One conviction (of eleven) vacated for improper venue

US v. Jefferson:   This appeal stems from a highly-publicized corruption case involving a former United States House member from Louisiana, William J. Jefferson, who engaged in "an ongoing course of illicit and repugnant conduct - conduct for which he was compensated considerably by those on whose behalf he was acting." The facts of the case below are described in great detail in this opinion, and can be located elsewhere on the Web; briefly, Jefferson received 11 convictions and the longest sentence ever given to a congressman for bribery or any other crime.

Important for this appeal is the definition of the term "official act," and venue for the honest services wire fraud offense. The Fourth Circuit discusses what constitutes an "official act" at great length, and for anyone representing a public official, this discussion may be useful. More relevant may be the discussion of venue for an honest services wire fraud offense, in which the Fourth Circuit determined the venue was improper and vacated this conviction.

Here, there is no specific venue provision in the statutes at stake, 18 U.S.C. §§ 1343 and 1346, so venue lies where the essential conduct elements took place. Jefferson contended that venue did not lie in the Eastern District of Virginia because the phone call underlying this count was neither begun nor completed in that district. The Fourth Circuit reviewed the essential elements of the honest services wire fraud offense and determined that the misuse of mail or wire is the actus reus punishable by federal law. Finding itself in agreement with the 2^nd and 9^th Circuits, the Fourth Circuit determined that venue is established in those locations where the wire transfer either originated or was received, so it did not lie in Virginia here. It could lie in Kentucky, though, and the Fourth Circuit pointed out that as the location where the call was received, and where this charge could be properly brought.

Issues a lower court may consider on remand

US v. Susi:  This appeal challenges the sentence imposed following a remand for re-sentencing. Susi raises three issues here: 1) the district court did not recalculate the Sentencing Guidelines as part of the re-sentencing; 2) the re-sentencing court imposed sentence based on the impermissible factor that Susi exercised his right to trial; and 3) the sentence was procedurally and substantively unreasonable because the court did not provide an adequate explanation on the record for the sentence. The Fourth Circuit affirmed the sentence.

The main issue in this appeal is what a lower court may consider on remand: is the defendant entitled to a de novo hearing at re-sentencing, does the re-sentencing court consider the entire sentence anew, including any objections to the Guidelines range? Or is the re-sentencing limited in correcting the error in the original sentence? The Fourth Circuit considers here the "mandate rule," wherein the re-sentencing court is bound to carry out the mandate of the superior court, and may not reconsider issues that mandate laid to rest, referring to its earlier case, United States v. Bell, for its explanation of the "law of the case" doctrine, of which the mandate rule is a "specific application." Under this doctrine, the dictates of the higher court forecloses re-litigation of issues decided by the lower court but foregone on appeal or otherwise waived.

The sentencing error identified by the Fourth Circuit when it vacated Susi’s sentence originally, dealt with the district court’s consideration of factors outside the scope of the record during the § 3553(a) analysis and calculating the restitution ordered, so the error below, according to the Fourth Circuit, in no way impacted the calculation of his Guidelines range. Since the guidelines range was not objected to in the original appeal by Susi, it was unnecessary and duplicative to recalculate the Guidelines in order to address the error that caused the remand.

Additionally, Susi’s second argument that he was penalized merely by exercising his constitutional right to a trial (he received a higher sentence than his co-conspirators who took plea deals to resolve the charges against them) was undercut by the fact that he received a lower sentence on remand of 160 months than he originally received, 180 months. The Fourth Circuit has previously stated in United States v. Perry, that in order to prove improper or vindictive motive by the government against someone exercising a constitutional right, a presumption of improper vindictive motion must arise, a presumption only warranted in cases in which a reasonable likelihood of vindictiveness exists, e.g. when a defendant succeeds in attacking his sentence on appeal, and then receives a higher sentence on re-trial. That did not happen here, so this appeal issued failed.

Finally, in discussing Susi’s third appeal issue, the Fourth Circuit held for the first time that a below-Guidelines sentence is entitled to a presumption of reasonableness, when a defendant challenges the length of the below-Guidelines sentence as being substantively unreasonable. Also, this presumption would not apply where a defendant challenged the substantive reasonableness on other grounds, nor would this presumption apply when the government appeals a district court’s sentence as substantively unreasonable.

What constitutes a claim of citizenship?

US v. Castillo-Pena:  Appellant Humberto Jose Castillo-Pena appeals his convictions for falsely representing himself as a United States citizen and of committing identity theft of another individual in relation to his false claim of citizenship.  The Fourth Circuit affirmed the convictions. 

Castillo-Pena first came to the U.S. in 1987, when he began dating Yolanda Bernal.  The two married and subsequently divorced; Bernal served as a witness at her then-husband's first INS immigration proceeding in 1991.  As part of this proceeding, Castillo-Pena provided a sworn affidavit including his full name, his birthplace and citizenship in Nicaragua; he was also fingerprinted at that time. 

