Monday, January 30, 2012

Gun violence and drug use - connection?

US v. Carter:   In this appeal, Benjamin Carter raised the issue of the constitutionality of his conviction under 18 U.S.C. § 922(g)(3), which prohibits persons who currently and unlawfully use or become addicted to any controlled substantive (in this case, marijuana) from possessing a firearm. In an opinion in which the Fourth Circuit informed the government not once, but twice, exactly what evidence it could have but chose not to present in order to win, the Fourth Circuit vacated the conviction, finding that the government failed to make the record to substantiate the fit between disarming drug users and its means of accomplishing this goal.

On appeal, the government contended that unlawful drug users deserve no Second Amendment protections whatsoever. The government bore the burden of showing that the statute’s limited imposition on an individual’s Second Amendment rights (unlike other parts of § 922(g) in which an individual receives a permanent disarmament, the statutory provision in this case only applies to person currently using and/or abusing illegal drugs and only temporarily prohibits their possession of guns: once the drug use ends, gun possession can ostensibly occur), advanced the goal of preventing gun violence. The government staked its success here, not on any academic research or empirical data, but by simply asserting that common sense justified taking guns away from drug users, and that addicts are sufficiently dangerous to require disarming them.

The Fourth Circuit joined its sister circuits in concluding that intermediate scrutiny applies to a review of the enforcement of § 922(g)(3), and any other subsection of § 922(g). Under intermediate scrutiny, the government must establish a reasonable fit between the statute in question and a substantial governmental objective, e.g. ending gun violence associated with drug use. Carter argued that as applied to him, the statute does not substantially further the government’s interest without excessively intruding upon his Second Amendment rights. While the Fourth Circuit did not outright disagree with Carter by concluding that Congress had an important objective for enacting the statute here, it did find that the government did not give the court sufficient evidence to substantiate the fit.

Congrats to the FPD in the southern district of WV for the win!

Friday, January 27, 2012

When unidentified witnesses may be okay

US v. Ramos-Cruz:  In this case, Israel Ramos-Cruz appeal his convictions for several offenses related to his activities with a gang. At issue was the jury instruction for the aiding and abetting witness-tampering murder, which was abrogated by the Supreme Court’s decision in Fowler v. United States after trial but while this appeal was pending; Ramos-Cruz challenged the denial of his motion for judgment of acquittal, in that he argued he was not in the country illegally; also, Ramos-Cruz challenged the district court’s decision to permit two unidentified witnesses to testify against him as violative of the Confrontation Clause; and finally, Ramos-Cruz took issue with the district court’s denial of his motion to suppress evidence seized at his home during a search. The Fourth Circuit affirmed the district court’s judgment.

The Supreme Court’s decision in Fowler abrogated the Fourth Circuit’s instruction given here, rendering them incorrect, but the Fourth Circuit found that the error in giving this instruction was harmless. Fowler changes the burden of proof necessary to sustain a conviction under § 1512(a)(1)(C), in circumstances in which a defendant kills a victim in order to prevent that individual from talking to federal authorities. The government must now show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer, as opposed to a possible or potential communication. The test that the Fourth Circuit had articulated here was similar to the 11th Circuit test that the Supreme Court overturned in Fowler; however, the Fourth Circuit found uncontroverted and overwhelming evidence of the reasonable likelihood of communication with a federal officer, and concluded any error in its instruction was harmless.

Next, Ramos-Cruz argued that he had a pending TPS ("temporary protected status") application at the time he was found in possession of a firearm, and thus he was not illegally in this country. Temporary protective status can provide some benefit to individuals from foreign countries where ongoing conflict or natural disaster prevents its nationals from returning in safety. El Salvador, where Ramos-Cruz is from, has been designated such a country, but at issue here was not whether Ramos-Cruz’s country of origin enabled him to apply for TPS, but whether his application had been pending here, as Ramos-Cruz asserted. The district court and the Fourth Circuit disagreed with Ramos-Cruz, however, finding evidence that Ramos-Cruz’s application for TPS had been effectively denied prior to the relevant events.

