Tuesday, October 21, 2014

Lack of Loss Amount In Verdict Leads to Misdemeanor; Lack of Proof to Limited Remand

US v. Catone: Catone was charged with three counts related to federal workers comp fraud, essentially for receiving income while receiving benefits and not informing the proper authorities.  At trial, the main evidence of this fraud was a $635 check that Catone had received from a local maintenance service.  The jury convicted on one count of filing a false form under 18 USC 1920.  Catone's relevant conduct was identified as over $128,000 dollars (everything he ever got for worker's comp, in essence) and his restitution obligation at over $106,000.  Catone argued that his offense was a misdemeanor, capped at one year of imprisonment, because the jury did not make a finding as to a particular loss amount.  The district court disagreed, sentencing Catone to a 16-month term of imprisonment and ordering him to pay the entire restitution amount.

On appeal, the Fourth Circuit affirmed Catone's conviction, but reversed his sentence.  As to his conviction, the court rejected (reviewing for plain error) his argument that the Government violated Brady by withholding a particular document, noting that (a) it was a document Catone signed and therefore was aware of, (b) was public and could have been uncovered by diligent investigation, and (c) wouldn't have changed the verdict anyway.  As to the sentence, the court first held that the 16-month term of imprisonment was over the one-year statutory maximum for a misdemeanor offense.  Section 1920 defines two offenses, based on the amount of loss involved - a misdemeanor ($1000 or less) and a felony (more than $1000).  Because the amount of loss increases the statutory maximum offense, it was an element of the offense that had to be charged in the indictment and found by the jury.  As it was not, Catone's sentence had to be vacated.  Turning to the loss and restitution amounts, the court found that the district court failed to apply the proper analysis (as the Government conceded) in calculating those amounts, thus requiring reversal.  But the court went further: "Because there is no evidence in the record that could support a loss amount exceeding $5,000, we direct the district court on remand to resentence Catone under U.S.S.G. §2B1.1(b)(1)(A), without any offense-level enhancements for loss amount."  In other words, the court denied the Government a chance at a "do over" on remand.

Congrats to the Defender office in Western North Carolina on the win!

No Pretrial Motion = No Suppression Review

US v. Moore: Moore was apprehended by Maryland police after running from an officer (who was interested in Moore because he might have been walking in public with an open beer).  Moore tossed a package into a dumpster during his flight which contained $10,000 worth of cocaine.  While Moore was in jail, his apartment was burglarized.  A subsequent search (conducted pursuant to a warrant) uncovered drugs, paraphernalia, $45,000 in cash, and two guns.  Moore was charged with multiple offenses, including possessing a firearm in connection with a drug trafficking crime.  Just prior to closing arguments at his bench trial, Moore moved to suppress "all the tangible evidence" because the original officer who wanted to talk to Moore lacked reasonable suspicion to make a Terry stop.  The district court denied the motion and convicted Moore on all counts.  He was sentenced to 271 months in prison.

Moore appealed both the denial of his motion to suppress and his firearm conviction, but the Fourth Circuit rejected his arguments.  On the suppression issue, the court noted that Rule 12 of the Rules of Criminal Procedure requires such motions to be made before trial and the failure to do so waives the ability to file such motions unless "good cause" is shown.  The court concluded that the district court found no good cause to excuse waiver and there was none in this case, rejecting the argument that it was based only on evidence that came to light at trial.  On the firearm conviction, the court found there was sufficient evidence to demonstrate a nexus between the firearm and a drug trafficking offense.