Tuesday, May 02, 2017

Carjacking Conviction Affirmed Where Defendant Brandished Gun, Made Verbal Threat

US v. Robinson: Crawford had gone into labor. She and her boyfriend were hurrying toward her car when they saw three men - Robinson and his confederates - carrying guns and wearing masks. Robinson got to the car and started banging on the window before the boyfriend could get the door open. Boyfriend promptly fled. Robinson and the others walked Crawford back to her apartment, Robinson asking "do you want to die?" Unable to get into the apartment (the key had fallen off Crawford's key ring when the boyfriend took off), Robinson grabbed Crawford's key ring and he and another man (it's unclear what happened to the third) drove away in her car. Robinson and his codefendant were later apprehended and charged with carjacking, use of a firearm during a crime of violence, and being a felon in possession of a firearm. Robinson was convicted by a jury on all three charges.

On appeal, the Fourth Circuit affirmed Robinson's convictions. Robinson argued that there was insufficient evidence to sustain the carjacking conviction because there wasn't enough proof that he had the intent to cause death or serious bodily injury at the time he took Crawford's car keys. The court noted that while the codefendant testified that they never would have hurt Crawford (since she was in labor), Robinson had nonetheless pointed a gun at her and asked if she wanted to die. While a jury could go either way as to which of those pieces of evidence to credit, it was "a question of fact, and it is clearly the jury's duty, not ours, to decide it." It didn't matter that the carjacking was an "afterthought" when the robbery went south. Robinson also argued that his felon in possession charge was duplicitous because it charged both actual possession of the pistol he was carrying and constructive possession of the shotgun his codefendant carried. After noting that Robinson couldn't raise that challenge now because it wasn't raised prior to trial, the court went on to hold that there was no problem, anyway, because simultaneous possession of multiple firearms can only be a single violation of the felon in possession statute.

No 3582 Reduction for Sentence Not Based on Guideline Range

US v. May: May entered a guilty plea to drug and gun charges via a Rule 11(c)(1)(C) plea bargain with the Government. The agreement called for a sentence of 240 months total in prison (180 months on the drugs, consecutive 60 on the gun). The probation officer calculated the applicable Guideline range as 151 to 188 months (plus the consecutive 60 months for the gun). The district court accepted the plea and imposed the 240-month sentence. Years later, the district court sua sponte denied May a sentence reduction under 18 USC 3582(c)(2) because his sentence was based on the plea agreement, not a Guideline range that had since been changed. May (now with appointed counsel) filed a motion for reconsideration, which the district court also denied.

On appeal, the Fourth Circuit affirmed the denial of the 3582 motion. The court found that May's plea agreement did not specifically tie his sentence to a particular Guideline range that had subsequently been changed by retroactive amendments. As a result, the sentence wasn't based on a Guideline range that had been subsequently lowered and May was not eligible for a reduced sentence.

Court Finds IAC Prejudice in Case Where Defendant Was Misinformed of Immigration Consequences

US v. Swaby: Swaby was a Jamaican citizen, living in the US as a permanent resident along with his girlfriend. In 2011, they were charged with trafficking in counterfeit goods  and conspiracy. Appointed counsel immediately recognized that any guilty verdict could have immigration consequences, so he consulted with an expert immigration lawyer. She assured him that the statute under which the Government wanted Swaby to plead guilty would not be an aggravated felony that would lead to Swaby's mandatory deportation. Counsel informed Swaby, who pleaded guilty. However, counsel had given the immigration expert the wrong version of the applicable statute - the one to which Swaby pleaded guilty to violating was an aggravated felony. Swaby was sentenced to just under a year in prison. When he was released, immigration proceedings were begun against him. Swaby filed a pair of motions (one styled coram nobis, the other 2255) alleging ineffective assistance of counsel, which the district court denied because at the plea hearing it had still warned Swaby that his plea could lead to deportation.

