Monday, January 25, 2010

Court Takes Broad View of Warrant Scope in Computer Search

US v. Williams: Authorities in Fairfax, Virginia were investigating a series of emails sent to a local church school which indicated the writer's desire to engage in sexual activity with some of the boys there. The investigation led to an email account in the name of Williams's wife. As a result, authorities obtained a search warrant for Williams's home, searching for evidence of Virginia offenses of sending threatening or obscene messages via computer. While conducting the search, one officer opened a lock box in Williams's garage and discovered a machine gun and silencer, neither of which, upon inspection (to determine if the gun was loaded), had a serial number. Officers also seized a DVD which, it was later revealed, contained child pornography.

Williams moved to suppress the gun, silencer, and DVD as beyond the scope of the warrant (based largely on the work of Orin Kerr, who weighs in here). The district court denied the motion and found Williams guilty (on stipulated facts) of two counts of possession of an unregistered firearm and possession of child pornography. On appeal, the Fourth Circuit affirmed the district court's denial of Williams's motion to suppress.

As to the DVD, Williams argued that when searches of computer data are at issue a traditional Fourth Amendment approach is inappropriate. Specifically, Williams argued that the search warrant did not authorize the search of every file on his computer (or related media), but only those files related to the offenses being investigated. Furthermore, a broader search for child pornography did not fit into any well established exception to the warrant requirement (i.e., plain view). The Fourth Circuit disagreed, concluding that the images on the DVD were "instrumentalities" of the Virginia offenses that were the object of the search. In the alternative, the court held that the seizure of those images was justified under plain view, as the scope of the warrant allowed investigators to open every file in order to determine its contents with regards to the offenses being investigated.

As to the machine gun, the court also concluded that the plain view exception applied, holding that the warrant allowed a search inside the lockbox for media devices that could be stored within, which would require picking up the gun and silencer to move them. The officer, once allowed to pick those items up, was entitled to inspect them for safety purposes.

3582(c)(2) Reductions Not Limited to Exact Match of Previous Departure

US v. Fennell: Fennell pleaded guilty to a conspiracy to distribute more than 50 grams of crack cocaine in 2005. Following a motion by the Government based on substantial assistance, Fennell received a sentence of 97 months in prison, below the 120-month mandatory minimum and Guideline range of 121-151 months. Fennell filed a motion under 18 USC 3582(c)(2) seeking a reduction of his sentence in the wake of the recent amendments to the crack Guidelines, arguing for a sentence of 80 months, a departure of comparable amount (20%) from the bottom of his new Guideline range, 100-125 months. The district court concluded Fennell was eligible for a reduction, but that he was limited to reducing his sentence to 96 months - one month less than originally imposed - because the actual new Guideline range was still controlled by the statutory mandatory minimum, and thus was actually 120-125 months. A 20% reduction from 120 months resulted in a 96-month sentence.

On appeal, the Fourth Circuit agreed with Fennell and vacated his new 96-month sentence. Noting that procedures for determining the extent of a departure for substantial assistance vary from district to district, the court held that "these same methods, or any reasonable method that results in a comparable reduction, are available to a sentencing court during a resentencing" under 3582(c)(2). Furthermore, USSG 1B1.10, which applies in those cases, does not state that only a departure identical in scope to the one initially given is appropriate. Because the district court concluded it was limited to awarding an identical reduction, rather than a comparable one, Fennell's sentence was vacated and his case remanded.

Congrats to the defender office in the EDNC on the win!

Admission of Guilt Required for Criminal History Scoring

US v. Martinez-Melgar: Martinez-Melgar pleaded guilty to various drug and firearms charges. At sentencing, he challenged the use of a prior North Carolina disposition in the calculation of his criminal history score. Specifically, Martinez-Melgar argued that his participation in a "District Court Step Drug Program" in Mecklenburg County, NC, should not count in his criminal history because he did not make an admission of guilt in connection with the program. Likewise, Martinez-Melgar argued that the term of probation he was on as a part of the Step program could not be used to increase his criminal history score under USSG 4A1.1(d). The district court disagreed, partly based on testimony at the sentencing hearing from the architect of the Step program who explained that participation in that program required a "statement of responsibility" that was the equivalent of an admission of guilt, even though the Government could not provide evidence of such a statement in Martinez-Melgar's case.

