Monday, December 12, 2016

No Second Amendment Issue With Prosecution for Selling Unlicesnsed Firearms

US v. Hosford: Hosford sold several firearms to an undercover cop. Hosford did not have a federal firearms license. Therefore, he was charged with multiple counts of unlicensed firearms dealing and conspiracy (a confederate bought the guns at gun shows that Hosford then sold). He entered a guilty plea, preserving the right to appeal the district court's denial of his motion to dismiss the charges as violating the Second Amendment, due process under the Fifth Amendment, and he Commerce Clause.

On appeal, the Fourth Circuit affirmed the denial and Hosford's convictions. On the Second Amendment challenge, it held that Hosford's facial challenge was to the "type of regulation deemed 'presumptively lawful' in Heller and "thus facially constitutional." On the as applied Second Amendment challenge, the court applied intermediate scrutiny (after assuming, arguendo, that the law burdens "conduct protected by the Second Amendment") and concluded that the important Government interests involved in regulating the commercial sale of firearms satisfied that burden. Next, the court held that the unlicensed firearm statute was not unconstitutionally vague, even though it did not clarify whether someone is a "dealer" versus a "collector." The statute "clearly gave notice to Hosford that he ought not to regularly sell firearms that he only purchased and resold for profit." Finally, the court held (joining all the other circuits to consider the issue) that the regulation of commercial firearms transactions falls within Congress's power under the Commerce Clause.

Friday, December 09, 2016

ACCA enhancement upheld

US v. Doctor:  Police in North Charleston, SC, received a call from a woman who claimed Doctor stole her cell phone and was inside a residence there with a gun.  Officers arrived at the location, gave Doctor his Miranda warnings, and questioned him about the firearm.  He lead the police to a pistol on the couch.  Doctor later pleaded guilty to being a felon in possession.

Doctor had two prior convictions for possession with intent to distribute cocaine, and one conviction for South Carolina strong arm robbery.  Doctor objected at sentencing to the characterization of the robbery as an ACCA violent felony.  His objection was overruled.  After receiving the mandatory minimum 15-sentence, Doctor appealed.

On appeal, Doctor argued that his conviction for strong arm robbery should not be a crime of violence for ACCA purposes because a defendant can effectuate a robbery with only a slight threat, and his conviction does not match the force clause requirement that force be directed “against the person of another.”  Further, Doctor argued that his conviction could be committed without an intentional use or threat of physical force.  The Fourth Circuit disagreed with Doctor, and using the categorical approach, found that there was no basis to conclude that Doctor’s robbery conviction could be accomplished with force below the physical force threshold.  The Fourth Circuit concluded that Doctor’s prior conviction qualified as a predicate violent felony within the meaning of ACCA.

Attempt to entice minors conviction upheld

US v. Clarke:  Appellant Clarke challenged his conviction for attempting to persuade minors to engage in sexual activity in violation of 18 U.S.C. § 2422.  He had arranged to meet with an undercover officer who he had met on an incest social networking site, after he had expressed an interest in the officer’s fake minor children; on arrival at the meeting place, police arrested Clarke.  While he was being interviewed, the police inventoried and towed Clarke’s vehicle.  A search warrant was later executed on the vehicle.  During the initial search, police located lubrication, condoms, a bag of candy, and an overnight bag, as well as the officer’s phone number, his age and the ages of the “children.”  A jury found Clarke guilty, and the district court sentenced him to 120 months imprisonment and lifetime supervised release; Clarke appealed.  The Fourth Circuit affirmed.

Clarke argued that the police inventory search, prior to obtaining a warrant, was illegal.  The Fourth Circuit held that the district court properly denied Clarke’s motion to suppress, as the evidence produced by the government (i.e. the departmental inventory search policy and a standard inventory search form signed by the officer who conducted the search) was sufficient to establish that the search was conducted according to the standard criteria.

Next, Clarke argued that the district court violated Rule 30(b) by failing to advise the defendant of how it would instruct the jury before closing arguments.  Here, the Fourth Circuit held that while the district court should have provided its instructions to counsel before closing argument, the violation did not, however, cause Clarke to experience any actual prejudice.  Clarke’s counsel has been able to make any “essential” arguments, because those arguments reflected the instructions ultimately provided by the court, and because the government produced sufficient evidence to convict him under the correct legal standard, the Fourth Circuit found no prejudice.

Clarke also argued that the district court improperly instructed the jury as to the meaning of “induce” under § 2422(b).  The Fourth Circuit held that the terms of the statute in question, “persuade,” “induce” and “entice” are not statutorily defined, but are “words of common usage” and have “accord[ed] them their ordinary meaning.”  Further, in ordinary usage, the court reasoned, these words are effectively synonymous, which it has previously held elsewhere.  The Fourth Circuit held here that the jury instructions were fair and accurately reflected the law.

Lastly, Clarke argued that the government did not provide sufficient evidence to sustain the conviction, and that the district court erred in denying his motion for acquittal.  The Fourth Circuit had to consider here whether 18 U.S.C. § 2422 can be violated when the defendant does not communicate directly with any minors, rather indirectly through an adult intermediary.  The other circuits to consider this question have held that Section 2422(b) extends to adult-to-adult communications that are designed to persuade a minor to commit the prohibited acts.  The Fourth Circuit agreed.  Moreover, the Fourth Circuit found that the government had introduced enough evidence that, taken together, would allow reasonable jurors to conclude that Clarke intended to coerce minors to engage in sexual acts and that he took substantial steps towards doing so.

When choosing the most applicable guideline goes awry

US v. Williams:  In this appeal, the Fourth Circuit reviewed a guidelines challenge, whether the correct guideline was applied, when compared with the actual misconduct charged.  Here, Ernest Lee Williams, Jr. attempted to rob a bank, but didn’t make it inside the building.  The district court applied the robbery guideline at sentencing, mainly because it included an enhancement for targeting financial institutions.  Williams appealed.

The Fourth Circuit agreed with Williams that the misconduct charged here most closely resembled burglary than robbery, and the burglary guideline should have been applied.  The burglary guideline yielded Williams an imprisonment range of 10 to 16 months, while the robbery guideline produced a range of 37 to 46 months; Williams had originally been sentenced to 38 months.

