Gain From Criminal Activity Not Proper Measure for Restitution

US v. Harvey: Harvey and his codefendant, Kronstein, were convicted by a jury of honest services wire fraud and bribery. The convictions arose from an arrangement by which Harvey, a civilian military employee, funnelled a no-bid contract to a company owned by Kronstein. Harvey and Kronstein also moved funds between themselves, using businesses and intermediaries (including their wives) as conduits. Harvey was sentenced to 72 months in prison, Kronstein to 70 months and ordered them, jointly and severally, to pay $383,621 in restitution.

They appealed both their convictions and sentences. The Fourth Circuit affirmed the convictions and prison terms, while vacating the restitution award.

As to the convictions, the court first concluded that the evidence was sufficient to convict Harvey and Kronstein of honest services wire fraud, rejecting the argument that the Government failed to show either that their scheme involved a material misrepresentation or concealment of fact or that they had the specific intent to defraud. The court also rejected the argument that there was insufficient evidence to sustain the bribery convictions, holding that there was sufficient evidence of corrupt intent in their dealings.

As to the sentences, the Fourth Circuit turned away factual challenges to Guideline enhancements for the amount of loss, the number of bribes involved, and Harvey's and Kronstein's roles in the offense.

As to the restitution, the court concluded that the Government had failed to prove the amount of actual loss attributable to the defendants, rather than intended loss (which was used in the Guideline calculations). Specifically, the court rejected the practice of using the profit gained from the criminal activity as a proxy for actual loss. Thus, the restitution award was vacated and remanded to the district court for further proceedings.

Sentenced Imposed Without Guideline Affirmed as Not "Plainly Unreasonable"

US v. Finley: Finley was convicted under the Assimilative Crimes Act of 3rd offense DUI and driving on a revoked license on a military base. At sentencing, Finley argued that the district court should consider what the state (Virginia) sentencing guidelines for the offenses would be - 90 days to six months in jail (or 7-10 months, as conceded on appeal). The district court "could care less what the guidelines [were] in the state system" and imposed a sentence of 27 months in prison.

Affirming, the Fourth Circuit first addressed the proper standard of review in a case like this one where there is no applicable Guideline. Applying the holding in US v. Crudup, the court concluded that such sentences are reviewed to determine if they are "plainly unreasonable." In such cases, step one is regular Booker/Gall reasonableness review, followed by a second step of determining whether any unreasonableness is "plain."

Utilizing that standard, the court concluded that Finley's sentence was not unreasonable, much less plainly so. First, the court concluded that the district court did, in fact, consider the Virginia sentencing guidelines, but rejected them as not providing adequate deterrence to Finley. Second, the court concluded that Finley's sentence was substantively reasonable and supported by the district court's findings below.

Prior Offenses Stacked in Applying 2L1.2 Enhancement

US v. Martinez-Varela: Martinez-Varela pleaded guilty to illegal reentry following an aggravated felony. He had three prior convictions for distribution of drugs, all of which occurred and were sentenced on the same day. Each carried a 6-8 month sentence, but two were made consecutive, for a total sentence of 12-16 months. At sentencing, his Guideline range was enhanced 16 levels under USSG 2L1.2(b)(1)(A) because the "sentence imposed" for the prior offenses was greater than 13 months. Aggregating the sentences imposed for the three offenses, the district court concluded that the 13-month threshold was passed and a 16-level increase was appropriate.

On appeal, the Fourth Circuit affirmed, holding that while the specific Guideline section cited in 2L1.2 as being used to determine prior sentences does not answer the question, a related section does provide support for the aggregation approach.

Estoppel Not a Bar to False Statements Convictions

US v. Benkahla: This case is a third one dealing with terrorism related charges arising out of an Islamic center in Falls Church, Virginia (see the prior Chandia and Khan decisions for more detail). Benkahla was initially charged and acquitted in a bench trial of supplying services to the Taliban and using a firearm in connection therewith in 2004, after being arrested in Saudi Arabia in 2003 (related to the recent Abu Ali decision). The basis for the court's acquittal was the Government failed to prove that the training camp Benkahla attended was in Afghanistan. Undaunted, the Government convened a grand jury to investigate charges of providing material support to terrorist organizations and subpoenaed Benkahla to testify multiple times, during which he denied any involvement. in 2006, the Government indicted Benkahla for making false statements to the grand jury, obstruction of justice, and making false statements to the FBI. After a jury convicted on those charges, the district court at sentencing applying the terrorism Guideline, but eventually imposing a variance sentence of 121 months in prison.

On appeal, Benkahla raised several issues, all of which the Fourth Circuit rejected. First, he argued that the Government was collaterally estopped from prosecuting him for false statements after his acquittal on related charges. While recognizing the "tension" inherent in such situations, the Court ultimately found it not to be problematic, focusing on the district court's narrow ground for acquittal in the first trial. Second, he argued that evidence presented at his trial on the nature of radical Islam, jihad, and terrorism was unduly prejudicial. The court concluded otherwise, noting its relevance to the elements of the offenses with which he was charged and noting that the jury acquitted Benkahla on some charges, thus showing it was not unduly swayed by prejudice. Finally, the court rejected Benkahla's argument about the proper application of the terrorism Guideline, specifically rejecting a Sixth Amendment-based Booker argument, noting that "the point is thus that the Guidelines must be advisory, not that judges may find no facts."

Omissions from Warrant and Date Error Don't Require Suppression

US v. Gary: Gary was convicted (of what the opinion doesn't say) based at least partly on information developed during a search of a home in Richmond, based on an anonymous tip. The tipster alleged that "Melvin" was selling heroin out of the home. A police officer investigated, rummaging through the trash in the alley behind the home, discovering items with heroin residue, packaging materials, and discarded mail indicating that the trash came from the target address. He applied for a search warrant, in which he failed to disclose that there were multiple trash cans in the alley, only one of which was marked as belonging to the target address, and indicated that the investigation took place a year before it actually did. The district court denied Gary's motion to suppress the evidence.

The Fourth Circuit affirmed, unanimously, in an opinion written by ex-Justice O'Connor. The court rejected Gary's argument that under Franks the information left out of the warrant application required suppression. The court concluded that the information left out of the warrant would not have changed whether probable cause was present. The court also rejected Gary's argument that, notwithstanding the omissions, the warrant application was not sufficient to justify a search because of the discrepancy in dates between the actual investigation and what was written on the application. Noting that the discrepancy wasn't even mentioned until the district court noticed it at the suppression hearing, it was clearly a typo and not destructive to probable cause. Even if it was, the Leon good-faith shield saved the search.

Big Terrorism Case Leads to Split on Sentencing Review

US v. Abu Ali: Ali is a US citizen, born in Virginia, who eventually travelled to Saudi Arabia, where he became involved with an Al-Qaeda cell. After a bombing in Riyadh (in which Ali was not involved), Saudi authorities cracked down. Investigation of Ali and others led to indictment in the US against Ali for various terrorism and related charges, in addition to conspiracy to assassinate the President. He was convicted by a jury of all charges. In a lengthy opinion, the Fourth Circuit unanimously affirms the conviction, rejecting numerous challenges that are most likely to occur only in similar transnational terrorism cases.

The real action, from the more mundane perspective, involves sentencing. Ali's Guideline range called for a mandatory life sentence. At sentencing, the district court varied down to 360 months, based on both the particular facts of Ali's offense and background (he never actually perpetrated any violent acts, no violence in his past, etc.) as well as comparison with what the district court thought were two similar cases - those of John Walker Lindh and Tim McVeigh/Terry Nichols. Noting that Lindh only got 20 years and Nichols got life where his offense involved actual killing, the district court concluded that a variance to 360 months was necessary.

On appeal, the Fourth Circuit vacated the sentence, 2-1. The majority heavily dissected the district court's comparison between Ali's case and Lindh/Nichols and concluded that it gave too much weight to those comparisons, which were flawed to begin with. The majority did not state categorically that a 360-month sentence would always be unreasonable, but vacated and remanded for further proceedings. Judge Motz dissented on the sentencing issue, arguing that the majority's review ignored Gall and failed to provide the proper level of deference to the district court's sentence, concluding that it was a reasonable sentence, if not ,perhaps, the most reasonable.

Court Upholds 316% Upward Variance

US v. Evans: Evans committed a series of fraud and identity theft offenses, starting when he bought some personal information of Wachovia Bank account holders from a friend who worked at the bank. Eventually, he passed $13,600 in bad checks on the accounts of two individuals. Based on that loss, Evans's advisory Guideline range at sentencing was 24-30 months. In addition, the Government moved for a downward departure for Evans's substantial assistance in going after the friend who sold him the information. The district court saw things quite differently, concluding that the Guidelines grossly understated Evans's criminal history and the seriousness of his offense. It imposed a sentence of 125 months in prison.

On appeal, Evans argued that his sentence was unreasonable. After holding the case in abeyance pending the outcome of Gall, the Fourth Circuit affirmed the sentence. The court reviewed the record and concluded that the district court "carefully and thoroughly applied the prescribed sentencing factors" when imposing sentence. Affirmance was necessary, given "the requisite deference we must accord to the considered judgment of the district court." The court then specifically rejected Evans's argument that the Guidelines prohibited a departure on the grounds relied upon by the district court (the district court cited some Guideline provisions during the sentencing), concluding that if the sentence is reasonable and the district court was applying the 3553(a) factors the Guideline analysis was irrelevant. The court also rejected Evans's argument that the scope of the variance was too great. Judge Gregory concurred in the judgment, but wrote separately to "encourage a more tempered overall approach to the substantive reasonableness analysis."

