Delay In Bringing Charges Didn’t Violate Due Process Without Proof of Government Bad Faith

US v. Minkkinen: Minkkinen and his codefendant, Sambasivam, were charged with numerous counts arising from allegations that they used proprietary accounting software to produce their own rival product (it’s more complicated than that, but that’s the gist). A whistleblower complaint started the investigations (criminal and internal) in 2016, but an indictment was not returned until August 2022. In the meantime, two key witnesses died and documents relevant to the case were destroyed by third parties. The defendants moved to dismiss, arguing that the delay in bringing the indictment violated their right to due process. The district court granted that motion.

On appeal, the Fourth Circuit reversed the denial of the motion to dismiss. In order to prevail on a due process claim for delay, defendants must show actual prejudice from the delay, then the court must balance “the prejudice of the defendant with the Government’s justification for delay.” Here, the court “accepted for the sake of argument” that the delay prejudiced the defendants. Nonetheless, their due process claim failed because the Government’s reasons for the delay were not rooted in bad faith or an attempt to disadvantage the defendants. The court agreed with the district court’s findings (which the defendants did not dispute) that “the Government’s delay was the product of a ‘prolonged investigation’ untainted by any ‘improper motive.’” But Supreme Court and Fourth Circuit precedent requires more, which the defendants could not show on this record.

Supervised Release Search Condition Did Not Allow Warrantless Search of Property Occupied by Non-Supervisee

US v. Perez: Perez was on supervised release, one of the conditions of which was the he submit himself or property to searches directed by a probation officer. He owned a home on Teal Drive, which he rented to his girlfriend, Coleman (signed lease and everything), as well as one on Lawndale Drive, where he lived. After his probation officer received information that Perez was dealing drugs, police officers (at the probation officer’s direction) executed searches at both homes – Perez was at Teal Drive, Coleman at Lawndale Drive – which uncovered not only evidence indicating Perez might be staying at Teal Drive, but also about $25,000 in cash there. The Government seized the cash, arguing it was drug proceeds. Perez and Coleman both unsuccessfully challenged the searches, with each claiming part of the money.

On appeal, the Fourth Circuit held that the search of Teal Drive violated Perez’s rights under the Fourth Amendment and could not support forfeiture. The court first held that the condition of Perez’s term of supervised release that allowed searches of his property did not extend to Teal Drive, where Coleman resided, likening the situation to one where one party consents to a search of a jointly shared residence while another objects (as Coleman did), while also noting that a landlord cannot given consent to search his tenant’s property. The court also held that the police lacked sufficient belief – defined as probable cause – that Perez actually lived at Teal Drive (evidence of such recovered at Lawndale Drive was discovered while the other search was ongoing).

No Error In Joinder of Witness Murder and Marijuana Conspiracy Counts

US v. Mosley: Mosley was “friends and drug-trafficking partners” with Carter and Hightower. After Hightower was indicted for healthcare fraud and extortion, he singled out the complaining witness as a woman named Edmonds. The three worked together (while Hightower was detained) to kill Edmonds, but instead succeeded in Carter shooting and killer her neighbor. Mosley was charged with numerous counts arising not just from the murder of Edmonds’ neighbor, but the marijuana operation. He was convicted on all counts (in a joint trial with Carter) and sentenced to life in prison.

On appeal, the Fourth Circuit affirmed Mosley’s convictions. Primarily, Mosley argued that the district court erred by not severing his trial from Carter’s (who was not part of this appeal) and the murder charges from the marijuana charges. The court concluded, reviewing de novo, that the charges were properly joined at the outset and that the district court did not abuse its discretion in denying motions to sever. The court concluded that the “allegations connect Carter and Mosley to the same conspiracy” and that the “underlying marijuana offenses are essential to establishing the connection between” the three men. Even if there was an error, it was harmless. The court also rejected Mosley’s argument that the district court erred by denying Carter’s motion to suppress, as Mosley had no standing in the places searched.

Excused Juror’s Statements Don’t Show Bias, But Government Failed to Prove Statutory Loss Amount

US v. Umeti: Umeti and two codefendants created a scheme by which they utilized phishing scams and malware to “deceive businesses into executing wire transfers” into accounts they controlled. As a result, they were charged with numerous offenses, including wire fraud and conspiring to cause intentional damage to a protected computer causing a loss of at least $5000. During voir dire at Umeti’s trial (one co-conspirator pleaded guilty, the other’s “charges remain pending”), a potential juror indicated he “worked in cybersecurity,” his company “might have done some of the remediation work,” and “I’ve heard of the defendants.” He was struck for cause, but Umeti expressed concern that the entire jury had heard the statements which indicated “he had firsthand knowledge that the defendants . . . were involved in fraud.” Umeti was convicted on all counts. The district court later denied amotion for new trial based on the excused juror’s statements. Umeti was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed most of Umeti’s convictions, but vacated the computer damage charge. As to the excused juror, the court concluded that the district court did not abuse its discretion in denying Umeti’s new trial motion. Umeti could not show that he was entitled to a rebuttable presumption of prejudice due to an extrinsic influence on the jury because the excused juror’s statements were only “innocuous interventions” and “nothing” in his statements “show any disposition toward Umeti’s guilt or innocence.” As to the computer damage conviction, however, the court held that the Government failed to prove at least $5000 in damages were incurred, which raised the statutory maximum on that count from one year to ten. While the Government presented witness testimony from the impacted companies about things they had to do because of the hacking, specific amounts of loss were never mentioned, so the jury could not conclude that any particular amount of damages were done.

Court Affirms Hate Crime Murder

US v. Ritter: Ritter would return to his rural, South Carolina hometown during the summers, when he engaged in a sexual relationship with a trans woman, Dime. While Dime was open about their relationship, Rigger tried to keep it a secret. Dime was killed, found in a car along the side of a rural road. She had earlier been pulled over for speeding and Ritter was in the passenger’s seat. Sometime later, Ritter appeared at his uncle’s house nearby asking for a ride. He also asked friends to help dispose of a gun and burn his clothes. He was eventually charged with killing Dime because of her gender identity and related charges. He was convicted at trial and sentenced to life in prison.

The Fourth Circuit affirmed Ritter’s convictions. Ritter argued that he should receive a new trial due to bias of a juror – a trans woman who talked to the media after the trial, but who stated that her identity didn’t have any impact on her decision and she “followed the evidence of the law and the judge’s instructions.” The court found no “manifest error” in the district court’s conclusion that the juror did not violate her oath of impartiality. Ritter also argued that he should have gotten a mistrial after a Government witness testified that someone else had heard that Ritter killed Dime. The court held that the district court’s curative instruction, coupled with the witness’ impeachment on that statement (including by the Government) cured any potential prejudice. Finally, the court held there was sufficient evidence to support Ritter’s conviction for killing Dime, concluding that Ritter’s desire to hide their relationship was due to Dime’s trans identity and therefore her “gender identity.”

Court Vacates Aggravated ID Theft Count for Because Use of ID Wasn’t “Crux” of Related Offense

 US v. McDonald: McDonald was the executive director of a local economic development authority in Virginia who was charged with 34 counts of fraud and identity theft related to her time there. At trial she argued the development authority had “entered into a secret settlement agreement” with her to resolve a sexual assault and harassment claim and “authorized her various frauds as a way to pay” her an agreed sum. She was convicted on all counts but one.

On appeal, the Fourth Circuit affirmed McDonald’s conviction, except for the aggravated identity theft count. On that count, the issue was whether the identity theft was the “crux” of the specifically identified fraud offense in the indictment. The court held it was not, that the use of someone else’s identity “was an element of her broader scheme to profit from fraudulent behaviors, but it was ancillary to the particular wire fraud charged.” Otherwise, the court found no abuse of discretion in the denial of McDonald’s request for mistrial due to the various delays (COVID and other health related issues, primarily) during the course of her trial.

