00.001-05:00

US v. Lewis: Lewis entered into an agreement with the Government to plead guilty to one count of witness tampering (another of those counts and a felon in possession charge would be dropped). Part of the plea agreement stated that the "parties agree that this sentence of imprisonment shall be served concurrent with the state sentence [Lewis] is currently serving . . .." At the plea hearing, the district court explained that it was not bound by any "recommendations" in the plea agreement and that Lewis might be sentenced more severely than the agreement contemplated. Although the district court explained that some agreements could be withdrawn from if the district court did not accept it, this was not one of those agreements. At sentencing, the district court imposed a sentence of 46 months, to be served consecutively to the undercharged state sentence "over the defendant's objection."

On appeal, Lewis argued (first in a pro se brief filed as part of the Anders process and then by subsequent counsel) that the plea agreement with regards to the concurrent/consecutive sentence issue had been breached. The Fourth Circuit agreed. The primary issue, the court said, was whether the plea agreement provision about the concurrent/consecutive sentencing issue made the plea a "binding" one under Rule 11(c)(1)(C). If so, then Lewis should have been allowed to withdraw the plea if the district court would not accept it. If not, Lewis was stuck. The court "readily rejected" the Government's argument (which it also called "nearly frivolous") that the agreement was not meant to be an 11(c)(1)(C) agreement, noting that the concurrent/consecutive sentence provision was phrased in mandatory terms, where other provisions were not. Furthermore, the district court's "conditional approval" at the plea hearing strongly suggested it was that type of plea. Therefore, when the district court did finally reject the agreement, by sentencing Lewis to a consecutive term, it erred by not allowing him to withdraw from the agreement. Because the error was not harmless, the court vacated Lewis's sentence and remanded the case for further proceedings.

Resisting Arrest Is Crime of Violence Under ACCA

2011-02-23T13:55:00.000-05:00

US v. Jenkins: Jenkins was convicted of drug distribution and being a felon in possession of a firearm, then sentenced as a career offender. One of his two prior qualifying offenses, according to the district court, was a 1998 conviction for the "Maryland common law offense of resisting arrest." In making that conclusion, the district court relied on a 2009 unpublished Fourth Circuit case, Mullen, which held that resisting arrest was a crime of violence under the Guidelines.

On appeal, Jenkins challenged his designation as a career offender, arguing that the older Fourth Circuit case upon which Mullen was based had been undermined by recent Supreme Court decisions dealing with "violent felonies" under the ACCA - Begay and Chambers. The Fourth Circuit disagreed, holding that resisting arrest is a crime of violence, even in light of Begay and Chambers, because it produces great risk of harm to others and can only be committed intentionally or purposely.

Court Affirms 9-Year Sentence for Conspiracy to Defraud US of Taxes

2011-01-31T15:13:00.000-05:00

US v. Thorson: Thorson, an attorney, was involved in a complex scheme to take advantage of a charitable giving tax loophole involving cemetery plots. Over three years, the scheme netted almost $10 million in fraudulent tax deductions. Thorson came up with the legal mechanics of the scheme. For his income from the scheme, Thorson concealed his funds as loans and thus did not report it on tax returns. Then, when the IRS came to audit the partnership running the scheme, Thorson created false documents to thwart the investigation. As a result of all this, Thorson was convicted of conspiring to defraud the United States of tax income. At sentencing, Thorson was hit with enhancements for a leadership role in the offense and obstruction of justice, among others. He was sentenced to 108 months in prison.

On appeal, Thorson challenged both the procedural and substantive grounds, all of which the Fourth Circuit rejected. Procedurally, Thorson first challenged the imposition of the leadership enhancement, arguing that the evidence did not support characterizing his role in that way. The court disagreed, noting that his role was "especially significant" because of the deployment of his legal skills, that he was "critical to the recruitment of investors," and that he supervised and directed much of the paperwork needed to complete the scheme. Second, Thorson challenged the obstruction of justice enhancement, based on false documents provided to the grand jury. Thorson argued that this conduct was part of the offense of conviction and, at any rate, already covered by another enhancement for sophisticated concealment. The court disagreed, holding that the obstructive conduct continued into the criminal investigation and the enhancement was not duplicative. Finally, Thorson argued that his sentence was substantively unreasonable when compared to those received by his codefendants and others similarly situated. The court disagreed, holding that the sentence was reasonable in light of the totality of the circumstances.

Judge Gregory dissented, arguing that the imposition of the two Guideline enhancements was error. He argued that the district court "took Thorson's conduct as a personal affront" and "Thorson's occupation weighed heavily on the court's mind." Regardless, the "majority today endorses" that approach "and punishes Thorson on no evidentiary basis."

No Leadership Enhancement In Drug Conspiracy

2011-01-31T15:11:00.000-05:00

US v. Slade: Slade pleaded guilty to conspiracy to distribute cocaine and crack. His role in the conspiracy:

According to the PSR, which the district court adopted, Slade was a 'mid[-] to upper-level' member of the drug conspiracy who sold or delivered cocaine and cocaine base both to his own clientele and to other members of the conspiracy, who, in turn, sold the drugs to their clientele. Certain coconspirators also sold cocaine and cocaine base 'for' Slade on various occasions. The PSR reveals further that an unindicted co-conspirator drove Slade to various locations to deliver cocaine base to his clients.

At sentencing, the district court applied a three-level enhancement (among others) for Slade's leadership role in the offense. Slade was sentenced to 365 months in prison, the top of the advisory Guideline range.

On appeal, Slade argued that he should not have been subject to an enhancement for a leadership role because there was no evidence that he actually managed or supervised anyone. The Fourth Circuit agreed, holding that the facts set forth above "do not justify imposition of an enhancement for a management or supervisory role." There was no evidence that Slade "actively exercised some authority over other participants" in the conspiracy. Although reviewing for plain error, the court found the error plain, prejudicial, and worthy of notice on appeal. Therefore, the court vacated Slade's sentence (briefly turning away two other Guideline challenges) and remanded for resentencing.

Skipping Departure for Variance Analysis Not Procedrually Unreasonable

2011-01-31T15:09:00.000-05:00

US v. Diosdado-Star: Diosdado-Star was deported in 2002 because he entered the country illegally. He was back within a month, using an alias that matched that of a Border Patrol agent who was under investigation for misconduct. The investigation led to Diosdado-Star, who was discovered to be posing as a Border Patrol agent to others seeking to remain in the country illegally. In the process, Diosdado-Star made about $177,000. When his home was searched, he admitted being a citizen of Mexico, the illegally reentering the US, and to impersonating an agent. As a result, Diosdado-Star was convicted of illegal reentry and possessing a counterfeit resident alien card. Although his advisory Guideline range was only four to 10 months, the district court varied and imposed a sentence of 84 months in prison.

Diosdado-Star appealed his sentence, which the Fourth Circuit affirmed. He first argued that the sentence was procedurally unreasonable, because the district court failed to consider a Guideline departure before imposing a variance sentence. The court disagreed, holding that (the method of deviation from the Guidelines range - whether by a departure or by varying - is irrelevant so long as at least one rationale is justified and reasonable." However, in a footnote, the court "offer[ed] no comment on the observation of several other circuit courts of appeal that the departure provisions of the Guidelines are obsolete." Diosdado-Star also argued that the sentence was substantively unreasonable. The court disagreed, holding that the district court's variance "while substantial, [] does not constitute an abuse of discretion based on the totality of the circumstances."

"Stipulation" Entered Without Defendant's Consent Not Harmless Error

2011-01-24T13:31:00.000-05:00

US v. Williams: Williams was charged with conspiring to possess with intent heroin. The heroin at issue was seized when it came into the country at the Louisville airport in a package. Per the Government's theory, Williams was the end recipient of the package and he would distribute the contents. Williams went to trial. At the trial, the Government presented a stipulation regarding the substance in the package - that it was approximately 98 grams of heroin. Williams refused to sign the stipulation. However, Williams's attorney suggested that she would do so, if the court would allow it. She signed the stipulation, which was read to the jury. During deliberations, the jury asked what amount of drugs was necessary to delineate personal use from distribution. The court referred them to "common sense" and provided them with a copy of the stipulation. The jury convicted Williams.