Court Affirms Kidnapping/Murder Conviction

US v. Lentz: Lentz was charged with kidnapping resulting in death stemming from the disappearance of his wife. The Govt theorized that Lentz lured his wife from her home in Virginia to his home in Maryland, where he then killed her.After trial, the district court granted Lentz's motion for a judgment of acquittal on the ground that the Govt failed to prove that Lentz "held" his wife for any period of time before killing her. The district court also granted Lentz's motion for a new trial due to two of the victim's dayplanners that had not been admitted into evidence popping up in the jury room. The district court went so far as to find that an AUSA had intentionally slipped the dayplanners, which contained notes from the victim detailing her abusive relationship with her husband, into the jury room to taint the jury. The Fourth Circuit affirmed the new trial motion and remanded for a new trial.

At a second trial, Lentz was again convicted, partly due to evidence of a murder for hire plot he hatched from jail against witnesses from the first trial and some of the AUSAs. Unfortunately, Lentz discussed the plot with a cellmate who turned informant. Even more unfortunately, Lentz discussed the plot with his attorney in phone calls from the jail that were recorded. Lentz moved to exclude evidence from both sources, with only partial success. While some of the informant's testimony was excluded because it came after a meeting with investigators that essentially turned him into a Government agent, testimony about earlier conversations with Lentz and the attorney phone calls were admitted.

Lentz raised several unsuccessful issues on appeal. First, he argued that the district court constructively amended the indictment by instructing the jury that, for purposes of the kidnapping statute, the District of Columbia was a "state." The Fourth Circuit rejected the argument that the district court's instruction amended the indictment, which alleged travel from Virginia to Maryland, holding that the indictment never required proof of travel directly from Virginia to Maryland, only that they be the starting and ending points. Second, Lentz argued that the district court erred by allowing any evidence of the murder-for-hire plot into evidence. As to the informant's testimony, the Fourth held that the statements from Lentz made prior to the informant becoming a de facto Government agent were not acquired in violation of the Sixth Amendment. As to the phone calls with his lawyer, the Fourth held that the calls fell clearly into the crime-fraud exception to the attorney-client privilege. The Fourth also rejected Lentz's argument that the statements were unduly prejudicial and that, in their redacted form as presented at trial, they violated the rule of completeness found in FRE 106. Third, the Fourth rejected Lentz's argument that hearsay statements made by his wife about the OJ Simpson case (i.e., that Lentz told her "if OJ can do it and get away with it, so can I") were admissible under the "forfeiture by wrongdoing" exception in FRE 804.

Court Upholds Terry Patdown in High-Crime Area

US v. Black: Black was walking home in a "high crime" area of Richmond when he passed a marked police car. An officer in the car engaged Black in conversation and became suspicious that Black might have a weapon in his pocket. When asked, Black took his left hand out of his coat pocket, but only after being asked twice. At that point, the officer saw a bulge that he suspected was a firearm. Asked what he had in his pocked, Black said it was just money and an ID. Black then put his hand back in his pocket. At that point, the officer said, "take your hand out of your pocket, I don't want to have to shoot you." Another officer then patted down Black and identified the bulge as a firearm. After being hand cuffed, Black admitted that he did not have a permit to carry the weapon and was a convicted felon.

Black was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the officers did not have reasonable suspicion to seize and pat him down. The district court denied the motion. On appeal, the Fourth Circuit affirmed. On appeal (at least), everyone agreed that the encounter between Black and the officers was consensual and did not implicate the Fourth Amendment until the officer said. "I don't want to have to shoot you." Based on the totality of circumstances up to that point, the Fourth Circuit held that there was reasonable suspicion to believe Black possessed a weapon.

Judge Gregory dissented, writing that he "cannot accept that Fourth Amendment protections are suspended or reduced in so-called 'high-crime' neighborhoods.'" For Judge Gregory, the seizure took place when Black was first asked to remove his hand from his pocket.

Court Upholds Defendant-Initiated Post-IA Questioning Without Counsel

US v. Cain: Cain was arrested as part of a DEA sting. After his arrest, he told the DEA agents that he wanted to cooperate with them. The next day, Cain made an initial appearance, at which time he was determined to be eligible for court appointed counsel, although no specific attorney was appointed at that time. After the initial appearance, Cain again told the agents that he wanted to cooperate. They were unable to talk with Cain at that time.

The next day, Cain was returned to the courthouse for a meeting with the DEA agents and an AUSA. By this point, the CJA panel had been informed of its appointment to represent Cain, but it's not clear when a specific attorney was appointed. The interview went ahead, after Cain had been advised of his Miranda rights. Based in part of what was said during that interview, Cain was charged with multiple drug distribution counts. Cain filed a motion to suppress his interview statements, arguing that his Sixth Amendment rights were violated because the agents/AUSA did not attempt to contact his CJA attorney. The district court granted the motion.

On appeal, the Fourth Circuit reversed. Noting that Cain's Sixth Amendment rights had attached, the court nonetheless held that the record showed Cain's repeated attempts to initiate contact with the DEA agents. Furthermore, Cain was advise of his Miranda rights three separate times, including right before the interview. In such circumstances, his Sixth Amendment rights were not violated. The Fourth also rejected the district court's alternate holding that the statements should be excluded under the court's supervisory power because the Government violated the court's CJA plan.

Inidividual Liability Still Jury Found After Booker

US v. Brooks: Brooks and several codefendants, including Mathis, were charged with several drug counts, including conspiracy to distribute more than 500 grams of cocaine and 50 grams of crack. On appeal, Mathis and another codefendant argued that their convictions violated US v. Collins, 415 F.3d 304 (4th Cir. 2005), which required the jury to determine the amount of drugs attributable to each member of a conspiracy before a mandatory minimum could be triggered.

Proceeding only on Mathis's claim (because the other codefendant admitted at oral argument that he was responsible for more than 50 grams of crack), the Fourth Circuit concluded that Collins had been violated and returned Mathis's case to the district court. Of particular importance, the court rejected the Government's argument that Booker effectively overruled Collins, noting that Collins dealt with mandatory statutory sentencing ranges, not advisory Guideline ranges. The court then quickly rejected challenges by other codefendants to their convictions and sentences. Judge Niemeyer dissented from the Collins holding, arguing that the majority's position was incompatible with that case as well as Booker.

Retail Value of Bootlegs Based on Value of Legit Copies

US v. Armstead: Armstead was charged with and convicted of distribution of bootlegged DVDs (100 on one occasion, 200 on another) with "a total retail value of more than $2500." The only issue below and in the Fourth Circuit was how to make a proper measure of "retail value." Armstead argued that it should be the value of bootleg DVDs on the black market, which would be the price paid in the transactions, $500 and $1000, respectively. The Government argued that it should be the value of legitimate copies of what is on the DVDs, which would make each transaction worth well over the $2500 threshold.

The district court and the Fourth Circuit agreed with the Government, holding that "retail value" comes from taking the highest of the "face value," "par value," or "market value" in the retail context. Applying that definition, the evidence was sufficient to sustain Armstead's conviction.

Defendant Entitled to Franks Hearing Due to Omitted Facts

US v. Tate: Tate was charged with being a felon in possession of a firearm. The gun came to light during a search of Tate's home based on a warrant obtained by a Baltimore police officer. As basis for obtaining the warrant, the officer told the state judge that he had searched through two of Tate's trash bags that were "easily accessible from the rear yard of" Tate's home and discovered marijuana residue. Prior to trial, Tate sought a Franks hearing, arguing that the officer omitted a material fact from the warrant application - that the trash bags were only "easily accessible" because the officer hopped fence (with a locked gate) and took the bags off the home's back porch. The bags had not been placed in the nearby alley, as they would be on trash pick up day. The district court denied Tate's request for a Franks hearing, holding that the officer's application was "literally true."

On appeal, the Fourth Circuit reversed and held that Tate was entitled to a Franks hearing. The court held that Tate "clearly described the nature of [the officer's] omissions; he gave reasons for why he considered the omissions deliberately deceptive and material; and he proffered evidence in support of his position . . .." The court noted that the Government's argument, which "essentially parrot[ed]" the district court's, that the statement in the application was literally true fails to deal with the nature of the omitted facts. Finally, the court held that if Tate's factual assertions are true the officer illegally searched Tate's garbage and therefore lacked probable cause to obtain the warrant.

Right to Counsel on Underlying Charges Not Violated by Witness Tampering Investigation

US v. Mir: Mir was an immigration lawyer who assisted employers in completing the necessary paperwork to sponsor aliens for work in the United States and to allow alien workers to become permanent US residents. The Government began an investigation of Mir and his law firm on suspicion that some of the forms he completed contained false information. During the investigation, Mir sent a letter to the Government stating that he was represented by counsel. Eventually, a grand jury indicted Mir and his law firm for conspiracy to commit labor certification fraud, fraud, and racketeering. After the indictment, investigators suspected that Mir was tampering with witnesses. The Government used two aliens as CIs, sending them to Mir's office to record conversations with him. Based on those recordings, a witness tampering charge was added to the indictment. Mir unsuccessfully moved to suppress those recordings as a violation of his right to counsel or, alternately, sever the witness tampering charge from the rest of the indictment. Mir was convicted of fraud, but acquitted of conspiracy and witness tampering.