No Error in Precluding Cross-Examination About Decades-Old Drug Conviction

US v. Jones: In 2020 police in North Carolina were investigating Jones and his relationship to a particular drug stash house which he visited frequently. Evidence showed that he worked with others to bring marijuana from California to North Carolina for resale, along with other drugs. After a traffic stop of one of his associates, Jones was arrested at the stash house along with drugs, paraphernalia, and two guns. He was convicted at trial of various drug and firearms offenses and sentenced to 480 months in prison.

On appeal, the Fourth Circuit affirmed Jones’ convictions and sentence. His primary argument as to his convictions was that he should have been allowed to cross-examine his associate about his prior drug convictions from the 1990s. Jones argued that they were relevant because the associate was the only cooperator testifying and had “previous experience with federal sentencing” that “motivated him to do so.” The court disagreed, noting that the jury had already heard the witness was “testifying pursuant to a plea agreement in order to get a reduced sentence” and had testified to selling drugs before meeting Jones. The court also rejected Ritter’s argument that the evidence was insufficient to connect him to the firearms at issue. As to sentencing, the court found no clear error in the imposition of enhancements for obstruction (based on jail calls directing people what to do with large sums of cash) and his leadership role.

Court Remands As-Applied §922(g)(9) Challenge for Factual Development, Application of New Post-Bruen Law

US v. Jacobs: Jacobs allegedly (that’s important!) fired a gun during a domestic dispute. Police responding to the report recovered a pistol and a rifle. Jacobs admitted to possessing the firearms and that he was felon who knew he could not possess him. He was ultimately charged both with being a felon in possession of a firearm, under §922(g)(1), and possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, under §922(g)(9). Jacobs successfully argued that both were unconstitutional under the Second Amendment as applied to Jacobs.

On an appeal by the Government, the Fourth Circuit reversed the district court’s decision and remanded for additional proceedings. As to the §922(g)(1) count, all agreed that, by the time of appeal, both facial and as-applied challenges were not available. As to the §922(g)(9) count, while facial challenges are no longer available, the Court has yet to address whether as-applied challenges are. The Court refused to apply the §922(g)(1) precedent on as-applied challenges to §922(g)(9), leaving open the possibility of a successful challenge. However, the Court noted the numerous factual issues that needed to be resolved and that the district court’s initial decision lacked the benefit of the Fourth Circuit’s post-Bruen cases. Therefore, the Fourth Circuit remanded for further proceedings on that count.

Misclassification of Defendant as Career Offender Harmless When District Court Would Impose Same Sentence Regardless

US v. Cox: Cox pleaded guilty to multiple drug charges. In the PSR, the probation officer identified two of his prior convictions as “controlled substance offenses,” making him a career offender. One of them was a 2009 drug conviction from Florida that applied not only to distribution and possession with intent to distribute but to purchasing drugs. The district court overruled Cox’s objection and imposed a sentence of 120 months – a “compromise” between the Government’s request for a bottom of the career offender Guideline sentence (151 months) and Cox’s argument for a nearly top-of-the-unenhanced Guideline sentence (104 months). The district court said it would impose the same sentence “in the event I am wrong” about the career offender determination because the un-enhanced Guideline would understate Cox’s history of recidivism.

On appeal, the Fourth Circuit affirmed Cox’s sentence. Although “there can be little doubt that the probation officer and the district court erred in their Guidelines calculations” (and the Government didn’t argue otherwise), the error was harmless. “The district court left no room for doubt as to what it would do upon any remand” and imposed the same 120-month sentence. Further that sentence was not substantively unreasonable.

No Due Process Violation in Shifting State Prosecution Theories

Richardson v. Frame: Richardson was involved in altercation with Cool, to whom he sold a batch of low-quality cocaine. Richardson beat up Cool and, according to her, took about $100 in cash she had in her apartment. Richardson was charged in West Virginia state court with assault and robbery (among other things). The robbery was charged under the portion of the West Virginia statute that requires the threatened use of force involving a weapon, rather than the portion that involved the actual use of force.

At trial, the Government pivoted and presented a case that turned entirely on the actual use of force. Richardson’s counsel did not object. Richardson was convicted of robbery and sentenced to 100 years in prison. On direct appeal the state supreme court found no fatal variance in Richardson’s trial and, in state habeas proceedings, rejected his argument that he’d received ineffective assistance of counsel. Richardson filed a §2254 petition, which the magistrate recommended granting, only to have the district court sustain the state’s objections and deny.

On appeal, the Fourth Circuit affirmed the denial of Richardson’s §2254 petition. Ultimately, the question came down to whether Richardson was prejudiced by the state’s change of theory at trial. The court held he was not, both because he was already on notice that actual violence was at issue (due to the assault charge) and because trial counsel’s defense strategy was that no money had been taken (and thus no robbery), rather than anything to do with the nature of the charged robbery. Given the required AEDPA deference, the court affirmed.

NOTE: I was counsel for Richardson in this case. 

Conviction for Advocating Participation in Jihad Following 9/11 Violates First Amendment

US v. Al-Timimi: Al-Timimi helped found a mosque in Virginia and was “viewed as a respected elder and a person knowledgeable about Islam.” Prior to the 9/11 attacks, a group of men at the mosque began planning to wage jihad overseas. Al-Timimi was not part of the group and when asked if he approved “didn’t endorse or reject the idea.” Later, he did “chastise them for making their training efforts too obvious” and encouraged them to “be more discreet.” After 9/11, Al-Timimi met with others (including some of the would-be jihadists) and told them (among other things) that they must “leave the United States” and “join the mujahadeen,” that it was “obligatory on all Muslims to go and defend Afghanistan,” and that “it doesn’t matter if we fight the Indians or the Russians or the Americans, that this is all legitimate jihad.” He also encouraged men to “go to Pakistan” and join and train with a particular terrorist group.

In 2004, Al-Timimi was charged with ten counts related to inducing or soliciting others to (among other things) use firearms, levy war against the United States, and aid the Taliban. All the counts were based on speech Al-Timimi had made. He was convicted on all counts and sentenced to a total of 360 months in prison. Twice Al-Timimi appealed, only to have the case remanded for additional proceedings, one of which resulted in several counts being vacated on Johnson/Davis grounds. In 2020, Al-Timimi was released to home confinement due to the Covid-19 pandemic.

On the third go around, the Fourth Circuit vacated Al-Timimi’s remaining convictions, concluding that they violated the First Amendment. The primary argument was whether his speech constituted incitement to imminent lawless action or rose to the level of facilitation or solicitation of unlawful conduct. The Court concluded it was not, applying the Brandenberg standard, which requires that the “advocated-for lawless action must be happening quite soon.” What Al-Timimi urged was “neither sufficiently imminent nor sufficiently definite to lose First Amendment protection,” with the court noting that he “specified no time from in which these actions should be completed and no details as to how they should be carried out.” His “exhortations were vague and general.” Al-Timimi’s speech “was not participation but merely encouragement,” which was not sufficient to support aiding and abetting convictions. Nor did he encourage, “with the requite intent, a specific unlawful act.”

Divided Court Concludes False Documents Submitted During Immigration Process Were “Required” and Covered by Statute

US v. Aborisade: Aborisade, who was not a lawyer, ran a “legal center” where he primarily helped clients file “various immigration petitions,” including those under the Violence Against Women Act’s “self-petitions” system for abused spouses. For those petitions, Aborisade used prior psychological evaluations and modified them for use by other applicants, as well as fabricating lease documents. His clients ultimately submitted the false documents as part of their petitions. Aborisade was ultimately convicted at trial of numerous counts, primarily of vias fraud and aggravated identity theft  and sentenced to 57 months in prison.

