US v. Chester: Police were called to Chester's home during a dispute with his then wife. A search of the home uncovered a pistol and a shotgun, which Chester admitted belonged to him. He was charged with possession of firearms after being convicted of a misdemeanor crime of domestic violence, based on an earlier incident involving his daughter. Chester moved to dismiss the charge, arguing that it violated his Second Amendment right to keep and bear arms, as set forth in the Supreme Court's Heller decision. The district court denied the motion, and Chester pleaded guilty, reserving his ability to appeal the denial of the motion to dismiss.
On appeal, the Fourth Circuit initially vacated Chester's conviction in an unpublished opinion, remanding for the district court to identify a specific level of scrutiny and apply it. The Government sought rehearing, which the panel granted. In this published opinion, the court identifies the correct level of scrutiny, but vacates Chester's conviction to remand for application of that standard. The court adopted the two-step process set forth in the first opinion, based on the panel decision in US v. Skoien, 587 F.3d 803 (7th Cir. 2009), although that decision was later vacated by an en banc court.
As a first step, the court assumed (because the historical evidence was unclear) that Chester's possession fell within the general parameters of the Second Amendment. The court then held that the proper level of scrutiny to apply was intermediate scrutiny, analogizing to the lesser protections under the First Amendment for commercial speech and time, place, manner restrictions. On this record, the court could not conclude that the Government met its burden under that standard, noting that while the Government "has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal . . . it has not attempted to offer sufficient evidence to establish a relationship between [this prohibition] and an important government goal." Therefore, the court remanded to the district court for further proceedings.
Judge Davis concurred in the judgment, but took the majority to task for relying too heavily on analogies between the First and Second Amendments. He endorses the result of the en banc decision in Skoien and argues that the district court will have no trouble concluding that Chester is not protected from conviction by the Second Amendment.
Thursday, December 30, 2010
Watson's New Rule Applies Retroactively
US v. Thomas: Thomas was convicted of methamphetamine possession and possession of a firearm in connection with a drug trafficking offense. He received a total sentence of 90 months in prison. He did not appeal. After Thomas was sentenced, the Supreme Court handed down the Watson decision, in which it held that a person doesn't "use" a firearm under the statute if he receives it in trade for drugs. Thomas filed a pro se 2255 motion seeking to vacate his sentence. Although it was filed after the normal 1-year statute of limitations had run, it was filed within one year of Watson being decided. The district court dismissed Thomas's motion, holding that Watson did not announce a new rule of constitutional law and, at any rate, was not retroactive.
On appeal, the Fourth Circuit disagreed and overruled the district court's decision. The Government conceded that Watson announced a new rule and was retroactive. However, it argued that Thomas defaulted on the issue by not raising it on direct appeal. Turning first to the impact of Watson, the court agreed with other circuits that it may determine retroactivity, rather than waiting for the Supreme Court to do so. It then concluded that Watson announced a new rule and that rule applied retroactively, thus obliterating the district court's basis for denying Thomas's motion. However, because that dismissal came before the Government responded to the motion, and due to some ambiguity in the motion itself, the court declined to decide the waiver issue raised by the Government and simply remanded the case to the district court for further proceedings.
On appeal, the Fourth Circuit disagreed and overruled the district court's decision. The Government conceded that Watson announced a new rule and was retroactive. However, it argued that Thomas defaulted on the issue by not raising it on direct appeal. Turning first to the impact of Watson, the court agreed with other circuits that it may determine retroactivity, rather than waiting for the Supreme Court to do so. It then concluded that Watson announced a new rule and that rule applied retroactively, thus obliterating the district court's basis for denying Thomas's motion. However, because that dismissal came before the Government responded to the motion, and due to some ambiguity in the motion itself, the court declined to decide the waiver issue raised by the Government and simply remanded the case to the district court for further proceedings.
Possession of Sawed-Off Shotgun Is Crime of Violence
US v. Hood: Hood was convicted of drug and gun offenses and sentenced as a career offender. He objected to that classification, arguing that a prior North Carolina conviction for "possession of a weapon of mass death and destruction" (actually a sawed-off shotgun) was not a crime of violence. The district court disagreed and the Fourth Circuit affirmed.
Holding that earlier precedent on the issue was obsolete in light of Begay, the court nevertheless found that possession of a sawed off shotgun was a crime of violence. Distinguishing the Guideline issue from the related Armed Career Criminal Act definition of "violent felony" (the court has held, in an unpublished case, that possession of a sawed-off shotgun is not a violent felony), the court noted that Guideline commentary specifically includes possession of a sawed-off shotgun in the definition of crime of violence. Therefore, it qualified as such, even under a Begay analysis.
Holding that earlier precedent on the issue was obsolete in light of Begay, the court nevertheless found that possession of a sawed off shotgun was a crime of violence. Distinguishing the Guideline issue from the related Armed Career Criminal Act definition of "violent felony" (the court has held, in an unpublished case, that possession of a sawed-off shotgun is not a violent felony), the court noted that Guideline commentary specifically includes possession of a sawed-off shotgun in the definition of crime of violence. Therefore, it qualified as such, even under a Begay analysis.
Tuesday, December 28, 2010
District Court Must ID Statutory Basis for Restitution Order
US v. Leftwich: Leftwich was convicted of mail fraud and making false claims, after participating in a scheme that saw the IRS pay out more than $2 million in false tax refunds. An issue at sentencing was whether the district court would order restitution. At the guilty plea hearing, the district court noted it had the authority to order restitution, but did not indicate the source of that authority. Prior to sentencing, Leftwich filed a memorandum arguing that the Mandatory Victims Restitution Act did not apply in his case and that, while the Victim Witness Protection Act did apply, the statutory factors to be considered under that Act negated an award of restitution. The Government did not respond to that argument at all (leading to a written lashing from the Fourth Circuit). At sentencing, the district court ordered restitution, but did not indicate its statutory basis for doing so.
On appeal, the Fourth Circuit vacated the order of restitution. The court held that without the district court identifying on what basis it ordered restitution, the court could not review that order for abuse of discretion. The MVRA and VWPA each have different procedural and substantive nuances which must be taken into account before ordering restitution. The court vacated and remanded to the district court for further proceedings as to the basis for the restitution issue.
On appeal, the Fourth Circuit vacated the order of restitution. The court held that without the district court identifying on what basis it ordered restitution, the court could not review that order for abuse of discretion. The MVRA and VWPA each have different procedural and substantive nuances which must be taken into account before ordering restitution. The court vacated and remanded to the district court for further proceedings as to the basis for the restitution issue.
Court OK's Assault Enhancement & Felony Enhancement Arising From Flight From Police
US v. Hampton: Hampton was a passenger in a car that was stopped for a broken taillight. During the stop, officers noticed that he was "exhibiting signs of nervousness." When the driver was arrested on an outstanding warrant, Hampton was ordered out of the car. He complied, but then pushed the officer closest to him and fled. He was captured, and, after a struggle, a pistol was found in his pants pocket. One of the officers was injured during the struggle. Hampton was charged with being a felon in possession of a firearm and ammunition. After an unsuccessful motion to suppress, Hampton was convicted and sentenced to 300 months in prison.
On appeal, Hampton challenged the calculation of his advisory Guideline range on several grounds.* First, he argued that an enhancement under USSG 3A1.2(c)(1) for assault of a police officer during flight was not appropriate. Specifically, he argued that his conduct did not create a substantial risk of serious bodily injury, as required to trigger the enhancement. The Fourth Circuit disagreed, holding that Hampton assaulted a police officer during the struggle to subdue him and that assault resulted in serious bodily injury. Second, Hampton argued that his conduct did not constitute another felony offense, so as to trigger the enhancement under USSG 2K2.1(b)(6). The court disagreed, holding that because Hampton assaulted an officer during the struggle, he committed a felony under South Carolina law. Finally, Hampton argued that the application of both enhancements (for a total of 10 levels) was impermissible double counting. The Fourth Circuit disagreed, holding that there was nothing in the Guidelines to change the presumption that double counting is acceptable.
* Hampton also challenged the district court's denial of his motion to suppress, but conceded that his argument was precluded by Fourth Circuit precedent and was presented only to preserve it for further review.
On appeal, Hampton challenged the calculation of his advisory Guideline range on several grounds.* First, he argued that an enhancement under USSG 3A1.2(c)(1) for assault of a police officer during flight was not appropriate. Specifically, he argued that his conduct did not create a substantial risk of serious bodily injury, as required to trigger the enhancement. The Fourth Circuit disagreed, holding that Hampton assaulted a police officer during the struggle to subdue him and that assault resulted in serious bodily injury. Second, Hampton argued that his conduct did not constitute another felony offense, so as to trigger the enhancement under USSG 2K2.1(b)(6). The court disagreed, holding that because Hampton assaulted an officer during the struggle, he committed a felony under South Carolina law. Finally, Hampton argued that the application of both enhancements (for a total of 10 levels) was impermissible double counting. The Fourth Circuit disagreed, holding that there was nothing in the Guidelines to change the presumption that double counting is acceptable.
* Hampton also challenged the district court's denial of his motion to suppress, but conceded that his argument was precluded by Fourth Circuit precedent and was presented only to preserve it for further review.
Divided Court OKs Extension of Traffic Stop
US v. Mason: Mason was driving on Interstate 20 in Georgia when he was pulled over due to having illegally tinted windows. Prior to writing Mason a warning, the officer talked with him and his passenger, who told different stories about where they had been and why. The officer, suspecting they were involved in drug activity (I-20 is a know drug corridor and Atlanta, the direction from which Mason was travelling, a source city) radioed for a K9 unit to assist him. When the K9 unit arrived, the dog alerted, first on the outside of the car and then by leaping inside an open window and further alerting. A search of the trunk revealed 10 kilograms of cocaine. Mason was charged and convicted, following an unsuccessful motion to suppress, of trafficking in more than five kilograms of cocaine and was sentenced to a mandatory sentence of life in prison.
On appeal, Mason challenged both the denial of his motion to suppress and his life sentence. As to the motion to suppress, Mason argued that the officer lacked reasonable suspicion to prolong the stop past the issuance of the warning ticket and that the dog's entry into the car violated the Fourth Amendment. On the first argument, the Fourth Circuit disagreed, holding that the officer had sufficient evidence to conclude that criminal activity was afoot. Although several of the facts were consistent with innocent travel, when taken as a whole the facts rose to the level of reasonable suspicion. As to the dog, the court noted that once the dog alerted to the presence of drugs outside the car there was probable cause to search the vehicle, so the dog's entry did not violate the Fourth Amendment. The court also held, addressing an argument that appeared only during oral argument, that the officer's questions prior to issuing the warning did not unduly lengthen the stop. As to Mason's sentence, the court held that he had not carried his burden of showing that two prior state convictions were obtained without counsel, even if the statute of limitations in 21 USC 851(e) did not prevent review of the issue.
Judge Gregory dissented on the search issue. He argued that the officer did not have reasonable suspicion to extend the traffic stop, after "supplementing and clarifying some key facts . . . that are omitted by the majority."
On appeal, Mason challenged both the denial of his motion to suppress and his life sentence. As to the motion to suppress, Mason argued that the officer lacked reasonable suspicion to prolong the stop past the issuance of the warning ticket and that the dog's entry into the car violated the Fourth Amendment. On the first argument, the Fourth Circuit disagreed, holding that the officer had sufficient evidence to conclude that criminal activity was afoot. Although several of the facts were consistent with innocent travel, when taken as a whole the facts rose to the level of reasonable suspicion. As to the dog, the court noted that once the dog alerted to the presence of drugs outside the car there was probable cause to search the vehicle, so the dog's entry did not violate the Fourth Amendment. The court also held, addressing an argument that appeared only during oral argument, that the officer's questions prior to issuing the warning did not unduly lengthen the stop. As to Mason's sentence, the court held that he had not carried his burden of showing that two prior state convictions were obtained without counsel, even if the statute of limitations in 21 USC 851(e) did not prevent review of the issue.
Judge Gregory dissented on the search issue. He argued that the officer did not have reasonable suspicion to extend the traffic stop, after "supplementing and clarifying some key facts . . . that are omitted by the majority."
Walk Away Escape Not Crime of Violence
US v. Clay: Another round in the ongoing saga of whether a prior escape conviction triggers enhanced recidivist penalties. In this case, the prior conviction was a Georgia conviction for felony escape, incurred at the same time as a conviction for interference with government property. At issue was whether that escape conviction was a "crime of violence" as defined by the Guidelines, which would enhance the base offense level for Clay's offense of conviction, being a felon in possession of a firearm. The district court held that it was a crime of violence and applied the Guidelines accordingly.
The Fourth Circuit disagreed and vacated Clay's sentence. It noted that the Georgia escape statute covered at least three kinds of conduct: escape from a secure facility, failure to return from to custody, and walking away from an unsecured facility. The parties agreed that the first type of conduct would be a crime of violence, while the other two would not (the court agreed on the third type of conduct, previously an open issue in the Fourth Circuit). Nonetheless, the Government argued that Clay's conduct fell in the first category because, when the escape conviction was read in conjunction with the interference with government property conviction, it was clear that Clay was shackled and did something to those shackles to effect an escape. Hence, he escaped from a secure facility. The court disagreed, holding that the applicable evidence did not necessarily show that inference to be true. Thus, Clay's sentence was vacated and his case remanded for resentencing.
Congrats to the Defender office in WDNC on the win!
The Fourth Circuit disagreed and vacated Clay's sentence. It noted that the Georgia escape statute covered at least three kinds of conduct: escape from a secure facility, failure to return from to custody, and walking away from an unsecured facility. The parties agreed that the first type of conduct would be a crime of violence, while the other two would not (the court agreed on the third type of conduct, previously an open issue in the Fourth Circuit). Nonetheless, the Government argued that Clay's conduct fell in the first category because, when the escape conviction was read in conjunction with the interference with government property conviction, it was clear that Clay was shackled and did something to those shackles to effect an escape. Hence, he escaped from a secure facility. The court disagreed, holding that the applicable evidence did not necessarily show that inference to be true. Thus, Clay's sentence was vacated and his case remanded for resentencing.