On appeal, the Fourth Circuit affirmed. Mir raised his Sixth Amendment argument, which was rejected by the court. The Fourth Circuit held that Mir's invocation of his right to counsel on the conspiracy and fraud charges did not apply to the separate offense of witness tampering. Although the two sets of offenses have "a point of factual overlap," they are still separate offenses. In addition, the Fourth Circuit held that the district court did not abuse its discretion in not severing the witness tampering charge from the others, noting that it "would have made little sense."

Magistrate Judges May Accept Guilty Pleas

US v. Benton: Benton was charged with conspiracy to distribute drugs. He reached a plea agreement with the Government, which included a provision allowing a magistrate judge to perform the Rule 11 plea hearing. That hearing took place and the magistrate judge accepted Benton's plea. Months later, Benton complained that his attorney had been ineffective by failing to adequately explain the elements of the offense to him. As a result, new counsel was appointed. After new counsel was appointed, Benton filed a motion to withdraw his guilty plea alleging that there was an inadequate factual basis, the terms were unconscionable, the Government had breached by failing to file a motion for substantial assistance, and ineffective assistance of counsel. The district court denied the motion. Benton reiterated his motion at sentencing, but it was again denied. He was sentenced to 262 months in prison.

On appeal, Benton made three arguments, all of which the Fourth Circuit rejected. First, he argued that he had the right to withdraw his plea for "any reason or no reason" because the magistrate judge lacked the authority to accept the plea. Because Benton did not make the argument to the district court, the Fourth reviewed it for plain error. The Fourth found there not to be error at all, concluding that magistrate judges can accept guilty pleas, so long as the district court can review that acceptance de novo. The court noted that a "fair and just reason" for withdrawing a plea (as required once it has been accepted) would be a defective plea proceeding before a magistrate judge. Second, he argued that his plea was not knowing and voluntary because the magistrate judge failed to adequately explain the elements of the offense and incorrectly stated the maximum term of supervised release he faced. Finally, Benton renewed his argument that his original counsel was ineffective.

Court Affirms Second-Chance Variance

US v. Curry: Curry sold gold coins on eBay. Problem was, he "sold" coins which he never had in his possession. When the deals began to fall apart and jilted buyers complained, the FBI came calling. Curry was charged and convicted by a jury of multiple counts of mail fraud, wire fraud, and unlawful monetary transactions. At sentencing, Curry's Guideline range came out to be 41 to 51 months. However, the district court imposed a sentence of 12 months on each count (served concurrently), along with 12 months of home confinement, following Curry's argument for a Booker variance. The Government appealed the sentence and the Fourth Circuit vacated and remanded for resentencing.

On remand (pre-Gall), the district court varied again, but only down to 36 months. In doing so, it indicated that any greater variance would only result in another reversal from the Fourth. At a post-sentencing bond hearing, the court said if it were not "laboring under the Fourth Circuit's constraints I would have done something considerably different." Not surprisingly, Curry appealed. Equally unsurprisingly, the Fourth Circuit affirmed the sentence. Noting that it could only pass judgment on the sentence actually given ("That the district court judge expressed frustration with the law does not make the law any less binding"), the court concluded that the 36-month sentence imposed by the district court was reasonable.

Cocaine Purchase for Personal Use Triggers 843(b) Liability

US v. Abuelhawa: A was charged and convicted of using a communication facility to facilitate a crime, the distribution of cocaine, in violation of 21 USC 843(b). The conviction was based on a two groups of phone calls between Abuelhawa and Said, from whom Abuelhawa purchased cocaine. After he was arrested, Abuelhawa gave a statement in which he explained that Said was his dealer. Abuelhawa was sentenced to 24 months in prison.

On appeal, Abuelhawa unsuccessfully made two arguments. First, he argued that a conviction under 843(b) couldn't be sustained if the crime that was facilitated was the simple distribution of drugs for personal use. Noting that the circuits are split on this issue, the Fourth Circuit focused in on what it meant to "facilitate" a crime, giving that word its plain meaning. The court also noted that the statute prohibits the use of the communication facility to commit a felony, but doe not identify whose felony it must facilitate. As a result, the court concluded that Abuelhawa's use of the phone facilitated Said's distribution of cocaine to him, as it made the distribution easier. That Abuelhawa's simple possession of cocaine is not a felony is "simply irrelevant." Second, Abuelhawa argued that the evidence was insufficient to sustain his conviction because any actual distribution of cocaine as a result of the two sets of phone calls. After reviewing the evidence, the Fourth Circuit rejected that argument and affirmed Abuelhawa's conviction.

No Jury Finding on Drug Weight Doesn't Undermine Guilty Verdict

US v. Reid: Reid and his co-defendants were charged with (among other things), conspiracy to distribute more than 50 grams of crack and murder. Reid acted as a sort of middle man, purchasing powder cocaine for conversion into crack as well as amounts of crack that were then sold to street-level dealers. After being arrested on state charges, Reid told co-defendants he thought he was set up by an informant, who was eventually murdered. Reid's role in the actual killing was to provide transportation and disposal of the murder weapon. At trial, Reid was convicted, but on the crack count the jury did not return a verdict indicated the specific amount of crack involved. He was sentenced to 240 months in prison on the conspiracy charge and life on the murder charge.

On appeal, Reid argued (via plain error) that the district court's instructions left the jury with three options: convict of conspiracy involving more than 50 grams of crack, convict of more than 5 but less than 50 grams of crack, or acquit. The Fourth Circuit agreed, in a strange way, holding that the district court did indeed err in its instructions to the jury, but only because it tied the crack amounts to a "guilty" verdict in the first place. As the Fourth explains:

in order to obtain a conviction on Count 1, the government was required to prove that (1) an agreement to possess cocaine with intent to distribute existed between two or more persons; (2) Reid knew of the conspiracy; and (3) Reid knowingly and voluntarily became a part of this conspiracy. In instructing the jury that a specific drug quantity was an element of conviction under § 841(a), the district court misstated the law and heightened the government’s burden of proof.

(citation omitted). So there was error and it was plain, but Reid could not show prejudice because the sentence he received on that count (240 months) was the maximum allowed for a conviction without regard to a specific amount of crack. The court also rejected Reid's sufficiency challenge to his convictions.

Double Jeopardy No Bar to Arson, Mail Fraud, and Use of Fire Convictions

US v. Martin: Martin was the owner of an unsuccessful convenience store in Virginia. She was deep in debt, both the creditors and the commonwealth, and failed when she tried to sell the business. Unfortunately, at that point, she told others that she would "torch" the store "if she had the guts" and that "it's not going to be long and I'm not going to have to worry about any of it anyway." Ultimately, the store burned down. After collecting insurance proceeds for the fire, Martin was charged with staging the whole thing for her benefit. Specifically, she was charged with arson, using fire to commit another felony, mail fraud, and making false statements. She was convicted by a jury on all charges.

On appeal, Martin raised two arguments. First, she argued that the evidence was insufficient to sustain convictions for arson and use of fire. The Fourth Circuit rejected that argument, noting that while there was no direct evidence linking Martin to the fire, there was sufficient circumstantial evidence (motive, she was the last person in the building, lying to investigators) for a reasonable jury to conclude that she was guilty. Second, martin argued that her simultaneous convictions for arson, use of fire, and mail fraud violated the Double Jeopardy clause. Again, the Fourth Circuit disagreed, holding that separate sentence for use of fire was clearly meant to apply as punishment in addition to the underlying crime (mail fraud, in this case) and that arson and use of fire are separate offenses when analyzed under the Blockburger test.

Civil Arrest Does Not Start Speed Trial Clock

US v. Rodriguez-Amaya: Rodriguez-Amaya was deported in 1998 to El Salvador following a conviction in Virginia for sexual assault. He returned to the United States without permission and was arrested by ICE on May 17, 2005. On June 6, 2005, Rodriguez-Amaya's custody was transferred from ICE to Virginia, which sought to prosecute him for failure to register as a sex offender. While in Virginia custody, a federal criminal warrant charging Rodriguez-Amaya with illegal reentry was obtained on July 21, 2005. Rodriguez-Amaya was returned to ICE custody on October 7, 2005. It was not until October 27, 2005, that the outstanding criminal warrant was executed and Rodriguez-Amaya was transferred to the USMS. On November 23, 2005, Rodriguez-Amaya was indicted. Prior to trial, he moved to dismiss the indictment under the Speed Trial Act due to the delay from being returned to ICE custody on October 7 to indictment on November 23. The district court denied the motion, convicted Rodriguez-Amaya, and sentenced him to 41 months in prison.

On appeal, the Fourth Circuit affirmed the district court's denial of Rodriguez-Amaya's motion. The court held that the Speedy Trial Act clock did not start running until the federal criminal warrant was executed on October 27. The court followed the lead of other Circuits and concluded that the civil detention, as in this case by ICE, does not trigger the running of the STA clock. However, the court also held that there is a "ruse exception" to that rule, which applies when "the 'primary or exclusive purpose of the civil detention was to hold [a defendant] for future criminal prosecution.'" The court had "little trouble" concluding that there was no evidence of such shenanigans in this case.