On appeal, Williams argued that the use of a stipulation without his consent violated hi Sixth Amendment right to confrontation. The Government agreed that it was an abuse of discretion for the district court to allow the stipulation. However, it argued that the error was harmless. The Fourth Circuit first agreed with the parties that Williams's Sixth Amendment rights were violated. It then proceeded to analyze the evidence in the case and concluded that the error was not harmless. The court noted that the stipulation went beyond merely identifying the substance at issue as heroin - it "essentially established an element of the crime" and was used by the jury in determining whether Williams had an intent to distribute the heroin. Thus, the court vacated Williams's conviction and remanded the case to the district court.

District Judge Dever concurred with the majority on the Sixth Amendment violation, but dissented from the conclusion that the error was not harmless. He argued, after a lengthy recitation of the trial facts, that the stipulation had much less of an impact on the ultimate outcome and therefore its admission was harmless.

Court Affirms Multiple Searches In Wake of Shooting

2011-01-24T13:29:00.000-05:00

US v. Allen: Allen was shot and wounded (in a shooting that left another wounded and two more dead) in front of his store in Baltimore. An officer responding to the scene followed a trail of blood into the store, to a file cabinet, which he opened. Inside was a pistol. Three search warrants were then executed: the first at the store (recovering the pistol and collecting DNA), the second to procure Allen's DNA, and the third at Allen's home. The searches showed that Allen's DNA was on the pistol found at the store and that ammunition had been recovered at Allen's home. Allen was charged with being a felon in possession of a firearm and ammunition.

Allen moved to suppress the evidence found as a result of all three searches and also requested a Franks hearing based on discrepancies between the affidavits for the first and second warrants. The district court denied the motions. As to the first and second warrants, the district court found that , although the pistol was not in plain view when first seen, it would have inevitably been discovered during a proper search of the crime scene. As to the third warrant, the court concluded that the warrant contained sufficient evidence to demonstrate probable cause that evidence related to the shooting would be found at Allen's home. Allen pleaded guilty to being a felon in possession of ammunition and preserved his right to appeal the denial of his motions to suppress.

On appeal, Allen made three arguments, all of which the Fourth Circuit rejected. First, he argued that he should have been granted a Franks hearing due to the discrepancies between the first two warrant applications, mostly based on whether the pistol was in plain view (first) or not (second). The court concluded that, even without that information, both warrants were based on sufficient evidence to provide probable cause. Second, Allen argued that the first officer to enter the store did so outside any legitimate Fourth Amendment exception. The court concluded that, even if that entry was improper, there was sufficient evidence aside from what was initially discovered in the store to support probable cause. Finally, renewed his argument that the third warrant lacked probable cause to support a search of his home. The court disagreed.

Court Affirms Tax Evasion Conviction

2011-01-24T13:28:00.000-05:00

US v. Cole: Cole was a real estate agent who partnered with three others to purchase commercial real estate. Cole negotiated the purchase price with the sellers and misrepresented the final amount of the sale price to his partners. The difference in the price paid and the seller's actual price demanded was absorbed by Cole, to the tune of $2 million. He also engineered a similar purchase involving a $1 million note financing one of the properties. Those funds Cole appeared to treat as sale commissions, in multiple venues. In 2005, Cole filed tax returns for 2001, 2002, and 2003 - the years during which he acquired these funds - but did not report any taxable income. He argued that the real estate money came from "assignment fees," rather than commissions, which subjected them to favorable tax treatment as capital gains. The nearly $100,000 he received from the sale of the note was omitted altogether - Cole "missed it" due to a bookkeeping error. Cole was charged and convicted of multiple counts of tax evasion and filing false tax returns.

On appeal, Cole made several arguments attacking his convictions, none of which was successful. First, the Fourth Circuit rejected his argument that the evidence was insufficient to convict him because the charges against him required "willfulness," but the commission/assignment fee distinction was "uncertain as a matter of tax law" and therefore he could not act willfully. In doing so the court declined Cole's invitation to hold that, as a matter of law, when an expert accountant testifies (without objection) to the confused nature of the tax law at issue, willfulness cannot exist as a matter of law. Second, the court concluded that, although it was error for the district court to allow introduction of evidence that Cole had lied previously on ATF forms related to firearms purchases, that error was harmless. Nor was there any error in allowing into evidence Cole's lavish spending during the time in question, as it went to his motive. Finally, the court rejected Cole's argument that the district court should have granted a continuance during trial (prior to Cole's cross-examination) due to Cole being "disoriented or incapable of focusing."

Involuntary Manslaughter Not "Crime of Violence"

2011-01-24T13:27:00.000-05:00

US v. Peterson: Peterson was convicted on multiple drug and gun counts. He was sentenced as a career offender, a status based partly on his 2001 conviction in North Carolina for involuntary manslaughter, arising from "an incident in which Peterson accidentally shot his close friend . . . while the two were playing with what they believed (mistakenly) was an unloaded pistol." Peterson objected to the career offender classification, arguing that the involuntary manslaughter conviction was not a "crime of violence" as defined by the Guidelines. The district court disagreed and sentenced him to 420 months in prison.

On appeal, the Fourth Circuit agreed with Peterson and vacated his sentence. The court first concluded that generic "manslaughter" - which is specifically included in the definition of crime of violence - requires either that the defendant acted "recklessly" or "intentionally if under the influence of extreme mental or emotional disturbance." The North Carolina offense of involuntary manslaughter did not fit within that definition because it's required mental state - "thoughtless disregard" - is a lesser requirement than recklessness, as defined by the Model Penal Code. Peterson's conviction, therefore, was not explicitly included in the definition of crime of violence. The court then turned to the issue of whether his conviction was one that "presents a serious potential risk of physical injury to another" under the crime of violence definition's "otherwise" clause, concluding that it was not because the North Carolina statute covered negligent and unintentional conduct.

Nature of Prior Conviction Determination Requires Only Preponderance

2011-01-24T13:26:00.002-05:00

US v. Washington: Washington was convicted of being a felon in possession of a firearm. At sentencing, the issue was whether he qualified for an enhanced sentenced under the ACCA. For his third qualifying predicate offense, the Government identified a 1999 Maryland conviction for the "generic" offense " of "possession of a controlled dangerous substance with intent to distribute." Although the maximum sentence for the offense is based on the type of drug involved, drug type is not an element of the offense. The district court concluded that Washington's prior conviction was an ACCA predicate because it involved cocaine and therefore carried a 20-year maximum sentence (rather than the 5-year max applicable to lesser drugs).

Washington appealed, arguing that the district court erred by making its determination based on a preponderance of the evidence, rather than beyond a reasonable doubt. Relying on Shepard, he argued that the Supreme Court's references to "conclusive" records and "certainty" implies a higher standard for making determinations about the nature of prior convictions than a simple preponderance. The Fourth Circuit disagreed, holding that a preponderance standard was appropriate and that Shepard did not suggest otherwise. Shepard was about the types of documents a district court could use when evaluating the nature of a prior conviction, not the standard of proof applied during that analysis. The court then went on to reject Washington's argument that the Government had not met its burden in his case, even under a preponderance standard.

Failure to Disclose Non-Witness Grand Jury Testimony Requires New Trial

2011-01-24T13:24:00.001-05:00

US v. King: King was convicted of drug and firearm offenses arising from two separate incidents in North Carolina. In the first, officers surveiled a car that a tipster said was going to be used to transport heroin. Officers followed the car to a laundromat where the two men in the car went inside. They returned shortly thereafter, along with King, who put a green gym bag in the car. The car was stopped and the bag searched. It contained "100 dosage units of heroin." King, and the other two men, was arrested. A search of King's home uncovered more heroin, other drug paraphernalia, and a firearm. King admitted ownership of the heroin and the firearm. He was charged and released on bail. Eight months later, a man named Bilal, who shared an apartment with King, told officers that King kidnapped and assaulted him. Officers executed a search warrant at the apartment, recovering drugs and a firearm from a bedroom, in which they also found documentation with King's address. King denied doing anything to Bilal and also denied ownership of any of the items found in the apartment.

King was charged with six counts - two sets of three for each incident: possession with intent to distribute, being a felon in possession of a firearm, and possession of a firearm during a drug trafficking offense. Prior to trial, King moved to have the Government disclose information related to Bilal's cooperation with them, including his grand jury testimony. The district court denied the request without reviewing the testimony. At trial, King testified in line with his statements to police - accepting ownership of the items related to the first incident, but denying ownership of those in the second incident - but added that the firearms were not related to any drug activity. The jury convicted him on four counts, all three from the first incident and being a felon in possession from the second. The district court sentenced him to 408 months in prison (enhanced, in part, based on the alleged kidnapping of Bilal).

