Conviction For Unlawful Transfer of Firearms Requires Delivery to Another Person

US v. Duroseau: Duroseau was a native of Haiti who came to the United States, became and US citizen and a Marine. After a tour in Afghanistan (from which he returned with PTSD and a "possible traumatic brain injury"), Duroseau conceived of a scheme whereby he would take weapons to Haiti and train authorities there to help them deal with increased violence. After having his girlfriend (a Marine reservist) fake travel orders for him, Duruseau boarded a plane in North Carolina with eight firearms and ammunition, all of which were declared. He was arrested when he landed in Haiti. He was charged with (among other things) of the unlicensed transfer of firearms to another unlicensed person, specifically the Haitian Army. He was convicted on that charge (and others not relevant to the appeal) and sentenced to 63 months in prison.

On appeal, the Fourth Circuit vacated the unlawful transfer of firearms conviction. Before reaching that substantive conclusion, the court rejected the Government's argument that Duroseau's argument was not property preserved, because his motion for acquittal before the district court had not specifically raised the same argument as he made on appeal. The court disagreed, concluding that the motion, combined with the district court's handling of questions from the jury on the issue, properly preserved it. On the substance of the issue, Duroseau argued that a conviction for unlawful transfer of firearms only covers a completed transfer - that is, when the firearms are delivered to the other unlicensed person. The court agreed, noting that the statute did not include attempt and that its plain language required a transfer to another person.

Movant Couldn't Show 924(c) Conviction Was Based Solely On Conspiracy Predicates

US v. Said: Said was part of a group of pirates who intended to attack a commercial vessel in the Gulf of Aden but mistakenly attacked a US Navy vessel. For this he was convicted of multiple offenses (more details here, although afterward Said's sentence was reduced to 396 months), including use and possession of a firearm in connection with crimes of violence. in the wake of the Supreme Court's decision in Davis, Said filed a 2255 motion seeking vacation of the firearm convictions because one of the predicate offenses on which they were based was conspiracy. The district court granted the motion and vacated multiple convictions. 

On appeal by the Government, the Fourth Circuit reversed. Recognizing the parties’ agreement that the original jury instructions erroneously allowed the jury to conclude that the conspiracy offenses were proper predicates, the court nonetheless noted that the convictions would stand “so long as the jury also relied on a valid predicate.” Because the verdict form in this case didn’t specify which predicate(s) the jury relied upon, the issue was whether “Said is entitled to habeas relief because the jury may have relied soley on one or more of the invalid predicates.” The court concluded he was not, relying on the strict harmless error analysis that applies in habeas proceedings when reviewing erroneous jury instructions. Ultimately, the court concluded that Said was required to prove that the jury relied on the invalid predicates and it was not enough to show that it was impossible to know upon which predicates they relied. Because Said could not meet that burden, his convictions remained valid.

Guideline Enhancement Based On Promotion of Terrorism Doesn't Require Terrorism Conviction

US v. Hasson: Hasson was charged with being an unlawful user of controlled substances in possession of a firearm (among other things) after arriving for work in possession of firearms, ammunition, and Tramadol. More Tramadol was found in his desk and a search of his home uncovered 15 firearms, ammunition, and two unregistered silencers (one of which was disassembled). The Government also uncovered considerable statements Hasson had made in a draft email and prior letter to the founder of a white supremacist organization suggesting he was planning some sort of violent act. He also “compiled the manifestos of mass murders and terrorist” and his “internet search history showed a similar preoccupation with violence, white nationalism, and anti-government views.” After unsuccessfully moving to dismiss the firearm charge, he pleaded guilty to all the charged offenses and was sentenced to 160 months in prison after a the application of a Guideline enhancement for committing an offense “intended to promote, a federal crime of terrorism.” 

On appeal, the Fourth Circuit affirmed Hasson’s convictions and sentence. The court rejected Hasson’s argument that the drug user in possession of a firearm statute was “unconstitutionally vague on its face” by noting that he did “not dispute the district court’s holding that his conduct ‘falls squarely within the confines’” of the statute, an “abandonment” That “dooms Hasson’s vagueness challenge.” As to Hasson’s sentence, the court held that the Guideline enhancement for promoting a federal crime of terrorism did not require a conviction for such an offense, rejecting Hasson’s argument that a Congressional directive to the Sentencing Commission restricted the enhancement in such a manner. The court also concluded that the district court did not disregard without consideration Hasson’s expert’s testimony that he did not present a risk of violence.

