US v. Herder: Herder was confronted in a parking lot by an officer who had followed his vehicle from a "park and ride" commuter lot known for drug activity. Herder's driving was suspicious because it was "overcautious" - "keeping under the speed limit and signalling well in advance of turns." Herder consented to a search of his car, which uncovered 21 bags of crack cocaine and some marijuana in false bottom containers. Herder was in possession of more than $1000 in cash. He was charged with possession of marijuana and more than five grams of crack, both with intent to distribute. He was convicted on both counts, although the jury found only 3.8 grams of crack were involved, at trial and sentenced to 41 months prison and the forfeiture of the cash in his possession at the time of his arrest.
On appeal, Herder challenged his convictions, sentence, and order of forfeiture. The Fourth Circuit affirmed his convictions and order of forfeiture, while vacating the sentence. As to the convictions, Herder made two arguments. First, he argued that the evidence was not sufficient to establish that he knowingly possessed the drugs found in his car. At trial, Herder presented testimony from his fiance that the car was used to make deliveries for their T-shirt business and, as a result, collects a lot of "junk" and that he had made such a delivery shortly before the search. The court rejected that argument, calling the evidence "more than ample" to sustain the convictions. Second, Herder argued that the district court erred by failing to give his requested instruction with regards to possession, particularly that the presence of drugs in a car driven by the defendant was not alone sufficient to establish possession. The court concluded that the district court's charge to the jury "substantially covered" Herder's request.
As to his sentence, Herder argued it was procedurally unreasonable because the district court did not understand its ability to vary from the Guidelines at sentencing. The court agreed that the district court held that mistaken belief and, further, had imposed sentence before Herder had a chance to argue the matter. Finally, as to the forfeiture, the court formally adopted the "substantial connection" standard test to determine whether property is subject to forfeiture and concluded that the evidence was sufficient to demonstrate that connection in this case.
Judge Niemeyer dissented on the sentencing issue, arguing that the record did not show that the district court failed to consider or did not know it had the authority to deviate from the Guideline range.
Congrats to the EDVA Defender office on the win!
Thursday, February 18, 2010
Court Affirms Loss Calculations Based on Sampled Data
US v. Mehta: Mehta was a tax preparer in Maryland who would prepare tax returns for clients that contained phantom deductions beyond those which the clients related to him. He would then submit the returns electronically to the IRS and, via BankOne, participate in a program whereby the bank cut a check for the taxpayer, with the bank later taking possession of the actual refund from the IRS. Mehta was convicted at trial of multiple counts of aiding and abetting the preparation of false tax returns and wire fraud. He was sentenced to 48 months in prison.
On appeal, Mehta challenged both his wire fraud convictions and his sentence. The Fourth Circuit affirmed on all counts. First, Mehta argued that the district court should have granted his motion for acquittal as to the wire fraud counts both because the evidence was insufficient to support convictions and that there was a variance between the indictment and the proof at trial. After reviewing the evidence, the court concluded that it was sufficient to sustain the convictions. As for the variance, the court concluded that the discrepancy as to which particular states the defrauded wires travelled through was not prejudicial to Mehta.
The court was more divided, in reasoning but not outcome, with regards to the proper calculation of Mehta's advisory Guideline range. At sentencing, the district court based Mehta's tax loss amount (which drove the Guideline range) on an IRS audit of only a portion of the total number of returns at issue. Specifically, the loss was based on the amount of additional tax owed that the taxpayers involved agreed to pay to the IRS. First, Mehta argued that district court should not have relied on those agreements by taxpayers to determine the amount of loss. The court concluded that those agreements were sufficient evidence to use in the loss calculation. Second, Mehta argued that the district court erred by taking the average tax liability from the IRS sample and multiplying it by the total number of fraudulent returns in order to determine loss. The court agreed, but found the error to be harmless, as the record still supported a loss amount sufficient to trigger the same advisory Guideline range. Judge Shedd concurred as to the result, but argued that there was no error.
On appeal, Mehta challenged both his wire fraud convictions and his sentence. The Fourth Circuit affirmed on all counts. First, Mehta argued that the district court should have granted his motion for acquittal as to the wire fraud counts both because the evidence was insufficient to support convictions and that there was a variance between the indictment and the proof at trial. After reviewing the evidence, the court concluded that it was sufficient to sustain the convictions. As for the variance, the court concluded that the discrepancy as to which particular states the defrauded wires travelled through was not prejudicial to Mehta.
The court was more divided, in reasoning but not outcome, with regards to the proper calculation of Mehta's advisory Guideline range. At sentencing, the district court based Mehta's tax loss amount (which drove the Guideline range) on an IRS audit of only a portion of the total number of returns at issue. Specifically, the loss was based on the amount of additional tax owed that the taxpayers involved agreed to pay to the IRS. First, Mehta argued that district court should not have relied on those agreements by taxpayers to determine the amount of loss. The court concluded that those agreements were sufficient evidence to use in the loss calculation. Second, Mehta argued that the district court erred by taking the average tax liability from the IRS sample and multiplying it by the total number of fraudulent returns in order to determine loss. The court agreed, but found the error to be harmless, as the record still supported a loss amount sufficient to trigger the same advisory Guideline range. Judge Shedd concurred as to the result, but argued that there was no error.
Juvenile Priors Without Jury Right Can Trigger ACCA
US v. Wright: Wright got involved in a fight at a nightclub in South Carolina, which led the crowd inside to pour out into the parking lot. Wright grabbed an AK-47 from a car and "sprayed 22 rounds" into the parking lot, wounding one person and killing another (who was asleep in his car at the time). Wright was convicted of being a felon in possession of a firearm, determined to be an Armed Career Criminal, and sentenced to life in prison.
On appeal, Wright raised several challenges to his sentence, all of which the Fourth Circuit rejected. First, Wright argued that prior juvenile convictions that were used to trigger the ACCA enhancement violated Apprendi because the juvenile proceedings did not involve the right to a jury trial. Because a jury trial is not Constitutionally required in juvenile proceedings, there was no error in using the results of those proceedings to increase a later sentence. Second, Wright argued that his prior juvenile convictions, in which he committed burglaries during which he stole firearms, did not involve "the use or carrying of a firearm" - as required to be ACCA predicates - because the act of burglary was complete before he possessed the firearms. The court disagreed, concluding that such burglaries "involve" the firearms. Finally, Wright argued that district court erred by applying the cross-reference to the first degree murder Guideline. The court concluded that Wright acted "willfully, deliberately, maliciously, and with premeditation" and thus the cross-reference applied. Judge Gregory dissented on the last point, arguing that there was no evidence that Wright "had a premeditated design to effect the death of any person."
On appeal, Wright raised several challenges to his sentence, all of which the Fourth Circuit rejected. First, Wright argued that prior juvenile convictions that were used to trigger the ACCA enhancement violated Apprendi because the juvenile proceedings did not involve the right to a jury trial. Because a jury trial is not Constitutionally required in juvenile proceedings, there was no error in using the results of those proceedings to increase a later sentence. Second, Wright argued that his prior juvenile convictions, in which he committed burglaries during which he stole firearms, did not involve "the use or carrying of a firearm" - as required to be ACCA predicates - because the act of burglary was complete before he possessed the firearms. The court disagreed, concluding that such burglaries "involve" the firearms. Finally, Wright argued that district court erred by applying the cross-reference to the first degree murder Guideline. The court concluded that Wright acted "willfully, deliberately, maliciously, and with premeditation" and thus the cross-reference applied. Judge Gregory dissented on the last point, arguing that there was no evidence that Wright "had a premeditated design to effect the death of any person."
Court Sets Standard for Preservation of Procedural Sentencing Error
US v. Lynn: This is actually three apparently unrelated sentencing appeals (one involves codefendants, however) collected in one place to resolve one issue - the proper standard of review when a party argues on appeal that the district court committed procedural error in selecting the sentence it imposed. The Fourth Circuit concluded that the correct standard is abuse of discretion (aka "reasonableness"), followed by an examination of harmless error if the district court did abuse its discretion. That is if the party arguing on appeal properly preserved the issue in the first place, else they are stuck with plain error review. Reviewing FRCrPr 52, the court concluded that the appealing party does not have to make a post-imposition objection in order to preserve the issue on appeal. All that is needed is for the party to seek a particular ruling from the district court (i.e., a particular sentence based on the 3553(a) factors) and have the court rejected that plea. As for the individual cases:
- US v. Peake: Peake, the court concluded, did not adequately preserve the issue and was subject to plain error review. After the district court calculated the Guideline range, Peake's counsel did not argue for a specific sentence and admitted that the PSR fairly set out the circumstances of Peake's offense (felon in possession) and background. The district court imposed a sentence at the bottom of the Guideline range. There was no error, or at least none that affected Peake's substantial rights. Sentence affirmed.
