US v. Powell: Powell was convicted of two drug counts that carried sentences of 10 years to life in prison. Thanks to a prior North Carolina conviction, his mandatory minimum sentence was increased to 20 years. That is the sentence he received. Powell filed a 2255 motion seeking to vacate his conviction in light of the Supreme Court's decision in Carachuri-Rosendo v. Holder, in which the Court held that for purposes of determining the status of a prior conviction the applicable consideration was the maximum sentence to which the particular defendant was subject, rather than the hypothetical maximum sentence to which a generic defendant could be subject. Powell argued that Carachuri-Rosendo was retroactive and applied to his prior North Carolina conviction (after his 2255 motion was filed, the Fourth Circuit concluded that the logic of Carachuri-Rosendo required a rethinking of its analysis of prior North Carolina convictions). The district court disagreed and dismissed the motion.
On appeal, the Fourth Circuit affirmed the dismissal of Powell's motion. It concluded that Carachuri-Rosendo announced a procedural rule, rather than a substantive one, and was thus not retroactive. The Supreme Court's decision "at most altered the procedural requirements that mush be followed in applying recidivist enhancements and did not alter the range of conduct or the class of persons subject to criminal punishment."
Judge King dissented in part and concurred in part with the majority's decision. He argued that the rule announced in Carachuri-Rosendo is substantive and, therefore, should be retroactive. However, he ultimately agreed that dismissal was appropriate because Powell's sentence was not illegal even if Carachuri-Rosendo was retroactive because it was well within the limits of the statutory range without any recidivist enhancement.
Thursday, August 23, 2012
Extraction of DNA Profile Is Search, But Suppression Not Required
US v. Davis: In 2000, Davis was shot and treated at a Maryland hospital. As part of the investigation of his shooting, police seized Davis's bloody clothes from underneath the bed on which Davis lay in the emergency room. Nothing came of that investigation. However, in 2004, a neighboring police agency was conducting an investigation of a murder in which Davis was a suspect. They took the bloody clothes (which had been retained in the other agency's evidence room all those years) and used them to procure a DNA sample which could be tested against evidence from the murder scene. It was not a match, but the resulting profile remained in the database where, later in 2004, it was used to link Davis to a botched armored car robbery. As a result of the match, Davis was charged with various federal offenses arising from the robbery. After the district court denied Davis's motion to suppress the DNA information, a jury convicted Davis.
On appeal, the Fourth Circuit affirmed Davis's convictions. The court focused primarily on questions dealing with the DNA evidence and its collection in light of Fourth Amendment protections. First, it concluded that the initial seizure of Davis's bloody clothes was proper under the plain view exception to the warrant requirement. Second, it concluded that the initial search of the clothes to procure a DNA profile violated the Fourth Amendment and assumed (without deciding) that the later use of the DNA profile to link Davis to the armored car robbery was also a violation. However, suppression of the resulting evidence was not required under the ever expanding "good faith" exception set forth in recent Supreme Court decisions like Herring and Davis. The court also concluded that the district court did not abuse its discretion by prohibiting a defense expert witness from testifying about problems with the procedure police used during a lineup in which Davis was identified by an eyewitness.
Judge Davis dissented, disagreeing with the majority on both the plain view analysis and the conclusion that the exclusionary rule should not apply.
Orin Kerr at The Volokh Conspiracy has some additional thoughts.
On appeal, the Fourth Circuit affirmed Davis's convictions. The court focused primarily on questions dealing with the DNA evidence and its collection in light of Fourth Amendment protections. First, it concluded that the initial seizure of Davis's bloody clothes was proper under the plain view exception to the warrant requirement. Second, it concluded that the initial search of the clothes to procure a DNA profile violated the Fourth Amendment and assumed (without deciding) that the later use of the DNA profile to link Davis to the armored car robbery was also a violation. However, suppression of the resulting evidence was not required under the ever expanding "good faith" exception set forth in recent Supreme Court decisions like Herring and Davis. The court also concluded that the district court did not abuse its discretion by prohibiting a defense expert witness from testifying about problems with the procedure police used during a lineup in which Davis was identified by an eyewitness.
Judge Davis dissented, disagreeing with the majority on both the plain view analysis and the conclusion that the exclusionary rule should not apply.
Orin Kerr at The Volokh Conspiracy has some additional thoughts.
Thursday, August 16, 2012
Sex Offender Restrictions Don't Amount to "Custody" for Habeas Corpus
Wilson v. Flaherty: Wilson was one of the "Norfolk Four," a group of sailors charged with the rape and murder of another sailor's wife. Wilson was acquitted of murder, but convicted of rape in 1999 (since then, subsantial evidence of the innocence of all four men has been presented - see here for more details) and released from prison in 2005. As a result of the rape conviction, he must register as a sex offender in Virginia and Texas (where he moved in the interim). In 2010, he filed a 2254 motion challenging his conviction, arguing that he was actually innocent. The district court denied the motion for lack of jurisdiction because Wilson was no longer "in custody" as required under 2254.
On appeal, the Fourth Circuit agreed and affirmed the dismissal. Recognizing he was no longer in prison, Wilson argued that the variety of restrictions placed on him by Virginia and Texas law as a registered sex offender meant he as still "in custody" for purposes of 2254. However, the court noted that the Supreme Court has defined "in custody" to mean custody "under conviction or sentence under attack at the time his petition is filed." Although the concept of custody extends to a person released on parole, it does not include someone whose imposed sentence as "fully expired." The sex offender provisions at issue in this case, however, were not part of his sentence for rape, but rather "collateral consequences of him having been convicted for rape." Allowing 2254 challenges in such situations would allow sex offenders to challenge their convictions in federal court at any time.
Judge Davis concurred in the judgement, noting that when 2254 and its definition of "custody" was enacted, neither Congress nor the President had any conception of the type of lifelong sex offender requirements in place today.
Judge Wynn dissented, arguing that the majority's reading of the habeas provisions was too narrow, particularly in a case where Wilson makes such a compelling case for his innocence. Specifically, he argues that Supreme Court precedent allowing for the challenge of prior convictions in habeas proceedings for a current conviction/sentence "strongly suggest that there are instances in which a fully served sentence may be collaterally challenged through a writ of habeas corpus."
