US v. Warner: Warner pleaded guilty to being a felon in possession of a firearm. In the plea agreement, the parties agreed that the 4-level Guideline enhancement for use of a firearm in connection with another felony offense did not apply because the conviction at issue - a North Carolina breaking and entering conviction - was not a felony. However, the agreement also stated that the Government "will inform the Court and the probation office of all face pertinent to the sentencing process and will present any evidence requested by the Court." The PSR recommended that the enhancement applied. Warner objected. The Government, on the other hand, noted the agreement with Warner, but then explained (at some length) how its analysis had changed in light of newer Fourth Circuit case law. Nonetheless, it asked that the district court "honor the agreement of the parties." Warner argued that the Government breeched. The district court disagreed, applied the enhancement, and sentenced Warner to 48 months in prison, just below the bottom of the resulting Guideline range.

The Fourth Circuit vacated Warner's sentence and remanded for resentencing before a different judge. The court concluded that the Government did breech the plea agreement, even though it was acting in good faith. The court distinguished between the Government merely representing its position (which it did) and actually recommending that the enhancement not apply (which is promised to do). The former is a "mere recommendation," advice that the district court was free to reject. The latter would have made the district court more hesitant to apply the enhancement. Furthermore, there was a difference between recommending that the enhancement shouldn't apply versus arguing that it should not apply.

Congrats to the Defender office in the Western District of NC on the win!

No Oral Conditional Plea Without Government Explicit Consent

US v. Fitzgerald: Fitzgerald was charged with various gun and drug offenses and unsuccessfully moved to suppress evidence found as the result of the execution of a search warrant at his home. He rejected a plea offer from the expressed his desire to enter an "open plea." At the plea hearing the district court indicated that, by pleading guilty, Fitzgerald might be unable to raise certain issues on appeal, but said that "you certainly retain your ability to appeal any decision the Court has made with regard to a motion to suppress." The Government didn't say anything about the district court's statement. The district court accepted the guilty plea and sentenced Fitzgerald to 130 moths in prison.

Fitzgerald appealed, challenging the denial of his motion to suppress, but the Fourth Circuit ordered supplemental briefing on the issue of whether he had entered "a valid conditional plea that reserved his right to appeal these issues." Ultimately, the court concluded that he had not. Although Rule 11(a)(2) requires conditional pleas to be in writing, the court noted that it deems that requirement satisfied when "the reservation is so clearly show on the record that there is no doubt that a conditional plea was agreed to." However, the other requirements of the rule - Government consent to the plea and district court approval - are mandatory. At the very least, the court held, the Government consent requirement was not met because the Government never addressed the issue during the plea hearing. The Government's concluding assertion of "that's perfect" to the district court wasn't enough. Because Fitzgerald's plea was not valid, the court vacated the judgment and remanded to the district court for Fitzgerald to decide whether to go to trial or enter a conditional plea.

Burglaries of Homes Next to Each Other on Same Night Separate for ACCA Purposes

US v. Linney: Linney pleaded guilty to being a felon in possession of a firearm. In the PSR, he was designated an Armed Career Criminal based on three prior North Carolina burglary convictions, two of which, Linney argued, occurred on the same occasion. He argued that they took place on the same night and in close proximity. Records produced by the Government showed they took place next door (or across the street) from each other on the same night, one between 8 and 10pm, the other between 7 and 10pm. At the same time Linney pleaded guilty to those two offenses he also pleaded guilty to (among other things) 17 counts of breaking and entering and two attempted breaking and entering counts. The Government argued that the two burglaries involved different victims and locations and were "distinct criminal episodes." The district court agreed and sentenced Linney to 235 months in prison.

On appeal, the Fourth Circuit affirmed Linney's sentence. Linney conceded that the offenses involved separate victims, but argued that they occurred in the same location "because the burglarized houses were only thirty feet apart" and that the objective of the burglaries was the same. The court rejected that argument, finding that separate houses mean separate geographic locations which gave Linney "a sufficient opportunity to evaluate whether to commit another crime." Nor did the Shepard documents in the record show that Linney was acting with an accomplice which would have "complicat[ed] the different occasions analysis."

Prior Record, Other Factors, Justified Extension of Traffic Stop

US v. Palmer: Palmer was pulled over in Virginia because of too darkly tinted windows and the inspection sticker appeared to be fraudulent. Upon approaching the car, the officer noticed several air fresheners in the car, "some hanging in the passenger compartment and others plugged into the air-conditioning vents." The officer retrieved information from a couple of different databases that indicated Palmer was a gang member with a prior criminal record that included drug offenses. The officer radioed for a drug dog, then went to more fully examine the inspection sticker. In leaning into the car to do so (the back of the sticker is the best evidence of fraud, apparently), the officer smelled the odor of marijuana. Although the officer told Palmer he had grounds to search the car, he "wanted to be '110% sure'" and waited for the drug dog, which alerted on the vehicle twice. The eventual search uncovered crack cocaine and a firearm. Palmer is charged with drug and gun offenses, has his motion to suppress denied, and enters a conditional guilty plea.

The Fourth Circuit affirmed the denial of Palmer's motion to suppress. First, it found that the stop itself was lawful, finding no clear error in the officer's conclusion that the window tint was too dark (indeed, measurement after Palmer was arrested showed the officer was right). Second, the court rejected Ring's argument that the officer expanded the scope of the stop before getting to the point where he smelled marijuana (and thus had probable cause to search). With regard to Palmer's argument that Palmer had no basis to "delve into his criminal record" because it was unrelated to the basis for the stop, the court held that to "describe that contention is to discard it" because an officer "is entitled to inquire into a motorist's criminal record after initiating a traffic stop." The information the officer received from the database about Palmer's prior record gave him reasonable suspicion (along with the other facts then known) that criminal activity was afoot. Those factors, in their totality, "eliminated a substantial portion of innocent travelers and demonstrated a connection to possible criminal activity."

Court Affirms Convictions Following Stash House Robbery Sting

US v. Hare: This is a case that revolves around a favorite new technique of federal law enforcement (the ATF, in this case), the fake drug stash house sting. In these stings, undercover federal officers find people who are willing to rob a drug stash house and then turn around and arrest them at some point before the actual robbery would have taken place. Of course, there are no drugs, much less an actual stash house. What makes this case a little different is that the three defendants - Hare, Williams, and Edwards - weren't brought into the scheme by law enforcement, but by Bowden, who had been the target of the sting (when the undercover asked Bowden if he'd be interested in a robbery, Bowden replied - repeatedly - "that's what I do!". Hare and the others were eventually convicted of various counts, including a Hobbs Act robbery and conspiracy, and received sentences of 132 (Hare), 150 (Williams), and 240 months (Edwards).

On appeal, Hare and the others challenged the district court's decisions related the sting itself. The Fourth Circuit affirmed their convictions and sentences and found no error in the district court's rulings. First, Hare and the others had demanded discovery of how the ATF determines who to pursue in these sting investigations, in order to determine whether the use of these sting operations was racially motivated. The district court denied the motion, aside from a single page from an ATF manual related to "guidelines for selecting a target." The court affirmed that decision, finding that the defendants didn't meet the high burden necessary to compel discovery when pursuing a selective enforcement argument. Noting that the burden for discovery is almost as high as the burden to prevail on the claim, the court held that the evidence the defendants did have (of 8 similar cases involving 32 defendants in the District of Maryland, all the defendants were African-American) didn't meet that threshold. Second, the court affirmed the district court's decision to deny the defendants' motion to dismiss for egregious Government conduct - the sting operation. The court rejected the arguments that the officers should have investigated the defendants' predisposition to committing such a crime, that the amount of cocaine that was allegedly involved as an "inducement so lucrative as to be unreasonable," and that stash house robbery stings were, per se, objectionable.

No Intent to Kill In Carjacking Case Without Weapon

US v. Bailey: Bailey was the driver of a car that got into a high-speed chase with police. When he wrecked the car, Bailey got out and fled on foot to a nearby parking lot. There, he approached a pickup truck with three people inside while he was "panicked and bloodied." He asked the driver for a ride and offered to pay, but the driver said no. A "flurry of activity" allowed Bailey to get into the back seat. The two passengers got out, but the driver stayed put, at which point Bailey told him to "drive, drive, drive," while placing something "hard and cold" against the driver's neck. The driver never saw a gun and didn't know what Bailey pressed against his neck but was certain Bailey "was about to kill [him]." He jumped from the truck. Bailey got behind the wheel and sped off, eventually to be captured. Bailey was charged with carjacking under 18 USC 2119, convicted by a jury, and sentenced to 105 months in prison.

On appeal the Fourth Circuit unanimously reversed Bailey's conviction. The court concluded that there was insufficient evidence to sustain a conviction for carjacking. Specifically, section 2119 requires an "intent to cause death or serious bodily injury" to sustain a conviction for carjacking. The court rejected the Government's argument that the totality of the evidence - Bailey's reckless driving, his appearance when he approached the truck, and the "hard and cold" object - showed such intent. Even though Bailey conceded that he intended to scare the driver, that isn't enough to meet the 2119 threshold, particularly when no witness saw him with a weapon. Noting that 2119 requires a showing of a certain intent "at the precise moment" Bailey demanded or took control of the truck, the court concluded that the evidence did not show such an intent at that time.