With respect to the two El Salvadorian witnesses which the district court allowed to testify anonymously in order to protect the safety of the witnesses and their families, Ramos-Cruz contended that this ruling violated his 6th Amendment confrontation rights, that he could not conduct independent research into the witnesses’ veracity. The government had the burden to prove an actual threat existed in order to protect the witnesses’ identities; the government submitted affidavits to the district court and it examined the two witnesses in camera, and concluded that "the threat to the witness [was] actual and not a result of conjecture." Defense counsel received details of these two witnesses prior to trial, so that they could be cross-examined without a threat to their safety. The Fourth Circuit did not find an abuse of discretion with the district court’s actions, as the witnesses were testifying only to background information on the internal workings of Central American gang activity, not Ramos-Cruz or his activities.

Finally, the search of Ramos-Cruz’s residence pursuant to warrant was held to have given the issuing judge sufficient facts upon which to provide a basis for determining the existence of probable cause. The Fourth Circuit did not disturb the district court’s decision here, considering the deferential standard of review given to the issuing judge’s finding of probable cause.

Tuesday, January 24, 2012

Selective prosecution claim fails

US v. Venable:  James Venable was charged with being a felon in possession of a firearm. Venable moved for discovery and to dismiss the indictment on a theory of selective prosecution, that he, an African American male, had been prosecuted for his race in violation of his Fifth Amendment right to Due Process, while two other individuals, both white, were not prosecuted for the same firearms. The district court denied Venable’s motions, and the Fourth Circuit affirmed.

Venable was prosecuted in a program known as Project Exile, a joint effort of the United States Attorney’s Office and the Richmond Commonwealth Attorney’s Office, which specifically targets convicted felons who possess guns, with the goal of reducing Richmond’s high rates of gun crime, federally. Basically, local law Virginia law enforcement officers will contact the U.S. Marshals whenever they encounter a gun; the U.S. Attorney’s Office will review the case and then determine whether to file federal criminal charges.

In making a selective prosecution claim, a defendant has a high burden, as the government is given wide discretion in its decisions to prosecute. A defendant must present clear evidence that the government has violated equal protection, and was motivated by a discriminatory purpose to adopt a prosecutorial policy with a discriminatory effect. To meet the burden, a defendant must show: 1) that similarly situated individuals of a different race were not prosecuted; and 2) the decision to prosecute was "invidious or in bad faith," as determined by the Fourth Circuit in United States v. Olvis, from 2006.

Here, the Fourth Circuit finds that similarly situated individuals are so only when prosecuted by the same sovereign; Venable’s case originally began in eastern Virginia, whereas the other two individuals involved in his case were prosecuted in state court in western Virginia. Project Exile solely applies in the Eastern District of Virginia. Of the nine factors from Olvis for determining whether the individuals in this case were similarly situated, the Fourth Circuit found that Venable was only able to establish one, to wit, that each of the three individuals were convicted felons not permitted to possess firearms; the Fourth Circuit concluded that these individuals were not similarly situated.

Next, the statistical evidence that Venables presented in support of the position that the prosecutors acted in bad faith, the Fourth Circuit did not find probative of discriminatory intent; holding, instead, that absent an appropriate basis for comparison, statistical evidence of racial disparity alone cannot establish any element of a discrimination claim.

Finally, the Fourth Circuit includes a gem of a footnote here regarding the disrespectful and uncivil language some attorneys, even government ones, have included to their own disservice in their briefs against district courts, parties, opposing counsel and witnesses, and cautions that such briefs "should be stricken from the files." Take heed.

4th Circuit abstains from intervening in court martial proceeding

Hennis v. Hemlick:  In this appeal, the Fourth Circuit upholds the Councilman abstention doctrine, against a petitioner pursuing habeas corpus relief in relation to a death penalty conviction handed down by a military court.

