Court Upholds Conviction in Bank Robbery (Using Gasoline) Case

US v. Midgett: How's this for a statement of facts:

Around 12:30 on the afternoon of October 19, 1999, J.W. Shaw, a construction worker, was sitting in a van eating lunch at his worksite in Charlotte, North Carolina, when another van pulled up on his driver’s side. Defendant Paul Midgett was the driver of this second van, and his girlfriend, Theresa Russell, was a passenger. Midgett emerged from his van, walked over to Shaw, doused Shaw with gasoline from a large fast-food drink cup, and demanded that Shaw hand over his wallet. Shaw complied with this demand, but Midgett nonetheless proceeded to ignite the gasoline, setting Shaw on fire. Shaw suffered burns that caused him to be hospitalized and miss between six and seven weeks of work.

After fleeing the scene of the attack on Shaw, Midgett and Russell decided to rob a bank. They stopped at a gas station and filled an empty Dr. Pepper soda bottle with gasoline. Midgett and Russell then drove to a BB&T bank branch in Indian Trail, North Carolina. Midgett told Russell that he planned to enter the bank, demand money from a teller, and, if his demand was refused, douse the teller with gasoline and ignite it.

Midgett carried through with the bank robbery plan, making off with approximately $3000. He was tried and convicted on charges of malicious damage to property used in interstate commerce resulting in personal injury (Count 1), bank robbery by force or violence (Count 2), and putting in jeopardy the life of another by use of a dangerous weapon or device in committing a bank robbery by force or violence (Count 3). On the malicious damage charge he received a sentence of 360 months, with concurrent life sentences on the other two counts.

Midgett made several arguments on appeal, challenging both his conviction and sentences, which were all save one briefly dealt with and rejected by the Fourth Circuit.

The court rejected Midgett's arguments that the district court erred when it (1) denied his pretrial request to plead guilty to Count 2, (2) denied his motion for judgment of acquittal on Count 3, (3) allowed him to be placed in leg restraints during his trial, (4) denied his request for injections of the painkiller Nubain (even though medical science says the condition Midgett claimed to have did not cause pain), (5) excluded from evidence an exculpatory letter allegedly written by his coconspirator and onetime girlfriend and limiting the use of other letters also purportedly written by her to impeachment, (6) limited the direct examination of Midgett; (7) limited Midgett’s cross-examination of his girlfriend, and (8) acted out of bias against Midgett.

As to sentences, court rejected Midgett’s argument that the district court erred in declining to continue his sentencing hearing and contravened his constitutional rights in enhancing his sentences on Counts 2 and 3 based on his prior convictions. However, the court did agree that the district erred in imposing separate sentences on Counts 2 and 3, as one was a lesser included offense of the other, vacated the sentences on those counts, and remanded for resentencing.

Lenient Sentences for Tax Protestors Vacated

US v. Baucom: Baucom and his codefendant ran a land surveying and computer consulting business. Between 1990 and 2002, they filed neither personal nor business related tax returns. Why? Because they're tax protestors. Their beliefs regarding the constitutionality of the tax system led to multiple pretrial delays as they unsuccessfully tried to find counsel willing to put forward those arguments. The district court eventually ran out of patience. Baucom and chum proceeded pro se and were convicted. At sentencing, they were granted credit for acceptance of responsibility and their failure to pay state income taxes were excluded from relevant conduct calculations. In addition, the district court imposed sentences below the advisory Guideline range on the theory that there was little deterrent impact for tax protestors when long sentences were imposed.

Both sides appealed. Baucom and colleague appealed their convictions, arguing that they were denied their Sixth Amendment right to counsel. The Fourth Circuit made quick work of that argument, noting the lengths to which the district court went to ensure that they had time to find counsel and the offers to appoint counsel.

The Government appealed the sentences, both on Guideline calculation grounds and as to the reasonableness of the sentences imposed. On the Guideline issues, the Fourth Circuit concluded that the district court had erred in two ways. First, the district court improperly excluded the North Carolina taxes Baucom and his codefendant failed to pay during their scheme, noting that they were "part of the same course of conduct or common scheme or plan" as their failure to pay federal taxes. Second, the court concluded that the district court should not have awarded Baucom and codefendant credit for acceptance of responsibility, based on their obstructive behavior and factual arguments made during trial. Finally, the court, while not reaching the issue directly, rejected the district court's argument about deterrence, noting that the Guideline commentary specifically emphasizes deterrence in tax cases due to the low number of prosecutions.

Upward Variance for Steroid Scheme Upheld

US v. Shortt: Shortt was a South Carolina doctor who ran a 7-year scheme in which he provided steroids and human growth hormone to athletes (including some of the Carolina Panther, apparently). In addition to providing the substances, he helped craft means by which the use of those substances could be hidden from officials and testers. Charged in a 43-count indictment with conspiracy and substantive distribution charges, Shortt eventually pleaded guilty to the conspiracy charge. Shortt's Guideline calculations produced an advisory range of 0-6 months. At sentencing, the Government moved for an upward variance, arguing that the Guidelines did not adequately address Shortt's conduct (there is no Guideline dealing with human growth hormone, for instance). The district court agreed and sentenced Shortt to 12 month and 1 day in prison.

On appeal, Shortt argued that his sentence was unreasonable. The Fourth Circuit disagreed, upholding the district court's findings regarding the scope and seriousness of Shortt's offense and his general lack of contrition (in spite of getting credit for acceptance of responsibility). Along the way, the court makes some bold statements about the purposes of sentencing and the proper consideration of sentences (as Doug Berman highlights here).

Post-Arrest Distribution in Jail Not Relevant Conduct

US v. Dugger: Dugger was charged with distribution of crack based on a controlled buy made in Huntington, West Virginia. Denied bond, he was shipped to Carter County, Kentucky. While there, he joined with other inmates and guards to bring in and distribute marijuana and Xanax. The scheme was detected and Dugger freely admitted his role in it. There is no indication that he has been charged with an offense related to that conduct. At sentencing, Dugger was denied credit for acceptance of responsibility due to his participation in the Carter County scheme. He was also assessed a two-level enhancement under USSG 2D1.1(b)(3) because "the object of the offense was the distribution of a controlled substance in a prison . . .." He received a sentence of 121 months, the bottom of the advisory Guideline range.

On appeal, Dugger made two arguments. First, he argued that this Carter County conduct did not support denying him credit for acceptance of responsibility because it was unrelated to his offense of conviction and he admitted his responsibility for that conduct. The Fourth Circuit quickly rejected that argument, noting that post-arrest drug dealing hardly shows that someone charged with distribution of crack has accepted responsibility for his actions. Second, Dugger argued that the 2D1.1(b)(3) enhancement was not applicable because the Carter County conduct was not related to the offense of conviction. The Fourth Circuit agreed, concluding that the Carter County scheme was not part of the relevant conduct of the crack distribution charge. Dugger's sentence was vacated and remanded for further proceedings.

Congrats (again) to CJA panel member Troy Giatras on the win.

Look-a-Like Drug Conviction = Controlled Substance Offense Under 2K2.1

US v. Mills: Mills was stopped in his car in Baltimore. During a consensual search, an officer found 120 rounds of ammunition. A later search at Mills's business uncovered a stash of guns and associated paraphernalia. Mills eventually pleaded guilty to being a felon in possession of ammunition. At sentencing, the issue was whether Mills's base offense level under USSG 2K2.1 should be 24 or 20, based on his prior convictions. Mills contended that his prior Maryland conviction for "possession with intent to distribute look-a-like controlled dangerous substances" was not a "controlled substance offense" sufficient to support the higher base offense level (he admitted another prior conviction that fit the definition of "crime of violence"). The district court disagreed, set the base offense level at 24, and sentenced Mills to 70 months in prison.

On appeal, the Fourth Circuit affirmed Mills's sentence. The court concluded that the term "counterfeit substance," as used in USSG 4B1.2(b) and to which 2K2.1 cross references, was not defined by the Guidelines and therefore retained its plain meaning. Under that plain meaning, Mills's prior offense - which involved distributing substances that were not narcotics under the false pretense that they were - involved a counterfeit substance and therefore was a controlled substance offense. The court rejected Mills's attempt to read the definition of "counterfeit substance" from 21 USC 802(7) (which involves falsely labelled prescription drugs) into 4B1.2(b), noting that the Sentencing Commission knows how to cross reference to specific statutory definitions and it's failure to do so in this case must have been intentional. The court also rejected Mills's argument that the fact that simulated drug offenses are not counted for career offender purposes required a definition of counterfeit substance different from the plain meaning.

Court Reverses Suppression Due to Illegal Arrest; Scolds Government in the Process

US v. McNeill: A Baltimore police officer responded to a 911 call from a nearby convenience store. When he arrived, he found McNeill standing next to a woman and her children who were exiting a phone booth. The woman approached the officer, with McNeill in pursuit, and said that she wanted McNeill to leave her alone and that he had been "following her and messing with her." McNeill tried to interject his version of the situation into the discussion but was told by the officer to "chill out." McNeill decided that discretion was not called for and said to the woman "I'm going to get you, bitch, for this." The officer arrested McNeill for committing "assault by threat." While in custody with the Baltimore PD, McNeill, for reasons not hinted at in the opinion, confessed to participating in two bank robberies.

