US v. Thorson: Thorson, an attorney, was involved in a complex scheme to take advantage of a charitable giving tax loophole involving cemetery plots. Over three years, the scheme netted almost $10 million in fraudulent tax deductions. Thorson came up with the legal mechanics of the scheme. For his income from the scheme, Thorson concealed his funds as loans and thus did not report it on tax returns. Then, when the IRS came to audit the partnership running the scheme, Thorson created false documents to thwart the investigation. As a result of all this, Thorson was convicted of conspiring to defraud the United States of tax income. At sentencing, Thorson was hit with enhancements for a leadership role in the offense and obstruction of justice, among others. He was sentenced to 108 months in prison.
On appeal, Thorson challenged both the procedural and substantive grounds, all of which the Fourth Circuit rejected. Procedurally, Thorson first challenged the imposition of the leadership enhancement, arguing that the evidence did not support characterizing his role in that way. The court disagreed, noting that his role was "especially significant" because of the deployment of his legal skills, that he was "critical to the recruitment of investors," and that he supervised and directed much of the paperwork needed to complete the scheme. Second, Thorson challenged the obstruction of justice enhancement, based on false documents provided to the grand jury. Thorson argued that this conduct was part of the offense of conviction and, at any rate, already covered by another enhancement for sophisticated concealment. The court disagreed, holding that the obstructive conduct continued into the criminal investigation and the enhancement was not duplicative. Finally, Thorson argued that his sentence was substantively unreasonable when compared to those received by his codefendants and others similarly situated. The court disagreed, holding that the sentence was reasonable in light of the totality of the circumstances.
Judge Gregory dissented, arguing that the imposition of the two Guideline enhancements was error. He argued that the district court "took Thorson's conduct as a personal affront" and "Thorson's occupation weighed heavily on the court's mind." Regardless, the "majority today endorses" that approach "and punishes Thorson on no evidentiary basis."
Monday, January 31, 2011
No Leadership Enhancement In Drug Conspiracy
US v. Slade: Slade pleaded guilty to conspiracy to distribute cocaine and crack. His role in the conspiracy:
On appeal, Slade argued that he should not have been subject to an enhancement for a leadership role because there was no evidence that he actually managed or supervised anyone. The Fourth Circuit agreed, holding that the facts set forth above "do not justify imposition of an enhancement for a management or supervisory role." There was no evidence that Slade "actively exercised some authority over other participants" in the conspiracy. Although reviewing for plain error, the court found the error plain, prejudicial, and worthy of notice on appeal. Therefore, the court vacated Slade's sentence (briefly turning away two other Guideline challenges) and remanded for resentencing.
According to the PSR, which the district court adopted, Slade was a 'mid[-] to upper-level' member of the drug conspiracy who sold or delivered cocaine and cocaine base both to his own clientele and to other members of the conspiracy, who, in turn, sold the drugs to their clientele. Certain coconspirators also sold cocaine and cocaine base 'for' Slade on various occasions. The PSR reveals further that an unindicted co-conspirator drove Slade to various locations to deliver cocaine base to his clients.At sentencing, the district court applied a three-level enhancement (among others) for Slade's leadership role in the offense. Slade was sentenced to 365 months in prison, the top of the advisory Guideline range.
On appeal, Slade argued that he should not have been subject to an enhancement for a leadership role because there was no evidence that he actually managed or supervised anyone. The Fourth Circuit agreed, holding that the facts set forth above "do not justify imposition of an enhancement for a management or supervisory role." There was no evidence that Slade "actively exercised some authority over other participants" in the conspiracy. Although reviewing for plain error, the court found the error plain, prejudicial, and worthy of notice on appeal. Therefore, the court vacated Slade's sentence (briefly turning away two other Guideline challenges) and remanded for resentencing.
Skipping Departure for Variance Analysis Not Procedrually Unreasonable
US v. Diosdado-Star: Diosdado-Star was deported in 2002 because he entered the country illegally. He was back within a month, using an alias that matched that of a Border Patrol agent who was under investigation for misconduct. The investigation led to Diosdado-Star, who was discovered to be posing as a Border Patrol agent to others seeking to remain in the country illegally. In the process, Diosdado-Star made about $177,000. When his home was searched, he admitted being a citizen of Mexico, the illegally reentering the US, and to impersonating an agent. As a result, Diosdado-Star was convicted of illegal reentry and possessing a counterfeit resident alien card. Although his advisory Guideline range was only four to 10 months, the district court varied and imposed a sentence of 84 months in prison.
Diosdado-Star appealed his sentence, which the Fourth Circuit affirmed. He first argued that the sentence was procedurally unreasonable, because the district court failed to consider a Guideline departure before imposing a variance sentence. The court disagreed, holding that (the method of deviation from the Guidelines range - whether by a departure or by varying - is irrelevant so long as at least one rationale is justified and reasonable." However, in a footnote, the court "offer[ed] no comment on the observation of several other circuit courts of appeal that the departure provisions of the Guidelines are obsolete." Diosdado-Star also argued that the sentence was substantively unreasonable. The court disagreed, holding that the district court's variance "while substantial, [] does not constitute an abuse of discretion based on the totality of the circumstances."
Diosdado-Star appealed his sentence, which the Fourth Circuit affirmed. He first argued that the sentence was procedurally unreasonable, because the district court failed to consider a Guideline departure before imposing a variance sentence. The court disagreed, holding that (the method of deviation from the Guidelines range - whether by a departure or by varying - is irrelevant so long as at least one rationale is justified and reasonable." However, in a footnote, the court "offer[ed] no comment on the observation of several other circuit courts of appeal that the departure provisions of the Guidelines are obsolete." Diosdado-Star also argued that the sentence was substantively unreasonable. The court disagreed, holding that the district court's variance "while substantial, [] does not constitute an abuse of discretion based on the totality of the circumstances."
Monday, January 24, 2011
"Stipulation" Entered Without Defendant's Consent Not Harmless Error
US v. Williams: Williams was charged with conspiring to possess with intent heroin. The heroin at issue was seized when it came into the country at the Louisville airport in a package. Per the Government's theory, Williams was the end recipient of the package and he would distribute the contents. Williams went to trial. At the trial, the Government presented a stipulation regarding the substance in the package - that it was approximately 98 grams of heroin. Williams refused to sign the stipulation. However, Williams's attorney suggested that she would do so, if the court would allow it. She signed the stipulation, which was read to the jury. During deliberations, the jury asked what amount of drugs was necessary to delineate personal use from distribution. The court referred them to "common sense" and provided them with a copy of the stipulation. The jury convicted Williams.
On appeal, Williams argued that the use of a stipulation without his consent violated hi Sixth Amendment right to confrontation. The Government agreed that it was an abuse of discretion for the district court to allow the stipulation. However, it argued that the error was harmless. The Fourth Circuit first agreed with the parties that Williams's Sixth Amendment rights were violated. It then proceeded to analyze the evidence in the case and concluded that the error was not harmless. The court noted that the stipulation went beyond merely identifying the substance at issue as heroin - it "essentially established an element of the crime" and was used by the jury in determining whether Williams had an intent to distribute the heroin. Thus, the court vacated Williams's conviction and remanded the case to the district court.
District Judge Dever concurred with the majority on the Sixth Amendment violation, but dissented from the conclusion that the error was not harmless. He argued, after a lengthy recitation of the trial facts, that the stipulation had much less of an impact on the ultimate outcome and therefore its admission was harmless.
On appeal, Williams argued that the use of a stipulation without his consent violated hi Sixth Amendment right to confrontation. The Government agreed that it was an abuse of discretion for the district court to allow the stipulation. However, it argued that the error was harmless. The Fourth Circuit first agreed with the parties that Williams's Sixth Amendment rights were violated. It then proceeded to analyze the evidence in the case and concluded that the error was not harmless. The court noted that the stipulation went beyond merely identifying the substance at issue as heroin - it "essentially established an element of the crime" and was used by the jury in determining whether Williams had an intent to distribute the heroin. Thus, the court vacated Williams's conviction and remanded the case to the district court.
District Judge Dever concurred with the majority on the Sixth Amendment violation, but dissented from the conclusion that the error was not harmless. He argued, after a lengthy recitation of the trial facts, that the stipulation had much less of an impact on the ultimate outcome and therefore its admission was harmless.
Court Affirms Multiple Searches In Wake of Shooting
US v. Allen: Allen was shot and wounded (in a shooting that left another wounded and two more dead) in front of his store in Baltimore. An officer responding to the scene followed a trail of blood into the store, to a file cabinet, which he opened. Inside was a pistol. Three search warrants were then executed: the first at the store (recovering the pistol and collecting DNA), the second to procure Allen's DNA, and the third at Allen's home. The searches showed that Allen's DNA was on the pistol found at the store and that ammunition had been recovered at Allen's home. Allen was charged with being a felon in possession of a firearm and ammunition.
Allen moved to suppress the evidence found as a result of all three searches and also requested a Franks hearing based on discrepancies between the affidavits for the first and second warrants. The district court denied the motions. As to the first and second warrants, the district court found that , although the pistol was not in plain view when first seen, it would have inevitably been discovered during a proper search of the crime scene. As to the third warrant, the court concluded that the warrant contained sufficient evidence to demonstrate probable cause that evidence related to the shooting would be found at Allen's home. Allen pleaded guilty to being a felon in possession of ammunition and preserved his right to appeal the denial of his motions to suppress.
On appeal, Allen made three arguments, all of which the Fourth Circuit rejected. First, he argued that he should have been granted a Franks hearing due to the discrepancies between the first two warrant applications, mostly based on whether the pistol was in plain view (first) or not (second). The court concluded that, even without that information, both warrants were based on sufficient evidence to provide probable cause. Second, Allen argued that the first officer to enter the store did so outside any legitimate Fourth Amendment exception. The court concluded that, even if that entry was improper, there was sufficient evidence aside from what was initially discovered in the store to support probable cause. Finally, renewed his argument that the third warrant lacked probable cause to support a search of his home. The court disagreed.
Allen moved to suppress the evidence found as a result of all three searches and also requested a Franks hearing based on discrepancies between the affidavits for the first and second warrants. The district court denied the motions. As to the first and second warrants, the district court found that , although the pistol was not in plain view when first seen, it would have inevitably been discovered during a proper search of the crime scene. As to the third warrant, the court concluded that the warrant contained sufficient evidence to demonstrate probable cause that evidence related to the shooting would be found at Allen's home. Allen pleaded guilty to being a felon in possession of ammunition and preserved his right to appeal the denial of his motions to suppress.
On appeal, Allen made three arguments, all of which the Fourth Circuit rejected. First, he argued that he should have been granted a Franks hearing due to the discrepancies between the first two warrant applications, mostly based on whether the pistol was in plain view (first) or not (second). The court concluded that, even without that information, both warrants were based on sufficient evidence to provide probable cause. Second, Allen argued that the first officer to enter the store did so outside any legitimate Fourth Amendment exception. The court concluded that, even if that entry was improper, there was sufficient evidence aside from what was initially discovered in the store to support probable cause. Finally, renewed his argument that the third warrant lacked probable cause to support a search of his home. The court disagreed.
Court Affirms Tax Evasion Conviction
US v. Cole: Cole was a real estate agent who partnered with three others to purchase commercial real estate. Cole negotiated the purchase price with the sellers and misrepresented the final amount of the sale price to his partners. The difference in the price paid and the seller's actual price demanded was absorbed by Cole, to the tune of $2 million. He also engineered a similar purchase involving a $1 million note financing one of the properties. Those funds Cole appeared to treat as sale commissions, in multiple venues. In 2005, Cole filed tax returns for 2001, 2002, and 2003 - the years during which he acquired these funds - but did not report any taxable income. He argued that the real estate money came from "assignment fees," rather than commissions, which subjected them to favorable tax treatment as capital gains. The nearly $100,000 he received from the sale of the note was omitted altogether - Cole "missed it" due to a bookkeeping error. Cole was charged and convicted of multiple counts of tax evasion and filing false tax returns.
On appeal, Cole made several arguments attacking his convictions, none of which was successful. First, the Fourth Circuit rejected his argument that the evidence was insufficient to convict him because the charges against him required "willfulness," but the commission/assignment fee distinction was "uncertain as a matter of tax law" and therefore he could not act willfully. In doing so the court declined Cole's invitation to hold that, as a matter of law, when an expert accountant testifies (without objection) to the confused nature of the tax law at issue, willfulness cannot exist as a matter of law. Second, the court concluded that, although it was error for the district court to allow introduction of evidence that Cole had lied previously on ATF forms related to firearms purchases, that error was harmless. Nor was there any error in allowing into evidence Cole's lavish spending during the time in question, as it went to his motive. Finally, the court rejected Cole's argument that the district court should have granted a continuance during trial (prior to Cole's cross-examination) due to Cole being "disoriented or incapable of focusing."
On appeal, Cole made several arguments attacking his convictions, none of which was successful. First, the Fourth Circuit rejected his argument that the evidence was insufficient to convict him because the charges against him required "willfulness," but the commission/assignment fee distinction was "uncertain as a matter of tax law" and therefore he could not act willfully. In doing so the court declined Cole's invitation to hold that, as a matter of law, when an expert accountant testifies (without objection) to the confused nature of the tax law at issue, willfulness cannot exist as a matter of law. Second, the court concluded that, although it was error for the district court to allow introduction of evidence that Cole had lied previously on ATF forms related to firearms purchases, that error was harmless. Nor was there any error in allowing into evidence Cole's lavish spending during the time in question, as it went to his motive. Finally, the court rejected Cole's argument that the district court should have granted a continuance during trial (prior to Cole's cross-examination) due to Cole being "disoriented or incapable of focusing."
