US v. Henry: The Henrys (husband and wife) were indicted on multiple charges related to growing marijuana on November 3, 2004. A trial date was originally set on July 7, 2005, but both parties requested a continuance, noting that the Henrys had already prospectively waived their speedy trial rights. The motion was granted and proceedings continued until March 24, 2006, when the court learned that plea negotiations had broken down. Trial was set for July 5, 2006. At the March 24 hearing, Mr. Henry complained that the case had "dragged on for two years." Before the trial date rolled around, the Supreme Court handed down Zedner, in which it held that defendants could not prospectively waive speedy trial rights.
At a pretrial motions hearing on June 27, 2006, the district court brought up the Zedner issue sua sponte. After concluding that the Henrys' speedy trial rights waivers were invalid, the district court nonetheless concluded that the continuances granted on July 7, 2005 and March 24, 2006 satisfied the "ends of justice" criteria for being excluded from speedy trial calculations, the first to facilitate plea negotiations and the second because the need for proper trial preparation outweighed interests in a speedy trial. The district court acted on its memory of the March 24 hearing, without reference to a transcript. Nonetheless, the Henrys moved to dismiss the indictment due to speedy trial violations. The district court denied the motion, the Henrys pleaded guilty, and were sentenced to 60 months in prison.
On appeal, the Fourth Circuit reversed the district court. Reviewing the entirety of the record, including a transcript of the March 24 hearing, the court concluded that the district court in granting the continuance relied upon the Henrys' waivers of their speedy trial rights. Under Zedner, those waivers were now invalid. Critically, at the March 24 hearing the district court did not consider whether the ends of justice supported a continuance, as Zedner now requires. The court remanded with orders to dismiss, but left it to the district court to decide whether to do so with prejudice.
Congrats to the Northern WV FPD office on the win!
Wednesday, August 20, 2008
Tuesday, August 19, 2008
Court Reversed Decision Excluding Old Fraud Evidence
US v. Siegel: Siegel was indicted on multiple counts of wire fraud and mail fraud, in addition to a count of murder to prevent the reporting of those offenses. The charges stem from the latest in a long line of (alleged) scams Siegel perpetrated against family, friends, and strangers. The indictment against her dealt specifically with fraud against a boyfriend before and after his death in 1996. However, the indictment included, as part of the definition of the "scheme or artifice to defraud" allegations against several other people stretching back decades. The Government also filed notice of its intent to use other evidence of prior frauds (and convictions) as FRE 404(b) evidence. Siegel moved to exclude the Government from presenting any such evidence and striking the language in the indictment as surplusage. The district court granted the motions (at least in regard to the Government's case in chief) and the Government appealed.
The Fourth Circuit reversed the district court. In doing so, it first had to determine whether it had jurisdiction to entertain such an interlocutory appeal at all. The court concluded that it did, as the district court's order was final, even if couched as a preliminary order. It precluded the Government's use of the evidence in its case in chief. While the court indicated that it might reconsider its ruling, it said it would do so only at the close of evidence, after jeopardy had attached. Given the finality of the order, the Fourth Circuit concluded it had jurisdiction.
On the merits, the Fourth also sided with the Government. As to the 404(b) evidence, the Government argued that it demonstrated how Siegel would defraud "anyone available, be it family or friend." The Fourth Circuit agreed, holding that such evidence demonstrated Siegel's scheme and her motive for murder. That evidence was also not precluded under FRE 403 as it was neither unduly prejudicial nor likely to cause confusion or repetition at trial. Given those conclusions, the Fourth Circuit held that there was no basis for striking any language from the indictment.
District Judge Kiser (WDVa) dissented with respect to the evidentiary issues, arguing that the majority failed to show appropriate deference to the district court findings and that the district court did not abuse its discretion in excluding the evidence.
The Fourth Circuit reversed the district court. In doing so, it first had to determine whether it had jurisdiction to entertain such an interlocutory appeal at all. The court concluded that it did, as the district court's order was final, even if couched as a preliminary order. It precluded the Government's use of the evidence in its case in chief. While the court indicated that it might reconsider its ruling, it said it would do so only at the close of evidence, after jeopardy had attached. Given the finality of the order, the Fourth Circuit concluded it had jurisdiction.
On the merits, the Fourth also sided with the Government. As to the 404(b) evidence, the Government argued that it demonstrated how Siegel would defraud "anyone available, be it family or friend." The Fourth Circuit agreed, holding that such evidence demonstrated Siegel's scheme and her motive for murder. That evidence was also not precluded under FRE 403 as it was neither unduly prejudicial nor likely to cause confusion or repetition at trial. Given those conclusions, the Fourth Circuit held that there was no basis for striking any language from the indictment.
District Judge Kiser (WDVa) dissented with respect to the evidentiary issues, arguing that the majority failed to show appropriate deference to the district court findings and that the district court did not abuse its discretion in excluding the evidence.
Court Affirms Conviction, Life Sentence, for Crack Possession
US v. Farrior: Farrior was involved in two car searches that uncovered crack cocaine.
The first was the result of a traffic stop for an inoperable tag light. After Farrior was given a verbal warning, the officer who pulled him over asked if he would step out of the car and talk. Farrior agreed and eventually consented to a search of the car, which uncovered nothing. In the interim, another officer arrived on the scene with a drug dog, which sniffed the outside of the car, alerting to the trunk. The officers eventually searched one of Farrior's boots, finding 5.5 grams of crack cocaine and cash.