Hennis filed among other papers, a writ of habeas corpus, to appeal a district court’s decision not to reach the merits of his challenge to the Army’s exercise of court martial jurisdiction over him. The district court based its decision to abstain on Schlesinger v. Councilman, in which the Supreme Court held that federal courts should abstain from intervening in pending court martial proceedings and should require the exhaustion of remedies within the military justice system before collaterally reviewing cases.

The Fourth Circuit affirmed the district court, disagreeing with Hennis that his case had extraordinary facts sufficient to warrant any intrusion on the integrity of the military court processes.

Monday, January 23, 2012

Revocation of supervised release not equal to termination of the release

US v. Winfield:  A supervised release revocation sentencing here occurred over the course of two bifurcated hearings, the first part of which occurred in May 2010 dealing with the technical violations (i.e., charges not related to the commission of some state offenses during the appellant’s supervised release), and the second occurred in September 2010, following the resolution of the appellant’s substantive violations in state court.

At the May 2010 hearing, the district court imposed a 12-month sentence on Winfield for his technical violations, e.g. failing to follow his probation officer’s instructions, failing to work regularly, and twice testing positive for cocaine. Winfield’s probation officer had filed a petition for violations of the terms of Winfield’s supervised release in October 2009 on the technical violation behavior. The probation officer subsequently filed two amended petitions for revocation, the first for receiving a state court charge while he was on supervised release, and the second for failing to inform the probation officer of his arrest for the state court charge within 72 hours of his arrest. In the September 2010 hearing, the district court imposed a second 12-month sentence on the substantive violations, the state court convictions, for crimes committed while Winfield was on federal supervised release.

At issue is the definition of the term "revoke" under 18 U.S.C. § 3583(e) and whether an effective revocation of a term of supervised release also ends the court’s supervision over that release when the term has not yet expired. Based upon an unpublished 3rd Circuit case from 2007 and Supreme Court precedent, the Fourth Circuit here determined that because a revoked term of supervised release continues to have some effect post-revocation, a district court retains authority to alter a defendant’s punishment during a re-incarceration for supervised release violations. Moreover, a revocation of a term of supervised release, according to the Fourth Circuit, is not equivalent to a termination of the release and the revoked term remains in effect. Thus, a district court may hold bifurcated hearings based on a petition for revocation filed prior to the expiration of the term of supervised release, provided the individual is sentenced according to the Rules of Criminal Procedure, the court makes a finding of guilt by a preponderance of the evidence, and does not exceed the statutory maximum for re-incarceration.

Career offender enhancement principles warrant remand

United States v. Jones:  A husband and wife appeal their convictions for methamphetamine possession and conspiracy to distribute it. The couple’s convictions resulted from their conditional guilty pleas, which preserved their right to appeal the denial of pretrial motions to suppress. The Fourth Circuit upheld the denial of the motions to suppress, but vacated the husband’s sentence and remanded.

A burn victim at a hospital in North Carolina informed police that he received his injuries from a meth lab explosion at the defendants’ home. The police went to the home, but did not detect any evidence of a meth lab explosion. Mr. Jones spoke with police and denied knowing anything about the burn victim or alleged explosion. When the police were leaving the scene, one of the officers recalled that Mr. Jones may have had an outstanding warrant, and placed him, standing in his doorway, under arrest. Mrs. Jones objected to the arrest, but she did not obstruct the police.

The officers then decided to conduct a protective sweep of the Jones residence for officer safety. The police officers located a marijuana cigarette near where Mrs. Jones was sitting in the house, so they placed her under arrest for possession of marijuana. An officer remained at the residence after both Joneses were taken to the county sheriff’s office, in order to secure the residence until other officers could secure a search warrant. Later that day, pursuant to warrant, the police seized drug paraphernalia and a meth mixture.

In the hearing on defendants’ motion to suppress, the court concluded that the protective sweep of the Jones residence was constitutionally permissible under Maryland v. Buie. Subsequently, the couple entered their conditional guilty pleas to possession of meth, and conspiracy to manufacture and distribute it. At Mr. Jones’ sentencing, he objected to the determination in the PSR of his career offender enhancement, and both defendants objected to the amount of relevant drug conduct recommended by the PSRs.