Involuntary Manslaughter Not "Crime of Violence"
US v. Peterson: Peterson was convicted on multiple drug and gun counts. He was sentenced as a career offender, a status based partly on his 2001 conviction in North Carolina for involuntary manslaughter, arising from "an incident in which Peterson accidentally shot his close friend . . . while the two were playing with what they believed (mistakenly) was an unloaded pistol." Peterson objected to the career offender classification, arguing that the involuntary manslaughter conviction was not a "crime of violence" as defined by the Guidelines. The district court disagreed and sentenced him to 420 months in prison.
On appeal, the Fourth Circuit agreed with Peterson and vacated his sentence. The court first concluded that generic "manslaughter" - which is specifically included in the definition of crime of violence - requires either that the defendant acted "recklessly" or "intentionally if under the influence of extreme mental or emotional disturbance." The North Carolina offense of involuntary manslaughter did not fit within that definition because it's required mental state - "thoughtless disregard" - is a lesser requirement than recklessness, as defined by the Model Penal Code. Peterson's conviction, therefore, was not explicitly included in the definition of crime of violence. The court then turned to the issue of whether his conviction was one that "presents a serious potential risk of physical injury to another" under the crime of violence definition's "otherwise" clause, concluding that it was not because the North Carolina statute covered negligent and unintentional conduct.
On appeal, the Fourth Circuit agreed with Peterson and vacated his sentence. The court first concluded that generic "manslaughter" - which is specifically included in the definition of crime of violence - requires either that the defendant acted "recklessly" or "intentionally if under the influence of extreme mental or emotional disturbance." The North Carolina offense of involuntary manslaughter did not fit within that definition because it's required mental state - "thoughtless disregard" - is a lesser requirement than recklessness, as defined by the Model Penal Code. Peterson's conviction, therefore, was not explicitly included in the definition of crime of violence. The court then turned to the issue of whether his conviction was one that "presents a serious potential risk of physical injury to another" under the crime of violence definition's "otherwise" clause, concluding that it was not because the North Carolina statute covered negligent and unintentional conduct.
Nature of Prior Conviction Determination Requires Only Preponderance
US v. Washington: Washington was convicted of being a felon in possession of a firearm. At sentencing, the issue was whether he qualified for an enhanced sentenced under the ACCA. For his third qualifying predicate offense, the Government identified a 1999 Maryland conviction for the "generic" offense " of "possession of a controlled dangerous substance with intent to distribute." Although the maximum sentence for the offense is based on the type of drug involved, drug type is not an element of the offense. The district court concluded that Washington's prior conviction was an ACCA predicate because it involved cocaine and therefore carried a 20-year maximum sentence (rather than the 5-year max applicable to lesser drugs).
Washington appealed, arguing that the district court erred by making its determination based on a preponderance of the evidence, rather than beyond a reasonable doubt. Relying on Shepard, he argued that the Supreme Court's references to "conclusive" records and "certainty" implies a higher standard for making determinations about the nature of prior convictions than a simple preponderance. The Fourth Circuit disagreed, holding that a preponderance standard was appropriate and that Shepard did not suggest otherwise. Shepard was about the types of documents a district court could use when evaluating the nature of a prior conviction, not the standard of proof applied during that analysis. The court then went on to reject Washington's argument that the Government had not met its burden in his case, even under a preponderance standard.
Washington appealed, arguing that the district court erred by making its determination based on a preponderance of the evidence, rather than beyond a reasonable doubt. Relying on Shepard, he argued that the Supreme Court's references to "conclusive" records and "certainty" implies a higher standard for making determinations about the nature of prior convictions than a simple preponderance. The Fourth Circuit disagreed, holding that a preponderance standard was appropriate and that Shepard did not suggest otherwise. Shepard was about the types of documents a district court could use when evaluating the nature of a prior conviction, not the standard of proof applied during that analysis. The court then went on to reject Washington's argument that the Government had not met its burden in his case, even under a preponderance standard.
Failure to Disclose Non-Witness Grand Jury Testimony Requires New Trial
US v. King: King was convicted of drug and firearm offenses arising from two separate incidents in North Carolina. In the first, officers surveiled a car that a tipster said was going to be used to transport heroin. Officers followed the car to a laundromat where the two men in the car went inside. They returned shortly thereafter, along with King, who put a green gym bag in the car. The car was stopped and the bag searched. It contained "100 dosage units of heroin." King, and the other two men, was arrested. A search of King's home uncovered more heroin, other drug paraphernalia, and a firearm. King admitted ownership of the heroin and the firearm. He was charged and released on bail. Eight months later, a man named Bilal, who shared an apartment with King, told officers that King kidnapped and assaulted him. Officers executed a search warrant at the apartment, recovering drugs and a firearm from a bedroom, in which they also found documentation with King's address. King denied doing anything to Bilal and also denied ownership of any of the items found in the apartment.
King was charged with six counts - two sets of three for each incident: possession with intent to distribute, being a felon in possession of a firearm, and possession of a firearm during a drug trafficking offense. Prior to trial, King moved to have the Government disclose information related to Bilal's cooperation with them, including his grand jury testimony. The district court denied the request without reviewing the testimony. At trial, King testified in line with his statements to police - accepting ownership of the items related to the first incident, but denying ownership of those in the second incident - but added that the firearms were not related to any drug activity. The jury convicted him on four counts, all three from the first incident and being a felon in possession from the second. The district court sentenced him to 408 months in prison (enhanced, in part, based on the alleged kidnapping of Bilal).
King raised several challenges to his convictions on appeal. With regards to the three convictions related to the first incident, the Fourth Circuit rejected his arguments and upheld those convictions. Specifically, the court held that the drug and firearm-in-connection-with-a-trafficking offenses were duplicitous, that the firearm count failed to charge him with an offense, and that the evidence on each count was insufficient to convict him. However, with regards to the felon in possession conviction from the second incident, the court did find error that required reversal of that conviction. Specifically, the court held that the district court erred by failing to order the Government to turn over Bilal's grand jury testimony, even though he did not testify at trial, because his relationship with King was relevant to King's defense. The court noted that King had consistently denied that any of the items found during the second search belonged to him.
King was charged with six counts - two sets of three for each incident: possession with intent to distribute, being a felon in possession of a firearm, and possession of a firearm during a drug trafficking offense. Prior to trial, King moved to have the Government disclose information related to Bilal's cooperation with them, including his grand jury testimony. The district court denied the request without reviewing the testimony. At trial, King testified in line with his statements to police - accepting ownership of the items related to the first incident, but denying ownership of those in the second incident - but added that the firearms were not related to any drug activity. The jury convicted him on four counts, all three from the first incident and being a felon in possession from the second. The district court sentenced him to 408 months in prison (enhanced, in part, based on the alleged kidnapping of Bilal).
King raised several challenges to his convictions on appeal. With regards to the three convictions related to the first incident, the Fourth Circuit rejected his arguments and upheld those convictions. Specifically, the court held that the drug and firearm-in-connection-with-a-trafficking offenses were duplicitous, that the firearm count failed to charge him with an offense, and that the evidence on each count was insufficient to convict him. However, with regards to the felon in possession conviction from the second incident, the court did find error that required reversal of that conviction. Specifically, the court held that the district court erred by failing to order the Government to turn over Bilal's grand jury testimony, even though he did not testify at trial, because his relationship with King was relevant to King's defense. The court noted that King had consistently denied that any of the items found during the second search belonged to him.
Thursday, December 30, 2010
Intermediate Scrutiny for Second Amendment Review of MCDV Cases
US v. Chester: Police were called to Chester's home during a dispute with his then wife. A search of the home uncovered a pistol and a shotgun, which Chester admitted belonged to him. He was charged with possession of firearms after being convicted of a misdemeanor crime of domestic violence, based on an earlier incident involving his daughter. Chester moved to dismiss the charge, arguing that it violated his Second Amendment right to keep and bear arms, as set forth in the Supreme Court's Heller decision. The district court denied the motion, and Chester pleaded guilty, reserving his ability to appeal the denial of the motion to dismiss.
On appeal, the Fourth Circuit initially vacated Chester's conviction in an unpublished opinion, remanding for the district court to identify a specific level of scrutiny and apply it. The Government sought rehearing, which the panel granted. In this published opinion, the court identifies the correct level of scrutiny, but vacates Chester's conviction to remand for application of that standard. The court adopted the two-step process set forth in the first opinion, based on the panel decision in US v. Skoien, 587 F.3d 803 (7th Cir. 2009), although that decision was later vacated by an en banc court.
As a first step, the court assumed (because the historical evidence was unclear) that Chester's possession fell within the general parameters of the Second Amendment. The court then held that the proper level of scrutiny to apply was intermediate scrutiny, analogizing to the lesser protections under the First Amendment for commercial speech and time, place, manner restrictions. On this record, the court could not conclude that the Government met its burden under that standard, noting that while the Government "has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal . . . it has not attempted to offer sufficient evidence to establish a relationship between [this prohibition] and an important government goal." Therefore, the court remanded to the district court for further proceedings.
Judge Davis concurred in the judgment, but took the majority to task for relying too heavily on analogies between the First and Second Amendments. He endorses the result of the en banc decision in Skoien and argues that the district court will have no trouble concluding that Chester is not protected from conviction by the Second Amendment.
On appeal, the Fourth Circuit initially vacated Chester's conviction in an unpublished opinion, remanding for the district court to identify a specific level of scrutiny and apply it. The Government sought rehearing, which the panel granted. In this published opinion, the court identifies the correct level of scrutiny, but vacates Chester's conviction to remand for application of that standard. The court adopted the two-step process set forth in the first opinion, based on the panel decision in US v. Skoien, 587 F.3d 803 (7th Cir. 2009), although that decision was later vacated by an en banc court.
As a first step, the court assumed (because the historical evidence was unclear) that Chester's possession fell within the general parameters of the Second Amendment. The court then held that the proper level of scrutiny to apply was intermediate scrutiny, analogizing to the lesser protections under the First Amendment for commercial speech and time, place, manner restrictions. On this record, the court could not conclude that the Government met its burden under that standard, noting that while the Government "has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal . . . it has not attempted to offer sufficient evidence to establish a relationship between [this prohibition] and an important government goal." Therefore, the court remanded to the district court for further proceedings.
Judge Davis concurred in the judgment, but took the majority to task for relying too heavily on analogies between the First and Second Amendments. He endorses the result of the en banc decision in Skoien and argues that the district court will have no trouble concluding that Chester is not protected from conviction by the Second Amendment.
Watson's New Rule Applies Retroactively
US v. Thomas: Thomas was convicted of methamphetamine possession and possession of a firearm in connection with a drug trafficking offense. He received a total sentence of 90 months in prison. He did not appeal. After Thomas was sentenced, the Supreme Court handed down the Watson decision, in which it held that a person doesn't "use" a firearm under the statute if he receives it in trade for drugs. Thomas filed a pro se 2255 motion seeking to vacate his sentence. Although it was filed after the normal 1-year statute of limitations had run, it was filed within one year of Watson being decided. The district court dismissed Thomas's motion, holding that Watson did not announce a new rule of constitutional law and, at any rate, was not retroactive.
On appeal, the Fourth Circuit disagreed and overruled the district court's decision. The Government conceded that Watson announced a new rule and was retroactive. However, it argued that Thomas defaulted on the issue by not raising it on direct appeal. Turning first to the impact of Watson, the court agreed with other circuits that it may determine retroactivity, rather than waiting for the Supreme Court to do so. It then concluded that Watson announced a new rule and that rule applied retroactively, thus obliterating the district court's basis for denying Thomas's motion. However, because that dismissal came before the Government responded to the motion, and due to some ambiguity in the motion itself, the court declined to decide the waiver issue raised by the Government and simply remanded the case to the district court for further proceedings.
On appeal, the Fourth Circuit disagreed and overruled the district court's decision. The Government conceded that Watson announced a new rule and was retroactive. However, it argued that Thomas defaulted on the issue by not raising it on direct appeal. Turning first to the impact of Watson, the court agreed with other circuits that it may determine retroactivity, rather than waiting for the Supreme Court to do so. It then concluded that Watson announced a new rule and that rule applied retroactively, thus obliterating the district court's basis for denying Thomas's motion. However, because that dismissal came before the Government responded to the motion, and due to some ambiguity in the motion itself, the court declined to decide the waiver issue raised by the Government and simply remanded the case to the district court for further proceedings.
Possession of Sawed-Off Shotgun Is Crime of Violence
US v. Hood: Hood was convicted of drug and gun offenses and sentenced as a career offender. He objected to that classification, arguing that a prior North Carolina conviction for "possession of a weapon of mass death and destruction" (actually a sawed-off shotgun) was not a crime of violence. The district court disagreed and the Fourth Circuit affirmed.
Holding that earlier precedent on the issue was obsolete in light of Begay, the court nevertheless found that possession of a sawed off shotgun was a crime of violence. Distinguishing the Guideline issue from the related Armed Career Criminal Act definition of "violent felony" (the court has held, in an unpublished case, that possession of a sawed-off shotgun is not a violent felony), the court noted that Guideline commentary specifically includes possession of a sawed-off shotgun in the definition of crime of violence. Therefore, it qualified as such, even under a Begay analysis.
Holding that earlier precedent on the issue was obsolete in light of Begay, the court nevertheless found that possession of a sawed off shotgun was a crime of violence. Distinguishing the Guideline issue from the related Armed Career Criminal Act definition of "violent felony" (the court has held, in an unpublished case, that possession of a sawed-off shotgun is not a violent felony), the court noted that Guideline commentary specifically includes possession of a sawed-off shotgun in the definition of crime of violence. Therefore, it qualified as such, even under a Begay analysis.
Tuesday, December 28, 2010
District Court Must ID Statutory Basis for Restitution Order
US v. Leftwich: Leftwich was convicted of mail fraud and making false claims, after participating in a scheme that saw the IRS pay out more than $2 million in false tax refunds. An issue at sentencing was whether the district court would order restitution. At the guilty plea hearing, the district court noted it had the authority to order restitution, but did not indicate the source of that authority. Prior to sentencing, Leftwich filed a memorandum arguing that the Mandatory Victims Restitution Act did not apply in his case and that, while the Victim Witness Protection Act did apply, the statutory factors to be considered under that Act negated an award of restitution. The Government did not respond to that argument at all (leading to a written lashing from the Fourth Circuit). At sentencing, the district court ordered restitution, but did not indicate its statutory basis for doing so.
