Wednesday, June 28, 2017

Only Assistance Itself Is Relevant to Guideline-Based Substantial Assistance Departure

US v. Concha: Concha was convicted of conspiracy to distribute cocaine on the basis of 43 kilos of cocaine that were found in his tractor trailer. After his arrest, Concha worked with law enforcement to deliver his cargo, thus leading to the arrest of his co-conspirators. At sentencing, his advisory Guideline range was 168 to 210 months in prison. The Government moved for a departure for substantial assistance, "viewed Concha's assistance very favorably," and asked the court to depart 50% from the bottom of the Guideline range. The district court granted the departure, but balked at the 50% request due to "his involvement in these drug crimes, and it's huge" and a recognition that he was able to provide such valuable assistance precisely because he was so deep in the conspiracy. The district court eventually imposed a sentence of 126 months, a 40% reduction from the top of the advisory Guideline range.

The Fourth Circuit vacated Concha's sentence. Noting that it's review was based on the district court's error of law in giving the departure, not the amount of the departure itself, the court distinguished between assistance departures under Rule 35 and the Guidelines. Under Rule 35, a court may only consider the defendant's assistance in deciding whether to grant a departure, but may consider other factors in determining the extent of the departure. Under the Guidelines, however, the sentencing court may only consider assistance related factors when determining the extent of the departure. In Concha's case, the district court considered factors beyond his assistance in deciding the extent of the departure. Those factors were appropriate for the determination of what the non-departure sentence would have been (top of the Guideline range), but not the extent of a subsequent departure.

Court Limits Ability to Raise New Issues in 2254 PF&R Objections

Samples v. Ballard: Samples was convicted of murder in West Virginia and sentenced to life in prison. A first 2254 petition in Federal court was denied because Samples had not yet exhausted his state habeas remedies. In denying the motion, the court stated that Samples might be able to bring a 2254 claim for ineffective assistance of counsel claim under Martinez, which allows defendants to bring IAC claims in federal court even if not made in a state habeas proceeding. After an unsuccessful return to state court, Samples filed a second 2254 petition, which the magistrate judge recommended be dismissed. In the objections to those PF&Rs, Samples raised, for the first time, "contentions related to the effectiveness of trial counsel, and argued that cause existed to excuse his failure to exhaust these issues" under Martinez. The district court overruled the objections, concluding that it had the ability to hear the IAC claims, but exercised its discretion not to do so. The district court also granted a certificate of appealability on the issue of whether it should hear Samples's IAC claims raised for the first time in the objections.

The Fourth Circuit affirmed the district court's decision. First, the court held that a prior decision (George ), in which it held that a district court performing a de novo review of a magistrate's recommendation could not deem issues raised for the first time in objections as "waived" and instead "must entertain them," applied in the context of 2254 proceedings. It conceives of a proceeding as (1) a legal case, that is then divided into (2) issues, which are then divided into (3) arguments. Applying that framework to a 2254 proceeding, (1) the legal case is the petition itself, (2) the issues or claims are the grounds for relief, and (3) the arguments are the positions taken for or against the claims for relief. This rejected Samples's conception, which would have identified only one issue - illegal custody - and transform the grounds for relief in to mere legal arguments. That position would "require us to find that a habeas petitioner could merely state the he is in illegal custody and then make all arguments later" which would "result in an end run around AEDPA."

Venue (Mostly) Proper in Eastern Virginia for Disclosure of Classified Material

US v. Sterling: Sterling worked for the CIA for nearly a decade. During that time, he took part in operations to funnel "realistic but ultimately flawed nuclear plans" to Iran via a Russian scientist. Sterling's term at the CIA didn't end well - he sued the agency for racial discrimination and was ultimately fired. Shortly thereafter, a reporter contacted the CIA about a story (eventually a book) he was going to publish about the Iran program. An investigation showed multiple contacts between Sterling and the reporter (who had written an article about Sterling's lawsuit). During a search of Sterling's house investigators found several classified documents. Sterling was charged, in the Eastern District of Virginia, with multiple counts related to the improper disclosure of classified material, fraud, and obstruction of justice. Sterling was acquitted of fraud, but convicted on all other counts and sentenced to 42 months in prison.

