Bag Stashed Outside on Property Where Defendant Might Have Had Expectation of Privacy Was Abandoned

US v. Lodge: Lodge was the subject of a traffic stop, from which he fled toward a nearby trailer, carrying a backpack. Lodge went to the front door, knocked, and attempted to place the backpack inside when someone answered the door, but the “resident quickly shot the door,” preventing him from doing so. Lodge ran to the rear of the property and was eventually apprehended, without the backpack. Officers searched the back yard and found the backpack next to a shed. Lodge admitted the backpack was his. It contained various types of drugs.

After being charged with drug offenses arising from that night, Lodge moved to suppress, arguing that the warrantless search violated the Fourth Amendment. The Government countered that Lodge had abandoned the backpack and, thus, could not challenge its search. The district court agreed with the Government.

On appeal, a divided Fourth Circuit affirmed the denial of Lodge’s motion to suppress. While the court concluded that the district court had erred in its basis for denying the motion (it failed to “meaningfully engage” with the issue that Lodge disposed of the backpack on private property in which he might have a legitimate interest), it sill reached the correct result. That is because the facts found in the district court – particularly that the resident of the trailer rebuked Lodge’s attempt to put the backpack inside – still showed that the backpack was abandoned and Lodge had relinquished any privacy interest in it (“the door being shut in Lodge’s face so too shut the door on his Fourth Amendment claim”).

Judge Gregory dissented. While he agreed “with much of the majority’s reasoning,” he “part[ed] ways on the remedy,” arguing that in light of the district court’s incorrect framework for its legal analysis vacation “for a proper abandonment analysis” was necessary.

Juror Lie About Being Subject of Prior Federal Ivestigation Did Not Demonstrate Bias

US v. Williamson: Williamson went to trial in the Southern District of West Virginia for drug and firearms charges. During voir dire, an eventually-seated juror explained that he had once been a police chief and, overall, a police officer for more than three decades. When the entire panel was asked if any of them had “ever been involved with any conflict, controversy, or litigation with any department or agency of the United States,” all answered “no.” Williamson was convicted on all counts and sentenced to 240 months in prison.

While his case was pending on appeal, Williamson learned that the juror had been part of “Team Mingo,” a group of Mingo County officials who were involved in various forms of corruption, including with drugs. While the juror was never charged as part of the Government’s investigation into Team Mingo, he was questioned and given a target letter. On remand, when asked why he didn’t explain all this during voir dire, the juror claimed that it had been long enough ago and hadn’t resulted in anything that he simply forgot. Williamson argued he was entitled to a new trial because the juror had lied to avoid disclosing an embarrassing part of his past. The district court agreed that the juror had lied, but concluded he had not been biased and denied the motion for a new trial.

On appeal, the Fourth Circuit affirmed the denial of Williamson’s motion for a new trial. Extending the required deference to the district court’s factual findings (including on the juror’s credibility regarding any bias), the court concluded there was no abuse of discretion in denying a new trial. Particularly, the court noted that the juror did not suggest he was biased either way due to his experience and that the district court’s factual finding on that matter was not clearly erroneous. Ultimately, the court concluded there had been no actual, implied, or inferred bias on the juror’s part.

Bags Taken During Arrest Would Have Been Subject to Multiple Inventory Searches

US v. Allen: Raleigh, North Carolina, police officers were searching a car when Allen rode through the scene on a bicycle, during which he “rode around the officers and patrol cars and also weaved in and out of the crime scene” for 10 to 20 minutes. Naturally, this got him arrested, which Allen vigorously resisted. Once he was handcuffed (but still struggling), an officer searched a pair of “cross body bags” that had been removed from him during the arrest. Inside were two firearms, drugs, and related items. Allen moved to suppress that evidence, arguing that the warrantless search of the bags was not proper under the search incident to arrest doctrine. The Government argued that it was, but that even if it wasn’t the bags would have been searched pursuant to local police department or jail inventory search policies. The district court granted the motion, holding that the initial search was improper and declining to apply the inventory search doctrine.

The Government took an interlocutory appeal and the Fourth Circuit reversed. Focusing on the inventory search argument (the Government preserved the search incident to arrest argument for potential Supreme Court review), the court rejected all the reasons the district court gave for not applying it here. First, the court rejected the district court’s flat out disapproval of the inventory search doctrine (calling it “one of my favorite cliches” which was “going nowhere”), noting that as lower courts they were bound by the Supreme Court’s pronouncements. Second, the court held that the district court erred by requiring the Government to provide a written policy from the local jail, reiterating that written policies are no required so long as there is evidence of regular procedures. Finally, the court “fail[ed] to understand the observation that the policies here lacked ‘enough regularity,’” noting that they both applied to every person arrested and all property in their possession.

