Monday, December 21, 2015

Officer Lie About Having Search Warrant Required Suppression

US v. Rush: Rush was a guest at the apartment of Wills, who suspected he was selling drugs. She called police and asked them to remove him from her apartment. She met them at her place of employment, signed a consent to search her apartment, and provided officers with the key. Officers went to the apartment, bust in yelling "police!," and rousted Rush out of bed, putting him in handcuffs. When he asked what was going on, one of the officers lied and said they had a warrant to search the apartment. That they did, finding crack cocaine (at Rush's direction). Rush was cooperative, providing information about his supplier. The officers left without arresting Rush, or otherwise ejecting him from the apartment (he later went to the station, talked to the police some more, and was again released). He was eventually charged with possession with the intent to distribute crack and moved to suppress the evidence recovered in the apartment.

The district court found that the lie about the warrant kept Rush from exercising his right to refuse the consent search under Randolph, but declined to suppress the evidence because the lie was motivated by the officer's desire to protect Wills (by not informing Rush that she called the police on him). Rush entered a conditional plea, was sentenced to 12 months and a day in prison, and left on bond pending appeal.

On appeal, the Fourth Circuit reversed, concluding that the evidence from the apartment should have been suppressed. The court concluded that the good-faith exception to the exclusionary rule did not apply because Rush's case "bears no resemblance to the previous applications of the good-faith exception" because "the search was unconstitutional due to the intentional decision" of the officer to lie about having a search warrant. There was "no doubt that a reasonable officer would know that deliberately lying about the existence of a warrant would violate Defendant's Fourth Amendment rights." The officer's decision to lie was "deliberate, contrary to long-standing precedent and objectively unreasonable." The court also rejected the Government's argument that the alleged reason for the lie (protecting Wills) was relevant, given that the analysis was objective, not subjective (and doubted whether it was true, anyway).

Congrats to the Defender office in SDWV on the win!

Acquiescence After Abandonment Avoids Fourth Amendment Problems

US v. Stover: Stover was sitting in a parking lot in a SUV, along with a passenger, when police arrived, Police decided to investigate because the SUV had out of state plates, was in a high crime area, and had not moved in some time. When an officer approached the SUV, Stover got out, opened the rear driver's side door, then walked to the front of the SUV and tossed a gun away. At all times, the officer was ordering Stover to get back in the car, but Stover never said anything. He only got back in the car once the gun had been tossed away. The gun was recovered and Stover was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the police didn't have reasonable suspicion to justify a stop. The Government agreed, but argued that Stover wasn't "seized" until the gun had been tossed away (and thus abandoned) because he hadn't acquiesced to any of the officer's commands up to that point. The district court agreed and denied the motion.

On appeal, the Fourth Circuit affirmed, 2-1 noting that the question was not whether Stover was seized, but when he was seized. The court held, contrary to the Government's position, that Stover was seized when the officers pulled up and began giving him orders, for at that point he would not have felt that he was free to leave. However, the court agreed with the Government that Stover's conduct after that point showed that the district court did not clearly err in concluding that he did not acquiesce until after the gun had been tossed away. The court distinguished prior case where someone acquiesced before the discovery of contraband and noted that things might be different if Stover had dropped the gun while he remained seated in the car, as per the officer's orders.

Judge Gregory dissented, arguing that while the majority used the right analysis, it did not consider all the relevant facts and reached the wrong conclusion.

Tuesday, December 15, 2015

Sentencing Reduction for Defendant With Mandatory Minimum and Substantial Assistance

US v. Williams: Williams (a completely different one from above - even though they both came out of the same district and same judge!) pleaded guilty to distribution of crack cocaine in 2008, a plea which, thanks to an 851 information, carried a mandatory minimum sentence of 20 years. Williams's Guideline range, however, was only 130 to 162 months. Williams received a substantial assistance departure and was sentenced to 180 months. Williams moved for a reduced sentence under 18 USC 3582 when recent amendments to the Guidelines reduced his range to 77 to 96 months. Although the Government joined in the motion, the district court denied the reduction, concluding that Williams's sentence was based on a statutory mandatory minimum, not a Guideline range, and that mandatory minimum (and subsequent departure) had not been changed.

On appeal, the Fourth Circuit reversed the district court's decision, 2-1. The court held that a recent amendment to USSG 1B1.10 that addressed situations such as these - where a statutory substantial assistance motion allowed the district court to impose a sentence below a mandatory minimum - overrode prior Fourth Circuit case law and made Williams eligible for a reduction. Specifically, in these cases the statutory mandatory minimum does not become the Guideline range as it otherwise would. Because Williams's Guideline range (regardless of any statutory requirement) goes down, he is eligible for a reduction. The court remanded to the district court to determine whether a reduction was appropriate and, if so, the extent of such a reduction.

Chief Judge Traxler dissented, arguing that Williams's sentence was "based on a statutory mandatory minimum" that has not been lowered by Congress and that the Sentencing Commission has no power to alter.

Congrats to the Defender office in the Middle District of NC on the win!

Collection of Innocent Factors Doesn't Add Up to Reasonable Suspicion During Traffic Stop

US v. Williams: Williams was in a car that was pulled over on the Interstate in North Carolina, just behind a car drive by his brother (which was also pulled over). Williams was given a written warning for speeding, but was then asked by the officer if there was anything illegal in the car. Williams said no and denied consent to search the car. The officer then told Williams to "hold on" while another officer conducted a dog sniff of the car, The dog alerted and drugs were found in the car. Less than three minutes passed between Williams getting the warning and the dog's alert. Williams moved to suppress the evidence discovered as a result of the search. The district court denied the motion after holding two hearings on the matter, concluding that the officers had reasonable suspicion based on four factors, that: (1) Williams was in a rental car; (2) he was on a "known drug corridor" after midnight; (3) his travel plans were inconsistent with the date by which the rental car needed to be returned; and (4) he was unable to provide a permanent home address, having given a PO Box (which differed from the address on his New York drivers license) and stated that he lived sometimes with his girlfriend in New Jersey.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. The court found that the factors relied upon by the district court did not create reasonable suspicion that criminal activity was afoot. For example, none of the officers "explained any connection between use of a rental car and criminal activity." Similarly, while the Interstate may be a known route for drug traffickers, "the number of persons using the interstate highways as drug corridors pales in comparison to the number of innocent travelers on the road." That the rental agreement seemed inconsistent with travel plans was also irrelevant because rental agreements could be easily extended or modified and "no reasonable, articulable suspicion of criminality arises from the mere fact that Williams's travel plans were likely to exceed the initial duration of the rental agreement." Finally, as to the addresses, none of the officers "explained how using a post office box address, or living in New York or New Jersey, raised some suspicion of criminal activity." Even taken together, the four factors "fail to eliminate a substantial portion of innocent travelers" and did not provide reasonable suspicion to extend the stop.

Congrats to the Defender office in the Middle District of NC on the win!

Court Tears Apart Factual Support for Heroin Convictions

US v. Blue: Baltimore cops were surveilling a potential drug operation that eventually brought them to Blue, who met briefly with the target of their surveillance and gave him a "brownish-tannish item." Blue walked away, while the target was arrested and found in possession of almost 50 grams of heroin. A month later investigators surveilled Blue himself, following him to an apartment complex which he entered, then exited five minutes later "holding a sandwich-sized, cloudy white container in his hand." Investigators followed Blue to another brief meeting then arrested him. Following his arrest, Blue admitted that the brief meeting had been to discuss a drug deal. Blue was found in possession of a key to an apartment in the complex where he had been followed earlier in the day, a search of which uncovered 108 grams of heroin. There was no indication that Blue lived in the apartment or had any connection to the people who did. Blue was charged and convicted at trial of conspiracy to possess with intent to distribute more than 100 grams of heroin (Count 1 - based on the first incident) and possession with intent to distribute more than 100 grams of heroin (Count 3 - based on the second incident).

On appeal, the Fourth Circuit reversed both of Blue's convictions because there was insufficient evidence to support them. On Count 3, the court held that the fact that Blue possessed the key to the apartment where he (presumably - nobody saw which apartment he entered) stayed for five minutes was "insufficient evidence to establish his constructive possession of the heroin found" in the apartment. It rejected the Government inference that Blue used the apartment as a stash house as "an unreasonable one given the complete lack of evidence establishing any connection to any of the occupants." Nor was the "sandwich-sized plastic container" of any probative value, as it was never linked to heroin. The court also rejected the Government's reliance on an Eighth Circuit holding that someone in possession of a key to a dwelling has constructive possession of its contents. Count 1 suffered the same fate, as the only way the Government could reach the 100-gram threshold was to bring in the heroin seized from the apartment which, the court had already ruled, wasn't sufficiently tied to Blue.

Congrats to the Defender office in Maryland on the win!

Separate Sources for Child Porn Images Defeat Double Jeopardy Claim

US v. Schnittker: Schnittker was charged with two counts related to child pornography, one for receipt and one for possession. The charges were based on evidence found during a search of his home, including two hard drives, one Western Digital and one Maxtor. Both counts of the indictment spoke generally of "child pornography" being possessed, but during plea negotiations the Government informed Schnittker that the possession charge would be based on images found on the Western Digital drive, while the receipt charge was based on images found on the Maxtor drive. Although the drives had some overlap in terms of images, each had images unique to it. Schnittker pleaded guilty to the possession charge. The statement of facts at the plea hearing referenced the Western Digital drive, but didn't mention the Maxtor. Schnittker then went to trial on the receipt charge, where the Government used his guilty plea on the possession charge as 404(b) evidence against him. The district court denied Schnittker's motion to dismiss that charge on double jeopardy grounds and convicted him on receipt.

