Monday, November 01, 2021

Money Laundering Conspiracy Statute Reaches Defendant Overseas

US v. Ojedokun: Ojedokun lived in Nigeria while he was involved in a “romance scam,” in which people online posed as potential romantic partners of victims while siphoning away their money. Ojedokun’s part of the scheme was to take funds and transfers from the front-line scammers, some of whom were in the United States, and launder them before redistributing them. During the run of the scheme he never set foot in the United States. However, after the conspiracy ended he came to Illinois for college and was eventually charged with conspiracy to commit money laundering. He was convicted after a jury trial and sentenced to 108 months in prison.

On appeal, the Fourth Circuit affirmed Ojedokun’s conviction and sentence. First, the court rejected Ojedokun’s argument that the money laundering conspiracy statute could not reach his actions that occurred entirely in Nigeria. At issue here was the extraterritoriality provision of 18 USC 1956 which applies its provisions to “conduct” that partly occurs in the United States. Ojedokun argued that because money laundering conspiracy does not require an overt act, only an agreement, that it did not involve “conduct” within the meaning of the statute. The court disagreed, reading “conduct” broadly to include agreements of conspirators, not just specific acts taken in furtherance of the conspiracy. The court also concluded that some conduct occurred in the United States, given that some of the other coconspirators were located there. Second, the court rejected Ojedokun’s indictment was untimely. The original indictment charged a money laundering conspiracy, the object of which was conspiracy to commit wire fraud – which is not one of the listed objects in the statute. The Government got a superseding indictment changing it to actual wire fraud (which is listed), but that was done after the five-year statute of limitations ran. The court concluded that the superseding indictment related back to the original one, as the facts underlying it were the same and Ojedokun had notice of the alleged conduct. The superseding indictment did not change or expand the charge itself. The court also rejected Ojedokun’s plan error argument that his Fourth Amendment rights were violated and declined to consider whether trial counsel was ineffective for failing to pursue the Fourth Amendment claims.

Inmate Not Required to Pursue All Administrative Remedies Before Requesting Compassionate Release

US v. Muhammad: Muhammad was convicted of distributing crack and powder cocaine and sentenced to 210 months in prison. He requested compassionate release from the warden at FCI Loretto, which was rejected less than three weeks later. Rather that pursue any appeal within the Bureau of Prisons of that denial, Muhammad filed a motion for compassionate release in district court. The Government resisted the request on the merits, but did not deny that Muhammad had met the requirements for seeking relief in court. Nonetheless, the district court denied Muhammad’s request because had not exhausted all his potential administrative remedies before seeking relief from the district court.

The Fourth Circuit reversed the district court’s decision and remanded to the district court to consider Muhammad’s request on the merits. Under the First Step Act, an inmate must first seek compassionate release from the Bureau of Prisons, but can go to court once that request is rejected or 30 days has passed. The court first held that the rule was not jurisdictional, but a claim processing rule, which the Government’s failure to argue in the district court could not waive. The court then held that although there were additional avenues of appeal for Muhammad in the Bureau of Prisons, once 30 days had elapsed from his request he was able to seek relief in court.

Court Affirms Civil Commitment Against Timeliness Challenge

US v. Curbow: In 2018, Curbow was charged in the Northern District of Mississippi with attempting to damage aircraft after firing a shotgun at military helicopters. During the course of that prosecution, the district court concluded that Curbow was incompetent and ordered him committed to the custody of the Attorney General to determine if his competency could be restored. As a result, he was sent to FMC Butner in North Carolina. Curbow’s competency was never restored and he was eventually civilly committed as a dangerous person.

On appeal, the Fourth Circuit affirmed Curbow’s commitment. Curbow did not challenge the North Carolina court’s determination of dangerousness, but argued that the court lacked the authority to order such commitment because he was no longer in the custody of the Attorney General, as required by the civil commitment statute. That was due to the time periods that ran between the various orders of the court in Mississippi and proceedings in North Carolina. The Fourth Circuit rejected those challenges, ultimately concluding that the proper calculation of the time periods showed that Curbow was in custody at the critical time.

This is a lengthy opinion that spawned two concurrences and is a must read for anyone who deals with civil commitment or has a client who may get caught up in that procedure.

Virginia Robbery Can Be Committed By Threatening Accusation of Sodomy

White v. US: In March the Fourth Circuit issued a decision called US v. White, in which the defendant argued that because robbery in Virginia can be committed by threatening to accuse the victim of having committed sodomy it was not a violent felony under the Armed Career Criminal Act. The Fourth Circuit agreed that, if that was the case, it was not a violent felony, but certified the question of the scope of Virginia state law to the Virginia Supreme Court. Now the state supreme court has weighed in and agreed that robbery in Virginia can be committed in that manner.

Robbery in Virginia is not defined by statute, but by the common law. Therefore, the court engaged in a lengthy review of English common law treatises and cases about the scope of robbery. While the offense can be committed with actual violence, it can also be committed via threats and not just of force, but, indeed, of threatening to accuse someone else of having committed sodomy. The court held that “sodomy” in this situation means criminal sexual conduct (crimes “against nature”) as defined by then-current law, but noted that Virginia has several of those offense on the books. While this review might seem like enough to settle the question, the court doesn’t rely on it. Instead, it recognized that it had defined the scope of robbery this broadly in several prior (albeit old) cases and, given the solid foundation on which they were based, could not say they were wrongly decided. It’s up to the Virginia legislature to make changes to the common law. But based on the court’s ruling, White’s sentence should be vacated and he should be resentenced without the ACCA enhancement.

