Thursday, July 26, 2007

851 Information Filed Between Jury Selection & Opening Statements Not Plain Error

US v. Beasley: Beasley was charged with conspiracy to distribute more than 50 grams of crack and possession with intent to distribute more than 5 grams of crack. Jury selection took place on January 6, 2004. However, the jury was not sworn and opening statements didn't take place until three weeks later. In the interim, the Government filed an information pursuant to 21 USC 851, increasing Beasley's potential maximum sentence from 5 to 40 years up to 10 years to life. Beasley was convicted, found to be a career offender, and sentenced to 408 months in prison.

On appeal, for the first time, Beasley argued that the 851 motion was not timely filed. Section 851 requires that the information be filed "before trial, or before entry of a plea of guilty." Beasley argued that the trial began when the jury was selected on January 6, before the information was filed. He also argued that the 851 information is a jurisdictional requirement and therefore the issue was not subject to plain error review.

The Fourth Circuit rejected Beasley's arguments. First, it concluded that the 851 information was not jurisdictional, holding that it merely allows for increased punishment and does not confer on the district court any additional jurisdictional authority beyond 18 USC 3231. Proceeding to plain error review, the court held the term "before trial" is ambiguous and that, without any controlling precedent discussing the issue, any error (if there was one) is certainly not plain. Notably, the court does not go on to resolve the issue of whether there actually was an error in the first place. The court also briefly disposed of two evidentiary issues raised by Beasley.

Thursday, July 12, 2007

Illegal Reentry Conviction Upheld Against Fourth Amendment, STA Challenges

US v. Soriano-Jarquin: Soriano-Jarquin was a passenger in a van that was stopped along I-95 in Virginia due to a defective headlight. While citations were being prepared on the headlight and other violations, a state trooper asked to see the identification of the dozen passengers in the van. It became apparent that the passengers did not speak English and the trooper suspected they were illegal immigrants. He was right, as discovered by an ICE agent shortly thereafter. Of the bunch, Soriano-Jarquin has been previously deported for illegal entry (a month prior in Arizona) and was therefore arrested for illegal reentry.

What happened next is best tucked in the "go see your client before the prelim" file:
At a preliminary hearing before a magistrate judge on May 17, 2005, the government mistakenly produced an individual named Francisco Almaraz Soriano, rather than the defendant, Francisco Soriano-Jarquin. At the time, no one alerted the court to the error. On the stand, ICE Special Agent Jason Fulton identified the individual present as Francisco Soriano-Jarquin, though upon cross-examination Fulton stated that he could not be sure the individual was Soriano-Jarquin. The judge found probable cause to hold Soriano-Jarquin.
Soriano-Jarquin was later indicted for the same offense, although the body of the indictment named another defendant (not even Almaraz Soriano). It was dismissed, without prejudice, and a new indictment obtained the same day. Soriano-Jarquin then moved for a dismissal pursuant to the Speedy Trial Act, arguing that the second indictment was not timely filed. The district court rejected that motion, as well as Soriano-Jarquin's motion to suppress evidence obtained during the stop of the van. A jury convicted Soriano-Jarquin of illegal reentry.

On appeal, the Fourth Circuit rejected all of Soriano-Jarquin's arguments. First, the court rejected the argument that the trooper violated the Fourth Amendment by asking to see the identification of the van's passengers, noting that such a request is part of a legitimate traffic stop and is related to officer safety. In addition, the request in this case did not prolong the stop. Second, the court held that the mistake of not having Soriano-Jarquin at his own preliminary hearing was not fatal to the prosecution, because he failed to timely raise the issue and the later-filed indictment essentially mooted any problems with the prelim. Third, the court rejected the claim that the prosecution violated the Speedy Trial Act because of the problems with the initial indictment, noting that an incorrect indictment is not the same as the "no indictment" required for dismissal under the STA. Finally, the court rejected the argument that the district court erred by not allowing Soriano-Jarquin to call an ICE agent to testify after Soriano-Jarquin failed to follow the proper regulatory procedures to secure that testimony.