Impersonating an Officer Statute OK Under First Amendment
US v. Chappell: Chappell was once a deputy sheriff in Fairfax County, Virginia. Unfortunately, at the time he was pulled over on the George Washington Parkway, he was no longer a deputy, but nonetheless claimed to be in order to avoid getting a ticket. When the officer who pulled him over discovered the deception, he was arrested and charged with impersonating a police officer (a state offense made federal under 18 USC 13). After the magistrate judge denied his motion to dismiss under the First Amendment, Chappell was convicted at a bench trial (he pled guilty to the speeding charge) and was sentenced to a term of probation, community service, and a fine.
On appeal, Chappell renewed his argument that the Virginia statute (the state intervened in the case, as well) making it a crime to "falsely assume or pretend to be any such officer" was facially invalid under the First Amendment because it was overboard and not sufficiently narrowly tailored to survive strict scrutiny review. The Fourth Circuit rejected those arguments and affirmed Chappell's conviction. Noting that facial challenges are traditionally unfavored, the court called Chappell's "a particularly inappropriate case for recognizing a challenge of facial invalidity" because the statue has a "plainly legitimate sweep" and Chappell was "right at the core" of that sweep. His attempt to "dodge a traffic ticket" by claiming to be an officer was "precisely the kind of conduct that the statute was designed to prohibit." It rejected Chappell's potential hypothetical overreaches of the statute applying to people wearing police costumes at parties or children playing cops and robbers, noting that although the Virginia statute is similar to many others across the country he could not point to any actual application to such situations. In addition, the statue's requirement that a person act "falsely" implies a mens rea requirement that would be absent from Chappell's hypotheticals. Chappell fared no better in "the lifeboat of overbreadth doctrine" because he could not show any "realistic danger" that the statute would infringe on First Amendment rights. The Supreme Court's recent decision in Alvarez striking down the Stolen Valor Act did not help, either.
Judge Wynn dissented, arguing that a "straightforward application" of Alvarez compelled a similar result in Chappell's case. He faulted the majority for "cherry-picking" parts of the plurality and concurring opinion in Alvarez that generally approved of false impersonation statutes while avoiding a "complete analysis" of the case's references to those statutes. He also took issue with the majority's conclusion that Chappell's behavior was the kind of conduct targeted by the statute, as opposed to public safety concerns related to faux officers.
Anonymous Jury, Forfeiture by Wrongdoing, OK'd in Large Drug Conspiracy Trials
US v. Dinkins: Dinkins, along with his codefendants Gilbert and Goods (aka "Moo Man"), was tried and convicted of numerous offenses related to a large drug operation in Baltimore, including the murder of another member of the operation who had begun to cooperate with police. The lengthy facts are set forth in the opinion and too detailed to go into here. All three defendants were sentenced to life in prison. On appeal, each defendant presented multiple challenges to their convictions, all of which the Fourth Circuit rejected. In particular, the court highlighted two issues.
The first was whether the district court abused its discretion by impaneling an anonymous jury, based on its concerns for the jurors' safety (given the fact that one of the charges involved the murder of a witness). This was an issue of first impression in the Fourth Circuit. The court identified an non-exhaustive list of five factors (including the defendants' involvement in organized crime or a group with the capacity to harm jurors) to use when deciding to impanel an anonymous jury. The standard for doing so in capital cases (Dinkins and Gilbert were charged with capital offenses, Goods was not) is more exacting than for non-capital cases, although the same factors are relevant to both. With that in mind, the court rejected defendants' argument that there was insufficient evidence to conclude that they had the present or future capacity to harm jurors. The court also concluded that the district court took reasonable precautions to minimize the risk to the defendants' rights to a fair trial and presumption of innocence.
The second issue highlighted by the court was whether the admission of statements from Dowery, a former member of the operation who was killed after he began to cooperate with police, were properly admitted against Dinkins and Gilbert under FRE 804(b)(6), the "forfeiture by wrongdoing" exception to hearsay/confrontation. The court noted that the exception only applies when a court finds (by a preponderance of the evidence) that the alleged wrongdoing was done to "render the declarant unavailable as a witness." As to Dinkins, who was incarcerated when Dowery was actually killed (though he was not when an initial attempt on Dowery's life was made), the court concluded that the exception applied because it includes persons who acquiesce to the wrongdoing, in addition to engaging in the wrongdoing themselves. As to Gilbert, the court rejected the argument that there was insufficient evidence from which to conclude that he, rather than some other person in the community who wished harm to a "snitch," killed Dowery (thus rendering him unavailable to testify).
The court also briefly addressed (and rejected) arguments about the district court's denial of motions to sever the defendants, a Batson challenge, and Goods's motion for acquittal.
Wednesday, August 15, 2012
Heller Challenge Fails Felon in Possession
US v. Smoot: Smoot was arrested outside a home on an outstanding after a tip provided his location. He was in possession of a firearm and was charged with being a felon in possession. Prior to trial, Smoot sought to have the jury instructed that (1) under Heller, the Government was required to rebut a presumption that Smoot lawfully possessed the firearm in his home for self defense, and (2) the firearm, while it had moved in interstate commerce at one point, had been out of commerce so long that it not longer effected interstate commerce. The district court denied those requests. Smoot was convicted and sentenced to 235 months under ACCA.
On appeal, the Fourth Circuit affirmed Smoot's conviction and sentence. It construed the additional element argument under Heller as an as-applied challenge to the constitutionality of the felon in possession statute under the Second Amendment. The court first noted that the record did not support Smoot's attempts to frame the issue in terms of possession of a firearm in his "home," as the record was inconclusive as to whether the home where the police went was Smoot's and, at any rate, he was arrested outside of the home, not inside it. It the proceeded to reject the as-applied challenge, concluding that there was nothing about his challenge to "remove [it] from the realm of ordinary challenges" which had already been rejected. As to the interstate commerce instruction, the court concluded that the district court's instruction that movement from one state to another (regardless of how long ago it happened) was enough to show an effect on interstate commerce was a correct statement of binding Fourth Circuit and Supreme Court precedent. Furthermore, that instruction did not direct the jury to reach a particular conclusion on that element. Finally, the court affirmed Smoot's sentence, concluding that the district court's denial of acceptance of responsibility was not an abuse of discretion where he contested an element of the offense.