King raised several challenges to his convictions on appeal. With regards to the three convictions related to the first incident, the Fourth Circuit rejected his arguments and upheld those convictions. Specifically, the court held that the drug and firearm-in-connection-with-a-trafficking offenses were duplicitous, that the firearm count failed to charge him with an offense, and that the evidence on each count was insufficient to convict him. However, with regards to the felon in possession conviction from the second incident, the court did find error that required reversal of that conviction. Specifically, the court held that the district court erred by failing to order the Government to turn over Bilal's grand jury testimony, even though he did not testify at trial, because his relationship with King was relevant to King's defense. The court noted that King had consistently denied that any of the items found during the second search belonged to him.

Intermediate Scrutiny for Second Amendment Review of MCDV Cases

2010-12-30T14:05:00.000-05:00

US v. Chester: Police were called to Chester's home during a dispute with his then wife. A search of the home uncovered a pistol and a shotgun, which Chester admitted belonged to him. He was charged with possession of firearms after being convicted of a misdemeanor crime of domestic violence, based on an earlier incident involving his daughter. Chester moved to dismiss the charge, arguing that it violated his Second Amendment right to keep and bear arms, as set forth in the Supreme Court's Heller decision. The district court denied the motion, and Chester pleaded guilty, reserving his ability to appeal the denial of the motion to dismiss.

On appeal, the Fourth Circuit initially vacated Chester's conviction in an unpublished opinion, remanding for the district court to identify a specific level of scrutiny and apply it. The Government sought rehearing, which the panel granted. In this published opinion, the court identifies the correct level of scrutiny, but vacates Chester's conviction to remand for application of that standard. The court adopted the two-step process set forth in the first opinion, based on the panel decision in US v. Skoien, 587 F.3d 803 (7th Cir. 2009), although that decision was later vacated by an en banc court.

As a first step, the court assumed (because the historical evidence was unclear) that Chester's possession fell within the general parameters of the Second Amendment. The court then held that the proper level of scrutiny to apply was intermediate scrutiny, analogizing to the lesser protections under the First Amendment for commercial speech and time, place, manner restrictions. On this record, the court could not conclude that the Government met its burden under that standard, noting that while the Government "has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal . . . it has not attempted to offer sufficient evidence to establish a relationship between [this prohibition] and an important government goal." Therefore, the court remanded to the district court for further proceedings.

Judge Davis concurred in the judgment, but took the majority to task for relying too heavily on analogies between the First and Second Amendments. He endorses the result of the en banc decision in Skoien and argues that the district court will have no trouble concluding that Chester is not protected from conviction by the Second Amendment.

Watson's New Rule Applies Retroactively

2010-12-30T14:02:00.000-05:00

US v. Thomas: Thomas was convicted of methamphetamine possession and possession of a firearm in connection with a drug trafficking offense. He received a total sentence of 90 months in prison. He did not appeal. After Thomas was sentenced, the Supreme Court handed down the Watson decision, in which it held that a person doesn't "use" a firearm under the statute if he receives it in trade for drugs. Thomas filed a pro se 2255 motion seeking to vacate his sentence. Although it was filed after the normal 1-year statute of limitations had run, it was filed within one year of Watson being decided. The district court dismissed Thomas's motion, holding that Watson did not announce a new rule of constitutional law and, at any rate, was not retroactive.

On appeal, the Fourth Circuit disagreed and overruled the district court's decision. The Government conceded that Watson announced a new rule and was retroactive. However, it argued that Thomas defaulted on the issue by not raising it on direct appeal. Turning first to the impact of Watson, the court agreed with other circuits that it may determine retroactivity, rather than waiting for the Supreme Court to do so. It then concluded that Watson announced a new rule and that rule applied retroactively, thus obliterating the district court's basis for denying Thomas's motion. However, because that dismissal came before the Government responded to the motion, and due to some ambiguity in the motion itself, the court declined to decide the waiver issue raised by the Government and simply remanded the case to the district court for further proceedings.

Possession of Sawed-Off Shotgun Is Crime of Violence

2010-12-30T14:00:00.000-05:00

US v. Hood: Hood was convicted of drug and gun offenses and sentenced as a career offender. He objected to that classification, arguing that a prior North Carolina conviction for "possession of a weapon of mass death and destruction" (actually a sawed-off shotgun) was not a crime of violence. The district court disagreed and the Fourth Circuit affirmed.

Holding that earlier precedent on the issue was obsolete in light of Begay, the court nevertheless found that possession of a sawed off shotgun was a crime of violence. Distinguishing the Guideline issue from the related Armed Career Criminal Act definition of "violent felony" (the court has held, in an unpublished case, that possession of a sawed-off shotgun is not a violent felony), the court noted that Guideline commentary specifically includes possession of a sawed-off shotgun in the definition of crime of violence. Therefore, it qualified as such, even under a Begay analysis.

District Court Must ID Statutory Basis for Restitution Order

2010-12-28T11:26:00.000-05:00

US v. Leftwich: Leftwich was convicted of mail fraud and making false claims, after participating in a scheme that saw the IRS pay out more than $2 million in false tax refunds. An issue at sentencing was whether the district court would order restitution. At the guilty plea hearing, the district court noted it had the authority to order restitution, but did not indicate the source of that authority. Prior to sentencing, Leftwich filed a memorandum arguing that the Mandatory Victims Restitution Act did not apply in his case and that, while the Victim Witness Protection Act did apply, the statutory factors to be considered under that Act negated an award of restitution. The Government did not respond to that argument at all (leading to a written lashing from the Fourth Circuit). At sentencing, the district court ordered restitution, but did not indicate its statutory basis for doing so.

On appeal, the Fourth Circuit vacated the order of restitution. The court held that without the district court identifying on what basis it ordered restitution, the court could not review that order for abuse of discretion. The MVRA and VWPA each have different procedural and substantive nuances which must be taken into account before ordering restitution. The court vacated and remanded to the district court for further proceedings as to the basis for the restitution issue.

Court OK's Assault Enhancement & Felony Enhancement Arising From Flight From Police

2010-12-28T11:25:00.001-05:00

US v. Hampton: Hampton was a passenger in a car that was stopped for a broken taillight. During the stop, officers noticed that he was "exhibiting signs of nervousness." When the driver was arrested on an outstanding warrant, Hampton was ordered out of the car. He complied, but then pushed the officer closest to him and fled. He was captured, and, after a struggle, a pistol was found in his pants pocket. One of the officers was injured during the struggle. Hampton was charged with being a felon in possession of a firearm and ammunition. After an unsuccessful motion to suppress, Hampton was convicted and sentenced to 300 months in prison.

On appeal, Hampton challenged the calculation of his advisory Guideline range on several grounds.* First, he argued that an enhancement under USSG 3A1.2(c)(1) for assault of a police officer during flight was not appropriate. Specifically, he argued that his conduct did not create a substantial risk of serious bodily injury, as required to trigger the enhancement. The Fourth Circuit disagreed, holding that Hampton assaulted a police officer during the struggle to subdue him and that assault resulted in serious bodily injury. Second, Hampton argued that his conduct did not constitute another felony offense, so as to trigger the enhancement under USSG 2K2.1(b)(6). The court disagreed, holding that because Hampton assaulted an officer during the struggle, he committed a felony under South Carolina law. Finally, Hampton argued that the application of both enhancements (for a total of 10 levels) was impermissible double counting. The Fourth Circuit disagreed, holding that there was nothing in the Guidelines to change the presumption that double counting is acceptable.

* Hampton also challenged the district court's denial of his motion to suppress, but conceded that his argument was precluded by Fourth Circuit precedent and was presented only to preserve it for further review.

Divided Court OKs Extension of Traffic Stop

2010-12-28T11:23:00.000-05:00

US v. Mason: Mason was driving on Interstate 20 in Georgia when he was pulled over due to having illegally tinted windows. Prior to writing Mason a warning, the officer talked with him and his passenger, who told different stories about where they had been and why. The officer, suspecting they were involved in drug activity (I-20 is a know drug corridor and Atlanta, the direction from which Mason was travelling, a source city) radioed for a K9 unit to assist him. When the K9 unit arrived, the dog alerted, first on the outside of the car and then by leaping inside an open window and further alerting. A search of the trunk revealed 10 kilograms of cocaine. Mason was charged and convicted, following an unsuccessful motion to suppress, of trafficking in more than five kilograms of cocaine and was sentenced to a mandatory sentence of life in prison.

