Tuesday, August 18, 2009

Good Faith Saves Search Based on Anticipatory Warrant

US v. Andrews: Andrews was convicted of being a felon in possession of a firearm after officers recovered a gun during the search of his home pursuant to a warrant. The warrant was issued after a package was intercepted at the local FedEx depot that contained marijuana. Although it was not addressed to Andrews (by name or by street address), circumstances, including a call from the shipper modifying the address (still not Andrews's), led officers to believe it was meant for him. They obtained an anticipatory search warrant set to become effective once Andrews took delivery of the box. Andrews took delivery of the box, took it inside briefly, and then took it to another nearby home. He was arrested at that point and the search, which uncovered the gun, took place.

As before the district court, on appeal Andrews argued that the search of his home violated the Fourth Amendment. The Fourth Circuit disagreed (as did the district court, obviously) and affirmed his conviction. Applying Leon, the court concluded that the facts presented to the issuing magistrate were not so deficient such that they clearly failed to establish probable cause or that the magistrate acted merely as a rubber stamp for the officer. The court also rejected Andrews's argument that the officer who obtained the warrant had misled the issuing magistrate by leaving out relevant information about the location of the search.

Jurisdiction Proper in North Carolina to Prosecute Assault in Afghanistan

US v. Passaro: This case arises from an "interrogation" Passaro, a former special forces medic (apparently a civilian contractor at the time of the incident), inflicted upon an Afghan detainee at a small US base in Afghanistan in 2003. The interrogation consisted mostly of beating and kicking (the suspect died shortly thereafter), which led to Passaro being charged and convicted of assault with a deadly weapon and assault resulting in serious bodily injury (two counts of each) and being sentenced to a 100-month term of imprisonment. The wrinkle is that, while the crime occurred in Afghanistan, it was prosecuted in the Eastern District of NC when Passaro returned to the United States.

On appeal, Passaro challenged his conviction and both he and the Government challenged his sentence. As to the conviction, Passaro first argued that the district court in North Carolina lacked the jurisdiction over acts committed in Afghanistan. The Fourth Circuit disagreed, arguing that the language of 18 USC 7(9) extended jurisdiction to incidents that happened at the US base in Afghanistan. The court also turned away Passaro's argument that the prosecution violated separation of powers principals because the courts were interfering with the executive's foreign policy authority, noting that the executive was the one that brought the prosecution in the first place. In addition, the court concluded that the statute under which Passaro was convicted, 18 USC 113, was not unconstitutionally vague, rejecting his argument that his "battlefield interrogation" could not be an "assault." Passaro's argument that the district court erred in dealing with classified information denied him a fair trial was similarly turned away.

As to sentencing, both Passaro and the Government agreed that the district court's Guideline calculations were wrong (although for slightly different reasons), therefore Passaro's sentence was vacated and the case remanded for resentencing.

DC Use of Presumption of Reasonableness Requires Resentencing

US v. Raby: Raby pleaded guilty to possession of child porn and faced a Guideline range of 210-262 months. Over the course of several sentencing hearings, during which Raby argued for a variance and the Government sang from the Guideline hymnal, the district court judge repeatedly stated that he didn't see how he could impose anything other than a Guideline sentence without getting reversed on appeal. In the end, he imposed a 210-month sentence, explaining that he wasn't at liberty to consider any of the several mitigating factors without being "unreasonable."

Years pass, as the case languishes on appeal. In the interim, the Supreme Court decides Gall and other cases that both uphold the presumption of reasonableness as an appellate review tool, but make clear that district court's cannot apply it at the initial sentencing. The Fourth Circuit, after lots of direct quotations from the numerous sentencing hearings, concluded that the district court erroneously applied the presumption at sentencing and, thus, Raby's sentence was procedurally unreasonable. His sentence was vacated and the case remanded for a new sentencing hearing.

Congrats to the defender office in the SDWV for the win!