On appeal, the Fourth Circuit affirmed Smoot's conviction and sentence. It construed the additional element argument under Heller as an as-applied challenge to the constitutionality of the felon in possession statute under the Second Amendment. The court first noted that the record did not support Smoot's attempts to frame the issue in terms of possession of a firearm in his "home," as the record was inconclusive as to whether the home where the police went was Smoot's and, at any rate, he was arrested outside of the home, not inside it. It the proceeded to reject the as-applied challenge, concluding that there was nothing about his challenge to "remove [it] from the realm of ordinary challenges" which had already been rejected. As to the interstate commerce instruction, the court concluded that the district court's instruction that movement from one state to another (regardless of how long ago it happened) was enough to show an effect on interstate commerce was a correct statement of binding Fourth Circuit and Supreme Court precedent. Furthermore, that instruction did not direct the jury to reach a particular conclusion on that element. Finally, the court affirmed Smoot's sentence, concluding that the district court's denial of acceptance of responsibility was not an abuse of discretion where he contested an element of the offense.
Categorical Approach Required for Maryland Child Abuse Statute
US v. Gomez: Gomez pleaded guilty to illegal reentry after having been deported due to an aggravated felony conviction. That conviction was for child abuse in Maryland, during which (according to Gomez's statement while pleading guilty) she had burned the bottoms of her son's feet with a candle as punishment. After her illegal reentry conviction, the main issue at sentencing was whether that prior conviction was a "crime of violence" such that it triggered a 16-level enhancement under the Guidelines. Gomez argued that, applying a categorical approach, it was not. The Government argued that it was and the district court could resort to the modified categorical approach (and thus consider Gomez's statement) in doing so. The district court agreed with the Government and applied the enhancement, although it varied from the resulting range an imposed a sentence of 24 months.
The Fourth Circuit vacated Gomez's sentence and remanded the case for resentencing. The court concluded that the modified categorical approach is appropriate only when the statute being analyzed "contains divisible categories of proscribed conduct, at least one of which constitutes - by its elements - a violent felony." The Maryland statute at issue in this case, while "expansive" it could not be separated into forceful and non-forceful acts. As a result, only the original unmodified categorical approach should have been used. The court also rejected the Government's argument that any error in applying the modified categorical approach was harmless because of the district court's ultimate imposition of a variance sentence.
Judge Niemeyer dissented, calling the majority's position "novel" and arguing that it was not consistent with Supreme Court and prior Fourth Circuit precedent.
Congrats to the FPD office in Maryland on the win!
US Law Extends to Foreign Nationals at Overseas Military Base
US v. Brehm: Brehm, a South African citizen, was employed by an American defense contractor providing services to the military at Kandahar Airfield in Afghanistan. He was involved in an altercation with J.O., also employed by a defense contractor at Kandahar (although a different one) and a British citizen. Brehm stabbed J.O. He was charged, in the Eastern District of Virginia, with two counts arising from the incident under the Military Extraterritorial Jurisdiction Act, which applies to those "employed by or accompanying the Armed Forces outside the United States." After his motion to dismiss the charges on jurisdictional grounds was denied, Brehm entered a conditional guilty plea.
On appeal, the Fourth Circuit affirmed Brehm's conviction. Brehm argued that the MEJA was unconstitutional as applied to him because neither he, nor J.O., were US citizens, the incident did not occur in furtherance of his duties as an employee of the military contractor, and his conduct was not directed at and did not harm the United States. The court disagreed, noting that such factors did not impact jurisdiction under the MEJA. Were it not for his employment connected to the American military, Brehm would not have been at Kandahar and his behavior would not have effected the operations there. The court also noted that, as part of his employment, Brehm signed an agreement agreeing that the MEJA applied.
Stop for Speeding, Following to Close, OK Under Fourth Amendment
US v. Mubdi: Mubdi (and a passenger) were stopped along the Interstate in North Carolina for speeding and following too closely. During the ensuing traffic stop, a drug dog alerted on the car. The subsequent search uncovered drugs and firearms. Mubdi was charged with drug and firearm offenses as a result. He moved to suppress the evidence found in the car, arguing both that the officer who stopped him lacked probable cause to do so and, even if such cause existed, the stop was unduly prolonged without reasonable suspicion. The district court denied the motion and Mubdi entered a conditional guilty plea and was sentenced to 300 months in prison.
On appeal, the Fourth Circuit affirmed Mubdi's conviction and sentence. As to the basis for the stop, the court concluded that the officer had probable cause to believe both that Mubdi was speeding and following too closely, as defined by North Carolina law. As to the speeding, the court noted that although the officer used only visual means to estimate Mubdi's speed this case was quite different from the court's recent decision in Sowards, in which the officer utilizing the same visual method was "to put it mildly, measurement-challenged." Without such difficulties present in the record, there was probable cause to stop Mubdi for speeding. Alternately, the court held that there was also probable cause to stop him for following too closely, rejecting Mubdi's argument that the North Carolina regulation did not apply in the situation at hand (in which he was overtaking another car) and that, even if it did, it was a mistake of fact, rather than one of law, and did not prevent the officer from making the stop. As to the stop itself, although the court appeared to conclude that the stop was not unduly prolonged at all (the drug dog arrived while the officer was writing the ticket), it also concluded that there was reasonable suspicion to extend the stop, based on Mubdi's behavior. Finally, the court upheld Mubdi's sentence, turning away a challenge to the applicable mandatory minimum under binding Supreme Court precedent.
