Thursday, July 28, 2011

Tailgating traffic stop lasts too long

US v. Digiovanni: The government appealed the district court's decision in this case to suppress evidence found after a traffic stop for tailgating lead to a baseless, involuntary vehicle search on I-95. The Fourth Circuit affirmed the district court's decision to suppress.

In addressing the length of the stop, the district court found that it lasted longer than necessary, at approximately 15 minutes, when the purpose of the stop was to issue Digiovanni with a warning not to tailgate. The police officer did not diligently check Digiovanni's license, instead he embarked on a unwarranted drug investigation, not supported by any reasonable suspicion. The district court also found fault with the officer's coercive attitude during the traffic stop and the involuntariness of the written consent Digiovanni signed.

Neither party disputed the lawful nature of the traffic stop at its inception; however, the seizure was not limited in both scope and duration as required under Terry: if the officer wants to extend the discussion outside the scope of the initial stop, there must be reasonable suspicion or he must receive the driver's consent. Unrelated questions during an investigative stop are okay, but they cannot extend the length of the time in which the defendant is detained.

The articulated facts of the case, according to the district court, simply did not eliminate a substantial portion of innocent travelers, so there was no reasonable suspicion to investigate Digiovanni beyond the traffic stop. The video evidence from the police car helped to expose the absurdity of the stop and its justifications to great effect.

Friday, July 08, 2011

Abuse-of-trust enhancement ok'd for fake bail bondsman

US v. Brack: Brack pled guilty to wire fraud and aggravated identity theft, after posing as a bail bondsman and pretending to assist an elderly man in posting bond for his granddaughter. Brack took the man's social security card, driver's licence and ATM card, opening up multiple lines of credit and purchasing several items; he later gave Brack cash amounting to $16,568 and the deeds to two properties as collateral for his granddaughter's bond. At Brack's sentencing, the district court applied an abuse-of-trust enhancement, based on her masquerade as a licensed bail bondsman. The Fourth Circuit affirmed.

Brack failed to object to the abuse-of-trust enhancement at sentencing, so the Fourth Circuit reviewed the district court's factual findings only for clear error. The Fourth Circuit discussed how the enhancement applies to imposters, so long as the "defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust." Brack argued that as a matter of law, bail bondsmen in North Carolina do not occupy a position of public or private trust, to which the Fourth Circuit responded that indeed, bail bondsmen are subject to a comprehensive system of regulation to obtain a license, their qualifications are spelled out statutorily, and they must meet residency, educational and training requirements - clearly positions of public trust that entail certain fiduciary duties to customers. The Fourth Circuit concluded that no clear error occurred in the imposition of the abuse-of-trust enhancement in Brack's case.

Just deserts for timely acceptance of responsibility

United States v. Divens: Divens pled guilty to distributing cocaine, signed his acceptance of responsibility letter, but declined to sign a plea agreement that would waive his right to appellate review and collateral attack. The Government subsequently refused to give Divens a third-level reduction for acceptance of responsibility under sect. 3E1.1(b).

At the time of sentencing, Divens objected to the pre-sentence report Guidelines calculation, acknowledging that the district court could only award the third level reduction upon motion of the Government, and the Government argued that its refusal to move for the additional reduction was "rationally related to the purposes of the guidelines" because it allowed the Government to avoid defense of "a complete appeal" and to "allocate its resources to other matters."

The Fourth Circuit broke with other circuits in determining that the Government does not enjoy the discretion it does under sect. 5K1.1 in sect. 3E1.1, finding that sect. 3E1.1 does not require that a defendant provide the prosecution with assistance that must reduce "expense and uncertainty" at attends an appeal. Nothing in sect. 3E1.1 permits the Government to withold the third level reduction on the basis of an interest in conserving appellate resources. Next, the Fourth Circuit disagreed with the Government that courts should interpret the guidelines in a manner that facilitates the Government's pursuit of appellate waivers. Third, the Fourth Circuit held that when a defendant pleads guilty unconditionally in a timely fashion, that defendant's refusal to sign an appellate waiver has no impact on the ability to challenge a conviction or on the Government's need to "anticipate" such a challenge.

Congrats to Jonathan Byrne in the Southern District of West Virginia!!!