The second search occurred when Farrior was the victim of a shooting. After towing his vehicle, officers searched it and found 469 grams of crack cocaine (also in boots). Farrior was convicted of possession with intent to deliver crack cocaine and possession of more than 50 grams of crack cocaine and sentenced to life in prison. On appeal, Farrior challenged both his convictions and sentence, which the Fourth Circuit affirmed.
First, the court rejected Farrior's argument that the evidence uncovered during the first traffic stop should be suppressed. The court concluded that the officers did not unduly prolong the valid traffic stop such that it violated the Fourth Amendment. Second, the court rejected Farrior's Batson challenge to the Government's strike of his jury's only African-American member, pointing out the numerous race-neutral reasons given by the Government to support its decision. Third, the court concluded that the district court properly denied Farrior's request for a new trial due to statements of the prosecution about reasonable doubt during closing argument.
As to Farrior's sentence, the Fourth Circuit first rejected Farrior's argument that the court document used to prove a prior conviction was not sufficient because it did not contain an actual judge's signature, only a mechanical "authorized signature." The court noted that the records relied upon by the district court were certified, signed, and produced by the court of conviction. Even without the "authorized signature" they would have been sufficient. The court also rejected Farrior's argument that his sentence was unreasonable, noting that the life sentence was mandatory.
The first was the result of a traffic stop for an inoperable tag light. After Farrior was given a verbal warning, the officer who pulled him over asked if he would step out of the car and talk. Farrior agreed and eventually consented to a search of the car, which uncovered nothing. In the interim, another officer arrived on the scene with a drug dog, which sniffed the outside of the car, alerting to the trunk. The officers eventually searched one of Farrior's boots, finding 5.5 grams of crack cocaine and cash.
The second search occurred when Farrior was the victim of a shooting. After towing his vehicle, officers searched it and found 469 grams of crack cocaine (also in boots). Farrior was convicted of possession with intent to deliver crack cocaine and possession of more than 50 grams of crack cocaine and sentenced to life in prison. On appeal, Farrior challenged both his convictions and sentence, which the Fourth Circuit affirmed.
First, the court rejected Farrior's argument that the evidence uncovered during the first traffic stop should be suppressed. The court concluded that the officers did not unduly prolong the valid traffic stop such that it violated the Fourth Amendment. Second, the court rejected Farrior's Batson challenge to the Government's strike of his jury's only African-American member, pointing out the numerous race-neutral reasons given by the Government to support its decision. Third, the court concluded that the district court properly denied Farrior's request for a new trial due to statements of the prosecution about reasonable doubt during closing argument.
As to Farrior's sentence, the Fourth Circuit first rejected Farrior's argument that the court document used to prove a prior conviction was not sufficient because it did not contain an actual judge's signature, only a mechanical "authorized signature." The court noted that the records relied upon by the district court were certified, signed, and produced by the court of conviction. Even without the "authorized signature" they would have been sufficient. The court also rejected Farrior's argument that his sentence was unreasonable, noting that the life sentence was mandatory.
Tuesday, July 22, 2008
Rape Via Lack of Consent Is "Forcible Sex Offense"
US v. Chacon: Chacon is a Honduran citizen who entered the US illegally and was deported following a conviction in Maryland for second-degree rape. Afterwards, Chacon again entered the country illegally, this time using false ID documents. He pleaded guilty to illegal reentry and fraud. At sentencing, he was assessed a 16-level enhancement under 2L1.2(b)(1)(A) because his Maryland conviction constituted a "crime of violence." Chacon objected, arguing it was merely an aggravated felony (an 8-level enhancement). The district court disagreed and sentenced Chacon to 41 months in prison.
On appeal, the Fourth Circuit affirmed, dealing with the first time with the issue of whether a sexual offense committed based on lack of consent, as opposed to physical force, constituted a "forcible sex offense" and, therefore, a crime of violence. The Maryland information to which Chacon pleaded guilty did not specify which of the three subsections he violated - rape by force, rape of a person unable to give consent, or statutory rape. The Fourth Circuit began by noting that it was clear that the first and third provisions were forcible sex offenses by the language in the Guidelines. As to the second provision, noting a circuit split on the issue, the court held that sex offenses committed based on the inability to give consent are forcible sex offenses. Thus, the court affirmed Chacon's sentence.
On appeal, the Fourth Circuit affirmed, dealing with the first time with the issue of whether a sexual offense committed based on lack of consent, as opposed to physical force, constituted a "forcible sex offense" and, therefore, a crime of violence. The Maryland information to which Chacon pleaded guilty did not specify which of the three subsections he violated - rape by force, rape of a person unable to give consent, or statutory rape. The Fourth Circuit began by noting that it was clear that the first and third provisions were forcible sex offenses by the language in the Guidelines. As to the second provision, noting a circuit split on the issue, the court held that sex offenses committed based on the inability to give consent are forcible sex offenses. Thus, the court affirmed Chacon's sentence.
Gain From Criminal Activity Not Proper Measure for Restitution
US v. Harvey: Harvey and his codefendant, Kronstein, were convicted by a jury of honest services wire fraud and bribery. The convictions arose from an arrangement by which Harvey, a civilian military employee, funnelled a no-bid contract to a company owned by Kronstein. Harvey and Kronstein also moved funds between themselves, using businesses and intermediaries (including their wives) as conduits. Harvey was sentenced to 72 months in prison, Kronstein to 70 months and ordered them, jointly and severally, to pay $383,621 in restitution.
They appealed both their convictions and sentences. The Fourth Circuit affirmed the convictions and prison terms, while vacating the restitution award.
