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.

Monday, March 16, 2015

Robbery conspiracy convictions affirmed - cell phone evidence

US v. Reed, et al.:  In this appeal, the four appellants challenged the trial court’s admission of FBI cellular analysis maps from cell phones purportedly belonging to the four, and their service providers’ cell phone towers, as well as the admission other data derived from the appellants’ cell phones.  They also raised a sufficiency of the evidence challenge, generally denying that they committed the crimes because there were no eye witnesses who could identify them and the government’s theories could have been mere coincidences.  The Fourth Circuit affirmed on all counts.

The appellants committed three robberies in and around the greater metropolitan area of Washington D.C. in December 2012.  During their final robbery, they unwittingly took some cash embedded with GPS devices, which lead police directly to the appellants.  The four appellants went to trial.

At trial, the government provided the appellants’ names, rather than phone numbers, when showing locations of the cell phones on a variety of maps (which, they also argued, were not drawn to scale) corresponding with locations of each of the robberies that took place.  Using a process known as “historical cell-cite analysis,” the FBI can extrapolate an area in which a phone was located over time.  This cell phone evidence, admitted at trial, placed at least one of the appellant near the scene of each robbery at the time the robberies occurred.  Appellants argued that this evidence was not properly authenticated, irrelevant, and unfairly prejudicial.

The Fourth Circuit reviewed the district court’s admission of this evidence for an abuse of discretion, i.e., whether the admission of the evidence was “arbitrary and irrational,” and it found that the district court properly admitted the evidence, as the government provided adequate reason for the jury to believe that the cell phone data could be used to approximate the phones’ locations at pertinent times and that each cell phone was associated with a particular defendant.  In addition to the FBI maps, the photos and text messages, and the labeling of people in the cell phone contacts lists, served to authenticate each phone as belonging to a specific individual.

One of the appellants raised a Sixth Amendment Confrontation Clause challenge, because no everyone in the chain of custody for his purported cell phone testified at trial, i.e., there was no testimony about who initially seized the phone and where it was taken.  Again, the stored photos and text messages on the cell phone allowed the government to connect the phone to this appellant, so any error that may have occurred in the introduction of the evidence was harmless beyond a reasonable doubt.

Tuesday, March 10, 2015

Drug totals must be proven with facts

US v. Flores-Alvarado:  In this appeal, the Fourth Circuit vacated and remanded a life sentence (and concurrent 480-month term) for the defendant’s convictions for his part in a drug trafficking conspiracy that purportedly involved over 30,000 kilos of marijuana equivalent.  At issue was whether the district court conducted a sufficient inquiry into the calculation of the defendant’s drug relevant conduct, and the Fourth Circuit determined that it had not, and remanded the case for further specific factual determinations regarding the defendant’s role in the conspiracy, in addition to whether the drug quantities were reasonably foreseeable as to him.

An investigation into the trafficking organizations, which involved multiple sources of both marijuana and cocaine, lead to two main seizures of drugs from houses in Stokesdale, North Carolina and Lexington, Kentucky, described briefly in the PSR.  During two separate sentencing hearings, the Government did not call any witnesses or present any other evidence about the drug quantities in either of these seizures.  The district court relied upon the recitation of events from the PSR, which attributed all seized quantities to the defendant.  At both sentencing hearings, Flores-Alvarado objected to the drug quantities attributed to him, to no avail.

The Fourth Circuit found that the district court clearly erred in failing to resolve the dispute about whether the events as described in the PSR supported attributing the seized amounts to Flores-Alvarado, and it did not make the necessary factual findings to attribute those amounts to him.  When dealing with drug conspiracies, the Fourth Circuit requires lower courts to “make particularized findings with respect to both the scope of the defendant’s agreement and the foreseeability of [the conduct at issue].”  The Fourth Circuit concluded that the PSR did not contain facts sufficient to show that the seized drug quantities were within the scope of Flores-Alvarado’s criminal activity, that the district court failed to make any findings on that “critical” point, and consequently, the Fourth Circuit was unable to review the issue.

Tuesday, March 03, 2015

Denial of Mens Rea Can Lead to Loss of Acceptance

US v. Burns: Burns got in a beef with Poole at a convenience store.  The next day, according to Burns's fiance, he wanted "to kill" Poole for "jumping him at the store."  Burns (and his fiance) was in a parked car later that day when he saw Poole (and others) in another car.  According to the fiance, Burns got out, confronted Poole, returned to the car and got his gun, telling her "I'm going to shoot him."  She also testified that Burns either said "I'm going to shoot that motherfucker" or said to Poole, "motherfucker, I'm going to kill you."  After one of Poole's passengers got out of the car, Burns shot once into the car (no one was hurt).  Poole sped away, initially pursued by Burns, who later broke off the chase.

