No coram nobis for Skilling Error

Bereano v. US: Bereano was charged in 1994 with multiple counts of mail fraud stemming from practices at his law firm and lobbying firm.  At the time, jurors were instructed that he could be convicted under either the "pecuniary fraud" theory or the "honest services fraud" theory.  Their verdict, finding him guilty on seven counts, did not specify which theory the jury relied on for each count.  Bereano's convictions were affirmed on appeal and he "has long since served his sentence and paid his fine."  In 2011, Bereano filed a petition for a writ of coram nobis, arguing that his convictions should be vacated in light of the Supreme Court's Skilling decision in 2010, in which the Court held that the "honest services fraud" theory was limited to schemes involving bribery and kickbacks.  The district court denied Bereano's petition, concluding that any error was harmless beyond a reasonable doubt because Bereano was charged under both theories.

On appeal, the Fourth Circuit affirmed the district court's dismissal.  Analyzing whether the Skilling error was "of the most fundamental character," the court looked to whether Bereano would have prevailed on a direct appeal of his convictions if the appeal occurred after Skilling had been decided.  Although a verdict resting on multiple theories should be set aside when one theory is no longer valid and it is impossible to tell upon which theory the jury relied, harmless error analysis still applies.  Particularly, the court looks to determine the evidence credited by the jury and whether that evidence would support a conviction on the legally valid theory.  Applying that analysis, the court concluded that the Government at Bereano's trial "presented overwhelming evidence that he schemed to commit pecuniary fraud."  Thus, the error was harmless and the district court correctly dismissed Bereano's petition for a writ of coram nobis.

Recorded Lunch Conversation Poses No Sixth, Fifth Amendment Problems

US v. Williamson: Williamson was charged in an indictment with conspiracy to distribute more than five kilograms of cocaine.  Following the indictment, but prior to Williamson's arrest, one of his associates, Alberty, contacted investigators offering to cooperate.  Agents sent Alberty to a previously scheduled lunch meeting with Williamson and recorded their conversation.  Williamson was arrested months later.  At trial, the Government introduced the recording as evidence (in addition to the testimony of two codefendants and three other coconspirators) and Williamson was convicted.  He was sentenced to life in prison.

Williamson's conviction and sentence were initially affirmed on appeal when the Fourth Circuit found that it was not plain error to introduce the recorded conversation, even though it was made without counsel present following the return of an indictment.  However, when Williamson sought cert from the Supreme Court, the Government shifted gears and admitted it was plain error, although one that should not be noticed.  The Supreme Court remanded.  The Fourth Circuit than held that issue in abeyance and remanded to the district court for consideration of whether the use of the recorded conversation violated the Fifth Amendment as well.  The district court found no problem, holding that Williamson's statement was given voluntarily.  Along the way, Williamson filed a motion for a new trial based on newly discovered evidence, which the district court denied without appointed counsel.

The Fourth Circuit dealt with all three issues - the Sixth Amendment, due process, and new trial - in a single consolidated appeal, in which it again affirmed Williamson's conviction and sentence.  On the Sixth Amendment issue (the "most enduring issue," according to the court), the court accepted the Government's confessing that the use of the recording was error and that it was plain, but concluded that it did not affect Williamson's substantial rights by altering the outcome of the trial.  The court cataloged the other evidence against Williamson and concluded that while the conversation was "surely damaging, Williamson has not shown that its absence would alter the outcome of his trial."  On the Fifth Amendment issue, the court concluded that Williamson's statement was not the product of compulsion or coercion, noting that Williamson was unaware that Alberty was working with law enforcement and that Alberty's only instructions were to "put on a wire and have lunch."  Finally, on the motion for a new trial issue, the court concluded that Williamson's motion, filed while appellate proceeding were underway, was a collateral proceeding at which he had no right to counsel.  Therefore, it affirmed the district court's dismissal.

No 1st Amendment or common law right to access documents

In re:  Application of the United States of America for an Order Pursuant to 18 U.S.C. Sect. 2703(d), US v. Appelbaum, et al.:  In this case, the Fourth Circuit considers orders issued by a magistrate judge under the Stored Communications Act ("SCA"), 18 U.S.C. § 2703, requested by the Government, directed to Twitter, Inc., to disclose records of electronic communications relevant to the ongoing criminal investigation surrounding Wikileaks.org and U.S. Army Private First Class Bradley E. Manning. Specifically, the Government requested records of Defendants Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir, including their names, usernames, personal contact information, account information, connection records, length of service, direct messages to and from email addresses and IP addresses for all communications between November 2009 and December 2010.

The Twitter Order was originally sealed to keep the criminal investigation private, but upon the Government’s motion in January 2011, the magistrate court unsealed the documents, allowing Twitter to alert its subscribers to the existence of the Order. The defendants/subscribers then petitioned the court to vacate the Twitter Order, and unseal any other similar orders that may have been issued to other companies. The magistrate court issued a memorandum opinion and order denying the motion to vacate and partially granting the motion to unseal, determining that there was no First Amendment right to access the Government’s Twitter application, and the other § 2703(d) Orders and their applications. The defendants filed objections to the magistrate court’s decisions, and the district court affirmed; defendant then filed an appeal to the Fourth Circuit.

On appeal, the Fourth Circuit first determined that a common law right to access attaches to the documents here. Next, it articulated the standard for determining whether the First Amendment might provide a right to access orders issued under the SCA as the "experience and logic" test: 1) whether the place and process have historically been open to the press and general public; and 2) whether public access plays a significant positive role in the functioning of the particular process in question. The Fourth Circuit held that the latter prong, the "logic" one was not met here, as "secrecy is necessary for the proper functioning of criminal investigations at this § 2703(d) phase, openness will frustrate the government’s operations." So, no First Amendment right to access the documents in question. Similarly, the Fourth Circuit held that the common law right to access the documents was not insurmountable because this presumption may be outweighed when the Government’s interest in continued sealing of documents due to publicity surrounding the Wikileaks investigation does not justify the unsealing of relevant records.

A favorable gun price?

US v. Abramski:  Bruce Abramski made a straw purchase of a Glock 19 handgun in Virginia for his uncle in Pennsylvania during November 2009. As a former police officer, Abramski believed he could obtain a more "favorable price" from a local firearms dealer than his uncle could likely receive. Abramski purportedly discussed with three federally licensed firearms dealers a legal means of conducting the transaction, and the advice he received lead him to believe that a licensed dealer in Pennsylvania could complete a legal transfer to his uncle after Abramski purchased the gun in Virginia. Three days separated Abramski’s purchase of the handgun from the transfer of the firearm to his uncle at a PA licensed federal firearms dealer. Abramski conducted this transaction despite the fact that his uncle could have legally purchased such a firearm himself, had the uncle chosen to do so.

Executing a straw purchase, however, is not a legal enterprise; the ATF form Abramski completed at the time of his purchase included several questions about the purchase of firearms, including special warnings about acquiring guns on behalf of another person. Abramski, in answering these questions, reported that he was the actual buyer, despite his plan to transfer the gun to his uncle in three days. The ATF discovered Abramski’s gun purchasing scheme, after the FBI obtained a search warrant for Abramski’s residences in the course of a bank robbery investigation (Abramski was never charged federally, and the state charges against him were dismissed). The search of one of the two homes revealed the receipt for the transfer to Abramski’s uncle of the Glock 19 handgun.

On appeal, Abramski challenged the denial of his motion to dismiss the indictment, arguing that a circuit split existed as to whether his transfer of the firearm to his uncle, who was eligible to purchase a firearm, could be considered a straw purchase. The Fourth Circuit disagreed with Abramski, and held with the Sixth and Eleventh Circuits, that the identity of the purchaser is material to the lawfulness of the acquisition by Abramski, and he made a false statement to the gun dealer in VA when he stated he was the actual buyer, as the transfer to his uncle was not an "afterthought." Abramski also challenged the denial of his motion to suppress evidence found pursuant to warrant at his home while police investigated the bank robbery. The Fourth Circuit found that the warrant was supported by adequate probable cause.

Effect of alterations to indictment during trial

US v. Allmendinger:   Christian Allmendinger and a business partner formed a company, "A & O," in late 2004 in order to sell interests in life insurance policies. Over the course of the next few years, A & O added another partner, amassed approximately 800 investors, and earned millions of dollars. Unfortunately, the three men misappropriated client funds, used fraudulent marketing materials, and lied about the company’s size, staff, and earnings. In 2006, regulators from several states became concerned about A & O’s investment products, and the three men decided to sell the company, though only Allmendinger actually sold his interest and left A & O (the other two men had secretly agreed to buy A & O and continue running it under a new name). In early 2010, Allmendinger received word from federal investigators that he would be indicted along with his former partners for his part in A & O’s fraudulent investment scheme. Allmendinger did not cooperate with investigators and opted instead to go to trial where he was convicted on seven counts and received a 540-month sentence.

On appeal, Allmendinger claimed the district court violated his Fifth Amendment rights by altering the indictment, to omit allegations of conduct that occurred after Allmendinger sold his interest and left the company. Also, the district court re-drafted other language in the indictment to reflect the shorter duration of Allmendinger’s participation in the conspiracy alleged.