As to the convictions, the court first concluded that the evidence was sufficient to convict Harvey and Kronstein of honest services wire fraud, rejecting the argument that the Government failed to show either that their scheme involved a material misrepresentation or concealment of fact or that they had the specific intent to defraud. The court also rejected the argument that there was insufficient evidence to sustain the bribery convictions, holding that there was sufficient evidence of corrupt intent in their dealings.
As to the sentences, the Fourth Circuit turned away factual challenges to Guideline enhancements for the amount of loss, the number of bribes involved, and Harvey's and Kronstein's roles in the offense.
As to the restitution, the court concluded that the Government had failed to prove the amount of actual loss attributable to the defendants, rather than intended loss (which was used in the Guideline calculations). Specifically, the court rejected the practice of using the profit gained from the criminal activity as a proxy for actual loss. Thus, the restitution award was vacated and remanded to the district court for further proceedings.
They appealed both their convictions and sentences. The Fourth Circuit affirmed the convictions and prison terms, while vacating the restitution award.
As to the convictions, the court first concluded that the evidence was sufficient to convict Harvey and Kronstein of honest services wire fraud, rejecting the argument that the Government failed to show either that their scheme involved a material misrepresentation or concealment of fact or that they had the specific intent to defraud. The court also rejected the argument that there was insufficient evidence to sustain the bribery convictions, holding that there was sufficient evidence of corrupt intent in their dealings.
As to the sentences, the Fourth Circuit turned away factual challenges to Guideline enhancements for the amount of loss, the number of bribes involved, and Harvey's and Kronstein's roles in the offense.
As to the restitution, the court concluded that the Government had failed to prove the amount of actual loss attributable to the defendants, rather than intended loss (which was used in the Guideline calculations). Specifically, the court rejected the practice of using the profit gained from the criminal activity as a proxy for actual loss. Thus, the restitution award was vacated and remanded to the district court for further proceedings.
Tuesday, July 01, 2008
Sentenced Imposed Without Guideline Affirmed as Not "Plainly Unreasonable"
US v. Finley: Finley was convicted under the Assimilative Crimes Act of 3rd offense DUI and driving on a revoked license on a military base. At sentencing, Finley argued that the district court should consider what the state (Virginia) sentencing guidelines for the offenses would be - 90 days to six months in jail (or 7-10 months, as conceded on appeal). The district court "could care less what the guidelines [were] in the state system" and imposed a sentence of 27 months in prison.
Affirming, the Fourth Circuit first addressed the proper standard of review in a case like this one where there is no applicable Guideline. Applying the holding in US v. Crudup, the court concluded that such sentences are reviewed to determine if they are "plainly unreasonable." In such cases, step one is regular Booker/Gall reasonableness review, followed by a second step of determining whether any unreasonableness is "plain."
Utilizing that standard, the court concluded that Finley's sentence was not unreasonable, much less plainly so. First, the court concluded that the district court did, in fact, consider the Virginia sentencing guidelines, but rejected them as not providing adequate deterrence to Finley. Second, the court concluded that Finley's sentence was substantively reasonable and supported by the district court's findings below.
Affirming, the Fourth Circuit first addressed the proper standard of review in a case like this one where there is no applicable Guideline. Applying the holding in US v. Crudup, the court concluded that such sentences are reviewed to determine if they are "plainly unreasonable." In such cases, step one is regular Booker/Gall reasonableness review, followed by a second step of determining whether any unreasonableness is "plain."
Utilizing that standard, the court concluded that Finley's sentence was not unreasonable, much less plainly so. First, the court concluded that the district court did, in fact, consider the Virginia sentencing guidelines, but rejected them as not providing adequate deterrence to Finley. Second, the court concluded that Finley's sentence was substantively reasonable and supported by the district court's findings below.
Prior Offenses Stacked in Applying 2L1.2 Enhancement
US v. Martinez-Varela: Martinez-Varela pleaded guilty to illegal reentry following an aggravated felony. He had three prior convictions for distribution of drugs, all of which occurred and were sentenced on the same day. Each carried a 6-8 month sentence, but two were made consecutive, for a total sentence of 12-16 months. At sentencing, his Guideline range was enhanced 16 levels under USSG 2L1.2(b)(1)(A) because the "sentence imposed" for the prior offenses was greater than 13 months. Aggregating the sentences imposed for the three offenses, the district court concluded that the 13-month threshold was passed and a 16-level increase was appropriate.
On appeal, the Fourth Circuit affirmed, holding that while the specific Guideline section cited in 2L1.2 as being used to determine prior sentences does not answer the question, a related section does provide support for the aggregation approach.
On appeal, the Fourth Circuit affirmed, holding that while the specific Guideline section cited in 2L1.2 as being used to determine prior sentences does not answer the question, a related section does provide support for the aggregation approach.
Estoppel Not a Bar to False Statements Convictions
US v. Benkahla: This case is a third one dealing with terrorism related charges arising out of an Islamic center in Falls Church, Virginia (see the prior Chandia and Khan decisions for more detail). Benkahla was initially charged and acquitted in a bench trial of supplying services to the Taliban and using a firearm in connection therewith in 2004, after being arrested in Saudi Arabia in 2003 (related to the recent Abu Ali decision). The basis for the court's acquittal was the Government failed to prove that the training camp Benkahla attended was in Afghanistan. Undaunted, the Government convened a grand jury to investigate charges of providing material support to terrorist organizations and subpoenaed Benkahla to testify multiple times, during which he denied any involvement. in 2006, the Government indicted Benkahla for making false statements to the grand jury, obstruction of justice, and making false statements to the FBI. After a jury convicted on those charges, the district court at sentencing applying the terrorism Guideline, but eventually imposing a variance sentence of 121 months in prison.
