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.

2nd Degree Murder conviction affirmed

US v. DeLeon:  A jury convicted DeLeon of the second-degree murder and assault of his 8-year-old step-son. In this appeal, DeLeon raised five issues for review: whether the district court erred in 1) admitting a social worker’s hearsay testimony in violation of DeLeon’s 6th Amendment right to confrontation; 2) admitting hearsay testimony of a social worker, a Japanese woman who encountered the boy in the street, and DeLeon’s step-daughter in violation of the rules of evidence; 3) limiting the defense expert’s testimony; 4) admitting under 404(b) DeLeon’s prior acts of physical punishment of his step-children; and 5) treating the age of the boy as a sentencing factor to be determined by the court, not the jury.

The boy, Jordan, died of internal injuries that resulted from blunt force trauma. Five months prior to Jordan’s death, the family met with a social worker to deal with suspected child abuse in the family home. The social worker had several subsequent meetings with Jordan and the family to provide counseling, but to no avail. No one could testify to witnessing the specific acts that caused Jordan’s injuries, so the case was entirely circumstantial. Additionally, Jordan’s younger sister later recanted the statements she made to police in investigations shortly after Jordan’s death, which described a history of child abuse. Many of the admissions that DeLeon objected to at trial were statements detailing the abuse Jordan suffered.

DeLeon’s first constitutional claim, that the admission of the social worker’s hearsay testimony violated his 6th Amendment right to confrontation, failed because the statements Jordan made to the social worker were made during a course of therapy for the purposes of developing a plan of treatment, and thus, the statements were not made in anticipation of a criminal action or investigation, nor were the statements testimonial.

DeLeon’s other constitutional claim, that his 6th Amendment rights were violated by the imposing of a mandatory minimum sentence based on Jordan’s age, which was not a question of fact put to the jury. The Fourth Circuit concluded that under the statute governing DeLeon’s second degree murder conviction, 18 U.S.C. § 3559(f)(1), age is a sentencing factor rather than an element of the crime. Additionally, the age of the victim is not a characteristic of the offender, so legal tradition supports the conclusion that age is a sentencing factor.

Community Caretaking Function: another exception to the warrant requirement?

US v. Laudermilt:  In this appeal, the Fourth Circuit reversed and remanded the district court’s decision to grant the defendant’s motion to suppress; the government filed this interlocutory appeal. The defendant, Laudermilt, was indicted for being a felon in possession. Defendant argued that the police seized the gun during an illegally protracted protective sweep. The district court believed that the police exceeded the proper scope of a legal protective sweep and granted the defendant’s motion to suppress.

The Fourth Circuit analyzed the facts here, and decided that the district court got it wrong, finding that the police had a community caretaking function which permitted them to remain in the residence without a warrant while the protective sweep was ongoing, and after it concluded. The weapon was found after the police returned the defendant’s fourteen-year-old brother to the kitchen from outside where the defendant had been taken into custody, and questioned the teenager as to the location of the firearm. The Fourth Circuit concluded that the officers’ actions here were consistent with the Fourth Amendment.

DISCLAIMER: the author of this blog post is also counsel in this case.

Monday, May 14, 2012

Procedural error in sentencing; insufficient fact findings

US v. E. Davis:  The appellant, Davis, pleaded guilty to being a felon in possession in ammunition, and had been sentenced with a cross-reference to the robbery sentencing guideline. Previously, Davis had pleaded "no contest" in North Carolina to a robbery charge in a related, state court prosecution. In this appeal, Davis challenges the application of the robbery advisory sentencing guideline, as insufficient evidence supported the cross-reference. The Fourth Circuit vacated and remanded the district court’s sentence because the district court failed to resolve a factual dispute in its application of the robbery guideline, thus appellate review was constrained.

The Fourth Circuit found that the correct application of the guidelines hinges on factual determinations to be made by the district court. Here, there were two plausible factual scenarios on the record which could have explained how a cell phone came into Davis’s possession; the manner in which Davis came to possess the cell phone is key to the correct guideline application. The Fourth Circuit held that Davis’s "no contest" plea to common law robbery could not provide the necessary evidentiary basis for the robbery guideline cross-reference application.

The Fourth Circuit sends the case back to the district court to determine whether the government has met its burden of proof, and whether the robbery cross-reference should legitimately apply in this case.

Initial encounter found not consensual

US v. F. Jones:  In this appeal, the Fourth Circuit considered the denial of a motion to suppress evidence seized as a result of a traffic stop in a "high crime neighborhood" and reversed, reasoning that the initial encounter was not consensual and infringed the appellant’s Fourth Amendment rights.

The Fourth Circuit distinguished this case from other police-citizen encounters, as the citizen here knew that police officers were conspicuously following him, rather than a case where a citizen was unaware of any police presence, and is approached by officers seemingly at random. This case lacked a "traditional hallmark of a police-citizen consensual encounter: the seemingly routine approach of the police officer." This was involved a targeted vehicle, and the police blocked the vehicle’s only exit from the scene of the encounter with a police cruiser, without having observed any traffic violations. Jones, an African American, was simply driving a vehicle with New York tags in Richmond, with three other African American men in the car with him, observed by a police officer who "thought that that vehicle did not belong there and that the people in the vehicle didn’t belong there."