On appeal, the Fourth Circuit affirmed the district court's decision denying Schnittker's double jeopardy challenge. The court assumed that the two offenses (possession and receipt) were the "same in law" and moved on to determine they were also "the same in fact." The court concluded that they were not because of the different sources of the images at issue in each charge, holding that an "objective person in Schnittker's position would have understood that he was pleading guilty to possession . . . only in regard to the child pornography on the Western Digital hard drive." Because the receipt charge involved the Maxtor drive and at least one unique image from that drive "the two offense at issue in this case were not the same in fact."

Thursday, December 03, 2015

Statutory penalties for priors controlling, not the sentence received

US v. Sellers:  James Morris Sellers challenged his qualification as an armed career criminal at sentencing for the unlawful possession of a firearm.  He had three prior South Carolina drug convictions for which he had been sentenced under South Carolina’s Youthful Offender Act.  This Act permits lower maximum penalties for certain offenders, a cap of six years of incarceration.  On appeal, Sellers argued that his priors did not qualify him as an armed career criminal because the sentences he had received were not sufficiently long enough to qualify as predicate offenses.  Here, the Fourth Circuit rejected Sellers’ argument that his sentences under the Youthful Offender Act did not qualify as ACCA predicates, reaffirming its earlier cases, Simmons and Williams.

The Fourth Circuit earlier held that whether a prior conviction qualifies as a predicate for a federal sentencing enhancement depends on the statutory penalty for the prior conviction, not the sentence the defendant may have received.  Sellers argued here on appeal that this holding was no longer good law, but the Fourth Circuit rejected that argument, holding instead that the maximum statutory penalty for the prior conviction(s) is unaffected by the state court’s exercise of its discretion to sentence a defendant to less than the maximum penalty.  Sellers, then, had properly been categorized as an armed career criminal for his three prior drug crimes, and the Fourth Circuit affirmed his sentence.

Loss calculation leads to remand

US v. Qazah:  Kamal Qazah and his uncle, Nasser Alquza, received charges for conspiracy to receive and transport stolen cigarettes, conspiracy to commit money laundering, and money laundering.  Qazah received an additional charge for receiving cigarettes purportedly stolen in interstate commerce.  After a jury convicted Qazah and Alquza of these charges, Alquza appealed the district court’s denial of his pre-trial motion to suppress evidence recovered during a search of his home; Qazah appealed the denial of his pre-trial motion to sever.  Both defendants appealed their sentences, specifically the district court’s calculation of the loss amount for which they were held responsible, by relying upon the retail as opposed to wholesale value of the purportedly stolen cigarettes.   The Fourth Circuit upheld the convictions, but vacated the defendants’ sentences for further evidence gathering on the loss calculation.

In its calculation of loss analysis, the Fourth Circuit examined the district court’s basis for its use of the retail value of the stolen cigarettes in determining the defendants’ sentences.  The district court believed that it was obliged to apply the “greatest intended loss” as between the wholesale and retail value of the cigarettes, regardless of whether the value in fact represented a loss.  The retail value of the cigarettes here was $3k per case, and the wholesale value was $2,126 per case.

The parties agreed, as did the district court, that the “intended loss” rather than “actual loss” is the relevant measure under the guidelines.  The general rule that guides the Fourth Circuit is that loss is determined by measuring the harm to the victim, one of whom was Phillip Morris.  The cigarette company’s loss would have been the amount it would have otherwise received for selling the cigarettes, which the record indicated was $2,126 per case (8,000 cases were involved).  The Fourth Circuit noted, however, that there may have been other victims here, e.g. the states that did not make money on the taxes on cigarettes lawfully sold, and sales that legitimate retailers may have made.  The identities, then, of the intended victims and their losses are questions of fact for the district court to resolve, so the Fourth Circuit vacated and remanded.

Tuesday, November 17, 2015

Insufficient evidence of "purpose"

US v. Palomino-Coronado:  In this appeal, the defendant challenged his conviction for one count of enticing a minor to engage in sexual conduct for the purpose of producing a visual depiction of that conduct.  In this case, there was only one photograph involved.  Further, at trial, expert testimony revealed that during the course of the investigation, the child forensic interviews were coercive and did not follow established protocols.  The defendant moved for an acquittal at the close of the government’s case, based on insufficient evidence, which the district court denied.  The jury found the defendant guilty.  On appeal, the Fourth Circuit determined that the district court erred in denying the defendant’s Rule 29 motion, reversing and vacating the conviction.

As a matter of first impression, the Fourth Circuit considered a sufficiency of the evidence challenge to the statute at issue here, and focused its analysis on what evidence may show that a defendant acted with purpose.  The Fourth Circuit stated that many times, courts are left with only circumstantial evidence to demonstrate a defendant’s purpose.  The Fourth Circuit also found instructive the cases wherein the number of sexually explicit recordings or depictions as indicators of purpose, as well as evidence presented of “purposeful conduct,” considering the types of photography or video tools used.

On appeal, the defendant here argued that the government failed to prove that he acted for the purpose of producing a visual depiction [emphasis in original], as the government had offered only one cell phone image of sexually explicit conduct with the victim, a photo that the defendant had deleted from his phone.  Without more, the Fourth Circuit concluded, the facts of the case did not support the conclusion that the defendant here acted in order to take a picture, as required by the statute of his conviction.

On rehearing, indictment properly dismissed

US v. Vinson:  Vinson filed a petition for rehearing after a Fourth Circuit panel earlier (see here) vacated the district court’s order granting his motion to dismiss the indictment against him, asserting a new basis for affirming the dismissal of his indictment.  On rehearing, the Fourth Circuit changed course, affirming the district court’s order dismissing the indictment.

The Fourth Circuit begins its analysis here by stating that Vinson did not raise the issue it finds dispositive in his opening brief to the Fourth Circuit or the district court; the rule precluding consideration of issues for the first time on appeal to the Fourth Circuit is prudential, not jurisdictional, so the Fourth Circuit determined that under the circumstances presented in this case, it would exercise its discretion to consider the issues Vinson raised in his petition for rehearing.

Vinson raised the issue of whether Vinson’s conviction under North Carolina’s assault and battery statute qualifies as a conviction for a misdemeanor crime of domestic violence (“MCDV”).  The Fourth Circuit held here that none of the categories of assault under North Carolina law have elements matching the elements of an MCDV under 18 U.S.C. §921(a)(33)(A), so the district court properly dismissed the indictment against Vinson.

Monday, November 02, 2015

ACCA Sentence Based on South Carolina Burglary Convictions Vacated

US v. McLeod: McLeod pleaded guilty to being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act based on several prior South Carolina burglary convictions, even though McLeod argued that his convictions did not match the generic definition of burglary. He was sentenced to 188 months in prison.

On appeal, McLeod argued (among other things) that the South Carolina convictions didn't meet the generic definition of burglary with regard to the location involved. The Fourth Circuit agreed and vacated his sentence. The court held that while the South Carolina statute involved burglary of a "building" and "appears at first glance to parrot the language of generic burglary," the term "building" is defined as including "any structure, vehicle, watercraft, or aircraft." The district court could apply the modified categorical approach to determine which type of "building" was involved. However, a closer review of the relevant plea transcript show that McLeod actually pleaded guilty to a different form of burglary, although one with an equally broad definition of the place to be broken into (a "dwelling" instead of a "building"). Because the Government could present no appropriate documents to show which of the various "dwellings" McLeod broke into it could not show that his prior convictions qualified as ACCA predicates.

Obstruction Enhancement OK'd Based on False Alibi Testimony of Defense Witnesses

US v. Andrews: Andrews robbed a pizza joint, making off with some cash and the manager's wallet. Pursuing police found an abandoned car, in which they found two wallets (the manager's and Andrews's), a cell phone with pictures of Andrews's family, a traffic ticket with his name on it, and a "bill of sale showing that Andrews owned the vehicle." Officers also found a cap that matched the description of the robber and was matched to Andrews via DNA testing. He was charged with Hobbs Act robbery and using a firearm in relation to a crime of violence. Prior to trial he gave notice of an alibi defense (as well as filing a pro se motion suggesting the prosecutors were intimidating witnesses). The defense was provided by two witnesses, Andrews's mother and girlfriend, who testified that Andrews was at home the night of the robbery. Andrews didn't testify. He was convicted on all counts. At sentencing, his sentence was enhanced for obstruction of justice based on his "prior knowledge of the false testimony" provided by his alibi witnesses and his "subsequent silence during trial."

Andrews appealed only his sentence, particularly the imposition of the obstruction enhancement, which the Fourth Circuit affirmed. While the court noted that the paradigmatic example of the enhancement applying after a trial is perjury on the defendant's part, or subornation thereof, it is "warranted if the court below made a proper finding of obstruction even if it did not specifically find the subornation of perjury." The court also rejected the application of de novo review, stressing the discretion involved by the district court after evaluating evidence. In this case, the district court rested "the enhancement on the very essence of [obstruction] - the willful obstruction of justice" because of Andrews's knowledge of the false alibi testimony, at least after the first alibi witness had testified.