Judge Davis authored an interesting concurring opinion. He laid out how expanding Supreme Court precedent on traffic stops has allowed the officers involved in this case to do precisely what they did - conduct a drug interdiction investigation in the guise of a traffic stop: "it was not for nothing that, as shown on the video taken by the dashboard camera in [the officer]'s vehicle, the officers in this case expressed unmitigated glee, punctuated by serial 'fist-bumps' all around, when the cache of more than two hundred grams of crack cocaine was removed from the [car]." He concluded that the speeding justification was similar to the one in Sowards and therefore insufficient to support the stop. However, he agreed with the majority on the following too closely analysis and concurred as to all other parts of the opinion.
Wednesday, August 01, 2012
Duplicating forensic tests, and elements of RICO offense
US v. Mouzone and US v. Fleming: These two appellants were indicted and tried for RICO and drug offenses related to their mutual membership in Tree Top Piru, a subset of the Bloods gang that operated in Essex, Maryland. Both Mouzone and Fleming were convicted of the RICO charge, and Fleming was also convicted on two drug charges. Both appellants raised several district court errors; the Fourth Circuit affirmed the convictions and sentences.
In one of these issues, Fleming challenged the district court’s ruling that permitted the government to present a drug analysis report on bags of cocaine seized from his pocket at the time of his arrest. Two different chemists performed drug analyses; the government learned that the first analyst would be unable to appear for trial, so a second analyst performed the same tests nearly two years later. The results after the second test, specifically weight determinations, were "discordant." The Confrontation Clause requires that the accused "be confronted with the analyst who made the certification, unless that analyst be unavailable at trial, and the accused had an opportunity, pre-trial, to cross-examine that particular [analyst]," the Fourth Circuit quoted from Bullcoming v. New Mexico. Introducing a surrogate analyst, who does not sign the certification or perform or observe the test reported in the certification cannot satisfy the Confrontation Clause.
The Fourth Circuit reasoned that even if the admission of the second analyst’s testimony violated the Confrontation Clause, it was confident that the admission did not sway the jury on the drug charges: the second analyst performed an independent analysis; the weight determinations were still well above threshold amounts for which Fleming was convicted; and the second analyst made no attempt to vouch for the first analyst’s findings.
Mouzone and Fleming both challenged the district court’s charge to the jury of the elements of the RICO offense under 18 U.S.C. sect. 1962(d). Both appellants requested that the district court instruct the jury that in order to "participate, directly or indirectly, in the conduct of such enterprise’s affairs, one must have some part in directing those affairs. Some part in directing the enterprise’s affairs is required." The district court denied this request.
The Fourth Circuit disagreed with appellants that a managerial role in the enterprise’s affairs is required for conviction under this statute. Rather, it held that "simply agreeing to advance a RICO undertaking is sufficient." The Fourth Circuit joined several other circuits (D.C., 9th, 3rd, 2nd, and 5th) in holding that sect. 1962(d) liability does not require that a defendant have a role in directing an enterprise.
In one of these issues, Fleming challenged the district court’s ruling that permitted the government to present a drug analysis report on bags of cocaine seized from his pocket at the time of his arrest. Two different chemists performed drug analyses; the government learned that the first analyst would be unable to appear for trial, so a second analyst performed the same tests nearly two years later. The results after the second test, specifically weight determinations, were "discordant." The Confrontation Clause requires that the accused "be confronted with the analyst who made the certification, unless that analyst be unavailable at trial, and the accused had an opportunity, pre-trial, to cross-examine that particular [analyst]," the Fourth Circuit quoted from Bullcoming v. New Mexico. Introducing a surrogate analyst, who does not sign the certification or perform or observe the test reported in the certification cannot satisfy the Confrontation Clause.
The Fourth Circuit reasoned that even if the admission of the second analyst’s testimony violated the Confrontation Clause, it was confident that the admission did not sway the jury on the drug charges: the second analyst performed an independent analysis; the weight determinations were still well above threshold amounts for which Fleming was convicted; and the second analyst made no attempt to vouch for the first analyst’s findings.
Mouzone and Fleming both challenged the district court’s charge to the jury of the elements of the RICO offense under 18 U.S.C. sect. 1962(d). Both appellants requested that the district court instruct the jury that in order to "participate, directly or indirectly, in the conduct of such enterprise’s affairs, one must have some part in directing those affairs. Some part in directing the enterprise’s affairs is required." The district court denied this request.
The Fourth Circuit disagreed with appellants that a managerial role in the enterprise’s affairs is required for conviction under this statute. Rather, it held that "simply agreeing to advance a RICO undertaking is sufficient." The Fourth Circuit joined several other circuits (D.C., 9th, 3rd, 2nd, and 5th) in holding that sect. 1962(d) liability does not require that a defendant have a role in directing an enterprise.
Writ of error coram nobis successful
US v. Akinsade: In this appeal, the Fourth Circuit granted the appellant’s request for a writ of error coram nobis pursuant to 28 U.S.C. sect. 1651, vacating his prior conviction for embezzlement, to which he plead guilty in 2000. Akinsade claimed that he was misadvised by his attorney about the immigration consequences of taking a plea, and the Fourth Circuit agreed. When making the decision whether to plead, his attorney had advised that Akinsade could not be deported based on his single offense, and that he could only be deported if he had two felony convictions, which advice was contrary to the law at that time.
In order to reach its decision, the Fourth Circuit enunciated a standard it will use in reviewing petitions for writ of error coram nobis: abuse of discretion. In order to receive this type of extraordinary relief, a petitioner must show the following: 1) a more usual remedy is not available; 2) valid reasons exist for a failure to attack a conviction earlier; 3) adverse consequences from the conviction exist, such that the case or controversy requirement of Article III is satisfied; and 4) the error is "of the most fundamental character." This final requirement received the most attention in this opinion.
Prior to reaching the Fourth Circuit, the district court that received Akinsade’s petition denied his petition without a hearing, on the grounds that this extraordinary remedy was not available for a "mere garden-variety" ineffective assistance of counsel claim that did not allege a "fundamental error." The district court did find that Akinsade’s counsel’s affirmative misrepresentations rendered the advice Akinsade received constitutionally defective, but that Akinsade did not experience prejudice as a result.