On appeal, the Fourth Circuit vacated the order of restitution. The court held that without the district court identifying on what basis it ordered restitution, the court could not review that order for abuse of discretion. The MVRA and VWPA each have different procedural and substantive nuances which must be taken into account before ordering restitution. The court vacated and remanded to the district court for further proceedings as to the basis for the restitution issue.
On appeal, the Fourth Circuit vacated the order of restitution. The court held that without the district court identifying on what basis it ordered restitution, the court could not review that order for abuse of discretion. The MVRA and VWPA each have different procedural and substantive nuances which must be taken into account before ordering restitution. The court vacated and remanded to the district court for further proceedings as to the basis for the restitution issue.
Court OK's Assault Enhancement & Felony Enhancement Arising From Flight From Police
US v. Hampton: Hampton was a passenger in a car that was stopped for a broken taillight. During the stop, officers noticed that he was "exhibiting signs of nervousness." When the driver was arrested on an outstanding warrant, Hampton was ordered out of the car. He complied, but then pushed the officer closest to him and fled. He was captured, and, after a struggle, a pistol was found in his pants pocket. One of the officers was injured during the struggle. Hampton was charged with being a felon in possession of a firearm and ammunition. After an unsuccessful motion to suppress, Hampton was convicted and sentenced to 300 months in prison.
On appeal, Hampton challenged the calculation of his advisory Guideline range on several grounds.* First, he argued that an enhancement under USSG 3A1.2(c)(1) for assault of a police officer during flight was not appropriate. Specifically, he argued that his conduct did not create a substantial risk of serious bodily injury, as required to trigger the enhancement. The Fourth Circuit disagreed, holding that Hampton assaulted a police officer during the struggle to subdue him and that assault resulted in serious bodily injury. Second, Hampton argued that his conduct did not constitute another felony offense, so as to trigger the enhancement under USSG 2K2.1(b)(6). The court disagreed, holding that because Hampton assaulted an officer during the struggle, he committed a felony under South Carolina law. Finally, Hampton argued that the application of both enhancements (for a total of 10 levels) was impermissible double counting. The Fourth Circuit disagreed, holding that there was nothing in the Guidelines to change the presumption that double counting is acceptable.
* Hampton also challenged the district court's denial of his motion to suppress, but conceded that his argument was precluded by Fourth Circuit precedent and was presented only to preserve it for further review.
On appeal, Hampton challenged the calculation of his advisory Guideline range on several grounds.* First, he argued that an enhancement under USSG 3A1.2(c)(1) for assault of a police officer during flight was not appropriate. Specifically, he argued that his conduct did not create a substantial risk of serious bodily injury, as required to trigger the enhancement. The Fourth Circuit disagreed, holding that Hampton assaulted a police officer during the struggle to subdue him and that assault resulted in serious bodily injury. Second, Hampton argued that his conduct did not constitute another felony offense, so as to trigger the enhancement under USSG 2K2.1(b)(6). The court disagreed, holding that because Hampton assaulted an officer during the struggle, he committed a felony under South Carolina law. Finally, Hampton argued that the application of both enhancements (for a total of 10 levels) was impermissible double counting. The Fourth Circuit disagreed, holding that there was nothing in the Guidelines to change the presumption that double counting is acceptable.
* Hampton also challenged the district court's denial of his motion to suppress, but conceded that his argument was precluded by Fourth Circuit precedent and was presented only to preserve it for further review.
Divided Court OKs Extension of Traffic Stop
US v. Mason: Mason was driving on Interstate 20 in Georgia when he was pulled over due to having illegally tinted windows. Prior to writing Mason a warning, the officer talked with him and his passenger, who told different stories about where they had been and why. The officer, suspecting they were involved in drug activity (I-20 is a know drug corridor and Atlanta, the direction from which Mason was travelling, a source city) radioed for a K9 unit to assist him. When the K9 unit arrived, the dog alerted, first on the outside of the car and then by leaping inside an open window and further alerting. A search of the trunk revealed 10 kilograms of cocaine. Mason was charged and convicted, following an unsuccessful motion to suppress, of trafficking in more than five kilograms of cocaine and was sentenced to a mandatory sentence of life in prison.
On appeal, Mason challenged both the denial of his motion to suppress and his life sentence. As to the motion to suppress, Mason argued that the officer lacked reasonable suspicion to prolong the stop past the issuance of the warning ticket and that the dog's entry into the car violated the Fourth Amendment. On the first argument, the Fourth Circuit disagreed, holding that the officer had sufficient evidence to conclude that criminal activity was afoot. Although several of the facts were consistent with innocent travel, when taken as a whole the facts rose to the level of reasonable suspicion. As to the dog, the court noted that once the dog alerted to the presence of drugs outside the car there was probable cause to search the vehicle, so the dog's entry did not violate the Fourth Amendment. The court also held, addressing an argument that appeared only during oral argument, that the officer's questions prior to issuing the warning did not unduly lengthen the stop. As to Mason's sentence, the court held that he had not carried his burden of showing that two prior state convictions were obtained without counsel, even if the statute of limitations in 21 USC 851(e) did not prevent review of the issue.
Judge Gregory dissented on the search issue. He argued that the officer did not have reasonable suspicion to extend the traffic stop, after "supplementing and clarifying some key facts . . . that are omitted by the majority."
On appeal, Mason challenged both the denial of his motion to suppress and his life sentence. As to the motion to suppress, Mason argued that the officer lacked reasonable suspicion to prolong the stop past the issuance of the warning ticket and that the dog's entry into the car violated the Fourth Amendment. On the first argument, the Fourth Circuit disagreed, holding that the officer had sufficient evidence to conclude that criminal activity was afoot. Although several of the facts were consistent with innocent travel, when taken as a whole the facts rose to the level of reasonable suspicion. As to the dog, the court noted that once the dog alerted to the presence of drugs outside the car there was probable cause to search the vehicle, so the dog's entry did not violate the Fourth Amendment. The court also held, addressing an argument that appeared only during oral argument, that the officer's questions prior to issuing the warning did not unduly lengthen the stop. As to Mason's sentence, the court held that he had not carried his burden of showing that two prior state convictions were obtained without counsel, even if the statute of limitations in 21 USC 851(e) did not prevent review of the issue.
Judge Gregory dissented on the search issue. He argued that the officer did not have reasonable suspicion to extend the traffic stop, after "supplementing and clarifying some key facts . . . that are omitted by the majority."
Walk Away Escape Not Crime of Violence
US v. Clay: Another round in the ongoing saga of whether a prior escape conviction triggers enhanced recidivist penalties. In this case, the prior conviction was a Georgia conviction for felony escape, incurred at the same time as a conviction for interference with government property. At issue was whether that escape conviction was a "crime of violence" as defined by the Guidelines, which would enhance the base offense level for Clay's offense of conviction, being a felon in possession of a firearm. The district court held that it was a crime of violence and applied the Guidelines accordingly.
The Fourth Circuit disagreed and vacated Clay's sentence. It noted that the Georgia escape statute covered at least three kinds of conduct: escape from a secure facility, failure to return from to custody, and walking away from an unsecured facility. The parties agreed that the first type of conduct would be a crime of violence, while the other two would not (the court agreed on the third type of conduct, previously an open issue in the Fourth Circuit). Nonetheless, the Government argued that Clay's conduct fell in the first category because, when the escape conviction was read in conjunction with the interference with government property conviction, it was clear that Clay was shackled and did something to those shackles to effect an escape. Hence, he escaped from a secure facility. The court disagreed, holding that the applicable evidence did not necessarily show that inference to be true. Thus, Clay's sentence was vacated and his case remanded for resentencing.
Congrats to the Defender office in WDNC on the win!
The Fourth Circuit disagreed and vacated Clay's sentence. It noted that the Georgia escape statute covered at least three kinds of conduct: escape from a secure facility, failure to return from to custody, and walking away from an unsecured facility. The parties agreed that the first type of conduct would be a crime of violence, while the other two would not (the court agreed on the third type of conduct, previously an open issue in the Fourth Circuit). Nonetheless, the Government argued that Clay's conduct fell in the first category because, when the escape conviction was read in conjunction with the interference with government property conviction, it was clear that Clay was shackled and did something to those shackles to effect an escape. Hence, he escaped from a secure facility. The court disagreed, holding that the applicable evidence did not necessarily show that inference to be true. Thus, Clay's sentence was vacated and his case remanded for resentencing.
Congrats to the Defender office in WDNC on the win!
Tricking Agency Into Issuing Invalid Passport Supports Conviction
US v. Luke: A person claiming to be Luke's son applied for a passport in Philadelphia. Luke, a naturalized citizen, accompanied him to a subsequent interview. Although the applicant left during the interview when his identity was questioned, Luke remained and argued that the passport should be issued. When it was not, he left. Another suspicious passport application, made in Maryland, provided Luke's address as that of the applicant. During the subsequent investigation, Luke made several false statements about the alleged applicant and his knowledge of him. As a result of the investigation, Luke was charged with (among other things) conspiracy to commit identification document fraud and aggravated identity theft. He was convicted on both counts.
On appeal, Luke argued that the district court erred by denying his motion for a judgment of acquittal on the conspiracy count because his behavior did not fall within the ambit of the substantive offenses he was allegedly conspiring to commit. Specifically, he argued that the passports at issue could not have been "produced without lawful authority" where government employees simply produce genuine documents based on information they did not know to be false. In other words, if the applicant can trick the agency into issuing the passport, it was produced with lawful authority. Relying on earlier precedent, the Fourth Circuit rejected that argument. The court also rejected Luke's argument that he could not conspire to with an intent to defraud the United States because a falsely issued passport has no inherent value and did not deprive the government of anything of value.
On appeal, Luke argued that the district court erred by denying his motion for a judgment of acquittal on the conspiracy count because his behavior did not fall within the ambit of the substantive offenses he was allegedly conspiring to commit. Specifically, he argued that the passports at issue could not have been "produced without lawful authority" where government employees simply produce genuine documents based on information they did not know to be false. In other words, if the applicant can trick the agency into issuing the passport, it was produced with lawful authority. Relying on earlier precedent, the Fourth Circuit rejected that argument. The court also rejected Luke's argument that he could not conspire to with an intent to defraud the United States because a falsely issued passport has no inherent value and did not deprive the government of anything of value.
Sexually Dangerous Persons Comittment Scheme Does Not Violate Due Process
US v. Comstock: This decision comes following the remand of this case by the Supreme Court following it's decision last year upholding Congress's authority to enact the civil commitment scheme for "sexually dangerous" offenders in the Adam Walsh Act of 2006. Because the Fourth Circuit had agreed with the district court that Congress lacked that authority, it did not address the defendants' due process attacks on the law the first time around. This time, with the issue of Congressional authority resolved, it addressed the due process argument. Under the Act, a person may be committed if a court finds by clear and convincing evidence both that that person "has engaged or attempted to engage in sexual violence or child molestation" and is "sexually dangerous to others."
The Fourth Circuit concluded that this scheme did not violate due process. It set out three criterion that must be met before commitment could take place: that the defendant has engaged or attempted to engage in sexual violence or child molestation (the "prior bad act finding"); that the defendant suffers from a serious mental illness, abnormality, or disorder; and that, as a result, the defendant would have serious difficulty refraining from sexually violent conduct or child molestation if released. The court concluded, and the defendants agreed, that Supreme Court precedent required only proof by clear and convincing evidence on the second and third criterion. As to the prior bad act finding, however, the defendants argued that a beyond a reasonable doubt standard was required. The court disagreed, holding that the prior bad act finding is not limited to criminal behavior and thus no "prior criminal act finding" is required by the Act. Furthermore, the nature of the Act was that of a civil, rather than criminal, proceeding and thus was not subject to the higher standard of proof.
The Fourth Circuit concluded that this scheme did not violate due process. It set out three criterion that must be met before commitment could take place: that the defendant has engaged or attempted to engage in sexual violence or child molestation (the "prior bad act finding"); that the defendant suffers from a serious mental illness, abnormality, or disorder; and that, as a result, the defendant would have serious difficulty refraining from sexually violent conduct or child molestation if released. The court concluded, and the defendants agreed, that Supreme Court precedent required only proof by clear and convincing evidence on the second and third criterion. As to the prior bad act finding, however, the defendants argued that a beyond a reasonable doubt standard was required. The court disagreed, holding that the prior bad act finding is not limited to criminal behavior and thus no "prior criminal act finding" is required by the Act. Furthermore, the nature of the Act was that of a civil, rather than criminal, proceeding and thus was not subject to the higher standard of proof.
Monday, December 06, 2010
Unrelated Police Misconduct Does Not Require New Trial
US v. Robinson: Robinson was convicted by a jury of several drug and gun charges, including a 924(c) charge, and sentenced to 50 years in prison. After his trial, Robinson learned that four of the officers involved in the investigation against him had committed misconduct in other cases. Robinson moved for a new trial, based on that misconduct. The district court initially granted the motion because the misconduct, although taking place in other cases, went "to the integrity of the investigation." However, after reconsideration, the court limited its decision to the several counts which those officers initiated - those convictions were vacated and the Government subsequently dismissing them. The counts which were initiated by another agency, although the rogue officers were involved in them, however, were affirmed and Robinson was resentenced to 600 months in prison.
On appeal, Robinson argued that the district court erred by not vacating all of his convictions, relying on the district court's initial observation about the integrity of the investigation. The Fourth Circuit disagreed and affirmed the district court. It held that, on the remaining counts, the testimony of the disgraced officers was "amply corroborated" by other witnesses and physical evidence. The misconduct would have served as impeachment evidence, of little value, but nothing else - it provided no alternate theory of defense, for example. Finally, the court held that Robinson could not show that the new evidence, if presented at trial, probably would have produced an acquittal. The court also rejected a Brady argument with regards to the evidence of misconduct, holding that the Government had no knowledge of the misconduct.