On appeal, a divided Fourth Circuit affirmed Aborisade’s convictions. The primary issue was whether the false documents at issue were “required” to be part of the applications at issue, as the statute required. The Court concluded that they were, holding that while those types of documents were not specifically required, some evidence was required to prove eligibility under VAWA and since those documents were that evidence it was “required.” The court also rejected Aborisade’s argument that he could not be convicted under the statute because he did not personally present the petitions (with the false documents) to immigration authorities.

Judge Heytens dissented, arguing that the statute does not require the submission of “any one document or type of document” and that the necessary proof could come from other sources, such as witnesses. Therefore, the documents at issue were not “required” under the statute.

No Sixth Amendment Speedy Trial Violation in Delay Between Defendant’s Travel to Pakistan and Prosecution on Terrorism Charges

US v. Chaudhry: In 2009, Chaudhry (a native of Pakistan who came to the United States as a child) and four others intended to go to Afghanistan to fight against US and allied forces. Before leaving, they created a “final message” video laying out their reason for waging jihad in this way. They left for Pakistan (from which they would cross into Afghanistan) where they were arrested. Questioned by the FBI two days later, Chaudhry adopted everything said in the video and explained that they “came for the sake of Islam to work with the Muslims.” A complaint was filed in the Eastern District of Virginia charging Chaudhry with providing material support to terrorists, but he was also charged, convicted, and sentenced in Pakistan. Charges in the US lingered until that sentence was completed. Chaudhry was extradited December 2023 and arraigned on an indictment a week later. After Chaudhry unsuccessfully sought to dismiss the indictment as untimely, he pleaded guilty and was sentenced to time served, to be followed by 20 years of supervised release.

On appeal, the Fourth Circuit affirmed Chaudhry’s conviction. Noting that his speedy trial challenge was made under the Sixth Amendment, not the Speedy Trial Act, the court concluded that the relevant factors did not fall in his favor. While the delay in him facing charges in the US did work in Chaudhry’s favor, the other factors did not. Particularly, the Government had made conscientious attempts to bring Chaudhry back to the US for years and Chaudhry did not assert any kind of speedy trial right until months after he was returned to the US.

Police Lacked Reasonable Suspicion to Extend Traffic Stop Based on Observations of Conversations With Others

US v. Hawkins: Police were surveilling a car in a high crime area. They knew the driver, Jonhson, was on supervised release following a drug conviction, but knew nothing about the passenger, Williams. Police followed the car to an apartment complex (know from prior drug investigations) where another man, Byrd (also known from prior drug investigations) approached the car, reached inside, and talked with the occupants. After Byrd walked away, Hawkins approached and got in the back seat.

Police initiated a traffic stop after the car drove away. The officer got slightly different answers about who Byrd was (Williams said he was asking for a cigarette, Johnson said they talked about a job) and summoned a K9 unit. The drug dog alerted and, while the officers did not find any drugs, they did find a firearm in Hawkins’ waistband pursuant to a patdown. Hawkins was charged with possession of a firearm after sustained a conviction for a misdemeanor crime of violence and unsuccessfully sought to suppress the firearm.

On appeal, the Fourth Circuit reversed the district court’s denial of Hawkins’ motion to suppress, concluding that the officer lacked reasonable suspicion to extend the traffic stop. It rejected the Government’s reliance on four factors – the “locations involved,” Johnson’s prior drug conviction, the interaction with Byrd, and the differing stories about Byrd. The court found that none of them, separately or taken together, created reasonable suspicion. The court rejected the Government’s position that the officer’s had witnessed a drug deal between Byrd and the others in the car, noting that they officers did not see anything exchanged between them or Byrd walking away with anything. The court also found that the stories about Byrd’s interaction were not so different as to be suspicious.

Congrats to the Defender office in NDWV on the win! 

Affirming Denial of Compassionate Release Based on Disparity Between Sentence and What Would Be Imposed Today

US v. Washington: In 2020, Washington was convicted on two drugs charges and sentenced as a career offender, ultimately receiving a downward variance sentence of 96 months in prison. In 2022, he filed a motion for compassionate release arguing that, if sentenced then, he would no longer be a career offender and would face a Guideline range of only 24 to 30 months in prison. the district court agreed that was a “compelling and extraordinary” basis for a reduced sentence, but ultimately denied Washington’s request after reviewing the §3553(a) factors.

A divided Fourth Circuit affirmed the denial of Washington’s compassionate release motion. The court rejected Washington’s arguments that the district court did not adequately consider the sentencing disparity and focused unduly on his criminal history (while also being “too dismissive of his rehabilitative efforts”). In doing so, the court noted that the district court in these cases is not required to engage with the defendant’s arguments with the same detail as in an original sentencing. Ultimately, the record showed that the district court “engaged with Washington’s arguments, articulated what factors it found important or unimportant to its decision, and stated the grounds for denying the requested relief.” That was enough.

Judge Berner dissented, arguing that once a district court finds extraordinary and compelling reasons exist to support a reduction it must “then assess the impact of that finding in relation to the relevant” §3553(a) factors.

Rejecting First Amendment Facial Challenge to Statute Criminalizing Teaching How to Make Explosives While Knowing Person Intends to Commit Crime of Violence

US v. Arthur: Arthur ran a business in which he trained “the average person to defend themselves” against “a tyrannical government,” producing literature noting that some of the tactics he taught “are wartime tactics” and “may be highly illegal.” In 2020, one of Arthur’s customers had “a fatal incident,” leading the FBI to send an undercover customer to Arthur. The undercover, who told Arthur that “the ATF’s been to my house” are “probably coming back” and “I want to be ready,” got in-person training from Arthur on “how to fortify his residence.” This included using attack dogs and an electrified fence to create a “fatal funnel” for approaching agents, at whom the undercover could “start lobbing . . . grenades on them with his freaking shotgun.” Arthur also said it “wouldn’t be a bad idea” to put explosive devices “right up around the doors,” noting that he kept one on his front porch.

Arthur was arrested and charged with multiple offenses, including under 18 U.S.C. §842(p)(2)(B), which prohibits a person from “teaching or demonstrating to any person” how to make or use explosives “knowing that such person intends to use” that information for, or in furtherance of, a crime of violence. He moved to dismiss that count as being facially overbroad under the First Amendment. The district court denied the motion and Arthur was convicted at trial on all counts. He was sentenced to 300 months in prison, based partly on the application of a terrorism enhancement under the Guidelines (although well below what the Guidelines recommended).

A divided Fourth Circuit affirmed Arthur’s convictions and sentence. Noting that Arthur’s challenge was a facial one, the court noted that the issue was whether §842(p)(2)(B) covered a substantial amount of protected speech. The court, however, concluded that it “is not at all clear” that it prohibits any protected speech. That is because the speech involved falls into the category of speech integral to criminal conduct which is not covered by the First Amendment. In particular, the court pointed to the statute’s requirement that any violation involve knowing that the recipient of the information is going to use it in relation to a crime of violence. Thus, the speech covered by the statute is a “far cry” from the kind of abstract advocacy of violence that is protected by the Fourth Amendment. The court also concluded that the terrorism enhancement applied as the undercover agent’s purported crime was one of terrorism and Arthur’s conduct involved, or was intended to promote, it.

Judge Gregory dissented, noting “concerns about the wide range of speech encompassed by the statutory language as well as the novelty of criminalizing speech when the speaker lacked specific in tend to commit a crime.”

Omissions from Warrant that Addressed Informant’s Credibility Did Not Require Suppression

US v. Glass: An officer obtained a search warrant for Glass’ home and electronic devices, based on the allegation of his ex-wife that she had seen “a massive amount of child porn saved on his phone.” The searches uncovered child sexual abuse material. Charged with multiple counts of receiving and possessing CSAM, Glass moved to suppress, arguing that the officer had failed to inform the magistrate judge of his ex-wife’s prior allegations against him (none of which resulted in any charge or arrest) and other details that might impact her credibility. The district court denied the motion and Glass went to trial and was convicted on all counts. He was sentenced to 15 years in prison.