Prior to oral argument in this appeal, the Fourth Circuit decided United States v. Simmons, in which the Fourth Circuit concluded that a conviction like Mr. Jones’ predicate conviction, one that was not punishable by more than one year in prison, does not qualify as a prior felony for the purposes of the career offender provision. So, the government conceded that Mr. Jones’s sentence was procedurally unreasonable and should be vacated and remanded, which the Fourth Circuit did here.

The protective sweep in question was found constitutionally permissible because the police reasonably believed that other individuals may have been present who presented a danger to them based on the following: surveillance of the residence, known drug users frequented the house, information that a fugitive from Georgia was staying there, and seven vehicles present at the scene despite assurances from Mr. and Mrs. Jones that they were alone.

Monday, January 09, 2012

As-applied challenge to Sect. 922(g)(8) shot down, too

US v. Chapman:  Similar to the Fourth Circuit's recent holding in United States v. Staten (see blog post  here), it upheld another portion of this statute against an as-applied challenge that it violates the Second Amendment right to bear arms in self-defense of the home. 

Chapman, subject to a domestic violence protective order, pleaded guilty to possessing several firearms in violation of that DVPO, following an incident with his ex-wife that began with his threats to commit suicide on December 28, 2009. Chapman’s DVPO was to last 180 days, not a lifelong prohibition. Prior to his guilty plea, Chapman filed a motion to dismiss the indictment on grounds that as-applied, the statute violated his Second Amendment rights to bear arms in defense of his home, which the district court rejected. Chapman reserved the right to appeal with respect to his Second Amendment challenge.

On appeal, the Fourth Circuit recognized the "core" of an individual’s Second Amendment right to be "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," from District of Columbia v. Heller, 554 U.S. 570 (2008), and employed a two-part approach to analyze Chapman’s as-applied challenge. In the first part, the court must inquire whether the law imposes a burden on conduct falling within the "historically understood" scope of the Second Amendment’s guarantee. If yes, then the court moves to part two; if no, the analysis ends. Here, the Fourth Circuit determined that even if Chapman’s Second Amendment rights were intact and that he was entitled to some protection to keep his guns for defense of his home, intermediate scrutiny will apply and his challenge will fail.

Relying on its 2010 opinion in United States v. Chester, the Fourth Circuit holds that intermediate scrutiny is the appropriate standard to analyze the defendant’s statutory challenge here, and decides that Chapman’s claim does not fall within the core right identified in Heller because he is neither responsible nor law-abiding: he likely committed domestic abuse (judicial determination); he engaged in behavior which caused him to be judicially prohibited for 180 days from causing or threatening to cause bodily injury to his partner; his suicidal thoughts and actions; and his discharge of the firearms in his ex-wife’s direction.

Under intermediate scrutiny, the government must establish a "reasonable fit" between the challenged statute and a substantial governmental objective. The government identified reducing domestic gun violence as the substantial objective behind this statute. Also, the statutory language, the Fourth Circuit explained, keeps the prohibitory sweep of people affected by the statute exceedingly narrow.

Wednesday, January 04, 2012

Knife Removal of Baggie from Penis Violates Fouth Amendment

US v. Edwards: Edwards was arrested late at night on a Baltimore street based on an allegation that he had earlier brandished a firearm. After his hands had been cuffed behind his back, an officer patted him down, finding neither a weapon nor contraband. After a van arrived to transport Edwards to the police station, the officers did another search. This time, one officer "pulled Edwards' pants and underwear six or seven inches away from his body" while another "directed a flashlight beam inside both the front and back of Edwards' underwear." The officers saw "a plastic sandwich baggie tied in a knot around Edwards' penis" that appeared to contain several smaller baggies indicative of drug trafficking. At this point, while one officer held the pants open, another "put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards' penis with the knife." Edwards was eventually charged with possession with intent to distribute crack. He unsuccessfully moved to have the crack suppressed, then entered a conditional guilty plea.