- US v. Tucker: The main issue at Tucker's sentencing (also a felon in possession - shot himself in the leg) was the district court's desire to depart upward to the statutory maximum because the Guidelines underrepresented Tucker's criminal history (the district court had sustained Tucker's objection to being classified as a career offender). Tucker argued against the departure, noting the three-year gap between the incident and the federal charge, during which time he had done nothing to get himself into trouble. The district court, without addressing that argument, departed and imposed a sentence of 101 months. The Fourth Circuit concluded that Tucker had preserved the procedural reasonableness issue for appeal, found that the district court abused its discretion, and could not conclude that the error was harmless. Sentence vacated.
- US v. Lynn: Lynn and his codefendant, Rhodes, were convicted of conspiracy to distribute and possession to distribute more than 100 grams of heroin. At sentencing, Lynn was classified as a career offender. He argued for a downward variance, on grounds that he was "at the very margins of career offender status." Without addressing his claims, the district court imposed a within the Guideline sentence. The Fourth Circuit concluded that Lynn properly preserved the procedural reasonableness issue, that the district court abused its discretion, and that the Government could not show that the error was harmless. Rhodes, apparently, did not challenge his sentence (both challenged the denial of motions to suppress, those arguments being rejected by the court in a footnote).
Monday, February 08, 2010
Court Declines to Find Exception to Auto Exception
US v. Kelly: Kelly was the subject of an investigation into drug dealing in the Hampton Roads, Virginia, area. Officers obtained a warrant to search Kelly's home, although not any vehicles that were there. When police executed the search warrant, a green Lexus that was known to be Kelly's was one of three vehicles outside the house. When Kelly was told that a drug dog was on its way, he acknowledge that there were drugs in one or more of the vehicles, but did not specify which ones. The drug dog alerted at the Lexus's driver's door, but a search of the passenger compartment revealed nothing. Officers then searched the trunk, in which they found cocaine and ecstasy. Kelly sought to suppress that evidence, but the district court concluded that there was probable cause to believe there were drugs in the Lexus, including in the trunk, and that no warrant was required under the automobile exception. Kelly was convicted by a jury of conspiracy and substantive drug charges.
On appeal, Kelly advanced three arguments to overturn his convictions, all of which the Fourth Circuit rejected. First, the court concluded that the district court properly denied Kelly's motion to suppress. The automobile exception to the warrant requirement applied, even though the Lexus was under police control and there was no danger of evidence being removed from it prior to a search. Furthermore, there was probable cause to search the entirety of the car. Second, the court rejected Kelly's arguments that the prosecutor had engaged in misconduct by referring to two earlier arrests during trial but offering evidence only relating to one of them and, thus, coerced Kelly to testify on his own behalf. Finally, the court affirmed that the evidence was sufficient to sustain Kelly's convictions.
On appeal, Kelly advanced three arguments to overturn his convictions, all of which the Fourth Circuit rejected. First, the court concluded that the district court properly denied Kelly's motion to suppress. The automobile exception to the warrant requirement applied, even though the Lexus was under police control and there was no danger of evidence being removed from it prior to a search. Furthermore, there was probable cause to search the entirety of the car. Second, the court rejected Kelly's arguments that the prosecutor had engaged in misconduct by referring to two earlier arrests during trial but offering evidence only relating to one of them and, thus, coerced Kelly to testify on his own behalf. Finally, the court affirmed that the evidence was sufficient to sustain Kelly's convictions.
Decision to Agree to Mistrial Is Counsel's to Make, Not Defendant's
US v. Chapman: In this 2255 action, Chapman challenged the effectiveness of his counsel at trial. In particular, Chapman argued that when the Government went beyond the scope of certain evidentiary rulings with relation to FRE 404(b) evidence, his counsel was ineffective for moving only for a mistrial with prejudice, which the district court denied. The district court "offered" to grant a mistrial without prejudice, but trial counsel declined the invitation. Chapman argued, unsuccessfully before the district court, that counsel's failure to accept the offer when Chapman told him to do so was ineffective assistance.
On appeal, the Fourth Circuit affirmed the district court's conclusion that Chapman's counsel was not ineffective. The court agreed with the Government that decisions about whether to seek a mistrial, and on what grounds, are tactical decisions that belong to counsel, not the defendant.
Judge Michael concurred in the judgment, but wrote separately and argued that the court should have resolved the appeal on the narrow facts of the case, rather than announcing a broader rule of general application.
On appeal, the Fourth Circuit affirmed the district court's conclusion that Chapman's counsel was not ineffective. The court agreed with the Government that decisions about whether to seek a mistrial, and on what grounds, are tactical decisions that belong to counsel, not the defendant.
Judge Michael concurred in the judgment, but wrote separately and argued that the court should have resolved the appeal on the narrow facts of the case, rather than announcing a broader rule of general application.
Appeal Waiver Not Valid, Defendant Loses Anyway
US v. Manigan: Manigan pleaded guilty to three counts of possession of cocaine with intent to distribute, pursuant to a plea agreement in which he waive his right to all appeals and 2255 claims (save ineffective assistance of counsel and prosecutorial misconduct) - the Government waived nothing. Nonetheless, the district court at the plea hearing told Manigan that after sentencing "you . . . may have a right to appeal this sentence." At sentencing, the parties argued about whether Manigan possessed two firearms that resulted in an enhancement under USSG 2D1.1(b)(1). The district court applied the enhancement, which nevertheless did not figure in the final sentence as Manigan was a career offender. He was sentenced to 169 months in prison.
On appeal, Manigan sought to challenge the district court's use of the gun enhancement. The Government argued that Manigan waived his right to appeal that issue based on the appeal waiver in the written plea agreement. Although the language of the agreement was clear, the Fourth Circuit held that it was not applicable to Manigan because the district court incorrectly informed him of a right to appeal following sentencing. Furthermore, there was no mention made of the appeal waiver during Manigan's Rule 11 hearing. Moving on to Manigan's substantive argument, the district court affirmed the district court. Noting that the issue was not moot in light of the career offender designation because the gun enhancement had consequences in other areas (i.e., with BoP), the court held that the guns were possessed in connection with his offenses.
Judge Michael dissented on the gun enhancement issue. He argued that the majority opinion stretched the reach of the enhancement far beyond the language of the Guidelines or prior caselaw required. Because the facts were largely untested, the majority erred by using a clear error standard or review, instead of a de novo standard. He also argued that the majority approach "appears to be a green light to apply the . . . enhancement to every drug deal with a handgun in his residence" and will "practically eliminate any limitation on the scope of the provision."
On appeal, Manigan sought to challenge the district court's use of the gun enhancement. The Government argued that Manigan waived his right to appeal that issue based on the appeal waiver in the written plea agreement. Although the language of the agreement was clear, the Fourth Circuit held that it was not applicable to Manigan because the district court incorrectly informed him of a right to appeal following sentencing. Furthermore, there was no mention made of the appeal waiver during Manigan's Rule 11 hearing. Moving on to Manigan's substantive argument, the district court affirmed the district court. Noting that the issue was not moot in light of the career offender designation because the gun enhancement had consequences in other areas (i.e., with BoP), the court held that the guns were possessed in connection with his offenses.
Judge Michael dissented on the gun enhancement issue. He argued that the majority opinion stretched the reach of the enhancement far beyond the language of the Guidelines or prior caselaw required. Because the facts were largely untested, the majority erred by using a clear error standard or review, instead of a de novo standard. He also argued that the majority approach "appears to be a green light to apply the . . . enhancement to every drug deal with a handgun in his residence" and will "practically eliminate any limitation on the scope of the provision."
13 B&Es at Same Location Trigger ACCA
US v. Carr: Carr pleaded guilty to being a felon in possession of a firearm. He had 13 prior felony convictions in North Carolina for breaking or entering, leading the district court to determine he qualified as an Armed Career Criminal. Carr agreed that he had the 13 convictions, but argued that they did not occur "on occasions different from one another." Specifically, the 13 convictions stemmed from 13 indictments for breaking into 13 different storage units at a self-store complex. The district court rejected that argument and sentenced Carr to 262 months in prison.
