Thursday, December 15, 2011

Terry-like Scenario Produces Terry-like Result

US v. Glover: Glover was convicted of being a felon in possession of a firearm after being subject to a stop-and-frisk in a parking lot in the "wee hours of the morning." Two officers on patrol drove to a 24-hour gas station which both knew had been the site of prior armed robberies (one of the officers had personally investigated one of the robberies). Only two people were present - the station attendant, who was outside checking the tank levels, and Glover, who was standing 45-60 feet away in an area that was not captured by the station's security cameras. Officers saw Glover glance around a corner and pull his head back, as if trying to hide. When they drove out of the lot, he watched them. The officers were concerned and decided they should talk to Glover. By the time they circled back around to the station, Glover was "standing, basically overtop" of the attendant, who appeared unaware of his presence. The officers walked over to Glover and one of the officer's patted him down, uncovering a gun in his right pants pocket. The district court refused to suppress the gun and Glover was sentenced to 60 months in prison.

On appeal, Glover argued that the officers lacked reasonable suspicion upon which to base a legitimate stop-and-frisk. The Fourth Circuit disagreed and affirmed his conviction. The court held that the actions of the officers in this case were essentially the same as in Terry, undertaken for the same reason. Based on the totality of the circumstances the officers had reasonable suspicion to believe an armed robbery might be in the offing. Among the factors supporting that conclusion was the high-crime nature of the area (not just in general, but the gas station's history itself), the time of night, lack of others around, and the vulnerable position of the attendant, as well as Glover's actions themselves.

Command While Using Gun Supports "Physical Restraint" Enhancement

US v. Dimache: Dimache pleaded guilty to armed bank robbery. He and an accomplice robbed a bank in South Carolina, during which Dimache brandished a gun, using it first to direct a teller to give money to his accomplice and then to force other tellers to get down on the floor. In the PSR, the probation officer recommended a two-level enhancement under USSG 2B3.1(b)(4)(B) for physical restraint of a person to facilitate the offense. In this case, the basis for the enhancement was Dimache using the gun as a threat to force the tellers to the ground. Dimache objected, but the district court imposed the enhancement. The district court sentenced him to 90 months in prison.

On appeal, Dimache argued that the two-level enhancement should not apply in his case because merely pointing a gun at some one and ordering them to move does not constitute "physical restraint." The court rejected that argument. It noted that the "essential nature" of the conduct justifying the enhancement is the "deprivation of a person's 'freedom of physical movement.'" While it was "not an easy question to answer" whether the presence of a gun can lead to physical restraint, the court has previously read the enhancement to apply broadly. Therefore, the use of the gun to restrict the tellers' movements supported imposition of the enhancement.

Child Pornography Warrant Based on Observations of Other Officers Saved by Good Faith

US v. Wellman: Wellman was convicted at trial of possessing child pornography, possessing an obscene image depicting minors, and doing so while being required to register as a sex offender, an offense which requires a 10-year mandatory minimum sentence to run consecutive to any other sentence imposed. The convictions were based on evidence obtained from Wellman's home pursuant to a search warrant. The warrant in turn was based primarily on assertions from a child pornography task force in Wyoming that known images of child pornography was present on Wellman's computer. Prior to trial, Wellman sought to suppress the evidence found pursuant to the warrant, arguing that the factual basis for the warrant was not sufficient to demonstrate probable cause because neither the images of alleged child pornography were attached to the warrant application, nor was there any description of the images in the application. The district court denied the motion. After his convictions, Wellman was sentenced to 300 months in prison, including the 10-year consecutive mandatory minimum.

