Supervised Release Condition Didn’t Improperly Delegate Authority to Probation Officer

US v. Jones: Jones pleaded guilty to production of child pornography and was sentenced to 256 months in prison, followed by a lifetime term of supervised release. A mandatory term of his supervised release mandated that he not use controlled substances and submit to periodic drug tests “as determined by the court.” A second, special condition, further required that Jones “contribute to the cost of such program not to exceed the amount determined by the court approved “US Probation Office’s Sliding Scale for Services.”

On appeal, Jones argued that the second condition improperly delegated authority to the probation officer to determine the regularity of his drug tests. However, the parties agreed at oral argument that all the second condition did was establish Jones’ requirement for paying for the drug testing regime set forth in the mandatory condition and “as determined by the court.” As a result, there was no error (much less plain error) and the Fourth Circuit affirmed Jones’ sentence.

Faulty Rule 11 Colloquy Didn’t Rise to Level of Plain Error

US v. Smith: Smith bought 59 firearms over a 16-month period using two false addresses as his residence (one address didn’t actually exist) on the required ATF forms, leading to a 24-count indictment for lying to a federal firearms licensee. Smith agreed to plead guilty to one count the day prior to trial and, as part of the plea, agreed to waive his right to appeal his sentence.

After a Rule 11 colloquy that “fell short” in some aspects and at which Smith’s plea was accepted, he fired his attorney “for ineffective assistance” (counsel had been “recommended for disbarment” a week prior to the hearing – he had “since been disbarred and twice suspended”). Armed with a new, appointed, counsel, Smith moved to withdraw his plea. That request was denied and Smith was sentenced to 14 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Smith’s motion to withdraw his guilty plea. Noting the problems at the Rule 11 hearing – the district court did not discuss its ability to impose a non-Guideline sentence, did not address the appeal waiver, and, in fact, didn’t go over any of the plea agreement at all – the court observed that “it is not too much to ask that district courts conduct their plea colloquies with precision.” Nonetheless, the lack of “precision” in this case only resulted in an error that was harmless, as the record did not show that but for the errors Smith would have not pleaded guilty. This is partly because while, in his motion to withdraw, Smith challenged the effectiveness of counsel he did not challenge the adequacy of the Rule 11 colloquy itself.

Errors in In-Court Translation Didn’t Render Trial Fundamentally Unfair

US v. Sandoval: Sandoval and his two codefendants were members of MS-13 charged with attempting to murder two people (along with related drug and racketeering activities). At trial, a cadre of translators operated so that the defendants and jury could understand proceedings (some of the witnesses were not English speakers). At one point, the district court received a note from a juror stating they were “completely fluent in Spanish and the translation was really poor today.” The district court made additional inquiries, but eventually denied the defendants’ motion for a mistrial due to translation errors.

On appeal, the Fourth Circuit affirmed the defendants convictions. Noting that the “basic constitutional inquiry” when it comes to problems with interpretation is “whether any inadequacy . . . made the trial fundamentally unfair,” the court concluded that the issues where did not. The court first held that issues here were not “structural” in that they did not “infect the entire trial process,” only portions of testimony on one day. The same lack of broad-scale error led to a conclusion that the trial was not fundamentally unfair, with the court concluding that the issue upon which there was some confusion was not “material to the jury’s guilty verdict on any count.” At bottom, there was no abuse of discretion in denying the request for a mistrial. The court also held that post-trial disclosure of a Government’s witness being investigated for malfeasance did not require a new trial, as the malfeasance involved was not the kind that called the witness’ credibility into question (and his testimony was broad testimony about the workings of MS-13, not the facts of the particular case).

No Error in Prohibiting Defendant from Presenting Evidence of Mental Condition in Hate Crimes Case

US v. Hudak: Hudak was charged with two counts of intimidation based no race or ethnic status for incidents in which he punched and kicked a neighbor (who was of Mexican descent) and a road rage incident in which he punched another the window of another driver (who was black) “four or five times” before following him to his apartment. In both incidents, Hudak let loose a stream of racist and ethic invective. At trial, Hudak’s defense was that he had not engaged in the incidents “because of the victim’s race, color, or national origin” and sought to admit expert testimony that he suffered from “serious mental health issues” that led to him being “enraged.” The district court did not allow the evidence to be admitted. The district court allow evidence to be admitted about Hudak’s collection of Nazi and other memorabilia in response to statements he made during his testimony. Hudak was convicted on both counts and sentenced to 41 months in prison.

 On appeal, the Fourth Circuit affirmed Hudak’s conviction. As to the mental health testimony, the court first noted that the report presented to support the testimony related to Hudak’s competency to stand trial, not his mental state at the time of the incidents. Regardless, the proffered evidence “was not particular relevant to the factual question facing the jury.” As to the Nazi memorabilia, the court noted that the district court had excluded such evidence prior to trial, but during his testimony Hudak mentioned the collection and that he acquired it “because of the history of war . . . not any racisms, not any hate.” That opened the door for the Government to provide details of the collection.

Court Affirms Abuse-of-Trust Enhancement Where Defendant Lied About Qualifications to Victims

US v. Brewer: Brewer pleaded guilty to wire fraud for his part in a scheme in which he defrauded victims by promising to invest funds given by them (only to spend the money for himself). He did this by falsely representing himself as “a wealth and experienced investor” and promising guaranteed returns. He created fictional documents to further the scheme, provided fictitious updates on the investments’ progress, and stalled when victims attempted to access their returns. At sentencing he admitted that he “took people’s trust” and “let them down.” The district court imposed a top-of-the-Guidelines 33-month sentence after imposing a two-level enhancement for abuse of a position of trust.

On appeal, the Fourth Circuit affirmed Brewer’s sentence. Applying clear error review (rejecting Brewer’s argument for de novo review) and stressing the individualized nature of the issue, the court concluded that the district court did not err in imposing the abuse-of-trust enhancement. Evidence showed that Brewer held himself out as an expert investor who had significant discretion in how to invest funds. It didn’t matter that he was not actually in a position of trust, so long as victims perceived him to be. The court also rejected Brewer’s Campbell-based argument that the abuse-of-trust Guideline itself was vague as to whether it applied to defendants falsely claiming to hold positions of trust.

Second Amendment Doesn’t Allow for Possession of Firearm While Under Indictment

US v. Jackson: In 2020, Jackson was charged in Arizona with (essentially) unlawful possession of a short-barreled rifle. After an initial charge he “lawfully acquired” a handgun, after which he was indicted on the state firearm charge. While that charge was pending Jackson was arrested in Maryland for carrying the handgun without a permit. He was then charged in federal court with possession of a firearm while “under indictment” for a felony. Jackson unsuccessfully moved to dismiss the charge, arguing that it violated the Second Amendment, and was sentenced to time served.

On appeal, the Fourth Circuit affirmed Jackson’s conviction. Applying Bruen, the court rejected the Government’s argument that Jackson could not pass step one of that analysis, concluding that while “historical limitations on firearms rights matter . . . they just matter at Bruen step two.” So, although Jackson’s possession of the handgun fell generally under the scope of the Second Amendment, that history still required a conclusion that the regulation was valid. In reaching that conclusion, the court relied on the history of surety laws (as the Supreme Court relied upon in Rahimi) and “circuit precedent . . . that legislatures can rely on categorical judgments (and past conduct) to disarm those who might be expected to misuse guns.”