Overwhelming Evidence Overcomes Evidentiary Errors In Robbery, Witness Tampering Case

US v. Walker: Walker was the organizer/leader of a group of men who robbed a jewelry store and cellphone store in North Carolina. Firearms were used in both robberies, although Walker did not brandish or otherwise use them. After his arrest, and while incarcerated, Walker “tried to get word out on the street” that one of his confederates, Sparks, was an informant. He also wrote a letter to another party, which was intercepted at the jail, where he referred to Sparks as a “lying rat” and a “snitch.” Walker was eventually convicted at trial of conspiracy, robbery, firearms, and witness tampering charges and sentenced to 411 months in prison.

 On appeal, the Fourth Circuit affirmed Walker’s convictions. He made four arguments regarding evidentiary issues at trial, two of which he prevailed on. First, the court agreed with Walker that the district court should not have permitted the employee victims of the robberies to testify about how the robberies impacted them in the long term. The court distinguished testimony about their feelings during the robbery (relevant to whether they were put in fear/threatened) and afterwards, which were more in the vein of victim impact statements appropriate at sentencing. Second, the court agreed with Walker that a police officer who listened to some phone calls Walker made while in jail should not have been allowed to testify as to the meaning of certain terms as a lay expert witness. The court agreed that because the officer was not part of the conversations and his conclusions were not based on “his contemporaneous understanding of the language used but instead the result of his putting the pieces together based on what he discovered during the investigation,” the testimony was the kind of “post-hoc assessments” that Rule 701 does not permit. In spite of prevailing on those issues, Walker’s convictions were still affirmed, as he “has not demonstrated that the district court’s evidentiary errors effected the trial’s outcome” as the Government “presented such a strong case” against Walker. 

On two other evidentiary issues, the court found no error on the part of the district court. First, the district court correctly allowed the employee victims of the first robbery to testify as to their conclusion that Walker was acting as “the decoy guy” to help setup the robbery. That testimony was based on their “observations at the time of the robbery” and were appropriate. Second, the district court correctly allowed the admission of screenshots of the letters Walker allegedly sent about Sparks and Sparks’ own testimony that Walker was a “dangerous person.” Finally, the court affirmed Walker’s witness tampering conviction, concluding that it was irrelevant that the final letter was never actually delivered, as “to result in a conviction, the alleged witness tampering need not be successful.”

Federal Murder Statute Is Divisible, Mostly a Crime of Violence

US v. Jackson: Jackson kidnapped a runner in a national forest in North Carolina, duct taping her to a tree then raping her, before shooting her in the head. He was convicted of murder in state court and sentenced to death, but his convictions were overturned due to police misconduct. After a remand, he pleaded guilty to lesser offenses and was sentenced to 25 to 31 years in prison. He was then charged federally with using a firearm during a crime of violence that resulted in death. He was convicted and sentence to death. Jackson filed a post-Johnson 2255 motion, arguing that the “crimes of violence” relied upon by the jury in convicting were no longer crimes of violence after Johnson. The district court denied Jackson’s motion because although kidnapping was no longer a crime of violence, the other two involved – murder and aggravated sexual abuse – were. 

On appeal, the Fourth Circuit affirmed the denial of Jackson’s 2255 motion. Because the conviction only required one predicate crime of violence, the court only determined whether first-degree murder is a crime of violence. The court agreed with the Government that the first-degree murder statute is divisible, a conclusion supported by the indictment and jury instructions in Jackson’s case. Applying the modified categorical approach, the court concluded that the jury unanimously found Jackson had committed both premeditated and felony murder and that at least premeditate murder is a crime of violence. As a result, Jackson’s conviction was still supported by a properly found crime of violence.

2255 Was Untimely Filed After Naturalized Citizen’s Guilty Plea

US v. Nunez-Garcia: Nunez-Garcia came to the United States in 1999 and, in 2009, began naturalization proceedings. Around the same time, he was also engaged in a conspiracy to distribute methamphetamine. As part of the naturalization process, he affirmed that he “had never knowingly committed a crime or offense for which he had not been arrested,” even after being arrested on state drug charges. Nunez-Garcia became a citizen and then, moths later, was indicted federally for conspiring to distribute methamphetamine.

During negotiations about a plea bargain, Nunez-Garcia asked his attorney if a guilty plea would “result in de facto deportation.” Counsel told him “don’t worry about it; you[r’e] not going to get deported because you are a citizen.” Nunez-Garcia pleaded guilty and was sentenced to 70 months in prison for what was, in immigration terms, an “aggravated felony” that would subject a noncitizen to deportation.

