Thursday, April 26, 2007

Lack of Notice of Upward Variance Does Not Require Remand

US v. McClung: McClung was an assistant state school superintendent who was responsible for, among other things, getting the Mingo County (WV) school system running again after a series of devastating floods. During his tenure, McClung renewed an old friendship with Philip "Porkchop" Booth, who ran several businesses that sold furniture and other supplies. McClung basically funnelled business Porkchop's way in return for cash. As a result, McClung pleaded guilty to extortion and filing a false tax return. His Guideline range, to which neither party objected, was 51 to 63 months. Without notice, the district court imposed a sentence of 84 months.

McClung made two arguments on appeal regarding his sentence. First, he argued that the district court erred by imposing an above-the-Guidelines sentence without notice. Because McClung did not object to the imposition of that sentence at the time, review was only for plain error. While conceding that the district court was erroneous in proceeding without notice, the court held that McClung could not show any prejudice from the error. He filed a sentencing memorandum that addressed the 3553(a) factors and included a long letter addressing his personal conduct and remorse. Because McClung could not point to any other argument he might have made had he been given notice, the court rejected that argument. Second, and similarly, McClung argued that his sentence was unreasonable. For reasons similar to the first issue, the Fourth Circuit disagreed and upheld McClung's sentence.

Court Upholds Conspiracy and Gun Convictions

US v. Wilson: Wilson and his codefendants were convicted of conspiracy to distribute drugs and firearm offenses. They raised various arguments regarding their trial, all of which the Fourth Circuit rejected. First, the court held that the district court properly allowed a detective to testify as an expert witness regarding "drug lingo" and "translate" numerous phone conversations among the conspirators. There were individual questions/answers which went beyond the scope of proper expert testimony that were not objected to by Wilson, the they did not rise to the level of plain error. Second, the court rejected several challenges to the jury instructions, applying plain error review (although the court concluded that there were no errors to begin with) - that the district court's telling the jury that it was the only one that "has ever decided or will decide" whether the Government proved its case was an impermissible Allen charge; that the instructions failed to require the jury to find the existence of an unlawful agreement before determining who was a part of it; and that the examples of conspiracies provided by the district court of too nearly tracked the facts of this case. Third, the court concluded that the Government's filings in support of the warrants used to wiretap the conspirators' phones were sufficient. Finally, the court rejected challenges to the sufficiency of the evidence.

Tuesday, April 17, 2007

"Misdemeanor Crime of Domestic Violence" Must Include Element Establishing Relationship Between Defendant & Victim

US v. Hayes: Hayes was convicted of the West Virginia misdemeanor offense of battery in 1994. The victim of the crime was his then-wife, but he was not convicted of domestic battery. In 2005, police responded to a domestic disturbance call at Hayes's home which led to a consensual search of the home. The search uncovered a rifle. Hayes was then charged with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence (MCDV), based on the 1994 offense. Hayes moved to dismiss the indictment, arguing that his 1994 conviction was not an MCDV, on various grounds. The motion was denied and Hayes entered a conditional guilty plea, preserving his right to raise the issue on appeal.

On appeal, the Fourth Circuit reversed the district court, 2-1, holding that Hayes's 1994 conviction was not a MCDV because it did not contain an element regarding the relationship of the victim to the defendant. The court engaged in a lengthy analysis of the statutory language of the MCDV definition, 18 USC 921(a)(33)(A), before concluding that the language of the definition "plainly require[s] that a predicate offense have as an element one of the specific domestic relationships between the offender and the victim." That reading is supported by the "rule of the last antecedent," and is not "demonstrably at odds" with the legislative intent of the statute. In addition, if the statutory language was ambiguous, the Rule of Lenity would require the same outcome. In concluding the opinion, the court noted that this holding was "in the minority." Judge Williams, in her dissent, noted that "we are not in the minority, we are the minority." Judge Williams disagreed with the majority's statutory analysis. In addition, she rejected Hayes's argument (which the majority did not reach) that the Government could not prove the relationship between Hayes and the victim in the 1994 conviction by use of extrinsic evidence, as in Shepard.

Congrats to SDWV CJA panel member Troy Giatras for the big NDWV win.

Court Rejects Challenges to Inventory Search, Hearsay Claim to Affirm Drug Convictions

US v. Banks: Banks was involved with an elaborate scheme to illegally obtain prescription medication which was then provided to street-level dealers for distribution. Banks and his codefendants used fake prescription pads (containing the relevant DEA numbers of real doctors) from bogus medical clinics they set up to write prescriptions that were filled at local pharmacies. When one pharmacist became suspicious, Banks and a codefendant was arrested. When he was arrested, Banks was asked if there was anything in his car in the pharmacy parking lot that he wanted taken to the police station with him. Banks identified two bags in the trunk which were recovered and brought to the station. During the booking process the bags were opened. A subsequent inventory search revealed numerous pieces of evidence of the scheme. Some time later, a search warrant was executed at one of the fake medical clinics. The search produced two fingerprints which were collected on cards and sent away for analysis. The fingerprint cards including hand written notes from the evidence technician who collected the prints indicating where in the clinic they were found.