Congrats to the Defender office in WDNC on the win!
Tricking Agency Into Issuing Invalid Passport Supports Conviction
US v. Luke: A person claiming to be Luke's son applied for a passport in Philadelphia. Luke, a naturalized citizen, accompanied him to a subsequent interview. Although the applicant left during the interview when his identity was questioned, Luke remained and argued that the passport should be issued. When it was not, he left. Another suspicious passport application, made in Maryland, provided Luke's address as that of the applicant. During the subsequent investigation, Luke made several false statements about the alleged applicant and his knowledge of him. As a result of the investigation, Luke was charged with (among other things) conspiracy to commit identification document fraud and aggravated identity theft. He was convicted on both counts.
On appeal, Luke argued that the district court erred by denying his motion for a judgment of acquittal on the conspiracy count because his behavior did not fall within the ambit of the substantive offenses he was allegedly conspiring to commit. Specifically, he argued that the passports at issue could not have been "produced without lawful authority" where government employees simply produce genuine documents based on information they did not know to be false. In other words, if the applicant can trick the agency into issuing the passport, it was produced with lawful authority. Relying on earlier precedent, the Fourth Circuit rejected that argument. The court also rejected Luke's argument that he could not conspire to with an intent to defraud the United States because a falsely issued passport has no inherent value and did not deprive the government of anything of value.
On appeal, Luke argued that the district court erred by denying his motion for a judgment of acquittal on the conspiracy count because his behavior did not fall within the ambit of the substantive offenses he was allegedly conspiring to commit. Specifically, he argued that the passports at issue could not have been "produced without lawful authority" where government employees simply produce genuine documents based on information they did not know to be false. In other words, if the applicant can trick the agency into issuing the passport, it was produced with lawful authority. Relying on earlier precedent, the Fourth Circuit rejected that argument. The court also rejected Luke's argument that he could not conspire to with an intent to defraud the United States because a falsely issued passport has no inherent value and did not deprive the government of anything of value.
Sexually Dangerous Persons Comittment Scheme Does Not Violate Due Process
US v. Comstock: This decision comes following the remand of this case by the Supreme Court following it's decision last year upholding Congress's authority to enact the civil commitment scheme for "sexually dangerous" offenders in the Adam Walsh Act of 2006. Because the Fourth Circuit had agreed with the district court that Congress lacked that authority, it did not address the defendants' due process attacks on the law the first time around. This time, with the issue of Congressional authority resolved, it addressed the due process argument. Under the Act, a person may be committed if a court finds by clear and convincing evidence both that that person "has engaged or attempted to engage in sexual violence or child molestation" and is "sexually dangerous to others."
The Fourth Circuit concluded that this scheme did not violate due process. It set out three criterion that must be met before commitment could take place: that the defendant has engaged or attempted to engage in sexual violence or child molestation (the "prior bad act finding"); that the defendant suffers from a serious mental illness, abnormality, or disorder; and that, as a result, the defendant would have serious difficulty refraining from sexually violent conduct or child molestation if released. The court concluded, and the defendants agreed, that Supreme Court precedent required only proof by clear and convincing evidence on the second and third criterion. As to the prior bad act finding, however, the defendants argued that a beyond a reasonable doubt standard was required. The court disagreed, holding that the prior bad act finding is not limited to criminal behavior and thus no "prior criminal act finding" is required by the Act. Furthermore, the nature of the Act was that of a civil, rather than criminal, proceeding and thus was not subject to the higher standard of proof.
The Fourth Circuit concluded that this scheme did not violate due process. It set out three criterion that must be met before commitment could take place: that the defendant has engaged or attempted to engage in sexual violence or child molestation (the "prior bad act finding"); that the defendant suffers from a serious mental illness, abnormality, or disorder; and that, as a result, the defendant would have serious difficulty refraining from sexually violent conduct or child molestation if released. The court concluded, and the defendants agreed, that Supreme Court precedent required only proof by clear and convincing evidence on the second and third criterion. As to the prior bad act finding, however, the defendants argued that a beyond a reasonable doubt standard was required. The court disagreed, holding that the prior bad act finding is not limited to criminal behavior and thus no "prior criminal act finding" is required by the Act. Furthermore, the nature of the Act was that of a civil, rather than criminal, proceeding and thus was not subject to the higher standard of proof.
Monday, December 06, 2010
Unrelated Police Misconduct Does Not Require New Trial
US v. Robinson: Robinson was convicted by a jury of several drug and gun charges, including a 924(c) charge, and sentenced to 50 years in prison. After his trial, Robinson learned that four of the officers involved in the investigation against him had committed misconduct in other cases. Robinson moved for a new trial, based on that misconduct. The district court initially granted the motion because the misconduct, although taking place in other cases, went "to the integrity of the investigation." However, after reconsideration, the court limited its decision to the several counts which those officers initiated - those convictions were vacated and the Government subsequently dismissing them. The counts which were initiated by another agency, although the rogue officers were involved in them, however, were affirmed and Robinson was resentenced to 600 months in prison.
On appeal, Robinson argued that the district court erred by not vacating all of his convictions, relying on the district court's initial observation about the integrity of the investigation. The Fourth Circuit disagreed and affirmed the district court. It held that, on the remaining counts, the testimony of the disgraced officers was "amply corroborated" by other witnesses and physical evidence. The misconduct would have served as impeachment evidence, of little value, but nothing else - it provided no alternate theory of defense, for example. Finally, the court held that Robinson could not show that the new evidence, if presented at trial, probably would have produced an acquittal. The court also rejected a Brady argument with regards to the evidence of misconduct, holding that the Government had no knowledge of the misconduct.
Robinson also appealed his conviction under 18 USC 924(c) due to incorrect jury instructions and insufficient evidence. The Fourth Circuit also rejected those arguments. Applying plain error review on the jury instruction issue, the court held that the instructions on that charge were erroneous and plain, in light of the Supreme Court's decision in Watson, but Robinson could not show prejudice and, even if he could, the court would not notice the error under the final prong of Olano. As to the sufficiency argument, it "like many of the claims before it, runs directly into the wealth of evidence detailing Robinson's activities."
On appeal, Robinson argued that the district court erred by not vacating all of his convictions, relying on the district court's initial observation about the integrity of the investigation. The Fourth Circuit disagreed and affirmed the district court. It held that, on the remaining counts, the testimony of the disgraced officers was "amply corroborated" by other witnesses and physical evidence. The misconduct would have served as impeachment evidence, of little value, but nothing else - it provided no alternate theory of defense, for example. Finally, the court held that Robinson could not show that the new evidence, if presented at trial, probably would have produced an acquittal. The court also rejected a Brady argument with regards to the evidence of misconduct, holding that the Government had no knowledge of the misconduct.
Robinson also appealed his conviction under 18 USC 924(c) due to incorrect jury instructions and insufficient evidence. The Fourth Circuit also rejected those arguments. Applying plain error review on the jury instruction issue, the court held that the instructions on that charge were erroneous and plain, in light of the Supreme Court's decision in Watson, but Robinson could not show prejudice and, even if he could, the court would not notice the error under the final prong of Olano. As to the sufficiency argument, it "like many of the claims before it, runs directly into the wealth of evidence detailing Robinson's activities."
Court Vacates One Drug Conspiracy Conviction Only to Mandate Another
US v. Hickman: Hickman was charged in a multi-defendant indictment with conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin and possession with intent. He alone went to trial and was convicted. Pursuant to 21 USC 851, he was sentenced to life on the conspiracy count and 360 months on the possession count. He was arrested in a traffic stop after he drove away from purchasing 32.14 grams of heroin from a codefendant. Subsequent searches of one of his codefendant's offices uncovered 25,000 empty vials of the type typically used to distribute heroin. Although Hickman contacted his codefendant after being released by police and inquired about further purchases, none ever transpired.
At trial, although all of Hickman's six codefendants had pleaded guilty, none of them testified, nor did the Government produce testimony from any other participant in the conspiracy. All the evidence came from investigators involved in the case. One testified as an expert in narcotics investigations. He both "interpreted" the contents of wiretapped phone conversations for the jury and how the 25,000 empty vials would be enough to hold 1 kilogram of "user-strength" heroin. Hickman moved for a judgment of acquittal on the conspiracy count, which the district court denied. Neither Hickman nor the Government made any argument or request for a lesser included offense on the conspiracy.
On appeal, Hickman challenged both his convictions and sentence. As to the conspiracy conviction, the Fourth Circuit agreed that there was insufficient evidence to sustain it. While "easily" concluding that the evidence demonstrated a conspiracy, the court held that there was insufficient evidence that it involved more than 1 kilogram of heroin. The inferences from the evidence relied upon by the Government required, to reach the 1 kilogram threshold, "if not a mathematical impossibility, . . . reasoning so attenuated as to provide insufficient support for the jury's verdict." The court rejected the Government's arguments that the amount of heroin involved was sustained by the fact that one of Hickman's codefendants ran a store that sold drug paraphernalia (it was a "one stop shop" for heroin) and that the members of the conspiracy were experienced enough in the drug trade that the conspiracy "encompassed far more drug distribution activity . . . than that of which the Government could produce competent evidence." Therefore, the court vacated Hickman's conviction, but remanded with instructions to enter a conviction on the lesser included offense of conspiracy to distribute more than 100 grams of heroin, even though neither party sought a lesser offense at trial.
The Fourth Circuit otherwise affirmed Hickman's conviction and sentence, turning away in brief challenges to the jury instructions, the use of wiretap transcripts during deliberations, and the applicability of his prior offenses to enhance his sentence.
At trial, although all of Hickman's six codefendants had pleaded guilty, none of them testified, nor did the Government produce testimony from any other participant in the conspiracy. All the evidence came from investigators involved in the case. One testified as an expert in narcotics investigations. He both "interpreted" the contents of wiretapped phone conversations for the jury and how the 25,000 empty vials would be enough to hold 1 kilogram of "user-strength" heroin. Hickman moved for a judgment of acquittal on the conspiracy count, which the district court denied. Neither Hickman nor the Government made any argument or request for a lesser included offense on the conspiracy.
On appeal, Hickman challenged both his convictions and sentence. As to the conspiracy conviction, the Fourth Circuit agreed that there was insufficient evidence to sustain it. While "easily" concluding that the evidence demonstrated a conspiracy, the court held that there was insufficient evidence that it involved more than 1 kilogram of heroin. The inferences from the evidence relied upon by the Government required, to reach the 1 kilogram threshold, "if not a mathematical impossibility, . . . reasoning so attenuated as to provide insufficient support for the jury's verdict." The court rejected the Government's arguments that the amount of heroin involved was sustained by the fact that one of Hickman's codefendants ran a store that sold drug paraphernalia (it was a "one stop shop" for heroin) and that the members of the conspiracy were experienced enough in the drug trade that the conspiracy "encompassed far more drug distribution activity . . . than that of which the Government could produce competent evidence." Therefore, the court vacated Hickman's conviction, but remanded with instructions to enter a conviction on the lesser included offense of conspiracy to distribute more than 100 grams of heroin, even though neither party sought a lesser offense at trial.
The Fourth Circuit otherwise affirmed Hickman's conviction and sentence, turning away in brief challenges to the jury instructions, the use of wiretap transcripts during deliberations, and the applicability of his prior offenses to enhance his sentence.
Seizure and Patdown Justified By Association With Apparent Gang Activity
US v. Hernandez-Mendez: Montgomery County (MD) police officers set up surveillance outside a local high school following a gang-related stabbing that had occurred in the area. The high school was noted for gang activity in the past. Hernandez-Mendez was observed with a group of seven young Hispanic men outside the school who appeared to be conducting some sort of meeting. Eventually, Hernandez-Mendez left the group, but remained in the area, and was followed by an officer. When officers approached the seven young men, they split up, with one of them running away. Officers decided to "stop everyone in the group."
Hernandez-Mendez complied when confronted by an officer, gave her name, and handed over her wallet, which included several credit cards in her name but no photo ID. She told the officers that she didn't know any of the three young men, including the one who ran away. An officer asked if she had ID in her purse as he reached towards it, prompting Hernandez-Mendez to pull away and say "no." The officer grabbed the purse and felt an object that he recognized as a firearm. He found a pistol inside. Hernandez-Mendez was charged with being an alien in possession of a firearm and possession of a firearm in a school zone. After the district court denied her motion to suppress the gun, she was convicted on both counts at a stipulated bench trial.
On appeal, Hernandez-Mendez challenged the district court's denial of her motion to suppress. She first argued that the officers lacked reasonable suspicion to detain her. The Fourth Circuit disagreed, holding that the officers' experience with Hispanic gangs, previous history of gang incidents at the school, and the surveillance observations provided reasonable suspicion for the stop, namely that some retaliation was being planned with regards to the earlier stabbing. Hernandez-Mendez also argued that even if the stop was warranted, the frisk of her purse was not. The Fourth Circuit disagreed, holding that the facts developed after the seizure, particularly Hernandez-Mendez's "evasiveness" warranted a patdown. Once the officer felt the gun through the purse, it could be seized. Thus, the Fourth Circuit affirmed the district court's ruling and Hernandez-Mendez's convictions.
Hernandez-Mendez complied when confronted by an officer, gave her name, and handed over her wallet, which included several credit cards in her name but no photo ID. She told the officers that she didn't know any of the three young men, including the one who ran away. An officer asked if she had ID in her purse as he reached towards it, prompting Hernandez-Mendez to pull away and say "no." The officer grabbed the purse and felt an object that he recognized as a firearm. He found a pistol inside. Hernandez-Mendez was charged with being an alien in possession of a firearm and possession of a firearm in a school zone. After the district court denied her motion to suppress the gun, she was convicted on both counts at a stipulated bench trial.