McNeill was charged with two counts of bank robbery under 18 USC 2113(a). He moved to suppress the statements as the fruit of an illegal arrest, claiming that he did not commit an offense in the presence of the officer who arrested him without a warrant. The district court granted that motion and the Government instigated an interlocutory appeal. As has been its recent trend, the Government failed to file the required certification for such an appeal under 18 USC 3731 until six months after the notice of appeal was filed (i.e., six months late) and it was filed in the wrong court, to boot.

McNeill moved the Fourth Circuit to dismiss the appeal due to the Government's failure to follow the requirements of section 3731. After noting the Government's repeated failures to comply with 3731 in recent years (see Hatfield & Dequasie) and a similar failure in another pending case, the court noted:

In this case, we are presented with the unfortunate fact that after our repeated warnings in 2004, the government continued to neglect the statutory requirements as we construed them. At the least, the government's failures are shameful lapses in professionalism. To his credit, however, the U.S Attorney himself stepped into this case to address the problem. He noted that the Assistant U.S. Attorneys involved in this case and in [the other pending case] were not personally aware of our 2004 decisions and that the requirements of those decisions were not reflected in the manuals used by Assistant U.S. Attorneys.

Emphasis added. Nonetheless, after restating once and for all that the 3731 certification must be filed along with the notice of appeal, the court applied the seven-factor test set forth in Hatfield and concluded that dismissal was not warranted in this case as a remedy for the Government's shortcomings. Thus the court, once again, gives lip service to the importance of the Government actually playing by the rules without actually imposing any negative consequences for failing to do so.

On the merits, McNeill fared no better. While the court initially questioned whether there was an "in the presence" requirement under the Fourth Amendment for warrantless misdemeanor arrests, it concluded that it need not resolve the issue in this case because McNeill did commit an offense in the officer's presence. To be fair, he did not commit "assault by threat," as it is not a crime in Maryland. However, noting that the arrest would be upheld if any offense was committed, regardless of the one given as the reason for arrest at the time, the court held that McNeill committed the Maryland offense of harassment (Md. Code Ann., Crim. Law 3-803). The officer therefore had probable cause to make the arrest and the later statements McNeill made regarding the bank robberies were thus not fruit of an illegal arrest.

Lack of Notice of Upward Variance Does Not Require Remand

US v. McClung: McClung was an assistant state school superintendent who was responsible for, among other things, getting the Mingo County (WV) school system running again after a series of devastating floods. During his tenure, McClung renewed an old friendship with Philip "Porkchop" Booth, who ran several businesses that sold furniture and other supplies. McClung basically funnelled business Porkchop's way in return for cash. As a result, McClung pleaded guilty to extortion and filing a false tax return. His Guideline range, to which neither party objected, was 51 to 63 months. Without notice, the district court imposed a sentence of 84 months.

McClung made two arguments on appeal regarding his sentence. First, he argued that the district court erred by imposing an above-the-Guidelines sentence without notice. Because McClung did not object to the imposition of that sentence at the time, review was only for plain error. While conceding that the district court was erroneous in proceeding without notice, the court held that McClung could not show any prejudice from the error. He filed a sentencing memorandum that addressed the 3553(a) factors and included a long letter addressing his personal conduct and remorse. Because McClung could not point to any other argument he might have made had he been given notice, the court rejected that argument. Second, and similarly, McClung argued that his sentence was unreasonable. For reasons similar to the first issue, the Fourth Circuit disagreed and upheld McClung's sentence.

Court Upholds Conspiracy and Gun Convictions

US v. Wilson: Wilson and his codefendants were convicted of conspiracy to distribute drugs and firearm offenses. They raised various arguments regarding their trial, all of which the Fourth Circuit rejected. First, the court held that the district court properly allowed a detective to testify as an expert witness regarding "drug lingo" and "translate" numerous phone conversations among the conspirators. There were individual questions/answers which went beyond the scope of proper expert testimony that were not objected to by Wilson, the they did not rise to the level of plain error. Second, the court rejected several challenges to the jury instructions, applying plain error review (although the court concluded that there were no errors to begin with) - that the district court's telling the jury that it was the only one that "has ever decided or will decide" whether the Government proved its case was an impermissible Allen charge; that the instructions failed to require the jury to find the existence of an unlawful agreement before determining who was a part of it; and that the examples of conspiracies provided by the district court of too nearly tracked the facts of this case. Third, the court concluded that the Government's filings in support of the warrants used to wiretap the conspirators' phones were sufficient. Finally, the court rejected challenges to the sufficiency of the evidence.

"Misdemeanor Crime of Domestic Violence" Must Include Element Establishing Relationship Between Defendant & Victim

US v. Hayes: Hayes was convicted of the West Virginia misdemeanor offense of battery in 1994. The victim of the crime was his then-wife, but he was not convicted of domestic battery. In 2005, police responded to a domestic disturbance call at Hayes's home which led to a consensual search of the home. The search uncovered a rifle. Hayes was then charged with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence (MCDV), based on the 1994 offense. Hayes moved to dismiss the indictment, arguing that his 1994 conviction was not an MCDV, on various grounds. The motion was denied and Hayes entered a conditional guilty plea, preserving his right to raise the issue on appeal.

On appeal, the Fourth Circuit reversed the district court, 2-1, holding that Hayes's 1994 conviction was not a MCDV because it did not contain an element regarding the relationship of the victim to the defendant. The court engaged in a lengthy analysis of the statutory language of the MCDV definition, 18 USC 921(a)(33)(A), before concluding that the language of the definition "plainly require[s] that a predicate offense have as an element one of the specific domestic relationships between the offender and the victim." That reading is supported by the "rule of the last antecedent," and is not "demonstrably at odds" with the legislative intent of the statute. In addition, if the statutory language was ambiguous, the Rule of Lenity would require the same outcome. In concluding the opinion, the court noted that this holding was "in the minority." Judge Williams, in her dissent, noted that "we are not in the minority, we are the minority." Judge Williams disagreed with the majority's statutory analysis. In addition, she rejected Hayes's argument (which the majority did not reach) that the Government could not prove the relationship between Hayes and the victim in the 1994 conviction by use of extrinsic evidence, as in Shepard.

Congrats to SDWV CJA panel member Troy Giatras for the big NDWV win.

Court Rejects Challenges to Inventory Search, Hearsay Claim to Affirm Drug Convictions

US v. Banks: Banks was involved with an elaborate scheme to illegally obtain prescription medication which was then provided to street-level dealers for distribution. Banks and his codefendants used fake prescription pads (containing the relevant DEA numbers of real doctors) from bogus medical clinics they set up to write prescriptions that were filled at local pharmacies. When one pharmacist became suspicious, Banks and a codefendant was arrested. When he was arrested, Banks was asked if there was anything in his car in the pharmacy parking lot that he wanted taken to the police station with him. Banks identified two bags in the trunk which were recovered and brought to the station. During the booking process the bags were opened. A subsequent inventory search revealed numerous pieces of evidence of the scheme. Some time later, a search warrant was executed at one of the fake medical clinics. The search produced two fingerprints which were collected on cards and sent away for analysis. The fingerprint cards including hand written notes from the evidence technician who collected the prints indicating where in the clinic they were found.

Prior to trial, Banks unsuccessfully moved to suppress the evidence found in the bags searched following his arrest. He also unsuccessfully moved to fire his public defender on the grounds the he "worked for the Government." Banks also, in a pro se motion, alleged that the district court lacked jurisdiction over him because he was a "real, live flesh and blood Man." Banks was convicted of multiple counts of drug possession, conspiracy, and fraud and sentenced to 16 years in prison.

On appeal, Banks raised three issues, each of which the Fourth Circuit rejected. First, he argued that the district court should have suppressed the evidence found in the bags taken from his car because the officer who searched the bags did not follow the department's own guidelines for inventory searches. The Fourth concluded that strict compliance with those guidelines was not necessary, as the guidelines were complied with "more generally" in an unusual situation caused, in part, by Banks's request that the bags be brought to the police station. The district court's conclusion that the search was not investigative was not clearly erroneous. Second, Banks argued that the admission of the evidence technician's notes on the fingerprint cards was erroneous because those notes were hearsay and their introduction violated Crawford v. Washington, 541 U.S. 36 (2004). The Fourth did not resolve those issues directly, instead concluding that any error was harmless given the weight of other evidence admitted against Banks. Finally, the Fourth rejected Banks's argument that the district court should have sua sponte moved to evaluate his competency, holding that Banks's odd behavior was simply "an ill-advised, self-defeating legal strategy."

Walk-Away from Work Release is "Crime of Violence" Under ACCA

US v. Mathias: Mathias was convicted of being a felon in possession of a firearm. He was sentenced to 180 months as an armed career criminal under 18 USC 924(e) because he had three prior convictions for "violent felonies." At sentencing, Mathias argued that one of his prior convictions, a Virginia conviction for "escape without force or violence" did not qualify as a "violent felony." The district court disagreed. On appeal, Mathias raises the same argument, which the Fourth also rejects. Restating prior Circuit law from the career offender context, the court explains that any escape offense - including one like Mathias's that was simply walking away from a work release center - pose a "serious potential risk of physical injury to another." The court rejected Mathias's argument that the fact that Virginia specifically provides for non-violent escape convictions made any difference.

Sua Sponte Downward Variance Requires Remand

US v. Blatstein: Blatstein was a podiatrist who concocted a scheme to bill his patients insurance carriers for outpatient surgical procedures in a facility that didn't exist. He pleaded guilty to one count of mail fraud, based largely in documents seized pursuant to a search warrant based on information provided by former employees and patients. Blatstein moved to suppress those documents, arguing that the agent obtaining the warrant failed to tell the magistrate about a Virginia statute allowed the types of procedures he billed for to be performed in his office and not in a separate facility. That motion was denied. At sentencing, both Blatstein and the Government agreed that a 24-month sentence, within the Guideline range, was appropriate. However, on its own motion, the district court varied and imposed a sentence of 12 months in prison.