On appeal, Mason challenged both the denial of his motion to suppress and his life sentence. As to the motion to suppress, Mason argued that the officer lacked reasonable suspicion to prolong the stop past the issuance of the warning ticket and that the dog's entry into the car violated the Fourth Amendment. On the first argument, the Fourth Circuit disagreed, holding that the officer had sufficient evidence to conclude that criminal activity was afoot. Although several of the facts were consistent with innocent travel, when taken as a whole the facts rose to the level of reasonable suspicion. As to the dog, the court noted that once the dog alerted to the presence of drugs outside the car there was probable cause to search the vehicle, so the dog's entry did not violate the Fourth Amendment. The court also held, addressing an argument that appeared only during oral argument, that the officer's questions prior to issuing the warning did not unduly lengthen the stop. As to Mason's sentence, the court held that he had not carried his burden of showing that two prior state convictions were obtained without counsel, even if the statute of limitations in 21 USC 851(e) did not prevent review of the issue.

Judge Gregory dissented on the search issue. He argued that the officer did not have reasonable suspicion to extend the traffic stop, after "supplementing and clarifying some key facts . . . that are omitted by the majority."

Walk Away Escape Not Crime of Violence

2010-12-28T11:22:00.000-05:00

US v. Clay: Another round in the ongoing saga of whether a prior escape conviction triggers enhanced recidivist penalties. In this case, the prior conviction was a Georgia conviction for felony escape, incurred at the same time as a conviction for interference with government property. At issue was whether that escape conviction was a "crime of violence" as defined by the Guidelines, which would enhance the base offense level for Clay's offense of conviction, being a felon in possession of a firearm. The district court held that it was a crime of violence and applied the Guidelines accordingly.

The Fourth Circuit disagreed and vacated Clay's sentence. It noted that the Georgia escape statute covered at least three kinds of conduct: escape from a secure facility, failure to return from to custody, and walking away from an unsecured facility. The parties agreed that the first type of conduct would be a crime of violence, while the other two would not (the court agreed on the third type of conduct, previously an open issue in the Fourth Circuit). Nonetheless, the Government argued that Clay's conduct fell in the first category because, when the escape conviction was read in conjunction with the interference with government property conviction, it was clear that Clay was shackled and did something to those shackles to effect an escape. Hence, he escaped from a secure facility. The court disagreed, holding that the applicable evidence did not necessarily show that inference to be true. Thus, Clay's sentence was vacated and his case remanded for resentencing.

Congrats to the Defender office in WDNC on the win!

Tricking Agency Into Issuing Invalid Passport Supports Conviction

2010-12-28T11:21:00.001-05:00

US v. Luke: A person claiming to be Luke's son applied for a passport in Philadelphia. Luke, a naturalized citizen, accompanied him to a subsequent interview. Although the applicant left during the interview when his identity was questioned, Luke remained and argued that the passport should be issued. When it was not, he left. Another suspicious passport application, made in Maryland, provided Luke's address as that of the applicant. During the subsequent investigation, Luke made several false statements about the alleged applicant and his knowledge of him. As a result of the investigation, Luke was charged with (among other things) conspiracy to commit identification document fraud and aggravated identity theft. He was convicted on both counts.

On appeal, Luke argued that the district court erred by denying his motion for a judgment of acquittal on the conspiracy count because his behavior did not fall within the ambit of the substantive offenses he was allegedly conspiring to commit. Specifically, he argued that the passports at issue could not have been "produced without lawful authority" where government employees simply produce genuine documents based on information they did not know to be false. In other words, if the applicant can trick the agency into issuing the passport, it was produced with lawful authority. Relying on earlier precedent, the Fourth Circuit rejected that argument. The court also rejected Luke's argument that he could not conspire to with an intent to defraud the United States because a falsely issued passport has no inherent value and did not deprive the government of anything of value.

Sexually Dangerous Persons Comittment Scheme Does Not Violate Due Process

2010-12-28T11:18:00.001-05:00

US v. Comstock: This decision comes following the remand of this case by the Supreme Court following it's decision last year upholding Congress's authority to enact the civil commitment scheme for "sexually dangerous" offenders in the Adam Walsh Act of 2006. Because the Fourth Circuit had agreed with the district court that Congress lacked that authority, it did not address the defendants' due process attacks on the law the first time around. This time, with the issue of Congressional authority resolved, it addressed the due process argument. Under the Act, a person may be committed if a court finds by clear and convincing evidence both that that person "has engaged or attempted to engage in sexual violence or child molestation" and is "sexually dangerous to others."

The Fourth Circuit concluded that this scheme did not violate due process. It set out three criterion that must be met before commitment could take place: that the defendant has engaged or attempted to engage in sexual violence or child molestation (the "prior bad act finding"); that the defendant suffers from a serious mental illness, abnormality, or disorder; and that, as a result, the defendant would have serious difficulty refraining from sexually violent conduct or child molestation if released. The court concluded, and the defendants agreed, that Supreme Court precedent required only proof by clear and convincing evidence on the second and third criterion. As to the prior bad act finding, however, the defendants argued that a beyond a reasonable doubt standard was required. The court disagreed, holding that the prior bad act finding is not limited to criminal behavior and thus no "prior criminal act finding" is required by the Act. Furthermore, the nature of the Act was that of a civil, rather than criminal, proceeding and thus was not subject to the higher standard of proof.

Unrelated Police Misconduct Does Not Require New Trial

2010-12-06T08:58:00.000-05:00

US v. Robinson: Robinson was convicted by a jury of several drug and gun charges, including a 924(c) charge, and sentenced to 50 years in prison. After his trial, Robinson learned that four of the officers involved in the investigation against him had committed misconduct in other cases. Robinson moved for a new trial, based on that misconduct. The district court initially granted the motion because the misconduct, although taking place in other cases, went "to the integrity of the investigation." However, after reconsideration, the court limited its decision to the several counts which those officers initiated - those convictions were vacated and the Government subsequently dismissing them. The counts which were initiated by another agency, although the rogue officers were involved in them, however, were affirmed and Robinson was resentenced to 600 months in prison.

On appeal, Robinson argued that the district court erred by not vacating all of his convictions, relying on the district court's initial observation about the integrity of the investigation. The Fourth Circuit disagreed and affirmed the district court. It held that, on the remaining counts, the testimony of the disgraced officers was "amply corroborated" by other witnesses and physical evidence. The misconduct would have served as impeachment evidence, of little value, but nothing else - it provided no alternate theory of defense, for example. Finally, the court held that Robinson could not show that the new evidence, if presented at trial, probably would have produced an acquittal. The court also rejected a Brady argument with regards to the evidence of misconduct, holding that the Government had no knowledge of the misconduct.

Robinson also appealed his conviction under 18 USC 924(c) due to incorrect jury instructions and insufficient evidence. The Fourth Circuit also rejected those arguments. Applying plain error review on the jury instruction issue, the court held that the instructions on that charge were erroneous and plain, in light of the Supreme Court's decision in Watson, but Robinson could not show prejudice and, even if he could, the court would not notice the error under the final prong of Olano. As to the sufficiency argument, it "like many of the claims before it, runs directly into the wealth of evidence detailing Robinson's activities."

Court Vacates One Drug Conspiracy Conviction Only to Mandate Another

2010-12-06T08:54:00.000-05:00

US v. Hickman: Hickman was charged in a multi-defendant indictment with conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin and possession with intent. He alone went to trial and was convicted. Pursuant to 21 USC 851, he was sentenced to life on the conspiracy count and 360 months on the possession count. He was arrested in a traffic stop after he drove away from purchasing 32.14 grams of heroin from a codefendant. Subsequent searches of one of his codefendant's offices uncovered 25,000 empty vials of the type typically used to distribute heroin. Although Hickman contacted his codefendant after being released by police and inquired about further purchases, none ever transpired.

At trial, although all of Hickman's six codefendants had pleaded guilty, none of them testified, nor did the Government produce testimony from any other participant in the conspiracy. All the evidence came from investigators involved in the case. One testified as an expert in narcotics investigations. He both "interpreted" the contents of wiretapped phone conversations for the jury and how the 25,000 empty vials would be enough to hold 1 kilogram of "user-strength" heroin. Hickman moved for a judgment of acquittal on the conspiracy count, which the district court denied. Neither Hickman nor the Government made any argument or request for a lesser included offense on the conspiracy.