On appeal, Benkahla raised several issues, all of which the Fourth Circuit rejected. First, he argued that the Government was collaterally estopped from prosecuting him for false statements after his acquittal on related charges. While recognizing the "tension" inherent in such situations, the Court ultimately found it not to be problematic, focusing on the district court's narrow ground for acquittal in the first trial. Second, he argued that evidence presented at his trial on the nature of radical Islam, jihad, and terrorism was unduly prejudicial. The court concluded otherwise, noting its relevance to the elements of the offenses with which he was charged and noting that the jury acquitted Benkahla on some charges, thus showing it was not unduly swayed by prejudice. Finally, the court rejected Benkahla's argument about the proper application of the terrorism Guideline, specifically rejecting a Sixth Amendment-based Booker argument, noting that "the point is thus that the Guidelines must be advisory, not that judges may find no facts."
On appeal, Benkahla raised several issues, all of which the Fourth Circuit rejected. First, he argued that the Government was collaterally estopped from prosecuting him for false statements after his acquittal on related charges. While recognizing the "tension" inherent in such situations, the Court ultimately found it not to be problematic, focusing on the district court's narrow ground for acquittal in the first trial. Second, he argued that evidence presented at his trial on the nature of radical Islam, jihad, and terrorism was unduly prejudicial. The court concluded otherwise, noting its relevance to the elements of the offenses with which he was charged and noting that the jury acquitted Benkahla on some charges, thus showing it was not unduly swayed by prejudice. Finally, the court rejected Benkahla's argument about the proper application of the terrorism Guideline, specifically rejecting a Sixth Amendment-based Booker argument, noting that "the point is thus that the Guidelines must be advisory, not that judges may find no facts."
Tuesday, June 17, 2008
Omissions from Warrant and Date Error Don't Require Suppression
US v. Gary: Gary was convicted (of what the opinion doesn't say) based at least partly on information developed during a search of a home in Richmond, based on an anonymous tip. The tipster alleged that "Melvin" was selling heroin out of the home. A police officer investigated, rummaging through the trash in the alley behind the home, discovering items with heroin residue, packaging materials, and discarded mail indicating that the trash came from the target address. He applied for a search warrant, in which he failed to disclose that there were multiple trash cans in the alley, only one of which was marked as belonging to the target address, and indicated that the investigation took place a year before it actually did. The district court denied Gary's motion to suppress the evidence.
The Fourth Circuit affirmed, unanimously, in an opinion written by ex-Justice O'Connor. The court rejected Gary's argument that under Franks the information left out of the warrant application required suppression. The court concluded that the information left out of the warrant would not have changed whether probable cause was present. The court also rejected Gary's argument that, notwithstanding the omissions, the warrant application was not sufficient to justify a search because of the discrepancy in dates between the actual investigation and what was written on the application. Noting that the discrepancy wasn't even mentioned until the district court noticed it at the suppression hearing, it was clearly a typo and not destructive to probable cause. Even if it was, the Leon good-faith shield saved the search.
The Fourth Circuit affirmed, unanimously, in an opinion written by ex-Justice O'Connor. The court rejected Gary's argument that under Franks the information left out of the warrant application required suppression. The court concluded that the information left out of the warrant would not have changed whether probable cause was present. The court also rejected Gary's argument that, notwithstanding the omissions, the warrant application was not sufficient to justify a search because of the discrepancy in dates between the actual investigation and what was written on the application. Noting that the discrepancy wasn't even mentioned until the district court noticed it at the suppression hearing, it was clearly a typo and not destructive to probable cause. Even if it was, the Leon good-faith shield saved the search.
Thursday, June 12, 2008
Big Terrorism Case Leads to Split on Sentencing Review
US v. Abu Ali: Ali is a US citizen, born in Virginia, who eventually travelled to Saudi Arabia, where he became involved with an Al-Qaeda cell. After a bombing in Riyadh (in which Ali was not involved), Saudi authorities cracked down. Investigation of Ali and others led to indictment in the US against Ali for various terrorism and related charges, in addition to conspiracy to assassinate the President. He was convicted by a jury of all charges. In a lengthy opinion, the Fourth Circuit unanimously affirms the conviction, rejecting numerous challenges that are most likely to occur only in similar transnational terrorism cases.
The real action, from the more mundane perspective, involves sentencing. Ali's Guideline range called for a mandatory life sentence. At sentencing, the district court varied down to 360 months, based on both the particular facts of Ali's offense and background (he never actually perpetrated any violent acts, no violence in his past, etc.) as well as comparison with what the district court thought were two similar cases - those of John Walker Lindh and Tim McVeigh/Terry Nichols. Noting that Lindh only got 20 years and Nichols got life where his offense involved actual killing, the district court concluded that a variance to 360 months was necessary.
On appeal, the Fourth Circuit vacated the sentence, 2-1. The majority heavily dissected the district court's comparison between Ali's case and Lindh/Nichols and concluded that it gave too much weight to those comparisons, which were flawed to begin with. The majority did not state categorically that a 360-month sentence would always be unreasonable, but vacated and remanded for further proceedings. Judge Motz dissented on the sentencing issue, arguing that the majority's review ignored Gall and failed to provide the proper level of deference to the district court's sentence, concluding that it was a reasonable sentence, if not ,perhaps, the most reasonable.