Lack of Proabable Cause Dooms Search Undertaken After Traffic Stop

US v. Patiutka: Patiutka was pulled over on an Interstate in Virginia for failure to maintain a lane. He gave the name Roman Pak to the officer who, although he thought Patiutka might have been lying to him, "asked no follow-up questions about Patiutka's purported lie." The officer gave Patiutka a verbal warning, told him was "free to go," but later testified that "in his mind, [Patiutka] wasn't free to leave" because he "intended to reengage Patiutka in conversation and obtain consent to search the car." The officer got what he thought was consent, which led other officers (who arrived during the stop) to search the car and find a credit card reader and "four new, unopened iPads" sitting in a suitcase. Patiutka asked what was going on and objected to any search. The search stopped, but an officer announced he "was placing Patiutka in 'investigative detention'" and put him in a patrol car. The search resumed, further items indicative of credit card fraud were found, and Patiutka was taken to the police station, where he made "a number of incriminating statements."

Patiutka was charged with credit card fraud and identity theft and filed a motion to suppress the evidence found during the stop. At the suppression hearing, the officer who stopped him testified that Patiutka "would have ultimately arrested for providing a false ID" regardless of whether the search uncovered anything or not. The district court granted the motion, rejected several argument by the Government that the evidence was admissible under various exceptions to the warrant requirement in the Fourth Amendment.

On appeal, the Fourth Circuit affirmed the suppression, also rejected the Government's arguments to avoid the Fourth Amendment's warrant requirement. First, the court rejected the argument that the search was done incident to a lawful arrest, namely for the state offense of providing false identity information to the officer. The court noted that there was no probable cause to support such a charge at the time Patiutka revoked his alleged consent and that the district court's conclusion that the officer's testimony wasn't credible (based on video of the stop) was not clearly erroneous. Second, the court rejected the Government's argument that the automobile exception meant a warrant was not required by holding that, regardless of a warrant, there was no probable cause to continue the search once Patiutka revoked his alleged consent. The items that had been found by that point could be legally possessed and "innocuous explanations for a driver's possession of these items abound."  Furthermore, collective knowledge of the officers could not save the search because the information that the first officer would have imparted to the others was, as the court already held, insufficient to support probable cause anyway.

Lack of Particularized Evidence of Wrongdoing Dooms Stop

US v. Slocumb: A bunch of police officers arrived at the parking lot of a business (closed for the night) that they were going to use as a staging area for executing a search warrant nearby. The lot itself was known as a "place for drug activity."  Slocumb was there, along with his girlfriend and their child. Slocumb was transferring a car seat from one car to another. Slocumb explained that his girlfriend's car had broken down and he had come to retrieve her and the child. During the conversation Slocumb "did not make eye contact and gave mumbled responses," which the officer considered suspicious. Another officer said (to the first officer, not to Slocumb directly) that they were "not allowed to leave" and the rest of the officers went to execute the warrant. The officer left behind to guard Slocumb and his girlfriend later said that when he asked Slocumb about "his knowledge of drugs at the target house" he began acting "increasingly nervous and [did] not make eye contact." Slocumb, at some point during the conversation, told the officer his name was Anthony Francis. A second officer arrived and asked the girlfriend for Slocumb's name, to which she answered "Hakeem," a name "the officers recognized as someone who was under investigation for drug trafficking." Slocumb was arrested for providing a false name. Officers recovered $6000 in cash from Slocumb and drugs from where he had been sitting in his car. Slocumb admitted the drugs were his and that his girlfriend knew nothing about them. Slocumb unsuccessfully moved to suppress the evidence recovered from him and the car.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. The court held that although there were several general factors that might have supported reasonable suspicion to detain Slocumb, the only thing that might provide particularized suspicion of wrongdoing - Slocumb's own behavior - was not sufficient to meet that threshold. He did not flee, was not evasive with the officers, and his other behavior was not indicative of wrongdoing. Thus, the court concluded, viewed "in their totality, the factors cited by the district court do not amount to reasonable suspicion to justify Slocumb's seizure."

Departure Based on Old Juvenile Convictions OK

US v. McCoy: McCoy was charged with two drug charges at trial, at which the jury concluded he was responsible for between 500 grams and 5 kilograms of cocaine. Testimony at trial concerned three separate purchases of cocaine, one of which was "returned for poor quality." At sentencing, the probation officer included all three buys (including the "returned" one) as relevant conduct, producing a total of 7 kilograms and a guideline range of 135 to 168 months. McCoy argued for a sentence of 120 months (the mandatory minimum). while the Government sought an upward departure based on three juvenile convictions which did not factor in the Guideline calculations and a sentence of 192 months. The district court departed (to a slightly higher Guideline range than the Government requested) and imposed a sentence of 188 months in prison.

McCoy appealed, arguing only that his sentence was substantively unreasonable, for several reasons, all of which the Fourth Circuit rejected. First, the court rejected McCoy's argument that the district court should not have considered the juvenile convictions. The court noted that the district court was free to base a departure on convictions that were otherwise too old to count in the criminal history score and that the "seriousness of the juvenile crimes" demonstrated McCoy's likelihood of recidivism. Second, the court rejected McCoy's argument that the district court erred by departing to Criminal History Category V, rather than IV as the Government requested, noting that while the Government's request is an important consideration, it's not binding on the district court. In addition, though the district court's Guideline range was higher than the one requested by the Government, the actual sentence imposed was slightly lower. Finally, the court rejected McCoy's argument that his sentence overstated the seriousness of his offense. The court also pointed out that the proper remedy for the amendment of the Guidelines between sentencing and appeal was to file a 3582 motion seeking a reduction in the district court.

Friday, September 04, 2015

Defendant didn't forfeit his right to counsel

US v. Ductan:  In this appeal, the Fourth Circuit considered whether Phillip Ductan forfeited his right to counsel with some aberrant behavior.  Ductan, accused of conspiracy to distribute marijuana and carrying a firearm during his drug trafficking crime, appeared in court in May 2012 to answer charges dating back to September 2004.  Originally, Ductan appeared with retained counsel, who immediately moved to withdraw. That motion was granted following a hearing wherein the magistrate court and Ductan could not reach an understanding about Ductan’s representation (and some weird nonsensical behavior from Ductan), the result of which was the magistrate court’s finding that Ductan had forfeited his right to counsel.  Ductan’s appointed/stand-by counsel later attempted to withdraw, but that motion was denied and the case proceeded to trial.  Ultimately, Ductan represented himself and the jury found him guilty on all counts.  

On appeal, the Fourth Circuit determined that, based on its prior holdings, representation by counsel is the default position, because the access to counsel affects a defendant’s ability to assert any other rights the defendant may have.  Further, effective assertion of right to represent oneself requires a defendant to knowingly and intelligently forgo the benefit of counsel after being made aware of the dangers and disadvantages of self-representation.  The assertion of the right to self-representation must also be clear and unequivocal, so a crafty defendant cannot manipulate the 6th Amendment dilemma (there is a “thin line between improperly allowing the defendant to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation.”) to create reversible error.

Ductan argued on appeal that the right to counsel cannot be forfeited by misconduct, and no waiver occurred because he did not “clearly and unequivocally” declare that he wanted to proceed pro se; he wanted retained counsel, not court-appointed defense, and he did not want to represent himself.

Despite Ductan’s lack of cooperation with the magistrate court, essentially rejecting any option presented to him, he never acted out egregiously, in a manner that other courts have found justified forfeiture of the right to counsel (e.g., death threats, unprovoked physical assault).  The Fourth Circuit has not previously endorsed the holding that a defendant can forfeit the right to counsel, and it chose not to do so here.  Additionally, the Fourth Circuit held that Ductan did not waive his right to counsel, and even if he had, no valid waiver occurred because the magistrate court did not complete its Faretta inquiry.  The panel vacated Ductan’s conviction and remanded for a new trial.

Monday, August 31, 2015

Congress Can Criminalize International Illicit Non-Commercial Sex

US v. Bollinger: Bollinger was a minister who moved to Haiti in 2004, along with his wife, to run a ministry. He enjoyed the services of local prostitutes and, eventually, began molesting young girls. In 2009 (while in bed with another woman), Bollinger got a call from his wife and confessed his infidelity. He returned to Virginia a week later to start counseling. As part of that counseling he admitted his sexual acts with young girls. The psychologist treating the couple contacted authorities. Bollinger was charged with engaging in illicit sexual acts with minor after traveling in foreign commerce. Bollinger entered a conditional guilty plea when the district court denied his motion to dismiss the indictment.

On appeal, the Fourth Circuit affirmed Bollinger's conviction, rejecting his argument that the statute exceeded the scope of Congressional authority. Recognizing that Bollinger's conduct was "non-commercial illicit conduct," the court examined whether it was encompassed by the Foreign Commerce Clause. It declined Bollinger's invitation to "wholly transport" the Supreme Court's jurisprudence involving the Interstate Commerce Clause, concluding (among other things) that the federalism concerns that were implicated in interstate regulation did not apply to foreign regulation. Thus, "the pivotal question in this case is how directly an activity must affect foreign commerce for it to be a proper subject of congressional regulation." The Foreign Commerce Clause, the court concluded, only required a "demonstrable effect" on such commerce, rather than a "substantial effect," as with interstate commerce. It was then "imminently rational to believe that prohibiting non-commercial sexual abuse of children by Americans abroad has  a demonstrable effect on sex tourism and the commercial sex industry." Thus, it fell within Congress's power.