The Fourth Circuit believed that the totality of the circumstances in this case would suggest to a reasonable person in Jones’ position, that the officers suspected him of illegal activity in a "high crime area," that he was a target, and that he was not free to leave or walk away. The panel concluded that the officers detained Jones before having any legal justification to do so.

Way to go, FPD in Richmond!

Friday, May 11, 2012

Proper factors for consideration when determining the extent of a sentencing reduction

US v. D. Davis:  In this appeal, the appellant challenges the district court's decision to grant the government's Rule 35(b) motion for sentence reduction, for considering other factors than his substantial assistance in determining the extent of the reduction.  The factors the district court considered included the appellant's offense of conviction, his criminal history, and a prior reduction in his guidelines range following the government's 5K1.1 motion.  The Fourth Circuit affirmed the district court's judgment. 

After determining whether the Fourth Circuit had jurisdiction to hear the appeal in the affirmative, the panel considered whether the district court committed any error in considering factors other than the appellant's cooperation with the police in fashioning his sentence reduction following the decision to grant the government's Rule 35(b) motion.  The Fourth Circuit distinguishes this case from others it has decided on what factors to consider in analyzing whether to grant a Rule 35(b) motion; in those cases, the Fourth Circuit has stated that district courts may not consider any factor other than the defendant's substantial assistance to the government.  Here, the Fourth Circuit determines that the district court is not so limited, based on the plain language of Rule 35(b) and the explicit holdings of several other circuits in agreement. 

Quantum of evidence for drug conspiracy

US v. Edmonds:   A jury convicted Edmonds of a single conspiracy count to traffic more than 50 grams of crack, and three counts of crack distribution. This appellant challenged the jury’s findings that he participated in a drug conspiracy, in addition to two sentencing challenges. The Fourth Circuit affirmed.

According to the Fourth Circuit, conspiracy is proved by demonstrating agreement or understanding between two or more persons to commit an offense. Additionally, when the conspiracy involves the sale of cocaine, a conspiracy to commit the distribution of cocaine must involve an agreement separate from the distribution conduct that is the object of the conspiracy. If the drug transaction includes in addition to the bare agreement inherent in a sale, an agreement that the buyer will resell the cocaine in the marketplace, the two participants to the distribution transaction have also "conspired" to the redistribution of cocaine, and thus, they can be guilty of the distribution offense, and a conspiracy offense.

The government does not need to prove an explicit agreement occurred. Some types of indirect evidence that will suffice for a conviction include the amount of cocaine involved in a transaction; the regularity of drug transactions between two parties; the "fronting" of drugs for payment later, which implied a sort of credit arrangement; and essentially any agreement made in addition to or beyond a simple buy-sell transaction can be used to infer a conspiratorial relationship. The agreement which forms a conspiracy, however, cannot exist between an individual and a government agent.

Here, the statements the appellant made during several controlled purchases conducted in this case were used to establish the conspiracy, especially his comment, "you know me." 

Tuesday, May 01, 2012

Convictions, Life Sentence, Affirmed in MS-13 Prosecution

US v. Palacios: Palacios was a member of MS-13 and was involved in planning the murder of a friend of the gang who was "fraternizing with rival gang members."  As a result, he was charged with (among other things) conspiracy to participate in a racketeering enterprise, conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, use of a firearm in relation to a crime of violence, and murder resulting from that use of a firearm.  He was convicted on those charges after a jury trial and sentenced to life in prison, plus a consecutive term of 240 months.

On appeal, Palacios raised several arguments challenging his convictions, all of which the Fourth Circuit rejected.  First, Palacios argued that the testimony of a police officer as an expert witness on MS-13 violated his right to confront witnesses against him.  Relying on prior precedent (involving the same officer, no less) the court held that the testimony did not run afoul of the Confrontation Clause, even if it was based on interviews that would have constituted testimonial statements subject to the Clause under Crawford.  Second, the court rejected Palacios's argument that the Government introduced prior bad act evidence without proper notice under FRE 404(b), concluding that the evidence was not actually governed by FRE 404(b) because it involved the acts charged in the indictment itself, not acts committed beforehand.  The court also concluded that no other authority (including a pretrial discovery agreement between the parties) compelled its disclosure before trial.  Third, Palacios argued that the district court erred by admitting the testimony of his cellmate without prior notice from the Government.  The court disagreed, holding that the disclosure requirement of Rule 16(a)(1)(A) applies only to statements made in response to state interrogation and did not include the cellmate (even if he had already signed a plea agreement and was looking to cooperate).  Finally, the court rejected Palacios's arguments that there was insufficient evidence to sustain his convictions, particularly as to whether MS-13 was an "enterprise" and the murder in aid of racketeering conviction.