Court Defines "Abuse" in Sex Offnse/Immigration Context

US v. Diaz-Ibarra: Diaz-Ibarra was deported in 1995 following his conviction in Georgia for committing an "immoral or indecent act to or in the presence of a" minor. After returning to the United States without permission, Diaz-Ibarra pleaded guilty to illegal reentry following an aggravated felony. At sentencing, the probation officer recommended that Diaz-Ibarra's sentence be increased 16 levels because his Georgia conviction constituted a crime of violence under USSG 2L1.2(b)(1)(A)(ii). The district court overruled Diaz-Ibarra's objection and applied the enhancement, sentencing him to 78 months in prison.

On appeal, the Fourth Circuit affirmed, concluding that Diaz-Ibarra's prior conviction was a crime of violence. Specifically, "crime of violence" in 2L1.2 is defined as including "sexual abuse of a minor." Diaz-Ibarra conceded that his offense was "sexual" and involved a minor, but argued but it was not "abuse." Applying a definition of abuse that goes well beyond the common sense one, the court concluded that "abuse" included situations where there is no physical contact between the assailant and minor where the assailant intends to gratify himself sexually, regardless of the effect on the victim. Given that definition, Diaz-Ibarra's Georgia conviction constituted sexual abuse of a minor and, thus, a crime of violence.

Supreme Court's Decision in Lopez Applies at Sentencing

US v. Matamoros-Modesta: Matamoros-Modesta pleaded guilty to illegal reentry. At sentencing, it was determined that he had previously been deported following an "aggravated felony" conviction, in Texas, for possession of cocaine. As a result, his offense level doubled and he was sentenced to 37 months in prison. Between plea and sentencing, the Supreme Court decided Lopez v. Gonzales, 127 S.Ct. 625 (2006), in which the Court held that, in the immigration context, a prior conviction for a drug offense that was a felony offense under state law but not the Controlled Substances Act was not an "aggravated felony." But nobody noticed, so the aggravated sentence was imposed.

On appeal, the Government and defense agreed that the district court plainly erred by imposing the enhanced sentence. The Fourth Circuit agreed, as well, following the lead of numerous other courts in importing Lopez's holding into the sentencing process. It therefore vacated Matamoros-Modesta's sentence and remanded for resentencing.

Congrats to the WDNC FPD office on the win!

Failure to Inform Defendant of Possible ACCA Impact Requires Vacation of Guilty Plea

US v. Hairston: Hairston was charged with 31 separate offenses, including 14 felon-in-possession charges and 8 924(c) charges. He entered into a plea agreement by which he pleaded guilty to two of the 924(c) charges, with the other six dismissed, and all the other offenses. The parties agreed that with the application of the 924(c) mandatory sentences, he was subject to a term of at least 30 years in prison. However, prior to sentencing it was discovered that Hairston qualified as an Armed Career Criminal, which subjected him to a term of at least 45 years in prison (30 years on the 924(c) charges plus 15 for any of the felon-in-possession charges). At sentencing, the Government admitted that the parties "overlooked" the possibility of the ACCA applying. Hairston himself objected to a 45-year sentence and asked to withdraw his plea. The district court denied the motion, noting that Hairston was never promised he would only receive a 30-year sentence and that his Guideline range on the various offenses, without taking the ACCA into account, was 168-210 months. Therefore, any confusion about the potential sentence was "not significant."

On appeal, the Fourth Circuit vacated and remanded. Hairston argued that the district court failed in not notifying him at the plea hearing that he could be subject to a 15-year term on the felon-in-possession charges. The Government conceded the error. The Fourth Circuit agreed, noting that while Rule 11 does not require courts to inform defendants of what Guideline range they might face, it does require notification of any applicable statutory ranges. Furthermore, the error was not harmless. Without the ACCA enhancement, the district court could have imposed a minimal non-Guideline sentence on the counts without mandatory minimum sentences, effectively sentencing Hairston to only(!) 30 years in prison. For a remedy, the Fourth Circuit vacated Hairston's guilty plea with respect to all counts, not just the felon-in-possession counts, as requested by the Government.

Court Rejects Diminished Capacity Argument, Touches on Crack Guideline Changes

US v. Brewer: Brewer pleaded guilty to distributing crack. Prior to sentencing, it was established that Brewer suffered from serious mental deficits, with a tested IQ as low as 59. At sentencing, he argued for a downward departure under USSG 5K2.13 for diminished capacity. The court rejected that invitation, because based on a review of Brewer's evidence that he was "impulsive and a follower" and therefore posed a danger to society. The court then imposed a sentence of 70 months in prison. It's unclear from decision if Brewer also asked for a Booker variance on similar grounds.

Brewer appealed his sentence, which the Fourth Circuit affirmed. First, the court reasserted its holding that it cannot review a district court's decision not to depart except on the ground that the court was incorrect in its ability to depart. As there was no question that the district court knew it could depart and chose not to do so, the Fourth left that decision intact. Second, the Fourth Circuit held that Brewer's sentence was not unreasonable, given that it was at the bottom of the advisory Guideline range. The court took the opportunity, in the course of its reasonableness review, to address the recent change to the crack Guideline, holding that it would not remand the case for the district court to consider the amended Guidelines, leaving that to a future proceeding under 18 USC 3582(c)(2).

Aggravated ID Theft Requires Use of Specific Person's Information

US v. Mitchell: Mitchell undertook a scheme in which he bought merchandise with a fake ID using counterfeit checks and later returned the items for cash refunds. The name on the checks and the fake ID was "Marcus Jackson" who had a specific listed address. Mitchell was charged with bank fraud and aggravated identity theft. He pleaded guilty to the fraud charge, but had a bench trial on the identity theft, testifying that he didn't know anyone named "Marcus Jackson" and got the name out of a phone book. Although police did identify two Marcus Jacksons in the state, neither address matched the one on the ID and checks. Mitchell argued that to secure a conviction for aggravated identity theft, the Government had to prove the use of another specific person's identity, while the Government argued that it was sufficient that someone with the same name was located as a potential victim. The court convicted Mitchell.

On appeal, the Fourth Circuit reversed. The court held that the plain meaning of 18 USC 1028A requires the use of a means of identification that "may be used to identify a specific individual." Ordinarily, a name standing alone would not be sufficient to meet that requirement. While a couple of other bits of information on the fake ID matched one of the real Marcus Jacksons, they were so vague as to not show that Mitchell was presenting himself as a real Marcus Jackson. Because only the name in this case could be traced to a specific person, the Government failed to meet its burden of proof. Mitchell's conviction was reversed and his case remanded for resentencing.

Acquittal on Substantive Drug Charges Doesn't Bar Further Prosecution for Drug Conspiracy

US v. Yearwood: Yearwood was originally charged with conspiracy to distribute crack and distribution/aiding and abetting the distribution of crack. At his first trial, he was acquitted on the distribution charge and the jury hung on the conspiracy charge. At a second trial on the conspiracy charge, Yearwood argued that Double Jeopardy precluded the second prosecution, arguing that in acquitting him on the distribution charge the first jury resolved an issue of ultimate fact needed to find him guilty on the conspiracy charged. The district court rejected that argument and Yearwood was convicted

The Fourth Circuit affirmed, concluding no Double Jeopardy violation occurred. First, the court determined that distribution and conspiracy have distinct elements and thus are not the same offense. It rejected Yearwood's attempt to link the "knowingly associate" element of aiding and abetting with the conspiracy element of "knowingly and voluntarily" becoming part of the conspiracy. Second, the court concluded that the collateral estoppel element of Double Jeopardy was not violated, as the conspiracy charge did not require the relitigation of factual issues resolved in the first trial. In doing so, it followed cases from the Fifth and Eleventh Circuits. The court also turned away Yearwood's challenge to the sufficiency of the evidence underlying his conviction.

No Error Where Distrcict Court Doesn't Know Whether Guidelines Are Still Mandatory

US v. Go: Go was a gopher in a methamphetamine distribution conspiracy. For his role in the offense - mostly running errands related to the conspiracy in return for methamphetamine - he was convicted after a jury trial of conspiracy to distribute more than 50 grams of methamphetamine. At sentencing, Go's advisory Guideline range was determined to be 188 to 235 months. Go argued for a variance down to the 10-year mandatory minimum, while the Government argued for a sentence at the bottom of the advisory Guideline range. The district court imposed a sentence of 188 months in prison.

On appeal, Go argued that the district court incorrectly concluded that it could not impose a sentence below the bottom of the advisory Guideline range without committing reversible error. At sentencing, the district court said, in part:

[The presumption of reasonableness] may mean that the guidelines are still mandatory. I don't know. But it sure sounds like when they say that they're reasonable that they're saying if a judge gives a sentence outside the guidelines, then it's per se not reasonable.

There are cases that say that it is not a proper application of the law and maybe some day the Supreme Court will decided that [see Rita, Gall, etc.]. But the point is at this moment, I'm bound to apply the guidelines as a reasonable range of punishment.

* * *

Congress has set forth a range of punishment that I have to choose from, and that range of punishment is what I said earlier, 188 to 235 months.

