Friday, January 18, 2013

Can reasonable suspicion arise in 5-10 seconds?

US v. Bumpers:   According to his testimony, a police officer in a high crime neighborhood observed two men, standing, for approximately five to ten seconds near some dumpsters at the back of local convenience store before attempting to leave at the sight of the police, when that officer determined that reasonable suspicion for the crime of trespassing had arisen. Additionally, the store had posted "No Trespassing" signs and alerted the police to enforce the store’s no trespassing policy.

Irvin Bumpers initially gave the police a false first name when asked for his identification by police; that name had an active warrant, so he gave his actual first name, which also returned an active warrant. Upon arrest, the police discovered a firearm on Bumpers. Prior to trial, Bumpers moved to suppress the firearm, but failed in his efforts. He was convicted at trial of being a felon in possession.

On appeal, the Fourth Circuit reviewed the district court’s decision to deny the motion to suppress. It referred to this case as a close call, but because only an investigative stop was at issue, not a frisk or an arrest the Fourth Circuit found there was sufficient reasonable suspicion based on the facts of this case. The cogent dissent finds otherwise, stating that "[p]ermitting a Terry stop under these tenuous circumstances fails to prevent a substantial portion of innocent travelers in high-crime areas from being subjected to what the majority concedes can be a degrading and unwarranted intrusion."

Wednesday, January 16, 2013

Bank teller's questioning held unnecessarily suggestive, should not have been admitted, though did not affect robbery defendant's substantial rights

US v. Greene:  Deshawn Greene received convictions for armed bank robbery and brandishing a firearm during and in relation to a crime of violence, and he appealed his convictions on two grounds: 1) whether the district court erred in admitting a bank teller’s testimony; and 2) whether the district court erred in failing to provide a Holley-Telfaire instruction to the jury.  Regarding both issues, the Fourth Circuit conducted plain error review, as defense counsel did not object at trial to the identification testimony from the bank teller, or the lack of Holley-Telfaire instruction.  The Fourth Circuit, though it was a close case on the first issue, ultimately affirmed the convictions.

First, the bank teller’s questioning consisted of the prosecutor drawing the teller’s attention directly to Greene at trial, and instructing to the her to tell the jury what similarities existed between Greene and the bank robber.  The district court permitted this identification testimony.  In contrast, the Fourth Circuit found this questioning unnecessarily suggestive, exactly the sort of questioning it had previously warned against, where the phrasing of the question suggests the desired response.

The Fourth Circuit next considered whether the teller’s testimony was reliable, and after analyzing the five factors for reliability, found that it was not: the teller’s attention at the time of the offense was greatly diminished due to her fear and having a gun pointed at her head, she did not state that the defendant was the bank robber, and seventeen months had passed between the robbery and trial, and she was not asked once during that time to view a line-up, photo array, or assist a police artist in sketching the suspect.  Since the questioning was overly suggestive, and the teller’s testimony was unreliable, the Fourth Circuit found it was plain error by the district court to admit this testimony.

The admission of the bank teller’s testimony, however, did not affect Greene’s substantial rights, according to the Fourth Circuit, as Greene’s accomplice testified directly to Greene’s involvement in the robbery.  Lear, a known crack addict, had been subjected to “piercing” cross examination, and the jury was apparently aware of any credibility issues he may have presented.  The Fourth Circuit declined to grant Greene relief on the basis of plain error.

Second, Greene argued that the district court erred in failing to issue a Holley-Telfaire instruction to the jury.  This instruction advises the jury on how to appraise a witness’s identification testimony, and the defense did not request this instruction at trial.  The Fourth Circuit held that this instruction was not required as there was independent evidence (i.e., Lear’s testimony) that Greene participated in the robbery.

Monday, January 14, 2013

Second conviction upheld despite Simmons

US v. Ford:   Here, the Fourth Circuit considers the second conviction of Harold Ford for being a felon in possession of a firearm.  Originally convicted for this offense in 2009, Ford’s conviction was reversed and remanded following his trial, due to a change in the law arising from United State v. Simmons from 2011.  Upon remand, the district court convicted Ford a second time, and he appealed on double jeopardy grounds, but the Fourth Circuit found no error in his second conviction. 

In his first conviction for this offense, the government introduced evidence of Ford’s earlier state conviction for felony PWID marijuana, for which Ford received an 8-10 month prison sentence.  With his prior criminal record, Ford could not have been sentenced to more than 12 months for the marijuana offense, even though someone with a more serious criminal history could have been sentenced for the same offense to up to 15 months (under North Carolina’s structured sentencing laws then in effect).    Ford appealed, and the Fourth Circuit held his appeal in abeyance pending Simmons.  Following Simmons, the Fourth Circuit reversed Ford’s conviction and remanded the case; however, in Ford’s second trial, the government introduced additional previous convictions of Ford’s, each of which was for a crime “indisputably” punishable by more than one year in prison (aggravated assault and assault with a deadly weapon inflicting serious injury from 1973, and selling controlled substances and possession with intent to sell and deliver a controlled substance from 1983). 
The Fourth Circuit has held that the Double Jeopardy Clause “forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding,” but, the Double Jeopardy Clause “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside…because of some error in the proceedings leading to conviction.”  Moreover, it has held that when a conviction is reversed because of a post-trial changed in the law, a second trial is permitted. 