The Fourth Circuit points to three aspects of Akinsade’s plea that caused him to experience prejudice: the equivocal nature of the admonishment - that his plea could lead to deportation, when in fact deportation was a mandatory consequence; his counsel’s affirmative mis-advice clearly contrary to the law; and the severity of deportation itself as a consequence. With respect to the mis-advice, the Fourth Circuit reiterated and applied its position from U.S. v. Gajendragadkar, in which it found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the U.S. and thus, would reasonable risk going to trial over taking a plea and facing certain deportation. The Fourth Circuit did not discuss a retroactive application of Padilla because neither the appellant nor the government contested the fact that the incorrect advice Akinsade received was constitutionally deficient.
The dissent noted that the civil immigration proceedings against Akinsade in the Second Circuit recently decided that Akinsade had not, in fact, pleaded guilty to an aggravated felony, and thus, the government did not plan to oppose termination of Akinsade’s deportation. The dissent found it unnecessary to vacate Akinsade’s plea when he would not be deported as a result of it.
In order to reach its decision, the Fourth Circuit enunciated a standard it will use in reviewing petitions for writ of error coram nobis: abuse of discretion. In order to receive this type of extraordinary relief, a petitioner must show the following: 1) a more usual remedy is not available; 2) valid reasons exist for a failure to attack a conviction earlier; 3) adverse consequences from the conviction exist, such that the case or controversy requirement of Article III is satisfied; and 4) the error is "of the most fundamental character." This final requirement received the most attention in this opinion.
Prior to reaching the Fourth Circuit, the district court that received Akinsade’s petition denied his petition without a hearing, on the grounds that this extraordinary remedy was not available for a "mere garden-variety" ineffective assistance of counsel claim that did not allege a "fundamental error." The district court did find that Akinsade’s counsel’s affirmative misrepresentations rendered the advice Akinsade received constitutionally defective, but that Akinsade did not experience prejudice as a result.
The Fourth Circuit points to three aspects of Akinsade’s plea that caused him to experience prejudice: the equivocal nature of the admonishment - that his plea could lead to deportation, when in fact deportation was a mandatory consequence; his counsel’s affirmative mis-advice clearly contrary to the law; and the severity of deportation itself as a consequence. With respect to the mis-advice, the Fourth Circuit reiterated and applied its position from U.S. v. Gajendragadkar, in which it found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the U.S. and thus, would reasonable risk going to trial over taking a plea and facing certain deportation. The Fourth Circuit did not discuss a retroactive application of Padilla because neither the appellant nor the government contested the fact that the incorrect advice Akinsade received was constitutionally deficient.
The dissent noted that the civil immigration proceedings against Akinsade in the Second Circuit recently decided that Akinsade had not, in fact, pleaded guilty to an aggravated felony, and thus, the government did not plan to oppose termination of Akinsade’s deportation. The dissent found it unnecessary to vacate Akinsade’s plea when he would not be deported as a result of it.
Tuesday, July 24, 2012
No plea agreement breach when government gets the statutory maximum wrong
US v. Davis: The government indicted William Davis for unlawful possession of a firearm by a convicted felon under 18 U.S.C. sect. 922(g)(1). Davis had three prior state felony convictions. The government presented a plea agreement in which Davis was incorrectly advised that he faced a ten-year maximum sentence when in fact, he faced a fifteen-year mandatory minimum based on his criminal history. Davis entered the plea agreement; to make matters worse, the district court similarly misadvised Davis at the plea hearing about the actual extent of exposure to punishment he faced.
The probation officer who prepared the pre-sentence investigation report discovered the errors and concluded that Davis’ sentence should be fifteen years to life in prison. At sentencing, Davis objected on three grounds, none of which included a contention that the government breached his plea agreement or that he had been misadvised regarding the statutory maximum punishment. The district court overruled his objections and designated Davis an armed career criminal, and sentenced him to 180 months.
Nine months later, Davis filed a claim under 28 U.S.C. sect. 2255 to challenge his sentence, based in part on his counsel’s failure to file a direct appeal upon his request. Davis’ attorney had recently died, so the Court granted his petition and gave him 14 days to appeal his sentence. He raised two issues: the government breached the plea agreement and deprived him of the benefit of his bargain; and his qualification as an armed career criminal.
The Fourth Circuit found that Davis’ claim of breaching the plea agreement failed because he sought "the benefit of a promise that the government never made," as it did not promise a particular sentence and made only "non-binding" recommendations and "no representations" as to the final sentence. Also, the district court has no discretion to sentence an individual in contravention of a statute, so even if the government had breached an agreement with Davis, he would not have been entitled to "specific performance" of that promise.
There was an appeal waiver contained in Davis’ plea agreement, but the Fourth Circuit found that his waiver was invalid because he did not knowingly waive the right to appeal the sentence ultimately imposed. The Fourth Circuit did not agree with Davis that he did not qualify for an armed career criminal enhancement, and upheld his sentence against this claim of error.
The probation officer who prepared the pre-sentence investigation report discovered the errors and concluded that Davis’ sentence should be fifteen years to life in prison. At sentencing, Davis objected on three grounds, none of which included a contention that the government breached his plea agreement or that he had been misadvised regarding the statutory maximum punishment. The district court overruled his objections and designated Davis an armed career criminal, and sentenced him to 180 months.
Nine months later, Davis filed a claim under 28 U.S.C. sect. 2255 to challenge his sentence, based in part on his counsel’s failure to file a direct appeal upon his request. Davis’ attorney had recently died, so the Court granted his petition and gave him 14 days to appeal his sentence. He raised two issues: the government breached the plea agreement and deprived him of the benefit of his bargain; and his qualification as an armed career criminal.
The Fourth Circuit found that Davis’ claim of breaching the plea agreement failed because he sought "the benefit of a promise that the government never made," as it did not promise a particular sentence and made only "non-binding" recommendations and "no representations" as to the final sentence. Also, the district court has no discretion to sentence an individual in contravention of a statute, so even if the government had breached an agreement with Davis, he would not have been entitled to "specific performance" of that promise.
There was an appeal waiver contained in Davis’ plea agreement, but the Fourth Circuit found that his waiver was invalid because he did not knowingly waive the right to appeal the sentence ultimately imposed. The Fourth Circuit did not agree with Davis that he did not qualify for an armed career criminal enhancement, and upheld his sentence against this claim of error.