In 2016, Nunez-Garcia was charged federally for making false statements during his naturalization process. He was found guilty after a bench trial. Prior to sentencing, Nunez-Garcia’s new counsel told him “he would lose his citizenship and be subject to deportation.” At sentencing, counsel made that fact a part of his argument for a lower sentence. Counsel also told Nunez-Garcia that his drug conviction was an aggravated felony.  Two years after he was sentenced for that offense, deportation proceedings were begun against Nunez-Garcia. He filed a 2255, arguing that his original counsel had failed to inform him of immigration consequences of his drug conviction. The district court denied his motion, concluding that it had been untimely filed. 

The Fourth Circuit affirmed the denial of Nunez-Garcia’s 2255 motion. At issue was when Nunez-Garcia had notice that his drug conviction could potentially lead to his deportation. Nunez-Garcia argued that notice only came in 2018 when deportation proceedings began (he filed the 2255 motion later that year). The court disagreed, concluding both that Nunez-Garcia’s second lawyer told him about the impact of the drug conviction in 2016 and that, even if he didn’t specifically do so, the arguments made at sentencing (which involved his risk of deportation) put Nunez-Garcia on sufficient notice.

Vacated ACCA Sentence Not Basis for Certificate of Innocence

US v. Moon: In 2005, Moon was convicted of being a felon in possession of a firearm and sentenced to 180 months in prison under the Armed Career Criminal Act. After the Supreme Court decided Johnson, Moon sought to have his sentence vacated. The district court agreed that ACCA no longer applied and resentenced Moon to time served “plus ten days.” All told, Moon served nine years in prison. Five years later, Moon petitioned the district court for a “certificate of innocence” under 28 U.S.C. §2513(a), which would allow him to seek compensation for unjust imprisonment. The district court denied the petition. 

On appeal, the Fourth Circuit affirmed the district court’s denial of Moon’s petition. To get a certificate of innocence, a petitioner must meet three criteria, none of which Moon met. First, they must show that their conviction had been “reversed or set aside on the ground that he is not guilty of the offense of which he was convicted.” Moon admitted his conviction itself was still valid, but argued that the vacation of his ACCA designation met the requirement. The court disagreed, as it is neither a “conviction” nor an “offense.” Second, a petitioner must show that they did not commit the crime charged or that the acts did not constitute a criminal offense. Moon could meet neither requirement, as he conceded he possessed the firearm and could not show that his possession of it was legal. Finally, a petition must show that they “did not by misconduct or neglect cause or bring about his own prosecution.” Moon failed here because his “conduct was far from virtuous” and his illegal conduct of “his violation of South Carolina traffic safety law and his possession of illegal drugs” led to his firearm conviction.

Traffic Stop Wasn’t Unduly Prolonged to Allow for Dog Sniff

US v. Perez: Perez was pulled over due to issues with his registration tag (although police had information he was selling drugs, too). While investigating the state of the tag, an officer learned that Perez’s license “should not be good” and had another officer pursue why that was so. All the while, they were waiting for a drug sniffing dog to arrive. The dog arrived about 15 minutes into the stop, by which point Perez had gotten out of the car and it had been confirmed that his license was suspended due to a pair of prior DUI convictions. The dog alerted to the car and officers recovered methamphetamine and firearms. After unsuccessfully moving to suppress that evidence, Perez pleaded guilty to drug and firearm charges and was sentenced to 180 months in prison.

On appeal, the Fourth Circuit affirmed Perez’s conviction, upholding the denial of his motion to suppress. The court rejected Perez’s argument that the officers intentionally prolonged the stop to provide time for the drug dog arrive, abandoning the purpose of the initial traffic stop to pursue a criminal investigation. The court agreed with the Government that, in light of the multiple traffic issues being investigated (the tag, the status of Perez’s license) that the stop was not unreasonably lengthy. The court noted that at the time the dog arrived “not only had the officers not finished investigating the multiple infractions . . . they also hadn’t issued Perez citations for the infractions.” Also, given the nature of the infractions, Perez couldn’t drive the car away and a tow vehicle hadn’t arrived yet. “In sum,” the court concluded, “though the stop could have been shorter (and begun more efficiently), it wasn’t impermissibly prolonged.” 

Judge Motz concurred in the result, due to the fact that Perez “was not free to drive away after receiving the citations” and therefore “I cannot say that the officers prolonged the stop in violation of the Fourth Amendment.” She wrote separately “to emphasize that law enforcement officers may not deliberately draw out an investigation of a traffic stop to give a canine unit time to arrive and conduct a dog sniff.”

