Tuesday, February 26, 2013

Another Strong Affirmation of the Fourth Amendment's Vitality

US v. Black: Two officers in Charlotte saw a car parked at a gas pump in a convenience store parking lot and thought it suspicious, as the driver sat inside for several minutes before driving off.  They followed the car, which parked in a parking lot between two apartment complexes.  A computer check on the car returned nothing suspicious.  The driver, Troupe, parked and joined a group of five other men, including Black, standing and talking in the parking lot.  After calling for backup, in order to make "voluntary contact," the officers approached the men, one of whom an officer recognized from prior arrests.  When he saw officers approaching, Troupe pointed to the openly-carried gun in a holster on his hip.  An officer seized the gun (even though open carry is legal in North Carolina - the officer "had never seen anyone do it") and then, based on the theory that when one gun is present another is also, officers began frisking the other men.

When another officer began talking to the men Black voluntarily provided his ID, which the officer thought suspicious because the other men were "argumentative and did not give any information."  It showed that he living in another part of Charlotte.  He told the officer he was visiting friends.  The officer kept Black's ID and "pinned it to his uniform" while questioning the others.  Another officer described Black as "extremely cooperative."  While the others were being frisked, Black was seen leaning forward on the edge of his seat and looking left and right, which officers interpreted as him looking for an escape route.  Black got up and started to leave, but was told he wasn't free to go.  He walked away anyway, until an officer grabbed his bicep (and felt his "'extremely fast' pulse through Black's t-shirt").  A struggle ensued, during which Black was placed in handcuffs and a firearm was recovered from Black.  He was charged with being a felon in possession of a firearm.  His motion to suppress was denied, Black entered a conditional guilty plea, and he was sentenced to 180 months in prison.

On appeal, the Fourth Circuit reversed the district court's denial of Black's motion to suppress.  The court first concluded that Black had been seized (for Fourth Amendment purposes) prior to the officer's statement that he was not free to leave, due to a combination of factors including the "collective show of authority" of the officers, the fact that Troupe's firearm had been seized and that he, at least, was not free to leave, and the retention of Black's ID.  Thus Black was seized at the point his ID was pinned to an officer's uniform and another officer began frisking everyone on the scene.  The court also noted that, although it did not resolve the issue, it "doubted that this encounter was consensual at its inception."  The court then concluded that the totality of circumstances at the time of the seizure (which didn't include Black's looking left and right or his attempt to leave the area) did not support reasonable suspicion to support a seizure.  The court called this case "yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot be rationally relied on to establish reasonable suspicion."  In conclusion, the court said:
The facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic. In the words of Dr. Martin Luther King, Jr., we are reminded that 'we are tied together in a single garment of destiny, caught in an inescapable network of mutuality,' that our individual freedom is inextricably bound to the freedom of others. Thus, we must ensure that the Fourth Amendment rights of all individuals are protected.
Congrats to the Western District of NC defender office on the win!

Wednesday, February 20, 2013

No Evacuation, No Exigent Circumstances

US v. Yengel: Officers were called to Yengel's home during a domestic dispute.  He was arrested without incident outside the home, although he was upset and agitated.  Notably, he wasn't armed.  Yengel's wife told officers that there were guns in the house as well as a grenade in a locked closet in an upstairs bedroom.  Officers seized the guns.  As for the grenade, the wife showed an officer the closet in which it was kept, which was locked with both an electronic keypad and thumbprint scanner.  Yengel's wife didn't know the combination and lacked the correct thumbprint to open it.  After several hours the door was pried open and the "grenade" - actually a collection of gunpowder and other materials that could be assembled into a "firearm" - was seized.  All this was done without a warrant and without the house being evacuated, including leaving Yengel's sleeping infant son remain in the bedroom next to the one with the "grenade."

