No Sixth Amendment Speedy Trial Violation in Delay Between Defendant’s Travel to Pakistan and Prosecution on Terrorism Charges

US v. Chaudhry: In 2009, Chaudhry (a native of Pakistan who came to the United States as a child) and four others intended to go to Afghanistan to fight against US and allied forces. Before leaving, they created a “final message” video laying out their reason for waging jihad in this way. They left for Pakistan (from which they would cross into Afghanistan) where they were arrested. Questioned by the FBI two days later, Chaudhry adopted everything said in the video and explained that they “came for the sake of Islam to work with the Muslims.” A complaint was filed in the Eastern District of Virginia charging Chaudhry with providing material support to terrorists, but he was also charged, convicted, and sentenced in Pakistan. Charges in the US lingered until that sentence was completed. Chaudhry was extradited December 2023 and arraigned on an indictment a week later. After Chaudhry unsuccessfully sought to dismiss the indictment as untimely, he pleaded guilty and was sentenced to time served, to be followed by 20 years of supervised release.

On appeal, the Fourth Circuit affirmed Chaudhry’s conviction. Noting that his speedy trial challenge was made under the Sixth Amendment, not the Speedy Trial Act, the court concluded that the relevant factors did not fall in his favor. While the delay in him facing charges in the US did work in Chaudhry’s favor, the other factors did not. Particularly, the Government had made conscientious attempts to bring Chaudhry back to the US for years and Chaudhry did not assert any kind of speedy trial right until months after he was returned to the US.

Police Lacked Reasonable Suspicion to Extend Traffic Stop Based on Observations of Conversations With Others

US v. Hawkins: Police were surveilling a car in a high crime area. They knew the driver, Jonhson, was on supervised release following a drug conviction, but knew nothing about the passenger, Williams. Police followed the car to an apartment complex (know from prior drug investigations) where another man, Byrd (also known from prior drug investigations) approached the car, reached inside, and talked with the occupants. After Byrd walked away, Hawkins approached and got in the back seat.

Police initiated a traffic stop after the car drove away. The officer got slightly different answers about who Byrd was (Williams said he was asking for a cigarette, Johnson said they talked about a job) and summoned a K9 unit. The drug dog alerted and, while the officers did not find any drugs, they did find a firearm in Hawkins’ waistband pursuant to a patdown. Hawkins was charged with possession of a firearm after sustained a conviction for a misdemeanor crime of violence and unsuccessfully sought to suppress the firearm.

On appeal, the Fourth Circuit reversed the district court’s denial of Hawkins’ motion to suppress, concluding that the officer lacked reasonable suspicion to extend the traffic stop. It rejected the Government’s reliance on four factors – the “locations involved,” Johnson’s prior drug conviction, the interaction with Byrd, and the differing stories about Byrd. The court found that none of them, separately or taken together, created reasonable suspicion. The court rejected the Government’s position that the officer’s had witnessed a drug deal between Byrd and the others in the car, noting that they officers did not see anything exchanged between them or Byrd walking away with anything. The court also found that the stories about Byrd’s interaction were not so different as to be suspicious.

Congrats to the Defender office in NDWV on the win! 

Affirming Denial of Compassionate Release Based on Disparity Between Sentence and What Would Be Imposed Today

US v. Washington: In 2020, Washington was convicted on two drugs charges and sentenced as a career offender, ultimately receiving a downward variance sentence of 96 months in prison. In 2022, he filed a motion for compassionate release arguing that, if sentenced then, he would no longer be a career offender and would face a Guideline range of only 24 to 30 months in prison. the district court agreed that was a “compelling and extraordinary” basis for a reduced sentence, but ultimately denied Washington’s request after reviewing the §3553(a) factors.

A divided Fourth Circuit affirmed the denial of Washington’s compassionate release motion. The court rejected Washington’s arguments that the district court did not adequately consider the sentencing disparity and focused unduly on his criminal history (while also being “too dismissive of his rehabilitative efforts”). In doing so, the court noted that the district court in these cases is not required to engage with the defendant’s arguments with the same detail as in an original sentencing. Ultimately, the record showed that the district court “engaged with Washington’s arguments, articulated what factors it found important or unimportant to its decision, and stated the grounds for denying the requested relief.” That was enough.

Judge Berner dissented, arguing that once a district court finds extraordinary and compelling reasons exist to support a reduction it must “then assess the impact of that finding in relation to the relevant” §3553(a) factors.

