US v. Hurwitz: Hurwitz was a physician in Virginia who specialized in treatment of pain, particularly through the use of various narcotics. After some of his patients were busted for selling prescription medications, the investigation led back to Hurwitz. He was charged in a massive indictment with a drug trafficking conspiracy, engaging in a continuing criminal enterprise, healthcare fraud, two counts each of drug distribution resulting in death and serious bodily injury, and 54 other distribution counts.
Prior to trial, Hurwitz sought to suppress evidence seized during the search of his office because the specific items to be seized were not set forth in the warrant itself, but in an attachment to the warrant application, and that the seizure of patient files was beyond the scope of the warrant. The district court denied the motion. At trial, Hurwitz argued that he acted in good faith towards his patients and was therefore not guilty of the charges. The district court declined to give Hurwitz's instruction regarding good faith on the drug charges, but did give one on the health care fraud charges and specifically instructed the jury not to consider good faith on the other charges. Hurwitz was convicted of most of the charges related to drug distribution, but was acquitted on the healthcare fraud charges.
On appeal, Hurwitz raised objections to the district court's denial of his motion to suppress and its failure to give a good faith instruction on the drug charges
The Fourth Circuit rejected the search issue, holding that the particular items to be seized were adequately set forth in an attachment to the warrant application that was incorporated by reference into the warrant. Specifically, the court held that it did not matter that the attachment was not present with the warrant when the search took place.
On the instruction issue, the Fourth Circuit held that the district court erred and reversed Hurwitz's conviction. First, the court held that held that good faith generally is relevant to prosecutions of doctors for drug violations where whether the doctor's actions were not for legitimate medical purposes was an issue. Second, the court held that Hurwitz's proposed instruction was an incorrect statement of law and properly rejected by the court because it propounded a subjective, rather than objective, standard of good faith. However, the court held that the district court still erred because it limited the good faith instruction it did give to the healthcare fraud charges. Finally, the court held that the error was not harmless and required reversal.
Judge Widener dissented on the good faith issue, arguing that "I do not believe good faith should be objective; the two terms are contradictory, it seems to me." He would have approved the instruction offered to the district court by Hurwitz.
UPDATE: The Washington Post has coverage of the case here.
Wednesday, August 23, 2006
Tuesday, August 22, 2006
No Mens Rea for State Violations in 18 USC 1960
US v. Talebnejad: The Talebnejads (father, mother, and son) were all charged with conducting an unlicensed money transmitting business, and conspiring to do so, under 18 USC 1960(b)(1)(A). That section makes it a crime to operate a money transmitting business that affects interstate commerce, that is unlicensed under state law when state law requires a license and state law punishes the lack of a license as a misdemeanor or felony. The Talebnejads ran two money transmitting business in Maryland without the required state licenses. It is a crime to do so in Maryland "knowingly and willfully." The district court dismissed the indictment, holding that 1960(b)(1)(A) requires that the Government prove that the Talebnejad's acted knowingly and willfully, but that the indictment did not make that allegation.
The Government appealed and the Fourth Circuit reversed. The court held that 2001 amendments to section 1960 removed proof of mens rea for the state offenses from the elements of the offense. In concluding, the court held that proof of mens rea applied only to the "factual elements" of the offense, not the "legal elements" of the offense. In addition, the court concluded that a change to the relevant Maryland statutes during the course of the Talebnejad's charged offenses did not render the indictment deficient. In a partial dissent, Judge Gregory argued that the 2001 amendments to section 1960 removed only the scienter requirement for a purely federal offense (violating federal registration regulations), not offenses based on state regulation requirements.
The Government appealed and the Fourth Circuit reversed. The court held that 2001 amendments to section 1960 removed proof of mens rea for the state offenses from the elements of the offense. In concluding, the court held that proof of mens rea applied only to the "factual elements" of the offense, not the "legal elements" of the offense. In addition, the court concluded that a change to the relevant Maryland statutes during the course of the Talebnejad's charged offenses did not render the indictment deficient. In a partial dissent, Judge Gregory argued that the 2001 amendments to section 1960 removed only the scienter requirement for a purely federal offense (violating federal registration regulations), not offenses based on state regulation requirements.
