Wednesday, April 11, 2018

Bank fraud convictions upheld

US v. Savage:  A conspiracy of folks recruited a Capital One Bank teller to provide them with customer account information, and developed a scheme to defraud the bank.  The teller, Ms. Conteh, went to trial and was later convicted; she was sentenced to 64 months of imprisonment and ordered to pay $36k in restitution.  She decided to enter a proffer agreement with the government, to provide information about the conspiracy on condition that the information would not then be used against her.  Conteh provided investigators with evidence about Savage, which lead to the instant case against him.

Savage went to trial on charges of bank fraud and aggravated identity theft and a jury convicted him.  He appealed on several grounds: the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of bank fraud conspiracy; the district court erred in failing to conduct an in camera review to determine whether some material required disclosure pursuant to the Jencks Act or Brady; the district court erred by not providing his requested jury instruction on accomplice testimony and by giving the jury a copy of an instruction on aiding and abetting liability; and lastly, the district court erred in its application of the guidelines on several grounds.  The Fourth Circuit affirmed the convictions and sentence. 

The Fourth Circuit considered each of Savage’s issues, starting with his challenge to the sufficiency of the evidence of a bank fraud conspiracy.  Largely reliant on Conteh’s testimony, the government  showed Savage’s involvement in the conspiracy and the steps he took to carry out the fraud.  The Fourth Circuit found that Conteh’s testimony alone was sufficient to support Savage’s conviction for bank fraud. 

Savage argued that material gathered by the government in its meetings with Conteh was subject to disclosure under either the Jencks Act or Brady.  The material involved was the prosecutor’s personal notes.  The Fourth Circuit discussed how before a court must conduct an in camera review to determine whether a Brady violation has occurred, the defendant must make a “plausible showing” that the government’s information was material and favorable to the defense.  Further, a Jencks Act review is only required if the defendant provides a proper foundation.  Here, the Fourth Circuit held that Savage did not even attempt to argue a Jencks Act statement existed, or that the defense was entitled to review the prosecutor’s notes; he merely asserted that inconsistent statements might exist, which the Fourth Circuit found insufficient to require the court to conduct an in camera review.

Regarding the jury instructions, the Fourth Circuit found that the district court “substantially covered” Savage’s requested instruction on accomplice testimony because it warned the jury that it had to scrutinize all witness testimony and to take prior inconsistent statements into account.  It found no abuse of discretion.  Also, during deliberations, the jury requested a copy of all the jury instructions, which request the district court rejected, because the full copy of instructions contained the “judge’s interlineations.”  However, the court did provide the jury with a copy of the aiding and abetting liability instruction without any interlineations.  Savage argued that this caused him prejudice by emphasizing the based of conviction without taking measures to dilute any undue suggestiveness.  The Fourth Circuit found no abuse of discretion, finding that the court has discretion whether and how to respond to jury questions.

At sentencing, Savage received several enhancements: for obstruction of justice; for amount of loss; for the use of sophisticated means; and for his role as manager or supervisor.    Savage reportedly  gave perjured statements during his interviews with pretrial services (e.g. failing to give his address in Ohio where he allegedly resides, while providing that he lives in Maryland; concealing international travel to Sierra Leone where members of his family reside).  The Fourth Circuit found no error the application of this enhancement, as only one penjurious statement is necessary to apply  this one.  One the amount of loss, the district court applied the same loss calculation for Savage as it used in Conteh’s sentencing, and the Fourth Circuit found that the sentencing court need only make a “reasonable estimate of loss, given the available information” and found no error.  The Fourth Circuit found that the use of sophisticated means enhancement was not in error by Savage taking several steps to conceal his own identity and distance himself from the scheme, and having the means to store money in Africa and disguising the source of his money.  Finally, the enhancement for managerial role was not in error because of Conteh’s testimony about how he managed her activities, and it was uncontested that the scheme involved five or more participants.

Not a COV: federal crime of conspiracy to commit murder in aid of racketeering

US v. McCollum:  McCollum pleaded guilty to possession of a firearm by a convicted felon.  The PSR indicated McCollum had two prior convictions that qualified as crimes of violence: one for aggravated manslaughter in NJ, and one for conspiracy to commit murder in aid of racketeering.  McCollum objected, and the district court sustained his objection to the NJ conviction, but not the conspiracy conviction.  That conviction elevated his base offense level from 14 to 20.  McCollum raised the issue of whether this prior conviction was a crime of violence. 

The Fourth Circuit held, under constraint, that conspiracy to commit murder in aid of racketeering is not a crime of violence since it does not require an overt act, while conspiracy under the Guidelines does. It found conspiracy to commit murder in aid of racketeering is broader than generic conspiracy. 

The Fourth Circuit began its analysis with a determination that the categorical approach applies to federal crimes, like conspiracy to commit murder in aid of racketeering, as the Sentencing Commission publications and the guidelines text strongly suggest that it does, and there is no textual or analytical basis in precedent to distinguishing the treatment of state and federal statutes to determine whether a predicate offense is a crime of violence. 

