Remand for Hearing on Possible Jury Interference Required

US v. Johnson:  Johnson and his codefendant were on trial for numerous charges related to their alleged membership in a “violent street and prison gang in Baltimore.” Among the charges were those related to the intimidation and murder of witnesses. During trial a juror told a court security officer (in front of the other juror) that some of “the defendants’ associates” had tried to take pictures of jurors as they stepped out into the hallway. The district court denied the defendants’ motion for a mistrial, utilizing court staff to perform a brief investigation, but without holding a hearing where any of the jurors were questioned under oath.  The mistrial was denied (although the initial reporting juror was dismissed), the defendants convicted, and sentences of life imposed on both.

On appeal, a divided Fourth Circuit vacated the district court’s judgment (although not the verdicts) and remanded with orders to the district court to hold a hearing on the matter of jury interference. The court concluded that the single juror’s report of possibly being photographed was sufficient to trigger the district court’s obligation to hold a hearing under Remmer and that the district court’s outsourcing of its investigation to court staff was not appropriate. Furthermore, the court noted that the most important issue was how the conduct impacted the jury (at least the initial juror who made the report, if not the rest of the jury), not whether the reported conduct was accurately described. In other words, whether the photo taking actually took place was irrelevant compared to whether the juror thought she was being targeted.

Judge Motz dissented, arguing that the reported conduct was “what we ordinarily would consider innocuous,” noting that none of the other jurors “interpreted their actions as photographing or attempting to photograph the jury.”

Rehaif Plain Error Requires Reversal In Plea Cases

US v. Gary: Gary pleaded guilty to separate counts of being a felon in possession of a firearm and ammunition. While his sentencing appeal was pending, the Supreme Court decided Rehaif, in which it held that the Government was required to prove that a defendant in such cases was aware of the status that made him a prohibited person. At issue in Gary’s appeal, then, was whether his guilty plea, entered prior to Rehaif and without knowledge of all the elements of the offenses to which he pleaded guilty, was still valid.

The Fourth Circuit concluded it was not and vacated Gary’s guilty plea. Proceeding under plain error review, the court agreed with the parties that the first two Olano prongs – that there was error that the error was plain – were satisfied. The dispute came over whether Gary could show prejudice and, if he could, whether the court should notice the error. As to prejudice, the court concluded that entering a guilty plea without knowledge of all the elements of the offense was a structural error that per se prejudiced Gary. The court also held that it must notice the error, as the “integrity of our judicial process” requires that a defendant “who chooses to plead guilty enters a knowing and voluntary plea.”

Congrats to the Defender office in South Carolina on the win!

Aider-and-Abettor’s Personal Use Drugs Properly Included in Relevant Conduct

US v. Williamson: Williamson pleaded guilty to aiding and abetting the distribution of methamphetamine along with his girlfriend. At sentencing, the district court, in determining relevant conduct based primarily on the girlfriend’s testimony, included in that amount the methamphetamine Williamson had given her that she used herself. Williamson was eventually sentenced to 121 months in prison, within the resulting advisory Guideline range.

On appeal, the Fourth Circuit affirmed Williamson’s sentence. The issue, the court noted, was whether drugs consumed for personal use by other members of jointly undertaken drug activity (conspiracies or aiding-and-abetting setups) could be considered relevant conduct. The court concluded it could, based on its reading of the Guidelines and the general scheme of basing drug sentences on the amount of drugs involved (there’s a lengthy background section on this in the opinion). Because, the court held, the ultimate question is the amount of drugs involved in the scheme itself, it didn’t matter what another person in the scheme did with them once they got the drugs. In Williamson’s case, the drugs he gave to his girlfriend were relevant conduct whether she consumed them herself or resold them. The court did note that it was not addressing the issue of whether the defendant’s own personal use amount of drugs should be included in relevant conduct calculations.