After the couple divorced in 1995, Castillo-Pena informed his wife that he would henceforth be known as Erick Cardona.  He attempted to apply for a passport under this pseudonym.  The real Erick Cardona, born in Puerto Rico and a U.S. citizen, had never met Castillo-Pena. An investigation of Castillo-Pena for deportation began with an interview with ICE agent Cindy Yang.  At the interview, Castillo-Pena responded to Yang's question about whether he would like to make a statement that he was a United States citizen, and Castillo-Pena, claiming to be Cardona, responded, "yes, I would like to."  Additionally, Castillo-Pena's fingerprints, taken in 2010, matched those taken in 1991. 

This statement constituted a false representation of U.S. citizenship, and the jury at Castillo-Pena's trial concluded that he willfully misrepresented himself as a U.S. citizen, and that this statement constituted a direct claim of American citizenship.  Additionally, on appeal, Castillo-Pena did not challenge the evidence put on by the government that he attempted to assume the identity of Erick Cardona to apply for a passport. 

 

Rockfish wholesalers' convictions affirmed

US v. Oceanpro Industries:  In this appeal, a D.C. seafood wholesaling operation, its vice president, and an employee challenged their convictions for purchasing untagged and oversized striped bass (known colloquially as "rockfish") in violation of the Lacey Act (prohibiting the purchase in interstate commerce of fish or wildlife sold in violation of state law), and also for lying to federal agents investigating the crimes.  The appellants disputed the District of Maryland's venue for the false statement offense, because the statements were uttered in D.C., not Maryland.  Secondly, the appellants argued that the $300,000 order of restitution (well below the market value for the fish allegedly caught and sold illegally) was improper because the States were not "victims," as they lacked a sufficient interest in the illegally caught fish.  The Fourth Circuit affirmed the convictions.

The statute governing the false statement, 18 U.S.C. sect. 1001, does not contain an express venue provision; in this event, the Supreme Court has instructed that the place of the crime, its locus delicti, controls venue, and the place is "determined from the nature of the crime alleged and the location of the act or acts constituting it."  The Fourth Circuit has held that the "circumstance" elements of an offense, even if essential, are without moment to a venue determination.  The mens rea element of the false statement offense is such a circumstance element, and the essential conduct prohibited by the statute is "making any materially false statement."  The Fourth Circuit concluded that the District of Maryland had a substantial connection to the employee's criminal conduct and to the charges based on that conduct against him and Oceanpro. 

The Fourth Circuit held the restitution order, $300,000 to the states of Maryland and Virginia as compensation for the rockfish that had been illegally harvested from the Potomac River and sold to Oceanpro, was proper because the states had a proprietary interest in the illegally harvested fish after they were caught, so they were entitled to restitution under the Mandatory Victims' Restitution Act ("MVRA").  The Fourth Circuit relied on a Second Circuit case, United States v. Bengis, for its reasoning, a case involving illegally harvested South African lobsters, where restitution was mandated under the MVRA because the lobsters were forfeited to the state. 

Safety valve ineligibility affirmed and thermal imagery warrant held valid

US v. Henry:  Mr. and Mrs. Henry received two convictions related to growing marijuana at their rural West Virginia home. On appeal, they challenged whether there was probable cause to support the issuance of the thermal imaging warrant; whether the district court erred when it granted the government’s motion in limine to exclude testimony that Mr. Henry used marijuana to improve his symptoms from medical illnesses; and whether the district court erred in finding them ineligible for safety valve relief at sentencing.

First, the Henrys argued that the affidavit from the police to the magistrate for the thermal search warrant failed to meet the probable cause standard, as the information to support the application was provided by a cooperating inmate interviewed twenty months before the warrant issued, and two other, unidentified sources. The Fourth Circuit concedes that none of the information provided by the three sources was recent, and any one of the sources considered alone would not have been sufficient information to base the application on; however, taken collectively, the three sources were unrelated and provided consistent information about the marijuana at the Henry residence, or that they had purchased from the couple. The Fourth Circuit held that the affidavit provided a sufficient basis to establish probable cause, and the district court did not err in denying the Henrys’ pre-trial motion to suppress.

Next, with respect to the government’s motion in limine to exclude testimony of the beneficial effect of marijuana on Mr. Henry’s health, the Fourth Circuit held that with the exception of government-approved research projects, medical necessity is not a defense to conduct prohibited by the Controlled Substances Act, including the manufacture and possession of marijuana to distribute. Additionally, as if to put a final nail in this coffin, the Fourth Circuit pointed out that the Supreme Court has explained and Congress has determined that there is no medical benefit from the use of marijuana. Thus, it found that the district court did not err here.