The Fourth Circuit rejected Go's argument, deriding his "selective" use of the record, and holding that the district court ultimately imposed the sentence it did because it was consistent with the other sentences handed out in the case. The court held that it was "clear from the sentencing record that the district court was not under the misapprehension that it could not impose a sentence outside of the advisory Guidelines range." The court also rejected Go's argument that his sentence was unreasonable.

It's worth noting that, in a footnote, the court noted that Go did not claim that the district court treated the Guidelines as presumptively reasonable and that "if the district court had done so, it would have erred." Still, it's hard to see how a district court that concludes the Guideline range is the "range of punishment that I have to choose from" set forth by Congress hasn't done just that.

Court Affirms Drug & Gun Convictions

US v. Wallace: Wallace was convicted by a jury of several drug and gun offenses and sentenced to 248 months in prison. Wallace's activities came to light after local police were called to an apartment he shared to investigate a domestic disturbance. A maroon van with two men in it was seen leaving the apartment complex and later stopped. Wallace and a codefendant (who pleaded guilty) were inside, along with several firearms, drugs, and cash.

On appeal, the Fourth Circuit affirmed both Wallace's convictions and his sentence. The court rejected Wallace's argument that he should have been granted a mistrial or immediate curative instruction when a Government witness started to discuss the details of the domestic dispute, which had been ruled off limits in a pretrial order. Counsel objected immediately, but waited until a break in the proceedings to ask for a mistrial or curative instruction. The trial court denied the mistrial and gave a curative instruction during the closing jury charge. The Fourth Circuit found no error. The court also rejected Wallace's challenge to the sufficiency of one of the firearm convictions, using a plain error review (counsel failed to move for a judgment of acquittal at trial). Finally, the court held that Wallace's sentence, within the Guideline range, was reasonable.

Government Victory in Mann Act Appeals

US v. Singh: Singh and co-defendant Patel were managers of motels in Martinsburg, West Virginia. They became involved in a prostitution ring run by Susan Powell in which prostitutes recruited from West Virginia, Virginia, and Maryland would use rooms in Singh and Patel's motels to conduct their business. Powell would communicate with the prostitutes using the motel switchboards and had an arrangement with Singh and Patel wherein they would be paid for use of the rooms, but the rooms would be empty early enough in the afternoon to allow them to be rented to "regular" customers. Singh, Patel, and the company that owned Patel's motel were charged and convicted of conspiracy to violate the Mann Act, substantive violations of the Mann Act, conspiracy to launder money, and substantive money laundering counts. An order of forfeiture seizing more than $670,000, in addition to the two motels. Following post-trial motions, the district court vacated all the convictions against the company (and accompanying forfeitures) and the money laundering convictions against Singh and Patel. They were sentenced to 15 months in prison.

The Government appealed the district court's post-trial rulings and the Fourth Circuit reversed. As to the money laundering charges, the court rejected the district court's reasoning that the money Powell's prostitutes paid to Singh and Patel for the use of the motel rooms were separate from the underlying Mann Act offense. The court concluded that the Mann Act violation was complete once money was paid for sex and the later passage of some of those funds to the motel managers promoted that unlawful activity. The court also reversed the district court's conclusion regarding the company, holding that Patel's actions at his motel were undertaken within the scope of his employment.

Singh and Patel also appealed. First, the challenged the sufficiency of the evidence supporting the Mann Act convictions. They argued that they neither induced the prostitutes' interstate travel nor knew of Powell's inducements. The Fourth Circuit rejected that argument, noting that the Singh and Patel required the prostitutes to fill out registration forms on which they listed their out of state addresses. The court also noted that given Martinsburg's proximity to Virginia, Maryland, and Pennsylvania, it was reasonable that Singh and Patel knew that Powell would recruit from those areas. Second, the court rejected the argument that the district court erred by preventing Singh and Patel from offering evidence that Powell's daughters were involved in the prostitution ring and Powell made a deal with the Government party to shield them from prosecution. Third, the court rejected Singh and Patel's Batson argument regarding the only minority juror struck by the Government. Finally, the court held that Singh and Patel were properly tried together.

As a result, the entire case was remanded to the district court for resentencing in light of the original verdict being reinstated.

Jury Trial Waiver Without Court Examination OK'd

US v. Boynes: Boynes was charged with drug and firearm offenses arising from "a cocaine deal that degenerated into a murder." Prior to trial, Boynes requested new counsel, alleging that the relationship with his initially appointed counsel had become "adversarial." New counsel was appointed. Eventually, Boynes also requested that his new counsel be replaced, due to the "adversarial" nature of their relationship. That request was denied and trial preparations went forward. Prior to trial, counsel met with Boynes, who requested that he be tried by a judge, rather than a jury. Counsel filed the motion, the Government agreed, and the district court accepted the waiver. No hearing was held on the motion to waive a jury trial.

At trial, Boynes was convicted on all counts. Before sentencing, Boynes filed a bar complaint against counsel, resulting in the appointment of a third attorney. That attorney then filed a motion for a new trial arguing, for the first time, that Boynes's waiver of a jury trial was not knowing and voluntary. After a hearing, which included testimony from counsel #2 but not Boynes, the district court denied the motion. Boynes was sentenced to life in prison, plus 480 months.

On appeal, Boynes argued that his jury trial waiver was not knowing and voluntary. Specifically, he argued that the district court should have undertaken some on the record inquiry into Boynes's wishes, particularly given the strained relationship he had with counsel. The Fourth Circuit disagreed, 2-1, and upheld the conviction. The court held that, although it is better practice to make such inquiries, it is not required by either the Rules of Criminal Procedure or the Sixth Amendment. Dissenting, Judge Gregory argued that the determination of whether a waiver of a jury trial is knowing and voluntary cannot be made post-trial and therefore must be resolved before a bench trial goes forward.

Court Affirms Involuntary Servitude Convictions Against Hearsay, Crawford Challenges

US v. Udeozor: Udeozor: and her (now former) husband helped a 14-year old Nigerian girl emigrate to the United States. They told her family that she would be enrolled in school, but she wasn't. In fact, she became basically an indentured servant, working for the family for five years without payment or any kind of compensation. She was repeatedly subjected to physical, emotional, and (by Udeozor's husband) sexual abuse. Udeozor was convicted of conspiracy to hold another in involuntary servitude and harboring an alien for commercial advantage or private gain. She was sentenced to 87 months in prison and to pay restitution to the victim of over $100,000.

On appeal, the Fourth Circuit rejected several of Udeozor's arguments on the way towards upholding the convictions. First, the court held that the district court did not err by admitting evidence of Udeozor's husband's sexual abuse of the victim during Udeozor's trial. The court concluded that the use of sexual abuse to maintain control of the victim was part of the conspiracy between Udeozor and her husband, even if there was conflicting evidence as to whether she knew about the abuse. Second, the court held that recordings of phone conversations between Udeozor's husband and the victim were properly admitted as statements against penal interest under FRE 804(b)(3). The court also rejected Udeozor's confrontation argument, holding that her husband's statements (made to the victim who was acting at police behest) were not "testimonial" and thus not subject to a Crawford analysis. Finally, the court held that the district court did not abuse its discretion by using a two-page verdict form, with three special findings (on sentencing issues) on the second page.

In-Store Movement During Roberry Supports Abduction Enhancement

US v. Osborne: Although the court sets out the facts in great detail, the short version is that Osborne robbed a Walgreen's pharmacy in Virginia. He was driven there, and presumably away, by a co-defendant, McCrae, which whom he discussed the robbery beforehand. During the robbery, Osborne brandished a knife as a means to get the pharmacist and technician to provide him with pills and to accompany him to the front door as he escaped. Both Osborne and McCrae were charged with conspiracy to rob a pharmacy, robbery of a pharmacy, and possession of OxyContin with intent to distribute. Osborne pleaded guilty to the robbery and possession charge, but went to trial on the conspiracy charge and was convicted (as was McCrae on all three counts). He was sentenced to 151 months, the top of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed both his conviction and sentence. Regarding the conviction for conspiracy, Osborne argued that while the evidence was sufficient to support his role in the robbery and possession, it wasn't sufficient to prove that he conspired with McCrae. The Fourth Circuit disagreed, noting evidence of their cooperation before and after the robbery (some of it provided by Osborne's son, who overheard the preparations). As to sentencing, first Osborne argued that his Guideline should not have been enhanced for abducting the pharmacist and technician because he did not take them out of the Walgreens - in other words, to "another location." The court rejected that argument (partly relying on previous unpublished Fourth Circuit authority) and concluded that moving the pair from one part of the store to another met the definition. Second, the court rejected Osborne's argument that a prior conviction for shoplifting should not have been included in his criminal history score.

Office Experience Can Aid in Production of Reasonable Suspicion

US v. McCoy: McCoy & his girlfriend pulled into the parking lot of a grocery store in Loudon County, Virginia, that was under the surveillance of Loconti, an experienced narcotics officer. Loconti knew that a majority of drug deals in Loudon County took place in those kinds of parking lots. A tow truck pulled into the lot near McCoy. The driver of the truck and McCoy exchanged words and eventually drove down the street about 1/4 mile to another grocery store parking lot. Loconti followed. In the new lot, McCoy got out of his car, got in the truck for a few minutes, got out, and returned to his car. Loconti was convinced that a drug deal had just taken place. As McCoy walked back to his car, Loconti approached him and signaled the truck to stop. Instead, it sped away.