Blatstein appealed the denial of the motion to suppress and the Government cross-appealled the sentence. The Fourth Circuit easily rejected Blatstein's argument, noting that the Virginia statute at issue was irrelevant to his billing practices, which lead to the mail fraud. As to the sentence, the Fourth recognized that because the Government did not object to the district court's failure to provide notice of intent to vary, it was stuck with plain error review. However, the court found that there was error, the error was plain (per Davenport), that the Government's fundamental rights were violated, and that it appeared the Government could make a valid argument against the 12-month sentence on remand. Thus, Blatstein's conviction was upheld, his sentence vacated, and the case remanded for further proceedings.

Post-Offense Rehabilitation Doesn't Support Probation in Crack Case

US v. Pyles: Pyles was part of a "circle of drug using friends" in Morgantown who would get drugs for other people and "pinch" a bit for themselves as payment. In May and June, 2004, authorities made three controlled buys of crack from the pinching Pyles, totalling 0.71 gram. In May, 2005, Pyles and several others were indicted on charges of conspiracy to distribute more than 5 grams of crack and substantive delivery charges. Pyles eventually entered a guilty plea to one count of aiding and abetting the distribution of crack. However, in the PSR Pyles was attributed 26.4 grams of crack as relevant conduct. His Guideline range was 63 to 78 months.

Between the time of the controlled buys and Pyles's sentencing hearing, he made significant steps towards rehabilitation. His employer submitted letters to the district court detailing Pyles's efforts to turn his life around and his value as an employee. Concerned as to Pyles's need for drug treatment, the district court postponed sentencing to allow Pyles to seek treatment with a "noted substance abuse counselor in Morgantown." When sentencing reconvened, the counselor reported to the court that Pyles "ha[d] done better than any person I am currently working with." Pyles had successfully completed his term of presentencing bond with no incidents, according to the probation officer.

The district court then asked the parties about the factors found in 18 U.S.C. 3553(a) and whether probation would better serve those factors than imprisonment. The Government objected to the idea of probation, noting that a co-defendant had already been sentenced to 37 months in prison. The district court rejected that argument, noting that the Fourth Circuit has held that inter-defendant disparity is not the type of disparity that is prohibited. The district court finally determined that probation was appropriate and sentenced Pyles to 5 years of probation, including a 6-month term of home confinement. To support her sentence, the district court produced a 22-page opinion detailing Pyles's rehab and working through each of the 3553(a) factors.

The Government, of course, appealed, and the Fourth Circuit reversed, finding the extent of the variance in this case to be unreasonable. Initially, however, the court did affirm the district court's refusal to consider inter-defendant conspiracy as a factor at sentencing. However, the court ultimately decided that a sentence of probation in a case where the unobjected to Guideline range bottomed out at 63 months was too great. The court concluded that the district court would have had to depart 16 levels under the Guidelines to reach a zone in which probation was an option, which was too great given the circumstances of the case. The court praised the district court, somewhat patronizingly, for the time and effort it put in to justifying its decision, but in the end it was not sufficient to justify a sentence that did not include incarceration. Pyles's sentence was vacated and remanded for further proceedings.

The heart of this case really comes down to a quote from the district that's on page 13 of the slip opinion: "federal sentencing policy is not purely retributive. It does not mandate warehousing individuals who reclaimed their lives long before they were indicted and arrested." The Fourth spends the next four pages basically saying, "oh yes it does."

Doug Berman & commentators at Sentencing Law and Policy discusses Pyles here.

Confession Not Sufficiently Corroborated to Support Gun, Drug Convictions

US v. Stephens: A Roanoke, Virginia, police officer was on patrol when he heard several shots fired. As he surveyed the scene he saw Stephens crossing the street. When Stephens saw the officer, he ran off and was eventually apprehended in an abandoned house. The officer retraced Stephens's path and discovered a revolver on the ground that he been recently fired. At the police station, Stephens made a statement:

He told the agents that a local drug dealer known as "Red" fronted him one and a half ounces of cocaine approximately two to three months before, for which Stephens was to pay $1,500. Stephens was unable to repay Red, however, because Stephens’s wife consumed all the cocaine. On August 19, 2004, Stephens became aware that Red had spread word on the street that Stephens would be killed because of his failure to pay. That same evening, when Stephens drove past Red and some associates, someone in Red’s group fired a shot at Stephens. Stephens later retrieved his handgun and fired the shots heard by Babb at Red’s vehicle, a white Mazda, when he saw it on the street. Approximately two months after the initial statement to the agents, Stephens repeated this explanation in a proffer to the government.

Stephens was charged with three offenses: conspiracy to distribute narcotics, possession of a firearm in connection with a drug trafficking offense, and being a felon in possession of a firearm.

He pleaded guilty to the felon in possession offense and went to trial on the other two offenses. At trial, Stephens's statement was admitted into evidence. Stephens then testified in his own behalf:

Stephens took the stand in his own defense and asserted that he had lied to the ATF agents following his arrest and in his proffer. According to his testimony, on the night of August 19, Stephens was actually sitting on the porch of his grandmother’s home when an individual approached him and offered to sell a handgun for $75. Stephens paid $60 for the gun and soon after decided to test it to see whether it would fire. He went to a friend’s house, walked behind the home, and fired the gun into the air. Stephens explained that he lied to the agents about his association with Red in hopes that he would be released on bond, or perhaps released so he could provide further information as to Red’s drug dealing activities. Stephens denied any connection to Red, whose real name he professed not to know, and denied that he was involved in selling drugs, or that he owed anyone money for drugs.

Stephens moved for a judgment of acquittal at the close of the evidence, but the district court denied the motion. The jury convicted Stephens on the narcotics and 924(c) counts after a robust 35 minute deliberation.

On appeal, the Fourth Circuit reverses. After noting that it "is beyond dispute that a criminal defendant's conviction cannot rest entirely on an uncorroborated extrajudicial confession," the court concluded that there was insufficient evidence beyond Stephens's initial statement to police to link him to a drug conspiracy. Therefore, the district court erred by denying his motion for a judgment of acquittal. The case was remanded for resentencing on the felon in possession charge.

Knowledge of Jurisdictional Hook Not Necessary for CWA Conviction

US v. Cooper: Cooper was convicted on 9 counts of violating the Clean Water Act by knowingly discharging a pollutant into the waters of the United States. Cooper ran a trailer park that included a "sewage lagoon" which discharged into a nearby creek. The creek flowed, eventually, into the Roanoke River and into Albemarle Sound. While the discharge from the "lagoon" was treated in some way, but not effectively enough to meet Virginia regulatory requirements. Cooper and the Virginia equivalent of DEP went back and forth for years to resolve the situation. Finally, after Cooper failed to meet the terms of a consent agreement between the parties, DEP revoked his permit to operate the "lagoon." Undaunted, Cooper continued to use the "lagoon" and was eventually charged federally. He received a sentence of 27 months in prison.

On appeal, Cooper made two main arguments, both of which were rejected by the Fourth Circuit. First, Cooper argued that evidence of his dealings with the Virginia DEP - all of which occurred prior to the conduct charged in the federal indictment - was improperly admitted under FRE 404(b). The court concluded that FRE 404(b) was not even implicated in Cooper's case because the evidence was "intrinsic to the story of the crime." In any event, if it was 404(b) evidence it was properly admitted to show knowledge/lack of mistake on Cooper's part. Second, Cooper argued that the Government failed to prove that he knew the creek into which the "lagoon" drained was a "water of the United States" and therefore the Government failed to prove an element of the offense. The court rejected that argument, concluding that the "waters of the United States" element is purely jurisdictional and the defendant need not have knowledge of what makes the offense a federal one (in the same way that a felon in possession of a firearm doesn't need to know it travelled in interstate commerce).

Seach Supported by Evidence Obtained by Third Party

US v. Seldon: Seldon owned a Mazda MPV minivan, which he had modified to include two secret compartments to smuggle drugs. One compartment was in the gas tank. He took the MPV to a local dealership because it was "hard starting" and cutting off after starting. Given the problems, mechanics examined the fuel pump which, in a Mazda MPV, is located in the gas tank. In the course of their diagnosis, the mechanics found the secret compartment in the gas tank, as well as another one, and alerted local police. An officer went to the dealership, observed the compartments, and got information on who brought the minivan in for service. He knew that Seldon was known to local authorities as a major drug dealer. The officer did not pursue the investigation any further at that time.

As it would happen, the same officer pulled Seldon over for speeding in the minivan nine months later. During the stop, the officer noticed various indicia of narcotics trafficking (excessive use of air fresheners, large amounts of cash, Seldon's nervousness) and made the connection with the secret compartments discovered months earlier. The officer searched the minivan and found 500 grams of cocain and 850 grams of marijuana. Seldon was charged with conspiracy to distribute drugs and illegal monetary transactions. He moved to suppress the drugs found in the minivan, arguing that the officer lacked probable cause for the search incident to the traffic stop and that the initial examination at the dealership was also unconstitutional. The district court denied the motion and Seldon pleaded guilty to the charges.

