Thursday, December 20, 2012

$100 Robbery Sufficient to Sustain Hobbs Act Conviction

US v. Tillery: A man with a gun robbed a dry cleaner's in Petersburg, Virginia, taking a small amount of cash and the clerk's laptop.  After he left, the clerk ran to the barbershop next door for help.  Later that month, someone came to the barber shop and sold the owner a laptop, which turned out to be the one taken from the clerk.  The owner identified Tillery from a photo array as the one who sold him the laptop.  The clerk then identified Tillery as the man who committed the robbery.  A few months later, an officer recovered two shotguns from an abandoned motel, next to a motel where Tillery lived at the time of the robbery.   Tillery was in jail at the time and described the robbery and where he kept his guns to his cellmate in "shocking detail."  He was charged and convicted of a Hobbs Act robbery and brandishing a firearm in connection with a crime of violence, then sentenced to a combined term of 360 months in prison.

On appeal, Tillery challenged both his convictions and sentence, all of which the Fourth Circuit affirmed.  First, Tillery argued that the robbery did not meet the Hobbs Act threshold of having a "minimal effect" on interstate commerce, because it only resulted in the theft of $100.  The court disagreed, noting that a robbery has a "minimal effect" if it depletes the assets of an inherently economic enterprise and that in making that determination it is not the individual act that matter, but rather the "relevant class of actions" and the impact they have on interstate commerce.  The robbery in this case met that burden.  Second, Tillery argued that the evidence was insufficient to convict him on either count.  The court disagreed, concluding that there was ample evidence aside from the clerk's identification of him as the robber (including the "damning testimony" of his cellmate) to support a conviction.  Finally, Tillery argued that he was improperly classified as a career offender because a prior conviction for eluding police was not a "crime of violence."  The court disagreed, noting that it had previously held that any "intentional vehicular flight" is a violent felony.

Jurisidction Proper In Virginia for Theft Comitted in US Embassy in Iraq

US v. Ayesh: Ayesh, who lived in Jordan, was hired to oversee shipping and customs at the US Embassy in Baghdad.  In that role, he created a scheme that allowed him to funnel funds from vendors to his wife's bank account in Jordan.  He kept the various instruments needed to run the scheme in his apartment in the Embassy.  Ayesh was arrested at Dulles when he came for a training seminar (which was just a ruse to get him in the country).  He was charged with two counts of theft of public money and one count of committing acts affecting a personal financial interest.  He was convicted on all counts and sentenced to 42 months in prison.

On appeal, Ayesh raised three challenges to his convictions, all of which the Fourth Circuit rejected.  First, he argued that the district court in Virginia lacked jurisdiction over him given that his conduct took place in Iraq and Jordan.  The court disagreed, holding that, although the statutes involved do not specifically apply to conduct that occurs overseas, they were enacted out of the right of the Government to defend itself from fraud and do not require such a specific jurisdictional nexus.  The court also concluded that the prosecution comported with international law and due process, as Ayesh had been told as part of his employment that he was subject to the laws of the United States.  Second, Ayesh argued that his post-arrest statements should have been suppressed because they came during a lengthy interview conducted after a 19-hour flight and had been coerced.  The court disagreed, concluding that Ayesh was given Miranda warnings, was fluent in English, and "asked good questions and spoke confidently on his own behalf."  Finally, Ayesh argued that there was insufficient evidence to support the two theft of public money counts.  The court concluded there was sufficient evidence from which the jury could find intent to deprive the United States of the use or benefit of the money involved.

Tardy Expert Testimony Not Error, Nor Harmless, In DUI Trial

US v. Smith: Smith was the driver of a car that rolled and crashed into a wall on the Baltimore-Washington Parkway.  A passenger was killed and Smith showed signs of intoxication before and after the crash.  Nearly three hours after the crash, Smith was given a blood test that showed a blood alcohol content of 0.09.  She was charged with misdemeanor manslaughter, with the underlying offense being operation of a motor vehicle with a blood alcohol content above 0.08.  At trial, a Government expert witness testified not just to the alcohol content of Smith's blood as tested, but about how human bodies both absorb and eliminate alcohol from their system, pegging the rate of elimination for women at 0.017 per hour.  Smith was convicted after a jury trial.

On appeal, Smith challenged her conviction on several grounds, all of which the Fourth Circuit rejected.  First, she argued that the Government's expert should not have been allowed to testify about generic alcohol absorption/elimination rates because it was beyond the scope of the pretrial notice of the subject of the expert's testimony.  The court disagreed, concluding that "although full disclosure by the government would have been more in keeping with the spirit of Rule 16," the testimony at issue was general background information and not tied directly to an expert opinion about Smith.  At any rate, if there was any error, it was harmless.  Second, Smith argued that the evidence was not sufficient to prove she had a blood alcohol level of at least 0.08 at the time of the crash (as opposed to several hours afterward).  The court disagreed, concluding that there was enough evidence to conclude that she violated the statute, including that the expert's testimony about absorption/elimination rates made it highly unlikely that her blood alcohol level was below 0.09 before the accident.  Finally, the court rejected her argument that the district court erred by refusing to instruct the jury that the blood test result, standing alone, was insufficient evidence to convict her.

No Second Amendment Protection for Illegal Alien

US v. Carpio-Leon: Carpio-Leon had lived in the country illegally for 13 years, with his wife and three children (all of whom were born in the US). During a consensual search of Carpio-Leon's house (the opinion doesn't say based on what) officers recovered firearms and ammunition. Carpio-Leon was charged with being an illegal alien in possession of a firearm and illegal entry into the US. After the district court denied his motion to dismiss under Heller, Carpio-Leon pleaded guilty, sentenced to time served, and ordered deported. On appeal, Carpio-Leon renewed his Second Amendment challenged to the illegal alien in possession of a firearm statute (922(g)(5)).

The Fourth Circuit affirmed his conviction and sentence. Rather than resolve the issue of whether illegal immigrants were part of "the people" as understood at the time the Second Amendment was ratified, the court concluded that they are not part of the "law abiding" community to which Second Amendment protections extend. The court further noted that this was so because of a designation made by Congress in an area in which it was owed great deference, i.e., immigration. Thus, Carpio-Leon had no protections under the Second Amendment. The court also rejected Carpio-Leon's argument that he was denied equal protection under the Fifth Amendment, because 922(g)(5) survives a rational basis analysis.

Friday, December 14, 2012

Emails Sent from Work Not Covered By Spousal Privilege

US v. Hamilton: Hamilton was a member of the Virginia House of Delegates.  He communicated with Old Dominion University about a new center for teaching it was looking to build, with state funds.  In conversations between Hamilton and ODU (and Hamilton's wife), he made repeated references to pushing funding through the legislature and possibly coming to work at the center.  Many of these conversations took place over Email, Hamilton using his work Email account.  After Hamilton introduced legislation for $1 million worth of funding for the ODU center, he was offered a job there.  As a result of all this, Hamilton was charged and convicted of bribery concerning federal program funds and extortion under color of official right.  He was sentenced to 114 months.

On appeal, Hamilton challenged both his convictions and sentence, all of which the Fourth Circuit affirmed.  Hamilton first argued that the introduction of Emails between he and his wife violated spousal privilege.  The court agreed that there is a general expectation of privacy in such Emails, but concluded that because Hamilton sent the Emails from a work computer and "did not take any steps to protect" their content they were not privileged.  Second, Hamilton challenged the sufficiency of the evidence supporting his convictions, which the court found was sufficient.  Third, he argued that the district court erred by not instructing the jury on the difference between a bribe and a gratuity, which the court rejected because the matter of intent had been sufficiently covered in the instructions.  Finally, the court affirmed the district court's calculation of the advisory Guideline range.

Identity Theft Statute Doesn't Cover Corporations

US v. HIlton: This appeal involves three Hiltons - Jimmy, Tamatha, and Jacqueline - who were convicted of a scheme to defraud a company where Tamatha worked.  Over the course of two years, the Hiltons cashed numerous checks written by customers to the business, taking about $655,000 in the process.  As part of the scheme, Jacqueline opened a bank account in her name, but falsely purporting to be the owner of the business.  Jimmy endorsed the stolen checks and filled out the deposit slips.  The various Hiltons were charged with 43 counts of fraud, money laundering, and identity theft.  They were convicted on all but one count.

On appeal, Jimmy and Jacqueline argued that their identity theft convictions must be reversed because the statute does not contemplate the theft of the identity of a corporation.  The statute refers only to the identification of "persons" and "specific individuals," which it does not define.  While the Dictionary Act defines "persons" as including corporations, it does not define "individual."  The court concluded that the context of the identity theft statute does not indicate whether "individual" would include corporations.  Noting the ambiguity and applying the rule of lenity, the court concluded that the statute cannot be read to include corporations and reversed Jimmy and Jacqueline's convictions on those counts.  It also vacated their sentences.

On all other grounds, the Fourth Circuit affirmed the convictions, as well as Tamatha's sentence.  It rejected Tamatha's argument that the district court erred by rejecting her motion to suppress her post-arrest statements because she requested counsel, as well as Jimmy's argument that the district court erred by denying his motion to proceed pro se on the morning of jury selection.  The court also rejected Jimmy and Jacqueline's argument that there was insufficient evidence to support their mail theft convictions, as well as the arguments of all the Hiltons as to the sufficiency of the evidence supporting their mail fraud affecting a financial institution convictions.