The court also rejected Bollinger's challenge to his sentence of 25 years in prison, a variance downward from an advisory Guideline range (and statutory max) of 60 years.

Sex Trafficking Not a Crime of Violence

US v. Fuertes: Fuertes and his codefendant, Ventura, were involved in an interstate prostitution scheme that operated in Maryland. After a jury trial they were both convicted of conspiracy, with Ventura additionally convicted of sex trafficking by force, fraud or coercion under 18 USC 1591(a), as well as possessing a firearm in connection with a crime of violence - the 1591 offense. Fuertes received a sentence of 215 months in prison, Ventura one of 420 months in prison.

On appeal the Fourth Circuit affirmed most of the convictions and Fuertes's sentence, on issues including evidentiary claims and sufficiency of the evidence. However, the court vacated Ventura's conviction on the firearm possession count (and, thus, his sentence). It concluded that 1591 was not a "crime of violence" predicate for the offense. It did so under a plain error standard because while Ventura had moved for a judgment of acquittal on that count he had not presented the legal argument (versus the factual one) that he presented to the Fourth Circuit. Nonetheless, the error was plain, affected his substantial rights, and was of the type the court decided to notice. Section 1591, the court held, was not divisible because "it contains a single indivisible set of elements," although it had many "alternative means of commission." It rejected the Government's argument that the offense was categorically violent even if committed via fraud because "there is still a substantial risk of physical injury from the prostitute's customers," holding that the relevant statutory language required that force be used during the commission of the offense: "the relevant inquiry is not whether there is risk of any person using force in any way tangentially related to an on-going offense, but rather whether there is a substantial risk of the defendant doing so."

Mandatory Life for Piracy Not Cruel & Unusual

US v. Said: Said was one of several defendants in this consolidated appeal that were convicted of piracy. The convictions arose from not one but two unsuccessful attempts to capture ships that, it turned out, were military craft (a Royal Navy frigate and a US Navy dock landing ship). The second attempt left the pirates' boat destroyed and the pirates in custody of the US Navy. They were brought to the Eastern District of Virginia and charged with (among other things) piracy on the high seas under 18 USC 1651 which carries a mandatory life sentence. After unsuccessfully trying to dismiss that charge (for reasons explained here), Said and all but one of the other pirates were convicted at trial. However, the district court concluded that a life sentence in this case violated the Eighth Amendment's prohibition on cruel and unusual punishment and imposed various terms of months on the defendants. The Government appealed.

On appeal the Fourth Circuit vacated the sentences and remanded the case for the imposition of life sentences. The court concluded that Said couldn't make it past the first prong of the Supreme Court's test for non-capital Eighth Amendment sentences, that "the gravity of the offense and the severity of the sentence produces an inference of gross disproportionality." It noted that the Supreme Court had only found one non-capital sentence to be grossly disproportionate (life as a recidivist after passing a bad check) and that the Fourth Circuit hasn't identified any such sentence since. The court rejected the argument that the defendants' conduct was merely "attempted robbery on the high seas" that didn't result in any serious injury or damage, noting that  it was "at least as severe as the cocaine possession" that the Supreme Court held could trigger a life sentence. The statutory life sentence "reflects a rational legislative judgment, entitled to deference" about the danger posed by piracy.

Judge Davis concurred, suggesting that "not all piracy offense are equal in severity" and that Congress might revisit the issue.

Warrant Requires to Get Historical Cell Cite Info

US v. Graham: Graham and his codefendant, Jordan, were involved in a string of commercial robberies that took place in and around Baltimore. They were arrested after the last theft when they were stopped in the truck that served as a getaway vehicle. Among the evidence retrieved from the truck was a pair of cell phones, one subscribed to Jordan and the other to Graham's wife. Investigators obtained court orders, pursuant to the Stored Communications Act, to obtain cell site location information ("CSLI") from the phones. CSLI (I'm grossly simplifying here) can help determine the location of a phone over time as it interacts with various cell towers to send and receive information. Investigators were able to use the CSLI to place the phones (and, by association) Graham and Jordan near robbery sites. Graham and Jordan moved to suppress that data, arguing that investigators were required to get a warrant before obtaining it. The district court denied the motion and Graham and Jordan were convicted at trial of various counts related to the robberies.

On appeal the Fourth Circuit affirmed the convictions and the district court's order denying suppression of the CSLI. However, the court was deeply divided on the rational for doing so. The majority concluded that investigators should have gotten a warrant obtain the CSLI, but concluded that suppression wasn't appropriate because they did comply with existing law when getting a court order under the Stored Communications Act. Specifically, the investigators' inspect of "a cell phone user's historical CSLI for an extended period of time" was a "search" for Fourth Amendment purposes. It wasn't persuaded that Graham and Jordan waived any expectation of privacy based on the fine print of their contract that, the court realized, nobody actually reads. As to the data itself, it looked to the concurring opinions in the Supreme Court's recent Jones and the concerns about being able to harvest vast amounts of data. It also distinguished cases like Jones itself (and the prior beeper cases) that tracked vehicles by pointing out that a phone location is often the location of a person and can include traditionally protected places like the home.

The main fissure between the majority and the dissenting Judge Motz was over the third-party doctrine. The majority concluded that it didn't apply here because "cell phone users do not voluntarily convey their CSLI to their service providers." That is because the data accumulates even when the person isn't using the phone, such as when a text message is received or an incoming phone call isn't answered. Judge Motz, by comparison, argued that the majority's conclusion "flies in the face of the Supreme Court's well-established third-party doctrine" and that the CSLI was the same as the pen register information covered by the Supreme Court's decision in Smith. The majority recognizes that its holding is at odds with decisions of the Fifth and Eleventh Circuits.

However, the end result of both the majority and dissenting opinions are the same - no suppression.

In the midst of all this Judge Thacker wrote a brief concurrence expressing her "concern about the erosion of privacy in this era of rapid technological development" and concludes by saying "this decision continues a time-honored American tradition -- obtaining a warrant is the rule, not the exception."

UPDATE: The Government has filed a petition for rehearing in this case, which the Fourth Circuit has granted. As such, this opinion has been withdrawn.

Wednesday, July 29, 2015

Illegal re-entry 16-level bump error

US v. Parral-Dominguez:  Mr. Parral-Dominguez was arrested in North Carolina in 2010 in possession of more than an ounce of cocaine.  He pleaded guilty in state court to drug trafficking charges, and state authorities informed ICE of his illegal status; he had been previously deported in 2007.  He was indicted federally for illegal reentry at the end of 2013, and pleaded guilty in March 2014 without a plea agreement.

Parral-Dominguez made a single objection to the PSR, to a 16-level bump to his offense level for having been convicted previously of a crime of violence, arguing that as a matter of law, the North Carolina state offense of shooting into an occupied building (for which he had been convicted in 2007, which lead to his deportation) did not constitute a crime of violence.  The district court disagreed, and imposed the enhancement, and in its sentencing order, it relied heavily on an unpublished decision to conclude that the state offense was a crime of violence.  Parral-Dominguez appealed.

The Fourth Circuit resolved the issue in Parral-Dominguez’s favor, finding that the North Carolina state offense of discharging a firearm into an occupied building does not constitute a crime of violence for federal sentencing purposes.  The Fourth Circuit applied the categorical approach, finding that the statute at stake does not require that an offender use force against another person in order to complete the crime.

The Fourth Circuit found that this procedural error was not harmless because it could not say that regardless of the calculated Guidelines range, 65 months is the “only” sentence the defendant would have received, and the district court gave no indication that it would have imposed a similar sentence regardless of any procedural error.

Divided panel vacates dismissal

US v. Vinson:  The government appealed the district court’s order that granted the defendant’s motion to dismiss the indictment in this case; the defendant had been indicted for being a felon in possession after a consensual search of his residence revealed a rifle and ammunition, and in 2004, he had been convicted of misdemeanor domestic violence in North Carolina.  At issue is whether the prior conviction qualified Vinson as a person not to possess a firearm under 18 U.S.C. §922(g)(9).

This case arose from a January 2013 incident in which police received information that Vinson allegedly threatened his wife and children’s lives, and then fled.  The police put the kids’ school on lock-down and Vinson’s wife permitted the police to search their home, wherein the gun and ammo were discovered.  In making its determination on the motion to dismiss, the district court stated that, under the law, assault and battery charges don’t necessarily connote acts of violence.  The district court concluded that Vinson’s prior conviction did not qualify as a misdemeanor crime of domestic violence under the categorical approach.  The government appealed.

On appeal, the government argued that contrary to the district court’s conclusion, the modified categorical approach may be applied in this case, as the state statute of Vinson’s prior conviction is divisible because it has elements creating several different crimes, some of which match a generic federal offense.  The Fourth Circuit agreed with the government here, vacated the order dismissing the indictment, and remanded with instruction to reinstate the indictment against Vinson.

Judge Gregory dissented, arguing that the majority relied upon “tenuous suppositions, inapposite jury instructions, and the decision of a state intermediate appellate court (at odds with the state supreme court) to hold that assault is a divisible offense in North Carolina.”

Reversal of order requiring medication by force

US v. John Watson, Jr.:  In this appeal, the Fourth Circuit reversed the district court’s order that granted the government’s request to forcibly medicate Watson to attempt to make him competent to stand trial.  A divided panel concluded that the government had not met its burden of proving that forcibly medicating Watson, in particular, was substantially likely to restore his competency.  Watson had been indicted with several charges after he shot at a Coast Guard helicopter with a handgun.