Loconti approached McCoy and, eventually, placed him in handcuffs. A pat-down search of McCoy produced nothing, but McCoy's girlfriend helpfully responded to Loconti's query admitting that McCoy had participated in a drug deal. A search of the car produced marijuana and cash, which McCoy admitted were his and that he had crack cocaine concealed in his hindquarters. That evidence was supplemented by a search of McCoy's home several months later. McCoy filed a motion to suppress that evidence after being charged with drug and firearms charges. The district court granted the motion, holding that when Loconti seized McCoy, he lacked reasonable suspicion to believe that criminal conduct was afoot.

The Government appalled and the Fourth Circuit reversed, 2-1. The court held that the district court improperly focused on what the officer didn't know about what was going on, rather than the totality of the information he did have. Particularly important to the court was Loconti's previous experience with drug deals occurring in grocery story parking lots. The myriad of potentially innocent behaviors that Loconti observed were sufficient, with his experience, to support reasonable suspicion. However, the court was quick to note that "[t]his is not to say that a wealth of experience will overcome a complete absence of articulable facts." District Judge Wilson concurred, emphasizing the importance of the fact that the truck sped away when Loconti went to intercept McCoy. Judge Gregory dissented, arguing that the majority's "holding renders law enforcement - not the courts - the sole arbiter of what qualifies as reasonable suspicion."

Exigent Circumstances Don't Save Warrantless Search of Home

US v. Mowatt: Mowatt was at his apartment when police came and knocked on the door. The police were sent there after receiving complaints about loud music and the odor of marijuana. After they knocked, the officers heard someone moving around inside. The music was turned down and they could hear the sound of an aerosol being sprayed. Mowatt talked the officers, but refused to open the door. After being reported ordered to do so, Mowatt cracked the door, but refused to let the officers inside and asked if they had a warrant. Officers were concerned that Mowatt might have a weapon in his hand, as it was shielded from view. They then forced their way into the apartment and wrestled Mowatt to the floor. He wasn't holding anything in his hand. A quick check of the apartment uncovered a gun. By that time, Mowatt struggled with the officer(s) restraining him, which ended when he was thrown against the refrigerator, which conveniently opened. Inside, officers saw several hundred pink pills. They were later seized (pursuant to a search warrant) and determined to be ecstasy. The search also uncovered more guns, body armor, and $20,000 in cash.

After being indicted for drug and firearms offenses, Mowatt moved to suppress the evidence against him, arguing that the officers engaged in an unlawful warrantless search when they barged into his home. The district court denied the motion, holding that the officers had probable cause to arrest Mowatt for marijuana possession and that a warrant wasn't required because they arrived at the apartment to "resolve a noise complaint" rather than search for drugs. Mowatt went to trial, was convicted on all counts, and was sentenced to 197 months in prison.

On appeal, the Fourth Circuit unanimously reversed. First, the court rejected the Government's argument that forcing Mowatt to open his door and thus being able to see inside was not a "search" within the meaning of the Fourth Amendment. Second, the court held that even if the officers had probable cause when the door was opened, they lacked a warrant and there were no exigent circumstances to justify proceeding without one. Third, the court held that the search warrant eventually obtained (after the forced entry, struggle with Mowatt, etc.) was tainted by the illegal entry. Mowatt's convictions were reversed and his case returned to the district court for further proceedings.

Findings Needed to Support 3A1.4 Terrorism Enhancement

US v. Chandia: Chandia was charged with conspiracy and a substantive count of providing material support to terrorists and conspiracy and substantive count of providing material support to a foreign terrorist organization. The charges arose from Chandia's ties to a group called Lashkar-e-Taiba (LET), with whom he attended a training camp in Pakistan. He also provided assistance to an LET member who came to the United States to secure equipment and support for LET. After a jury trial, Chandia was convicted on all counts except the substantive count of providing material support to terrorists. At sentencing, the district court applied the terrorism enhancement under USSG 3A1.4, jumping Chandia's advisory Guideline range from 63-78 months to 360 months to life. The district court imposed the statutory maximum sentence of 180 months in prison.

On appeal, Chandia challenged both his convictions and sentence. The Fourth Circuit rejected the arguments Chandia raised with regards to his conviction. First, the court concluded the affidavits submitted to obtain warrants to search Chandia's home and car were sufficient to support probable cause and that Chandia was not entitled to a Franks hearing on the issue of inaccuracies/omissions from those affidavits (using a plain error standard because Chandia did not specifically request a Franks hearing in the district court). Second, the court rejected several constitutional arguments against the statutes under which Chandia was convicted, relying on the prior resolution of those issues in US v. Hammoud, 381 F.3d 316 (4th Cir. 2004). Third, the court rejected Chandia's argument that the counts on which he was convicted were duplicitous and violated due process. Finally, the court rejected Chandia's argument that the district court erred by allowing the Government to play for the jury excepts of a CD-ROM video glorifying the 9-11 attacks that was found in Chandia's home. Even if it was error (which the court doesn't say), the error would be harmless given the limited roll of the excerpts at trial.

While sustaining Chandia's convictions, the court did vacate his 180-month sentence. The court concluded that, although the district court utilized the Guideline range provided by the 3A1.4 terrorism enhancement, it failed to make specific findings supporting the enhancement. The court rejected the idea that the mere fact that Chandia was convicted of one material support count justified the enhancement. In a footnote, the court noted that it was not resolving the issue of the proper burden of proof for 3A1.4 enhancements (preponderance of the evidence v. clear and convincing evidence), leaving the issue open for a case "where we are presented to relevant findings."

Notice of Variance Must Prompt Parties to Make Arguments

US v. Fancher: Fancher was investigated by police after reports that he had sexually molested a nine-year-old girl. During the investigation, authorities uncovered numerous images of child pornography in Fancher's home. Fancher pleaded guilty to one count of possession of child porn. Due to a previous conviction for sexual abuse of a minor, Fancher's statutory sentence was between 15 and 40 years in prison.

Prior to sentencing, the probation officer calculated Fancher's Guideline range to be 180-210 months. The PSR mentioned "mitigating" factors and also that "[g]iven the defendant's criminal history and the ages [of] and relationship to his victims[,] the Court may which to consider a sentence pursuant to [3553(a)] to meet the objectives of sentencing." After the PSR was completed, the probation officer was contacted by the mother of a 16-year-old girl to whom Fancher had been writing letters while incarcerated proclaiming his love for her and requesting (among other things) that she send him pictures. At sentencing, Fancher argued for a 180-month sentence, while the Government sought a 210-month sentence. Concluding that Fancher was beyond rehabilitation, the district court imposed the maximum sentence of 480 months in prison.

On appeal, the Fourth Circuit vacated Fancher's sentence. Applying US v. Spring, 305 F.3d 276 (4th Cir. 2002), the court held that while the language in the PSR was sufficient to meet the notice requirements of Rule 32(h), it was not adequate to prompt the parties to present arguments about the propriety of a variance. In Spring's words, the PSR "informed counsel that it needed to prepare arguments on this issue, but not that they needed to present them." Applying harmless error review (Fancher objected to the lack of notice after sentence was imposed) and concluding that, based on post-sentencing proffers made by counsel, that the district court's concerns would have been addressed (if not alleviated), the court held that the error was not harmless. Fancher's case was remanded for resentencing.

Nice work by the FPD office in the Northern District of WV on the win!

Successive Habeas Rule Clarified

US v. Blackstock: Blackstock was convicted in 1993 and filed a request seeking discovery from the Government in 2001. The district court, without notifying Blackstock, treated that filing as a petition under 28 USC 2255, because it mentioned that Blackstock's conviction was no longer valid under Apprendi. The district court denied the motion. In 2005, Blackstock filed a motion to set aside the district court's order, along with a 2255 petition. The district court denied both, holding that the 2255 petition was a "second or successive" petition and therefore prohibited under the AEDPA.

On appeal, the Fourth Circuit reversed, agreeing with Blackstock that the court's prior decision in US v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), was not consistent with the Supreme Court's later decision in US v. Castro, 540 U.S. 375 (2003). Castro makes notice mandatory in cases like Blackstock's, whereas Emmanuel contained an exception to the notice rule that the district court had applied.

Anonymous Tip Not Sufficiently Corroborated to Support Stop

US v. Reaves: Reaves was stopped in his car on the basis of an anonymous tip that a drug deal had taken place. At the time of the stop, Reaves admitted that he had a gun and was subsequently charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the tip wasn't sufficiently corroborated to provide a basis for the stop of his car. The tip was phoned in to 911 by a person who resolutely refused to provide her name. She claimed to have witnessed what she thought was a drug deal and that one of the folks involved had a gun. The gun belonged to a person driving a "plum-colored" Mercedes, which the tipster proceeded to follow and provide updates as to the its location to the 911 dispatcher (who relayed the info to the officer who eventually made the stop). The tip was the sole basis for the stop. The district court denied the motion and Reaves was convicted after a jury trial.