Forceful Result Not the Same as Use of Force

US v. Miguel-Torres: Miguel-Torres was convicted of illegal reentry.  In the PSR, the probation officer classified his prior California conviction for "willfully threatening to commit a crime that would result in death or great bodily injury" as a "crime of violence," triggering a 16-level Guideline enhancement.  Over Miguel-Torres's objection, the district court adopted the PSR's conclusion and sentenced Miguel-Torres to the bottom of the resulting Guideline range.

On appeal, Miguel-Torres argued that his prior conviction was not categorically a crime of violence and his sentence was unreasonable.  The Fourth Circuit agreed.  Applying a categorical approach (because the California statute at issue did not contain "divisible categories"), noting that other courts had split on the application of this statute and rejecting the approach of the Ninth Circuit.  The court concluded that although the statute contains a threatened violent result, it does not have as an element the use or threatened use of physical force.  As an example of a crime that could lead to a lethal result without the use of force, the court points to murder by poisoning.  Miguel-Torres's sentence was vacated and the case remanded for resentencing.

Congrats to the defender office in South Carolina for the win!

Dogfighting Sentence Not Unreasonable at 10 Times Guideline Range

US v. Hargrove: Hargrove was (in the Government's words) a "'legend' in the dog fighting community," with three prior state convictions. After he sold a dog to an undercover agent, his property was searched, uncovering numerous implements of dog fighting and training, as well as 34 dogs that later had to be euthanized. He was charged with one count of selling an animal for purposes of having it participate in an animal fighting venture and pleaded guilty. His Guideline range was calculated in the PSR to be 10-16 months, but Hargrove objected and argued it should be 0-6 months. The Government bypassed the Guideline dispute and argued for an upward variance/departure based on "extraordinary cruelty to animals, extreme conduct," and the inadequacy of his criminal history calculation. At sentencing, the district court preformed its own Guideline calculation, producing a range of 41 to 51 months, but imposed a statutory maximum sentence of 60 months. It did so, explaining that even if Hargrove's 0-6 month range had been the correct calculation it would have imposed the same sentence.

Hargrove appealed, arguing that his sentence was unreasonable. The Fourth Circuit disagreed. The court accepted the Government's concession that the district court's guideline calculations were erroneous, but found the error was harmless. The court explained that in appropriate cases is used the "assumed error harmlessness inquiry" as a way to involve the "empty formality" of remanding when the record shows such a remand would result in the imposition of the same sentence. Nothing that the district court explicitly said it would impose the same sentence regardless of the Guideline calculations, the court looked to whether the 60-month sentence was substantively reasonable, which it was.

Monday, December 10, 2012

Non-Specific DSM Disorder Can Justify Commitment

US v. Caporale: Caporale finished serving a sentence in 2008 for a sex offense, at which time the Government filed a motion to have him committed as a "sexually dangerous person" under the Adam Walsh Act.  At a hearing in March (the case was put on hold while cases addressing the constitutionality of the commitment provision were litigated), the district court denied the Government's motion, on two grounds.  First, it found that Caporale did not suffer from a serious mental illness, abnormality, or disorder because he was not diagnosed with a particular condition listed in the Diagnostic and Statistical Manual or Mental Disorders ("DSM").  Second, it found that, if Caporale was released, he would not have serious difficulty refraining from sexually violent conduct or child molestation.

The Government appealed to the Fourth Circuit (Caporale's release was stayed pending appeal), which affirmed the district court's conclusion, but only on the second ground.  On the first ground, the court concluded that the definition of "mental disorder or defect" is not limited to specified diagnoses set forth in the DSM.  In Caporale's case, the diagnosis of hebephilia meets that definition (as well as fitting into the "paraphilia/NOS" catch all in the DSM).  On the second ground, the court emphasized its limited ability to reject the district court's factual findings under an abuse of discretion standard that the district court did not clearly err by crediting the defense expert's testimony that Caporale's recent behavior (as opposed to his more serious criminal conduct in the past) showed he was not a risk to reoffend.

Exigent Circumstances Justify Seizure of Laptop

US v. Brown: Brown worked for an ambulance service, from which (according to the IP address) child pornography was being downloaded.  Using work records, investigators concluded that Brown and his partner were always on duty when the files were downloaded.  Officers arrived at the service office to execute a search warrant, but found no computers.  Brown and his partner had been out on a call and, when they returned, investigators asked if they had any laptops.  Brown retrieved one from the ambulance, which one of the officers then took from his hands.  After Brown gave a statement in which he admitted downloading child pornography, officers obtained a warrant to search his laptop.  That search uncovered videos and images of child pornography.  Brown went to trial and was convicted of one count of receipt of child pornography and one count of possession of child pornography.  The district court dismissed the possession count as a lesser included offense of the receipt count and sentenced Brown to 144 months in prison.

Brown raised two challenges on appeal, both of which the Fourth Circuit rejected.  First, Brown argued that the district court erred by denying his motion to suppress without having an evidentiary hearing to assess whether the initial seizure of the laptop was reasonable.  Brown argued that because the warrant itself only authorized a search of the ambulance service office, it did not cover the seizure of the laptop that occurred outside the building.  The court rejected that argument, holding that there were exigent circumstances that supported the warrantless seizure of the laptop.  Second, Brown argued that the district court should have dismissed the more serious receipt count, rather than the possession count, after trial.  The court concluded that the district court "properly adhered to a long line of authorities directing vacation of the conviction that carries the more lenient penalty."

Defendant's Presence Not Required at Hearing on Late Government Discovery

US v. Gonzales-Flores: Gonzales-Flores was charged with various drug, immigration, and firearm offenses. Two days before trial, the Government filed a notice that it would produce testimony from three expert witnesses at trial. Gonzales-Flores moved to exclude that testimony due to the late disclosure. The day before trial the district court held a telephonic hearing, in which Gonzales-Flores's counsel and the AUSA took part. Gonzales-Flores was not present (even in the ether at the other end of a phone line) and his counsel did not object to his absence. The district court denied Gonzales-Flores's motion and he was convicted on several counts and sentenced to 180 months in prison.

 On appeal, Gonzales-Flores argued that under Rule 43 of the Rules of Criminal Procedure he had a right to be present at the hearing on excluding the Government's expert witnesses and his absence required reversal of his conviction. The Fourth Circuit disagreed and affirmed his conviction. Assuming, without deciding, that the telephonic hearing was a "trial stage" as defined in Rule 43(a), the court nonetheless concluded that it fell within the exception in Rule 43(b)(3), which states that the defendant's presence is not required for a proceeding that "involves only a conference or hearing on a question of law." The fact that the proper standard of review for the underlying issue of the district court's denial of the motion to exclude (had it been raised) would be abuse of discretion does not mean the hearing involved something other than a "question of law." Therefore, there was no error in Gonzales-Flores's absence, much less a plain one.

Wednesday, December 05, 2012

Convictions and sentence affirmed for fraud scheme

US v. Day:   In this appeal, the Fourth Circuit heard a number of challenges to Day’s convictions and sentence for his scheme to defraud the Department of Defense, over the course of several years, involving his supply of defective and nonconforming goods for use in U.S. military aircraft, vehicles and weapons systems.

Day and three co-conspirators formed companies that bid on government contracts through a custom designed software program, and when his low bids succeeded in earning government contracts, Day would provide similar sounding, but nonconforming items, which cost him just 3.77% of the amount he received in payment from the government. Prior to discovery, Day secured nearly 1,000 government contracts, worth approximately $8.6 million. He operated this scheme from Mexico, where he directed his co-conspirators through email, phone calls, and internet chats.

Additionally, Day would deposit the proceeds of his operation in a Belizean bank account, and when that account was shut down, Day instructed his co-conspirators to convert the proceeds into gold and physically drive the gold to him from the U.S. to Mexico. Day received over $2 million in gold this way.

In August 2008, a federal grand jury indicted Day for conspiracy to commit wire fraud, wire fraud, aggravated identity theft, money laundering conspiracy, smuggling conspiracy, and obstructing justice. Day, in custody of Mexican authorities who captured him at the airport in Cancun in July 2008, was extradited by the Mexican government on all charges other than the identity theft and obstruction counts in December 2010. At the end of his eight-day trial, a unanimous jury found Day guilty on all counts.

On appeal, the Fourth Circuit considered the jury instruction on aiding and abetting liability that the government had requested at trial, and to which the defense did not object. First, Day argued that this jury instruction had the effect of constructively amending the indictment. The Fourth Circuit found that this argument failed because it has repeatedly held that a "defendant may be convicted of aiding and abetting under an indictment which charges only the principal offense." Next, Day argued that this jury instruction violated the extradition rule of specialty, which Circuit Splits discusses here.

Day also challenged his conviction for conspiracy to commit money laundering on the basis that the government did not prove that Day transported gold with the requisite design to conceal; that the gold was not a "monetary instrument or funds;" and that the trial court did not properly instruct the jury on the definition of the term, "proceeds." The Fourth Circuit held that the record was "replete" with evidence showing that Day knew that transporting the gold to Mexico would have the effect of concealing the location, nature, and source of the unlawful proceeds, but also that he transported the gold for precisely that purpose. Further, the Fourth Circuit employed the ordinary meaning of the term "funds" to find that the gold could qualify as "funds" under the money laundering statute, and that Day treated the gold as a cash equivalent.

Day argued that venue for his criminal trial in the Eastern District of Virginia was improper. The Fourth Circuit disagreed, and found that two classes of overt acts took place within the district, specifically, phone calls one conspirator made while within that district, and emails that were sent to government personnel within the district. Day also argued that the district court made two evidentiary errors at trial, by refusing to admit a government report describing mishandled evidence, and by admitting some prior bad acts of his under 404(b). The Fourth Circuit found the government report was properly excluded under 403 as improperly prejudicial, and that the prior bad acts (purchasing expensive watches, using false names, and his use of foreign bank accounts) were intrinsic to Day’s criminal conduct.

