Monday, May 30, 2011

Nearly 20-year sentence vacated by 4th Circuit

US v. Doyle: Doyle was convicted of receiving, possessing and mailing child pornography, and received a sentence of 235 months. On appeal, Doyle challenged the district court's decision to deny his motion to suppress. The Fourth Circuit disagreed with the district court that the good faith exception from Leon applied in this case, and held that the affidavit in support of the search warrant lacked the necessary information that the neutral magistrate could glean probable cause to support a search for child porn. The Fourth Circuit framed the question for review as not whether the warrant was simply deficient, rather whether the warrant was so deficient that relying upon it was unreasonable, thus precluding the operation of the good faith exception.

Wednesday, May 18, 2011

Court appointed counsel and their clients are people, too

US v. Smith, a.k.a. Poe: It's a subject matter close to the hearts of court appointed counsel everywhere, the quality of harmony in attorney-client relations. In this appeal, defendant Smith challenged the voluntariness of his plea, to which he had agreed following several attempts to obtain substitute counsel.

The Fourth Circuit waxes sympathetic as it considers the Sixth Amendment right to assistance of counsel, to deal with Smith's contention that the district court's denial of his substitution of counsel request rendered his guilty plea involuntary (he had been named in a 20-count indictment charging him and 27 others with racketeering and conspiracy to district and possess with intent to distribute drugs). "The mere physical presence of counsel is not enough: it is the marriage of the attorney's legal knowledge and mature judgment with the defendant's factual knowledge that makes for an adequate defense...more than a 'warm body' is required to satisfy the Sixth Amendment." The Fourth Circuit refers to Sixth Circuit's findings in three cases of per se Sixth Amendment violations, and a Ninth Circuit case where the denial of a substitution motion resulted in the constructive denial of counsel. Upon resolving the question of the appropriate standard of review to consider the denial of substitution requests as clear error review, the Fourth Circuit declines to find clear error.

Was Smith's guilty plea rendered involuntary? Was it effectively uncounseled because of a failure to communicate between appointed counsel and client? The parties remained on speaking terms, counsel continued to make visits to his client in prison, and though the two may have argued, the Fourth Circuit found that there was no conclusive break prior to the plea hearing, and Smith's contention that his plea was involuntary failed. Neither did the Fourth Circuit find that the denial of Smith's request for substitute counsel at the time of sentencing cause a clear error.

The Fourth Circuit considered the nature of the communication between counsel and client throughout the representation, and it noted that there had been severe damage by the time of sentencing; yet, since counsel and client had met, reviewed the PSR, and communicated enough to allow counsel to present some concerns to the court, the Fourth Circuit declined to find that counsel failed to render genuinely effective assistance.

And while "there is no one-free-lawyer" rule, the Fourth Circuit found that Smith's one appointed lawyer was sufficient here to protect his Fifth and Sixth Amendment rights.

Tuesday, May 17, 2011

Confrontation Clause at sentencing hearings

US v. Powell: Powell was convicted of mail fraud, wire fraud and attempted destruction of evidence, following an investigation made on behalf of customers of his Internet-based electronics sales business. On appeal, Powell challenged the way the government gathered evidence against him for use at his sentencing hearing: the number of victims and amounts of monetary losses were not solely determined by trial testimony, but also through hearsay statements of other victims made to the investigating postal inspector. The government requested an enhanced sentence based on all of this evidence, not just the testimony of the eight victims who testified at trial. Powell argued that these investigatory methods violated his Confrontation Clause rights by relying on hearsay statements from individuals who did not testify.

The Fourth Circuit discussed the distinctions between trial evidence and sentencing evidence, especially with respect to hearsay, finding a long line of established cases in the Supreme Court, sister circuits and its own jurisprudence, indicating the confrontation right does not apply at sentencing. The Fourth Circuit found that Powell was not without some evidentiary protections, however, stating that due process requires a minimal level of reliability sufficient to support its "probable accuracy" as required by the Guidelines.

Friday, May 13, 2011

"Structural" versus "trial error" in discussion of co-defendants' guilty pleas

US v. Poole: Poole, an accountant, was convicted following a bench trial of four counts of aiding and assisting in the preparation of false tax returns. The Fourth Circuit affirmed.