The issue of whether to forcibly medicate a defendant to render them competent to stand trial is controlled by the Supreme Court’s 2003 decision in Sell v. United States.   In Sell, the Supreme Court developed a four-part test; each part must be proven to the “deliberately high” standard of clear and convincing evidence.

On appeal, the first two parts of the Sell test were at issue: whether the government showed important governmental interests at stake; and whether the government showed that involuntary medication would significantly further its interests, requiring proof that the medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects which would interest significantly with the defendant’s ability to assist counsel at trial.

The Fourth Circuit held that because the district court had clearly erred in finding that the government met its burden on the second prong of the test, it did not decide whether the district court erred with respect to its conclusions on the first prong of the Sell test.  With regard to the second part of the test, the Fourth Circuit discussed the lack of findings below that assessed the likely success of the government’s proposed treatment plan in relation to Watson and his condition in particular; the Fourth Circuit stated that the proper enquiry for courts is not whether the proposed treatment plan will work in general, but whether it will work as applied to a particular defendant.  The Fourth Circuit held that the district court did not undertake the searching and individualized assessment of Watson’s likely susceptibility to forcible medication that is required by law.

Further, by resolving the appeal issues in this case by deciding that the government has not justified forcible medication in this case, the Fourth Circuit determined that the district court’s order be reversed, rather than remanding the case to the district court for further proceedings.  The Fourth Circuit concluded that the district court had ample opportunity to assemble and defend the evidence necessary to meet its burden here, and it failed to do so.

Monday, July 13, 2015

Former Virginia Governor's convictions affirmed

US v. McDonnell:  Despite an impressive group of amici in support of his appeal, the former governor of Virginia, Robert McDonnell, lost the appeal of convictions he received following his five-week trial.  The Fourth Circuit affirmed the judgment of the district court.

Two most important issues on appeal: 1) McDonnell argued that the district court’s jury instructions misstated fundamental principles of federal bribery law; and 2) the government’s evidence was insufficient to support his convictions pursuant to the honest-services wire fraud statute and the Hobbs Act.  The Fourth Circuit was unpersuaded by each of McDonnell’s jury instruction claims, e.g. the instructions were over-inclusive, broad, incomplete, misleading, or unprecedented. Further, McDonnell claimed one instruction was a misstatement of the law, a statement with which the Fourth Circuit disagreed, finding the instruction “indisputably correct,” and “not erroneous with respect to the Hobbs Act extortion charges."  Further, one instruction that may have been debatable to the Fourth Circuit, that the subjective beliefs of a third party in an honest-services wire fraud case cannot “convert non-official acts into official ones,” was found to be harmless, if indeed an error occurred.    The Fourth Circuit held that McDonnell failed to show that the “official act” instructions, taken as a whole, were anything less than a “fair and accurate statement of law.”

McDonnell’s claim about the sufficiency of the evidence also failed on appeal, with the Fourth Circuit finding ample “official acts” of McDonnell exploiting the power of his office in furtherance of an ongoing effort to influence state university researchers.  The Fourth Circuit found his corrupt intent was evidenced by expensive vacations, accepting loans, etc., as well as shopping sprees, cash, golf outings and vacations, all free to McDonnell and his family.  These were not goodwill gifts from one friend to another, but gifts in exchange for official acts to help a pharmaceutical company secure independent testing for its product, Anatabloc, and that McDonnell acted in the absence of good faith in receiving them.  Thus, McDonnell failed in his efforts to sustain the burden of bringing a sufficiency of the evidence challenge.

Supervised release term of illegal re-entry sentence affirmed

US v. Aplicano-Oyuela:  Appellant Aplicano-Oyuela pleaded guilty to illegal re-entry via plea letter he submitted to the court, rather than plea agreement.  The PSR included a calculated guidelines range of 10 to 16 months, with the possibility of a supervised release term of up to three years.   Aplicano requested that the court impose a sentence of 8 months, but he did not address the suggested supervised release term in the PSR.  At sentencing, the district court repeatedly expressed its perceived belief of the likelihood of Aplicano’s recidivism, as well as his likely return to the US after deportation, and it imposed a 13-month term of imprisonment, to be followed by three years of supervised release, so that he could be punished for a long time should he choose to come back to the US and/or commit any further crimes.

On appeal, Aplicano challenged his 3-year term of supervised release, arguing that it is both procedurally and substantively unreasonable, and that his guilty plea was “fatally flawed.”  Since Aplicano did not object to his supervised release term until his appeal, the Fourth Circuit reviewed his issues for plain error only.  The Fourth Circuit began its analysis with a review of the supervised release system, pertinently how the Guidelines were amended in 2011, so that when an alien is facing post-incarceration removal and supervised release is not required by statute, courts should ordinarily not impose a term of supervised release.  While imposing a term of supervised release on removable aliens is not forbidden, the public is “ordinarily” and “adequately” served by a new prosecution alone.

The Fourth Circuit, in non-precedential unpublished decisions, has generally affirmed the imposition of supervised release on aliens likely to be removed post-incarceration.  The Fourth Circuit found the imposition of a term of supervised release procedurally reasonable, as the district court believed that it would deter Aplicano from committed future crimes, curb his desire to return to the US again, to protect US citizens, and that Aplicano’s need to be deterred was a great concern than punishing him.  Next, the Fourth Circuit held the imposition of supervised release was substantively reasonable because of the district court’s intention to provide deterrence and protection for the community.  Finally, with regard to Aplicano’s guilty plea, the Fourth Circuit decided that even if the district court had erred in advising Aplicano of the nature of supervised release, Aplicano did not show that such error affected his substantial rights, nor that but for the error, he would not have entered the plea.  The judgment of the district court was affirmed.

Wednesday, July 01, 2015

Erroneous Simmons Fueled ACCA Designation Can Be Attacked In 2255

US v. Newbold: Once again, we have a question of how the Fourth Circuit's decision in Simmons impacts a sentence imposed before that case was decided. In this case, Newbold pleaded guilty to being a felon in possession of a firearm and was sentenced under ACCA to a 225-month sentence. After a convoluted procedural path (the Fourth calls it "miraculous"), Newbold was present before the Fourth Circuit after filing a timely 2255 motion seeking the vacation of his sentence, based on the retroactivity of Simmons.

The Fourth Circuit vacated Newbold's sentence. Although the Government agreed that Simmons was retroactive, the court nonetheless had to "ensure that the sentencing error Newbold seeks to challenge is cognizable on collateral review." It was because, unlike the recent cases involving retroactive Simmons challenges to career offender calculations, the application of ACCA in this case increased Newbold's statutory sentence. Thus this was one of the limited universe of "fundamental defects" that could be corrected in 2255 proceedings. The court then examined Newbold's priors, found that he could not have received sentences of more than one year for them, and concluded he should not have been sentenced under ACCA.

Failure To Disclose SEC Fraud Investigation of Key Witness Requires Vacation of Convictions

US v. Parker: Parker, his codefendant/appellee Taylor, and his son Brett (a codefendant below, but not coappellee - he's serving two life terms in South Carolina for multiple murder) were convicted of illegal gambling in an operation including at least five people. Parker and Taylor stipulated that they were engaged in a gambling business and that it included a related operation run by Brett and another man. The key issue at trial was whether there was a fifth person involved. The Government sought to meet that burden via other individuals related to Brett, most critically his (now murdered) wife, Tammy. A witness named Staples provided testimony that Tammy was involved in the gambling operation by managing and spending its proceeds. There was some physical evidence corroborating that testimony. The Government also presented evidence that other individuals ("layoff bookies") were involved in the operation. Finally, there was evidence that Brett received "lines" from a separate bookmaker who could be the fifth person.

On the Friday before trial began, Staples told the Government that he was being investigated by the SEC in Utah for fraud. That information was not disclosed to the defense, who did not cross examine Staples when he testified. The day he testified the Government's civil division received a draft complaint from the Utah SEC office alleging fraudulent conduct on Staples's part. The complaint was filed two days after the jury convicted Parker and his codefendants, who finally learned of the SEC investigation the next day. They moved for a new trial on Brady grounds, which the district court denied because the SEC report "was not material to the jury's determination of the defendants' guilt" because Staples's testimony only related to Tammy's role in the operation and the Government's case didn't rely on her to be the fifth person.

On appeal, the Fourth Circuit reversed. The court found that the SEC investigation constituted impeachment evidence (as well as evidence of untruthfulness under FRE 608) that was material because while the jury could have found that someone other than Tammy was the fifth person in the operation, the evidence most strongly linked Tammy to the operation and thus there was "a reasonable probability that at least one juror would have viewed Tammy as the fifth participant." Aside from Staples's testimony, the other evidence linking Tammy to the operation was "minimal." Furthermore, it rejected the Government's arguments that it was under no duty to disclose evidence of an investigation by another agency and that the defendant's knew or should of known of the conduct underlying the SEC investigation. Having said all that, the court made clear that it was vacating the convictions and remanding for further proceedings, not entering judgments of acquittal, as the evidence presented at trial was sufficient to convict.