Day’s final arguments concerned the length of his sentence (105 years) and the resitution award. Day argued unsuccessfully that his guidelines-range sentence did not account for the two years he spent in custody in Mexico, but the Fourth Circuit disagreed.  Sentencing Law and Policy discusses the restitution award here.

Tuesday, December 04, 2012

Separate questioning of vehicle passengers does not impermissibly prolong traffic stop

US v. Vaughan:  The driver of a rental car, stopped in early January 2011 for traveling 79 mph in a 70-mph zone, challenged the length of time the Greenville, VA state police took in investigating his traffic violation. Appellant Vaughan failed to have evidence discovered during the traffic stop suppressed at the district court; he received a 120-month sentence for conspiracy to distribute cocaine and possession with intent to deliver cocaine. On appeal, the Fourth Circuit affirmed his sentence.

Terrence Vaughan and passenger, McKinley Scott, were heading north through Virginia around 10:43a.m., when a ten-year-veteran Virginia state trooper pulled them over for speeding. When the trooper looked into the vehicle, he observed four cell phones in the center console, two of which were "TracFones," pre-paid phones that can be obtained with no personal information, as well as a visibly nervous passenger, Scott, leaned back in the passenger seat. At the trooper’s request, Vaughan got out of his vehicle, and sat in the police cruiser, answering questions about the purpose and details of his travels. The trooper went back to the rental car and asked similar identification and travel details from Scott, who provided somewhat different responses than Vaughan’s.

Based on the cell phones, Scott’s nervousness, and the differing stories of Vaughan and Scott, the trooper requested a canine unit to come to the scene. While waiting a "couple of minutes" for the arrival of the canine unit, the trooper began filling out a contact report form, which must be filled out "on every traffic stop." During the same time, the trooper conducted background check on Scott, having confirmed the validity of Vaughan’s driver’s license. Upon arrival, the canine unit gave a positive alert for narcotics in the vehicle. The subsequent search of the vehicle revealed a handgun and 830.6 grams of cocaine. According to the trooper’s uncontested testimony, the whole stop last thirteen minutes prior to the arrival of the canine unit.

The Fourth Circuit concluded that reasonable suspicion existed at the moment the trooper determined that the suspect individuals’ explanations of their itinerary differed, approximately 6-9 minutes after the stop began. It held that when four cell phones are present in a vehicle with only two passengers, the presence of the phones constitutes a valid factor in reasonable suspicion analysis. The suspects’ conflicting answers "especially" contributed to the reasonable suspicion.

Thursday, November 15, 2012

First Amendment challenges to insignia convictions fail

US v. Hamilton:  Just in time for Veteran’s Day, the Fourth Circuit issues an opinion that protects the dignity of military uniforms and insignia, by rejecting First Amendment challenges to convictions under 18 U.S.C. § 702, for wearing a military uniform without authorization, and 18 U.S.C. § 704(a) and (b), the wearing of medals and other insignia without authorization.

Appellant Hamilton had enlisted in the United States Marine Corp in July 1961; while he was in training at Camp Lejeune, North Carolina, Hamilton received a permanently disabling injury to his hand. He received an honorable discharge from the military in 1962. His attempts to re-enlist in 1966 were denied.

In April 2010, Hamilton appeared at a Vietnam Veterans’ Recognition Ceremony, wearing the full military uniform of a colonel in the Marines, as well as many medals including Navy Crosses, Silver Stars, Purple Hearts, and a Bronze Star. The insignia convictions arose from Hamilton’s choice of attire to this event. On appeal, Hamilton argued that his convictions for wearing a military uniform and medals without authorization violated his First Amendment rights.

First, Hamilton argued that the statutes, as applied to him, were facially invalid, that the government’s interests underlying these statutes were related to the suppression of expression, and that the most exacting scrutiny should apply to any constitutional analysis of the statutes. Moreover, Hamilton argued, the statutes cannot survive exacting scrutiny because they were not narrowly tailored to serve the government’s interest in protecting the integrity of the military and preventing the deceptive wearing of uniforms and medals.

The Fourth Circuit determined that the level of scrutiny required was the lower standard of intermediate scrutiny because the "insignia statutes do not regulate pure speech but instead proscribe certain forms of expressive conduct," and "expressive conduct is not entitled to the same degree of protection under the First Amendment as is pure speech." This is the same level of scrutiny that the Supreme Court applied when considering the case of the burning of draft cards in United States v. O’Brien. Moreover, the Fourth Circuit determined that even under a more harsh standard, the statutes would pass constitutional muster, as the governmental interest at stake was compelling, particularly as construed with a limiting "intent to deceive" element.

The "most exacting scrutiny" requires the government to establish that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." The Fourth Circuit decided that the government interest is "compelling" because the deceptive wearing of military uniforms and medals could weaken the symbolic value of these items, and frustrates the government’s efforts to ensure that such honors are awarded only to a limited number of deserving recipients.

The statutes are narrowly drawn, according to the Fourth Circuit, as the statutes seek to "ensure that the individuals displaying these honors to the general public are those who actually have receive such honors." Additionally, the statutes further the government’s interests in maintaining the orderly administration of military command. Further, the statutes help limit the demand in a ‘secondary market’ for symbols of high military achievement.

In addition to his facial challenge, Hamilton also argued in his brief that the statutes were unconstitutional as applied to him. He asserted that the uniform and medals that he wore to the Recognition Ceremony gave his words greater impact that had be worn street clothing. The Fourth Circuit found no merit in Hamilton’s as-applied argument.

The Constitutional Law Profs Blog found aspects of this decision troubling.

Wednesday, October 24, 2012

Judges Don't Like the F-Bomb

US v. Peoples: Peoples was a prisoner with multiple pending 1983 actions that lingered until after he was released from custody.  When it was time for the cases to be tried, Peoples had problems appearing in court on time.  During the first trial, the judge told Peoples if he was late again, his case would be dismissed, but that trial concluded without incident.  As did the second, although a legitimate car problem caused Peoples to be late one day, leading to another warning form the judge.

On the second day of his third trial, Peoples was late again, leading the judge to dismiss the case.  Peoples left the courtroom, saying "I was wanting to dismiss my shit anyway."  Peoples then came back into the courtroom while the judge went into the jury room to talk to the jurors.  Peoples went up to a clerk and said, "[t]ell Judge Currie get the fuck off all my cases.  I started to tell her something there.  I started to tell her ass something today."  A court reporter in the courtroom turned on a recorder and taped some of Peoples's comments (which included a reference for the judge to either "straighten the fuck up" or "straight the fuck up").  Peoples left and the judge charged him with criminal contempt (along with referring the matter to another judge).

When it came time for Peoples's contempt trial he was more than an hour late.  As a result, after the originally scheduled contempt trial ended with People's being convicted and sentenced to four months in prison, a second trial was held on contempt based on Peoples's tardiness.  He was convicted a second time and sentenced to a consecutive term of 30 days in jail.  Peoples challenged both of his convictions on appeal.

With regards to the initial contempt charge, the Fourth Circuit affirmed, concluding that the evidence was sufficient to sustain the conviction.  It rejected Peoples's argument that his conduct was not "misbehavior" because the language he used was not directed at the judge personally and was simply venting his frustration in language that some might find offensive.  The  court concluded that Peoples's outburst was directed at the judge.  The court also rejected Peoples's argument that his outburst did not obstruct the administration of justice because it occurred after the case was over and didn't impact the performance of the court.  The court noted that prior precedent had held that the act of investigating such an outburst causes court personnel to neglect other duties.

As to the second conviction, however, the Fourth Circuit reversed.  The court agreed with Peoples that summary criminal contempt proceedings are not appropriate in cases involving tardiness or absence from court.  In such cases, the procedural requirements of Rule 42(a) of the Rules of Criminal Procedure must be followed.  The court rejected the Government's argument that, although the judge said the second trial was a summary proceeding under Rule 42(b), it provided the requisite safeguards laid out in Rule 42(a), anyway.

Congrats to the FPD office in South Carolina on the (partial) win!

Thursday, August 23, 2012

Addition of "Death Results" Element in 2113(e) Instruction Causes Constructive Amendment, Requires Reversal

US v. Whitfield: Whitfield and a confederate started a bank robbery, which was foiled when a metal detector was triggered (presumably by the guns they were carrying) and the doors locked, preventing their entry.  They fled in a car and, eventually, split up to further flee on foot.  During his flight, Whitfield broke into a home in which an elderly woman was present.  While Whitfield was in the home, the woman had a heart attack and died.  Whitfield fled the home and was apprehended.  He was charged with multiple offenses, one under 18 USC 2113(e), specifically that he had forced the woman to accompany him and killed her.  It did not include a third means of violating that statute, the "death results" offense.  Whitfield was convicted on all counts and sentenced to life in prison.

On appeal, Whitfield raised two general challenges to his convictions.  First, he argued that the district court erred by not suppressing a statement he made about the break ins during his flight (including the one that resulted in the woman's death) because it had been coerced.  Whitfield actually gave two sets of statements - one about the break ins and another about the botched bank robbery.  After initially denying his motion to suppress all the statements, the district court held a further suppression hearing during trial and concluded that the bank robbery statement had been coerced and suppressing it.  The Fourth Circuit rejected Whitfield's argument that the statement about the break ins should have been suppressed as well, concluding that the totality of circumstances supported the district court's conclusion that the statement was not coerced, even though the questioning officers deceived Whitfield as to the seriousness of the charges he might be facing.

