Friday, August 29, 2014

Pre-Jones Warrantless GPS Attachment Doesn't Require Suppression

US v. Stephens: Stephens was the subject of an investigation by a Baltimore area state/local drug task force.  As part of that investigation, officers installed a GPS tracker on Stephens's car.  They did not have a warrant to do so.  Officers then used a combination of the GPS tracker and surveillance to intercept Stephens, who they believed to be armed, at a club when he arrived there.  Stephens was only carrying an empty holster, but a gun was found in his car (after a drug dog alerted).  Stephens was charged with being a felon in possession of a firearm.  Afterwards, the Supreme Court decided Jones, concluding that placing a GPS tracker on someone's car constitutes a search under the Fourth Amendment.  Stephens moved to suppress the gun.  The district court concluded that search was unreasonable under Jones, but declined to suppress the firearm because the officers were acting in good faith.  Stephens entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed, 2-1.  Relying largely on US v. Knotts and its progeny in the lower courts, the court concluded that "a significant body of federal law existed nationally in 2011 to support the view that warrantless attachment of a GPS . . . was not a search within the meaning of the Fourth Amendment."  In addition, the Maryland courts had expressly found that to be the case.  Against that background, the court rejected Stephens's argument that because the Fourth Circuit hadn't specifically OK'd warrantless GPS searches pre-Jones there could be no good faith on the officers' behalf.  Davis, the Supreme Court decision from which Stephens took this "negative implication" did not "alter the general good-faith inquiry," only provide one situation in which good faith was evident.  At any rate, the court concluded that Knotts was controlling at the time of the search and, thus, officers were acting in good faith compliance with it, even though Knotts was "not exactly on point," because "it is the legal principle of Knotts, rather than the precise factual circumstances, that matters."

Judge Thacker dissented, arguing that exclusion was proper where officers "relied on non-binding, non-precedential authority regarding emerging technology -- without first bothering to seek legal guidance -- in order to conduct a warrantless search which spanned . . . nearly two months."  She noted that Davis was all about binding authority and that Justice Sotomayor pointed out, in her concurrence, that "whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled" is a "markedly different question."  That was the case at the time of this search, Judge Thacker argues, noting that Knotts is easily distinguished because the beeper (hardly a modern GPS tracker) in that case had been placed in the suspect cargo with the owner's permission.  As a result, the officers didn't act in an "objectively reasonable" manner suggestive of good faith.

Stash House Robbery Conspiracy Convictions Affirmed, Sentence Vacated

US v. McLaurin: McLaurin sold two guns to a CI and, after the offer of a third sale, was introduced to undercover officers who recruited him to be part of a "stash house robbery."  That is, to rob drug dealers of their product in bulk and then sell it themselves.  McLaurin said he was interested and had committed a "similar" robbery in the past.  He also talked about the need to acquire a gun, since he had sold his.  After a couple of weeks passed, McLaurin contacted the officers and arranged a meeting to discuss the robbery.  He brought along Lowery, his codefendant, to this meeting.  At the meeting, they discussed what weaponry would be needed and how the take from the robbery would be split.  On the appointed day, the defendants and the officers met at a storage area that was to be the staging area for the robbery.  Instead, McLaurin and Lowery were arrested and charged with multiple conspiracy counts.  They were convicted on all counts, with McLaurin also being convicted of two counts of being a felon in possession of a firearm.

On appeal, both defendants challenged their conviction, which McLaurin challenging his sentence as well.  The Fourth Circuit affirmed the convictions, but vacated McLaurin's sentence.  On the convictions, the court first found that the district court had correctly instructed the jury that inducement, in the context of an entrapment defense, "is a term of art necessitating government overreaching," which the defendants argued allowed the jury to rejected their defense based on a "non-factual, value-laden determination" while avoiding "the corse issue of an entrapment defense - predisposition."  Read in conjunction with the rest of the entrapment instructions, the court held that language did no remove predisposition and only "elaborated on the circumstances that can be considered inducement."  The court also affirmed the district court's admission of prior bad act evidence against McLaurin (the earlier robbery) and Lowery (firearm possession).  Finally, the court concluded that the district court's decision to deny McLaurin's motion to sever his felon in possession counts was not error and, if it was, not harmless, as the evidence underlying those charges were admissible under FRE 404(b).  As to McLaurin's sentence, the court found that the district court erred by including two robberies committed as a juvenile in McLaurin's criminal history calculation.  Although limited to plain error review, the court found the error plain, affecting substantial rights, and in need of notice.

Judge Floyd dissented in part, arguing that the district court erred in not granting McLaurin's motion to sever and that the error was not harmless.