Sentence Consecutive to Any Future Federal Sentence Error, But Not Plain

US v. Obey: Obey was initially convicted of multiple drug counts and sentenced to 540 months in prison. His convictions were vacated on Giglio grounds and, on remand, he entered into a plea agreement. He agreed to plead guilty to a single count with a 20-year statutory maximum and the Government would argue for a sentence of 18 years. Sentencing came and the Government argued for an 18-year sentence. However, the Government (in response to the district court's questions) advised the court about Obey's pending state murder trial, confirmed that he was a career offender, but reiterated the 18-year recommendation. The district court denied the Government's "request for a variance" (it's unclear what the actual Guideline range was) and sentenced Obey to 240 months in prison, to be served consecutively to any other sentence, including any federal or state sentence he might receive.

The Fourth Circuit affirmed Obey's sentence on appeal. First, it rejected (reviewing for plain error) his argument that the Government breached its promise in the plea agreement by not being more forceful in its assertion of the 18-year recommendation or by providing sufficient reasons as to why that sentence was appropriate. The court concluded that the Government repeatedly restated its recommendation, did not criticize or undermined that recommendation, and that the plea agreement didn't call for the Government to do any more than make the recommendation. Second, it rejected the argument that the district court erred by ordering Obey's sentence to be served consecutively to any future state or federal sentence. The court concluded that the Supreme Court's holding in Setser that allowed sentences to be consecutive to future state sentences did not extend to future federal sentences as well (per prior Fourth Circuit precedent). However, Obey was stuck with review for plain error and the court found, in light of Setser, that the district court's error was not "plain."

Tuesday, June 16, 2015

Crime of Violence, Recklessness Enhancements Vacated

US v. Shell: Shell was speeding down a highway when he was spied by a police officer going the other direction. By the time the officer turned around he had lost sight of Shell, but quickly found his car wrecked down an embankment. Shell had fled. He was later apprehended and admitted possessing a firearm found in a bag near the car. After pleading guilty to being a felon in possession of a firearm, his sentence was enhanced for having a prior "crime of violence" - a North Carolina conviction for second degree rape - and for recklessly fleeing from a police officer. He was sentenced to the bottom of the resulting Guideline range, 57 months in prison.

On appeal, a divided Fourth Circuit vacated Shell's sentence, finding the district court erred by applying both enhancements. As to the crime of violence (which increased Shell's base offense level from 14 to 20), the court found that the second degree rape in North Carolina is not categorically a crime of violence. Although it can be committed in a way that requires violent force (and therefore would be a crime of violence), it also includes offenses involving victims who are unable to consent (for various reasons) but without violent force. Because it was unclear under which section Shell was convicted, the court concluded the enhancement did not apply. As to the reckless endangerment, the court concluded that it was necessary that any flight be an attempt to flee from the police, not merely conduct that is otherwise reckless. Because the district court did not examine whether Shell was fleeing the officer or merely being generally reckless, it remanded the issue to the district court.

Judge Wilkinson dissented, arguing that the North Carolina conviction was a crime of violence, even under the incapacitated victim section because it required knowledge of such incapacitation and "protects people considered incapable of volitional acts from such callous conduct." He agreed on the law on the reckless conduct enhancement, thought "the district court's discussion has already incorporated the fact of such knowledge," but did not oppose remand on that issue.

Congrats (again!) to the Defender office in Western NC on the win!

Court Clarifies Supervise Release Revocation Review

US v. Padgett: Padgett was serving a pair of concurrent terms of supervised release when was allegedly involved in an incident in which he fired a gun five times after an argument. As a result, he was charged with violating the conditions of his term of supervised release in various ways. He contested the allegations, but the district court found he committed them and sentenced him to consecutive terms of imprisonment of 10 and 14 months, followed by more (concurrent) terms of supervised release.

On appeal, the Fourth Circuit affirmed Padgett's revocation and sentence. First, it clarified that while the ultimate decision to revoke a term of supervised release, factual determinations about the defendant's conduct were reviewed for clear error. Applying that standard, the court found that the district court did not clearly err by crediting the eyewitness testimony presented by the Government that Padgett possessed a firearm, was in an argument with someone else, and fired the gun in the air. Second, the court concluded that the sentences were within the advisory Guideline range and statutory range and were not plainly unreasonable.

Ambiguous Offense Dates Can't Support ACCA Enhancement

US v. Span: Span pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government argued that he qualified for an enhanced sentence under ACCA thanks to four prior North Carolina robbery convictions. It provided state court documents - indictments, judgment, and a plea "transcript" (actually a filled in form) - to support its position. Span agreed that the convictions qualified as "violent felonies," but argued that the Government had not proven that they occurred "on occasions different from one another." In particular, the dates of the offenses on the various documents provided by the Government were inconsistent. The district court concluded that ACCA applied based on three of the four priors, that the date discrepancies were likely typographical errors, and that the robberies were "separate criminal episodes" that involved different individual victims (although they all involved the same business). Span was sentenced to the mandatory minimum term of 180 months in prison.

On appeal, a divided Fourth Circuit vacated Span's sentence. Noting that while the ultimate conclusion that ACCA applied was a legal one subject to de novo review, the court reviewed the district court's factual determinations only for clear error. Nonetheless, it found clear error in the district court's conclusion that the three prior convictions occurred on occasions different from one another. Looking to the Government's documents, the court recognized that '[n]o single offense date for any predicate robbery conviction is consisted across all three sources." In light of those discrepancies, the district court clearly erred in its conclusion. Without that factual finding, the legal conclusion that ACCA applied was also incorrect. As a result, Span's sentence was vacated (the court did not reach Span's constitutional challenge to the ACCA finding).

Judge Motz dissented, arguing that the majority had misapplied the clear error standard. She argued that the district court's conclusion about when the offenses occurred was plausible, although possibly incorrect. Given the deference afforded factual determinations on appeal, such a conclusion was not clearly erroneous.

Congrats to the Defender office in Western NC on the win!

Tuesday, June 02, 2015

Court Vacates Something for Reasons Unknown - But Is Unhappy With the Government

US v. Adams: Adams was charged with . . . something. Based on a check of the docket sheet on PACER, it was multiple counts of conspiracy, racketeering, and murder. I have no idea what the outcome of the proceedings were, however, because most of the documents below are sealed. But I assume he was convicted of something, since he appealed.

Good news for Adams - he won. On plain error review, no less. But, again, I have no idea how or why, because the court's nearly unanimous opinion is, likewise, sealed (although, to be fair, it urges the district court to revisit whether the documents should stay sealed). What isn't sealed, however, is the Fourth Circuit's sealing order, which has little to do with sealing (on which the panel was unanimous), and everything to do with questioning why the Government put up a fight on appeal.

The opinion, written by Judge King, contains a footnote (set forth in the sealing order) that expresses surprise "that the government failed to confess plain error on appeal and thereby enhance the integrity of judicial proceedings." It invoked Berger v. US and the old chestnut that a prosecutor's first duty was to justice.

Judge Agee joined all of the panel opinion except that footnote. In a concurrence issued as part of the sealing order (and itself partially redacted). He emphasized the Government's "'broad' prosecutorial discretion," that said discretion applies on appeal, and that this "case does not present one of those rare occasions when we should disparage a coordinate branch for doing what the Constitution and its statutory mandate charge it to do." Of course, we have no idea if Judge Agree is correct, since we don't even know what the issue(s?) on appeal was, much less what the Government's argument was.

Senior Judge Davis issued his own concurrence, joining Judge King's opinion "in full." He contrasted himself to Judge Agee, "who apparently believe[s] it is never appropriate for those of us in the Judicial Branch to express reservations or disapproval of manifestly irregular, if not illegal, 'strategic choices' by prosecutors," and instead "believe[s] judges need to say more, not less, to the political deficits in our criminal justice system." He goes on to say (internal citation omitted):

Contemporary discord in this country we all love, especially in stressed communities where interaction with the criminal justice system is a regular and dispiriting occurrence for many residents, might well be reduced if we judges better used our voices to inform and educate the political branches about how the decisions they make actually operate down here on the ground floor of the criminal justice system. In an era of mass incarceration such as ours, any fear that restrained judicial commentary on dicey prosecutorial practices or “strategic choices” might result in 'the Government [] becom[ing] a less zealous advocate,' is most charitably described as fanciful.

Tuesday, May 26, 2015

Prior offenses impact grading of supervised release violations

US v. Wynn:  Anthony Wynn began a 5-year term of supervised release upon completion of the imprisonment portion of a 150-month drug trafficking sentence.  His PO filed a petition for revocation of Wynn’s supervised release after Wynn tested positive for marijuana use 6 times, as well as other allegations, e.g., driving without a license, operating an uninsured vehicle, and tinted windows, failing to submit monthly reports, failure to complete substance abuse treatment, and failing to timely advise his PO of a new arrest.  Wynn admitted his violation conduct; the district court found that Wynn had violated his supervised release, and revoked him.

Wynn’s PO calculated a term of imprisonment based on Wynn’s prior drug convictions.  Even though his marijuana charges would have been grade C violations absent any consideration of Wynn’s criminal history, the PO counted the violations as grade B violations under a recidivist enhancement.  Wynn had prior convictions in state court for possession of heroin, possession with intent to deliver heroin, possession of marijuana, and possession of heroin, and possession of cocaine and marijuana, dating from 1994 through 2002.  The district court held that Wynn’s recidivism directly affected the grade of his violations; Wynn challenged the procedural calculations of his revocation sentence on appeal.

