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."

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.

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.

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.

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.

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.

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.

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.

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.