On appeal, the Fourth Circuit affirmed the majority of Sterling's convictions, but reversed on count of disclosure. Sterling's main arguments related to venue - both that the jury was improperly instructed on venue and that it improperly found venue was appropriate in EDVA. In general, the court concluded that venue was proper for Sterling's convictions because the evidence showed that information was either transmitted or retained by him while he lived in EDVA (the court didn't address the Government's broader backup theory - that venue was proper in EDVA because the reporter's book was for sale there). However, on one count of disclosure - which involved a letter, rather than phone or other type of contact - there was no evidence of where the letter was transmitted to the reporter. The court refused to take the Government's "presumption" that since the letter was found in Sterling's Virginia home the transmission must have begun there. Therefore, venue was not proper in EDVA on that count and it had to be reversed. The court found no error with the district court's instructions on venue, however. The court also held that Sterling obstructed justice when he deleted an email to the reporter following the issuance of a subpoena and that evidence of his prior mishandling of confidential material was admissible under Rule 404(b).

Judge Traxler concurred in part and dissented in part, arguing that venue was proper on the vacated disclosure count in EDVA.

Evidence Supports Two-Level Gun Enhancement Following Conspiracy Conviction

US v. Mondragon: Mondragon was convicted of conspiracy to distribute meth and possession with intent to distribute meth. The conspiracy ran from 2012 until 2014. Among the evidence presented at trial was testimony from Mondragon's "closest associate," Carroll, who testified that once at Mondragon's apartment he saw Mondragon "break down" a revolver while, at another time, Mondragon told stories of having killed people in Mexico. Another witness, Young, testified that he saw Mondragon with a gun "a couple of times in the past." Based on that evidence, Mondragon's advisory Guideline range was enhanced for the possession of a weapon.

The Fourth Circuit affirmed the sentence on appeal. Mondragon argued that the Government failed to carry its burden on the gun enhancement by showing that the firearms had any relation to drug trafficking activity. The court rejected that argument, holding that the testimony of Carroll (who only knew Mondragon during the conspiracy) proved that a gun was present during the conspiracy. Furthermore, the district court did not clearly error by concluding that there was a linkage between the gun and the conspiracy. Because Mondragon "did not even attempt to rebut the government's showing," the enhancement was proper. The court also rejected an argument, made for the first time at oral argument, that the evidence of possession was insufficient because it was based on statements made in the PSR, rather than trial - statements which Mondragon did not challenge as false.

Court Affirms Later Adult Conviction for Hobbs Act Robbery Comitted While Juvenile

US v. Lopez: In 2007 two men robbed a brothel in Maryland, during which a woman was raped and another man stabbed to death. The crime went unsolved until 2012, when DNA testing of a knife sheath left at the crime scene was matched to Lopez. A year later he was indicted for conspiracy to commit Hobbs Act robbery and a substantive Hobbs Act charge. Lopez was only 17 years old at the time of the offense, but 24 by the time of trial. His co-conspirator pleaded guilty to the conspiracy, but Lopez went to trial. He was convicted on both counts and sentenced to 20 years in prison.

On appeal, the Fourth Circuit affirmed Lopez's conviction and sentence. Lopez's arguments on appeal focused mainly in the delay between the commission of the offense and the indictment. First, he argued that because the offense occurred when he was only 17 years old he could not have been tried as an adult. Specifically, he argued that the defining "juvenile" to exclude those who were charged after they turned 21 (where the offense occurred before) violated the Constitution. The Fourth Circuit disagreed, holding that the designation of someone as a juvenile is not about culpability at a particular age, but about assuring that minors are placed into a system that is specially designed to handle their needs. It is thus "entirely rational" to exclude from that definition those who are charged after they turn 21. Second, Lopez argued that the Hobbs Act charge was outside the 5-year statute of limitations, even taking into account the late discovery of the DNA. He argued that he was "implicated" (the point at which the limitations period restarts) in 2008 when his DNA was first put into the database, not in 2012 when the match occurred. The court disagreed, holding that someone is implicated by DNA only once there is a match. Finally, Lopez argued that the delay in his prosecution violated his right to due process. The court disagreed, noting that he could not show any prejudice from the delay.

Monday, June 26, 2017

Court Vacates RICO Conspiracy, Federal Theft Convictions

US v. Pinson: Pinson was a member of the board of trustees at South Carolina State University as well as a participant in various business ventures, including Supremes, LLC (a diaper business) and VRE (real estate), and was charged with RICO and related charges arising from them. As a SCSU trustee, Pinson convinced the school to hire a particular promotor for its homecoming concert, from whom he received money and attempted to have the school purchase a luxury resort (as an "off-campus retreat facility"), for which he was supposed to receive a "commission." As for Supremes, Pinson helped the company receive a federal grant to refurbish an old factory, but the work was not completed and Pinson was involved in sending false invoices. Finally, with VRE, Pinson was involved with a housing contract. Pinson was charged with RICO conspiracy, theft from Government programs, extortion, money laundering, false statements, and various frauds.  After a two week trial he was convicted of numerous counts, including the RICO conspiracy, and sentenced to 60 months in prison and more than $340,000 in restitution and penalties.

