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.
Tuesday, July 24, 2012
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.
Wednesday, June 27, 2012
Visual Estimate of Speed Not Enough for Stop
US v. Sowards: Sowards was driving down I77 in North Carolina when he was stopped by a local deputy, Elliott, for speeding. Specifically, for going 75 in a 70 mile per hour zone. Elliott had a drug dog with him who alerted to the presence of drugs. A search revealed 10 kilograms of cocaine in the car. Sowards was charged with possession with intent to distribute. He moved to suppress the cocaine, arguing that Elliot lacked probable cause to stop him for speeding. Elliott testified that he had not tagged Sowards with radar or paced Sowards in his own cruiser, he had simply observed Sowards and knew he was speeding. After a hearing at which Elliott's powers of perception were somewhat undermined, the district court denied the motion. Sowards entered a conditional plea.
On appeal, the Fourth Circuit reversed the district court, 2-1. As the court framed the issue, it was "whether, given the totality of the circumstances, Deputy Elliott had reasonably trustworthy information sufficient to support a prudent person's belief that Sowards was speeding." In evaluating that issue, the court found that many of the district court's findings were clearly erroneous. For example, the district court concluded that Elliot had been "trained to estimate speeds," although that training was done in the context of how to use a radar unit, not simply to estimate speeds on his own. Furthermore, Elliot could not explain any method he used to determine Sowards's speed and, indeed, denied having any method at all. The court also found the district court's conclusion that Elliott's "difficulty with measurements is immaterial" to "ring[] in the absurd" because estimating speed requires determining the distance that object is covering in a certain period or time. The court noted that Elliott "exhibited a notable absence of fluency in his knowledge of distance measurements." Rejecting the Government's argument that Elliott's educated guess was sufficient to support the stop, the court noted that the closer the speed is to the legal limit, the more scrutiny the officer's estimation must receive. Given the high speed involved and the slight difference between the limit and the alleged speeding in this case, Elliott's uncorroborated observation alone was not sufficient.
Chief Judge Traxler dissented, resting his argument heavily on the fact that Elliott's certification for estimating speed provided him with an average error rate of no more than 3.5 miles per hour. The majority points out that this "certification" involved a visual estimate backed up with a radar gun, which Elliot did not use in this case (he testified that he intentionally positioned his cruiser so he could not use radar). Traxler also argues that the majority's new requirement for some sort of corroboration to the officer's observation has no basis in prior caselaw.
On appeal, the Fourth Circuit reversed the district court, 2-1. As the court framed the issue, it was "whether, given the totality of the circumstances, Deputy Elliott had reasonably trustworthy information sufficient to support a prudent person's belief that Sowards was speeding." In evaluating that issue, the court found that many of the district court's findings were clearly erroneous. For example, the district court concluded that Elliot had been "trained to estimate speeds," although that training was done in the context of how to use a radar unit, not simply to estimate speeds on his own. Furthermore, Elliot could not explain any method he used to determine Sowards's speed and, indeed, denied having any method at all. The court also found the district court's conclusion that Elliott's "difficulty with measurements is immaterial" to "ring[] in the absurd" because estimating speed requires determining the distance that object is covering in a certain period or time. The court noted that Elliott "exhibited a notable absence of fluency in his knowledge of distance measurements." Rejecting the Government's argument that Elliott's educated guess was sufficient to support the stop, the court noted that the closer the speed is to the legal limit, the more scrutiny the officer's estimation must receive. Given the high speed involved and the slight difference between the limit and the alleged speeding in this case, Elliott's uncorroborated observation alone was not sufficient.
Chief Judge Traxler dissented, resting his argument heavily on the fact that Elliott's certification for estimating speed provided him with an average error rate of no more than 3.5 miles per hour. The majority points out that this "certification" involved a visual estimate backed up with a radar gun, which Elliot did not use in this case (he testified that he intentionally positioned his cruiser so he could not use radar). Traxler also argues that the majority's new requirement for some sort of corroboration to the officer's observation has no basis in prior caselaw.
Friday, June 08, 2012
Pirates repelled by the USS Nicholas lose their appeals
US v. Dire, US v. Said: The crime of piracy returns to relevance in Dire, after several Somalis launched an ill-fated attack on a United States warship in disguise as a merchant vessel in the waters off the horn of Africa. Chiefly, the appellants argued that since they did not actually board and rob the USS Nicholas, that their actions did not, as a matter of law, amount to a piracy offense under 18 U.S.C. § 1651. The Fourth Circuit disagreed and upheld all the convictions.