On appeal, the Fourth Circuit vacated Martinez-Melgar's sentence and remanded for further proceedings. The court noted that, for participation in a program like this to contribute to a criminal history score, it must result from a finding or admission of guilt in either open court or some other court proceeding. While the district court did make findings to conclude that Martinez-Melgar had made such an admission, a review of the record showed those findings to be clearly erroneous. Specifically, while the district court properly relied on computer records to conclude that Martinez-Melgar was charged with a qualifying offense and he successfully completed the Step program, there was insufficient evidence that Martinez-Melgar made an admission of guilt in open court as a part of those proceedings.

Congrats to the defender office in the WDNC on the win!

Friday, January 15, 2010

Downward Variance in Tax Evasion Case Requires More Explanation

US v. Engle: Engle pleaded guilty to tax evasion, having hidden assets from the IRS for more than a decade to the tune of more than $600,000 ($2 million with penalties and interest). His advisory Guideline range, after a departure for over representation of criminal history, was 24 to 30 months. The Government argued for a sentence within that range (shock!), but the district court imposed a sentence of probation, noting Engle's ability to make money and the district court's desire that he "settle up" with the IRS. The district court admitted that "[a]bsent . . . the apparent ability to generate the income, I would simply impose a Guideline sentence and be done with it." It imposed a sentence of probation, to include a period of time at a halfway house, during which Engle could travel, including internationally, for his job.

After being informed by BoP that Engle could not reside at a halfway house while being permitted to travel internationally, the district court vacated Engle's sentence. Time passed. Two years later, the district court held a second sentencing hearing. In the interim, Engle argued he had amassed $25,000 to pay towards his tax debt, in addition to another $100,000 he was about to receive from commissions. The Government pointed out that he had actually only paid $480 towards his debt, those payments being made only a couple of weeks in advance of the hearing. After the district court asked whether it wanted "blood or money," the Government reiterated its argument for a sentence within the Guideline range. The district court then imposed the same sentence as before, substituting home confinement for the halfway house term.

The Government appealed Engle's sentence of probation, which the Fourth Circuit vacated. The court found the sentence to be both procedurally and substantively unreasonable. Procedurally, the Fourth Circuit faulted the district court for not adequately considering (or discussing) the Guideline policy statements specifically related to tax offenses, noting that they emphasize the need for general deterrence in such cases. Although the district court is free to disregard their advice, in this case it did not provide enough evidence to show it properly considered them before doing so. That is particularly critical in a case that the Fourth Circuit says "is a 'mine-run' tax-evasion case only in the most generous (to Engle) understanding of that phrase." Substantively, the Fourth Circuit faulted the district court for its "near-exclusive focus on Engle's financial ability to pay restitution." Such a focus, the court noted, essentially allows wealthy tax evaders to escape incarceration, while dooming poor evaders to that fate.

Subjective Self Defense Instruction Correctly Refused

US v. Gore: After getting into a heated argument with a correctional officer at FCI Gilmer, Gore got into a scuffle with a second officer that resulted in him being sent to "the hole." Gore was charged with assault on and forcibly resisting a correctional officer under 18 USC 111. At trial, Gore asked the district court to give a self defense instruction that allowed the use of force if the correctional officer "uses more force than appears reasonably necessary." The district court rejected that formulation, holding that it was too subjective, and instructed that self defense was available only if Gore "was under an unlawful present or imminent threat of serious bodily injury or death." Gore was convicted at trial and sentenced to 87 (more) months in prison.

Gore appealed, arguing that the district court erred by not giving his self defense instruction. The Fourth Circuit disagreed and affirmed the convictions. First, the court concluded that, although section 111 did not include a provision for self defense as a defense to the charge, self defense was available to defendants charged with that offense. Second, the court concluded that, given the particular circumstances present in a prison setting, such a defense must be narrowly construed and limited to situations where there is an objective fear of death or serious bodily injury.