Williams had been indicted, the Fourth Circuit explained, for attempting to enter a back with the intent to commit a felony and larceny therein, i.e., a bank burglary.  There was no mention in his indictment of any element of “force or violence, or [extortion or] intimidation, which is required for conviction of bank robbery” under statute.  The Fourth Circuit states that it is clear that Williams should have been sentenced under the burglary guideline; it vacated Williams’ sentence, remanding for re-sentencing.

Friday, November 04, 2016

Omitted Information Doesn't Undermine Search Warrant

US v. Wharton: Wharton and her husband, John, were investigated for offenses related to the unlawful receipt of federal benefits (it involved the mismanagement of benefits received for their granddaughters). As part of the investigation, authorities executed a search warrant at their home which uncovered incriminating documentation. The warrant affidavit focused on John, rather than Wharton, although the evidence seized implicated them both. Wharton moved to suppress all the evidence seized, arguing that the affidavit omitted critical information, particularly that while Wharton and John shared the house, they had very separate bedrooms - Wharton's was on the second floor, while John's was in the basement. The district court granted the motion with respect to evidence found in Wharton's bedroom, but otherwise denied it. Wharton was convicted at trial of Social Security fraud, conspiracy, and embezzlement.

On appeal, Wharton argued that the district court erred by not suppressing all the evidence found in the house. The Fourth Circuit rejected that argument and affirmed Wharton's conviction, finding that the omitted material did not undermine the warrant itself. Comparing the case to two recent cases that also involved withheld information, "correcting the affidavit to include the omitted information [in those cases] undermined the foundational core of the affidavit. Here, the inclusion of the omitted information does not do that." That was due to other statements in the affidavit (from earlier in the investigation) that Wharton and John had been married for 43 years, lived together, and John's payment of some of the utilities to the house "support the view that John Wharton had access to the common areas of the house" and supported probable cause, at least to search the common areas of the house.

More Detailed Reasons Need to Exclude Grand Jury Evidence

US v. McTeague: McTeague and her codefendants were indicted on charges related to their alleged importation of undocumented workers to work at their restaurant as well as the treatment of those workers. After returning a superseding indictment that included allegations of witness tampering, the Government went back to the grand jury and obtained an indictment against some others involved in the witness tampering scheme. McTeague moved to dismiss the indictment, arguing that the Government had improperly used the proceedings leading to the third indictment to continue to investigate the offenses already charged. While the district court found no such prosecutorial misconduct, it nonetheless limited the Government's use of such evidence at trial due to the "unique combination of circumstances" in the case which made it "fundamentally unfair."

The Government took an interlocutory appeal to the Fourth Circuit. The court vacated the district court's order, but didn't go so far as the Government asked. Specifically, the Government argued that the kind of sanctions levied by the district court could only come after a finding of prosecutorial misconduct, which didn't happen in this case. The court declined to adopt such a bright line rule, but found that the district court's explanation of its sanctions was so sparse that it abused its discretion by imposing the sanctions. Without a finding of prosecutorial misconduct, it is "particularly incumbent upon the district court to explain both the reasoning for and the parameters of any exclusion of evidence derived from grand jury proceedings." The court therefore vacated the district court's decision and remanded for further proceedings.

Wednesday, September 14, 2016

WV priors not predicates under the ACCA

US v. White:  On appeal, White challenged the district court’s denial of his motion to suppress evidence (i.e., a firearm) obtained during a traffic stop that he argued was unconstitutionally prolonged.  The Fourth Circuit upheld the conviction, finding no constitutional problem with the traffic stop that occurred; it vacated White’s sentence, however, because the district court imposed an enhancement under ACCA for state burglary convictions that had been considered “violent felonies” under the residual clause at the time of White’s original sentencing, which Johnson, decided during the pendency of the appeal, later invalidated.

According to the Fourth Circuit, when an intervening decision of the Circuit or the Supreme Court affects precedent relevant to a case pending on direct appeal, an appellant may timely raise a new argument, case theory, or claim based on that decision while his appeal is pending without triggering the abandonment rule.

When White was originally sentenced, his prior state crimes qualified as “violent felonies” under the residual clause, because the crime posed the possibility of “face-to-face confrontation between the burglar and a third party.”  With Johnson, the Supreme Court expressly overruled precedent and invalidated the residual clause, and White sought leave to file a challenge to his sentence under the ACCA.  The question presented was whether White’s prior state convictions still met the definition of ACCA “violent felony” despite the invalidation of the residual clause.

Using the categorical approach, the Fourth Circuit determined that the WV burglary statute “sweeps more broadly than generic burglary.” Since the state convictions would only qualify as  predicates under the ACCA if the state crime elements were the same as or narrower than the ACCA-enumerated generic offense, the prior crimes here did not qualify as predicates.  The Fourth Circuit found that the district court erred in enhancing the sentence under the ACCA, and vacated it.

Harsh ethnic stereotyping amounts to constitutional error, but harmless

US v. Garcia-Lagunas: Garcia-Lagunas was convicted of conspiracy to distribute cocaine, and received a sentence of 188 months.  He appealed to the 4th Circuit, which affirmed his conviction.  He filed a petition for rehearing and rehearing en banc.  In this panel rehearing, the Fourth Circuit considered whether an evidentiary error could be harmless when the error assumes a constitutional dimension.  Here, the error was the Government’s improper use of an ethnic stereotype to rebut the defense theory that Garcia-Lagunas was a drug user but not a major drug dealer.

Police arrested Garcia-Lagunas in a “squalid” trailer with some body armor, a firearm, a large digital scale, and 800 grams of white powdery substance (later revealed by lab tests to contain no controlled substance).   At trial, the government presented its case that Garcia-Lagunas was a large-scale distributor responsible for selling upwards of 40 kilograms of cocaine, a much larger amount than stated in his indictment.  The evidence presented against him included statements from a detective who informed that jury that in his extensive experience investigating “Hispanic drug traffickers,” that “they’re very modest living” and “they send the majority if not all of the proceeds back to their native countries.”  The government also referred to this testimony in its closing to explain the defendant’s lack of extravagant lifestyle.  The government conceded at oral argument that the evidence in question was unconstitutional.