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

Juvenile prosecutions for murder in aid of racketeering post-Miller unconstitutional

US v. Under Seal:  In this interlocutory appeal, the Fourth Circuit considered whether the government could legally prosecute a juvenile for murder in aid of racketeering, involving events that occurred after the Supreme Court made unconstitutional the only two authorized penalties for that offense, i.e., death or life without parole, for juvenile offenders.  The Fourth Circuit held that such a prosecution cannot constitutionally proceed.

At the district court, the government alleged that the defendant here, when he was a few months shy of turning 18, participated in a gang-related murder.  The government moved to prosecute this juvenile for murder in aid of racketeering pursuant to a delinquency information.  The defendant opposed the government’s motion, based upon recent Supreme Court cases that have drastically altered the legal landscape for juveniles charged with crimes that were penalized by death or mandatory life imprisonment, making such penalties illegal.  Congress, since the advent of these cases, especially Miller v. Alabama, which constitutionally prohibited a mandatory life sentence on a juvenile, has yet to legislatively act in response.  The government appealed here, with proposals for severing or excising the unconstitutional portions of the statute at issue, and leaving the constitutional portions of the statute intact.  

The Fourth Circuit’s analysis here was a case of first impression, as no case had arisen yet where a criminal act charged against a juvenile is alleged to have been committed after Miller was decided.  It discussed how severance is constitutionally okay, if the severed statute can function independently following severance; if not, severance is not viable.  A criminal statute is not operative without articulating a punishment for the proscribed conduct, and the government’s proposed excision here would, in contravention of both due process and severance principles, combine the penalties for two separate, distinct criminal acts, in a manner that would be “nothing less than judicial legislation pure and simple.” Also, the Fourth Circuit notes that looking to legislative intent is pointless when there is no indication what the legislative intent would be under the circumstances, since Congress hasn’t said anything on the subject since Miller was issued (“in light of Roper, Miller, and Montgomery, juvenile sentencing is undergoing substantive changes”).

The Fourth Circuit notes that the government has other options available in its province to pursue against this defendant; however, it cannot prosecute constitutionally a juvenile defendant for murder in aid of racketeering.

Armed bank robbery a crime of violence

US v. McNeal:  In this appeal, two of three co-defendants raised several trial issues (the third co-defendant pleaded guilty), including the sufficiency of the evidence of their brandishing convictions, the adequacy of proof regarding a conspiracy conviction, the denial of a motion to suppress, and other evidentiary rulings.  The main focus of this appeal appears to be the Fourth Circuit’s determination that the federal offense of armed bank robbery is a “crime of violence” in the context of the brandishing offenses.  The Fourth Circuit rejected all of the defendants’ arguments, affirming the convictions here.

The defendants failed to contend that armed bank robbery was not a crime of violence at the district court, rendering their claim on this issue to plain error review.  The defendants faced a five-year mandatory minimum sentence for the carrying a firearm during or in relation to a crime of violence, consecutive to any sentence for the underlying offense.  Here, the brandishing of a firearm during a crime of violence would add two years to the mandatory minimum sentence the defendants faced.  The co-defendants argued that their convictions for brandishing a firearm must be vacated because the statutory language lacked as an element the use, attempted use, or threatened use of physical force.

The government argued that bank robbery, a lesser included offense of armed bank robbery, satisfied the force element because it includes the element that property must be taken “by force and violence, or by intimidation,” and the Fourth Circuit agreed with the government.  The Fourth Circuit cited to its own earlier case and case law from other circuits which held that other federal crimes with language similar to the instant statute have as an element the use, attempted use, or threatened use of physical force, and those are crimes of violence.  The Fourth Circuit reached the same conclusion here, and held that armed bank robbery is a crime of violence.

Adequacy of jury instructions on results from death language

US v. Alvarado:  Alvarado received a conviction for knowingly and intentionally distributing heroin to Eric Thomas in March 2011, which distribution resulted in Thomas’ death.  Alvarado received a mandatory minimum sentence of 20 years.  On appeal, Alvarado contended that the district court  erred in failing to clarify for the jury that the “results-in-death” statutory language meant that the jury could not convict Alvarado of the charged offense if heroin was only a contributing cause of death.  Alvarado also argued that the district court failed to instruct the jury that Alvarado must have “reasonably foreseen” that Thomas’ death could result from the distribution; and, that admitting hearsay testimony violated the rule against hearsay and Alvarado’s rights under the Sixth Amendment’s Confrontation Clause.

At trial, the jury asked the district court twice to clarify the meaning of the “death results from” element of the heroin distribution offense.  The district court declined to elaborate further.  The main question presented in the appeal is whether the district court should have explained further the statutory phrasing “results from.” Alvarado argued that the district court’s decision not to elaborate further (a decision which the defendant concurred at trial, subjecting this claim on appeal to plain error review) allowed the jury to convict Alvarado even if heroin was only a contributing cause of Thomas’ death, a more lenient standard that “but-for” causation, which standard the Supreme Court set out in Burrage.  As the dissenting opinion notes, the jury here unmistakably expressed its confusion as to the causation requirement, despite the district court’s tracking of the statutory language in its instructions.

The Fourth Circuit panel majority concluded, however, that because there was no evidence in the record that Thomas could have died without the heroin, that the jury’s verdict was consistent with the Supreme Court’s but-for causation requirement.

Late IPA Filing Not Excused By Good Cause, Manifest Injustice

US v. Cowley: Cowley was found guilty of firearm, drug, and witness possession crimes arising from the 1998 shooting of a drug dealer in West Virginia and was sentenced to 45 years in prison. Among the evidence presented at trial was testimony that Cowley was seen with the same gun the drug dealer's son had identified as the murder weapon (he saw the shooting, but the attackers were masked). Cowley's convictions and sentence were affirmed on direct appeal and during 2255 proceedings, which concluded in 2006. In 2014, Cowley filed a motion seeking DNA testing under the Innocence Protection Act (18 USC 3600), seeking testing of various items from the crime scene including shell casings, clothing, and blood stains. He also provided affidavits from eight witnesses that bolstered the alibi defense he unsuccessfully used at trial and identified four others as responsible for the murder. The district court denied Cowley's motion because it wasn't timely filed.

On appeal, the Fourth Circuit affirmed the denial of Cowley's IPA motion. It did so on the merits, however, rejecting the Government's argument that Cowley was required to get a Certificate of Appealability (as in a 2255 proceeding) before the court had jurisdiction to hear the appeal. On the merits, the court noted that the IPA has ten requirements that must be me to grant a motion, the last of which is that it is "made in a timely fashion, subject to" what the court called "certain rebuttable presumptions." The IPA creates a rebuttable presumption if a motion is filed within either three years of a final conviction or five years of the IPA's enactment in 2004. Cowley's conviction was final before the IPA was passed, so his deadline was October 2009 - five years before he filed his motion. Cowley argued that two of the IPA's exceptions excused his untimely filing - that the he had good cause for the delay and that denying his motion "would result in a manifest injustice." The court concluded that neither exception applied. It rejected Cowley's argument that he had good cause because he had been incarcerated and without counsel for the years between the passage of the IPA and his filing, holding that given the nature of the statute incarceration couldn't be good cause. On the manifest injustice exception the court held that Cowley could have obtained the "new" evidence he presented before trial and that the district court did not abuse its discretion in finding that Cowley failed to show that any injustice would be "unmistakable, clear, plain, or indisputable."

Concealed Firearm Possession In WV Not Enough Basis for Frisk

US v. Robinson: Police in Ranson, West Virginia, received an anonymous tip that a black man who was the passenger in a car had just been seen in a convenience store parking lot with a gun. He loaded the gun, put it in his pocket, and the car drove away. The area around the convenience store was generally considered a "high crime area." Officers responded and stopped the car because neither the driver or passenger (Robinson) were wearing seat belts. One officer asked Robinson to step out of the car ,while another asked if he had any weapons. Robinson didn't answer, but gave a "weird look." The officer frisked Robinson and found a gun. Robinson was charged with being a felon in possession of a firearm. He moved to suppress the gun, but the district court denied the motion. Robinson entered a conditional guilty plea and was sentenced to 37 months in prison.

On appeal, the Fourth Circuit reversed, 2-1. Everyone agreed that the initial stop was proper and there was no argument over whether the anonymous tip was reliable. Instead, the issue came down to "whether the subsequent frisk was lawful - that is, whether the officers had reasonable suspicion that Robinson was 'armed and dangerous.'" The court concluded that there was not. Of particular importance was the fact that, in West Virginia, it is not illegal to carry a concealed firearm, the fact that the tip reported someone concealing a weapon was not, in and of itself, sufficient to show that person was dangerous. "In a different time or jurisdiction," the court wrote, "it might well have." The court recognized that allowing police to frisk anyone they thought might be armed in states that allowed concealed carry would create a serious risk of invasion of privacy and give police unfettered discretion, "implicating concerns about abuse of police discretion that are central to the Fourth Amendment." Nor did the court find that the other factors present during the stop - the high crime area and Robinson's lack of an answer to the question of whether he was armed - created reasonable suspicion.

Judge Niemeyer dissented, arguing that the court's "remarkable holding establishes a new approach that will make traffic stops substantially more dangerous to police officers" and was based "on several basic flaws of law and logic."

Congrats to the Defender office in the Northern District of WV on the win!