According to Fourth Circuit precedent, a fatal variance or constructive amendment, can occur when the government or the district court "broadens the bases for conviction beyond those charged in the indictment," and when "the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment." Under the Fifth Amendment, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..."

A defendant’s Fifth Amendment rights are compromised if a variance creates surprise at trial, hinders the preparation of a defense, or exposes a defendant to the danger of double jeopardy. According to the Fourth Circuit here, though, the variance that occurred was not a fatal variance, but a mere, or non-fatal, variance, because the changes made to the indictment did not change the crime charged or broaden the bases for conviction. Here, the government proved a more narrow conspiracy, but that conspiracy had the same purpose and premises as the fraud alleged in the indictment. The Fourth Circuit held that this narrowing created, at most, a non-fatal variance, and Allmendinger’s constitutional rights were not abridged.

Multiple motives for preventing witness testimony expand the forfeiture-by-wrongdoing exception

US v. Jackson:  After a jury trial, Antwan Jackson received convictions for the murder of Johnell Greene, as well as various firearms and drug offenses related to his role in a drug distribution conspiracy. In March 2006, Mr. Greene had interfered with Jackson’s drug activities, by robbing an associate of Jackson’s, Garian Washington, of drugs and money. Mr. Greene managed to escape one shooting attempt by Mr. Washington, after which attempt, Mr. Greene cooperated with police while he was incarcerated on unrelated charges, implicating Washington and Jackson in his attempted shooting. Shortly after his release from jail, Mr. Greene was shot multiple times and died after an attack by a masked assailant. Jackson purportedly made statements to the effect that he believed Mr. Greene had "deserved" to be killed.

Approximately one year later, a grand jury indicted Jackson and three other individuals for their participation in a separate crack cocaine operation. Jackson pleaded guilty to these offenses, and received an 87-month sentence. While imprisoned for these offenses, Jackson received an indictment for Mr. Greene’s murder, some prior drug activity, and for persuading a former associate to provide Jackson with a false alibi to law enforcement during an investigation of Mr. Greene’s death.

Before Jackson’s trial, the government moved to admit Mr. Greene’s written statements to police which implicated Jackson. The government argued that Jackson had waived his right to confront Mr. Greene’s out-of-court statements by killing him, "at least in part," to prevent him from testifying against Jackson. In response, Jackson argued that his intent to prevent Mr. Greene from testifying must be unqualified in order to trigger the forfeiture-by-wrongdoing exception to the Confrontation Clause, and thus permit the admission of Mr. Greene’s statements to police at Jackson’s trial. The district court disagreed, admitted the statements, and a jury found Jackson guilty on all counts.

On appeal to the Fourth Circuit, Jackson contended that the forfeiture-by-wrongdoing exception (a common law doctrine which permits the admission of testimonial statements where the defendant had acted to prevent the witness’s ability to testify) required that a defendant make a witness unavailable with the SOLE motivation of preventing the witness from testifying. The Fourth Circuit disagreed, and declined to "provide criminal defendants with an opportunity to avoid the exception by adducing some additional motive for their misconduct." As long as the defendant intended, according to the Fourth Circuit’s holding, to prevent a witness from testifying, the exception will apply even if the defendant had other motivations for harming a witness.

Can reasonable suspicion arise in 5-10 seconds?

US v. Bumpers:   According to his testimony, a police officer in a high crime neighborhood observed two men, standing, for approximately five to ten seconds near some dumpsters at the back of local convenience store before attempting to leave at the sight of the police, when that officer determined that reasonable suspicion for the crime of trespassing had arisen. Additionally, the store had posted "No Trespassing" signs and alerted the police to enforce the store’s no trespassing policy.

Irvin Bumpers initially gave the police a false first name when asked for his identification by police; that name had an active warrant, so he gave his actual first name, which also returned an active warrant. Upon arrest, the police discovered a firearm on Bumpers. Prior to trial, Bumpers moved to suppress the firearm, but failed in his efforts. He was convicted at trial of being a felon in possession.

On appeal, the Fourth Circuit reviewed the district court’s decision to deny the motion to suppress. It referred to this case as a close call, but because only an investigative stop was at issue, not a frisk or an arrest the Fourth Circuit found there was sufficient reasonable suspicion based on the facts of this case. The cogent dissent finds otherwise, stating that "[p]ermitting a Terry stop under these tenuous circumstances fails to prevent a substantial portion of innocent travelers in high-crime areas from being subjected to what the majority concedes can be a degrading and unwarranted intrusion."

Bank teller's questioning held unnecessarily suggestive, should not have been admitted, though did not affect robbery defendant's substantial rights

US v. Greene:  Deshawn Greene received convictions for armed bank robbery and brandishing a firearm during and in relation to a crime of violence, and he appealed his convictions on two grounds: 1) whether the district court erred in admitting a bank teller’s testimony; and 2) whether the district court erred in failing to provide a Holley-Telfaire instruction to the jury.  Regarding both issues, the Fourth Circuit conducted plain error review, as defense counsel did not object at trial to the identification testimony from the bank teller, or the lack of Holley-Telfaire instruction.  The Fourth Circuit, though it was a close case on the first issue, ultimately affirmed the convictions.

First, the bank teller’s questioning consisted of the prosecutor drawing the teller’s attention directly to Greene at trial, and instructing to the her to tell the jury what similarities existed between Greene and the bank robber.  The district court permitted this identification testimony.  In contrast, the Fourth Circuit found this questioning unnecessarily suggestive, exactly the sort of questioning it had previously warned against, where the phrasing of the question suggests the desired response.

The Fourth Circuit next considered whether the teller’s testimony was reliable, and after analyzing the five factors for reliability, found that it was not: the teller’s attention at the time of the offense was greatly diminished due to her fear and having a gun pointed at her head, she did not state that the defendant was the bank robber, and seventeen months had passed between the robbery and trial, and she was not asked once during that time to view a line-up, photo array, or assist a police artist in sketching the suspect.  Since the questioning was overly suggestive, and the teller’s testimony was unreliable, the Fourth Circuit found it was plain error by the district court to admit this testimony.

The admission of the bank teller’s testimony, however, did not affect Greene’s substantial rights, according to the Fourth Circuit, as Greene’s accomplice testified directly to Greene’s involvement in the robbery.  Lear, a known crack addict, had been subjected to “piercing” cross examination, and the jury was apparently aware of any credibility issues he may have presented.  The Fourth Circuit declined to grant Greene relief on the basis of plain error.

Second, Greene argued that the district court erred in failing to issue a Holley-Telfaire instruction to the jury.  This instruction advises the jury on how to appraise a witness’s identification testimony, and the defense did not request this instruction at trial.  The Fourth Circuit held that this instruction was not required as there was independent evidence (i.e., Lear’s testimony) that Greene participated in the robbery.

Second conviction upheld despite Simmons

US v. Ford:   Here, the Fourth Circuit considers the second conviction of Harold Ford for being a felon in possession of a firearm.  Originally convicted for this offense in 2009, Ford’s conviction was reversed and remanded following his trial, due to a change in the law arising from United State v. Simmons from 2011.  Upon remand, the district court convicted Ford a second time, and he appealed on double jeopardy grounds, but the Fourth Circuit found no error in his second conviction. 

In his first conviction for this offense, the government introduced evidence of Ford’s earlier state conviction for felony PWID marijuana, for which Ford received an 8-10 month prison sentence.  With his prior criminal record, Ford could not have been sentenced to more than 12 months for the marijuana offense, even though someone with a more serious criminal history could have been sentenced for the same offense to up to 15 months (under North Carolina’s structured sentencing laws then in effect).    Ford appealed, and the Fourth Circuit held his appeal in abeyance pending Simmons.  Following Simmons, the Fourth Circuit reversed Ford’s conviction and remanded the case; however, in Ford’s second trial, the government introduced additional previous convictions of Ford’s, each of which was for a crime “indisputably” punishable by more than one year in prison (aggravated assault and assault with a deadly weapon inflicting serious injury from 1973, and selling controlled substances and possession with intent to sell and deliver a controlled substance from 1983). 

The Fourth Circuit has held that the Double Jeopardy Clause “forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding,” but, the Double Jeopardy Clause “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside…because of some error in the proceedings leading to conviction.”  Moreover, it has held that when a conviction is reversed because of a post-trial changed in the law, a second trial is permitted. 

Fictional crime leads to real life convictions

US v. Min, et al.: Saraeun Min participated with several others in a conspiracy to steal drugs from the stash house of a drug cartel in Virginia.  Little did the members of the conspiracy realize, the drugs and stash house were fictions developed by the ATF to trap Min’s co-defendant Phun and his crew.  When the police revealed themselves to the crew, most of whom had gathered, ready to participate in the robbery, only Min waived his Miranda rights and confessed to the police officers his involvement in the conspiracy.

At trial, each of the other members of the conspiracy desired to have their joint trial severed from Min’s.  The Fourth Circuit has held admissible a co-defendant’s redacted statement that referred to the existence of another person through neutral phrases, e.g. “another person,” or “another individual.”  The district court determined that Min’s redacted confession did not implicate any one defendant in particular, nor did it leave the jury to fill in any obvious blanks:  it did not facially incriminate any other defendant.  The Fourth Circuit held that the district court did not abuse its discretion in denying the defendants’ motion to sever. 