According to the Fourth Circuit, even without the improper use of an ethnic stereotype, however, a rational jury could have found Garcia-Lagunas guilty, so the Fourth Circuit held that it was satisfied the evidentiary error was harmless beyond a reasonable doubt, and affirmed the conviction.  The Fourth Circuit found that the improper evidence “did not pervade the trial.”

In dissent, Senior Judge Davis issued a stern rebuke of the panel’s decision:

“As in any prosecution, whether for a crime involving the infliction of unspeakable violence upon actual victims, or in the prosecution of the most plain-vanilla so-called “white collar” offense, and any prosecution in between, the defendant in our system is entitled to have the jury grapple, if it must, with his defense theory, unaided by blatantly foul blows delivered by the prosecution, abetted by the trial judge, in the use of racial or ethnic entreaties aimed at undermining or dismissing outright the defense theory of the case.”

“The Government’s appeal to an unabashed ethnic generalization was plainly a constitutional error, and as a result, it is the Government’s burden to prove that its error was harmless beyond a reasonable doubt.”

“After this published opinion, future panels of this Court will be required to struggle with the issue of just how much evidence of guilt is enough evidence of guilt to permit the Court to give the Government as pass when it bolsters its pursuit of a conviction through resort to gratuitous racial and ethnic evidence intended to spur one or more jurors to convict.  This case sets a very low bar, considering the level of certainty that the constitutional violation had not effect on any juror is agreed to by “beyond a reasonable doubt,” a standard that, interestingly, this Court has long refused to allow trial judges to define for ordinary jurors.  See United States v. Walton, 207 F.3d 694, 699 (4th Cir. 2000) (en banc) (“We find not reason to alter our current practice of not requiring a jury instruction defining reasonable doubt in criminal cases.”).  Perhaps, as we approach the 50th anniversary of the seminal teachings of Chapman v. California, the time has come for this Court to undertake an examination of just what “beyond a reasonable doubt” means, after all.”

Wednesday, August 31, 2016

Intent to Abuse Sufficient for "Forcible Sex Offense" Under 2L1.2

US v. Alfaro: Alfaro reentered the United States illegally. His prior deportation had come after he was convicted of "third degree sexual offense" in Maryland in 2003. At sentencing, Alfaro's Guideline range was enhanced under USSG 2L1.2(b)(1)(A)(ii) for being a "crime of violence." In that particular Guideline, the definition is contained entirely in the commentary and includes a lengthy list of enumerated offenses, including "forcible sex offenses." The district court concluded that Alfaro's 2003 conviction fit that description and imposed the 16-level enhancement.

The Fourth Circuit affirmed Alfaro's sentence on appeal. Alfaro's argument was that while his 2003 offense was "forcible" it was not a "sex offense." In an earlier decision (Diaz-Ibarra), the Fourth Circuit had held that "sexual abuse of a minor" in the same Guideline required that such an offense was committed "for a purpose associated with sexual gratification." Alfaro's 2003 offense, by contrast, could be committed "for the abuse of either party" as well as for "sexual arousal or gratification." The court rejected Alfaro's argument, holding that while "sex" and "sexual" have similar meanings, the operative things being defined are the phrases "forcible sex offense" and "sexual abuse of a minor" and don't require the same result. Other circuits have read the definition of "forcible sex offense" in a similarly broad manner.

The bigger takeaway from this case is how the court reached its conclusion. This wasn't an element of force argument, it was a question of whether Alfaro's state conviction matched the "generic" definition of an enumerated defense. However, rather than resort to a survey of state laws to determine the generic definition of "forcible sex offense," the court concluded that it was "difficult if not impossible" to "identify a consensus set of the minimum elements necessary to define the category." As a result, the court turned to "the plain, ordinary meaning of the language used by the Guidelines." Given the list of enumerated offenses in the new version of the career offender Guideline, this could be very important going forward.

Thursday, June 16, 2016

Third-party doctrine and historical cell-site location information

US v. Graham:  Upon rehearing en banc, the Fourth Circuit revised its earlier position in this case, finding instead that no Fourth Amendment violation occurs when the government obtains historical cell-site location information (CSLI) from a cell phone provider.  Under the Supreme Court’s third-party doctrine, an individual maintains no Fourth Amendment protection over information voluntarily turned over to a third party.  This holding falls in line with all of the sister circuits’ holdings on this issue.

Pertinently, the government conducted no tracking or surveillance here; rather, it obtained the CSLI from the cell phone provider pursuant to a search warrant.  The Fourth Circuit refers to a myriad of federal cases that permit the government to acquire similar third-party records, even when individuals do not “actively choose to share” the information contained in those third-party records.

The Supreme Court, according to the Fourth Circuit, has delineated clearly between contents of communications and the non-content information that enables communications providers to transmit the content, and CSLI “undeniably” belongs in the non-content category of information.

Moreover, the Fourth Circuit notes that Congress could grant individuals greater privacy protection over CSLI, as the legislative branch is “better positioned to respond to changes in technology than are the courts.”

Monday, June 13, 2016

Confidential informant's reliability omitted from search warrant affidavit

US v. Lull:  In this appeal of a felon in possession conviction, the Fourth Circuit considered the denial of a motion to suppress evidence obtained as the result of a search of the defendant’s residence, pursuant to a search warrant.  The application for the warrant, however, omitted material information about the reliability of the confidential informant, including the informant’s arrest on the same day that officers applied for the warrant.  That same day, the police had terminated the informant for lying to them and stealing some buy money used in a controlled buy with the defendant.

Before entering a plea, Lull moved to suppress evidence from his residence pursuant to the search warrant, arguing that the police obtained the warrant in violation of Franks v. Delaware.  From that case comes a two-prong test, both prongs must be proven by a preponderance of the evidence.  One, the defendant must show that an affiant included in the warrant application a false statement, knowing or intentionally or with reckless disregard for the truth; and two, that even without the false statement, the affidavit’s remaining content is insufficient to establish probable cause to search.  The Fourth Circuit has held that the two-prong Franks test applies also when an agent omits relevant facts from an affidavit.