On appeal, the Fourth Circuit affirmed. It rejected Seldon's argument that the initial search at the Mazda dealership violated the Fourth Amendment because the information was revealed by searches conducted by the mechanics prior to the involvement of the police, even if the officer's subsequent examination of the minivan was unlawful. With that information, along with the facts developed during the traffic stop, there was probable cause to search Seldon's vehicle.

Details & Emergency Justify Terry Stop Based on Anonymous Tip

US v. Elston: Police in Roanoke, VA, received a 911 call from a woman reporting that a man named "Jimmy" (Elston) had just left her home in his truck and was intoxicated. In addition, he had a handgun with ammunition and threatened to "let[] them off in somebody." The caller provided a detailed description of both Elston and his truck. The woman identified herself, but asked the 911 operator not to pass along her name to police and the operator complied (although the caller is identified in the opinion). Officers located Elston and stopped the truck. After Elston was removed from his truck and handcuffed on the ground, an officer saw a pistol in the truck. Elston was arrested for being a felon in possession of a firearm. He filed a motion to suppress the gun, on the ground that the 911 call was an anonymous tip that was not sufficiently corroborated to support a Terry stop. In the alternative, he argued that what happened wasn't really a Terry stop, but rather a full-fledged arrest, which the officers lacked probable cause to initiate. The district court denied the motion and Elston entered a conditional plea.

On appeal, the Fourth Circuit affirmed the district court's rejection of Elston's suppression arguments. First, the court, assuming without deciding that the 911 call was "anonymous," held that the information provided by the caller was sufficiently detailed to support reasonable suspicion, as she "provided a wealth of detail about Elston's appearance, vehicle, weapon, behavior, and state of mind." In addition, the report that Elston was armed and might use his weapon added an element of emergency to the situation not found in prior anonymous tip cases. Second, the court held that the police officers actions in getting Elston out of his truck and handcuffed on the ground did not constitute an arrest and that the encounter was a Terry stop supported by reasonable suspicion. Finally, the court upheld the discovery of the gun in the truck as incident to a protective sweep of the vehicle.

Two-Year Misdemeanor is "Felony Drug Offense"

US v. Burgess: Burgess was convicted of conspiring to distribute more than 50 grams of cocaine base. The Government filed an 851 information to enhanced the mandatory minimum based on Burgess's prior South Carolina conviction for possession of cocaine. For that conviction, a misdemeanor under state law, Burgess received a one-year sentence. The statutory maximum for the offense, however, was two years. Burgess objected, arguing that the definition of "felony drug offense" in 21 USC 802(44), which ties the definition to sentence length regardless of state law classification, must be read in common with the definition of "felony" in 21 USC 802(13), which ties the definition to state law. The district court rejected Burgess's argument and sentenced him to 156 months in prison (following a downward departure for substantial assistance).

Burgess's counsel filed an Anders brief, but the court nonetheless took the case for oral argument. The court upheld Burgess's sentence and rejected his argument regarding the meaning of "felony drug offense." The definition of that term in section 802(44) is unambiguous and has nothing to do with the general definition of "felony" in section 802(13). The court did note that, after Burgess's sentencing, two other Circuits had split on the issue, the First Circuit (US v. Roberson, 459 F.3d 39 [1st Cir. 2006] - adopting Fourth Circuit position) and DC Circuit (US v. West, 393 F.3d 1302 [DC Cir. 2005] - adopting Burgess's argument and applying Rule of Lenity).

18-month Probation Revocation Sentence Not Plainly Unreasonable

US v. Moulden: Moulden was on probation after pleading guilty to conspiracy to commit bank fraud and repeatedly violated the terms of his probation. The violations were mostly minor - failed drug screens, failure to pay restitution, etc. - and the district court did not revoke Moulden's probation the first two times his violations were brought before the court. The court did extend his term of supervision, however, with Moulden's consent. Finally, Moulden's probation officer filed a petition seeking revocation of Moulden's probation for multiple violations relating to drug use, treatment, restitution, and maintaining contact with his probation officer. Moulden admitted the violations and the district court revoked his probation. The sentencing range suggested in the policy statements in Chapter 7 of the Guidelines was three to nine months. The district court imposed a sentence of 18 months.

On appeal, Moulden argued that his sentence was excessive. The Fourth Circuit rejected that argument and upheld the sentence. Along the way, it clarified the standard of review in probation revocation appeals. Moulden argued that the proper standard for reviewing his sentence was the post-Booker reasonableness standard. However, the Government argued, and the Fourth Circuit agreed, that the proper standard was the same one employed in supervised release cases - plainly unreasonable. With that question settled, the Fourth concluded that Moulden's sentence was not plainly unreasonable given his history of probation violations and the district court's prior leniency in dealing with them.

No Allocution = Plain Error in Booker Remand

US v. Muhammad: Muhammad was convicted of wire fraud and money laundering and setenced to the Guideline maximum 121 months in prison. While on appeal, the Supreme Court decided Booker and Muhammad's case remanded to the district court for resentencing. At resentencing, while Muhammad's counsel was able to make arguments with regards to a new sentence, the district court never directly addressed Muhammad and allowed him to allocute. The district court imposed the same 121 month sentence.

On appeal, the Fourth Circuit vacates Muhammad's sentence for a second time. The court holds that the district court erred by failing to allow Muhammad to allocute, that the error was plain, and that it prejudiced his substantial rights. The court went on to notice the error and vacate Muhammad's sentence. In doing so, the court rejected arguments by the Government (which admitted the error and that it was plain) that Muhammad suffered no prejudice because he fully allocuted at the original sentencing and the district court's top-of-the-Guidelines sentence doesn't support an inference that the district court would have imposed a lesser sentence regardless of what Muhammad said during his allocution.

Congrats to the Raleigh, NC FPD Office on the win!

Sentences Taintied by Perjury and Government Misconduct Upheld

US v. Dyess: Calvin Dyess ("Calvin"), Eric Spencer, and Orange Dyess ("Orange") all pleaded guilty to various offenses related to a large drug conspiracy in Charleston, West Virginia. At sentencing, the district court heard from numerous witnesses, including co-defendant Ursala Rader, Calvin's ex-wife. Rader provided testimony about the extent of the drug conspiracy and Calvin's involvement in it. Calvin received a term of life imprisonment, Spencer a term of 262 months, and Orange a term of 235 months.

While the case was on appeal to the Fourth Circuit (10 days before oral argument, as a matter of fact), the Government disclosed that Rader had been involved in a sexual relationship with William Hart, a police officer investigating the case, The affair began after the initial indictment in the case and continued through sentencing. As part of the relationship, Hart had allowed Rader to retain more than $20,000 in drug proceeds that should have been turned over to investigators. Further investigation showed that Rader, with Hart's help, had perjured herself at the sentencing hearing. The case was remanded to the district court for further proceedings.

Calvin, Spencer, and Orange filed motions asking for an evidentiary hearing regarding Hart & Rader's conduct, dismissal of the indictment due to outrageous Government conduct, withdrawal of their guilty pleas, and resentencing. Prior to the district court holding a hearing, Calvin sought to have three other co-defendants who testified against him at the original sentencing hearing to file affidavits indicating that they, too, had perjured themselves. One of those witnesses refused and reported the scheme to his probation officer.

After holding a hearing, the district court (a different judge from the original sentencing) concluded that Rader's testimony was unreliable and should be disregarded. However, the other testimony at sentencing was sufficient to sustain the Guideline calculations made at that hearing. Therefore, the district court denied any other relief, including resentencing. The district court noted that, if it did resentence Calvin, Spencer, and Orange in the post-Booker advisory Guideline system it would impose the same sentences again.

On appeal, the Fourth Circuit affirmed both the convictions and sentences (2-1) of the defendants.

First, the defendants argued that the indictments against them should be dismissed due to outrageous Government conduct. The court rejected that argument, affirming the district court's conclusion that Hart's motivations in becoming involved with Rader were personal in nature, not professional, and not part of a Government plan to aid the prosecution. In addition, the court held that dismissal was not required when the relationship at issue occurred after the events covered by the indictment took place.

Second, Calvin and Orange argued that they should have been allowed to withdraw their guilty pleas due to ineffective assistance of counsel for allowing them to plead guilty to an offense with a possible life sentence (Calvin) and when he did not understand the elements of the offense (Orange). The court rejected those arguments as well.

Third, all three defendants argued that their sentencing violated Booker because their sentences were increased based on judicially found facts. The court rejected this argument, holding that while the initial sentencing in 1999 would have violated Booker, and harm was obliterated when the district court on remand said that it would resentence the defendants to the same sentences under a post-Booker system.

Fourth, the defendants argued that their sentences were not supported by sufficient evidence, a claim the court rejected based on the district court's findings that there was sufficient evidence outside of Rader's perjurious testimony to support the original sentences.

Finally, Calvin argued that the district court failed to properly group his drug and money laundering convictions under the Guidelines. The court rejected that argument, largely because both parties appeared to concede that the drug sentence was so high (life in prison) that the failure to group was harmless.

Judge Gregory dissented from the court's holding on the sentencing issues. Gregory argued that the district court's proceedings on remand were insufficient to provide both the new district court judge and the appellate court a sufficient record from which it could determine whether the sentences imposed violated Booker or were unreasonable.

Upward Departure Vacated for Lack of Sufficient Explanation of Scope

US v. Dalton: Dalton was convicted of credit card fraud based on a scam in which he used other persons' credit cards to purchase computer software which he turned around and sold on eBay. The Guideline range calculated in the PSR was 46 to 57 months. The Government moved for an upward departure based on the underepresentation of Dalton's criminal history in the PSR's calculation of a Criminal History Category of VI. The district court granted the motion and imposed a sentence of 105 months in prison.