On appeal, Hickman challenged both his convictions and sentence. As to the conspiracy conviction, the Fourth Circuit agreed that there was insufficient evidence to sustain it. While "easily" concluding that the evidence demonstrated a conspiracy, the court held that there was insufficient evidence that it involved more than 1 kilogram of heroin. The inferences from the evidence relied upon by the Government required, to reach the 1 kilogram threshold, "if not a mathematical impossibility, . . . reasoning so attenuated as to provide insufficient support for the jury's verdict." The court rejected the Government's arguments that the amount of heroin involved was sustained by the fact that one of Hickman's codefendants ran a store that sold drug paraphernalia (it was a "one stop shop" for heroin) and that the members of the conspiracy were experienced enough in the drug trade that the conspiracy "encompassed far more drug distribution activity . . . than that of which the Government could produce competent evidence." Therefore, the court vacated Hickman's conviction, but remanded with instructions to enter a conviction on the lesser included offense of conspiracy to distribute more than 100 grams of heroin, even though neither party sought a lesser offense at trial.

The Fourth Circuit otherwise affirmed Hickman's conviction and sentence, turning away in brief challenges to the jury instructions, the use of wiretap transcripts during deliberations, and the applicability of his prior offenses to enhance his sentence.

Seizure and Patdown Justified By Association With Apparent Gang Activity

2010-12-06T08:47:00.000-05:00

US v. Hernandez-Mendez: Montgomery County (MD) police officers set up surveillance outside a local high school following a gang-related stabbing that had occurred in the area. The high school was noted for gang activity in the past. Hernandez-Mendez was observed with a group of seven young Hispanic men outside the school who appeared to be conducting some sort of meeting. Eventually, Hernandez-Mendez left the group, but remained in the area, and was followed by an officer. When officers approached the seven young men, they split up, with one of them running away. Officers decided to "stop everyone in the group."

Hernandez-Mendez complied when confronted by an officer, gave her name, and handed over her wallet, which included several credit cards in her name but no photo ID. She told the officers that she didn't know any of the three young men, including the one who ran away. An officer asked if she had ID in her purse as he reached towards it, prompting Hernandez-Mendez to pull away and say "no." The officer grabbed the purse and felt an object that he recognized as a firearm. He found a pistol inside. Hernandez-Mendez was charged with being an alien in possession of a firearm and possession of a firearm in a school zone. After the district court denied her motion to suppress the gun, she was convicted on both counts at a stipulated bench trial.

On appeal, Hernandez-Mendez challenged the district court's denial of her motion to suppress. She first argued that the officers lacked reasonable suspicion to detain her. The Fourth Circuit disagreed, holding that the officers' experience with Hispanic gangs, previous history of gang incidents at the school, and the surveillance observations provided reasonable suspicion for the stop, namely that some retaliation was being planned with regards to the earlier stabbing. Hernandez-Mendez also argued that even if the stop was warranted, the frisk of her purse was not. The Fourth Circuit disagreed, holding that the facts developed after the seizure, particularly Hernandez-Mendez's "evasiveness" warranted a patdown. Once the officer felt the gun through the purse, it could be seized. Thus, the Fourth Circuit affirmed the district court's ruling and Hernandez-Mendez's convictions.

Questioning In Kitchen During Execution of Search Warrant Not Custodial

2010-12-06T08:43:00.002-05:00

US v. Hargrove: Hargrove spent several months in Internet chat rooms having sexually explicit discussions with several minor girls, one of whom was actually an underage girl, while the others turned out to be cops. At some point, the discussions turned to plans to meet up in real life, leading to the execution of search warrants at Hargrove's home. During the search, Hargrove gave incriminating statements to officers. As a result, he was indicted on obscenity, child pornography, and attempted enticement charges.

Prior to trial, Hargrove sought to suppress the statements made at his home, arguing that they were given with Miranda warnings while subject to custodial interrogation. The district court denied the motion, holding that the questioning was not custodial because Hargrove was not under arrest and told he was free to go. After being convicted on all counts at trial, Hargrove was sentenced to life in prison. In imposing that sentence, the district court noted that Hargrove went to trial (after the court rejected a 20-year plea) and required the minor victim to testify at trial.

On appeal, Hargrove challenged both the denial of his motion to suppress and the substantive reasonableness of his sentence. As to the suppression issue, the Fourth Circuit affirmed the district court, holding that the totality of circumstances did not show that Hargrove was in custody during the search, noting that he was told he was not under arrest and was free to leave at anytime, he was not handcuffed, and the conversation took place in his kitchen in a "comfortable atmosphere."

As to the sentence, the court affirmed the life sentence, reviewing for plain error because Hargrove raised an specific error - that the district court punished him for going to trial - rather than a general argument that his sentence was too long. Assuming, arguendo, that there was error and it was plain, the court found that Hargrove was not prejudiced by the imposition of a Guideline recommended sentence based on the other findings made by the district court.

State Pretrial Detention Tolls Federal SR Term

2010-11-15T14:49:00.002-05:00

US v. Ide: Ide was on a three-year term of supervised release when he was arrested on state charges, for which he was eventually convicted and sentenced. He spent about seven months in pretrial detention on the state charges and was given credit for that time when sentenced by the state court. Two years after being released from state custody, Ide was arrested for violating the terms of his supervised release. He moved to have the petition dismissed, arguing that his term of supervised release had ended because the it was not tolled, under 18 USC 3624(e), during the seven months he spent in state pretrial detention. The district court denied the motion, revoked Ide's term of supervised release, returned him to prison, and imposed a further term of supervised release (which Ide has subsequently violated).

On appeal, the Fourth Circuit affirmed. The dispute turned on the meaning of "imprisoned in connection with a conviction" in 3624(e), which triggers the tolling of a term of supervised release. The court noted that this "precise issue" has been decided by four other Circuits, only one of which had adopted Ide's reading of 3624(e). Adopting the majority position, the court concluded that Ide's position was foreclosed by the plain meaning of 3624(e). To hold otherwise would make the "in connection with" language superfluous, at least in cases like this one where the defendant received credit for the time spent in pretrial detention.

Warrantless Entry Into Home OK When Searching for Child's Custodian

2010-11-15T14:47:00.001-05:00

US v. Taylor: This is an odd Fourth Amendment case. An officer is called to a parking lot in Richmond by a taxi driver who has found a 4-year-old girl wandering the streets alone. The driver pointed out a nearby row house to the officer which the girl had told the driver was her home. The driver and girl had gone to the house, where the front door was open, but nobody inside responded to his inquiries. The officer talked to the girl, who said there was nobody at home to take care of her and that she was waiting on a bus to take her to day care. The officer and the girl returned to the house. When nobody answered the officer's inquiry, the girl went inside. The officer followed. He eventually went to the second floor, where he heard a male voice from a bedroom.

The officer went to the bedroom and found Taylor, who was the girl's father. He "became angry" and explained that the girl was suspended from day care and was not supposed to catch the bus. On a cabinet next to the bed was a "plastic bag containing .22 caliber bullets." Although Taylor denied having a gun, the officer asked him for identification, which Taylor claimed he did not have. He eventually gave the officer a fake name and date of birth. After backup arrived and was trying to verify Taylor's identity, the first officer did a protective sweep and discovered a handgun under the mattress. While the officer was using Taylor's cell phone (with permission), there was an incoming call from the girl's mother who identified Taylor. Armed with Taylor's actual identity, the officers discovered that he was both a convicted felon and the subject of outstanding arrest warrants. He was arrested and later charged with being a felon in possession of a firearm. The district court denied Taylor's motion to suppress the evidence discovered during the warrantless search of Taylor's home, after which Taylor pleaded guilty.

On appeal, the Fourth Circuit affirmed the district court's denial of the suppression motion. Because the officer who initiated the search was not involved in a criminal justice investigation, the warrant requirement of the Fourth Amendment had no application. Similarly probable cause was unnecessary. The only restraint on the search was that it was "reasonable." This search was reasonable because it was triggered by an exigent circumstance - "this four-year-old girl's unsupervised odyssey." "Few places could be less appropriate for an unattended child," the court concluded, than the busy streets of Richmond. As to what occurred after the officer entered the house, the court found "nothing unreasonable in this chain of events."