The Fourth Circuit held that the statutes defining "piracy" here incorporate a definition of piracy that changes with advancements in the law of nations (derived from such international legal authorities as the United Nations Convention on the Law of the Sea, and the High Seas Convention), and the definition at the time of the appellants’ attack on the USS Nicholas encompassed the Somalis’ violent conduct (they fired AKs at the ship). The Fourth Circuit rejected the appellants’ challenge to the piracy convictions.
Another bone of contention in this appeal was whether the confessions obtained by U.S. servicemen aboard the USS Nicholas three days after the attack were appropriately advised of their Miranda rights. The appellants argued that there was a language barrier, they lacked any familiarity with the U.S. legal system, and they lacked education and were illiterate, in order to maintain that their waiver of their rights was not knowing or intelligent. The Fourth Circuit disagreed, and found that based upon a totality of the circumstances, the appellants must have known that they did not have to speak with the special agent investigating them and that they could request counsel.
In a companion case, US v. Said, the Fourth Circuit vacates the dismissal of the piracy count in a case arising from a separate attack on the USS Ashland, based upon its reasoning and holding in Dire.
The Fourth Circuit held that the statutes defining "piracy" here incorporate a definition of piracy that changes with advancements in the law of nations (derived from such international legal authorities as the United Nations Convention on the Law of the Sea, and the High Seas Convention), and the definition at the time of the appellants’ attack on the USS Nicholas encompassed the Somalis’ violent conduct (they fired AKs at the ship). The Fourth Circuit rejected the appellants’ challenge to the piracy convictions.
Another bone of contention in this appeal was whether the confessions obtained by U.S. servicemen aboard the USS Nicholas three days after the attack were appropriately advised of their Miranda rights. The appellants argued that there was a language barrier, they lacked any familiarity with the U.S. legal system, and they lacked education and were illiterate, in order to maintain that their waiver of their rights was not knowing or intelligent. The Fourth Circuit disagreed, and found that based upon a totality of the circumstances, the appellants must have known that they did not have to speak with the special agent investigating them and that they could request counsel.
In a companion case, US v. Said, the Fourth Circuit vacates the dismissal of the piracy count in a case arising from a separate attack on the USS Ashland, based upon its reasoning and holding in Dire.
Thursday, June 07, 2012
Halstead merger problem occurs in cases other than illegal gambling operations
US v. Cloud: William Roosevelt Cloud, convicted of several charges arising from a mortgage fraud conspiracy that he masterminded, raised several issues in this appeal: evidentiary rulings, the district court’s loss calculation, and the district court’s order directing him to reimburse his court-appointed attorneys fees. The Fourth Circuit affirmed on the first two issues, but vacated the reimbursement order. Cloud also argued that some of his money laundering convictions should be reversed due to a merger problem, and the Fourth Circuit agreed.
The scheme included at least fourteen others charged as co-conspirators, and it lasted from 1999 to 2005. Cloud’s scheme involved purchasing numerous properties, "flipping" them to buyers at increased prices, and banking the difference. He encouraged the unsuspecting buyers to purchase several properties, and in order to perpetuate the scheme, Cloud falsified loan applications, forged signatures, and provided false information to closing attorneys. Cloud signed false HUD-1 forms containing false information and distributed kickbacks to buyers, a mortgage broker, and recruiters who found buyers. The loss amount to lenders and the community totaled around $19 million.
With respect to the evidentiary issues, Cloud objected to victim-impact testimony, but the Fourth Circuit found that this type of testimony must meet only a low bar of relevancy, so it was properly admitted. Also admitted were conversations between Cloud and several tenants, from which an inference could be drawn that Cloud was dishonest with tenants to hide his scheme; the Fourth Circuit concluded that any error in admitting this testimony was harmless. The Fourth Circuit vacated the district court’s reimbursement order because no findings were made with respect to Cloud’s ability to pay for representation, nor whether Cloud had funds available for payment. Previously, the Fourth Circuit had rejected a similar order in United States v. Moore, so the directive to reimburse was vacated here.
