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.