If the Fanny Pack Does Not Fit, You Must (Not) Acquit
US v. Williams: Williams was tried and convicted of being a felon in possession of a firearm. At trial, two police officers testified that they approached Williams outside of a Baltimore apartment complex when they suspected him of selling bootleg CDs and DVDs. Williams was placed under arrest because he lacked a vendor's license and was searched. During the search, according to one officer, Williams was wearing a fanny pack around his waist. When the officer removed the pack, he noticed a bulge in Williams's waistband that contained a firearm.
At trial, Williams stipulated to his prior felony convictions and did not intend to testify. However, he wanted to demonstrate to the jury that the fanny pack seized by the police was too small to fit him. The Government objected, arguing that if such a demonstration took place, Williams would have to be subject to cross-examination. The district court agreed, holding that such a demonstration would be "testimony" and require Williams to waive his Fifth Amendment right to be silent. Williams eventually did testify about the encounter with police, denying he possessed a gun (it was left by a man who fled when police approached, as he was the real bootlegger), and put on the fanny pack (it was too small - just like OJ's glove). During cross examination, the Government elicited the nature of Williams's prior convictions, including one for illegally possessing a firearm.
On appeal, Williams argued that the district court erred by considering the demonstration to be the equivalent of testimony requiring cross-examination and the waiver of his Fifth Amendment rights. The Fourth Circuit agreed with this argument, noting that the purpose of cross examination is to probe the capability for recall, bias, etc. of a witness and that such considerations weren't applicable to demonstration evidence (although they would be relevant to the testimony of someone who said the demonstration resembled the real act). However, given the strength of the Government's case, the error was harmless. In addition, the negative evidence that came out during the cross-examination of Williams came not from questions about the demonstration, but from Williams's decision to testify about the encounter with police. Had he limited the scope of his testimony, cross-examination would have been similarly limited. Williams's conviction was affirmed.
At trial, Williams stipulated to his prior felony convictions and did not intend to testify. However, he wanted to demonstrate to the jury that the fanny pack seized by the police was too small to fit him. The Government objected, arguing that if such a demonstration took place, Williams would have to be subject to cross-examination. The district court agreed, holding that such a demonstration would be "testimony" and require Williams to waive his Fifth Amendment right to be silent. Williams eventually did testify about the encounter with police, denying he possessed a gun (it was left by a man who fled when police approached, as he was the real bootlegger), and put on the fanny pack (it was too small - just like OJ's glove). During cross examination, the Government elicited the nature of Williams's prior convictions, including one for illegally possessing a firearm.
On appeal, Williams argued that the district court erred by considering the demonstration to be the equivalent of testimony requiring cross-examination and the waiver of his Fifth Amendment rights. The Fourth Circuit agreed with this argument, noting that the purpose of cross examination is to probe the capability for recall, bias, etc. of a witness and that such considerations weren't applicable to demonstration evidence (although they would be relevant to the testimony of someone who said the demonstration resembled the real act). However, given the strength of the Government's case, the error was harmless. In addition, the negative evidence that came out during the cross-examination of Williams came not from questions about the demonstration, but from Williams's decision to testify about the encounter with police. Had he limited the scope of his testimony, cross-examination would have been similarly limited. Williams's conviction was affirmed.
Friday, August 18, 2006
Appeal of Restitution Calculation Barred By Waiver of "Sentence Imposed"
US v. Cohen: Cohen pleaded guilty to mail fraud and conspiracy to commit health care fraud. As part of his plea agreement, he waived his right to appeal "whatever sentence is imposed." Nonetheless, Cohen appealed, challenging the amount of loss calculation under the Guidelines and for restitution purposes. He argued that the appeal waiver was not valid and that even if it was, the restitution issue was outside the scope of the waiver and could be considered.
The Fourth Circuit rejected Cohen's arguments and dismissed the appeal based on the waiver. First, it held that the record did not show that Cohen's ADHD prevented him from entering a knowing and voluntary waiver of appellate rights. Second, the court held that the Government did not violate the agreement by arguing for the amount of loss it did as there was nothing in the written agreement committing the Government to a certain loss figure. Finally, the court held that Cohen was not in an unequal bargaining position with the Government during the making of the agreement. As to the restitution loss calculation, the court rejected Cohen's argument that restitution was not part of the "sentence imposed" and was therefore outside the scope of the waiver. However, the court did entertain (and reject) an argument that the district court's restitution order exceeded the scope of its statutory authority.