On appeal, the defendants also made an impossibility argument, that the fictional nature of the premise of the stash house robbery should be a defense to their conspiracy charges, rendering the evidence against them insufficient.  The district court declined to permit the defendants from arguing impossibility during closing argument, and they challenge the exclusion of impossibility from the jury instructions.  The Fourth Circuit concluded here that factual impossibility is not a defense to conspiracy.

Additionally, defendants argued that the district court erred in permitting one of the case detectives to testify at trial about a conversation between the detective and Phun, the crew leader.  The detective testified as to what he personally understood Phun meant in the conversation, which the Fourth Circuit decided was rationally based on the detective’s knowledge, the context, and the detective’s past conversations with Phun, meeting the requirements of Federal Rule of Evidence 701 on lay witness opinion testimony.  The Fourth Circuit held that the district court properly admitted this testimony.

Finally, the district court corrected an error in the verdict form during the jury’s deliberation, and Phun argued that this constituted reversible error, improperly influencing the jury.  The Fourth Circuit determined that the defendants could not identify how the jury had been improperly influenced by the correction of a typo, and that if any error did occur, it was harmless.  The district court’s judgment was affirmed. 

Mandate Rule prevents district court from considering restitution award in case on remand

US v. Pileggi:   In this appeal, the Fourth Circuit considers whether the district court had the authority to reconsider a restitution award in a remanded case.  Previously, in a companion, unpublished opinion, the Fourth Circuit determined that the district court erred in sentencing the defendant, Giuseppe Pileggi, to 50 years of imprisonment for his role in a fraudulent sweepstakes scheme.   The Fourth Circuit here determined that the district court lacked authority to reconsider the amount of restitution on remand, and reinstated the district court’s original restitution amount ($4,274,078.40). 

Pileggi argued that the Fourth Circuit’s mandate to the district court remanded the case solely to correct the prison sentence (the district court reduced the 50-year sentence to 25 years) that allegedly violated the extradition agreement the government made with Costa Rica, where the sweepstakes scheme was operated; the restitution amount was not addressed in the direct appeal.   The Fourth Circuit “unhesitatingly conclude[d]” that the mandate rule barred the district court from reconsidering the restitution order on remand. 

Convenience store clerk's arrest held unlawful

US v. Watson:   Prentiss Watson worked at a convenience store in downtown Baltimore, downstairs in the same building where he rented a room. In February 2010, detectives conducting surveillance on the building observed some other individuals engaging in drug transactions near the building on Tivoly Avenue, and arrested them. One of these individuals, Anthony Jackson, the police had observed entering and exiting the building where Prentiss worked, during the course of a drug transaction. Additionally, officers had reason to believe Mr. Jackson was carrying a gun at the time of this transaction. After arresting Jackson, police obtained a search warrant for the entire building. Officers entered the building to secure it and all individuals inside, including Mr. Watson. The detention of Mr. Watson and Keta Steele, owner of the store, neither of whom had been observed engaging in the drug transactions, lasted over three hours, and they were forced to remain in a back area of the store while police obtained their warrant. Upon execution of the warrant, a revolver and some ammunition was found on the same floor as Mr. Watson’s room, but in a separate area from Mr. Watson’s room and belongings. Police questioned Mr. Watson about the revolver, and he made the incriminating statement, "that old thing, it doesn’t even work."


The government charged Mr. Watson with being a felon in possession of a firearm and ammunition. Mr. Watson moved to suppress his statement on Fourth Amendment grounds and failed in his efforts. Mr. Watson went to trial and a jury convicted him on both counts. On appeal, the Fourth Circuit vacated Mr. Watson’s conviction, finding that on the unique facts presented here, that the police seizure of Mr. Watson violated his Fourth Amendment rights. In conducting its reasonableness review, the Fourth Circuit ultimately determined that the seizure was illegal, and Mr. Watson’s incriminating statement should have been suppressed. The government conceded that Mr. Watson was "seized," and that there was no probable cause to detain him. The Fourth Circuit considered the governmental objectives, i.e. preserving evidence and officer safety, and the Fourth Circuit determined that neither interest was implicated here to justify the unlawful custodial arrest that occurred. The length of the detention here seemed downplayed as a basis for finding the seizure illegal; rather, the fact that there was no probable cause for the detention, and no link between Mr. Watson and the criminal activity observed by the police that aided Mr. Watson in his appeal.

$100 Robbery Sufficient to Sustain Hobbs Act Conviction

US v. Tillery: A man with a gun robbed a dry cleaner's in Petersburg, Virginia, taking a small amount of cash and the clerk's laptop.  After he left, the clerk ran to the barbershop next door for help.  Later that month, someone came to the barber shop and sold the owner a laptop, which turned out to be the one taken from the clerk.  The owner identified Tillery from a photo array as the one who sold him the laptop.  The clerk then identified Tillery as the man who committed the robbery.  A few months later, an officer recovered two shotguns from an abandoned motel, next to a motel where Tillery lived at the time of the robbery.   Tillery was in jail at the time and described the robbery and where he kept his guns to his cellmate in "shocking detail."  He was charged and convicted of a Hobbs Act robbery and brandishing a firearm in connection with a crime of violence, then sentenced to a combined term of 360 months in prison.

On appeal, Tillery challenged both his convictions and sentence, all of which the Fourth Circuit affirmed.  First, Tillery argued that the robbery did not meet the Hobbs Act threshold of having a "minimal effect" on interstate commerce, because it only resulted in the theft of $100.  The court disagreed, noting that a robbery has a "minimal effect" if it depletes the assets of an inherently economic enterprise and that in making that determination it is not the individual act that matter, but rather the "relevant class of actions" and the impact they have on interstate commerce.  The robbery in this case met that burden.  Second, Tillery argued that the evidence was insufficient to convict him on either count.  The court disagreed, concluding that there was ample evidence aside from the clerk's identification of him as the robber (including the "damning testimony" of his cellmate) to support a conviction.  Finally, Tillery argued that he was improperly classified as a career offender because a prior conviction for eluding police was not a "crime of violence."  The court disagreed, noting that it had previously held that any "intentional vehicular flight" is a violent felony.

Jurisidction Proper In Virginia for Theft Comitted in US Embassy in Iraq

US v. Ayesh: Ayesh, who lived in Jordan, was hired to oversee shipping and customs at the US Embassy in Baghdad.  In that role, he created a scheme that allowed him to funnel funds from vendors to his wife's bank account in Jordan.  He kept the various instruments needed to run the scheme in his apartment in the Embassy.  Ayesh was arrested at Dulles when he came for a training seminar (which was just a ruse to get him in the country).  He was charged with two counts of theft of public money and one count of committing acts affecting a personal financial interest.  He was convicted on all counts and sentenced to 42 months in prison.

On appeal, Ayesh raised three challenges to his convictions, all of which the Fourth Circuit rejected.  First, he argued that the district court in Virginia lacked jurisdiction over him given that his conduct took place in Iraq and Jordan.  The court disagreed, holding that, although the statutes involved do not specifically apply to conduct that occurs overseas, they were enacted out of the right of the Government to defend itself from fraud and do not require such a specific jurisdictional nexus.  The court also concluded that the prosecution comported with international law and due process, as Ayesh had been told as part of his employment that he was subject to the laws of the United States.  Second, Ayesh argued that his post-arrest statements should have been suppressed because they came during a lengthy interview conducted after a 19-hour flight and had been coerced.  The court disagreed, concluding that Ayesh was given Miranda warnings, was fluent in English, and "asked good questions and spoke confidently on his own behalf."  Finally, Ayesh argued that there was insufficient evidence to support the two theft of public money counts.  The court concluded there was sufficient evidence from which the jury could find intent to deprive the United States of the use or benefit of the money involved.

Tardy Expert Testimony Not Error, Nor Harmless, In DUI Trial

US v. Smith: Smith was the driver of a car that rolled and crashed into a wall on the Baltimore-Washington Parkway.  A passenger was killed and Smith showed signs of intoxication before and after the crash.  Nearly three hours after the crash, Smith was given a blood test that showed a blood alcohol content of 0.09.  She was charged with misdemeanor manslaughter, with the underlying offense being operation of a motor vehicle with a blood alcohol content above 0.08.  At trial, a Government expert witness testified not just to the alcohol content of Smith's blood as tested, but about how human bodies both absorb and eliminate alcohol from their system, pegging the rate of elimination for women at 0.017 per hour.  Smith was convicted after a jury trial.

On appeal, Smith challenged her conviction on several grounds, all of which the Fourth Circuit rejected.  First, she argued that the Government's expert should not have been allowed to testify about generic alcohol absorption/elimination rates because it was beyond the scope of the pretrial notice of the subject of the expert's testimony.  The court disagreed, concluding that "although full disclosure by the government would have been more in keeping with the spirit of Rule 16," the testimony at issue was general background information and not tied directly to an expert opinion about Smith.  At any rate, if there was any error, it was harmless.  Second, Smith argued that the evidence was not sufficient to prove she had a blood alcohol level of at least 0.08 at the time of the crash (as opposed to several hours afterward).  The court disagreed, concluding that there was enough evidence to conclude that she violated the statute, including that the expert's testimony about absorption/elimination rates made it highly unlikely that her blood alcohol level was below 0.09 before the accident.  Finally, the court rejected her argument that the district court erred by refusing to instruct the jury that the blood test result, standing alone, was insufficient evidence to convict her.