No Appeal Waive Escape Hatch After Departure

US v. McLaughlin: McLaughlin pleaded guilty to bank fraud. Her plea agreement included the following provision (sing along if you know the words!), in which she agreed:

In addition, at the plea hearing the district court asked if McLaughlin understood "you reserve only the right to appeal from an upward departure from the advisory guideline range established at sentencing and that you otherwise waive all rights to appeal whatever sentence is imposed?" McLaughlin said she understood. At sentencing, the district court applied a four-level enhancement for role in the offense, producing a Guideline range of 15 to 21 months. The district court then departed due to the under representation of McLaughlin's criminal history and imposed a sentence of 27 months.

The Fourth Circuit dismissed McLaughlin's appeal, in which she challenged the four-level enhancement, but not the upward departure. McLaughlin argued that she retained her right to appeal any part of the sentence because the sentence was "in excess of the applicable advisory Guideline range that is established at sentencing." The court disagreed, however, holding that the broader clause of the waiver - covering "whatever sentence is imposed on any ground, including any issues [relating] to the establishment of the advisory Guideline range" - controlled. If not, the exception clause on which McLaughlin relied would swallow the broader provision. Relying on contractual interpretation tools, the court "decline[d] McLaughlin's invitation to reduce much of her waiver to mere surplusage." The court also found that there was no ambiguity in the waiver (which would then be construed against the Government) simply because McLaughlin and the Government read the provision in different ways.

Ex-husband attempts to extort alimony payments

US v. White:  William White had received a 30-month sentence for making threatening phone calls to a university administrator and sending letters of intimidation to several tenants that filed a fair housing complaint against him in 2010.  He had appealed his conviction and sentence, and the Fourth Circuit remanded his case for re-sentencing on May 14, 2012.  Out on supervised release, Mr. White failed to appear for re-sentencing, having absconded to Mexico.  White’s then-estranged wife, with whom he had at least an informal alimony agreement, stopped making alimony payments when she learned he was “on the lam” because she feared that she’d be charged with aiding a fugitive.  White began threatening her to get his cash.  The woman he went to Mexico with began cooperating with the FBI; Mr. White’s attempts to extort his ex-wife formed the basis for this case.   After an anonymous jury convicted him (he also had a prior history of interfering with witnesses and a juror) for felony transmission of threats through interstate commerce with the intent to extort, as well as the lesser-included offense of transmitting a threat (without the intent to extort), White received a 92-month federal sentence.

On appeal, White challenged the sufficiency of the evidence presented at trial, and disputed the procedural and substantive reasonableness of his sentence.  The Fourth Circuit affirmed.  The main focus of White’s appeal concerned the legal requirements for his convictions, specifically whether he could have intended to “extort” alimony payments to which he claims he was legally entitled.  While the instruction that the district court gave at trial was erroneous in light of the Supreme Court’s 2015 decision in Elonis v. United States (a case which considered true threats and the limits of speech on social media), the Fourth Circuit held that the error here was harmless, the jury having “soundly rejected” White’s defense that he did not send any emails to his ex-wife.  After Elonis, a conviction pursuant to § 875(c) requires that the following three elements be met: 1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; 2) that the defendant subjectively intended the communication as a threat; and 3) the content of the communication contained a “true threat” to kidnap or injure.

One district judge's two cents on the guidelines

US v. Martinovich:  In this appeal, the Fourth Circuit upheld the appellant’s convictions in connection with his investment consulting activities, but vacated the sentence imposed for the district court’s insistence on referring to the advisory federal sentencing guidelines as mandatory.  What’s more, the district court’s “ill-advised comments and interference” at trial were so “imprudent and poorly conveyed” as to narrowly miss depriving the appellant of a fair trial.  Further, the Fourth Circuit ordered that a different judge be assigned to handle sentencing upon remand.

A jury convicted Martinovich after a four-week trial, and he was sentenced him near the low end of the guidelines, 140 months, with fines & restitution totaling $1.76 million.  The government had charged Martinovich with defrauding clients of his investment firm and a subsidiary hedge fund group, alleging that he invested client funds in a solar energy company in anticipation of large returns from the company’s planned initial public offering, which the company eventually abandoned (and it subsequently filed for bankruptcy).  Earlier, Martinovich had persuaded a shareholder of the energy company to provide inflated valuations of the company’s stock, so Martinovich could collect higher fees.  His convictions included conspiracy to commit mail and wire fraud, wire fraud, mail fraud, and money laundering.

Martinovich argued on appeal that the district court improperly interfered with the trial proceedings and misstated the law during his sentencing proceedings.  While the Fourth Circuit found that the district court had, indeed, erred in interrupting trial and interfering with the defense’s presentation of its case, the error did not give rise to prejudice, in light of the “overwhelming” evidence of Martinovich’s guilt.  Moreover, Martinovich’s attorneys did not object at trial to the district court’s conduct.  The Fourth Circuit held that Martinovich had not been deprived of a fair trial.

The panel did agree, however, that Martinovich’s sentence was improperly imposed as a result of the district court’s insistence, despite objections from both the government and defense counsel, that the guidelines were mandatory.  The Fourth Circuit also determined that it would be futile to remand the case for re-sentencing before the trial court, so it remanded with instructions for a new judge to be assigned for re-sentencing.

Officer Lie About Having Search Warrant Required Suppression

US v. Rush: Rush was a guest at the apartment of Wills, who suspected he was selling drugs. She called police and asked them to remove him from her apartment. She met them at her place of employment, signed a consent to search her apartment, and provided officers with the key. Officers went to the apartment, bust in yelling "police!," and rousted Rush out of bed, putting him in handcuffs. When he asked what was going on, one of the officers lied and said they had a warrant to search the apartment. That they did, finding crack cocaine (at Rush's direction). Rush was cooperative, providing information about his supplier. The officers left without arresting Rush, or otherwise ejecting him from the apartment (he later went to the station, talked to the police some more, and was again released). He was eventually charged with possession with the intent to distribute crack and moved to suppress the evidence recovered in the apartment.

The district court found that the lie about the warrant kept Rush from exercising his right to refuse the consent search under Randolph, but declined to suppress the evidence because the lie was motivated by the officer's desire to protect Wills (by not informing Rush that she called the police on him). Rush entered a conditional plea, was sentenced to 12 months and a day in prison, and left on bond pending appeal.

On appeal, the Fourth Circuit reversed, concluding that the evidence from the apartment should have been suppressed. The court concluded that the good-faith exception to the exclusionary rule did not apply because Rush's case "bears no resemblance to the previous applications of the good-faith exception" because "the search was unconstitutional due to the intentional decision" of the officer to lie about having a search warrant. There was "no doubt that a reasonable officer would know that deliberately lying about the existence of a warrant would violate Defendant's Fourth Amendment rights." The officer's decision to lie was "deliberate, contrary to long-standing precedent and objectively unreasonable." The court also rejected the Government's argument that the alleged reason for the lie (protecting Wills) was relevant, given that the analysis was objective, not subjective (and doubted whether it was true, anyway).

Congrats to the Defender office in SDWV on the win!

Acquiescence After Abandonment Avoids Fourth Amendment Problems

US v. Stover: Stover was sitting in a parking lot in a SUV, along with a passenger, when police arrived, Police decided to investigate because the SUV had out of state plates, was in a high crime area, and had not moved in some time. When an officer approached the SUV, Stover got out, opened the rear driver's side door, then walked to the front of the SUV and tossed a gun away. At all times, the officer was ordering Stover to get back in the car, but Stover never said anything. He only got back in the car once the gun had been tossed away. The gun was recovered and Stover was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the police didn't have reasonable suspicion to justify a stop. The Government agreed, but argued that Stover wasn't "seized" until the gun had been tossed away (and thus abandoned) because he hadn't acquiesced to any of the officer's commands up to that point. The district court agreed and denied the motion.

On appeal, the Fourth Circuit affirmed, 2-1 noting that the question was not whether Stover was seized, but when he was seized. The court held, contrary to the Government's position, that Stover was seized when the officers pulled up and began giving him orders, for at that point he would not have felt that he was free to leave. However, the court agreed with the Government that Stover's conduct after that point showed that the district court did not clearly err in concluding that he did not acquiesce until after the gun had been tossed away. The court distinguished prior case where someone acquiesced before the discovery of contraband and noted that things might be different if Stover had dropped the gun while he remained seated in the car, as per the officer's orders.

Judge Gregory dissented, arguing that while the majority used the right analysis, it did not consider all the relevant facts and reached the wrong conclusion.

Sentencing Reduction for Defendant With Mandatory Minimum and Substantial Assistance

US v. Williams: Williams (a completely different one from above - even though they both came out of the same district and same judge!) pleaded guilty to distribution of crack cocaine in 2008, a plea which, thanks to an 851 information, carried a mandatory minimum sentence of 20 years. Williams's Guideline range, however, was only 130 to 162 months. Williams received a substantial assistance departure and was sentenced to 180 months. Williams moved for a reduced sentence under 18 USC 3582 when recent amendments to the Guidelines reduced his range to 77 to 96 months. Although the Government joined in the motion, the district court denied the reduction, concluding that Williams's sentence was based on a statutory mandatory minimum, not a Guideline range, and that mandatory minimum (and subsequent departure) had not been changed.