On appeal, the Fourth Circuit reversed the denial of the motion to suppress, 2-1. The court first held that the search that uncovered the baggie was a strip search, rejecting the Government's contention otherwise. Furthermore, the search fell into the category of "sexually invasive searches" which the Supreme Court addressed in Bell v. Wolfish, 441 US 520 (1979). Thus, among other things, the "manner in which the contraband is removed from a suspect" is a relevant consideration as to whether the search was reasonable. Looking to that issue, the court concluded that the officer's "use of a knife in cutting the sandwich baggie off Edwards' penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness." The court noted the lateness of the hour and that, in spite of needing a flashlight to find Edwards's stash, he did not use the light when actually removing it. The court also rejected the Government's argument that the nature of the underlying arrest (a firearm charge) justified the search. The application of the exclusionary rule in this situation, the court concluded, was "especially appropriate."

Judge Diaz dissented, arguing that the majority relies on the use of the knife alone to sink the search, which does not in and of itself render the search unreasonable.

Congrats to the FPD office in Maryland on the win!

Producing False ID Convicion Affirmed

US v. Jaensch: Jaensch was convicted of producing a false identification document that appeared to be issued under the authority of the US government, based on his presentment of an ID to a state court security official. Although, according to an expert witness from the State Department testified that "almost everything about [the ID] is wrong," Jaensch told investigators he used it to get through TSA checkpoints. He ordered it from a company in Florida. After his conviction (at a second trial - the first ended in a hung jury), Jaensch was fined and sentenced to probation.

On appeal, Jaensch challenged his conviction on numerous grounds, each of which the Fourth Circuit rejected. First, the court rejected the argument that the statute under which Jaensch was unconstitutionally vague because it does not define how one can tell whether the ID "appears to be" issued by the United States. Because the statute requires knowledge to sustain a conviction, there was no vagueness. Second, the court rejected the argument that the district court erred by instructing the jury that a "reasonable person standard" applied when determining whether the ID appeared to be issued by the United States. Third, the court rejected the argument that the district court erred by denying Jaensch's motion for an acquittal after the first jury hung.

Court's Guideline Findings Not Clear Enough for Review

US v. Bell: Bell, who suffers from numerous maladies, was a patient at a pain management clinic in Tennessee who was prescribed large amounts of Oxycontin. Although complying with the controls of the clinic to ensure no improper use of the pills, Bell was taking some of the pills she received to Virginia, where she distributed them along with her codefendant, Gibson (at whose home the transactions took place). Following a series of controlled buys and a search of the home, Bell and Gibson were charged with a pleaded guilty to several drug offenses. At sentencing, the main issue was the amount of relevant conduct attributable to Bell and Gibson. Although Bell had been prescribed the equivalent of 4695 40-mg Oxycontin pills during the relevant time, she argued that she used many of the pills prescribed as intended and distributed only the equivalent of 888 40-mg pills. At sentencing, several witnesses testified about Bell and Gibson's distribution scheme. The district court rejected Bell's claim that the amount of relevant conduct should be reduced based on what she used herself on legal grounds, but concluded that the testimony had "obvious discrepancies" and reduced the relevant conduct amount to the equivalent of 2612 40-mg pills. Both Bell and Gibson were then sentenced within the resulting advisory Guideline ranges.

On appeal, the Fourth Circuit vacated the sentences and remanded for resentencing. The court drew a distinction between relevant conduct determinations involving Schedule I drugs, with no recognized medical use, and all others, noting that the key issue when determining relevant conduct is the defendant's illegal conduct. Drugs obtained and used legally, therefore, cannot necessarily be included simply because the defendant once possessed them. In this particular case, the court concluded, the district court's findings were not explained with enough sufficiency to allow for meaningful appellate review. The court rejected the Government's attempts to divine the basis for the district court's findings ex post. It also rejected the Government's contention that anyone who sells a majority of pills prescribed to them to others lacks the medical need to make their possession of the pills legal.