The Fourth Circuit found here that the material about the confidential informant’s lack of reliability and his termination by the police was material, that the informant’s theft of buy money was not “separate” from the controlled buy as the government argued.  Further, the Court found that the investigating affiant omitted the information “at least recklessly,” and not through mere negligence or innocent mistake.  The Fourth Circuit held that the defendant should have won his Franks hearing, and vacated the defendant’s conviction and sentence, remanding for further proceedings.

Security check tips reasonable suspicion analysis against defendant

US v. Foster:  In this appeal from a felon in possession conviction, the Fourth Circuit considered the denial of the defendant’s motion to suppress evidence revealed by a stop-and-frisk in downtown Wheeling, WV.  With facts similar to those of the Massenberg case from 2011, including an unreliable tip, high-crime area, the only person found in an area where a shot was reportedly fired, the individual’s failure to make eye contact, the Fourth Circuit undertook a similar reasonable suspicion analysis.  Where this case diverged from Massenberg, however, arose from a security check the defendant made, and it sufficiently changed the Court’s analysis to find the totality of the circumstances supported the conviction.  The Fourth Circuit affirmed.

Here, when officers approached Foster and asked if he had any weapons, Foster put his right hand in his right front pants pocket, a “security check” referred to as the instinctive movement that suspects purportedly use to ensure their concealed weapon is secure.  Foster complied when police told him to keep his hands out of his pockets; subsequently the officers frisked Foster, patted his right front pocket area that Foster had security checked, and discovered a firearm.  The Fourth Circuit found that the security check “tied all the factors into a coherent whole that justified an investigatory stop.”  It gave the police cause to suspect that Foster had been the source of the reported gunshot here, sufficient to justify a Terry stop and frisk.

Error in jury instructions for bath salts case

US v. McFadden:  On remand from the Supreme Court (opinion here) which had concluded that the jury instructions given at the trial in this case improperly omitted elements relating to the defendant’s state of mind, the Fourth Circuit considered whether the errors in the jury instructions were harmless.  The Fourth Circuit held here that the erroneous jury instructions were harmless error with respect to some of the convictions, but not harmless with respect to certain other counts; the Fourth Circuit affirmed in part, vacated in part, and remanded to the district court for further proceedings.

The Supreme Court clarified the government’s burden of proof to support a conviction for distribution of controlled substance analogues, and instructed that the government must satisfy one of two methods of proof concerning the defendant’s state of mind.  The proof in dispute in this appeal is whether the defendant knew either the legal status of the substance, or the chemical structure and physiological effects of that substance.

At trial, the jury found that McFadden distributed substances that qualified as controlled substance analogues, and that he intended the substances for human consumption.  What the jury was not asked to consider, however, was whether McFadden had knowledge of the legal classification of the substances as controlled substance analogues or anything about the chemical structures and physiological effects of bath salts.

Here, if the jury found that the evidence establishing McFadden’s knowledge on either the legal status or the relevant characteristics of bath salts was overwhelming, it would render an error in the jury instructions harmless.  The Fourth Circuit held that the evidence was sufficient to permit, but not so overwhelming to compel, the jury to find that McFadden knew that bath salts were regulated as controlled substances.  The omission, then, by the district court of the knowledge element from the jury instructions on some of the counts was not harmless.  In contrast, some later telephone conversations demonstrated overwhelmingly that McFadden knew the chemical identities and physiological effects of the bath salts, so the omission of the knowledge element from those counts was harmless.

ACCA enhancement wrongly applied

US v. Gardner:  A confidential informant’s tip to police lead to a traffic stop of Ezekiel Gardner’s vehicle.  A subsequent search of the vehicle yielded a firearm of which the informant had advised police.  At his sentencing for being a felon in possession, the district court determined that Gardner was an armed career criminal, based upon three prior convictions for felony common law robbery in North Carolina.  In this appeal, Gardner challenged the denial of a pre-trial suppression motion, the denial of his motion for a new trial, and the district court’s determination that he was an armed career criminal.  The Fourth Circuit vacated his sentence and remanded on the third issue, finding that the district court erred in sentencing Gardner as an armed career criminal.

North Carolina common law robbery can only qualify as a “violent felony” if it matches the definition of a violent felony under the force clause of ACCA.  The Fourth Circuit found that the NC common law robbery may be committed by the alternate means of violence or fear that do not constitute different elements of distinct crimes, making the crime an indivisible offense (modified categorical approach is thus improper).  Under categorical approach, to match with the force clause of ACCA, it must necessarily have as an element the “use, attempted use, or threatened use of physical force against the person of another,” which means force capable of causing physical pain or injury to another person, not slight offensive touching.  Under NC common law, even de minimus contact can constitute the “violence” necessary for a conviction for common law robbery.  The Fourth Circuit concluded that the minimum contact necessary for a NC common law robbery does not necessarily include the force requirement by the force clause of ACCA, so it does not categorically qualify as a “violent felony” under the ACCA.

Interstate domestic violence conviction creates basis for registration requirement under SORNA

US v. Faulls:  In this appeal, the Fourth Circuit considered whether conviction for the crime of interstate domestic violence required the defendant to register as a sex offender under SORNA.  Appellant Thomas Faulls received several charges stemming from the several attacks he made on his soon-to-be-ex-wife, including kidnapping, interstate domestic violence, and possessing a firearm in furtherance of a crime of violence.  Faulls appealed the district court’s requirement that he register as a sex offender under SORNA.

Faulls argued that the district court erred plainly in requiring him to register as a sex offender, because interstate domestic violence is not one of the enumerated crimes that qualifies as a sex offense under SORNA.  The Fourth Circuit, however, found that the SORNA also provides other definitions for sex offense, including an offense with an element “involving a sexual act or sexual contact with another.” The government argued that Faulls’ interstate domestic violence conviction satisfied this definition, and the Fourth Circuit agreed, finding further that the offense of interstate domestic violence contained a penalty enhancement for offenders whose qualifying violence conduct constitutes sexual abuse, including aggravated sexual abuse, which the jury found Faulls committed here.