On appeal, the Fourth Circuit affirmed most of Pinson's convictions, but vacated several. Specifically, the court found that the evidence did not show that there was a single RICO conspiracy that encompassed all four of Pinson's activities. Pinson and those he worked with did not commit the safe offenses and did not form a RICO "enterprise." The court also concluded that the evidence was not sufficient to sustain Pinson's two convictions for federal program theft related to VRE because one of Pinson's associates was not an "agent" of a covered entity and VRE did not receive a federal benefit.

Judge Diaz dissented on the RICO conspiracy and would have affirmed that conviction.

Aiding and Abetting Rape Can Be Tier III SORNA Predicate

US v. Cammorto: Cammorto pleaded guilty to violating SORNA by failing to register as a sex offender in Virginia. At sentencing, the district court concluded he was a Tier III offender (the most serious classification under SORNA) and, consequently, that his advisory Guideline range was 33-41 months. At issue was Cammorto's prior conviction in Georgia for rape - he argued that he was convicted only of aiding and abetting and, therefore, should be only a Tier I offender. The court disagreed and imposed a sentence of 41 months in prison.

On appeal, the Fourth Circuit affirmed Cammorto's sentence. Cammorto argued that because Georgia law allowed a person "who never even touched the victim" to be convicted of rape as an aider and abetter, that offense was broader than the federal offense of aggravated sexual abuse and, therefore, could not count as a Tier III offense. Applying the categorical approach, the court concluded that it was "readily apparent . . . that the Georgia rape statute is narrower than the federal offense." That the a person can be convicted as a principal under Georgia law as an aider and abetter was irrelevant because "under federal law, aiders and abetters are also treated as principals." The court also rejected Cammorto's argument (raised for the first time at oral argument) that Georgia's aiding and abetting standard is broader than the federal one.

Drug-Related Gun Bump Doesn't Preclude Safety Valve Relief

US v. Bolton: Bolton was charged with conspiracy to distribute marijuana. A search conducted at his home following his arrest uncovered (among other things) a shotgun and a rifle in his bedroom. The shotgun was stolen. Bolton was released on bond and eventually pleaded guilty to the conspiracy and was released pending sentencing. Prior to sentencing, Bolton's bond was revoked after it was learned that he was involved with the distribution of cocaine. Following his arrest, he was debriefed by law enforcement. He was eventually charged with conspiracy to distribute cocaine, pleaded guilty to that, and a consolidated sentencing hearing was scheduled. At sentencing there was a dispute over the application of a two-level gun enhancement recommended in the PSR and the PSR's failure to include reductions for acceptance of responsibility and because Bolton qualified under the "safety valve" provision. The district court overruled Bolton's objections, applying the gun enhancement because of the circumstances surrounding the possession of the guns (which happened outside of the time frame of the charged conspiracy) and concluding Bolton didn't qualify for the safety valve because of the gun enhancement. Nor did he receive credit for acceptance of responsibility.  Bolton was sentenced to 161 months in prison.

The Fourth Circuit affirmed Bolton's sentence, but no precisely on the grounds identified by the district court. Bolton challenged the district court's rulings on the gun enhancement and the safety valve. On the gun enhancement, the court held that the Government met its burden by showing that the guns were found in Bolton's bedroom along with marijuana and cash and that Bolton did not show that it was "clearly improbable" that the guns were linked to drug trafficking. However, the court also concluded that the district court's finding on the gun enhancement did not preclude Bolton receiving relief under the safety valve. That is because the burdens of proof on the two are different - to avoid the enhancement the defendant must show it was "clearly improbable" that the gun at issue wasn't possessed in connection with drug trafficking, but under the safety valve he must show that he "did not possess a firearm in connection with the offense." This, the court held, "is not a distinction without a difference." Thus, the district court erred by concluding that because the enhancement applied the safety valve could not. However, the court also concluded that the error was harmless because Bolton hadn't proved that he did not possess a firearm under the later standard. Finally, the court concluded that the district court did not err in denying Bolton a reduction for acceptance of responsibility, given that he was continuing to distribute drugs while on bond.

