Inventory Search of Apparently Abandoned Van Justified as Community Caretaking

US v. Treisman: Police were called to a bank in North Carolina where a van had been left overnight. Through the passenger window, an officer saw multiple firearms, ammunition, a container for Tennerite (“a legal target shooting product that can also be used to make explosives”), along with pills and a suitcase. One firearm was an assault rifle with an extended magazine. Some officers expressed concern over the contents of the van, while one suggested there might be someone inside in need of aid. Officers opened the slightly ajar rear door and did not find anyone inside, but found more guns. After the van had been towed away, Treisman arrived asking about it. He was detained and officers obtained a warrant to search Tresiman’s phone, which led to the discovery of child pornography. Treisman eventually pleaded guilty to charges related to those images as part of a plea agreement that allowed him to appeal the denial of his motion to suppress.

On appeal, the Fourth Circuit affirmed the denial of Treisman’s motion to suppress. The court concluded that the initial entry of the van was reasonable under the community caretaking doctrine, in that the district court had not clearly erred by concluding that the officers were motivated primarily by safety concerns. Similarly, those concerns extended to the inventory search and seizure of the van, which was conducted pursuant to department polices (essentially). In addition, once “the cumulative effect of the contents of the van caused officers to suspect potential criminal activity . . . they initiated the criminal search warrant process.”

Partly Corroborated Tip, Prior History, Among Factors to Support Stop

US v. Howell: Police in Virginia got a tip from a previously reliable informant about a meeting between drug dealers that was to happen at a local hotel, which officers knew had a history of being used for drug dealing. When, after a few hours of surveillance, the target of the tip did not appear, they checked the guest register and found Howell was registered there. Officers knew that Howell had been previously part of drug trafficking investigations and had a prior drug conviction. They returned to surveillance and eventually a vehicle showed up that partially matched the tip, driven by Howell (who was not the target given by the tipster). After a brief trip inside the hotel and back out, Howell drove away and was shortly stopped. A drug dog alerted on and in the vehicle and officers recovered drugs. Howell was eventually convicted at trial of conspiracy to distribute drugs, distribution, and conspiracy to launder money, after the district court denied his motion to suppress the fruits of the stop and search of his vehicle.

On appeal, the Fourth Circuit affirmed Howell’s conviction and the denial of his motion to suppress. The court held that that totality of the circumstances present when the stop was made provided reasonable suspicion that criminal activity was afoot, even if some of the factors individually (Howell’s prior history, the hotel’s status, etc.) would not have created reasonable suspicion on their own. One of those factors was “Howell’s conduct in driving his vehicle” – that is, that he was “driving under the speed limit and giving unusually early turn signals.”

Appeal Waiver Covers Jurisdictional Element of Offense

US v. Moran: Moran worked in Okinawa as a janitor in a local church, a position obtained via the “Veteran’s Affairs Transition Assistance Program” at a local airbase, where his wife worked. While there, he groomed and sexually abused a 14-year-old girl. When the Air Force began investigating, “Moran fled back to the United State,” but he was charged anyway under the Military Extraterritorial Jurisdiction Act, which allows the prosecution in the United States of conduct outside the US where the defendant was “employed by or accompanying the Armed Forces outside the United States.” The Government’s position was that the Act applied to Moran either due to his own employment or his wife’s. Moran eventually entered into a plea agreement in which he agreed to waive his right to appeal anything other than ineffective assistance of counsel or prosecutorial misconduct. He was convicted on two counts and sentenced to 420 months in prison.

The Fourth Circuit dismissed Moran’s appeal, on the Government’s motion. Moran sought to challenge whether there was a sufficient factual basis for him to be prosecuted under the Act. He argued that this escaped the scope of the appeal waiver, as it was a question of jurisdiction which can never be waived. The court, however, distinguished between subject-matter jurisdiction, “the court’s authority to hear a given type of case,” and jurisdictional elements, which go to “the power of Congress to regulate the conduct at issue, not the jurisdiction of the court to hear a particular case.” Whether the facts of a case satisfied the required jurisdictional element was therefore not the kind of jurisdictional issue that escaped the appeal waiver’s scope.

No Ruan Error Where Indictment Charged Needed Mens Rea

US v. Kim: Kim was a doctor who wound up running a clinic that “operated as a classic pill mill.” After a confidential informant posing as a patient made several controlled purchases of pain pills (and marijuana) from Kim and his business partner, Kim was charged with conspiracy and multiple substantive counts of distribution of a controlled substance. He eventually agreed to conspiracy and eight substantive counts. Kim balked during an initial plea hearing, but at a second he agreed to plead guilty after the district court told him “you can’t take it back. You’re bound by it.” He was sentenced to 78 months in prison.