The Fourth Circuit rejected Cohen's arguments and dismissed the appeal based on the waiver. First, it held that the record did not show that Cohen's ADHD prevented him from entering a knowing and voluntary waiver of appellate rights. Second, the court held that the Government did not violate the agreement by arguing for the amount of loss it did as there was nothing in the written agreement committing the Government to a certain loss figure. Finally, the court held that Cohen was not in an unequal bargaining position with the Government during the making of the agreement. As to the restitution loss calculation, the court rejected Cohen's argument that restitution was not part of the "sentence imposed" and was therefore outside the scope of the waiver. However, the court did entertain (and reject) an argument that the district court's restitution order exceeded the scope of its statutory authority.
No Jurisdiction to Hear Appeals of Order Vacating Sentence Prior to Resentencing
US v. Stitt: The Fourth issued a decision in Stitt back in March, in which it affirmed the district court's vacation of Stitt's sentence in a 2255 proceeding. However, prior to issuing the mandate, the court discovered some Supreme Court precedent that indicated that it did not have jurisdiction to hear the appeal. Sure enough - because Stitt had not yet been resentenced, the district court had not entered a final order that was appealable. Accordingly, the court retracted its earlier opinion in the case and dismissed the Government's appeal of the district court's vacation of Stitt's sentence.
Thursday, August 10, 2006
Court Vacates Life Sentences Under Booker
US v. Robinson: Robinson (aka "Heavy") and his codefendants Schuyler ("Sleepy") and Parros were all convicted of conspiracy to distribute cocaine base (as well as substantive offenses) in 1999. Based on judicially found facts, the district court imposed life sentences on Robinson and Schuyler and a 360-month sentence on Parros. While their cases were on appeal, the Supreme Court decided Apprendi. The Fourth considered the application of Apprendi to Robinson & crew's sentences under plain error review and vacated.
At resentencing in 2003, Robinson, et. al., argued that Apprendi prohibited the district court from enhancing their sentences based on judicially found facts. The district court rejected that argument and reimposed the original sentences. On appeal for the second time, in the wake of Blakely, Robinson and friends made the same argument to the Fourth Circuit, which rejected it under Hammoud. The Supreme Court vacated the Fourth Circuit's decision in the wake of Booker, remanding for further considerations.
On remand, the Fourth again vacated the sentences. First, the court concluded that the defendants avoided plain error review because they raised Apprendi/Sixth Amendment objections to the district court's fact finding at their 2003 resentencing hearing. Second, the court held that the district court's enhancement of their sentences based on judicially found facts constituted Sixth Amendment Booker error. Third, the court rejected the Government's argument that the error was harmless, specifically rejecting the Government's attempt to bring Cotton's "overwhelming" and "essentially uncontroverted" standard outside the plain error context. In a concurrence, Judge Neimeyer argued that plain error was the proper standard of review because the defendants had not raised an Apprendi objection at their original trial or sentencing proceedings (as, indeed, they couldn't since Apprendi had not yet been decided). Nevertheless, he joined the majority holding because even under plain error review the sentence required vacation.
Monday, August 07, 2006
"Plainly Unreasonable" Review for Supervised Release Revocation Sentences
US v. Crudup: In this case, the court resolves the issue of what the proper standard of review is for supervised release sentences in a post-Booker world.
Crudup repeatedly violated the terms of his supervised release, eventually leading the district court to revoke Crudup's supervised release and sentence him to the statutory maximum sentence of 36 months in prison.
On appeal, Crudup argued that his sentence was unreasonable, given the 5 to 11 month sentence suggested by the Policy Statements in Chapter 7 of the Guidelines. Before reviewing the sentence itself, the court considered whether that review should be undertaking using an "unreasonableness" standard from Booker or the "plainly unreasonable" standard found in 18 USC 3742(a)(4). After noting that other courts have either utilized the Booker standard or found no substantive difference between the two, the court held that "plainly unreasonable" is the proper standard of review for sentences, such as those imposed for violation of supervised release conditions, that do not have an applicable Guideline. Thus, review of sentences imposed following the revocation of supervised release is unaffected by Booker.
