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.”