On appeal, the Fourth Circuit rejected Carr's argument as well and affirmed his sentence. After surveying prior cases addressing the issue of whether ACCA predicates were part of "separate and distinct criminal episodes," the court concluded that Carr's prior offenses, although all taking place in one general location, were separate episodes. Noting the disjunctive nature of the charges (breaking or entering), the court concluded that each offense was complete when each unit was opened, regardless of whether Carr went back and forth between the units once they were open.
On appeal, the Fourth Circuit rejected Carr's argument as well and affirmed his sentence. After surveying prior cases addressing the issue of whether ACCA predicates were part of "separate and distinct criminal episodes," the court concluded that Carr's prior offenses, although all taking place in one general location, were separate episodes. Noting the disjunctive nature of the charges (breaking or entering), the court concluded that each offense was complete when each unit was opened, regardless of whether Carr went back and forth between the units once they were open.
Lawfully Obtained ID Info Can Be Used Unlawfully
US v. Abdelshafi: Abdelshafi owned and ran a medical transport (aka ambulance) service that contracted with Medicaid to transport patients in Virginia. As part of the routine transportations that Abdelshafi's company would do, it would collect bits of personal identifying information such as birth dates and Medicaid IDs. Eventually, investigators discovered that Abdelshafi's company was overcharging for some transports and charging for transports that never took place. He was charged with (among other things) two counts of aggravated identity theft. Abdelshafi moved for an acquittal on those counts, arguing that he did not possess the patients' identifying information "without lawful authority" since it had been gained during the normal course of lawful business. The district court disagreed, denied the motion, and convicted Abdelshafi. He was sentenced to 62 months in prison.
On appeal, Abdelshafi challenged his conviction and sentence, both of which the Fourth Circuit affirmed. As to the conviction, Abdelshafi renewed his argument that he did not possess identifying information "without lawful authority." The court disagreed, holding that information originally obtained legitimately cane become used "without lawful authority" once it is used beyond the scope which is proper. As to his sentence, Abdelshafi argued that the district court erred by imposing a two-level enhancement for abuse of a position of trust. The court disagreed, concluding that Abdelshafi enjoyed a position of trust "in regard to patients' identifying information" comparable to that of a hospital orderly, an example found in the commentary to USSG 3B1.3.
On appeal, Abdelshafi challenged his conviction and sentence, both of which the Fourth Circuit affirmed. As to the conviction, Abdelshafi renewed his argument that he did not possess identifying information "without lawful authority." The court disagreed, holding that information originally obtained legitimately cane become used "without lawful authority" once it is used beyond the scope which is proper. As to his sentence, Abdelshafi argued that the district court erred by imposing a two-level enhancement for abuse of a position of trust. The court disagreed, concluding that Abdelshafi enjoyed a position of trust "in regard to patients' identifying information" comparable to that of a hospital orderly, an example found in the commentary to USSG 3B1.3.
Monday, January 25, 2010
Court Takes Broad View of Warrant Scope in Computer Search
US v. Williams: Authorities in Fairfax, Virginia were investigating a series of emails sent to a local church school which indicated the writer's desire to engage in sexual activity with some of the boys there. The investigation led to an email account in the name of Williams's wife. As a result, authorities obtained a search warrant for Williams's home, searching for evidence of Virginia offenses of sending threatening or obscene messages via computer. While conducting the search, one officer opened a lock box in Williams's garage and discovered a machine gun and silencer, neither of which, upon inspection (to determine if the gun was loaded), had a serial number. Officers also seized a DVD which, it was later revealed, contained child pornography.
Williams moved to suppress the gun, silencer, and DVD as beyond the scope of the warrant (based largely on the work of Orin Kerr, who weighs in here). The district court denied the motion and found Williams guilty (on stipulated facts) of two counts of possession of an unregistered firearm and possession of child pornography. On appeal, the Fourth Circuit affirmed the district court's denial of Williams's motion to suppress.
As to the DVD, Williams argued that when searches of computer data are at issue a traditional Fourth Amendment approach is inappropriate. Specifically, Williams argued that the search warrant did not authorize the search of every file on his computer (or related media), but only those files related to the offenses being investigated. Furthermore, a broader search for child pornography did not fit into any well established exception to the warrant requirement (i.e., plain view). The Fourth Circuit disagreed, concluding that the images on the DVD were "instrumentalities" of the Virginia offenses that were the object of the search. In the alternative, the court held that the seizure of those images was justified under plain view, as the scope of the warrant allowed investigators to open every file in order to determine its contents with regards to the offenses being investigated.
As to the machine gun, the court also concluded that the plain view exception applied, holding that the warrant allowed a search inside the lockbox for media devices that could be stored within, which would require picking up the gun and silencer to move them. The officer, once allowed to pick those items up, was entitled to inspect them for safety purposes.
Williams moved to suppress the gun, silencer, and DVD as beyond the scope of the warrant (based largely on the work of Orin Kerr, who weighs in here). The district court denied the motion and found Williams guilty (on stipulated facts) of two counts of possession of an unregistered firearm and possession of child pornography. On appeal, the Fourth Circuit affirmed the district court's denial of Williams's motion to suppress.
As to the DVD, Williams argued that when searches of computer data are at issue a traditional Fourth Amendment approach is inappropriate. Specifically, Williams argued that the search warrant did not authorize the search of every file on his computer (or related media), but only those files related to the offenses being investigated. Furthermore, a broader search for child pornography did not fit into any well established exception to the warrant requirement (i.e., plain view). The Fourth Circuit disagreed, concluding that the images on the DVD were "instrumentalities" of the Virginia offenses that were the object of the search. In the alternative, the court held that the seizure of those images was justified under plain view, as the scope of the warrant allowed investigators to open every file in order to determine its contents with regards to the offenses being investigated.
As to the machine gun, the court also concluded that the plain view exception applied, holding that the warrant allowed a search inside the lockbox for media devices that could be stored within, which would require picking up the gun and silencer to move them. The officer, once allowed to pick those items up, was entitled to inspect them for safety purposes.
3582(c)(2) Reductions Not Limited to Exact Match of Previous Departure
US v. Fennell: Fennell pleaded guilty to a conspiracy to distribute more than 50 grams of crack cocaine in 2005. Following a motion by the Government based on substantial assistance, Fennell received a sentence of 97 months in prison, below the 120-month mandatory minimum and Guideline range of 121-151 months. Fennell filed a motion under 18 USC 3582(c)(2) seeking a reduction of his sentence in the wake of the recent amendments to the crack Guidelines, arguing for a sentence of 80 months, a departure of comparable amount (20%) from the bottom of his new Guideline range, 100-125 months. The district court concluded Fennell was eligible for a reduction, but that he was limited to reducing his sentence to 96 months - one month less than originally imposed - because the actual new Guideline range was still controlled by the statutory mandatory minimum, and thus was actually 120-125 months. A 20% reduction from 120 months resulted in a 96-month sentence.
On appeal, the Fourth Circuit agreed with Fennell and vacated his new 96-month sentence. Noting that procedures for determining the extent of a departure for substantial assistance vary from district to district, the court held that "these same methods, or any reasonable method that results in a comparable reduction, are available to a sentencing court during a resentencing" under 3582(c)(2). Furthermore, USSG 1B1.10, which applies in those cases, does not state that only a departure identical in scope to the one initially given is appropriate. Because the district court concluded it was limited to awarding an identical reduction, rather than a comparable one, Fennell's sentence was vacated and his case remanded.
Congrats to the defender office in the EDNC on the win!
On appeal, the Fourth Circuit agreed with Fennell and vacated his new 96-month sentence. Noting that procedures for determining the extent of a departure for substantial assistance vary from district to district, the court held that "these same methods, or any reasonable method that results in a comparable reduction, are available to a sentencing court during a resentencing" under 3582(c)(2). Furthermore, USSG 1B1.10, which applies in those cases, does not state that only a departure identical in scope to the one initially given is appropriate. Because the district court concluded it was limited to awarding an identical reduction, rather than a comparable one, Fennell's sentence was vacated and his case remanded.
Congrats to the defender office in the EDNC on the win!
