Thursday, November 21, 2013

The khat is out of the bag

US v. Ali, and 12 others:  Khat is a flowering plant native to the Horn of Africa and the Arabian Peninsula, and in these areas where it is legal, khat chewing has long been a social custom, dating back thousands of years.  Here, though, it’s a Schedule I drug when fresh, and slightly less potent when stale (then, Schedule IV), and so, it’s illegal to traffic in it.

Seventeen Somali and Yemeni nationals were indicted for their participation in a khat ring, receiving charges for conspiracy; many of them also received conspiracy to commit money laundering convictions as well.  Four of them pleaded guilty and testified at trial for the government, including ring leader Yonis Ishak; the remaining thirteen went to trial and were convicted of almost all the charges against them.  All thirteen joined the appeal, arguing primarily that the evidence against them was insufficient to prove that they knew the powerful stimulant in khat, called cathinone, was a controlled substance and that khat contained cathonine.  They challenged the jury instruction on scienter and willful blindness.  The money laundering defendants challenged whether the indictment provided sufficient information to identify financial transactions involved. Finally, they challenged the district court’s exclusion of their expert witness, and the denial of one defendant’s motion for a severance.

The main focus of the appeal is the sufficiency of the evidence challenge, whether the evidence was sufficient to prove that the defendants knew that khat contained a controlled substance.  The panel acknowledged the lack of direct evidence, but found that all the defendant conducted themselves in a way that indicated they circumstantially knew that khat contained a controlled substance.  The conspirators’ phone calls, the disguised packages, secret circumstances of deliveries of khat, how the money was hidden, etc., were all discussed by the government’s witnesses. Additionally, the conspiracy ring leader turned on everyone involved, such that it became “almost impossible to conclude that any defendant did not know of at least some illegal aspects of the enterprise.”  The panel found support from numerous other courts in similar khat cases, and affirmed the convictions.

Expansion of "relevant conduct" in McGee

US v. McGee:  Randall McGee pleaded guilty to possession with intent to distribute oxycodone and received a sentence of 55 months.  At sentencing, the district court increased Mr. McGee’s sentencing range to include as “relevant conduct” a seizure of cash that occurred two weeks prior to his arrest in this case.  Mr. McGee had previously been stopped by police at the Charleston, West Virginia bus station, where he was discovered to be in possession of nearly $6k in cash.  Though Mr. McGee was not arrested as a result of his bus station encounter with police, the police determined that Mr. McGee “did not have a reasonable explanation for his possession of the cash” when they asked where the unemployed Mr. McGee got the money.

Approximately two weeks later, Mr. McGee sat in the passenger seat of a rental car stopped by Charleston police for an allegedly malfunctioning middle brake light.  Police search Mr. McGee, who reportedly appeared nervous and had shaky hands.  The police discovered a bag in his shorts containing nearly 400 pills.  Mr. McGee moved to suppress the drugs seized during the traffic stop in two separate hearings:  the first questioning the probable cause to believe a traffic violation occurred; and the second, for newly obtained evidence. An investigation into the condition of the rental car tended to show that all the brake lights were operational and there was no record of any repairs after the traffic stop to the vehicle.  The district court held that while a serious factual issue was raised, it was ultimately not sufficient to overcome the police officer’s “unwavering” testimony that the light was non-operational.

On appeal, Mr. McGee challenged the procedural reasonableness of his sentence, specifically the inclusion in his offense conduct the earlier incident at the bus station, arguing that there was no evidence to connect the funds to the traffic stop in the instant case.  Also, Mr. McGee challenged the denial of his motion to suppress.  Last, Mr. McGee challenged the lack of individualized assessment in his sentence, that he was wrongly placed by the court in a class of individuals, i.e., drug dealers from Detroit, and sentenced him on that basis.

The panel found that “although McGee’s evidence that the brake light was not inoperative is significant, it is nonetheless circumstantial,” and the defense failed to show that the district court erred in its denial of the motion to suppress.  The panel also held that the incidents of seizure here, the cash and later, the pills, were “more likely than not” part of the “same course of conduct” for sentencing enhancement purposes.  Finally, while some of the district court’s comments on Mr. McGee’s sentence “evince a perilously close flirtation” with error, the panel concluded that the district court did not abuse its discretion.

Friday, November 15, 2013

Sentencing enhancements not punishment for priors

US v. Hunter:   As a juvenile, Appellant Jimmy Hunter received four convictions, all of which are considered violent felonies for ACCA purposes. He also received a fifth felony conviction as an adult, which may or may not be a predicate ACCA offense. In February 2011, Mr. Hunter sold a gun and ammunition to a CI working for the ATF; he received a felon in possession charge to which he pleaded guilty. At the time of his sentencing, the district court determined that Mr. Hunter’s juvenile and adult priors formed the basis for an ACCA enhancement, and sentenced Mr. Hunter to seventeen years’ imprisonment.

On appeal, Mr. Hunter challenged the application of his juvenile offenses as bases for an ACCA enhancement, arguing that this application violated the Eighth Amendment’s prohibition against excessive sanctions pursuant to Miller v. Alabama. In that case, the Supreme Court outlawed life without parole for juvenile offenders, highlighting proportionality concerns for young offenders, i.e., juveniles’ diminished capacity and increased capacity for reform.

The Fourth Circuit did not find any assistance for Mr. Hunter under Miller as he challenged the sentence he received for criminal conduct he committed as an adult, unlike the defendants in Miller who were punished as adolescents for criminal activity they committed as juveniles. Two other Circuits, the Tenth and Eleventh, which considered similar challenges to sentences from adult defendants who received enhancements based on juvenile convictions, determined that nothing in Miller suggests that an adult defendant with juvenile priors should not receive a mandatory life sentence as an adult after committing crime as an adult.

The Fourth Circuit held here that "sentencing enhancements do not themselves constitute punishment for the prior criminal convictions that trigger them," echoing the Supreme Court’s 2008 holding in United States v. Rodriguez, where the Court determined that the defendant’s enhanced sentence was "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one."  Mr. Hunter's sentence was affirmed. 

Friday, November 08, 2013

Phoned-in drug relevant conduct sufficiently reliable

US v. Crawford:  In the indictment against him, Kendrick Crawford received six charges of distributing 38.3 grams of crack.  At the time of sentencing, however, Crawford’s PSR calculation for drug relevant conduct grew to a whopping 408.1 grams of crack, arising from the statements of three individuals who reportedly purchased nearly 370 grams of crack from Crawford over a period of several years.  Two of the three individuals who provided statements were paid informants, former addicts “working off” their own crack charges, and they provided the information for Crawford’s drug relevant conduct over the telephone to an ATF agent on the case.  The district court found the information provided was sufficiently reliable to serve as the basis for Crawford’s drug quantity and sentenced him according to the PSR calculation.

On appeal, Crawford contended that his sentence was procedurally unreasonable because the information provided by the call-in witnesses to the ATF agent was multiple hearsay and unreliable.

The Fourth Circuit determined that the district court did not err in relying on the information phoned in by these two witnesses because while the testimony was multiple hearsay and the witnesses were drug addicts who were looking to reduce their own sentences for crack offenses, they provided reliable information in this and in several other federal and state cases, and at least one of the individuals participated in a controlled purchase under the case agent’s surveillance. The Fourth Circuit affirmed Crawford's sentence.