Whitfield's other arguments on appeal dealt with the district court's instructions to the jury on the 2113(e) charge.  The court rejected his arguments as to whether the district court should have instructed on a lesser included offense and that its instructions allowed for conviction on a theory of "mere confinement" as opposed to "forced accompaniment."  However, the court did agree with Whitfield's argument that the district court's instruction on the 2113(e) charge allowed him to be convicted on a charge other than what he had been indicted for by the grand jury.  Specifically, the court concluded that the "death results" provision - which was absent from the indictment but included in the instructions - was an element of the offense, not simply a sentencing factor.  2113(e) can be violated in three ways - only two of which were set forth in the indictment, although all three were present in the instructions.  As a result, the indictment had been constructively amended and Whitfield's conviction on that count must be reversed.  The court vacated the life sentence and conviction on the "death results" count and remanded for resentencing on the forced accompaniment theory, which it found was supported by sufficient evidence to sustain a conviction.

Congrats to the FPD office in WDNC on the win!

Basis for Simmons Not Retroactive

US v. Powell: Powell was convicted of two drug counts that carried sentences of 10 years to life in prison.  Thanks to a prior North Carolina conviction, his mandatory minimum sentence was increased to 20 years.  That is the sentence he received.  Powell filed a 2255 motion seeking to vacate his conviction in light of the Supreme Court's decision in Carachuri-Rosendo v. Holder, in which the Court held that for purposes of determining the status of a prior conviction the applicable consideration was the maximum sentence to which the particular defendant was subject, rather than the hypothetical maximum sentence to which a generic defendant could be subject.  Powell argued that Carachuri-Rosendo was retroactive and applied to his prior North Carolina conviction (after his 2255 motion was filed, the Fourth Circuit concluded that the logic of Carachuri-Rosendo required a rethinking of its analysis of prior North Carolina convictions).  The district court disagreed and dismissed the motion.

On appeal, the Fourth Circuit affirmed the dismissal of Powell's motion.  It concluded that Carachuri-Rosendo announced a procedural rule, rather than a substantive one, and was thus not retroactive.  The Supreme Court's decision "at most altered the procedural requirements that mush be followed in applying recidivist enhancements and did not alter the range of conduct or the class of persons subject to criminal punishment."

Judge King dissented in part and concurred in part with the majority's decision.  He argued that the rule announced in Carachuri-Rosendo is substantive and, therefore, should be retroactive.  However, he ultimately agreed that dismissal was appropriate because Powell's sentence was not illegal even if Carachuri-Rosendo was retroactive because it was well within the limits of the statutory range without any recidivist enhancement.

Extraction of DNA Profile Is Search, But Suppression Not Required

US v. Davis: In 2000, Davis was shot and treated at a Maryland hospital.  As part of the investigation of his shooting, police seized Davis's bloody clothes from underneath the bed on which Davis lay in the emergency room.  Nothing came of that investigation.  However, in 2004, a neighboring police agency was conducting an investigation of a murder in which Davis was a suspect.  They took the bloody clothes (which had been retained in the other agency's evidence room all those years) and used them to procure a DNA sample which could be tested against evidence from the murder scene.  It was not a match, but the resulting profile remained in the database where, later in 2004, it was used to link Davis to a botched armored car robbery.  As a result of the match, Davis was charged with various federal offenses arising from the robbery.  After the district court denied Davis's motion to suppress the DNA information, a jury convicted Davis.

On appeal, the Fourth Circuit affirmed Davis's convictions.  The court focused primarily on questions dealing with the DNA evidence and its collection in light of Fourth Amendment protections.  First, it concluded that the initial seizure of Davis's bloody clothes was proper under the plain view exception to the warrant requirement.  Second, it concluded that the initial search of the clothes to procure a DNA profile violated the Fourth Amendment and assumed (without deciding) that the later use of the DNA profile to link Davis to the armored car robbery was also a violation.  However, suppression of the resulting evidence was not required under the ever expanding "good faith" exception set forth in recent Supreme Court decisions like Herring and Davis.  The court also concluded that the district court did not abuse its discretion by prohibiting a defense expert witness from testifying about problems with the procedure police used during a lineup in which Davis was identified by an eyewitness.

Judge Davis dissented, disagreeing with the majority on both the plain view analysis and the conclusion that the exclusionary rule should not apply.

Orin Kerr at The Volokh Conspiracy has some additional thoughts.

Thursday, August 16, 2012

Sex Offender Restrictions Don't Amount to "Custody" for Habeas Corpus

Wilson v. Flaherty: Wilson was one of the "Norfolk Four," a group of sailors charged with the rape and murder of another sailor's wife.  Wilson was acquitted of murder, but convicted of rape in 1999 (since then, subsantial evidence of the innocence of all four men has been presented - see here for more details) and released from prison in 2005.  As a result of the rape conviction, he must register as a sex offender in Virginia and Texas (where he moved in the interim).  In 2010, he filed a 2254 motion challenging his conviction, arguing that he was actually innocent.  The district court denied the motion for lack of jurisdiction because Wilson was no longer "in custody" as required under 2254.

On appeal, the Fourth Circuit agreed and affirmed the dismissal.  Recognizing he was no longer in prison, Wilson argued that the variety of restrictions placed on him by Virginia and Texas law as a registered sex offender meant he as still "in custody" for purposes of 2254.  However, the court noted that the Supreme Court has defined "in custody" to mean custody "under conviction or sentence under attack at the time his petition is filed."  Although the concept of custody extends to a person released on parole, it does not include someone whose imposed sentence as "fully expired."  The sex offender provisions at issue in this case, however, were not part of his sentence for rape, but rather "collateral consequences of him having been convicted for rape."  Allowing 2254 challenges in such situations would allow sex offenders to challenge their convictions in federal court at any time.

Judge Davis concurred in the judgement, noting that when 2254 and its definition of "custody" was enacted, neither Congress nor the President had any conception of the type of lifelong sex offender requirements in place today.

Judge Wynn dissented, arguing that the majority's reading of the habeas provisions was too narrow, particularly in a case where Wilson makes such a compelling case for his innocence.  Specifically, he argues that Supreme Court precedent allowing for the challenge of prior convictions in habeas proceedings for a current conviction/sentence "strongly suggest that there are instances in which a fully served sentence may be collaterally challenged through a writ of habeas corpus."

Impersonating an Officer Statute OK Under First Amendment

US v. Chappell: Chappell was once a deputy sheriff in Fairfax County, Virginia.  Unfortunately, at the time he was pulled over on the George Washington Parkway, he was no longer a deputy, but nonetheless claimed to be in order to avoid getting a ticket.  When the officer who pulled him over discovered the deception, he was arrested and charged with impersonating a police officer (a state offense made federal under 18 USC 13).  After the magistrate judge denied his motion to dismiss under the First Amendment, Chappell was convicted at a bench trial (he pled guilty to the speeding charge) and was sentenced to a term of probation, community service, and a fine.

On appeal, Chappell renewed his argument that the Virginia statute (the state intervened in the case, as well) making it a crime to "falsely assume or pretend to be any such officer" was facially invalid under the First Amendment because it was overboard and not sufficiently narrowly tailored to survive strict scrutiny review.  The Fourth Circuit rejected those arguments and affirmed Chappell's conviction.  Noting that facial challenges are traditionally unfavored, the court called Chappell's "a particularly inappropriate case for recognizing a challenge of facial invalidity" because the statue has a "plainly legitimate sweep" and Chappell was "right at the core" of that sweep.  His attempt to "dodge a traffic ticket" by claiming to be an officer was "precisely the kind of conduct that the statute was designed to prohibit."  It rejected Chappell's potential hypothetical overreaches of the statute applying to people wearing police costumes at parties or children playing cops and robbers, noting that although the Virginia statute is similar to many others across the country he could not point to any actual application to such situations.  In addition, the statue's requirement that a person act "falsely" implies a mens rea requirement that would be absent from Chappell's hypotheticals.  Chappell fared no better in "the lifeboat of overbreadth doctrine" because he could not show any "realistic danger" that the statute would infringe on First Amendment rights.  The Supreme Court's recent decision in Alvarez striking down the Stolen Valor Act did not help, either.

Judge Wynn dissented, arguing that a "straightforward application" of Alvarez compelled a similar result in Chappell's case.  He faulted the majority for "cherry-picking" parts of the plurality and concurring opinion in Alvarez that generally approved of false impersonation statutes while avoiding a "complete analysis" of the case's references to those statutes.  He also took issue with the majority's conclusion that Chappell's behavior was the kind of conduct targeted by the statute, as opposed to public safety concerns related to faux officers.

Anonymous Jury, Forfeiture by Wrongdoing, OK'd in Large Drug Conspiracy Trials

US v. Dinkins: Dinkins, along with his codefendants Gilbert and Goods (aka "Moo Man"), was tried and convicted of numerous offenses related to a large drug operation in Baltimore, including the murder of another member of the operation who had begun to cooperate with police.  The lengthy facts are set forth in the opinion and too detailed to go into here.  All three defendants were sentenced to life in prison.  On appeal, each defendant presented multiple challenges to their convictions, all of which the Fourth Circuit rejected.  In particular, the court highlighted two issues.