After noting the correct standard of review, the court concluded that Crudup's sentence was not plainly unreasonable.
Crudup repeatedly violated the terms of his supervised release, eventually leading the district court to revoke Crudup's supervised release and sentence him to the statutory maximum sentence of 36 months in prison.
On appeal, Crudup argued that his sentence was unreasonable, given the 5 to 11 month sentence suggested by the Policy Statements in Chapter 7 of the Guidelines. Before reviewing the sentence itself, the court considered whether that review should be undertaking using an "unreasonableness" standard from Booker or the "plainly unreasonable" standard found in 18 USC 3742(a)(4). After noting that other courts have either utilized the Booker standard or found no substantive difference between the two, the court held that "plainly unreasonable" is the proper standard of review for sentences, such as those imposed for violation of supervised release conditions, that do not have an applicable Guideline. Thus, review of sentences imposed following the revocation of supervised release is unaffected by Booker.
After noting the correct standard of review, the court concluded that Crudup's sentence was not plainly unreasonable.
Thursday, August 03, 2006
Repeated Criminal Violations Precludes 5K2.20 Departure
US v. Hillyer: Hillyer was brought in by a construction company to take over a troubled bridge building project over Croatan Sound in North Carolina. The project was running long and was over budget when Hillyer took over, but he got things back on track and completed the bridge.
Once complete, the company needed to remove a temporary bridge that aided the construction process in order to relocated it to another site. Unable to dislodge the temporary bridge's pilings from the bottom of the sound, Hillyer ordered that a channel be dug around the pilings to facilitate their removal. That contravened the Corps of Engineers permits for the project. Hillyer persisted with this "prop dredging" operation, even after being told to stop by the CoE. Hillyer even organized the work to be done under cover of darkness.
For his troubles, Hillyer was convicted after a guilty plea of conspiracy to violate the Clean Water Act and Rivers and Harbors Act of 1899 as well as violating the Rivers and Harbors Act.
At sentencing, Hillyer's final offense level was 13, producing a sentencing range of 12 to 18 months. Hillyer argued for a departure for aberrant behavior under 5K2.20, which the Government opposed. The district court, without explanation, sentenced Hillyer to three years of probation, 300 hours of community service, and a $10,000 fine. In a later written order, the court explained that it was granting Hillyer's departure motion, but did not specify the size of the departure or the resulting Guideline range. The Government appealed.
The Fourth Circuit reversed Hillyer's sentence. After noting that the district court failed to adequately calculate a departure and resulting Guideline range, the court went on to conclude that Hillyer did not qualify for a 5K2.20 departure anyway. Specifically, his criminal conduct was not a "single criminal occurrence," but was rather an ongoing series of illegal acts.
The court vacated, without addressing whether a similar sentence applied after a proper Guideline calculation and Booker variance would be unreasonable.
Once complete, the company needed to remove a temporary bridge that aided the construction process in order to relocated it to another site. Unable to dislodge the temporary bridge's pilings from the bottom of the sound, Hillyer ordered that a channel be dug around the pilings to facilitate their removal. That contravened the Corps of Engineers permits for the project. Hillyer persisted with this "prop dredging" operation, even after being told to stop by the CoE. Hillyer even organized the work to be done under cover of darkness.
For his troubles, Hillyer was convicted after a guilty plea of conspiracy to violate the Clean Water Act and Rivers and Harbors Act of 1899 as well as violating the Rivers and Harbors Act.
At sentencing, Hillyer's final offense level was 13, producing a sentencing range of 12 to 18 months. Hillyer argued for a departure for aberrant behavior under 5K2.20, which the Government opposed. The district court, without explanation, sentenced Hillyer to three years of probation, 300 hours of community service, and a $10,000 fine. In a later written order, the court explained that it was granting Hillyer's departure motion, but did not specify the size of the departure or the resulting Guideline range. The Government appealed.
The Fourth Circuit reversed Hillyer's sentence. After noting that the district court failed to adequately calculate a departure and resulting Guideline range, the court went on to conclude that Hillyer did not qualify for a 5K2.20 departure anyway. Specifically, his criminal conduct was not a "single criminal occurrence," but was rather an ongoing series of illegal acts.
The court vacated, without addressing whether a similar sentence applied after a proper Guideline calculation and Booker variance would be unreasonable.
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