The real action, from the more mundane perspective, involves sentencing. Ali's Guideline range called for a mandatory life sentence. At sentencing, the district court varied down to 360 months, based on both the particular facts of Ali's offense and background (he never actually perpetrated any violent acts, no violence in his past, etc.) as well as comparison with what the district court thought were two similar cases - those of John Walker Lindh and Tim McVeigh/Terry Nichols. Noting that Lindh only got 20 years and Nichols got life where his offense involved actual killing, the district court concluded that a variance to 360 months was necessary.
On appeal, the Fourth Circuit vacated the sentence, 2-1. The majority heavily dissected the district court's comparison between Ali's case and Lindh/Nichols and concluded that it gave too much weight to those comparisons, which were flawed to begin with. The majority did not state categorically that a 360-month sentence would always be unreasonable, but vacated and remanded for further proceedings. Judge Motz dissented on the sentencing issue, arguing that the majority's review ignored Gall and failed to provide the proper level of deference to the district court's sentence, concluding that it was a reasonable sentence, if not ,perhaps, the most reasonable.
Monday, June 02, 2008
Court Upholds 316% Upward Variance
US v. Evans: Evans committed a series of fraud and identity theft offenses, starting when he bought some personal information of Wachovia Bank account holders from a friend who worked at the bank. Eventually, he passed $13,600 in bad checks on the accounts of two individuals. Based on that loss, Evans's advisory Guideline range at sentencing was 24-30 months. In addition, the Government moved for a downward departure for Evans's substantial assistance in going after the friend who sold him the information. The district court saw things quite differently, concluding that the Guidelines grossly understated Evans's criminal history and the seriousness of his offense. It imposed a sentence of 125 months in prison.
On appeal, Evans argued that his sentence was unreasonable. After holding the case in abeyance pending the outcome of Gall, the Fourth Circuit affirmed the sentence. The court reviewed the record and concluded that the district court "carefully and thoroughly applied the prescribed sentencing factors" when imposing sentence. Affirmance was necessary, given "the requisite deference we must accord to the considered judgment of the district court." The court then specifically rejected Evans's argument that the Guidelines prohibited a departure on the grounds relied upon by the district court (the district court cited some Guideline provisions during the sentencing), concluding that if the sentence is reasonable and the district court was applying the 3553(a) factors the Guideline analysis was irrelevant. The court also rejected Evans's argument that the scope of the variance was too great. Judge Gregory concurred in the judgment, but wrote separately to "encourage a more tempered overall approach to the substantive reasonableness analysis."
On appeal, Evans argued that his sentence was unreasonable. After holding the case in abeyance pending the outcome of Gall, the Fourth Circuit affirmed the sentence. The court reviewed the record and concluded that the district court "carefully and thoroughly applied the prescribed sentencing factors" when imposing sentence. Affirmance was necessary, given "the requisite deference we must accord to the considered judgment of the district court." The court then specifically rejected Evans's argument that the Guidelines prohibited a departure on the grounds relied upon by the district court (the district court cited some Guideline provisions during the sentencing), concluding that if the sentence is reasonable and the district court was applying the 3553(a) factors the Guideline analysis was irrelevant. The court also rejected Evans's argument that the scope of the variance was too great. Judge Gregory concurred in the judgment, but wrote separately to "encourage a more tempered overall approach to the substantive reasonableness analysis."
Tuesday, May 20, 2008
Court Affirms Kidnapping/Murder Conviction
US v. Lentz: Lentz was charged with kidnapping resulting in death stemming from the disappearance of his wife. The Govt theorized that Lentz lured his wife from her home in Virginia to his home in Maryland, where he then killed her.After trial, the district court granted Lentz's motion for a judgment of acquittal on the ground that the Govt failed to prove that Lentz "held" his wife for any period of time before killing her. The district court also granted Lentz's motion for a new trial due to two of the victim's dayplanners that had not been admitted into evidence popping up in the jury room. The district court went so far as to find that an AUSA had intentionally slipped the dayplanners, which contained notes from the victim detailing her abusive relationship with her husband, into the jury room to taint the jury. The Fourth Circuit affirmed the new trial motion and remanded for a new trial.
At a second trial, Lentz was again convicted, partly due to evidence of a murder for hire plot he hatched from jail against witnesses from the first trial and some of the AUSAs. Unfortunately, Lentz discussed the plot with a cellmate who turned informant. Even more unfortunately, Lentz discussed the plot with his attorney in phone calls from the jail that were recorded. Lentz moved to exclude evidence from both sources, with only partial success. While some of the informant's testimony was excluded because it came after a meeting with investigators that essentially turned him into a Government agent, testimony about earlier conversations with Lentz and the attorney phone calls were admitted.
Lentz raised several unsuccessful issues on appeal. First, he argued that the district court constructively amended the indictment by instructing the jury that, for purposes of the kidnapping statute, the District of Columbia was a "state." The Fourth Circuit rejected the argument that the district court's instruction amended the indictment, which alleged travel from Virginia to Maryland, holding that the indictment never required proof of travel directly from Virginia to Maryland, only that they be the starting and ending points. Second, Lentz argued that the district court erred by allowing any evidence of the murder-for-hire plot into evidence. As to the informant's testimony, the Fourth held that the statements from Lentz made prior to the informant becoming a de facto Government agent were not acquired in violation of the Sixth Amendment. As to the phone calls with his lawyer, the Fourth held that the calls fell clearly into the crime-fraud exception to the attorney-client privilege. The Fourth also rejected Lentz's argument that the statements were unduly prejudicial and that, in their redacted form as presented at trial, they violated the rule of completeness found in FRE 106. Third, the Fourth rejected Lentz's argument that hearsay statements made by his wife about the OJ Simpson case (i.e., that Lentz told her "if OJ can do it and get away with it, so can I") were admissible under the "forfeiture by wrongdoing" exception in FRE 804.