Robinson also appealed his conviction under 18 USC 924(c) due to incorrect jury instructions and insufficient evidence. The Fourth Circuit also rejected those arguments. Applying plain error review on the jury instruction issue, the court held that the instructions on that charge were erroneous and plain, in light of the Supreme Court's decision in Watson, but Robinson could not show prejudice and, even if he could, the court would not notice the error under the final prong of Olano. As to the sufficiency argument, it "like many of the claims before it, runs directly into the wealth of evidence detailing Robinson's activities."
On appeal, Robinson argued that the district court erred by not vacating all of his convictions, relying on the district court's initial observation about the integrity of the investigation. The Fourth Circuit disagreed and affirmed the district court. It held that, on the remaining counts, the testimony of the disgraced officers was "amply corroborated" by other witnesses and physical evidence. The misconduct would have served as impeachment evidence, of little value, but nothing else - it provided no alternate theory of defense, for example. Finally, the court held that Robinson could not show that the new evidence, if presented at trial, probably would have produced an acquittal. The court also rejected a Brady argument with regards to the evidence of misconduct, holding that the Government had no knowledge of the misconduct.
Robinson also appealed his conviction under 18 USC 924(c) due to incorrect jury instructions and insufficient evidence. The Fourth Circuit also rejected those arguments. Applying plain error review on the jury instruction issue, the court held that the instructions on that charge were erroneous and plain, in light of the Supreme Court's decision in Watson, but Robinson could not show prejudice and, even if he could, the court would not notice the error under the final prong of Olano. As to the sufficiency argument, it "like many of the claims before it, runs directly into the wealth of evidence detailing Robinson's activities."
Court Vacates One Drug Conspiracy Conviction Only to Mandate Another
US v. Hickman: Hickman was charged in a multi-defendant indictment with conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin and possession with intent. He alone went to trial and was convicted. Pursuant to 21 USC 851, he was sentenced to life on the conspiracy count and 360 months on the possession count. He was arrested in a traffic stop after he drove away from purchasing 32.14 grams of heroin from a codefendant. Subsequent searches of one of his codefendant's offices uncovered 25,000 empty vials of the type typically used to distribute heroin. Although Hickman contacted his codefendant after being released by police and inquired about further purchases, none ever transpired.
At trial, although all of Hickman's six codefendants had pleaded guilty, none of them testified, nor did the Government produce testimony from any other participant in the conspiracy. All the evidence came from investigators involved in the case. One testified as an expert in narcotics investigations. He both "interpreted" the contents of wiretapped phone conversations for the jury and how the 25,000 empty vials would be enough to hold 1 kilogram of "user-strength" heroin. Hickman moved for a judgment of acquittal on the conspiracy count, which the district court denied. Neither Hickman nor the Government made any argument or request for a lesser included offense on the conspiracy.
On appeal, Hickman challenged both his convictions and sentence. As to the conspiracy conviction, the Fourth Circuit agreed that there was insufficient evidence to sustain it. While "easily" concluding that the evidence demonstrated a conspiracy, the court held that there was insufficient evidence that it involved more than 1 kilogram of heroin. The inferences from the evidence relied upon by the Government required, to reach the 1 kilogram threshold, "if not a mathematical impossibility, . . . reasoning so attenuated as to provide insufficient support for the jury's verdict." The court rejected the Government's arguments that the amount of heroin involved was sustained by the fact that one of Hickman's codefendants ran a store that sold drug paraphernalia (it was a "one stop shop" for heroin) and that the members of the conspiracy were experienced enough in the drug trade that the conspiracy "encompassed far more drug distribution activity . . . than that of which the Government could produce competent evidence." Therefore, the court vacated Hickman's conviction, but remanded with instructions to enter a conviction on the lesser included offense of conspiracy to distribute more than 100 grams of heroin, even though neither party sought a lesser offense at trial.
The Fourth Circuit otherwise affirmed Hickman's conviction and sentence, turning away in brief challenges to the jury instructions, the use of wiretap transcripts during deliberations, and the applicability of his prior offenses to enhance his sentence.
At trial, although all of Hickman's six codefendants had pleaded guilty, none of them testified, nor did the Government produce testimony from any other participant in the conspiracy. All the evidence came from investigators involved in the case. One testified as an expert in narcotics investigations. He both "interpreted" the contents of wiretapped phone conversations for the jury and how the 25,000 empty vials would be enough to hold 1 kilogram of "user-strength" heroin. Hickman moved for a judgment of acquittal on the conspiracy count, which the district court denied. Neither Hickman nor the Government made any argument or request for a lesser included offense on the conspiracy.
On appeal, Hickman challenged both his convictions and sentence. As to the conspiracy conviction, the Fourth Circuit agreed that there was insufficient evidence to sustain it. While "easily" concluding that the evidence demonstrated a conspiracy, the court held that there was insufficient evidence that it involved more than 1 kilogram of heroin. The inferences from the evidence relied upon by the Government required, to reach the 1 kilogram threshold, "if not a mathematical impossibility, . . . reasoning so attenuated as to provide insufficient support for the jury's verdict." The court rejected the Government's arguments that the amount of heroin involved was sustained by the fact that one of Hickman's codefendants ran a store that sold drug paraphernalia (it was a "one stop shop" for heroin) and that the members of the conspiracy were experienced enough in the drug trade that the conspiracy "encompassed far more drug distribution activity . . . than that of which the Government could produce competent evidence." Therefore, the court vacated Hickman's conviction, but remanded with instructions to enter a conviction on the lesser included offense of conspiracy to distribute more than 100 grams of heroin, even though neither party sought a lesser offense at trial.
The Fourth Circuit otherwise affirmed Hickman's conviction and sentence, turning away in brief challenges to the jury instructions, the use of wiretap transcripts during deliberations, and the applicability of his prior offenses to enhance his sentence.
Seizure and Patdown Justified By Association With Apparent Gang Activity
US v. Hernandez-Mendez: Montgomery County (MD) police officers set up surveillance outside a local high school following a gang-related stabbing that had occurred in the area. The high school was noted for gang activity in the past. Hernandez-Mendez was observed with a group of seven young Hispanic men outside the school who appeared to be conducting some sort of meeting. Eventually, Hernandez-Mendez left the group, but remained in the area, and was followed by an officer. When officers approached the seven young men, they split up, with one of them running away. Officers decided to "stop everyone in the group."
Hernandez-Mendez complied when confronted by an officer, gave her name, and handed over her wallet, which included several credit cards in her name but no photo ID. She told the officers that she didn't know any of the three young men, including the one who ran away. An officer asked if she had ID in her purse as he reached towards it, prompting Hernandez-Mendez to pull away and say "no." The officer grabbed the purse and felt an object that he recognized as a firearm. He found a pistol inside. Hernandez-Mendez was charged with being an alien in possession of a firearm and possession of a firearm in a school zone. After the district court denied her motion to suppress the gun, she was convicted on both counts at a stipulated bench trial.
On appeal, Hernandez-Mendez challenged the district court's denial of her motion to suppress. She first argued that the officers lacked reasonable suspicion to detain her. The Fourth Circuit disagreed, holding that the officers' experience with Hispanic gangs, previous history of gang incidents at the school, and the surveillance observations provided reasonable suspicion for the stop, namely that some retaliation was being planned with regards to the earlier stabbing. Hernandez-Mendez also argued that even if the stop was warranted, the frisk of her purse was not. The Fourth Circuit disagreed, holding that the facts developed after the seizure, particularly Hernandez-Mendez's "evasiveness" warranted a patdown. Once the officer felt the gun through the purse, it could be seized. Thus, the Fourth Circuit affirmed the district court's ruling and Hernandez-Mendez's convictions.
Hernandez-Mendez complied when confronted by an officer, gave her name, and handed over her wallet, which included several credit cards in her name but no photo ID. She told the officers that she didn't know any of the three young men, including the one who ran away. An officer asked if she had ID in her purse as he reached towards it, prompting Hernandez-Mendez to pull away and say "no." The officer grabbed the purse and felt an object that he recognized as a firearm. He found a pistol inside. Hernandez-Mendez was charged with being an alien in possession of a firearm and possession of a firearm in a school zone. After the district court denied her motion to suppress the gun, she was convicted on both counts at a stipulated bench trial.
On appeal, Hernandez-Mendez challenged the district court's denial of her motion to suppress. She first argued that the officers lacked reasonable suspicion to detain her. The Fourth Circuit disagreed, holding that the officers' experience with Hispanic gangs, previous history of gang incidents at the school, and the surveillance observations provided reasonable suspicion for the stop, namely that some retaliation was being planned with regards to the earlier stabbing. Hernandez-Mendez also argued that even if the stop was warranted, the frisk of her purse was not. The Fourth Circuit disagreed, holding that the facts developed after the seizure, particularly Hernandez-Mendez's "evasiveness" warranted a patdown. Once the officer felt the gun through the purse, it could be seized. Thus, the Fourth Circuit affirmed the district court's ruling and Hernandez-Mendez's convictions.
Questioning In Kitchen During Execution of Search Warrant Not Custodial
US v. Hargrove: Hargrove spent several months in Internet chat rooms having sexually explicit discussions with several minor girls, one of whom was actually an underage girl, while the others turned out to be cops. At some point, the discussions turned to plans to meet up in real life, leading to the execution of search warrants at Hargrove's home. During the search, Hargrove gave incriminating statements to officers. As a result, he was indicted on obscenity, child pornography, and attempted enticement charges.
Prior to trial, Hargrove sought to suppress the statements made at his home, arguing that they were given with Miranda warnings while subject to custodial interrogation. The district court denied the motion, holding that the questioning was not custodial because Hargrove was not under arrest and told he was free to go. After being convicted on all counts at trial, Hargrove was sentenced to life in prison. In imposing that sentence, the district court noted that Hargrove went to trial (after the court rejected a 20-year plea) and required the minor victim to testify at trial.
On appeal, Hargrove challenged both the denial of his motion to suppress and the substantive reasonableness of his sentence. As to the suppression issue, the Fourth Circuit affirmed the district court, holding that the totality of circumstances did not show that Hargrove was in custody during the search, noting that he was told he was not under arrest and was free to leave at anytime, he was not handcuffed, and the conversation took place in his kitchen in a "comfortable atmosphere."
As to the sentence, the court affirmed the life sentence, reviewing for plain error because Hargrove raised an specific error - that the district court punished him for going to trial - rather than a general argument that his sentence was too long. Assuming, arguendo, that there was error and it was plain, the court found that Hargrove was not prejudiced by the imposition of a Guideline recommended sentence based on the other findings made by the district court.
Prior to trial, Hargrove sought to suppress the statements made at his home, arguing that they were given with Miranda warnings while subject to custodial interrogation. The district court denied the motion, holding that the questioning was not custodial because Hargrove was not under arrest and told he was free to go. After being convicted on all counts at trial, Hargrove was sentenced to life in prison. In imposing that sentence, the district court noted that Hargrove went to trial (after the court rejected a 20-year plea) and required the minor victim to testify at trial.
On appeal, Hargrove challenged both the denial of his motion to suppress and the substantive reasonableness of his sentence. As to the suppression issue, the Fourth Circuit affirmed the district court, holding that the totality of circumstances did not show that Hargrove was in custody during the search, noting that he was told he was not under arrest and was free to leave at anytime, he was not handcuffed, and the conversation took place in his kitchen in a "comfortable atmosphere."
As to the sentence, the court affirmed the life sentence, reviewing for plain error because Hargrove raised an specific error - that the district court punished him for going to trial - rather than a general argument that his sentence was too long. Assuming, arguendo, that there was error and it was plain, the court found that Hargrove was not prejudiced by the imposition of a Guideline recommended sentence based on the other findings made by the district court.
Monday, November 15, 2010
State Pretrial Detention Tolls Federal SR Term
US v. Ide: Ide was on a three-year term of supervised release when he was arrested on state charges, for which he was eventually convicted and sentenced. He spent about seven months in pretrial detention on the state charges and was given credit for that time when sentenced by the state court. Two years after being released from state custody, Ide was arrested for violating the terms of his supervised release. He moved to have the petition dismissed, arguing that his term of supervised release had ended because the it was not tolled, under 18 USC 3624(e), during the seven months he spent in state pretrial detention. The district court denied the motion, revoked Ide's term of supervised release, returned him to prison, and imposed a further term of supervised release (which Ide has subsequently violated).
On appeal, the Fourth Circuit affirmed. The dispute turned on the meaning of "imprisoned in connection with a conviction" in 3624(e), which triggers the tolling of a term of supervised release. The court noted that this "precise issue" has been decided by four other Circuits, only one of which had adopted Ide's reading of 3624(e). Adopting the majority position, the court concluded that Ide's position was foreclosed by the plain meaning of 3624(e). To hold otherwise would make the "in connection with" language superfluous, at least in cases like this one where the defendant received credit for the time spent in pretrial detention.
On appeal, the Fourth Circuit affirmed. The dispute turned on the meaning of "imprisoned in connection with a conviction" in 3624(e), which triggers the tolling of a term of supervised release. The court noted that this "precise issue" has been decided by four other Circuits, only one of which had adopted Ide's reading of 3624(e). Adopting the majority position, the court concluded that Ide's position was foreclosed by the plain meaning of 3624(e). To hold otherwise would make the "in connection with" language superfluous, at least in cases like this one where the defendant received credit for the time spent in pretrial detention.
Warrantless Entry Into Home OK When Searching for Child's Custodian
US v. Taylor: This is an odd Fourth Amendment case. An officer is called to a parking lot in Richmond by a taxi driver who has found a 4-year-old girl wandering the streets alone. The driver pointed out a nearby row house to the officer which the girl had told the driver was her home. The driver and girl had gone to the house, where the front door was open, but nobody inside responded to his inquiries. The officer talked to the girl, who said there was nobody at home to take care of her and that she was waiting on a bus to take her to day care. The officer and the girl returned to the house. When nobody answered the officer's inquiry, the girl went inside. The officer followed. He eventually went to the second floor, where he heard a male voice from a bedroom.