Finally, the district court declined to grant safety valve eligibility to Mr. and Mrs. Henry because it found that they did not provide truthful information to the government concerning their offenses. The safety valve program permits shorter sentences for first-time offenders who would otherwise be subject to a mandatory minimum sentence, provided the defendant can meet the following five requirements: 1) the defendant does not have more than one criminal history point; 2) the defendant did not use violence or weapons in connections with the criminal conduct; 3) the offense did not result in death or bodily harm; 4) the defendant did not have a supervisory or managerial role in the offense; and 5) prior to sentencing, the defendant was truthful in providing evidence and information concerning the offense to the government. The Henrys satisfied the first four prerequisites, but the district court concluded that they were not credible witnesses, as they provided "certain representations" that "were inconsistent with a full and truthful disclosure of all relevant information." The district court’s credibility determinations were accorded "substantial deference" by the Fourth Circuit and it held that the district court did not clearly err in this decision.

Objective test for true threats affirmed

US v. White:  White, leader of a neo-Nazi white supremacist group, received several convictions for threats to injure or intimidate others, and intimidating others to "influence, delay, or prevent the[ir] testimony." White filed a Rule 29 motion for acquittal, which the district court denied; both White and the government appealed aspects of White’s sentencing, in particular the district court’s application of a certain standard in imposing an enhancement for victims’ vulnerability. The Fourth Circuit affirmed White’s convictions, but vacated his sentence, remanding for re-sentencing, because the district court employed an incorrect standard in its analysis of enhancing a defendant’s sentence for the vulnerability of victims.

White argued that his communications were political speech protected by the First Amendment, and that there was no showing made of a specific, subjective intent to threaten, the test adopted by the Ninth Circuit after the Supreme Court’s decision in Virginia v. Black. The Fourth Circuit disagreed with White’s interpretation of the statute and affirmed the district court’s holding that the statute required a showing that the defendant specifically intended to "communicate a threat and not that the defendant specifically intended to threaten the victims," quoting from the Court’s earlier decision of precedent, United States v. Darby. The Fourth Circuit also held that Virginia v. Black was not contrary to its precedent in Darby, such that the Court had to re-examine precedent. The reasonable recipient test from Darby continues to define a true threat.

Alford pleas are adjudications of guilt

US v. King:  The Fourth Circuit affirmed the sentence imposed by the district court in this possession of a firearm by a convicted felon case. The appellant argued the following errors were made: 1) that his prior, South Carolina conviction for pointing and presenting a firearm qualified as a "crime of violence" at sentencing; 2) a prior case in which he entered an Alford plea to involuntary manslaughter was a "prior sentence" under the Guidelines; and 3) the district court did not provide a sufficient explanation for the sentence imposed.

The Fourth Circuit discussed how it employed a "modified categorical approach" that it only uses in a narrow group of cases in which it looks beyond the generic elements of the offense to the specific conduct underlying the prior offense, in order to determine whether the conviction is a "crime of violence." Here, the Fourth Circuit determined that since King’s crime involved his pointing and presenting a firearm in a threatening manner at another person, based on how South Carolina courts interpret the statute under which he was convicted, that his crime qualified as a "crime of violence."

The Third Circuit, in US v. Mackins, provided guidance to the Fourth in determining that convictions resulting from Alford pleas can serve as predicate convictions for the purposes of calculating an individual’s criminal history points. The parties disagreed whether an Alford plea qualifies as an "adjudication of guilt" and the Fourth Circuit concluded that it does because an Alford plea requires a factual basis, and it can only be accepted by the court when the record contains "strong evidence of actual guilt."

Finally, the Fourth Circuit found that the district court was within its discretion when it granted the government’s motion for an upward variance, because the court offered several reasons on the record for its decision, including what it viewed as King’s increasingly violent behavior.

Error in excluding testimony from appellant's mother not harmless

US v. Ibisevic:  Ibisevic was convicted for attempting to leave the United States without reporting some $40,000 in U.S. currency he carried in his luggage. At trial, the district court prohibited his mother from testifying as to Ibisevic’s statements to her at the time of this arrest, which tended to negate a finding of his intent to commit bulk cash smuggling, failing to report the international transportation of currency, and making false statements to authorities. The Fourth Circuit vacated and remanded the district court’s determination that any error it made in prohibiting the admission of Ibisevic’s mother’s testimony at trial was harmless.

According to Ibisevic’s motion for a new trial, which the district court denied, Ibisevic’s mother Rahima would have testified that Ibisevic had told her, immediately upon signing the customs form, that the officers were asking the insurance value of the checked luggage. The district court conceded its error in excluding this testimony; however, it found its error harmless.

