Wednesday, November 13, 2019

Warrant Sufficient to Allow Search In Wake of Threats

US v. Jones: Jones was pulled over by a Martinsburg, West Virginia, police officer for driving on a suspended license. In the wake of this, Jones took to social media and made repeated claims such as that he was “on a cop manhunt,” was looking for that officer in particular, and warning officers (whom he called “pigs”) not to come to his home because he was “going to pull this trigger, bang, bye” and that they should “be careful.” Officers got a warrant to search Jones’ home looking for evidence of the West Virginia offense of making “terrorist threats,” and found ammunition. Jones was charged with being a felon in possession of ammunition and unsuccessfully moved to have that ammunition suppressed.

The Fourth Circuit affirmed the denial of Jones’s motion to suppress. First, the court rejected the argument that the warrant application did not sufficiently allege that Jones had committed the particular West Virginia offense, relying on two state supreme court decisions to conclude that his alleged conduct fell within its ambit. Second, the court rejected the argument that Jones was entitled to a Franks hearing on the basis of the omission of other social media posts that showed that Jones was not a threat to officers, but was rather suicidal. Although that understanding of those statements was “implausible on its face,” the court nonetheless held that even if they could be read that way and included in the warrant application there was still probable cause to issue the warrant.

Witness Retaliation Can Be ACCA Predicate

US v. Allred: Allred was convicted of being a felon in possession of a firearm. He was sentenced to 264 months under the Armed Career Criminal Act because, among other things, of a prior conviction under 18 USC 1513 for retaliation against a witness by causing bodily injury. That was in 1995. In 2016, after Johnson, Allred filed a 2255 motion arguing that his 1513 conviction was no longer a “violent felony” because it did not require the use of force. The district court agreed and resentenced Allred to 120 months in prison.

On the Government’s appeal, the Fourth Circuit reversed the district court’s grant of the 2255 motion. The court first had to decide whether 1513 was a divisible statute or not. The court ultimately concluded that it was, laying out four different offenses, at least one of which (because it involves property) would clearly not be an ACCA predicate anymore. However, once that finding was made, a check of Allred’s indictment showed he was charged and convicted under the version of the offense that involved causing bodily injury. The court then looked to whether that satisfied ACCA’s force clause and concluded, based on Castleman that it did. Indirect force was enough to satisfy the clause and the offense at issue here could not be committed negligently or recklessly. Therefore, Allred still qualified for sentencing under ACCA.

Cops’ Convictions for RICO, Related Offenses Upheld

US v. Taylor: Taylor and his codefendant, Hersl, were Baltimore police officers who were involved with a number of others in a scheme to rob suspected drug dealers and falsify overtime reports. As a result, they were convicted by a jury of RICO conspiracy, substantive racketeering, and Hobbs Act robbery. They were sentenced to 216 months in prison and appealed on numerous grounds.

The Fourth Circuit affirmed Taylor and Hersl’s convictions and sentences. First, the court rejected their argument that there was insufficient evidence of one of the two racketeering acts charged as part of the RICO count, wire fraud. Specifically, the defendants argued that there was insufficient evidence to show that it was reasonably foreseeable to them that the false overtime reports – which were processed by a company in another state and resulted in paychecks being sent or electronic funds transfers – used the “wires.” The court disagreed, noting that the interstate nexus portion of wire fraud was a jurisdictional element and that there was sufficient evidence of the defendants’ familiarity with the overtime time and payroll scheme that it was foreseeable that the wires would be involved. Second, the court applied that holding in rejecting the argument that there was insufficient evidence to support the substantive racketeering count, since it was based on multiple acts of wire fraud. Third, the district court affirmed the convictions for Hobbs Act robbery, based on separate events. For Taylor, the court concluded there was sufficient evidence to conclude that he stole some of the money seized from a drug dealer during a purchase of drugs based on the dealer’s testimony about the terms of the deal and the lesser amount of money turned over to police evidence control. For Hersl, the court concluded there was sufficient evidence to show that he was involved in a warrantless search of another drug dealer’s home, during which cash was seized and a portion of it divided up by the officers involved. Finally, the court found no abuse of discretion with regard to several evidentiary issues and concluded that the defendants’ sentences were substantively reasonable.