Rejecting First Amendment Facial Challenge to Statute Criminalizing Teaching How to Make Explosives While Knowing Person Intends to Commit Crime of Violence

US v. Arthur: Arthur ran a business in which he trained “the average person to defend themselves” against “a tyrannical government,” producing literature noting that some of the tactics he taught “are wartime tactics” and “may be highly illegal.” In 2020, one of Arthur’s customers had “a fatal incident,” leading the FBI to send an undercover customer to Arthur. The undercover, who told Arthur that “the ATF’s been to my house” are “probably coming back” and “I want to be ready,” got in-person training from Arthur on “how to fortify his residence.” This included using attack dogs and an electrified fence to create a “fatal funnel” for approaching agents, at whom the undercover could “start lobbing . . . grenades on them with his freaking shotgun.” Arthur also said it “wouldn’t be a bad idea” to put explosive devices “right up around the doors,” noting that he kept one on his front porch.

Arthur was arrested and charged with multiple offenses, including under 18 U.S.C. §842(p)(2)(B), which prohibits a person from “teaching or demonstrating to any person” how to make or use explosives “knowing that such person intends to use” that information for, or in furtherance of, a crime of violence. He moved to dismiss that count as being facially overbroad under the First Amendment. The district court denied the motion and Arthur was convicted at trial on all counts. He was sentenced to 300 months in prison, based partly on the application of a terrorism enhancement under the Guidelines (although well below what the Guidelines recommended).

A divided Fourth Circuit affirmed Arthur’s convictions and sentence. Noting that Arthur’s challenge was a facial one, the court noted that the issue was whether §842(p)(2)(B) covered a substantial amount of protected speech. The court, however, concluded that it “is not at all clear” that it prohibits any protected speech. That is because the speech involved falls into the category of speech integral to criminal conduct which is not covered by the First Amendment. In particular, the court pointed to the statute’s requirement that any violation involve knowing that the recipient of the information is going to use it in relation to a crime of violence. Thus, the speech covered by the statute is a “far cry” from the kind of abstract advocacy of violence that is protected by the Fourth Amendment. The court also concluded that the terrorism enhancement applied as the undercover agent’s purported crime was one of terrorism and Arthur’s conduct involved, or was intended to promote, it.

Judge Gregory dissented, noting “concerns about the wide range of speech encompassed by the statutory language as well as the novelty of criminalizing speech when the speaker lacked specific in tend to commit a crime.”

Omissions from Warrant that Addressed Informant’s Credibility Did Not Require Suppression

US v. Glass: An officer obtained a search warrant for Glass’ home and electronic devices, based on the allegation of his ex-wife that she had seen “a massive amount of child porn saved on his phone.” The searches uncovered child sexual abuse material. Charged with multiple counts of receiving and possessing CSAM, Glass moved to suppress, arguing that the officer had failed to inform the magistrate judge of his ex-wife’s prior allegations against him (none of which resulted in any charge or arrest) and other details that might impact her credibility. The district court denied the motion and Glass went to trial and was convicted on all counts. He was sentenced to 15 years in prison.

On appeal, the Fourth Circuit affirmed the district court’s denial of Glass’ motion to suppress, concluding that he could not “satisfy his heavy burden” in challenging the sufficiency of the warrant application. The court held that the ex-wife’s allegations were “detailed and specific” with regards to the CSAM. The prior investigations, rather than undermining her credibility, bolstered it because “her report concerned a suspect who was likely involved in similar offenses in the past.” That the prior investigations “did not churn up concrete evidence” that led to charges did not mean those allegations had been fabricated. “Probable cause does not dissipate simply because a witness’s previous, similar reports against the defendant went without criminal consequences.” Nor were the other omitted facts (including any specific reference that the informant was Glass’ ex-wife) sufficient to defeat probable cause.

Court Lacks Jurisdiction to Consider Subsequent Untimely Filed §2255 Motion

US v. Robinson: In 2002, Robinson was convicted of drug charges as well as a pair of §924(c) firearms charges, resulting in a total sentence or 960 months. He filed numerous motions after his case became final, including an approved second-or-successive §2255 motion. In 2019, the district court reduced his sentence under the First Step Act to 601 months in prison. In 2022, Robinson filed another §2255 motion, this time without permission from the Fourth Circuit, arguing that he could not be convicted on both §924(c) offenses. The district court denied Robinson’s motion (1) because Robinson did not have permission to file another successive §2255 motion the court lacked “jurisdiction” and (2) even if it did, the motion was untimely.