The question on appeal was whether the court properly applied a statutory enhancement in calculating the applicable policy statement range, whether Wynn’s conduct of possessing marijuana was a grade B or C violation under the policy statements.  The difference between these two violations is the length of the term of imprisonment the offense may by punishable by:  grade C violations call for one year or less; grade B violations call for term exceeding one year.  Application Note 1 to USSG §7B1.1, according to the panel here, allows the “district court to consider not only conduct for which a defendant is prosecuted in a criminal case, but all of a defendant’s conduct,” whether or not the defendant has been prosecuted for it.  The commentary, the panel found, suggests that district courts should consider all conduct that affects the maximum penalties for a violation of supervised release.  The Fourth Circuit upheld the determination that this defendant’s possession of marijuana during his supervised release constituted grade B, not grade C, violations.

Simmons does not shield defendant from 12-level enhancement

US v. Bercian-Flores:  In this appeal, Jose Bercian-Flores challenged the sentencing enhancement he received in his illegal re-entry case, a 12-level bump based upon his prior 1997 conviction for unlawfully transporting aliens.  Bercian-Flores argued on appeal that Simmons shielded him from this enhancement, as his guidelines range for his 1997 conviction (when the guidelines were mandatory) was zero to 6 months; the Fourth Circuit found, however, that since the sentencing judge in 1997 had the discretion to sentence Bercian-Flores for up to five years then, the enhancement here was not an error.  The Fourth Circuit affirmed the sentence.

Bercian-Flores emphasized that he was not punished for more than a year for his 1997 conviction, and the guidelines prescribe a 12-level enhancement for illegal re-entry defendants when such an individual has a prior felony conviction for smuggling other aliens “punishable by imprisonment for a term exceeding one year.”  U.S.S.G. §2L1.2.  What’s more, the judge who sentenced Bercian-Flores in 1997 had found no aggravating factors, and no factual findings that warranted an upward departure beyond zero to six months.  The Fourth Circuit disagreed, finding that the top sentence in a guidelines range is not the maximum term of imprisonment, as determined by the Supreme Court.  The statutory maximum sentence as set by Congress controls whether Bercian-Flores’ prior convictions counts as a predicate felony for sentencing enhancement here, not the top sentence in his guidelines range.

Pretrial motions improperly reduced government's ability to put on case

US v. Bajoghli:  In this interlocutory appeal, the Fourth Circuit analyzed the propriety of a district court’s decisions on certain pretrial motions.  The Fourth Circuit panel reversed and remanded, and found that the evidence the defendant attempted to strike or exclude was relevant to the government’s ability to prove its case, and it was an abuse of the district court’s discretion to “unduly restrict the latitude reasonably necessary for the government to carry its burden of proof.”

Bajoghli stands accused of healthcare fraud.  The government has alleged that over a three-and-one-half-year period, Bajoghli, a dermatologist, orchestrated a scheme of falsely diagnosing patients with cancer, and performing unnecessary procedures on his unsuspecting patients.  Bajoghli would also direct “unqualified” medical assistants to perform a variety of procedures without supervision, but he would bill healthcare benefits programs as if he, himself, had performed them, billing the programs at a higher rate.

The government argued in its appeal that in order to prove a healthcare fraud scheme existed, it must be able to prove the “entire scheme,” with evidence that may not be directly related to the 53 charges, yet was relevant to proving the scheme.  The district court had ruled that evidence presented at trial must relate to one of the 53 instances of fraud named in the indictment, and Bajoghli argued that evidence of uncharged conduct would only be “loosely relevant” to the charged offenses and should be excluded under Rule 403 as unfairly prejudicial as well as under Rule 404(b)’s notice requirement, as “other acts” evidence.  The Fourth Circuit found that evidence of the entire scheme is relevant to proving the 53 charged acts, in proving the “boundaries” of the scheme.  Additionally, the Fourth Circuit found that since evidence of conduct not charged in a specific execution may be relevant to the healthcare fraud scheme, Rule 404(b) does not regulate it as “other bad acts.”

The district court ruled that post-scheme conduct should be excluded as “prior bad acts evidence” governed by 404(b), for which the government failed to provide adequate notice to Bajoghli.  The district court also excluded this evidence under Rule 403.  In his appeal, Bajoghli argued that Rule 404(b) does apply to this evidence because it would not be “intrinsic” to any of the charged executions of healthcare fraud.  However, the Fourth Circuit agreed with the government that this evidence was probative of Bajoghli’s knowledge and intent, which are elements of healthcare fraud, and since Rule 404(b) does not apply to conduct that is “intrinsic” to the charged crime, it was an error for the district court to use it as a basis for the exclusion of this evidence.  The district court further misapplied Rule 403 here, according to the panel, because it reflects a misunderstanding of what constitutes unfair prejudice, i.e., evidence that would “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” [Emphasis in original].

Lastly, with respect to the financial gain Bajoghli allegedly earned by charging his healthcare benefits providers for work that Bajoghli allegedly sent off to outside contractors (who completed the work at a fraction of what Bajoghli purportedly received), the Fourth Circuit and the government concurred again, in that this evidence of financial gain was probative of intent to defraud.

Thursday, May 07, 2015

District Court's Advocacy of Plea Bargain Requires Vacation of Plea

US v. Braxton: Braxton was charged with possession with intent to distribute more than 1 kilogram of heroin. His attorney advised him during plea negotiations that, if he went to trial, the Government could file an information increasing his mandatory minimum sentence if convicted from 10 to 20 years. Braxton at first requested a new attorney, but later withdrew the request. He insisted on going to trial, however, before which the Government filed the information.

On the day of trial, the court memorialized the last plea offer that Braxton rejected (he would admit he possessed the heroin, but he wanted to put the Government to its proof) - the Government would withdraw the information and argue for a sentence of 15 years. Braxton again asked for new counsel or, in the alternative, to represent himself. Both of those requests were denied. Wading into the dispute between Braxton and his attorney, the district court expressed reluctance at letting Braxton go to trial, said Braxton was "hurting [his] own interest," and compared his decision to "put[ting] [your] head in a buzz saw that makes absolutely no sense." After a couple of breaks in the proceedings, Braxton changed his mind and agreed to plead guilty. Braxton said he didn't feel coerced or pressured into pleading, although the district court had expressed its concern that he was "unwisely proceeding to trial before a jury." Braxton unsuccessful tried to withdraw his plea and was sentenced to 138 months in prison.

On appeal, the Fourth Circuit vacated Braxton's conviction. Relying on last year's decision in Sanya, the court concluded that the district court had improperly participated in plea negotiations in violation of Rule 11 of the Rules of Criminal Procedure. As in Sanya, the court's "commentary was extensive and persistent, and continued unabated" through the day of trial. In addition, Braxton's change of heart came after one of the district court's more pointed bits of commentary (opining that he "shouldn't put his head in a vice and face a catastrophic result"). The error was plain, affected Braxton's substantial rights, and had to be noticed. It was irrelevant that Braxton said, at the time, that he was entering the guilty plea voluntarily. The court also rejected the Government's argument that the district court was drawn into the issue by Braxton's request to represent himself, noting that issue was resolved before the district court really got going on why he should enter a guilty plea.

Erroneous Career Offender Calculation Cannot Be Corrected in 2255 Proceeding

US v. Foote: Recall last year when the Fourth Circuit, in Whiteside, first concluded that an incorrect career offender calculation due to a Simmons error could be remedied in a 2255 proceeding and then, en banc, concluded that it could not. The issue in Whiteside specifically was the technical 2255 issue of whether the motion in that case (filed within a year of Simmons being decided) was timely. Thus, Whiteside didn't technically address the central substantive issue of whether an erroneous career offender designation could be remedied in a 2255 proceeding. Foote takes that issue head on and, unsurprisingly, comes to a similar conclusion.

Foote pleaded guilty to distributing crack. He was classified as a career offender based, in part, on a pair of prior North Carolina drug convictions that, under Fourth Circuit precedent at the time, carried a potential maximum sentence of more than one year in prison. He challenged the career offender determination on appeal (unsuccessfully) and then in a timely 2255 motion. Simmons was decided while Foote's 2255 motion was pending, showing that his priors were not felonies (because he was not subject to a maximum sentence of more than one year) and he was not, therefore, a career offender. The district court denied the motion, but granted a Certificate of Appealability on the issue of whether the error could be remedied in a 2255 proceeding.

On appeal, the Fourth Circuit concluded that it could not and affirmed the denial of the 2255 motion. Noting that a sentencing error (that does not impact constitutional or jurisdictional claims) can only be remedied in a 2255 proceeding if the error is "a fundamental defect which inherently results in a complete miscarriage of justice," the court concluded that "sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet this remarkably high bar." The court noted that, in general, Guideline errors are not subject to 2255 review in the Fourth Circuit. It also recognized that other circuits had drawn a distinction between career offender errors under a mandatory system (2255 applies) and advisory system (2255 doesn't apply). The court rejected Foote's attempt to stretch the Supreme Court's "actual innocence" cases to include sentencing errors (much less advisory Guideline calculation errors). In conclusion, the court expressed "frustration" at the result (pointing out that Foote had done everything correctly in order to challenge his sentence), but that "the guidance of the Supreme Court and Congress is clear" and it "ties our hands."