Burns pleaded guilty to being a felon in possession of a firearm.  The PSR recommended that his Guideline range be calculated based on a cross reference to murder Guideline.  With a reduction for acceptance of responsibility, his Guideline range was 92-115 months.  Burns objected to those calculations.  Although he admitted possessing the gun and firing it in the car, he denied having the mens rea needed to support an (attempted) murder cross reference, as opposed to aggravated assault.  The district court not only overruled that objection and applied the murder cross reference, but concluded that Burns had falsely denied relevant conduct and did not award a reduction for acceptance of responsibility.  As a result, Burns's Guideline range was 120 months - the statutory maximum.  That was the sentence he received.

On appeal, the Fourth Circuit affirmed Burns's sentence.  The court styled the issue by asking "is acting with a particular mental state relevant conduct within the meaning of USSG 1B1.3(a)(1)(A)?"  The court concluded that it was, rejecting Burns's argument to restrict relevant conduct to only physical actions.  That reading was inconsistent with earlier Fourth Circuit law approving of cross references for attempt (which is all about mens rea) based on "acts or omissions" of the defendant.  Thus, "when Burns denied his 'acts and omissions' including shooting with intent to kill, he denied relevant conduct attributable to him."

Court Rejects Jury Instructions In Marriage Fraud Case

US v. Sonmez: Sonmez came to the United States on a tourist visa in 2000 but remained past its expiration date.  In 2008 he wed Eckloff and sought a green card based on marriage to a US citizen.  The green card was never awarded and eventually an investigation led to Albrecht, who told investigators of a scheme where citizens would marry nationals from the Middle East in order favorably impact their immigration status.  She had introduced Eckloff to Sonmez, who were married two weeks later.  Both Sonmez and Eckloff were charged with marriage fraud, but Eckloff pleaded guilty and testified against Sonmez.  She testified that received $2000 for marrying Sonmez and that they never had a romantic or sexual relationship with each other.  Sonmez testified that the relationship was real, had lasted six months prior to marriage, and the marriage was "real" for him.  He was convicted and sentenced to a year in prison.

On appeal, the Fourth Circuit affirmed Sonmez's conviction.  Sonmez argued that the district court had erred by not giving two requested instructions to the jury, one that required the Government to prove that Sonmez's "only reason" for marrying was the obtain a green card and one that required proof that he and Eckloff had "no intent to establish a life together."  Instead, the court instructed the jury that the Government had to prove that the marriage was "entered into for the purpose of evading" US immigration laws.  The court found that Sonmez's requested instructions were properly rejected because they were improper statements of the law.

Analysis of SORNA Priors Involves Fact-Intensive Approach

US v. Price: Price pleaded guilty 2010 to "assault and batter of a high and aggravated nature" in South Carolina.  The basis for the charge was the claim that Price had forced a 12-year old girl to perform oral sex on him, as set forth during the plea hearing.  After his sentence was finished, Price moved to several different states, eventually returning to South Carolina.  Generally, during this time, he was not registering as a sex offender.  As a result, he was charged in South Carolina with failing to register under SORNA.  Price moved to dismiss, arguing that his prior conviction wasn't a "sex offense" as defined by SORNA.  Looking to the facts of the prior conviction the district court denied the motion.  Price entered  a conditional guilty plea and was sentenced to 24 months in prison and a lifetime term of supervised release.

On appeal, the Fourth Circuit affirmed Price's conviction by vacated his sentence.  On the conviction the court framed the issue as whether the categorical or circumstance-specific approach was appropriate in determining whether a prior offense was a "sex offense" under SORNA (the modified categorical approach was out because the court had earlier found the relevant South Carolina offense indivisible).  The court concluded the circumstance-specific approach - which allows the district court (or jury) to examine the underlying facts of the offense - was appropriate for two reasons.  First, the text, structure, and purpose of SORNA supported that conclusion because of it's references to "conduct" and the "nature" of the offense, rather than elements of a generic conviction.  Second, the Sixth Amendment concerns that animated the categorical approach in sentencing contexts was not present here because the Government bore the burden of proving a prior offense was a "sex offense" to a jury if the defendant went to trial.  On the sentence, the court applied the recent Collins decision, concluding that the district court incorrectly concluded that the supervised release Guideline range was life and remanding for resentencing.