Court Affirms Convictions, Life Sentences of "20th Hijacker"

US v. Moussaoui: Moussaoui was the "20th hijacker," arrested for overstaying his visa while training at a Minnesota flight school in August 2001. After 9/11, dots were connected and Moussaoui was eventually charged with six conspiracy counts (from use of weapons of mass destruction to destruction of Federal property) related to those attacks. After lots of wrangling about attorneys, access to classified information, and the like, Moussaoui (who at one point proceeded pro se) announced that he would plead guilty straight up to the indictment. After he did so, a jury rejected the arguments of the Government in search of the death penalty and condemned Moussaoui to a series of life sentences. The district court imposed six life sentences on Moussaoui, all but one of which are to run concurrently. After sentencing, Moussaoui moved to withdraw his guilty plea, explaining that the leniency showed to him by the sentencing jury convinced him that he could receive a fair trial in an American court. That motion was denied.

On appeal Moussaoui challenged both his guilty plea and his sentences, as well as seeking a remand based on classified information the Government disclosed during the appeal. The Fourth Circuit rejected all his requests, affirming his convictions and sentences.

As to the guilty plea, the court first rejected Moussaoui's argument that his plea was involuntary due to several of the district court's pretrial rulings. Those claims were extinguished by the guilty plea, which was not conditional, and were therefore waived. The court also rejected claims that Moussaoui's guilty plea was not made knowingly and intelligently, because (a) he did not have access to certain exculpatory, classified information when he entered his guilty plea, and (b) counsel was prohibited from discussing that information with him. Next, the court rejected Moussaoui's argument that the district court should have ordered a competency evaluation (beyond the one done before Moussaoui went pro se) prior to the entry of his guilty plea. Finally, the court rejected Moussaoui's arguments about errors in the guilty plea hearing (under a plain error standard of review), including the failure to adequately inform him of the charges against him, to ensure a factual basis exists, and to inform him of the possible sentences he faced.

As to his sentences, the court first rejected Moussaoui's argument that the district court erred by denying his motions for acquittal on the issue of whether he was eligible for the death penalty. Noting that the argument is moot because the jury did not recommend the death penalty, the court explained that because the jury also did not unanimously recommend that Moussaoui receive life sentences the determination that he was death eligible did not require the imposition of life sentences by the district court. The court also concluded that the district court was not under the false impression that life sentences were mandatory after the jury's findings.

Finally, as to Moussaoui's motion to remand for the district court to consider classified evidence that came to light during the pendency of the appeal, the Fourth Circuit denied Moussaoui's request. Having reviewed the evidence in question in camera, the court held that it was not exculpatory and would not caused Moussaoui to forgo a guilty plea and proceed to trial.

Monday, January 11, 2010

Stop & Search By Private Security Guards Not Subject to Fourth, Fifth Amendments

US v. Day: Day was at an apartment complex when he was confronted by two "armed security officers," whom the commonwealth of Virginia has blessed with the power to arrest. The officers saw Day and another man standing outside an apartment, apparently arguing with someone inside. Day allegedly drew a gun from a nearby car and pointed it towards the apartment. At that point, the "armed security officers" rolled up, drew their weapons, and commanded Day to "freeze." Day put the gun back in the car and put his hands up. Officers restrained Day, performed a pat down (without finding anything), and asked Day questions about whether he had anything on him and about the gun. Day admitted having some marijuana in a coat pocket and admitted carry the gun for personal protection.

Day was indicted for being a drug user in possession of a firearm and possession of marijuana. He moved to suppress the evidence found as a result of this encounter, which the district court partially granted. The district court concluded that the "armed security officers" were state actors bound by the Fourth and Fifth Amendments when they contacted Day. Analyzing their actions under Terry and other relevant precedents, the district court suppressed the marijuana and all statements made by Day, but upheld the seizure of the gun. The Government sought an interlocutory appeal the day before Day was to go on trial.

On appeal, the Fourth Circuit reversed the district court's partial grant of Day's motion to suppress. The court disagreed with the district court's conclusion that the "armed security officers" were state agents and that therefore there were any Constitutional protections available to Day in the first place. The fact that Virginia law authorized the officers to arrest Day (but did not require, recommend, or reward it) was not sufficient to conclude that the commonwealth "affirmatively encouraged" their conduct. The court rejected Day's reliance on similar cases arising in 1983 litigation, noting that the evidence of a state-private agency relationship in those cases was much stronger.