Admission of Guilt Required for Criminal History Scoring
US v. Martinez-Melgar: Martinez-Melgar pleaded guilty to various drug and firearms charges. At sentencing, he challenged the use of a prior North Carolina disposition in the calculation of his criminal history score. Specifically, Martinez-Melgar argued that his participation in a "District Court Step Drug Program" in Mecklenburg County, NC, should not count in his criminal history because he did not make an admission of guilt in connection with the program. Likewise, Martinez-Melgar argued that the term of probation he was on as a part of the Step program could not be used to increase his criminal history score under USSG 4A1.1(d). The district court disagreed, partly based on testimony at the sentencing hearing from the architect of the Step program who explained that participation in that program required a "statement of responsibility" that was the equivalent of an admission of guilt, even though the Government could not provide evidence of such a statement in Martinez-Melgar's case.
On appeal, the Fourth Circuit vacated Martinez-Melgar's sentence and remanded for further proceedings. The court noted that, for participation in a program like this to contribute to a criminal history score, it must result from a finding or admission of guilt in either open court or some other court proceeding. While the district court did make findings to conclude that Martinez-Melgar had made such an admission, a review of the record showed those findings to be clearly erroneous. Specifically, while the district court properly relied on computer records to conclude that Martinez-Melgar was charged with a qualifying offense and he successfully completed the Step program, there was insufficient evidence that Martinez-Melgar made an admission of guilt in open court as a part of those proceedings.
Congrats to the defender office in the WDNC on the win!
On appeal, the Fourth Circuit vacated Martinez-Melgar's sentence and remanded for further proceedings. The court noted that, for participation in a program like this to contribute to a criminal history score, it must result from a finding or admission of guilt in either open court or some other court proceeding. While the district court did make findings to conclude that Martinez-Melgar had made such an admission, a review of the record showed those findings to be clearly erroneous. Specifically, while the district court properly relied on computer records to conclude that Martinez-Melgar was charged with a qualifying offense and he successfully completed the Step program, there was insufficient evidence that Martinez-Melgar made an admission of guilt in open court as a part of those proceedings.
Congrats to the defender office in the WDNC on the win!
Friday, January 15, 2010
Downward Variance in Tax Evasion Case Requires More Explanation
US v. Engle: Engle pleaded guilty to tax evasion, having hidden assets from the IRS for more than a decade to the tune of more than $600,000 ($2 million with penalties and interest). His advisory Guideline range, after a departure for over representation of criminal history, was 24 to 30 months. The Government argued for a sentence within that range (shock!), but the district court imposed a sentence of probation, noting Engle's ability to make money and the district court's desire that he "settle up" with the IRS. The district court admitted that "[a]bsent . . . the apparent ability to generate the income, I would simply impose a Guideline sentence and be done with it." It imposed a sentence of probation, to include a period of time at a halfway house, during which Engle could travel, including internationally, for his job.
After being informed by BoP that Engle could not reside at a halfway house while being permitted to travel internationally, the district court vacated Engle's sentence. Time passed. Two years later, the district court held a second sentencing hearing. In the interim, Engle argued he had amassed $25,000 to pay towards his tax debt, in addition to another $100,000 he was about to receive from commissions. The Government pointed out that he had actually only paid $480 towards his debt, those payments being made only a couple of weeks in advance of the hearing. After the district court asked whether it wanted "blood or money," the Government reiterated its argument for a sentence within the Guideline range. The district court then imposed the same sentence as before, substituting home confinement for the halfway house term.
The Government appealed Engle's sentence of probation, which the Fourth Circuit vacated. The court found the sentence to be both procedurally and substantively unreasonable. Procedurally, the Fourth Circuit faulted the district court for not adequately considering (or discussing) the Guideline policy statements specifically related to tax offenses, noting that they emphasize the need for general deterrence in such cases. Although the district court is free to disregard their advice, in this case it did not provide enough evidence to show it properly considered them before doing so. That is particularly critical in a case that the Fourth Circuit says "is a 'mine-run' tax-evasion case only in the most generous (to Engle) understanding of that phrase." Substantively, the Fourth Circuit faulted the district court for its "near-exclusive focus on Engle's financial ability to pay restitution." Such a focus, the court noted, essentially allows wealthy tax evaders to escape incarceration, while dooming poor evaders to that fate.
After being informed by BoP that Engle could not reside at a halfway house while being permitted to travel internationally, the district court vacated Engle's sentence. Time passed. Two years later, the district court held a second sentencing hearing. In the interim, Engle argued he had amassed $25,000 to pay towards his tax debt, in addition to another $100,000 he was about to receive from commissions. The Government pointed out that he had actually only paid $480 towards his debt, those payments being made only a couple of weeks in advance of the hearing. After the district court asked whether it wanted "blood or money," the Government reiterated its argument for a sentence within the Guideline range. The district court then imposed the same sentence as before, substituting home confinement for the halfway house term.
The Government appealed Engle's sentence of probation, which the Fourth Circuit vacated. The court found the sentence to be both procedurally and substantively unreasonable. Procedurally, the Fourth Circuit faulted the district court for not adequately considering (or discussing) the Guideline policy statements specifically related to tax offenses, noting that they emphasize the need for general deterrence in such cases. Although the district court is free to disregard their advice, in this case it did not provide enough evidence to show it properly considered them before doing so. That is particularly critical in a case that the Fourth Circuit says "is a 'mine-run' tax-evasion case only in the most generous (to Engle) understanding of that phrase." Substantively, the Fourth Circuit faulted the district court for its "near-exclusive focus on Engle's financial ability to pay restitution." Such a focus, the court noted, essentially allows wealthy tax evaders to escape incarceration, while dooming poor evaders to that fate.
Subjective Self Defense Instruction Correctly Refused
US v. Gore: After getting into a heated argument with a correctional officer at FCI Gilmer, Gore got into a scuffle with a second officer that resulted in him being sent to "the hole." Gore was charged with assault on and forcibly resisting a correctional officer under 18 USC 111. At trial, Gore asked the district court to give a self defense instruction that allowed the use of force if the correctional officer "uses more force than appears reasonably necessary." The district court rejected that formulation, holding that it was too subjective, and instructed that self defense was available only if Gore "was under an unlawful present or imminent threat of serious bodily injury or death." Gore was convicted at trial and sentenced to 87 (more) months in prison.
Gore appealed, arguing that the district court erred by not giving his self defense instruction. The Fourth Circuit disagreed and affirmed the convictions. First, the court concluded that, although section 111 did not include a provision for self defense as a defense to the charge, self defense was available to defendants charged with that offense. Second, the court concluded that, given the particular circumstances present in a prison setting, such a defense must be narrowly construed and limited to situations where there is an objective fear of death or serious bodily injury.
Gore appealed, arguing that the district court erred by not giving his self defense instruction. The Fourth Circuit disagreed and affirmed the convictions. First, the court concluded that, although section 111 did not include a provision for self defense as a defense to the charge, self defense was available to defendants charged with that offense. Second, the court concluded that, given the particular circumstances present in a prison setting, such a defense must be narrowly construed and limited to situations where there is an objective fear of death or serious bodily injury.
Court Affirms Convictions, Life Sentences of "20th Hijacker"
US v. Moussaoui: Moussaoui was the "20th hijacker," arrested for overstaying his visa while training at a Minnesota flight school in August 2001. After 9/11, dots were connected and Moussaoui was eventually charged with six conspiracy counts (from use of weapons of mass destruction to destruction of Federal property) related to those attacks. After lots of wrangling about attorneys, access to classified information, and the like, Moussaoui (who at one point proceeded pro se) announced that he would plead guilty straight up to the indictment. After he did so, a jury rejected the arguments of the Government in search of the death penalty and condemned Moussaoui to a series of life sentences. The district court imposed six life sentences on Moussaoui, all but one of which are to run concurrently. After sentencing, Moussaoui moved to withdraw his guilty plea, explaining that the leniency showed to him by the sentencing jury convinced him that he could receive a fair trial in an American court. That motion was denied.
On appeal Moussaoui challenged both his guilty plea and his sentences, as well as seeking a remand based on classified information the Government disclosed during the appeal. The Fourth Circuit rejected all his requests, affirming his convictions and sentences.