Prior to trial, Banks unsuccessfully moved to suppress the evidence found in the bags searched following his arrest. He also unsuccessfully moved to fire his public defender on the grounds the he "worked for the Government." Banks also, in a pro se motion, alleged that the district court lacked jurisdiction over him because he was a "real, live flesh and blood Man." Banks was convicted of multiple counts of drug possession, conspiracy, and fraud and sentenced to 16 years in prison.

On appeal, Banks raised three issues, each of which the Fourth Circuit rejected. First, he argued that the district court should have suppressed the evidence found in the bags taken from his car because the officer who searched the bags did not follow the department's own guidelines for inventory searches. The Fourth concluded that strict compliance with those guidelines was not necessary, as the guidelines were complied with "more generally" in an unusual situation caused, in part, by Banks's request that the bags be brought to the police station. The district court's conclusion that the search was not investigative was not clearly erroneous. Second, Banks argued that the admission of the evidence technician's notes on the fingerprint cards was erroneous because those notes were hearsay and their introduction violated Crawford v. Washington, 541 U.S. 36 (2004). The Fourth did not resolve those issues directly, instead concluding that any error was harmless given the weight of other evidence admitted against Banks. Finally, the Fourth rejected Banks's argument that the district court should have sua sponte moved to evaluate his competency, holding that Banks's odd behavior was simply "an ill-advised, self-defeating legal strategy."

Walk-Away from Work Release is "Crime of Violence" Under ACCA

US v. Mathias: Mathias was convicted of being a felon in possession of a firearm. He was sentenced to 180 months as an armed career criminal under 18 USC 924(e) because he had three prior convictions for "violent felonies." At sentencing, Mathias argued that one of his prior convictions, a Virginia conviction for "escape without force or violence" did not qualify as a "violent felony." The district court disagreed. On appeal, Mathias raises the same argument, which the Fourth also rejects. Restating prior Circuit law from the career offender context, the court explains that any escape offense - including one like Mathias's that was simply walking away from a work release center - pose a "serious potential risk of physical injury to another." The court rejected Mathias's argument that the fact that Virginia specifically provides for non-violent escape convictions made any difference.

Friday, April 13, 2007

Sua Sponte Downward Variance Requires Remand

US v. Blatstein: Blatstein was a podiatrist who concocted a scheme to bill his patients insurance carriers for outpatient surgical procedures in a facility that didn't exist. He pleaded guilty to one count of mail fraud, based largely in documents seized pursuant to a search warrant based on information provided by former employees and patients. Blatstein moved to suppress those documents, arguing that the agent obtaining the warrant failed to tell the magistrate about a Virginia statute allowed the types of procedures he billed for to be performed in his office and not in a separate facility. That motion was denied. At sentencing, both Blatstein and the Government agreed that a 24-month sentence, within the Guideline range, was appropriate. However, on its own motion, the district court varied and imposed a sentence of 12 months in prison.

Blatstein appealed the denial of the motion to suppress and the Government cross-appealled the sentence. The Fourth Circuit easily rejected Blatstein's argument, noting that the Virginia statute at issue was irrelevant to his billing practices, which lead to the mail fraud. As to the sentence, the Fourth recognized that because the Government did not object to the district court's failure to provide notice of intent to vary, it was stuck with plain error review. However, the court found that there was error, the error was plain (per Davenport), that the Government's fundamental rights were violated, and that it appeared the Government could make a valid argument against the 12-month sentence on remand. Thus, Blatstein's conviction was upheld, his sentence vacated, and the case remanded for further proceedings.

Thursday, April 12, 2007

Post-Offense Rehabilitation Doesn't Support Probation in Crack Case

US v. Pyles: Pyles was part of a "circle of drug using friends" in Morgantown who would get drugs for other people and "pinch" a bit for themselves as payment. In May and June, 2004, authorities made three controlled buys of crack from the pinching Pyles, totalling 0.71 gram. In May, 2005, Pyles and several others were indicted on charges of conspiracy to distribute more than 5 grams of crack and substantive delivery charges. Pyles eventually entered a guilty plea to one count of aiding and abetting the distribution of crack. However, in the PSR Pyles was attributed 26.4 grams of crack as relevant conduct. His Guideline range was 63 to 78 months.