On appeal, the Fourth Circuit reversed. Surveying the PSR, the court concluded that the district court properly concluded that an upward departure was appropriate based on Dalton's extensive criminal history, including many prior fraud convictions. In fact, many convictions were for fraudulent schemes that Dalton began just after release from prison (a few even began in prison). However, the court concluded that the district court did not adequately explain the scope of the departure. Specifically, the court failed to failed to employ the incremental departure analysis required by USSG 4A1.3(a)(4)(B) and calculated the departure range by moving horizontally on the sentencing table (i.e., to a higher hypothetical Criminal History Category) rather than vertically (to the next higher offense level).

Warrantless Search of Probationer Upheld

US v. Midgette: Midgette was on probation for two North Carolina convictions when his probation officer received a tip from a police officer that Midgette was in possession of firearms, in violation of the conditions of his probation. Another condition of Midgette's probation was that he submit to warrantless searches of his person, home, or vehicle at the request of his probation officer at reasonable times and if the search was reasonable related to his probation. After a meeting with Midgette, his probation officer ordered two police officers to search Midgette's car. They did so and recovered ammunition. The four of them then went to Midgette's home, where the officers also conducted a search, discovering firearms and marijuana. Midgette was indicted by a federal grand jury for being a felon in possession of a firearm, possession of an unregistered firearm, and possession of marijuana.

Midgette filed a motion to suppress the evidence seized in his home and car, arguing that the warrantless searches violated the Fourth Amendment. Midgette's motion was referred to a magistrate judge, who made findings of fact and recommended that the motion be denied. Midgette filed objections to the magistrate judge's recommendations, specifically arguing that (1) the magistrate improperly assumed he was on probation, (2) the magistrate incorrectly concluded that the meeting that triggered the searches was regularly scheduled, and (3) that the searches were conducted in violation of North Carolina law, which allows probation officers, not police officers, to make such warrantless searches. The district court overruled Midgette's objections and denied the motion to suppress. Midgette pleaded guilty and was sentenced to 46 months in prison.

On appeal, Midgette made three arguments: (1) North Carolina's probation statute violates the Fourth Amendment because it allows warrantless searches without individualized suspicion, (2) the probation officer lacked reasonable suspicion to conduct the search, and (3) that the searches by police officers, rather than probation officers, violated North Carolina law. The Fourth Circuit rejected all those arguments. As to the first two, the court agreed with the Government that Midgette had waived those arguments by failing to present them in the objections to the magistrate judge's recommendations. Specific objections are required to preserve issues in such situations. Regardless, the court went on to note in dicta that those two arguments were not persuasive at any rate, relying on Griffin v. Wisconsin, 483 U.S. 868 (1987), and US v. Knights, 534 U.S. 112 (2001). As to Midgette's third argument, the court held that the searches were conducted in accordance with North Carolina law because they were instigated and directed by the probation officer, even though the police officers did the actual searching.

Trial on 924(c) Charge Doesn't Preclude Acceptance on Related Drug Counts

US v. Hargrove: Hargrove was charged with multiple drug counts and a 924(c) charge. He pleaded guilty to the drug counts and went to trial on the 924(c) charge, for which he was also convicted. At sentencing, Hargrove was denied credit for acceptance of responsibility on the drug counts because he went to trial on the 924(c) charge. The district court concluded that it lacked the authority to give Hargrove credit for acceptance because of the 924(c) trial.

On appeal, the Fourth Circuit reversed, narrowly, 2-1. The court first concluded that the "offense of conviction" to which the acceptance reduction would apply was the grouped drug counts, not the 924(c) charge (which, of course, exists outside the Guidelines anyway). Therefore, the district court had the legal ability to award Hargrove acceptance of responsibility because of his guilty pleas on the drug counts. However, the court went out of its way to make clear that Hargrove was not necessarily entitled to the reduction, only that the district court had the power to award it. The message seems clear - the district court has the legal authority, but it probably shouldn't exercise it on remand. Judge Wilkins dissented, arguing that denying the facts of any charged offense, regardless of grouping, precludes a defendant from receiving credit for acceptance of responsibility.

"When the mother's talk . . ." Miranda Doesn't Apply

US v. Kimbrough: Baltimore police received information that two men were dealing drugs in front of a specific home. Surveillance confirmed that information. Officers approached the men and asked if they lived at the residence. They replied that they were guests of the homeowner, Ms. Kimbrough (defendant's mother). The officers found Ms. Kimbrough and obtained consent to search the home from her, after she denied any knowledge of drugs being inside. After hearing a noise from the basement, officers went there and found Kimbrough (the defendant) cutting cocaine. Kimbrough was arrested. At that point, the officers called Ms. Kimbrough down to the basement to show her what they found. She confronted her son, asking "what is this?" and "is there anything down here?" An officer recited the Miranda warnings and Kimbrough agreed to speak without an attorney. Kimbrough answered his mother that he had a gun stuffed under a couch cushion. Kimbrough was charged with possession of a stolen firearm, possession of cocaine with intent to distribute, and possession of a firearm in connection with another felony offense.

Kimbrough moved to suppress his statements made in response to his mother's questioning in the basement. The district court granted the motion, holding that the Miranda warnings that were given were ineffective and that the officers used Ms. Kimbrough as a proxy to question her son. The district court concluded, "Detective Himes . . . quite candidly in his testimony, [said that] she did his questioning for him, that is, Miss Kimbrough did the question that [O]fficer Himes otherwise would have done. So this was official interrogation." The court ordered Kimbrough's statements, but not the actual gun, suppressed. The Government appealed.

The Fourth Circuit reversed the district court and held that Kimbrough's statements could be used against him. Relying on Rhode Island v. Innis, 446 U.S. 291 (1980), and Arizona v. Mauro, 481 U.S. 520 (1987), the court held that Miranda was not implicated by questioning of a suspect by a family member, absent some indication that she was used as an interrogator for the police. There was no evidence to support that claim, the court held, noting that Ms. Kimbrough has non-law enforcement motives for confronting her son. Because the confrontation in the basement was not a custodial interrogation, Miranda was not implicated and any insufficiency of the warnings given was irrelevant.

No Resentencing Hearing Needed After 2255 Proceeding

US v. Hadden: Hadden was originally convicted by a jury of drug charges and a 18 USC 924(c) charge for using a firearm in relation to those drug offenses. He was sentenced to 228 months in prison - 168 months on the drug counts plus 60 months on the 924(c). Hadden's convictions and sentence were upheld on direct appeal. Hadden then filed a 28 USC 2255 motion in which he alleged, among other things, ineffective assistance of counsel in relation to the 924(c) charge. The district court accepted that argument and vacated the 924(c) conviction. The district court then entered an "amended judgment order" in the criminal case imposing a sentence of 168 months. That order was entered without any resentencing hearing.

Hadden appealed, arguing that the district court erred by not having a hearing prior to imposing the new sentence and that the sentence violated Booker (Hadden's trial, appeal, and 2255 proceedings were ongoing during the Blakely/Hammoud/Booker proceedings). The Fourth Circuit rejected those arguments and affirmed Hadden's sentence.

Before reaching the merits, the court analyzed whether it had jurisdiction to hear the appeal, which turned on whether Hadden's appeal was part of the 2255 proceeding or the underlying criminal case. If the former, the court lacked jurisdiction because neither it nor the district court issued a Certificate of Appealability. If the latter, the court had jurisdiction to review the new sentence as a direct appeal of a newly entered final order. After reviewing precedent and parsing the language of 2255, the court concluded that in this case the sentence that was being appealed was part of the underlying criminal case and it therefore had jurisdiction.

On the merits, however, the court ruled against Hadden. First, it concluded that the district court's imposition of a 168-month sentence was not really a resentencing, but rather a "correction" of sentence under 2255 because it removed the 924(c) sentence and left the rest intact. While the district court could have held a resentencing hearing, nothing in the statute or case law required it to do so. Second, the court rejected Hadden's Booker arguments, holding that there was no Booker statutory error and refusing to take notice of the Booker Sixth Amendment plain error that occurred.

Court Clarifies Duties to Conflicting Clients

US v. Nicholson: Nicholson pleaded guilty to being a felon in possession of a firearm. At the time of his arrest, Nicholson told police that he possessed the gun because he was fearful of Lorenzo Butts, who had previously threatened Nicholson and his family, attempted to kill Nicholson's brother, and had killed Nicholson's step father. Nicholson was sentenced to 189 months in prison as an armed career criminal.

Nicholson filed to vacate his sentence, under 28 U.S.C. 2255, based on ineffective assistance of counsel at sentencing due to his defense counsel's conflict of interest. Specifically, at the time he represented Nicholson, Nicholson's counsel also represented Butts in an unrelated case. Nicholson argued that in order to argue for a downward departure at sentencing based on his fear of Butts because to do so would undermine his attorney's simultaneous representation of Butts. The district court denied Nicholson's petition, holding that Nicholson's attorney suffered from no actual conflict because the simultaneous representation of the two men was in unrelated cases.

On appeal, the Fourth Circuit reversed and remanded the case for further proceedings. The court held that Nicholson's counsel did have an actual conflict of interest because the interests of Nichols and Butts were "in total opposition to each other" during the simultaneous representation. The court remanded for a determination of whether the conflict prejudiced Nichols, given that he received a sentence only 9 months higher than the mandatory minimum under the Armed Career Criminal Act.