NC Indecent Liberties Conviction Can Trigger ACCA

2010-09-28T10:56:00.000-04:00

US v. Vann: Vann pleaded guilty to being a felon in possession of a firearm. At the time, he had three prior North Carolina convictions for taking indecent liberties with a child. At sentencing, he objected to the use of those convictions as predicates under Armed Career Criminal Act, arguing that in light of Begay and subsequent Fourth Circuit law, they were not "violent felonies" for ACCA purposes. The district court disagreed and sentenced Vann to a term of 180 months in prison, the minimum required under the ACCA.

On appeal, the Fourth Circuit affirmed, 2-1. Vann argued that a pre-Begay Fourth Circuit case holding that convictions like his were "crimes of violence" under the Guidelines had been abrogated by Begay and that the Fourth Circuit's decision that Virginia's "carnal knowledge without the use of force" statute was not a violent felony post-Begay required the same conclusion with regards to his prior convictions. The court disagreed, noting that the NC statute at issue could be violated in two ways, one of which "requires physical acts against the body of a child," while the other does not. After first determining that Vann committed the offense which required a physical act against the body of a child, the court then concluded that such an offense was a violent felony under the ACCA. It noted the difference between the NC and Virginia offenses was that the later was committed "without the use of force."

Judge King dissented, arguing that the majority was incorrect in concluding that the NC statute set forth two different offenses, that Vann committed one that necessarily required physical acts against a child, and that the offense was a violent felony.

Divided Court Strikes Down Forced Medication Order

2010-09-28T10:54:00.001-04:00

US v. White: White was charged with conspiracy, credit card fraud, and identity theft. She suffers from Delusional Disorder, Grandiose Type. After a motion was filed to determine her competency, it was found (and everyone agreed) that White was not competent to stand trial. After White "rebuffed all efforts to treat her disorder," the Government sought and was granted permission to forcibly medicate her pursuant to Sell v. United States, 539 US 166 (2003). White sought an interlocutory appeal challenging that order.

On appeal, the Fourth Circuit reversed, 2-1. "The crux of this case," the court wrote, was whether the Government had a sufficiently important interest in prosecuting White that interference with her liberty interest against self medication was justified, measured against the presence of any "special circumstances" militating against the Government's interest. The court concluded that, in this case, such special circumstances existed to weigh against White's forced medication.

While noting that the offenses with which White was charged were "serious," the court pointed to the following special circumstances that undermined the Government's interest in prosecuting her: (1) the length of time she had already spent in custody - 29 months, versus the most likely sentence if convicted; (2) White's charged offenses, while serious, were not violent; (3) her commitment to the BoP for evaluation/observation precludes her from possessing a firearm, as a conviction would; (4) the nature of White's "unique" condition and unknown potential effects of the proposed treatments; and (5) the case is not "sufficiently exceptional" to justify forced medication. To hold otherwise would risk allowing forced medication to become routine, rather than limited, option in such cases. Judge Keenan concurred in the opinion, writing separately to "emphasize the constitutional liberty interest at stake and the high burden of proof" put upon the Government when it seeks forcible medication.

Judge Niemeyer dissented, taking issue with both the majority's classification of White's charged offenses and its determination that she would likely be detained beyond the sentence she would receive if convicted. He writes that "[i]f the majority were ever inclined to allow an order for involuntary medication to enable the government to try a defendant, this would be the paradigmatic case."

Congrats to the defender office in Eastern NC on the win!

Non-Expert DEA Testimony About Phone Call Meaning Requires Reversal

2010-08-19T13:50:00.002-04:00

US v. Johnson: Johnson was charged in a multi-defendant indictment with conspiracy to distribute cocaine. At trial the Government presented non-expert testimony from a DEA agent that included testimony interpreting phrases in phone conversations between Johnson and an informant. In addition, the Government presented testimony from another witness, then in prison, who claimed to have bought cocaine from Johnson years before the conspiracy at issue at trial. Johnson was convicted and sentenced to 220 months in prison.

On appeal, the Fourth Circuit reversed Johnson's conviction on two grounds. First, the court agreed with Johnson that the DEA agent's testimony violated FRE 701, in that it was lay opinion testimony (he was never certified as an expert, remember) not based on personal knowledge. The court noted that when the testimony was objected to, the Government bolstered its admissibility by asking the agent about his training and qualifications, not his relevant observations. Such "post-hoc assessments cannot be credited as a substitute for the personal knowledge and perception required under Rule 701." Second, the court agreed with Johnson that the testimony about drug transactions that occurred five years before the conspiracy allegedly began were irrelevant. As neither error was harmless, the court was required to vacate Johnson's conviction.

Lawyer Never Told to Appeal Not Ineffective For Failing to Do So

2010-08-19T13:48:00.001-04:00

US v. Cooper: Cooper was charged with two drug counts and carrying a firearm in connection with a drug trafficking crime. Although he initially had an agreement with the Government to plead guilty to one drug count and the 924(c), Cooper eventually entered an Alford plea without an agreement to the charges. After an initial sentencing hearing at which the district court resolved some objections to the PSR but did not impose sentence, Cooper and the Government agreed to a Guideline range of 121 to 151 months on the drug charges (in addition to the 60-month 924(c) sentence, of course). At a second sentencing hearing, the district court accepted the stipulation and impose a total sentence of 181 months in prison. Cooper did not appeal.

Cooper later filed a motion seeking to vacate his sentence, arguing that his appointed lawyer was ineffective because he failed to consult with Cooper about the possibility of an appeal. Cooper testified that he wanted to file an appeal and asked his lawyer to come see him at the jail, but never actually expressed a desire to appeal to him. However, his lawyer never came to see him and his office would/could not accept Cooper's collect calls from the jail. Cooper's lawyer denied hearing a request to come visit him at the jail. The district court denied Cooper's motion, finding that he never asked his attorney to appeal and that no rational defendant would desire an appeal in such a situation.

On appeal, the Fourth Circuit affirmed the denial of Cooper's motion. Because Cooper did not tell counsel he wanted to appeal, the court had to determine "whether the circumstances would reasonably have led counsel to conclude that 'a rational defendant would want to appeal,' thus prompting counsel's duty to consult." No rational defendant would want an appeal in this case, the court concluded, as Cooper's actions - from entering a plea to agreeing to a sentencing range - indicated that he wanted to have the "proceedings concluded as quickly as possible." The court also noted that Cooper got the sentence he bargained for. While the end result here was not ineffective assistance of counsel, "best practices" would include consulting with the client to tie up any loose ends with regards to appeals once sentence is imposed.

Court Affirms Life and Death Sentences In 3-Defendant Kidnapping/Murder Cases

2010-08-19T13:42:00.001-04:00

US v. Wilson & US v. Lighty: These two opinions, released the same day, involve three codefendants - Wilson, Lighty, and Flood - who were involved in a kidnapping that resulted in death. All were charged with kidnapping resulting in death, conspiracy, and three counts of using a firearm in furtherance of a crime of violence. Wilson's trial was severed from Lighty's and Flood's, thus the separate appeals. The two opinions cover over 115 pages, so there's obviously a lot of detail I'm leaving out (more so than usual).

The cases arose from the kidnap and murder of Hayes, who was on a street corner in DC with a friend when two men in a dark Lincoln approached and asked to buy drugs. Hayes and the two men went into an alley to complete the transaction. Hayes's friend looked in the alley a short time later and saw one of the men holding Hayes at gunpoint. The friend fled when the other man came at him with a gun. When the friend returned to the alley some time later, everyone was gone. Later that night, two men saw the car near a vacant lot in Maryland and watched as Hayes was dragged from it and shot twice while on his knees begging for his life. Wilson told his girlfriend later that night that he had driven the car to DC where he, Flood, and Lighty had "grabbed . . . the boy" and that Lighty shot him. The next day, he again told her that Lighty was the shooter. Wilson told a similar story to a friend, CW. After Lighty was arrested in possession of a .380 caliber handgun, Wilson told his girlfriend that was the gun used to shoot Hayes and that it had "a body or two on it" from a recent drive-by shooting, the "Afton Street Shooting."

Wilson was convicted of conspiracy to kidnap and sentenced to life in prison. On appeal, he raised several challenges to both his conviction and sentence, all of which the Fourth Circuit rejected.