Judge Davis concurred and dissented, arguing that regardless of the agency issue, the officers' actions did not violate the Fourth or Fifth amendments.

Inadequate Explanation of Loss Calculations Require Resentencing

US v. Wilkinson: Wilkinson pleaded guilty to conspiracy to defraud the US, mail fraud, and conspiracy to steal trade secrets stemming from a scheme in which he acquired confidential bid information from his company's competitor (via a bribe from someone in that company) in order to secure contracts with the Defense Energy Support Center (DESC). At sentencing, the parties disagreed as to the amount of loss that should be used to calculate Wilkinson's advisory Guideline range and whether DESC had suffered any actual loss that would require Wilkinson to pay restitution. Ultimately, the district court adopted a Guideline loss calculation that left the advisory range at 12 to 18 months (versus 51 to 63 months in the PSR), sentenced Wilkinson to three years of probation, plus a fine an restitution to another victim not at issue in the appeal. The district court did not order Wilkinson to pay any restitution to DESC.

On appeal by the Government, the Fourth Circuit vacated the sentence and remanded for resentencing. The attacks on both the sentence and restitution order rested on the argument that the district court had improperly calculated DESC's losses. The court concluded that the district court "did not provide us anything close to a sufficient explanation of its rationale in making its loss finding with respect to DESC that would enable use to review such finding under the clearly erroneous standard." Thus, the court remanded with specific instructions to revisit the DESC loss issue with more detail and then, if necessary, proceed with resentencing. District

Judge Moon concurred and dissented in parts, arguing that some of the loss amounts were sufficiently detailed to allow for the conclusion that the district court's conclusions were correct with respect to those particular amounts.

Inventory Search Allows Search of Closed Containers In Trunk

US v. Mathews: Mathews was pulled over after an officer noticed his obscured license plate. Before the car was stopped, the officer recognized Mathews and confirmed his believe that Mathews had an outstanding warrant for his arrest. The car was stopped and Mathews arrested. Also in the car was an unlicensed 17 year old and an infant, neither of which could drive the car away. Therefore, the officer impounded the car. As a result of the impound, he performed an inventory search that resulted in the discovery of drugs in some luggage in the trunk. Mathews unsuccessfully tried to suppress the evidence found in the trunk and then entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed the district court's denial of Mathews's motion to suppress. The court rejected Mathews's argument that the search was not a proper inventory search because the policy under which the officer searched the car did not detail how to deal with closed containers. No specific provision in the inventory search protocol was needed to search closed containers. The court also rejected Mathews's argument that the search was improper because the inventory search protocol did not sufficiently curtail the discretion of the searching officer.

Joinder Improper & Prejudicial In Trial for Carjacking and Later Felon In Possession

US v. Hawkins: Hawkins was a suspect in the carjacking of a cab in Baltimore, during which it was alleged he threatened to shoot the driver. When authorities tracked down Hawkins at a convenience store, he made movements indicating he might be armed. He was subdued and a pistol recovered from him. As a result of these activities, Hawkins was charged with carjacking, a 924(c) count for the use of a firearm therein, and being a felon in possession of a firearm, based on the pistol recovered during his arrest. Prior to trial, Hawkins sought to sever the two counts related to the carjacking from the felon in possession count, but the district court denied his request. Hawkins was convicted on all three counts.

On appeal, Hawkins argued that the district court erred by denying his motion to sever. The Fourth Circuit agreed and reversed his convictions on the carjacking and 924(c) counts and remanded for resentencing on all three counts. In doing so the court rejected the Government's argument that the three charges were sufficiently related because "all three were firearms offenses" and "all these events occurred within a three-week period." Therefore, the carjacking and 924(c) counts were not of the "same or similar character" as the felon in possession count.

Furthermore, the court found that the error was prejudicial to Hawkins, particularly given the use at trial of a statement Hawkins made about the felon in possession count that referenced other actions that might have bolstered the Government's case on the other counts. Judge Motz concurred in the result, but wrote separately to explain that "this circuit's approach to Federal Rules of Evidence 404(b) and 403 may well have precipitated error in this case."