The Fourth Circuit used to a three-part test in its analysis of whether the error was harmless from United States v. Ince: 1) the centrality of the issue, 2) the steps taken to mitigate the error, and 3) the closeness of the case. The Fourth Circuit resolved that the excluded testimony went directly to the central issue of this case, Ibisevic’s intent, because Ibisevic’s mother’s testimony was the only evidence that corroborated his claim that he gave truthful answers to customs agents who questioned him. Next, it found that there was no effort made to mitigate the effects of the error. Finally, the Fourth Circuit found that the "closeness" question involved an assessment of whether the evidence was not only sufficient to convict, but whether the evidence was sufficiently powerful in relation to the excluded testimony to ensure the error did not affect the outcome. The Fourth Circuit disagreed with the district court, holding that evidence against Ibisevic was not "overwhelming" and the jury deliberated for more than four hours, so the case was apparently a close one. None of the factors, then, weighed in favor of harmless error.

Great work, FPD in Alexandria!

Valid appeal waiver prevents appeal of Rule 35(b) motion denial

US v. Thornsbury:  In this appeal, the Fourth Circuit determined that the appellant, Thornsbury, waived his right to appeal a district court’s denial of a Rule 35(b) motion filed by the Government to reward his substantial assistance in a separate case (prison assault in which he was the victim). While the district court considered "non-assistance factors" in reaching its decision, the Fourth Circuit did not reach the merits of the district court’s decision; instead, it found dispositive the issue whether Thornsbury waived his right to appeal the denial of the Rule 35(b) motion and dismissed Thornsbury’s appeal.

Thornsbury’s plea agreement contained the following waiver: as long as his sentence fell within the advisory guidelines range, he "knowingly and voluntarily waives his right to seek appellate review of any sentence of imprisonment or fine imposed by the District Court, or the manner in which the sentence was determined, on any other ground whatsoever including any ground set forth in 18 U.S.C. § 3742..."

Thornsbury argued that Rule 35(b) proceedings were not part of the plea agreement, so he could not have intelligently or knowingly waived his rights related to them; and secondly, that his challenge was outside the normal purview of valid appeal waivers. The Fourth Circuit found that to agree with Thornsbury’s arguments would be to undermine the value of appellate waivers. Moreover, Thornsbury’s sentence was not so "illegal," not more than just "touched by a legal error," to warrant disregarding the appellate waiver. Arguments against such "illegal" sentences may include challenging a district court’s exceeding its authority, a district court’s consideration of a constitutionally impermissible factor (e.g., race), or a post-plea violation of the right to counsel.

Supervised release revocation vacated

US v. Doswell:  In this appeal of a supervised release revocation, the Fourth Circuit vacated and remanded a decision based on hearsay evidence relied upon at Doswell’s revocation hearing, a decision which failed to comply with Fed. R. Crim. P. 32.1(b)(2)(C).

"Rule 32.1 (b)(2)(C) specifically requires that prior to the admission of hearsay testimony in the supervised release revocation setting, that the district court must balance the releasee’s interest in confronting adverse witnesses against any proffered good cause for denying such confrontation." While reliability of the evidence remains a critical factor in this balancing test, hearsay evidence of questionable reliability will not provide sufficient basis for denying a releasee the opportunity to cross-examine an adverse witness.

The "questionably reliable" evidence the Government put forth in this case was a chemist’s report on the drug analysis of some seized capsules suspected of containing heroin, though the chemist who authored the report failed twice to appear in state court proceedings to verify the reliability of the report; the state court charge was nol prossed upon the chemist’s failure to appear. Despite that, the Government asserted that this charge alone (notwithstanding Doswell’s other alleged supervised release violations) mandated revocation of Doswell’s supervised release. The Fourth Circuit disagreed, and remanded the case to the district court for proceedings in accordance with this opinion.

Way to go, Baltimore Office of the Federal Public Defender!!

Defendant Fails to Meet Safety Valve Burden

US v. Aidoo: Aidoo was caught at Baltimore-Washington International Airport coming into the country with nearly 1 kilogram of heroin inside him. He made a proffer to investigators about the man who paid him to smuggle the heroin and other aspects of the scheme. Investigators told Aidoo that they did not think he was being truthful. Aidoo pleaded guilty to importing heroin, pursuant to a plea agreement in which the Government noted its intention to argue that Aidoo did not qualify for a "safety valve" reduction at sentencing. Nonetheless, the probation officer in the PSR did award Aidoo a safety valve reduction, to which the Government did not object until its sentencing memo was filed. The resulting advisory Guideline range was 57-71 months (without the safety valve, Aidoo was subject to a 60-month mandatory minimum).

At sentencing, the Government argued that Aidoo had not been truthful with them, particularly in claiming that this was his first time smuggling drugs. In addition, he never identified his contact in the US and his explanation for his extensive overseas travel was not plausible. Aidoo argued he had been truthful, but "counsel presented no evidence to support Aidoo's story." The district court agreed with the Government, concluded Aidoo had not been truthful and therefore did not qualify for the safety valve, and sentenced him to the mandatory minimum of 60 months.