The jury’s finding of aggravation created a statutory question of whether that finding was an “element” of Faulls’ “offense” which implicated the categorical and modified categorical approaches for a determination of what constitutes a sex offense under SORNA.  Ultimately, the Fourth Circuit determined that the offense of interstate domestic violence can create a registration requirement, depending upon which underlying crime of violence the district court relies.

Monday, May 02, 2016

US v. Warner: Warner pleaded guilty to being a felon in possession of a firearm. In the plea agreement, the parties agreed that the 4-level Guideline enhancement for use of a firearm in connection with another felony offense did not apply because the conviction at issue - a North Carolina breaking and entering conviction - was not a felony. However, the agreement also stated that the Government "will inform the Court and the probation office of all face pertinent to the sentencing process and will present any evidence requested by the Court." The PSR recommended that the enhancement applied. Warner objected. The Government, on the other hand, noted the agreement with Warner, but then explained (at some length) how its analysis had changed in light of newer Fourth Circuit case law. Nonetheless, it asked that the district court "honor the agreement of the parties." Warner argued that the Government breeched. The district court disagreed, applied the enhancement, and sentenced Warner to 48 months in prison, just below the bottom of the resulting Guideline range.

The Fourth Circuit vacated Warner's sentence and remanded for resentencing before a different judge. The court concluded that the Government did breech the plea agreement, even though it was acting in good faith. The court distinguished between the Government merely representing its position (which it did) and actually recommending that the enhancement not apply (which is promised to do). The former is a "mere recommendation," advice that the district court was free to reject. The latter would have made the district court more hesitant to apply the enhancement. Furthermore, there was a difference between recommending that the enhancement shouldn't apply versus arguing that it should not apply.

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

No Oral Conditional Plea Without Government Explicit Consent

US v. Fitzgerald: Fitzgerald was charged with various gun and drug offenses and unsuccessfully moved to suppress evidence found as the result of the execution of a search warrant at his home. He rejected a plea offer from the expressed his desire to enter an "open plea." At the plea hearing the district court indicated that, by pleading guilty, Fitzgerald might be unable to raise certain issues on appeal, but said that "you certainly retain your ability to appeal any decision the Court has made with regard to a motion to suppress." The Government didn't say anything about the district court's statement. The district court accepted the guilty plea and sentenced Fitzgerald to 130 moths in prison.

Fitzgerald appealed, challenging the denial of his motion to suppress, but the Fourth Circuit ordered supplemental briefing on the issue of whether he had entered "a valid conditional plea that reserved his right to appeal these issues." Ultimately, the court concluded that he had not. Although Rule 11(a)(2) requires conditional pleas to be in writing, the court noted that it deems that requirement satisfied when "the reservation is so clearly show on the record that there is no doubt that a conditional plea was agreed to." However, the other requirements of the rule - Government consent to the plea and district court approval - are mandatory. At the very least, the court held, the Government consent requirement was not met because the Government never addressed the issue during the plea hearing. The Government's concluding assertion of "that's perfect" to the district court wasn't enough. Because Fitzgerald's plea was not valid, the court vacated the judgment and remanded to the district court for Fitzgerald to decide whether to go to trial or enter a conditional plea.

Burglaries of Homes Next to Each Other on Same Night Separate for ACCA Purposes

US v. Linney: Linney pleaded guilty to being a felon in possession of a firearm. In the PSR, he was designated an Armed Career Criminal based on three prior North Carolina burglary convictions, two of which, Linney argued, occurred on the same occasion. He argued that they took place on the same night and in close proximity. Records produced by the Government showed they took place next door (or across the street) from each other on the same night, one between 8 and 10pm, the other between 7 and 10pm. At the same time Linney pleaded guilty to those two offenses he also pleaded guilty to (among other things) 17 counts of breaking and entering and two attempted breaking and entering counts. The Government argued that the two burglaries involved different victims and locations and were "distinct criminal episodes." The district court agreed and sentenced Linney to 235 months in prison.

On appeal, the Fourth Circuit affirmed Linney's sentence. Linney conceded that the offenses involved separate victims, but argued that they occurred in the same location "because the burglarized houses were only thirty feet apart" and that the objective of the burglaries was the same. The court rejected that argument, finding that separate houses mean separate geographic locations which gave Linney "a sufficient opportunity to evaluate whether to commit another crime." Nor did the Shepard documents in the record show that Linney was acting with an accomplice which would have "complicat[ed] the different occasions analysis."

Prior Record, Other Factors, Justified Extension of Traffic Stop

US v. Palmer: Palmer was pulled over in Virginia because of too darkly tinted windows and the inspection sticker appeared to be fraudulent. Upon approaching the car, the officer noticed several air fresheners in the car, "some hanging in the passenger compartment and others plugged into the air-conditioning vents." The officer retrieved information from a couple of different databases that indicated Palmer was a gang member with a prior criminal record that included drug offenses. The officer radioed for a drug dog, then went to more fully examine the inspection sticker. In leaning into the car to do so (the back of the sticker is the best evidence of fraud, apparently), the officer smelled the odor of marijuana. Although the officer told Palmer he had grounds to search the car, he "wanted to be '110% sure'" and waited for the drug dog, which alerted on the vehicle twice. The eventual search uncovered crack cocaine and a firearm. Palmer is charged with drug and gun offenses, has his motion to suppress denied, and enters a conditional guilty plea.

The Fourth Circuit affirmed the denial of Palmer's motion to suppress. First, it found that the stop itself was lawful, finding no clear error in the officer's conclusion that the window tint was too dark (indeed, measurement after Palmer was arrested showed the officer was right). Second, the court rejected Ring's argument that the officer expanded the scope of the stop before getting to the point where he smelled marijuana (and thus had probable cause to search). With regard to Palmer's argument that Palmer had no basis to "delve into his criminal record" because it was unrelated to the basis for the stop, the court held that to "describe that contention is to discard it" because an officer "is entitled to inquire into a motorist's criminal record after initiating a traffic stop." The information the officer received from the database about Palmer's prior record gave him reasonable suspicion (along with the other facts then known) that criminal activity was afoot. Those factors, in their totality, "eliminated a substantial portion of innocent travelers and demonstrated a connection to possible criminal activity."