Friday, August 15, 2014

Post-Jeopardy Notice of Appeal Don't Give Circuit Court Jurisdiction

US v. Modanlo: Modanlo was charged in ten counts of an 11-count indictment with aiding the 2005 launch of an Iranian communications satellite, via a state-owned Russian consortium.  He was also charged with obstructing bankruptcy proceedings that arose out of that scheme.  Prior to trial, Modanlo moved to dismiss the obstruction count, arguing that the dismissal of the bankruptcy actions constitued collateral estopell and prevented the Government from prosecuting him.  That motion was denied.  Modanlo filed a notice of appeal after his trial had been going on for 12 days (the district court only issued its written opinion six days in, although it had denied it orally pretrial).  The district court denied the Government's motion to label the appeal frivolous, but refused to sever the obstruction count from the rest of the case.  Modanlo filed a notice of appeal from that decision as well.  Modanlo was convicted on all counts  but one and sentenced to 96 months in prison.  He has filed an appeal from the convictions and sentence, although it hasn't reached the briefing stage yet.

The Fourth Circuit dismissed both of Modanlo's appeals, concluding that the notices of appeal he filed didn't confer jurisdiction upon it.  His "premature appeals . . . are a nullity and must be dismissed."  The court noted that jurisidiction cannot be divested from the district court once trial has begun and jeopardy has attached.  Although the issue Modanlo initially sought to appeal could be the subject of an interlocutory appeal that could have stayed proceedings in the district court, that is true only if the notice of appeal had been filed before trial began.  However, since the order denying Modanlo's motion to dismiss was not entered prior to trial, Modanlo's only option was to wait until a final judgment had been entered and seek appeal from there.  To be fair, the Fourth Circuit pointed out that the district court messed up by not entering that order before trial, but given that Modanlo didn't challenge the failure to do so, he was precluded from trying to appeal the order once it was entered.

Tuesday, August 05, 2014

Prior conviction is predicate for sentencing enhancement in illegal reentry case

US v. Valdovinos:  In this appeal, the Fourth Circuit considers a novel issue, whether a prior conviction under North Carolina’s Structured Sentence Act, imposed after a binding plea agreement to a sentence of less than one year, is a predicate felony offense for purposes of the sentencing enhancement applicable to those convicted of illegal reentry after deportation.  Valdovinos pleaded guilty in North Carolina state court in 2008 to selling heroin, a conviction which carried a maximum penalty of 16 months in prison; by virtue of Valdovinos’ plea agreement, however, he received a sentence of 10-12 months.  Under NC law, once the judge accepted the plea, the judge was forced to sentence him within the range recommended in the plea agreement.  Valdovinos was deported after serving this sentence.  In May 2013, he returned to North Carolina, got arrested for resisting a public officer, and received an illegal reentry charge, to which he pleaded guilty.

Valdovinos objected to the application of this sentencing enhancement because his prior conviction did not, in his view, qualify as a felony under the Guidelines as his sentence was between 10 and 12 months, less than a term exceeding one year, as defined in the Guideline.  His prior conviction could not serve as a predicate offense, he argued, to enhance his sentence for illegal reentry.

The Fourth Circuit affirmed the district court’s imposition of the sentencing enhancement for illegal reentry defendants with prior felony offenses, because North Carolina’s Structured Sentencing Act, not Valdovinos’ plea agreement, determined whether a defendant’s conviction was punishable by imprisonment exceeding one year, qualifying as a federal sentencing predicate.  The dissent lambasts the majority holding, and the panel’s decision to hinder the progress of federal sentencing jurisprudence with its decision, and is totally worth reading (begins on page 19 of the published opinion).

Friday, August 01, 2014

$1.2 million restitution order affirmed

US v. Seignious:   In this appeal, the Fourth Circuit considered the restitution order that resulted from Ehizele Seignious’ convictions for an extensive credit card scheme.  In crafting the restitution order, the district court imposed an amount, $1,213,347, sought by the government, as representing the actual losses caused by the fraud conspiracy, pursuant to the Mandatory Victims Restitution Act (“MVRA”).  The amount, however, was determined without the district court having made findings on the record of actual losses caused to specific victims.

Seignious timely appealed the restitution order, and approximately one week later, the government provided a document to the court, itemizing losses to banks and retailers, as well as victims’ names and addresses, entered as a sealed document.  Appellate counsel for Seignious filed an Anders brief, the government responded, Seignious filed a pro se supplemental reply, and the Fourth Circuit set the case for oral argument on the issue of the restitution order.

Under the MVRA, the government has an obligation to provide information concerning restitution to the probation officer 60 days in advance of the scheduled sentencing date; the probation officer must, to the extent practicable, provide notice to victims and collect any necessary information from them, including documentation and testimony.  Further, the defendant must provide the probation officer with information concerning his background, financial resources, and ability to pay restitution.  If the victim’s losses cannot be ascertained by 10 days prior to sentencing, under the MVRA, the district court can set another date for the disclosure of that information up to 90 days after sentencing.

