Wednesday, December 23, 2020

Twitter Use During Trial Not Enough for Hearing on Juror Bias

US v. Loughry: Loughry was the Chief Justice of the West Virginia Supreme Court of Appeals when reporting emerged about wasteful spending by the justices. As a result of the ensuing investigation, Loughry was charged federally with 25 counts of fraud and "related claims" while being subject to impeachment proceedings in the state legislature. Loughry went to trial and, during voir dire, a juror ("Juror A") answered that she did not have any knowledge "of this case" or the "facts of this case," was familiar with the impeachment proceedings, and said she could set that aside and base her verdict only on evidence presented in court. Loughry was convicted on eight counts of fraud and two counts of making false statements. 


After trial, someone stopped Loughry's lawyer on the street and told him that he should investigate Juror A, particularly her Twitter account. Counsel learned that Juror A had liked or retweeted several tweets about the WVSCA scandal the summer before the trial. In addition, Juror A had liked a tweet on the day the Government began to present its case and both retweeted someone else and posted her own message later in the trial. All those tweets had to do with football, but counsel learned that among those that Juror A followed on Twitter were local reporters who had reported on the scandal and the trial, though there was no evidence that Juror A liked or retweeted any of their stuff during the trial. Loughry filed a motion for a new trial or an evidentiary hearing, which the district court denied.


A divided Fourth Circuit affirmed the denial of Loughry's motion for an evidentiary hearing (the only issue raised on appeal). First, the court concluded that Juror A's use of Twitter during the trial did not constitute misconduct. The court rejected the argument that the nature of social media made any potential juror contact with it during trial raises a presumption of prejudice. Thus, the court held, Loughry could not show "a credible allegation that an unauthorized contact was made" with a juror. As the court pointed out, the jury instructions about social media only prohibited jurors from consuming social media related to the case itself, not in general. Second, the court concluded that Juror A had not falsely answered any voir dire questions in light of having liked and retweeted material about the WVSCA scandal because that was not part of the "this case," noting that she had affirmatively answered that she had knowledge of the impeachment proceedings. Finally, the court held there was no error in failing to hold an evidentiary hearing on the issue of Juror A's actual bias against Loughry because there was no evidence to support it.


Judge Diaz dissented in part, arguing that Loughry was entitled to a hearing "to ascertain the full extent of Juror A's Twitter activity during the trial," noting that her activity on the two days during trial "indicates that she likely scrolled through her Twitter feed passively on at least some of the days when she didn't affirmatively interact with other accounts."

UPDATE: The Fourth Circuit has granted rehearing en banc in this case. After hearing oral argument, the court entered a one-line per curiam opinion that the "judgment of the district court is affirmed by an equally divided court."

Making CP Must Be The Purpose of Enticement, Not Merely A Purpose

US v. McCauley: McCauley was in North Carolina when he began an online relationship with what turned out to be a 13-year-old girl. After weeks of talk online, she convinced McCauley to come pick her up from her home in West Virginia. McCauley did so and, after returning to North Carolina, introduced the girl to his mother and coworkers. McCauley and the girl had sex several times. During one session, McCauley recorded 19 seconds worth of them having sex on his iPhone. He never showed the video to anyone else, but did mention making it to a friend. Investigators tracked down the girl and eventually McCauley was charged with enticing a minor to engage in sexually explicit conduct "for the purpose of producing [a] visual depiction of such conduct." He was convicted at trial and sentenced to the 15-year mandatory minimum sentence.


On appeal, the Fourth Circuit reversed McCauley's conviction. At issue was the district court's jury instructions (given initially and then after a question from the jury) that the Government had to prove that the production of CP was a purpose of McCauley's engaging in sexual conduct, with said purpose being able to arise at any point during the sexual conduct. Relying on the text of the statute, the court concluded that the instructions lowered the burden of proof and what the Government must prove is that the production of CP was the purpose of engaging in sexual activity. Such purpose could not be "merely one in ten [purposes]" as the Government argued to the jury, In reaching that conclusion, the court took note of the severe mandatory minimum sentence that results from the conduct. The error in the instructions serious prejudiced McCauley's case and required reversal of his conviction.