No Second Amendment Protection for Illegal Alien

US v. Carpio-Leon: Carpio-Leon had lived in the country illegally for 13 years, with his wife and three children (all of whom were born in the US). During a consensual search of Carpio-Leon's house (the opinion doesn't say based on what) officers recovered firearms and ammunition. Carpio-Leon was charged with being an illegal alien in possession of a firearm and illegal entry into the US. After the district court denied his motion to dismiss under Heller, Carpio-Leon pleaded guilty, sentenced to time served, and ordered deported. On appeal, Carpio-Leon renewed his Second Amendment challenged to the illegal alien in possession of a firearm statute (922(g)(5)).

The Fourth Circuit affirmed his conviction and sentence. Rather than resolve the issue of whether illegal immigrants were part of "the people" as understood at the time the Second Amendment was ratified, the court concluded that they are not part of the "law abiding" community to which Second Amendment protections extend. The court further noted that this was so because of a designation made by Congress in an area in which it was owed great deference, i.e., immigration. Thus, Carpio-Leon had no protections under the Second Amendment. The court also rejected Carpio-Leon's argument that he was denied equal protection under the Fifth Amendment, because 922(g)(5) survives a rational basis analysis.

Emails Sent from Work Not Covered By Spousal Privilege

US v. Hamilton: Hamilton was a member of the Virginia House of Delegates.  He communicated with Old Dominion University about a new center for teaching it was looking to build, with state funds.  In conversations between Hamilton and ODU (and Hamilton's wife), he made repeated references to pushing funding through the legislature and possibly coming to work at the center.  Many of these conversations took place over Email, Hamilton using his work Email account.  After Hamilton introduced legislation for $1 million worth of funding for the ODU center, he was offered a job there.  As a result of all this, Hamilton was charged and convicted of bribery concerning federal program funds and extortion under color of official right.  He was sentenced to 114 months.

On appeal, Hamilton challenged both his convictions and sentence, all of which the Fourth Circuit affirmed.  Hamilton first argued that the introduction of Emails between he and his wife violated spousal privilege.  The court agreed that there is a general expectation of privacy in such Emails, but concluded that because Hamilton sent the Emails from a work computer and "did not take any steps to protect" their content they were not privileged.  Second, Hamilton challenged the sufficiency of the evidence supporting his convictions, which the court found was sufficient.  Third, he argued that the district court erred by not instructing the jury on the difference between a bribe and a gratuity, which the court rejected because the matter of intent had been sufficiently covered in the instructions.  Finally, the court affirmed the district court's calculation of the advisory Guideline range.

Identity Theft Statute Doesn't Cover Corporations

US v. HIlton: This appeal involves three Hiltons - Jimmy, Tamatha, and Jacqueline - who were convicted of a scheme to defraud a company where Tamatha worked.  Over the course of two years, the Hiltons cashed numerous checks written by customers to the business, taking about $655,000 in the process.  As part of the scheme, Jacqueline opened a bank account in her name, but falsely purporting to be the owner of the business.  Jimmy endorsed the stolen checks and filled out the deposit slips.  The various Hiltons were charged with 43 counts of fraud, money laundering, and identity theft.  They were convicted on all but one count.

On appeal, Jimmy and Jacqueline argued that their identity theft convictions must be reversed because the statute does not contemplate the theft of the identity of a corporation.  The statute refers only to the identification of "persons" and "specific individuals," which it does not define.  While the Dictionary Act defines "persons" as including corporations, it does not define "individual."  The court concluded that the context of the identity theft statute does not indicate whether "individual" would include corporations.  Noting the ambiguity and applying the rule of lenity, the court concluded that the statute cannot be read to include corporations and reversed Jimmy and Jacqueline's convictions on those counts.  It also vacated their sentences.

On all other grounds, the Fourth Circuit affirmed the convictions, as well as Tamatha's sentence.  It rejected Tamatha's argument that the district court erred by rejecting her motion to suppress her post-arrest statements because she requested counsel, as well as Jimmy's argument that the district court erred by denying his motion to proceed pro se on the morning of jury selection.  The court also rejected Jimmy and Jacqueline's argument that there was insufficient evidence to support their mail theft convictions, as well as the arguments of all the Hiltons as to the sufficiency of the evidence supporting their mail fraud affecting a financial institution convictions.

Forceful Result Not the Same as Use of Force

US v. Miguel-Torres: Miguel-Torres was convicted of illegal reentry.  In the PSR, the probation officer classified his prior California conviction for "willfully threatening to commit a crime that would result in death or great bodily injury" as a "crime of violence," triggering a 16-level Guideline enhancement.  Over Miguel-Torres's objection, the district court adopted the PSR's conclusion and sentenced Miguel-Torres to the bottom of the resulting Guideline range.

On appeal, Miguel-Torres argued that his prior conviction was not categorically a crime of violence and his sentence was unreasonable.  The Fourth Circuit agreed.  Applying a categorical approach (because the California statute at issue did not contain "divisible categories"), noting that other courts had split on the application of this statute and rejecting the approach of the Ninth Circuit.  The court concluded that although the statute contains a threatened violent result, it does not have as an element the use or threatened use of physical force.  As an example of a crime that could lead to a lethal result without the use of force, the court points to murder by poisoning.  Miguel-Torres's sentence was vacated and the case remanded for resentencing.

Congrats to the defender office in South Carolina for the win!

Dogfighting Sentence Not Unreasonable at 10 Times Guideline Range

US v. Hargrove: Hargrove was (in the Government's words) a "'legend' in the dog fighting community," with three prior state convictions. After he sold a dog to an undercover agent, his property was searched, uncovering numerous implements of dog fighting and training, as well as 34 dogs that later had to be euthanized. He was charged with one count of selling an animal for purposes of having it participate in an animal fighting venture and pleaded guilty. His Guideline range was calculated in the PSR to be 10-16 months, but Hargrove objected and argued it should be 0-6 months. The Government bypassed the Guideline dispute and argued for an upward variance/departure based on "extraordinary cruelty to animals, extreme conduct," and the inadequacy of his criminal history calculation. At sentencing, the district court preformed its own Guideline calculation, producing a range of 41 to 51 months, but imposed a statutory maximum sentence of 60 months. It did so, explaining that even if Hargrove's 0-6 month range had been the correct calculation it would have imposed the same sentence.

Hargrove appealed, arguing that his sentence was unreasonable. The Fourth Circuit disagreed. The court accepted the Government's concession that the district court's guideline calculations were erroneous, but found the error was harmless. The court explained that in appropriate cases is used the "assumed error harmlessness inquiry" as a way to involve the "empty formality" of remanding when the record shows such a remand would result in the imposition of the same sentence. Nothing that the district court explicitly said it would impose the same sentence regardless of the Guideline calculations, the court looked to whether the 60-month sentence was substantively reasonable, which it was.

Non-Specific DSM Disorder Can Justify Commitment

US v. Caporale: Caporale finished serving a sentence in 2008 for a sex offense, at which time the Government filed a motion to have him committed as a "sexually dangerous person" under the Adam Walsh Act.  At a hearing in March (the case was put on hold while cases addressing the constitutionality of the commitment provision were litigated), the district court denied the Government's motion, on two grounds.  First, it found that Caporale did not suffer from a serious mental illness, abnormality, or disorder because he was not diagnosed with a particular condition listed in the Diagnostic and Statistical Manual or Mental Disorders ("DSM").  Second, it found that, if Caporale was released, he would not have serious difficulty refraining from sexually violent conduct or child molestation.

The Government appealed to the Fourth Circuit (Caporale's release was stayed pending appeal), which affirmed the district court's conclusion, but only on the second ground.  On the first ground, the court concluded that the definition of "mental disorder or defect" is not limited to specified diagnoses set forth in the DSM.  In Caporale's case, the diagnosis of hebephilia meets that definition (as well as fitting into the "paraphilia/NOS" catch all in the DSM).  On the second ground, the court emphasized its limited ability to reject the district court's factual findings under an abuse of discretion standard that the district court did not clearly err by crediting the defense expert's testimony that Caporale's recent behavior (as opposed to his more serious criminal conduct in the past) showed he was not a risk to reoffend.

Exigent Circumstances Justify Seizure of Laptop

US v. Brown: Brown worked for an ambulance service, from which (according to the IP address) child pornography was being downloaded.  Using work records, investigators concluded that Brown and his partner were always on duty when the files were downloaded.  Officers arrived at the service office to execute a search warrant, but found no computers.  Brown and his partner had been out on a call and, when they returned, investigators asked if they had any laptops.  Brown retrieved one from the ambulance, which one of the officers then took from his hands.  After Brown gave a statement in which he admitted downloading child pornography, officers obtained a warrant to search his laptop.  That search uncovered videos and images of child pornography.  Brown went to trial and was convicted of one count of receipt of child pornography and one count of possession of child pornography.  The district court dismissed the possession count as a lesser included offense of the receipt count and sentenced Brown to 144 months in prison.

