Friday, June 29, 2007

Appeal Waiver Does Not Excuse Counsel's Failure to File Appeal

US v. Poindexter: Poindexter pleaded guilty to three counts of distribution of heroin after beginning trial. He entered into a plea agreement with the Government in which other charges were dropped, the parties agreed on the amount of drugs attributable to Poindexter, and Poindexter waived his right to appeal his sentence unless the district court upwardly departed or imposed a sentence above the statutory maximum. Poindexter received a sentence within the Guideline range and did not appeal. A few years later, Poindexter files a habeas petition under 2255 alleging ineffective assistance of counsel. Specifically, he argued that he told his trial attorney to file an appeal and the attorney did not do so. The district court denied Poindexter's claim because of the plea agreement appeal waiver.

On appeal, the Fourth Circuit reversed. Applying Roe v. Flores-Ortega, 528 U.S. 470 (2000), the court held that when a defendant tells his attorney he wants to file an appeal, the attorney is under a duty to do so. Because the district court failed to hold a hearing to determine whether Poindexter actually made such a demand, the case required remand. The court rejected the Government's argument that the appeal waiver had any effect on that holding, noting that such waivers do not prevent the filing of appeals and the Government is free to rely upon it when fighting the appeal.

Thursday, June 28, 2007

Forcible Rape Conviction Does Not Preclude Enhancement for Restraint of Victim

US v. Johnson: Johnson and other man rapped a woman on a naval base. He pleaded guitly to two counts of aggravated sexual abuse. At sentencing, his offense level was enhanced by two levels under USSG 3A.13 for physical restraint of the victim. He argued that physical restraint was already taken into account by the Guideline for his offense, 2A3.1(b)(1), which included a four-level increase for forcible rape. The district court disagreed, and sentenced Johnson to 188 months in prison.

On appeal, Johnson raised the same issue, which the Fourth Circuit rejected. Noting that the two-level restraint enhancement does not apply when such restraint is an element of the offense itself. The court concluded that the offense to which Johnson pleaded guilty, 18 USC 2241(a)(1) includes "force" an element, but not restraint. Specifically, while restraint of the type involved in this case can constitute force under 2241(a)(1), force may include various other actions which would not be considered restraint.

Monday, June 25, 2007

Court Upholds Wire Fraud Convictions

US v. Allen: Allen and his codefendant Reinhardt were involved in a fraud scheme in which they would provide "loans" to businesses that were structured as lease agreements for equipment (computers, etc.) that was never actually delivered. They were each convicted of multiple counts of wire fraud.

Both defendants made several unsuccessful arguments on appeal challenging their convictions. First, they both argued that the evidence against them was insufficient to support their convictions, primarily because the scheme itself was masterminded by someone else (it's unclear whether he was charged). The court rejected that argument, holding that the evidence of Allen and Reinhardt's guilt was overwhelming. Second, they argued that the district court erred by omitting a paragraph of the jury instructions on intent when providing the written summary to the jury. The court rejected that argument as well, holding that the omitted language was repeatedly told to the jury during oral instructions. In addition, Allen argued that his trial should have been severed from Allen's due to the use at evidence of corporate documents produced under subpoena by Reinhardt (thus preventing cross examination) and due to Reinhardt's trial strategy. First, the court held that the documents at issue were not statements by Reinhardt, as the jury was never told who produced the documents. Second, the court held that the defense theories of the two defendants were the same, although Allen sought to prove the defense with positive evidence, while Reinhardt relied on the Government's failure of proof. Therefore, severance was not necessary. Finally, the court rejected an argument that the district court erred by requiring the defense to provide argument regarding potential cross examination of a witness to the court and, later, to the Government, noting that neither defendant alleged any prejudice from the decision.

Reinhardt also made several arguments that his sentence was improperly calculated and imposed, which were dismissed by the court in summary fashion.