Poole's appeal challenged the district court's verdict in three ways, claiming that the convictions were unlawfully based on the guilty pleas of his co-defendants, on the improperly credited testimony by a key government witness that Poole believed to have been false, and insufficient evidence that he knew the returns were fraudulent and that he acted willfully in filing them.

Poole referred to the district court's multiple mentions of his co-defendants' guilty plea on the record as grounds for denying him a fair trial. The Fourth Circuit found these statements to constitute error on the basis that the district court gave consideration to facts not in evidence. While Poole wanted the Fourth Circuit to find this error as "structural" as opposed to "trial error," as explained in United States v. Blevins, the Fourth Circuit held that the district court's error was "a classic example of trial error subject to harmless error review," and following a harmless error analysis, found the error harmless in light of "overwhelming" evidence of Poole's guilt.

The Fourth Circuit considered Poole's second appeal issue as a request to reverse a credibility determination, made by the district court, which it declined to do; it deferred to the district court's estimation of the witness's credibility and reliability. Finally, the Fourth Circuit determined that Poole purposefully ignored large accounting discrepancies, such that he could not claim willfull blindness about his clients' financial misdeeds.

Thursday, May 12, 2011

Overreaching protective sweep "saved" by independent source doctrine

US v. Bullard: Bullard was convicted of possession with intent to deliver crack. He appealed the denial of a motion to suppress, argued the disparities in sentencing for cocaine and crack offenses violate both Equal Protection and Due Process, and that the FSA should apply to him.

First, the Fourth Circuit held that Bullard's Fourth Amendment rights were not violated by the investigating officers in this case. After finding it unnecessary to determine whether Bullard had a privacy interest as an unregistered hotel guest, the Court focused its attention on the problematic protective sweep the police conducted here. The protective sweep included a search of closed luggage and cabinets, but only after the police had found obviously incriminating evidence in plain view (e.g. the "smell" of narcotics, paraphernalia, and cocaine residue); however, the Fourth Circuit found that the sweep was saved by the independent source doctrine for two reasons: 1) the officers did not rely on the information they obtained in the protective sweep to obtain their search warrant; and 2) the officers intended at the outset of the search to obtain a search warrant. An overly aggressive protective sweep requires suppression, only if the "illegal search tainted the later recovery of the same evidence pursuant to a valid search warrant."

Second, the Fourth Circuit held that only the Supreme Court could overrule Fourth Circuit precedent set by a prior Fourth Circuit panel, declining to adjust the position that the disparities in crack and cocaine sentencing in 21 U.S.C. sect. 841 do not violate Equal Protection or Due Process rights.

Third, the Fourth Circuit held that the Savings Statute precludes the retroactive application of the new penalty provisions of the FSA to individuals who had been sentenced prior to the effective date of the FSA in early August 2010, a decision in concert with sister circuit rulings.

Murder and Conspiracy convictions affirmed following evidentiary challenges

US v. Byers: Byers and Co-Defendant Goodman were convicted of conspiracy and murder of a witness, Carl Lackl, to prevent Lackl from testifying in a Maryland state murder trial. On appeal, the two challenged several evidentiary rulings, and Goodman appealed the denial of his pretrial motion to suppress. The Fourth Circuit affirmed.

Lackl was to testify as an eyewitness against Byers in the March 2006 shooting of Larry Haynes; another eyewitness recanted, leaving Lackl as the sole person who could place Byers at the Haynes murder scene. Whether Byers had motive to kill and whether Lackl was accurate in his identification of Byers in the earlier murder investigation became crucial at trial.

The Fourth Circuit determined that 404(b) evidence of Byers's invovled in two prior shootings suggested a common theme, and was "necessary" to counter Byers's strategy of negating motive. And, for good measure, even if the district court abused its discretion in allowing this evidence in, the Fourth Circuit found this error was harmless. Byers attacked Lackl's reliability as an effective witness and Lackl's identification of Byers at the scene of Haynes's murder. Also, the Fourth Circuit held that it was not error to admit the statements of Lackl's girlfriend, who warned him of the mortal danger of his involvement as a testimonial witness.

Goodman's appeal issues concerned the testimony of a rebuttal witness, arguing that the proposed testimony failed to counter any new evidence presented in Goodman's case-in-chief. The Fourth Circuit decided that the proposed testimony went to the witness's credibility, and any error in admitting it was harmless. Goodman also appealed the denial of his motion to suppress of his post-arrest statements, which he claimed were involuntary. Under a totality of the circumstances, the Fourth Circuit found no unconstitutional coercion on the record.