Variance 480% Greater than Guidelines Unreasonable

US v. Tucker: Tucker pleaded guilty to bank fraud based on the follow scheme:

The Melloul-Blamey Construction Company in Greenville, South Carolina hired Tucker as office manager in October 2000. She began embezzling funds beginning in June 2002, by setting up a company called Hummingbird Marketing, of which she was sole proprietor, and using it as a "dummy vendor." (J.A. at 56.) She would request that a company official at Melloul-Blamey write checks to Bank of America for the purpose of purchasing cashier checks to pay vendors. She then took the company checks to Bank of America, where she exchanged them for certified checks made out to her, to cash, or to Hummingbird Marketing and not to legitimate vendors. Tucker then used the money to pay her personal credit card bills and to make restitution payments to the United States Clerk of Court for two previous fraud convictions.

(emphasis added). Tucker's Guideline range was 24 to 30 months. At sentencing, she argued for a sentence within that range, noting a history of depression that was reflected in the PSR. However, the district court concluded that a sentence in the Guideline range was insufficient to protect the public from further crimes by Tucker because she was a "dedicated embezzler and thief." The court calculated, without showing its work, an underrepresenation of criminal history departure to achieve a Guideline sentence of 60 months, but concluded that was insufficient. The district court finally imposed an upward variance of 144 months in prison.

Tucker appealed the scope of the district court's variance, but did not contest that some variance in her case was appropriate. The Fourth Circuit agreed, and vacated Tucker's sentence. The court initially rejected Tucker's argument that the district court focussed on one of the 18 USC 2553(a) factors - the need to protect the public - to the exclusion of all others, noting that giving one factor greater weight does not necessarily entail disregarding the others. The court then concluded that the district court failed to adequately supports its basis for a 144-month sentence. The court noted that the variance in this case was greater in length and in terms of deviation from the Guidelines than in Davenport and that the district court failed to adequately explain why such a great variance was required (it provided no reason why, for instance, the 60-month sentence it mentioned was not sufficient). Finally, several of the factors noted by the district court were already taken into account by the Guidelines.

Tucker's sentence was vacated and the case remanded for resentencing.

Congrats to the South Carolina FPD office on the win!

Apparent Authority Saves Search of Password-Protected Files

US v. Buckner: Buckner pleaded guilty to multiple wire and mail fraud charges. The evidence of the fraud was discovered by a search of the computer hard drive in Buckner's home, which he shared with his wife. The fraud, stemming from illicit eBay activities, was originally thought to be committed by the wife (the wife's name was on the eBay accounts). She knew nothing about any eBay transactions and admitted that, although the computer was leased in her name, she only used it to play solitaire. When police came to talk to the wife, she volunteered the computer to be searched. That is when Buckner's fraud was uncovered.

Buckner moved to suppress the evidence recovered during the search of the computer's hard drive. He argued that because his files were password protected and his wife could not access them, she could not consent to a search of those files. The Government argued that none of the officers performing the hard drive search knew of the password and there was no need to bypass/defeat it to access the files. The district court denied Buckner's motion and Buckner entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed Buckner's conviction. The court did hold that the wife lacked actual authority to consent to a search of Buckner's password protected files. However, the court concluded that she had apparent authority, particularly because the computer was leased in the wife's name only and the initial reports of fraud contained her name, not Buckner's.

Gang Affiliation Merits Upward Variance

US v. Hernandez-Villaneuva: Hernandez-Villaneuva was convicted of illegal reentry. His Guideline sentence was 0-6 months. The Government argued for an upward variance on grounds that when he returned to the United States Hernandez-Villaneuva associated with a violent Salvadoran street gang, even though there was no evidence that he participated in any illegal activity. The district court imposed a sentence of 18 months in prison, based largely on the gang relationship and the court's conviction that Hernandez-Villaneuva, a former gang member, "has not yet developed or demonstrated a maturity, a backbone, a character to turn things around."

Hernandez-Villaneuva appealed his sentence, which the Fourth Circuit affirmed. The court held that both the need for a variance and the scope of the variance was reasonable, due to the failure of the Guidelines to adequately consider Hernandez-Villaneuva's gang ties.

Highway Star

US v. Hill: The issue in this case was:

whether the stretch of Nider Boulevard between Shore Drive and Gate 4 of the United States Naval Amphibious Base Little Creek, located in Virginia Beach, Virginia, constituted a "highway" under Virginia law on August 10, 2004, the date of the charged conduct in this case.

It is, which required the court to affirm Hill's traffic offense under the Assimilative Crimes Act. The court based its conclusion on the fact that the roadway in question was open to the public and not limited to Naval personnel.

3553(a) Doesn't Require Low End of Guideline Sentence; Court Can't Order Sentence to Run Consecutively to Future Sentences

US v. Smith: Smith pleaded guilty to five counts of bank robbery. After an upward departure, his Guideline sentencing range was 151 to 188 months. The district court sentenced him to 180 months in prison, to be served consecutively to "any other sentence imposed in any other case, or on any other probation revocation or whatever." At the time, Smith had a pending supervised release revocation proceeding in another district. On appeal, Smith raised to objections to his sentence, one of which the Fourth rejected, the other the court accepted and vacated Smith's sentence.

Smith's first objection was that he should have been sentenced to the bottom of the Guideline range - 151 months - because it was "sufficient, but not greater than necessary" to achieve the goals of sentencing. Smith argued that if sentences within the Guideline range are presumptively mandatory because the Guidelines incorporate the 3553(a) factors and 3553(a) requires the court to impose the least harsh sentence possible to achieve those goals, than the harshest sentence that can be imposed is the low end of the Guideline range. The court, while noted that this argument was "clever, [but] has no merit." The Fourth explained that:

rests on a logical fallacy: the fact that a sentence at the lowest end of the guidelines range could be reasonable if the sentencing judge concluded it was sufficient does not mean that the sentencing judge must conclude that it is sufficient. It is the sentencing judge who must initially determine what is sufficient. To hold that the lowest sentence in an applicable guidelines range is always sufficient would rob § 3553(a) of its force.

Smith's second objection was that the district court exceeded its authority by ordering his sentence to be served consecutively to future sentences not yet imposed. Reviewing 18 USC 3584, the Fourth agreed, noting that the statutory language clearly allowed the district court to impose consecutive sentences only where it was imposing multiple sentences at the same time or where the defendant was already subject to an incomplete term of incarceration. The court rejected the Government's argument that the 3584(a) presumption that sentences imposed at different times run consecutively trumps the rest of the statute, holding that such a reading would ignore the limitations already noted and would effectively abrogate the sentencing authority of one federal judge (the one imposing a sentence in the future) in favor of another.

Smith's sentence was vacated and his case remanded for resentencing.

2423(a) Conviction Does Not Require Defendant's Knowledge of Victim's Age

US v. Jones: Jones was convicted by a jury of conspiracy to transport a minor across state lines for the purposes of prostitution and three substantive counts transportation. Jones and a buddy in Ohio found a 13-year-old runaway from Wheeling, West Virginia, whom they drafted into a prostitution scheme where they would drive the girl to a truck stop in West Virginia in order to service truckers.

The Fourth Circuit upheld Jones's convictions against two attacks. First, Jones argued that the Government was required to prove that he knew the girl involved was under 18, arguing that the "knowingly" requirement in section 2423(a) applies to the age of the victim, not (or in addition to) the transportation. The Fourth rejected this argument, noting that the other Circuits were unanimous in not adopting Jones's reading. Second, the court rejected Jones's argument that statements made by the AUSA during closing arguments prejudiced his case. One statement - "if [the defense] had real evidence, don't you think they would have presented it to you?" - was not an impermissible comment on Jones's exercise of his Fifth Amendment rights, because during closing argument Jones had suggested an "alternate scenario" of events that was not supported by defense witnesses (7 of whom testified) or cross-examination of Government witnesses. The other statement - "[Y]ou can be confident that [a witness] is telling the truth about this conspiracy. You know why? Because he pled to it." - was not improper vouching because it did not convey any indication of the AUSA's personal belief in the witnesses veracity.

Updward Departure Based on Criminal History Violates Booker

US v. Guyon: Guyon pleaded guilty to several fraud charges and faced a post-Blakely/pre-Booker Guideline range of 140 to 175 months. At sentencing, the Government moved for an upward departure because the Guideline range did not adequately reflect Guyon's criminal history, the similarity of his present offense to prior ones, and his likelihood of recidivism. Guyon objected on Sixth Amendment grounds, arguing that such a departure would depend on facts found by the district court beyond those to which Guyon pleaded guilty. The district court rejected Guyon's argument and sentenced him to 180 months in prison.

The Fourth Circuit vacated Guyon's sentence, holding that it violated Booker. Most notably, the court shot down the Government's argument that because the departure dealt with criminal history, it was covered by the Almendarez-Torres exception to the Apprendi/Blakely/Booker rule.

Pain-Management Related Convictions Upheld

US v. McIver: McIver was a South Carolina doctor who specialized in pain management. After concerns were raised about McIver's prescription practices, the DEA began investigating. Eventually, McIver was charged with conspiracy to distribute various narcotic pain medications, distribution of those drugs, and distribution of controlled substances resulting in death (one of this patients overdosed on oxycodone). McIver was convicted by a jury of conspiracy, distribution, and distribution resulting in death and sentenced to 240 months in prison for the conspiracy and distribution counts and 360 months (concurrent) on the distribution resulting in death counts. McIver challenged his conviction on numerous grounds on appeal.