Wednesday, April 20, 2016

Court Affirms Convictions Following Stash House Robbery Sting

US v. Hare: This is a case that revolves around a favorite new technique of federal law enforcement (the ATF, in this case), the fake drug stash house sting. In these stings, undercover federal officers find people who are willing to rob a drug stash house and then turn around and arrest them at some point before the actual robbery would have taken place. Of course, there are no drugs, much less an actual stash house. What makes this case a little different is that the three defendants - Hare, Williams, and Edwards - weren't brought into the scheme by law enforcement, but by Bowden, who had been the target of the sting (when the undercover asked Bowden if he'd be interested in a robbery, Bowden replied - repeatedly - "that's what I do!". Hare and the others were eventually convicted of various counts, including a Hobbs Act robbery and conspiracy, and received sentences of 132 (Hare), 150 (Williams), and 240 months (Edwards).

On appeal, Hare and the others challenged the district court's decisions related the sting itself. The Fourth Circuit affirmed their convictions and sentences and found no error in the district court's rulings. First, Hare and the others had demanded discovery of how the ATF determines who to pursue in these sting investigations, in order to determine whether the use of these sting operations was racially motivated. The district court denied the motion, aside from a single page from an ATF manual related to "guidelines for selecting a target." The court affirmed that decision, finding that the defendants didn't meet the high burden necessary to compel discovery when pursuing a selective enforcement argument. Noting that the burden for discovery is almost as high as the burden to prevail on the claim, the court held that the evidence the defendants did have (of 8 similar cases involving 32 defendants in the District of Maryland, all the defendants were African-American) didn't meet that threshold. Second, the court affirmed the district court's decision to deny the defendants' motion to dismiss for egregious Government conduct - the sting operation. The court rejected the arguments that the officers should have investigated the defendants' predisposition to committing such a crime, that the amount of cocaine that was allegedly involved as an "inducement so lucrative as to be unreasonable," and that stash house robbery stings were, per se, objectionable.

Monday, April 18, 2016

No Intent to Kill In Carjacking Case Without Weapon

US v. Bailey: Bailey was the driver of a car that got into a high-speed chase with police. When he wrecked the car, Bailey got out and fled on foot to a nearby parking lot. There, he approached a pickup truck with three people inside while he was "panicked and bloodied." He asked the driver for a ride and offered to pay, but the driver said no. A "flurry of activity" allowed Bailey to get into the back seat. The two passengers got out, but the driver stayed put, at which point Bailey told him to "drive, drive, drive," while placing something "hard and cold" against the driver's neck. The driver never saw a gun and didn't know what Bailey pressed against his neck but was certain Bailey "was about to kill [him]." He jumped from the truck. Bailey got behind the wheel and sped off, eventually to be captured. Bailey was charged with carjacking under 18 USC 2119, convicted by a jury, and sentenced to 105 months in prison.

On appeal the Fourth Circuit unanimously reversed Bailey's conviction. The court concluded that there was insufficient evidence to sustain a conviction for carjacking. Specifically, section 2119 requires an "intent to cause death or serious bodily injury" to sustain a conviction for carjacking. The court rejected the Government's argument that the totality of the evidence - Bailey's reckless driving, his appearance when he approached the truck, and the "hard and cold" object - showed such intent. Even though Bailey conceded that he intended to scare the driver, that isn't enough to meet the 2119 threshold, particularly when no witness saw him with a weapon. Noting that 2119 requires a showing of a certain intent "at the precise moment" Bailey demanded or took control of the truck, the court concluded that the evidence did not show such an intent at that time.

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

Friday, April 01, 2016

Juvenile prosecutions for murder in aid of racketeering post-Miller unconstitutional

US v. Under Seal:  In this interlocutory appeal, the Fourth Circuit considered whether the government could legally prosecute a juvenile for murder in aid of racketeering, involving events that occurred after the Supreme Court made unconstitutional the only two authorized penalties for that offense, i.e., death or life without parole, for juvenile offenders.  The Fourth Circuit held that such a prosecution cannot constitutionally proceed.

At the district court, the government alleged that the defendant here, when he was a few months shy of turning 18, participated in a gang-related murder.  The government moved to prosecute this juvenile for murder in aid of racketeering pursuant to a delinquency information.  The defendant opposed the government’s motion, based upon recent Supreme Court cases that have drastically altered the legal landscape for juveniles charged with crimes that were penalized by death or mandatory life imprisonment, making such penalties illegal.  Congress, since the advent of these cases, especially Miller v. Alabama, which constitutionally prohibited a mandatory life sentence on a juvenile, has yet to legislatively act in response.  The government appealed here, with proposals for severing or excising the unconstitutional portions of the statute at issue, and leaving the constitutional portions of the statute intact.  

The Fourth Circuit’s analysis here was a case of first impression, as no case had arisen yet where a criminal act charged against a juvenile is alleged to have been committed after Miller was decided.  It discussed how severance is constitutionally okay, if the severed statute can function independently following severance; if not, severance is not viable.  A criminal statute is not operative without articulating a punishment for the proscribed conduct, and the government’s proposed excision here would, in contravention of both due process and severance principles, combine the penalties for two separate, distinct criminal acts, in a manner that would be “nothing less than judicial legislation pure and simple.” Also, the Fourth Circuit notes that looking to legislative intent is pointless when there is no indication what the legislative intent would be under the circumstances, since Congress hasn’t said anything on the subject since Miller was issued (“in light of Roper, Miller, and Montgomery, juvenile sentencing is undergoing substantive changes”).

The Fourth Circuit notes that the government has other options available in its province to pursue against this defendant; however, it cannot prosecute constitutionally a juvenile defendant for murder in aid of racketeering.

Armed bank robbery a crime of violence

US v. McNeal:  In this appeal, two of three co-defendants raised several trial issues (the third co-defendant pleaded guilty), including the sufficiency of the evidence of their brandishing convictions, the adequacy of proof regarding a conspiracy conviction, the denial of a motion to suppress, and other evidentiary rulings.  The main focus of this appeal appears to be the Fourth Circuit’s determination that the federal offense of armed bank robbery is a “crime of violence” in the context of the brandishing offenses.  The Fourth Circuit rejected all of the defendants’ arguments, affirming the convictions here.