On appeal, Aidoo argued that the district court erred by concluding he did not qualify for the safety valve. The Fourth Circuit disagreed and affirmed his sentence. It noted that the burden of proving safety valve qualification rests with the defendant and rejected Aidoo's argument that because he provided information to the Government the burden shifted to the Government to prove its falsity. Because Aidoo's proffer was so lacking in credibility, no burden shifting occurred. Although Aidoo did provide information to the Government, he did not testify, nor did he introduce documentation or other evidence to support his version of events. Given the evidence in the record, Aidoo had not met his burden. Furthermore, the district court's consideration of the Government's arguments, given its failure to object to the PSR's recommendation until it filed its sentencing memorandum, was not plain error.

Judge Gregory dissented, arguing that Aidoo had met his burden of proof and should have been awarded safety valve status.

Sexual Exploitation Is Continuing Offense, Venue Proper in Multiple Districts

US v. Engle: Engle was sexually involved with two underage girls. One he travelled from Virginia to Pennsylvania in order to have sex with her (he videotaped it). The other he went to South Carolina and brought back with him to Virginia. He was arrested and then communicated with the SC victim several times while incarcerated. As a result, he was charged with sexual exploitation of a minor (as to the PA victim) and three counts of attempted enticement of a minor (as to the SC victim, based on post-arrest communications), in addition to nine counts of witness tampering. He was convicted on those counts and sentenced to 40 years in prison and a lifetime term of supervised release.

On appeal, Engle raised challenges to both his conviction and his sentence. As to his conviction on the sexual exploitation count, Engle argued that venue was improper in EDVA because the actual alleged exploitation occurred in Pennsylvania, not in Virginia (although Engle returned there with the video he made). The Fourth Circuit rejected that argument, concluding first that because Engle's motion to dismiss due to venue was made before trial, it was limited to the facts charged in the indictment (assuming they were true) and the indictment alleged the act occurred in EDVA "and elsewhere." It also concluded that venue was proper because the exploitation charge was both a continuing offense (so it continued when Engle returned to EDVA with the recording) and began before Engle went to Pennsylvania while he was still in Virginia convincing the victim to participate. As to the attempted enticement counts, the court rejected Engle's argument that the evidence was insufficient to support those convictions, concluding that Engle's incarceration, and thus the impossibility of him actually engaging in further sexual activity with the victim, did not prevent him from taking the substantial step needed to support an attempt charge. Finally, as to his sentence Engle argued that he was denied the ability to meaningfully allocute before sentencing, because the district court first indicated what sentence it might impose upon him. Applying plain error review, the Fourth Circuit concluded there was no error, much less a plain one.

Sexual Abuse Convictions Affirmed Over Due Process, Venue Challenges

US v. Holmes: Holmes was accused of sexually abusing his 9-year old step daughter while the family lived in Japan, where Holmes, who was in the Air Force, was stationed, in 1999 and 2002. In 2007, when Holmes returned to Virginia from a deployment in Qatar, he was interviewed by a pair of Air Force investigators about the allegations. Eventually, Holmes admitted the abuse, in some detail.

He was charged in EDVA with two counts of sexual abuse of a minor (a first indictment was dismissed without prejudice and a second indictment sought after Holmes moved to Ilinois and was arrested in North Carolina). That indictment was dismissed based on lack of venue, because of his arrest in North Carolina. Within hours of his release following the dismissal, Holmes was arrested on a fresh criminal complaint (based on the same conduct) and eventually indicted for the third time. Holmes was convicted after a jury trial, at which the district court precluded his presentation of expert testimony about false confessions, and sentenced to 262 months in prison.

On appeal, Holmes raised several arguments attacking his convictions, all of which the Fourth Circuit rejected. First, the court concluded that Holmes's statements to Air Force investigators should have been suppressed because they were given under circumstances that broke his will and rendered the statements involuntary. Holmes was advised of and waived his Miranda rights, there was no indication that the long journey from Qatar (and lack of time to acclimate to being home) led to him giving the statements, and there was no evidence of improper conduct on the investigators' part. Second, the court concluded that venue was proper in EDVA because the relevant "offense" in the analysis was the same for each of the three indictments and the first arrest in Virginia was proper (it's unclear from the record why the first indictment was dismissed). Finally, the court concluded that the district court did not abuse its discretion by excluding Holmes's expert witness because the disclosure of that witness was untimely.

Strict Meaning of "Father" Leads to False Statement Convictions

US v. Sarwari: Sarwari was born in Afghanistan, was given asylum in the United States, and became a citizen in 1998. In 1992 he married and "gave his last name to [his wife] and her four children." She and the children came to the United States in 1999. In 2004, Sarwari prepared passport applications for three of the children, in which he listed himself as their "father." Although Sarwari had birth certificates from the Afghan embassy naming him as the children's' "father," he was not their biological father nor had he legally adopted them. As a result, he was charged with three counts of making a false statement on a passport application. He was convicted on all three counts and sentenced to concurrent terms of 12 months and a day on each.