In an opinion that covers similar ground to Alerre from this time last year, the Fourth Circuit affirmed McIver's convictions. First, the court rejects McIver's argument that the district court's jury instructions, fueled by the Government's expert witness testimony about whether McIver's actions were "outside the parameters of legitimate medical practice," lowered the burden of proof for the Government to a negligence standard. Second, the court rejected the argument that the Government's expert improperly offered inadmissible legal conclusions during his testimony. Finally, the court upholds McIver's convictions as being supported by sufficient evidence.

18 USC 3553(b)(2) Violates Booker

US v. Hecht: Hecht pleaded guilty to possession of child pornography. At sentencing, the district court rejected Hecht's argument that 18 USC 3553(b)(2), which requires a Guideline sentence in certain sex offense cases, violated Booker. As a result, the district court applied a two-level enhancement under USSG 2G2.2(b)(2)(E) (2003) for distribution of child pornography. He was sentenced to 33 months in prison, the bottom of the Guideline range.

On appeal, the Fourth easily concludes that 3553(b)(2)'s mandatory Guideline sentence provision violates the Sixth Amendment as explained in Booker (thanks to the Government's concession, in part). The court recognized that all other Circuits to deal with the issue have reached the same conclusion. Furthermore, the court concluded that vacation of Hecht's sentence was required because be properly objected to being sentenced under a mandatory Guideline scheme and the record was not sufficiently clear to show lack of prejudice. Hecht also challenged the two-level distribution enhancement, arguing that his act of using a web camera to transmit images of child pornography displayed on his computer did not meet the definition of "distribution." The Fourth Circuit disagreed and concluded that the enhancement applied in this case.

Court Upholds Conviction in Police Beating of Motorist

US v. Perkins: Perkins was an off-duty Petersburg, VA, cop who somehow appeared at the scene of an incident involving three other officers and a motorist. The motorist had run away when police pulled over his vehicle. Once the motorist was caught, one of the cops began stomping on his head and kicking him in the stomach. When he arrived, Perkins decided to join in the fun, stomping the motorist on the head and delivering more kicks. Perkins was charged with depriving the motorist of his right to be free from excessive force, in violation of 18 USC 242, and convicted following a jury trial.

At trial, several officers testified about Perkins's actions and whether they were reasonable acts for a police officer to take given the situation. two of the officers who were present for the beating, but who did not participate, testified based on their first-hand knowledge of the events. Others testified based on statements made by Perkins and others. One officer, who taught courses in defensive tactics, testified as a "force expert" for the Government. Perkins moved for a judgment of acquittal, arguing that the evidence was insufficient to determine whether his blows, as opposed to the ones visited upon the motorist (who ended up in a coma, but responsive to pain) before he arrived. The district court (obviously) denied that motion. Perkins was sentenced to 51 months in prison.*

On appeal, Perkins made several arguments, all of which were rejected by the Fourth Circuit. First, he argued that the testimony from several of the officers regarding the appropriateness of his actions was improperly admitted expert testimony. Because Perkins failed to specifically object to that, the Fourth reviewed for plain error. The court concluded that the testimony of the two officers who were eyewitnesses to Perkins's actions was properly admitted, while the testimony based on second-hand knowledge was not. However, the improper introduction of that evidence did not affect the outcome of the trial. Second, Perkins argued that officers (including the properly utilized expert) testifying about the "reasonableness" of his actions were improperly offering legal conclusions in their testimony. The Fourth disagreed, concluding that such testimony was admissible under FRE 704(a). Finally, the court upheld the district court's rejection of Perkins's motion for a judgment of acquittal, holding that the evidence was sufficient to show that Perkins's actions caused "bodily injury" to the motorist.

* The cop who started the beating pleaded guilty to the same charge and got 108 months in prison.

Presumption of Reasonableness Goes to the Supremes

According to the New York Times, last Friday the Supreme Court granted cert in two cases involving major post-Booker sentencing issues. One, Rita v. US, comes out of the Fourth Circuit via an unpublished opinion. According to the Times:

The defendant in the first case, from North Carolina, is a 57-year-old retired marine named Victor A. Rita Jr., who was convicted of making false statements in connection with a federal investigation into the sale of kits for making machine guns.

While Mr. RitaÂ’s sentence, 33 months, was within the range provided by the sentencing guidelines, he argued on appeal to the United States Court of Appeals for the Fourth Circuit that the sentence was unreasonably long, given his poor health and unblemished record of federal service, both as a marine and in two civilian agencies.

But the Fourth Circuit, which is based in Richmond, Va., and includes North Carolina, is one of the federal circuits that have adopted a presumption of reasonableness for sentences within the guidelines range. The appeals court consequently rejected his appeal in a brief unpublished opinion.

Congrats to the MWDNC PD's office for having their petition granted.

The other case granted on Friday was from the Eighth Circuit, Claiborne v. US, involves what a district court must do to justify a below-the-Guidelines sentence:

Mr. ClaiborneÂ’s Supreme Court appeal, Claiborne v. United States, No. 06-5618, thus presents the other side of the coin: not whether it is presumptively reasonable to issue a sentence within the guidelines range, but whether it is presumptively unreasonable not to do so.

No indication on when the Court is scheduled to hear these cases.

UPDATE: The cert petition and other docs in the Rita case can be found here.

Edited to fix a link ancongratulatete the correct office.

Court Upholds Government's Failure to Move for Third-Point Reduction Under 3E1.1

US v. Chase: Chase pleaded guilty to distributing drugs within 1000 feet of a school, based on several controlled buys. When he was arrested on state charges, the name he gave to the officers was actually his brother's, which led to his brother's brief term of custody upon being arrested when the federal indictment came down in the brother's name. Chase entered into a plea agreement in which the Government agreed to move for the third point under USSG 3E1.1 if Chase (1) paid his $100 special assessment within 40 days of entering his plea, and (2) fully cooperated with the Government.

At sentencing, the Government refused to move for the third point because the special assessment was not paid and Chase was not completely forthcoming about his offense (for instance, he could only name his source as "a white guy named Steve"). Chase recognized that the district court could not sua sponte award the third point, but asked for a sentence which "nonetheless reflects the additional one level." The district court sentenced Chase to 210 months in prison, the bottom of the Guideline range.

On appeal, Chase argued that the Government breached the plea agreement by refusing to move for the third point. The Fourth rejected that argument, noting that Chase failed to pay the assessment (protestations of inability to pay notwithstanding) and that successful cooperation was determined by the Government, which concluded that Chase was not fully forthcoming about his dealings. The court also rejected Chase's contention that the district court could award the third point without a motion from the Government.

New Rules

There are several changes to the Rules of Criminal Procedure, Appellate Procedure, and Evidence. They will take effect on December 1, 2006, unless Congress intervenes.

Criminal Procedure

• Rules 5(c), 32.1, and 41 have been amended to allow for the filing of certain documents (warrants and orders related to out-of-district arrests) with a magistrate judge by "reliable electronic means"
• Rule 6 has been amended stylistically, only to conform with the conventions adopted during the recent overhaul of the Rules
• Rule 40 has been amended to allow a magistrate judge to set bond for a person arrested for violating bond conditions set in another district (the current rule precluded release except, oddly, if the violation was for failing to appear)
• Rule 41 has been amended, setting forth procedural guidance for the issuance of tracking device warrants
• Rule 58 has been amended to clarify that a defendant's right to a preliminary hearing is governed by Rule 5.1 and is not limited to those in custody
  

Appellate Procedure

• Rule 25 has been amended to allow the Circuits to allow filing by electronic means
• Rule 32.1 has been added dealing with citation to "unpublished" decisions. Prohibitions on citation to such opinions will no longer be valid for opinions handed down after January 1, 2007. However, the rule does not require the Circuits to give such opinions any precidential weight (or prohibit them from doing so).
  

Evidence

• Rule 404 has been amended to clarify the use of character evidence in civil cases
• Rule 408 has been amended to resolve several conflicts among the Circuits. Of relevance to criminal practice (perhaps), the amended rule prohibits statements made by a party during settlement negotiations from being used to impeach a witness as a prior inconsistent statement.
  
• Rule 606 has been amended to provide that testimony from jurors regarding their verdict is proper only when there is an allegation of "mistake in entering the verdict onto the verdict form."
• Rule 609 has been amended to provide that automatic impeachment of a witness via prior convictions is proper only "if it is readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
  

All these rules (along with Bankruptcy and CivPro rules) can be found here in one big whopping PDF file.