Fictional crime leads to real life convictions

US v. Min, et al.: Saraeun Min participated with several others in a conspiracy to steal drugs from the stash house of a drug cartel in Virginia.  Little did the members of the conspiracy realize, the drugs and stash house were fictions developed by the ATF to trap Min’s co-defendant Phun and his crew.  When the police revealed themselves to the crew, most of whom had gathered, ready to participate in the robbery, only Min waived his Miranda rights and confessed to the police officers his involvement in the conspiracy.

At trial, each of the other members of the conspiracy desired to have their joint trial severed from Min’s.  The Fourth Circuit has held admissible a co-defendant’s redacted statement that referred to the existence of another person through neutral phrases, e.g. “another person,” or “another individual.”  The district court determined that Min’s redacted confession did not implicate any one defendant in particular, nor did it leave the jury to fill in any obvious blanks:  it did not facially incriminate any other defendant.  The Fourth Circuit held that the district court did not abuse its discretion in denying the defendants’ motion to sever. 
On appeal, the defendants also made an impossibility argument, that the fictional nature of the premise of the stash house robbery should be a defense to their conspiracy charges, rendering the evidence against them insufficient.  The district court declined to permit the defendants from arguing impossibility during closing argument, and they challenge the exclusion of impossibility from the jury instructions.  The Fourth Circuit concluded here that factual impossibility is not a defense to conspiracy.
Additionally, defendants argued that the district court erred in permitting one of the case detectives to testify at trial about a conversation between the detective and Phun, the crew leader.  The detective testified as to what he personally understood Phun meant in the conversation, which the Fourth Circuit decided was rationally based on the detective’s knowledge, the context, and the detective’s past conversations with Phun, meeting the requirements of Federal Rule of Evidence 701 on lay witness opinion testimony.  The Fourth Circuit held that the district court properly admitted this testimony.
Finally, the district court corrected an error in the verdict form during the jury’s deliberation, and Phun argued that this constituted reversible error, improperly influencing the jury.  The Fourth Circuit determined that the defendants could not identify how the jury had been improperly influenced by the correction of a typo, and that if any error did occur, it was harmless.  The district court’s judgment was affirmed. 

Mandate Rule prevents district court from considering restitution award in case on remand

US v. Pileggi:   In this appeal, the Fourth Circuit considers whether the district court had the authority to reconsider a restitution award in a remanded case.  Previously, in a companion, unpublished opinion, the Fourth Circuit determined that the district court erred in sentencing the defendant, Giuseppe Pileggi, to 50 years of imprisonment for his role in a fraudulent sweepstakes scheme.   The Fourth Circuit here determined that the district court lacked authority to reconsider the amount of restitution on remand, and reinstated the district court’s original restitution amount ($4,274,078.40). 

Pileggi argued that the Fourth Circuit’s mandate to the district court remanded the case solely to correct the prison sentence (the district court reduced the 50-year sentence to 25 years) that allegedly violated the extradition agreement the government made with Costa Rica, where the sweepstakes scheme was operated; the restitution amount was not addressed in the direct appeal.   The Fourth Circuit “unhesitatingly conclude[d]” that the mandate rule barred the district court from reconsidering the restitution order on remand. 

Friday, January 11, 2013

Convenience store clerk's arrest held unlawful

US v. Watson:   Prentiss Watson worked at a convenience store in downtown Baltimore, downstairs in the same building where he rented a room. In February 2010, detectives conducting surveillance on the building observed some other individuals engaging in drug transactions near the building on Tivoly Avenue, and arrested them. One of these individuals, Anthony Jackson, the police had observed entering and exiting the building where Prentiss worked, during the course of a drug transaction. Additionally, officers had reason to believe Mr. Jackson was carrying a gun at the time of this transaction. After arresting Jackson, police obtained a search warrant for the entire building. Officers entered the building to secure it and all individuals inside, including Mr. Watson. The detention of Mr. Watson and Keta Steele, owner of the store, neither of whom had been observed engaging in the drug transactions, lasted over three hours, and they were forced to remain in a back area of the store while police obtained their warrant. Upon execution of the warrant, a revolver and some ammunition was found on the same floor as Mr. Watson’s room, but in a separate area from Mr. Watson’s room and belongings. Police questioned Mr. Watson about the revolver, and he made the incriminating statement, "that old thing, it doesn’t even work."

The government charged Mr. Watson with being a felon in possession of a firearm and ammunition. Mr. Watson moved to suppress his statement on Fourth Amendment grounds and failed in his efforts. Mr. Watson went to trial and a jury convicted him on both counts. On appeal, the Fourth Circuit vacated Mr. Watson’s conviction, finding that on the unique facts presented here, that the police seizure of Mr. Watson violated his Fourth Amendment rights. In conducting its reasonableness review, the Fourth Circuit ultimately determined that the seizure was illegal, and Mr. Watson’s incriminating statement should have been suppressed. The government conceded that Mr. Watson was "seized," and that there was no probable cause to detain him. The Fourth Circuit considered the governmental objectives, i.e. preserving evidence and officer safety, and the Fourth Circuit determined that neither interest was implicated here to justify the unlawful custodial arrest that occurred. The length of the detention here seemed downplayed as a basis for finding the seizure illegal; rather, the fact that there was no probable cause for the detention, and no link between Mr. Watson and the criminal activity observed by the police that aided Mr. Watson in his appeal.