Wednesday, May 30, 2007

Court Upholds Conviction in Bank Robbery (Using Gasoline) Case

US v. Midgett: How's this for a statement of facts:
Around 12:30 on the afternoon of October 19, 1999, J.W. Shaw, a construction worker, was sitting in a van eating lunch at his worksite in Charlotte, North Carolina, when another van pulled up on his driver’s side. Defendant Paul Midgett was the driver of this second van, and his girlfriend, Theresa Russell, was a passenger. Midgett emerged from his van, walked over to Shaw, doused Shaw with gasoline from a large fast-food drink cup, and demanded that Shaw hand over his wallet. Shaw complied with this demand, but Midgett nonetheless proceeded to ignite the gasoline, setting Shaw on fire. Shaw suffered burns that caused him to be hospitalized and miss between six and seven weeks of work.

After fleeing the scene of the attack on Shaw, Midgett and Russell decided to rob a bank. They stopped at a gas station and filled an empty Dr. Pepper soda bottle with gasoline. Midgett and Russell then drove to a BB&T bank branch in Indian Trail, North Carolina. Midgett told Russell that he planned to enter the bank, demand money from a teller, and, if his demand was refused, douse the teller with gasoline and ignite it.
Midgett carried through with the bank robbery plan, making off with approximately $3000. He was tried and convicted on charges of malicious damage to property used in interstate commerce resulting in personal injury (Count 1), bank robbery by force or violence (Count 2), and putting in jeopardy the life of another by use of a dangerous weapon or device in committing a bank robbery by force or violence (Count 3). On the malicious damage charge he received a sentence of 360 months, with concurrent life sentences on the other two counts.

Midgett made several arguments on appeal, challenging both his conviction and sentences, which were all save one briefly dealt with and rejected by the Fourth Circuit.

The court rejected Midgett's arguments that the district court erred when it (1) denied his pretrial request to plead guilty to Count 2, (2) denied his motion for judgment of acquittal on Count 3, (3) allowed him to be placed in leg restraints during his trial, (4) denied his request for injections of the painkiller Nubain (even though medical science says the condition Midgett claimed to have did not cause pain), (5) excluded from evidence an exculpatory letter allegedly written by his coconspirator and onetime girlfriend and limiting the use of other letters also purportedly written by her to impeachment, (6) limited the direct examination of Midgett; (7) limited Midgett’s cross-examination of his girlfriend, and (8) acted out of bias against Midgett.

As to sentences, court rejected Midgett’s argument that the district court erred in declining to continue his sentencing hearing and contravened his constitutional rights in enhancing his sentences on Counts 2 and 3 based on his prior convictions. However, the court did agree that the district erred in imposing separate sentences on Counts 2 and 3, as one was a lesser included offense of the other, vacated the sentences on those counts, and remanded for resentencing.

Thursday, May 17, 2007

Lenient Sentences for Tax Protestors Vacated

US v. Baucom: Baucom and his codefendant ran a land surveying and computer consulting business. Between 1990 and 2002, they filed neither personal nor business related tax returns. Why? Because they're tax protestors. Their beliefs regarding the constitutionality of the tax system led to multiple pretrial delays as they unsuccessfully tried to find counsel willing to put forward those arguments. The district court eventually ran out of patience. Baucom and chum proceeded pro se and were convicted. At sentencing, they were granted credit for acceptance of responsibility and their failure to pay state income taxes were excluded from relevant conduct calculations. In addition, the district court imposed sentences below the advisory Guideline range on the theory that there was little deterrent impact for tax protestors when long sentences were imposed.

Both sides appealed. Baucom and colleague appealed their convictions, arguing that they were denied their Sixth Amendment right to counsel. The Fourth Circuit made quick work of that argument, noting the lengths to which the district court went to ensure that they had time to find counsel and the offers to appoint counsel.

