Thursday, February 22, 2018

Cop's Prior Uses of Force Properly Admitted Under 404(b) In Civil Rights Prosecution

US v. Cowden: Cowden was an officer with the Hancock County (WV) Sheriff's Office. One night in January, 2015 he was on duty when a driver, Hamrick, was brought in after being arrested for DUI.  At the scene of the arrest Hamrick "resisted and engaged in a physical altercation" with another officer, but by the time he arrived at the station he was "loud" and had a "drunken demeanor" but was no longer "physically resisting." Nonetheless, Cowden said Hamrick was "not going to act that way with us, this is our house, play by our rules" and another officer called his mood "unusually hostile." Cowden "pulled Hamrick toward the elevator and threw him against the wall" then "pulled Hamrick's head away from the wall and slammed his head and face back into the wall." Cowden again said that this was "our house" and that Hamrick would "play by our rules" in a "tone of voice and use of force that indicated he was losing control." Cowden also punched Hamrick in the back of the head and threw him into the elevator. Hamrick received injuries that needed medical treatment to the tune of $3044. Hamrick was charged with deprivation of rights under the color of law and making a false statement. He was convicted on the first charge, but acquitted on the second. He was sentenced to 18 months in prison and ordered to pay restitution to Hamrick to pay his medical bill.

On appeal the Fourth Circuit affirmed Cowden's conviction. Cowden's primary argument on appeal was that the district court should not have allowed the jury to hear 404(b) evidence about two prior incidents where he used excessive force. The court disagreed, holding that the incidents were relevant to "Cowden's use of force in circumstances when Cowden or others were not actually threatened, but Cowden perceived that an individual was not showing adequate respect to law enforcement officers." That was particularly true because Cowden testified at trial that he "had not intended to punish Hamrick." Finally, while the evidence was "unquestionably . . . prejudicial" it also "provided information about Cowden's actions when dealing with individuals he perceived as manifesting resistance to law enforcement authority." The court also rejected Cowden's arguments that the Government had failed to show that he acted "willfully" in dealing with Hamrick and that he should not have been ordered to pay restitution.

NC Voluntary Manslaughter Is ACCA Violent Felony

US v. Smith: Smith was convicted of being a felon in possession of a firearm and was sentenced under ACCA. The only issue on appeal was whether his prior conviction in North Carolina for voluntary manslaughter was a "violent felony." The offense in North Carolina involves "the unlawful killing of a human being without malice, express or implied, and without premeditation and consideration" and,  according to the state supreme court, "generally . . . occurs when one kills intentionally but does so in the head of passion." The court rejected Smith's argument that the offense could be committed negligently, noting that (quoting a North Carolina appellate court) that voluntary manslaughter is "essentially a first-degree murder, where the defendant's reason is temporarily suspended by legally adequate provocation." Based on this "it is certain that the intent required is sufficient to qualify it as a categorically violent predicate."

Evidence Sufficient to Sustain CP Convictions

US v. Miltier: Investigators downloaded child pornography from an IP address they traced back to Miltier. They later executed a search warrant at his home, seizing a laptop and thumb drive that both contained images of child pornography. The laptop's only logged in email address was Miltier and he admitted that he used it. Several searches on the computer related to his work, his car, and home repairs he was making. He was charged with seven counts of receipt of child pornography and one count of possession. He was convicted on all counts and sentenced to concurrent terms of 120 months in prison and a lifetime term of supervised release.

The Fourth Circuit affirmed Miltier's convictions and sentence. First, he argued that the evidence on all counts was insufficient to show that he knowingly received or possessed the images in question. The court disagreed, noting that the "ten files that form the basis for these charges were found on the [laptop], and significant evidence links the computer to Miltier." He admitted knowing that the laptop included a peer-to-peer file sharing software, which showed evidence of searches relating to terms associated with child pornography. Second, Miltier argued that there was insufficient evidence on two counts to show that the files involved were downloaded from the internet and "thus the government failed to demonstrate the required interstate nexus element." The court rejected that argument, noting that there was evidence that those files had been downloaded by the peer-to-peer program. Third, the court rejected Miltier's argument that the Government was required to prove that the child pornography files themselves, rather than the laptop, had travelled in interstate commerce, concluding that "we find no indication in the statute that Congress intended to limit" the statute in such a way. Finally, the court rejected his argument that instructing the jury in that manner was a constructive amendment of the indictment.