No IAC for Failing to Raise Then-Novel Double Jeopardy Argument

US v. Palacios: Palacios was charged with, among other things, use of a firearm in connection with a crime of violence and murder resulting from the use of a firearm in a crime of violence. Prior to trial, Palacios moved to dismiss one of the two counts, arguing that they were multiplicitous in violation of the Double Jeopardy Clause. The district court denied the motion, “correctly explaining” that the Government, at that point, was not required to choose between the two counts. Palacios was convicted of both, but never renewed his motion and was sentenced to life on the murder count and a consecutive 10-year term on the firearm count. Palacios later filed a 2255 motion arguing his trial counsel had been ineffective for failing to raise the Double Jeopardy challenge again after his convictions. The district court denied the motion, finding that it was not unreasonable for counsel not to raise that argument.


On appeal, the Fourth Circuit affirmed, although it provided some helpful language on the intersection of these two offenses. The court noted that that everyone agreed that the firearm offense is a lesser included offense of the murder offense as well as that there was no evidence that Congress intended to “authorize cumulative punishments for convictions under these two statutes.” That said, the court found no ineffective assistance of counsel here because at the time of Palacios’ trial the law on the issue was, at best, unsettled, with the first clear case holding in his favor being decided several years later. Although cases at the time recognized the lesser included nature of the firearm offense, none went further into the Double Jeopardy issue. Therefore, the court could not conclude that the claim Palacios raised now “was sufficiently foreshadowed at the time of trial to render his counsel’s failure to raise it constitutionally deficient.”

Prior Commitment During Eventually Dismissed Criminal Case Satisfies 922(g)(4)

 US v. Collins: In 2013, Collins was charged in West Virginia with threatening a judge and prosecutor. The judge determined Collins was incompetent to stand trial and ordered him transported to a mental institution for six months to restore competency. He was found restored, released from the institution, and the criminal charges were eventually dismissed. In 2018, Collins purchased a gun at a local sporting goods store. In filling out the required ATF paperwork, he answered "no" to the question of whether he had ever been committed to a mental institution. Later that day, Collins was arrested and the gun was recovered. He was charged with making a false statement on the ATF form and possession of a firearm by someone who had previously been "adjudicated as a mental defective." He was convicted on both counts at trial and sentenced to 60 months in prison.


On appeal, the Fourth Circuit affirmed Collins' convictions and sentence. The only conviction Collins challenged was the one for possession of the firearm, not making a false statement on the ATF form. Agreeing the Collins had shown Rehaif error in his indictment and jury instructions, the court nonetheless concluded that he suffered no prejudice. That was because the other count of conviction - which Collins did not challenge - required a jury to find, beyond a reasonable doubt, that Collins knowingly lied on the ATF form, thus showing that he had the requisite Rehaif-required knowledge on the possession charge. Collins testified at trial that he did not believe he lied on the form, but the jury rejected his testimony (Collins also testified that he had been subject to a commitment order and had even filed a lawsuit over it). The court also, in a footnote, rejected the argument that even though Collins knew he had been committed, he was not aware that his status precluded him from possessing a firearm. The court also rejected Collins' Second Amendment challenge to his conviction and his argument that his 60-month upward variance sentence was procedurally unreasonable.

Thursday, December 03, 2020

Stacked 924(c) Sentences Can Be Basis for Compassionate Release

US v. McCoy: This appeal involves several consolidated cases that involved the same basic backgrounds - the young defendants, with minimal criminal history, were convicted and sentenced for multiple 924(c) firearms violations and received the huge, stacked, mandatory minimum sentences that the statute required at the time. In the wake of the First Step Act, the defendants all sought compassionate relief under 18 U.S.C. 3582(c)(1), arguing that the disparity between their sentences and what they would face today after the FSA's amendment to the 924(c) stacking provisions, along with their rehabilitative efforts, constituted "extraordinary and compelling reasons" for relief. All were granted relief by the district courts and had their sentences reduced to time served.

The Government appealed and the Fourth Circuit affirmed the defendants' reduced sentences. Any relief under 3582(c)(1) has to be "consistent" with "applicable policy statements" issued by the Sentencing Commission. The primary issue was whether the district court's had the authority under 3582(c)(1) to consider situations beyond the current version of USSG 1B1.13, which addresses reasons for compassionate release, including a "catch all" provision. That Guideline was enacted prior to the First Step Act and reflects the Bureau of Prisons' roll as gatekeeper for that kind of relief. Without a quorum, the Sentencing Commission has yet to revise the Guidelines to address a post-FSA world. The court rejected the Government's argument that the Guidelines controlled here, holding that there was no "applicable" Guideline with which the district court had to be consistent.  The court also rejected the Government's argument that this was an end-run around Congress' decision not to make the 924(c) changes retroactive, noting that the compassionate release procedure was an individual one, decided on a case by case basis, not a blanket retroactivity granted to an entire class of defendants.

