COVID-required Courtroom Limitation and Testimony of Witnesses by Video Deposition Did Not Violate Constitution

US v. Smith: Smith and his codefendant, Alcorn, were charged with multiple counts relating to schemes to defraud in 2019. Their cases lingered during the lockdown period of the COVID lockdown, finally proceeding to trial in November 2021. That trial took place across multiple courtrooms, due to social distancing requirements, with spectators relegated to a second courtroom to watch via a video feed. Smith and Alcorn objected, arguing that because the public could not see the jury (although they could see the other participants in the trial) violated their right to a public trial under the Sixth Amendment. They also objected, initially to the taking of video depositions of three elderly victim witnesses from California (during which counsel was able to cross-examine them) who could not travel to Virginia for the trial, then to the admission of those depositions at trial. The district court rejected those arguments. Smith and Alcorn were convicted on all counts and sentenced to 156 and 185 months in prison, respectively.

A divided Fourth Circuit affirmed Smith and Alcorn’s convictions, but vacated Alcorn’s sentence. As to the convictions, the court first rejected the argument that Smith and Alcorn’s Sixth Amendment rights were violated. While not specifically holding, but certainly implying, that the COVID protocols did not result in a courtroom that was closed to the public, the court ultimately concluded that, even if it was a partial closure, that the district court did not abuse its discretion. In doing so, the court downplayed the importance of spectators being able to see jurors when they could see all the other participants in the trial. The court also found no abuse of discretion in the district court’s ruling regarding the video depositions, given the health care concerns of the witnesses. As to Alcorn’s sentence, the court concluded that the district court committed Rogers err by imposing terms of supervised release pursuant to a standing order that did not exist in that district.

Judge Agee concurred in the result, but wrote separately to reiterate his argument that the current remedy for a Rogers error (full resentencing) is not required and should be reconsidered.

Judge Heytens dissented, arguing that the district court did not make sufficient findings necessary to partially close the courtroom during trial, specifically whether there were “reasonable alternatives” and whether the restrictions were “no broader than necessary” to serve the stated public health purposes.

Court May Rely on Proffer from Government When Making Bond Determination

US v. Vane: Vane was kicked out of a “pro-gun prepper militia based in Eastern Virginia” when other members, concerned by questions about building explosives, concluded he was a law enforcement plant. He wasn’t. The militia provided information to law enforcement that resulted in a search warrant being executed at Vane’s home. As a result, he was charged by complaint with attempted production of a biological agent or toxin (ricin). After a preliminary hearing, at which an agent testified and was cross examined, the court moved on to the question of detention. Over Vane’s objection, the Government proffered additional information, upon which the district court (partly) relied in deciding to order Vane detained pending trial.

On appeal, the Fourth Circuit affirmed the decision to deny Vane release on bail. Vane’s only argument was that the district court had erred by allowing the Government to proffer at the detention hearing, arguing that the statute only provided the defendant with the ability to proffer in such circumstances. The court disagreed, concluding that the context needed to support Vane’s negative inference (that the Bail Reform Act specifically allows defendants to proffer, while remaining silent on what the Government may or may not do) was not evident in the rest of the Act. In reaching that question, the court first denied Vane’s motion to dismiss the appeal, concluding that it was not moot because the court had already issued an order denying relief (in advance of the opinion) prior to Vane having pleaded guilty below.

No Error in Not Giving Entrapment Instruction, But Court Chastises Police for Conduct; Sua Sponte Procedural Reasonableness Review Leads to Vacation of Sentence

US v. Elboghdady: One evening in February 2020 West Virginia State Trooper, posing undercover online as a single mother of two daughters (11 and 13 years old), posted an ad online “in town for the weekend looking for fun for the family” with “little cubs” who “love to play.” The intent was to “attract child predators that wanted to interact sexually with young children” without being too obvious. Elboghdady, an Egyptian native with a limited facility with English, responded. Over the next day, they conversed and, eventually, Elboghdady agreed to come to Huntington, West Virginia, to meet the undercover and the children. In the process, he repeated expressed his interest in the undercover (who explained that she was gay), while also appearing to be interested in the daughters, albeit in language that was not particularly clear. Upon arrival in Huntington and a meeting with the undercover, Elboghdady was arrested and charged with crossing state lines with the intent to engage in criminal sexual activity.

At trial, Elboghdady proposed a jury instruction on entrapment. The district court rejected that request, agreeing with the Government that there was no evidence of Government inducement. Elboghdady was convicted at trial. At sentencing, the district court imposed an 8-level enhancement because the offense involved a minor who was under 12 years of age (as the PSR recommended – Elboghdady did not object), concluding that the enhancement applied even though the evidence was not strong “as to the 11-year-old’s being a target of the defendant’s travel.”