On appeal, Hernandez-Mendez challenged the district court's denial of her motion to suppress. She first argued that the officers lacked reasonable suspicion to detain her. The Fourth Circuit disagreed, holding that the officers' experience with Hispanic gangs, previous history of gang incidents at the school, and the surveillance observations provided reasonable suspicion for the stop, namely that some retaliation was being planned with regards to the earlier stabbing. Hernandez-Mendez also argued that even if the stop was warranted, the frisk of her purse was not. The Fourth Circuit disagreed, holding that the facts developed after the seizure, particularly Hernandez-Mendez's "evasiveness" warranted a patdown. Once the officer felt the gun through the purse, it could be seized. Thus, the Fourth Circuit affirmed the district court's ruling and Hernandez-Mendez's convictions.
Questioning In Kitchen During Execution of Search Warrant Not Custodial
US v. Hargrove: Hargrove spent several months in Internet chat rooms having sexually explicit discussions with several minor girls, one of whom was actually an underage girl, while the others turned out to be cops. At some point, the discussions turned to plans to meet up in real life, leading to the execution of search warrants at Hargrove's home. During the search, Hargrove gave incriminating statements to officers. As a result, he was indicted on obscenity, child pornography, and attempted enticement charges.
Prior to trial, Hargrove sought to suppress the statements made at his home, arguing that they were given with Miranda warnings while subject to custodial interrogation. The district court denied the motion, holding that the questioning was not custodial because Hargrove was not under arrest and told he was free to go. After being convicted on all counts at trial, Hargrove was sentenced to life in prison. In imposing that sentence, the district court noted that Hargrove went to trial (after the court rejected a 20-year plea) and required the minor victim to testify at trial.
On appeal, Hargrove challenged both the denial of his motion to suppress and the substantive reasonableness of his sentence. As to the suppression issue, the Fourth Circuit affirmed the district court, holding that the totality of circumstances did not show that Hargrove was in custody during the search, noting that he was told he was not under arrest and was free to leave at anytime, he was not handcuffed, and the conversation took place in his kitchen in a "comfortable atmosphere."
As to the sentence, the court affirmed the life sentence, reviewing for plain error because Hargrove raised an specific error - that the district court punished him for going to trial - rather than a general argument that his sentence was too long. Assuming, arguendo, that there was error and it was plain, the court found that Hargrove was not prejudiced by the imposition of a Guideline recommended sentence based on the other findings made by the district court.
Prior to trial, Hargrove sought to suppress the statements made at his home, arguing that they were given with Miranda warnings while subject to custodial interrogation. The district court denied the motion, holding that the questioning was not custodial because Hargrove was not under arrest and told he was free to go. After being convicted on all counts at trial, Hargrove was sentenced to life in prison. In imposing that sentence, the district court noted that Hargrove went to trial (after the court rejected a 20-year plea) and required the minor victim to testify at trial.
On appeal, Hargrove challenged both the denial of his motion to suppress and the substantive reasonableness of his sentence. As to the suppression issue, the Fourth Circuit affirmed the district court, holding that the totality of circumstances did not show that Hargrove was in custody during the search, noting that he was told he was not under arrest and was free to leave at anytime, he was not handcuffed, and the conversation took place in his kitchen in a "comfortable atmosphere."
As to the sentence, the court affirmed the life sentence, reviewing for plain error because Hargrove raised an specific error - that the district court punished him for going to trial - rather than a general argument that his sentence was too long. Assuming, arguendo, that there was error and it was plain, the court found that Hargrove was not prejudiced by the imposition of a Guideline recommended sentence based on the other findings made by the district court.
Monday, November 15, 2010
State Pretrial Detention Tolls Federal SR Term
US v. Ide: Ide was on a three-year term of supervised release when he was arrested on state charges, for which he was eventually convicted and sentenced. He spent about seven months in pretrial detention on the state charges and was given credit for that time when sentenced by the state court. Two years after being released from state custody, Ide was arrested for violating the terms of his supervised release. He moved to have the petition dismissed, arguing that his term of supervised release had ended because the it was not tolled, under 18 USC 3624(e), during the seven months he spent in state pretrial detention. The district court denied the motion, revoked Ide's term of supervised release, returned him to prison, and imposed a further term of supervised release (which Ide has subsequently violated).
On appeal, the Fourth Circuit affirmed. The dispute turned on the meaning of "imprisoned in connection with a conviction" in 3624(e), which triggers the tolling of a term of supervised release. The court noted that this "precise issue" has been decided by four other Circuits, only one of which had adopted Ide's reading of 3624(e). Adopting the majority position, the court concluded that Ide's position was foreclosed by the plain meaning of 3624(e). To hold otherwise would make the "in connection with" language superfluous, at least in cases like this one where the defendant received credit for the time spent in pretrial detention.
On appeal, the Fourth Circuit affirmed. The dispute turned on the meaning of "imprisoned in connection with a conviction" in 3624(e), which triggers the tolling of a term of supervised release. The court noted that this "precise issue" has been decided by four other Circuits, only one of which had adopted Ide's reading of 3624(e). Adopting the majority position, the court concluded that Ide's position was foreclosed by the plain meaning of 3624(e). To hold otherwise would make the "in connection with" language superfluous, at least in cases like this one where the defendant received credit for the time spent in pretrial detention.
Warrantless Entry Into Home OK When Searching for Child's Custodian
US v. Taylor: This is an odd Fourth Amendment case. An officer is called to a parking lot in Richmond by a taxi driver who has found a 4-year-old girl wandering the streets alone. The driver pointed out a nearby row house to the officer which the girl had told the driver was her home. The driver and girl had gone to the house, where the front door was open, but nobody inside responded to his inquiries. The officer talked to the girl, who said there was nobody at home to take care of her and that she was waiting on a bus to take her to day care. The officer and the girl returned to the house. When nobody answered the officer's inquiry, the girl went inside. The officer followed. He eventually went to the second floor, where he heard a male voice from a bedroom.
The officer went to the bedroom and found Taylor, who was the girl's father. He "became angry" and explained that the girl was suspended from day care and was not supposed to catch the bus. On a cabinet next to the bed was a "plastic bag containing .22 caliber bullets." Although Taylor denied having a gun, the officer asked him for identification, which Taylor claimed he did not have. He eventually gave the officer a fake name and date of birth. After backup arrived and was trying to verify Taylor's identity, the first officer did a protective sweep and discovered a handgun under the mattress. While the officer was using Taylor's cell phone (with permission), there was an incoming call from the girl's mother who identified Taylor. Armed with Taylor's actual identity, the officers discovered that he was both a convicted felon and the subject of outstanding arrest warrants. He was arrested and later charged with being a felon in possession of a firearm. The district court denied Taylor's motion to suppress the evidence discovered during the warrantless search of Taylor's home, after which Taylor pleaded guilty.
On appeal, the Fourth Circuit affirmed the district court's denial of the suppression motion. Because the officer who initiated the search was not involved in a criminal justice investigation, the warrant requirement of the Fourth Amendment had no application. Similarly probable cause was unnecessary. The only restraint on the search was that it was "reasonable." This search was reasonable because it was triggered by an exigent circumstance - "this four-year-old girl's unsupervised odyssey." "Few places could be less appropriate for an unattended child," the court concluded, than the busy streets of Richmond. As to what occurred after the officer entered the house, the court found "nothing unreasonable in this chain of events."
The officer went to the bedroom and found Taylor, who was the girl's father. He "became angry" and explained that the girl was suspended from day care and was not supposed to catch the bus. On a cabinet next to the bed was a "plastic bag containing .22 caliber bullets." Although Taylor denied having a gun, the officer asked him for identification, which Taylor claimed he did not have. He eventually gave the officer a fake name and date of birth. After backup arrived and was trying to verify Taylor's identity, the first officer did a protective sweep and discovered a handgun under the mattress. While the officer was using Taylor's cell phone (with permission), there was an incoming call from the girl's mother who identified Taylor. Armed with Taylor's actual identity, the officers discovered that he was both a convicted felon and the subject of outstanding arrest warrants. He was arrested and later charged with being a felon in possession of a firearm. The district court denied Taylor's motion to suppress the evidence discovered during the warrantless search of Taylor's home, after which Taylor pleaded guilty.
On appeal, the Fourth Circuit affirmed the district court's denial of the suppression motion. Because the officer who initiated the search was not involved in a criminal justice investigation, the warrant requirement of the Fourth Amendment had no application. Similarly probable cause was unnecessary. The only restraint on the search was that it was "reasonable." This search was reasonable because it was triggered by an exigent circumstance - "this four-year-old girl's unsupervised odyssey." "Few places could be less appropriate for an unattended child," the court concluded, than the busy streets of Richmond. As to what occurred after the officer entered the house, the court found "nothing unreasonable in this chain of events."
Tuesday, September 28, 2010
NC Indecent Liberties Conviction Can Trigger ACCA
US v. Vann: Vann pleaded guilty to being a felon in possession of a firearm. At the time, he had three prior North Carolina convictions for taking indecent liberties with a child. At sentencing, he objected to the use of those convictions as predicates under Armed Career Criminal Act, arguing that in light of Begay and subsequent Fourth Circuit law, they were not "violent felonies" for ACCA purposes. The district court disagreed and sentenced Vann to a term of 180 months in prison, the minimum required under the ACCA.
On appeal, the Fourth Circuit affirmed, 2-1. Vann argued that a pre-Begay Fourth Circuit case holding that convictions like his were "crimes of violence" under the Guidelines had been abrogated by Begay and that the Fourth Circuit's decision that Virginia's "carnal knowledge without the use of force" statute was not a violent felony post-Begay required the same conclusion with regards to his prior convictions. The court disagreed, noting that the NC statute at issue could be violated in two ways, one of which "requires physical acts against the body of a child," while the other does not. After first determining that Vann committed the offense which required a physical act against the body of a child, the court then concluded that such an offense was a violent felony under the ACCA. It noted the difference between the NC and Virginia offenses was that the later was committed "without the use of force."
Judge King dissented, arguing that the majority was incorrect in concluding that the NC statute set forth two different offenses, that Vann committed one that necessarily required physical acts against a child, and that the offense was a violent felony.
On appeal, the Fourth Circuit affirmed, 2-1. Vann argued that a pre-Begay Fourth Circuit case holding that convictions like his were "crimes of violence" under the Guidelines had been abrogated by Begay and that the Fourth Circuit's decision that Virginia's "carnal knowledge without the use of force" statute was not a violent felony post-Begay required the same conclusion with regards to his prior convictions. The court disagreed, noting that the NC statute at issue could be violated in two ways, one of which "requires physical acts against the body of a child," while the other does not. After first determining that Vann committed the offense which required a physical act against the body of a child, the court then concluded that such an offense was a violent felony under the ACCA. It noted the difference between the NC and Virginia offenses was that the later was committed "without the use of force."
Judge King dissented, arguing that the majority was incorrect in concluding that the NC statute set forth two different offenses, that Vann committed one that necessarily required physical acts against a child, and that the offense was a violent felony.
Divided Court Strikes Down Forced Medication Order
US v. White: White was charged with conspiracy, credit card fraud, and identity theft. She suffers from Delusional Disorder, Grandiose Type. After a motion was filed to determine her competency, it was found (and everyone agreed) that White was not competent to stand trial. After White "rebuffed all efforts to treat her disorder," the Government sought and was granted permission to forcibly medicate her pursuant to Sell v. United States, 539 US 166 (2003). White sought an interlocutory appeal challenging that order.
On appeal, the Fourth Circuit reversed, 2-1. "The crux of this case," the court wrote, was whether the Government had a sufficiently important interest in prosecuting White that interference with her liberty interest against self medication was justified, measured against the presence of any "special circumstances" militating against the Government's interest. The court concluded that, in this case, such special circumstances existed to weigh against White's forced medication.
While noting that the offenses with which White was charged were "serious," the court pointed to the following special circumstances that undermined the Government's interest in prosecuting her: (1) the length of time she had already spent in custody - 29 months, versus the most likely sentence if convicted; (2) White's charged offenses, while serious, were not violent; (3) her commitment to the BoP for evaluation/observation precludes her from possessing a firearm, as a conviction would; (4) the nature of White's "unique" condition and unknown potential effects of the proposed treatments; and (5) the case is not "sufficiently exceptional" to justify forced medication. To hold otherwise would risk allowing forced medication to become routine, rather than limited, option in such cases. Judge Keenan concurred in the opinion, writing separately to "emphasize the constitutional liberty interest at stake and the high burden of proof" put upon the Government when it seeks forcible medication.
Judge Niemeyer dissented, taking issue with both the majority's classification of White's charged offenses and its determination that she would likely be detained beyond the sentence she would receive if convicted. He writes that "[i]f the majority were ever inclined to allow an order for involuntary medication to enable the government to try a defendant, this would be the paradigmatic case."
Congrats to the defender office in Eastern NC on the win!
On appeal, the Fourth Circuit reversed, 2-1. "The crux of this case," the court wrote, was whether the Government had a sufficiently important interest in prosecuting White that interference with her liberty interest against self medication was justified, measured against the presence of any "special circumstances" militating against the Government's interest. The court concluded that, in this case, such special circumstances existed to weigh against White's forced medication.
While noting that the offenses with which White was charged were "serious," the court pointed to the following special circumstances that undermined the Government's interest in prosecuting her: (1) the length of time she had already spent in custody - 29 months, versus the most likely sentence if convicted; (2) White's charged offenses, while serious, were not violent; (3) her commitment to the BoP for evaluation/observation precludes her from possessing a firearm, as a conviction would; (4) the nature of White's "unique" condition and unknown potential effects of the proposed treatments; and (5) the case is not "sufficiently exceptional" to justify forced medication. To hold otherwise would risk allowing forced medication to become routine, rather than limited, option in such cases. Judge Keenan concurred in the opinion, writing separately to "emphasize the constitutional liberty interest at stake and the high burden of proof" put upon the Government when it seeks forcible medication.
