Search Warrant Information Insufficiently Particular, Timely, Violated Fourth Amendment

US v. Griffin: In 2019, Maryland investigators executed a search warrant a Griffin’s home in an area known as Kent Bottom. The warrant affidavit provided a length recitation of drug activity that occurred in Kent Bottom, which was surrounded by several homes, some dating back 20 years. Very little of it (none of it in the recent past) actually implicated Griffin’s home, although Griffin himself was noted as being in the area. The warrant uncovered drugs and a firearm in a SUV outside the home (there were no drugs in the home itself). After an unsuccessful motion to suppress, Griffin was convicted of being a felon in possession of a firearm by a jury (acquitted on the drug-related charges) and sentenced to 180 months in prison.

On appeal, a divided Fourth Circuit reversed the denial of Griffin’s motion to suppress. The warrant affidavit, the court concluded, was deficient in two ways. First, while it provided information suggesting that drug dealing occurred in the area of Kent Bottom and some of the homes there, Griffin’s was not one of them. There was insufficient evidence of nexus between the alleged illegal activity and the home. Second, what evidence there was about activities at the home was stale. Because the affidavit was so deficient, the Leon good-faith exception did not apply.

Judge Heytens dissented, arguing that good-faith did apply, as the officers executing the warrant had a reasonable basis to rely on the warrant.

Lack of Findings from District Court to Support Sentencing Enhancement Was Plainly Erroneous

US v. Franklin: Franklin was a postal employee who stole checks from the mail with the intent to forge them into ones he could cash himself (he only completed one – his actually loss was $3947 versus an intended loss of over $767,000). He was the subject of a pair of traffic stops, one of which produced a firearm in a backpack with one of the stolen checks (the others were elsewhere in the car). At sentencing, the district court imposed a two-level enhancement for possession of a firearm in connection with his offense (with no objection). Franklin was sentenced to 48 months in prison, just above the 46-month bottom of the advisory Guideline range.

On appeal, a divided Fourth Circuit vacated Franklin’s sentence and remanded for resentencing. Applying plain error review, informed by the recent observation in Henderson that district courts have an independent obligation to properly calculating the advisory Guideline range, the court found error that was plain in the district court’s failure to make a finding that the firearm had facilitated the offense. The court also concluded there was prejudice, because it could not determine from the record whether the district court would have imposed the same sentence in absence of the error.

Judge Agee dissented, arguing that the record made it obvious that the firearm facilitated Franklin’s offense, given the presence of the firearm in the backpack with one of the stolen checks.

Defendant Could Not Show Counsel Was Ineffective for Failing to Discuss Plea With Government

US v. Flood: In 2002, Flood was part of a group of men who kidnapped and killed a man. Flood was charged with kidnapping resulting in death, conspiracy, and three counts of using a firearm during a crime a violence. Flood potentially faced the death penalty, but the Government did not seek it against him (it did against his codefendant). Flood’s main goal was to avoid a life sentence, which he did not do (he was sentenced to life for kidnapping, followed by consecutive 65 years on the other charges). He filed a 2255 motion arguing that counsel were ineffective for “failing to seek a pretrial resolution of this case.”

Counsel recalled that the Government, during jury selection, had broached the possibility of a plea bargain and they discussed it. However, the Government made clear that to get a plea bargain Flood would have to cooperate, which counsel thought was “too risky.” Counsel did not take the matter to Flood. Government counsel later testified that they believed Flood would not cooperate and so there was no deal to be had. The district court denied Flood’s §2255 motion without holding an evidentiary hearing.

On appeal, a divided Fourth Circuit affirmed the denial of Flood’s §2255 motion. The issue identified in the certificate of appealability was whether the district court abused its discretion by rejecting “Flood’s claim that trial counsel rendered ineffective assistance by failing to pursue a plea agreement on his behalf.” After concluding that the proper standard of review is whether the record “leaves no genuine dispute as to any material fact,” the court held that there was no such dispute that required the district court hold an evidentiary hearing. The court found insufficient evidence of deficient performance, noting the narrow nature of the issue (failure to seek a plea agreement, not failure to report that an offer was made) and pointing to the fact that even Flood agreed that his counsel did discuss a plea bargain with the Government. Nor could Flood establish prejudice, as there was no evidence he would have taken the offer made by the Government (one that required cooperation).