On appeal, the Fourth Circuit affirmed the district court’s denial of Glass’ motion to suppress, concluding that he could not “satisfy his heavy burden” in challenging the sufficiency of the warrant application. The court held that the ex-wife’s allegations were “detailed and specific” with regards to the CSAM. The prior investigations, rather than undermining her credibility, bolstered it because “her report concerned a suspect who was likely involved in similar offenses in the past.” That the prior investigations “did not churn up concrete evidence” that led to charges did not mean those allegations had been fabricated. “Probable cause does not dissipate simply because a witness’s previous, similar reports against the defendant went without criminal consequences.” Nor were the other omitted facts (including any specific reference that the informant was Glass’ ex-wife) sufficient to defeat probable cause.

Court Lacks Jurisdiction to Consider Subsequent Untimely Filed §2255 Motion

US v. Robinson: In 2002, Robinson was convicted of drug charges as well as a pair of §924(c) firearms charges, resulting in a total sentence or 960 months. He filed numerous motions after his case became final, including an approved second-or-successive §2255 motion. In 2019, the district court reduced his sentence under the First Step Act to 601 months in prison. In 2022, Robinson filed another §2255 motion, this time without permission from the Fourth Circuit, arguing that he could not be convicted on both §924(c) offenses. The district court denied Robinson’s motion (1) because Robinson did not have permission to file another successive §2255 motion the court lacked “jurisdiction” and (2) even if it did, the motion was untimely.

The Fourth Circuit granted a certificate of appealability only on the first issue – whether the First Step Act reduction order was a new judgment from which Robinson could file a §2255 motion without permission. In his opening brief, Robinson sought to expand the certificate of appealability to cover the timeliness issue as well, but the Fourth Circuit denied the motion.

Ultimately, the Fourth Circuit dismissed Robinson’s appeal for lack of jurisdiction. That was because given the narrow scope of the certificate of appealability the court could not reach the district court’s ruling on timeliness and therefore even if Robinson prevailed on the first issue the court could not provide any relief on the second. It rejected Robinson’s argument that the district court’s timeliness ruling was a nullity because it came after the district court concluded it lacked jurisdiction. The court concluded that the second-or-successive requirements in §2255 and §2244 were not actually jurisdictional (the district court used the term too loosely), but claims processing rules, which meant it had the authority to rule on the timeliness issue (which the Fourth Circuit had already declined to review).

Court Affirms Convictions and Sentences for Trio Charged With Smuggling Arms Into Cameroon

US v. Nji: Nji and his two codefendants were part of the “Peanut Project,” a “group dedicated to sending weapons and ammunition to Anglophone fighters in Cameroon who were battling the Francophone government’s forces.” To that end, another project member named St. Michel (who had served in the US military) set up a “lab” where project members would “clean, prime, and refurbish ammunition” and “assemble firearms” that were then smuggled out of the United States. The operation came to the attention of US officials when a shipping container bound for Nigeria was opened revealing more than 35,000 rounds of ammunition and 39 firearms, none of which had serial numbers (9 were “privately manufactured,” while the others had been obliterated in the lab). The defendants went to trial and were convicted of conspiracy, smuggling, and transportation of firearms with obliterated serial numbers. All were sentenced to 63 months in prison.

On appeal, the Fourth Circuit affirmed the convictions and sentences of Nji and his codefendants. Of particular interest, the Court rejected two of the defendants’ arguments related to evidentiary rulings at trial. First, the court found no abuse of discretion in the district court’s exclusion of their proposed expert witness, who would testify about the conflict in Cameroon, and “avoiding a distracting, collateral mini-trial about the nature and merits of the conflict.” Second, the court also found no abuse of discretion in the district court’s ruling excluding a pretrial statement of a coconspirator regarding St. Michel’s alleged assurance that there was “no need for concern” with the operation. The court concluded that the witness could still assert his Fifth Amendment privilege (he’d yet to be sentenced) and that the pretrial statement was not admissible under FRE 807 because it lacked guarantees of truthfulness (including that it contradicted the declarant’s statements made under oath during his guilty plea). Finally, the court rejected the defendants’ asserted Rogers error, holding that where the supervised release conditions at issue were fully set forth in the PSR and summarized by the district court at sentencing they were sufficiently “imposed.”

Court Affirms Naturalization Fraud Conviction

US v. Palmer: Palmer, a native of Jamaica, sought citizenship in 2011. As part of that process he was asked (in print and in person) whether he had “ever committed a crime or offense for which you were not arrested.” Palmer answered “no” and became a citizen. But in 2013, Palmer pleaded guilty to a statutory rape in North Carolina that occurred in 2008 – prior to his naturalization process. As a result, he was charged with naturalization fraud in 2021. After unsuccessfully moving to dismiss for preindictment delay and to exclude the evidence of his state conviction at trial, Palmer was convicted and sentenced to six months in prison (to be served concurrently with his state sentence) as well as have his citizenship revoked.

On appeal, the Fourth Circuit affirmed Palmer’s conviction. The court affirmed the denial of the motion to dismiss concluding that Palmer could not demonstrate any prejudice due to the delay. The potential testimony regarding his “cognitive challenges” from his mother – who passed away prior to the federal charges – was not sufficiently specific. The court also noted that there were other sources of similar testimony (friends, coworkers, other family members) and that the “jury hear no shortage of evidence about Palmer’s” challenges. The court affirmed the introduction of evidence relating to Palmer’s prior conviction as well, noting that a state conviction could only be challenged collaterally in such situations due to the complete denial of counsel, not (as Palmer argued) due to ineffective assistance. Finally, the court concluded that the district court did err in limiting the testimony of Palmer’s expert witness regarding his mental capacity, but concluded that any error was harmless.

Court Affirms Sentence In Spite of Delinquent Government PSR Objections

US v. Henderson: Henderson was the passenger in a taxi that was stopped in Charleston, West Virginia, after which 1.9 kg of “ice” methamphetamine was found in his bag. Following his arrest, Henderson made several phone calls from the regional jail that appear to show him (speaking in code) directing others on how to continue a drug trafficking operation, including telling one person (Cagle) what to do with several firearms. Henderson pleaded guilty to possession of 500 grams or more of methamphetamine.

In the initial PSR, the probation officer recommended a two-level enhancement for possession of a firearm in connection with the drug trafficking offense. Henderson objected in a letter to the probation officer and Government, to which the Government made no response. The probation officer agreed with Henderson and withdrew the recommended enhancement, a decision to which the Government made no objection.

In light of the Fourth Circuit’s decision in Jones, the district court asked for briefing as to whether Henderson might qualify for the safety valve. The Government used that opportunity to make untimely objections to the lack of the two-level gun enhancement, as well as a leadership enhancement, and to argue that Henderson should not receive credit for acceptance of responsibility. Henderson objected to the late objections and also argued that the enhancements should not apply. Ultimately, the district court applied the firearm and leadership enhancements, while awarding acceptance of responsibility, and sentenced Henderson to 188 months in prison (a downward variance based on the meth/ice disparity in the Guidelines).

On appeal, the Fourth Circuit affirmed Henderson’s sentence. Henderson’s primary argument was that the district court erred by considering the Government’s late objections, arguing that an invitation for briefing about the safety valve did not invite new objections to the PSR. The court disagreed and found no abuse of discretion in the district court considering the Government’s objections. In doing so, the court made it clear that “district courts have an independent obligation to properly calculate the applicable guideline range” and in “doing so, they aren’t limited to the parties’ arguments or the recommendations in the presentence report.” The court also rejected Henderson’s argument that the district court clearly erred in imposing the firearm enhancement.