Judge Niemeyer dissented, taking issue with both the majority's classification of White's charged offenses and its determination that she would likely be detained beyond the sentence she would receive if convicted. He writes that "[i]f the majority were ever inclined to allow an order for involuntary medication to enable the government to try a defendant, this would be the paradigmatic case."
Congrats to the defender office in Eastern NC on the win!
Thursday, August 19, 2010
Non-Expert DEA Testimony About Phone Call Meaning Requires Reversal
US v. Johnson: Johnson was charged in a multi-defendant indictment with conspiracy to distribute cocaine. At trial the Government presented non-expert testimony from a DEA agent that included testimony interpreting phrases in phone conversations between Johnson and an informant. In addition, the Government presented testimony from another witness, then in prison, who claimed to have bought cocaine from Johnson years before the conspiracy at issue at trial. Johnson was convicted and sentenced to 220 months in prison.
On appeal, the Fourth Circuit reversed Johnson's conviction on two grounds. First, the court agreed with Johnson that the DEA agent's testimony violated FRE 701, in that it was lay opinion testimony (he was never certified as an expert, remember) not based on personal knowledge. The court noted that when the testimony was objected to, the Government bolstered its admissibility by asking the agent about his training and qualifications, not his relevant observations. Such "post-hoc assessments cannot be credited as a substitute for the personal knowledge and perception required under Rule 701." Second, the court agreed with Johnson that the testimony about drug transactions that occurred five years before the conspiracy allegedly began were irrelevant. As neither error was harmless, the court was required to vacate Johnson's conviction.
On appeal, the Fourth Circuit reversed Johnson's conviction on two grounds. First, the court agreed with Johnson that the DEA agent's testimony violated FRE 701, in that it was lay opinion testimony (he was never certified as an expert, remember) not based on personal knowledge. The court noted that when the testimony was objected to, the Government bolstered its admissibility by asking the agent about his training and qualifications, not his relevant observations. Such "post-hoc assessments cannot be credited as a substitute for the personal knowledge and perception required under Rule 701." Second, the court agreed with Johnson that the testimony about drug transactions that occurred five years before the conspiracy allegedly began were irrelevant. As neither error was harmless, the court was required to vacate Johnson's conviction.
Lawyer Never Told to Appeal Not Ineffective For Failing to Do So
US v. Cooper: Cooper was charged with two drug counts and carrying a firearm in connection with a drug trafficking crime. Although he initially had an agreement with the Government to plead guilty to one drug count and the 924(c), Cooper eventually entered an Alford plea without an agreement to the charges. After an initial sentencing hearing at which the district court resolved some objections to the PSR but did not impose sentence, Cooper and the Government agreed to a Guideline range of 121 to 151 months on the drug charges (in addition to the 60-month 924(c) sentence, of course). At a second sentencing hearing, the district court accepted the stipulation and impose a total sentence of 181 months in prison. Cooper did not appeal.
Cooper later filed a motion seeking to vacate his sentence, arguing that his appointed lawyer was ineffective because he failed to consult with Cooper about the possibility of an appeal. Cooper testified that he wanted to file an appeal and asked his lawyer to come see him at the jail, but never actually expressed a desire to appeal to him. However, his lawyer never came to see him and his office would/could not accept Cooper's collect calls from the jail. Cooper's lawyer denied hearing a request to come visit him at the jail. The district court denied Cooper's motion, finding that he never asked his attorney to appeal and that no rational defendant would desire an appeal in such a situation.
On appeal, the Fourth Circuit affirmed the denial of Cooper's motion. Because Cooper did not tell counsel he wanted to appeal, the court had to determine "whether the circumstances would reasonably have led counsel to conclude that 'a rational defendant would want to appeal,' thus prompting counsel's duty to consult." No rational defendant would want an appeal in this case, the court concluded, as Cooper's actions - from entering a plea to agreeing to a sentencing range - indicated that he wanted to have the "proceedings concluded as quickly as possible." The court also noted that Cooper got the sentence he bargained for. While the end result here was not ineffective assistance of counsel, "best practices" would include consulting with the client to tie up any loose ends with regards to appeals once sentence is imposed.
Cooper later filed a motion seeking to vacate his sentence, arguing that his appointed lawyer was ineffective because he failed to consult with Cooper about the possibility of an appeal. Cooper testified that he wanted to file an appeal and asked his lawyer to come see him at the jail, but never actually expressed a desire to appeal to him. However, his lawyer never came to see him and his office would/could not accept Cooper's collect calls from the jail. Cooper's lawyer denied hearing a request to come visit him at the jail. The district court denied Cooper's motion, finding that he never asked his attorney to appeal and that no rational defendant would desire an appeal in such a situation.
On appeal, the Fourth Circuit affirmed the denial of Cooper's motion. Because Cooper did not tell counsel he wanted to appeal, the court had to determine "whether the circumstances would reasonably have led counsel to conclude that 'a rational defendant would want to appeal,' thus prompting counsel's duty to consult." No rational defendant would want an appeal in this case, the court concluded, as Cooper's actions - from entering a plea to agreeing to a sentencing range - indicated that he wanted to have the "proceedings concluded as quickly as possible." The court also noted that Cooper got the sentence he bargained for. While the end result here was not ineffective assistance of counsel, "best practices" would include consulting with the client to tie up any loose ends with regards to appeals once sentence is imposed.
Court Affirms Life and Death Sentences In 3-Defendant Kidnapping/Murder Cases
US v. Wilson & US v. Lighty: These two opinions, released the same day, involve three codefendants - Wilson, Lighty, and Flood - who were involved in a kidnapping that resulted in death. All were charged with kidnapping resulting in death, conspiracy, and three counts of using a firearm in furtherance of a crime of violence. Wilson's trial was severed from Lighty's and Flood's, thus the separate appeals. The two opinions cover over 115 pages, so there's obviously a lot of detail I'm leaving out (more so than usual).
The cases arose from the kidnap and murder of Hayes, who was on a street corner in DC with a friend when two men in a dark Lincoln approached and asked to buy drugs. Hayes and the two men went into an alley to complete the transaction. Hayes's friend looked in the alley a short time later and saw one of the men holding Hayes at gunpoint. The friend fled when the other man came at him with a gun. When the friend returned to the alley some time later, everyone was gone. Later that night, two men saw the car near a vacant lot in Maryland and watched as Hayes was dragged from it and shot twice while on his knees begging for his life. Wilson told his girlfriend later that night that he had driven the car to DC where he, Flood, and Lighty had "grabbed . . . the boy" and that Lighty shot him. The next day, he again told her that Lighty was the shooter. Wilson told a similar story to a friend, CW. After Lighty was arrested in possession of a .380 caliber handgun, Wilson told his girlfriend that was the gun used to shoot Hayes and that it had "a body or two on it" from a recent drive-by shooting, the "Afton Street Shooting."
Wilson was convicted of conspiracy to kidnap and sentenced to life in prison. On appeal, he raised several challenges to both his conviction and sentence, all of which the Fourth Circuit rejected.
As to Lighty:
The cases arose from the kidnap and murder of Hayes, who was on a street corner in DC with a friend when two men in a dark Lincoln approached and asked to buy drugs. Hayes and the two men went into an alley to complete the transaction. Hayes's friend looked in the alley a short time later and saw one of the men holding Hayes at gunpoint. The friend fled when the other man came at him with a gun. When the friend returned to the alley some time later, everyone was gone. Later that night, two men saw the car near a vacant lot in Maryland and watched as Hayes was dragged from it and shot twice while on his knees begging for his life. Wilson told his girlfriend later that night that he had driven the car to DC where he, Flood, and Lighty had "grabbed . . . the boy" and that Lighty shot him. The next day, he again told her that Lighty was the shooter. Wilson told a similar story to a friend, CW. After Lighty was arrested in possession of a .380 caliber handgun, Wilson told his girlfriend that was the gun used to shoot Hayes and that it had "a body or two on it" from a recent drive-by shooting, the "Afton Street Shooting."
Wilson was convicted of conspiracy to kidnap and sentenced to life in prison. On appeal, he raised several challenges to both his conviction and sentence, all of which the Fourth Circuit rejected.
- First, Wilson argued that the district court erred by allowing the Government to present evidence about the Afton Street Shooting at trial. The court agreed that admission of the evidence was error, as it was neither intrinsic to the offenses with which Wilson was charged nor was it proper FRE 404(b) evidence, but that the admission was harmless, as the evidence against Wilson was "overwhelming."
- Second, Wilson argued that the Government made improper comments during closing arguments, specifically by misstating the law of conspiracy. The court held that the statements were not erroneous, given the full context in which they were made which included the four other offenses with which Wilson was initially charged.
- Third, Wilson argued that the district court at sentencing improperly relied on a written statement he made to investigators. The court held that the statement, given to civilian investigators while Wilson was in the military, was voluntarily given and could be considered at sentencing.
- Finally, Wilson argued that the district court erred by denying his motion for a new trial based on newly discovered evidence and a Brady violation. The court held that there was no Brady violation and that neither a newly discovered witness nor a recantation by CW of some of his trial testimony required a new trial.
As to Lighty:
- First, the court rejected Lighty's argument that his trial should have been severed from Flood's as their defenses were not antagonistic (though they were occasionally at odds), did not restrict the evidence Lighty could present to the jury, and did not violate his Eighth Amendment right to individualized sentencing.
- Second, the court rejected several arguments about the admission of evidence, including the Afton Street Shooting evidence addressed above (harmless error), the exclusion of testimony from Lighty's witnesses about another potential perpetrator (no error), and the admissibility of a Government witness's answer to the question of whether she had any "doubt" about statements Lighty made to her (no error).
- Third, the court rejected Lighty's argument that the Government's closing arguments during the penalty phase referencing the victim's family's desire that Lighty be executed denied him a fair trial, holding that while improper the statements did not affect Lighty's substantial rights.
- Fourth, the court rejected Lighty's arguments that the district court improperly excluded several bits of mitigating evidence during the penalty phase.
- Fifth, the court rejected Lighty's argument that the district court erred by refusing to give the jury an instruction that it was not required to impose the death penalty, regardless of its findings on mitigating/aggravating factors.
- Sixth, the court rejected Lighty's argument that the use of the Afton Street Shooting as a non-statutory aggravating factor required it to be charged in the indictment.
- Seventh, the court concluded that Lighty's death sentence was not the result of "passion, prejudice, or any other arbitrary factor."
- Eighth, the court rejected Lighty's argument that his consecutive sentences under 924(c) were improper or that the entire process was rife with cumulative error.
- Finally, the court rejected Lighty's argument that he should receive a new trial on newly discovered evidence, as it did in Wilson's case.
Tuesday, July 13, 2010
Conflict of Interest Led to Failure to Pursue Departure
US v. Nicholson: Nicholson was arrested in 2001 for being a felon in possession of a firearm. At the time he told police that he got the gun for protection because he feared for his life. That reasoning was never contradicted and even confirmed by the Government during plea and sentencing hearings. Nevertheless, Nicholson's counsel never argued it as a reason for the district court to depart (this was pre-Booker) from the Guideline range at sentencing. Nicholson was sentenced to 189 months in prison, just above the mandatory minimum required by the ACCA.
Nicholson filed a 2255 alleging ineffective assistance of counsel due to a conflict of interest - during the time trial counsel represented Nicholson, he also represented Butts, the person who had made threats against Nicholson's life that led him to get a gun. Nicholson argued that conflict prevented counsel from using the threats in an argument for a lower sentence. The district court initially concluded that there was no conflict of interest, a conclusion that the Fourth Circuit rejected in 2007. On remand, the district court concluded that the conflict did not adversely affect trial counsel's performance and therefore denied Nicholson's motion.
The Fourth Circuit disagreed, again, and reversed the district court's holding. As for exactly what Nicholson was facing when he was arrested:
Applying the three-part test in Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001), the court held that (1) there was a plausible alternative strategy that trial counsel could have pursued, (2) that strategy was objectively reasonable based on the facts of the case known to counsel at the time, and (3) counsel's failure to pursue that strategy was due to the conflict of interest. On the record there was "overwhelming evidence - believed and even endorsed by the Government - that Nicholson faced . . . a genuine threat of death." Thus, the court vacated Nicholson's sentence and remanded the case for resentencing before a different judge.
District Judge Neely dissented to the court's opinion only in its requirement that a new judge preside at the resentencing.
Nicholson filed a 2255 alleging ineffective assistance of counsel due to a conflict of interest - during the time trial counsel represented Nicholson, he also represented Butts, the person who had made threats against Nicholson's life that led him to get a gun. Nicholson argued that conflict prevented counsel from using the threats in an argument for a lower sentence. The district court initially concluded that there was no conflict of interest, a conclusion that the Fourth Circuit rejected in 2007. On remand, the district court concluded that the conflict did not adversely affect trial counsel's performance and therefore denied Nicholson's motion.
The Fourth Circuit disagreed, again, and reversed the district court's holding. As for exactly what Nicholson was facing when he was arrested:
[H]is brother, Rudolph Nicholson, agreed in early 2000 to assist federal officers in their criminal investigation of Butts and his associates — prompting Butts to issue a series of threats against Rudolph and other Nicholson family members. On March 3, 2000, brother Rudolph was shot seven times by Butts’s son in Portsmouth, but survived the attack. Rudolph was treated for two months in a Norfolk, Virginia hospital,where a would-be assassin disguised as a priest — actually Butts himself — unsuccessfully attempted to enter Rudolph’s room and kill him. Around May 2000, federal officers informed Nicholson and his mother, Sandra Nicholson (whom Butts also threatened), that Butts had placed a contract on Nicholson’s life. On September 18, 2000, Nicholson’s stepfather, Charles Nicholson, was fatally shot multiple times on a Portsmouth street by Butts and his accomplices.(footnote omitted).