On appeal, the Fourth Circuit reversed the district court's decision, 2-1. The court held that a recent amendment to USSG 1B1.10 that addressed situations such as these - where a statutory substantial assistance motion allowed the district court to impose a sentence below a mandatory minimum - overrode prior Fourth Circuit case law and made Williams eligible for a reduction. Specifically, in these cases the statutory mandatory minimum does not become the Guideline range as it otherwise would. Because Williams's Guideline range (regardless of any statutory requirement) goes down, he is eligible for a reduction. The court remanded to the district court to determine whether a reduction was appropriate and, if so, the extent of such a reduction.

Chief Judge Traxler dissented, arguing that Williams's sentence was "based on a statutory mandatory minimum" that has not been lowered by Congress and that the Sentencing Commission has no power to alter.

Congrats to the Defender office in the Middle District of NC on the win!

Collection of Innocent Factors Doesn't Add Up to Reasonable Suspicion During Traffic Stop

US v. Williams: Williams was in a car that was pulled over on the Interstate in North Carolina, just behind a car drive by his brother (which was also pulled over). Williams was given a written warning for speeding, but was then asked by the officer if there was anything illegal in the car. Williams said no and denied consent to search the car. The officer then told Williams to "hold on" while another officer conducted a dog sniff of the car, The dog alerted and drugs were found in the car. Less than three minutes passed between Williams getting the warning and the dog's alert. Williams moved to suppress the evidence discovered as a result of the search. The district court denied the motion after holding two hearings on the matter, concluding that the officers had reasonable suspicion based on four factors, that: (1) Williams was in a rental car; (2) he was on a "known drug corridor" after midnight; (3) his travel plans were inconsistent with the date by which the rental car needed to be returned; and (4) he was unable to provide a permanent home address, having given a PO Box (which differed from the address on his New York drivers license) and stated that he lived sometimes with his girlfriend in New Jersey.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. The court found that the factors relied upon by the district court did not create reasonable suspicion that criminal activity was afoot. For example, none of the officers "explained any connection between use of a rental car and criminal activity." Similarly, while the Interstate may be a known route for drug traffickers, "the number of persons using the interstate highways as drug corridors pales in comparison to the number of innocent travelers on the road." That the rental agreement seemed inconsistent with travel plans was also irrelevant because rental agreements could be easily extended or modified and "no reasonable, articulable suspicion of criminality arises from the mere fact that Williams's travel plans were likely to exceed the initial duration of the rental agreement." Finally, as to the addresses, none of the officers "explained how using a post office box address, or living in New York or New Jersey, raised some suspicion of criminal activity." Even taken together, the four factors "fail to eliminate a substantial portion of innocent travelers" and did not provide reasonable suspicion to extend the stop.

Congrats to the Defender office in the Middle District of NC on the win!

Court Tears Apart Factual Support for Heroin Convictions

US v. Blue: Baltimore cops were surveilling a potential drug operation that eventually brought them to Blue, who met briefly with the target of their surveillance and gave him a "brownish-tannish item." Blue walked away, while the target was arrested and found in possession of almost 50 grams of heroin. A month later investigators surveilled Blue himself, following him to an apartment complex which he entered, then exited five minutes later "holding a sandwich-sized, cloudy white container in his hand." Investigators followed Blue to another brief meeting then arrested him. Following his arrest, Blue admitted that the brief meeting had been to discuss a drug deal. Blue was found in possession of a key to an apartment in the complex where he had been followed earlier in the day, a search of which uncovered 108 grams of heroin. There was no indication that Blue lived in the apartment or had any connection to the people who did. Blue was charged and convicted at trial of conspiracy to possess with intent to distribute more than 100 grams of heroin (Count 1 - based on the first incident) and possession with intent to distribute more than 100 grams of heroin (Count 3 - based on the second incident).

On appeal, the Fourth Circuit reversed both of Blue's convictions because there was insufficient evidence to support them. On Count 3, the court held that the fact that Blue possessed the key to the apartment where he (presumably - nobody saw which apartment he entered) stayed for five minutes was "insufficient evidence to establish his constructive possession of the heroin found" in the apartment. It rejected the Government inference that Blue used the apartment as a stash house as "an unreasonable one given the complete lack of evidence establishing any connection to any of the occupants." Nor was the "sandwich-sized plastic container" of any probative value, as it was never linked to heroin. The court also rejected the Government's reliance on an Eighth Circuit holding that someone in possession of a key to a dwelling has constructive possession of its contents. Count 1 suffered the same fate, as the only way the Government could reach the 100-gram threshold was to bring in the heroin seized from the apartment which, the court had already ruled, wasn't sufficiently tied to Blue.

Congrats to the Defender office in Maryland on the win!

Separate Sources for Child Porn Images Defeat Double Jeopardy Claim

US v. Schnittker: Schnittker was charged with two counts related to child pornography, one for receipt and one for possession. The charges were based on evidence found during a search of his home, including two hard drives, one Western Digital and one Maxtor. Both counts of the indictment spoke generally of "child pornography" being possessed, but during plea negotiations the Government informed Schnittker that the possession charge would be based on images found on the Western Digital drive, while the receipt charge was based on images found on the Maxtor drive. Although the drives had some overlap in terms of images, each had images unique to it. Schnittker pleaded guilty to the possession charge. The statement of facts at the plea hearing referenced the Western Digital drive, but didn't mention the Maxtor. Schnittker then went to trial on the receipt charge, where the Government used his guilty plea on the possession charge as 404(b) evidence against him. The district court denied Schnittker's motion to dismiss that charge on double jeopardy grounds and convicted him on receipt.

On appeal, the Fourth Circuit affirmed the district court's decision denying Schnittker's double jeopardy challenge. The court assumed that the two offenses (possession and receipt) were the "same in law" and moved on to determine they were also "the same in fact." The court concluded that they were not because of the different sources of the images at issue in each charge, holding that an "objective person in Schnittker's position would have understood that he was pleading guilty to possession . . . only in regard to the child pornography on the Western Digital hard drive." Because the receipt charge involved the Maxtor drive and at least one unique image from that drive "the two offense at issue in this case were not the same in fact."

Statutory penalties for priors controlling, not the sentence received

US v. Sellers:  James Morris Sellers challenged his qualification as an armed career criminal at sentencing for the unlawful possession of a firearm.  He had three prior South Carolina drug convictions for which he had been sentenced under South Carolina’s Youthful Offender Act.  This Act permits lower maximum penalties for certain offenders, a cap of six years of incarceration.  On appeal, Sellers argued that his priors did not qualify him as an armed career criminal because the sentences he had received were not sufficiently long enough to qualify as predicate offenses.  Here, the Fourth Circuit rejected Sellers’ argument that his sentences under the Youthful Offender Act did not qualify as ACCA predicates, reaffirming its earlier cases, Simmons and Williams.

The Fourth Circuit earlier held that whether a prior conviction qualifies as a predicate for a federal sentencing enhancement depends on the statutory penalty for the prior conviction, not the sentence the defendant may have received.  Sellers argued here on appeal that this holding was no longer good law, but the Fourth Circuit rejected that argument, holding instead that the maximum statutory penalty for the prior conviction(s) is unaffected by the state court’s exercise of its discretion to sentence a defendant to less than the maximum penalty.  Sellers, then, had properly been categorized as an armed career criminal for his three prior drug crimes, and the Fourth Circuit affirmed his sentence.

Loss calculation leads to remand

US v. Qazah:  Kamal Qazah and his uncle, Nasser Alquza, received charges for conspiracy to receive and transport stolen cigarettes, conspiracy to commit money laundering, and money laundering.  Qazah received an additional charge for receiving cigarettes purportedly stolen in interstate commerce.  After a jury convicted Qazah and Alquza of these charges, Alquza appealed the district court’s denial of his pre-trial motion to suppress evidence recovered during a search of his home; Qazah appealed the denial of his pre-trial motion to sever.  Both defendants appealed their sentences, specifically the district court’s calculation of the loss amount for which they were held responsible, by relying upon the retail as opposed to wholesale value of the purportedly stolen cigarettes.   The Fourth Circuit upheld the convictions, but vacated the defendants’ sentences for further evidence gathering on the loss calculation.

In its calculation of loss analysis, the Fourth Circuit examined the district court’s basis for its use of the retail value of the stolen cigarettes in determining the defendants’ sentences.  The district court believed that it was obliged to apply the “greatest intended loss” as between the wholesale and retail value of the cigarettes, regardless of whether the value in fact represented a loss.  The retail value of the cigarettes here was $3k per case, and the wholesale value was $2,126 per case.

The parties agreed, as did the district court, that the “intended loss” rather than “actual loss” is the relevant measure under the guidelines.  The general rule that guides the Fourth Circuit is that loss is determined by measuring the harm to the victim, one of whom was Phillip Morris.  The cigarette company’s loss would have been the amount it would have otherwise received for selling the cigarettes, which the record indicated was $2,126 per case (8,000 cases were involved).  The Fourth Circuit noted, however, that there may have been other victims here, e.g. the states that did not make money on the taxes on cigarettes lawfully sold, and sales that legitimate retailers may have made.  The identities, then, of the intended victims and their losses are questions of fact for the district court to resolve, so the Fourth Circuit vacated and remanded.