Additionally, Cloud argued that his money laundering convictions must be reversed under United States v. Santos, as interpreted by the Fourth Circuit in United States v. Halstead. The Fourth Circuit agreed, and reversed those convictions. In Santos, the Supreme Court affirmed the vacatur of money laundering convictions that arose from an illegal gambling operations, when it determined that the money laundering offenses merged with the convictions for operating an illegal gambling business. Six counts against Cloud of promotional money laundering suffered from a "merger problem," as they charge illegal activity including money transactions to pay for the costs of his illegal activity, and the government also used those transactions to prosecute Cloud for money laundering. To put it another way, a merger problem does not arise when the financial transactions of the predicate offense are different from the transactions prosecuted as money laundering. Here, the six money laundering convictions were based on paying the "essential expenses" of the underlying fraud, so a merger problem existed, and the Fourth Circuit reversed the money laundering convictions with respect to those counts.
The scheme included at least fourteen others charged as co-conspirators, and it lasted from 1999 to 2005. Cloud’s scheme involved purchasing numerous properties, "flipping" them to buyers at increased prices, and banking the difference. He encouraged the unsuspecting buyers to purchase several properties, and in order to perpetuate the scheme, Cloud falsified loan applications, forged signatures, and provided false information to closing attorneys. Cloud signed false HUD-1 forms containing false information and distributed kickbacks to buyers, a mortgage broker, and recruiters who found buyers. The loss amount to lenders and the community totaled around $19 million.
With respect to the evidentiary issues, Cloud objected to victim-impact testimony, but the Fourth Circuit found that this type of testimony must meet only a low bar of relevancy, so it was properly admitted. Also admitted were conversations between Cloud and several tenants, from which an inference could be drawn that Cloud was dishonest with tenants to hide his scheme; the Fourth Circuit concluded that any error in admitting this testimony was harmless. The Fourth Circuit vacated the district court’s reimbursement order because no findings were made with respect to Cloud’s ability to pay for representation, nor whether Cloud had funds available for payment. Previously, the Fourth Circuit had rejected a similar order in United States v. Moore, so the directive to reimburse was vacated here.
Additionally, Cloud argued that his money laundering convictions must be reversed under United States v. Santos, as interpreted by the Fourth Circuit in United States v. Halstead. The Fourth Circuit agreed, and reversed those convictions. In Santos, the Supreme Court affirmed the vacatur of money laundering convictions that arose from an illegal gambling operations, when it determined that the money laundering offenses merged with the convictions for operating an illegal gambling business. Six counts against Cloud of promotional money laundering suffered from a "merger problem," as they charge illegal activity including money transactions to pay for the costs of his illegal activity, and the government also used those transactions to prosecute Cloud for money laundering. To put it another way, a merger problem does not arise when the financial transactions of the predicate offense are different from the transactions prosecuted as money laundering. Here, the six money laundering convictions were based on paying the "essential expenses" of the underlying fraud, so a merger problem existed, and the Fourth Circuit reversed the money laundering convictions with respect to those counts.
Friday, May 18, 2012
Vulnerable victim enhancement application affirmed
US v. Etoty: This appellant challenged the district court’s application of the "vulnerable victim" enhancement at the time of her sentencing for social security fraud and aggravated identity theft. At sentencing, Etoty argued that she did not specifically know whether the victim’s disability was physical or mental, and that the victim’s disability did not facilitate the fraud, which the district court rejected.
The Foruth Circuit reviews sentencing determinations under an abuse of discretion standard. Under the advisory sentencing guidelines, a two-level increase attaches if the "defendant knew or should have known that a victim of the offense was a vulnerable victim." A two-step analysis is thus employed to determine 1) that the victim was unusually vulnerable; and 2) that the defendant knew or should have known of this unusual vulnerability.
Evidence adduced at trial was found credible and the Fourth Circuit did not disturb the district court’s determination that the victim had a learning disability and a back problem, and that she received social security benefits. Additionally, Etoty conceded knowledge at trial that she knew the victim was disabled and was receiving disability payments - ample proof to the Fourth Circuit that Etoty knew the victim was indeed vulnerable.
The Foruth Circuit reviews sentencing determinations under an abuse of discretion standard. Under the advisory sentencing guidelines, a two-level increase attaches if the "defendant knew or should have known that a victim of the offense was a vulnerable victim." A two-step analysis is thus employed to determine 1) that the victim was unusually vulnerable; and 2) that the defendant knew or should have known of this unusual vulnerability.
Evidence adduced at trial was found credible and the Fourth Circuit did not disturb the district court’s determination that the victim had a learning disability and a back problem, and that she received social security benefits. Additionally, Etoty conceded knowledge at trial that she knew the victim was disabled and was receiving disability payments - ample proof to the Fourth Circuit that Etoty knew the victim was indeed vulnerable.