Brown raised two challenges on appeal, both of which the Fourth Circuit rejected.  First, Brown argued that the district court erred by denying his motion to suppress without having an evidentiary hearing to assess whether the initial seizure of the laptop was reasonable.  Brown argued that because the warrant itself only authorized a search of the ambulance service office, it did not cover the seizure of the laptop that occurred outside the building.  The court rejected that argument, holding that there were exigent circumstances that supported the warrantless seizure of the laptop.  Second, Brown argued that the district court should have dismissed the more serious receipt count, rather than the possession count, after trial.  The court concluded that the district court "properly adhered to a long line of authorities directing vacation of the conviction that carries the more lenient penalty."

Defendant's Presence Not Required at Hearing on Late Government Discovery

US v. Gonzales-Flores: Gonzales-Flores was charged with various drug, immigration, and firearm offenses. Two days before trial, the Government filed a notice that it would produce testimony from three expert witnesses at trial. Gonzales-Flores moved to exclude that testimony due to the late disclosure. The day before trial the district court held a telephonic hearing, in which Gonzales-Flores's counsel and the AUSA took part. Gonzales-Flores was not present (even in the ether at the other end of a phone line) and his counsel did not object to his absence. The district court denied Gonzales-Flores's motion and he was convicted on several counts and sentenced to 180 months in prison.

 On appeal, Gonzales-Flores argued that under Rule 43 of the Rules of Criminal Procedure he had a right to be present at the hearing on excluding the Government's expert witnesses and his absence required reversal of his conviction. The Fourth Circuit disagreed and affirmed his conviction. Assuming, without deciding, that the telephonic hearing was a "trial stage" as defined in Rule 43(a), the court nonetheless concluded that it fell within the exception in Rule 43(b)(3), which states that the defendant's presence is not required for a proceeding that "involves only a conference or hearing on a question of law." The fact that the proper standard of review for the underlying issue of the district court's denial of the motion to exclude (had it been raised) would be abuse of discretion does not mean the hearing involved something other than a "question of law." Therefore, there was no error in Gonzales-Flores's absence, much less a plain one.

Convictions and sentence affirmed for fraud scheme

US v. Day:   In this appeal, the Fourth Circuit heard a number of challenges to Day’s convictions and sentence for his scheme to defraud the Department of Defense, over the course of several years, involving his supply of defective and nonconforming goods for use in U.S. military aircraft, vehicles and weapons systems.

Day and three co-conspirators formed companies that bid on government contracts through a custom designed software program, and when his low bids succeeded in earning government contracts, Day would provide similar sounding, but nonconforming items, which cost him just 3.77% of the amount he received in payment from the government. Prior to discovery, Day secured nearly 1,000 government contracts, worth approximately $8.6 million. He operated this scheme from Mexico, where he directed his co-conspirators through email, phone calls, and internet chats.

Additionally, Day would deposit the proceeds of his operation in a Belizean bank account, and when that account was shut down, Day instructed his co-conspirators to convert the proceeds into gold and physically drive the gold to him from the U.S. to Mexico. Day received over $2 million in gold this way.

In August 2008, a federal grand jury indicted Day for conspiracy to commit wire fraud, wire fraud, aggravated identity theft, money laundering conspiracy, smuggling conspiracy, and obstructing justice. Day, in custody of Mexican authorities who captured him at the airport in Cancun in July 2008, was extradited by the Mexican government on all charges other than the identity theft and obstruction counts in December 2010. At the end of his eight-day trial, a unanimous jury found Day guilty on all counts.

On appeal, the Fourth Circuit considered the jury instruction on aiding and abetting liability that the government had requested at trial, and to which the defense did not object. First, Day argued that this jury instruction had the effect of constructively amending the indictment. The Fourth Circuit found that this argument failed because it has repeatedly held that a "defendant may be convicted of aiding and abetting under an indictment which charges only the principal offense." Next, Day argued that this jury instruction violated the extradition rule of specialty, which Circuit Splits discusses here.

Day also challenged his conviction for conspiracy to commit money laundering on the basis that the government did not prove that Day transported gold with the requisite design to conceal; that the gold was not a "monetary instrument or funds;" and that the trial court did not properly instruct the jury on the definition of the term, "proceeds." The Fourth Circuit held that the record was "replete" with evidence showing that Day knew that transporting the gold to Mexico would have the effect of concealing the location, nature, and source of the unlawful proceeds, but also that he transported the gold for precisely that purpose. Further, the Fourth Circuit employed the ordinary meaning of the term "funds" to find that the gold could qualify as "funds" under the money laundering statute, and that Day treated the gold as a cash equivalent.

Day argued that venue for his criminal trial in the Eastern District of Virginia was improper. The Fourth Circuit disagreed, and found that two classes of overt acts took place within the district, specifically, phone calls one conspirator made while within that district, and emails that were sent to government personnel within the district. Day also argued that the district court made two evidentiary errors at trial, by refusing to admit a government report describing mishandled evidence, and by admitting some prior bad acts of his under 404(b). The Fourth Circuit found the government report was properly excluded under 403 as improperly prejudicial, and that the prior bad acts (purchasing expensive watches, using false names, and his use of foreign bank accounts) were intrinsic to Day’s criminal conduct.

Day’s final arguments concerned the length of his sentence (105 years) and the resitution award. Day argued unsuccessfully that his guidelines-range sentence did not account for the two years he spent in custody in Mexico, but the Fourth Circuit disagreed.  Sentencing Law and Policy discusses the restitution award here.

Separate questioning of vehicle passengers does not impermissibly prolong traffic stop

US v. Vaughan:  The driver of a rental car, stopped in early January 2011 for traveling 79 mph in a 70-mph zone, challenged the length of time the Greenville, VA state police took in investigating his traffic violation. Appellant Vaughan failed to have evidence discovered during the traffic stop suppressed at the district court; he received a 120-month sentence for conspiracy to distribute cocaine and possession with intent to deliver cocaine. On appeal, the Fourth Circuit affirmed his sentence.

Terrence Vaughan and passenger, McKinley Scott, were heading north through Virginia around 10:43a.m., when a ten-year-veteran Virginia state trooper pulled them over for speeding. When the trooper looked into the vehicle, he observed four cell phones in the center console, two of which were "TracFones," pre-paid phones that can be obtained with no personal information, as well as a visibly nervous passenger, Scott, leaned back in the passenger seat. At the trooper’s request, Vaughan got out of his vehicle, and sat in the police cruiser, answering questions about the purpose and details of his travels. The trooper went back to the rental car and asked similar identification and travel details from Scott, who provided somewhat different responses than Vaughan’s.

Based on the cell phones, Scott’s nervousness, and the differing stories of Vaughan and Scott, the trooper requested a canine unit to come to the scene. While waiting a "couple of minutes" for the arrival of the canine unit, the trooper began filling out a contact report form, which must be filled out "on every traffic stop." During the same time, the trooper conducted background check on Scott, having confirmed the validity of Vaughan’s driver’s license. Upon arrival, the canine unit gave a positive alert for narcotics in the vehicle. The subsequent search of the vehicle revealed a handgun and 830.6 grams of cocaine. According to the trooper’s uncontested testimony, the whole stop last thirteen minutes prior to the arrival of the canine unit.

The Fourth Circuit concluded that reasonable suspicion existed at the moment the trooper determined that the suspect individuals’ explanations of their itinerary differed, approximately 6-9 minutes after the stop began. It held that when four cell phones are present in a vehicle with only two passengers, the presence of the phones constitutes a valid factor in reasonable suspicion analysis. The suspects’ conflicting answers "especially" contributed to the reasonable suspicion.

First Amendment challenges to insignia convictions fail

US v. Hamilton:  Just in time for Veteran’s Day, the Fourth Circuit issues an opinion that protects the dignity of military uniforms and insignia, by rejecting First Amendment challenges to convictions under 18 U.S.C. § 702, for wearing a military uniform without authorization, and 18 U.S.C. § 704(a) and (b), the wearing of medals and other insignia without authorization.

Appellant Hamilton had enlisted in the United States Marine Corp in July 1961; while he was in training at Camp Lejeune, North Carolina, Hamilton received a permanently disabling injury to his hand. He received an honorable discharge from the military in 1962. His attempts to re-enlist in 1966 were denied.

In April 2010, Hamilton appeared at a Vietnam Veterans’ Recognition Ceremony, wearing the full military uniform of a colonel in the Marines, as well as many medals including Navy Crosses, Silver Stars, Purple Hearts, and a Bronze Star. The insignia convictions arose from Hamilton’s choice of attire to this event. On appeal, Hamilton argued that his convictions for wearing a military uniform and medals without authorization violated his First Amendment rights.

First, Hamilton argued that the statutes, as applied to him, were facially invalid, that the government’s interests underlying these statutes were related to the suppression of expression, and that the most exacting scrutiny should apply to any constitutional analysis of the statutes. Moreover, Hamilton argued, the statutes cannot survive exacting scrutiny because they were not narrowly tailored to serve the government’s interest in protecting the integrity of the military and preventing the deceptive wearing of uniforms and medals.

