Tuesday, June 27, 2006

Court Rejects Defendant's Attempts to Prevent Substitution of Assets in Forfeiture Proceeding

US v. Alamoudi: Alamoudi pleaded guilty to several charges stemming from a scheme to funnel money to Libya. As part of the plea agreement, Alamoudi agreed to forfeit $910,000 derived from the scheme, including $340,000 already seized by authorities in the UK. A consent order was entered by the district court reflecting that agreement. 18 months after entry of the consent order, the Government moved to seize substitute assets to cover the $570,000 remaining to be forfeited because the Government could not locate any other assets of Alamoudi's. The district court granted the motion.

The Fourth Circuit upheld the district court's decision, rejected three arguments by Alamoudi that the substitution was improper. First, the court rejected the argument that the plea agreement constituted a waiver of the Government's right to seek substitution of assets for forfeiture. Second, the court held that Booker does not apply to forfeiture proceedings (joining the rest of the Circuits to decide the issue) and therefore Alamoudi's Sixth Amendment rights were not violated by the entry of the district court's orders. Finally, the court concluded that the Government had met the prerequisites necessary to seek forfeiture of substitute assets.

Friday, June 16, 2006

Departure Below Mandatory Minimum Requires Explicit 3553(e) Motion by Government

US v. Allen: Allen pleaded guilty to being a felon in possession of a firearm. In the plea agreement, the Government agreed that if Allen provided substantial assistance, it would make a 5K1.1 departure motion. The plea agreement also set forth the possibility that Allen could be classified as an Armed Career Criminal and subject to a 15-year mandatory minimum.

Allen was, in fact, an Armed Career Criminal. At sentencing, pursuant to the agreement, the Government made a motion under 5K1.1 for a one-level offense level reduction, reducing Allen's Guideline range to 151 to 188 months. The Government did not file a motion under 18 USC 3553(e) seeking a departure from the mandatory minimum. Allen argued for a further departure on various grounds, which the district court granted, reducing his Guideline range to 63 to 78 months. The district court sentenced Allen to 63 months in prison.

The Government appealed, arguing that the district court erred in granting Allen's request for a further downward departure and ultimately imposing a 63-month sentence. The Fourth Circuit vacated Allen's sentence, but on different grounds.

The court pointed out that the Government's substantial assistance motion, filed under USSG 5K1.1, could only reduce Allen's Guideline range, not the ACCA mandatory minimum. At oral argument, the Government argued that it intended the 5K1.1 motion to act as a 3553(e) motion as well. Allen agreed, noting that he would not have pleaded guilty if he did not think the Government would only make a 5K1.1 motion. The court refused to "accept the parties' invitation to view the record as suggesting that the Government mad a 3553(e) motion." Therefore, the district court lacked the power to impose any sentence lower than 180 months. The court vacated Allen's sentence and remanded for resentencing.

Wednesday, June 14, 2006

Drug Conspiracy Convicion, with Life Sentence, Upheld

US v. Smith: Smith was convicted after a jury trial of conspiracy to distribute crack and possession with intent to distribute crack. The evidence showed that Smith was a member of a long-running crack distribution operation in western North Carolina. The government filed a section 851 information to enhance Smith's punishment for the conspiracy offense, resulting in a life term for Smith (life on the conspiracy count, 360 months on the possession count, served concurrently).

On appeal, Smith raised various challenges to his conviction on the conspiracy count, all of which the Fourth Circuit rejected. First, he argued that there was insufficient evidence so support the conviction on the conspiracy count, both because he withdrew from the conspiracy after going to prison (never reentering the conspiracy) and that there were actually multiple small conspiracies proven by the evidence rather than one large conspiracy charged in the indictment. The court rejected both arguments, noting that several witnesses testified that Smith sold them crack after he was released from prison and that the evidence clearly showed one conspiracy.

Next, Smith argued that the district court erred in not granting his motion for new trial, on several grounds. The only ground given meaningful discussion by the court was the district court's limitation on Smith's cross examination of police witnesses related to the destruction of evidence (crack) allegedly seized during two arrests of Smith. While concluding that the district court's restriction was error, the error was harmless given the other evidence against Smith.

Smith also challenged the 851 information used to enhance his sentence on Booker grounds. The court rejected that argument, relying on Almendarez-Torres.