On appeal, Sarwari raised several challenges to his convictions, all of which the Fourth Circuit turned away. First, it rejected Sarwari's argument that his answers on the forms were "literally true," concluding that in cases such as this one where the terms at issue are ambiguous and subject to different meanings, that defense is not available. Second, it rejected the argument that the term "father" as used on the forms is so ambiguous as to preclude anyone making a false statement. In the formal context of the passport applications, "father" could not be read to include "stepfather." Third, the court rejected Sarwari's argument that the jury should have been instructed about the lack of a statutory definition of "father." Finally, it found that the evidence was sufficient to support the convictions.

922(g)(8) Conviction Survives Scrutiny, But Only One At a Time

US v. Mahin: Mahin was arrested and convicted of assault and battery against a family member, his wife. As part of the plea agreement, a protective order was entered against Mahin for two years during which, he was informed, both state and federal law prohibited him from possessing a firearm. Nonetheless, an hour after the court order was issued, Mahin went to a local gun range, rented a gun and purchased ammunition, shot at the range, then returned the gun. His wife called the police when she found Mahin's membership card for the gun range inside her apartment. He was charged and convicted (after a bench trial) with being in possession of a firearm and ammunition while under a domestic violence protective order. He was sentenced to time served and supervised release.

On appeal, Mahin raised two arguments. First, he argued that the convictions violated his rights under the Second Amendment. The Fourth Circuit rejected that argument, holding both that no court had yet held that citizens had any Second Amendment right outside the home and that, even if Mahin's conduct fell within Second Amendment protections, the statute survives intermediate scrutiny when applied to him (relying largely on its recent decision in Chapman). The specific facts of Mahin's possession did not change that result. Second, Mahin argued that the district court erred by sentencing him on two counts for the simultaneous possession of a firearm and ammunition. The court agreed and, applying plain error review, vacated the ammunition possession count, and remanded to the district court for further proceedings.

Court Affirms Stat Max Sentence for Illegal Reentry

US v. Rivera-Santana: Rivera-Santana was born in Mexico and came to the US as a lawful permanent resident in 1973. Between 1974 and 1983 he was convicted of several minor offenses. In 1988, he was convicted of voluntary manslaughter in the shooting death of his wife. After his sentence was served and he was paroled, Rivera-Santana was deported. Afterwards, he was involved in a cycle of entry into the US/deportation/illegal entry. In 2005, he reentered US and went to Virginia to live with family. While there, he was convicted of sexually assaulting his granddaughter and sentenced to 30 years in prison (all but 82 months suspended). While in state custody, he was charged with illegal reentry in federal court. He entered a guilty plea.

The PSR calculated Rivera-Santana's sentencing range to be 57 to 71 months in prison. However, the Government argued for a variance to the statutory maximum of 240 months in prison. At sentencing, the district court first departed, increasing Rivera-Santana's criminal history category and offense level. However, the court concluded that the resulting range (120 to 150 months) was still not sufficient to achieve the purposes of sentencing. Thus, after weighing the 3553(a) factors, the district court varied up to the statutory maximum and imposed a 240-month sentence because Rivera-Santana was a "menace" and "a proven danger to the public" and "in short, an anathema to society."

Rivera-Santana appealed, arguing that his sentence was both procedurally and substantively unreasonable. The Fourth Circuit turned away those challenges. Starting with the procedural challenges, the court first concluded that there was no procedural error in the district court's departures after the application of the illegal reentry Guideline's 16-level enhancement due to Rivera-Santana's prior convictions. Second, the court concluded that, while neither of the upward departures appeared to be improper, any error was harmless due to the district court's eventual variance. Third, the court concluded that the district court did not err by failing to proceed level-by-level during the departure process, noting that the district court nonetheless "employed a well reasoned process." Finally, as to the procedural issues, the court concluded that the district court did consider the mitigating factors presented at sentencing, but found them "entirely insufficient to outweigh the aggravating factors." As to the substantive reasonableness of the sentence, the court concluded that, in spite of the scope of the variance, it was based on a detailed individualized analysis of the 3553(a) factors and therefore was not unreasonable, in light of those factors.

Honest-services fraud convictions reversed

US v. Hornsby:   In this appeal, the CEO of Prince George’s County Public Schools challenged his convictions for honest-services fraud, tampering with evidence, and obstruction of justice, for his involvement in securing two public contracts for school products and services. The Fourth Circuit reversed Andre Hornsby’s convictions for honest-services fraud, and affirmed the obstruction of justice and tampering with evidence convictions. Hornsby’s case was remanded to the district court in Maryland for re-sentencing in accordance with this opinion.

The Fourth Circuit reversed the honest-services fraud convictions because the district court erroneously instructed the jury, in a way the Fourth Circuit found was not harmless, that the jury could convict Hornsby for honest-services fraud based on a conflict of interest.