The first was whether the district court abused its discretion by impaneling an anonymous jury, based on its concerns for the jurors' safety (given the fact that one of the charges involved the murder of a witness).  This was an issue of first impression in the Fourth Circuit.  The court identified an non-exhaustive list of five factors (including the defendants' involvement in organized crime or a group with the capacity to harm jurors) to use when deciding to impanel an anonymous jury.  The standard for doing so in capital cases (Dinkins and Gilbert were charged with capital offenses, Goods was not) is more exacting than for non-capital cases, although the same factors are relevant to both.  With that in mind, the court rejected defendants' argument that there was insufficient evidence to conclude that they had the present or future capacity to harm jurors.  The court also concluded that the district court took reasonable precautions to minimize the risk to the defendants' rights to a fair trial and presumption of innocence.

The second issue highlighted by the court was whether the admission of statements from Dowery, a former member of the operation who was killed after he began to cooperate with police, were properly admitted against Dinkins and Gilbert under FRE 804(b)(6), the "forfeiture by wrongdoing" exception to hearsay/confrontation.  The court noted that the exception only applies when a court finds (by a preponderance of the evidence) that the alleged wrongdoing was done to "render the declarant unavailable as a witness."  As to Dinkins, who was incarcerated when Dowery was actually killed (though he was not when an initial attempt on Dowery's life was made), the court concluded that the exception applied because it includes persons who acquiesce to the wrongdoing, in addition to engaging in the wrongdoing themselves.  As to Gilbert, the court rejected the argument that there was insufficient evidence from which to conclude that he, rather than some other person in the community who wished harm to a "snitch," killed Dowery (thus rendering him unavailable to testify).

The court also briefly addressed (and rejected) arguments about the district court's denial of motions to sever the defendants, a Batson challenge, and Goods's motion for acquittal.

Wednesday, August 15, 2012

Heller Challenge Fails Felon in Possession

US v. Smoot: Smoot was arrested outside a home on an outstanding after a tip provided his location.  He was in possession of a firearm and was charged with being a felon in possession.  Prior to trial, Smoot sought to have the jury instructed that (1) under Heller, the Government was required to rebut a presumption that Smoot lawfully possessed the firearm in his home for self defense, and (2) the firearm, while it had moved in interstate commerce at one point, had been out of commerce so long that it not longer effected interstate commerce.  The district court denied those requests.  Smoot was convicted and sentenced to 235 months under ACCA.

On appeal, the Fourth Circuit affirmed Smoot's conviction and sentence.  It construed the additional element argument under Heller as an as-applied challenge to the constitutionality of the felon in possession statute under the Second Amendment.  The court first noted that the record did not support Smoot's attempts to frame the issue in terms of possession of a firearm in his "home," as the record was inconclusive as to whether the home where the police went was Smoot's and, at any rate, he was arrested outside of the home, not inside it.  It the proceeded to reject the as-applied challenge, concluding that there was nothing about his challenge to "remove [it] from the realm of ordinary challenges" which had already been rejected.  As to the interstate commerce instruction, the court concluded that the district court's instruction that movement from one state to another (regardless of how long ago it happened) was enough to show an effect on interstate commerce was a correct statement of binding Fourth Circuit and Supreme Court precedent.  Furthermore, that instruction did not direct the jury to reach a particular conclusion on that element.  Finally, the court affirmed Smoot's sentence, concluding that the district court's denial of acceptance of responsibility was not an abuse of discretion where he contested an element of the offense.

Categorical Approach Required for Maryland Child Abuse Statute

US v. Gomez: Gomez pleaded guilty to illegal reentry after having been deported due to an aggravated felony conviction.  That conviction was for child abuse in Maryland, during which (according to Gomez's statement while pleading guilty) she had burned the bottoms of her son's feet with a candle as punishment.  After her illegal reentry conviction, the main issue at sentencing was whether that prior conviction was a "crime of violence" such that it triggered a 16-level enhancement under the Guidelines.  Gomez argued that, applying a categorical approach, it was not.  The Government argued that it was and the district court could resort to the modified categorical approach (and thus consider Gomez's statement) in doing so.  The district court agreed with the Government and applied the enhancement, although it varied from the resulting range an imposed a sentence of 24 months.

The Fourth Circuit vacated Gomez's sentence and remanded the case for resentencing.  The court concluded that the modified categorical approach is appropriate only when the statute being analyzed "contains divisible categories of proscribed conduct, at least one of which constitutes - by its elements - a violent felony."  The Maryland statute at issue in this case, while "expansive" it could not be separated into forceful and non-forceful acts.  As a result, only the original unmodified categorical approach should have been used.  The court also rejected the Government's argument that any error in applying the modified categorical approach was harmless because of the district court's ultimate imposition of a variance sentence.

Judge Niemeyer dissented, calling the majority's position "novel" and arguing that it was not consistent with Supreme Court and prior Fourth Circuit precedent.

Congrats to the FPD office in Maryland on the win!

US Law Extends to Foreign Nationals at Overseas Military Base

US v. Brehm: Brehm, a South African citizen, was employed by an American defense contractor providing services to the military at Kandahar Airfield in Afghanistan.  He was involved in an altercation with J.O., also employed by a defense contractor at Kandahar (although a different one) and a British citizen.  Brehm stabbed J.O.  He was charged, in the Eastern District of Virginia, with two counts arising from the incident under the Military Extraterritorial Jurisdiction Act, which applies to those "employed by or accompanying the Armed Forces outside the United States."  After his motion to dismiss the charges on jurisdictional grounds was denied, Brehm entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed Brehm's conviction.  Brehm argued that the MEJA was unconstitutional as applied to him because neither he, nor J.O., were US citizens, the incident did not occur in furtherance of his duties as an employee of the military contractor, and his conduct was not directed at and did not harm the United States.  The court disagreed, noting that such factors did not impact jurisdiction under the MEJA.  Were it not for his employment connected to the American military, Brehm would not have been at Kandahar and his behavior would not have effected the operations there.  The court also noted that, as part of his employment, Brehm signed an agreement agreeing that the MEJA applied.

Stop for Speeding, Following to Close, OK Under Fourth Amendment

US v. Mubdi:  Mubdi (and a passenger) were stopped along the Interstate in North Carolina for speeding and following too closely.  During the ensuing traffic stop, a drug dog alerted on the car.  The subsequent search uncovered drugs and firearms.  Mubdi was charged with drug and firearm offenses as a result.  He moved to suppress the evidence found in the car, arguing both that the officer who stopped him lacked probable cause to do so and, even if such cause existed, the stop was unduly prolonged without reasonable suspicion.  The district court denied the motion and Mubdi entered a conditional guilty plea and was sentenced to 300 months in prison.

On appeal, the Fourth Circuit affirmed Mubdi's conviction and sentence.  As to the basis for the stop, the court concluded that the officer had probable cause to believe both that Mubdi was speeding and following too closely, as defined by North Carolina law.  As to the speeding, the court noted that although the officer used only visual means to estimate Mubdi's speed this case was quite different from the court's recent decision in Sowards, in which the officer utilizing the same visual method was "to put it mildly, measurement-challenged."  Without such difficulties present in the record, there was probable cause to stop Mubdi for speeding.  Alternately, the court held that there was also probable cause to stop him for following too closely, rejecting Mubdi's argument that the North Carolina regulation did not apply in the situation at hand (in which he was overtaking another car) and that, even if it did, it was a mistake of fact, rather than one of law, and did not prevent the officer from making the stop.  As to the stop itself, although the court appeared to conclude that the stop was not unduly prolonged at all (the drug dog arrived while the officer was writing the ticket), it also concluded that there was reasonable suspicion to extend the stop, based on Mubdi's behavior.  Finally, the court upheld Mubdi's sentence, turning away a challenge to the applicable mandatory minimum under binding Supreme Court precedent.

Judge Davis authored an interesting concurring opinion.  He laid out how expanding Supreme Court precedent on traffic stops has allowed the officers involved in this case to do precisely what they did - conduct a drug interdiction investigation in the guise of a traffic stop: "it was not for nothing that, as shown on the video taken by the dashboard camera in [the officer]'s vehicle, the officers in this case expressed unmitigated glee, punctuated by serial 'fist-bumps' all around, when the cache of more than two hundred grams of crack cocaine was removed from the [car]."  He concluded that the speeding justification was similar to the one in Sowards and therefore insufficient to support the stop.  However, he agreed with the majority on the following too closely analysis and concurred as to all other parts of the opinion.

Wednesday, August 01, 2012

Duplicating forensic tests, and elements of RICO offense

US v. Mouzone and US v. Fleming:  These two appellants were indicted and tried for RICO and drug offenses related to their mutual membership in Tree Top Piru, a subset of the Bloods gang that operated in Essex, Maryland. Both Mouzone and Fleming were convicted of the RICO charge, and Fleming was also convicted on two drug charges. Both appellants raised several district court errors; the Fourth Circuit affirmed the convictions and sentences. 

In one of these issues, Fleming challenged the district court’s ruling that permitted the government to present a drug analysis report on bags of cocaine seized from his pocket at the time of his arrest. Two different chemists performed drug analyses; the government learned that the first analyst would be unable to appear for trial, so a second analyst performed the same tests nearly two years later. The results after the second test, specifically weight determinations, were "discordant." The Confrontation Clause requires that the accused "be confronted with the analyst who made the certification, unless that analyst be unavailable at trial, and the accused had an opportunity, pre-trial, to cross-examine that particular [analyst]," the Fourth Circuit quoted from Bullcoming v. New Mexico. Introducing a surrogate analyst, who does not sign the certification or perform or observe the test reported in the certification cannot satisfy the Confrontation Clause.