The officer went to the bedroom and found Taylor, who was the girl's father. He "became angry" and explained that the girl was suspended from day care and was not supposed to catch the bus. On a cabinet next to the bed was a "plastic bag containing .22 caliber bullets." Although Taylor denied having a gun, the officer asked him for identification, which Taylor claimed he did not have. He eventually gave the officer a fake name and date of birth. After backup arrived and was trying to verify Taylor's identity, the first officer did a protective sweep and discovered a handgun under the mattress. While the officer was using Taylor's cell phone (with permission), there was an incoming call from the girl's mother who identified Taylor. Armed with Taylor's actual identity, the officers discovered that he was both a convicted felon and the subject of outstanding arrest warrants. He was arrested and later charged with being a felon in possession of a firearm. The district court denied Taylor's motion to suppress the evidence discovered during the warrantless search of Taylor's home, after which Taylor pleaded guilty.
On appeal, the Fourth Circuit affirmed the district court's denial of the suppression motion. Because the officer who initiated the search was not involved in a criminal justice investigation, the warrant requirement of the Fourth Amendment had no application. Similarly probable cause was unnecessary. The only restraint on the search was that it was "reasonable." This search was reasonable because it was triggered by an exigent circumstance - "this four-year-old girl's unsupervised odyssey." "Few places could be less appropriate for an unattended child," the court concluded, than the busy streets of Richmond. As to what occurred after the officer entered the house, the court found "nothing unreasonable in this chain of events."
The officer went to the bedroom and found Taylor, who was the girl's father. He "became angry" and explained that the girl was suspended from day care and was not supposed to catch the bus. On a cabinet next to the bed was a "plastic bag containing .22 caliber bullets." Although Taylor denied having a gun, the officer asked him for identification, which Taylor claimed he did not have. He eventually gave the officer a fake name and date of birth. After backup arrived and was trying to verify Taylor's identity, the first officer did a protective sweep and discovered a handgun under the mattress. While the officer was using Taylor's cell phone (with permission), there was an incoming call from the girl's mother who identified Taylor. Armed with Taylor's actual identity, the officers discovered that he was both a convicted felon and the subject of outstanding arrest warrants. He was arrested and later charged with being a felon in possession of a firearm. The district court denied Taylor's motion to suppress the evidence discovered during the warrantless search of Taylor's home, after which Taylor pleaded guilty.
On appeal, the Fourth Circuit affirmed the district court's denial of the suppression motion. Because the officer who initiated the search was not involved in a criminal justice investigation, the warrant requirement of the Fourth Amendment had no application. Similarly probable cause was unnecessary. The only restraint on the search was that it was "reasonable." This search was reasonable because it was triggered by an exigent circumstance - "this four-year-old girl's unsupervised odyssey." "Few places could be less appropriate for an unattended child," the court concluded, than the busy streets of Richmond. As to what occurred after the officer entered the house, the court found "nothing unreasonable in this chain of events."
Tuesday, September 28, 2010
NC Indecent Liberties Conviction Can Trigger ACCA
US v. Vann: Vann pleaded guilty to being a felon in possession of a firearm. At the time, he had three prior North Carolina convictions for taking indecent liberties with a child. At sentencing, he objected to the use of those convictions as predicates under Armed Career Criminal Act, arguing that in light of Begay and subsequent Fourth Circuit law, they were not "violent felonies" for ACCA purposes. The district court disagreed and sentenced Vann to a term of 180 months in prison, the minimum required under the ACCA.
On appeal, the Fourth Circuit affirmed, 2-1. Vann argued that a pre-Begay Fourth Circuit case holding that convictions like his were "crimes of violence" under the Guidelines had been abrogated by Begay and that the Fourth Circuit's decision that Virginia's "carnal knowledge without the use of force" statute was not a violent felony post-Begay required the same conclusion with regards to his prior convictions. The court disagreed, noting that the NC statute at issue could be violated in two ways, one of which "requires physical acts against the body of a child," while the other does not. After first determining that Vann committed the offense which required a physical act against the body of a child, the court then concluded that such an offense was a violent felony under the ACCA. It noted the difference between the NC and Virginia offenses was that the later was committed "without the use of force."
Judge King dissented, arguing that the majority was incorrect in concluding that the NC statute set forth two different offenses, that Vann committed one that necessarily required physical acts against a child, and that the offense was a violent felony.
On appeal, the Fourth Circuit affirmed, 2-1. Vann argued that a pre-Begay Fourth Circuit case holding that convictions like his were "crimes of violence" under the Guidelines had been abrogated by Begay and that the Fourth Circuit's decision that Virginia's "carnal knowledge without the use of force" statute was not a violent felony post-Begay required the same conclusion with regards to his prior convictions. The court disagreed, noting that the NC statute at issue could be violated in two ways, one of which "requires physical acts against the body of a child," while the other does not. After first determining that Vann committed the offense which required a physical act against the body of a child, the court then concluded that such an offense was a violent felony under the ACCA. It noted the difference between the NC and Virginia offenses was that the later was committed "without the use of force."
Judge King dissented, arguing that the majority was incorrect in concluding that the NC statute set forth two different offenses, that Vann committed one that necessarily required physical acts against a child, and that the offense was a violent felony.
Divided Court Strikes Down Forced Medication Order
US v. White: White was charged with conspiracy, credit card fraud, and identity theft. She suffers from Delusional Disorder, Grandiose Type. After a motion was filed to determine her competency, it was found (and everyone agreed) that White was not competent to stand trial. After White "rebuffed all efforts to treat her disorder," the Government sought and was granted permission to forcibly medicate her pursuant to Sell v. United States, 539 US 166 (2003). White sought an interlocutory appeal challenging that order.
On appeal, the Fourth Circuit reversed, 2-1. "The crux of this case," the court wrote, was whether the Government had a sufficiently important interest in prosecuting White that interference with her liberty interest against self medication was justified, measured against the presence of any "special circumstances" militating against the Government's interest. The court concluded that, in this case, such special circumstances existed to weigh against White's forced medication.
While noting that the offenses with which White was charged were "serious," the court pointed to the following special circumstances that undermined the Government's interest in prosecuting her: (1) the length of time she had already spent in custody - 29 months, versus the most likely sentence if convicted; (2) White's charged offenses, while serious, were not violent; (3) her commitment to the BoP for evaluation/observation precludes her from possessing a firearm, as a conviction would; (4) the nature of White's "unique" condition and unknown potential effects of the proposed treatments; and (5) the case is not "sufficiently exceptional" to justify forced medication. To hold otherwise would risk allowing forced medication to become routine, rather than limited, option in such cases. Judge Keenan concurred in the opinion, writing separately to "emphasize the constitutional liberty interest at stake and the high burden of proof" put upon the Government when it seeks forcible medication.
Judge Niemeyer dissented, taking issue with both the majority's classification of White's charged offenses and its determination that she would likely be detained beyond the sentence she would receive if convicted. He writes that "[i]f the majority were ever inclined to allow an order for involuntary medication to enable the government to try a defendant, this would be the paradigmatic case."
Congrats to the defender office in Eastern NC on the win!
On appeal, the Fourth Circuit reversed, 2-1. "The crux of this case," the court wrote, was whether the Government had a sufficiently important interest in prosecuting White that interference with her liberty interest against self medication was justified, measured against the presence of any "special circumstances" militating against the Government's interest. The court concluded that, in this case, such special circumstances existed to weigh against White's forced medication.
While noting that the offenses with which White was charged were "serious," the court pointed to the following special circumstances that undermined the Government's interest in prosecuting her: (1) the length of time she had already spent in custody - 29 months, versus the most likely sentence if convicted; (2) White's charged offenses, while serious, were not violent; (3) her commitment to the BoP for evaluation/observation precludes her from possessing a firearm, as a conviction would; (4) the nature of White's "unique" condition and unknown potential effects of the proposed treatments; and (5) the case is not "sufficiently exceptional" to justify forced medication. To hold otherwise would risk allowing forced medication to become routine, rather than limited, option in such cases. Judge Keenan concurred in the opinion, writing separately to "emphasize the constitutional liberty interest at stake and the high burden of proof" put upon the Government when it seeks forcible medication.
Judge Niemeyer dissented, taking issue with both the majority's classification of White's charged offenses and its determination that she would likely be detained beyond the sentence she would receive if convicted. He writes that "[i]f the majority were ever inclined to allow an order for involuntary medication to enable the government to try a defendant, this would be the paradigmatic case."
Congrats to the defender office in Eastern NC on the win!
Thursday, August 19, 2010
Non-Expert DEA Testimony About Phone Call Meaning Requires Reversal
US v. Johnson: Johnson was charged in a multi-defendant indictment with conspiracy to distribute cocaine. At trial the Government presented non-expert testimony from a DEA agent that included testimony interpreting phrases in phone conversations between Johnson and an informant. In addition, the Government presented testimony from another witness, then in prison, who claimed to have bought cocaine from Johnson years before the conspiracy at issue at trial. Johnson was convicted and sentenced to 220 months in prison.
On appeal, the Fourth Circuit reversed Johnson's conviction on two grounds. First, the court agreed with Johnson that the DEA agent's testimony violated FRE 701, in that it was lay opinion testimony (he was never certified as an expert, remember) not based on personal knowledge. The court noted that when the testimony was objected to, the Government bolstered its admissibility by asking the agent about his training and qualifications, not his relevant observations. Such "post-hoc assessments cannot be credited as a substitute for the personal knowledge and perception required under Rule 701." Second, the court agreed with Johnson that the testimony about drug transactions that occurred five years before the conspiracy allegedly began were irrelevant. As neither error was harmless, the court was required to vacate Johnson's conviction.
On appeal, the Fourth Circuit reversed Johnson's conviction on two grounds. First, the court agreed with Johnson that the DEA agent's testimony violated FRE 701, in that it was lay opinion testimony (he was never certified as an expert, remember) not based on personal knowledge. The court noted that when the testimony was objected to, the Government bolstered its admissibility by asking the agent about his training and qualifications, not his relevant observations. Such "post-hoc assessments cannot be credited as a substitute for the personal knowledge and perception required under Rule 701." Second, the court agreed with Johnson that the testimony about drug transactions that occurred five years before the conspiracy allegedly began were irrelevant. As neither error was harmless, the court was required to vacate Johnson's conviction.
Lawyer Never Told to Appeal Not Ineffective For Failing to Do So
US v. Cooper: Cooper was charged with two drug counts and carrying a firearm in connection with a drug trafficking crime. Although he initially had an agreement with the Government to plead guilty to one drug count and the 924(c), Cooper eventually entered an Alford plea without an agreement to the charges. After an initial sentencing hearing at which the district court resolved some objections to the PSR but did not impose sentence, Cooper and the Government agreed to a Guideline range of 121 to 151 months on the drug charges (in addition to the 60-month 924(c) sentence, of course). At a second sentencing hearing, the district court accepted the stipulation and impose a total sentence of 181 months in prison. Cooper did not appeal.
Cooper later filed a motion seeking to vacate his sentence, arguing that his appointed lawyer was ineffective because he failed to consult with Cooper about the possibility of an appeal. Cooper testified that he wanted to file an appeal and asked his lawyer to come see him at the jail, but never actually expressed a desire to appeal to him. However, his lawyer never came to see him and his office would/could not accept Cooper's collect calls from the jail. Cooper's lawyer denied hearing a request to come visit him at the jail. The district court denied Cooper's motion, finding that he never asked his attorney to appeal and that no rational defendant would desire an appeal in such a situation.
On appeal, the Fourth Circuit affirmed the denial of Cooper's motion. Because Cooper did not tell counsel he wanted to appeal, the court had to determine "whether the circumstances would reasonably have led counsel to conclude that 'a rational defendant would want to appeal,' thus prompting counsel's duty to consult." No rational defendant would want an appeal in this case, the court concluded, as Cooper's actions - from entering a plea to agreeing to a sentencing range - indicated that he wanted to have the "proceedings concluded as quickly as possible." The court also noted that Cooper got the sentence he bargained for. While the end result here was not ineffective assistance of counsel, "best practices" would include consulting with the client to tie up any loose ends with regards to appeals once sentence is imposed.
Cooper later filed a motion seeking to vacate his sentence, arguing that his appointed lawyer was ineffective because he failed to consult with Cooper about the possibility of an appeal. Cooper testified that he wanted to file an appeal and asked his lawyer to come see him at the jail, but never actually expressed a desire to appeal to him. However, his lawyer never came to see him and his office would/could not accept Cooper's collect calls from the jail. Cooper's lawyer denied hearing a request to come visit him at the jail. The district court denied Cooper's motion, finding that he never asked his attorney to appeal and that no rational defendant would desire an appeal in such a situation.
On appeal, the Fourth Circuit affirmed the denial of Cooper's motion. Because Cooper did not tell counsel he wanted to appeal, the court had to determine "whether the circumstances would reasonably have led counsel to conclude that 'a rational defendant would want to appeal,' thus prompting counsel's duty to consult." No rational defendant would want an appeal in this case, the court concluded, as Cooper's actions - from entering a plea to agreeing to a sentencing range - indicated that he wanted to have the "proceedings concluded as quickly as possible." The court also noted that Cooper got the sentence he bargained for. While the end result here was not ineffective assistance of counsel, "best practices" would include consulting with the client to tie up any loose ends with regards to appeals once sentence is imposed.
Court Affirms Life and Death Sentences In 3-Defendant Kidnapping/Murder Cases
US v. Wilson & US v. Lighty: These two opinions, released the same day, involve three codefendants - Wilson, Lighty, and Flood - who were involved in a kidnapping that resulted in death. All were charged with kidnapping resulting in death, conspiracy, and three counts of using a firearm in furtherance of a crime of violence. Wilson's trial was severed from Lighty's and Flood's, thus the separate appeals. The two opinions cover over 115 pages, so there's obviously a lot of detail I'm leaving out (more so than usual).
