Tuesday, August 28, 2018

Review of FISA Warrant Without Input from Defense Counsel OK

US v. Dhirane: Dhirane and his codefendant was charged with providing material assistance to a terrorist organization (al-Shabaab in Somalia). The evidence against them mostly came from conversations in private internet chat rooms and was obtained pursuant to a FISA warrant. They moved to suppress that evidence “even though they had not reviewed the warrant application and supporting materials due to the fact that they were classified.” Counsel, who had the required security clearance, requested to see the FISA materials. The district court denied the request and, after reviewing the materials in camera, denied the motion to suppress. Dhirane and his codefendant were convicted at trial and sentenced to 132 months and 144 months in prison, respectively.

On appeal, the Fourth Circuit affirmed the convictions and sentences.  The court rejected Dhirane’s argument that the statutory framework for challenging FISA warrants – which does not require adversarial proceedings – violated the Constitution (Dhirane did not directly challenge the district court’s rejection of the motion to suppress). While noting the importance of adversarial proceedings, the court concluded that “Congress did not run afoul of the Constitution when it reasoned that the additional benefit of an unconditional adversarial process was outweighed by the Nation’s interest in protecting itself from foreign threats.” The court also held that it was not necessary for the Government to prove that the people to whom Dhirane gave money were part of al-Shabaab, only that money was solicited, collected, and transmitted “to satisfy al-Shabaab’s express needs” to people “who were associated with al-Shabaab for the sole purpose of funding” the group’s illegal activities.

No Hearing Required When Government Decides Not to File Substantial Assistance Motion

US v. Under Seal: The defendant pleaded guilty to conspiracy to commit access-device fraud and identity theft pursuant to a plea agreement. The agreement required them to “testify fully and truthfully” against others and, if so, the Government was to make a substantial assistance motion “i[f] its discretion deems it appropriate.” Another provision of the agreement provided that if the defendant breached the agreement, the Government was released from its obligations, which included (among other things) arguing for a particular loss amount, recommending a reduction for acceptance of responsibility, and recommending a sentence at the low end of the advisory Guideline range.

The defendant testified, but not up to the Government’s standards. Therefore, the Government declined to make a substantial assistance motion. The defendant argued that the Government could do so only after “proving at a hearing” that their testimony constituted a breach of the plea agreement. The district court did not hold such a hearing and eventually sentenced the defendant to 49 months, a slight variance from the advisory Guideline range (based, partly, on the assistance provided).

On appeal, the defendant argued that “the district court erred by permitting the government to decline to move for a substantial-assistance reduction without requiring it to prove by a preponderance of the evidence that [the defendant] had breached his obligations under the plea agreement.” The Fourth Circuit rejected that argument and affirmed the sentencing. Finding the language of the plea agreement unambiguous, the court concluded that the decision to file a substantial-assistance motion rested within the Government’s discretion. Moreover, as the party wronged by the defendant’s alleged breach, it was within its rights not to enforce the breach provision and release itself from its other obligations.

Government Must ID All Potential ACCA Priors to Rely On Them Later

US v. Hodge: Hodge was convicted of, among other things, being a felon in possession of a firearm. In the PSR, the probation officer identified three prior Maryland convictions that qualified Hodge for sentencing under the Armed Career Criminal Act. The PSR also listed several other convictions, at least one of which could have been an ACCA predicate. There were no objections to that determination and Hodge was sentenced to 204 months on that conviction.

In the wake of Johnson, Hodge filed a 2255 motion seeking to vacate his sentence on the felon in possession charge, arguing that one of the identified ACCA priors no longer counted as a crime of violence. After initially agreeing that Hodge should be resentenced, the Government changed its mind and argued that he still qualified for sentencing under ACCA because of the other potential ACCA predicate listed in the PSR, but not previously identified as one. The district court agreed and denied Hodge’s motion.

The Fourth Circuit reversed. The court noted that to prevail on his 2255 motion all Hodge had to show was that his sentence as imposed violated the Constitution. He did that by showing that one of the identified prior convictions no longer qualified as an ACCA predicate. The court rejected the Government’s attempt to identify another conviction as an ACCA predicate at this point. The court noted that due process requires a defendant have notice of the alleged ACCA predicates during the initial proceeding. If the Government (or probation officer) doesn’t identify more than the minimum number of priors needed to trigger ACCA, it cannot go back and find another if one of the identified predicates goes away. The court requires that the Government request that all potential predicates be determined to be such (if it wants to rely on them later), avoiding the awkward nature of defense counsel identifying other potential predicates while arguing they are not predicates. Bottom line – the Government bears the burden.