The Fourth Circuit reasoned that even if the admission of the second analyst’s testimony violated the Confrontation Clause, it was confident that the admission did not sway the jury on the drug charges: the second analyst performed an independent analysis; the weight determinations were still well above threshold amounts for which Fleming was convicted; and the second analyst made no attempt to vouch for the first analyst’s findings.

Mouzone and Fleming both challenged the district court’s charge to the jury of the elements of the RICO offense under 18 U.S.C. sect. 1962(d). Both appellants requested that the district court instruct the jury that in order to "participate, directly or indirectly, in the conduct of such enterprise’s affairs, one must have some part in directing those affairs. Some part in directing the enterprise’s affairs is required." The district court denied this request.

The Fourth Circuit disagreed with appellants that a managerial role in the enterprise’s affairs is required for conviction under this statute. Rather, it held that "simply agreeing to advance a RICO undertaking is sufficient." The Fourth Circuit joined several other circuits (D.C., 9th, 3rd, 2nd, and 5th) in holding that sect. 1962(d) liability does not require that a defendant have a role in directing an enterprise.

Writ of error coram nobis successful

US v. Akinsade:  In this appeal, the Fourth Circuit granted the appellant’s request for a writ of error coram nobis pursuant to 28 U.S.C. sect. 1651, vacating his prior conviction for embezzlement, to which he plead guilty in 2000. Akinsade claimed that he was misadvised by his attorney about the immigration consequences of taking a plea, and the Fourth Circuit agreed. When making the decision whether to plead, his attorney had advised that Akinsade could not be deported based on his single offense, and that he could only be deported if he had two felony convictions, which advice was contrary to the law at that time.

In order to reach its decision, the Fourth Circuit enunciated a standard it will use in reviewing petitions for writ of error coram nobis: abuse of discretion. In order to receive this type of extraordinary relief, a petitioner must show the following: 1) a more usual remedy is not available; 2) valid reasons exist for a failure to attack a conviction earlier; 3) adverse consequences from the conviction exist, such that the case or controversy requirement of Article III is satisfied; and 4) the error is "of the most fundamental character." This final requirement received the most attention in this opinion.

Prior to reaching the Fourth Circuit, the district court that received Akinsade’s petition denied his petition without a hearing, on the grounds that this extraordinary remedy was not available for a "mere garden-variety" ineffective assistance of counsel claim that did not allege a "fundamental error." The district court did find that Akinsade’s counsel’s affirmative misrepresentations rendered the advice Akinsade received constitutionally defective, but that Akinsade did not experience prejudice as a result.

The Fourth Circuit points to three aspects of Akinsade’s plea that caused him to experience prejudice: the equivocal nature of the admonishment - that his plea could lead to deportation, when in fact deportation was a mandatory consequence; his counsel’s affirmative mis-advice clearly contrary to the law; and the severity of deportation itself as a consequence. With respect to the mis-advice, the Fourth Circuit reiterated and applied its position from U.S. v. Gajendragadkar, in which it found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the U.S. and thus, would reasonable risk going to trial over taking a plea and facing certain deportation. The Fourth Circuit did not discuss a retroactive application of Padilla because neither the appellant nor the government contested the fact that the incorrect advice Akinsade received was constitutionally deficient.

The dissent noted that the civil immigration proceedings against Akinsade in the Second Circuit recently decided that Akinsade had not, in fact, pleaded guilty to an aggravated felony, and thus, the government did not plan to oppose termination of Akinsade’s deportation. The dissent found it unnecessary to vacate Akinsade’s plea when he would not be deported as a result of it.

Tuesday, July 24, 2012

No plea agreement breach when government gets the statutory maximum wrong

US v. Davis:  The government indicted William Davis for unlawful possession of a firearm by a convicted felon under 18 U.S.C. sect. 922(g)(1). Davis had three prior state felony convictions. The government presented a plea agreement in which Davis was incorrectly advised that he faced a ten-year maximum sentence when in fact, he faced a fifteen-year mandatory minimum based on his criminal history. Davis entered the plea agreement; to make matters worse, the district court similarly misadvised Davis at the plea hearing about the actual extent of exposure to punishment he faced.

The probation officer who prepared the pre-sentence investigation report discovered the errors and concluded that Davis’ sentence should be fifteen years to life in prison. At sentencing, Davis objected on three grounds, none of which included a contention that the government breached his plea agreement or that he had been misadvised regarding the statutory maximum punishment. The district court overruled his objections and designated Davis an armed career criminal, and sentenced him to 180 months.

Nine months later, Davis filed a claim under 28 U.S.C. sect. 2255 to challenge his sentence, based in part on his counsel’s failure to file a direct appeal upon his request. Davis’ attorney had recently died, so the Court granted his petition and gave him 14 days to appeal his sentence. He raised two issues: the government breached the plea agreement and deprived him of the benefit of his bargain; and his qualification as an armed career criminal.

The Fourth Circuit found that Davis’ claim of breaching the plea agreement failed because he sought "the benefit of a promise that the government never made," as it did not promise a particular sentence and made only "non-binding" recommendations and "no representations" as to the final sentence. Also, the district court has no discretion to sentence an individual in contravention of a statute, so even if the government had breached an agreement with Davis, he would not have been entitled to "specific performance" of that promise.

There was an appeal waiver contained in Davis’ plea agreement, but the Fourth Circuit found that his waiver was invalid because he did not knowingly waive the right to appeal the sentence ultimately imposed. The Fourth Circuit did not agree with Davis that he did not qualify for an armed career criminal enhancement, and upheld his sentence against this claim of error.

Wednesday, July 18, 2012

Illegal re-entry & prior TX burglary conviction lead to enhanced sentence

US v. Bonilla:  Francisco Bonilla pleaded guilty to one count of illegal re-entry; the presentence report ordered in advance of the sentencing in his case included an enhancement based on his prior state conviction for burglary of a habitation in Texas. Bonilla objected to the application of this enhancement, arguing that this prior conviction did not qualify as a crime of violence as required in Taylor v. United States, 495 U.S. 575 (1990).

In Taylor, the Supreme Court set out to uniformly define "burglary" from the variety of definitions in different States’ criminal codes. The Fourth Circuit discusses Taylor at length as the backdrop for making its decision here, and the short version: if the state definition corresponds "substantially" to generic burglary, then the sentencing enhancement at stake here applies.

The Fifth Circuit has held that a burglary conviction under the same code section as Bonilla received is NOT a generic burglary under Taylor, because it does not contain an intent element to commit a felony, theft, or assault at the moment of entry. The Fourth Circuit respectfully states that this holding results from a "too rigid" reading of Taylor, and Bonilla’s guilty plea contained all the elements to satisfy Taylor’s description of generic burglary "notwithstanding that Bonilla might not have formulated his intent prior to the unlawful entry." The dissent’s well-reasoned view supports the opposite conclusion, based on the common law notion that intent must be contemporaneous with the other elements of the offense, in order for a burglary to satisfy Taylor.

Possession of weapon in prison - crime of violence?

US v. Mobley:  Mobley, imprisoned at FCI Butner, visited the infirmary for pain and numbness in his feet. Upon examination, a shank was discovered in the insole of Mobley’s right shoe. Despite Mobley’s attempt to hide it, the physical therapist turned the shank over to prison staff.

Mobley received a charge for possessing a prohibited object to which he pleaded guilty. The presentence report calculated Mobley’s base offense level and then applied the career offender enhancement, considering the possession of the shank to be a "crime of violence" for sentencing purposes. Application of this enhancement increased Mobley’s punishment from a range of 24-30 months, based upon his criminal history, to 37 to 46 months. Mobley objected to the application of this enhancement at sentencing; the district court decided that "there is no passive possession of a weapon in a prison setting,"and imposed a sentence of 37 months.

The Third Circuit has adopted the position that possession of a weapon, "even in a prison," is not the same in kind or in degree of risk as crimes of violence under the career offender sentencing enhancement. The Fifth, Eighth, and Tenth Circuits, however, have reached a different conclusion when faced with this issue, holding that possession of a weapon in prison "is similar in kind and degree of risk" to burglary, arson, or extortion, or any other enumerated crime of violence under this sentencing enhancement. The Fourth Circuit concurred with the latter group and affirmed Mobley's sentence, though Justice Wynn dissented, agreeing with the Third Circuit that possession of a weapon is "a far cry" from the conduct of enumerated crimes listed in U.S.S.G. sect. 4B1.2(a).

Tuesday, July 17, 2012

Special Conditions on Supervised Release Reversed

US v. Worley:  Appellant David Worley received a 100-month sentence for his convictions for methamphetamine offenses. He challenged the length of the sentence as well as the special conditions imposed on his supervised release, arguing that the district court abused its discretion in imposing the conditions. The Fourth Circuit disagreed with respect to the 100 months of incarceration (within his advisory guidelines range), but it agreed that several of the special conditions should be reversed.

Worley’s presentence report recommended fifteen special conditions in this case, based upon two twelve-year-old state convictions for carnal knowledge of a child (committed when Worley was twenty-one).  In particular, three of the special conditions prohibited Worley from having unsupervised contact with children, residing with minor children without permission from a probation officer, and forming a romantic relationship with anyone who has physical custody of a child. In the intervening twelve years, Worley had started a family with three young children, and maintained his relationship with his family and girlfriend.  Worley did not explicitly object to the district court’s imposition of the special conditions at sentencing. 