The cases arose from the kidnap and murder of Hayes, who was on a street corner in DC with a friend when two men in a dark Lincoln approached and asked to buy drugs. Hayes and the two men went into an alley to complete the transaction. Hayes's friend looked in the alley a short time later and saw one of the men holding Hayes at gunpoint. The friend fled when the other man came at him with a gun. When the friend returned to the alley some time later, everyone was gone. Later that night, two men saw the car near a vacant lot in Maryland and watched as Hayes was dragged from it and shot twice while on his knees begging for his life. Wilson told his girlfriend later that night that he had driven the car to DC where he, Flood, and Lighty had "grabbed . . . the boy" and that Lighty shot him. The next day, he again told her that Lighty was the shooter. Wilson told a similar story to a friend, CW. After Lighty was arrested in possession of a .380 caliber handgun, Wilson told his girlfriend that was the gun used to shoot Hayes and that it had "a body or two on it" from a recent drive-by shooting, the "Afton Street Shooting."
Wilson was convicted of conspiracy to kidnap and sentenced to life in prison. On appeal, he raised several challenges to both his conviction and sentence, all of which the Fourth Circuit rejected.
As to Lighty:
The cases arose from the kidnap and murder of Hayes, who was on a street corner in DC with a friend when two men in a dark Lincoln approached and asked to buy drugs. Hayes and the two men went into an alley to complete the transaction. Hayes's friend looked in the alley a short time later and saw one of the men holding Hayes at gunpoint. The friend fled when the other man came at him with a gun. When the friend returned to the alley some time later, everyone was gone. Later that night, two men saw the car near a vacant lot in Maryland and watched as Hayes was dragged from it and shot twice while on his knees begging for his life. Wilson told his girlfriend later that night that he had driven the car to DC where he, Flood, and Lighty had "grabbed . . . the boy" and that Lighty shot him. The next day, he again told her that Lighty was the shooter. Wilson told a similar story to a friend, CW. After Lighty was arrested in possession of a .380 caliber handgun, Wilson told his girlfriend that was the gun used to shoot Hayes and that it had "a body or two on it" from a recent drive-by shooting, the "Afton Street Shooting."
Wilson was convicted of conspiracy to kidnap and sentenced to life in prison. On appeal, he raised several challenges to both his conviction and sentence, all of which the Fourth Circuit rejected.
- First, Wilson argued that the district court erred by allowing the Government to present evidence about the Afton Street Shooting at trial. The court agreed that admission of the evidence was error, as it was neither intrinsic to the offenses with which Wilson was charged nor was it proper FRE 404(b) evidence, but that the admission was harmless, as the evidence against Wilson was "overwhelming."
- Second, Wilson argued that the Government made improper comments during closing arguments, specifically by misstating the law of conspiracy. The court held that the statements were not erroneous, given the full context in which they were made which included the four other offenses with which Wilson was initially charged.
- Third, Wilson argued that the district court at sentencing improperly relied on a written statement he made to investigators. The court held that the statement, given to civilian investigators while Wilson was in the military, was voluntarily given and could be considered at sentencing.
- Finally, Wilson argued that the district court erred by denying his motion for a new trial based on newly discovered evidence and a Brady violation. The court held that there was no Brady violation and that neither a newly discovered witness nor a recantation by CW of some of his trial testimony required a new trial.
As to Lighty:
- First, the court rejected Lighty's argument that his trial should have been severed from Flood's as their defenses were not antagonistic (though they were occasionally at odds), did not restrict the evidence Lighty could present to the jury, and did not violate his Eighth Amendment right to individualized sentencing.
- Second, the court rejected several arguments about the admission of evidence, including the Afton Street Shooting evidence addressed above (harmless error), the exclusion of testimony from Lighty's witnesses about another potential perpetrator (no error), and the admissibility of a Government witness's answer to the question of whether she had any "doubt" about statements Lighty made to her (no error).
- Third, the court rejected Lighty's argument that the Government's closing arguments during the penalty phase referencing the victim's family's desire that Lighty be executed denied him a fair trial, holding that while improper the statements did not affect Lighty's substantial rights.
- Fourth, the court rejected Lighty's arguments that the district court improperly excluded several bits of mitigating evidence during the penalty phase.
- Fifth, the court rejected Lighty's argument that the district court erred by refusing to give the jury an instruction that it was not required to impose the death penalty, regardless of its findings on mitigating/aggravating factors.
- Sixth, the court rejected Lighty's argument that the use of the Afton Street Shooting as a non-statutory aggravating factor required it to be charged in the indictment.
- Seventh, the court concluded that Lighty's death sentence was not the result of "passion, prejudice, or any other arbitrary factor."
- Eighth, the court rejected Lighty's argument that his consecutive sentences under 924(c) were improper or that the entire process was rife with cumulative error.
- Finally, the court rejected Lighty's argument that he should receive a new trial on newly discovered evidence, as it did in Wilson's case.
Tuesday, July 13, 2010
Conflict of Interest Led to Failure to Pursue Departure
US v. Nicholson: Nicholson was arrested in 2001 for being a felon in possession of a firearm. At the time he told police that he got the gun for protection because he feared for his life. That reasoning was never contradicted and even confirmed by the Government during plea and sentencing hearings. Nevertheless, Nicholson's counsel never argued it as a reason for the district court to depart (this was pre-Booker) from the Guideline range at sentencing. Nicholson was sentenced to 189 months in prison, just above the mandatory minimum required by the ACCA.
Nicholson filed a 2255 alleging ineffective assistance of counsel due to a conflict of interest - during the time trial counsel represented Nicholson, he also represented Butts, the person who had made threats against Nicholson's life that led him to get a gun. Nicholson argued that conflict prevented counsel from using the threats in an argument for a lower sentence. The district court initially concluded that there was no conflict of interest, a conclusion that the Fourth Circuit rejected in 2007. On remand, the district court concluded that the conflict did not adversely affect trial counsel's performance and therefore denied Nicholson's motion.
The Fourth Circuit disagreed, again, and reversed the district court's holding. As for exactly what Nicholson was facing when he was arrested:
Applying the three-part test in Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001), the court held that (1) there was a plausible alternative strategy that trial counsel could have pursued, (2) that strategy was objectively reasonable based on the facts of the case known to counsel at the time, and (3) counsel's failure to pursue that strategy was due to the conflict of interest. On the record there was "overwhelming evidence - believed and even endorsed by the Government - that Nicholson faced . . . a genuine threat of death." Thus, the court vacated Nicholson's sentence and remanded the case for resentencing before a different judge.
District Judge Neely dissented to the court's opinion only in its requirement that a new judge preside at the resentencing.
Nicholson filed a 2255 alleging ineffective assistance of counsel due to a conflict of interest - during the time trial counsel represented Nicholson, he also represented Butts, the person who had made threats against Nicholson's life that led him to get a gun. Nicholson argued that conflict prevented counsel from using the threats in an argument for a lower sentence. The district court initially concluded that there was no conflict of interest, a conclusion that the Fourth Circuit rejected in 2007. On remand, the district court concluded that the conflict did not adversely affect trial counsel's performance and therefore denied Nicholson's motion.
The Fourth Circuit disagreed, again, and reversed the district court's holding. As for exactly what Nicholson was facing when he was arrested:
[H]is brother, Rudolph Nicholson, agreed in early 2000 to assist federal officers in their criminal investigation of Butts and his associates — prompting Butts to issue a series of threats against Rudolph and other Nicholson family members. On March 3, 2000, brother Rudolph was shot seven times by Butts’s son in Portsmouth, but survived the attack. Rudolph was treated for two months in a Norfolk, Virginia hospital,where a would-be assassin disguised as a priest — actually Butts himself — unsuccessfully attempted to enter Rudolph’s room and kill him. Around May 2000, federal officers informed Nicholson and his mother, Sandra Nicholson (whom Butts also threatened), that Butts had placed a contract on Nicholson’s life. On September 18, 2000, Nicholson’s stepfather, Charles Nicholson, was fatally shot multiple times on a Portsmouth street by Butts and his accomplices.(footnote omitted).
Applying the three-part test in Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001), the court held that (1) there was a plausible alternative strategy that trial counsel could have pursued, (2) that strategy was objectively reasonable based on the facts of the case known to counsel at the time, and (3) counsel's failure to pursue that strategy was due to the conflict of interest. On the record there was "overwhelming evidence - believed and even endorsed by the Government - that Nicholson faced . . . a genuine threat of death." Thus, the court vacated Nicholson's sentence and remanded the case for resentencing before a different judge.
District Judge Neely dissented to the court's opinion only in its requirement that a new judge preside at the resentencing.
Failure to Request Informant Instruction Ineffective Assistance of Counsel
US v. Luck: Luck was convicted on four counts of drug and firearm violations by a jury. He filed a 2255 challenging his convictions on numerous grounds. After the district court determined that three of the counts were tainted by ineffective assistance of appellate counsel those counts were dismissed by the Government. As to the remaining count, conspiracy to distribute more than 50 grams of crack cocaine, the district court concluded that Luck's trial counsel was not ineffective and refused to vacate that conviction.
On appeal the Fourth Circuit disagreed and reversed the district court's ruling. Specifically, the court held that Luck's trial counsel rendered ineffective assistance by failing to request an "informant instruction" that would explain to the jury the special duty it has to weigh an informant's testimony against his motives for testifying. Two of the main witnesses against Luck were paid informants. While the court declined to adopt a rule that such an instruction must be given in any case involving informant testimony, it did conclude that such an instruction should have been given in Luck's case based on the evidence presented at trial. Trial counsel was ineffective for failing to request such an instruction and that failure was prejudicial to Luck, even though the trial court's jury instructions as a whole "contained all of the elements of the informant instruction."
Judge Shedd dissented, agreeing that counsel should have requested the instruction but arguing that Luck had not demonstrated prejudice.
On appeal the Fourth Circuit disagreed and reversed the district court's ruling. Specifically, the court held that Luck's trial counsel rendered ineffective assistance by failing to request an "informant instruction" that would explain to the jury the special duty it has to weigh an informant's testimony against his motives for testifying. Two of the main witnesses against Luck were paid informants. While the court declined to adopt a rule that such an instruction must be given in any case involving informant testimony, it did conclude that such an instruction should have been given in Luck's case based on the evidence presented at trial. Trial counsel was ineffective for failing to request such an instruction and that failure was prejudicial to Luck, even though the trial court's jury instructions as a whole "contained all of the elements of the informant instruction."
Judge Shedd dissented, agreeing that counsel should have requested the instruction but arguing that Luck had not demonstrated prejudice.
Alford Plea Can't Support ACCA Prior
US v. Alston: Alston was convicted of being a felon in possession of a firearm. The PSR suggested that Alston was subject to the 15-year mandatory sentence under the ACCA due to having three prior convictions in Maryland. One of those convictions, for second-degree assault, an offense which may or may not be a "violent felony" under the ACCA, depending on how it is committed. Unable to determine how the offense was committed from the charging documents, the Government presented a transcript of the guilty plea hearing, at which the prosecutor proffered evidence alleging that Alston threatened several people with a gun - thus committing a violent felony. The plea, however, was an Alford plea, which Alston argued did not establish with "the kind of certainty that Shepard requires" which particular version of the offense he was convicted of committing. The district court disagreed and imposed a 15-year sentence.
On appeal, the Fourth Circuit vacated Alston's sentence. Noting that most circuits that have addressed the issue have adopted Alston's position, the court concluded that "a prosecutor's proffer of the factual basis for an Alford plea does not satisfy the requirements of the modified categorical approach" set forth in Shepard. Thus, Alston's sentence was vacated and remanded for resentencing.
Congrats to the FPD office in Maryland on the win!
On appeal, the Fourth Circuit vacated Alston's sentence. Noting that most circuits that have addressed the issue have adopted Alston's position, the court concluded that "a prosecutor's proffer of the factual basis for an Alford plea does not satisfy the requirements of the modified categorical approach" set forth in Shepard. Thus, Alston's sentence was vacated and remanded for resentencing.
Congrats to the FPD office in Maryland on the win!
Courts Affirms Multiple Enhancements for Bringing Gun to Probation Office
US v. Perez: Perez was an illegal alien who was arrested by ICE when he appeared for a meeting with his Maryland state probation officer. A search of his backpack uncovered a loaded handgun and additional ammunition. Perez was charged with and pleaded guilty to being a felon in possession of a firearm. At sentencing, the district court applied several enhancements not set forth in the PSR, bouncing Perez's Guideline range from 27-33 months to 63-78 months. The district court then imposed a sentence of 96 months in prison.
On appeal, Perez challenged both the calculation of his Guideline range and the substantive reasonableness of his sentence. The Fourth Circuit rejected all those arguments and affirmed. As to the Guidelines, Perez first challenged the four-level enhancement under USSG 2K2.1(b)(6), which the district court applied because Perez's carrying a loaded firearm without a safety around in public in a cloth bag constituted reckless endangerment in Maryland. The court found that conclusion was not clearly erroneous. Second, Perez challenged the two-level enhancement under 5K2.3 imposed by the district court after it concluded that it caused the probation officer psychological injury as she began wearing a bullet-proof vest and requested a transfer after 25 years in that position. The court found that conclusion was not clearly erroneous. Third, Perez challenged a two-level enhancement under 5K2.7 imposed after the district court concluded that the probation officer's transfer and the display of a sign stating its policy banning handguns from the office showed that Perez's actions "resulted in a significant disruption of a governmental function." Again, the court found that conclusion was not clearly erroneous. As for the substantive reasonableness of the sentence, the court found that the district court provided sufficient explanation for its sentence.