Wednesday, July 18, 2012
Illegal re-entry & prior TX burglary conviction lead to enhanced sentence
US v. Bonilla: Francisco Bonilla pleaded guilty to one count of illegal re-entry; the presentence report ordered in advance of the sentencing in his case included an enhancement based on his prior state conviction for burglary of a habitation in Texas. Bonilla objected to the application of this enhancement, arguing that this prior conviction did not qualify as a crime of violence as required in Taylor v. United States, 495 U.S. 575 (1990).
In Taylor, the Supreme Court set out to uniformly define "burglary" from the variety of definitions in different States’ criminal codes. The Fourth Circuit discusses Taylor at length as the backdrop for making its decision here, and the short version: if the state definition corresponds "substantially" to generic burglary, then the sentencing enhancement at stake here applies.
The Fifth Circuit has held that a burglary conviction under the same code section as Bonilla received is NOT a generic burglary under Taylor, because it does not contain an intent element to commit a felony, theft, or assault at the moment of entry. The Fourth Circuit respectfully states that this holding results from a "too rigid" reading of Taylor, and Bonilla’s guilty plea contained all the elements to satisfy Taylor’s description of generic burglary "notwithstanding that Bonilla might not have formulated his intent prior to the unlawful entry." The dissent’s well-reasoned view supports the opposite conclusion, based on the common law notion that intent must be contemporaneous with the other elements of the offense, in order for a burglary to satisfy Taylor.
In Taylor, the Supreme Court set out to uniformly define "burglary" from the variety of definitions in different States’ criminal codes. The Fourth Circuit discusses Taylor at length as the backdrop for making its decision here, and the short version: if the state definition corresponds "substantially" to generic burglary, then the sentencing enhancement at stake here applies.
The Fifth Circuit has held that a burglary conviction under the same code section as Bonilla received is NOT a generic burglary under Taylor, because it does not contain an intent element to commit a felony, theft, or assault at the moment of entry. The Fourth Circuit respectfully states that this holding results from a "too rigid" reading of Taylor, and Bonilla’s guilty plea contained all the elements to satisfy Taylor’s description of generic burglary "notwithstanding that Bonilla might not have formulated his intent prior to the unlawful entry." The dissent’s well-reasoned view supports the opposite conclusion, based on the common law notion that intent must be contemporaneous with the other elements of the offense, in order for a burglary to satisfy Taylor.
Possession of weapon in prison - crime of violence?
US v. Mobley: Mobley, imprisoned at FCI Butner, visited the infirmary for pain and numbness in his feet. Upon examination, a shank was discovered in the insole of Mobley’s right shoe. Despite Mobley’s attempt to hide it, the physical therapist turned the shank over to prison staff.
Mobley received a charge for possessing a prohibited object to which he pleaded guilty. The presentence report calculated Mobley’s base offense level and then applied the career offender enhancement, considering the possession of the shank to be a "crime of violence" for sentencing purposes. Application of this enhancement increased Mobley’s punishment from a range of 24-30 months, based upon his criminal history, to 37 to 46 months. Mobley objected to the application of this enhancement at sentencing; the district court decided that "there is no passive possession of a weapon in a prison setting,"and imposed a sentence of 37 months.
The Third Circuit has adopted the position that possession of a weapon, "even in a prison," is not the same in kind or in degree of risk as crimes of violence under the career offender sentencing enhancement. The Fifth, Eighth, and Tenth Circuits, however, have reached a different conclusion when faced with this issue, holding that possession of a weapon in prison "is similar in kind and degree of risk" to burglary, arson, or extortion, or any other enumerated crime of violence under this sentencing enhancement. The Fourth Circuit concurred with the latter group and affirmed Mobley's sentence, though Justice Wynn dissented, agreeing with the Third Circuit that possession of a weapon is "a far cry" from the conduct of enumerated crimes listed in U.S.S.G. sect. 4B1.2(a).
Mobley received a charge for possessing a prohibited object to which he pleaded guilty. The presentence report calculated Mobley’s base offense level and then applied the career offender enhancement, considering the possession of the shank to be a "crime of violence" for sentencing purposes. Application of this enhancement increased Mobley’s punishment from a range of 24-30 months, based upon his criminal history, to 37 to 46 months. Mobley objected to the application of this enhancement at sentencing; the district court decided that "there is no passive possession of a weapon in a prison setting,"and imposed a sentence of 37 months.
The Third Circuit has adopted the position that possession of a weapon, "even in a prison," is not the same in kind or in degree of risk as crimes of violence under the career offender sentencing enhancement. The Fifth, Eighth, and Tenth Circuits, however, have reached a different conclusion when faced with this issue, holding that possession of a weapon in prison "is similar in kind and degree of risk" to burglary, arson, or extortion, or any other enumerated crime of violence under this sentencing enhancement. The Fourth Circuit concurred with the latter group and affirmed Mobley's sentence, though Justice Wynn dissented, agreeing with the Third Circuit that possession of a weapon is "a far cry" from the conduct of enumerated crimes listed in U.S.S.G. sect. 4B1.2(a).
Tuesday, July 17, 2012
Special Conditions on Supervised Release Reversed
US v. Worley: Appellant David Worley received a 100-month sentence for his convictions for methamphetamine offenses. He challenged the length of the sentence as well as the special conditions imposed on his supervised release, arguing that the district court abused its discretion in imposing the conditions. The Fourth Circuit disagreed with respect to the 100 months of incarceration (within his advisory guidelines range), but it agreed that several of the special conditions should be reversed.
Worley’s presentence report recommended fifteen special conditions in this case, based upon two twelve-year-old state convictions for carnal knowledge of a child (committed when Worley was twenty-one). In particular, three of the special conditions prohibited Worley from having unsupervised contact with children, residing with minor children without permission from a probation officer, and forming a romantic relationship with anyone who has physical custody of a child. In the intervening twelve years, Worley had started a family with three young children, and maintained his relationship with his family and girlfriend. Worley did not explicitly object to the district court’s imposition of the special conditions at sentencing.
