Monday, August 31, 2020

Virginia Controlled Substance Conviction Is “Controlled Substance Offense,” Even If State Statute Is Broader Than Federal

US v. Ward: Ward was convicted of distributing cocaine and classified as a career offender. The basis for that designation was two prior convictions in Virginia for possession of heroin with intent to distribute. The district court rejected Ward’s argument that because the Virginia statute at issue defined “controlled substances” more broadly than federal law his prior convictions could not be “controlled substance offenses.” He was sentenced to 120 months in prison.

The Fourth Circuit affirmed Ward’s sentence, but did so in a divided fashion. The court noted that the Guideline definition of controlled substance offense required a violation of either federal or state law that then must by punishable by more than one year in prison and involve particular actions involving a “controlled substance.” Ward’s argument was that Virginia’s definition of “controlled substance” was broader than federal law’s. The court turned to the Black’s definition of “controlled substance” as “any type of drug whose manufacture, possession, and use is regulated by law” and concluded that the substances covered by the Virginia statute met that definition. When examining a state conviction, “we look to see how the state law defining that offense defines the punishment and the prohibited conduct.” The Guideline definition “refers neither to the federal definition of a ‘controlled substance’ nor to the federal drug schedules” and, furthermore, the Sentencing Commission has shown in other contexts it knows how to cross-reference to such statutes.

Chief Judge Gregory concurred in the result, but got there in a different way. He argued that the majority had ignored prior Fourth Circuit decisions that held that the Virginia statute at issue was divisible and that the identity of the drug involved was an element of the offense. Applying that law, and the modified categorical approach, it was clear that Ward’s prior conviction was for distributing a controlled substance (heroin) that was covered by federal law as well as Virginia’s. Instead, he argued, the majority had “ignor[ed] our recent precedent and creat[ed] an entirely new framework that requires us to split from several of our sister circuits.”

Flawed Rule 29 Analysis Requires Reversal of Post-Trial Judgment of Acquittal

US v. Millender: Millender and his wife, Brenda, were each charged with dozens of counts of fraud, money laundering, and conspiracy arising from their operation of a pair of investment schemes related to the church where Millender was a pastor. A coconspirator pleaded guilty, but Millender and Brenda went to trial, where he was convicted on all 31 counts and she was convicted on seven (of 24 charged). After the verdict, the Millenders moved for a Rule 29 judgment of acquittal or new trial. The district court granted the motion as to Brenda, acquitting her on all seven counts on which she was convicted, along with a “conditional” order granting her a new trial. As to Millender, the court granted his motion as to ten counts of concealment money laundering.

The Government appealed the district court’s rulings, but the district court proceeded with sentencing, imposing upon Millener a 96-month term of imprisonment. As a result, Millener cross appealed. However, while the appeals were pending, Millender passed away and his appeal was dismissed. The appeal as to Brenda continued.

The Fourth Circuit reversed the district court’s decision granting Brenda a judgment of acquittal and a new trial. The court noted that the district court “systematically reviewed” the evidence against Brenda and it “perceive[d] no error in this district court’s thorough reasoning about most of this evidence,” but “cannot agree with the court’s assessment” of the testifying coconspirator’s testimony. In doing so, the district court “assessed [his] credibility and failed to construe the evidence in the Government’s favor,” as required in the Rule 29 analysis. The coconspirator’s testimony, when considered in that light, could provide a basis for the jury’s convictions. The court also concluded that the district court erred in analyzing the money laundering counts, looking to whether the source of the funds were concealed, versus the nature of those proceeds. The court remanded for further proceedings on Brenda’s motion for a new trial, holding that there was no legal basis for the district court to have issued a “conditional” grant of a new trial.

Second Post-Miranda Interview, After Initial Interview Without Warnings, Not a Violation

US v. Khweis: Khweis, an American citizen, was captured by Kurdish forces battling ISIS and taken to a detention center in Iraq. There an FBI agent questioned Khweis “to gather intelligence about ISIS,” but did not provide him with Miranda warnings. Ten days later, a separate team of FBI agents did a series of interviews with Khweis, advising him of his Miranda rights “before each interview.” He waived his rights and made inculpatory statements that helped form the basis of an indictment charging him with providing material support to ISIS and related charges. Kwheis was convicted at trial and sentenced to 240 months in prison.

On appeal, a divided Fourth Circuit affirmed Khweis’ conviction, rejecting his argument that his inculpatory statements from the second set of interviews should have been suppressed. The court concluded that even if the agents intentionally employed a “two-step” strategy, the second group of agents undertook “sufficient curative measures to ensure that a reasonable person . . . would understand the import and effect of the Miranda warnings and waiver.” The court noted that the agents who conducted the second set of interviews “were walled off from the intelligence team” and had not received any information obtained during the first interview. In addition, the second set of interviews were conducted in a different location and informed Khweis not only that he had a right to counsel, but that his family had retained counsel in the United States.