922(g)(1) upheld as constitutionally valid

US v. Moore:  Not to be outdone by other circuits who have already published on this issue, the Fourth Circuit holds that § 922(g)(1) passes constitutional muster. This statute prohibits formerly convicted felons from possessing firearms.  Police had arrested Moore for an outstanding warrant, and while searching him incident to the arrest, officers discovered on him a handgun and ammunition.  Moore had prior felony convictions for several offenses. 

Because Moore could not distinguish his circumstances from those of other felons who have been traditionally barred from Second Amendment protections, the Fourth Circuit found the statute constitutional as applied to him. In fact, the Fourth Circuit found that Moore’s criminal history (three prior felony convictions for common law robbery and two prior convictions for assault with a deadly weapon on a government official) "clearly demonstrate that is a far from a law-abiding, responsible citizen."

The Fourth Circuit did throw Moore a bone, albeit a small one, when it vacated the order requiring him to pay his court-appointed attorneys’ fees. It was not disputed that Moore was indigent and qualified for a court appointed attorney under the Criminal Justice Act. Additionally, the district court failed to make the necessary findings to support an order of reimbursement, in error. The Fourth Circuit left open the issue of whether it could impose payment of fees at a later date, such as when Moore went on supervised release, i.e., as a condition of release; the Court limited its holding to whether the district court erred in failing to make the statutorily mandated factual finding that "funds were available" for repayment.

Criminal acts after illegal search not intervening event

US v. Gaines:  The government appealed a district court’s decision to grant a motion to suppress in this case, in which the district court held that a gun found on a passenger in a vehicle illegally stopped by the police should be suppressed as fruit of the poisonous tree. Gaines was a passenger in a vehicle stopped by police who testified they observed a crack in the rear windshield the vehicle from across an intersection and through a tinted window. The district court did not find the police officers’ testimony credible, and determined that the stop in this case was supported by reasonable suspicion and was unlawful.

The government appealed under an attenuation doctrine theory, in which an assault on the police officers by the defendant after the police located a gun on the defendant served as an intervening event, purging the taint of the initial illegal stop. This government theory relied heavily upon the Fourth Circuit’s decision in U.S. v. Sprinkle, in which the Fourth Circuit recognized that it has "strong policy reason for holding that a new and distinct crime, even if triggered by an illegal stop, is a sufficient intervening event to provide independent grounds for arrest."

Here, however, the Fourth Circuit disagreed with the government’s application of Sprinkle to the facts in Gaines’ case, as the attenuation doctrine placed greatest legal importance and emphasis on the discovery of the evidence, rather than the seizure of evidence. The Fourth Circuit agreed with the district court, finding that Gaines’ illegal conduct occurred after the police had located the gun in his waistband. Thus, because the gun was located prior to any criminal act by Gaines, his criminal act did not serve as an intervening event for purposes of the attenuation doctrine.

Way to go, FPD in MD!

Assault convictions affirmed

US v. Thomas:   In this appeal, a federal inmate challenged his convictions stemming from the assault of a female corrections officer at U.S.P. Hazelton. The Fourth Circuit affirmed the district court.

First, the indictment contained two plain errors, which the government conceded, that count one failed to allege an intent to commit another felony as required under 18 U.S.C. § 111(a) and that count two failed to allege infliction of bodily injury as required under 18 U.S.C. § 111(b). The government contended that while these defects were plain error, they did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings," and the Fourth Circuit agreed, finding that the prison guards’ testimony at trial satisfied the elements missing from the indictment.

Next, the appellant argued that the indictment was "multiplicitous," in that a single offense was charged in two counts in the indictment. The appellant relied on the Supreme Court’s decision in Ladner v. U.S., from 1958, in which the Court held that a single shot fired at multiple officers constituted a single offense. According to the Fourth Circuit, courts have applied Ladner in situations where there is more than one act resulting in assaults, not whether more than one federal officer is injured by the same act. Here, the district court determined, and the Fourth Circuit agreed, that Thomas committed two separate acts, the verbal threats and a punch to the guard’s face; thus, the indictment was not found to be multiplicitous.

Additionally, the appellant argued that the district court improperly sustained hearsay objections to his testimony, thereby denying him the ability to adequately present his defense. The appellant stated that the intended purpose of the statements in question went to his state of mind, not to prove the truth of the matter. The Fourth Circuit disagreed, and found that the statements were properly excluded because they were irrelevant and bore no relation to whether he committed the charged offense.

Two five-level enhancements approved

US v. Strieper:   At Strieper’s sentencing for attempted enticement, receipt of child porn, and possession of child porn, the district court applied two different five-level enhancements under U.S.S.G. §2G2.2(b)(5), the first for engaging in a pattern of sexual abuse or exploitation of a minor, and the second for distribution of child pornography for receipt of a thing of value. On appeal, the Fourth Circuit considered the propriety of these enhancements, and affirmed the district court’s judgment.