The defendants failed to contend that armed bank robbery was not a crime of violence at the district court, rendering their claim on this issue to plain error review.  The defendants faced a five-year mandatory minimum sentence for the carrying a firearm during or in relation to a crime of violence, consecutive to any sentence for the underlying offense.  Here, the brandishing of a firearm during a crime of violence would add two years to the mandatory minimum sentence the defendants faced.  The co-defendants argued that their convictions for brandishing a firearm must be vacated because the statutory language lacked as an element the use, attempted use, or threatened use of physical force.

The government argued that bank robbery, a lesser included offense of armed bank robbery, satisfied the force element because it includes the element that property must be taken “by force and violence, or by intimidation,” and the Fourth Circuit agreed with the government.  The Fourth Circuit cited to its own earlier case and case law from other circuits which held that other federal crimes with language similar to the instant statute have as an element the use, attempted use, or threatened use of physical force, and those are crimes of violence.  The Fourth Circuit reached the same conclusion here, and held that armed bank robbery is a crime of violence.

Adequacy of jury instructions on results from death language

US v. Alvarado:  Alvarado received a conviction for knowingly and intentionally distributing heroin to Eric Thomas in March 2011, which distribution resulted in Thomas’ death.  Alvarado received a mandatory minimum sentence of 20 years.  On appeal, Alvarado contended that the district court  erred in failing to clarify for the jury that the “results-in-death” statutory language meant that the jury could not convict Alvarado of the charged offense if heroin was only a contributing cause of death.  Alvarado also argued that the district court failed to instruct the jury that Alvarado must have “reasonably foreseen” that Thomas’ death could result from the distribution; and, that admitting hearsay testimony violated the rule against hearsay and Alvarado’s rights under the Sixth Amendment’s Confrontation Clause.

At trial, the jury asked the district court twice to clarify the meaning of the “death results from” element of the heroin distribution offense.  The district court declined to elaborate further.  The main question presented in the appeal is whether the district court should have explained further the statutory phrasing “results from.” Alvarado argued that the district court’s decision not to elaborate further (a decision which the defendant concurred at trial, subjecting this claim on appeal to plain error review) allowed the jury to convict Alvarado even if heroin was only a contributing cause of Thomas’ death, a more lenient standard that “but-for” causation, which standard the Supreme Court set out in Burrage.  As the dissenting opinion notes, the jury here unmistakably expressed its confusion as to the causation requirement, despite the district court’s tracking of the statutory language in its instructions.

The Fourth Circuit panel majority concluded, however, that because there was no evidence in the record that Thomas could have died without the heroin, that the jury’s verdict was consistent with the Supreme Court’s but-for causation requirement.

Tuesday, March 01, 2016

Late IPA Filing Not Excused By Good Cause, Manifest Injustice

US v. Cowley: Cowley was found guilty of firearm, drug, and witness possession crimes arising from the 1998 shooting of a drug dealer in West Virginia and was sentenced to 45 years in prison. Among the evidence presented at trial was testimony that Cowley was seen with the same gun the drug dealer's son had identified as the murder weapon (he saw the shooting, but the attackers were masked). Cowley's convictions and sentence were affirmed on direct appeal and during 2255 proceedings, which concluded in 2006. In 2014, Cowley filed a motion seeking DNA testing under the Innocence Protection Act (18 USC 3600), seeking testing of various items from the crime scene including shell casings, clothing, and blood stains. He also provided affidavits from eight witnesses that bolstered the alibi defense he unsuccessfully used at trial and identified four others as responsible for the murder. The district court denied Cowley's motion because it wasn't timely filed.

On appeal, the Fourth Circuit affirmed the denial of Cowley's IPA motion. It did so on the merits, however, rejecting the Government's argument that Cowley was required to get a Certificate of Appealability (as in a 2255 proceeding) before the court had jurisdiction to hear the appeal. On the merits, the court noted that the IPA has ten requirements that must be me to grant a motion, the last of which is that it is "made in a timely fashion, subject to" what the court called "certain rebuttable presumptions." The IPA creates a rebuttable presumption if a motion is filed within either three years of a final conviction or five years of the IPA's enactment in 2004. Cowley's conviction was final before the IPA was passed, so his deadline was October 2009 - five years before he filed his motion. Cowley argued that two of the IPA's exceptions excused his untimely filing - that the he had good cause for the delay and that denying his motion "would result in a manifest injustice." The court concluded that neither exception applied. It rejected Cowley's argument that he had good cause because he had been incarcerated and without counsel for the years between the passage of the IPA and his filing, holding that given the nature of the statute incarceration couldn't be good cause. On the manifest injustice exception the court held that Cowley could have obtained the "new" evidence he presented before trial and that the district court did not abuse its discretion in finding that Cowley failed to show that any injustice would be "unmistakable, clear, plain, or indisputable."

Wednesday, February 24, 2016

Concealed Firearm Possession In WV Not Enough Basis for Frisk

US v. Robinson: Police in Ranson, West Virginia, received an anonymous tip that a black man who was the passenger in a car had just been seen in a convenience store parking lot with a gun. He loaded the gun, put it in his pocket, and the car drove away. The area around the convenience store was generally considered a "high crime area." Officers responded and stopped the car because neither the driver or passenger (Robinson) were wearing seat belts. One officer asked Robinson to step out of the car ,while another asked if he had any weapons. Robinson didn't answer, but gave a "weird look." The officer frisked Robinson and found a gun. Robinson was charged with being a felon in possession of a firearm. He moved to suppress the gun, but the district court denied the motion. Robinson entered a conditional guilty plea and was sentenced to 37 months in prison.