Applying the three-part test in Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001), the court held that (1) there was a plausible alternative strategy that trial counsel could have pursued, (2) that strategy was objectively reasonable based on the facts of the case known to counsel at the time, and (3) counsel's failure to pursue that strategy was due to the conflict of interest. On the record there was "overwhelming evidence - believed and even endorsed by the Government - that Nicholson faced . . . a genuine threat of death." Thus, the court vacated Nicholson's sentence and remanded the case for resentencing before a different judge.
District Judge Neely dissented to the court's opinion only in its requirement that a new judge preside at the resentencing.
Failure to Request Informant Instruction Ineffective Assistance of Counsel
US v. Luck: Luck was convicted on four counts of drug and firearm violations by a jury. He filed a 2255 challenging his convictions on numerous grounds. After the district court determined that three of the counts were tainted by ineffective assistance of appellate counsel those counts were dismissed by the Government. As to the remaining count, conspiracy to distribute more than 50 grams of crack cocaine, the district court concluded that Luck's trial counsel was not ineffective and refused to vacate that conviction.
On appeal the Fourth Circuit disagreed and reversed the district court's ruling. Specifically, the court held that Luck's trial counsel rendered ineffective assistance by failing to request an "informant instruction" that would explain to the jury the special duty it has to weigh an informant's testimony against his motives for testifying. Two of the main witnesses against Luck were paid informants. While the court declined to adopt a rule that such an instruction must be given in any case involving informant testimony, it did conclude that such an instruction should have been given in Luck's case based on the evidence presented at trial. Trial counsel was ineffective for failing to request such an instruction and that failure was prejudicial to Luck, even though the trial court's jury instructions as a whole "contained all of the elements of the informant instruction."
Judge Shedd dissented, agreeing that counsel should have requested the instruction but arguing that Luck had not demonstrated prejudice.
On appeal the Fourth Circuit disagreed and reversed the district court's ruling. Specifically, the court held that Luck's trial counsel rendered ineffective assistance by failing to request an "informant instruction" that would explain to the jury the special duty it has to weigh an informant's testimony against his motives for testifying. Two of the main witnesses against Luck were paid informants. While the court declined to adopt a rule that such an instruction must be given in any case involving informant testimony, it did conclude that such an instruction should have been given in Luck's case based on the evidence presented at trial. Trial counsel was ineffective for failing to request such an instruction and that failure was prejudicial to Luck, even though the trial court's jury instructions as a whole "contained all of the elements of the informant instruction."
Judge Shedd dissented, agreeing that counsel should have requested the instruction but arguing that Luck had not demonstrated prejudice.
Alford Plea Can't Support ACCA Prior
US v. Alston: Alston was convicted of being a felon in possession of a firearm. The PSR suggested that Alston was subject to the 15-year mandatory sentence under the ACCA due to having three prior convictions in Maryland. One of those convictions, for second-degree assault, an offense which may or may not be a "violent felony" under the ACCA, depending on how it is committed. Unable to determine how the offense was committed from the charging documents, the Government presented a transcript of the guilty plea hearing, at which the prosecutor proffered evidence alleging that Alston threatened several people with a gun - thus committing a violent felony. The plea, however, was an Alford plea, which Alston argued did not establish with "the kind of certainty that Shepard requires" which particular version of the offense he was convicted of committing. The district court disagreed and imposed a 15-year sentence.
On appeal, the Fourth Circuit vacated Alston's sentence. Noting that most circuits that have addressed the issue have adopted Alston's position, the court concluded that "a prosecutor's proffer of the factual basis for an Alford plea does not satisfy the requirements of the modified categorical approach" set forth in Shepard. Thus, Alston's sentence was vacated and remanded for resentencing.
Congrats to the FPD office in Maryland on the win!
On appeal, the Fourth Circuit vacated Alston's sentence. Noting that most circuits that have addressed the issue have adopted Alston's position, the court concluded that "a prosecutor's proffer of the factual basis for an Alford plea does not satisfy the requirements of the modified categorical approach" set forth in Shepard. Thus, Alston's sentence was vacated and remanded for resentencing.
Congrats to the FPD office in Maryland on the win!
Courts Affirms Multiple Enhancements for Bringing Gun to Probation Office
US v. Perez: Perez was an illegal alien who was arrested by ICE when he appeared for a meeting with his Maryland state probation officer. A search of his backpack uncovered a loaded handgun and additional ammunition. Perez was charged with and pleaded guilty to being a felon in possession of a firearm. At sentencing, the district court applied several enhancements not set forth in the PSR, bouncing Perez's Guideline range from 27-33 months to 63-78 months. The district court then imposed a sentence of 96 months in prison.
On appeal, Perez challenged both the calculation of his Guideline range and the substantive reasonableness of his sentence. The Fourth Circuit rejected all those arguments and affirmed. As to the Guidelines, Perez first challenged the four-level enhancement under USSG 2K2.1(b)(6), which the district court applied because Perez's carrying a loaded firearm without a safety around in public in a cloth bag constituted reckless endangerment in Maryland. The court found that conclusion was not clearly erroneous. Second, Perez challenged the two-level enhancement under 5K2.3 imposed by the district court after it concluded that it caused the probation officer psychological injury as she began wearing a bullet-proof vest and requested a transfer after 25 years in that position. The court found that conclusion was not clearly erroneous. Third, Perez challenged a two-level enhancement under 5K2.7 imposed after the district court concluded that the probation officer's transfer and the display of a sign stating its policy banning handguns from the office showed that Perez's actions "resulted in a significant disruption of a governmental function." Again, the court found that conclusion was not clearly erroneous. As for the substantive reasonableness of the sentence, the court found that the district court provided sufficient explanation for its sentence.
On appeal, Perez challenged both the calculation of his Guideline range and the substantive reasonableness of his sentence. The Fourth Circuit rejected all those arguments and affirmed. As to the Guidelines, Perez first challenged the four-level enhancement under USSG 2K2.1(b)(6), which the district court applied because Perez's carrying a loaded firearm without a safety around in public in a cloth bag constituted reckless endangerment in Maryland. The court found that conclusion was not clearly erroneous. Second, Perez challenged the two-level enhancement under 5K2.3 imposed by the district court after it concluded that it caused the probation officer psychological injury as she began wearing a bullet-proof vest and requested a transfer after 25 years in that position. The court found that conclusion was not clearly erroneous. Third, Perez challenged a two-level enhancement under 5K2.7 imposed after the district court concluded that the probation officer's transfer and the display of a sign stating its policy banning handguns from the office showed that Perez's actions "resulted in a significant disruption of a governmental function." Again, the court found that conclusion was not clearly erroneous. As for the substantive reasonableness of the sentence, the court found that the district court provided sufficient explanation for its sentence.
Defendant's Appeal Brings Successful Government Cross Appeal
US v. Young: Young was the subject of an investigation that led to the execution of an arrest warrant at his home. Police executed the warrant, arrested Young, and saw some drugs in plain view. They obtained a search warrant and eventually recovered a large amount of cash and cocaine. Young moved to suppress that evidence, arguing that the police failed to knock and announce their presence before entering his home. The district court disagreed and denied the motion. Young went to trial and was convicted of two drug offenses by a jury, which returned a special verdict form concluding that Young was responsible for between 500 grams and 5 kilograms of cocaine. The PSR, however, held him responsible for between 50 and 150 kilograms of cocaine. At sentencing, the district court went with the jury's finding, concluding it was bound by it and imposed a sentence in the middle of the resulting Guideline range.
Young appealed both his conviction and sentence and the Government cross appealed on the sentence. The Fourth Circuit affirmed Young's conviction, but vacated his sentence. As to the conviction, the court first affirmed the district court's denial of the motion to suppress. The court rejected Young's argument that the police should have waited longer for a response after knocking. In a footnote, the court rejected the Government's invitation to conclude that the Supreme Court's decision in Hudson, which held that suppression was not an appropriate remedy for knock and announce violations in the execution of a search warrant, also applied to the execution of arrest warrants. Next, the court concluded that the evidence was sufficient to sustain Young's convictions.
As to sentencing, the court rejected Young's arguments as all foreclosed by circuit precedent. The Government's cross appeal, however, was another matter. The Government argued that the district court erred by concluding that the jury's findings as to drug quantity bound it at sentencing, aside from setting the applicable statutory maximum/minimums. The court agreed. Even though the jury's findings were that of a "lesser included offense" of the 5 kilogram amount alleged in the indictment, that finding did not bind the district court. The district court was free to evaluate drug quantity at sentencing as it could with any acquitted conduct. The fact that the Government chose not to present all its drug quantity evidence at trial was irrelevant (the Government did present evidence at sentencing that the district court concluded would support a higher Guideline range). Therefore, the sentence was vacated and the case remanded.
Young appealed both his conviction and sentence and the Government cross appealed on the sentence. The Fourth Circuit affirmed Young's conviction, but vacated his sentence. As to the conviction, the court first affirmed the district court's denial of the motion to suppress. The court rejected Young's argument that the police should have waited longer for a response after knocking. In a footnote, the court rejected the Government's invitation to conclude that the Supreme Court's decision in Hudson, which held that suppression was not an appropriate remedy for knock and announce violations in the execution of a search warrant, also applied to the execution of arrest warrants. Next, the court concluded that the evidence was sufficient to sustain Young's convictions.
As to sentencing, the court rejected Young's arguments as all foreclosed by circuit precedent. The Government's cross appeal, however, was another matter. The Government argued that the district court erred by concluding that the jury's findings as to drug quantity bound it at sentencing, aside from setting the applicable statutory maximum/minimums. The court agreed. Even though the jury's findings were that of a "lesser included offense" of the 5 kilogram amount alleged in the indictment, that finding did not bind the district court. The district court was free to evaluate drug quantity at sentencing as it could with any acquitted conduct. The fact that the Government chose not to present all its drug quantity evidence at trial was irrelevant (the Government did present evidence at sentencing that the district court concluded would support a higher Guideline range). Therefore, the sentence was vacated and the case remanded.
Employee Filing False Timesheets With Employer Under NSA Contract Within Scope of 1001
US v. Jackson: Jackson worked for Northrop Grumman, a sub-contractor on a "time-and-materials" contract with the NSA. During his employment, Jackson submitted false timesheets to his employer. He was charged with 20 counts of making false statements under 18 USC 1001. He moved to dismiss, arguing that his statements were not made "in relation to a matter within the jurisdiction of the executive branch." The district court denied the motion and Jackson entered a conditional guilty plea to three counts.
On appeal, the Fourth Circuit affirmed the denial of the motion to dismiss. On appeal, Jackson argued that because the NSA was created by executive order rather than a statute it had "no statutory basis" to access his timesheets. Noting that the "authority to safeguard federal funds" is "an official, authorized function of the executive branch," the court held that authority was, in itself, a sufficient jurisdictional nexus to bring the case within the reach of 1001. However, the court also noted that the NSA had an additional power when it came to Jackson - it could revoke his security clearance and terminate the contract under which her worked - that strengthened the nexus.
On appeal, the Fourth Circuit affirmed the denial of the motion to dismiss. On appeal, Jackson argued that because the NSA was created by executive order rather than a statute it had "no statutory basis" to access his timesheets. Noting that the "authority to safeguard federal funds" is "an official, authorized function of the executive branch," the court held that authority was, in itself, a sufficient jurisdictional nexus to bring the case within the reach of 1001. However, the court also noted that the NSA had an additional power when it came to Jackson - it could revoke his security clearance and terminate the contract under which her worked - that strengthened the nexus.
Monday, June 21, 2010
Single Source of Funds Does Not Preclude Pattern of Illegal Activity
US v. Peterson: Peterson had multiple chiropractic operations in Virginia, the cash proceeds of which she put in a safe deposit box. The amount in the box totaled over $100,000. She also made a series of deposits into her checking account of $9500 or a little less, at the urging of her (now ex) husband to "avoid burdensome paperwork" and arousing the suspicion of law enforcement from large cash deposits made by an Iranian-American. Peterson pleaded guilty to structuring under 31 USC 5324(a)(3). At sentencing, she argued that a two-level enhancement under USSG 2S1.3(b)(2) did not apply because the alleged "pattern of unlawful activity" was all the same - transferring funds from her safety deposit box into her bank account. The district court disagreed, calling the result of such an argument "bizarre and unintended."
On appeal, Peterson renewed her argument that she did not engaged in a "pattern of unlawful activity" - defined as two or more separate instances of illegal activity - if all the funds in question came from only one source. The Fourth Circuit disagreed and affirmed Peterson's sentence. It held that the enhancement can apply in cases of "serial structuring," even if the result is only one indictable offense. The single source of the funds was irrelevant, as "because Peterson made more than one unlawful deposit . . . she committed her offense as part of a pattern of unlawful activity."
On appeal, Peterson renewed her argument that she did not engaged in a "pattern of unlawful activity" - defined as two or more separate instances of illegal activity - if all the funds in question came from only one source. The Fourth Circuit disagreed and affirmed Peterson's sentence. It held that the enhancement can apply in cases of "serial structuring," even if the result is only one indictable offense. The single source of the funds was irrelevant, as "because Peterson made more than one unlawful deposit . . . she committed her offense as part of a pattern of unlawful activity."
Routine Military Search of MP3 Player OK Under Fourth Amendment
US v. Rendon: Rendon was in the Army and was transferred from one unit to another at Fort Knox, Kentucky, in order to be processed for a medical discharge. As part of the protocol for coming into a new unit, Rendon's possessions were search, including his MP3 player, which would be "turned on and checked to ensure that the[re] are no graphic materials on them such as pornography." An inspection of Rendon's MP3 player uncovered child pornography. As a result, a search warrant was executed at Rendon's home in Virginia which uncovered more images and videos of child pornography. Rendon was indicted for possession of child pornography and sought to suppress the evidence from the searches. The district court denied the motion, holding that Rendon had no expectation of privacy in the MP3 player because the search was committed for military, no law enforcement, purposes. Rendon pleaded guilty and was sentenced to 97 months in prison.
