Thursday, June 30, 2022

“Official Act” Element of Honest Services Fraud a Jury Question, But Not Element of Bribery

US v. Lindberg: Lindberg and his codefendant ran an insurance firm in North Carolina and attempted to give significant campaign contributions to the state’s Commissioner of Insurance in hopes that he would appoint someone else to the oversee the regulation of their business (the Commissioner got in touch with the FBI shortly after Lindberg & co. started throwing money around). As a result, the defendants were charged with one count each of conspiracy to commit honest services fraud and federal funds bribery. At trial, both the defendants and the Government objected to the district court’s proposed instruction that the replacement of the regulator constituted an “official act” for the honest services count. The defendants were convicted at trial and sentenced to prison.

On appeal, the Fourth Circuit reversed both convictions for both defendants. As to the honest services count, the court agreed that the instruction the district court gave defining replace the state regulator as an “official act” was erroneous, as it infringed on the provenance of the jury. Whether something is an official act is a question for the jury and cannot be resolved by the district court as a matter of law. The court further rejected the Government’s argument that the error was harmless, as the district court’s ruling led to it preventing the defendants from presenting evidence on the issue. In addition, while the court eventually concludes that an official act is not an element of bribery, it still concluded that the erroneous instruction on the honest services count “effortlessly bled over into the jury’s consideration of . . . federal funds bribery,” requiring the vacation of convictions on each count.

Defendant Can Seek Modification of Supervised Release Conditions Based on Change In Law

US v. Morris: Sometime in the past (the opinion doesn’t say when) Morris pleaded guilty to possessing child pornography. Several special conditions were imposed as part of his term of supervised release, including several related to mental health/pyscho-sexual evaluations and internet usage restrictions. Four years after his sentence was imposed, Morris moved to modify the conditions of his supervised release under 18 USC 3583(e)(2), challenging six on grounds that they were improperly imposed and didn’t fit his case and two others related to internet usage now violated the Supreme Court’s subsequent decision in Packingham. The district court denied the motion.

On appeal, the Fourth Circuit partially vacated the denial of Morris’ motion. As to the six conditions he alleged were not supported by the facts of his case, the court held that defendants cannot challenge already imposed conditions on such grounds. The time for doing that is initial sentencing and appeal. However, as to the ones challenged due to the change in the law in Packingham, the court held that Morris could seek modification. That constituted “new, unforeseen, or changed legal . . . circumstances” that allowed for reconsideration of those conditions. The court remanded the matter to the district court to take up Morris’ challenge.

No Mandatory Minimum Applied for Sex Offender Sentenced to Second Supervised Release Term

US v. Nelson: Nelson was convicted for a SORNA violation in 2009 and sentenced to 41 months in prison to be followed by a 25-year term of supervised release. Since Nelson’s release he’s “often violated the conditions of his supervised release,” lead to several revocations. At his fifth revocation in 2021, the district court said that the “statutory available sentence” was “24 months in custody and supervised release of five years to life” before imposing a 24-month revocation sentence, to be followed by a five-year term of supervised release.

On appeal, the Fourth Circuit vacated the sentence. Applying plain error, the court agreed with nelson that there was no statutory mandatory minimum term of supervised release that applies upon revocation. The five-year mandatory minimum applies only after an initial conviction under 18 USC 3583(k), but subsequent terms of supervised release are governed by 3583(h), which has no similar requirement. The court rejected the Government’s reading that while in a revocation situation like this the district court was not required to impose a new term of supervised release at all, but if it did, had to abide by the five-year mandatory minimum, noting that the Government had conceded this issue in two other circuits. The error was also plain, prejudicial (as there was no evidence the district court would have imposed the same five-year term aside from its error), and the type of error the court should correct.

Defendant Sentenced After Fair Sentencing Act Was Enacted Not Eligible for Reduced Sentence

US v. Goodwin: In 2009, before the Fair Sentencing Act was passed, Goodwin was charged with conspiring to distribute powder and crack cocaine. Prior to his sentencing, the Fair Sentencing Act was passed and the Supreme Court decided Dorsey, in which the Court held that the Act applied to anyone sentenced after the Act went into effect. Goodwin eventually pleaded guilty to the conspiracy and admitted that he distributed at least five kilograms of powder cocaine. He was sentenced to a 240-month mandatory minimum, with some credit for time served on a concurrent state sentence, enhanced based on prior convictions. The Fair Sentencing Act wasn’t mentioned at sentencing.

In 2020, Goodwin filed for a reduced sentence under the First Step Act, arguing both that his conviction was for a “covered offense” making him eligible for a reduction and that the district court should take into consideration that the Fair Sentencing Act’s changes to the consideration of prior offenses meant he was no longer subject to the 240-month mandatory minimum. The district court “appeared to agree with Goodwin” that he was eligible, but “agreed with the government” that it could not reduce his sentence because the powder cocaine involved still triggered the same mandatory minimum sentence.

No 2241 Relief for Prisoner Who Previously Filed Second 2255 in Another Circuit

Slusser v. Vereen: In 2011, Slusser pleaded guilty to being a felon in possession of a firearm in the Eastern District of Tennessee and was sentenced under the Armed Career Criminal Act. His plea agreement contained a waiver of his right to collaterally attack his sentence for any reason aside from prosecutorial misconduct or ineffective assistance of counsel. After Johnson, Sludder got permission from the Sixth Circuit to file a second 2255 motion challenging his ACCA status. The district court denied his motion on the merits (i.e., he still had the necessary prior convictions) but on appeal the Sixth Circuit affirmed on the basis of the waiver in the plea agreement. About a year later, the Sixth Circuit concluded that such waivers were not enforceable in such circumstances. Slusser then filed a 2241 motion in the District of South Carolina, where he was incarcerated, raising his Johnson challenge again. The district court dismissed the motion, holding that Slusser could not meet the requirements for filing a 2241 motion.

On appeal, the Fourth Circuit agreed and affirmed the dismissal of the 2241 motion. The court concluded that “we know that Section 2255 is up to the task of testing the legality of Slusser’s detention because he has already pursued his argument in a Section 2255 motion and received a judgment in it.” It did not matter that Slusser could no longer meet the requirements to file a successive 2255. What did matter is that the district court that considered his 2255 motion addressed his claims on the merits.