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.

Pension Can Be Seized to Satisfy Restitution Obligation, With Limitations

 US v. Frank: Over the course of a decade, Frank embezzled millions of dollars from his employer. He pleaded guilty to wire fraud and was sentenced to 78 months in prison and a restitution obligation of more than $19 million, of which the Government had recovered $7 million. To recover more, the Government sought access to Frank’s 401(k) retirement account, which totaled about half-a-million dollars. The district court granted the Government’s motion and ordered the disgorgement of the retirement funds to pay the restitution obligation.

On appeal, the Fourth Circuit affirmed the district court’s decision, but with some limitations. Primarily, the court rejected Frank’s argument that ERISA prohibited the Government from taking his retirement funds to pay restitution obligations. The court held that the ERISA “anti-alienation provision” that is designed to protect retirement benefits from third parties had to give way to the provision of the Mandatory Victims Restitution Act that courts “shall order” payment “notwithstanding any other provision of law.” However, that does not mean that the Government could access all the funds immediately. Rather, the regular tax collection provisions that would apply if Frank were to withdraw the funds himself applied to the Government’s withdrawal of the funds. In other words, the Government stood in the same position as Frank himself when it came to penalties and restrictions on accessing the 401(k) funds. The court remanded to the district court to consider how those provisions applied factually to Frank’s case.

Counsel’s Conflict of Interest at Plea Withdrawal Hearing Required Remand

US v. Glover: Glover was charged with numerous drug offenses and eventually pleaded guilty to two of five counts, subjecting himself to a 120-month mandatory minimum sentence. Initially, Glover tried to hire an attorney, but the attorney turned over the funds Glover sent him to the DEA, fearing they were drug proceeds. Glover tried to argue pro se that the funds were not tainted, but the district court stated it would not address the issue unless Glover agreed to represent himself going forward rather than be represented by appointed counsel. Glover did not want to represent himself and pleaded guilty while represented by counsel. However, Glover then filed a pro se motion seeking to withdraw his plea, which included “numerous allegations of misconduct” by his appointed counsel. At a hearing on the motion, Glover argued that his counsel had a conflict of interest, but the district court declined to appoint new counsel (and Glover again state he did not want to proceed pro se). As to the motion to withdraw the guilty plea, Glover’s counsel stated that the Rule 11 colloquy had been sufficient and “that a plea withdrawal hearing was not in Glover’s best interest” and that he “did not endorse or file such a motion.” Counsel stated he would “say more in a hearing under 28 USC 2255,” that the pela agreement “was very favorable to his client,” based on the facts of the case and that he was not surprised that Glover took the deal. The district court concluded that Glover’s allegations against counsel were not credible, denied the motion, and imposed the 120-month sentence.

On appeal, the Fourth Circuit reversed the district court’s decision to deny Glover’s motion to withdraw his guilty plea without having new counsel appointed for that hearing. First, however, the court rejected Glover’s arguments regarding the seized funds, noting that his guilty plea waived “all nonjurisdictional defects” in proceedings that occurred before then. On the plea withdrawal issue, however, the court noted the Government’s position that “this claim implicates whether Glover’s counsel was constitutionally effective” and ultimately concluded that his performance was not. The crux of Glover’s motion “that his lawyer inappropriately coerced him into taking” the guilty plea by failing to prepare any suppression motion. The court also noted that counsel “argued against Glover’s motion to withdraw” which “made his conflict evident.” Given Glover’s allegations, it was difficult for counsel to meet his obligations to give his “undivided loyalties” to the client, as the “alleged conflict went well beyond differences in strategy . . . it would amount to malpractice.” While the truth of the allegations against counsel may be relevant on remand, it was not relevant on appeal as to whether such remand was required in the first place.

Judge Quattlebaum concurred, noting that “I get there by a slightly different path,” arguing that actual ineffective assistance of counsel was not the issue, but rather Glover’s right to conflict free counsel once he raised allegations suggesting a conflict.

Court Affirms Robbery & Firearm Convictions

 US v. Caldwell: In 2016 two men (neither of them Caldwell) robbed a bank in North Carolina armed with firearms. GPS trackers embedded in the stolen cash allowed police to track them with a presence that “would have been clear to anyone in the area that the place were there and were engaged in a manhunt.” Caldwell was found hiding “amid vines and weeds along a fence” nearby on top of a “black bag containing nearly all of the missing cash as well as one of the GPS trackers.” Caldwell told police (and later testified at trial) that he had been carjacked by two men who pistol whipped him as they fled and he only regained consciousness when he was bitten by a police dog. Police also found an abandoned car and the other GPS tracker. A further search of the car uncovered a gun, a black ski mask, and other items of clothing. A second search of the trunk two weeks later led to the recovery of another gun and more clothing. Caldwell was eventually charged, and convicted at trial (where the two actual robbers testified against him), of conspiracy to commit bank robbery, bank robbery, and firearms violations.

On appeal, the Fourth Circuit affirmed Caldwell’s convictions and sentence, rejecting numerous arguments Caldwell raised. First, the court held that the district court had properly denied Caldwell’s motion to suppress evidence found during both searches of the bar, holding that there was probable cause to search the car and no warrant was required under the automobile exception. That the second search took place two weeks later and after the car had been impounded did not matter, so long as probable cause still existed (which it did). Second, the court held that the district court did not abuse its discretion in denying Caldwell’s motion to disqualify the counsel representing Mitchell, one of the actual robbers and to prevent Mitchell from testifying. Mitchell was represented by a public defender from the same office as an attorney who had represented Caldwell when initially prosecuted in state court, which Caldwell argued created  conflict. A consultation with the state bar confirmed the existence of a conflict, but also a recognizing that it was within the court’s discretion to allow representation of Mitchell to continue through his testimony. In light of the “broad discretion conferred on the court” and the steps taken prior to its decision, the court held there was no abuse of discretion. Third, the court rejected Caldwell’s arguments regarding evidentiary issues. Finally, the court concluded that Caldwell’s firearm convictions were legally sufficient in light of recent Supreme Court decisions.

Wednesday, July 28, 2021

Unrequested Upward Variance in CP Case Procedurally Reasonable

US v. Williams: Williams sexually exploited a friend’s minor daughter, after “practicing” by “using his pinhole cameras by covertly photographing children on the school bus he drove.” In total, investigators seized over 100,000 images of child pornography. After pleading guilty to one count of production of child pornography, Williams faced an advisory Guideline range of 210 to 262 months in prison. At sentencing, Williams argued for a variance down to the mandatory minimum of 180 months in prison, while the Government sought a sentence at the top of the range. The district court rejected both arguments and imposed a sentence of 327 months in prison, followed by a life-time term of supervised release.

On appeal, the court affirmed Williams’ sentence. It rejected Williams’ argument that the district court did not provide proper notice before departing from the Guideline range, as the sentence imposed was not a departure at all, but a variance based on applying the 3553(a) sentencing factors, for which such notice is not required. The court also held that the district court did not err by basing its sentence on the fact that the victim had developed emotional problems without providing Williams access to her medical records, noting that he did not request it. Finally, the court held that the sentence was sufficiently explained.