On appeal, the Fourth Circuit reversed the district court. After concluding that it had jurisdiction to hear the issue, the court concluded that counsel's performance was deficient when he provided the wrong version of the statute to the immigration expert. Nor could the court find that the district court's generic warnings at the plea hearing corrected that ineffectiveness. Finally, as to prejudice, the court found that Swaby showed a "reasonable probability that he would have gone to trial" rather than plead to the mandatory deportation offense or, at the very least, would have negotiated a different plea bargain that correctly addressed the immigration issue. As for going to trial, it "is rational that a person in his situation, with such strong connections to this country, would rather risk a trial to reduce the loss amount than plea guilty and accept the certainty of deportation." That decision "does not need to be optimal and does not need to ensure acquittal; it only needs to be rational."

Warrantless Search of Abandoned Car OK Due to Inevitable Discovery

US v. Bullette: In 2013, the DEA investigated a potential PCP lab in the California desert following a house fire. After the local sheriff notified them of suspicious activity at the site, investigators arrived and "observed evidence that suggested someone had been manufacturing PCP on the property." Among that evidence was a trio of abandoned vehicles near large drums of chemicals. One of them, a Pontiac sedan, had no license plate or visible registration. Inside investigators could see "a backpack, amber liquid in bottles . . . believed to be finished PCP (which later turned out to be Pine-Sol), and various documents." All three cars were searched. There were no warrants. For reasons not evident from the opinion, Bullette was charged in Maryland for conspiracy to distribute PCP and moved to suppress the evidence recovered from the Pontiac. He was convicted at trial after the district court denied the motion.

On appeal, the Fourth Circuit affirmed the denial of the motion to suppress. Rolling past an automobile exception analysis or exigent circumstances, the court held that it was inevitable that the evidence in the Pontiac would have been discovered via an inventory search on the car. "Impoundment," the court noted, "constitutes a reasonable course of action when the owner of a vehicle abandons it, or law enforcement cannot identify the owner." That applied to the Pontiac, which was impounded pursuant to standard DEA procedure, which included an inventory search. That there was no written policy about such searches was irrelevant.

Court Affirms Immigration Fraud Conviction, Rejecting Sixth Amendment and Hearsay Issues

US v. Zhu: Zhu came to the United States from China in 2001 and overstayed his visa. In 2011, federal agents began an undercover sting targeting fraudulent green card users. An undercover agent, working through a non-agent intermediary, would produce fake green cards for aliens seeking to remain in the United States. The agent made it clear that this was all illegal (and consequently very expensive). Zhu became involved via an intermediary named Hui. Zhu provided Hui with falsified document that were then passed on to the agent. He also later participated in an interview with the agent, during which he again explained that "what we are doing is not legal." Hui was arrested when he took a group of people (not including Zhu) to finally get their fake green cards. In a statement to investigators Hui said that he told a few people (not including Zhu) that the green cards were legal and legitimate. Hui was convicted of green card fraud and deported. Zhu was arrested a year later and convicted, following a jury trial, of conspiracy to commit immigration fraud and misuse of immigration documents.

On appeal, Zhu challenged his convictions on several grounds, all of which were rejected by the Fourth Circuit. First, Zhu argued that by deporting Hui the Government denied him the right to compulsory process of witnesses. Zhu maintained that Hui would have been a favorable witness because he would have testified that he told people the green cards they were getting were legal and legitimate. The court found no basis for this in the record, noting that Hui did admit to telling that to a few people, but Zhu wasn't one of them and the rest of Hui's statement showed he was fully aware of the illegality of their conduct. Thus, even if the Government had acted in bad faith in deporting Hui (an issue the court did not reach), Zhu could not show prejudice. Second, Zhu argued that the district court erred by admitting an email from Hui to the agent both because it was not properly authenticated and it was hearsay because it must have been written by a translator (the email was in English - Hui didn't speak English). On the authentication issue, the Fourth Circuit concluded that the Government had presented sufficient evidence, including testimony from the agent that the email came from a secret address only he and Hui knew about. On the hearsay, the court concluded that the district court did not abuse its discretion in concluding that the interpreter in this instance was only a conduit for the speech of another, not the producer of it. Finally, the court rejected Zhu's argument that the district court improperly interrupted his trial counsel during the questioning of witnesses and closing argument.