Friday, April 07, 2017

Tax attorney fails in Franks and reasonableness challenges

US v. White:  Saundra White appeals her fraud and identity theft convictions, challenging the affidavit for a search warrant authorizing the search of her home, which lead to the discovery of a fraud scheme paper trail, as well as the reasonableness of her sentence.  The Fourth Circuit affirmed.

In this case, Ms. White was approached by a woman who attended the same church as her for many years, Ms. Hiler, as Hiler knew White was an attorney, and Hiler needed assistance to create a guardianship for her cousin, Ms. Millner, who was rendered helpless by a severe stroke.  Unfortunately, it appears that White took the opportunity to defraud both women to the tune of over $800,000.  Hiler became suspicious when, after Millner’s death, Hiler received notices that she as Millner’s estate representative, owed large sums of money for debts of the estate.  Another lawyer confirmed Hiler’s suspicions, which lead to state and federal investigations of White.

The agent who requested a search warrant relied upon Hiler’s statements to police, as well as 25 years of experience, to support the affidavit for search and seizure warrant.  The search “uncovered a bevy of incriminating evidence” of White’s fraud scheme.  During Hiler’s testimony, White requested a Franks hearing, as White argued that Hiler’s testimony called the validity of the warrant into question.  The Fourth Circuit determined that the district court correctly rejected White’s request for a Franks hearing because White did not make a substantial showing that the investigating agent knowingly or intentionally or with reckless disregard, make a false statement in the affidavit.

Regarding the reasonableness of the sentence, White challenged the application of sophisticated means enhancement, as well as an enhancement for misrepresenting a government agency.  The latter enhancement was based on two pieces of evidence: the fraudulent tax statements White created to induce Hiler to remit cash, and 2) a voicemail recording that purportedly came from a tax collector for the US Treasury Department and the State of Maryland.  The Fourth Circuit found that the enhancement encompasses any fraud that involved a misrepresentation, and the application note to the guideline does not explicitly require a direct misrepresentation.  The panel affirmed the application for misrepresenting a government agency.  According to the Fourth Circuit, the sophisticated means enhancement applies to the entirety of a scheme, and can be made up of individual actions which are not in themselves sophisticated; the panel concluded that the district court did not clearly err in applying this enhancement.

With or without the ACCA, violent felon sentence affirmed

US v. McDonald:  In this appeal, the Fourth Circuit heard a challenge to the district court’s application of the ACCA to the defendant’s sentence when the defendant asserts that the qualifying predicate offenses are not all crimes of violence.  The district court had noted at sentencing that with or without the ACCA, it would have ordered the same 188-month sentence for the defendant.

Here, the Fourth Circuit analyzed the case using the “assumed error harmlessness inquiry,” wherein it required 1) the knowledge that the district court would have reached the same result even it had decided the guidelines issue the other way, and 2) the determination that the sentence would be reasonable even it the guidelines issue had been decided in the defendant’s favor.   Here, the Fourth Circuit assumed that the district court had erred in its sentencing, and proceeded to examine whether the assumed error affected the sentence.  It concluded that the district court would have imposed the same sentence absent the application of an ACCA enhancement, so the Fourth Circuit affirmed the sentence here, without clarifying whether South Carolina second-degree burglary still falls within the ACCA’s list of predicate offenses.

Statements made in court-ordered therapy used later to enhance new sentence

US v. Lara:  At Lara’s sentencing for a SORNA violation, the sentencing court heard certain admissions Lara made as part of the conditions of probation for a prior sex offense - he had been participating in a court-ordered sex offender treatment program through the Virginia Department of Corrections - and enhanced his sentence as a result.  Lara argued that the treatment program was protected by the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination; the government argued that he waived any privilege by consenting to the disclosure earlier.  The Fourth Circuit agreed with the government, and found that Lara affirmatively waived any privilege when he agreed to the disclosure of the statements he made in the treatment program.

As a part of his treatment for his prior sex offense, Lara signed a form acknowledging the waiver of confidentiality of statements he made a social worker, who conducted his intake into the treatment program.  During the intake, Lara had made some incriminating disclosures about this sexual history and other criminal activity.  He also confirmed this information in a polygraph exam and a written statement.

The Fourth Circuit discussed how a district court’s decision whether to recognize a privilege is a mixed question of law and fact which it considers de novo.  Under Federal Rule of Evidence 501, a testimonial privilege exists for psychotherapist-patient communications, which may be waived by knowingly and voluntarily relinquishment.  The Fourth Circuit held that Lara affirmatively waived any privilege that may have applied to his incriminating statements here.

Challenge to sex offender special conditions successful, mostly

US v. Douglas:  In this SORNA case, the defendant challenged the imposition of several sex offender “special conditions” to his supervised release.  The defendant had a conviction from 1994 for aggravated sexual assault.  He argued that this conviction was too remote in time to justify the special conditions.  The district court agreed, in part, with the defendant, imposing only 1 of 13 challenged special conditions.  The district court had ordered that the defendant submit to a sex-offender evaluation for the purpose of assessing his risk to the public and to determine “what, if any, other treatment or conditions were warranted to serve the goals of sentencing.”

On appeal, the Fourth Circuit upheld the district court’s plan for the defendant, noting that sex offender conditions may be imposed at sentencing for crimes which are not sex crimes.  No offense-specific nexus need be established for the special conditions to be imposed, except the sentencing court must adequately explain its reasoning for imposing the conditions.  Here, the defendant took 14 years of evasive actions to avoid apprehension by law enforcement after he failed to register as a sex offender, and the Fourth Circuit reasoned that his conduct in avoiding authorities undermined congressional efforts in SORNA to combat the risks of recidivism, so the special condition for a sex offender evaluation was warranted.