First, Wilson argued that the district court erred by allowing the Government to present evidence about the Afton Street Shooting at trial. The court agreed that admission of the evidence was error, as it was neither intrinsic to the offenses with which Wilson was charged nor was it proper FRE 404(b) evidence, but that the admission was harmless, as the evidence against Wilson was "overwhelming."
Second, Wilson argued that the Government made improper comments during closing arguments, specifically by misstating the law of conspiracy. The court held that the statements were not erroneous, given the full context in which they were made which included the four other offenses with which Wilson was initially charged.
Third, Wilson argued that the district court at sentencing improperly relied on a written statement he made to investigators. The court held that the statement, given to civilian investigators while Wilson was in the military, was voluntarily given and could be considered at sentencing.
Finally, Wilson argued that the district court erred by denying his motion for a new trial based on newly discovered evidence and a Brady violation. The court held that there was no Brady violation and that neither a newly discovered witness nor a recantation by CW of some of his trial testimony required a new trial.

Lighty and Flood were found guilty on all counts. Lighty was sentenced to death and Flood to life in prison. The Fourth Circuit affirmed the convictions and sentences after rejecting numerous arguments raised on appeal.

As to Lighty:

First, the court rejected Lighty's argument that his trial should have been severed from Flood's as their defenses were not antagonistic (though they were occasionally at odds), did not restrict the evidence Lighty could present to the jury, and did not violate his Eighth Amendment right to individualized sentencing.
Second, the court rejected several arguments about the admission of evidence, including the Afton Street Shooting evidence addressed above (harmless error), the exclusion of testimony from Lighty's witnesses about another potential perpetrator (no error), and the admissibility of a Government witness's answer to the question of whether she had any "doubt" about statements Lighty made to her (no error).
Third, the court rejected Lighty's argument that the Government's closing arguments during the penalty phase referencing the victim's family's desire that Lighty be executed denied him a fair trial, holding that while improper the statements did not affect Lighty's substantial rights.
Fourth, the court rejected Lighty's arguments that the district court improperly excluded several bits of mitigating evidence during the penalty phase.
Fifth, the court rejected Lighty's argument that the district court erred by refusing to give the jury an instruction that it was not required to impose the death penalty, regardless of its findings on mitigating/aggravating factors.
Sixth, the court rejected Lighty's argument that the use of the Afton Street Shooting as a non-statutory aggravating factor required it to be charged in the indictment.
Seventh, the court concluded that Lighty's death sentence was not the result of "passion, prejudice, or any other arbitrary factor."
Eighth, the court rejected Lighty's argument that his consecutive sentences under 924(c) were improper or that the entire process was rife with cumulative error.
Finally, the court rejected Lighty's argument that he should receive a new trial on newly discovered evidence, as it did in Wilson's case.

As to Flood, the court rejected his arguments that his Confrontation Clause rights were violated by the district court's requirement that CW not specifically identify "three others" during his testimony and that the district court erred by not giving the jury a willful blindness instruction. The court also affirmed Flood's consecutive 924(c) sentences as it did for Lighty.

Conflict of Interest Led to Failure to Pursue Departure

2010-07-13T10:08:00.000-04:00

US v. Nicholson: Nicholson was arrested in 2001 for being a felon in possession of a firearm. At the time he told police that he got the gun for protection because he feared for his life. That reasoning was never contradicted and even confirmed by the Government during plea and sentencing hearings. Nevertheless, Nicholson's counsel never argued it as a reason for the district court to depart (this was pre-Booker) from the Guideline range at sentencing. Nicholson was sentenced to 189 months in prison, just above the mandatory minimum required by the ACCA.

Nicholson filed a 2255 alleging ineffective assistance of counsel due to a conflict of interest - during the time trial counsel represented Nicholson, he also represented Butts, the person who had made threats against Nicholson's life that led him to get a gun. Nicholson argued that conflict prevented counsel from using the threats in an argument for a lower sentence. The district court initially concluded that there was no conflict of interest, a conclusion that the Fourth Circuit rejected in 2007. On remand, the district court concluded that the conflict did not adversely affect trial counsel's performance and therefore denied Nicholson's motion.

The Fourth Circuit disagreed, again, and reversed the district court's holding. As for exactly what Nicholson was facing when he was arrested:

[H]is brother, Rudolph Nicholson, agreed in early 2000 to assist federal officers in their criminal investigation of Butts and his associates — prompting Butts to issue a series of threats against Rudolph and other Nicholson family members. On March 3, 2000, brother Rudolph was shot seven times by Butts’s son in Portsmouth, but survived the attack. Rudolph was treated for two months in a Norfolk, Virginia hospital,where a would-be assassin disguised as a priest — actually Butts himself — unsuccessfully attempted to enter Rudolph’s room and kill him. Around May 2000, federal officers informed Nicholson and his mother, Sandra Nicholson (whom Butts also threatened), that Butts had placed a contract on Nicholson’s life. On September 18, 2000, Nicholson’s stepfather, Charles Nicholson, was fatally shot multiple times on a Portsmouth street by Butts and his accomplices.

(footnote omitted).

Applying the three-part test in Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001), the court held that (1) there was a plausible alternative strategy that trial counsel could have pursued, (2) that strategy was objectively reasonable based on the facts of the case known to counsel at the time, and (3) counsel's failure to pursue that strategy was due to the conflict of interest. On the record there was "overwhelming evidence - believed and even endorsed by the Government - that Nicholson faced . . . a genuine threat of death." Thus, the court vacated Nicholson's sentence and remanded the case for resentencing before a different judge.

District Judge Neely dissented to the court's opinion only in its requirement that a new judge preside at the resentencing.

Failure to Request Informant Instruction Ineffective Assistance of Counsel

2010-07-13T10:07:00.000-04:00

US v. Luck: Luck was convicted on four counts of drug and firearm violations by a jury. He filed a 2255 challenging his convictions on numerous grounds. After the district court determined that three of the counts were tainted by ineffective assistance of appellate counsel those counts were dismissed by the Government. As to the remaining count, conspiracy to distribute more than 50 grams of crack cocaine, the district court concluded that Luck's trial counsel was not ineffective and refused to vacate that conviction.

On appeal the Fourth Circuit disagreed and reversed the district court's ruling. Specifically, the court held that Luck's trial counsel rendered ineffective assistance by failing to request an "informant instruction" that would explain to the jury the special duty it has to weigh an informant's testimony against his motives for testifying. Two of the main witnesses against Luck were paid informants. While the court declined to adopt a rule that such an instruction must be given in any case involving informant testimony, it did conclude that such an instruction should have been given in Luck's case based on the evidence presented at trial. Trial counsel was ineffective for failing to request such an instruction and that failure was prejudicial to Luck, even though the trial court's jury instructions as a whole "contained all of the elements of the informant instruction."

Judge Shedd dissented, agreeing that counsel should have requested the instruction but arguing that Luck had not demonstrated prejudice.

Alford Plea Can't Support ACCA Prior

2010-07-13T10:04:00.001-04:00

US v. Alston: Alston was convicted of being a felon in possession of a firearm. The PSR suggested that Alston was subject to the 15-year mandatory sentence under the ACCA due to having three prior convictions in Maryland. One of those convictions, for second-degree assault, an offense which may or may not be a "violent felony" under the ACCA, depending on how it is committed. Unable to determine how the offense was committed from the charging documents, the Government presented a transcript of the guilty plea hearing, at which the prosecutor proffered evidence alleging that Alston threatened several people with a gun - thus committing a violent felony. The plea, however, was an Alford plea, which Alston argued did not establish with "the kind of certainty that Shepard requires" which particular version of the offense he was convicted of committing. The district court disagreed and imposed a 15-year sentence.

On appeal, the Fourth Circuit vacated Alston's sentence. Noting that most circuits that have addressed the issue have adopted Alston's position, the court concluded that "a prosecutor's proffer of the factual basis for an Alford plea does not satisfy the requirements of the modified categorical approach" set forth in Shepard. Thus, Alston's sentence was vacated and remanded for resentencing.

Congrats to the FPD office in Maryland on the win!

Courts Affirms Multiple Enhancements for Bringing Gun to Probation Office

2010-07-13T10:03:00.001-04:00

US v. Perez: Perez was an illegal alien who was arrested by ICE when he appeared for a meeting with his Maryland state probation officer. A search of his backpack uncovered a loaded handgun and additional ammunition. Perez was charged with and pleaded guilty to being a felon in possession of a firearm. At sentencing, the district court applied several enhancements not set forth in the PSR, bouncing Perez's Guideline range from 27-33 months to 63-78 months. The district court then imposed a sentence of 96 months in prison.