As to the guilty plea, the court first rejected Moussaoui's argument that his plea was involuntary due to several of the district court's pretrial rulings. Those claims were extinguished by the guilty plea, which was not conditional, and were therefore waived. The court also rejected claims that Moussaoui's guilty plea was not made knowingly and intelligently, because (a) he did not have access to certain exculpatory, classified information when he entered his guilty plea, and (b) counsel was prohibited from discussing that information with him. Next, the court rejected Moussaoui's argument that the district court should have ordered a competency evaluation (beyond the one done before Moussaoui went pro se) prior to the entry of his guilty plea. Finally, the court rejected Moussaoui's arguments about errors in the guilty plea hearing (under a plain error standard of review), including the failure to adequately inform him of the charges against him, to ensure a factual basis exists, and to inform him of the possible sentences he faced.
As to his sentences, the court first rejected Moussaoui's argument that the district court erred by denying his motions for acquittal on the issue of whether he was eligible for the death penalty. Noting that the argument is moot because the jury did not recommend the death penalty, the court explained that because the jury also did not unanimously recommend that Moussaoui receive life sentences the determination that he was death eligible did not require the imposition of life sentences by the district court. The court also concluded that the district court was not under the false impression that life sentences were mandatory after the jury's findings.
Finally, as to Moussaoui's motion to remand for the district court to consider classified evidence that came to light during the pendency of the appeal, the Fourth Circuit denied Moussaoui's request. Having reviewed the evidence in question in camera, the court held that it was not exculpatory and would not caused Moussaoui to forgo a guilty plea and proceed to trial.
On appeal Moussaoui challenged both his guilty plea and his sentences, as well as seeking a remand based on classified information the Government disclosed during the appeal. The Fourth Circuit rejected all his requests, affirming his convictions and sentences.
As to the guilty plea, the court first rejected Moussaoui's argument that his plea was involuntary due to several of the district court's pretrial rulings. Those claims were extinguished by the guilty plea, which was not conditional, and were therefore waived. The court also rejected claims that Moussaoui's guilty plea was not made knowingly and intelligently, because (a) he did not have access to certain exculpatory, classified information when he entered his guilty plea, and (b) counsel was prohibited from discussing that information with him. Next, the court rejected Moussaoui's argument that the district court should have ordered a competency evaluation (beyond the one done before Moussaoui went pro se) prior to the entry of his guilty plea. Finally, the court rejected Moussaoui's arguments about errors in the guilty plea hearing (under a plain error standard of review), including the failure to adequately inform him of the charges against him, to ensure a factual basis exists, and to inform him of the possible sentences he faced.
As to his sentences, the court first rejected Moussaoui's argument that the district court erred by denying his motions for acquittal on the issue of whether he was eligible for the death penalty. Noting that the argument is moot because the jury did not recommend the death penalty, the court explained that because the jury also did not unanimously recommend that Moussaoui receive life sentences the determination that he was death eligible did not require the imposition of life sentences by the district court. The court also concluded that the district court was not under the false impression that life sentences were mandatory after the jury's findings.
Finally, as to Moussaoui's motion to remand for the district court to consider classified evidence that came to light during the pendency of the appeal, the Fourth Circuit denied Moussaoui's request. Having reviewed the evidence in question in camera, the court held that it was not exculpatory and would not caused Moussaoui to forgo a guilty plea and proceed to trial.
Monday, January 11, 2010
Stop & Search By Private Security Guards Not Subject to Fourth, Fifth Amendments
US v. Day: Day was at an apartment complex when he was confronted by two "armed security officers," whom the commonwealth of Virginia has blessed with the power to arrest. The officers saw Day and another man standing outside an apartment, apparently arguing with someone inside. Day allegedly drew a gun from a nearby car and pointed it towards the apartment. At that point, the "armed security officers" rolled up, drew their weapons, and commanded Day to "freeze." Day put the gun back in the car and put his hands up. Officers restrained Day, performed a pat down (without finding anything), and asked Day questions about whether he had anything on him and about the gun. Day admitted having some marijuana in a coat pocket and admitted carry the gun for personal protection.
Day was indicted for being a drug user in possession of a firearm and possession of marijuana. He moved to suppress the evidence found as a result of this encounter, which the district court partially granted. The district court concluded that the "armed security officers" were state actors bound by the Fourth and Fifth Amendments when they contacted Day. Analyzing their actions under Terry and other relevant precedents, the district court suppressed the marijuana and all statements made by Day, but upheld the seizure of the gun. The Government sought an interlocutory appeal the day before Day was to go on trial.
On appeal, the Fourth Circuit reversed the district court's partial grant of Day's motion to suppress. The court disagreed with the district court's conclusion that the "armed security officers" were state agents and that therefore there were any Constitutional protections available to Day in the first place. The fact that Virginia law authorized the officers to arrest Day (but did not require, recommend, or reward it) was not sufficient to conclude that the commonwealth "affirmatively encouraged" their conduct. The court rejected Day's reliance on similar cases arising in 1983 litigation, noting that the evidence of a state-private agency relationship in those cases was much stronger.
Judge Davis concurred and dissented, arguing that regardless of the agency issue, the officers' actions did not violate the Fourth or Fifth amendments.
Day was indicted for being a drug user in possession of a firearm and possession of marijuana. He moved to suppress the evidence found as a result of this encounter, which the district court partially granted. The district court concluded that the "armed security officers" were state actors bound by the Fourth and Fifth Amendments when they contacted Day. Analyzing their actions under Terry and other relevant precedents, the district court suppressed the marijuana and all statements made by Day, but upheld the seizure of the gun. The Government sought an interlocutory appeal the day before Day was to go on trial.
On appeal, the Fourth Circuit reversed the district court's partial grant of Day's motion to suppress. The court disagreed with the district court's conclusion that the "armed security officers" were state agents and that therefore there were any Constitutional protections available to Day in the first place. The fact that Virginia law authorized the officers to arrest Day (but did not require, recommend, or reward it) was not sufficient to conclude that the commonwealth "affirmatively encouraged" their conduct. The court rejected Day's reliance on similar cases arising in 1983 litigation, noting that the evidence of a state-private agency relationship in those cases was much stronger.
Judge Davis concurred and dissented, arguing that regardless of the agency issue, the officers' actions did not violate the Fourth or Fifth amendments.
Inadequate Explanation of Loss Calculations Require Resentencing
US v. Wilkinson: Wilkinson pleaded guilty to conspiracy to defraud the US, mail fraud, and conspiracy to steal trade secrets stemming from a scheme in which he acquired confidential bid information from his company's competitor (via a bribe from someone in that company) in order to secure contracts with the Defense Energy Support Center (DESC). At sentencing, the parties disagreed as to the amount of loss that should be used to calculate Wilkinson's advisory Guideline range and whether DESC had suffered any actual loss that would require Wilkinson to pay restitution. Ultimately, the district court adopted a Guideline loss calculation that left the advisory range at 12 to 18 months (versus 51 to 63 months in the PSR), sentenced Wilkinson to three years of probation, plus a fine an restitution to another victim not at issue in the appeal. The district court did not order Wilkinson to pay any restitution to DESC.
On appeal by the Government, the Fourth Circuit vacated the sentence and remanded for resentencing. The attacks on both the sentence and restitution order rested on the argument that the district court had improperly calculated DESC's losses. The court concluded that the district court "did not provide us anything close to a sufficient explanation of its rationale in making its loss finding with respect to DESC that would enable use to review such finding under the clearly erroneous standard." Thus, the court remanded with specific instructions to revisit the DESC loss issue with more detail and then, if necessary, proceed with resentencing. District
Judge Moon concurred and dissented in parts, arguing that some of the loss amounts were sufficiently detailed to allow for the conclusion that the district court's conclusions were correct with respect to those particular amounts.
On appeal by the Government, the Fourth Circuit vacated the sentence and remanded for resentencing. The attacks on both the sentence and restitution order rested on the argument that the district court had improperly calculated DESC's losses. The court concluded that the district court "did not provide us anything close to a sufficient explanation of its rationale in making its loss finding with respect to DESC that would enable use to review such finding under the clearly erroneous standard." Thus, the court remanded with specific instructions to revisit the DESC loss issue with more detail and then, if necessary, proceed with resentencing. District
Judge Moon concurred and dissented in parts, arguing that some of the loss amounts were sufficiently detailed to allow for the conclusion that the district court's conclusions were correct with respect to those particular amounts.