Bankruptcy-related fraud scheme conviction upheld
US v. R. Powell, Jr.: A grand jury named Powell in one count of a fifteen count Indictment, alleging he aided and abetted the making of a false entry in a bankruptcy-related document, as part of an associate, Pavlock’s, larger scheme to defraud. A jury convicted Powell of this one count. Powell raised four issues in his appeal, none of which the Fourth Circuit found meritorious: 1) the district court failed to provide several requested jury instructions; 2) the prosecutor referred to Powell and Pavlock as ‘liars,’ committing reversible misconduct; 3) defense counsel provided ineffective assistance; and 4) the district court declined to apply a mitigating role adjustment at Powell’s sentencing.
Powell’s first argument centers around the statute he was charged with violating, specifically whether it contains a materiality requirement. He argued that materiality is an element of the offense, in 18 U.S.C. sect. 1519; the Fourth Circuit disagreed under a plain reading of the statute; the 11th and 8th circuits have similarly held that sect. 1519 lacks a materiality element. Powell also wanted an advice-of-counsel defense instruction; the Fourth Circuit rejected this argument, finding that there was a lack of evidence supporting the application of this instruction. Lastly with this appeal issue, Powell wanted the jury to be instructed that his statement concerning the ownership of several limousines was true as a matter of law. The Fourth Circuit held that there was sufficient evidence presented at trial that Powell obtained title to these vehicles by fraud or theft by deception, so the titles did not establish ownership.
For Powell’s second appeal issue, Powell failed to object at trial to the prosecutor’s comment about him as a ‘liar,’ so under the plain error standard, he could not show that the remarks were improper, and so prejudiced his substantial rights that he was denied a fair trial. Previously, the Fourth Circuit held that calling a defendant a liar is not, per se, improper. In light of this and similar authority from some other circuits, Powell could not establish plain error.
The Fourth Circuit found that Powell’s ineffective assistance of counsel claim was premature, and that he could re-assert this claim in a sect. 2255 habeas petition.
Finally, Powell argued that he should have received a mitigating role adjustment. The critical inquiry for a sentencing court in considering this adjustment, according to the Fourth Circuit, is whether the ‘defendant’s conduct is material or essential to committing the offense,’ not just whether the defendant committed fewer ‘bad acts’ than a co-defendant. Here, the Fourth Circuit held that it would be reasonable to find that Powell’s conduct was essential and material, so this issue, like the others, failed.
Powell’s first argument centers around the statute he was charged with violating, specifically whether it contains a materiality requirement. He argued that materiality is an element of the offense, in 18 U.S.C. sect. 1519; the Fourth Circuit disagreed under a plain reading of the statute; the 11th and 8th circuits have similarly held that sect. 1519 lacks a materiality element. Powell also wanted an advice-of-counsel defense instruction; the Fourth Circuit rejected this argument, finding that there was a lack of evidence supporting the application of this instruction. Lastly with this appeal issue, Powell wanted the jury to be instructed that his statement concerning the ownership of several limousines was true as a matter of law. The Fourth Circuit held that there was sufficient evidence presented at trial that Powell obtained title to these vehicles by fraud or theft by deception, so the titles did not establish ownership.
For Powell’s second appeal issue, Powell failed to object at trial to the prosecutor’s comment about him as a ‘liar,’ so under the plain error standard, he could not show that the remarks were improper, and so prejudiced his substantial rights that he was denied a fair trial. Previously, the Fourth Circuit held that calling a defendant a liar is not, per se, improper. In light of this and similar authority from some other circuits, Powell could not establish plain error.
The Fourth Circuit found that Powell’s ineffective assistance of counsel claim was premature, and that he could re-assert this claim in a sect. 2255 habeas petition.
Finally, Powell argued that he should have received a mitigating role adjustment. The critical inquiry for a sentencing court in considering this adjustment, according to the Fourth Circuit, is whether the ‘defendant’s conduct is material or essential to committing the offense,’ not just whether the defendant committed fewer ‘bad acts’ than a co-defendant. Here, the Fourth Circuit held that it would be reasonable to find that Powell’s conduct was essential and material, so this issue, like the others, failed.
