Thursday, August 23, 2007

Raw Data from Computer Tests Not "Statements" Subject to Confrontation

US v. Washington: Washington was pulled over on the Baltimore-Washington Parkway (over which the Government has jurisdiction) and charged with driving under the influence of alcohol and drugs and reckless driving. At trial, the Government presented expert testimony from the head of a local toxicology laboratory that a blood sample taken from Washington that night showed he had consumed PCP and alcohol. Washington objected to that testimony, arguing that the raw data reports of the drug testing upon which the doc relied were testimonial hearsay statements of the technicians who actually performed the test and Washington was entitled to confront them. The court disagreed and Washington was convicted.

On appeal, the Fourth Circuit affirms, 2-1. The court held that, to the extent that the raw data upon which the witness relied were "statements" at all, they were statements of the equipment and computer program that actually performed the testing, not the technicians who ran the tests. Because the equipment were not "persons," they could not produce "statements" within the meaning of the Rules of Evidence. Cross examination of the technicians would have been pointless, as they had no testimony to offer regard what the raw data actually meant. Dissenting, Judge Michael argued that the test results were statements of the technicians (because they were produced via human inputs), that they were testimonial, and that whether their cross examination would prove useful is a decision for the defendant, not the court, to make.

Potential Federal Criminality Produces Sufficient Nexus for Witness Tampering

US v. Harris: Codefendants Harris, Royal, and Smith were involved in a firebomb attack on the home of a community activist in Baltimore. The woman, a long time resident of the neighborhood, had begun providing information to Baltimore police regarding drug dealing in the area. As a result, she was subjected to a pattern of harassment that culminated with a firebomb attack on her home. Harris, Royal, and Smith were charged and convicted of, among other things, witness tampering and conspiracy to commit witness tampering.

The main issue at trial, and the crux of the defendants arguments on appeal, was whether there was a sufficient nexus between the information provided by the victim, the attempt to silence her, and a federal investigation. The district court rejected arguments that the Government, so secure convictions for witness tampering, was required to prove that the victim had or was likely to contact federal authorities. On appeal, the Fourth Circuit did the same. First, the court held that it was sufficient that the information provided by the victim concerned a potentially federal offense - drug trafficking - even though she never communicated directly with federal authorities. Second, the court held that the Government was not required to prove that the defendants specifically intended to prevent the communication of information to federal officers, so long as the information related to a potential federal offense.

The court also rejected arguments that Royal and Harris's trial should have been severed from Smith's because of the introduction of a gang video in which Smith appeared and that the prosecution engaged in improper rebuttal closing argument.

However, the court did vacate Smith's sentence because the district court failed to sufficiently justify its variance from the top of the advisory Guideline range (773 months) when imposing his 960-month sentence.

Tuesday, August 07, 2007

Failure to Recogzie Justification Defense to 922(g) Charge is Ineffective Assistance of Counsel

US v. Mooney: Mooney was a convicted felon. One night, after returning home from work at a nearby bar in Huntington, West Virginia Mooney found himself in a room with his ex-wife (with whom he shared the home), who was putting a gun to his head. Mooney's ex had (as the court put it) "a propensity to brandish and shoot guns at the men in her life," having previously shot another husband, shot at a boyfriend, and brandished a gun at Mooney on a prior occasion. Mooney took the gun away from his ex and called his boss at the bar to let him know he was bringing the gun to the bar in order to turn it in to the police. Mooney then tried twice to call 911, but his ex disconnected the calls. As he left the house, she ripped his shirt off and yelled at him that he was going to jail. Mooney escaped and made it to the bar. The police arrived shortly thereafter. Mooney turned the gun over to the police and was arrested.

Mooney was charged with being a felon in possession of a firearm. He pleaded guilty, after his attorney told him that there was no defense to his possession of the gun, even though he "did the right thing." At sentencing, Mooney moved to withdraw his plea, but the district court denied his motion after his attorney asserted (and the court agreed) that there was no justification defense available. Mooney was sentenced to 180 months in prison. His conviction and sentence were affirmed on appeal. Mooney they filed a habeas petition alleging ineffective assistance of counsel. The district court denied that petition, holding that Mooney could not claim justification for the offense once he carried the gun outside the home.