The Fourth Circuit determined that the level of scrutiny required was the lower standard of intermediate scrutiny because the "insignia statutes do not regulate pure speech but instead proscribe certain forms of expressive conduct," and "expressive conduct is not entitled to the same degree of protection under the First Amendment as is pure speech." This is the same level of scrutiny that the Supreme Court applied when considering the case of the burning of draft cards in United States v. O’Brien. Moreover, the Fourth Circuit determined that even under a more harsh standard, the statutes would pass constitutional muster, as the governmental interest at stake was compelling, particularly as construed with a limiting "intent to deceive" element.

The "most exacting scrutiny" requires the government to establish that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." The Fourth Circuit decided that the government interest is "compelling" because the deceptive wearing of military uniforms and medals could weaken the symbolic value of these items, and frustrates the government’s efforts to ensure that such honors are awarded only to a limited number of deserving recipients.

The statutes are narrowly drawn, according to the Fourth Circuit, as the statutes seek to "ensure that the individuals displaying these honors to the general public are those who actually have receive such honors." Additionally, the statutes further the government’s interests in maintaining the orderly administration of military command. Further, the statutes help limit the demand in a ‘secondary market’ for symbols of high military achievement.

In addition to his facial challenge, Hamilton also argued in his brief that the statutes were unconstitutional as applied to him. He asserted that the uniform and medals that he wore to the Recognition Ceremony gave his words greater impact that had be worn street clothing. The Fourth Circuit found no merit in Hamilton’s as-applied argument.

The Constitutional Law Profs Blog found aspects of this decision troubling.

Judges Don't Like the F-Bomb

US v. Peoples: Peoples was a prisoner with multiple pending 1983 actions that lingered until after he was released from custody.  When it was time for the cases to be tried, Peoples had problems appearing in court on time.  During the first trial, the judge told Peoples if he was late again, his case would be dismissed, but that trial concluded without incident.  As did the second, although a legitimate car problem caused Peoples to be late one day, leading to another warning form the judge.

On the second day of his third trial, Peoples was late again, leading the judge to dismiss the case.  Peoples left the courtroom, saying "I was wanting to dismiss my shit anyway."  Peoples then came back into the courtroom while the judge went into the jury room to talk to the jurors.  Peoples went up to a clerk and said, "[t]ell Judge Currie get the fuck off all my cases.  I started to tell her something there.  I started to tell her ass something today."  A court reporter in the courtroom turned on a recorder and taped some of Peoples's comments (which included a reference for the judge to either "straighten the fuck up" or "straight the fuck up").  Peoples left and the judge charged him with criminal contempt (along with referring the matter to another judge).

When it came time for Peoples's contempt trial he was more than an hour late.  As a result, after the originally scheduled contempt trial ended with People's being convicted and sentenced to four months in prison, a second trial was held on contempt based on Peoples's tardiness.  He was convicted a second time and sentenced to a consecutive term of 30 days in jail.  Peoples challenged both of his convictions on appeal.

With regards to the initial contempt charge, the Fourth Circuit affirmed, concluding that the evidence was sufficient to sustain the conviction.  It rejected Peoples's argument that his conduct was not "misbehavior" because the language he used was not directed at the judge personally and was simply venting his frustration in language that some might find offensive.  The  court concluded that Peoples's outburst was directed at the judge.  The court also rejected Peoples's argument that his outburst did not obstruct the administration of justice because it occurred after the case was over and didn't impact the performance of the court.  The court noted that prior precedent had held that the act of investigating such an outburst causes court personnel to neglect other duties.

As to the second conviction, however, the Fourth Circuit reversed.  The court agreed with Peoples that summary criminal contempt proceedings are not appropriate in cases involving tardiness or absence from court.  In such cases, the procedural requirements of Rule 42(a) of the Rules of Criminal Procedure must be followed.  The court rejected the Government's argument that, although the judge said the second trial was a summary proceeding under Rule 42(b), it provided the requisite safeguards laid out in Rule 42(a), anyway.

Congrats to the FPD office in South Carolina on the (partial) win!

Addition of "Death Results" Element in 2113(e) Instruction Causes Constructive Amendment, Requires Reversal

US v. Whitfield: Whitfield and a confederate started a bank robbery, which was foiled when a metal detector was triggered (presumably by the guns they were carrying) and the doors locked, preventing their entry.  They fled in a car and, eventually, split up to further flee on foot.  During his flight, Whitfield broke into a home in which an elderly woman was present.  While Whitfield was in the home, the woman had a heart attack and died.  Whitfield fled the home and was apprehended.  He was charged with multiple offenses, one under 18 USC 2113(e), specifically that he had forced the woman to accompany him and killed her.  It did not include a third means of violating that statute, the "death results" offense.  Whitfield was convicted on all counts and sentenced to life in prison.

On appeal, Whitfield raised two general challenges to his convictions.  First, he argued that the district court erred by not suppressing a statement he made about the break ins during his flight (including the one that resulted in the woman's death) because it had been coerced.  Whitfield actually gave two sets of statements - one about the break ins and another about the botched bank robbery.  After initially denying his motion to suppress all the statements, the district court held a further suppression hearing during trial and concluded that the bank robbery statement had been coerced and suppressing it.  The Fourth Circuit rejected Whitfield's argument that the statement about the break ins should have been suppressed as well, concluding that the totality of circumstances supported the district court's conclusion that the statement was not coerced, even though the questioning officers deceived Whitfield as to the seriousness of the charges he might be facing.

Whitfield's other arguments on appeal dealt with the district court's instructions to the jury on the 2113(e) charge.  The court rejected his arguments as to whether the district court should have instructed on a lesser included offense and that its instructions allowed for conviction on a theory of "mere confinement" as opposed to "forced accompaniment."  However, the court did agree with Whitfield's argument that the district court's instruction on the 2113(e) charge allowed him to be convicted on a charge other than what he had been indicted for by the grand jury.  Specifically, the court concluded that the "death results" provision - which was absent from the indictment but included in the instructions - was an element of the offense, not simply a sentencing factor.  2113(e) can be violated in three ways - only two of which were set forth in the indictment, although all three were present in the instructions.  As a result, the indictment had been constructively amended and Whitfield's conviction on that count must be reversed.  The court vacated the life sentence and conviction on the "death results" count and remanded for resentencing on the forced accompaniment theory, which it found was supported by sufficient evidence to sustain a conviction.

Congrats to the FPD office in WDNC on the win!

Basis for Simmons Not Retroactive

US v. Powell: Powell was convicted of two drug counts that carried sentences of 10 years to life in prison.  Thanks to a prior North Carolina conviction, his mandatory minimum sentence was increased to 20 years.  That is the sentence he received.  Powell filed a 2255 motion seeking to vacate his conviction in light of the Supreme Court's decision in Carachuri-Rosendo v. Holder, in which the Court held that for purposes of determining the status of a prior conviction the applicable consideration was the maximum sentence to which the particular defendant was subject, rather than the hypothetical maximum sentence to which a generic defendant could be subject.  Powell argued that Carachuri-Rosendo was retroactive and applied to his prior North Carolina conviction (after his 2255 motion was filed, the Fourth Circuit concluded that the logic of Carachuri-Rosendo required a rethinking of its analysis of prior North Carolina convictions).  The district court disagreed and dismissed the motion.

On appeal, the Fourth Circuit affirmed the dismissal of Powell's motion.  It concluded that Carachuri-Rosendo announced a procedural rule, rather than a substantive one, and was thus not retroactive.  The Supreme Court's decision "at most altered the procedural requirements that mush be followed in applying recidivist enhancements and did not alter the range of conduct or the class of persons subject to criminal punishment."

Judge King dissented in part and concurred in part with the majority's decision.  He argued that the rule announced in Carachuri-Rosendo is substantive and, therefore, should be retroactive.  However, he ultimately agreed that dismissal was appropriate because Powell's sentence was not illegal even if Carachuri-Rosendo was retroactive because it was well within the limits of the statutory range without any recidivist enhancement.

Extraction of DNA Profile Is Search, But Suppression Not Required

US v. Davis: In 2000, Davis was shot and treated at a Maryland hospital.  As part of the investigation of his shooting, police seized Davis's bloody clothes from underneath the bed on which Davis lay in the emergency room.  Nothing came of that investigation.  However, in 2004, a neighboring police agency was conducting an investigation of a murder in which Davis was a suspect.  They took the bloody clothes (which had been retained in the other agency's evidence room all those years) and used them to procure a DNA sample which could be tested against evidence from the murder scene.  It was not a match, but the resulting profile remained in the database where, later in 2004, it was used to link Davis to a botched armored car robbery.  As a result of the match, Davis was charged with various federal offenses arising from the robbery.  After the district court denied Davis's motion to suppress the DNA information, a jury convicted Davis.

On appeal, the Fourth Circuit affirmed Davis's convictions.  The court focused primarily on questions dealing with the DNA evidence and its collection in light of Fourth Amendment protections.  First, it concluded that the initial seizure of Davis's bloody clothes was proper under the plain view exception to the warrant requirement.  Second, it concluded that the initial search of the clothes to procure a DNA profile violated the Fourth Amendment and assumed (without deciding) that the later use of the DNA profile to link Davis to the armored car robbery was also a violation.  However, suppression of the resulting evidence was not required under the ever expanding "good faith" exception set forth in recent Supreme Court decisions like Herring and Davis.  The court also concluded that the district court did not abuse its discretion by prohibiting a defense expert witness from testifying about problems with the procedure police used during a lineup in which Davis was identified by an eyewitness.