The Government appealed the sentences, both on Guideline calculation grounds and as to the reasonableness of the sentences imposed. On the Guideline issues, the Fourth Circuit concluded that the district court had erred in two ways. First, the district court improperly excluded the North Carolina taxes Baucom and his codefendant failed to pay during their scheme, noting that they were "part of the same course of conduct or common scheme or plan" as their failure to pay federal taxes. Second, the court concluded that the district court should not have awarded Baucom and codefendant credit for acceptance of responsibility, based on their obstructive behavior and factual arguments made during trial. Finally, the court, while not reaching the issue directly, rejected the district court's argument about deterrence, noting that the Guideline commentary specifically emphasizes deterrence in tax cases due to the low number of prosecutions.

Friday, May 11, 2007

Upward Variance for Steroid Scheme Upheld

US v. Shortt: Shortt was a South Carolina doctor who ran a 7-year scheme in which he provided steroids and human growth hormone to athletes (including some of the Carolina Panther, apparently). In addition to providing the substances, he helped craft means by which the use of those substances could be hidden from officials and testers. Charged in a 43-count indictment with conspiracy and substantive distribution charges, Shortt eventually pleaded guilty to the conspiracy charge. Shortt's Guideline calculations produced an advisory range of 0-6 months. At sentencing, the Government moved for an upward variance, arguing that the Guidelines did not adequately address Shortt's conduct (there is no Guideline dealing with human growth hormone, for instance). The district court agreed and sentenced Shortt to 12 month and 1 day in prison.

On appeal, Shortt argued that his sentence was unreasonable. The Fourth Circuit disagreed, upholding the district court's findings regarding the scope and seriousness of Shortt's offense and his general lack of contrition (in spite of getting credit for acceptance of responsibility). Along the way, the court makes some bold statements about the purposes of sentencing and the proper consideration of sentences (as Doug Berman highlights here).

Post-Arrest Distribution in Jail Not Relevant Conduct

US v. Dugger: Dugger was charged with distribution of crack based on a controlled buy made in Huntington, West Virginia. Denied bond, he was shipped to Carter County, Kentucky. While there, he joined with other inmates and guards to bring in and distribute marijuana and Xanax. The scheme was detected and Dugger freely admitted his role in it. There is no indication that he has been charged with an offense related to that conduct. At sentencing, Dugger was denied credit for acceptance of responsibility due to his participation in the Carter County scheme. He was also assessed a two-level enhancement under USSG 2D1.1(b)(3) because "the object of the offense was the distribution of a controlled substance in a prison . . .." He received a sentence of 121 months, the bottom of the advisory Guideline range.

On appeal, Dugger made two arguments. First, he argued that this Carter County conduct did not support denying him credit for acceptance of responsibility because it was unrelated to his offense of conviction and he admitted his responsibility for that conduct. The Fourth Circuit quickly rejected that argument, noting that post-arrest drug dealing hardly shows that someone charged with distribution of crack has accepted responsibility for his actions. Second, Dugger argued that the 2D1.1(b)(3) enhancement was not applicable because the Carter County conduct was not related to the offense of conviction. The Fourth Circuit agreed, concluding that the Carter County scheme was not part of the relevant conduct of the crack distribution charge. Dugger's sentence was vacated and remanded for further proceedings.

Congrats (again) to CJA panel member Troy Giatras on the win.

Tuesday, May 08, 2007

Look-a-Like Drug Conviction = Controlled Substance Offense Under 2K2.1

US v. Mills: Mills was stopped in his car in Baltimore. During a consensual search, an officer found 120 rounds of ammunition. A later search at Mills's business uncovered a stash of guns and associated paraphernalia. Mills eventually pleaded guilty to being a felon in possession of ammunition. At sentencing, the issue was whether Mills's base offense level under USSG 2K2.1 should be 24 or 20, based on his prior convictions. Mills contended that his prior Maryland conviction for "possession with intent to distribute look-a-like controlled dangerous substances" was not a "controlled substance offense" sufficient to support the higher base offense level (he admitted another prior conviction that fit the definition of "crime of violence"). The district court disagreed, set the base offense level at 24, and sentenced Mills to 70 months in prison.