On appeal, Wellman challenged his convictions as well as his sentence. First, he renewed his argument that there was insufficient evidence to support the probable cause needed to issue the search warrant and that in issuing the warrant the issuing judge simply rubber stamped the requesting officer's conclusions. The court rejected that argument, but did so by finding the Leon good-faith exception applied (assuming arguendo that the warrant was invalid) and that the issuing judge did not act as a rubber stamp, nor was the application so lacking in indicia of probable cause to render reliance on it unreasonable. Second, Wellman argued that the district court erred by not instructing the jury that to convict on the obscenity charge he must have known that the image was obscene. Relying on the Supreme Court's 1974 decision in Hamling, the court held that knowledge of such a legal conclusion is not necessary to sustain the conviction. Finally, Wellman argued that the 10-year consecutive mandatory minimum sentence was cruel and unusual punishment, given his age and likelihood that the sentence imposed was actually a life sentence. The court rejected that argument, concluding that the sentence was not a "disproportionate sentence of constitutional magnitude," as it was based largely on Wellman's prior record.

Convictions Affirmed for Drug Conspiracy (Barely), Scheme to Kill Witness

US v. Hackley: Hackley sold crack cocaine to Jackson, whom had known Hackley since 1992 and acted as a confidential informant almost as long. According to Jackson, Hackley told him he "just got back from Maryland" with some crack. Jackson then contacted local law enforcement, who arranged several controlled buys of crack from Hackley. As a result, he was charged with conspiracy to distribute crack and six counts of distribution. While in jail, Hackley told a fellow inmate, Johnson (among others), that he did not want Jackson showing up in court and that he needed to be killed. He also told Johnson about a pistol he owned. Johnson went to the authorities, after which an ATF agent posed as another inmate. The agent, essentially, became the hit man Hackley sought to hire to kill Jackson. In fact, Jackson's death was staged, complete with a fake news story, which made Hackley "ecstatic." As a result, Hackley was also charged with murder for hire, solicitation of murder, obstruction of justice, and being a felon in possession of a firearm.

After a plea agreement broke down, Hackley moved that he be appointed new counsel. The district court declined and the case went to trial. The district court denied Hackley's request for an entrapment instruction on the murder for hire count. He was convicted on all counts and sentenced to 306 months in prison.

On appeal, Hackley challenged both his convictions and sentence, all of which the Fourth Circuit upheld. First, Hackley argued that there was insufficient evidence to sustain the convictions for conspiracy to distribute crack, solicitation to murder, and being a felon in possession of a firearm. The evidence on the conspiracy count, the court held, "represents the very boundary of what passes for substantial evidence of a conspiracy." However, though the evidence was sparse, it was sufficient to "support an inference that Hackley had a continuous relationship with Maryland suppliers." The evidence was more abundant on the solicitation to murder count, although the communications at issue went to Hackley's "many girlfriends" rather than the ultimate "assassin." There was also sufficient evidence that Hackley possessed the firearm stored in the home of one of those many girlfriends. Second, Hackley argued that the district court should have given an entrapment instruction because the jury could have concluded that Johnson, rather than Hackley, began the conversation about killing Jackson. The court rejected that argument, noting that because Johnson was not a agent of the police at that time, it didn't matter who started the conversation. Third, Hackley argued that the felon in possession charge should have been severed from the rest of the counts. The court disagreed, noting that the gun at issue was offered as a potential tool for dealing with Jackson. Fourth, Hackley argued that the district court erred by denying his request for new counsel a week before the trial was to begin. The court rejected that argument, holding that Hackley never expressed concern about counsel's inadequacy, merely her "style," which was not a sufficient basis for granting the request. Finally, the court affirmed Hackley's sentence, holding that the district court was aware of its ability to impose a below-the-Guidelines sentence and exercised its discretion not to do so.

Detention of Defendant Away from Home Being Searched OK'd

US v. Montieth: After receiving a tip from an ATF agent that Montieth was selling marijuana, local law enforcement (based on the tip and evidence recovered from Montieth's trash) obtained a warrant to search his home. Rather than go straight to the home, they waited until Montieth drove away from the home, stopped and detained him (officers smelled marijuana), and secured his cooperation in executing the search warrant without the need for a "dynamic entry" (I think that's cop speak for "breaking down the front door with the SWAT team"). Once Montieth's wife and children left the home, officers searched the home and, with Montieth's assistance, recovered marijuana and firearms. As a result, Montieth was charged with several offenses, including carrying a firearm in connection with a drug trafficking offense. Montieth moved to suppress both the physical evidence recovered from his home, as well as his statements made during the search. The district court denied the motion and Montieth entered a conditional plea to the gun charge.