2nd Degree Murder conviction affirmed
US v. DeLeon: A jury convicted DeLeon of the second-degree murder and assault of his 8-year-old step-son. In this appeal, DeLeon raised five issues for review: whether the district court erred in 1) admitting a social worker’s hearsay testimony in violation of DeLeon’s 6th Amendment right to confrontation; 2) admitting hearsay testimony of a social worker, a Japanese woman who encountered the boy in the street, and DeLeon’s step-daughter in violation of the rules of evidence; 3) limiting the defense expert’s testimony; 4) admitting under 404(b) DeLeon’s prior acts of physical punishment of his step-children; and 5) treating the age of the boy as a sentencing factor to be determined by the court, not the jury.
The boy, Jordan, died of internal injuries that resulted from blunt force trauma. Five months prior to Jordan’s death, the family met with a social worker to deal with suspected child abuse in the family home. The social worker had several subsequent meetings with Jordan and the family to provide counseling, but to no avail. No one could testify to witnessing the specific acts that caused Jordan’s injuries, so the case was entirely circumstantial. Additionally, Jordan’s younger sister later recanted the statements she made to police in investigations shortly after Jordan’s death, which described a history of child abuse. Many of the admissions that DeLeon objected to at trial were statements detailing the abuse Jordan suffered.
DeLeon’s first constitutional claim, that the admission of the social worker’s hearsay testimony violated his 6th Amendment right to confrontation, failed because the statements Jordan made to the social worker were made during a course of therapy for the purposes of developing a plan of treatment, and thus, the statements were not made in anticipation of a criminal action or investigation, nor were the statements testimonial.
DeLeon’s other constitutional claim, that his 6th Amendment rights were violated by the imposing of a mandatory minimum sentence based on Jordan’s age, which was not a question of fact put to the jury. The Fourth Circuit concluded that under the statute governing DeLeon’s second degree murder conviction, 18 U.S.C. § 3559(f)(1), age is a sentencing factor rather than an element of the crime. Additionally, the age of the victim is not a characteristic of the offender, so legal tradition supports the conclusion that age is a sentencing factor.
The boy, Jordan, died of internal injuries that resulted from blunt force trauma. Five months prior to Jordan’s death, the family met with a social worker to deal with suspected child abuse in the family home. The social worker had several subsequent meetings with Jordan and the family to provide counseling, but to no avail. No one could testify to witnessing the specific acts that caused Jordan’s injuries, so the case was entirely circumstantial. Additionally, Jordan’s younger sister later recanted the statements she made to police in investigations shortly after Jordan’s death, which described a history of child abuse. Many of the admissions that DeLeon objected to at trial were statements detailing the abuse Jordan suffered.
DeLeon’s first constitutional claim, that the admission of the social worker’s hearsay testimony violated his 6th Amendment right to confrontation, failed because the statements Jordan made to the social worker were made during a course of therapy for the purposes of developing a plan of treatment, and thus, the statements were not made in anticipation of a criminal action or investigation, nor were the statements testimonial.
DeLeon’s other constitutional claim, that his 6th Amendment rights were violated by the imposing of a mandatory minimum sentence based on Jordan’s age, which was not a question of fact put to the jury. The Fourth Circuit concluded that under the statute governing DeLeon’s second degree murder conviction, 18 U.S.C. § 3559(f)(1), age is a sentencing factor rather than an element of the crime. Additionally, the age of the victim is not a characteristic of the offender, so legal tradition supports the conclusion that age is a sentencing factor.
Community Caretaking Function: another exception to the warrant requirement?
US v. Laudermilt: In this appeal, the Fourth Circuit reversed and remanded the district court’s decision to grant the defendant’s motion to suppress; the government filed this interlocutory appeal. The defendant, Laudermilt, was indicted for being a felon in possession. Defendant argued that the police seized the gun during an illegally protracted protective sweep. The district court believed that the police exceeded the proper scope of a legal protective sweep and granted the defendant’s motion to suppress.
The Fourth Circuit analyzed the facts here, and decided that the district court got it wrong, finding that the police had a community caretaking function which permitted them to remain in the residence without a warrant while the protective sweep was ongoing, and after it concluded. The weapon was found after the police returned the defendant’s fourteen-year-old brother to the kitchen from outside where the defendant had been taken into custody, and questioned the teenager as to the location of the firearm. The Fourth Circuit concluded that the officers’ actions here were consistent with the Fourth Amendment.
DISCLAIMER: the author of this blog post is also counsel in this case.
