Rehaif Plain Error Where Prior Conviction Was State Misdemeanor

US v. Heyward: In 2014, Heyward fired two shots from his front porch, killing a person in a car parked outside. After initially being charged in state court, Heyward was charged with federal firearm offenses and eventually pleaded guilty to being a felon in possession of a firearm. He was sentenced to 120 months in prison.

A divided Fourth Circuit reversed Heyward's conviction in the wake of Rehaif. Applying plain error review, there was no dispute that Heyward's plea, taken without the knowledge element laid out in Rehaif, was error and plain. The dispute was over prejudice, which, the Supreme Court held in Greer, the defendant "faces an uphill climb in trying to satisfy" because if "a person is a felon, he ordinarily knows he is a felon" as it is "simply not the kind of thing that one forgets." In Heyward's case, however, a review of the "entire record" showed that "Heyward repeatedly insisted that he had not known of the relevant fact - that is, his status as a felon - that made it unlawful for him to possess a firearm." At most, the record reflected that Heyward knew of his status by the time he was in court, but not at the time he possessed the firearm. The court also found this the type of error that must be noticed and, therefore, vacated Heyward's conviction.

On the subject of the "record," the Government moved to file a supplemental joint appendix on appeal, one that "consists of four documents not contained in the district court record," at least one of which was "an affidavit created long after Heyward's conviction and even after he filed his opening supplemental brief on appeal." The court denied the request, noting that Rule 10 of the Federal Rules of Procedure "does not grant a license to build a new record."

Judge Agee dissented, arguing that the record does not support the court's conclusion as to Heyward's state of mind and taking the court to task for having "already permitted the Government to supplement the record . . . evidence which only confirms that Heyward cannot meet his burden" and then "vacat[ing] this ruling in a footnote."

Congrats to the FPD office in South Carolina on the win!

No Second Chance on Dismissed Charges Following Appeal

US v. Petties: In 2015, Petties was indicted on three counts - one (Count 1) for failing to register as a sex offender, and two (Counts 2 & 3) for committing crimes of violence while having failed to register. In both of the latter counts the crime of violence was kidnapping. After the district court denied Petties motion to dismiss the Counts 1 & 2, because kidnapping is not categorically a crime of violence, he entered into a plea agreement in which pleaded guilty to Count 2, preserving the right to appeal his motion to dismiss. In return, the Government agreed to dismiss the other two counts and "not further prosecute [Petties] for conduct constituting the basis for the Indictment." Petties was sentenced to 96 months in prison and Counts 1 & 3 were dismissed.

Supreme Court decisions while the case was on appeal made defending the district court's denial of the motion to dismiss untenable, so the Government conceded that kidnapping was not a crime of violence and the conviction under Count 2 had to be vacated. The Fourth Circuit vacated "the district court's judgment and remand[ed] for further proceedings."

On remand, Petties moved for immediate release, but the Government argued that it was now "relieved of its obligations under the plea agreement once Petties's Count 2 conviction and the district court judgment were vacated." The district court agreed and denied Petties' motion. By vacating the conviction, the Fourth Circuit had "reinstated the indictment and reset the case" and while Counts 2 & 3 were no longer viable, Count 1 was. The plea agreement did not bar further prosecution under Count 1 and, in fact, "because Petties had repudiated it when he moved for release instead of pleading guilty to Count 2, as promised . . . Petties was obliged to plead to Count 2's lesser included offense of failure to register." Petties pleaded not guilty and was convicted of all counts at a bench trial, but Counts 2 & 3 were dismissed as multiplicitous. He was sentenced to the same term as before - 96 months in prison.

On appeal (for the second time) the Fourth Circuit reversed the district court (for the second time). The court noted that the plea agreement "on its face" appears to say that if Petties pleaded guilty to Count 2, the Government would "refrain from any further prosecution for conduct charged in the indictment - including the failure to register offense charged in Count 1, on which Petties now stands convicted." The Government made the agreement "with full knowledge that Petties might appeal - and appeal successfully - his conviction on Count 2." That possibility was "a contingency expressly contemplated," given that it was a conditional guilty plea entered into precisely to preserve Petties' right to appeal the motion to dismiss. The Government could have included language allowing it to pursue other charges in that event ("as the government often does"), but it did not. It also could have required Petties plead guilty to Count 1, but it did not. Nor could the court find any support for the argument that, in his original plea to Count 2, Petties agreed to plead guilty to the lesser-included offense in the case of a successful appeal.