Monday, February 05, 2018

Fourth Circuit weighs in on "Playpen" cases

US v. McLamb:  In this appeal, the Fourth Circuit considered whether the defendant’s motion to suppress evidence was properly denied for an invalid warrant obtained by the FBI in its investigation of a child pornography website known as “Playpen,” a hidden services message board located on the “dark web.”   After seizing Playpen’s servers, the FBI sought a warrant to deploy the Network Investigative Technique (“NIT”) to locate Playpen’s users.  A federal magistrate judge issued the warrant, authorizing use of the NIT on Playpen visitors for 30 days.  The NIT identified thousands of computers across the world that accessed Playpen during this month-long period.  McLamb was one of those thousands.  He moved to suppress evidence on his computer as the fruit of an invalid warrant, challenging the warrant’s particularity and its execution, as well as the jurisdiction of the magistrate who authorized the search.  The district court denied McLamb’s motion, and the Fourth Circuit affirmed, finding that even if the warrant was unconstitutional, the district court properly denied the motion to suppress because the good faith exception from Leon applies. 
Three other circuits (Eighth, First, and Tenth) have analyzed the same NIT warrant at issue here, and each has concluded that even if the warrant violates the Fourth Amendment, the Leon good faith exception precludes the suppression of evidence.  The Fourth Circuit agreed.

Tardy motion to dismiss, in response to tardy pro se notice of appeal, granted

US v. Hyman:  In this appeal, the Fourth Circuit considered whether to grant the government’s motion to dismiss an appeal due to the appellant’s failure to meet the requirement for timely filing.  Hyman, the defendant, had been convicted of one count of crack distribution, and received a sentence of fifty-seven months’ imprisonment on July 27, 2016.  On November 22, 2016, Hyman filed a notice of appeal challenging his sentence.  The Fourth Circuit appointed counsel to Hyman, and he filed his opening brief and joint appendix in February 2017.  The government subsequently filed its motion to dismiss and suspend briefing.  Hyman responded that the Court should allow his appeal because the government unnecessarily delayed filing its motion to dismiss until after Hyman filed his opening brief.  The Fourth Circuit scheduled the motion to dismiss for oral argument.  After oral argument, the Fourth Circuit granted the government’s motion to dismiss.

Because, the Fourth Circuit states, we are required to strictly apply claim-processing rules if they are raised timely, and because the local rules permit a party to raise timeliness at any time, it granted the government’s motion.  To hold otherwise, it argued, would be to sanction the government for adhering to the Fourth Circuit’s rule.  It dismissed Hyman’s appeal.

WV unlawful wounding COV

US v. Covington:  In this appeal, the Fourth Circuit considered whether the West Virginia crime of unlawful wounding was a crime of violence under the guidelines.  As the government did not argue in this case that the predicate offense was an enumerated offense, the Fourth Circuit considered  whether it qualifies as a crime of violence under the force clause only. 

Using the categorical approach, the Fourth Circuit found that the WV statute in question is divisible, in that it listed two separate crimes with different elements and punishments, i.e. unlawful wounding and malicious wounding.  There was no question which part of the statute was at issue here, so the Court moved on to compare the offense of unlawful wounding with the requirements of the force clause.

Considering the elements of the force clause, the Fourth Circuit found that the elements of WV unlawful wounding categorically qualified as a crime of violence under the force clause.  Further, Covington did not identify for the Court a WV case that interprets the offense of unlawful wounding to apply to an individual who uses force that is not “capable of causing physical pain or injury to another person,” whereas the government provided “scores” of cases that seemed to confirm that unlawful wounding in WV only criminalizes the degree of force required under Johnson.