Court Affirms Convictions for Medicare Fraud Resulting in Death

US v. Chikvashvili: Chikvashvili ran a "diagnostic imaging company" - they provided portable x-rays, sonograms and such wherein a company tech would go to a patient's location, do the imaging, then transmit the images to a doctor. However, Chikvashvili developed an "elaborate, longstanding conspiracy to cheat Medicare" via fraud that included (among other things) using the technicians to interpret the imaging results, then fraudulently stating that a qualified doctor had given the results. Then Medicare would be billed for work allegedly done by doctors but actually "done" by lower-paid techs. The techs sometimes misread the images and in two cases patients died after images were misread and various conditions were missed. Chikvashvili was charged with two counts of healthcare fraud resulting in death. After a pair of Government experts testified at trial that the misread images led to the patients' deaths, a jury convicted Chikvashvili on both counts (as well as dozens of others). He was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed Chikvashvili's fraud resulting in death convictions. First, the court held that a resulting in death count can be based on the "execution of a fraudulent scheme" rather than only on the submission of a false claim. There was sufficient evidence to convict on those counts. Second, the court held that the jury was properly instructed about that standard. Finally, the court held that the Government's expert on causation was properly allowed to testify.

Wednesday, June 07, 2017

Economically Coerced Statement's Use at Trial Requires Reversal

US v. Giddins: Giddins was connected to three bank robberies - he allegedly committed one, then loaned his car to the perpetrators of two others. Police recovered the car, obtained an arrest warrant for Giddins, and lured him to the police station so that he could pick up his car. He was immediately taken into an interview room and informed that his car was used in a crime (the entire interview was videotaped). While going over a Miranda waiver form, Giddins was (essentially) told he wasn't going to be able to take his car until he answered some questions about "these young ladies who decided to use your car in a crime."  An officer told Giddins that he wasn't in trouble ("Not at this point, no") and implied that he didn't have anything to worry about. Giddins eventually signed the form. After about 15 minutes more questioning (during which the officer kept taking control of Giddins's phone), the officer showed Giddins a surveillance photo from the first robbery and told him he was the robber, which Giddins denied. After the officer "laid out the case" against him, Giddins invoked his Fifth Amendment right to counsel. The officer finally seized Giddins's phone, "prying it from Giddins's hands." Giddins was indicted for bank robbery and conspiracy to commit bank robbery. Giddins unsuccessfully moved to suppress the video of the questioning. He was convicted of one count of bank robbery and one count of conspiracy at trial.

On appeal, the Fourth Circuit reversed Giddins's conviction, 2-1. Noting that Giddins argued primarily that his statements weren't voluntary, the court held that "it is the Miranda waiver that is decisive in this case." The court rejected the Government's argument that Giddins wasn't in custody while being questioned, which was the conclusion of the district court. While the district court's findings (that Giddins wasn't under arrest, wasn't handcuffed, that no weapons were drawn or visible during questioning, etc.) were not incorrect, they were "not complete . . . and fail to paint the full picture." For instance, while there was an unlocked door, it was behind the questioning officer and, thus, would have required Giddins to make his way past him. Also, the officer "moved Giddins's phone away" from him twice during the session. In addition, "there is the issue of Giddins's car." Specifically, the court concluded that a "reasonable person would have felt unable to cease the interview and thus forfeit the opportunity to obtain the return of his or her property." Considering the totality of the circumstances, therefore, Giddins was in custody. Having concluded that Miranda warnings were needed, the court went on to conclude that "both the questioning and the waiver were involuntary and the result of coercion." Specifically, obtaining the Miranda waiver by making it condition precedent for Giddins getting his car back was economically coercive to an improper degree. The court also found that the officers' repeated statements that Giddins wasn't "in trouble" were unduly coercive - the officers already had an arrest warrant and planned to execute it, thus there was "no doubt that Giddins was 'in trouble.'" Finally, the court found that the admission of Giddins's statement at trial was not harmless error.

Judge Agee dissented, arguing that Giddins was not in custody and his statement was not coerced.

Congrats to the Defender office in Maryland on the win!

Monday, June 05, 2017

Double Jeopardy Prevents Charge In Larger Conspiracy After Guilty Plea to Smaller One

US v. Jones: Jones pleaded guilty to an information in 2012 in the Eastern District of Virginia charging him with a drug conspiracy that ran from July to August 2012. He was sentenced to 135 months in prison. In 2014, he was indicted in the Western District of Virginia for a drug conspiracy that ran from 1998 to 2012. Jones moved to dismiss the indictment on double jeopardy grounds. The district court denied the motion. Although the two conspiracies involved some of the same people (and the same drug), the 2012 conviction was based on a discrete delivery of drugs and thus could be differentiated from the 14-year conspiracy charged in the 2014 indictment.