Between the time of the controlled buys and Pyles's sentencing hearing, he made significant steps towards rehabilitation. His employer submitted letters to the district court detailing Pyles's efforts to turn his life around and his value as an employee. Concerned as to Pyles's need for drug treatment, the district court postponed sentencing to allow Pyles to seek treatment with a "noted substance abuse counselor in Morgantown." When sentencing reconvened, the counselor reported to the court that Pyles "ha[d] done better than any person I am currently working with." Pyles had successfully completed his term of presentencing bond with no incidents, according to the probation officer.

The district court then asked the parties about the factors found in 18 U.S.C. 3553(a) and whether probation would better serve those factors than imprisonment. The Government objected to the idea of probation, noting that a co-defendant had already been sentenced to 37 months in prison. The district court rejected that argument, noting that the Fourth Circuit has held that inter-defendant disparity is not the type of disparity that is prohibited. The district court finally determined that probation was appropriate and sentenced Pyles to 5 years of probation, including a 6-month term of home confinement. To support her sentence, the district court produced a 22-page opinion detailing Pyles's rehab and working through each of the 3553(a) factors.

The Government, of course, appealed, and the Fourth Circuit reversed, finding the extent of the variance in this case to be unreasonable. Initially, however, the court did affirm the district court's refusal to consider inter-defendant conspiracy as a factor at sentencing. However, the court ultimately decided that a sentence of probation in a case where the unobjected to Guideline range bottomed out at 63 months was too great. The court concluded that the district court would have had to depart 16 levels under the Guidelines to reach a zone in which probation was an option, which was too great given the circumstances of the case. The court praised the district court, somewhat patronizingly, for the time and effort it put in to justifying its decision, but in the end it was not sufficient to justify a sentence that did not include incarceration. Pyles's sentence was vacated and remanded for further proceedings.

The heart of this case really comes down to a quote from the district that's on page 13 of the slip opinion: "federal sentencing policy is not purely retributive. It does not mandate warehousing individuals who reclaimed their lives long before they were indicted and arrested." The Fourth spends the next four pages basically saying, "oh yes it does."

Doug Berman & commentators at Sentencing Law and Policy discusses Pyles here.

Tuesday, April 03, 2007

Confession Not Sufficiently Corroborated to Support Gun, Drug Convictions

US v. Stephens: A Roanoke, Virginia, police officer was on patrol when he heard several shots fired. As he surveyed the scene he saw Stephens crossing the street. When Stephens saw the officer, he ran off and was eventually apprehended in an abandoned house. The officer retraced Stephens's path and discovered a revolver on the ground that he been recently fired. At the police station, Stephens made a statement:
He told the agents that a local drug dealer known as "Red" fronted him one and a half ounces of cocaine approximately two to three months before, for which Stephens was to pay $1,500. Stephens was unable to repay Red, however, because Stephens’s wife consumed all the cocaine. On August 19, 2004, Stephens became aware that Red had spread word on the street that Stephens would be killed because of his failure to pay. That same evening, when Stephens drove past Red and some associates, someone in Red’s group fired a shot at Stephens. Stephens later retrieved his handgun and fired the shots heard by Babb at Red’s vehicle, a white Mazda, when he saw it on the street. Approximately two months after the initial statement to the agents, Stephens repeated this explanation in a proffer to the government.
Stephens was charged with three offenses: conspiracy to distribute narcotics, possession of a firearm in connection with a drug trafficking offense, and being a felon in possession of a firearm.

He pleaded guilty to the felon in possession offense and went to trial on the other two offenses. At trial, Stephens's statement was admitted into evidence. Stephens then testified in his own behalf:
Stephens took the stand in his own defense and asserted that he had lied to the ATF agents following his arrest and in his proffer. According to his testimony, on the night of August 19, Stephens was actually sitting on the porch of his grandmother’s home when an individual approached him and offered to sell a handgun for $75. Stephens paid $60 for the gun and soon after decided to test it to see whether it would fire. He went to a friend’s house, walked behind the home, and fired the gun into the air. Stephens explained that he lied to the agents about his association with Red in hopes that he would be released on bond, or perhaps released so he could provide further information as to Red’s drug dealing activities. Stephens denied any connection to Red, whose real name he professed not to know, and denied that he was involved in selling drugs, or that he owed anyone money for drugs.
Stephens moved for a judgment of acquittal at the close of the evidence, but the district court denied the motion. The jury convicted Stephens on the narcotics and 924(c) counts after a robust 35 minute deliberation.

On appeal, the Fourth Circuit reverses. After noting that it "is beyond dispute that a criminal defendant's conviction cannot rest entirely on an uncorroborated extrajudicial confession," the court concluded that there was insufficient evidence beyond Stephens's initial statement to police to link him to a drug conspiracy. Therefore, the district court erred by denying his motion for a judgment of acquittal. The case was remanded for resentencing on the felon in possession charge.