On appeal, the Fourth Circuit affirmed Mills's sentence. The court concluded that the term "counterfeit substance," as used in USSG 4B1.2(b) and to which 2K2.1 cross references, was not defined by the Guidelines and therefore retained its plain meaning. Under that plain meaning, Mills's prior offense - which involved distributing substances that were not narcotics under the false pretense that they were - involved a counterfeit substance and therefore was a controlled substance offense. The court rejected Mills's attempt to read the definition of "counterfeit substance" from 21 USC 802(7) (which involves falsely labelled prescription drugs) into 4B1.2(b), noting that the Sentencing Commission knows how to cross reference to specific statutory definitions and it's failure to do so in this case must have been intentional. The court also rejected Mills's argument that the fact that simulated drug offenses are not counted for career offender purposes required a definition of counterfeit substance different from the plain meaning.

Thursday, May 03, 2007

Court Reverses Suppression Due to Illegal Arrest; Scolds Government in the Process

US v. McNeill: A Baltimore police officer responded to a 911 call from a nearby convenience store. When he arrived, he found McNeill standing next to a woman and her children who were exiting a phone booth. The woman approached the officer, with McNeill in pursuit, and said that she wanted McNeill to leave her alone and that he had been "following her and messing with her." McNeill tried to interject his version of the situation into the discussion but was told by the officer to "chill out." McNeill decided that discretion was not called for and said to the woman "I'm going to get you, bitch, for this." The officer arrested McNeill for committing "assault by threat." While in custody with the Baltimore PD, McNeill, for reasons not hinted at in the opinion, confessed to participating in two bank robberies.

McNeill was charged with two counts of bank robbery under 18 USC 2113(a). He moved to suppress the statements as the fruit of an illegal arrest, claiming that he did not commit an offense in the presence of the officer who arrested him without a warrant. The district court granted that motion and the Government instigated an interlocutory appeal. As has been its recent trend, the Government failed to file the required certification for such an appeal under 18 USC 3731 until six months after the notice of appeal was filed (i.e., six months late) and it was filed in the wrong court, to boot.

McNeill moved the Fourth Circuit to dismiss the appeal due to the Government's failure to follow the requirements of section 3731. After noting the Government's repeated failures to comply with 3731 in recent years (see Hatfield & Dequasie) and a similar failure in another pending case, the court noted:
In this case, we are presented with the unfortunate fact that after our repeated warnings in 2004, the government continued to neglect the statutory requirements as we construed them. At the least, the government's failures are shameful lapses in professionalism. To his credit, however, the U.S Attorney himself stepped into this case to address the problem. He noted that the Assistant U.S. Attorneys involved in this case and in [the other pending case] were not personally aware of our 2004 decisions and that the requirements of those decisions were not reflected in the manuals used by Assistant U.S. Attorneys.
Emphasis added. Nonetheless, after restating once and for all that the 3731 certification must be filed along with the notice of appeal, the court applied the seven-factor test set forth in Hatfield and concluded that dismissal was not warranted in this case as a remedy for the Government's shortcomings. Thus the court, once again, gives lip service to the importance of the Government actually playing by the rules without actually imposing any negative consequences for failing to do so.

On the merits, McNeill fared no better. While the court initially questioned whether there was an "in the presence" requirement under the Fourth Amendment for warrantless misdemeanor arrests, it concluded that it need not resolve the issue in this case because McNeill did commit an offense in the officer's presence. To be fair, he did not commit "assault by threat," as it is not a crime in Maryland. However, noting that the arrest would be upheld if any offense was committed, regardless of the one given as the reason for arrest at the time, the court held that McNeill committed the Maryland offense of harassment (Md. Code Ann., Crim. Law 3-803). The officer therefore had probable cause to make the arrest and the later statements McNeill made regarding the bank robberies were thus not fruit of an illegal arrest.