Congrats to the Defender office in ED North Carolina on the win!

Warrant Sufficient to Search SD Cards & Phone Based on Evidence of Drug Trafficking

US v. Orozco: Orozco was pulled over for traffic violations. He had a smartphone in his lap running a GPS navigation app but, when asked where he was going, hastily closed the app and could not answer the question. Officers also noticed that Orozco was nervous and that the dashboard of the car “was no flush and bore toolmarks, suggesting someone previously pried it open.” Orozco eventually consented to a search, which uncovered more than $100,000 in cash in a secret compartment in the dashboard, which Orozco said did not belong to him. Orozco was arrested for the traffic violations and taken to the police station. There, during a search of his person, an officer “found a folded-up $100 bill in Orozco’s shoe, and as he unfolded it, five micro-SD cards fell out onto the floor” at which point Orozco “quickly scooped up two of the cards and shoved them into his mouth.” One was recovered, although “chewed and inoperable,” while the other was swallowed. Officers got warrants to search the remaining SD cards and the phone, eventually leading to the discovery of child pornography. Orozco was ultimately charged with possession of child pornography, unsuccessfully moved to suppress the images found on the SD cards and phone, found guilty, and was sentenced to 144 months in prison.

On appeal, the Fourth Circuit affirmed Orozco’s conviction. Orozco reiterated his argument that the evidence found on the SD cards and the phone should have been suppressed because the warrant used to search them was not sufficient. He first argued that the warrant did not sufficiently show that he was engaged in drug trafficking. The court disagreed, agreeing that while “cash is not contraband,” the fact that it was a large amount of money and was stored in a hidden compartment made “those innocent explanations seem unlikely.” In any event, the other facts showed that “the totality of these circumstances is more than enough to establish a ‘fair probability’ that Orozco was engaged in drug trafficking.” Second, Orozco argued that there was no basis for concluding that evidence of drug trafficking would be found on the SD cards and phone. As to the cards, the court concluded that Orozco’s attempted destruction of them when discovered “can be taken only as an attempt to hide something” and that “intentionally destroying an item before it can be examined would permit someone to believe the item is inculpatory.” As to the phone, the fact that Orozco was using the phone for navigation while transporting the money was “enough, without even considering Orozco’s attempt to destroy other electronic evidence,” to provide reason to believe there would be drug-related evidence on the phone.

No Standing to Challenge Search of Rental Car Without Assertion of Such

US v. Daniels: Officers were searching for Daniels, who had multiple outstanding arrest warrants. They saw him driving a grey Dodge with Florida tags, which a check revealed was a rental car. The next morning, they tracked Daniels to a hotel where the Dodge was parked out front. After arresting Daniels in his room, they walked past the Dodge and asked Daniels about it, who responded that he “didn’t know anything about” a Dodge. An officer called the rental company, who confirmed that the Dodge was rented by someone else and Daniels was not an authorized driver. As a result, they had the car towed to one of their facilities, where employees consented to a search of the car. The search uncovered a firearm that DNA linked to Daniels. He was charged with being a felon in possession of a firearm and unsuccessfully moved to suppress the gun. He entered a conditional guilty plea to preserve the issue for appeal.

On appeal, the Fourth Circuit affirmed the denial of Daniels’ motion to suppress. The court held that Daniels lacked “standing,” the reasonable expectation of privacy necessary to assert Fourth Amendment rights, in the Dodge. The court noted that the defendant in such situations bore the burden of proof in establishing standing and in the wake of the Supreme Court’s decision in Byrd “Daniels had the burden of producing evidence that he had possession and that his possession was lawful.” It was not enough that counsel argued that the renter allowed Daniels to drive the car, “Daniels did not produce any evidence at the suppression hearing to support that claim – not even a statement of his own to suggest that he had permission.” Counsel’s “unsupported claim is not evidence” and therefore not sufficient to prove standing.