The Fourth Circuit analyzed the facts here, and decided that the district court got it wrong, finding that the police had a community caretaking function which permitted them to remain in the residence without a warrant while the protective sweep was ongoing, and after it concluded. The weapon was found after the police returned the defendant’s fourteen-year-old brother to the kitchen from outside where the defendant had been taken into custody, and questioned the teenager as to the location of the firearm. The Fourth Circuit concluded that the officers’ actions here were consistent with the Fourth Amendment.
DISCLAIMER: the author of this blog post is also counsel in this case.
Monday, May 14, 2012
Procedural error in sentencing; insufficient fact findings
US v. E. Davis: The appellant, Davis, pleaded guilty to being a felon in possession in ammunition, and had been sentenced with a cross-reference to the robbery sentencing guideline. Previously, Davis had pleaded "no contest" in North Carolina to a robbery charge in a related, state court prosecution. In this appeal, Davis challenges the application of the robbery advisory sentencing guideline, as insufficient evidence supported the cross-reference. The Fourth Circuit vacated and remanded the district court’s sentence because the district court failed to resolve a factual dispute in its application of the robbery guideline, thus appellate review was constrained.
The Fourth Circuit found that the correct application of the guidelines hinges on factual determinations to be made by the district court. Here, there were two plausible factual scenarios on the record which could have explained how a cell phone came into Davis’s possession; the manner in which Davis came to possess the cell phone is key to the correct guideline application. The Fourth Circuit held that Davis’s "no contest" plea to common law robbery could not provide the necessary evidentiary basis for the robbery guideline cross-reference application.
The Fourth Circuit sends the case back to the district court to determine whether the government has met its burden of proof, and whether the robbery cross-reference should legitimately apply in this case.
The Fourth Circuit found that the correct application of the guidelines hinges on factual determinations to be made by the district court. Here, there were two plausible factual scenarios on the record which could have explained how a cell phone came into Davis’s possession; the manner in which Davis came to possess the cell phone is key to the correct guideline application. The Fourth Circuit held that Davis’s "no contest" plea to common law robbery could not provide the necessary evidentiary basis for the robbery guideline cross-reference application.
The Fourth Circuit sends the case back to the district court to determine whether the government has met its burden of proof, and whether the robbery cross-reference should legitimately apply in this case.
Initial encounter found not consensual
US v. F. Jones: In this appeal, the Fourth Circuit considered the denial of a motion to suppress evidence seized as a result of a traffic stop in a "high crime neighborhood" and reversed, reasoning that the initial encounter was not consensual and infringed the appellant’s Fourth Amendment rights.
The Fourth Circuit distinguished this case from other police-citizen encounters, as the citizen here knew that police officers were conspicuously following him, rather than a case where a citizen was unaware of any police presence, and is approached by officers seemingly at random. This case lacked a "traditional hallmark of a police-citizen consensual encounter: the seemingly routine approach of the police officer." This was involved a targeted vehicle, and the police blocked the vehicle’s only exit from the scene of the encounter with a police cruiser, without having observed any traffic violations. Jones, an African American, was simply driving a vehicle with New York tags in Richmond, with three other African American men in the car with him, observed by a police officer who "thought that that vehicle did not belong there and that the people in the vehicle didn’t belong there."
The Fourth Circuit believed that the totality of the circumstances in this case would suggest to a reasonable person in Jones’ position, that the officers suspected him of illegal activity in a "high crime area," that he was a target, and that he was not free to leave or walk away. The panel concluded that the officers detained Jones before having any legal justification to do so.
Way to go, FPD in Richmond!
The Fourth Circuit distinguished this case from other police-citizen encounters, as the citizen here knew that police officers were conspicuously following him, rather than a case where a citizen was unaware of any police presence, and is approached by officers seemingly at random. This case lacked a "traditional hallmark of a police-citizen consensual encounter: the seemingly routine approach of the police officer." This was involved a targeted vehicle, and the police blocked the vehicle’s only exit from the scene of the encounter with a police cruiser, without having observed any traffic violations. Jones, an African American, was simply driving a vehicle with New York tags in Richmond, with three other African American men in the car with him, observed by a police officer who "thought that that vehicle did not belong there and that the people in the vehicle didn’t belong there."
The Fourth Circuit believed that the totality of the circumstances in this case would suggest to a reasonable person in Jones’ position, that the officers suspected him of illegal activity in a "high crime area," that he was a target, and that he was not free to leave or walk away. The panel concluded that the officers detained Jones before having any legal justification to do so.