The Sentencing Guidelines permit a five-level enhancement for a "pattern of activity involving the sexual abuse or exploitation of a minor." A "pattern of activity" consists of two or more separate instances of such conduct. A "minor" may include unidentified children, as application of the enhancement indicates a focus on the danger a defendant would pose if given the opportunity to carry out his plans, rather than on the whether a defendant actually has exposed a child to direct harm. Here, one of the bases for the enhancement included Strieper’s communication with "Stu," a confidential source from the U.S. Department of Homeland Security. Strieper argued unsuccessfully that his attempt to entice Stu does not qualify for the enhancement because the definition of "minor" required a specific victim, a requirement that the Fourth Circuit rejected.

At his sentencing, Strieper did not object to the second five-level enhancement, for distribution of child porn for the receipt of a thing of value, so the Fourth Circuit reviewed this enhancement for plain error only. The district court applied this enhancement because Strieper used a peer-to-peer file-sharing network; prior to this decision, the Fourth Circuit had previously upheld a two-level enhancement for sharing child pornography files via such a network, but it had not yet addressed the question of whether a five-level enhancement for sharing files this way was appropriate.

The Fourth Circuit followed the reasoning of the Eighth Circuit, which held that a five-level enhancement for file sharing on a peer-to-peer network, e.g. Limewire, is appropriate because these networks exist for the purpose of sharing, exchanging, or trading files with other users (as opposed to the Tenth Circuit’s position, which holds that the enhancement does not always apply to peer-to-peer file sharing network users, because defendants do not always use these networks with the expectation of receiving other users’ files in return). The Fourth Circuit found that no error had been committed in the application of this enhancement.

Gun violence and drug use - connection?

US v. Carter:   In this appeal, Benjamin Carter raised the issue of the constitutionality of his conviction under 18 U.S.C. § 922(g)(3), which prohibits persons who currently and unlawfully use or become addicted to any controlled substantive (in this case, marijuana) from possessing a firearm. In an opinion in which the Fourth Circuit informed the government not once, but twice, exactly what evidence it could have but chose not to present in order to win, the Fourth Circuit vacated the conviction, finding that the government failed to make the record to substantiate the fit between disarming drug users and its means of accomplishing this goal.

On appeal, the government contended that unlawful drug users deserve no Second Amendment protections whatsoever. The government bore the burden of showing that the statute’s limited imposition on an individual’s Second Amendment rights (unlike other parts of § 922(g) in which an individual receives a permanent disarmament, the statutory provision in this case only applies to person currently using and/or abusing illegal drugs and only temporarily prohibits their possession of guns: once the drug use ends, gun possession can ostensibly occur), advanced the goal of preventing gun violence. The government staked its success here, not on any academic research or empirical data, but by simply asserting that common sense justified taking guns away from drug users, and that addicts are sufficiently dangerous to require disarming them.

The Fourth Circuit joined its sister circuits in concluding that intermediate scrutiny applies to a review of the enforcement of § 922(g)(3), and any other subsection of § 922(g). Under intermediate scrutiny, the government must establish a reasonable fit between the statute in question and a substantial governmental objective, e.g. ending gun violence associated with drug use. Carter argued that as applied to him, the statute does not substantially further the government’s interest without excessively intruding upon his Second Amendment rights. While the Fourth Circuit did not outright disagree with Carter by concluding that Congress had an important objective for enacting the statute here, it did find that the government did not give the court sufficient evidence to substantiate the fit.

Congrats to the FPD in the southern district of WV for the win!

When unidentified witnesses may be okay

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

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

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

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

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

Selective prosecution claim fails

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

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

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

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

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

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

4th Circuit abstains from intervening in court martial proceeding

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

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

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

Revocation of supervised release not equal to termination of the release

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

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

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

Career offender enhancement principles warrant remand

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

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

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

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

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

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

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

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

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

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

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

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

Knife Removal of Baggie from Penis Violates Fouth Amendment

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

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

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

Congrats to the FPD office in Maryland on the win!

Producing False ID Convicion Affirmed

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

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

Court's Guideline Findings Not Clear Enough for Review

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

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

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

Congrats to the WDVA FPD office on the win!

No Crawford Issue With Supervisor Testimony About DNA

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

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

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

Leon Saves Search Warrant Without Nexus Between Suspect, Home

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

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

Terry-like Scenario Produces Terry-like Result

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

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

Command While Using Gun Supports "Physical Restraint" Enhancement

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

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

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

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

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

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

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

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

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

Detention of Defendant Away from Home Being Searched OK'd

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

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

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

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

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

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

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

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

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

Criminal forfeiture of assets affirmed

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

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

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

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

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

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

Common sense in ACCA cases?

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

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

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