The Fourth Circuit reversed in an interlocutory appeal. Double jeopardy prohibits the Government from "dividing one overarching conspiracy into two separate counts." To determine if the two conspiracies are separate, the court looks to the entirety of the record and evaluates a totality of the circumstances. After noting that the Government did not dispute the district court's finding that Jones mad a "non-frivolous" argument that the conspiracies overlapped, the court concluded that for each of the five factors it analyzed "the Government has failed at every turn to prove separate and distinct conspiracies." Rather, "the Government has identified one large conspiracy to traffic cocaine." The court also identified the Government's argument that there was no double jeopardy issue because the second conspiracy had an "expanded scope, a broader reach, and a different object" as having a "glaring, fundamental flaw" that "misconstrues our double jeopardy precedent." In such cases the court looks to the degree of overlap between the charges, not the degree of similarity.

Admission of Improper 404(b) Evidence Requires Reversal in Constructive Possession Case

US v. Hall: Hall was charged with possession of marijuana and guns. Said guns and marijuana were found in a locked bedroom in the house where Hall appeared to be living. However, the door was locked when police searched the home and Hall did not have the key. Furthermore, none of the items seized from the locked bedroom had Hall's fingerprints and no one would testify that the items belonged to Hall. What the Government did have was several of Hall's prior convictions - for both simple possession of marijuana and possession with intent - which were admitted at trial as 404(b) evidence. The district court admitted the convictions even though it wasn't "sure Rule 404(b) was drafted to be that broadly construed" but it was "bound  . . . to follow the Fourth Circuit law" - in this case, an unpublished decision from 2013. Hall was convicted on all counts at trial.

On appeal, the Fourth Circuit reversed his convictions, 2-1. Although Hall presented multiple issues, the only one the court resolved was whether the prior convictions were properly admitted under Rule 404(b). After a lengthy discussion of the nature of constructive possession (the only avenue open to the Government to secure the conviction) and the Government's burden to show how 404(b) evidence is relevant to the issues at trial, the court concluded that the Government failed to meet its burden. As a result, the district court abused its discretion by admitting the evidence. Along the way, the court shot down the Government's attempt to review the issue for plain error and the district court's reliance on unpublished - therefore non-binding - authority as the basis for its decision. The court also spent a lengthy amount of time responding to the dissent. The error in admitting the convictions was not harmless and required the reversal of Hall's convictions.

As to the dissent, Judge Wilkinson argued that the district court not only didn't abuse its discretion but made the right call in admitting the evidence. He takes the majority to task for not providing a full picture of the facts (thus making it look like Hall's connection to the drugs was more tenuous than it really was). More notably, he accuses the majority of engaging in the "encroachment of overactive appellate judging on the roles of district courts, juries, and advocates in the conduct of a trial." He also argued that the majority had declared that prior drug convictions were almost never relevant under Rule 404(b).

Friday, June 02, 2017

Castelman Supersedes Torres-Miguel; Murder Is Crime of Violence

In re Irby: Irby was arrested for being a felony in possession of a firearm. The Government eventually dismissed that charge rather than disclose the identity of the informant whose tip led to the search that discovered the firearm. Back on the street, Irby figured out the informant was Deadwyler (they shared the same attorney), whom Irby blamed for his father's death (due to stress brought on by the search and arrest). Irby went to Deadwyler's home, shot him three times, stabbed him 147 times (to "make sure it was over"), and burned a pile of his possessions. He was then convicted after a jury trial of second-degree retaliatory murder, causing death with a firearm under 924(c), and destruction of property by fire. After the Supreme Court's 2015 decision in Johnson, Irby sought permission from the Fourth Circuit to file a second or successive 2255 motion because his murder conviction was not a "crime of violence" as required to sustain his 924(c) conviction.

The Fourth Circuit denied that permission. Relying on the two-step method laid out in Hubbard, the court concluded that even if Johnson was applicable retroactively to 924(c) cases, Irby could not make a "plausible" claim for relief because second-degree murder is still a crime of violence that involves an element of physical force under the Supreme Court's 2010 Johnson decision. After reviewing that decision (and noting that it was applying the categorical approach only because precedent required it), the court looked to the Supreme Court's decision in Castleman which "expounded on what it means to use  physical force." What it means is that force is used even when it really isn't - such as when a person is poisoned - and it doesn't matter if the victim is harmed indirectly, rather than directly. This makes "it pellucid that second-degree retaliatory murder is a crime of violence" because it requires the use of force. Most notably, the court held that it's prior decision in Torres-Miguel, if it was ever intended to apply beyond threat offenses, "the distinction we drew in Torres-Miguel between indirect and direct applications of force and our conclusion that poison 'involves no use or threatened use of force,' no longer remains valid in light of Castelman's explicit rejection of such a distinction." Nowhere does the court deal with the argument that Castleman is limited to "force" in the domestic violence context and should not apply outside that area.