The Fourth Circuit reviewed the record, and found that restitution was imposed without the procedural requirements of MVRA being met.  The standard of review is plain error, though, and the Fourth Circuit upheld the restitution order, denying Seignious relief.  Seignious, according to the Fourth Circuit, failed to carry his burden on appeal of demonstrating that the district court’s error affected his substantial rights.  The record left the panel with no doubt that had the procedural requirements been met, it is unlikely that a different restitution amount would have been imposed.

Seignious did not object to the amount of restitution ordered or dispute the amounts proposed by the government.  The Fourth Circuit found that, although the district court could have done a better job of making a record with respect to restitution, the panel was not convinced an error occurred in finding that the conspiracy caused $1.2 in actual losses.

Disability benefits fraud convictions affirmed

US v. Perry:  Christopher Perry received three convictions for Social Security fraud, federal health benefit program fraud, and health care fraud.  He had begin receiving benefits in 1996 or 1997 under the proviso that if his medical condition improved such that he could work or if he returned to work, he would report this to the Social Security Administration (“SSA”).

Perry, however, began working in 1996, and between 1996 and 2006, he worked for a variety of companies.  When the SSA made inquiries about Perry’s income from other sources, Perry either did not respond or he reported that he was not receiving income other than his disability payments.  In 2007, Perry was accepted into the Federal Career Intern Program, a training program for the SSA, to become a Benefits Technical Examiner - - while he continued to submit claims for Medicare benefits.  In 2009, SSA canceled Perry’s benefits after he failed to respond to two further employment inquiries.

When the government charged Perry with three counts of fraud, he moved to dismiss the indictment, which the district court denied, but it ordered the government to file a bill of particulars, “to delineate specifically the employment Defendant ha[d] failed to report.”  The government responded by identifying Perry’s various employers since 1996.  At trial, a jury found Perry guilty on all counts.

On appeal, Perry made several challenges to the indictment as well as the sufficiency of the evidence for one of the counts.  The Fourth Circuit affirmed the district court’s judgment, finding that the indictment was sufficient to apprise Perry of the charges against him and identify the elements of the crimes charged.  According to the Fourth Circuit, the indictment tracked the statutory language, provided specific details about the nature of the charges, and identified the “event” that triggered Perry’s disclosure obligations.  Perry also argued that the indictment failed to allege specific intent to defraud, but the Fourth Circuit found intent to defraud was charged in each count.  Additionally, Perry argued that the indictment was time-barred under the statute of limitations.  A five-year statute of limitation operated here; the district court found that the charged offenses were “continuing offenses” and part of a course of conduct, which constituted the violation.  Finally, in his challenge to the sufficiency of the evidence on the health care fraud count, the Fourth Circuit found that the government presented evidence showing that Perry knew he had a duty to report employment to the SSA, as well as evidence from Perry’s training to be a Benefits Technical Examiner, including training on the receipt and termination of benefits.  This evidence, according to the Fourth Circuit was sufficient for a rational jury to find Perry guilty of health care fraud.

Course of 10-year drug ring ends in life sentence

US v. Brown:  Jean Brown received convictions for her leading role in a marijuana trafficking operation across several states, Mexico, and Jamaica.  Brown also received convictions for the kidnapping and murder of Michael Knight, a player in the conspiracy.

On appeal, Brown challenges the life sentence she received, based on the district court’s calculation of the drug relevant conduct.  She challenged the admission at trial of videotaped recordings of her police station interviews, arguing in addition that the trial was structurally undermined when the judge left the bench during the playback of one interview.

The videotapes of custodial statements were admissible, according to the Fourth Circuit, because there was no legitimate basis to suppress them.  Brown did not challenge the validity or adequacy of the Miranda warnings she received, rather she claimed that her attorney, hired for a separate case (cash smuggling) was ineffective for failing to accompany her to the police station for these interviews concerning as-yet uncharged criminal activity.  The Fourth Circuit declined to address an ineffectiveness claim on direct appeal, as the facts here did not conclusively establish Brown’s ineffectiveness claims were legitimate.

The Fourth Circuit found that no structural error occurred, despite the fact that the district judge did vacate the bench, without warning, while the jury was shown part of the police station interview videos.  Here, the district court was only absent for a short time after all the evidence had been presented, no rulings were requested in the court’s absence, and nothing else occurred.   Any error here, according to the panel, was harmless.

The district court erred in its drug quantity instruction and verdict form, to which Brown failed to properly object according to the Fourth Circuit.  Further, the marijuana ring involved so many thousands of pounds of marijuana, that the amount involved dwarfed the amount required for the district court to impose a life sentence, so the Fourth Circuit found that the district court did not plainly err in its miscalculation.