On appeal, the Fourth Circuit reversed, 2-1. Everyone agreed that the initial stop was proper and there was no argument over whether the anonymous tip was reliable. Instead, the issue came down to "whether the subsequent frisk was lawful - that is, whether the officers had reasonable suspicion that Robinson was 'armed and dangerous.'" The court concluded that there was not. Of particular importance was the fact that, in West Virginia, it is not illegal to carry a concealed firearm, the fact that the tip reported someone concealing a weapon was not, in and of itself, sufficient to show that person was dangerous. "In a different time or jurisdiction," the court wrote, "it might well have." The court recognized that allowing police to frisk anyone they thought might be armed in states that allowed concealed carry would create a serious risk of invasion of privacy and give police unfettered discretion, "implicating concerns about abuse of police discretion that are central to the Fourth Amendment." Nor did the court find that the other factors present during the stop - the high crime area and Robinson's lack of an answer to the question of whether he was armed - created reasonable suspicion.

Judge Niemeyer dissented, arguing that the court's "remarkable holding establishes a new approach that will make traffic stops substantially more dangerous to police officers" and was based "on several basic flaws of law and logic."

Congrats to the Defender office in the Northern District of WV on the win!

Wednesday, February 17, 2016

No Appeal Waive Escape Hatch After Departure

US v. McLaughlin: McLaughlin pleaded guilty to bank fraud. Her plea agreement included the following provision (sing along if you know the words!), in which she agreed:

In addition, at the plea hearing the district court asked if McLaughlin understood "you reserve only the right to appeal from an upward departure from the advisory guideline range established at sentencing and that you otherwise waive all rights to appeal whatever sentence is imposed?" McLaughlin said she understood. At sentencing, the district court applied a four-level enhancement for role in the offense, producing a Guideline range of 15 to 21 months. The district court then departed due to the under representation of McLaughlin's criminal history and imposed a sentence of 27 months.

The Fourth Circuit dismissed McLaughlin's appeal, in which she challenged the four-level enhancement, but not the upward departure. McLaughlin argued that she retained her right to appeal any part of the sentence because the sentence was "in excess of the applicable advisory Guideline range that is established at sentencing." The court disagreed, however, holding that the broader clause of the waiver - covering "whatever sentence is imposed on any ground, including any issues [relating] to the establishment of the advisory Guideline range" - controlled. If not, the exception clause on which McLaughlin relied would swallow the broader provision. Relying on contractual interpretation tools, the court "decline[d] McLaughlin's invitation to reduce much of her waiver to mere surplusage." The court also found that there was no ambiguity in the waiver (which would then be construed against the Government) simply because McLaughlin and the Government read the provision in different ways.

Monday, January 11, 2016

Ex-husband attempts to extort alimony payments

US v. White:  William White had received a 30-month sentence for making threatening phone calls to a university administrator and sending letters of intimidation to several tenants that filed a fair housing complaint against him in 2010.  He had appealed his conviction and sentence, and the Fourth Circuit remanded his case for re-sentencing on May 14, 2012.  Out on supervised release, Mr. White failed to appear for re-sentencing, having absconded to Mexico.  White’s then-estranged wife, with whom he had at least an informal alimony agreement, stopped making alimony payments when she learned he was “on the lam” because she feared that she’d be charged with aiding a fugitive.  White began threatening her to get his cash.  The woman he went to Mexico with began cooperating with the FBI; Mr. White’s attempts to extort his ex-wife formed the basis for this case.   After an anonymous jury convicted him (he also had a prior history of interfering with witnesses and a juror) for felony transmission of threats through interstate commerce with the intent to extort, as well as the lesser-included offense of transmitting a threat (without the intent to extort), White received a 92-month federal sentence.

On appeal, White challenged the sufficiency of the evidence presented at trial, and disputed the procedural and substantive reasonableness of his sentence.  The Fourth Circuit affirmed.  The main focus of White’s appeal concerned the legal requirements for his convictions, specifically whether he could have intended to “extort” alimony payments to which he claims he was legally entitled.  While the instruction that the district court gave at trial was erroneous in light of the Supreme Court’s 2015 decision in Elonis v. United States (a case which considered true threats and the limits of speech on social media), the Fourth Circuit held that the error here was harmless, the jury having “soundly rejected” White’s defense that he did not send any emails to his ex-wife.  After Elonis, a conviction pursuant to § 875(c) requires that the following three elements be met: 1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; 2) that the defendant subjectively intended the communication as a threat; and 3) the content of the communication contained a “true threat” to kidnap or injure.

One district judge's two cents on the guidelines

US v. Martinovich:  In this appeal, the Fourth Circuit upheld the appellant’s convictions in connection with his investment consulting activities, but vacated the sentence imposed for the district court’s insistence on referring to the advisory federal sentencing guidelines as mandatory.  What’s more, the district court’s “ill-advised comments and interference” at trial were so “imprudent and poorly conveyed” as to narrowly miss depriving the appellant of a fair trial.  Further, the Fourth Circuit ordered that a different judge be assigned to handle sentencing upon remand.

A jury convicted Martinovich after a four-week trial, and he was sentenced him near the low end of the guidelines, 140 months, with fines & restitution totaling $1.76 million.  The government had charged Martinovich with defrauding clients of his investment firm and a subsidiary hedge fund group, alleging that he invested client funds in a solar energy company in anticipation of large returns from the company’s planned initial public offering, which the company eventually abandoned (and it subsequently filed for bankruptcy).  Earlier, Martinovich had persuaded a shareholder of the energy company to provide inflated valuations of the company’s stock, so Martinovich could collect higher fees.  His convictions included conspiracy to commit mail and wire fraud, wire fraud, mail fraud, and money laundering.

Martinovich argued on appeal that the district court improperly interfered with the trial proceedings and misstated the law during his sentencing proceedings.  While the Fourth Circuit found that the district court had, indeed, erred in interrupting trial and interfering with the defense’s presentation of its case, the error did not give rise to prejudice, in light of the “overwhelming” evidence of Martinovich’s guilt.  Moreover, Martinovich’s attorneys did not object at trial to the district court’s conduct.  The Fourth Circuit held that Martinovich had not been deprived of a fair trial.

The panel did agree, however, that Martinovich’s sentence was improperly imposed as a result of the district court’s insistence, despite objections from both the government and defense counsel, that the guidelines were mandatory.  The Fourth Circuit also determined that it would be futile to remand the case for re-sentencing before the trial court, so it remanded with instructions for a new judge to be assigned for re-sentencing.