Judge Floyd dissented, arguing that the measures undertaken did not sufficiently apprise Khweis of the import and effect of Miranda warnings and that the agents had intentionally employed the two-step process.

Warrant Sufficiently Particular to Allow Search that Uncovered CP

US v. Cobb: Cobb was living with his parents and cousin, Wilson, when he and Wilson got into a fight that left Wilson dead. After Cobb was arrested, he called his father and told him to move a laptop from his room and “keep it safe,” that Wilson has “previously used the computer to put some ‘shit’ on it” and asked that his father “wipe down” or clean the computer. He also asked his parents to get his cell phone from the jail. Officers obtained a warrant to search the home and recovered (among other things) a laptop, which they then obtained a second warrant to search. The basis for the warrant was Cobb’s statements on the phone and the warrant allowed for a search of the laptop for “[any material associated with the homicide” of Wilson, as well as “[a]ny and all other evidence of any other crimes.”

Officers searching the laptop uncovered what appeared to child pornography and concluded that “the child pornography was the motive for the murder.” Cobb pleaded guilty to second-degree murder in state court and was indicted for possession of child pornography in federal court. He sought to suppress the CP found during the search of the laptop, but the district court denied that motion. He entered a conditional guilty plea and was sentenced 110 months in prison.

On appeal, a divided Fourth Circuit affirmed the denial of Cobb’s motion to suppress. Cobb argued that the second warrant (to search the laptop) was not sufficiently particular because it was not tailored to the particular facts of the homicide and did not narrow down the kinds of files sought or the time period in which they had been created/modified/downloaded. The court disagreed, concluding first that the warrant “specified as much as it could have” by specifying the place to be searched (the laptop) and the things to be seized (evidence related to the homicide). As to the types of files to be searched, the court noted that Cobb did not explain how the warrant could have done that and, regardless, “the Fourth Amendment simply did not demand that the warrant be more specific in this case.” The language at the end about “any and all other evidence” was superfluous and did not impact the court’s Fourth Amendment analysis.

Judge Floyd dissented, arguing that the warrant suffered from a lack of particularity, that the plain-view exception did not apply, and that no good-faith exception applied, either.

ID of Authorizing Officer in Title III Affidavit Enough, Even Though Not In Orders

US v. Brunson: Brunson was charged with multiple offenses arising from a drug conspiracy in South Carolina. Much of the evidence leading to those charges, and presented at trial, came from a series of wiretaps authorized under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Each order was the same – the applications for the orders were made in the names of particular Assistant Attorney Generals, but the resulting orders did not name them. However, the applications were incorporated by reference. Brunson sought suppression of the wiretap evidence, arguing that Title III requires the “identity . . . of the person authorizing the application” be on the order. The district court denied the motion and Brunson was convicted at trial.

A divided Fourth Circuit affirmed Brunson’s conviction. First, the court concluded that the Supreme Court’s recent decision in Dahda did not answer the question, and thus turned to established Fourth Circuit law. Then the court turned a concession of Brunson’s back on him. He had agreed that if the wiretap orders had said only “the Attorney General,” without specifically naming him, that would be sufficient, since there is only one Attorney General. However, since there were multiple Assistant Attorney General’s, the title alone would not suffice. This, the court held, was a concession that something less than the full name of the authorizing officer was required. The orders here, which referenced the applications where the Assistant Attorney General was specifically named met the standard under Title III because it substantially complied with the statute. In the alternative, the court held that the Leon good-faith exception would apply and not require suppression of the evidence.

Judge Motz dissented, arguing that Dhada does decide the issue and in Brunson’s favor. She also argued that Leon did not apply to a statutory scheme that included no good-faith exception in its text.

Failure to Adequately Address Mitigation Arguments Requires Vacation

 US v. Webb: Webb was convicted on multiple drug-related charges after a jury trial. At sentencing, he faced a recommended Guideline sentence of life in prison. At sentencing, he argued for a lesser sentence, arguing both that he had begun to turn away from drugs and crime prior to his arrest and that other higher-ranking members of the conspiracy received lesser sentences. He also argued that given his age a lesser sentence would lead to his release at an age where recidivism has typically greatly reduced. The Government responded to these arguments, but the district court did not, eventually imposing a sentence of life in prison.

On appeal, the Fourth Circuit affirmed Webb’s convictions, but vacated his sentence as procedurally unreasonable. That was because “[n]owhere in the district court’s brief explanation of its sentence” did it mention Webb’s arguments as to his age and the sentencing disparities with his coconspirators. The Government did not dispute this, but argued that it was clear from the “context” of the hearing that the district court considered the arguments. The court disagreed, noting that while the district court provided Webb the opportunity to make mitigating arguments, it did not engage with them and those are “separate requirements of procedural reasonableness.”