On appeal, the Fourth Circuit reversed. Applying the Supreme Court's decision in Florida v. J.L (as filtered through the Fourth's decision in Perkins), the court easily concluded that the anonymous tip was not sufficiently corroborated to provide a basis for the stop, rejecting several Government arguments to the contrary. First, the court rejected the Government's argument that the caller provided "predictive" details of Reaves's route, correctly noting that "predicting" involves some time of projection into the future, not merely the passing on of information gleaned from following someone. Second, the court rejected the Government's argument that the tip gained reliability from the caller's staying on the line with the dispatcher, even though she wanted to remain anonymous. Finally, the court concluded that the fact that the caller was providing a "nearly contemporaneous" report of criminal activity was not sufficient to support the stop.

Congrats to the FPD office in Baltimore on the victory!

Fourth Lays Out Post-Gall Procedures, Upholds Downward Variance

US v. Pauley: Pauley pleaded guilty to one count of possessing child pornography. The unusual facts of the case involve Pauley, a middle school (later high school) teacher, being approached by a female student who asked whether he was interested in paying her for nude pictures she took of herself. Pauley agreed and pictures were exchanged during successive school years. When both Pauley and the student moved to high school, she proposed to take pictures of herself and another female student. The pictures were taken, but the other student informed authorities, who recovered the pictures.

At sentencing, the district court calculated Pauley's advisory Guideline range to be 78 to 97 months in prison. After hearing arguments from the parties, the district court imposed a sentence of 42 months in prison, for numerous reasons:

(1) in buying the nude photographs each time, Pauley initially was approached by the victim with such a proposal; (2) fewer than two dozen pornographic photographs were taken with the victim’s Polaroid camera; (3) the victim’s face did not appear in any of the photographs; (4) Pauley displayed deep remorse; (5) besides the criminal conduct at issue, Pauley was a model citizen and a good father and teacher; (6) as a result of his conviction, Pauley lost his teaching certificate and his state pension; (7) Pauley agreed to a lifetime of supervised release; (8) no other child pornography was found in Pauley’s house; and (9) the counseling Pauley would receive during incarceration would rehabilitate him, allow him to lead a productive life upon release, and make further crimes by Pauley extremely unlikely.

The Government appealled, arguing that Pauley's sentence was unreasonable. The Fourth Circuit unanimously rejected that argument. In doing so, it set forth the procedure to be used in a post-Gall world:

Recently, the Supreme Court decided two cases which together explain in detail the mechanics of Booker’s remedial holding. See Gall v. United States, No. 06-7949, 2007 WL 4292116 (U.S. December 10, 2007); Kimbrough v. United States, No. 06-6330, 2007 WL 4292040 (U.S. December 10, 2007). In Gall, the Court instructed that the sentencing court should first calculate the applicable Guidelines range. 2007 WL 4292116, at *7. This starting point furthers Congress’ desire for efficient administration and nationwide consistency in sentencing. Id. After calculating the Guidelines range, the sentencing court must give both the government and the defendant 'an opportunity to argue for whatever sentence they deem appropriate.' Gall,
2007 WL 4292116, at *7. The sentencing court should then consider all of the §3553(a) factors to determine whether they support the sentence requested by either party. Id.; see also Kimbrough, 2007 WL 4292040, at *10 (noting that, while § 3553(a) requires the sentencing
court to give due consideration to the Guidelines, Booker allows the sentencing court to fashion the sentence in light of other statutory considerations). In so doing, the sentencing court may not presume that the Guidelines range is reasonable. Gall, 2007 WL 4292116, at *7. In the event the sentencing court decides to impose a variance sentence, i.e., one outside of the recommended Guidelines range, the sentencing court 'must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.' Id. As noted by the Gall Court, it is an 'uncontroversial' proposition that a 'major departure should be supported by a more significant justification than a minor one.' Id.

Reviewing Pauley's sentence, the court held that the district court's variance "is reasonable and premised on the factors set forth in §3553(a)."

Congrats to CJA counsel Ben Baily and Deirdre Purdy on the win!

"Custody" Doesn't Turn on Interogator's Assurance That Defendant Is Not In Custody

US v. Colonna: Colonna was convicted by a jury of two counts related to child pornography. The investigation of Colonna began with an FBI agent infiltrating an online file-sharing service dedicated to child porn, which led to the execution of a search warrant at Colonna's home (where he lived with his parents and sister). It took 23 agents to execute the warrant on this vicious criminal. While the search was ongoing, Colonna was interviewed by two of the agents and made inculpatory statements. At no time was he provided Miranda warnings. Colonna moved to suppress his statements, at which time the district court found:

that Colonna was awakened by armed agents and guarded by agents until the search and interview concluded. The home was inundated with approximately 24 officers who gave Colonna and his family members instructions; that is, they told them where to sit and restricted their access to the home. Colonna did not voluntarily request to speak with Agent Kahn. Instead, Agent Kahn requested that Colonna accompany him to a FBI vehicle to answer questions, wherein a full-fledged interrogation took place. Agent Kahn questioned Colonna for almost three hours, albeit with breaks. But, even during these breaks, Colonna was constantly guarded. Although Colonna was not placed under formal arrest, he was told twice that lying to a federal agent was a federal offense. And, at no time was he given Miranda warnings or informed that he was free to leave.

Nonetheless, the district denied the suppression motion, holding that Colonna was not in custody because (1) the agent interviewing him said so and (2) Colonna was not arrested until nearly two months after the search.

On appeal, the Fourth Circuit reversed. The court held that the district court had put entirely too much weight on the agent's statement to Colonna that he wasn't in custody during the search, noting that such statements are but one part of the totality of the circumstances to be considered in such cases. Due to the lack of Miranda warnings, Colonna's statements should have been suppressed. The failure to do so was not harmless. Therefore, the case was remanded for a new trial.

Court Joins Majority in Tax Loss Calculation Circuit Split

US v. Delfino: The Delfinos (husband and wife) ran several computer consulting businesses. The income generated by those businesses, rather than being taken directly by the Delfinos, was put into several trusts. Neither the Delfinos nor the trusts paid taxes on that income. After an audit (with which they refused to cooperate), the Delfinos were indicted for mail fraud and attempted tax evasion. At trial, they relied on a good faith defense based on the advise of a "trust promoter and self-described tax consultant." The jury rejected that defense and convicted the Delfinos on all counts. At sentencing, the tax loss was based on the audit with which the Delfinos did not cooperate and did not take into account deductions which they would have been entitled to take had they paid their taxes on time.

On appeal, the Fourth Circuit turned back the Delfinos' challenges to both their convictions and sentences. First, the court rejected the argument that the trial court improperly excluded the testimony of other people who relied on the same "trust promoter" as the Delfinos, holding that because there was no evidence that those witnesses received the same advice as the Delfinos it was irrelevant to the question of the Delfinos' subjective beliefs. Second, the court held that there was sufficient evidence to support the convictions.

Finally, as to sentencing, the court held that the amount of tax loss was properly calculated. Specifically, the court held that potential deductions should not have been subtracted from the amount of loss because the Delfinos failed to file tax returns as required and cooperate with the initial audit, during which they could have claimed the deductions. Those deductions were therefore waived. There is a split in the circuits on this issue, with the Fourth Circuit joining the Seventh and Tenth Circuits in the majority (the Second Circuit disagrees).

True Threats Can Extort State University

US v. Bly: Bly was a long-time doctoral student at the University of Virginia. After he was dropped from the program, he began to write letters and Emails to the UVa administration claiming that he had been treated unfairly and that his work had been plagiarized.

In one letter, addressed to more than 40 people, Bly made a series of demands backed by threats of violence, referencing the ability to "end elements of long standing dispute with the twitch of my index finger." A cover sheet included practice targets from a shooting range and screaming all-caps text attesting to Bly's proficiency with high-powered rifles. Bly was charged under 18 USC 876(b) with attempting to extort UVa with threats of violence. Bly pleaded guilty to that offense, but only after the district court denied a motion to dismiss on grounds that the letter was First Amendment protected "hyperbolic" political speech and that UVa was a "person" that could be the target of an attempted extortion.

On appeal, the Fourth Circuit followed the district court and affirmed Bly's conviction. First, the court concluded that the letter contained true threats that were not entitled to First Amendment protection. Second, the court concluded that UVa was a person that could be the target of extortion.

Factual Basis Insufficient to Sustain Guitly Plea

US v. Mastrapa: Mastrapa pleaded guilty to being part of a conspiracy to distribute 500 grams or more of methamphetamine. However, Mastrapa had consistently denied that he had any real part in the conspiracy and was nabbed with the meth while helping two strangers (the other co-conspirators) carry some grocery bags into their hotel room. At the guilty plea hearing, Mastrapa brought this up, but the district court relied on a DEA affidavit submitted by the Government as a factual basis to accept the plea. The same issue arose at sentencing, where Mastrapa's counsel suggested that the guilty plea had been an Alford plea. The district court sentenced Mastrapa to the mandatory minimum 120 months in prison.

On appeal, Mastrapa's counsel initially filed an Anders brief. Noting concerns about the guilty plea, the Fourth Circuit requested briefing on the issue and appointed new counsel. After arguments the court concluded that the district court plainly erred by finding that there was a factual basis to support Mastrapa's guilty plea. The court concluded that Mastrapa essentially denied the mens rea element of the conspiracy charge and that it was not proven by the affidavit on which the district court relied.

