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.