Thursday, July 05, 2007

Court Affirms Use of Testimony from Co-conspirator ID'd by Defendant

US v. Sweets: Sweets (yes, that's his real name) was convicted at trial of conspiracy to distribute 50 or more grams of crack and conspiracy to possess a firearm in connection with a drug offense. At issue in his appeal were two interactions with police that Sweets claimed violated his constitutional rights. First, police came to Sweets' home looking for another man, Long, who was a suspect in a murder investigation. Sweets first denied knowing where Long was hiding, but after police threatened to have everyone locked up (Sweets, his girlfriend, etc.), Sweets agreed to lead police to a hotel where Long was hiding. Once arrested, Long provided testimony against Sweets regarding his role in the drug conspiracy. Second, Sweets gave a statement to police after he was arrested which he claimed was taken after he requested a lawyer and before he was Mirandized. The district court rejected both of those claims.

On appeal, the Fourth Circuit affirmed. With regard to the Long location and testimony, the court assumed arguendo that Sweets's cooperation in locating Long was coerced. Nevertheless, there was no Fifth Amendment violation because Sweets's act did not provide "incriminate Sweets in any real and substantial way," and, in any regard, was not actually used against him at trial. Long's actual testimony was sufficiently attenuated from the coercion to be admissible. With regard to the Miranda issue, the court affirmed the district court's factual findings that Sweets was given Miranda warnings both before an initial statement was given and then again before he repeated the statement on tape.

Judge Michael and District Judge Goodwin (SDWV) concurred separately, refusing to join in the court's use of a "substantial incrimination" standard, but agreeing that Long's testimony was appropriately admitted.

Tuesday, July 03, 2007

No Suppression of Testimony Following Illegal Search; Proper to Look to Sentencing Facts in Suppression Review

US v. Gray: Gray and Askew were at Gray's apartment in Huntington when police arrived to conduct a "knock and talk." When Gray refused them entry into the apartment, they pushed their way in anyway, discovering Askew inside along with drugs, money, and other paraphernalia. Based on what they saw, police obtained a warrant and conducted a more thorough search. While the search was in process, two people came to the apartment to buy drugs. They were intercepted by police. One of them gave a statement at that time, while the other gave a statement to police several months later - both implicating Gray and Askew in a scheme to sell crack. Askew and Gray both filed motions to suppress. The district court denied Askew's based on lack of standing to object to the search of Gray's apartment. As to Gray, the district court granted the motion with regards to the physical evidence found in the apartment, but refused to suppress the statements of Askew or the two folks who showed up at the apartment. Askew and Gray pleaded guilty, reserving their rights to appeal the search issues.

On appeal, the Fourth Circuit affirmed the district court's rulings, 2-1. First, the court held that Askew did not have standing to object to the search of Gray's apartment. Applying Minnesota v. Carter, 525 U.S. 83 (1998), the court held that Askew was more of a business visitor than social guest and therefore lacked any standing in Gray's apartment. Although the court reached that conclusion based on the evidence adduced at the suppression hearing, the court engaged in a lengthy review of Askew's sentencing proceedings, finding "confirmatory" information to support its conclusion. The court likened sentencing information to evidence produced during trial, which courts have traditionally utilized when resolving suppression issues.

Second, the court agreed with the district court that the statements of the two drug seekers and Askew should not be suppressed. As to the two drug seekers, the court held that the illegal search was not a "but-for cause of their" statements, but that it was "pure happenstance" (or stupidity, take your pick) that they came to Gray's apartment while the police were there. Regardless, their statements were given of their own free will, free from coercion (even though one of them failed to appear to testify pursuant to a subpoena). As to Askew's statements, the court held that he was not coerced into cooperated with the police, even though he was forced to cooperate due to the evidence seized during the illegal search of Gray's home (because Askew lacked standing to challenge the search).

Judge Michael unleashed a fiery dissent, disagreeing with the majority on just about everything. The dissent particularly takes issue with the majority's exploration of Askew's sentencing proceedings for evidence to support the denial of suppression, even though the majority admits it need not do so. Judge Michael calls such an approach "unprecedented." The dissent also substantively disagreed with the majority's conclusion as to Askew's standing to object to the search and the suppression of Aksew's statements in Gray's prosecution (no mention is made of the two drug seekers).