 

Vacating Supervised Release Sentence for Failure to Address Sentencing Argument

US v. Mills:  Mills was serving a term of supervised release when he had an incident with this “then-ex-girlfriend” in which she alleged he “strangled and assaulted her.” Along with a petition to revoke his term of supervised release, Mills was also charged with state charges arising from the same incident. As a result, the revocation proceedings lingered for months. Ultimately, Mills was acquitted in state court, but his supervised release was revoked and he was sentenced to 24 months in prison with no further term of supervised release.

On appeal, the Fourth Circuit vacated Mills’ revocation sentence. First, the court affirmed the revocation itself, rejecting Mills’ argument that the district court had failed to properly consider the discrepancies between the ex-girlfriend’s revocation hearing testimony and state trial testimony. Such questions of credibility are, essentially, unreviewable on appeal. Second, however, the court concluded that the district court failed to adequately consider Mills’ argument for a lesser sentence – that during the lengthy period while his revocation was pending he had no issues on bond and committed no additional offenses. Such an argument was not frivolous and the court concluded that the “record does not reflect that the district court adequately considered or addressed that argument.”

Congrats to the Defender office in  ED VA on the win!

Officer Unlawfully Extended Stop By Questioning Car Occupants About Firearms

US v. Martin: Martin was a passenger in a car driven by Jarvis in a national forest in West Virginia. They first encountered a forest ranger when they had pulled over to look for mushrooms. After checking to see if they were lost or otherwise needed help, the ranger went on his way. About 45 minutes later, he encountered them again when he came across their vehicle parked on a one-lane bridge. Jarvis moved the car and the ranger pulled in just ahead of them.

When he approached Jarvis (both she and Martin had gotten out of the car), the ranger asked first asked for Jarvis’ license and whether there were any firearms in the car. Jarvis said there was. In spite of that, the ranger allowed Jarvis to get back in the car, twice, to get additional documentation. He found a gun under the driver’s seat and examined the serial number, but otherwise left it alone. He asked Jarvis if there was anything else in the car and she admitted there was another firearm under the passenger’s seat. The ranger eventually learned that Martin had a prior felony conviction. He arrested Martin, then took him to his nearby family picnic where the ranger informed Martin’s mother of the firearm and released Martin. Martin pleaded guilty to being a felon in possession of a firearm after the district court denied his motion to suppress.

On appeal, a divided Fourth Circuit reversed the denial of Martin’s motion to suppress. The ranger “exceeded the scope of the seizure by immediately engaging in a criminal investigation unrelated to the traffic violation warranting the stop” when he “immediately asked about the presence of firearms.” While such inquiries “would have been lawful if they were conducted during the course of a diligently conducted stop . . . that is not the case here” where the ranger “abandoned the stop from the very beginning.” It distinguished the court’s earlier decision in Buzzard, noting that the officer there was “mid-stop when he began questioning about the presence of firearms,” whereas the ranger “led the stop with that question.” Nor did the ranger ever return to the initial purpose of the stop, instead digressing into an investigation of firearms and potential ginseng poaching.

Judge King dissented, arguing that, as in Buzzard, the totality of the circumstances here justified the ranger’s questions about firearms.

NOTE: I was counsel for Martin on this case, along with my colleague Lex Coleman who did the oral argument.

ICE Enforcement of Deportation Warrant Is Not “Proceeding” Obstructed by Subject’s Escape

US v. Zeledon Hernandez: Zeledon came to the United States, unlawfully, in 2016 from El Salvador, fleeing gang violence. Having made a credible claim for asylum, he was released on bond and given a date for a future hearing. He did not appear for that hearing in 2019, leading to the issuance of a warrant of removal. That warrant was not executed until 2023, when Zeledon was arrested for DUI in Virginia. Convinced he’d be killed in El Salvador, Zeledon escaped prior to his deportation, only to be caught a few days later.

The Government initially charged Zeledon in a complaint with escape and acting to prevent his departure following a final order of removal. When it indicted him, however, it charged him with escape and corruptly obstructing a “pending proceeding,” rather that preventing his departure. The district court denied Zeledon’s motion to dismiss the obstruction charge, concluding that there was still a “pending proceeding” when he escaped, but acquitted him of the escape itself because it did not fit the bounds of the statute.

A divided Fourth Circuit reversed the denial of Zeledon’s motion to dismiss the obstruction count. At issue is whether the ICE enforcement of the removal order constituted a “pending proceeding.” The court held that it did not, noting that both the plain meaning of “proceeding” and the statutory context involved showed that the proceeding ended with the issuance of the order of removal in 2019. It rejected the Government’s argument that the ICE enforcement of the order itself was a “proceeding” under the statute. The court did note that Zeledon’s conduct would have been covered by the “acting to prevent his departure” charge from the original complaint.

Judge Wilkinson dissented, adopting the Government’s position that there was still a pending proceeding in the form of ICE enforcement.