The Fourth Circuit stated that it did not need to determine whether to use plain error review of the special conditions, or the more deferential standard, an abuse of discretion: the imposition of these three restrictive special conditions on Worley’s supervised release was plain error, and did not further the defendant’s rehabilitation. "Conditions that interfere with a defendant’s constitutional liberties, such as raising his child or associating with a loved one, must be adequately explained or else their imposition undermines the fairness and integrity of our judicial proceedings." The Fourth Circuit noted that, "[g]iven the severity of these restrictions in hindering Worley’s familial relations weighed against the lack of evidence that Worley currently poses a threat to children, the district court erred in imposing the conditions and this error requires a complete reversal with no remand." 

With respect to the remaining special conditions on Worley’s supervised release, the Fourth Circuit remanded them to the district court, as "they impose restrictions that do well beyond Worley’s state sex offender registration requirements," but they did not infringe on his relationship with his children and girlfriend. In imposing these conditions, the district court had only relied on Worley’s prior state sex offense convictions, and the record according to the Fourth Circuit, did not support the conclusion that Worley’s current behavior and character required them.

Mandatory Restitution statute interpreted

US v. Burgess:  The Fourth Circuit affirmed Burgess's two convictions and 292-month sentence for receipt and possession of materials depicting minors engaged in sexually explicit conduct, but it vacated the restitutionary award to the victim, "Vicky," for a calculation of the amount of loss proximately caused by Burgess.

At the sentencing hearing, the government submitted a request pursuant to the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. sect. 2259, for "Vicky," the victim portrayed in the materials seized from the appellant's residence.  The government argued that Burgess should be held "jointly and severally liable with all other defendants [for] the full amount of Vicky's losses."  The district court based its restitution award on the government's memorandum and calculation of loss. 

The appeal presented the question of whether a victim's losses attributable to a defendant under this restitution statute are limited to losses proximately caused by the defendant, or whether the plain language of the statute imposes no such limitation (as "Vicky" argued as amicus curiae).  Other circuits that have considered this issue have determined that a proximate cause limitation is applicable to this statute based upon a variety of rationales; though most them, like the Fourth Circuit here, examined the issue by using tort law principles in the construction of the criminal statute to resolve any ambiguity. 

The Fourth Circuit concluded that nothing in the text or structure of this statute indicated that Congress intended to "negate the ordinary requirement of proximate causation for an award of compensatory damages," and found that this statute "invokes the well-recognized principle that a defendant is liable only for harm that he proximately caused," and not for those injuries inflicted by others at different times.

The dissent argues that the majority's opinion in premature, in that the district court below did not make factual findings with respect to proximate cause.  Additionally, he does not believe that district courts will be able to "meaningfully say precisely x amount of Vicky's psychological injuries were caused by Burgess's watching the video, that y amount was caused by Defendant #2's watching the same video, and so on."  Further, the dissent argues that the question of whether "a defendant proximately caused some injury is entirely separate from the question of how those proximately caused losses should be allocated among several offenders." 

Monday, July 02, 2012

Fraud Convictions for Manufactured Regulatory Approval Upheld

US v. Wynn: Wynn was an engineer with a firm responsible for a project extending the runway of a regional airport in South Carolina.  In order to embark on the project, the airport needed the plans drawn up by Wynn to be approved by regulators.  Wynn never got such approval, but when asked if the approval had been given, fabricated an appropriate stamp from the regulators and sent it to the airport by mail and later the regulators as an attachment to an email.  As a result, Wynn was charged and convicted for mail fraud and wire fraud.  He was sentenced to 12 months and one day in prison and ordered to pay restitution of $118,000.

On appeal, Wynn challenged both his conviction and sentence, both of which the court upheld.  As to his convictions, Wynn argued that the district court improperly instructed the jury by allowing a conviction without the Government proving that he intended to harm the airport (or the county that ran it) and that the evidence was insufficient to prove that element.  The court disagreed, holding that the instructions correctly told the jury it needed to find an intent to defraud on Wynn's part, not simply a falsehood in his dealings with the airport.  The court also rejected Wynn's argument that providing the falsely approved version of the plan to was not material or reasonably relied upon.  As to his sentence, Wynn argued that the loss calculation by the district court greatly overestimated the actual loss, because it included fees paid by the county to Wynn's firm that were unrelated to the fraud.  The court disagreed, holding that it was not clear error for the district court to concluded that the other fees would not have been paid to Wynn's firm had the county paying them been aware of his fraud.

Citizens United Doesn't Undermine Corporate Contribution Prohibition

Danielczyk: Danielczyk and Biagi were officers at Galen Capital who arranged for others to make contributions to Hillary Clinton's presidential campaign in 2008 and be reimbursed by Galen.  As a result, they were indicted on multiple counts, including one (Count Four) that charged them with causing contributions of corporate money to a candidate for federal office (in excess of $25,000) and conspiring to do so.  They moved to dismiss Count Four, arguing that the statute was unconstitutional in the wake of the Supreme Court's decision in Citizens United.  The district court agreed, holding that the statute at issue in Citizens United, as it reads now, treats corporate and individual contributions differently.

The Government appealed and the Fourth Circuit reversed the district court.  The Court relied on a pre-Citizens United decision by the Supreme Court that upheld the statute at issue against an earlier First Amendment challenge.  It rejected Danielczyk and Biagi's argument that the prior decision was no longer valid in light of Citizens United and that, at any rate, it was limited to nonprofit corporations (the party at issue in that case), rather than for-profit corporations.  It reversed the district court and remanded the case for further proceedings.

Religious Tax Evasion Convictions, Sentences, Upheld

US v. Jinwright: Anthony Jinwright became the senior pastor at a North Carolina church in 1981.  By the time his wife (and codefendant) Harriet joined him as a pastor in 2000, he was making a six figure income, not to mention a luscious benefits package.  Between 2001 and 2007, Anthony earned a total of $3.9 million in wages and benefits, while Harriet made nearly $1 million.  Unfortunately, not all of that income was reported to the IRS, which estimated that they underpaid by more than $650,000 in that time.  Both Jinwrights were convicted of conspiracy to defraud the Government and tax evasion, with Anthony convicted of several additional counts of tax evasion and filing false tax returns.  Anthony was sentenced to 105 months in prison, Harriet to 80 months.

The Jinwrights challenged both their convictions and sentences on appeal, all of which were affirmed.  As to the convictions, they raised three arguments.  First, they argued that the district court erred by giving a willful blindness instruction, both because the evidence did not support it and the legal standard presented in it was incorrect.  The court disagreed, holding that the evidence supported the instruction and that it properly warned the jury that it could not convict if the Jinwrights were simply reckless or foolish in overlooking what was happening.  Second, the Jinwrights argued that a jury instruction on the tax treatments of payments from employer to employee directed the jury to find particular facts, namely that the Jinrights received payments that they were required to report as income.  The court disagreed.  Third, they argued that the district court improperly limited their cross examination of three witnesses who believe that payments from the church to the Jinwrights were gifts.  The court found the limitation was a reasonable precaution to prevent jury confusion.

As to sentencing, Harried challenged her tax loss calculation, arguing that included funds from a year for which the jury acquitted her of evasion.  The court disagreed, noting that the use of acquitted conduct at sentencing is permissible and concluding that the district court's findings were sufficiently explained.  Both Jinwrights challenged the amount of restitution they were ordered to pay, arguing that it included sums  based on losses that occurred prior to the conduct for which they were convicted.  The court concluded that the district court could order restitution based on losses caused by the acts in the conspiracy, even if the defendant was not convicted for each of the acts.  Finally, the Jinwrights both argued that the district court erred in imposing two Guideline enhancements.  One was for the use of sophisticated means, which the court held was justified based on the Jinwrights use of multiple organizations and "a variety of sophisticated techniques" laid out in the PSR.  The other was for abuse of a position of trust, which the court affirmed on the basis of "the wide range of conduct in the record," including having access to church finances.

Virginia Prior Triggers Child Porn Enhancement

US v. Colson: Colson pleaded guilty to multiple counts of receiving movies depicting child pornography.  He was sentenced to a 15-year mandatory minimum term under 18 USC 2252A(a)(2) based on a prior Virginia conviction for the "production, publication, sale, or possession, etc. of obscene items involving children."  Colson argued that, when analyzed under the categorical approach, such a conviction does not qualify for the enhancement because it could have been committed in ways that "relates to the sexual abuse of a minor," as required for the enhancement to apply.

On appeal, Colson renewed his argument, which the Fourth Circuit rejected.  Applying a purely categorical approach and reviewing the Virginia statute in force at the time of Colson's prior conviction (in 1984 - all the records had since been destroyed), the court first concluded that the Virginia statute did not, as Colson claimed, cover "innocuous depictions of nudity" because it punished only the "lewd" exhibition of nudity, not simply the nudity.  In addition, the court concluded that the enhancement applies not only if the prior conviction at issue is for "sexual abuse" or "abusive sexual conduct involving a minor," but whether it is related to those two offenses.  The Virginia statute at issue here categorically "relates to" those offenses.

Wednesday, June 27, 2012

Visual Estimate of Speed Not Enough for Stop

US v. Sowards: Sowards was driving down I77 in North Carolina when he was stopped by a local deputy, Elliott, for speeding. Specifically, for going 75 in a 70 mile per hour zone. Elliott had a drug dog with him who alerted to the presence of drugs. A search revealed 10 kilograms of cocaine in the car. Sowards was charged with possession with intent to distribute. He moved to suppress the cocaine, arguing that Elliot lacked probable cause to stop him for speeding. Elliott testified that he had not tagged Sowards with radar or paced Sowards in his own cruiser, he had simply observed Sowards and knew he was speeding. After a hearing at which Elliott's powers of perception were somewhat undermined, the district court denied the motion. Sowards entered a conditional plea. 