The Fourth Circuit granted a certificate of appealability only on the first issue – whether the First Step Act reduction order was a new judgment from which Robinson could file a §2255 motion without permission. In his opening brief, Robinson sought to expand the certificate of appealability to cover the timeliness issue as well, but the Fourth Circuit denied the motion.

Ultimately, the Fourth Circuit dismissed Robinson’s appeal for lack of jurisdiction. That was because given the narrow scope of the certificate of appealability the court could not reach the district court’s ruling on timeliness and therefore even if Robinson prevailed on the first issue the court could not provide any relief on the second. It rejected Robinson’s argument that the district court’s timeliness ruling was a nullity because it came after the district court concluded it lacked jurisdiction. The court concluded that the second-or-successive requirements in §2255 and §2244 were not actually jurisdictional (the district court used the term too loosely), but claims processing rules, which meant it had the authority to rule on the timeliness issue (which the Fourth Circuit had already declined to review).

Court Affirms Convictions and Sentences for Trio Charged With Smuggling Arms Into Cameroon

US v. Nji: Nji and his two codefendants were part of the “Peanut Project,” a “group dedicated to sending weapons and ammunition to Anglophone fighters in Cameroon who were battling the Francophone government’s forces.” To that end, another project member named St. Michel (who had served in the US military) set up a “lab” where project members would “clean, prime, and refurbish ammunition” and “assemble firearms” that were then smuggled out of the United States. The operation came to the attention of US officials when a shipping container bound for Nigeria was opened revealing more than 35,000 rounds of ammunition and 39 firearms, none of which had serial numbers (9 were “privately manufactured,” while the others had been obliterated in the lab). The defendants went to trial and were convicted of conspiracy, smuggling, and transportation of firearms with obliterated serial numbers. All were sentenced to 63 months in prison.

On appeal, the Fourth Circuit affirmed the convictions and sentences of Nji and his codefendants. Of particular interest, the Court rejected two of the defendants’ arguments related to evidentiary rulings at trial. First, the court found no abuse of discretion in the district court’s exclusion of their proposed expert witness, who would testify about the conflict in Cameroon, and “avoiding a distracting, collateral mini-trial about the nature and merits of the conflict.” Second, the court also found no abuse of discretion in the district court’s ruling excluding a pretrial statement of a coconspirator regarding St. Michel’s alleged assurance that there was “no need for concern” with the operation. The court concluded that the witness could still assert his Fifth Amendment privilege (he’d yet to be sentenced) and that the pretrial statement was not admissible under FRE 807 because it lacked guarantees of truthfulness (including that it contradicted the declarant’s statements made under oath during his guilty plea). Finally, the court rejected the defendants’ asserted Rogers error, holding that where the supervised release conditions at issue were fully set forth in the PSR and summarized by the district court at sentencing they were sufficiently “imposed.”

Court Affirms Naturalization Fraud Conviction

US v. Palmer: Palmer, a native of Jamaica, sought citizenship in 2011. As part of that process he was asked (in print and in person) whether he had “ever committed a crime or offense for which you were not arrested.” Palmer answered “no” and became a citizen. But in 2013, Palmer pleaded guilty to a statutory rape in North Carolina that occurred in 2008 – prior to his naturalization process. As a result, he was charged with naturalization fraud in 2021. After unsuccessfully moving to dismiss for preindictment delay and to exclude the evidence of his state conviction at trial, Palmer was convicted and sentenced to six months in prison (to be served concurrently with his state sentence) as well as have his citizenship revoked.

On appeal, the Fourth Circuit affirmed Palmer’s conviction. The court affirmed the denial of the motion to dismiss concluding that Palmer could not demonstrate any prejudice due to the delay. The potential testimony regarding his “cognitive challenges” from his mother – who passed away prior to the federal charges – was not sufficiently specific. The court also noted that there were other sources of similar testimony (friends, coworkers, other family members) and that the “jury hear no shortage of evidence about Palmer’s” challenges. The court affirmed the introduction of evidence relating to Palmer’s prior conviction as well, noting that a state conviction could only be challenged collaterally in such situations due to the complete denial of counsel, not (as Palmer argued) due to ineffective assistance. Finally, the court concluded that the district court did err in limiting the testimony of Palmer’s expert witness regarding his mental capacity, but concluded that any error was harmless.

Court Affirms Sentence In Spite of Delinquent Government PSR Objections

US v. Henderson: Henderson was the passenger in a taxi that was stopped in Charleston, West Virginia, after which 1.9 kg of “ice” methamphetamine was found in his bag. Following his arrest, Henderson made several phone calls from the regional jail that appear to show him (speaking in code) directing others on how to continue a drug trafficking operation, including telling one person (Cagle) what to do with several firearms. Henderson pleaded guilty to possession of 500 grams or more of methamphetamine.