On appeal, Perez challenged both the calculation of his Guideline range and the substantive reasonableness of his sentence. The Fourth Circuit rejected all those arguments and affirmed. As to the Guidelines, Perez first challenged the four-level enhancement under USSG 2K2.1(b)(6), which the district court applied because Perez's carrying a loaded firearm without a safety around in public in a cloth bag constituted reckless endangerment in Maryland. The court found that conclusion was not clearly erroneous. Second, Perez challenged the two-level enhancement under 5K2.3 imposed by the district court after it concluded that it caused the probation officer psychological injury as she began wearing a bullet-proof vest and requested a transfer after 25 years in that position. The court found that conclusion was not clearly erroneous. Third, Perez challenged a two-level enhancement under 5K2.7 imposed after the district court concluded that the probation officer's transfer and the display of a sign stating its policy banning handguns from the office showed that Perez's actions "resulted in a significant disruption of a governmental function." Again, the court found that conclusion was not clearly erroneous. As for the substantive reasonableness of the sentence, the court found that the district court provided sufficient explanation for its sentence.
Defendant's Appeal Brings Successful Government Cross Appeal
US v. Young: Young was the subject of an investigation that led to the execution of an arrest warrant at his home. Police executed the warrant, arrested Young, and saw some drugs in plain view. They obtained a search warrant and eventually recovered a large amount of cash and cocaine. Young moved to suppress that evidence, arguing that the police failed to knock and announce their presence before entering his home. The district court disagreed and denied the motion. Young went to trial and was convicted of two drug offenses by a jury, which returned a special verdict form concluding that Young was responsible for between 500 grams and 5 kilograms of cocaine. The PSR, however, held him responsible for between 50 and 150 kilograms of cocaine. At sentencing, the district court went with the jury's finding, concluding it was bound by it and imposed a sentence in the middle of the resulting Guideline range.
Young appealed both his conviction and sentence and the Government cross appealed on the sentence. The Fourth Circuit affirmed Young's conviction, but vacated his sentence. As to the conviction, the court first affirmed the district court's denial of the motion to suppress. The court rejected Young's argument that the police should have waited longer for a response after knocking. In a footnote, the court rejected the Government's invitation to conclude that the Supreme Court's decision in Hudson, which held that suppression was not an appropriate remedy for knock and announce violations in the execution of a search warrant, also applied to the execution of arrest warrants. Next, the court concluded that the evidence was sufficient to sustain Young's convictions.
As to sentencing, the court rejected Young's arguments as all foreclosed by circuit precedent. The Government's cross appeal, however, was another matter. The Government argued that the district court erred by concluding that the jury's findings as to drug quantity bound it at sentencing, aside from setting the applicable statutory maximum/minimums. The court agreed. Even though the jury's findings were that of a "lesser included offense" of the 5 kilogram amount alleged in the indictment, that finding did not bind the district court. The district court was free to evaluate drug quantity at sentencing as it could with any acquitted conduct. The fact that the Government chose not to present all its drug quantity evidence at trial was irrelevant (the Government did present evidence at sentencing that the district court concluded would support a higher Guideline range). Therefore, the sentence was vacated and the case remanded.
Young appealed both his conviction and sentence and the Government cross appealed on the sentence. The Fourth Circuit affirmed Young's conviction, but vacated his sentence. As to the conviction, the court first affirmed the district court's denial of the motion to suppress. The court rejected Young's argument that the police should have waited longer for a response after knocking. In a footnote, the court rejected the Government's invitation to conclude that the Supreme Court's decision in Hudson, which held that suppression was not an appropriate remedy for knock and announce violations in the execution of a search warrant, also applied to the execution of arrest warrants. Next, the court concluded that the evidence was sufficient to sustain Young's convictions.
As to sentencing, the court rejected Young's arguments as all foreclosed by circuit precedent. The Government's cross appeal, however, was another matter. The Government argued that the district court erred by concluding that the jury's findings as to drug quantity bound it at sentencing, aside from setting the applicable statutory maximum/minimums. The court agreed. Even though the jury's findings were that of a "lesser included offense" of the 5 kilogram amount alleged in the indictment, that finding did not bind the district court. The district court was free to evaluate drug quantity at sentencing as it could with any acquitted conduct. The fact that the Government chose not to present all its drug quantity evidence at trial was irrelevant (the Government did present evidence at sentencing that the district court concluded would support a higher Guideline range). Therefore, the sentence was vacated and the case remanded.
Employee Filing False Timesheets With Employer Under NSA Contract Within Scope of 1001
US v. Jackson: Jackson worked for Northrop Grumman, a sub-contractor on a "time-and-materials" contract with the NSA. During his employment, Jackson submitted false timesheets to his employer. He was charged with 20 counts of making false statements under 18 USC 1001. He moved to dismiss, arguing that his statements were not made "in relation to a matter within the jurisdiction of the executive branch." The district court denied the motion and Jackson entered a conditional guilty plea to three counts.
On appeal, the Fourth Circuit affirmed the denial of the motion to dismiss. On appeal, Jackson argued that because the NSA was created by executive order rather than a statute it had "no statutory basis" to access his timesheets. Noting that the "authority to safeguard federal funds" is "an official, authorized function of the executive branch," the court held that authority was, in itself, a sufficient jurisdictional nexus to bring the case within the reach of 1001. However, the court also noted that the NSA had an additional power when it came to Jackson - it could revoke his security clearance and terminate the contract under which her worked - that strengthened the nexus.
On appeal, the Fourth Circuit affirmed the denial of the motion to dismiss. On appeal, Jackson argued that because the NSA was created by executive order rather than a statute it had "no statutory basis" to access his timesheets. Noting that the "authority to safeguard federal funds" is "an official, authorized function of the executive branch," the court held that authority was, in itself, a sufficient jurisdictional nexus to bring the case within the reach of 1001. However, the court also noted that the NSA had an additional power when it came to Jackson - it could revoke his security clearance and terminate the contract under which her worked - that strengthened the nexus.
Monday, June 21, 2010
Single Source of Funds Does Not Preclude Pattern of Illegal Activity
US v. Peterson: Peterson had multiple chiropractic operations in Virginia, the cash proceeds of which she put in a safe deposit box. The amount in the box totaled over $100,000. She also made a series of deposits into her checking account of $9500 or a little less, at the urging of her (now ex) husband to "avoid burdensome paperwork" and arousing the suspicion of law enforcement from large cash deposits made by an Iranian-American. Peterson pleaded guilty to structuring under 31 USC 5324(a)(3). At sentencing, she argued that a two-level enhancement under USSG 2S1.3(b)(2) did not apply because the alleged "pattern of unlawful activity" was all the same - transferring funds from her safety deposit box into her bank account. The district court disagreed, calling the result of such an argument "bizarre and unintended."
On appeal, Peterson renewed her argument that she did not engaged in a "pattern of unlawful activity" - defined as two or more separate instances of illegal activity - if all the funds in question came from only one source. The Fourth Circuit disagreed and affirmed Peterson's sentence. It held that the enhancement can apply in cases of "serial structuring," even if the result is only one indictable offense. The single source of the funds was irrelevant, as "because Peterson made more than one unlawful deposit . . . she committed her offense as part of a pattern of unlawful activity."
On appeal, Peterson renewed her argument that she did not engaged in a "pattern of unlawful activity" - defined as two or more separate instances of illegal activity - if all the funds in question came from only one source. The Fourth Circuit disagreed and affirmed Peterson's sentence. It held that the enhancement can apply in cases of "serial structuring," even if the result is only one indictable offense. The single source of the funds was irrelevant, as "because Peterson made more than one unlawful deposit . . . she committed her offense as part of a pattern of unlawful activity."
Routine Military Search of MP3 Player OK Under Fourth Amendment
US v. Rendon: Rendon was in the Army and was transferred from one unit to another at Fort Knox, Kentucky, in order to be processed for a medical discharge. As part of the protocol for coming into a new unit, Rendon's possessions were search, including his MP3 player, which would be "turned on and checked to ensure that the[re] are no graphic materials on them such as pornography." An inspection of Rendon's MP3 player uncovered child pornography. As a result, a search warrant was executed at Rendon's home in Virginia which uncovered more images and videos of child pornography. Rendon was indicted for possession of child pornography and sought to suppress the evidence from the searches. The district court denied the motion, holding that Rendon had no expectation of privacy in the MP3 player because the search was committed for military, no law enforcement, purposes. Rendon pleaded guilty and was sentenced to 97 months in prison.
On appeal, Rendon renewed his argument that the search of his MP3 player violated the Fourth Amendment. Specifically, Rendon argued that the Army's search was not done pursuant to a valid military inspection and was done for law enforcement purposes. The court disagreed, holding that the initial search of the MP3 player was done pursuant to military policy intended to implement military, not law enforcement, goals and that there was no individualized suspicion of Rendon prior to the discovery of contraband on his player.
On appeal, Rendon renewed his argument that the search of his MP3 player violated the Fourth Amendment. Specifically, Rendon argued that the Army's search was not done pursuant to a valid military inspection and was done for law enforcement purposes. The court disagreed, holding that the initial search of the MP3 player was done pursuant to military policy intended to implement military, not law enforcement, goals and that there was no individualized suspicion of Rendon prior to the discovery of contraband on his player.
No Intent to Remain Needed to Establish Venue for Child Support Prosecution
US v. Novak: Novak was the father of two children, one living in California from a previous marriage and one in New York with his (then current) wife. Between 1993 and 2008, he failed to pay more than $120,000 in child support for the California child (plus interest). In August 2004, after his wife had filed for divorce, Novak moved to Virginia to fulfill a consultancy contract that would terminate at the end of 2004. He remained in Virginia, however, until August, 2007, when he was arrested and charged in the EDVA with willfully failing to pay child support under 18 USC 228(a)(3). At trial, venue was a key issue, whether Novak "resided" in EDVA. Novak argued that he lived in New York and only worked in Virginia - he returned to New York weekly to visit his daughter, continued to pay for the marital home, and kept most of his possessions there. The jury was instructed that to "reside" means "living in a given place permanently or for an extended period of time." Novak was convicted.
On appeal, Novak made two venue-related arguments against his conviction, both of which the Fourth Circuit rejected. First, he argued that the district court erred by failing to instruct the jury that it had to find that he intended to remain in Virginia in order to find that he resided there. The court concluded that the plain meaning of "reside" did not include an intent to remain in a particular place, differentiating it from the concept of domicile. Second, Novak argued that the district court erred by failing to instruct the jury specifically that he had to reside in EDVA during a time when he willfully failed to make child support payments. Even assuming that there was error in the instruction, the court held that it was harmless.
On appeal, Novak made two venue-related arguments against his conviction, both of which the Fourth Circuit rejected. First, he argued that the district court erred by failing to instruct the jury that it had to find that he intended to remain in Virginia in order to find that he resided there. The court concluded that the plain meaning of "reside" did not include an intent to remain in a particular place, differentiating it from the concept of domicile. Second, Novak argued that the district court erred by failing to instruct the jury specifically that he had to reside in EDVA during a time when he willfully failed to make child support payments. Even assuming that there was error in the instruction, the court held that it was harmless.
Monday, June 14, 2010
ISP Not Agent of the Government
US v. Richardson: Richardson, a registered sex offender, was discovered to be in possession of child pornography as part of an investigation initiated when his internet service provider, AOL, tipped investigators that particular email accounts (both traced back to Richardson) had transmitted images of child pornography. Richardson moved to suppress the physical evidence and statements procured as a result of a search warrant executed based on the information from AOL, on two grounds: (1) that AOL was acting as an agent of the Government and its actions violated the Fourth Amendment and (2) that there was not probable cause to believe that child pornography would be found at his home at the time of the search. To seek support on his first point, Richardson sought a Rule 17(c)(2) subpoena against AOL seeking "all records . . . relating to AOL's coordination of efforts" with Government agencies. The district court rejected that request as overly broad and denied Richardson's motion to suppress. He subsequently entered a conditional guilty plea to child pornography charges.
On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court held that AOL was not acting as an agent for the Government when it scanned Richardson's emails and uncovered child pornography. Specifically, the court rejected Richardson's argument that the Government, by mandating that AOL report images of child pornography it discovers, transformed AOL into a Government agent, even though the actual scans were not done by Government agents or at their request. The statutory scheme in place at the time did not require AOL to actively search for illicit images, only to report those which they found. Second, the court held that the district court properly quashed the subpoena because it was not sufficiently specific in what it sought AOL to turn over. Finally, the court held that the search warrant was obtained sufficiently close in time to the second AOL detection of illicit images from Richardson as to support probable cause to believe he would have child pornography in his possession.
On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court held that AOL was not acting as an agent for the Government when it scanned Richardson's emails and uncovered child pornography. Specifically, the court rejected Richardson's argument that the Government, by mandating that AOL report images of child pornography it discovers, transformed AOL into a Government agent, even though the actual scans were not done by Government agents or at their request. The statutory scheme in place at the time did not require AOL to actively search for illicit images, only to report those which they found. Second, the court held that the district court properly quashed the subpoena because it was not sufficiently specific in what it sought AOL to turn over. Finally, the court held that the search warrant was obtained sufficiently close in time to the second AOL detection of illicit images from Richardson as to support probable cause to believe he would have child pornography in his possession.
False Statement "Material" If It Influences Agency Action
US v. Garcia-Ochoa: Garcia-Ochoa admitted to falsely declaring on I-9 Employment Eligibility Verification Forms that he was either a "citizen or national of the United States" or a "lawful permanent resident" on multiple occasions. For his efforts he was indicted and convicted after a bench trial of making false statements under 18 USC 1001 and 1546(a). Garcia-Ochoa argued that his false statements were not material (and thus not illegal) because he was "nonetheless authorized to work in the United States." The district court disagreed, holding that Garcia-Ochoa's false statements were material because they were capable of influencing agency action.