Yengel was charged with possession of an unregistered firearm (the "grenade").  He moved to suppress that evidence, arguing that the seizure was done without a warrant and not pursuant to any of the recognized exceptions to the warrant requirement.  The district court agreed, concluding that exigent circumstances weren't present when the closet door was pried open.  On a Government appeal the Fourth Circuit agreed and affirmed the suppression.  Noting that the person making the entry/search in an exigent circumstances case must objectively believe that such an exigency exists, the court concluded that the officer's actions showed he did not have such an objective belief.  Most notably, in spite of being in pursuit of an explosive device, the officer did not clear the house or the surrounding area before attempting to retrieve it.

Congrats to defender office in the ED Virginia on the win!  Both of 'em!

Wednesday, February 13, 2013

Recorded Statements By Cellmate Violate Fifth Amendment, But Harmlessly

US v. Holness: Holness and his wife were driving from her home in New York to his in Maryland (it was a "marriage of convenience," according to the court) when they were allegedly set upon by a carjacker.  As a result, Holness wound up dazed, wet, and bloody on the porch of a stranger's house and his wife lay dead in a field, stabbed to death.  After initial investigation cast doubt on Holness's carjacking story he was arrested by Maryland authorities and charged with murder.  While Holness was in custody his cellmate contacted police with information about the killing.  Eventually, the cellmate was given a recording device that he used while assisting Holness in writing a letter (never actually sent) to a local newspaper that was to have been written by the alleged carjacker.

For reasons that are unclear from the opinion, Holness was charged in federal court with interstate domestic violence, attempted witness intimidation, and two other offenses.  Prior to trial he sought to exclude any statements he made to his cellmate and any evidence obtained as a result of those statements.  The motion was denied and the cellmate testified at trial, relating for the first time that Holness told him where he had disposed of the murder weapon.  Holness was convicted of the domestic violence and witness intimidation charges and sentenced to life in prison.

On appeal, Holness challenged his convictions, arguing that the police's use of his cellmate to gather information on him was done after he had been appointed counsel on the state murder charge and therefore violated his Sixth Amendment right to counsel.  The Fourth Circuit disagreed, finding that there was no Sixth Amendment issue in the federal prosecution because at the time of the statements Holness had only been charged in state court.  Noting that the Sixth Amendment right to counsel is "offense specific," the court concluded that the federal charges were different from the state charges.  The court rejected Holness's argument under Elkins that the state should not be allowed to collude with the federal government to avoid the ramifications of their potentially unconstitutional acts.

However, the Fourth Circuit did conclude that, while the Sixth Amendment was not implicated by the use of the cellmate's statements, the Fifth Amendment's protections against self incrimination may have been violated.  Because the issue "fairly arises from the face of the record" the court addressed it as well, even though Holness had not raised the issue.  The court noted that, although the Sixth Amendment right to counsel is offense specific, the Fifth Amendment protections are not.  Ultimately, the court assumed (rather than remand for factual findings) that Holness's Fifth Amendment rights were violated, but found the violation to be harmless error beyond a reasonable doubt.

No coram nobis for Skilling Error

Bereano v. US: Bereano was charged in 1994 with multiple counts of mail fraud stemming from practices at his law firm and lobbying firm.  At the time, jurors were instructed that he could be convicted under either the "pecuniary fraud" theory or the "honest services fraud" theory.  Their verdict, finding him guilty on seven counts, did not specify which theory the jury relied on for each count.  Bereano's convictions were affirmed on appeal and he "has long since served his sentence and paid his fine."  In 2011, Bereano filed a petition for a writ of coram nobis, arguing that his convictions should be vacated in light of the Supreme Court's Skilling decision in 2010, in which the Court held that the "honest services fraud" theory was limited to schemes involving bribery and kickbacks.  The district court denied Bereano's petition, concluding that any error was harmless beyond a reasonable doubt because Bereano was charged under both theories.