Denial of Compassionate Release Affirmed Where Sentence Was Partly for SR Revocation

US v. Hargrove: Hargrove was serving a 103-month sentence that was imposed in 2018 – 46 months for a substantive drug conviction and 57-months consecutive for a supervised release revocation – when he filed a compassionate release motion in July 2020. The motion was based on complications related to the COVID-19 pandemic, including that Hargrove suffered from asthma, high blood pressure, and obstructive sleep apnea, leading to the possibility of “severe complications” if he contracted COVID. He also argued that his disciplinary record and rehabilitative efforts while incarcerated supported a reduced sentence. The district court denied the motion, concluding that Hargrove’s medical conditions only “might” increase his COVID risk, which was not sufficient to establish “extraordinary and compelling reasons” for release and that the 3553(a) sentencing factors did not support release, regardless. 

The Fourth Circuit affirmed the district court’s denial on appeal. Hargrove argued that the district court abused its discretion by using a bright line rule that required the petitioner to be diagnosed with particular conditions listed by the CDC in its “highest tier” or COVID risk, regardless of “the conditions of the prison and risk of infection.” The court agreed that such a bright line rule would be inappropriate, but concluded that the district court did not apply it in this case, having concluded that Hargrove had shown a particular risk of contracting COVID at his facility, but not a “particularized susceptibility to the virus.” The court also rejected Hargrove’s argument that the district court erred by considering all the 3553(a) factors, even though his sentence was partially a supervised release revocation sentence, to which only some of those factors apply. The court concluded that when considering whether to reduce a sentence, rather than impose one, different factors applied. The court also concluded that the district court sufficiently considered Hargrove’s rehabilitative efforts.

Plain Error Review of Constructive Amendment Must Meet Fourth Olano Prong

US v. Banks: Banks was charged with possession with intent to distribute 50 or more grams of methamphetamine and using or carrying a firearm during that offense. However, when instructing the jury, the district court explained it could convict Banks on the drug count if he either possessed the drugs with intent to distribute them or actually distributed them. The verdict form, however, only mentioned possession with intent. Banks was convicted on both charges and sentenced him to 240 months in prison. 

On appeal, the Fourth Circuit affirmed Banks’ convictions. Banks’ main argument was that the district court’s instruction to the jury had constructively amended the charge against him, broadening the bases on which the jury could convict him. Conceding that review was for plain error, Banks argued that under the Fourth Circuit’s 1994 decision in Floresca such an error required vacation of his conviction regardless of the standard of review. The Government countered that Floresca was no longer good law in light of more recent Supreme Court decisions involving application of the Olano plain-error factors. The court agreed with the Government, concluding that although a constructive amendment was error, plain, and prejudicial, Banks still had to overcome the fourth prong, proving that not vacating his conviction would “affect the fairness, integrity, and public reputation of federal judicial proceedings.” He could not do so here, as “there was overwhelming and generally uncontroverted evidence that Banks possessed with intent to distribute over 50 grams of methamphetamine.”

Maryland Assault to Avoid Apprehension Conviction Not ACCA Predicate

US v. Proctor: In 2004, Proctor was convicted of possession with intent to distribute crack cocaine and being a felon in possession of a firearm. On the firearm charge he was sentenced under the Armed Career Criminal Act, partly due to a prior Maryland conviction for assault with intent to prevent lawful apprehension, which was deemed a “violent felony.” He was sentenced to concurrent sentences of 292 months in prison, reduced to 240 months in 2020 under the First Step Act. In the interim, Proctor filed a 2255 motion arguing that his Maryland conviction was no longer a violent felony because assault can be committed with “no more than de minimis touching of someone in order to prevent arrest.” The district court denied the motion, holding that actual prosecutions in Maryland “consistently involved the exercise of more than de minimis force” and that state courts had identified the offense as a “crime of violence.” 

On appeal, the Fourth Circuit reversed the district court’s denial of Proctor’s 2255 motion. The court agreed with Proctor that the least serious conduct that violated the statute involved simple battery, which the Fourth Circuit had “repeatedly held . . . in Maryland is not a violent felony.” The court rejected the Government’s argument that the state legislature did not intend to incorporate the common-law meaning of assault into the statute, noting it failed to point to any case giving assault or battery such an “elevated meaning.” In addition, state courts had held that “assault” in this context incorporated the common-law definition. Nor does the presence of an additional element – that the assault be committed with the intent to prevent lawful detention – change the ultimate conclusion. Finally, the court identified Maryland court decisions stating that Proctor’s offense could be committed with slight physical contact.