Major New Sex Offense Bill

Congress recently passed, and the President signed, "The Adam Walsh* Child Protection and Safety Act of 2006." Here are some highlights of the Act, which has as its primary purpose the development of state sex offender registries and a federal database to collect the information therein. All section references are to the Act, not the US Code:

• Section 141 creates a new offense, failing to register as a sex offender, at 18 USC 2250. The penalizes a person who "knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act" where that person has either (a) been convicted of certain sexual offenses in federal court or (b) "travels in interstate or foreign commerce, or enters or leave, or resides in, Indian country." Penalties for conviction are 0-10 years in prison or 5-30 years if the person commits a crime of violence.
• Section 141 also increases the punishment in false statement cases (18 USC 1001) to 8 years if the matter at issue related to a specifically listed federal sex offense.
• Section 141 also makes changes to supervised release terms for sex offenses. First, it requires the supervised release term in sex offense cases to be at least 5 years long (up to life). Second, if a person on SR is supposed to be a registered sex offender and he commits a crime that is one of the listed federal offenses, the court is required to revoke his term of supervised release and imposed a minimum sentence of 5 years, regardless of other limitations on imprisonment for SR violations.
• Section 201 specifically provides a sentence of 0-20 years in prison for distribution of "date rape drugs" (as defined by the Act) over the Internet.
• Section 202 sets forth mandatory minimum sentences for persons "convicted of a Federal offense that is a crime of violence" against a minor. If the crime of violence is murder, the minimum is 30 years; kidnapping or maiming receives a 25-year minimum; any other crime of violence that involves serious bodily injury or a dangerous weapon produces a 10-year minimum. These mandatories apply unless greater mandatory minimums are provided elsewhere.
• Section 203 increases the penalty for violations of 18 USC 2422(b) (coercion and enticement) to 10 years to life in prison.
• Section 204 increases the penalty for violations of 18 USC 2423(a) (child prostitution) to 10 years to life in prison.
• Section 205 changes the penalty for violations of 18 USC 2242 (sexual abuse) from 0-20 years to "any term of years or for life."
• Section 206 creates a mandatory minimum of 30 years in prison for violations of 18 USC 2241(c) (sexual abuse). Is also creates a 30-year mandatory minimum for violations of 18 USC 2251(e) where death results.
• Section 210 allows a district court to impose as a condition of supervised release that a registered sex offender submit to warrantless searches by law enforcement or probation officers "at any time." However, such searches still require "reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct." Whether that matters under Samson, anyway, is unknown.
• Section 213 expands federal jurisdiction for kidnapping offenses.
• Section 214 directs a committee of the Judicial Conference to review whether the "marital communication and adverse spousal privileges" should be abolished in child abuse, spousal abuse, or child custody cases.
• Section 216 amends the Bail Reform Act by adding to the cases in which the Government may seek detention "any felony that is not otherwise a crime of violence that involves a minor victim or involves the possession of a firearm or destructive device, or any other dangerous weapon . . .."
• Section 504 regulates the reproduction of child porn for discovery purposes.
• Section 701 creates the offense of a "child exploitation enterprise" and provides a 20-life penalty for those engaged in such enterprises.
• Section 702 provides a 10-year mandatory minimum, to be imposed consecutively to any other penalty, in cases where a person required to register under the Act commits one of the listed federal sex offenses.
  

In addition, Section 704(b) provides for an increase of "not less than 200 the number of attorneys in the United States Attorneys' Offices" who shall be assigned to prosecute "offenses relating to the sexual exploitation of children.

*Adam Walsh was the son of John Walsh, of America's Most Wanted fame, whose abduction led to the show.

District Court Cannot Rescind Resitution Obligation Under MVRA

US v. Roper: Roper and Butler (not a co-defendant, but the appeals were consolidated, apparently) were each convicted of various bank fraud charges and ordered to pay restitution. Both served prison terms and began their terms of supervised release. Both violated the conditions of their supervised releases, resulting in additional prison time. At the same time that the district court sent Roper and Butler back to prison, it made findings that they were unable to pay their restitution obligations and rescinded them. The district court also rescinded Roper's special assessment for the same reason.

The Government appealed, arguing that under the Mandatory Victim Restitution Act (18 USC 3663A and 3664), the district court at the original sentencings were bound to impose restitution obligations upon Roper and Butler and the mandatory nature of the MVRA did not provide for future rescinding of those obligations. The Fourth Circuit agreed and vacated the district court's rescinding of the restitution orders. The Fourth Circuit did the same for Roper's special assessment, also because it was mandatory and statute provided no means to rescind it.

Indictment Charging "Cocaine Base" Includes All Types, Even if "Crack" Specifically Mentioned

US v. Ramos: Ramos was convicted by a jury of several counts of distributing cocaine base and use of a firearm during a drug trafficking offense. On appeal, he made several arguments based on the theory that the Government was required to prove specifically that the drugs at issue were "crack" cocaine, as opposed to some other form of cocaine base, based on the on the indictment's charging him with distributing "cocaine base, commonly known as crack." The Fourth rejected all of those arguments, holding that the "commonly known as crack" language was surplusage and that the statute dealt with any substance with a detectable amount of cocaine base. The court also held that Ramos was not entitled to an entrapment instruction at trial and was not the victim of sentencing entrapment.

Court Upholds Multiple Convictions, Sentences in Terrorism Case; Vacates Below-the-Guidelines Sentence

US v. Kahn: Kahn and his codefendants (Chapman and Abdur-Raheem) were convicted after a bench trial of multiple offenses "related to a conspiracy to wage armed conflict against the United States" and "a country with whom the United States is at peace." Starting in 1999, the group engaged in training for a "jihad" that included overly rigorous paintball exercises, ties to a Pakistani terrorist organization, and (in some cases) participation in military actions against India in Kashmir.

Khan was specifically convicted of conspiracy to enlist in armed combat against the United States, conspiracy to level war against the United States, conspiracy to contribute services to the Taliban, conspiracy to provide material support to the Pakistani terrorist group, and four counts of conspiracy to use firearms in relation to crimes of violence. Chapman was convicted of conspiracy to violate the Neutrality Act, conspiracy to provide material support to the Pakistani terrorist group, and three 924(c) charges. Abdur-Raheem was convicted on the same charges as Chapman, except he was convicted of only one 924(c) count.

On appeal, the Fourth Circuit upheld all the convictions against Kahn, Chapman, and Abdur-Raheem against various challenges.

• First, the court held that there was sufficient evidence to support all the charges.
  
• Second, the court rejected Chapman and Abdur-Raheem's argument that their trial should have been severed from Kahn's, due to the overwhelmingly prejudicial nature of the evidence against Kahn involving aid to the Taliban and Al-Qaeda.
  
• Third, the court held that it was not necessary to secure a waiver of the defendants' trial rights under Rule 23(a) from the defendants themselves, rather than counsel.
  
• Fourth, the court held that two of the conspiracy charges, involving conspiring to injure persons or property in a foreign country and conspiring to use firearms in connection with a conspiracy to commit crimes of violence, were valid and were not "conspiracies to conspire," as argued by the defendants.
  
• Fifth, the court held that the Government could use statements made by Chapman without Miranda warnings and after Chapman was "in near solitary confinement for weeks," because the statements were voluntarily made.
  
• Finally, the court rejected claims of selective prosecution, based on the theory that the Government had not aggressively prosecuted other terrorist organizations.

As to sentences, the court upheld Kahn's and Chapman's sentences, fueled by 924(c) mandatory minimums. First, the court rejected their arguments that the district court erred by imposing multiple 924(c) sentences because the firearm possession all related to a single criminal episode. Second, the court rejected the argument that the stacking of Kahn's and Chapman's 924(c) mandatory minimums produced sentences that violated the Eighth Amendment. Amazingly, the court performs this analysis without ever setting forth what the total sentences are for Kahn or Chapman.

The court does, however, go on to hold that Abdur-Raheem's sentence of 52 months is an unreasonable variance from the Guideline range of 97 to 121 months. The district court concluded that Abdur-Raheem's conduct was similar to that of another codefendant, Surratt, who pleaded guilty and received a 46-month sentence. The district court's rationale, according to the Fourth Circuit, provided undue weight to the need to avoid sentencing disparities between similarly situated defendants. It therefore vacated Abdur-Raheem's sentence.

District Judge Goodwin (sitting by designation), dissented from the court's opinion as to Kahn's sentence (he agrees on Chapman's sentence). Goodwin sets forth that Kahn received consecutive sentences of 120 months, 300 months, and life in prison. He quotes the district court judge as noting that she was required to impose those sentences and "there are murderers who get far less time than this, and I have sentence Al-Qeada members who were planning real attacks on these shores for far less time . . . and I have to tell you that this is sticking in my craw." Goodwin argues that Kahn's firearm possession in this case constituted one continuing act and his convictions should be merged and the imposed sentence limited to 120 months.

Doug Berman has these thoughts on Kahn.

Court Vacates Below-the-Guidelines Sentence Without Government Post-Sentence Objection

US v. Curry: Curry sold gold coins on eBay. Problem was, he "sold" coins which he never had in his possession. When the deals began to fall apart and jilted buyers complained, the FBI came calling. Curry was charged and convicted by a jury of multiple counts of mail fraud, wire fraud, and unlawful monetary transactions. At sentencing, Curry's Guideline range came out to be 41 to 51 months. However, the district court imposed a sentence of 12 months on each count (served concurrently), along with 12 months of home confinement, following Curry's argument for a Booker variance. The Government appealed the sentence and Curry cross-appealed the district court's denial of his motion for acquittal.

The Fourth rejected Curry's challenges to his conviction, while upholding the Government's challenge to the sentence. The court held that the evidence was sufficient to sustain Curry's convictions, rejecting his arguments that the Government failed to prove the specific state date of his fraudulent scheme and that he acted in good faith, as he intended to pay all the jilted buyers back. As to the sentence, the court followed Green and concluded that a variance for the reasons noted by the district court (that Curry didn't begin his eBay sales with malicious intent and his presentence efforts at restitution) was unreasonable.

Most notably, the court held that the proper standard of review for the sentence was unreasonableness, rather than plain error, even though the Government failed to object to the sentence once imposed. The Government had made it clear what it's position on sentencing was (within the Guideline range, of course) and any objection after the district court announced sentence would be futile.