The Fourth Circuit stated that it did not need to determine whether to use plain error review of the special conditions, or the more deferential standard, an abuse of discretion: the imposition of these three restrictive special conditions on Worley’s supervised release was plain error, and did not further the defendant’s rehabilitation. "Conditions that interfere with a defendant’s constitutional liberties, such as raising his child or associating with a loved one, must be adequately explained or else their imposition undermines the fairness and integrity of our judicial proceedings." The Fourth Circuit noted that, "[g]iven the severity of these restrictions in hindering Worley’s familial relations weighed against the lack of evidence that Worley currently poses a threat to children, the district court erred in imposing the conditions and this error requires a complete reversal with no remand."
With respect to the remaining special conditions on Worley’s supervised release, the Fourth Circuit remanded them to the district court, as "they impose restrictions that do well beyond Worley’s state sex offender registration requirements," but they did not infringe on his relationship with his children and girlfriend. In imposing these conditions, the district court had only relied on Worley’s prior state sex offense convictions, and the record according to the Fourth Circuit, did not support the conclusion that Worley’s current behavior and character required them.
Worley’s presentence report recommended fifteen special conditions in this case, based upon two twelve-year-old state convictions for carnal knowledge of a child (committed when Worley was twenty-one). In particular, three of the special conditions prohibited Worley from having unsupervised contact with children, residing with minor children without permission from a probation officer, and forming a romantic relationship with anyone who has physical custody of a child. In the intervening twelve years, Worley had started a family with three young children, and maintained his relationship with his family and girlfriend. Worley did not explicitly object to the district court’s imposition of the special conditions at sentencing.
The Fourth Circuit stated that it did not need to determine whether to use plain error review of the special conditions, or the more deferential standard, an abuse of discretion: the imposition of these three restrictive special conditions on Worley’s supervised release was plain error, and did not further the defendant’s rehabilitation. "Conditions that interfere with a defendant’s constitutional liberties, such as raising his child or associating with a loved one, must be adequately explained or else their imposition undermines the fairness and integrity of our judicial proceedings." The Fourth Circuit noted that, "[g]iven the severity of these restrictions in hindering Worley’s familial relations weighed against the lack of evidence that Worley currently poses a threat to children, the district court erred in imposing the conditions and this error requires a complete reversal with no remand."
With respect to the remaining special conditions on Worley’s supervised release, the Fourth Circuit remanded them to the district court, as "they impose restrictions that do well beyond Worley’s state sex offender registration requirements," but they did not infringe on his relationship with his children and girlfriend. In imposing these conditions, the district court had only relied on Worley’s prior state sex offense convictions, and the record according to the Fourth Circuit, did not support the conclusion that Worley’s current behavior and character required them.
Mandatory Restitution statute interpreted
US v. Burgess: The Fourth Circuit affirmed Burgess's two convictions and 292-month sentence for receipt and possession of materials depicting minors engaged in sexually explicit conduct, but it vacated the restitutionary award to the victim, "Vicky," for a calculation of the amount of loss proximately caused by Burgess.
At the sentencing hearing, the government submitted a request pursuant to the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. sect. 2259, for "Vicky," the victim portrayed in the materials seized from the appellant's residence. The government argued that Burgess should be held "jointly and severally liable with all other defendants [for] the full amount of Vicky's losses." The district court based its restitution award on the government's memorandum and calculation of loss.
The appeal presented the question of whether a victim's losses attributable to a defendant under this restitution statute are limited to losses proximately caused by the defendant, or whether the plain language of the statute imposes no such limitation (as "Vicky" argued as amicus curiae). Other circuits that have considered this issue have determined that a proximate cause limitation is applicable to this statute based upon a variety of rationales; though most them, like the Fourth Circuit here, examined the issue by using tort law principles in the construction of the criminal statute to resolve any ambiguity.
The Fourth Circuit concluded that nothing in the text or structure of this statute indicated that Congress intended to "negate the ordinary requirement of proximate causation for an award of compensatory damages," and found that this statute "invokes the well-recognized principle that a defendant is liable only for harm that he proximately caused," and not for those injuries inflicted by others at different times.
The dissent argues that the majority's opinion in premature, in that the district court below did not make factual findings with respect to proximate cause. Additionally, he does not believe that district courts will be able to "meaningfully say precisely x amount of Vicky's psychological injuries were caused by Burgess's watching the video, that y amount was caused by Defendant #2's watching the same video, and so on." Further, the dissent argues that the question of whether "a defendant proximately caused some injury is entirely separate from the question of how those proximately caused losses should be allocated among several offenders."
At the sentencing hearing, the government submitted a request pursuant to the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. sect. 2259, for "Vicky," the victim portrayed in the materials seized from the appellant's residence. The government argued that Burgess should be held "jointly and severally liable with all other defendants [for] the full amount of Vicky's losses." The district court based its restitution award on the government's memorandum and calculation of loss.
The appeal presented the question of whether a victim's losses attributable to a defendant under this restitution statute are limited to losses proximately caused by the defendant, or whether the plain language of the statute imposes no such limitation (as "Vicky" argued as amicus curiae). Other circuits that have considered this issue have determined that a proximate cause limitation is applicable to this statute based upon a variety of rationales; though most them, like the Fourth Circuit here, examined the issue by using tort law principles in the construction of the criminal statute to resolve any ambiguity.
The Fourth Circuit concluded that nothing in the text or structure of this statute indicated that Congress intended to "negate the ordinary requirement of proximate causation for an award of compensatory damages," and found that this statute "invokes the well-recognized principle that a defendant is liable only for harm that he proximately caused," and not for those injuries inflicted by others at different times.
The dissent argues that the majority's opinion in premature, in that the district court below did not make factual findings with respect to proximate cause. Additionally, he does not believe that district courts will be able to "meaningfully say precisely x amount of Vicky's psychological injuries were caused by Burgess's watching the video, that y amount was caused by Defendant #2's watching the same video, and so on." Further, the dissent argues that the question of whether "a defendant proximately caused some injury is entirely separate from the question of how those proximately caused losses should be allocated among several offenders."