Insufficient evidence of "purpose"

US v. Palomino-Coronado:  In this appeal, the defendant challenged his conviction for one count of enticing a minor to engage in sexual conduct for the purpose of producing a visual depiction of that conduct.  In this case, there was only one photograph involved.  Further, at trial, expert testimony revealed that during the course of the investigation, the child forensic interviews were coercive and did not follow established protocols.  The defendant moved for an acquittal at the close of the government’s case, based on insufficient evidence, which the district court denied.  The jury found the defendant guilty.  On appeal, the Fourth Circuit determined that the district court erred in denying the defendant’s Rule 29 motion, reversing and vacating the conviction.

As a matter of first impression, the Fourth Circuit considered a sufficiency of the evidence challenge to the statute at issue here, and focused its analysis on what evidence may show that a defendant acted with purpose.  The Fourth Circuit stated that many times, courts are left with only circumstantial evidence to demonstrate a defendant’s purpose.  The Fourth Circuit also found instructive the cases wherein the number of sexually explicit recordings or depictions as indicators of purpose, as well as evidence presented of “purposeful conduct,” considering the types of photography or video tools used.

On appeal, the defendant here argued that the government failed to prove that he acted for the purpose of producing a visual depiction [emphasis in original], as the government had offered only one cell phone image of sexually explicit conduct with the victim, a photo that the defendant had deleted from his phone.  Without more, the Fourth Circuit concluded, the facts of the case did not support the conclusion that the defendant here acted in order to take a picture, as required by the statute of his conviction.

On rehearing, indictment properly dismissed

US v. Vinson:  Vinson filed a petition for rehearing after a Fourth Circuit panel earlier (see here) vacated the district court’s order granting his motion to dismiss the indictment against him, asserting a new basis for affirming the dismissal of his indictment.  On rehearing, the Fourth Circuit changed course, affirming the district court’s order dismissing the indictment.

The Fourth Circuit begins its analysis here by stating that Vinson did not raise the issue it finds dispositive in his opening brief to the Fourth Circuit or the district court; the rule precluding consideration of issues for the first time on appeal to the Fourth Circuit is prudential, not jurisdictional, so the Fourth Circuit determined that under the circumstances presented in this case, it would exercise its discretion to consider the issues Vinson raised in his petition for rehearing.

Vinson raised the issue of whether Vinson’s conviction under North Carolina’s assault and battery statute qualifies as a conviction for a misdemeanor crime of domestic violence (“MCDV”).  The Fourth Circuit held here that none of the categories of assault under North Carolina law have elements matching the elements of an MCDV under 18 U.S.C. §921(a)(33)(A), so the district court properly dismissed the indictment against Vinson.

ACCA Sentence Based on South Carolina Burglary Convictions Vacated

US v. McLeod: McLeod pleaded guilty to being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act based on several prior South Carolina burglary convictions, even though McLeod argued that his convictions did not match the generic definition of burglary. He was sentenced to 188 months in prison.

On appeal, McLeod argued (among other things) that the South Carolina convictions didn't meet the generic definition of burglary with regard to the location involved. The Fourth Circuit agreed and vacated his sentence. The court held that while the South Carolina statute involved burglary of a "building" and "appears at first glance to parrot the language of generic burglary," the term "building" is defined as including "any structure, vehicle, watercraft, or aircraft." The district court could apply the modified categorical approach to determine which type of "building" was involved. However, a closer review of the relevant plea transcript show that McLeod actually pleaded guilty to a different form of burglary, although one with an equally broad definition of the place to be broken into (a "dwelling" instead of a "building"). Because the Government could present no appropriate documents to show which of the various "dwellings" McLeod broke into it could not show that his prior convictions qualified as ACCA predicates.

Obstruction Enhancement OK'd Based on False Alibi Testimony of Defense Witnesses

US v. Andrews: Andrews robbed a pizza joint, making off with some cash and the manager's wallet. Pursuing police found an abandoned car, in which they found two wallets (the manager's and Andrews's), a cell phone with pictures of Andrews's family, a traffic ticket with his name on it, and a "bill of sale showing that Andrews owned the vehicle." Officers also found a cap that matched the description of the robber and was matched to Andrews via DNA testing. He was charged with Hobbs Act robbery and using a firearm in relation to a crime of violence. Prior to trial he gave notice of an alibi defense (as well as filing a pro se motion suggesting the prosecutors were intimidating witnesses). The defense was provided by two witnesses, Andrews's mother and girlfriend, who testified that Andrews was at home the night of the robbery. Andrews didn't testify. He was convicted on all counts. At sentencing, his sentence was enhanced for obstruction of justice based on his "prior knowledge of the false testimony" provided by his alibi witnesses and his "subsequent silence during trial."

Andrews appealed only his sentence, particularly the imposition of the obstruction enhancement, which the Fourth Circuit affirmed. While the court noted that the paradigmatic example of the enhancement applying after a trial is perjury on the defendant's part, or subornation thereof, it is "warranted if the court below made a proper finding of obstruction even if it did not specifically find the subornation of perjury." The court also rejected the application of de novo review, stressing the discretion involved by the district court after evaluating evidence. In this case, the district court rested "the enhancement on the very essence of [obstruction] - the willful obstruction of justice" because of Andrews's knowledge of the false alibi testimony, at least after the first alibi witness had testified.

Lack of Proabable Cause Dooms Search Undertaken After Traffic Stop

US v. Patiutka: Patiutka was pulled over on an Interstate in Virginia for failure to maintain a lane. He gave the name Roman Pak to the officer who, although he thought Patiutka might have been lying to him, "asked no follow-up questions about Patiutka's purported lie." The officer gave Patiutka a verbal warning, told him was "free to go," but later testified that "in his mind, [Patiutka] wasn't free to leave" because he "intended to reengage Patiutka in conversation and obtain consent to search the car." The officer got what he thought was consent, which led other officers (who arrived during the stop) to search the car and find a credit card reader and "four new, unopened iPads" sitting in a suitcase. Patiutka asked what was going on and objected to any search. The search stopped, but an officer announced he "was placing Patiutka in 'investigative detention'" and put him in a patrol car. The search resumed, further items indicative of credit card fraud were found, and Patiutka was taken to the police station, where he made "a number of incriminating statements."

Patiutka was charged with credit card fraud and identity theft and filed a motion to suppress the evidence found during the stop. At the suppression hearing, the officer who stopped him testified that Patiutka "would have ultimately arrested for providing a false ID" regardless of whether the search uncovered anything or not. The district court granted the motion, rejected several argument by the Government that the evidence was admissible under various exceptions to the warrant requirement in the Fourth Amendment.

On appeal, the Fourth Circuit affirmed the suppression, also rejected the Government's arguments to avoid the Fourth Amendment's warrant requirement. First, the court rejected the argument that the search was done incident to a lawful arrest, namely for the state offense of providing false identity information to the officer. The court noted that there was no probable cause to support such a charge at the time Patiutka revoked his alleged consent and that the district court's conclusion that the officer's testimony wasn't credible (based on video of the stop) was not clearly erroneous. Second, the court rejected the Government's argument that the automobile exception meant a warrant was not required by holding that, regardless of a warrant, there was no probable cause to continue the search once Patiutka revoked his alleged consent. The items that had been found by that point could be legally possessed and "innocuous explanations for a driver's possession of these items abound."  Furthermore, collective knowledge of the officers could not save the search because the information that the first officer would have imparted to the others was, as the court already held, insufficient to support probable cause anyway.

Lack of Particularized Evidence of Wrongdoing Dooms Stop

US v. Slocumb: A bunch of police officers arrived at the parking lot of a business (closed for the night) that they were going to use as a staging area for executing a search warrant nearby. The lot itself was known as a "place for drug activity."  Slocumb was there, along with his girlfriend and their child. Slocumb was transferring a car seat from one car to another. Slocumb explained that his girlfriend's car had broken down and he had come to retrieve her and the child. During the conversation Slocumb "did not make eye contact and gave mumbled responses," which the officer considered suspicious. Another officer said (to the first officer, not to Slocumb directly) that they were "not allowed to leave" and the rest of the officers went to execute the warrant. The officer left behind to guard Slocumb and his girlfriend later said that when he asked Slocumb about "his knowledge of drugs at the target house" he began acting "increasingly nervous and [did] not make eye contact." Slocumb, at some point during the conversation, told the officer his name was Anthony Francis. A second officer arrived and asked the girlfriend for Slocumb's name, to which she answered "Hakeem," a name "the officers recognized as someone who was under investigation for drug trafficking." Slocumb was arrested for providing a false name. Officers recovered $6000 in cash from Slocumb and drugs from where he had been sitting in his car. Slocumb admitted the drugs were his and that his girlfriend knew nothing about them. Slocumb unsuccessfully moved to suppress the evidence recovered from him and the car.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. The court held that although there were several general factors that might have supported reasonable suspicion to detain Slocumb, the only thing that might provide particularized suspicion of wrongdoing - Slocumb's own behavior - was not sufficient to meet that threshold. He did not flee, was not evasive with the officers, and his other behavior was not indicative of wrongdoing. Thus, the court concluded, viewed "in their totality, the factors cited by the district court do not amount to reasonable suspicion to justify Slocumb's seizure."