On appeal, Perez challenged both the calculation of his Guideline range and the substantive reasonableness of his sentence. The Fourth Circuit rejected all those arguments and affirmed. As to the Guidelines, Perez first challenged the four-level enhancement under USSG 2K2.1(b)(6), which the district court applied because Perez's carrying a loaded firearm without a safety around in public in a cloth bag constituted reckless endangerment in Maryland. The court found that conclusion was not clearly erroneous. Second, Perez challenged the two-level enhancement under 5K2.3 imposed by the district court after it concluded that it caused the probation officer psychological injury as she began wearing a bullet-proof vest and requested a transfer after 25 years in that position. The court found that conclusion was not clearly erroneous. Third, Perez challenged a two-level enhancement under 5K2.7 imposed after the district court concluded that the probation officer's transfer and the display of a sign stating its policy banning handguns from the office showed that Perez's actions "resulted in a significant disruption of a governmental function." Again, the court found that conclusion was not clearly erroneous. As for the substantive reasonableness of the sentence, the court found that the district court provided sufficient explanation for its sentence.

Defendant's Appeal Brings Successful Government Cross Appeal

2010-07-13T09:59:00.000-04:00

US v. Young: Young was the subject of an investigation that led to the execution of an arrest warrant at his home. Police executed the warrant, arrested Young, and saw some drugs in plain view. They obtained a search warrant and eventually recovered a large amount of cash and cocaine. Young moved to suppress that evidence, arguing that the police failed to knock and announce their presence before entering his home. The district court disagreed and denied the motion. Young went to trial and was convicted of two drug offenses by a jury, which returned a special verdict form concluding that Young was responsible for between 500 grams and 5 kilograms of cocaine. The PSR, however, held him responsible for between 50 and 150 kilograms of cocaine. At sentencing, the district court went with the jury's finding, concluding it was bound by it and imposed a sentence in the middle of the resulting Guideline range.

Young appealed both his conviction and sentence and the Government cross appealed on the sentence. The Fourth Circuit affirmed Young's conviction, but vacated his sentence. As to the conviction, the court first affirmed the district court's denial of the motion to suppress. The court rejected Young's argument that the police should have waited longer for a response after knocking. In a footnote, the court rejected the Government's invitation to conclude that the Supreme Court's decision in Hudson, which held that suppression was not an appropriate remedy for knock and announce violations in the execution of a search warrant, also applied to the execution of arrest warrants. Next, the court concluded that the evidence was sufficient to sustain Young's convictions.

As to sentencing, the court rejected Young's arguments as all foreclosed by circuit precedent. The Government's cross appeal, however, was another matter. The Government argued that the district court erred by concluding that the jury's findings as to drug quantity bound it at sentencing, aside from setting the applicable statutory maximum/minimums. The court agreed. Even though the jury's findings were that of a "lesser included offense" of the 5 kilogram amount alleged in the indictment, that finding did not bind the district court. The district court was free to evaluate drug quantity at sentencing as it could with any acquitted conduct. The fact that the Government chose not to present all its drug quantity evidence at trial was irrelevant (the Government did present evidence at sentencing that the district court concluded would support a higher Guideline range). Therefore, the sentence was vacated and the case remanded.

Employee Filing False Timesheets With Employer Under NSA Contract Within Scope of 1001

2010-07-13T09:57:00.000-04:00

US v. Jackson: Jackson worked for Northrop Grumman, a sub-contractor on a "time-and-materials" contract with the NSA. During his employment, Jackson submitted false timesheets to his employer. He was charged with 20 counts of making false statements under 18 USC 1001. He moved to dismiss, arguing that his statements were not made "in relation to a matter within the jurisdiction of the executive branch." The district court denied the motion and Jackson entered a conditional guilty plea to three counts.

On appeal, the Fourth Circuit affirmed the denial of the motion to dismiss. On appeal, Jackson argued that because the NSA was created by executive order rather than a statute it had "no statutory basis" to access his timesheets. Noting that the "authority to safeguard federal funds" is "an official, authorized function of the executive branch," the court held that authority was, in itself, a sufficient jurisdictional nexus to bring the case within the reach of 1001. However, the court also noted that the NSA had an additional power when it came to Jackson - it could revoke his security clearance and terminate the contract under which her worked - that strengthened the nexus.

Single Source of Funds Does Not Preclude Pattern of Illegal Activity

2010-06-21T10:31:00.000-04:00

US v. Peterson: Peterson had multiple chiropractic operations in Virginia, the cash proceeds of which she put in a safe deposit box. The amount in the box totaled over $100,000. She also made a series of deposits into her checking account of $9500 or a little less, at the urging of her (now ex) husband to "avoid burdensome paperwork" and arousing the suspicion of law enforcement from large cash deposits made by an Iranian-American. Peterson pleaded guilty to structuring under 31 USC 5324(a)(3). At sentencing, she argued that a two-level enhancement under USSG 2S1.3(b)(2) did not apply because the alleged "pattern of unlawful activity" was all the same - transferring funds from her safety deposit box into her bank account. The district court disagreed, calling the result of such an argument "bizarre and unintended."

On appeal, Peterson renewed her argument that she did not engaged in a "pattern of unlawful activity" - defined as two or more separate instances of illegal activity - if all the funds in question came from only one source. The Fourth Circuit disagreed and affirmed Peterson's sentence. It held that the enhancement can apply in cases of "serial structuring," even if the result is only one indictable offense. The single source of the funds was irrelevant, as "because Peterson made more than one unlawful deposit . . . she committed her offense as part of a pattern of unlawful activity."

Routine Military Search of MP3 Player OK Under Fourth Amendment

2010-06-21T10:30:00.000-04:00

US v. Rendon: Rendon was in the Army and was transferred from one unit to another at Fort Knox, Kentucky, in order to be processed for a medical discharge. As part of the protocol for coming into a new unit, Rendon's possessions were search, including his MP3 player, which would be "turned on and checked to ensure that the[re] are no graphic materials on them such as pornography." An inspection of Rendon's MP3 player uncovered child pornography. As a result, a search warrant was executed at Rendon's home in Virginia which uncovered more images and videos of child pornography. Rendon was indicted for possession of child pornography and sought to suppress the evidence from the searches. The district court denied the motion, holding that Rendon had no expectation of privacy in the MP3 player because the search was committed for military, no law enforcement, purposes. Rendon pleaded guilty and was sentenced to 97 months in prison.

On appeal, Rendon renewed his argument that the search of his MP3 player violated the Fourth Amendment. Specifically, Rendon argued that the Army's search was not done pursuant to a valid military inspection and was done for law enforcement purposes. The court disagreed, holding that the initial search of the MP3 player was done pursuant to military policy intended to implement military, not law enforcement, goals and that there was no individualized suspicion of Rendon prior to the discovery of contraband on his player.

No Intent to Remain Needed to Establish Venue for Child Support Prosecution

2010-06-21T10:29:00.000-04:00

US v. Novak: Novak was the father of two children, one living in California from a previous marriage and one in New York with his (then current) wife. Between 1993 and 2008, he failed to pay more than $120,000 in child support for the California child (plus interest). In August 2004, after his wife had filed for divorce, Novak moved to Virginia to fulfill a consultancy contract that would terminate at the end of 2004. He remained in Virginia, however, until August, 2007, when he was arrested and charged in the EDVA with willfully failing to pay child support under 18 USC 228(a)(3). At trial, venue was a key issue, whether Novak "resided" in EDVA. Novak argued that he lived in New York and only worked in Virginia - he returned to New York weekly to visit his daughter, continued to pay for the marital home, and kept most of his possessions there. The jury was instructed that to "reside" means "living in a given place permanently or for an extended period of time." Novak was convicted.

On appeal, Novak made two venue-related arguments against his conviction, both of which the Fourth Circuit rejected. First, he argued that the district court erred by failing to instruct the jury that it had to find that he intended to remain in Virginia in order to find that he resided there. The court concluded that the plain meaning of "reside" did not include an intent to remain in a particular place, differentiating it from the concept of domicile. Second, Novak argued that the district court erred by failing to instruct the jury specifically that he had to reside in EDVA during a time when he willfully failed to make child support payments. Even assuming that there was error in the instruction, the court held that it was harmless.