At a second trial, Lentz was again convicted, partly due to evidence of a murder for hire plot he hatched from jail against witnesses from the first trial and some of the AUSAs. Unfortunately, Lentz discussed the plot with a cellmate who turned informant. Even more unfortunately, Lentz discussed the plot with his attorney in phone calls from the jail that were recorded. Lentz moved to exclude evidence from both sources, with only partial success. While some of the informant's testimony was excluded because it came after a meeting with investigators that essentially turned him into a Government agent, testimony about earlier conversations with Lentz and the attorney phone calls were admitted.
Lentz raised several unsuccessful issues on appeal. First, he argued that the district court constructively amended the indictment by instructing the jury that, for purposes of the kidnapping statute, the District of Columbia was a "state." The Fourth Circuit rejected the argument that the district court's instruction amended the indictment, which alleged travel from Virginia to Maryland, holding that the indictment never required proof of travel directly from Virginia to Maryland, only that they be the starting and ending points. Second, Lentz argued that the district court erred by allowing any evidence of the murder-for-hire plot into evidence. As to the informant's testimony, the Fourth held that the statements from Lentz made prior to the informant becoming a de facto Government agent were not acquired in violation of the Sixth Amendment. As to the phone calls with his lawyer, the Fourth held that the calls fell clearly into the crime-fraud exception to the attorney-client privilege. The Fourth also rejected Lentz's argument that the statements were unduly prejudicial and that, in their redacted form as presented at trial, they violated the rule of completeness found in FRE 106. Third, the Fourth rejected Lentz's argument that hearsay statements made by his wife about the OJ Simpson case (i.e., that Lentz told her "if OJ can do it and get away with it, so can I") were admissible under the "forfeiture by wrongdoing" exception in FRE 804.
Court Upholds Terry Patdown in High-Crime Area
US v. Black: Black was walking home in a "high crime" area of Richmond when he passed a marked police car. An officer in the car engaged Black in conversation and became suspicious that Black might have a weapon in his pocket. When asked, Black took his left hand out of his coat pocket, but only after being asked twice. At that point, the officer saw a bulge that he suspected was a firearm. Asked what he had in his pocked, Black said it was just money and an ID. Black then put his hand back in his pocket. At that point, the officer said, "take your hand out of your pocket, I don't want to have to shoot you." Another officer then patted down Black and identified the bulge as a firearm. After being hand cuffed, Black admitted that he did not have a permit to carry the weapon and was a convicted felon.
Black was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the officers did not have reasonable suspicion to seize and pat him down. The district court denied the motion. On appeal, the Fourth Circuit affirmed. On appeal (at least), everyone agreed that the encounter between Black and the officers was consensual and did not implicate the Fourth Amendment until the officer said. "I don't want to have to shoot you." Based on the totality of circumstances up to that point, the Fourth Circuit held that there was reasonable suspicion to believe Black possessed a weapon.
Judge Gregory dissented, writing that he "cannot accept that Fourth Amendment protections are suspended or reduced in so-called 'high-crime' neighborhoods.'" For Judge Gregory, the seizure took place when Black was first asked to remove his hand from his pocket.
Black was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the officers did not have reasonable suspicion to seize and pat him down. The district court denied the motion. On appeal, the Fourth Circuit affirmed. On appeal (at least), everyone agreed that the encounter between Black and the officers was consensual and did not implicate the Fourth Amendment until the officer said. "I don't want to have to shoot you." Based on the totality of circumstances up to that point, the Fourth Circuit held that there was reasonable suspicion to believe Black possessed a weapon.
Judge Gregory dissented, writing that he "cannot accept that Fourth Amendment protections are suspended or reduced in so-called 'high-crime' neighborhoods.'" For Judge Gregory, the seizure took place when Black was first asked to remove his hand from his pocket.
Court Upholds Defendant-Initiated Post-IA Questioning Without Counsel
US v. Cain: Cain was arrested as part of a DEA sting. After his arrest, he told the DEA agents that he wanted to cooperate with them. The next day, Cain made an initial appearance, at which time he was determined to be eligible for court appointed counsel, although no specific attorney was appointed at that time. After the initial appearance, Cain again told the agents that he wanted to cooperate. They were unable to talk with Cain at that time.
The next day, Cain was returned to the courthouse for a meeting with the DEA agents and an AUSA. By this point, the CJA panel had been informed of its appointment to represent Cain, but it's not clear when a specific attorney was appointed. The interview went ahead, after Cain had been advised of his Miranda rights. Based in part of what was said during that interview, Cain was charged with multiple drug distribution counts. Cain filed a motion to suppress his interview statements, arguing that his Sixth Amendment rights were violated because the agents/AUSA did not attempt to contact his CJA attorney. The district court granted the motion.
On appeal, the Fourth Circuit reversed. Noting that Cain's Sixth Amendment rights had attached, the court nonetheless held that the record showed Cain's repeated attempts to initiate contact with the DEA agents. Furthermore, Cain was advise of his Miranda rights three separate times, including right before the interview. In such circumstances, his Sixth Amendment rights were not violated. The Fourth also rejected the district court's alternate holding that the statements should be excluded under the court's supervisory power because the Government violated the court's CJA plan.
The next day, Cain was returned to the courthouse for a meeting with the DEA agents and an AUSA. By this point, the CJA panel had been informed of its appointment to represent Cain, but it's not clear when a specific attorney was appointed. The interview went ahead, after Cain had been advised of his Miranda rights. Based in part of what was said during that interview, Cain was charged with multiple drug distribution counts. Cain filed a motion to suppress his interview statements, arguing that his Sixth Amendment rights were violated because the agents/AUSA did not attempt to contact his CJA attorney. The district court granted the motion.