Friday, October 01, 2021

No IAC Where Illegal Reentry Defendant Couldn’t Show Removal Order Was Unfair

US v. Herrera-Pagoada: Herrera-Pagoada, a native of Honduras, has been caught illegally entering the United States multiple times. In 2010, during a deportation hearing, the immigration judge had informed Herrera-Pagoada that he might qualify for discretionary relief and avoid deportation, but Herrera-Pagoada said he just wanted to go “back to my home country.” The immigration judge ordered him removed, concluding he was not eligible for any other form of relief. In 2019, while serving a supervised release revocation sentence related to a 2016 illegal reentry conviction in North Carolina, Herrera-Pagoada filed a 2255 motion arguing he had received ineffective assistance of counsel because counsel in North Carolina has failed to get a recording of the 2010 deportation proceeding, which had allowed Herrera-Pagoada’s counsel in California to argue the immigration just had not explored another alternative to deportation, which led to the Government dropping the illegal reentry charge in California. The district court in North Carolina denied Herrera-Pagoada’s 2255 motion.

On appeal, the Fourth Circuit affirmed the dismissal, for several reasons. First, Herrera-Pagoada’s motion was procedurally barred because it was not timely filed and, because he had not raised the arguments as to the inadequacy of the deportation proceedings before, that claim was procedurally defaulted. Second, the court turned to whether an exception due to actual innocence applied to excuse the procedural issues. This turned on whether Herrera-Pagoada could satisfy the requirement in the illegal reentry statute for collaterally challenging deportation orders that the “entry of the order was fundamentally unfair.” The court concluded it was not and, therefore, Herrera-Pagoada could not succeed on the actual innocence argument. The court held that Herrera-Pagoada “had no due process right to be advised of discretionary relief.”

Order Vacating 924(c) Convictions Wasn’t Acquittal; Retrial Not Barred

US v. Johnson: In 2010, Johnson was charged with multiple counts of Hobbs Act robbery, Hobbs Act conspiracy, and two counts of brandishing a firearm under 18 USC 924(c). He agreed to plead guilty to the two 924(c) charges. In the indictment those charges referenced, as the relevant “crime of violence,” both specific robbery charges as well as the conspiracy charge. In the plea agreement, however, the only identified crime of violence was conspiracy. The statement of facts that was part of the plea agreement, however, referenced both the actual robberies and the conspiracy. The district court accepted the guilty plea and sentenced Johnson to 84 months on one 924(c) charge and a consecutive 300-month term on the second.

In 2016, Johnson filed a 2255 motion (based on the Supreme Court’s Johnson decision) arguing that conspiracy to commit Hobbs Act robbery was no longer a crime of violence. As it was the offense cited in the plea agreement, the 924(c) convictions were invalid. The district court granted the motion and vacated those convictions, rejecting the Government’s argument that they were still valid because they were also predicated on the robberies, not jut the conspiracy. The Government obtained an arrest warrant for Johnson on the two 924(c) charges, on the basis that it would reprosecute him with different predicate offenses. Johnson sought to dismiss the warrant, arguing that to do so would violate the Double Jeopardy clause. The district court concluded there was no Double Jeopardy issue, but dismissed the arrest warrant, while allowing Johnson’s continued detention on the other, previously dismissed, charges from the indictment.

Johnson filed an interlocutory appeal, in which the Fourth Circuit affirmed the district court’s conclusion that there was no Double Jeopardy issue with Johnson’s further prosecution. The court distinguished between an acquittal – “any ruling that the prosecution’s proof is insufficient” – and a procedural dismissal addressing “questions that are unrelated to factual guilt or innocence.” Only the first triggers Double Jeopardy protections and prevents further prosecution. The court held that the district court’s order was a procedural ruling, not an acquittal, rejecting Johnson’s argument that recent Supreme Court precedent defined “acquittal” broadly and should include order “premised on legal innocence” as well as factual.

Tuesday, September 07, 2021

Convictions, Death Penalty Affirmed for Charleston Church Shooter

 US v. Roof: In 2015 Roof went to a bible study meeting at a Emanuel African Methodist Episcopal Church in Charleston, SC. At the end of the meeting he pulled out a gun and started shooting, killing nine and wounding others. He was eventually charged with numerous federal offenses related to the shooting that made him eligible for the death penalty. After a jury trial where he was represented by counsel, Roof was convicted on all counts. After a sentencing phase where he represented himself, Roof was sentenced to death.

On appeal, a not-quite-Fourth Circuit panel affirmed Roof’s convictions and death sentence in a 149-page opinion.* In addition to numerous issues related specifically to the death penalty, the court also addressed issues related to Roof’s competency and ability to represent himself during the sentencing phase of proceedings. Overall, the court found no abuse of discretion in the district court’s decisions that Roof was competent (made both before trial and between the guilt and penalty phases) or that he was competent to represent himself during the sentencing phase. Threaded through both decisions was a conflict between Roof and counsel about presenting mental health evidence at sentencing, with Roof fearing that such an argument was overtake the political aspect of his actions.

* Because Judge Richardson was the United States Attorney in South Carolina when Roof was prosecuted, all the judges of the Fourth Circuit recused themselves and judges from the Eighth, Sixth, and Third Circuits heard the appeal.