Judge Davis dissented, disagreeing with the majority on both the plain view analysis and the conclusion that the exclusionary rule should not apply.

Orin Kerr at The Volokh Conspiracy has some additional thoughts.

Sex Offender Restrictions Don't Amount to "Custody" for Habeas Corpus

Wilson v. Flaherty: Wilson was one of the "Norfolk Four," a group of sailors charged with the rape and murder of another sailor's wife.  Wilson was acquitted of murder, but convicted of rape in 1999 (since then, subsantial evidence of the innocence of all four men has been presented - see here for more details) and released from prison in 2005.  As a result of the rape conviction, he must register as a sex offender in Virginia and Texas (where he moved in the interim).  In 2010, he filed a 2254 motion challenging his conviction, arguing that he was actually innocent.  The district court denied the motion for lack of jurisdiction because Wilson was no longer "in custody" as required under 2254.

On appeal, the Fourth Circuit agreed and affirmed the dismissal.  Recognizing he was no longer in prison, Wilson argued that the variety of restrictions placed on him by Virginia and Texas law as a registered sex offender meant he as still "in custody" for purposes of 2254.  However, the court noted that the Supreme Court has defined "in custody" to mean custody "under conviction or sentence under attack at the time his petition is filed."  Although the concept of custody extends to a person released on parole, it does not include someone whose imposed sentence as "fully expired."  The sex offender provisions at issue in this case, however, were not part of his sentence for rape, but rather "collateral consequences of him having been convicted for rape."  Allowing 2254 challenges in such situations would allow sex offenders to challenge their convictions in federal court at any time.

Judge Davis concurred in the judgement, noting that when 2254 and its definition of "custody" was enacted, neither Congress nor the President had any conception of the type of lifelong sex offender requirements in place today.

Judge Wynn dissented, arguing that the majority's reading of the habeas provisions was too narrow, particularly in a case where Wilson makes such a compelling case for his innocence.  Specifically, he argues that Supreme Court precedent allowing for the challenge of prior convictions in habeas proceedings for a current conviction/sentence "strongly suggest that there are instances in which a fully served sentence may be collaterally challenged through a writ of habeas corpus."

Impersonating an Officer Statute OK Under First Amendment

US v. Chappell: Chappell was once a deputy sheriff in Fairfax County, Virginia.  Unfortunately, at the time he was pulled over on the George Washington Parkway, he was no longer a deputy, but nonetheless claimed to be in order to avoid getting a ticket.  When the officer who pulled him over discovered the deception, he was arrested and charged with impersonating a police officer (a state offense made federal under 18 USC 13).  After the magistrate judge denied his motion to dismiss under the First Amendment, Chappell was convicted at a bench trial (he pled guilty to the speeding charge) and was sentenced to a term of probation, community service, and a fine.

On appeal, Chappell renewed his argument that the Virginia statute (the state intervened in the case, as well) making it a crime to "falsely assume or pretend to be any such officer" was facially invalid under the First Amendment because it was overboard and not sufficiently narrowly tailored to survive strict scrutiny review.  The Fourth Circuit rejected those arguments and affirmed Chappell's conviction.  Noting that facial challenges are traditionally unfavored, the court called Chappell's "a particularly inappropriate case for recognizing a challenge of facial invalidity" because the statue has a "plainly legitimate sweep" and Chappell was "right at the core" of that sweep.  His attempt to "dodge a traffic ticket" by claiming to be an officer was "precisely the kind of conduct that the statute was designed to prohibit."  It rejected Chappell's potential hypothetical overreaches of the statute applying to people wearing police costumes at parties or children playing cops and robbers, noting that although the Virginia statute is similar to many others across the country he could not point to any actual application to such situations.  In addition, the statue's requirement that a person act "falsely" implies a mens rea requirement that would be absent from Chappell's hypotheticals.  Chappell fared no better in "the lifeboat of overbreadth doctrine" because he could not show any "realistic danger" that the statute would infringe on First Amendment rights.  The Supreme Court's recent decision in Alvarez striking down the Stolen Valor Act did not help, either.

Judge Wynn dissented, arguing that a "straightforward application" of Alvarez compelled a similar result in Chappell's case.  He faulted the majority for "cherry-picking" parts of the plurality and concurring opinion in Alvarez that generally approved of false impersonation statutes while avoiding a "complete analysis" of the case's references to those statutes.  He also took issue with the majority's conclusion that Chappell's behavior was the kind of conduct targeted by the statute, as opposed to public safety concerns related to faux officers.

Anonymous Jury, Forfeiture by Wrongdoing, OK'd in Large Drug Conspiracy Trials

US v. Dinkins: Dinkins, along with his codefendants Gilbert and Goods (aka "Moo Man"), was tried and convicted of numerous offenses related to a large drug operation in Baltimore, including the murder of another member of the operation who had begun to cooperate with police.  The lengthy facts are set forth in the opinion and too detailed to go into here.  All three defendants were sentenced to life in prison.  On appeal, each defendant presented multiple challenges to their convictions, all of which the Fourth Circuit rejected.  In particular, the court highlighted two issues.

The first was whether the district court abused its discretion by impaneling an anonymous jury, based on its concerns for the jurors' safety (given the fact that one of the charges involved the murder of a witness).  This was an issue of first impression in the Fourth Circuit.  The court identified an non-exhaustive list of five factors (including the defendants' involvement in organized crime or a group with the capacity to harm jurors) to use when deciding to impanel an anonymous jury.  The standard for doing so in capital cases (Dinkins and Gilbert were charged with capital offenses, Goods was not) is more exacting than for non-capital cases, although the same factors are relevant to both.  With that in mind, the court rejected defendants' argument that there was insufficient evidence to conclude that they had the present or future capacity to harm jurors.  The court also concluded that the district court took reasonable precautions to minimize the risk to the defendants' rights to a fair trial and presumption of innocence.

The second issue highlighted by the court was whether the admission of statements from Dowery, a former member of the operation who was killed after he began to cooperate with police, were properly admitted against Dinkins and Gilbert under FRE 804(b)(6), the "forfeiture by wrongdoing" exception to hearsay/confrontation.  The court noted that the exception only applies when a court finds (by a preponderance of the evidence) that the alleged wrongdoing was done to "render the declarant unavailable as a witness."  As to Dinkins, who was incarcerated when Dowery was actually killed (though he was not when an initial attempt on Dowery's life was made), the court concluded that the exception applied because it includes persons who acquiesce to the wrongdoing, in addition to engaging in the wrongdoing themselves.  As to Gilbert, the court rejected the argument that there was insufficient evidence from which to conclude that he, rather than some other person in the community who wished harm to a "snitch," killed Dowery (thus rendering him unavailable to testify).

The court also briefly addressed (and rejected) arguments about the district court's denial of motions to sever the defendants, a Batson challenge, and Goods's motion for acquittal.

Heller Challenge Fails Felon in Possession

US v. Smoot: Smoot was arrested outside a home on an outstanding after a tip provided his location.  He was in possession of a firearm and was charged with being a felon in possession.  Prior to trial, Smoot sought to have the jury instructed that (1) under Heller, the Government was required to rebut a presumption that Smoot lawfully possessed the firearm in his home for self defense, and (2) the firearm, while it had moved in interstate commerce at one point, had been out of commerce so long that it not longer effected interstate commerce.  The district court denied those requests.  Smoot was convicted and sentenced to 235 months under ACCA.

On appeal, the Fourth Circuit affirmed Smoot's conviction and sentence.  It construed the additional element argument under Heller as an as-applied challenge to the constitutionality of the felon in possession statute under the Second Amendment.  The court first noted that the record did not support Smoot's attempts to frame the issue in terms of possession of a firearm in his "home," as the record was inconclusive as to whether the home where the police went was Smoot's and, at any rate, he was arrested outside of the home, not inside it.  It the proceeded to reject the as-applied challenge, concluding that there was nothing about his challenge to "remove [it] from the realm of ordinary challenges" which had already been rejected.  As to the interstate commerce instruction, the court concluded that the district court's instruction that movement from one state to another (regardless of how long ago it happened) was enough to show an effect on interstate commerce was a correct statement of binding Fourth Circuit and Supreme Court precedent.  Furthermore, that instruction did not direct the jury to reach a particular conclusion on that element.  Finally, the court affirmed Smoot's sentence, concluding that the district court's denial of acceptance of responsibility was not an abuse of discretion where he contested an element of the offense.

Categorical Approach Required for Maryland Child Abuse Statute

US v. Gomez: Gomez pleaded guilty to illegal reentry after having been deported due to an aggravated felony conviction.  That conviction was for child abuse in Maryland, during which (according to Gomez's statement while pleading guilty) she had burned the bottoms of her son's feet with a candle as punishment.  After her illegal reentry conviction, the main issue at sentencing was whether that prior conviction was a "crime of violence" such that it triggered a 16-level enhancement under the Guidelines.  Gomez argued that, applying a categorical approach, it was not.  The Government argued that it was and the district court could resort to the modified categorical approach (and thus consider Gomez's statement) in doing so.  The district court agreed with the Government and applied the enhancement, although it varied from the resulting range an imposed a sentence of 24 months.