South Carolina Possession-With-Intent Convictions Not ACCA Predicates

US v. Hope: Hope pleaded guilty to being a felon in possession of a firearm. At sentencing, he faced enhanced penalties under the Armed Career Criminal Act due to three prior South Carolina convictions for possession of marijuana with intent to distribute in proximity of a school. Hope objected to their treatment as ACCA predicates. The district court overruled those objections and sentenced him to 180 months in prison, the minimum required by ACCA.

On appeal, a divided Fourth Circuit vacated Hope’s sentence. Part of the issue was the proper standard of review to apply. The Government argued that while Hope had objected to his ACCA status at sentencing, he did not specifically object on the grounds on which he now appealed and that review was for plain error. The court disagreed, concluding that Hope had raised the same argument below as before the Fourth Circuit, while noting that “counsel could have provided a better analysis to guide the district court.” Reviewing de novo, therefore, the court concluded that Hope’s prior South Carolina convictions were not “serious drug offenses” under ACCA because at the time of those convictions “marijuana” was defined by the state to include “all species or variety of the marijuana plant,” but since 2018 Congress has defined marijuana federally as excluding “plants or its parts with less than 0.3 percent THC as marijuana.” As such, because the South Carolina statute is indivisible as to drug type (although not as to conduct, as the Fourth Circuit previously held) and defined marijuana more broadly than federal law a violation of it could not be an ACCA predicate. Ultimately, the court concluded that even if plain error applied, the result would be the same – Hope’s sentence would be vacated. 

Judge Thacker dissented, arguing that plain error review applied and that while the ACCA designation was erroneous, it was not plain. Hope had argued in the district court that he had “pled to a duplicitous indictment in state court” that had “charged him with multiple offenses in a single count,” not that the prior convictions weren’t ACCA predicates. As a result, Hope “raises an entirely new claim in this appeal.” On the merits, Judge Thacker argued that the statute was divisible as to drug type, but that the result was the same – Hope’s prior convictions were not ACCA predicates. However, the error was not plain, as up until this case the Fourth Circuit had not decided whether the federal statute to be compared with the state statute was the one in effect at the time the prior convictions occurred or the time of the federal sentencing. As the “law on these key issues in this case was thus far from settled” at the time of sentencing, “it cannot be said that the district court plainly erred.”

Congrats to the Defender office in Maryland on the win!

Hobbs Act Robbery Conviction Based on Pinkerton Liability Still Crime of Violence

US v. Gillespie: Gillespie and others conceived a plan to rob drug dealers. During one robbery, a victim was “struck with the butt of a pistol,” but could not identify the assailant. Other trial testimony was clear that some of the robbers had firearms, but was split on whether Gillespie himself possessed one. Gillespie went to trial on charges of Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, and using a firearm in connection with a crime of violence under 18 U.S.C. §924(c). The Government’s position was that either Gillespie actually possessed a firearm or, under Pinkerton liability, he was vicariously liable for the possession/use of a firearm by one of his coconspirators. The jury convicted Gillespie on all counts, with the jury rejecting the actual possession theory and convicting on the §924(c) charge on Pinkerton liability.

After trial, Gillespie moved for an acquittal on the §924(c) charge, arguing that the jury had been improperly instructed that conspiracy to commit Hobbs Act robbery was a crime of violence. The district court denied the motion. While it recognized that the jury instruction on conspiracy was incorrect, it held that Gillespie could not demonstrate the prejudice required by plain error review because the firearm conviction “rested explicitly on the Pinkerton theory.” Gillespie was then sentenced to 265 motions in prison, as compared to sentences of 235, 192, 110, and 70 months for the other members of the conspiracy (most of whom had pleaded guilty). 

On appeal, the Fourth Circuit affirmed Gillespie’s convictions and sentence. The court concluded that “Gillespie’s argument confuses Hobbs Act conspiracy as a standalone §924(c) . . . and vicarious liability for a co-conspirator’s act of carrying a gun during a crime of violence under Pinkerton – which remains a valid theory of §924(c) liability.” The former was the result of Supreme Court decisions regarding the definition of “crime of violence” and vagueness issues, which were not present for the later. Pinkerton liability, the court explained, is “merely another form of vicarious liability, akin to aiding and abetting” and “has never depended on the categorization of Hobbs Act conspiracy as a crime of violence.” The special verdict form, the court noted, “made clear that the conviction was based on Pinkerton liability, not Hobbs Act conspiracy as a stand-alone predicate offense” and the jury was not instructed that Hobbs Act conspiracy was relevant to the Pinkerton liability argument. In addition, the court rejected Gillespie’s challenge to his sentence, based on its disparity with those imposed on his codefendants, as “individuals who opt to go to trial are not similarly situated to those who plead guilty and cooperate with the government.”