Court Addresses Prior Convictions in Travel With Intent Case

US v. Kelly: Kelly was a long-haul trucker who routinely hauled loads between North Carolina and the Midwest. He frequently stopped at a truck stop in Charleston, West Virginia, where he became associated with a prostitute named Carder. Over the course of several visits, Carder alleged that Kelly wanted her to procure a young girl with which he could have sex. Carder took these allegations to the local police, with whom she was familiar from various legal problems. Eventually, when Kelly stopped in Charleston on a haul, Carder took money from him to procure the child, in a transaction that produced an audio recording. Kelly was arrested and charged with interstate travel with intent to have sex with a minor. At trial, the Government introduced evidence that Kelly had been convicted of attempted rape of a 12 year old in 1984. Meanwhile, Kelly was not allowed to impeach Carder with a prior conviction from Florida for passing a worthless check. Kelly was convicted and sentenced to 63 months in prison.

On appeal, the Fourth Circuit upheld Kelly's conviction and sentence. First, the court held that the district court properly admitted Kelly's prior conviction under FRE 414 and that it was not unduly prejudicial under FRE 403. Second, the court held that not allowing Kelly to introduce evidence of Carder's prior conviction, if it was error at all, was harmless given the other myriad ways that Carder was impeached at trial. Third, the court rejected Kelly's argument that the evidence was insufficient to prove that his intent to when he traveled to West Virginia on that particular trip was to have sex with a minor. Finally, the court stepped in line with the rest of the Circuit Courts and held that no actual child victim is necessary to sustain a conviction for interstate travel with intent to have sex with a minor. The court also concluded that Kelly's sentence was reasonable.

Plea Agreement Bars Subsequent Prosecutions

US v. Jordan: Jordan and co-defendant Gordon were convicted by a jury of conspiring to commit multiple drug, firearm, and murder offenses arising from the killing of a drug courier (the defendants "forcibly abducted [the victim], took him to another location, and set him on fire."). The conspiracies allegedly took place between 2002 and 2004. Prior to trial, Gordon, moved to dismiss the indictment against him because it was barred under a plea agreement he entered into with the Government in 2002. The district court denied that motion. It also overruled both defendants' objections to the use of hearsay testimony from a deceased co-conspirator during trial.

On appeal, the Fourth Circuit reversed as to Gordon but affirmed Jordan's convictions.

As to Gordon, the court concluded, 2-1, that the 2002 plea agreement barred his prosecution. The agreement was ambiguous as to whether its non-prosecution provision applied only to crimes committed by Gordon at that time or any conduct in which he was engaged. Construing the ambiguity against the Government, the court held that it applied to all conduct, which included the charged conspiracies in the instant case. Therefore, Gordon's convictions were vacated. District Judge Wilson, sitting by designation, would have remanded for further proceedings to determine if extrinsic evidence would show a "mutually agreed upon meaning" to the ambiguous language.

As to Jordan, the statements at issue were made by a co-conspirator who was involved in the murder setup to a friend with whom she lived for a while afterwards. The court held that the statements were not barred under Crawford because they were not testimonial because the co-conspirator would not have reasonably believed her friend would eventually testify about those statements in court. In addition, the court concluded that the statements were admissible as statements against penal interest because they related to the co-conspirator's role in the crime.

Hospital Questioning Not "Custodial"

US v. Jamison: Jamison was driven to the hospital by two friends. When he arrived, he told a police officer hanging around near the front door that he'd been shot. While he was being treated for his wound, Jamison was questioned by that officer regarding how he got shot. The officer had Jamison's hands bagged so they could be tested for evidence of gun shot residue. A detective, who responded to the hospital after word of a shooting had gone out, then questioned Jamison about what happened. Jamison told a different story than he originally told the officer. The detective then examined Jamison's wound and clothing and concluded that they did not match up with Jamison's story. After further questioning, Jamison eventually admitted that he shot himself. He was charged with being a felon in possession of a firearm.

Prior to trial, Jamison sought to suppress his statements at the hospital because he had never been given Miranda warnings while being questioned in police custody. The district court agreed and suppressed the statements. The Government appealed.

On appeal, the Fourth Circuit reversed. The court held that there was no requirement that Jamison be given Miranda warnings because he was never "in custody" of the police. Instead, the restraints on Jamison's liberty that allowed him to be questioned were ones directly related to medical treatment that he sought ("Absent police-impose restraint, there is no custody."). Furthermore, the questioning by police was the type that a reasonable person would expect to occur when he reports that he has been the victim of a violent crime. As for the bagging of the hands, the officer testified that it was a routine procedure done to both potential victims and perpetrators of shootings.

South Carolina Youthful Offender Sentence Is "Serious Drug Offense" Under ACCA

US v. Williams: Williams pleaded guilty to being a felon in possession of a firearm. In the PSR, the probation officer recommended that Williams be treated as an Armed Career Criminal because of three prior qualifying convictions. Williams did not dispute the convictions, but argued that a prior South Carolina drug conviction, for which he was sentenced under the Youthful Offender Act, did not meet the definition of "serious drug offense" in the ACCA, because the maximum term to be served as a Youthful Offender is six years in prison. The district court disagreed and sentenced Williams to 180 months in prison.

On appeal, the Fourth Circuit affirms. The court notes that the ACCA's definition of "serious drug offense" includes only those drug offenses with a statutory maximum penalty of more than 10 years in prison. The South Carolina statute under which Williams was previously convicted provides for a maximum sentence of 15 years. However, if the court exercises its discretion under the Youthful Offender Act, the maximum sentence is only six years. The Fourth Circuit concluded that, for ACCA purposes, the maximum potential sentence was the 15-year term in the violated statute, not the six-year Youthful Offender term. The Youthful Offender designation is entirely discretionary on the state sentencing court's part and the plea colloquy in Williams's case showed that the court could have declined that designation. Therefore, the maximum sentence to which Williams was exposed by that conviction was 15 years, making it a serious drug offense under the ACCA.

Court Upholds Convictions, Sentences In Large Drug Conspiracy Case

US v. Foster: Foster, Moses, and Taylor were all involved in a massive conspiracy to sell drugs in West Baltimore (the statement of facts makes it sound exactly like something out of Homicide: Life on the Street or The Wire). The conspiracy lasted for three years and included multiple murders and a kidnapping. In the end, all three defendants were convicted at trial of conspiracy to distribute more than 50 grams of crack. Foster was also convicted of witness tampering, a 924(c) violation, and carjacking; Moses of three counts of murder in relation to a drug trafficking crime and one 924(c) violation; and Taylor of one count of murder and one count of witness tampering. All three were sentenced to life in prison on the conspiracy count, with concurrent sentences imposed for the other offenses, including life on the murder charges (the jury after the capital sentencing phase recommended life rather than death).

On appeal, the defendants raise many issues that were quickly rejected by the Fourth Circuit. First, the court rejected the argument that the Government, through a statement during closing argument, constructively amended the indictment to widen the scope of the charged conspiracy. Second, the court rejected a claim by Taylor and Moses that the district court's response to a jury question during deliberations regarding who they could have aided and abetted with in relation to one of the murders. Third, the court rejected sufficiency of the evidence arguments raised by all three defendants. Finally, the court rejected the argument that the district court erred by only having the jury determine the amount of drugs attributable to the conspiracy as a whole, rather than to each defendant specifically.

Identity Evidence Suppressable

US v. Oscar-Torres: Oscar-Torres was arrested as part of a project to round up illegal immigrants who were also alleged gang members. It went like this:

On July 22, 2005, ICE agents and Raleigh police officers went to the Fox Ridge Manor apartment complex in Raleigh, the last known address of a number of suspected gang members. Several teams of officers went to individual apartments seeking to arrest specific gang members. One team stationed itself at the only entrance to the complex and stopped all vehicles entering and leaving in order to question the occupants.

The officers stationed at the entrance stopped and questioned Oscar-Torres, among others. In response to their questions, he admitted to being an illegal alien and, at their request, lifted his shirt to display a tattoo that they believed signified gang membership. Without a warrant, the officers then arrested Oscar-Torres and transported him to ICE headquarters . . ..

There he was fingerprinted and interrogated (sans Miranda warnings), during which it was discovered that Oscar-Torres had been previously deported for entering the country illegally. He was charged with illegal reentry.

Prior to trial, Oscar-Torres moved to suppress the evidence against him that was secured as a result of his arrest, including his statements and the fingerprints. The district court concluded that the arrest was illegal and ordered Oscar-Torres's statement suppressed. However, the court refused to suppress the fingerprints, holding that evidence of identity could never be suppressed.

On appeal, the Fourth Circuit reversed. It noted that there was a split in the circuits (and within the Ninth Circuit, apparently) on the issue of whether evidence of identity could be suppressed, stemming from different interpretations of language in INS v. Lopez-Mendoza, 468 US 1032 (1984). The Fourth Circuit adopted the view that the language in Lopez-Mendoza only stands for the proposition that courts are not deprived of jurisdiction over a defendant because of an illegal arrest. It therefore reversed the district court's blanket rule and remanded for further proceedings. On remand, the court is to examine whether the fingerprints were taken with investigatory purposes in mind (not OK) or as part of the administrative arrest/booking process (OK).