Congrats to the Defender offices involved on the win!

Fifth Amendment Self-Incrimination Protections Still Don't Apply in Revocation Hearings (But Should They?)

US v. KaKa was on supervised release and tested positive for using drugs. His probation officer went to his home and they sat, around the kitchen table, while Ka explained that he had needed money after being released from the local jail and had sold some drugs for a friend. The probation officer prepared a statement, which Ka signed, then used Ka's admissions as a basis to seek revocation of his term of supervised release. Ka moved to have his statements suppressed, but the district court denied the motion, revoked his supervised release, and sentenced Ka to 30 months in prison (plus more supervised release).

A divided Fourth Circuit affirmed Ka's revocation. While Ka argued that his failure to raise his Fifth Amendment privilege should be excused because another condition of his supervised release required him to answer honestly any questions from his probation officer, the court held that it need not reach the issue. That is because in US v. Riley last year, the court had already held that Fifth Amendment self-incrimination protections did not apply in the supervised release context. The Supreme Court's recent decision in Haymond did not change that, as it dealt with particular revocations under 3583(k) involving child pornography, not the general revocation provisions of 3583(e). Therefore, Riley was still good (and binding) law.

Judge Gregory dissented. He argued that Ka's position was not that Haymond overruled Riley directly, but that it knocked out several of the underpinnings upon which Riley rested. In particular, Riley was one of a long line of cases that applied law from the probation and parole contexts to supervised release, basically treating them as equivalent. Haymond rejected that and suggested that supervised release (like death) is different. Therefore, Riley should be revisited and, ultimately, rejected.

Venue for Illegal Reentry Is Proper In Any District Where Defendant Was After Entry

US v. Ayon-BritoA-B was deported to his native Mexico twice, before returning without permission sometime after 2013. He was arrested several times in Virginia on drug charges, but because he used an alias his immigration status was not discovered. He was arrested again on state charges in Pennsylvania, where his true identity was discovered. He was returned to Virginia and charged with illegal reentry. A-B moved to dismiss for improper venue, arguing that he should have been charged in Pennsylvania, where he was "found" by immigration authorities. The district court denied the motion and A-B was convicted of illegal reentry after a bench trial.

The Fourth Circuit affirmed A-B's conviction and the denial of his motion to dismiss. The court held that A-B's focus on where he was "found" was misplaced, as that was not one of the actual elements of the offense of illegal reentry. Furthermore, illegal reentry is a continuing offense that begins when the person reenters the United States and continues until they are apprehended. As a result, venue is proper in any district where they had been since their reentry (including, in this case, in Virginia).

Tuesday, December 01, 2020

Appeal Waiver Means Just What It Says

US v. McGrath: McGrath pleaded guilty to enticement of a minor – which carries a statutory maximum of life – and possession of child pornography – which carries a statutory maximum of ten years. This was pursuant to a plea agreement in which McGrath waived his right to appeal “whatever sentence is imposed . . . for any reason” so long as the sentence did not exceed “any sentence within the advisory guidelines range resulting from an offense level of 43” – in other words, any sentence greater than life in prison. McGrath was ultimately sentenced to 264 months on the enticement charge and a concurrent 120-month term on the child pornography charge.

On appeal. McGrath challenged his sentence as procedurally unreasonable because the district court did not adequately explain the sentence imposed and made several religious references at sentencing when comparing McGrath’s conduct to murder. The Government invoked the appeal waiver and moved to dismiss the appeal. The Fourth Circuit granted the motion, noting that McGrath did not challenge the validity of the waiver itself and that the issues raised “fall squarely within the waiver’s scope.”

Immigration Court Regulations Not Vague

US v. Moriello: Moriello is an immigration attorney who had appeared at a hearing in immigration court in Charlotte, NC. With the permission of the immigration judge, Moriello was allowed to remain in the courtroom to observe other proceedings (normally they are closed). A sign outside the courtroom told visitors they could not use electronic devices, aside from "attorneys and other representatives" for "clear and immediate business purposes only." Moriello used her device, anyway, prompting one of the bailiffs (who are contractors, not federal employees) to ask her to turn it off. She refused, after which point the judge took notice. The judge stopped the hearing to direct bailiffs to tell Moriello to stop using her phone. After two further refusals she "became argumentative," the hearing was suspended and Federal Protective Services officers were called, who eventually wrote Moriello a citation for violating the electronic device regulation. Moriello was then charged in a two-count information with failing to comply with the lawful direction of an authorized individual while on property under the authority of the General Services Administration and impeding and disrupting the performance of official duties.  Moriello was eventually convicted at a bench trial and fined $2500.