NOTE: I was counsel on this case and argued it before the court. 

Court Affirms Denial of Motion to Suppress Relying on Findings Made by the District Court

US v. Coe: An officer saw Coe sitting in a car outside a convenience store known for “drug activity” and saw Coe holding what appeared to be plastic baggies with cocaine in them. The officer drew his gun, opened the car door, grabbed Coe as he started to get out and “pinned him to the car.” The officer holstered his gun and got his taser, after which Coe started to struggle and “threw the baggies in front of the car.” In the struggle, the officer saw a gun in Coe’s waistband. Coe unsuccessfully moved to suppress the firearm and entered a conditional guilty plea to being a felon in possession of a firearm.

On appeal, the Fourth Circuit affirmed the denial of Coe’s motion to suppress. The “centerpiece of Coe’s argument” is that the officer violated the Fourth Amendment by pointing his firearm at Coe “with no safety, with his finger on the trigger.” However, the court noted that the district court never made a finding that the officer pointed the gun at Coe while he had his finger on the trigger. Furthermore, Coe did not argue that the district court clearly erred in not making such a finding. As a result, “based on the findings the district court did make,” the court concluded that the officer did not violate the Fourth Amendment as it was “not constitutionally unreasonable” for him to briefing draw his gun under the circumstances. The court did note the officer’s “declared philosophy” during the suppression hearing that he always goes into a situation with his gun drawn (“because you never know what that person has”), stating that “is not the law, and we denounce such views in the strongest possible terms.”

Inmate Cannot Receive First Step Act Credit If Any Part of Sentence Is For Excluded Offense

Bonnie v. Dunbar: In 2005, Bonnie pleaded guilty to a drug offense and using a firearm in relation to that offense under 18 U.S.C. §924(c). He began serving a term of supervised release in 2017. In 2021, he was sentenced to 120 months in prison on new drug charges, as well as a consecutive term of 24 months in prison for revocation of his term of supervised release. Bonnie sought time credits under the First Step Act, which the Bureau of Prisons denied because §924(c) sentences (which Bonnie’s revocation was) were ineligible for such credits, rendering his entire sentence ineligible. Bonnie sought relief in the district court, which was denied.

On appeal, a divided Fourth Circuit affirmed the denial of Bonnie’s motion in the district court. The issue was how to handle aggregate sentences which included both eligible First Step Act offenses – Bonnie’s new drug sentence – and ineligible ones – Bonnie’s revocation (§924(c)) sentence. The court rejected Bonnie’s arguments that his sentences should be treated separately, relying on 18 U.S.C. §3584(c), which requires the BOP to treat multiple terms of imprisonment as “a single, aggregate term of imprisonment.” The court also noted that the First Step Act eligibility provision excludes “a prisoner” with certain convictions, not “a sentence.”

Judge Wynn dissented, arguing that the “text and purpose of the First Step Act . . . makes clear” that Bonnie is entitled to time credits on the eligible portion of his sentence.

Supervised Release Condition Didn’t Improperly Delegate Authority to Probation Officer

US v. Jones: Jones pleaded guilty to production of child pornography and was sentenced to 256 months in prison, followed by a lifetime term of supervised release. A mandatory term of his supervised release mandated that he not use controlled substances and submit to periodic drug tests “as determined by the court.” A second, special condition, further required that Jones “contribute to the cost of such program not to exceed the amount determined by the court approved “US Probation Office’s Sliding Scale for Services.”

On appeal, Jones argued that the second condition improperly delegated authority to the probation officer to determine the regularity of his drug tests. However, the parties agreed at oral argument that all the second condition did was establish Jones’ requirement for paying for the drug testing regime set forth in the mandatory condition and “as determined by the court.” As a result, there was no error (much less plain error) and the Fourth Circuit affirmed Jones’ sentence.

Faulty Rule 11 Colloquy Didn’t Rise to Level of Plain Error

US v. Smith: Smith bought 59 firearms over a 16-month period using two false addresses as his residence (one address didn’t actually exist) on the required ATF forms, leading to a 24-count indictment for lying to a federal firearms licensee. Smith agreed to plead guilty to one count the day prior to trial and, as part of the plea, agreed to waive his right to appeal his sentence.

After a Rule 11 colloquy that “fell short” in some aspects and at which Smith’s plea was accepted, he fired his attorney “for ineffective assistance” (counsel had been “recommended for disbarment” a week prior to the hearing – he had “since been disbarred and twice suspended”). Armed with a new, appointed, counsel, Smith moved to withdraw his plea. That request was denied and Smith was sentenced to 14 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Smith’s motion to withdraw his guilty plea. Noting the problems at the Rule 11 hearing – the district court did not discuss its ability to impose a non-Guideline sentence, did not address the appeal waiver, and, in fact, didn’t go over any of the plea agreement at all – the court observed that “it is not too much to ask that district courts conduct their plea colloquies with precision.” Nonetheless, the lack of “precision” in this case only resulted in an error that was harmless, as the record did not show that but for the errors Smith would have not pleaded guilty. This is partly because while, in his motion to withdraw, Smith challenged the effectiveness of counsel he did not challenge the adequacy of the Rule 11 colloquy itself.

Errors in In-Court Translation Didn’t Render Trial Fundamentally Unfair

US v. Sandoval: Sandoval and his two codefendants were members of MS-13 charged with attempting to murder two people (along with related drug and racketeering activities). At trial, a cadre of translators operated so that the defendants and jury could understand proceedings (some of the witnesses were not English speakers). At one point, the district court received a note from a juror stating they were “completely fluent in Spanish and the translation was really poor today.” The district court made additional inquiries, but eventually denied the defendants’ motion for a mistrial due to translation errors.

On appeal, the Fourth Circuit affirmed the defendants convictions. Noting that the “basic constitutional inquiry” when it comes to problems with interpretation is “whether any inadequacy . . . made the trial fundamentally unfair,” the court concluded that the issues where did not. The court first held that issues here were not “structural” in that they did not “infect the entire trial process,” only portions of testimony on one day. The same lack of broad-scale error led to a conclusion that the trial was not fundamentally unfair, with the court concluding that the issue upon which there was some confusion was not “material to the jury’s guilty verdict on any count.” At bottom, there was no abuse of discretion in denying the request for a mistrial. The court also held that post-trial disclosure of a Government’s witness being investigated for malfeasance did not require a new trial, as the malfeasance involved was not the kind that called the witness’ credibility into question (and his testimony was broad testimony about the workings of MS-13, not the facts of the particular case).

No Error in Prohibiting Defendant from Presenting Evidence of Mental Condition in Hate Crimes Case

US v. Hudak: Hudak was charged with two counts of intimidation based no race or ethnic status for incidents in which he punched and kicked a neighbor (who was of Mexican descent) and a road rage incident in which he punched another the window of another driver (who was black) “four or five times” before following him to his apartment. In both incidents, Hudak let loose a stream of racist and ethic invective. At trial, Hudak’s defense was that he had not engaged in the incidents “because of the victim’s race, color, or national origin” and sought to admit expert testimony that he suffered from “serious mental health issues” that led to him being “enraged.” The district court did not allow the evidence to be admitted. The district court allow evidence to be admitted about Hudak’s collection of Nazi and other memorabilia in response to statements he made during his testimony. Hudak was convicted on both counts and sentenced to 41 months in prison.

 On appeal, the Fourth Circuit affirmed Hudak’s conviction. As to the mental health testimony, the court first noted that the report presented to support the testimony related to Hudak’s competency to stand trial, not his mental state at the time of the incidents. Regardless, the proffered evidence “was not particular relevant to the factual question facing the jury.” As to the Nazi memorabilia, the court noted that the district court had excluded such evidence prior to trial, but during his testimony Hudak mentioned the collection and that he acquired it “because of the history of war . . . not any racisms, not any hate.” That opened the door for the Government to provide details of the collection.