On appeal, Rendon renewed his argument that the search of his MP3 player violated the Fourth Amendment. Specifically, Rendon argued that the Army's search was not done pursuant to a valid military inspection and was done for law enforcement purposes. The court disagreed, holding that the initial search of the MP3 player was done pursuant to military policy intended to implement military, not law enforcement, goals and that there was no individualized suspicion of Rendon prior to the discovery of contraband on his player.
On appeal, Rendon renewed his argument that the search of his MP3 player violated the Fourth Amendment. Specifically, Rendon argued that the Army's search was not done pursuant to a valid military inspection and was done for law enforcement purposes. The court disagreed, holding that the initial search of the MP3 player was done pursuant to military policy intended to implement military, not law enforcement, goals and that there was no individualized suspicion of Rendon prior to the discovery of contraband on his player.
No Intent to Remain Needed to Establish Venue for Child Support Prosecution
US v. Novak: Novak was the father of two children, one living in California from a previous marriage and one in New York with his (then current) wife. Between 1993 and 2008, he failed to pay more than $120,000 in child support for the California child (plus interest). In August 2004, after his wife had filed for divorce, Novak moved to Virginia to fulfill a consultancy contract that would terminate at the end of 2004. He remained in Virginia, however, until August, 2007, when he was arrested and charged in the EDVA with willfully failing to pay child support under 18 USC 228(a)(3). At trial, venue was a key issue, whether Novak "resided" in EDVA. Novak argued that he lived in New York and only worked in Virginia - he returned to New York weekly to visit his daughter, continued to pay for the marital home, and kept most of his possessions there. The jury was instructed that to "reside" means "living in a given place permanently or for an extended period of time." Novak was convicted.
On appeal, Novak made two venue-related arguments against his conviction, both of which the Fourth Circuit rejected. First, he argued that the district court erred by failing to instruct the jury that it had to find that he intended to remain in Virginia in order to find that he resided there. The court concluded that the plain meaning of "reside" did not include an intent to remain in a particular place, differentiating it from the concept of domicile. Second, Novak argued that the district court erred by failing to instruct the jury specifically that he had to reside in EDVA during a time when he willfully failed to make child support payments. Even assuming that there was error in the instruction, the court held that it was harmless.
On appeal, Novak made two venue-related arguments against his conviction, both of which the Fourth Circuit rejected. First, he argued that the district court erred by failing to instruct the jury that it had to find that he intended to remain in Virginia in order to find that he resided there. The court concluded that the plain meaning of "reside" did not include an intent to remain in a particular place, differentiating it from the concept of domicile. Second, Novak argued that the district court erred by failing to instruct the jury specifically that he had to reside in EDVA during a time when he willfully failed to make child support payments. Even assuming that there was error in the instruction, the court held that it was harmless.
Monday, June 14, 2010
ISP Not Agent of the Government
US v. Richardson: Richardson, a registered sex offender, was discovered to be in possession of child pornography as part of an investigation initiated when his internet service provider, AOL, tipped investigators that particular email accounts (both traced back to Richardson) had transmitted images of child pornography. Richardson moved to suppress the physical evidence and statements procured as a result of a search warrant executed based on the information from AOL, on two grounds: (1) that AOL was acting as an agent of the Government and its actions violated the Fourth Amendment and (2) that there was not probable cause to believe that child pornography would be found at his home at the time of the search. To seek support on his first point, Richardson sought a Rule 17(c)(2) subpoena against AOL seeking "all records . . . relating to AOL's coordination of efforts" with Government agencies. The district court rejected that request as overly broad and denied Richardson's motion to suppress. He subsequently entered a conditional guilty plea to child pornography charges.
On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court held that AOL was not acting as an agent for the Government when it scanned Richardson's emails and uncovered child pornography. Specifically, the court rejected Richardson's argument that the Government, by mandating that AOL report images of child pornography it discovers, transformed AOL into a Government agent, even though the actual scans were not done by Government agents or at their request. The statutory scheme in place at the time did not require AOL to actively search for illicit images, only to report those which they found. Second, the court held that the district court properly quashed the subpoena because it was not sufficiently specific in what it sought AOL to turn over. Finally, the court held that the search warrant was obtained sufficiently close in time to the second AOL detection of illicit images from Richardson as to support probable cause to believe he would have child pornography in his possession.
On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court held that AOL was not acting as an agent for the Government when it scanned Richardson's emails and uncovered child pornography. Specifically, the court rejected Richardson's argument that the Government, by mandating that AOL report images of child pornography it discovers, transformed AOL into a Government agent, even though the actual scans were not done by Government agents or at their request. The statutory scheme in place at the time did not require AOL to actively search for illicit images, only to report those which they found. Second, the court held that the district court properly quashed the subpoena because it was not sufficiently specific in what it sought AOL to turn over. Finally, the court held that the search warrant was obtained sufficiently close in time to the second AOL detection of illicit images from Richardson as to support probable cause to believe he would have child pornography in his possession.
False Statement "Material" If It Influences Agency Action
US v. Garcia-Ochoa: Garcia-Ochoa admitted to falsely declaring on I-9 Employment Eligibility Verification Forms that he was either a "citizen or national of the United States" or a "lawful permanent resident" on multiple occasions. For his efforts he was indicted and convicted after a bench trial of making false statements under 18 USC 1001 and 1546(a). Garcia-Ochoa argued that his false statements were not material (and thus not illegal) because he was "nonetheless authorized to work in the United States." The district court disagreed, holding that Garcia-Ochoa's false statements were material because they were capable of influencing agency action.
Garcia-Ochoa appealed to the Fourth Circuit, challenging the sufficiency of the evidence due to the lack of materiality of his false statements. The Fourth Circuit disagreed and affirmed his conviction, refusing "to render the I-9 Form a meaningless exercise." The court noted that I-9 Forms are retained by businesses for a period of years, during which they can and are reviewed by various government agencies. "The defendant's misstatements," the court concluded, "were capable of influencing agency action in a number of ways, and by a number of agencies." In addition, one of Garcia-Ochoa's statements actually affected the action of the US Navy, which granted him access to a naval base as part of one of his employments because he was listed as a US citizen.
Garcia-Ochoa appealed to the Fourth Circuit, challenging the sufficiency of the evidence due to the lack of materiality of his false statements. The Fourth Circuit disagreed and affirmed his conviction, refusing "to render the I-9 Form a meaningless exercise." The court noted that I-9 Forms are retained by businesses for a period of years, during which they can and are reviewed by various government agencies. "The defendant's misstatements," the court concluded, "were capable of influencing agency action in a number of ways, and by a number of agencies." In addition, one of Garcia-Ochoa's statements actually affected the action of the US Navy, which granted him access to a naval base as part of one of his employments because he was listed as a US citizen.
Monday, June 07, 2010
Court Affirms 60-month Felon In Possession Sentence
US v. Knight: Police came to Knight's North Carolina hotel room and searched it, with her consent. There were three men in the room with her at the time. In the room, police recovered a loaded pistol from under the bed and some marijuana from the toilet. Knight admitted that the gun was hers, she got it for protection, and that she had a prior felony conviction. She was charged with being a felon in possession of a firearm, but disappeared for about a year afterwards. She pleaded guilty after being captured in Texas. At sentencing, her advisory Guideline range was 92 to 115 months in prison, but the district court varied downward and imposed a sentence of 60 months in prison.
Knight appealed her sentence, challenging the calculation of her advisory Guideline range in several ways. The Fourth Circuit affirmed her sentence. First, Knight argued that the district court erred in counting a prior Texas conviction for arson as a "crime of violence" under the Guidelines because that state's definition of the offense extends beyond the burning of buildings. The court disagreed, holding that the Texas offense encompasses the modern generic meaning of "arson," an offense specifically listed as a crime of violence. Second, Knight argued that she was entitled to a reduce for acceptance of responsibility in spite of receiving an enhancement for obstruction of justice based on her absconding. The court disagreed, holding that this was not one of the "exceptional" situations where a reduction was still appropriate, refusing to hold that acceptance is applicable as long as the obstructing behavior takes place before the entry of a guilty plea. Finally, Knight argued that the district court should have applied the version of the Guidelines in effect at the time of her offense rather than at the time of sentencing, which would have resulted in a two-level lower final offense level. Applying plain error review, the court found error and that it was plain (based on the recent decision in Lewis), but no prejudice, as it was not clear from the record that the district court's ultimate sentence was tied to a specific reduction from the (incorrectly calculated) Guideline range.
Knight appealed her sentence, challenging the calculation of her advisory Guideline range in several ways. The Fourth Circuit affirmed her sentence. First, Knight argued that the district court erred in counting a prior Texas conviction for arson as a "crime of violence" under the Guidelines because that state's definition of the offense extends beyond the burning of buildings. The court disagreed, holding that the Texas offense encompasses the modern generic meaning of "arson," an offense specifically listed as a crime of violence. Second, Knight argued that she was entitled to a reduce for acceptance of responsibility in spite of receiving an enhancement for obstruction of justice based on her absconding. The court disagreed, holding that this was not one of the "exceptional" situations where a reduction was still appropriate, refusing to hold that acceptance is applicable as long as the obstructing behavior takes place before the entry of a guilty plea. Finally, Knight argued that the district court should have applied the version of the Guidelines in effect at the time of her offense rather than at the time of sentencing, which would have resulted in a two-level lower final offense level. Applying plain error review, the court found error and that it was plain (based on the recent decision in Lewis), but no prejudice, as it was not clear from the record that the district court's ultimate sentence was tied to a specific reduction from the (incorrectly calculated) Guideline range.
Vacation of Some ACCA Priors Does Not Guarantee Resentencing
US v. Pettiford: This is an appeal from the district court's granting of Pettiford's 2255 motion, vacating his sentence under the ACCA. At his original sentencing, Pettiford stipulated (as part of the plea agreement) that the ACCA applied to him. A Government notice had identified five prior qualifying convictions. After sentencing, a state court vacated two of those prior convictions. Afterwards, Pettiford filed a 2255 motion seeking to vacate his sentence, arguing that he no longer fell under the ACCA, both because of the vacation of two of the prior convictions and because a third should not be counted as a predicate offense applying the Supreme Court's decision in Shepard (decided after Pettiford was initially sentenced). He thus has only two prior qualifying convictions. The district court granted relief, identifying a fourth prior conviction that now should not qualify as an ACCA predicate following a review "akin to what would occur at a re-sentencing proceeding."
The Government appealed the district court's order and the Fourth Circuit reversed. First, the court concluded that Pettiford could not meet the threshold inquiry for 2255 relief because he could not show that his sentence was "unlawful," as even after two of the priors were vacated by the state court, he still had three prior ACCA predicate convictions. The court rejected the district court's "assumption" that the vacation of any prior offenses entitled Pettiford to relief without further analysis. The district court erred by proceeding on to an analysis of any of the other prior offenses without first holding that the vacation of the two convictions in state court rendered Pettiford's sentence unlawful. Second, the court concluded that any challenges to Pettiford's other prior convictions were waived by failing to raise them at sentencing or on direct appeal. The court found no cause to justify the failure to challenge those convictions, holding that the futility of raising challenges at that time does not constitute cause. Finally, the court held that actual innocence with regards to a sentencing enhancement applies to excuse procedural default only when the defendant is actually innocent of the predicate offense itself, not that it's legal effect has changed due to a change in the law since sentencing.
The Government appealed the district court's order and the Fourth Circuit reversed. First, the court concluded that Pettiford could not meet the threshold inquiry for 2255 relief because he could not show that his sentence was "unlawful," as even after two of the priors were vacated by the state court, he still had three prior ACCA predicate convictions. The court rejected the district court's "assumption" that the vacation of any prior offenses entitled Pettiford to relief without further analysis. The district court erred by proceeding on to an analysis of any of the other prior offenses without first holding that the vacation of the two convictions in state court rendered Pettiford's sentence unlawful. Second, the court concluded that any challenges to Pettiford's other prior convictions were waived by failing to raise them at sentencing or on direct appeal. The court found no cause to justify the failure to challenge those convictions, holding that the futility of raising challenges at that time does not constitute cause. Finally, the court held that actual innocence with regards to a sentencing enhancement applies to excuse procedural default only when the defendant is actually innocent of the predicate offense itself, not that it's legal effect has changed due to a change in the law since sentencing.
Evidence Sufficient to Sustain Conspiracy to Kill Informant
US v. Ashley: Ashley shared an attorney with Caruso, who had been arrested and charged with drug offenses. When they were both at their attorney's office, Ashley overheard Caruso complaining about Dixon, who had allegedly been arrested and then provided testimony against Caruso. Caruso said he "would love to be able to discredit, you know, dismantle a witness against me." Caruso provided Ashley with a copy of his case file. Ashley then told an associate about Caruso's "problem down in Baltimore," after which the associate went and shot Dixon six times (he survived, "albeit with permanent debilitating injuries"). Caruso paid Ashley $10,000, half of which he passed to the shooter. Ashley was charged with conspiring to kill a witness, conspiring to kill an informant for providing information to law enforcement, and use of a firearm under 924(c). He was convicted on all counts.
On appeal, Ashley challenged his convictions for conspiring to kill an informant and the firearm offense, both of which the Fourth Circuit affirmed. As to the first, Ashley argued that the evidence was insufficient to show he knew that Caruso wanted Dixon killed as retaliation for giving information to law enforcement. Specifically, there was no evidence that Ashley knew Dixon was a government informant or that, if he was, he had provided information to federal officers. The court disagreed, holding that the "fabric of evidence" in the case showed that "Ashley knew exactly what Caruso was willing to pay for and precisely what Caruso wanted done." Secondly, Ashley argued that the district court's jury instructions, which were echoed by the Government in its closing arguments, constructively amended the indictment by omitting the "during and in relation to" language from the instructions. The court disagreed, holding that the instructions did not impermissibly broaden the bases upon which he could be convicted. The court also concluded that the district court's instruction that Ashley could be convicted based on Pinkerton coconsipirator liability was not error, analogizing it to aider/abetter liability, which is not required to be specifical charged in an indictment.
