Wednesday, May 20, 2009

Non-Governmental Interception of Phone Calls Requires Suppression

US v. Crabtree: Crabtree was on supervised release, living with his girlfriend. When she became suspicious about Crabtree's relationship with his ex-wife, she began taping his phone calls. Among other things, the calls showed Crabtree threatened to burn down the ex's home and truck (I assume - it's difficult to say whether the threat was to the ex or the girlfriend, from the way the opinion is written) and set up a third party to be arrested. The girlfriend called Crabtree's probation officer to report that she was throwing him out of the house and turned over the recordings. Crabtree was charged with 13 supervised release violations, the most serious of which sprang from the recorded phone calls. After considering those recordings, the district court revoked Crabtree's term of supervised release and sentenced him to 24 months in prison.

On appeal, the Fourth Circuit vacated and remanded for further proceedings. First, the court noted that the girlfriend clearly violated the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 because neither Crabtree nor his ex consented to the recording and the girlfriend was not a party to the conversations. Second, the court noted that 18 USC 2515 generally excludes the use of evidence procured in violation of Title III. Finally, the court rejected the district court's reading of a "clean hands" exception into section 2515. Noting that the circuits are split on whether such an exception exists, the Fourth sides with the majority and agrees that it does not. The language of 2515 is clear and has no "gaps or shadows in the language that might leave lurking a clean-hands exception."

Although there were other violations found by the district court, those based on the recordings were the most serious and thus required remand.

Congrats to the defender office in the Western District of Virginia on the win!

Gun On Person Possessed "In Connection With" Simple Possession Felony

US v. Jenkins: Jenkins (aka "Big Tim") was confronted by Charleston, South Carolina, police, while carrying a firearm. After he was arrested, officers noticed "a white rock-like substance between his fingers, later identified as .29 gram[] of cocaine base" while processing him. Jenkins was charged and pleaded guilty to being a felon in possession of a firearm. At sentencing, his offense level was enhanced four levels because he possessed the firearm "in connection with another felony offense" - the possession of cocaine base. Jenkins objected to the enhancement, but the district court applied it and sentenced him to 71 months in prison.

On appeal, the Fourth Circuit affirmed. Jenkins conceded that he committed another felony offense, but argued that his possession of the firearm was not done in connection with it. The court disagreed, concluding that Jenkins's possession of the firearm facilitated, or had the potential to facilitate, his possession of drugs. "[I]t is clear," the court wrote, "that the possession of a firearm can facilitate a simple drug possession offense," as it provides a means for the user to protect his stash and the investment therein. In Jenkins's case, the fact that he took a gun out into the street where a shot had recently been fired showed "there was a heightened need for protection and that the firearm emboldened" him.

Monday, May 11, 2009

Disqualification of Counsel Did Not Vioalte Sixth Amendment; Court May Hear Appeals Filed Outside 10-Day Window

US v. Urutyan: Urutyan was convicted of fraud, conspiracy, and aggravated identity theft, based on a scheme to collect PINs from an ATM at a convenience store where he (and other conspirators) worked. Once they had the numbers, the conspirators withdrew about $600,000 from various accounts and wired the money to Russia and Armenia. Urutyan was initially represented by appointed counsel, but eventually retained a California attorney to represent him. Investigation prior to trial revealed that the attorney was being paid by a nearly anonymous third party, likely from some of the proceeds of the conspiracy, and that the attorney was not properly accounting for the cash payments made with the IRS. After a hearing, the district court disqualified retained counsel. Urutyan went to trial with retained local counsel and was convicted.

On appeal, the Fourth Circuit affirmed Urutyan's convictions, rejecting the only argument presented, that the district court violated his Sixth Amendment right to counsel when it disqualified the California attorney. The court concluded that the district court did not abuse its discretion in disqualifying counsel due to a serious potential conflict of interest, given the investigation into the source of the funds with which he was retained (and the implication that counsel was part of the grander conspiracy).

Before reaching that issue, the Fourth concluded, in line with all other circuits to reach the issue, that the failure to file a timely notice of appeal is not a flaw of jurisdictional dimension, preventing the court from hearing an appeal. Applying recent Supreme Court precedent, the court concluded that the non-statutory 10-day deadline to file a notice of appeal is a claim processing rule, not a jurisdictional requirement.