The Fourth Circuit then proceeded to conduct the 4-part categorical approach.  First, it determined the relevant offense of comparison.  Second, it determined the elements of generic conspiracy, and found that generic conspiracy requires an overt act (more than 32 states require an overt act, which it found sufficient to establish the contemporary definition as such).  Third, it compared the elements of the crime of conviction to those of the enumerated offense.  Last, it considered whether the scope of the conduct criminalized by statute is categorically overbroad when compared to the generic definition of the Guideline crime. 

The government did not dispute that McCollum’s conspiracy conviction did not require an overt act.  As such, it criminalizes a broader range of conduct than that covered by generic conspiracy, and it is not categorically a crime of violence. 

Evidence from Facebook in felon in possession trial

US v. Recio:  Two police officers on patrol encountered Recio, whom they knew had outstanding warrants, with a gun visible in his waistband.  Recio fled to police, and tried to throw away the gun, which police recovered.  Recio got away but a month later was arrested.  Before trial, the government moved in limine to introduce a Facebook post, purportedly of Recio’s, with a rap lyric about carrying a firearm.  At a pre-trial hearing, the government sought to admit the Facebook post under two theories: as a direct admission; and as an adoptive admission.  The district court granted the government’s motion.  A jury found Recio guilty, and on appeal, he challenged the admission of the Facebook post, and the refusal to grant a mistrial but instead give an Allen charge. 

Recio challenged the admission of the rap lyric he purportedly posted to his Facebook account, first contending that it was not his statement, but inadmissible hearsay.  The government maintained the Facebook post was not hearsay.  The government pointed to “foundational facts,” such as Recio’s failure to use quotation marks, or attribute the lyric to an artist, or provide any other signal to his Facebook followers that someone else authored the statement.  In addition, he got the lyric slightly wrong.  Based upon these facts, according to the Fourth Circuit, a jury could infer that Recio meant to adopt the lyric as his own words. 

Next, Recio argued that the Facebook post was not relevant.  In its analysis, however, the Fourth Circuit discussed how lyrics posted by a defendant can be relevant when they match details of an alleged crime, making it more probable that a defendant, in fact, had engaged in that conduct.  Further, the Fourth Circuit stated, lyrics can show a defendant’s knowledge or motive.  The Fourth Circuit found the Facebook post relevant here, and that the risk of unfair prejudice did not substantially outweigh the probative value of the evidence.

As to Recio’s argument that the government failed to properly authenticate the Facebook post because it failed to sufficient establish that Recio authored the post, the Fourth Circuit stated that what mattered what not whether Recio did not author the post, but whether the jury could reasonably find that he did, and in light of the government’s evidence of certification by a Facebook records custodian, the Fourth Circuit found the government properly authenticated the post. 

Finally, Recio argued that the Facebook post was inadmissible character evidence.  The Fourth Circuit found that the Facebook post was not evidence of “other acts” from which the jury could make negative inferences about Recio’s character, it was direct evidence of the charged crime itself. 

Scope of traffic stop unlawfully extended

US v. Bowman:  Bowman was convicted of possession with intent to distribute methamphetamine, after police executed a dog sniff on Bowman’s vehicle after completing a traffic stop (Bowman had been stopped for speeding and weaving).  He moved to suppress the evidence obtained from his vehicle, and he was denied at the district court.  The Fourth Circuit held that the police officer had no consent to extend the traffic stop, nor did the police have a reasonable, articulable suspicion of ongoing criminal activity to justify extending the stop, and vacated the conviction.

In its analysis of the case, the Fourth Circuit described in detail the facts of the traffic stop, and how the officer involved issued Bowman a warning for speeding and unsafe movement of the vehicle, and then returned his license and registration, completing the traffic stop.  Unfortunately, the officer then kept Bowman in custody in his police cruiser and continued asking Bowman questions about his activities that evening.  Further, the officer forced Bowman to remain in the police cruiser while the officer proceeded to question Bowman’s passenger.  The Fourth Circuit determined that the officer unlawfully prolonged the completed traffic stop without consent or reasonable suspicion; the officer detained Bowman without his consent in order to interrogate Bowman’s passenger and search the vehicle.

The main question the Fourth Circuit sought to answer in this appeal was whether the officer’s actions during the stop were reasonable under the circumstances, and whether the officer violated Bowman’s Fourth Amendment rights when the otherwise-completed stop was extended.  It found that Bowman did not consent to extending the stop, so the panel moved on to the next question, whether the prolonged seizure was justified by reasonable suspicion.  The Fourth Circuit ticked methodically through each of the factors the police officer mentioned as his basis for suspecting criminal activity and justified the questioning of Bowman’s passenger (i.e., nervousness, the presence of clothing, food, and an energy drink in the vehicle, Bowman’s uncertainty about his passenger’s girlfriend’s address where they had recently been, and Bowman’s statements about purchasing vehicles.  The Fourth Circuit determined that these factors were individually totally innocuous, and even in combination, did not become suspicious.  Thus, it concluded that Bowman’s motion to suppress should have been granted.