On appeal, Ashley challenged his convictions for conspiring to kill an informant and the firearm offense, both of which the Fourth Circuit affirmed. As to the first, Ashley argued that the evidence was insufficient to show he knew that Caruso wanted Dixon killed as retaliation for giving information to law enforcement. Specifically, there was no evidence that Ashley knew Dixon was a government informant or that, if he was, he had provided information to federal officers. The court disagreed, holding that the "fabric of evidence" in the case showed that "Ashley knew exactly what Caruso was willing to pay for and precisely what Caruso wanted done." Secondly, Ashley argued that the district court's jury instructions, which were echoed by the Government in its closing arguments, constructively amended the indictment by omitting the "during and in relation to" language from the instructions. The court disagreed, holding that the instructions did not impermissibly broaden the bases upon which he could be convicted. The court also concluded that the district court's instruction that Ashley could be convicted based on Pinkerton coconsipirator liability was not error, analogizing it to aider/abetter liability, which is not required to be specifical charged in an indictment.
Common Law Battery Not Always MCDV
US v. White: White was charged with possessing a firearm after sustaining a misdemeanor crime of domestic violence (MCDV). The underlying offense was a Virginia conviction for domestic battery. In the Commonwealth, "battery" retains its common law definition, and so includes "offensive touching" in addition to an act causing injury. Applying the Supreme Court's recent decision in Johnson, in which it held simple touching doesn't constitute "physical force" for ACCA purposes, the Fourth Circuit concluded the same applied to the MCDV definition:
We thus conclude that the phrase 'physical force' in §921(a)(33)(A)(ii) means force, greater than a mere offensive touching, that is capable of causing physical pain or injury to the victim. Accordingly, a conviction for assault and battery in Virginia does not require 'physical force' as an element of the crime. As a consequence, a Virginia conviction for assault and battery under VA CODE ANN. § 18.2-57.2, in and of itself, does not meet the definition of a §922(g)(9) 'misdemeanor crime of domestic violence.' Applying the 'modified categorical approach' outlined in Taylor v. United States, 495 U.S. 575 (1990) and Shepard, the record is devoid of any qualifying documentation to show White's conviction under VA CODE ANN. § 18.2-57.2 was otherwise 'a misdemeanor crime of domestic violence' under §922(g)(9). We therefore reverse White's conviction and vacate his sentence.
NASA Security Guard Guilty of Impersonating Federal Officer
US v. Roe: Roe was a privately contracted security guard working at a NASA facility in Maryland. Roe possessed a Maryland handgun permit and state certifications for being a private security guard and private detective. As part of his job, he had the limited authority to arrest and otherwise provide law enforcement services on NASA grounds. He was pulled over on the highway in a car done up to look like an unmarked police car after some interactions with a Maryland state police officer (in a real unmarked car). When he got out of the car, he told the arresting officer "I'm the police! I'm the police" and that he was a federal police officer. He produced a badge that had "NASA" and "police" on it, which the officer recognized as inauthentic. Roe was charged with impersonating an officer of the United States. At trial, the Government produced testimony from a Maryland state police officer who testified that the state certifications Roe possessed did not give him arrest authority under state law or turn him into a police officer. Roe was convicted and sentenced to probation.
On appeal, Roe raised three arguments seeking to overturn his conviction, each of which the Fourth Circuit rejected. First, he argued that the district court erred by allowing the state police officer to testify about Roe's certifications and their effect because he was not qualified to testify as an expert witness. The court disagreed, holding that the officer's testimony was lay testimony, not expert, and he could testify about the permits because of his position in the office that issued such permits. Second, Roe argued that the evidence was not sufficient to convict him, particularly given that he was, in fact, employed as a "security police officer" at NASA. In other words, he could not impersonate a federal officer because he was one. The court disagreed, holding that the statute reached situations where the a person claimed to be a federal officer in a situation in which they were not acting as such (i.e., posing as an officer beyond the scope of their actual authority). Finally, the court rejected Roe's argument that the district court's instruction using the term "police officer" instead of simply "officer" was an impermissible amendment to the indictment.
Judge Gregory dissented from the court's conclusion with regards to the sufficiency of the evidence. He argued that the language of the statute was clear and that liability applies only to those who are not at all federal officers and claim to be. When he stated "I'm the police!", he was likely "attempting not to get shot by identifying himself as one of the 'good guys,'" rather than trying to actually mislead anyone.
On appeal, Roe raised three arguments seeking to overturn his conviction, each of which the Fourth Circuit rejected. First, he argued that the district court erred by allowing the state police officer to testify about Roe's certifications and their effect because he was not qualified to testify as an expert witness. The court disagreed, holding that the officer's testimony was lay testimony, not expert, and he could testify about the permits because of his position in the office that issued such permits. Second, Roe argued that the evidence was not sufficient to convict him, particularly given that he was, in fact, employed as a "security police officer" at NASA. In other words, he could not impersonate a federal officer because he was one. The court disagreed, holding that the statute reached situations where the a person claimed to be a federal officer in a situation in which they were not acting as such (i.e., posing as an officer beyond the scope of their actual authority). Finally, the court rejected Roe's argument that the district court's instruction using the term "police officer" instead of simply "officer" was an impermissible amendment to the indictment.
Judge Gregory dissented from the court's conclusion with regards to the sufficiency of the evidence. He argued that the language of the statute was clear and that liability applies only to those who are not at all federal officers and claim to be. When he stated "I'm the police!", he was likely "attempting not to get shot by identifying himself as one of the 'good guys,'" rather than trying to actually mislead anyone.
Thursday, May 27, 2010
Ex Post Facto Still Applies to Guidelines
US v. Lewis: Lewis was sitting in the driver's seat of a car parked in Richmond when three police officers approached. One of them saw an open beer bottle in the car. When Lewis rolled down the car window, officers smelled marijuana. Lewis was asked to exit the car but refused and had to be "removed . . . from the vehicle." After Lewis was in handcuffs, officers saw a pistol on the driver's side floorboard of the car. A computer check showed that Lewis was a convicted felon and he was subsequently charged with being a felon in possession of a firearm.
After an unsuccessful motion to suppress the firearm, Lewis was convicted following a jury trial. At sentencing the main issue was which version of the Guidelines applied - those in effect at the time of sentencing (2008 version) or those in effect at the time of the offense (2005 version). The older Guidelines produced a sentencing range about half that of the 2008 version. Lewis objected to the use of the 2008 Guidelines on ex post facto grounds and the district court agreed, eventually imposing a 27-month sentence.
The Government appealed the district court's Guideline decision and Lewis cross-appealed the denial of his motion to suppress. The Fourth Circuit rejected both arguments. As to the motion to suppress, the court held that the interaction with Lewis began as a consensual encounter and probable cause for a search of the car developed once the officers saw the beer bottle and smelled the marijuana.
As to the Guideline issue, the court noted a split between the Seventh and DC Circuits as to whether post-Booker advisory Guidelines could violate the ex post facto clause at all. The court sided with the DC Circuit and held that they could, given the that the Guidelines "represent the crucial 'starting point,' as well as the 'initial benchmark'" for post-Booker sentencing proceedings. The key was not whether use of the 2008 Guidelines de jure required a higher sentence, but whether it had the practical effect of creating "a significant risk of increased punishment for Lewis."
SDWV Chief Judge Goodwin, sitting by designation, dissented from the court on the Guideline issue, arguing that "the majority ignores the reality that the Guidelines lack legal force" and that it "creates a constitutional contradiction by ignoring the Sixth Amendment implications of treating the Guidelines as a anything more than advisory."
Congrats to FPD office in EDVA on the win!
After an unsuccessful motion to suppress the firearm, Lewis was convicted following a jury trial. At sentencing the main issue was which version of the Guidelines applied - those in effect at the time of sentencing (2008 version) or those in effect at the time of the offense (2005 version). The older Guidelines produced a sentencing range about half that of the 2008 version. Lewis objected to the use of the 2008 Guidelines on ex post facto grounds and the district court agreed, eventually imposing a 27-month sentence.
The Government appealed the district court's Guideline decision and Lewis cross-appealed the denial of his motion to suppress. The Fourth Circuit rejected both arguments. As to the motion to suppress, the court held that the interaction with Lewis began as a consensual encounter and probable cause for a search of the car developed once the officers saw the beer bottle and smelled the marijuana.
As to the Guideline issue, the court noted a split between the Seventh and DC Circuits as to whether post-Booker advisory Guidelines could violate the ex post facto clause at all. The court sided with the DC Circuit and held that they could, given the that the Guidelines "represent the crucial 'starting point,' as well as the 'initial benchmark'" for post-Booker sentencing proceedings. The key was not whether use of the 2008 Guidelines de jure required a higher sentence, but whether it had the practical effect of creating "a significant risk of increased punishment for Lewis."
SDWV Chief Judge Goodwin, sitting by designation, dissented from the court on the Guideline issue, arguing that "the majority ignores the reality that the Guidelines lack legal force" and that it "creates a constitutional contradiction by ignoring the Sixth Amendment implications of treating the Guidelines as a anything more than advisory."
Congrats to FPD office in EDVA on the win!
Monday, May 17, 2010
2J1.3 Proper Guideline for False Statement In Bankruptcy Petition
US v. Boulware: In 12 years, Boulware filed for bankruptcy 16 times in three separate districts. After the NDGA barred her from filing any additional petitions for five years, Boulware filed for bankruptcy in South Carolina. In her petition, she did not mention any of the petition she had filed in the eight years prior, as required by the petition. Boulware pleaded guilty to making a fraudulent statement under penalty of perjury. At sentencing, the district court calculated her advisory Guideline range based on USSG 2J1.3 rather than the general fraud Guideline, 2B1.1. She was sentenced to 15 months in prison, the bottom of the Guideline range.
On appeal, Boulware challenged her sentence on two grounds. First, she argued that the district court used the wrong Guideline in determining her sentencing range. The Fourth Circuit disagreed. Although the statutory index in the Guideline Manual lists both 2B1.1 and 2J1.3 as applying to 18 USC 152, Boulware's offense of conviction, 2J1.3 was more applicable to her offense because it was never alleged that she engaged in a scheme to defraud anyone. Second, Boulware argued that the district court did not sufficient explain its basis for the sentence imposed. Noting that the Government conceded error, the court bypassed that question directly and instead concluded that any error was harmless, given the district court's consideration of Boulware's argument for a lower sentence and the district court's admitted consideration of all the 3553(a) factors.
On appeal, Boulware challenged her sentence on two grounds. First, she argued that the district court used the wrong Guideline in determining her sentencing range. The Fourth Circuit disagreed. Although the statutory index in the Guideline Manual lists both 2B1.1 and 2J1.3 as applying to 18 USC 152, Boulware's offense of conviction, 2J1.3 was more applicable to her offense because it was never alleged that she engaged in a scheme to defraud anyone. Second, Boulware argued that the district court did not sufficient explain its basis for the sentence imposed. Noting that the Government conceded error, the court bypassed that question directly and instead concluded that any error was harmless, given the district court's consideration of Boulware's argument for a lower sentence and the district court's admitted consideration of all the 3553(a) factors.
Thursday, May 06, 2010
Shepard No Limit When Calculating Guidelines
US v. Dean: Dean pleaded guilty to one count of possession of cocaine with intent to distribute. The probation officer determined that Dean was a career offender based on two prior North Carolina convictions for drug offenses. Dean objected, arguing that the sentences for the two convictions were imposed on the same day and there was no evidence that the offenses were separated by an intervening arrest. Therefore, they should be treated as one prior conviction and he would not qualify as a career offender. The district court disagreed, based on bond documents and documents from the court clerk's office showing an intervening arrest. Dean was sentenced to 151 months in prison.
On appeal, Dean challenged his classification as a career offender, particularly arguing that in making its decision the district court looked beyond the material approved by Shepard v. United States to determine the character of prior convictions. Assuming that the documents at issue fell outside the bounds of Shepard, the court nevertheless rejected Dean's argument.
The court held that Shepard had no application "in contexts where there is no Sixth Amendment right to a trial by jury" and that Dean's argument "runs headlong into this principle." Furthermore, because the career offender Guideline is "no less advisory than any other portion," it did not increase Dean's statutory maximum punishment and therefore did not implicate the Sixth Amendment. Therefore, "because the Sixth Amendment does not apply to the process of calculating an advisory sentence under the Guidelines, Shepard's Sixth Amendment-based evidentiary restrictions do not apply to that process, either." In addition, under Rita and Gall it is essential for a district court to "calculate a defendant's advisory range using the fact-finding tools normally available to it." Thus, it affirmed Dean's sentence based on the findings of the district court.
On appeal, Dean challenged his classification as a career offender, particularly arguing that in making its decision the district court looked beyond the material approved by Shepard v. United States to determine the character of prior convictions. Assuming that the documents at issue fell outside the bounds of Shepard, the court nevertheless rejected Dean's argument.
The court held that Shepard had no application "in contexts where there is no Sixth Amendment right to a trial by jury" and that Dean's argument "runs headlong into this principle." Furthermore, because the career offender Guideline is "no less advisory than any other portion," it did not increase Dean's statutory maximum punishment and therefore did not implicate the Sixth Amendment. Therefore, "because the Sixth Amendment does not apply to the process of calculating an advisory sentence under the Guidelines, Shepard's Sixth Amendment-based evidentiary restrictions do not apply to that process, either." In addition, under Rita and Gall it is essential for a district court to "calculate a defendant's advisory range using the fact-finding tools normally available to it." Thus, it affirmed Dean's sentence based on the findings of the district court.