On appeal, the Fourth Circuit affirmed the district court's dismissal.  Analyzing whether the Skilling error was "of the most fundamental character," the court looked to whether Bereano would have prevailed on a direct appeal of his convictions if the appeal occurred after Skilling had been decided.  Although a verdict resting on multiple theories should be set aside when one theory is no longer valid and it is impossible to tell upon which theory the jury relied, harmless error analysis still applies.  Particularly, the court looks to determine the evidence credited by the jury and whether that evidence would support a conviction on the legally valid theory.  Applying that analysis, the court concluded that the Government at Bereano's trial "presented overwhelming evidence that he schemed to commit pecuniary fraud."  Thus, the error was harmless and the district court correctly dismissed Bereano's petition for a writ of coram nobis.

Recorded Lunch Conversation Poses No Sixth, Fifth Amendment Problems

US v. Williamson: Williamson was charged in an indictment with conspiracy to distribute more than five kilograms of cocaine.  Following the indictment, but prior to Williamson's arrest, one of his associates, Alberty, contacted investigators offering to cooperate.  Agents sent Alberty to a previously scheduled lunch meeting with Williamson and recorded their conversation.  Williamson was arrested months later.  At trial, the Government introduced the recording as evidence (in addition to the testimony of two codefendants and three other coconspirators) and Williamson was convicted.  He was sentenced to life in prison.

Williamson's conviction and sentence were initially affirmed on appeal when the Fourth Circuit found that it was not plain error to introduce the recorded conversation, even though it was made without counsel present following the return of an indictment.  However, when Williamson sought cert from the Supreme Court, the Government shifted gears and admitted it was plain error, although one that should not be noticed.  The Supreme Court remanded.  The Fourth Circuit than held that issue in abeyance and remanded to the district court for consideration of whether the use of the recorded conversation violated the Fifth Amendment as well.  The district court found no problem, holding that Williamson's statement was given voluntarily.  Along the way, Williamson filed a motion for a new trial based on newly discovered evidence, which the district court denied without appointed counsel.

The Fourth Circuit dealt with all three issues - the Sixth Amendment, due process, and new trial - in a single consolidated appeal, in which it again affirmed Williamson's conviction and sentence.  On the Sixth Amendment issue (the "most enduring issue," according to the court), the court accepted the Government's confessing that the use of the recording was error and that it was plain, but concluded that it did not affect Williamson's substantial rights by altering the outcome of the trial.  The court cataloged the other evidence against Williamson and concluded that while the conversation was "surely damaging, Williamson has not shown that its absence would alter the outcome of his trial."  On the Fifth Amendment issue, the court concluded that Williamson's statement was not the product of compulsion or coercion, noting that Williamson was unaware that Alberty was working with law enforcement and that Alberty's only instructions were to "put on a wire and have lunch."  Finally, on the motion for a new trial issue, the court concluded that Williamson's motion, filed while appellate proceeding were underway, was a collateral proceeding at which he had no right to counsel.  Therefore, it affirmed the district court's dismissal.

Tuesday, February 12, 2013

No 1st Amendment or common law right to access documents

In re:  Application of the United States of America for an Order Pursuant to 18 U.S.C. Sect. 2703(d), US v. Appelbaum, et al.:  In this case, the Fourth Circuit considers orders issued by a magistrate judge under the Stored Communications Act ("SCA"), 18 U.S.C. § 2703, requested by the Government, directed to Twitter, Inc., to disclose records of electronic communications relevant to the ongoing criminal investigation surrounding Wikileaks.org and U.S. Army Private First Class Bradley E. Manning. Specifically, the Government requested records of Defendants Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir, including their names, usernames, personal contact information, account information, connection records, length of service, direct messages to and from email addresses and IP addresses for all communications between November 2009 and December 2010.