On appeal, the Fourth Circuit affirmed Moriello's convictions, rejecting several arguments as to the legitimacy of the regulations. First, the court concluded that the regulations were not unconstitutionally vague. Second, the court found that the regulations did not violate the non-delegation doctrine. Third, the court rejected the argument that, under the Tenth Amendment, the "regulations interfere with [Moriello's] rights as a private citizen to disregard unwarranted exercise or authority." Fourth, the court found that the magistrate judge and district court properly interpreted the regulations. Finally, the court found that the evidence was sufficient to support Moriello's convictions.

Cops With Arrest Warrant Need Probable Cause of Residence and Presence

US v. Brinkley: Police officers had a warrant for Brinkley's arrest in Charlotte, NC. In looking for where he might be found, officer found one address where there was a water bill in his name and a second address where some earlier legal documents had been sent to him. The same database that provided that information, however, showed numerous other addresses with which Brinkley was associated. Research on social media led officers to believe Brinkley was dating Chisolm, who was also associated with the second address. Therefore, officers concluded that is where Brinkley was living, although one officer later admitted that it was "common" for people like Brinkley "to have more than one place where they will stay the night." 

Officers went to that address, allegedly to surveil it to see if Brinkley came or went, but eventually went and knocked on the door. Chisolm answered the door. Behind her in the apartment was another woman who was folding laundry. Chisolm denied that Brinkley was there, but both women were nervous and officers hear sounds of movement in a back room. Five officers entered the apartment and found Brinkley in the back, executing the arrest warrant and eventually locating drugs and firearms. Brinkley unsuccessfully moved to suppress the evidence found after the arrest and entered a conditional guilty plea to being a felon in possession of a firearm. 

On appeal, a divided Fourth Circuit reversed the district court and held that it should have granted the motion to suppress. At issue, primarily, was the standard to apply when officers entered a home to execute a valid arrest warrant. That analysis requires two steps: is there reason to believe that (1) the location is the defendant's residence and (2) that he will be home at the time the officers enter. Courts are split as to whether "reason to believe" means officers must have reasonable suspicion or probable cause on those issues. The court concluded that probable cause was required and that the officers in this case did not have sufficient evidence to support it. 

Judge Richardson dissented, arguing that reasonable suspicion was the proper standard but that, even under the higher standard of probable cause, the officers acted appropriately in this case.

Routine Aerial Surveillance Program Does Not Violate Fourth Amendment

Leaders of a Beautiful Struggle v. Baltimore Police Department: This civil case challenged the constitutionality of the Aerial Investigative Research program run by the Baltimore police. The program involves aircraft flying over the city during daytime hours collecting data on the movements of people below. They cover 90% of the city, but operate at a level of resolution that "reduces each individual no the ground to a pixelated dot," unable to identify particular individuals or vehicles. The data is analyzed at a central control room in the wake of particular incidents - shootings, robberies, etc. - to search for suspects and witnesses (using additional information gathering techniques). Leaders, among others, challenged this program as a violation of the Fourth Amendment. The district court denied their request for a preliminary injunction, finding that the program did not violate the Fourth Amendment.

A divided Fourth Amendment affirmed the denial of the injunction, concluding that the plaintiffs failed to make a "clear showing" needed for such relief. The court concluded that the surveillance program did not violate any reasonable expectation of privacy as the program was "short-term surveillance of an individual's public movements." It did not matter that the data harvested by the program could provide police leads to use to track down people using more traditional methods (which the plaintiffs did not challenge). The court distinguished the data at issue here from cell-tower information in the Supreme Court's decision in Carpenter, noting that whereas cell-tower information can track a particular individual over days (or more), the surveillance program could only track movements in public for 12 hours "at most." The court did make clear that its decision "should not be interpreted as endorsing all forms of aerial surveillance." The court also held that the program "seeks to meet a serious law enforcement need without unduly burdening constitutional rights." The court also concluded that the program did not violate Leaders' First Amendment right to free association.

Judge Gregory dissented, arguing that the majority's reading of the program was too narrow and "accepting" of the defendants' promises on the limitations of the program and that Carpenter is "not only relevant to this case. It controls the outcome."