Administrative Subpoena to Yahoo! Poses No Fourth Amendment Problem
US v. Bynum: Federal officers searched Bynum's home (he was living with his parents), pursuant to a warrant, following the investigation of a Yahoo! group to which Bynum had uploaded child pornography. A subsequent search of Bynum's laptop uncovered numerous pieces of child pornography, including those uploaded to the Yahoo! group. Three years later, he was charged with three counts of transporting child pornography and one count of possession. Prior to trial, Bynum unsuccessfully sought to suppress both the evidence uncovered during the search and the testimony of a Government expert on whether the images at issue involved actual children or were computer generated. He was convicted on all counts and sentenced to 192 months in prison.
On appeal, Bynum challenged both his conviction and sentence, which the Fourth Circuit affirmed. Bynum raised two Fourth Amendment challenges. First, he argued that the Government's use of administrative subpoenas - about which he had no knowledge - to identify him from his postings on the Yahoo! group violated the Fourth Amendment. The court disagreed, holding that Bynum had no expectation of privacy in that sort of information as it was stored by third parties to whom he had voluntarily conveyed it. Second, Bynum argued that the search warrant for his home was not based on sufficient probable cause due to discrepancies in the dates it alleged the files were uploaded and the passage of time (six months) between the uploads and the search. The court disagreed, holding that the difference in dates were "minor" and, even if they were not, the warrant was not so bare bones to be relied upon in good faith.
Bynum also made two evidentiary challenges to his trial. First, he argued that the Government offered insufficient evidence that he, rather than someone else in the home, actually uploaded the files and as to whether the images depicted real children. The court disagreed, applying the deferential standard applicable to sufficiency challenges, and concluded that a rational fact finder could have convicted Bynum. Second, Bynum argued that the district court erred by allowing the Government's expert on the nature of the images to testify because he did not show the reliability of his methods. The court found no error, likening the expertise at issue with expert testimony about "drug-code testimony" and sufficiently reliable.
Finally, the court rejected Bynum's argument that his middle of the Guidelines sentence was substantively unreasonable.
Two interesting side notes. First, this case marks the first time when I've seen a defendant's screen name and email address used as "aka"s in the case name. Second, for a story of a Government "expert" on child porn going all wrong (until the happy ending), see here.
On appeal, Bynum challenged both his conviction and sentence, which the Fourth Circuit affirmed. Bynum raised two Fourth Amendment challenges. First, he argued that the Government's use of administrative subpoenas - about which he had no knowledge - to identify him from his postings on the Yahoo! group violated the Fourth Amendment. The court disagreed, holding that Bynum had no expectation of privacy in that sort of information as it was stored by third parties to whom he had voluntarily conveyed it. Second, Bynum argued that the search warrant for his home was not based on sufficient probable cause due to discrepancies in the dates it alleged the files were uploaded and the passage of time (six months) between the uploads and the search. The court disagreed, holding that the difference in dates were "minor" and, even if they were not, the warrant was not so bare bones to be relied upon in good faith.
Bynum also made two evidentiary challenges to his trial. First, he argued that the Government offered insufficient evidence that he, rather than someone else in the home, actually uploaded the files and as to whether the images depicted real children. The court disagreed, applying the deferential standard applicable to sufficiency challenges, and concluded that a rational fact finder could have convicted Bynum. Second, Bynum argued that the district court erred by allowing the Government's expert on the nature of the images to testify because he did not show the reliability of his methods. The court found no error, likening the expertise at issue with expert testimony about "drug-code testimony" and sufficiently reliable.
Finally, the court rejected Bynum's argument that his middle of the Guidelines sentence was substantively unreasonable.
Two interesting side notes. First, this case marks the first time when I've seen a defendant's screen name and email address used as "aka"s in the case name. Second, for a story of a Government "expert" on child porn going all wrong (until the happy ending), see here.
Wednesday, April 28, 2010
No Plain Error in Application of Sentence Requested by Defendant
US v. Hernandez: Hernandez pleaded guilty to a drug conspiracy and was sentenced to a term of 262 months, at the bottom of the advisory Guidelines. That was the sentence Hernandez argued should be imposed. Nonetheless, he appealed to the Fourth Circuit, arguing that the sentence was procedurally unreasonable because the district court failed to provide a specific rationale for the sentence.
The Fourth Circuit affirmed, applying plain error review. The court explained that when a sentence is within the advisory Guideline range, as this one was, that "the explanation need not be elaborate or lengthy." While conceding that the district court "in this case might have said more," the failure to do so - given Hernandez's lack of objection to the Guideline calculations and a request to impose a sentence at the bottom of the Guideline range - was not error. Furthermore, even if some error was committed (and it was plain), Hernandez could not show prejudice since he received the sentence he requested.
The Fourth Circuit affirmed, applying plain error review. The court explained that when a sentence is within the advisory Guideline range, as this one was, that "the explanation need not be elaborate or lengthy." While conceding that the district court "in this case might have said more," the failure to do so - given Hernandez's lack of objection to the Guideline calculations and a request to impose a sentence at the bottom of the Guideline range - was not error. Furthermore, even if some error was committed (and it was plain), Hernandez could not show prejudice since he received the sentence he requested.
Escape Not Per Se "Violent Felony" Under ACCA
US v. Bethea: Bethea pleaded guilty to being a felon in possession of a firearm and was sentenced to 180 months in prison under the ACCA. The third qualifying predicate offense was Bethea's prior conviction in South Carolina for escape, which the district court concluded was a "violent felony" under the ACCA.
On appeal, the Fourth Circuit answered two questions: (1) was the South Carolina crime of escape categorically a "violent felony"?; and (2) if not, does Bethea's conviction specifically "involve[] the type of violent conduct contemplated by the ACCA"?. The answer, to both questions, was "no."
As to the first question, the court applied the Supreme Court's recent decision in Chambers v. US and concluded that the South Carolina escape statute, which that state's supreme court has given a "broad scope," encompasses both conduct that might meet the definition of violent felony (i.e., escape from a secure facility) as well as conduct that would not (i.e., failure to report at the end of a furlough) and therefore a violation of the statute was not, per se, a violent felony.
As to the second question, the only documents available to determine whether Bethea's conviction was based on conduct that would constitute a violent felony were inconclusive, simply stating that he "escaped." Because of the scope of the South Carolina statute, the court could not assume that "escape" had its common meaning, an unlawful departure from secure custody.
The court vacated Bethea's sentence and remanded the case for him to be resentenced without the ACCA enhancement.
Congrats to the FPD office in South Carolina on the win!
On appeal, the Fourth Circuit answered two questions: (1) was the South Carolina crime of escape categorically a "violent felony"?; and (2) if not, does Bethea's conviction specifically "involve[] the type of violent conduct contemplated by the ACCA"?. The answer, to both questions, was "no."
As to the first question, the court applied the Supreme Court's recent decision in Chambers v. US and concluded that the South Carolina escape statute, which that state's supreme court has given a "broad scope," encompasses both conduct that might meet the definition of violent felony (i.e., escape from a secure facility) as well as conduct that would not (i.e., failure to report at the end of a furlough) and therefore a violation of the statute was not, per se, a violent felony.
As to the second question, the only documents available to determine whether Bethea's conviction was based on conduct that would constitute a violent felony were inconclusive, simply stating that he "escaped." Because of the scope of the South Carolina statute, the court could not assume that "escape" had its common meaning, an unlawful departure from secure custody.
The court vacated Bethea's sentence and remanded the case for him to be resentenced without the ACCA enhancement.
Congrats to the FPD office in South Carolina on the win!
Guilty Plea Waives Ability to Appeal Forced Medication
US v. Bowles: Bowles was charged with multiple drug and firearm charges. After he requested a psychiatric evaluation, Bowles was diagnosed with multiple mental disorders and determined to be incompetent to stand trial. He was committed for the purpose of restoring his competency. After four years, the Government sought to have Bowles forcibly medicated. The district court so ordered. Bowles did not seek an interlocutory appeal of the medication order. The medication restored Bowles's competency, after which he pleaded guilty to being a felon in possession of a firearm. Bowles was sentenced to 188 months in prison.
Bowles appealed, seeking to challenge the district court's order that he be forcibly medicated to restore competency. The Fourth Circuit dismissed the appeal, holding that the issue had been waived by Bowles's guilty plea. A plea deprives the defendant of the ability to seek review on any non-jurisdictional ground, aside from the voluntariness of the plea itself. The proper means to challenge an order to forcibly medicate a defendant is via an interlocutory appeal.
Bowles appealed, seeking to challenge the district court's order that he be forcibly medicated to restore competency. The Fourth Circuit dismissed the appeal, holding that the issue had been waived by Bowles's guilty plea. A plea deprives the defendant of the ability to seek review on any non-jurisdictional ground, aside from the voluntariness of the plea itself. The proper means to challenge an order to forcibly medicate a defendant is via an interlocutory appeal.
Monday, April 12, 2010
Rule 41 Does Not Apply to State Officer On State/Federal Task Force
US v. Claridy: Claridy pleaded guilty to drug and gun charges based on evidence seized from his home pursuant to a search warrant. In the district court, he sought to suppress that evidence (and a subsequent statement) because a "federally deputized Baltimore City police officer" who was part of a joint task force obtained the warrant from a state judge without first trying to obtain one from a federal magistrate judge, in violation of Rule 41(b) of the Rules of Criminal Procedure. The district court denied the motion, holding that even if Rule 41(b) was implicated in this situation it was not intentionally violated so as to require suppression of the evidence.
Claridy raised the same issue on appeal, which the Fourth Circuit rejected. The court began by noting that it had never clarified the application of Rule 41 to joint state/federal investigations, as opposed to purely federal ones. The trigger for Rule 41 to control is not whether the "investigation" is a federal one, but rather whether the "proceeding" was federal, as the rule applies only to "proceedings." A proceeding does not become federal, however, simply because federal officers are involved in the investigation. Nothing in the text of the Rule, moreover, suggests that joint state/federal task forces are limited to utilizing only federal resources. In this case, the application for a search warrant by a state police officer from a state judge alleging violations of state law was not a federal "proceeding" to which Rule 41 applied. Alternately, even if the Rule applied and was violated, suppression would not be appropriate, as the violation was "nonconstitutional and nonprejudicial."
Chief Judge Traxler concurred, emphasizing the fact that the facts upon which the warrant was based came from state officers.
Claridy raised the same issue on appeal, which the Fourth Circuit rejected. The court began by noting that it had never clarified the application of Rule 41 to joint state/federal investigations, as opposed to purely federal ones. The trigger for Rule 41 to control is not whether the "investigation" is a federal one, but rather whether the "proceeding" was federal, as the rule applies only to "proceedings." A proceeding does not become federal, however, simply because federal officers are involved in the investigation. Nothing in the text of the Rule, moreover, suggests that joint state/federal task forces are limited to utilizing only federal resources. In this case, the application for a search warrant by a state police officer from a state judge alleging violations of state law was not a federal "proceeding" to which Rule 41 applied. Alternately, even if the Rule applied and was violated, suppression would not be appropriate, as the violation was "nonconstitutional and nonprejudicial."
Chief Judge Traxler concurred, emphasizing the fact that the facts upon which the warrant was based came from state officers.
RICO, VICAR Convictions Affirmed
US v. Ayala: Ayala and his codefendant, Velasquez, were charged with racketeering and violent crimes in aid of racketeering (VICAR) - assault with a dangerous weapon for both defendants, conspiracy to commit murder only for Ayala. Both were also charged with using a firearm in connection with a crime of violence, although based on different incidents. A jury convicted them on all counts. Ayala was sentenced to 420 months in prison, Velasquez to 444 months in prison.
Both Ayala and Velasquez raised numerous issues in the Fourth Circuit, which affirmed their convictions and sentences. First, Ayala argued that his VICAR conviction for conspiracy to commit murder violated Double Jeopardy because it was part of the same course of conduct as the larger RICO conspiracy. Applying the Blockburger test, the court disagreed, holding that the two conspiracies were separate offenses. Second, Ayala argued that his 924(c) conviction was improper as the RICO conspiracy was not a "crime of violence," as argued by the Government at trial. The court disagreed, noting that "[t]o determine whether the objectives of this conspiracy were violent crimes . . . is intrinsic to the indictment itself" which set forth a pattern of violent racketeering activities including murder, kidnapping, and robbery. Third, the court rejected various arguments Ayala made with regards to evidentiary issues, including the admission of another conspirators statements, evidence of Ayala's guilty plea in state court, and statements made by Ayala (and others) before a state grand jury. Velasquez raised one argument, that the district court erred by limiting his cross examination of the victims of two gang rapes (the crime of violence for his 924(c) charge). The court rejected that argument, concluding that the record demonstrated "an entirely different story." Finally, both defendants argued that the district court erred by allowing the testimony of three expert witnesses who relied, in part, on statements from unnamed declarents in forming their opinions. The court rejected that argument, holding that such testimony does not violate the Confrontation Clause.
Both Ayala and Velasquez raised numerous issues in the Fourth Circuit, which affirmed their convictions and sentences. First, Ayala argued that his VICAR conviction for conspiracy to commit murder violated Double Jeopardy because it was part of the same course of conduct as the larger RICO conspiracy. Applying the Blockburger test, the court disagreed, holding that the two conspiracies were separate offenses. Second, Ayala argued that his 924(c) conviction was improper as the RICO conspiracy was not a "crime of violence," as argued by the Government at trial. The court disagreed, noting that "[t]o determine whether the objectives of this conspiracy were violent crimes . . . is intrinsic to the indictment itself" which set forth a pattern of violent racketeering activities including murder, kidnapping, and robbery. Third, the court rejected various arguments Ayala made with regards to evidentiary issues, including the admission of another conspirators statements, evidence of Ayala's guilty plea in state court, and statements made by Ayala (and others) before a state grand jury. Velasquez raised one argument, that the district court erred by limiting his cross examination of the victims of two gang rapes (the crime of violence for his 924(c) charge). The court rejected that argument, concluding that the record demonstrated "an entirely different story." Finally, both defendants argued that the district court erred by allowing the testimony of three expert witnesses who relied, in part, on statements from unnamed declarents in forming their opinions. The court rejected that argument, holding that such testimony does not violate the Confrontation Clause.
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