On appeal, the Fourth Circuit reversed the district court, 2-1. As the court framed the issue, it was "whether, given the totality of the circumstances, Deputy Elliott had reasonably trustworthy information sufficient to support a prudent person's belief that Sowards was speeding." In evaluating that issue, the court found that many of the district court's findings were clearly erroneous. For example, the district court concluded that Elliot had been "trained to estimate speeds," although that training was done in the context of how to use a radar unit, not simply to estimate speeds on his own. Furthermore, Elliot could not explain any method he used to determine Sowards's speed and, indeed, denied having any method at all. The court also found the district court's conclusion that Elliott's "difficulty with measurements is immaterial" to "ring[] in the absurd" because estimating speed requires determining the distance that object is covering in a certain period or time. The court noted that Elliott "exhibited a notable absence of fluency in his knowledge of distance measurements." Rejecting the Government's argument that Elliott's educated guess was sufficient to support the stop, the court noted that the closer the speed is to the legal limit, the more scrutiny the officer's estimation must receive. Given the high speed involved and the slight difference between the limit and the alleged speeding in this case, Elliott's uncorroborated observation alone was not sufficient.

 Chief Judge Traxler dissented, resting his argument heavily on the fact that Elliott's certification for estimating speed provided him with an average error rate of no more than 3.5 miles per hour. The majority points out that this "certification" involved a visual estimate backed up with a radar gun, which Elliot did not use in this case (he testified that he intentionally positioned his cruiser so he could not use radar). Traxler also argues that the majority's new requirement for some sort of corroboration to the officer's observation has no basis in prior caselaw.

Friday, June 08, 2012

Pirates repelled by the USS Nicholas lose their appeals

US v. Dire, US v. Said:  The crime of piracy returns to relevance in Dire, after several Somalis launched an ill-fated attack on a United States warship in disguise as a merchant vessel in the waters off the horn of Africa. Chiefly, the appellants argued that since they did not actually board and rob the USS Nicholas, that their actions did not, as a matter of law, amount to a piracy offense under 18 U.S.C. § 1651. The Fourth Circuit disagreed and upheld all the convictions.

The Fourth Circuit held that the statutes defining "piracy" here incorporate a definition of piracy that changes with advancements in the law of nations (derived from such international legal authorities as the United Nations Convention on the Law of the Sea, and the High Seas Convention), and the definition at the time of the appellants’ attack on the USS Nicholas encompassed the Somalis’ violent conduct (they fired AKs at the ship). The Fourth Circuit rejected the appellants’ challenge to the piracy convictions.

Another bone of contention in this appeal was whether the confessions obtained by U.S. servicemen aboard the USS Nicholas three days after the attack were appropriately advised of their Miranda rights. The appellants argued that there was a language barrier, they lacked any familiarity with the U.S. legal system, and they lacked education and were illiterate, in order to maintain that their waiver of their rights was not knowing or intelligent. The Fourth Circuit disagreed, and found that based upon a totality of the circumstances, the appellants must have known that they did not have to speak with the special agent investigating them and that they could request counsel.

In a companion case, US v. Said, the Fourth Circuit vacates the dismissal of the piracy count in a case arising from a separate attack on the USS Ashland, based upon its reasoning and holding in Dire.

Thursday, June 07, 2012

Halstead merger problem occurs in cases other than illegal gambling operations

US v. Cloud:  William Roosevelt Cloud, convicted of several charges arising from a mortgage fraud conspiracy that he masterminded, raised several issues in this appeal: evidentiary rulings, the district court’s loss calculation, and the district court’s order directing him to reimburse his court-appointed attorneys fees. The Fourth Circuit affirmed on the first two issues, but vacated the reimbursement order. Cloud also argued that some of his money laundering convictions should be reversed due to a merger problem, and the Fourth Circuit agreed.

The scheme included at least fourteen others charged as co-conspirators, and it lasted from 1999 to 2005. Cloud’s scheme involved purchasing numerous properties, "flipping" them to buyers at increased prices, and banking the difference. He encouraged the unsuspecting buyers to purchase several properties, and in order to perpetuate the scheme, Cloud falsified loan applications, forged signatures, and provided false information to closing attorneys. Cloud signed false HUD-1 forms containing false information and distributed kickbacks to buyers, a mortgage broker, and recruiters who found buyers. The loss amount to lenders and the community totaled around $19 million.

With respect to the evidentiary issues, Cloud objected to victim-impact testimony, but the Fourth Circuit found that this type of testimony must meet only a low bar of relevancy, so it was properly admitted. Also admitted were conversations between Cloud and several tenants, from which an inference could be drawn that Cloud was dishonest with tenants to hide his scheme; the Fourth Circuit concluded that any error in admitting this testimony was harmless. The Fourth Circuit vacated the district court’s reimbursement order because no findings were made with respect to Cloud’s ability to pay for representation, nor whether Cloud had funds available for payment. Previously, the Fourth Circuit had rejected a similar order in United States v. Moore, so the directive to reimburse was vacated here.

Additionally, Cloud argued that his money laundering convictions must be reversed under United States v. Santos, as interpreted by the Fourth Circuit in United States v. Halstead. The Fourth Circuit agreed, and reversed those convictions. In Santos, the Supreme Court affirmed the vacatur of money laundering convictions that arose from an illegal gambling operations, when it determined that the money laundering offenses merged with the convictions for operating an illegal gambling business. Six counts against Cloud of promotional money laundering suffered from a "merger problem," as they charge illegal activity including money transactions to pay for the costs of his illegal activity, and the government also used those transactions to prosecute Cloud for money laundering. To put it another way, a merger problem does not arise when the financial transactions of the predicate offense are different from the transactions prosecuted as money laundering. Here, the six money laundering convictions were based on paying the "essential expenses" of the underlying fraud, so a merger problem existed, and the Fourth Circuit reversed the money laundering convictions with respect to those counts.

Friday, May 18, 2012

Vulnerable victim enhancement application affirmed

US v. Etoty:  This appellant challenged the district court’s application of the "vulnerable victim" enhancement at the time of her sentencing for social security fraud and aggravated identity theft. At sentencing, Etoty argued that she did not specifically know whether the victim’s disability was physical or mental, and that the victim’s disability did not facilitate the fraud, which the district court rejected.

The Foruth Circuit reviews sentencing determinations under an abuse of discretion standard. Under the advisory sentencing guidelines, a two-level increase attaches if the "defendant knew or should have known that a victim of the offense was a vulnerable victim." A two-step analysis is thus employed to determine 1) that the victim was unusually vulnerable; and 2) that the defendant knew or should have known of this unusual vulnerability.

Evidence adduced at trial was found credible and the Fourth Circuit did not disturb the district court’s determination that the victim had a learning disability and a back problem, and that she received social security benefits. Additionally, Etoty conceded knowledge at trial that she knew the victim was disabled and was receiving disability payments - ample proof to the Fourth Circuit that Etoty knew the victim was indeed vulnerable.

Bankruptcy-related fraud scheme conviction upheld

US v. R. Powell, Jr.:  A grand jury named Powell in one count of a fifteen count Indictment, alleging he aided and abetted the making of a false entry in a bankruptcy-related document, as part of an associate, Pavlock’s, larger scheme to defraud. A jury convicted Powell of this one count. Powell raised four issues in his appeal, none of which the Fourth Circuit found meritorious: 1) the district court failed to provide several requested jury instructions; 2) the prosecutor referred to Powell and Pavlock as ‘liars,’ committing reversible misconduct; 3) defense counsel provided ineffective assistance; and 4) the district court declined to apply a mitigating role adjustment at Powell’s sentencing.

Powell’s first argument centers around the statute he was charged with violating, specifically whether it contains a materiality requirement. He argued that materiality is an element of the offense, in 18 U.S.C. sect. 1519; the Fourth Circuit disagreed under a plain reading of the statute; the 11th and 8th circuits have similarly held that sect. 1519 lacks a materiality element. Powell also wanted an advice-of-counsel defense instruction; the Fourth Circuit rejected this argument, finding that there was a lack of evidence supporting the application of this instruction. Lastly with this appeal issue, Powell wanted the jury to be instructed that his statement concerning the ownership of several limousines was true as a matter of law. The Fourth Circuit held that there was sufficient evidence presented at trial that Powell obtained title to these vehicles by fraud or theft by deception, so the titles did not establish ownership.

For Powell’s second appeal issue, Powell failed to object at trial to the prosecutor’s comment about him as a ‘liar,’ so under the plain error standard, he could not show that the remarks were improper, and so prejudiced his substantial rights that he was denied a fair trial. Previously, the Fourth Circuit held that calling a defendant a liar is not, per se, improper. In light of this and similar authority from some other circuits, Powell could not establish plain error.

The Fourth Circuit found that Powell’s ineffective assistance of counsel claim was premature, and that he could re-assert this claim in a sect. 2255 habeas petition.

Finally, Powell argued that he should have received a mitigating role adjustment. The critical inquiry for a sentencing court in considering this adjustment, according to the Fourth Circuit, is whether the ‘defendant’s conduct is material or essential to committing the offense,’ not just whether the defendant committed fewer ‘bad acts’ than a co-defendant. Here, the Fourth Circuit held that it would be reasonable to find that Powell’s conduct was essential and material, so this issue, like the others, failed.