Departure Based on Old Juvenile Convictions OK

US v. McCoy: McCoy was charged with two drug charges at trial, at which the jury concluded he was responsible for between 500 grams and 5 kilograms of cocaine. Testimony at trial concerned three separate purchases of cocaine, one of which was "returned for poor quality." At sentencing, the probation officer included all three buys (including the "returned" one) as relevant conduct, producing a total of 7 kilograms and a guideline range of 135 to 168 months. McCoy argued for a sentence of 120 months (the mandatory minimum). while the Government sought an upward departure based on three juvenile convictions which did not factor in the Guideline calculations and a sentence of 192 months. The district court departed (to a slightly higher Guideline range than the Government requested) and imposed a sentence of 188 months in prison.

McCoy appealed, arguing only that his sentence was substantively unreasonable, for several reasons, all of which the Fourth Circuit rejected. First, the court rejected McCoy's argument that the district court should not have considered the juvenile convictions. The court noted that the district court was free to base a departure on convictions that were otherwise too old to count in the criminal history score and that the "seriousness of the juvenile crimes" demonstrated McCoy's likelihood of recidivism. Second, the court rejected McCoy's argument that the district court erred by departing to Criminal History Category V, rather than IV as the Government requested, noting that while the Government's request is an important consideration, it's not binding on the district court. In addition, though the district court's Guideline range was higher than the one requested by the Government, the actual sentence imposed was slightly lower. Finally, the court rejected McCoy's argument that his sentence overstated the seriousness of his offense. The court also pointed out that the proper remedy for the amendment of the Guidelines between sentencing and appeal was to file a 3582 motion seeking a reduction in the district court.

Defendant didn't forfeit his right to counsel

US v. Ductan:  In this appeal, the Fourth Circuit considered whether Phillip Ductan forfeited his right to counsel with some aberrant behavior.  Ductan, accused of conspiracy to distribute marijuana and carrying a firearm during his drug trafficking crime, appeared in court in May 2012 to answer charges dating back to September 2004.  Originally, Ductan appeared with retained counsel, who immediately moved to withdraw. That motion was granted following a hearing wherein the magistrate court and Ductan could not reach an understanding about Ductan’s representation (and some weird nonsensical behavior from Ductan), the result of which was the magistrate court’s finding that Ductan had forfeited his right to counsel.  Ductan’s appointed/stand-by counsel later attempted to withdraw, but that motion was denied and the case proceeded to trial.  Ultimately, Ductan represented himself and the jury found him guilty on all counts.  

On appeal, the Fourth Circuit determined that, based on its prior holdings, representation by counsel is the default position, because the access to counsel affects a defendant’s ability to assert any other rights the defendant may have.  Further, effective assertion of right to represent oneself requires a defendant to knowingly and intelligently forgo the benefit of counsel after being made aware of the dangers and disadvantages of self-representation.  The assertion of the right to self-representation must also be clear and unequivocal, so a crafty defendant cannot manipulate the 6th Amendment dilemma (there is a “thin line between improperly allowing the defendant to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation.”) to create reversible error.

Ductan argued on appeal that the right to counsel cannot be forfeited by misconduct, and no waiver occurred because he did not “clearly and unequivocally” declare that he wanted to proceed pro se; he wanted retained counsel, not court-appointed defense, and he did not want to represent himself.

Despite Ductan’s lack of cooperation with the magistrate court, essentially rejecting any option presented to him, he never acted out egregiously, in a manner that other courts have found justified forfeiture of the right to counsel (e.g., death threats, unprovoked physical assault).  The Fourth Circuit has not previously endorsed the holding that a defendant can forfeit the right to counsel, and it chose not to do so here.  Additionally, the Fourth Circuit held that Ductan did not waive his right to counsel, and even if he had, no valid waiver occurred because the magistrate court did not complete its Faretta inquiry.  The panel vacated Ductan’s conviction and remanded for a new trial.

Congress Can Criminalize International Illicit Non-Commercial Sex

US v. Bollinger: Bollinger was a minister who moved to Haiti in 2004, along with his wife, to run a ministry. He enjoyed the services of local prostitutes and, eventually, began molesting young girls. In 2009 (while in bed with another woman), Bollinger got a call from his wife and confessed his infidelity. He returned to Virginia a week later to start counseling. As part of that counseling he admitted his sexual acts with young girls. The psychologist treating the couple contacted authorities. Bollinger was charged with engaging in illicit sexual acts with minor after traveling in foreign commerce. Bollinger entered a conditional guilty plea when the district court denied his motion to dismiss the indictment.

On appeal, the Fourth Circuit affirmed Bollinger's conviction, rejecting his argument that the statute exceeded the scope of Congressional authority. Recognizing that Bollinger's conduct was "non-commercial illicit conduct," the court examined whether it was encompassed by the Foreign Commerce Clause. It declined Bollinger's invitation to "wholly transport" the Supreme Court's jurisprudence involving the Interstate Commerce Clause, concluding (among other things) that the federalism concerns that were implicated in interstate regulation did not apply to foreign regulation. Thus, "the pivotal question in this case is how directly an activity must affect foreign commerce for it to be a proper subject of congressional regulation." The Foreign Commerce Clause, the court concluded, only required a "demonstrable effect" on such commerce, rather than a "substantial effect," as with interstate commerce. It was then "imminently rational to believe that prohibiting non-commercial sexual abuse of children by Americans abroad has  a demonstrable effect on sex tourism and the commercial sex industry." Thus, it fell within Congress's power.

The court also rejected Bollinger's challenge to his sentence of 25 years in prison, a variance downward from an advisory Guideline range (and statutory max) of 60 years.

Sex Trafficking Not a Crime of Violence

US v. Fuertes: Fuertes and his codefendant, Ventura, were involved in an interstate prostitution scheme that operated in Maryland. After a jury trial they were both convicted of conspiracy, with Ventura additionally convicted of sex trafficking by force, fraud or coercion under 18 USC 1591(a), as well as possessing a firearm in connection with a crime of violence - the 1591 offense. Fuertes received a sentence of 215 months in prison, Ventura one of 420 months in prison.

On appeal the Fourth Circuit affirmed most of the convictions and Fuertes's sentence, on issues including evidentiary claims and sufficiency of the evidence. However, the court vacated Ventura's conviction on the firearm possession count (and, thus, his sentence). It concluded that 1591 was not a "crime of violence" predicate for the offense. It did so under a plain error standard because while Ventura had moved for a judgment of acquittal on that count he had not presented the legal argument (versus the factual one) that he presented to the Fourth Circuit. Nonetheless, the error was plain, affected his substantial rights, and was of the type the court decided to notice. Section 1591, the court held, was not divisible because "it contains a single indivisible set of elements," although it had many "alternative means of commission." It rejected the Government's argument that the offense was categorically violent even if committed via fraud because "there is still a substantial risk of physical injury from the prostitute's customers," holding that the relevant statutory language required that force be used during the commission of the offense: "the relevant inquiry is not whether there is risk of any person using force in any way tangentially related to an on-going offense, but rather whether there is a substantial risk of the defendant doing so."

Mandatory Life for Piracy Not Cruel & Unusual

US v. Said: Said was one of several defendants in this consolidated appeal that were convicted of piracy. The convictions arose from not one but two unsuccessful attempts to capture ships that, it turned out, were military craft (a Royal Navy frigate and a US Navy dock landing ship). The second attempt left the pirates' boat destroyed and the pirates in custody of the US Navy. They were brought to the Eastern District of Virginia and charged with (among other things) piracy on the high seas under 18 USC 1651 which carries a mandatory life sentence. After unsuccessfully trying to dismiss that charge (for reasons explained here), Said and all but one of the other pirates were convicted at trial. However, the district court concluded that a life sentence in this case violated the Eighth Amendment's prohibition on cruel and unusual punishment and imposed various terms of months on the defendants. The Government appealed.

On appeal the Fourth Circuit vacated the sentences and remanded the case for the imposition of life sentences. The court concluded that Said couldn't make it past the first prong of the Supreme Court's test for non-capital Eighth Amendment sentences, that "the gravity of the offense and the severity of the sentence produces an inference of gross disproportionality." It noted that the Supreme Court had only found one non-capital sentence to be grossly disproportionate (life as a recidivist after passing a bad check) and that the Fourth Circuit hasn't identified any such sentence since. The court rejected the argument that the defendants' conduct was merely "attempted robbery on the high seas" that didn't result in any serious injury or damage, noting that  it was "at least as severe as the cocaine possession" that the Supreme Court held could trigger a life sentence. The statutory life sentence "reflects a rational legislative judgment, entitled to deference" about the danger posed by piracy.

Judge Davis concurred, suggesting that "not all piracy offense are equal in severity" and that Congress might revisit the issue.

Warrant Requires to Get Historical Cell Cite Info

US v. Graham: Graham and his codefendant, Jordan, were involved in a string of commercial robberies that took place in and around Baltimore. They were arrested after the last theft when they were stopped in the truck that served as a getaway vehicle. Among the evidence retrieved from the truck was a pair of cell phones, one subscribed to Jordan and the other to Graham's wife. Investigators obtained court orders, pursuant to the Stored Communications Act, to obtain cell site location information ("CSLI") from the phones. CSLI (I'm grossly simplifying here) can help determine the location of a phone over time as it interacts with various cell towers to send and receive information. Investigators were able to use the CSLI to place the phones (and, by association) Graham and Jordan near robbery sites. Graham and Jordan moved to suppress that data, arguing that investigators were required to get a warrant before obtaining it. The district court denied the motion and Graham and Jordan were convicted at trial of various counts related to the robberies.