There is some interesting positioning by the panel with regards to the burden of proof. In footnote 8 of the opinion, it states that the Government ultimately bears the burden of proving relevant conduct, even though it may be difficult to do so in cases like this. However, that footnote expresses only the view of Judge Davis. In a brief concurrence, Judge Hamilton (joined by Judge Floyd) does not embrace footnote 8 and notes that the defendant bears some burden to bring forth evidence of personal use.

Congrats to the WDVA FPD office on the win!

No Crawford Issue With Supervisor Testimony About DNA

US v. Summers: Summers and another man were standing on a Baltimore street corner when approached by a police officer. They ran. When the officer first approached Summers, Summers was wearing a black jacket, but he was not wearing it when apprehended shortly thereafter. A jacket was found "atop one of the houses along Summers's flight path" which contained a firearm, ammunition, and cocaine. As a result, Summers was charged with various gun and drug offenses. At trial, officers identified the jacket (with varying degrees of certainty) as the one Summers was wearing. In addition, DNA evidence linked Summers to the jacket, although there was a gap in the chain of custody between the officer who seized the jacket and its contents at the scene and the lab where the testing was done. Summers was convicted of possession with intent to distribute crack and being a felon in possession of a firearm and sentenced to 262 months in prison.

On appeal, Summers argued that the manner in which the DNA evidence about the jacket was produced at trial - via testimony only of supervisor at the lab that did the testing, rather than those who actually handled and tested the jacket - violated the Confrontation Clause. The Fourth Circuit rejected his arguments and affirmed the convictions. With regards to the chain of custody of the jacket at the lab, the court noted that the evidence about that issue was introduced by Summers, not the prosecution, and thus there was no confrontation issues. Similarly, the district court did not err by admitting the jacket itself into evidence, regardless of any chain of custody issues, because it was identified by witnesses as the one Summers had been wearing that night. With regards to the supervisor's testimony, the court concluded that his testimony was admissible because, although subordinates did the testing underlying his opinion, the opinion itself was "original product" of his own analysis and he was not merely passing on information from others.

Judge Floyd concurred in the result, but not the reasoning, and would rested the decision on the conclusion that any Confrontation Clause error was harmless, thus avoiding the "thorny issue" resolved by the court.

Leon Saves Search Warrant Without Nexus Between Suspect, Home

US v. McKenzie-Gude: The aunt of McKenzie-Gude's friend Yevsukov alerted police that McKenzie-Gude had brought an AK-47 (which was registered to McKenzie-Gude's father) and various chemicals to her home. She also alleged that McKenzie-Gude and Yevsukov were "constantly" discussing weapons and explosives, providing police with "data sheets" about the chemicals, as well as other information. Police talked with Yevsukov, who denied that McKenzie-Gude brought the gun to the aunt's home. McKenzie-Gude refused to talk to police. Based on the aunt's information, a state police officer and fire marshal obtained a warrant to search the home McKenzie-Gude shared with his father, although it failed to state that either of them actually lived there. The search uncovered evidence that led to McKenzie-Gude being charged with possession of a firearm not registered to him. After an unsuccessful suppression motion, McKenzie-Gude entered a conditional guilty plea and was sentenced to 61 months in prison.

On appeal, McKenzie-Gude challenged both his conviction and sentence. As to the conviction, he renewed his argument that the evidence seized from his home should have been suppressed. The Government conceded that the warrant was defective because the affidavit did not link McKenzie-Gude to the residence to be searched, but argued that the Leon good-faith exception saved the evidence from suppression. Specifically, it argued that the officers acted with "objective reasonableness" because they had evidence that McKenzie-Gude lived at the house even if it was not in the warrant application. The court agreed that such evidence could be considered and concluded that the officers who executed the warrant, who also obtained it, acted in good faith. The court also rejected McKenzie-Gude's argument that he was entitled to a Franks hearing based on either inaccuracies in the warrant application or omissions from it. As to McKenzie-Gude's sentence, the court rejected (after brief discussions) each of his three factual challenges to the district court's Guideline calculations.