Court Affirms Abuse-of-Trust Enhancement Where Defendant Lied About Qualifications to Victims

US v. Brewer: Brewer pleaded guilty to wire fraud for his part in a scheme in which he defrauded victims by promising to invest funds given by them (only to spend the money for himself). He did this by falsely representing himself as “a wealth and experienced investor” and promising guaranteed returns. He created fictional documents to further the scheme, provided fictitious updates on the investments’ progress, and stalled when victims attempted to access their returns. At sentencing he admitted that he “took people’s trust” and “let them down.” The district court imposed a top-of-the-Guidelines 33-month sentence after imposing a two-level enhancement for abuse of a position of trust.

On appeal, the Fourth Circuit affirmed Brewer’s sentence. Applying clear error review (rejecting Brewer’s argument for de novo review) and stressing the individualized nature of the issue, the court concluded that the district court did not err in imposing the abuse-of-trust enhancement. Evidence showed that Brewer held himself out as an expert investor who had significant discretion in how to invest funds. It didn’t matter that he was not actually in a position of trust, so long as victims perceived him to be. The court also rejected Brewer’s Campbell-based argument that the abuse-of-trust Guideline itself was vague as to whether it applied to defendants falsely claiming to hold positions of trust.

Second Amendment Doesn’t Allow for Possession of Firearm While Under Indictment

US v. Jackson: In 2020, Jackson was charged in Arizona with (essentially) unlawful possession of a short-barreled rifle. After an initial charge he “lawfully acquired” a handgun, after which he was indicted on the state firearm charge. While that charge was pending Jackson was arrested in Maryland for carrying the handgun without a permit. He was then charged in federal court with possession of a firearm while “under indictment” for a felony. Jackson unsuccessfully moved to dismiss the charge, arguing that it violated the Second Amendment, and was sentenced to time served.

On appeal, the Fourth Circuit affirmed Jackson’s conviction. Applying Bruen, the court rejected the Government’s argument that Jackson could not pass step one of that analysis, concluding that while “historical limitations on firearms rights matter . . . they just matter at Bruen step two.” So, although Jackson’s possession of the handgun fell generally under the scope of the Second Amendment, that history still required a conclusion that the regulation was valid. In reaching that conclusion, the court relied on the history of surety laws (as the Supreme Court relied upon in Rahimi) and “circuit precedent . . . that legislatures can rely on categorical judgments (and past conduct) to disarm those who might be expected to misuse guns.”

Court Affirms Wire Fraud Convictions

US v. Golestan: Golestan (a naturalized United States citizen) was founder and CEO of Micfo, a company that provided Internet services. Starting in 2014, the company fictitious other companies to acquire lots of assigned IP addresses for resale, eventually obtaining 1.3 million of them and over $3 million in profits. Eventually, Golestan and Micfo were both charged with numerous counts of wire fraud. Golestan, both for himself and Micfo, wound up pleading guilty to all counts midway through a bench trial. After his motion to withdraw his guilty pleas were denied, Golestan was sentenced to 60 months in prison and Micfo to 30 days probation.

On appeal, the Fourth Circuit affirmed both Golestan and Micfo’s convictions, concluding that the district court did not err in denying his motion to withdraw the guilty pleas for several reasons. First, the court held that while the district court did violate Rule 11(b)(1)(O) by not informing Golestan that “if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future” as part of his plea colloquy. However, the error did not impact Golestan’s substantial rights because the rule only applies to non-citizens, which Golestan was at the time. Second, the court concluded that the Supreme Court’s recent decision in Ciminelli did not undermine the wire fraud convictions as it involves a theory that was not at issue in his case. Finally, the court held that the record supported the conclusion that Golestan had the authority to enter a guilty plea on Micfo’s behalf.

State Court’s Unreasonable Factual Conclusions About Use of Attorney/Client Privileged Material Required Remand

Kaur v. Warden: In October 2013 a woman was shot and killed outside her home in Maryland. Arrested shortly thereafter in Tennessee (where they lived) were her ex-husband, Taneja, and his new wife, Kaur, who were both charged with first degree murder. At a joint trial, both were convicted, on the state’s theory that one or the other had done the actual shooting.

Kaur filed a motion for new trial, along with an affidavit from her trial attorney, arguing that she had received ineffective assistance of counsel, particularly because she had been incorrectly informed that she could not testify on her own behalf due to marital privilege. Proceedings resulting in a new trial ensued, during which Kaur was required to disclose “all investigative and trial files belonging to Kaur’s defense counsel,” which disclosed the possibility of a piece of evidence (a second wig potentially used during the shooting) about which the state did not know. She also testified at length about what her trial testimony would have been. The district court granted Kaur’s new trial motion.

However, the trial court allowed the same prosecutors who appeared at the first and second trials to conduct the evidentiary hearing, meaning that they had considerable knowledge of attorney/client protected facts produced during that proceeding. The trial court entered a weak protective order that largely left the issue of just want information the state might be able to use at the second trial up in the air. At the second trial, the state shifted its theory to Taneja being the shooter and Kaur acting as an accomplice, relying heavily on the second wig. Kaur decided not to testify at the second trial out of concerns that she could be cross-examined based on privileged material that had come out during the hearing. Kaur was again convicted.

The Maryland appellate court affirmed Kaur’s conviction, assuming (but not deciding) that her Sixth Amendment rights had been violated, but concluding she had not been prejudiced. Kaur sought §2254 relief in the district court, which denied her motion, but did issue a certificate of appealability on the issue of whether Kaur’s Sixth Amendment right to counsel was violated.

On appeal, the Fourth Circuit vacated the district court’s order and remanded for further proceedings. Looking to the state appellate court decision, the court concluded that the state court was based on “an objectively unreasonable determination of the facts in light of the evidence presented in the state court proceedings.” Specifically, the court found error with two conclusions: First, that the disclosure of the second wig evidence actually helped Kaur’s case, rather than strengthened the state’s case (the state referenced the second wit 13 times in closing). Second, that Kaur had not adequately set forth what she would have testified about at the second trial so it was impossible to determine how it might have impacted the trial. However, because the state court had assumed, rather than deciding, whether a Sixth Amendment violation had occurred, the court remanded for an initial determination on the merits of that claim.

Career Offender Predicate Comparisons Made at Time of Sentencing, Not Time of Original Conduct

US v. Nelson: Nelson pleaded guilty to a drug offense and being a felon in possession of a firearm. At sentencing, the district court classified him as a career offender based on a 2017 Virginia drug distribution conviction and a 2012 federal conviction for distribution of crack. He was sentenced to 151 months in prison, the bottom of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed Nelson’s sentence, concluding that both prior convictions were “controlled substance offenses,” but for different reasons. As to the Virginia conviction, the court rejected Nelson’s argument that the statute at issue there was similar enough to the West Virginia one in Campbell for that case to apply. Instead, the court found it closer to the federal statute it concluded in Groves was a controlled substance offense. As to the federal conviction, the court rejected Nelson’s argument that it was no longer a controlled substance offense because it covered a pair of substances (a cocaine derivative and “hemp-type marijuana”) that are no longer covered by Schedule I or II. Relying on prior precedent, and the Supreme Court’s recent decision in Brown, the court concluded that a “time of sentencing” test is appropriate and so long as “every substance that could have supported his 2012 conviction was in schedule I or II at the time of his present sentencing.” Because Nelson’s prior conviction involved crack cocaine, which is still covered, the conviction counted as a controlled substance offense.