On appeal, the Fourth Circuit affirmed Kim’s conviction. Kim’s primary argument was that his guilty plea was invalid under the Supreme Court’s decision in Ruan, which held that the Government must prove that the defendant doctor acted knowingly or intentionally with regard to their authorization (or lack thereof) to distribute drugs. After noting that the district court at a plea hearing is not required to tick through ever element of an offense, the court held that in Kim’s case there was no Ruan error because the indictment to which Kim pleaded guilty included the required element, even though Fourth Circuit law at the time did not require it. Even if there was error, Kim could not show the prejudice required to prevail on plain error review because he could not show that, but for the error he would have insisted on going to trial.

No Prosecutorial Vindictiveness for Superseding Indictment With More Serious Offense Filed After Defense Suppression Win

US v. Villa: Villa was suspected of dealing drugs and, after a period of surveillance, was pulled over by police. Searches of his car and home uncovered evidence of drug trafficking. Villa volunteered that he was not a US citizen, explaining that he had been in the country since he was 17. After arrest on state charges, Villa was initially charged via a complaint with possession of a firearm as an illegal alien and illegal reentry. A pretrial services report showed a prior administrative illegal reentry charge (although no resolution) and prior drug convictions. Villa was then indicted, but only on the firearm charge. He filed a motion to suppress which lingered for months until Villa asserted his speedy trial rights. The magistrate judge recommended partially granting Villa’s motion and the district court adopted that recommendation.

While objections to the magistrate’s recommendation were pending, the Government enlisted the Department of Homeland Security to obtain additional evidence as to Villa’s immigration status. At that point, evidence showed that Villa had been previously removed from the United states. The Government obtained a separate indictment charging Villa with illegal reentry following an aggravated felony – 14 months after his arrest, but only days after obtaining the new information – and then dismissed the firearm charge. The new charge carried a statutory maximum twice as long as the firearm charge. The district court denied Villa’s motion to dismiss on prosecutorial vindictiveness grounds and as violation of his speedy trial rights and convicted Villa at a bench trial, sentencing him to 42 months in prison.

On appeal, the Fourth Circuit affirmed Villa’s conviction. As to vindictiveness, the court rejected Villa’s argument to apply a presumption of vindictiveness “in all cases where a defendant receives a favorable suppression ruling and the prosecutor obtains a new or superseding indictment resulting in greater sentencing exposure,” concluding that “these circumstances do not pose a realistic likelihood of vindictiveness.” That is because when the Government obtained evidence to support a new charge, it obtained a new indictment without delay. In addition, this was not a case where the new charge was rooted in the same conduct as the charge to which the suppression motion applied. As to Villa’s right to a speedy trial, the court first determined that the proper starting point for the Speedy Trial Act was when the new indictment was obtained, as it did not relate back to his initial arrest. That made his trial timely under the Act, as well as the Sixth Amendment.

Appeal Dismissed Where Plea Agreement Reserved Right to Raise Argument in District Court, Not Fourth Circuit

US v. Sturtz: Sturtz was charged with possession and distribution of child pornography and entered into a plea agreement with the Government to plead guilty to the possession count, while the distribution count was dismissed. The parties disagreed about whether a prior conviction from Maryland triggered the 10-year mandatory minimum for possession and, thus, the plea agreement explicitly reserved Sturtz’s ability to argue the point at sentencing. The plea agreement also included a waiver of appellate rights in which Sturtz agreed not to appeal any sentence below an offense level 30. That offense level, which was calculated in the PSR, produced an advisory Guideline range of 108 to 135 months, pending the resolution of the prior conviction issue. The district court concluded the prior conviction triggered the mandatory minimum and imposed a sentence of 120 months in prison.

The Fourth Circuit dismissed Sturtz’s appeal, rejecting his challenge to the district court’s ruling. The court found the waiver language “unambiguous” and applied, given the sentence Sturtz ultimately received. It rejected his argument that the waiver did not apply because the advisory Guideline range without the prior conviction enhancement was below 120 months “his sentence can be reviewed on appeal based on the exception allowing him to appeal a sentence that exceeds any sentence within the advisory guideline range.” The court also rejected the argument that the waiver only applied to a correctly calculated Guideline range.