Friday, March 18, 2011

One to watch

On Wednesday, March 23, 2011, the Fourth Circuit will hear argument in the case, US v. Maurice Williams, No. 10-4368, considering whether the district court erred in imposing the mandatory minimum term on crack cocaine in light of the FSA and a 5-year consecutive term on a Sect. 924(c) count.

Thursday, March 10, 2011

The case for changing your email password

United States v. Blauvelt: Blauvelt appealed from his convictions for possession and production of child porn, as well as possession of cocaine and two counts of distributing controlled substances to minors. Blauvelt received a 293-month sentence. The Fourth Circuit affirmed, with the Honorable Sandra Day O'Connor sitting by designation as an Associate Justice.

Factually, Blauvelt's former girlfriends, Anne Bridges and Erin Ruley, had a phone conversation, in which Bridges revealed that she had received an email from Blauvelt that contained explicit images of Ruley's 14-year-old sister, B.R. Bridges reportedly deleted the email, but she recalled Blauvelt's email account password and used it to open Blauvelt's email account, accessed the images, and showed them to Ruley. Ruley recognized both her younger sister and the interior of Blauvelt's home depicted in the photos. Bridges supplied Ruley with the email password, and Ruley went to her mother's home, printed out the photos and a screen shot of Blauvelt's email inbox, which demonstrated that the explicit photos were taken with Blauvelt's cell phone and were forwarded to his email account.

Ruley's mother called police, who then interviewed her, Ruley, and B.R., who confirmed that she was the girl in the photos. T.J., a minor male who also appears in the photos, arrived and gave statements to the police, incriminating Blauvelt. The police went to Blauvelt's home, and secured the residence while waiting for a search warrant to be signed. When the rest of the investigative team arrived with the warrant, Blauvelt was given his Miranda warnings, and he waived these rights. Blauvelt then gave statements to police; infamously, he said "oops." Officers seized his cell phone, a desktop computer, a media storage card, a digital camera, a mirror and a straw.

On appeal, Blauvelt made numerous challenges, starting with the denial of his motion to suppress evidence seized pursuant to the search warrant (for lack of probable cause), to the denial of his request for a hearing pursuant to Franks v. Delaware, to the legality of his detention for three hours prior to the issuance of the search warrant, to the improper admission of some bad acts evidence under Rule 404(b), the imposition of a two-level obstruction of justice enhancement, and jury tampering. The Fourth Circuit showed little trouble rejecting each of these arguments and affirming the convictions.

Wednesday, March 09, 2011

Convictions affirmed, Circuit split joined

US v. Halstead: Halstead was convicted of healthcare fraud and conspiring to launder money, and he received a sentence of 151 months. After his direct appeals failed, Halstead filed a petition for the collateral review of his convictions, attempting to vacate the money laundering conviction. Halstead wanted the Fourth Circuit to find a "merger problem" resolved by the Supreme Court in United States v. Santos, so that his money laundering conviction would be vacated, and dramatically reduce the jail time he could expect.

The Fourth Circuit decides here that Santos does not apply, because the charging documents for Halstead's convictions adequately defined his crimes as separate transactions not subject to merger. Indeed, affirming Halstead's convictions was a sideshow in comparison to the main event in this case, in which the Fourth Circuit joins a circuit split on the correct reading of the Santos holding.

The Fourth Circuit joins the 1st and 8th Circuits, finding that Santos requires the solution that when a merger problem arises in the context of money laundering coupled with illegal gambling, the proceeds of the illegal gambling business are its net profits. When the merger problem rears its ugly head outside of this context, e.g. when a case involves money laundering with some predicate crime other than illegal gamblng, the solution depends on a case-by-case analysis, with a consideration of the legislative history of the predicate offense.

Monday, March 07, 2011

Army Board decision on application for discharge reinstated

Kanai v. McHugh: Kanai, a West Point cadet in his final year, sought a discharge from the Army as a conscientious objector. The Department of the Army Conscientious Objector Board denied Kanai's application on the basis that he failed to demonstrate sincerely-held beliefs entitling him to conscientious objector status. The Army subsequently relieved Kanai of his duties at West Point; Kanai went home to Maryland and filed a petition for writ of habeas corpus under 28 U.S.C. 2241. The district court granted Kanai's petition, and the Army appealed.

In determining whether the district court had jurisdiction to hear Kanai's habeas petition, the Fourth Circuit was presented with a question the federal courts have not yet resolved: where should habeas suits be filed when the petitioner is not in jail? The Fourth Circuit sidestepped the challenge to formally resolve the precise meaning of the phrase, "within their respective jurisdictions," in section 2241(a), finding instead that this statutory language "identifies the proper location of the federal district court in which a habeas petition should be filed," rejecting a subject-matter jurisdiction analysis (in accordance with the Supreme Court's holding in Rumsfeld v. Padilla). Additionally, the Fourth Circuit states that any challenge based on this language is waived if not asserted at the district court. Since the Army did not assert a jurisdictional challenge until its appeal, the Fourth Circuit deemed it waived.

On the merits of whether the Army Board had a basis to deny Kanai's application for discharge as a conscientious objector, the Fourth Circuit decided against Kanai, though it remarked favorably on him as "contemplative, self-reflective, and honest." The standard of review for the Army Board's decision required the Fourth Circuit to uphold the denial if it were supported by a "basis in fact." Such a basis exists when "conflicting inferences can be drawn from the same evidence." The Fourth Circuit held that three members of the Army Board's five-member panel appropriately found that Kanai had not presented sufficient evidence to demonstrate his "moral opposition to all wars." On this narrow standard of review, it upheld the Army Board's denial of Kanai's application for discharge.

Thursday, March 03, 2011

Vitalizing the exclusionary rule

US v. Foster: Foster pled guilty to one count of possession with intent to deliver cocaine after police officers discovered drugs and some paraphernalia during an investigative stop. Foster reserved the right to appeal the denial of a suppression motion in which he argued that the officers lacked a reasonable suspicion to make the stop.

In a felicitous turn for Foster, the Fourth Circuit on appeal expresses its dismay at what it characterizes as "Government attempts to spin these largely mundane acts into a web of deception," finding a lack of articulable facts to support the district court's finding of reasonable suspicion sufficient to support the investigative stop, and vacates Foster's conviction.

Remarking on the similarity of this case to the factual scenario of US v. Sprinkle, in which the court held officers had unlawfully seized a driver with a known criminal record and his passenger while the two were huddled together in a car parked in a high crime area, the Fourth Circuit here chides the Government for making sinister the actions of Foster in a parked SUV: Foster sat up swiftly from a crouched position in the front passenger seat as a detective walked towards the vehicle; and Foster's "frenzied" arm movements directed towards the floor of the car. In its evaluation of the totality of the circumstances, the Fourth Circuit decided that the defendant's behavior, observed at some distance by the off-duty detective, in the middle of the day, in a parking lot near a restaurant where the detective had just lunched with his wife, could not have supplied the requisite reasonable suspicion necessary for a Terry stop. The Fourth Circuit concludes by advising the Government against a reliance upon "ad hoc rationalizations to validate those seizures that happen to turn up contraband."

Please use this case for the colorful judicial invective in such quotes as "we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous," and "we note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Bookmark this case for your next motion to suppress, folks.