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.

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!

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.

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.

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.

Court Affirms Conspiracy, Money Laundering Convictions

US v. Green: Green and his codefendant, Boyd, were tried together and convicted of a drug conspiracy. Boyd, in addition, was convicted of money laundering. The charges arose from a "family-based, years long" conspiracy to bring drugs from South Florida to the Tidewater area of Virginia. The case against Green and Boyd was made largely on the testimony of other members of the conspiracy who had already pleaded guilty.

Boyd and Green both appealed their convictions, which the Fourth Circuit affirmed. Both of them argued that the district court erred by denying their motions for judgments of acquittal. The court disagreed, holding that there was sufficient evidence to support their various convictions. Boyd raised several addition arguments seeking the reversal of his convictions. First, she argued that the district court should have suppressed $54,000 in cash recovered at Boyd's home during his arrest. The court concluded that the money was discovered in plain view during a lawful protective sweep. Second, Boyd argued that the Government violated Batson by striking all teachers from the jury panel as a proxy for excluding women. The court disagreed, holding that it would not extend Batson beyond strikes that are "intentionally invidiously discriminatory" to those merely "having a discriminatory effect." Third, Boyd argued that the district court erred by not giving her proffered "theory of defense" instruction to the jury. The court disagreed, holding that the essential points of that instruction were covered in other parts of the jury charge. Finally, Boyd argued that the prosecution improperly commented on her counsel's behavior during closing argument. The court disagreed.

Judge Gregory dissented from the court's conclusion that the evidence was sufficient to sustain Boyd's money laundering conviction.

Friday, April 02, 2010

Hand-to-Hand Activity Leads to Reasonable Suspicion, Arrest

US v. Johnson: Johnson was observed on a sidewalk in Baltimore in a neighborhood known for drug activity. An officer saw him make "quick hand-to-hand contact with three different men," which the officer interpreted as being drug transactions. The officer then saw Johnson, with two other men in tow, head for a restaurant, which aroused suspicion because "local dealers sometimes conduct their business in legitimate shops in order to elude police cameras." Officers followed Johnson and another man (the third one kept walking up the street) into the restaurant, identified themselves, and asked Johnson to show his hands. Johnson threw a single heroin gelcap of the restaurant counter. "A struggle ensued," after which Johnson was arrested. Reviewing surveillance videos, officers discovered a car in which they suspected Johnson was storing drugs, which they confirmed when they saw more gelcaps in plain view. A search of the car turned up drugs and a firearm. Johnson pleaded guilty to drug and gun charges after unsuccessfully moving to suppress the evidence discovered as a result of his detention and search of his car.

On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court concluded that it was reasonable, based on his experience, for the officer to infer that Johnson's behavior on the sidewalk was related to drug transactions. It rejected Johnson's contention that the officer's experience, regardless of its depth, could transform his outwardly legal behavior into something suspicious. The court also criticized Johnson for disregarding the factual findings of the district court, noting that "[d]istrict courts offer an unbiased forum to test the conclusions of police, and they possess a perspective that appellate forums cannot match." Second, the court held that Johnson was properly seized by an officer in possession of reasonable suspicion when he threw away the gelcap in the restaurant. Third, the court held that the money recovered from Johnson was found during a search incident to a lawful arrest, for which the officers had probable cause once they saw the gelcap. Finally, the court held that there was probable cause to search Johnson's car.

Uninvited Guest Supports Reckless Endangerment Enhancement

US v. Carter: Carter was spotted engaging in what cops suspected was a drug deal. The followed him to a nearby convenience store and tried to apprehend him. Carter slipped their grasp and ran away, tossing aside a baggie of crack along the way. A 911 call alerted officers that Carter had run into a home, to which the officers responded. The person who lived their was waiting for them outside. The officers went inside and found Carter, who was arrested without incident. At sentencing, after a conviction for possession of crack with intent to distribute, the district court enhanced Carter's offense level for reckless endangerment, on the basis of his flight into someone's home.

On appeal, the Fourth Circuit affirmed the enhancement. First, the court concluded that the district court did not clearly err in deciding that the apartment into which Carter fled was occupied when he did so, based on second-hand hearsay testimony from an officer involved in the case, dismissing a brief handwritten statement of the apartment dweller as "illegible." Second, the court concluded that, regardless of whether the apartment was occupied or not, running into someone else's home uninvited creates a "substantial risk of serious bodily injury or death" so as to trigger the enhancement.