Officers Searching for Subject of Arrest Warrant Were Able to Detain Defendant Who Was Not That Person

US v. Morillo-Lopez: Members of a state-federal task force had a warrant to arrest a person suspected of armed robbery and information that he would be at “one of a few specific residences” in the same block. Officers were armed with a photograph and physical description, Surveilling the block, officers saw two or three men “at least one of whom” matched the description of their target, leave one of the homes and get into a Ford Explorer that then drove away. The Explore stopped at a convenience store and picked up two more men, then went to a nearby gas station.

There officers approached and found M-L in the driver’s seat of the Explorer, with another man in the back seat. An officer “did not believe the picture eliminated M-L” as the target of the warrant and had a brief interaction with him, during which he discovered a firearm in a “cross-body satchel” that was “tightly affixed” to M-L’s body. Another officer with a “fingerprint identification machine” confirmed that the backseat passenger, not M-L, was the wanted man. Nonetheless, because M-L was in the United States unlawfully he was charged with unlawful possession of a firearm. After his motion to suppress was denied, M-L was convicted at trial and sentenced to 8 months in prison.

On appeal, the Fourth Circuit affirmed M-L’s conviction. M-L’s primary contention was that his seizure and search of his satchel violated the Fourth Amendment because there was no evidence that he was engaged in any ongoing criminal activity. The court rejected that argument, holding that because the officers were executing an arrest warrant “there is no additional requirement that officers also have reasonable suspicion of then-ongoing criminal activity.” That M-L was the wrong guy did not make the seizure unlawful, as officers had sufficient evidence to “eliminate a substantial portion of innocent travelers.” The court also found no clear error in the district court’s conclusion that M-L consented to the search of the satchel. The court also held that the evidence was sufficient to sustain M-L’s conviction and that its prior precedent rejecting a Second Amendment challenge to 18 U.S.C. § 922(g)(5) was unchanged by Bruen and Rahimi.

District Court’s Noting of “Exceptions” by Defense Counsel at Suppression Hearing Did Not Restart Speedy Trial Act Clock

US v. Myrick: Myrick fled from a traffic stop, eventually crashing into a tree before running away. In the car, officers found drugs and guns. They tracked down Myrick (via DMV paperwork in the car) and arrested him. Initially, Myrick was charged only with possession with intent to distribute methamphetamine, but a superseding indictment returned four months later added charges related to the firearms and cocaine. On the day of trial, Myrick filed a pro se motion arguing that his Speedy Trial Act rights had been violated. The district court denied the motion, concluding that sufficient time had been excluded from STA calculations to render the trial timely. Following Myrick’s conviction, his (new) counsel filed a renewed STA motion, arguing that the 16 days between the conclusion of a pretrial motions hearing and the district court’s written ruling on the motion to suppress should not be excluded from the STA calculations. The district court denied the motion and sentenced Myrick to 270 months, the bottom of the calculated Guideline range.

On appeal the Fourth Circuit affirmed Myrick’s convictions and sentence. The primary argument involved the STA issue which, as the court pointed out, involved only the original methamphetamine charge, not the two later charges in the superseding indictment (for which trial was timely whatever was excluded from the STA calculations). The court rejected Myrick’s argument that the 16 days between suppression hearing and written opinion shouldn’t be excluded because the district court had actually denied the motion to suppress at the hearing itself. Myrick pointed to the district court taking note of a pair of “exceptions” by defense counsel related to particular issues at the hearing, but the court concluded those were not the same as a ruling on the motion to suppress itself, which only came in the written opinion. Therefore, the 16-day gap should be excluded.

Defendant Could Not Withdraw First Two Guilty Pleas After Third Case Uncovers Search Warrant Anomaly

US v. Milam: First, Milam, “the leader of the Aryan Kings” gang, was charged with being a felon in possession of a firearm after the execution of a search warrant at his home uncovered drugs and multiple firearms. He pleaded guilty without a plea agreement. Second, months later (and after his initial plea), Milam was charged in a second indictment with drug offenses related to the search. He also pleaded guilty to that indictment, but pursuant to a plea agreement.

While in custody awaiting sentencing, Milam “began to receive drugs and other contraband” mailed to him from gang members disguised as “legal mail” bearing the return address of Milam’s attorney. This blew up when a package was “returned” for insufficient postage to his lawyer (who opened it, found drugs, and promptly withdrew). Milam also assaulted “multiple sheriff’s deputies” during an incident at the jail. Third, therefore, Milam was charged with assaulting persons assisting federal law enforcement. During the pendency of that case, Milam’s new lawyer noted that the search warrant underlying the first two cases was missing every other page. When asked the Government provided a complete copy (there had been a scanning error during the initial discovery prep). Milam filed a motion to withdraw his prior guilty pleas, which was denied. He then pleaded guilty to the assault charge without a plea agreement. Ultimately, he was sentenced to 300 months in prison, a variance down from the advisory Guideline range of 360 months to life.

On appeal, the Fourth Circuit affirmed Milam’s convictions and sentence. The court held that the district court properly denied Milam’s motion to withdraw his first two guilty pleas. Not only were the Rule 11 hearings sufficient to show that Milam entered his pleas knowingly, but the late revelation of the search warrant did not undermine that. Particularly because the full search warrant and affidavit only made any potential suppression argument weaker. The court also agreed that Milam’s first lawyer had not been ineffective, crediting her testimony that she discussed the warrant issue with Milam, but that he was determined to enter a quick guilty plea in hopes of heading off the Government filing additional charges. The court also held that there as no error in denying Milam credit for acceptance of responsibility, although the Government agreed to it in the second-charge plea agreement, given Milam’s later conduct. Finally, the court concluded that Milam’s sentence was substantively reasonable.

Court Vacates Prison Contraband Conviction on Jurisdictional Grounds

US v. Perez: Perez was incarcerated at FCI Petersburg for possessing child sex abuse material when he was found in possession of images he had made involving children engaging in sexual acts that “looked almost real.” As a result, he was charged with producing and possessing obscene visual depictions of the sexual abuse of children. At the conclusion of his bench trial, Perez argued that the Government had not proven that FCI Petersburg was “in the . . . territorial jurisdiction or possession of the United States” and, therefore, he should be acquitted. The district court disagreed, taking judicial notice that FCI Petersburg “a federal prison, falls under federal jurisdiction.”

On appeal, a divided Fourth Circuit reversed Perez’s conviction and remanded for additional proceedings. As an initial matter, the court was required to determine whether the jurisdiction hook involved was a matter to be resolved by the factfinder or the court as a question of law. The court concluded that it was mixed, with factual determinations about what occurred where being factual issue, but questions about the impact of that being legal questions for the court. While the district court did not error in that manner, the court did conclude that it erred in not doing the required three-step analysis for determining whether something is within federal jurisdiction. Because that was, ultimately, a legal question for the court to decide, the court ordered the case remanded for additional proceedings on the issue.

Judge Wynn issued a short concurring opinion, emphasizing that the fact/law issue would have been different if Perez has a jury trial. Had it been, “I doubt that we could remand this case without infringing upon Perez’s Sixth Amendment right to trial by jury.”

Judge Harris concurred in part and dissented in part, agreeing that the district court did not do the proper three-step analysis, but arguing that because the Government “did not prove facts necessary to satisfy all the elements of the criminal offense with which Perez was charged,” his conviction must be reversed.

Congrats to the Defender office in the ED Virginia on the win! 

Defendant Did Not “Use Fire” During Domestic Violence Case By Attempting to Burn Dead Victim’s Body

US v. Florentine: Florentine kidnapped his wife, taking her from North Carolina to South Carolina before killing her. After she was dead, Florentine buried her body in a “makeshift grave” and set it on fire. In addition to being charged with interstate domestic violence resulting in death, use of a firearm, and obstruction of justice, Florentine was charged with use of fire to commit a felony (domestic violence). He unsuccessfully moved to dismiss that count, arguing that the domestic violence offense was complete prior to his use of fire. Florentine pleaded guilty to all four counts and was sentenced to a total of 360 months in prison – 240 months to be served concurrently on the first three counts, plus a consecutive 120-month sentence on the use of fire charge (the mandatory minimum).