The Fourth Circuit vacated Gomez's sentence and remanded the case for resentencing.  The court concluded that the modified categorical approach is appropriate only when the statute being analyzed "contains divisible categories of proscribed conduct, at least one of which constitutes - by its elements - a violent felony."  The Maryland statute at issue in this case, while "expansive" it could not be separated into forceful and non-forceful acts.  As a result, only the original unmodified categorical approach should have been used.  The court also rejected the Government's argument that any error in applying the modified categorical approach was harmless because of the district court's ultimate imposition of a variance sentence.

Judge Niemeyer dissented, calling the majority's position "novel" and arguing that it was not consistent with Supreme Court and prior Fourth Circuit precedent.

Congrats to the FPD office in Maryland on the win!

US Law Extends to Foreign Nationals at Overseas Military Base

US v. Brehm: Brehm, a South African citizen, was employed by an American defense contractor providing services to the military at Kandahar Airfield in Afghanistan.  He was involved in an altercation with J.O., also employed by a defense contractor at Kandahar (although a different one) and a British citizen.  Brehm stabbed J.O.  He was charged, in the Eastern District of Virginia, with two counts arising from the incident under the Military Extraterritorial Jurisdiction Act, which applies to those "employed by or accompanying the Armed Forces outside the United States."  After his motion to dismiss the charges on jurisdictional grounds was denied, Brehm entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed Brehm's conviction.  Brehm argued that the MEJA was unconstitutional as applied to him because neither he, nor J.O., were US citizens, the incident did not occur in furtherance of his duties as an employee of the military contractor, and his conduct was not directed at and did not harm the United States.  The court disagreed, noting that such factors did not impact jurisdiction under the MEJA.  Were it not for his employment connected to the American military, Brehm would not have been at Kandahar and his behavior would not have effected the operations there.  The court also noted that, as part of his employment, Brehm signed an agreement agreeing that the MEJA applied.

Stop for Speeding, Following to Close, OK Under Fourth Amendment

US v. Mubdi:  Mubdi (and a passenger) were stopped along the Interstate in North Carolina for speeding and following too closely.  During the ensuing traffic stop, a drug dog alerted on the car.  The subsequent search uncovered drugs and firearms.  Mubdi was charged with drug and firearm offenses as a result.  He moved to suppress the evidence found in the car, arguing both that the officer who stopped him lacked probable cause to do so and, even if such cause existed, the stop was unduly prolonged without reasonable suspicion.  The district court denied the motion and Mubdi entered a conditional guilty plea and was sentenced to 300 months in prison.

On appeal, the Fourth Circuit affirmed Mubdi's conviction and sentence.  As to the basis for the stop, the court concluded that the officer had probable cause to believe both that Mubdi was speeding and following too closely, as defined by North Carolina law.  As to the speeding, the court noted that although the officer used only visual means to estimate Mubdi's speed this case was quite different from the court's recent decision in Sowards, in which the officer utilizing the same visual method was "to put it mildly, measurement-challenged."  Without such difficulties present in the record, there was probable cause to stop Mubdi for speeding.  Alternately, the court held that there was also probable cause to stop him for following too closely, rejecting Mubdi's argument that the North Carolina regulation did not apply in the situation at hand (in which he was overtaking another car) and that, even if it did, it was a mistake of fact, rather than one of law, and did not prevent the officer from making the stop.  As to the stop itself, although the court appeared to conclude that the stop was not unduly prolonged at all (the drug dog arrived while the officer was writing the ticket), it also concluded that there was reasonable suspicion to extend the stop, based on Mubdi's behavior.  Finally, the court upheld Mubdi's sentence, turning away a challenge to the applicable mandatory minimum under binding Supreme Court precedent.

Judge Davis authored an interesting concurring opinion.  He laid out how expanding Supreme Court precedent on traffic stops has allowed the officers involved in this case to do precisely what they did - conduct a drug interdiction investigation in the guise of a traffic stop: "it was not for nothing that, as shown on the video taken by the dashboard camera in [the officer]'s vehicle, the officers in this case expressed unmitigated glee, punctuated by serial 'fist-bumps' all around, when the cache of more than two hundred grams of crack cocaine was removed from the [car]."  He concluded that the speeding justification was similar to the one in Sowards and therefore insufficient to support the stop.  However, he agreed with the majority on the following too closely analysis and concurred as to all other parts of the opinion.

Duplicating forensic tests, and elements of RICO offense

US v. Mouzone and US v. Fleming:  These two appellants were indicted and tried for RICO and drug offenses related to their mutual membership in Tree Top Piru, a subset of the Bloods gang that operated in Essex, Maryland. Both Mouzone and Fleming were convicted of the RICO charge, and Fleming was also convicted on two drug charges. Both appellants raised several district court errors; the Fourth Circuit affirmed the convictions and sentences. 

In one of these issues, Fleming challenged the district court’s ruling that permitted the government to present a drug analysis report on bags of cocaine seized from his pocket at the time of his arrest. Two different chemists performed drug analyses; the government learned that the first analyst would be unable to appear for trial, so a second analyst performed the same tests nearly two years later. The results after the second test, specifically weight determinations, were "discordant." The Confrontation Clause requires that the accused "be confronted with the analyst who made the certification, unless that analyst be unavailable at trial, and the accused had an opportunity, pre-trial, to cross-examine that particular [analyst]," the Fourth Circuit quoted from Bullcoming v. New Mexico. Introducing a surrogate analyst, who does not sign the certification or perform or observe the test reported in the certification cannot satisfy the Confrontation Clause.

The Fourth Circuit reasoned that even if the admission of the second analyst’s testimony violated the Confrontation Clause, it was confident that the admission did not sway the jury on the drug charges: the second analyst performed an independent analysis; the weight determinations were still well above threshold amounts for which Fleming was convicted; and the second analyst made no attempt to vouch for the first analyst’s findings.

Mouzone and Fleming both challenged the district court’s charge to the jury of the elements of the RICO offense under 18 U.S.C. sect. 1962(d). Both appellants requested that the district court instruct the jury that in order to "participate, directly or indirectly, in the conduct of such enterprise’s affairs, one must have some part in directing those affairs. Some part in directing the enterprise’s affairs is required." The district court denied this request.

The Fourth Circuit disagreed with appellants that a managerial role in the enterprise’s affairs is required for conviction under this statute. Rather, it held that "simply agreeing to advance a RICO undertaking is sufficient." The Fourth Circuit joined several other circuits (D.C., 9^th, 3^rd, 2^nd, and 5^th) in holding that sect. 1962(d) liability does not require that a defendant have a role in directing an enterprise.

Writ of error coram nobis successful

US v. Akinsade:  In this appeal, the Fourth Circuit granted the appellant’s request for a writ of error coram nobis pursuant to 28 U.S.C. sect. 1651, vacating his prior conviction for embezzlement, to which he plead guilty in 2000. Akinsade claimed that he was misadvised by his attorney about the immigration consequences of taking a plea, and the Fourth Circuit agreed. When making the decision whether to plead, his attorney had advised that Akinsade could not be deported based on his single offense, and that he could only be deported if he had two felony convictions, which advice was contrary to the law at that time.

In order to reach its decision, the Fourth Circuit enunciated a standard it will use in reviewing petitions for writ of error coram nobis: abuse of discretion. In order to receive this type of extraordinary relief, a petitioner must show the following: 1) a more usual remedy is not available; 2) valid reasons exist for a failure to attack a conviction earlier; 3) adverse consequences from the conviction exist, such that the case or controversy requirement of Article III is satisfied; and 4) the error is "of the most fundamental character." This final requirement received the most attention in this opinion.

Prior to reaching the Fourth Circuit, the district court that received Akinsade’s petition denied his petition without a hearing, on the grounds that this extraordinary remedy was not available for a "mere garden-variety" ineffective assistance of counsel claim that did not allege a "fundamental error." The district court did find that Akinsade’s counsel’s affirmative misrepresentations rendered the advice Akinsade received constitutionally defective, but that Akinsade did not experience prejudice as a result.

The Fourth Circuit points to three aspects of Akinsade’s plea that caused him to experience prejudice: the equivocal nature of the admonishment - that his plea could lead to deportation, when in fact deportation was a mandatory consequence; his counsel’s affirmative mis-advice clearly contrary to the law; and the severity of deportation itself as a consequence. With respect to the mis-advice, the Fourth Circuit reiterated and applied its position from U.S. v. Gajendragadkar, in which it found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the U.S. and thus, would reasonable risk going to trial over taking a plea and facing certain deportation. The Fourth Circuit did not discuss a retroactive application of Padilla because neither the appellant nor the government contested the fact that the incorrect advice Akinsade received was constitutionally deficient.

The dissent noted that the civil immigration proceedings against Akinsade in the Second Circuit recently decided that Akinsade had not, in fact, pleaded guilty to an aggravated felony, and thus, the government did not plan to oppose termination of Akinsade’s deportation. The dissent found it unnecessary to vacate Akinsade’s plea when he would not be deported as a result of it.