Garcia-Ochoa appealed to the Fourth Circuit, challenging the sufficiency of the evidence due to the lack of materiality of his false statements. The Fourth Circuit disagreed and affirmed his conviction, refusing "to render the I-9 Form a meaningless exercise." The court noted that I-9 Forms are retained by businesses for a period of years, during which they can and are reviewed by various government agencies. "The defendant's misstatements," the court concluded, "were capable of influencing agency action in a number of ways, and by a number of agencies." In addition, one of Garcia-Ochoa's statements actually affected the action of the US Navy, which granted him access to a naval base as part of one of his employments because he was listed as a US citizen.
Garcia-Ochoa appealed to the Fourth Circuit, challenging the sufficiency of the evidence due to the lack of materiality of his false statements. The Fourth Circuit disagreed and affirmed his conviction, refusing "to render the I-9 Form a meaningless exercise." The court noted that I-9 Forms are retained by businesses for a period of years, during which they can and are reviewed by various government agencies. "The defendant's misstatements," the court concluded, "were capable of influencing agency action in a number of ways, and by a number of agencies." In addition, one of Garcia-Ochoa's statements actually affected the action of the US Navy, which granted him access to a naval base as part of one of his employments because he was listed as a US citizen.
Monday, June 07, 2010
Court Affirms 60-month Felon In Possession Sentence
US v. Knight: Police came to Knight's North Carolina hotel room and searched it, with her consent. There were three men in the room with her at the time. In the room, police recovered a loaded pistol from under the bed and some marijuana from the toilet. Knight admitted that the gun was hers, she got it for protection, and that she had a prior felony conviction. She was charged with being a felon in possession of a firearm, but disappeared for about a year afterwards. She pleaded guilty after being captured in Texas. At sentencing, her advisory Guideline range was 92 to 115 months in prison, but the district court varied downward and imposed a sentence of 60 months in prison.
Knight appealed her sentence, challenging the calculation of her advisory Guideline range in several ways. The Fourth Circuit affirmed her sentence. First, Knight argued that the district court erred in counting a prior Texas conviction for arson as a "crime of violence" under the Guidelines because that state's definition of the offense extends beyond the burning of buildings. The court disagreed, holding that the Texas offense encompasses the modern generic meaning of "arson," an offense specifically listed as a crime of violence. Second, Knight argued that she was entitled to a reduce for acceptance of responsibility in spite of receiving an enhancement for obstruction of justice based on her absconding. The court disagreed, holding that this was not one of the "exceptional" situations where a reduction was still appropriate, refusing to hold that acceptance is applicable as long as the obstructing behavior takes place before the entry of a guilty plea. Finally, Knight argued that the district court should have applied the version of the Guidelines in effect at the time of her offense rather than at the time of sentencing, which would have resulted in a two-level lower final offense level. Applying plain error review, the court found error and that it was plain (based on the recent decision in Lewis), but no prejudice, as it was not clear from the record that the district court's ultimate sentence was tied to a specific reduction from the (incorrectly calculated) Guideline range.
Knight appealed her sentence, challenging the calculation of her advisory Guideline range in several ways. The Fourth Circuit affirmed her sentence. First, Knight argued that the district court erred in counting a prior Texas conviction for arson as a "crime of violence" under the Guidelines because that state's definition of the offense extends beyond the burning of buildings. The court disagreed, holding that the Texas offense encompasses the modern generic meaning of "arson," an offense specifically listed as a crime of violence. Second, Knight argued that she was entitled to a reduce for acceptance of responsibility in spite of receiving an enhancement for obstruction of justice based on her absconding. The court disagreed, holding that this was not one of the "exceptional" situations where a reduction was still appropriate, refusing to hold that acceptance is applicable as long as the obstructing behavior takes place before the entry of a guilty plea. Finally, Knight argued that the district court should have applied the version of the Guidelines in effect at the time of her offense rather than at the time of sentencing, which would have resulted in a two-level lower final offense level. Applying plain error review, the court found error and that it was plain (based on the recent decision in Lewis), but no prejudice, as it was not clear from the record that the district court's ultimate sentence was tied to a specific reduction from the (incorrectly calculated) Guideline range.
Vacation of Some ACCA Priors Does Not Guarantee Resentencing
US v. Pettiford: This is an appeal from the district court's granting of Pettiford's 2255 motion, vacating his sentence under the ACCA. At his original sentencing, Pettiford stipulated (as part of the plea agreement) that the ACCA applied to him. A Government notice had identified five prior qualifying convictions. After sentencing, a state court vacated two of those prior convictions. Afterwards, Pettiford filed a 2255 motion seeking to vacate his sentence, arguing that he no longer fell under the ACCA, both because of the vacation of two of the prior convictions and because a third should not be counted as a predicate offense applying the Supreme Court's decision in Shepard (decided after Pettiford was initially sentenced). He thus has only two prior qualifying convictions. The district court granted relief, identifying a fourth prior conviction that now should not qualify as an ACCA predicate following a review "akin to what would occur at a re-sentencing proceeding."
The Government appealed the district court's order and the Fourth Circuit reversed. First, the court concluded that Pettiford could not meet the threshold inquiry for 2255 relief because he could not show that his sentence was "unlawful," as even after two of the priors were vacated by the state court, he still had three prior ACCA predicate convictions. The court rejected the district court's "assumption" that the vacation of any prior offenses entitled Pettiford to relief without further analysis. The district court erred by proceeding on to an analysis of any of the other prior offenses without first holding that the vacation of the two convictions in state court rendered Pettiford's sentence unlawful. Second, the court concluded that any challenges to Pettiford's other prior convictions were waived by failing to raise them at sentencing or on direct appeal. The court found no cause to justify the failure to challenge those convictions, holding that the futility of raising challenges at that time does not constitute cause. Finally, the court held that actual innocence with regards to a sentencing enhancement applies to excuse procedural default only when the defendant is actually innocent of the predicate offense itself, not that it's legal effect has changed due to a change in the law since sentencing.
The Government appealed the district court's order and the Fourth Circuit reversed. First, the court concluded that Pettiford could not meet the threshold inquiry for 2255 relief because he could not show that his sentence was "unlawful," as even after two of the priors were vacated by the state court, he still had three prior ACCA predicate convictions. The court rejected the district court's "assumption" that the vacation of any prior offenses entitled Pettiford to relief without further analysis. The district court erred by proceeding on to an analysis of any of the other prior offenses without first holding that the vacation of the two convictions in state court rendered Pettiford's sentence unlawful. Second, the court concluded that any challenges to Pettiford's other prior convictions were waived by failing to raise them at sentencing or on direct appeal. The court found no cause to justify the failure to challenge those convictions, holding that the futility of raising challenges at that time does not constitute cause. Finally, the court held that actual innocence with regards to a sentencing enhancement applies to excuse procedural default only when the defendant is actually innocent of the predicate offense itself, not that it's legal effect has changed due to a change in the law since sentencing.
Evidence Sufficient to Sustain Conspiracy to Kill Informant
US v. Ashley: Ashley shared an attorney with Caruso, who had been arrested and charged with drug offenses. When they were both at their attorney's office, Ashley overheard Caruso complaining about Dixon, who had allegedly been arrested and then provided testimony against Caruso. Caruso said he "would love to be able to discredit, you know, dismantle a witness against me." Caruso provided Ashley with a copy of his case file. Ashley then told an associate about Caruso's "problem down in Baltimore," after which the associate went and shot Dixon six times (he survived, "albeit with permanent debilitating injuries"). Caruso paid Ashley $10,000, half of which he passed to the shooter. Ashley was charged with conspiring to kill a witness, conspiring to kill an informant for providing information to law enforcement, and use of a firearm under 924(c). He was convicted on all counts.
On appeal, Ashley challenged his convictions for conspiring to kill an informant and the firearm offense, both of which the Fourth Circuit affirmed. As to the first, Ashley argued that the evidence was insufficient to show he knew that Caruso wanted Dixon killed as retaliation for giving information to law enforcement. Specifically, there was no evidence that Ashley knew Dixon was a government informant or that, if he was, he had provided information to federal officers. The court disagreed, holding that the "fabric of evidence" in the case showed that "Ashley knew exactly what Caruso was willing to pay for and precisely what Caruso wanted done." Secondly, Ashley argued that the district court's jury instructions, which were echoed by the Government in its closing arguments, constructively amended the indictment by omitting the "during and in relation to" language from the instructions. The court disagreed, holding that the instructions did not impermissibly broaden the bases upon which he could be convicted. The court also concluded that the district court's instruction that Ashley could be convicted based on Pinkerton coconsipirator liability was not error, analogizing it to aider/abetter liability, which is not required to be specifical charged in an indictment.
On appeal, Ashley challenged his convictions for conspiring to kill an informant and the firearm offense, both of which the Fourth Circuit affirmed. As to the first, Ashley argued that the evidence was insufficient to show he knew that Caruso wanted Dixon killed as retaliation for giving information to law enforcement. Specifically, there was no evidence that Ashley knew Dixon was a government informant or that, if he was, he had provided information to federal officers. The court disagreed, holding that the "fabric of evidence" in the case showed that "Ashley knew exactly what Caruso was willing to pay for and precisely what Caruso wanted done." Secondly, Ashley argued that the district court's jury instructions, which were echoed by the Government in its closing arguments, constructively amended the indictment by omitting the "during and in relation to" language from the instructions. The court disagreed, holding that the instructions did not impermissibly broaden the bases upon which he could be convicted. The court also concluded that the district court's instruction that Ashley could be convicted based on Pinkerton coconsipirator liability was not error, analogizing it to aider/abetter liability, which is not required to be specifical charged in an indictment.
Common Law Battery Not Always MCDV
US v. White: White was charged with possessing a firearm after sustaining a misdemeanor crime of domestic violence (MCDV). The underlying offense was a Virginia conviction for domestic battery. In the Commonwealth, "battery" retains its common law definition, and so includes "offensive touching" in addition to an act causing injury. Applying the Supreme Court's recent decision in Johnson, in which it held simple touching doesn't constitute "physical force" for ACCA purposes, the Fourth Circuit concluded the same applied to the MCDV definition:
We thus conclude that the phrase 'physical force' in §921(a)(33)(A)(ii) means force, greater than a mere offensive touching, that is capable of causing physical pain or injury to the victim. Accordingly, a conviction for assault and battery in Virginia does not require 'physical force' as an element of the crime. As a consequence, a Virginia conviction for assault and battery under VA CODE ANN. § 18.2-57.2, in and of itself, does not meet the definition of a §922(g)(9) 'misdemeanor crime of domestic violence.' Applying the 'modified categorical approach' outlined in Taylor v. United States, 495 U.S. 575 (1990) and Shepard, the record is devoid of any qualifying documentation to show White's conviction under VA CODE ANN. § 18.2-57.2 was otherwise 'a misdemeanor crime of domestic violence' under §922(g)(9). We therefore reverse White's conviction and vacate his sentence.
NASA Security Guard Guilty of Impersonating Federal Officer
US v. Roe: Roe was a privately contracted security guard working at a NASA facility in Maryland. Roe possessed a Maryland handgun permit and state certifications for being a private security guard and private detective. As part of his job, he had the limited authority to arrest and otherwise provide law enforcement services on NASA grounds. He was pulled over on the highway in a car done up to look like an unmarked police car after some interactions with a Maryland state police officer (in a real unmarked car). When he got out of the car, he told the arresting officer "I'm the police! I'm the police" and that he was a federal police officer. He produced a badge that had "NASA" and "police" on it, which the officer recognized as inauthentic. Roe was charged with impersonating an officer of the United States. At trial, the Government produced testimony from a Maryland state police officer who testified that the state certifications Roe possessed did not give him arrest authority under state law or turn him into a police officer. Roe was convicted and sentenced to probation.
On appeal, Roe raised three arguments seeking to overturn his conviction, each of which the Fourth Circuit rejected. First, he argued that the district court erred by allowing the state police officer to testify about Roe's certifications and their effect because he was not qualified to testify as an expert witness. The court disagreed, holding that the officer's testimony was lay testimony, not expert, and he could testify about the permits because of his position in the office that issued such permits. Second, Roe argued that the evidence was not sufficient to convict him, particularly given that he was, in fact, employed as a "security police officer" at NASA. In other words, he could not impersonate a federal officer because he was one. The court disagreed, holding that the statute reached situations where the a person claimed to be a federal officer in a situation in which they were not acting as such (i.e., posing as an officer beyond the scope of their actual authority). Finally, the court rejected Roe's argument that the district court's instruction using the term "police officer" instead of simply "officer" was an impermissible amendment to the indictment.
Judge Gregory dissented from the court's conclusion with regards to the sufficiency of the evidence. He argued that the language of the statute was clear and that liability applies only to those who are not at all federal officers and claim to be. When he stated "I'm the police!", he was likely "attempting not to get shot by identifying himself as one of the 'good guys,'" rather than trying to actually mislead anyone.
On appeal, Roe raised three arguments seeking to overturn his conviction, each of which the Fourth Circuit rejected. First, he argued that the district court erred by allowing the state police officer to testify about Roe's certifications and their effect because he was not qualified to testify as an expert witness. The court disagreed, holding that the officer's testimony was lay testimony, not expert, and he could testify about the permits because of his position in the office that issued such permits. Second, Roe argued that the evidence was not sufficient to convict him, particularly given that he was, in fact, employed as a "security police officer" at NASA. In other words, he could not impersonate a federal officer because he was one. The court disagreed, holding that the statute reached situations where the a person claimed to be a federal officer in a situation in which they were not acting as such (i.e., posing as an officer beyond the scope of their actual authority). Finally, the court rejected Roe's argument that the district court's instruction using the term "police officer" instead of simply "officer" was an impermissible amendment to the indictment.
Judge Gregory dissented from the court's conclusion with regards to the sufficiency of the evidence. He argued that the language of the statute was clear and that liability applies only to those who are not at all federal officers and claim to be. When he stated "I'm the police!", he was likely "attempting not to get shot by identifying himself as one of the 'good guys,'" rather than trying to actually mislead anyone.
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