Thursday, April 16, 2015

NC Second-Degree Kidnapping Is Crime of Violence

US v. Flores-Granados: Flores-Granados was convicted of second-degree kidnapping in North Carolina in 2007, after which he was deported to his native Honduras. In 2013, he was found in Virginia and eventually pleaded guilty to reentering the country illegally. At issue at sentencing was whether his prior conviction was an "aggravated felony" or "crime of violence" under 2L1.2(b)(1), resulting in an enhancement of either 8 or 16 offense levels. The district court concluded that the conviction was a crime of violence, based on the actual facts underlying the conviction (Flores-Granados broke into a home, threatened the use of a gun, and stabbed the victim with a screwdriver) that showed "the type of violent conduct which justifies the 16-point enhancement."

Flores-Granados appealed his sentence, which the Fourth Circuit affirmed. Although it agreed (and the Government conceded) that the district court erred by analyzing the underlying facts of the prior conviction, rather than the elements or (at most) the Shepard-approved documents, the district court's ultimate conclusion was correct. The court noted that kidnapping is a specifically listed "crime of violence" in the Guidelines and that the elements of second-degree burglary as defined by the North Carolina courts, fall within the generic definition of burglary contemplated by the Guidelines. As the court concluded, "[p]ut simply, the statute is what we mean when we say 'kidnapping.'"

Convictions for Somali Pirates Affirmed

US v. Beyle: Beyle and his codefendant, Abrar, were involved in a Somali pirate raid against a US sailboat, the Quest, which resulted in the death of four Americans on board and the intervention of the US Navy. Both were convicted of 26 counts related to the raid, including murder within the special maritime jurisdiction of the United States (which includes the "high seas") and discharge of firearms during a crime of violence and sentenced to multiple life sentences (some concurrent, some consecutive).

Beyle and Abrar both appealed their convictions, on different grounds, which the Fourth Circuit affirmed. As to Beyle, he argued that the district court lacked jurisdiction on the murder and firearm charges because they took place not on the "high seas" but in Somali territorial waters. The raid occurred in the middle of the Indian Ocean, but the Quest was turned by the pirates toward the Somali coast and was about 30 miles from the coast when the Navy intervened. While that was within the "exclusive economic zone" of Somalia, it was not within the more narrowly defined "territorial waters, which, by international treaty (to which Somalia is a party), extend only 12 miles from the coast.

As to Abrar, he argued that he was denied Fifth and Sixth Amendment rights with regard to his defense of duress - that he had been kidnapped and forced to take part in the raid. The court concluded that his inability to subpoena witnesses was not the fault of the United States, but simply due to the fact that the witnesses were foreign nationals residing in other countries. In addition, there was no evidence that the witnesses actually existed. Therefore, Abrar was not prevented from developing and presented a duress defense.

Lifetime Supervised Release Term Reasonable for CP Defendant

US v. Helton: Helton pleaded guilty to being in possession of child pornography. In a statement to police following the seizure of his computer, Helton admitted the possession, denied sharing it with others, and explained that he had "sought treatment in the past." He was sentenced to 60 months in prison, below the advisory Guideline range, and to a lifetime term of supervised release.

On appeal, the Fourth Circuit affirmed Helton's lifetime term of supervised release. First, the court concluded that there were no procedural errors in the imposition of the sentence. It rejected Helton's argument that the district court had not provided sufficient explanation for why a lifetime term of supervised release was "sufficient, but no greater than necessary." In particular, the court stressed that the district court had concluded that a variance for the term of imprisonment was only appropriate "because she knew that Helton would be subject to a lengthy term of supervised release" and that the district court upheld several of Helton's objections to strict optional conditions of supervised release. Second, the court found the lifetime term (which it described as within the statutory and Guideline ranges) was also substantively reasonable, largely for the same reasons.

Judge Gregory wrote a concurring opinion, in which he praised the district court for "display[ing] courage in varying downward" and hoping that "[p]erhaps, in the future, our Guidelines will evolve to become truly proportional to the severity of our crimes."

NOTE: I argued the case on appeal for Helton.

No Prejudice In Failure to Make Jury Perform Pinkerton Analysis

US v. Rangel: Rangel was convicted at trial of various drug charges, including distribution of more than 1000 kilograms of marijuana, which carried a 120-month mandatory minimum sentence. The jury made a finding that the conspiracy involved that much marijuana, but  was not instructed to determine the amount attributable to Rangel himself under a Pinkerton liability analysis. He was sentenced to 121 months in prison, the bottom of the Guideline range. Rangel filed a 2255 motion, arguing that both trial and appellate counsel were ineffective for failing to request a Pinkerton instruction and that trial counsel was ineffective for failing to object to the amount of relevant conduct attributed to Rangel at sentencing. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the dismissal of Rangel's 2255 motion. With regard to the instruction issue, the court agreed (and the Government conceded) that the jury was not properly instructed and should have been required to perform a Pinkerton analysis in rendering a verdict. Therefore, trial counsel's performance fell below the standard required. However, Rangel was unable to show prejudice because he could not show "a reasonable probability of a different result" at sentencing. Reviewing the evidence at trial, the court concluded that "Rangel's sentence would have been the same with a proper jury instruction" in light of the "overwhelming" evidence against him. Furthermore, the district court would have made the same findings with regard to relevant conduct and the Guideline calculation would have been unchanged. The same analysis applied to appellate counsel's performance, as he would have been saddled with plain error review had the issue been raised. Finally, the same prejudice analysis applied to trial counsel's failure to object to the relevant conduct calculations at sentencing.

Tuesday, March 31, 2015

RICO convictions affirmed

US v. Cornell, et al.:  In this appeal, three members of the Latin Kings based in Greensboro, North Carolina, challenged their convictions for conspiracy to violate RICO, asserting trial errors in the jury instructions and a lack of sufficient evidence to support their convictions.

The defendants made several joint arguments: 1) that the government failed to establish that the RICO enterprise affected interstate commerce; 2) the jury instruction on RICO was erroneous because, in the defendants’ view, the district court was required to charge the jury that it had to unanimously agree upon the specific acts that the co-conspirators engaged in during their conspiracy; and 3) the district court gave improper Allen charges, the second of which coerced the jury into an unfavorable verdict.

The district court applied the “minimal effects” standard to determine whether a RICO conspiracy existed.  The Fourth Circuit panel approved the district court’s approach, based on circuit precedent, despite the defendants’ reliance on a Sixth Circuit case, which held that when a gang is not shown to have conducted considerable economic activity, the government must prove that the RICO enterprise substantially effected interstate commerce.  The panel here found that the Sixth Circuit case was not the law, nor did the panel find that case particularly valid in light of a more recent Supreme Court case to the contrary.  Further, even if the Sixth Circuit case did apply here, the district court found evidence that the RICO conspiracy here involved multiple acts of bank fraud, from a false check scheme, as well as the fact that the gang used their cell phones and carried guns during multiple robberies; all of which were economic activities that would trigger a connection to interstate commerce, according to the Fourth Circuit.

With regard to predicate acts, the Fourth Circuit held that there was no requirement that the district court had to instruct the jury as to specific acts that the conspirators engaged in during the conspiracy.  The panel noted that the Supreme Court has held that the RICO conspiracy statute contains no requirement of some overt or specific act, and that the conspirators merely must agree on the same criminal objective, regardless of whether that objective is acted upon or carried out.  So, the panel held that directing a jury to identify what predicate acts occurred is not required.

The defendants argued that the effect of the Allen charges to the jury was improperly coercive.  The Fourth Circuit panel found the district court did not abuse its discretion in the Allen charges it gave to the jury, after analyzing the language of the instruction, its incorporation with other instructions, the timing of the instruction, and the length of the jury’s subsequent deliberations.  The jury here deliberated some three hours after the second Allen charge before returning a verdict, and the jury returned a split verdict, acquitting three co-defendants and finding predicate acts in 5 out of 9 possible categories submitted for review, indicating that the jury carefully considered the evidence against each defendant.

Two defendants raised separate, individual challenges, regarding trial evidence, specifically the striking of one defense witness’s testimony, the admission of a letter written to one defendant purportedly from a former gang member, as well as whether one defendant, a non-gang-member, was properly included in the conspiracy, and the sufficiency of the evidence supporting a portion of the jury’s verdict.  The Fourth Circuit panel found no merit in any of these individual claims of error; it affirmed the judgment of the district court.

Monday, March 30, 2015

Cookie cutter sentences for convenience store robbers rejected

US v. Lymas, et al.:  In this appeal, the Fourth Circuit considered procedural and substantive challenges to three 200-month sentences, ordered to three of the four co-conspirators in a convenience store robbery ring.  Each of the defendants had different criminal histories.  Each had different advisory guidelines ranges.  However, each defendant received the exact same sentence, based upon the district court’s position that the sentencing guideline under-punished the crimes.  The sentences imposed on each defendant amounted to upward variances ranging from 3 months for one, 15 months for the second, and 62 months for the third.

The Fourth Circuit determined that, except for offering its view of the seriousness of the offense that occurred in this case (i.e., robberies that in some instances involved handguns, in one case a juvenile, and some violence), the sentencing court ignored every other statutory factor, and imposed sentences purely based upon the crime rather than the individual defendants.  In imposing these sentences, according to the panel here, the district court rejected not only the Sentencing Commission’s considered judgment as to the appropriate sentence for the crimes, but also the “foundational principles of the Guidelines themselves - - proportionality in sentence, which ‘match[es] punishment with culpability’.”  While the imposition of this sentence may technically be permissible post-Booker, the Fourth Circuit determined that this sort of “wholesale rejection” of the Guidelines requires a “significantly more detailed explanation than” the district court gave here.   The Fourth Circuit vacated the sentences and remanded to the district court for resentencing.