On appeal the Fourth Circuit affirmed the convictions and the district court's order denying suppression of the CSLI. However, the court was deeply divided on the rational for doing so. The majority concluded that investigators should have gotten a warrant obtain the CSLI, but concluded that suppression wasn't appropriate because they did comply with existing law when getting a court order under the Stored Communications Act. Specifically, the investigators' inspect of "a cell phone user's historical CSLI for an extended period of time" was a "search" for Fourth Amendment purposes. It wasn't persuaded that Graham and Jordan waived any expectation of privacy based on the fine print of their contract that, the court realized, nobody actually reads. As to the data itself, it looked to the concurring opinions in the Supreme Court's recent Jones and the concerns about being able to harvest vast amounts of data. It also distinguished cases like Jones itself (and the prior beeper cases) that tracked vehicles by pointing out that a phone location is often the location of a person and can include traditionally protected places like the home.

The main fissure between the majority and the dissenting Judge Motz was over the third-party doctrine. The majority concluded that it didn't apply here because "cell phone users do not voluntarily convey their CSLI to their service providers." That is because the data accumulates even when the person isn't using the phone, such as when a text message is received or an incoming phone call isn't answered. Judge Motz, by comparison, argued that the majority's conclusion "flies in the face of the Supreme Court's well-established third-party doctrine" and that the CSLI was the same as the pen register information covered by the Supreme Court's decision in Smith. The majority recognizes that its holding is at odds with decisions of the Fifth and Eleventh Circuits.

However, the end result of both the majority and dissenting opinions are the same - no suppression.

In the midst of all this Judge Thacker wrote a brief concurrence expressing her "concern about the erosion of privacy in this era of rapid technological development" and concludes by saying "this decision continues a time-honored American tradition -- obtaining a warrant is the rule, not the exception."

UPDATE: The Government has filed a petition for rehearing in this case, which the Fourth Circuit has granted. As such, this opinion has been withdrawn.

Illegal re-entry 16-level bump error

US v. Parral-Dominguez:  Mr. Parral-Dominguez was arrested in North Carolina in 2010 in possession of more than an ounce of cocaine.  He pleaded guilty in state court to drug trafficking charges, and state authorities informed ICE of his illegal status; he had been previously deported in 2007.  He was indicted federally for illegal reentry at the end of 2013, and pleaded guilty in March 2014 without a plea agreement.

Parral-Dominguez made a single objection to the PSR, to a 16-level bump to his offense level for having been convicted previously of a crime of violence, arguing that as a matter of law, the North Carolina state offense of shooting into an occupied building (for which he had been convicted in 2007, which lead to his deportation) did not constitute a crime of violence.  The district court disagreed, and imposed the enhancement, and in its sentencing order, it relied heavily on an unpublished decision to conclude that the state offense was a crime of violence.  Parral-Dominguez appealed.

The Fourth Circuit resolved the issue in Parral-Dominguez’s favor, finding that the North Carolina state offense of discharging a firearm into an occupied building does not constitute a crime of violence for federal sentencing purposes.  The Fourth Circuit applied the categorical approach, finding that the statute at stake does not require that an offender use force against another person in order to complete the crime.

The Fourth Circuit found that this procedural error was not harmless because it could not say that regardless of the calculated Guidelines range, 65 months is the “only” sentence the defendant would have received, and the district court gave no indication that it would have imposed a similar sentence regardless of any procedural error.

Divided panel vacates dismissal

US v. Vinson:  The government appealed the district court’s order that granted the defendant’s motion to dismiss the indictment in this case; the defendant had been indicted for being a felon in possession after a consensual search of his residence revealed a rifle and ammunition, and in 2004, he had been convicted of misdemeanor domestic violence in North Carolina.  At issue is whether the prior conviction qualified Vinson as a person not to possess a firearm under 18 U.S.C. §922(g)(9).

This case arose from a January 2013 incident in which police received information that Vinson allegedly threatened his wife and children’s lives, and then fled.  The police put the kids’ school on lock-down and Vinson’s wife permitted the police to search their home, wherein the gun and ammo were discovered.  In making its determination on the motion to dismiss, the district court stated that, under the law, assault and battery charges don’t necessarily connote acts of violence.  The district court concluded that Vinson’s prior conviction did not qualify as a misdemeanor crime of domestic violence under the categorical approach.  The government appealed.

On appeal, the government argued that contrary to the district court’s conclusion, the modified categorical approach may be applied in this case, as the state statute of Vinson’s prior conviction is divisible because it has elements creating several different crimes, some of which match a generic federal offense.  The Fourth Circuit agreed with the government here, vacated the order dismissing the indictment, and remanded with instruction to reinstate the indictment against Vinson.

Judge Gregory dissented, arguing that the majority relied upon “tenuous suppositions, inapposite jury instructions, and the decision of a state intermediate appellate court (at odds with the state supreme court) to hold that assault is a divisible offense in North Carolina.”

Reversal of order requiring medication by force

US v. John Watson, Jr.:  In this appeal, the Fourth Circuit reversed the district court’s order that granted the government’s request to forcibly medicate Watson to attempt to make him competent to stand trial.  A divided panel concluded that the government had not met its burden of proving that forcibly medicating Watson, in particular, was substantially likely to restore his competency.  Watson had been indicted with several charges after he shot at a Coast Guard helicopter with a handgun.

The issue of whether to forcibly medicate a defendant to render them competent to stand trial is controlled by the Supreme Court’s 2003 decision in Sell v. United States.   In Sell, the Supreme Court developed a four-part test; each part must be proven to the “deliberately high” standard of clear and convincing evidence.

On appeal, the first two parts of the Sell test were at issue: whether the government showed important governmental interests at stake; and whether the government showed that involuntary medication would significantly further its interests, requiring proof that the medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects which would interest significantly with the defendant’s ability to assist counsel at trial.

The Fourth Circuit held that because the district court had clearly erred in finding that the government met its burden on the second prong of the test, it did not decide whether the district court erred with respect to its conclusions on the first prong of the Sell test.  With regard to the second part of the test, the Fourth Circuit discussed the lack of findings below that assessed the likely success of the government’s proposed treatment plan in relation to Watson and his condition in particular; the Fourth Circuit stated that the proper enquiry for courts is not whether the proposed treatment plan will work in general, but whether it will work as applied to a particular defendant.  The Fourth Circuit held that the district court did not undertake the searching and individualized assessment of Watson’s likely susceptibility to forcible medication that is required by law.

Further, by resolving the appeal issues in this case by deciding that the government has not justified forcible medication in this case, the Fourth Circuit determined that the district court’s order be reversed, rather than remanding the case to the district court for further proceedings.  The Fourth Circuit concluded that the district court had ample opportunity to assemble and defend the evidence necessary to meet its burden here, and it failed to do so.

Former Virginia Governor's convictions affirmed

US v. McDonnell:  Despite an impressive group of amici in support of his appeal, the former governor of Virginia, Robert McDonnell, lost the appeal of convictions he received following his five-week trial.  The Fourth Circuit affirmed the judgment of the district court.

Two most important issues on appeal: 1) McDonnell argued that the district court’s jury instructions misstated fundamental principles of federal bribery law; and 2) the government’s evidence was insufficient to support his convictions pursuant to the honest-services wire fraud statute and the Hobbs Act.  The Fourth Circuit was unpersuaded by each of McDonnell’s jury instruction claims, e.g. the instructions were over-inclusive, broad, incomplete, misleading, or unprecedented. Further, McDonnell claimed one instruction was a misstatement of the law, a statement with which the Fourth Circuit disagreed, finding the instruction “indisputably correct,” and “not erroneous with respect to the Hobbs Act extortion charges."  Further, one instruction that may have been debatable to the Fourth Circuit, that the subjective beliefs of a third party in an honest-services wire fraud case cannot “convert non-official acts into official ones,” was found to be harmless, if indeed an error occurred.    The Fourth Circuit held that McDonnell failed to show that the “official act” instructions, taken as a whole, were anything less than a “fair and accurate statement of law.”

McDonnell’s claim about the sufficiency of the evidence also failed on appeal, with the Fourth Circuit finding ample “official acts” of McDonnell exploiting the power of his office in furtherance of an ongoing effort to influence state university researchers.  The Fourth Circuit found his corrupt intent was evidenced by expensive vacations, accepting loans, etc., as well as shopping sprees, cash, golf outings and vacations, all free to McDonnell and his family.  These were not goodwill gifts from one friend to another, but gifts in exchange for official acts to help a pharmaceutical company secure independent testing for its product, Anatabloc, and that McDonnell acted in the absence of good faith in receiving them.  Thus, McDonnell failed in his efforts to sustain the burden of bringing a sufficiency of the evidence challenge.

Supervised release term of illegal re-entry sentence affirmed

US v. Aplicano-Oyuela:  Appellant Aplicano-Oyuela pleaded guilty to illegal re-entry via plea letter he submitted to the court, rather than plea agreement.  The PSR included a calculated guidelines range of 10 to 16 months, with the possibility of a supervised release term of up to three years.   Aplicano requested that the court impose a sentence of 8 months, but he did not address the suggested supervised release term in the PSR.  At sentencing, the district court repeatedly expressed its perceived belief of the likelihood of Aplicano’s recidivism, as well as his likely return to the US after deportation, and it imposed a 13-month term of imprisonment, to be followed by three years of supervised release, so that he could be punished for a long time should he choose to come back to the US and/or commit any further crimes.