The Twitter Order was originally sealed to keep the criminal investigation private, but upon the Government’s motion in January 2011, the magistrate court unsealed the documents, allowing Twitter to alert its subscribers to the existence of the Order. The defendants/subscribers then petitioned the court to vacate the Twitter Order, and unseal any other similar orders that may have been issued to other companies. The magistrate court issued a memorandum opinion and order denying the motion to vacate and partially granting the motion to unseal, determining that there was no First Amendment right to access the Government’s Twitter application, and the other § 2703(d) Orders and their applications. The defendants filed objections to the magistrate court’s decisions, and the district court affirmed; defendant then filed an appeal to the Fourth Circuit.

On appeal, the Fourth Circuit first determined that a common law right to access attaches to the documents here. Next, it articulated the standard for determining whether the First Amendment might provide a right to access orders issued under the SCA as the "experience and logic" test: 1) whether the place and process have historically been open to the press and general public; and 2) whether public access plays a significant positive role in the functioning of the particular process in question. The Fourth Circuit held that the latter prong, the "logic" one was not met here, as "secrecy is necessary for the proper functioning of criminal investigations at this § 2703(d) phase, openness will frustrate the government’s operations." So, no First Amendment right to access the documents in question. Similarly, the Fourth Circuit held that the common law right to access the documents was not insurmountable because this presumption may be outweighed when the Government’s interest in continued sealing of documents due to publicity surrounding the Wikileaks investigation does not justify the unsealing of relevant records.

A favorable gun price?

US v. Abramski:  Bruce Abramski made a straw purchase of a Glock 19 handgun in Virginia for his uncle in Pennsylvania during November 2009. As a former police officer, Abramski believed he could obtain a more "favorable price" from a local firearms dealer than his uncle could likely receive. Abramski purportedly discussed with three federally licensed firearms dealers a legal means of conducting the transaction, and the advice he received lead him to believe that a licensed dealer in Pennsylvania could complete a legal transfer to his uncle after Abramski purchased the gun in Virginia. Three days separated Abramski’s purchase of the handgun from the transfer of the firearm to his uncle at a PA licensed federal firearms dealer. Abramski conducted this transaction despite the fact that his uncle could have legally purchased such a firearm himself, had the uncle chosen to do so.

Executing a straw purchase, however, is not a legal enterprise; the ATF form Abramski completed at the time of his purchase included several questions about the purchase of firearms, including special warnings about acquiring guns on behalf of another person. Abramski, in answering these questions, reported that he was the actual buyer, despite his plan to transfer the gun to his uncle in three days. The ATF discovered Abramski’s gun purchasing scheme, after the FBI obtained a search warrant for Abramski’s residences in the course of a bank robbery investigation (Abramski was never charged federally, and the state charges against him were dismissed). The search of one of the two homes revealed the receipt for the transfer to Abramski’s uncle of the Glock 19 handgun.

On appeal, Abramski challenged the denial of his motion to dismiss the indictment, arguing that a circuit split existed as to whether his transfer of the firearm to his uncle, who was eligible to purchase a firearm, could be considered a straw purchase. The Fourth Circuit disagreed with Abramski, and held with the Sixth and Eleventh Circuits, that the identity of the purchaser is material to the lawfulness of the acquisition by Abramski, and he made a false statement to the gun dealer in VA when he stated he was the actual buyer, as the transfer to his uncle was not an "afterthought." Abramski also challenged the denial of his motion to suppress evidence found pursuant to warrant at his home while police investigated the bank robbery. The Fourth Circuit found that the warrant was supported by adequate probable cause.

Wednesday, February 06, 2013

Effect of alterations to indictment during trial

US v. Allmendinger:   Christian Allmendinger and a business partner formed a company, "A & O," in late 2004 in order to sell interests in life insurance policies. Over the course of the next few years, A & O added another partner, amassed approximately 800 investors, and earned millions of dollars. Unfortunately, the three men misappropriated client funds, used fraudulent marketing materials, and lied about the company’s size, staff, and earnings. In 2006, regulators from several states became concerned about A & O’s investment products, and the three men decided to sell the company, though only Allmendinger actually sold his interest and left A & O (the other two men had secretly agreed to buy A & O and continue running it under a new name). In early 2010, Allmendinger received word from federal investigators that he would be indicted along with his former partners for his part in A & O’s fraudulent investment scheme. Allmendinger did not cooperate with investigators and opted instead to go to trial where he was convicted on seven counts and received a 540-month sentence.