Search of Bag No Longer In Defendant's Possession Violated Fourth Amendment

US v. Buster: Officers responded to a report of “a domestica assault where a firearm was discharged in the air” when they spotted Buster, who they believed matched the description of the suspect. Buster did not stop when the officers asked to “talk” and eventually “took off running but tripped and fell almost immediately.” Buster had a bag strapped around his waist which was underneath him, in a location where the officers thought he might be trying to conceal it but also where the strap was choking him. Officers cut the strap and took possession of the bag, which felt “hard to the touch” and was therefore suspected of containing a weapon. An officer opened the bag and found a gun and ammunition. Officers also asked Buster numerous questions without Miranda warnings. Buster filed a motion to suppress, which the district court granted with respects to his eventual post-Miranda statements (the Government agreed not to use the pre-Miranda statements), but denied with respect to the gun and the ammunition. Buster entered into a plea agreement which “preserve[d]” his “right to appeal the denial of his motion to suppress,” pleaded guilty to being a felon in possession of a firearm, and was sentenced to 51 months in prison. 

On appeal, a divided Fourth Circuit reversed the district court’s denial of the motion to suppress with regard to the firearm and ammunition. First, the court rejected the Government’s argument that the conditional plea agreement did not adequately preserve the issue. The Government relied on a prior Fourth Circuit decision, Bundy, which held that if a conditional plea attempted to preserve an issue that was not “case dispositive” that it tainted the entire plea, such that it deprived the court of appeals of the ability to review other, case dispositive, issues. The Government argued that the pre-Miranda statements Buster made would not have been case dispositive. The court disagreed, concluding that while the defendant in Bundy sought to appeal several issues, here Buster sought only to appeal “the denial of a single motion requesting a single form of relief (suppression).” Second, on the merits, the court concluded that the district court erred by denying the motion to suppress the firearm as “the sole theory the government has pressed in support of that result does not apply here.” That theory, of a protective search under Terry, did not apply because by the time the officer opened the bag “Buster was handcuffed on the ground and had no access to it.” It could not, therefore, present any “credible threat to the officers’ safety” at the time.  As for the officer’s feeling of the bag and suspicion it might contain a weapon, “that fact alone could not generate reasonable suspicion that Buster  was ‘presently dangerous’ after he was already restrained and no longer had access to the bag.” 

Judge Richardson dissented, arguing that “Bundy’s rule is textually baseless, pragmatically unjustified, and entirely binding on this panel” and “would fully support abandoning Bundy through the proper channel – an en banc hearing.” While not specifically reaching the merits, in a footnote he noted a prior Fourth Circuit decision with similar facts and a different result, and highlighted the “majority’s comment that the government might have succeeded if it sought to justify the search on another theory; the government should now be on notice that it needs to put forth all the alternative theories that justify a search.”

Congrats to the Defender office in the Eastern District of VA on the win!

Exigent Circumstances Allow for Warrantless Cell Phone Tracking

US v. Hobbs: Hobbs’ ex-girlfriend, Foreman, called police to report that Hobbs had come to her home, brandished a firearm, used it to break a window, then “forcibly entered the home and removed a television.” ON the way out he “threatened to kill Foreman, her daughter, and other family members, and stated that if she contacted the police, he also would kill any responding officers.” Foreman told police that she had seen Hobbs with other guns in the past and that he was “obsessed with firearms.” Police also learned that Hobbs had a “violent criminal history, including convictions for robbery and attempted murder.” With that information, officers made a warrantless request to Hobbs’ mobile phone provider to access pings from his phone as well as call logs, in order to locate Hobbs. About six hours later, officers were able to make a traffic stop, arrest Hobbs, and recover a firearm from next to the car. After unsuccessfully moving to suppress the firearm, Hobbs was convicted at trial of being a felon in possession of a firearm. 

On appeal, the Fourth Circuit affirmed the denial of Hobbs’ motion to suppress. Hobbs argued that the exigent circumstances to the warrant requirement did not apply because “officers lacked information that he would flee from the police” and that neither the officers nor Foreman and her family were facing “imminent harm . . . because Hobbs had obtained the television he was seeking.” The court disagreed, concluding that exigent circumstances applied. It noted that while a warrant could have been obtained in six hours, providers typically took days to respond to them. In addition, the intrusion on Hobbs’ privacy was limited given the small period of time for which they were seeking information. Furthermore, officers behaved like they considered Hobbs to be dangerous, taking Foreman to the police station to keep her safe.