On appeal, Aplicano challenged his 3-year term of supervised release, arguing that it is both procedurally and substantively unreasonable, and that his guilty plea was “fatally flawed.”  Since Aplicano did not object to his supervised release term until his appeal, the Fourth Circuit reviewed his issues for plain error only.  The Fourth Circuit began its analysis with a review of the supervised release system, pertinently how the Guidelines were amended in 2011, so that when an alien is facing post-incarceration removal and supervised release is not required by statute, courts should ordinarily not impose a term of supervised release.  While imposing a term of supervised release on removable aliens is not forbidden, the public is “ordinarily” and “adequately” served by a new prosecution alone.

The Fourth Circuit, in non-precedential unpublished decisions, has generally affirmed the imposition of supervised release on aliens likely to be removed post-incarceration.  The Fourth Circuit found the imposition of a term of supervised release procedurally reasonable, as the district court believed that it would deter Aplicano from committed future crimes, curb his desire to return to the US again, to protect US citizens, and that Aplicano’s need to be deterred was a great concern than punishing him.  Next, the Fourth Circuit held the imposition of supervised release was substantively reasonable because of the district court’s intention to provide deterrence and protection for the community.  Finally, with regard to Aplicano’s guilty plea, the Fourth Circuit decided that even if the district court had erred in advising Aplicano of the nature of supervised release, Aplicano did not show that such error affected his substantial rights, nor that but for the error, he would not have entered the plea.  The judgment of the district court was affirmed.

Erroneous Simmons Fueled ACCA Designation Can Be Attacked In 2255

US v. Newbold: Once again, we have a question of how the Fourth Circuit's decision in Simmons impacts a sentence imposed before that case was decided. In this case, Newbold pleaded guilty to being a felon in possession of a firearm and was sentenced under ACCA to a 225-month sentence. After a convoluted procedural path (the Fourth calls it "miraculous"), Newbold was present before the Fourth Circuit after filing a timely 2255 motion seeking the vacation of his sentence, based on the retroactivity of Simmons.

The Fourth Circuit vacated Newbold's sentence. Although the Government agreed that Simmons was retroactive, the court nonetheless had to "ensure that the sentencing error Newbold seeks to challenge is cognizable on collateral review." It was because, unlike the recent cases involving retroactive Simmons challenges to career offender calculations, the application of ACCA in this case increased Newbold's statutory sentence. Thus this was one of the limited universe of "fundamental defects" that could be corrected in 2255 proceedings. The court then examined Newbold's priors, found that he could not have received sentences of more than one year for them, and concluded he should not have been sentenced under ACCA.

Failure To Disclose SEC Fraud Investigation of Key Witness Requires Vacation of Convictions

US v. Parker: Parker, his codefendant/appellee Taylor, and his son Brett (a codefendant below, but not coappellee - he's serving two life terms in South Carolina for multiple murder) were convicted of illegal gambling in an operation including at least five people. Parker and Taylor stipulated that they were engaged in a gambling business and that it included a related operation run by Brett and another man. The key issue at trial was whether there was a fifth person involved. The Government sought to meet that burden via other individuals related to Brett, most critically his (now murdered) wife, Tammy. A witness named Staples provided testimony that Tammy was involved in the gambling operation by managing and spending its proceeds. There was some physical evidence corroborating that testimony. The Government also presented evidence that other individuals ("layoff bookies") were involved in the operation. Finally, there was evidence that Brett received "lines" from a separate bookmaker who could be the fifth person.

On the Friday before trial began, Staples told the Government that he was being investigated by the SEC in Utah for fraud. That information was not disclosed to the defense, who did not cross examine Staples when he testified. The day he testified the Government's civil division received a draft complaint from the Utah SEC office alleging fraudulent conduct on Staples's part. The complaint was filed two days after the jury convicted Parker and his codefendants, who finally learned of the SEC investigation the next day. They moved for a new trial on Brady grounds, which the district court denied because the SEC report "was not material to the jury's determination of the defendants' guilt" because Staples's testimony only related to Tammy's role in the operation and the Government's case didn't rely on her to be the fifth person.

On appeal, the Fourth Circuit reversed. The court found that the SEC investigation constituted impeachment evidence (as well as evidence of untruthfulness under FRE 608) that was material because while the jury could have found that someone other than Tammy was the fifth person in the operation, the evidence most strongly linked Tammy to the operation and thus there was "a reasonable probability that at least one juror would have viewed Tammy as the fifth participant." Aside from Staples's testimony, the other evidence linking Tammy to the operation was "minimal." Furthermore, it rejected the Government's arguments that it was under no duty to disclose evidence of an investigation by another agency and that the defendant's knew or should of known of the conduct underlying the SEC investigation. Having said all that, the court made clear that it was vacating the convictions and remanding for further proceedings, not entering judgments of acquittal, as the evidence presented at trial was sufficient to convict.

Sentence Consecutive to Any Future Federal Sentence Error, But Not Plain

US v. Obey: Obey was initially convicted of multiple drug counts and sentenced to 540 months in prison. His convictions were vacated on Giglio grounds and, on remand, he entered into a plea agreement. He agreed to plead guilty to a single count with a 20-year statutory maximum and the Government would argue for a sentence of 18 years. Sentencing came and the Government argued for an 18-year sentence. However, the Government (in response to the district court's questions) advised the court about Obey's pending state murder trial, confirmed that he was a career offender, but reiterated the 18-year recommendation. The district court denied the Government's "request for a variance" (it's unclear what the actual Guideline range was) and sentenced Obey to 240 months in prison, to be served consecutively to any other sentence, including any federal or state sentence he might receive.

The Fourth Circuit affirmed Obey's sentence on appeal. First, it rejected (reviewing for plain error) his argument that the Government breached its promise in the plea agreement by not being more forceful in its assertion of the 18-year recommendation or by providing sufficient reasons as to why that sentence was appropriate. The court concluded that the Government repeatedly restated its recommendation, did not criticize or undermined that recommendation, and that the plea agreement didn't call for the Government to do any more than make the recommendation. Second, it rejected the argument that the district court erred by ordering Obey's sentence to be served consecutively to any future state or federal sentence. The court concluded that the Supreme Court's holding in Setser that allowed sentences to be consecutive to future state sentences did not extend to future federal sentences as well (per prior Fourth Circuit precedent). However, Obey was stuck with review for plain error and the court found, in light of Setser, that the district court's error was not "plain."

Crime of Violence, Recklessness Enhancements Vacated

US v. Shell: Shell was speeding down a highway when he was spied by a police officer going the other direction. By the time the officer turned around he had lost sight of Shell, but quickly found his car wrecked down an embankment. Shell had fled. He was later apprehended and admitted possessing a firearm found in a bag near the car. After pleading guilty to being a felon in possession of a firearm, his sentence was enhanced for having a prior "crime of violence" - a North Carolina conviction for second degree rape - and for recklessly fleeing from a police officer. He was sentenced to the bottom of the resulting Guideline range, 57 months in prison.

On appeal, a divided Fourth Circuit vacated Shell's sentence, finding the district court erred by applying both enhancements. As to the crime of violence (which increased Shell's base offense level from 14 to 20), the court found that the second degree rape in North Carolina is not categorically a crime of violence. Although it can be committed in a way that requires violent force (and therefore would be a crime of violence), it also includes offenses involving victims who are unable to consent (for various reasons) but without violent force. Because it was unclear under which section Shell was convicted, the court concluded the enhancement did not apply. As to the reckless endangerment, the court concluded that it was necessary that any flight be an attempt to flee from the police, not merely conduct that is otherwise reckless. Because the district court did not examine whether Shell was fleeing the officer or merely being generally reckless, it remanded the issue to the district court.

Judge Wilkinson dissented, arguing that the North Carolina conviction was a crime of violence, even under the incapacitated victim section because it required knowledge of such incapacitation and "protects people considered incapable of volitional acts from such callous conduct." He agreed on the law on the reckless conduct enhancement, thought "the district court's discussion has already incorporated the fact of such knowledge," but did not oppose remand on that issue.

Congrats (again!) to the Defender office in Western NC on the win!

Court Clarifies Supervise Release Revocation Review

US v. Padgett: Padgett was serving a pair of concurrent terms of supervised release when was allegedly involved in an incident in which he fired a gun five times after an argument. As a result, he was charged with violating the conditions of his term of supervised release in various ways. He contested the allegations, but the district court found he committed them and sentenced him to consecutive terms of imprisonment of 10 and 14 months, followed by more (concurrent) terms of supervised release.

On appeal, the Fourth Circuit affirmed Padgett's revocation and sentence. First, it clarified that while the ultimate decision to revoke a term of supervised release, factual determinations about the defendant's conduct were reviewed for clear error. Applying that standard, the court found that the district court did not clearly err by crediting the eyewitness testimony presented by the Government that Padgett possessed a firearm, was in an argument with someone else, and fired the gun in the air. Second, the court concluded that the sentences were within the advisory Guideline range and statutory range and were not plainly unreasonable.