Court Affirms Conviction Related to Distribution of Ginsburg Medical Information

US v. Russell: In 2019, images appeared on social media that appeared to show then-Justice Ginsburg was receiving treatment for cancer at GW University Hospital (which spiraled into conspiracy theories that she was already dead and that fact was being covered up). Investigation by the hospital led to Russell, who worked for a organ-donation non-profit and had access to the hospital’s records. The FBI interviewed Russell, with his boss present, and he agreed to turn over his home computer hard drive for examination. The drive he did turn over, however, was a secondary one that had recently been formatted. Russell was convicted, by a jury, of destroying and altering medical records and obtaining individually identifiable health information (he was acquitted of disposing of such information) and sentenced to 24 months in prison.

On appeal, the Fourth Circuit affirmed Russell’s convictions. First, the court concluded that there was no error in denying Russell’s motion to suppress his statement (and the evidence discovered as a result) because it was inherently coercive. While the presence of a person’s employer could be a factor that might lead to a coercive environment, nothing in the record showed such an environment resulted. Second, the court held that there was no error in limiting Russell’s cross-examination of one of those agents in an attempt to show bias, noting that the district court identified other ways to address the issue which counsel did not attempt. Finally, the court held that the type of information in the images at issue did constituted “individually identifiable health information” covered by the statute, as it included Ginsburg’s name, where she was being treated (including arrival & departure dates) and services provided.

Violation of Supervised Release Condition Prohibiting Drug Use Was Grade C Violation

US v. Jones: Jones was convicted of robbery and firearms offenses in 2014 and started serving a term of supervised release in 2024. Later that year, he was arrested on a revocation petition that alleged (among other things) that he been charged with felony possession of counterfeit instruments in state court and had repeatedly tested positive for using various drugs. A probation report calculated the advisory Guideline range as 8 to 14 months, using a Grace B violation as the most severe violation. At the revocation hearing, however, the violation based on the state felony was dismissed, while Jones admitted to the others. The district court nonetheless applied the same Guideline range and ultimately revoked Jones’ term of supervised release and imposed a sentence of 19 months in prison.

On appeal, the Fourth Circuit vacated Jones’ sentence. The court agreed with Jones (applying plain error), that the district court erred by concluding that Jones had committed a Grade B violation and calculating the Guidelines accordingly. The court rejected the Government’s argument that illegal drug use – a felony – “can be inferred” from the failed drug tests, holding that while such an inference might be made, the district court did not do so in this case.

No Error in Failure to Sever Main Fraud Counts from Related PPP Fraud Count

US v. Lawrence: Lawrence had a business that processed business payroll and distributed it to employees in the form of “a debit-like card” that could be either spent or cashed out. Unfortunately, Lawrence siphoned off funds for his personal use in options trading, which didn’t work out. After his company went out of business, he sought a PPP loan based on assertions that he still had payroll responsibilities to meet. For all this, Lawrence was charged with ten counts of wire and mail fraud for the payroll card scheme, plus one count of wire fraud for the PPP loan. He was tried, and convicted, on all counts together and sentenced to 87 months in prison.

On appeal, the Fourth Circuit affirmed his convictions. Primarily, the court addressed Lawrence’s argument that the district court should have severed his PPP loan count from the other fraud counts. The court disagreed, holding that while “the schemes themselves were distinct . . . they overlapped in material ways,” including proof and witnesses, and “the paycard fraud precipitated his PPP fraud.” Properly joined initially, there was no abuse of discretion in the district court’s failing to sever them prior to trial.

Complete Prohibition on Pornography Sufficient Individualized for Supervised Release Condition

US v. Castellano: Castellano served a 144-month sentence for transporting child sexual abuse material, after which he has had numerous revocations of his term of supervised release. At one point, one of the conditions of supervised release prohibited him from possessing any pornographic material at all (not just CSAM), but the Fourth Circuit vacated that condition as not being based on sufficiently individualized factors. Ultimately, he agreed to a condition that prohibited him from using a phone or computer to view any pornography, but it did not prevent him from possessing in in written or offline form.

As part of a fifth revocation proceeding (including violations of the agreed-to condition), the Government asked the district court to impose a complete ban on Castellano’s access to pornography of any kind. In support, the Government presented testimony from Castellano’s sex offender treatment provider recommending the condition – but also admitting that she recommended such a restriction for anyone convicted of involvement with CSAM. The district court imposed the condition.

On appeal, the Fourth Circuit affirmed the imposition of the complete prohibition on possessing pornography. Unlike when a similar condition was imposed earlier, this time it was based on Castellano’s particular history and characteristics, notably is multiple prior failures to comply with supervised release terms. The court rejected Castellano’s argument that the treatment provider’s blanket policy of such prohibitions in these cases showed that such individualized determination had not been made.