Inventory Search Allows Search of Closed Containers In Trunk
US v. Mathews: Mathews was pulled over after an officer noticed his obscured license plate. Before the car was stopped, the officer recognized Mathews and confirmed his believe that Mathews had an outstanding warrant for his arrest. The car was stopped and Mathews arrested. Also in the car was an unlicensed 17 year old and an infant, neither of which could drive the car away. Therefore, the officer impounded the car. As a result of the impound, he performed an inventory search that resulted in the discovery of drugs in some luggage in the trunk. Mathews unsuccessfully tried to suppress the evidence found in the trunk and then entered a conditional guilty plea.
On appeal, the Fourth Circuit affirmed the district court's denial of Mathews's motion to suppress. The court rejected Mathews's argument that the search was not a proper inventory search because the policy under which the officer searched the car did not detail how to deal with closed containers. No specific provision in the inventory search protocol was needed to search closed containers. The court also rejected Mathews's argument that the search was improper because the inventory search protocol did not sufficiently curtail the discretion of the searching officer.
On appeal, the Fourth Circuit affirmed the district court's denial of Mathews's motion to suppress. The court rejected Mathews's argument that the search was not a proper inventory search because the policy under which the officer searched the car did not detail how to deal with closed containers. No specific provision in the inventory search protocol was needed to search closed containers. The court also rejected Mathews's argument that the search was improper because the inventory search protocol did not sufficiently curtail the discretion of the searching officer.
Joinder Improper & Prejudicial In Trial for Carjacking and Later Felon In Possession
US v. Hawkins: Hawkins was a suspect in the carjacking of a cab in Baltimore, during which it was alleged he threatened to shoot the driver. When authorities tracked down Hawkins at a convenience store, he made movements indicating he might be armed. He was subdued and a pistol recovered from him. As a result of these activities, Hawkins was charged with carjacking, a 924(c) count for the use of a firearm therein, and being a felon in possession of a firearm, based on the pistol recovered during his arrest. Prior to trial, Hawkins sought to sever the two counts related to the carjacking from the felon in possession count, but the district court denied his request. Hawkins was convicted on all three counts.
On appeal, Hawkins argued that the district court erred by denying his motion to sever. The Fourth Circuit agreed and reversed his convictions on the carjacking and 924(c) counts and remanded for resentencing on all three counts. In doing so the court rejected the Government's argument that the three charges were sufficiently related because "all three were firearms offenses" and "all these events occurred within a three-week period." Therefore, the carjacking and 924(c) counts were not of the "same or similar character" as the felon in possession count.
Furthermore, the court found that the error was prejudicial to Hawkins, particularly given the use at trial of a statement Hawkins made about the felon in possession count that referenced other actions that might have bolstered the Government's case on the other counts. Judge Motz concurred in the result, but wrote separately to explain that "this circuit's approach to Federal Rules of Evidence 404(b) and 403 may well have precipitated error in this case."
On appeal, Hawkins argued that the district court erred by denying his motion to sever. The Fourth Circuit agreed and reversed his convictions on the carjacking and 924(c) counts and remanded for resentencing on all three counts. In doing so the court rejected the Government's argument that the three charges were sufficiently related because "all three were firearms offenses" and "all these events occurred within a three-week period." Therefore, the carjacking and 924(c) counts were not of the "same or similar character" as the felon in possession count.
Furthermore, the court found that the error was prejudicial to Hawkins, particularly given the use at trial of a statement Hawkins made about the felon in possession count that referenced other actions that might have bolstered the Government's case on the other counts. Judge Motz concurred in the result, but wrote separately to explain that "this circuit's approach to Federal Rules of Evidence 404(b) and 403 may well have precipitated error in this case."
Friday, December 18, 2009
Face to Face "Man With Gun" Tip = Reasonable Suspicion
US v. Griffin: Griffin pleaded guilty to being a felon in possession of a firearm. The gun at issue was recovered from Griffin's car following a traffic stop. Since the relevant facts are few, I'll just reprint them here from the court's opinion:
On appeal, the Fourth Circuit affirmed, 2-1. First, the court concluded that there was reasonable suspicion to support the traffic stop. The court noted that, even if the original 911 call was anonymous, the first officer subsequently had a face to face meeting with an informant, which enhanced the credibility of the information provided. Second, the court concluded that the totality of the circumstances showed that Griffin was dangerous and there was a possibility that be might access a weapon if a protective sweep was not done.
Judge Gregory dissented, arguing that the "majority opinion brings the Fourth Amendment two steps closer to a death by a thousand cuts." He went on to argue that neither the Fourth Circuit (until now) nor the Supreme Court has adopted a per se rule that a face to face encounter with an informant is inherently reliable. In this case, "none of the indicia of reliability that normally inhere in such circumstances" were present. He would also hold that, even if the traffic stop was justified, the search of Griffin's car was not.
The evidence presented during the suppression hearing establishes that the Value-Lodge Motel in Charlotte, North Carolina, was well known to officers of the Charlotte-Mecklenburg Police Department as a location for violent crime and drug trafficking. On the evening of September 28,2005, someone called 911 from a second floor room of the Value-Lodge reporting a man in possession of a gun. The 911 call center relayed this information, including the caller’s room number, to Officer Crystal Lee Clifton, and she responded to the call. Upon arriving at the Value-Lodge, Officer Clifton proceeded to the second floor room from which the call was made and talked with one of the room’s occupants (the "informant") who was aware that the call had been placed. Shortly thereafter, Officer Brian Carey, who was also responding to the 911 call, arrived at the Value-Lodge.1 While Officer Clifton was talking to the informant, a white Cadillac drove past in the parking lot below, and the informant immediately pointed to the vehicle and identified the driver as the man with the gun. Officer Carey returned to his patrol car and pursued the Cadillac which was exiting the Value-Lodge parking lot. He proceeded approximately 50 feet and then entered a nearby parking lot where the Cadillac was turning around. Officer Clifton remained with the informant.Griffin unsuccessfully moved to suppress the gun, the district court concluding that there was reasonable suspicion to make the traffic stop and that the search of the car was justified.
Officer Carey then initiated a traffic stop of the vehicle and its sole occupant, Antonio Griffin. When Griffin exited the vehicle, he "started looking around" and "kept turning around like he was going to take off running." J.A. 27, 43. Officer Carey conducted a Terry frisk of Griffin and, out of concern for his safety, handcuffed Griffin and placed him in the backseat of the patrol car. While Officer Carey was speaking with Griffin, Officer Clifton and another officer arrived on the scene. At this time, an individual approached the officers claiming to know Griffin, and onlookers from the motel gathered at the scene. Officer Clifton thereafter performed a search of the passenger compartment of Griffin’s car, finding a pistol on the driver’s side floorboard. Officer Clifton seized the weapon, and Officer Carey placed Griffin under arrest for carrying a concealed weapon.
On appeal, the Fourth Circuit affirmed, 2-1. First, the court concluded that there was reasonable suspicion to support the traffic stop. The court noted that, even if the original 911 call was anonymous, the first officer subsequently had a face to face meeting with an informant, which enhanced the credibility of the information provided. Second, the court concluded that the totality of the circumstances showed that Griffin was dangerous and there was a possibility that be might access a weapon if a protective sweep was not done.
Judge Gregory dissented, arguing that the "majority opinion brings the Fourth Amendment two steps closer to a death by a thousand cuts." He went on to argue that neither the Fourth Circuit (until now) nor the Supreme Court has adopted a per se rule that a face to face encounter with an informant is inherently reliable. In this case, "none of the indicia of reliability that normally inhere in such circumstances" were present. He would also hold that, even if the traffic stop was justified, the search of Griffin's car was not.
Court Rejects "Reverse 404(b)" Testimony; Affirms "de facto" Career Offender Sentence
US v. Myers: Myers was convicted of several drug charges after trial and sentenced to 360 months in prison. At trial, Count Five involved an alleged sale of cocaine to a confidential informant who was "working off" an earlier charge for selling cocaine. When cross examined about that charge, the CI admitted to it, but took issue with several details about his behavior in the criminal complaint. The CI's testimony was the only evidence that the transaction took place (no video, I guess). Pursuant to a Government objection, Myers was precluded from calling several police officers to impeach the CI's testimony about those details. At sentencing, Myers was subject to a mandatory minimum of 120 months, but a Guideline maximum of only 121 months. However, the district court agreed with the Government that Myers was a "de facto career offender," departed upward, and imposed a sentence of 360 months.