On appeal, Allmendinger claimed the district court violated his Fifth Amendment rights by altering the indictment, to omit allegations of conduct that occurred after Allmendinger sold his interest and left the company. Also, the district court re-drafted other language in the indictment to reflect the shorter duration of Allmendinger’s participation in the conspiracy alleged.

According to Fourth Circuit precedent, a fatal variance or constructive amendment, can occur when the government or the district court "broadens the bases for conviction beyond those charged in the indictment," and when "the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment." Under the Fifth Amendment, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..."

A defendant’s Fifth Amendment rights are compromised if a variance creates surprise at trial, hinders the preparation of a defense, or exposes a defendant to the danger of double jeopardy. According to the Fourth Circuit here, though, the variance that occurred was not a fatal variance, but a mere, or non-fatal, variance, because the changes made to the indictment did not change the crime charged or broaden the bases for conviction. Here, the government proved a more narrow conspiracy, but that conspiracy had the same purpose and premises as the fraud alleged in the indictment. The Fourth Circuit held that this narrowing created, at most, a non-fatal variance, and Allmendinger’s constitutional rights were not abridged.

Tuesday, February 05, 2013

Multiple motives for preventing witness testimony expand the forfeiture-by-wrongdoing exception

US v. Jackson:  After a jury trial, Antwan Jackson received convictions for the murder of Johnell Greene, as well as various firearms and drug offenses related to his role in a drug distribution conspiracy. In March 2006, Mr. Greene had interfered with Jackson’s drug activities, by robbing an associate of Jackson’s, Garian Washington, of drugs and money. Mr. Greene managed to escape one shooting attempt by Mr. Washington, after which attempt, Mr. Greene cooperated with police while he was incarcerated on unrelated charges, implicating Washington and Jackson in his attempted shooting. Shortly after his release from jail, Mr. Greene was shot multiple times and died after an attack by a masked assailant. Jackson purportedly made statements to the effect that he believed Mr. Greene had "deserved" to be killed.

Approximately one year later, a grand jury indicted Jackson and three other individuals for their participation in a separate crack cocaine operation. Jackson pleaded guilty to these offenses, and received an 87-month sentence. While imprisoned for these offenses, Jackson received an indictment for Mr. Greene’s murder, some prior drug activity, and for persuading a former associate to provide Jackson with a false alibi to law enforcement during an investigation of Mr. Greene’s death.

Before Jackson’s trial, the government moved to admit Mr. Greene’s written statements to police which implicated Jackson. The government argued that Jackson had waived his right to confront Mr. Greene’s out-of-court statements by killing him, "at least in part," to prevent him from testifying against Jackson. In response, Jackson argued that his intent to prevent Mr. Greene from testifying must be unqualified in order to trigger the forfeiture-by-wrongdoing exception to the Confrontation Clause, and thus permit the admission of Mr. Greene’s statements to police at Jackson’s trial. The district court disagreed, admitted the statements, and a jury found Jackson guilty on all counts.

On appeal to the Fourth Circuit, Jackson contended that the forfeiture-by-wrongdoing exception (a common law doctrine which permits the admission of testimonial statements where the defendant had acted to prevent the witness’s ability to testify) required that a defendant make a witness unavailable with the SOLE motivation of preventing the witness from testifying. The Fourth Circuit disagreed, and declined to "provide criminal defendants with an opportunity to avoid the exception by adducing some additional motive for their misconduct." As long as the defendant intended, according to the Fourth Circuit’s holding, to prevent a witness from testifying, the exception will apply even if the defendant had other motivations for harming a witness.