Monday, July 02, 2012
Fraud Convictions for Manufactured Regulatory Approval Upheld
US v. Wynn: Wynn was an engineer with a firm responsible for a project extending the runway of a regional airport in South Carolina. In order to embark on the project, the airport needed the plans drawn up by Wynn to be approved by regulators. Wynn never got such approval, but when asked if the approval had been given, fabricated an appropriate stamp from the regulators and sent it to the airport by mail and later the regulators as an attachment to an email. As a result, Wynn was charged and convicted for mail fraud and wire fraud. He was sentenced to 12 months and one day in prison and ordered to pay restitution of $118,000.
On appeal, Wynn challenged both his conviction and sentence, both of which the court upheld. As to his convictions, Wynn argued that the district court improperly instructed the jury by allowing a conviction without the Government proving that he intended to harm the airport (or the county that ran it) and that the evidence was insufficient to prove that element. The court disagreed, holding that the instructions correctly told the jury it needed to find an intent to defraud on Wynn's part, not simply a falsehood in his dealings with the airport. The court also rejected Wynn's argument that providing the falsely approved version of the plan to was not material or reasonably relied upon. As to his sentence, Wynn argued that the loss calculation by the district court greatly overestimated the actual loss, because it included fees paid by the county to Wynn's firm that were unrelated to the fraud. The court disagreed, holding that it was not clear error for the district court to concluded that the other fees would not have been paid to Wynn's firm had the county paying them been aware of his fraud.
Citizens United Doesn't Undermine Corporate Contribution Prohibition
Danielczyk: Danielczyk and Biagi were officers at Galen Capital who arranged for others to make contributions to Hillary Clinton's presidential campaign in 2008 and be reimbursed by Galen. As a result, they were indicted on multiple counts, including one (Count Four) that charged them with causing contributions of corporate money to a candidate for federal office (in excess of $25,000) and conspiring to do so. They moved to dismiss Count Four, arguing that the statute was unconstitutional in the wake of the Supreme Court's decision in Citizens United. The district court agreed, holding that the statute at issue in Citizens United, as it reads now, treats corporate and individual contributions differently.
The Government appealed and the Fourth Circuit reversed the district court. The Court relied on a pre-Citizens United decision by the Supreme Court that upheld the statute at issue against an earlier First Amendment challenge. It rejected Danielczyk and Biagi's argument that the prior decision was no longer valid in light of Citizens United and that, at any rate, it was limited to nonprofit corporations (the party at issue in that case), rather than for-profit corporations. It reversed the district court and remanded the case for further proceedings.
Religious Tax Evasion Convictions, Sentences, Upheld
US v. Jinwright: Anthony Jinwright became the senior pastor at a North Carolina church in 1981. By the time his wife (and codefendant) Harriet joined him as a pastor in 2000, he was making a six figure income, not to mention a luscious benefits package. Between 2001 and 2007, Anthony earned a total of $3.9 million in wages and benefits, while Harriet made nearly $1 million. Unfortunately, not all of that income was reported to the IRS, which estimated that they underpaid by more than $650,000 in that time. Both Jinwrights were convicted of conspiracy to defraud the Government and tax evasion, with Anthony convicted of several additional counts of tax evasion and filing false tax returns. Anthony was sentenced to 105 months in prison, Harriet to 80 months.
The Jinwrights challenged both their convictions and sentences on appeal, all of which were affirmed. As to the convictions, they raised three arguments. First, they argued that the district court erred by giving a willful blindness instruction, both because the evidence did not support it and the legal standard presented in it was incorrect. The court disagreed, holding that the evidence supported the instruction and that it properly warned the jury that it could not convict if the Jinwrights were simply reckless or foolish in overlooking what was happening. Second, the Jinwrights argued that a jury instruction on the tax treatments of payments from employer to employee directed the jury to find particular facts, namely that the Jinrights received payments that they were required to report as income. The court disagreed. Third, they argued that the district court improperly limited their cross examination of three witnesses who believe that payments from the church to the Jinwrights were gifts. The court found the limitation was a reasonable precaution to prevent jury confusion.
As to sentencing, Harried challenged her tax loss calculation, arguing that included funds from a year for which the jury acquitted her of evasion. The court disagreed, noting that the use of acquitted conduct at sentencing is permissible and concluding that the district court's findings were sufficiently explained. Both Jinwrights challenged the amount of restitution they were ordered to pay, arguing that it included sums based on losses that occurred prior to the conduct for which they were convicted. The court concluded that the district court could order restitution based on losses caused by the acts in the conspiracy, even if the defendant was not convicted for each of the acts. Finally, the Jinwrights both argued that the district court erred in imposing two Guideline enhancements. One was for the use of sophisticated means, which the court held was justified based on the Jinwrights use of multiple organizations and "a variety of sophisticated techniques" laid out in the PSR. The other was for abuse of a position of trust, which the court affirmed on the basis of "the wide range of conduct in the record," including having access to church finances.
Virginia Prior Triggers Child Porn Enhancement
US v. Colson: Colson pleaded guilty to multiple counts of receiving movies depicting child pornography. He was sentenced to a 15-year mandatory minimum term under 18 USC 2252A(a)(2) based on a prior Virginia conviction for the "production, publication, sale, or possession, etc. of obscene items involving children." Colson argued that, when analyzed under the categorical approach, such a conviction does not qualify for the enhancement because it could have been committed in ways that "relates to the sexual abuse of a minor," as required for the enhancement to apply.
On appeal, Colson renewed his argument, which the Fourth Circuit rejected. Applying a purely categorical approach and reviewing the Virginia statute in force at the time of Colson's prior conviction (in 1984 - all the records had since been destroyed), the court first concluded that the Virginia statute did not, as Colson claimed, cover "innocuous depictions of nudity" because it punished only the "lewd" exhibition of nudity, not simply the nudity. In addition, the court concluded that the enhancement applies not only if the prior conviction at issue is for "sexual abuse" or "abusive sexual conduct involving a minor," but whether it is related to those two offenses. The Virginia statute at issue here categorically "relates to" those offenses.
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