In the initial PSR, the probation officer recommended a two-level enhancement for possession of a firearm in connection with the drug trafficking offense. Henderson objected in a letter to the probation officer and Government, to which the Government made no response. The probation officer agreed with Henderson and withdrew the recommended enhancement, a decision to which the Government made no objection.

In light of the Fourth Circuit’s decision in Jones, the district court asked for briefing as to whether Henderson might qualify for the safety valve. The Government used that opportunity to make untimely objections to the lack of the two-level gun enhancement, as well as a leadership enhancement, and to argue that Henderson should not receive credit for acceptance of responsibility. Henderson objected to the late objections and also argued that the enhancements should not apply. Ultimately, the district court applied the firearm and leadership enhancements, while awarding acceptance of responsibility, and sentenced Henderson to 188 months in prison (a downward variance based on the meth/ice disparity in the Guidelines).

On appeal, the Fourth Circuit affirmed Henderson’s sentence. Henderson’s primary argument was that the district court erred by considering the Government’s late objections, arguing that an invitation for briefing about the safety valve did not invite new objections to the PSR. The court disagreed and found no abuse of discretion in the district court considering the Government’s objections. In doing so, the court made it clear that “district courts have an independent obligation to properly calculate the applicable guideline range” and in “doing so, they aren’t limited to the parties’ arguments or the recommendations in the presentence report.” The court also rejected Henderson’s argument that the district court clearly erred in imposing the firearm enhancement.

NOTE: I was counsel on this case and argued it before the court. 

Court Affirms Denial of Motion to Suppress Relying on Findings Made by the District Court

US v. Coe: An officer saw Coe sitting in a car outside a convenience store known for “drug activity” and saw Coe holding what appeared to be plastic baggies with cocaine in them. The officer drew his gun, opened the car door, grabbed Coe as he started to get out and “pinned him to the car.” The officer holstered his gun and got his taser, after which Coe started to struggle and “threw the baggies in front of the car.” In the struggle, the officer saw a gun in Coe’s waistband. Coe unsuccessfully moved to suppress the firearm and entered a conditional guilty plea to being a felon in possession of a firearm.

On appeal, the Fourth Circuit affirmed the denial of Coe’s motion to suppress. The “centerpiece of Coe’s argument” is that the officer violated the Fourth Amendment by pointing his firearm at Coe “with no safety, with his finger on the trigger.” However, the court noted that the district court never made a finding that the officer pointed the gun at Coe while he had his finger on the trigger. Furthermore, Coe did not argue that the district court clearly erred in not making such a finding. As a result, “based on the findings the district court did make,” the court concluded that the officer did not violate the Fourth Amendment as it was “not constitutionally unreasonable” for him to briefing draw his gun under the circumstances. The court did note the officer’s “declared philosophy” during the suppression hearing that he always goes into a situation with his gun drawn (“because you never know what that person has”), stating that “is not the law, and we denounce such views in the strongest possible terms.”

Inmate Cannot Receive First Step Act Credit If Any Part of Sentence Is For Excluded Offense

Bonnie v. Dunbar: In 2005, Bonnie pleaded guilty to a drug offense and using a firearm in relation to that offense under 18 U.S.C. §924(c). He began serving a term of supervised release in 2017. In 2021, he was sentenced to 120 months in prison on new drug charges, as well as a consecutive term of 24 months in prison for revocation of his term of supervised release. Bonnie sought time credits under the First Step Act, which the Bureau of Prisons denied because §924(c) sentences (which Bonnie’s revocation was) were ineligible for such credits, rendering his entire sentence ineligible. Bonnie sought relief in the district court, which was denied.

On appeal, a divided Fourth Circuit affirmed the denial of Bonnie’s motion in the district court. The issue was how to handle aggregate sentences which included both eligible First Step Act offenses – Bonnie’s new drug sentence – and ineligible ones – Bonnie’s revocation (§924(c)) sentence. The court rejected Bonnie’s arguments that his sentences should be treated separately, relying on 18 U.S.C. §3584(c), which requires the BOP to treat multiple terms of imprisonment as “a single, aggregate term of imprisonment.” The court also noted that the First Step Act eligibility provision excludes “a prisoner” with certain convictions, not “a sentence.”

Judge Wynn dissented, arguing that the “text and purpose of the First Step Act . . . makes clear” that Bonnie is entitled to time credits on the eligible portion of his sentence.