On appeal, the Fourth Circuit reversed. Noting that Cain's Sixth Amendment rights had attached, the court nonetheless held that the record showed Cain's repeated attempts to initiate contact with the DEA agents. Furthermore, Cain was advise of his Miranda rights three separate times, including right before the interview. In such circumstances, his Sixth Amendment rights were not violated. The Fourth also rejected the district court's alternate holding that the statements should be excluded under the court's supervisory power because the Government violated the court's CJA plan.
Inidividual Liability Still Jury Found After Booker
US v. Brooks: Brooks and several codefendants, including Mathis, were charged with several drug counts, including conspiracy to distribute more than 500 grams of cocaine and 50 grams of crack. On appeal, Mathis and another codefendant argued that their convictions violated US v. Collins, 415 F.3d 304 (4th Cir. 2005), which required the jury to determine the amount of drugs attributable to each member of a conspiracy before a mandatory minimum could be triggered.
Proceeding only on Mathis's claim (because the other codefendant admitted at oral argument that he was responsible for more than 50 grams of crack), the Fourth Circuit concluded that Collins had been violated and returned Mathis's case to the district court. Of particular importance, the court rejected the Government's argument that Booker effectively overruled Collins, noting that Collins dealt with mandatory statutory sentencing ranges, not advisory Guideline ranges. The court then quickly rejected challenges by other codefendants to their convictions and sentences. Judge Niemeyer dissented from the Collins holding, arguing that the majority's position was incompatible with that case as well as Booker.
Proceeding only on Mathis's claim (because the other codefendant admitted at oral argument that he was responsible for more than 50 grams of crack), the Fourth Circuit concluded that Collins had been violated and returned Mathis's case to the district court. Of particular importance, the court rejected the Government's argument that Booker effectively overruled Collins, noting that Collins dealt with mandatory statutory sentencing ranges, not advisory Guideline ranges. The court then quickly rejected challenges by other codefendants to their convictions and sentences. Judge Niemeyer dissented from the Collins holding, arguing that the majority's position was incompatible with that case as well as Booker.
Tuesday, May 13, 2008
Retail Value of Bootlegs Based on Value of Legit Copies
US v. Armstead: Armstead was charged with and convicted of distribution of bootlegged DVDs (100 on one occasion, 200 on another) with "a total retail value of more than $2500." The only issue below and in the Fourth Circuit was how to make a proper measure of "retail value." Armstead argued that it should be the value of bootleg DVDs on the black market, which would be the price paid in the transactions, $500 and $1000, respectively. The Government argued that it should be the value of legitimate copies of what is on the DVDs, which would make each transaction worth well over the $2500 threshold.
The district court and the Fourth Circuit agreed with the Government, holding that "retail value" comes from taking the highest of the "face value," "par value," or "market value" in the retail context. Applying that definition, the evidence was sufficient to sustain Armstead's conviction.
The district court and the Fourth Circuit agreed with the Government, holding that "retail value" comes from taking the highest of the "face value," "par value," or "market value" in the retail context. Applying that definition, the evidence was sufficient to sustain Armstead's conviction.
Defendant Entitled to Franks Hearing Due to Omitted Facts
US v. Tate: Tate was charged with being a felon in possession of a firearm. The gun came to light during a search of Tate's home based on a warrant obtained by a Baltimore police officer. As basis for obtaining the warrant, the officer told the state judge that he had searched through two of Tate's trash bags that were "easily accessible from the rear yard of" Tate's home and discovered marijuana residue. Prior to trial, Tate sought a Franks hearing, arguing that the officer omitted a material fact from the warrant application - that the trash bags were only "easily accessible" because the officer hopped fence (with a locked gate) and took the bags off the home's back porch. The bags had not been placed in the nearby alley, as they would be on trash pick up day. The district court denied Tate's request for a Franks hearing, holding that the officer's application was "literally true."
On appeal, the Fourth Circuit reversed and held that Tate was entitled to a Franks hearing. The court held that Tate "clearly described the nature of [the officer's] omissions; he gave reasons for why he considered the omissions deliberately deceptive and material; and he proffered evidence in support of his position . . .." The court noted that the Government's argument, which "essentially parrot[ed]" the district court's, that the statement in the application was literally true fails to deal with the nature of the omitted facts. Finally, the court held that if Tate's factual assertions are true the officer illegally searched Tate's garbage and therefore lacked probable cause to obtain the warrant.
On appeal, the Fourth Circuit reversed and held that Tate was entitled to a Franks hearing. The court held that Tate "clearly described the nature of [the officer's] omissions; he gave reasons for why he considered the omissions deliberately deceptive and material; and he proffered evidence in support of his position . . .." The court noted that the Government's argument, which "essentially parrot[ed]" the district court's, that the statement in the application was literally true fails to deal with the nature of the omitted facts. Finally, the court held that if Tate's factual assertions are true the officer illegally searched Tate's garbage and therefore lacked probable cause to obtain the warrant.