On appeal, the Fourth Circuit reversed. In doing so, it recognized a fact pattern that would support a justification defense for a felon-in-possession charge. The court held that Mooney's counsel was ineffective because the Fourth Circuit law at the time of Mooney's plea was clear that justification was, in theory, available as a defense in such cases and had been specifically recognized by other courts. The court also held that Mooney was prejudiced by counsel's deficient performance, noting that it was clear Mooney would not have pleaded guilty had he been properly informed of the law and that, as presented in the habeas proceeding, Mooney would be entitled to present the justification defense to a jury.

Mooney's conviction was vacated, and the case remanded to allow Mooney to withdraw his guilty plea.

Monday, August 06, 2007

Court Affirms Life Sentence for Witness Tampering Conviction

US v. Ruhbayan: Ruhbayan's case deals with sentences imposed following convictions for perjury, subornation, conspiracy and witness tampering. Ruhbayan was previously charged with drug conspiracy and using a firearm in connection with that offense. At that trial, Ruhbayan's girlfriend, Goodman, testified on his behalf in a generally exculpatory way. The jury believed her and he was acquitted of the most serious offenses (he was convicted on some misdemeanors). Sometime after that proceeding, Goodman was charged with firearm charges based on what she said in her testimony at Ruhbayan's trial. She cracked and admitted that she lied at Ruhbayan's trial at his behest. As a result, Ruhbayan was then indicted and ultimately convicted of perjury, subornation of perjury, conspiracy and witness tampering.

At sentencing, the district court found that the witness tampering offense related to an underlying charge that carried a life sentence (the original 924(c) count) and accordingly sentenced Ruhbayan to life in prison on that count, along with concurrent 60-month terms on the other charges. On appeal in 2005, the court upheld Ruhbayan's convictions, but remanded for resentencing in light of Booker. At resentencing, the district court imposed the same sentences.

On appeal, Ruhbayan first argued that the enhancement of his maximum sentence on the jury tampering count from 10 years to life violated the Sixth Amendment because it relied on a fact - that the tampering occurred in a criminal prosecution - not charged in the indictment. The Fourth Circuit disagreed, holding that the indictment and subsequent jury instructions were sufficient to trigger the enhancement and not run afoul of the Sixth Amendment. Next, Ruhbayan argued that the district court improperly calculated his advisory Guideline range due to (1) improper calculation of drug amounts for the underlying conspiracy offense, (2) an improper upward departure due to an understated criminal history, and (3) an improper upward departure for the offense level based on the Guidelines' failure to properly address his conduct. The court rejected all those arguments. Finally, the court held that Ruhbayan's sentence, having been within the range available under the Guidelines, was reasonable.

Minor Victim's Statements to Fellow Plane Passengers are Excited Utterances; Government Need Not Prove Defendant Knew Age of Victim

US v. Jennings: Jennings was convicted of abusive sexual conduct with a minor based on his actions on a flight from San Diego to Dulles, during which he hit on, groped, and fondled a 13 year old girl. On appeal, Jennings made several arguments regarding his trial, which were rejected by the Fourth Circuit.

First, Jennings argued that the district court erred by admitting into evidence the testimony of two other passengers on the flight who recounted allegations the victim made against him during the flight. The court held that the statements were properly admitted as excited utterances under FRE 803(2) and rejected Jennings argument that the five minutes that passed between the alleged events and the victim's recitation of them to another passenger gave her sufficient time to reflect upon her statements. Second, Jennings argued that the Government was required to prove (and failed to do so) that he knew the victim was between 12 and 16 years of age. Applying plain error review (Jennings first raised the issue in a motion for a new trial), the court found there to be no error, plain or otherwise, based on the language of the statute. Finally, Jennings argued that the district court erred by giving the jury a deliberate ignorance instruction. The court held that the district court did not abuse its discretion in giving that instruction.