On appeal, Montieth reiterated his arguments about the suppression of the physical evidence and his statements. The Fourth Circuit disagreed with those arguments and affirmed. First, the court concluded that the warrant itself was based on sufficient evidence to show probable cause, particularly the evidence recovered from the trash. The warrant also particularly described the items to be seized. Second, the court concluded that the fact a warrant had been obtained justified a Terry stop of Montieth's car, particularly because the warrant allowed the search of Montieth himself, not just his home. It is not necessary for that detention to take place in the location being searched. Third, the court concluded that Montieth's statement during the traffic stop that there was marijuana in the home was not made pursuant to any questioning by the officers and thus there had been no Miranda violation there. Finally, with regards to the search itself, the court held that the statements Montieth made during the search were made following an oral waiver of his Miranda rights and the warrant itself had been validly issued.

Convictions, Sentence Affirmed In "Pump & Dump" Stock Case

US v. Offill: Offill, an attorney and securities specialist, was contacted by another attorney , Stocker, in 2004 about how to issue stock without the need to register it. The two eventually engaged in a "pump and dump" scheme in which they inflated the value of stock they owned before selling it to members of the public at a great profit. Offill was charged with one count of conspiring to artificially manipulate stock prices and nine counts of wire fraud. After a jury trial, he was convicted on all counts. At sentencing, the district court imposed a sentence of 96 months in prison, well below the advisory Guideline range of 168 to 210 months.

Offill appealed, raising issues related to both his convictions and his sentence, all of which the Fourth Circuit rejected. As to the trial issues, the court first rejected Offill's argument that two of the Government's expert witnesses improperly addressed the ultimate issue in the case, making conclusions reserved for the jury. Although the testimony involved discussion of legal issues that were ultimately covered by the judge's instructions to the jury, the court found no abuse of discretion in allowing the testimony. The court also concluded that the district court did not abuse its discretion by allowing lay expert testimony from two coconsiprators (including Stocker) about their own activity. The court also found no error in the admission of evidence of Offill's subsequent acts or the failure of the district court to give a multiple conspiracies instruction. As to Offill's sentence, the court first concluded that there was sufficient evidence to support the district court's decision that Offill should not have received a Guideline reduction for a minor role in the offense. The court also rejected the argument that Offill's sentence was unreasonable because it was longer than his codefendants (who pleaded guilty and cooperated with the Government). Finally, the court held that the district court properly calculated the loss attributed to Offill.

As-Applied Challenge to 922(g)(9) Shot Down

US v. Staten: Staten was charged with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. He filed a motion to dismiss, arguing that 922(g)(9) violated his Second Amendment rights. The district court denied the motion and Staten entered a conditional guilty plea preserving the Second Amendment issue.

Between conviction and appeal, the Fourth Circuit issued its published decision in Chester (the second opinion), which laid out a two-step process for evaluating Second Amendment claims (at least in 922(g)(9) cases), but ultimately concluded that the Government hadn't met its burden of proving there was a "reasonable fit" between 922(g)(9) and a substantial governmental objective and remanded for further proceedings. In Staten's case, the Government did not provide the kind of evidence it has on remand in Chester, but did cite numerous social science studies linking domestic violence and firearms.

Ultimately, the Fourth Circuit affirmed the denial of Staten's motion to dismiss because the Government's citations, while not the best way of proving a reasonable fit, did do the job. They were all (but one) available publicly and could have been countered by Staten. What objections he did raise were easily dismissed. In making its ruling, the court repeatedly noted that Staten's challenge on appeal was an as-applied, rather than facial, challenge, so it's unclear what sort of impact it might have on other cases (like Chester itself on remand).