On appeal, Myers challenged both his conviction on Count Five as well as his sentence. The Fourth Circuit upheld both. As to the conviction, the court rejected Myers's argument that the evidence he sought to introduce about the CI was "reverse 404(b)" evidence about the CI's other crimes or acts. The court held that the evidence had already been presented to the jury during cross examination and the district court did not abuse its discretion in concluding it was of limited probative value. As to the sentence, the court concluded that it was both procedurally and substantively reasonable, holding that the district court's reliance on Myers's criminal history was "thoroughly articulated" and was not an abuse of discretion.
On appeal, Myers challenged both his conviction on Count Five as well as his sentence. The Fourth Circuit upheld both. As to the conviction, the court rejected Myers's argument that the evidence he sought to introduce about the CI was "reverse 404(b)" evidence about the CI's other crimes or acts. The court held that the evidence had already been presented to the jury during cross examination and the district court did not abuse its discretion in concluding it was of limited probative value. As to the sentence, the court concluded that it was both procedurally and substantively reasonable, holding that the district court's reliance on Myers's criminal history was "thoroughly articulated" and was not an abuse of discretion.
Restitution Not Appropriate for Accessories After the Fact Without Proximate Cause
US v. Squirrel: Squirrel and Slee pleaded guilty to being accessories after the fact to murder. At sentencing, the district court ordered the two (along with another codefendant) to pay more than $5000 restitution for funeral expenses incurred by the victim's family, but indicated it would also order the defendants to pay restitution "for the use and benefit" of the victim's daughter. After a further hearing, the district court ordered the defendants to pay nearly $1.5 million in restitution for that purposes.
Squirrel and Slee appealed the second restitution award on several grounds, only two of which survived after the Fourth Circuit partially granted a Government motion to dismissed based on a waiver of appellate rights in the plea agreements. The two surviving issues where whether Squirrel and Slee could be ordered to pay restitution as accessories after the fact and whether the order of restitution was permitted under their plea agreements.
On the first issue, the court concluded that there is no per se rule prohibiting accessories after the fact from being liable for restitution, but that (as in any case) the victim's loss must be proximately caused by the specific conduct for which the defendants were convicted. In this case, there was not sufficient evidence to conclude that the victim's estate suffered any greater loss due to Squirrel and Slee's conduct (as the Government cogently put it, they did not cause "her to be 'more dead' than she already was"). On the second issue, the court concluded that the plea agreements did not provide a basis for imposing the second restitution award. Therefore, the Fourth Circuit vacated and remanded with instructions to delete the second restitution award.
Congrats to defender office in the WDNC on the win!
Squirrel and Slee appealed the second restitution award on several grounds, only two of which survived after the Fourth Circuit partially granted a Government motion to dismissed based on a waiver of appellate rights in the plea agreements. The two surviving issues where whether Squirrel and Slee could be ordered to pay restitution as accessories after the fact and whether the order of restitution was permitted under their plea agreements.
On the first issue, the court concluded that there is no per se rule prohibiting accessories after the fact from being liable for restitution, but that (as in any case) the victim's loss must be proximately caused by the specific conduct for which the defendants were convicted. In this case, there was not sufficient evidence to conclude that the victim's estate suffered any greater loss due to Squirrel and Slee's conduct (as the Government cogently put it, they did not cause "her to be 'more dead' than she already was"). On the second issue, the court concluded that the plea agreements did not provide a basis for imposing the second restitution award. Therefore, the Fourth Circuit vacated and remanded with instructions to delete the second restitution award.
Congrats to defender office in the WDNC on the win!
Tuesday, December 08, 2009
Plain View Provides for Seizure of Pistol in Car
US v. Rumley: Rumley was driving a truck that was stopped because its taillights were not working. Once the officer discovered that Rumley was driving on a suspended license, he arrested him and placed him in the back of his patrol car. The officer then went back to the truck to ask the passenger to get out. When he did so, the officer noticed a silver pistol lying on the floor in front of the passenger seat. The passenger was also secured in the back of the patrol car, after which the officer retrieved the gun. Rumley was charged with being a felon in possession of a firearm. He moved to have the gun suppressed, but the district court denied that request.
On appeal, the Fourth Circuit affirmed the district court's decision. It rejected Rumley's argument that the seizure of the gun violated the Supreme Court's recent Gant decision because he was safely secure in the patrol car before the gun was discovered and that the officer had taken the first step towards an illegal search. The court disagreed, holding that the gun came into plain view before the search began and therefore Gant was not applicable.
On appeal, the Fourth Circuit affirmed the district court's decision. It rejected Rumley's argument that the seizure of the gun violated the Supreme Court's recent Gant decision because he was safely secure in the patrol car before the gun was discovered and that the officer had taken the first step towards an illegal search. The court disagreed, holding that the gun came into plain view before the search began and therefore Gant was not applicable.
Broad Consent to Search Allows Seizure of Gun Stuffed Under Mattress at Crime Scene
US v. Coleman: Coleman lived with his girlfriend. One night, as he came home, he asked her to open the garage door for him. Unbeknownst to either, two men had earlier broken into the house and hid away in the garage. When Coleman's girlfriend went to open the garage door, she was attacked. In the struggle that ensued, Coleman was shot. After his girlfriend returned from next door (where she had called 911), Coleman retrieved a pistol from their bedroom and checked to make sure the attackers, who had fled, were out of the house. Coleman gave the gun to his girlfriend, telling her to "put it up" and had his brother take him to the hospital. The girlfriend stashed the gun under the mattress in their bedroom. When police arrived (after Coleman was taken to hospital), the obtained a consent to search the "anywhere in the house" from the girlfriend. Officers followed a trail of blood to the bedroom, searched under the mattress, and recovered the gun.
Coleman was charged with being a felon in possession of a firearm. He filed a motion to suppress the firearm, which the district court granted. The district court concluded that the search under the mattress exceeded the scope of the girlfriend's consent and emphasized that the gun, after investigation, turned out not to have been used by the attackers. On appeal, the Fourth Circuit unanimously reversed. Noting that there was no suggesting that the consent to search was given involuntarily, the court concluded that the search did not exceed the scope of that consent. The consent to search was exceptionally broad and had not been limited verbally by the girlfriend, who told police they could search "anywhere in the house." Furthermore, when officers found the blood trial that led to the bedroom and the discovery of the gun they could not know it was unrelated to the break in they were called to investigate.
Coleman was charged with being a felon in possession of a firearm. He filed a motion to suppress the firearm, which the district court granted. The district court concluded that the search under the mattress exceeded the scope of the girlfriend's consent and emphasized that the gun, after investigation, turned out not to have been used by the attackers. On appeal, the Fourth Circuit unanimously reversed. Noting that there was no suggesting that the consent to search was given involuntarily, the court concluded that the search did not exceed the scope of that consent. The consent to search was exceptionally broad and had not been limited verbally by the girlfriend, who told police they could search "anywhere in the house." Furthermore, when officers found the blood trial that led to the bedroom and the discovery of the gun they could not know it was unrelated to the break in they were called to investigate.
Government Breach of Plea Agreement is Plain Error Requiring Reversal
US v. Dawson: Dawson was charged with conspiracy to distribute crack and powder cocaine. He entered into a plea agreement in which the Government agreed to recommend that Dawson receive a two-level offense level reduction for his minor role in the conspiracy. The parties agreed that the final determination of the issue was left to the district court and that the terms of the plea agreement did not bind the court at sentencing. The PSR did not include the reduction and neither party objected to its absence. At sentencing, Dawson did not argue for a reduction, but did argue for a sentence reflecting the fact that he was not a leader or organizer of the conspiracy. The Government countered that he was "critical" to the conspiracy. The district court sentenced Dawson to 70 months in prison, the bottom of the Guideline range calculated without a minor role reduction. In doing so, it noted that Dawson was a "key player" in the conspiracy.
On appeal, Dawson sought resentencing based on the Government's breach of its promise in the plea agreement to recommend a minor role reduction. Applying plain error review (because Dawson did not object to the Government's breach at sentencing), the Fourth Circuit vacated Dawson's sentence and remanded for resentencing. The Government's concession that it breached established that there was error and that it was plain. The court went on to conclude that Dawson's substantial rights were affected because the error affected the sentence imposed by the district court, done as it was based on a Guideline range without the minor role reduction and based, at least partly, on the Government's breaching argument about Dawson's role in the conspiracy. Finally, the court decided to notice the error as the kind that affects the integrity of the judicial system, rejecting the Government's argument that the failure of Dawson and the Government to mention to agreement at sentencing operated as some sort of de facto modification to the plea agreement (which, itself, required all modifications to be in writing).