Right to Counsel on Underlying Charges Not Violated by Witness Tampering Investigation
US v. Mir: Mir was an immigration lawyer who assisted employers in completing the necessary paperwork to sponsor aliens for work in the United States and to allow alien workers to become permanent US residents. The Government began an investigation of Mir and his law firm on suspicion that some of the forms he completed contained false information. During the investigation, Mir sent a letter to the Government stating that he was represented by counsel. Eventually, a grand jury indicted Mir and his law firm for conspiracy to commit labor certification fraud, fraud, and racketeering. After the indictment, investigators suspected that Mir was tampering with witnesses. The Government used two aliens as CIs, sending them to Mir's office to record conversations with him. Based on those recordings, a witness tampering charge was added to the indictment. Mir unsuccessfully moved to suppress those recordings as a violation of his right to counsel or, alternately, sever the witness tampering charge from the rest of the indictment. Mir was convicted of fraud, but acquitted of conspiracy and witness tampering.
On appeal, the Fourth Circuit affirmed. Mir raised his Sixth Amendment argument, which was rejected by the court. The Fourth Circuit held that Mir's invocation of his right to counsel on the conspiracy and fraud charges did not apply to the separate offense of witness tampering. Although the two sets of offenses have "a point of factual overlap," they are still separate offenses. In addition, the Fourth Circuit held that the district court did not abuse its discretion in not severing the witness tampering charge from the others, noting that it "would have made little sense."
On appeal, the Fourth Circuit affirmed. Mir raised his Sixth Amendment argument, which was rejected by the court. The Fourth Circuit held that Mir's invocation of his right to counsel on the conspiracy and fraud charges did not apply to the separate offense of witness tampering. Although the two sets of offenses have "a point of factual overlap," they are still separate offenses. In addition, the Fourth Circuit held that the district court did not abuse its discretion in not severing the witness tampering charge from the others, noting that it "would have made little sense."
Friday, May 02, 2008
Magistrate Judges May Accept Guilty Pleas
US v. Benton: Benton was charged with conspiracy to distribute drugs. He reached a plea agreement with the Government, which included a provision allowing a magistrate judge to perform the Rule 11 plea hearing. That hearing took place and the magistrate judge accepted Benton's plea. Months later, Benton complained that his attorney had been ineffective by failing to adequately explain the elements of the offense to him. As a result, new counsel was appointed. After new counsel was appointed, Benton filed a motion to withdraw his guilty plea alleging that there was an inadequate factual basis, the terms were unconscionable, the Government had breached by failing to file a motion for substantial assistance, and ineffective assistance of counsel. The district court denied the motion. Benton reiterated his motion at sentencing, but it was again denied. He was sentenced to 262 months in prison.
On appeal, Benton made three arguments, all of which the Fourth Circuit rejected. First, he argued that he had the right to withdraw his plea for "any reason or no reason" because the magistrate judge lacked the authority to accept the plea. Because Benton did not make the argument to the district court, the Fourth reviewed it for plain error. The Fourth found there not to be error at all, concluding that magistrate judges can accept guilty pleas, so long as the district court can review that acceptance de novo. The court noted that a "fair and just reason" for withdrawing a plea (as required once it has been accepted) would be a defective plea proceeding before a magistrate judge. Second, he argued that his plea was not knowing and voluntary because the magistrate judge failed to adequately explain the elements of the offense and incorrectly stated the maximum term of supervised release he faced. Finally, Benton renewed his argument that his original counsel was ineffective.
On appeal, Benton made three arguments, all of which the Fourth Circuit rejected. First, he argued that he had the right to withdraw his plea for "any reason or no reason" because the magistrate judge lacked the authority to accept the plea. Because Benton did not make the argument to the district court, the Fourth reviewed it for plain error. The Fourth found there not to be error at all, concluding that magistrate judges can accept guilty pleas, so long as the district court can review that acceptance de novo. The court noted that a "fair and just reason" for withdrawing a plea (as required once it has been accepted) would be a defective plea proceeding before a magistrate judge. Second, he argued that his plea was not knowing and voluntary because the magistrate judge failed to adequately explain the elements of the offense and incorrectly stated the maximum term of supervised release he faced. Finally, Benton renewed his argument that his original counsel was ineffective.
Court Affirms Second-Chance Variance
US v. Curry: Curry sold gold coins on eBay. Problem was, he "sold" coins which he never had in his possession. When the deals began to fall apart and jilted buyers complained, the FBI came calling. Curry was charged and convicted by a jury of multiple counts of mail fraud, wire fraud, and unlawful monetary transactions. At sentencing, Curry's Guideline range came out to be 41 to 51 months. However, the district court imposed a sentence of 12 months on each count (served concurrently), along with 12 months of home confinement, following Curry's argument for a Booker variance. The Government appealed the sentence and the Fourth Circuit vacated and remanded for resentencing.
On remand (pre-Gall), the district court varied again, but only down to 36 months. In doing so, it indicated that any greater variance would only result in another reversal from the Fourth. At a post-sentencing bond hearing, the court said if it were not "laboring under the Fourth Circuit's constraints I would have done something considerably different." Not surprisingly, Curry appealed. Equally unsurprisingly, the Fourth Circuit affirmed the sentence. Noting that it could only pass judgment on the sentence actually given ("That the district court judge expressed frustration with the law does not make the law any less binding"), the court concluded that the 36-month sentence imposed by the district court was reasonable.
On remand (pre-Gall), the district court varied again, but only down to 36 months. In doing so, it indicated that any greater variance would only result in another reversal from the Fourth. At a post-sentencing bond hearing, the court said if it were not "laboring under the Fourth Circuit's constraints I would have done something considerably different." Not surprisingly, Curry appealed. Equally unsurprisingly, the Fourth Circuit affirmed the sentence. Noting that it could only pass judgment on the sentence actually given ("That the district court judge expressed frustration with the law does not make the law any less binding"), the court concluded that the 36-month sentence imposed by the district court was reasonable.
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