Monday, December 05, 2011

Criminal forfeiture of assets affirmed

US v. Martin, et al.: The Appellants in this case challenged the district court’s criminal forfeiture orders concerning the seizure of property purportedly connected to their drug crimes. The government initially moved civilly to forfeit the property, and following the filing of the fourth superseding indictment, filed criminal forfeiture warrants for the same property.

Appellant Martin argued that the government violated the pre-trial civil forfeiture statute, which renders the later criminal forfeiture invalid. Collectively, the appellants argued that the district court lacked jurisdiction to order the criminal forfeiture (which occurred after their sentences and entry of judgments against them).

With respect to Appellant Martin’s issue, the Fourth Circuit stated that even assuming the government did seize the property at issue illegally (which it declined to decide), the illegal seizure of property does not immunize that property from forfeiture as long as the government can sustain the claim with independent evidence, citing to a 2007 First Circuit case, United States v. Pierre, for support. Here, Martin did not challenge the sufficiency of the evidence produced by the government, independent of the property, to justify the forfeiture; so, the Fourth Circuit rejected this challenge.

The jurisdiction claim failed because of a Supreme Court decision, Dolan v. United States, which guided the Fourth Circuit here to held that missing the deadline under Rule of Criminal Procedure 32.2 for finalizing forfeiture orders at the time of sentencing, does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so long as the sentencing court has clarified prior to sentencing that it intends to order the forfeiture. In Dolan, the Supreme Court provided an analytical structure for examining a statute that sets forth a deadline without specifying a consequence for missing the deadline (e.g., a defendant is ordered to pay restitution to the victim of the crime, and the statute says that the court shall set a date for the determination of the victim’s losses, not to exceed 90 days after sentencing).

The Fourth Circuit considered the kind of deadline in this forfeiture case as a "time-related directive," or the most forgiving type of deadline. This type of deadline is "legally enforceable but does not deprive a judge or other public official of the power to take action to which the deadline applies if the deadline is missed," citing Dolan. The deadline was held not to bar the district court’s exercise of jurisdiction, stating that the purpose of the deadline was not to create a coercive sanction, but to ensure the defendant’s notice of any and all aspects of sentencing, including forfeiture. There was no dispute here that appellants had notice prior to sentencing that a forfeiture was pending at their sentencing.

The dissent argued that the majority’s holding will allow courts to subject defendants to the punishment of forfeiture without discussing it at sentencing or ordering it in judgment, if the defendant has notice that such punishment may be ordered. Also, Judge Gregory argued that the majority took Dolan out of context and expanded the breadth of its holding into a qualitatively separate area of the law. Dolan, the dissent stated, was limited to restitution cases in which the amount of restitution was not yet determined; moreover, the restitution and forfeiture statutory schemes have differing purposes and structures.

Friday, December 02, 2011

Common sense in ACCA cases?

US v. John Joel Foster: In an unfortunate twist for the appellant, the Fourth Circuit vacated Mr. Foster’s twenty-four month sentence for being a felon in possession of a firearm, and remanded the case for re-sentencing under the Armed Career Criminal Act, for the mandatory minimum fifteen-year sentence.

At issue in this appeal was whether Mr. Foster’s prior state convictions for breaking and entering under Virginia’s non-generic burglary statute qualified as violent felonies under ACCA. The Fourth Circuit found that the language of the indictments for Foster’s three prior convictions for breaking and entering mandated that the prior convictions were based on entries into buildings or structures, to wit, the "Sunrise-Sunset Market," the "blacksmith shop," and the "Corner Market," and as such, the convictions qualified as predicate violent felonies of the ACCA.

The concurrence and dissent gain purchase from Judge Agee's statement that "courts are, of course, permitted to draw reasonable inferences from the underlying state documents." The dissent finds that the government "must show more than the possibility, based solely on common sense and logic, that Defendant's prior convictions may qualify under ACCA." The concurrence chides the dissent that "our common sense neither is an outside evidentiary source that is prohibited by Shepard nor is our use of it going to create a trial within a trial in ACCA cases."