On appeal, a divided Fourth Circuit affirmed Elboghdady’s conviction, but vacated his sentence. As to his conviction, the court agreed, if reluctantly, that the district court had correctly refused to given an entrapment instruction. Here there was no Government overreach and the fact that Elboghdady was repeatedly offered access to the daughters was not enough. Nor was his “sustained interest in the fictitious mother” a contributing factor. Regardless, the court stated that “although our precedent compels affirmance, we feel impelled to speak to the nature of the evidence before the court,” noting that a “plain reading” of the interactions with the undercover officer “exposes his confusion.”  While there was no overreach the undercover officer’s “pursuit to make sure ‘somebody is not out there preying on children when [she] possibly could have done something about it’ should not make not make clear evidence of someone’s confusion obsolete.” Furthermore, the “entrapment standard does not act as a free pass for the government to ignore the context of the interactions they engage in during undercover operations.”

As to Elboghdady’s sentence, however, the court found it was procedurally unreasonable, even though Elboghdady had only challenged its substantive reasonableness. Relying on the Supreme Court’s language in Gall that courts of appeals must “first ensure” there was no procedural error at sentencing, the court reviewed the district court’s application of the 8-level enhancement and found that it was erroneous, concluding that the district court’s findings did not show, by a preponderance of the evidence, that Elboghdady had travelled with intent to engage in a sex act with a minor under 12 years of age. As a result, the court vacated Elboghdady’s sentence without addressing whether the ultimate 120-month sentence imposed (a downward variance) was substantively unreasonable.

Judge Quattlebaum, while concurring with regard to the entrapment instruction (although he did respond to the comments about the conduct in this case), dissented on the court’s resolution of the sentencing issue, primarily for vacating the sentence on the basis of an issue not raised by Elboghdady either in the appeal or in the district court. He argued that Gall merely held that, where procedural issues are raised, they should be addressed before substantive issues, not that the court “must conduct an Anders-like review for procedural issues, whether raised or abandoned.” He also argued that, in doing so, the court erred by not applying a plain error standard of review.

No Error In Discharge of Counsel, Limitation on His Cross Examination by Codefendant

US v. Freitekh: Izzat Freitekh ran a restaurant and related businesses with the help of his family, including son Tarik. In 2020, Izzat obtained PPP loans that were used to (among other things) pay family members, with notes that such payments were for “payroll” or “paycheck,” even though none were listed in business records as being on the payroll. Later investigation showed that “all of the Loan Applications were fraudulent.” As part of the investigation, Izzat met with officials and blamed a third party, Kyber Capital, with filing the false applications, but “under scrutiny” the “story fell apart,” as Kyber Capital appeared to be a fictional creation of Tarik. As part of the investigation, Tarik’s attorney gave investigators evidence of chat logs between Tarik and an “alleged representative of Kyber.”

Izzat and Tarik were each charged with multiple counts of money laundering and conspiracy, with Tarik also charged with making false statements. Proceeding to trial, the Government sought stipulations from Izzat and Tarik with regard to documents turned over by their attorneys. They declined, leading the Government to effectively disqualify counsel as they were the only witness who could authenticate the documents. The district court agreed and delayed trial so Izzat and Tarik could obtain new counsel. At trial, both counsel testified, although questioning (both direct and cross examination) was limited by the court. Izzat and Tarik were both convicted on multiple counts and sentenced to 48 and 87 months in prison, respectively.

On appeal, the Fourth Circuit affirmed Izzat’s and Tarik’s convictions and sentences. Of the several issues raised on appeal, the primary one involved the discharge and questioning of Izzat’s and Tarik’s prior counsel. Tarik argued that he had been denied his Sixth Amendment right to counsel of choice when his original attorney was disqualified from the case, as his eventual testimony was “unwarranted and unnecessary.” The court disagreed, holding that the district court’s actions were “well within the district court’s broad discretion,” and that Tarik’s lawyer was “the only available witness who could lay the foundation of the documents” related to his false statements, thus creating a conflict of interest. Disqualification did not run afoul of the Sixth Amendment, the “essential aim” or which “is to guarantee an effective advocate . . . rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Izzat argued that his Sixth Amendment confrontation right was infringed by the district court’s limited cross examination of Tarik’s lawyer due to privilege concerns. Here the court also found no abuse of discretion, as the testimony of Tarik’s lawyer was not related to Izzat’s charges, only Tarik’s, and, even if there had been some abuse of discretion, any error was harmless. Finally, the court found no abuse of discretion in the district court allowing Izzat’s attorney to testify about how Izzat had provided him documents allegedly from Kyber Capital with instructions to turn them over to investigators, concluding that they were both relevant and not unduly prejudicial.