Tuesday, June 17, 2008

Omissions from Warrant and Date Error Don't Require Suppression

US v. Gary: Gary was convicted (of what the opinion doesn't say) based at least partly on information developed during a search of a home in Richmond, based on an anonymous tip. The tipster alleged that "Melvin" was selling heroin out of the home. A police officer investigated, rummaging through the trash in the alley behind the home, discovering items with heroin residue, packaging materials, and discarded mail indicating that the trash came from the target address. He applied for a search warrant, in which he failed to disclose that there were multiple trash cans in the alley, only one of which was marked as belonging to the target address, and indicated that the investigation took place a year before it actually did. The district court denied Gary's motion to suppress the evidence.

The Fourth Circuit affirmed, unanimously, in an opinion written by ex-Justice O'Connor. The court rejected Gary's argument that under Franks the information left out of the warrant application required suppression. The court concluded that the information left out of the warrant would not have changed whether probable cause was present. The court also rejected Gary's argument that, notwithstanding the omissions, the warrant application was not sufficient to justify a search because of the discrepancy in dates between the actual investigation and what was written on the application. Noting that the discrepancy wasn't even mentioned until the district court noticed it at the suppression hearing, it was clearly a typo and not destructive to probable cause. Even if it was, the Leon good-faith shield saved the search.

Thursday, June 12, 2008

Big Terrorism Case Leads to Split on Sentencing Review

US v. Abu Ali: Ali is a US citizen, born in Virginia, who eventually travelled to Saudi Arabia, where he became involved with an Al-Qaeda cell. After a bombing in Riyadh (in which Ali was not involved), Saudi authorities cracked down. Investigation of Ali and others led to indictment in the US against Ali for various terrorism and related charges, in addition to conspiracy to assassinate the President. He was convicted by a jury of all charges. In a lengthy opinion, the Fourth Circuit unanimously affirms the conviction, rejecting numerous challenges that are most likely to occur only in similar transnational terrorism cases.

The real action, from the more mundane perspective, involves sentencing. Ali's Guideline range called for a mandatory life sentence. At sentencing, the district court varied down to 360 months, based on both the particular facts of Ali's offense and background (he never actually perpetrated any violent acts, no violence in his past, etc.) as well as comparison with what the district court thought were two similar cases - those of John Walker Lindh and Tim McVeigh/Terry Nichols. Noting that Lindh only got 20 years and Nichols got life where his offense involved actual killing, the district court concluded that a variance to 360 months was necessary.

On appeal, the Fourth Circuit vacated the sentence, 2-1. The majority heavily dissected the district court's comparison between Ali's case and Lindh/Nichols and concluded that it gave too much weight to those comparisons, which were flawed to begin with. The majority did not state categorically that a 360-month sentence would always be unreasonable, but vacated and remanded for further proceedings. Judge Motz dissented on the sentencing issue, arguing that the majority's review ignored Gall and failed to provide the proper level of deference to the district court's sentence, concluding that it was a reasonable sentence, if not ,perhaps, the most reasonable.

Monday, June 02, 2008

Court Upholds 316% Upward Variance

US v. Evans: Evans committed a series of fraud and identity theft offenses, starting when he bought some personal information of Wachovia Bank account holders from a friend who worked at the bank. Eventually, he passed $13,600 in bad checks on the accounts of two individuals. Based on that loss, Evans's advisory Guideline range at sentencing was 24-30 months. In addition, the Government moved for a downward departure for Evans's substantial assistance in going after the friend who sold him the information. The district court saw things quite differently, concluding that the Guidelines grossly understated Evans's criminal history and the seriousness of his offense. It imposed a sentence of 125 months in prison.

On appeal, Evans argued that his sentence was unreasonable. After holding the case in abeyance pending the outcome of Gall, the Fourth Circuit affirmed the sentence. The court reviewed the record and concluded that the district court "carefully and thoroughly applied the prescribed sentencing factors" when imposing sentence. Affirmance was necessary, given "the requisite deference we must accord to the considered judgment of the district court." The court then specifically rejected Evans's argument that the Guidelines prohibited a departure on the grounds relied upon by the district court (the district court cited some Guideline provisions during the sentencing), concluding that if the sentence is reasonable and the district court was applying the 3553(a) factors the Guideline analysis was irrelevant. The court also rejected Evans's argument that the scope of the variance was too great. Judge Gregory concurred in the judgment, but wrote separately to "encourage a more tempered overall approach to the substantive reasonableness analysis."