Judge Heytens dissented, arguing that the district court applied the incorrect standard in denying Flood’s motion without an evidentiary hearing and that, alone, was enough to reverse.

Court Affirms Healthcare Fraud Convictions

US v. Joyner: Joyner, a physician’s assistance, took a job with a telehealth company in which he reviewed patient files and signed forms ordering genetic testing, for which Medicare was billed. Although he signed orders for 607 patients, he only spoke with about 20 of them. All told, his work led to billing Medicare for more than $10 million worth of claims. He was convicted by a jury for healthcare fraud and making false statements related to healthcare matters and sentenced to 72 months in prison.

On appeal, the Fourth Circuit affirmed Joyner’s convictions and sentence, rejecting numerous trial arguments. First, the court held that the district court had not abused its discretion in excluding Joyner’s proffered evidence of the company’s compliance efforts, concluding that even if that evidence was relevant (the basis on which the district court excluded them), it was less probative than potentially cumulative or confusing to the jury. Second, the court held that there was no error in the district court quashing subpoenas for several of the company’s leaders, all of whom either invoked their Fifth Amendment rights or were not told to be present by defense counsel. Third, the court held that the prosecution’s comments during closing argument about Joyner’s failure to present certain evidence he promised during his opening statement were not prejudicial. Finally, the court found no error in instructions given relating to aiding and abetting and false statements. The court also found no error in Joyner’s sentence.

 

Counsel Did Not Suffer from “Unwaivable Conflict” During Client’s Trial

US v. Clay: Clay was both a small-town chief of police and rural deputy sheriff. Over the course of a few days in June 2020, Clay arranged with Naylor-Legg to have sex with her 17-year-old stepdaughter for money. When the stepdaughter turned 18, she left the home and reported what had happened. Clay and Naylor-Legg were both charged with various offenses, with Naylor-Legg pleading guilty and Clay proceeding to trial.

Prior to trial, the Government filed a notice of a potential conflict of interest for Clay’s counsel, based on allegations that he had contacted Naylor-Legg’s husband (Legg) in an attempt to get her to withdraw her guilty plea. Naylor-Legg then sent a letter to the court requesting new counsel and accusing the Government of forcing her to make false statements as part of her guilty plea. Naylor-Legg then told the Government that Legg and Clay’s counsel had spoken and Legg had passed on information to her, but ultimately “recanted the allegations in her letter and redoubled her insistence that the information in her plea agreement was true.” Clay’s counsel denied ever speaking to Naylor-Legg and claimed that he had only “limited communication” with Legg himself.

The district court held a hearing on the potential conflict, at which Legg testified that Cla’s counsel never said Naylor-Legg should withdraw her plea, but that he told Naylor-Legg that Clay’s counsel had said that. Naylor-Legg testified that she’d never spoken with Clay’s counsel and that she hoped the letter would “help her get out of jail.” The district court held there was a potential conflict that would require Clay to waive if he wanted his counsel to continue to represent him, noting specifically that could impact his ability to cross-examine Naylor-Legg. Clay (after consulted with counsel) stated that he waived any conflict.

At trial, Clay’s counsel did not attempt to impeach Naylor-Legg with the letter or prior claims of coercion. The district court “again asked Clay whether he wanted to waive any possible conflict of interest,” after which Clay conferred with both current and “independent” counsel and, ultimately, waived any conflict. He was convicted on four counts and sentenced to 25 years in prison.

On appeal, the Fourth Circuit affirmed Clay’s conviction and sentence. Clay’s main argument was that the conflict between he and his trial counsel was “unwaivable” and required a new trial. The court held the conflict was not unwaivable, noting that the claim implicated a separate interest than Clay’s Sixth Amendment rights – the court’s “interest in ensuring the proceedings before it are fair and ethical.” The district court did not abuse its discretion in accepting Clay’s waiver, noting that the threshold for doing so is “set extremely high.” That trial counsel did not seek to impeach Naylor-Legg with the letter was not the kind of failure that “a member of the public would be shocked to observe.” Thus, the conflict was waivable and Clay clearly waived it.