Friday, December 30, 2005

Fourth Upholds Murder-for-Hire, Firearm Convictions; Another Hughes Remand

US v. Cardwell: Cardwell and Hinson were convicted after a jury trial of charges related to a murder-for-hire scheme. Hinson was also convicted of being a felon in possession of a firearm. Hinson and Eric Brown were under investigation for drug trafficking. Brown was arrested and agreed to cooperate with the investigation against Hinson, who soon learned of Brown's status as CI.

Another drug dealer, Thomas Cole, who had previously dealt with Hinson and Cardwell, also agreed to assist investigators after he was arrested. Cole, Hinson, and Cardwell had a meeting in which they discussed the need to kill Brown because of his work with investigators. Cole agreed to do the job, while Cardwell agreed to provide the address and picture of Brown and his wife (who needed to be killed, too) to Cole.

Months passed, during which talks about murdering the Browns continued, but nothing was done. Investigators, frustrated by the lack of progress, had Cole bypass Cardwell deal directly with Hinson. Hinson told Cole where to find the Browns and gave him $1000 "traveling money." A fake news story in the local paper about the disappearance of the Browns convinced Hinson that the deal was done, so he paid the remaining debt to Cole in cash and cocaine.

Police went to Hinson's home to arrest him and during a subsequent search uncovered a firearm. Hinson was Mirandized at his home, but later told investigators on the way to the jail that if he had known the cops were coming he would have gotten the gun and started a gunfight because he would rather die than go to jail.

Hinson and Cardwell challenged their convictions on various grounds, all of which the Fourth Circuit rejected.

First, Hinson argued that the felon in possession charge against him was improperly joined with the murder-for-hire charges and that it should have been severed. The Fourth held that Hinson's possession of the gun, and his statement about using it, was related to the murder-for-hire charges because it indicated that he would have used it to prevent arrest on those charges, analogizing to a felon-in-possession charge based on a gun seized from a robbery suspect shortly following the robbery. In addition the could held that the district court properly denied Hinson's motion to sever because he suffered no prejudice on the murder-for-hire counts from the introduction of the fact of his prior felony on the gun charge. Next, Hinson argued that his statement about what he would do with the gun was introduced in violation of Miranda. The Fourth disagreed, holding that Hinson was given Miranda warnings, admitted that he understood his right to remain silent, and never invoked it.

Cardwell challenged the sufficiency of the evidence on the two charges of which he was convicted, conspiracy to commit murder and solicitation to commit murder. On the conspiracy charge, the court held that it was not necessary for Cardwell to have performed an overt act in furtherance of the conspiracy as long as some member of the conspiracy did so. On the solicitation charge, the court held that even though Cardwell was eventually bypassed by Cole because the deal to murder the Browns was not materializing, solicitation required only that the defendant persuade another to commit a crime, which Cardwell did.

Both Cardwell and Hinson challenged their sentences under Booker and Hughes and won remands for resentencing.

December Opinions of Note

Trying to play a little bit of catch-up, here are three earlier published opnions from this month.

US v. Alerre: Alerre and his co-defendants were doctors in South Carolina who were convicted of conspiracy, money laundering, and various drug distribution charges stemming from a prescription-selling and fraudulent medical practice. They were convicted on various charges after a jury trial. On appeal, Alerre and company argued that both that their defense attorneys were ineffective and the AUSAs had engaged in misconduct. That accusation was based largely on the use of the wrong "standard for criminal liability" when applied to the way their medical practice operated. Specifically, Alerre and company argued that the parties utilized a civil standard and that they were actually convicted of civil medical malpractice, not criminal distribution of drugs. The Fourth Circuit affirmed, rejecting that argument. Alerre and company's sentences were vacated and remanded per Booker and Hughes.

US v. Nunez: Jenny and Carlos Nunez were convicted by a jury of various drug conspiracy and distribution charges. Jenny gave a statement to DEA investigators prior to trial in which she implicated herself, Carlos, and others. Carlos filed a motion to sever the trials, arguing that a redacted statement would not sufficiently protect his Sixth Amendment rights. The district court disagreed and proceeded to a joint trial. At trial, the district court limited the use of the DEA report containing Jenny's statement due to Crawford. It was not introduced into evidence, although a DEA agent testified about what he heard Jenny say during her statement. After the jury began to deliberate, it asked for a copy of the DEA report of Jenny's interview. The Government moved to reopen evidence and introduce the report, which the court allowed, because it had been "extensively used" during direct examination of the DEA agent. The Nunezes objected. The jury got the report and convicted both Jenny and Carlos. On appeal, the Fourth Circuit reversed, holding that the district court erred in reopening the evidence after jury instructions had been given and after deliberations had begun.

US v. El Shami: El Shami was deported in 1994 after being convicted of two felonies in New Jersey. At the time he was a lawful permanent resident and married to a United States citizen. He returned to the US without permission and was discovered in Virginia in May 2003 and charged with unlawful reentry. El Shami moved to dismiss the charge against him, arguing that his deportation proceedings did not provide him with adequate due process protections. Specifically, he did not receive notice of his final deportation hearing and learned of his deportation nine months after it was ordered when INS agents arrested him. The district court denied the motion, holding that even if El Shami's due process rights were violated, he suffered no prejudice. The Fourth Circuit, 2-1, reversed. It noted that there was no evidence presented that El Shami received notice of his deportation hearing, in spite of residing continually at the address which he provided to INS when deportation proceedings were begun. In addition, he was prejudiced because there were sufficient mitigating factors to suggest that he may have avoided deportation had he been provided with judicial review. Judge Widener dissented, arguing that El Shami had not proven that he had a chance of remaining in the US.
Congrats to the Defender office in the Eastern District of VA for the wins in Nunez and El Shami!