Rehearing on Batson claim results in affirmance

US v. Barnette: Barnette was convicted in 2000 of killing his ex-girlfriend and another person. He received a death sentence, appealed it, had his convictions affirmed but received a new sentencing hearing. His death sentence was affirmed; on his second appeal of the sentencing, the Fourth Circuit rejected his initial Batson challenge. Barnette appealed to the Supreme Court, which granted certiorari, vacated the judgment and remanded the case for reconsideration of the Batson claim in light of the Supreme Court's recently-issued opinion, Miller-El v. Dretke. The Fourth Circuit remanded to the district court, which in turn issued a memorandum order, finding that Barnette had not met his burden of demonstrating that the prosecution had engaged in unconstitutional peremptory strikes against five African American members of the jury venire for his second sentencing in 2002. The Fourth Circuit found no prejudicial error in the district court's findings, and affirmed.

Monday, May 09, 2011

Burglary of "Shop" In Virginia Triggers ACCA Enhancement

US v. Baxter: Baxter was convicted of being a felon in possession and was sentenced as an armed career criminal. Baxter argued that a 1976 Virginia conviction for burglarizing a "shop" was not a violent felony, within the meaning of ACCA. The district court disagreed. On appeal, the Fourth Circuit affirmed the sentence. Relying on "the definitive construction" of the burglary statute from the Virginia Supreme Court, the court held that "shop" was not so vague as Baxter argued and that the "shop" was "affixed to the ground" and therefore fell within the generic definition of "burglary" found in Taylor v. US, 495 U.S. 575 (1990).

Delay In Mutli-Defendant Drug Case Doesn't Violate STA or Due Process

US v. Shealey: Shealey was initially charged, along with several codefendants, with several counts related to the distribution of drugs. As trial neared - already delayed by on continuance - one of Shealey's codefendants sought further delay, based on a change of counsel and the late delivery of substantial discovery by the Government. Shealey objected to the continuance and asked for his trial to be severed from the others and to proceed without delay. That motion was denied. After rejecting a plea bargain, Shealey was further charged with two counts of money laundering. He was convicted on all counts at trial and sentenced to life in prison.

On appeal, Shealey raised several arguments challenging his conviction and sentence, all of which the Fourth Circuit rejected. First, Shealey argued that the district court erred by dismissing his motion to sever, particularly given that numerous codefendants who testified at his trial only pleaded guilty after the original trial date had passed. The court disagreed, holding that the district court did not abuse its discretion and that Shealey's argument for why he was harmed is not an injury to a "specific trial right" or other prejudice that resulted from a joint trial. Second, Shealey argued that the late filing of the superseding indictment against him violated his right to due process because it gave the Government time to negotiate plea bargains with other defendants/witnesses. The court disagreed, holding that Shealey could not point to any concrete prejudice he suffered as a result. Finally, Shealey argued that his life sentence was substantively unreasonable. The court disagreed, noting his criminal history and "voluminous quantities of drugs" involved.

Felony Enhancements for Unauthorized Computer Access Misdemeanors Violate Double Jeopardy

US v. Cioni: Cioni engaged in a pattern of harassment against an ex-lover and those around him. As a result, she was charged with several offenses, including two counts of obtaining information through unauthorized access to computers. Although that offense is ordinarily a misdemeanor, it can become a felony if it was committed "in furtherance" of other offenses. In Cioni's case, she was alleged to have committed the offenses in furtherance of obtaining access to communications in electronic storage. The jury convicted her on those charges (and three others) and found they were committed in furtherance of other offenses, triggering the felony enhancement.

On appeal, the Fourth Circuit reversed Cioni's convictions on those two counts, remanded for the imposition of misdemeanor convictions and for resentencing. The court agreed with Cioni that, the way the offenses were charged, she was convicted of the misdemeanor offense and then had that enhanced to a felony, based on the same conduct. That enhancement violated the Double Jeopardy Clause. The court then rejected Cioni's arguments that the evidence was insufficient to sustain two of the other convictions against her, that she did not knowingly and voluntarily waive her right to counsel at sentencing, where she proceeded pro se, and several other minor arguments. The court vacated Cioni's 15-month sentence, the two felony convictions, and remanded for further proceedings.