Way to go, FPD in Richmond!
Friday, May 11, 2012
Proper factors for consideration when determining the extent of a sentencing reduction
US v. D. Davis: In this appeal, the appellant challenges the district court's decision to grant the government's Rule 35(b) motion for sentence reduction, for considering other factors than his substantial assistance in determining the extent of the reduction. The factors the district court considered included the appellant's offense of conviction, his criminal history, and a prior reduction in his guidelines range following the government's 5K1.1 motion. The Fourth Circuit affirmed the district court's judgment.
After determining whether the Fourth Circuit had jurisdiction to hear the appeal in the affirmative, the panel considered whether the district court committed any error in considering factors other than the appellant's cooperation with the police in fashioning his sentence reduction following the decision to grant the government's Rule 35(b) motion. The Fourth Circuit distinguishes this case from others it has decided on what factors to consider in analyzing whether to grant a Rule 35(b) motion; in those cases, the Fourth Circuit has stated that district courts may not consider any factor other than the defendant's substantial assistance to the government. Here, the Fourth Circuit determines that the district court is not so limited, based on the plain language of Rule 35(b) and the explicit holdings of several other circuits in agreement.
After determining whether the Fourth Circuit had jurisdiction to hear the appeal in the affirmative, the panel considered whether the district court committed any error in considering factors other than the appellant's cooperation with the police in fashioning his sentence reduction following the decision to grant the government's Rule 35(b) motion. The Fourth Circuit distinguishes this case from others it has decided on what factors to consider in analyzing whether to grant a Rule 35(b) motion; in those cases, the Fourth Circuit has stated that district courts may not consider any factor other than the defendant's substantial assistance to the government. Here, the Fourth Circuit determines that the district court is not so limited, based on the plain language of Rule 35(b) and the explicit holdings of several other circuits in agreement.
Quantum of evidence for drug conspiracy
US v. Edmonds: A jury convicted Edmonds of a single conspiracy count to traffic more than 50 grams of crack, and three counts of crack distribution. This appellant challenged the jury’s findings that he participated in a drug conspiracy, in addition to two sentencing challenges. The Fourth Circuit affirmed.
According to the Fourth Circuit, conspiracy is proved by demonstrating agreement or understanding between two or more persons to commit an offense. Additionally, when the conspiracy involves the sale of cocaine, a conspiracy to commit the distribution of cocaine must involve an agreement separate from the distribution conduct that is the object of the conspiracy. If the drug transaction includes in addition to the bare agreement inherent in a sale, an agreement that the buyer will resell the cocaine in the marketplace, the two participants to the distribution transaction have also "conspired" to the redistribution of cocaine, and thus, they can be guilty of the distribution offense, and a conspiracy offense.
The government does not need to prove an explicit agreement occurred. Some types of indirect evidence that will suffice for a conviction include the amount of cocaine involved in a transaction; the regularity of drug transactions between two parties; the "fronting" of drugs for payment later, which implied a sort of credit arrangement; and essentially any agreement made in addition to or beyond a simple buy-sell transaction can be used to infer a conspiratorial relationship. The agreement which forms a conspiracy, however, cannot exist between an individual and a government agent.
Here, the statements the appellant made during several controlled purchases conducted in this case were used to establish the conspiracy, especially his comment, "you know me."
According to the Fourth Circuit, conspiracy is proved by demonstrating agreement or understanding between two or more persons to commit an offense. Additionally, when the conspiracy involves the sale of cocaine, a conspiracy to commit the distribution of cocaine must involve an agreement separate from the distribution conduct that is the object of the conspiracy. If the drug transaction includes in addition to the bare agreement inherent in a sale, an agreement that the buyer will resell the cocaine in the marketplace, the two participants to the distribution transaction have also "conspired" to the redistribution of cocaine, and thus, they can be guilty of the distribution offense, and a conspiracy offense.
The government does not need to prove an explicit agreement occurred. Some types of indirect evidence that will suffice for a conviction include the amount of cocaine involved in a transaction; the regularity of drug transactions between two parties; the "fronting" of drugs for payment later, which implied a sort of credit arrangement; and essentially any agreement made in addition to or beyond a simple buy-sell transaction can be used to infer a conspiratorial relationship. The agreement which forms a conspiracy, however, cannot exist between an individual and a government agent.
Here, the statements the appellant made during several controlled purchases conducted in this case were used to establish the conspiracy, especially his comment, "you know me."
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