On appeal, the Fourth Circuit reversed the district court’s denial of Florentine’s motion to dismiss, but ultimately concluded that resentencing was not required. The court noted that “the critical statutory issue in this appeal is determining when the commission of the predicate felony, interstate domestic violence . . . came to an end.” It rejected the Government’s argument that it was a continuing offense that extended to attempts to cover up the offense, concluding that the plain language of the statute shows that the offense ends when the victim of the domestic violence is dead. That is because the language of the statute is involves causing “a spouse [or partner] . . . to travel in interstate commerce” and “once a person has died, they are no longer anyone’s ‘spouse’ or ‘partner.’” As a result, Florentine’s conviction on that count had to be vacated. However, resentencing was not required, as the district court made clear at sentencing that if the use of fire count had been dismissed it would have imposed the same sentence (even though it would be an upward variance).

No Fourth Amendment Search in Drug Dog Sniff of Common Hallway Outside Apartment

US v. Johnson: Police suspected Johnson was selling drugs from his apartment in Maryland, but didn’t feel confident they had enough evidence to secure a warrant. With the permission of Johnson’s landlord, at 3am in the morning, an officer took a drug-sniffing dog to Johnson’s front door – on the second floor of the building, near the elevator. The dog alerted on the seam of Johnson’s door. Officers obtained a warrant and the resulting search uncovered drugs and related evidence. Johnson unsuccessfully moved to suppress, arguing that the dog sniff had violated the Fourth Amendment. He was convicted by a jury and sentenced to 150 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Johnson’s motion to suppress, concluding that the dog sniff was not a “search” for Fourth Amendment purposes. First, the court held that Johnson lacked an expectation of privacy because the dog’s sniff could detect only contraband, in which nobody has a legitimate expectation of privacy. Second, the court held that brining the dog to Johnson’s front door was not a trespass, as the dog remained in a common area accessed by numerous others.

Defendant “Used” Firearm that Was Visible in Vehicle During Kidnapping

US v. Faulls: Faulls kidnapped his “intimate partner,” following previous incidents of domestic violence, some of which involved a gun. As she was getting in Faulls’ truck she saw a gun in the back seat (the door handle had been rigged so she couldn’t get out). She forgo at least one chance to escape because she worried that Faulls would “go out and get that gun and maybe bring it in and hurt other people.” She eventually did escape, after which Faulls was arrested and the gun recovered from the bed of the truck. After being convicted on multiple offenses, Faulls was sentenced to 295 months in prison.

On appeal, the Fourth Circuit affirmed Faulls’ sentence. At issue was a two-level enhancement to his Guideline offense level for “use” of a dangerous weapon. Faulls argued that while the gun was present during the kidnapping, he never actually “used” it. The court disagreed, concluding that a gun is used when “it is employed to create a personalized threat of harm rather than to generally intimidate.” The enhancement does not require that the gun be pointed at a victim. Rather the “combined force” of the incidents that occurred “went beyond non-specified intimidation.”

Reversing Motion to Dismiss Based on Equal Protection Violation in Traffic Stop

US v. Moore: One evening in Richmond, police officers stopped three different vehicles that all had the same license plate number. The first two drivers were allowed to go. The third driver “fled, running several stop signs before crashing into the curb,” with the driver, Moore, then trying to escape on foot. Officers found a gun in the floorboard of the car and Moore was charged with being a felon in possession of a firearm.

Moore filed a motion to suppress in which he argued that the neighborhood in which he was stopped was home to “almost exclusively black residents” and that all the stops were pretextual. At a hearing, Moore presented evidence that “Black drivers were, on average, pulled over more frequently than White drivers.” In supplemental briefing Moore shifted his argument, arguing that the indictment should be dismissed “because the police officers had violated his Fourteenth Amendment right to equal protection by targeting him and other Black residents of the Fourth Precinct, using pretextual stops to search their cars.” An expert witness would confirm that Black drivers were pulled over much more frequently than White ones in Richmond, but admitted the data “revealed a ‘somewhat weak’ but still ‘important’ relationship between race and the likelihood of being pulled over.” He could not, however, determine whether any particular stop was a result of bias or profiling. The district court denied the motion to suppress, but granted the motion to dismiss, concluding that Moore had proven selective enforcement of traffic laws along racial lines and that “this selective enforcement led to his current charges.”

On appeal, the Fourth Circuit reversed the dismissal of the indictment against Moore. The court noted that in order to prevail on an equal protection claim Moore had to prove both a discriminatory effect in enforcement as well as that the enforcement was motivated by a discriminatory purpose. Going to the second factor, the court concluded that “there is a complete absence of evidence that the officers acted with discriminatory purpose,” much less the clear evidence required, noting that aside from the stop, that Moore fled. The expanded nature of the inquiry in the district court, bolstered by the statistical information, “was insufficient to show a discriminatory purpose.”

Court Affirms Denial of Compassionate Release in Carjacking Case

US v. Burleigh: In 2010, Burleigh (and another person) carjacked and kidnapped a driver of a recently-parked car, forcing him to withdraw money from multiple ATMs. Burleigh “punched” the victim “multiple times,” threatened to kill him and his family, as well as shoving a shotgun in the victim’s “mouth and forced him to suck on its barrel.” Burleigh pleaded guilty to being a felon in possession of a firearm and two §924(c) firearm counts. He was sentenced to a total of 545 months in prison (420 months derived from the §924(c) charges). In 2020, Burleigh filed a compassionate release motion based on his young age, rehabilitation while incarcerated, and the stacked §924(c) sentences. While recognizing Burleigh’s rehabilitation and the impact of the §924(c) charges, the district court noted that Burleigh was 24 years old when the offense was committed and concluded that a reduction was not warranted in light of the serious nature of that offense.

A divided Fourth Circuit affirmed the denial of Burleigh’s compassionate release motion. It concluded that the district court by “its express terms” considered the §924(c) disparity issue but “simply did not find compelling” the argument that Burleigh would get a lower sentence today, noting that it did not feel that the disparity warranted a reduced sentence. The court also concluded that the district court had properly considered Burleigh’s arguments in total, not just as separate individual bases for relief. Finally, the court found the district court’s discussion of the §3553(a) factors sufficient.

In dissent, Judge Gregory argued that the district court’s consideration of those issues was not sufficient and, therefore, the denial of Burleigh’s motion was an abuse of discretion.

Facial Challenge to §944(g)(4) Fails

US v. Gould: Between 2016 and 2019 Gould was (temporarily) committed to mental health facilities four times. In 2022, officers found a shotgun in Gould’s home. As a result, he was charged with possession of a firearm after having been “committed to a mental institution” under 18 U.S.C. §922(g)(4). Gould moved to dismiss the indictment, arguing that it violated the Second Amendment. The district court denied the motion and Gould pleaded guilty, ultimately being sentenced to time served plus three years of supervised release.

On appeal, the Fourth Circuit affirmed the denial of Gould’s motion to dismiss. Utilizing the two-step analysis from Bruen, the court first concluded that the applicable conduct at issue – Gould’s possession of  a shotgun in his home – fell within the confines of the Second Amendment. The court then held that §922(g)(4) was not a permanent disability because many states (including West Virginia, where Gould lived) had mechanisms to get relief from its provisions. In light of that, and considering the nature of Gould’s facial challenge, the court ultimately concluded that §922(g)(4) did not violate the Second Amendment, as historical authority showed longstanding regulations related to disarming dangerous peoples and the treatment of the mentally ill who would fall into that category.

NOTE: I was co-counsel on this case, along with my colleague Lex Coleman from the SDWV FPD Office.