On appeal, Dawson sought resentencing based on the Government's breach of its promise in the plea agreement to recommend a minor role reduction. Applying plain error review (because Dawson did not object to the Government's breach at sentencing), the Fourth Circuit vacated Dawson's sentence and remanded for resentencing. The Government's concession that it breached established that there was error and that it was plain. The court went on to conclude that Dawson's substantial rights were affected because the error affected the sentence imposed by the district court, done as it was based on a Guideline range without the minor role reduction and based, at least partly, on the Government's breaching argument about Dawson's role in the conspiracy. Finally, the court decided to notice the error as the kind that affects the integrity of the judicial system, rejecting the Government's argument that the failure of Dawson and the Government to mention to agreement at sentencing operated as some sort of de facto modification to the plea agreement (which, itself, required all modifications to be in writing).
Court Affirms Drug Conspiracy Conivctions
US v. Johnson: Johnson and her codefendants, Martin and Scott, were convicted of conspiracy and other offenses related to a drug distribution scheme that operated across several states. They raised several issues on appeal, but jointly and severally, seeking the reversal of their convictions. Martin also appealed his sentence. The Fourth Circuit rejected all those argument and affirmed.
First, all three defendants argued that the district court erred by not granting a mistrial when a Government witness took the stand and refused to testify. The Government did so, they argued, knowing the witness would refuse to testify and leave the jury with the impression that she had incriminating evidence to offer against them. The court disagreed, concluding that there was no evidence of Government malfeasance nor any evidence of prejudice resulting from the episode. Second, all three defendants argued that the Government improperly vouched for the credibility of its witnesses during closing argument. The court concluded that the prosecutor's use of phrases like "I think" and "I'm convinced" are not vouching.
Johnson argued that the evidence was not sufficient to convict her, an argument the court turned away with a short paragraph of analysis.
Martin raised four issues. First, he argued that the testimony of two expert witnesses violated his Sixth Amendment confrontation right because they testified based on statements from unidentified witnesses. Crawford, the court held, prohibits the use of testimony hearsay as evidence, but not the use of opinions based on such hearsay. The experts in this case presented their own opinions of the language at issue (from phone calls) and were not mere conduits for the presentation of that language to the jury. Second, Martin argued that a 1980 conviction for armed robbery should not have been admitted for impeachment purposes. The court disagreed, finding that if error was committed (which seems likely), it was not prejudicial. Third, Martin argued that had the Supreme Court's decision in Gall been decided prior to his sentencing hearing the district court would have varied from the 360-month sentence advised by the Guidelines. The court disagreed, holding that it can review only the sentence imposed, without consideration of what the district court might have done in different circumstances. Finally, the court rejected Martin's argument to retroactively impose the amended crack guidelines to his case.
First, all three defendants argued that the district court erred by not granting a mistrial when a Government witness took the stand and refused to testify. The Government did so, they argued, knowing the witness would refuse to testify and leave the jury with the impression that she had incriminating evidence to offer against them. The court disagreed, concluding that there was no evidence of Government malfeasance nor any evidence of prejudice resulting from the episode. Second, all three defendants argued that the Government improperly vouched for the credibility of its witnesses during closing argument. The court concluded that the prosecutor's use of phrases like "I think" and "I'm convinced" are not vouching.
Johnson argued that the evidence was not sufficient to convict her, an argument the court turned away with a short paragraph of analysis.
Martin raised four issues. First, he argued that the testimony of two expert witnesses violated his Sixth Amendment confrontation right because they testified based on statements from unidentified witnesses. Crawford, the court held, prohibits the use of testimony hearsay as evidence, but not the use of opinions based on such hearsay. The experts in this case presented their own opinions of the language at issue (from phone calls) and were not mere conduits for the presentation of that language to the jury. Second, Martin argued that a 1980 conviction for armed robbery should not have been admitted for impeachment purposes. The court disagreed, finding that if error was committed (which seems likely), it was not prejudicial. Third, Martin argued that had the Supreme Court's decision in Gall been decided prior to his sentencing hearing the district court would have varied from the 360-month sentence advised by the Guidelines. The court disagreed, holding that it can review only the sentence imposed, without consideration of what the district court might have done in different circumstances. Finally, the court rejected Martin's argument to retroactively impose the amended crack guidelines to his case.
Begay Has No Impact on ACCA Listed Offenses
US v. Thompson: Thompson pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government argued that his six prior North Carolina convictions for "breaking or entering" were crimes of violence and thus Thompson should be sentenced as an Armed Career Criminal. The district court disagreed, concluding that under the Supreme Court's decision in Begay "violent felonies" under the ACCA must have "an element that demonstrates the likelihood that an assailant would come in contact with another person" and that Thompson's prior convictions did not meet that test. The district court sentenced Thompson to 92 months in prison.
The Government appealed and the Fourth Circuit unanimously reversed. The court noted that in pre-Begay cases (Bowden and Thompson) it had held that North Carolina "breaking or entering" convictions were violent felonies under the ACCA. The court concluded that Begay did not upset its prior holdings because its analysis is concerned with crimes other than the ones specifically listed as being violent felonies. Thompson's convictions, which meet the generic definition of "burglary", a specifically listed offense, therefore qualify as violent felonies.
The Government appealed and the Fourth Circuit unanimously reversed. The court noted that in pre-Begay cases (Bowden and Thompson) it had held that North Carolina "breaking or entering" convictions were violent felonies under the ACCA. The court concluded that Begay did not upset its prior holdings because its analysis is concerned with crimes other than the ones specifically listed as being violent felonies. Thompson's convictions, which meet the generic definition of "burglary", a specifically listed offense, therefore qualify as violent felonies.
Wednesday, November 25, 2009
Items Not Specifically Mentioned in Search Warrant Still Within Its Scope
US v. Phillips: Phillips was charged with and convicted of numerous fraud counts related to the fraudulent use of credit cards and businesses called Phydea (and it's associated website, Phydea.com) and Phydea Equity Fund. After an investigation, postal inspectors executed a search warrant at Phillips's home, which specifically authorized the seizure of documents related to Phydea.com and generally items "relating to fraudulent conduct and financial crimes." Among the items seized, after consultation with the US Attorney's office, were documents related to the Phydea Equity Fund. Prior to trial, Phillips moved to suppress the evidence seized because the material exceeded the scope of the seizure authorized by the search warrant. The district court denied the motion, Phillips was convicted at trial, and sentenced to a 121-month term of imprisonment.
Phillips appealed on the issue of the scope of the search and seizure, but the Fourth Circuit affirmed the district court's decision and Phillips's convictions. The court concluded that the items seized fell "comfortably within the warrant's scope," which the court described as "broad and permissive." The court rejected Phillips's reading that would "require us to hold that an item reasonably encompassed by the terms of the warrant somehow falls outside its scope because the item is probative of charges other than those initial charges set forth by the warrant." Given the intermingling of Phillips's frauds and the links between him, Phydea, and Phydea Equity Fund, the officers executing the search warrant were reasonable in seizing items related to all of them.
Phillips appealed on the issue of the scope of the search and seizure, but the Fourth Circuit affirmed the district court's decision and Phillips's convictions. The court concluded that the items seized fell "comfortably within the warrant's scope," which the court described as "broad and permissive." The court rejected Phillips's reading that would "require us to hold that an item reasonably encompassed by the terms of the warrant somehow falls outside its scope because the item is probative of charges other than those initial charges set forth by the warrant." Given the intermingling of Phillips's frauds and the links between him, Phydea, and Phydea Equity Fund, the officers executing the search warrant were reasonable in seizing items related to all of them.
Court Can't Consult Statement from Related Case to Determine ACCA Applicability
US v. Harcum: Harcum pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was whether Harcum was an Armed Career Criminal, with particular focus on a prior Maryland conviction for second degree assault and whether it was a "crime of violence" under the ACCA.
Harcum was originally charged with assault in the District Court of Maryland in Baltimore City with a supporting Statement of Charges that alleged Harcum punched the victim in the face (sending said victim through a glass window). However, he was not convicted on that charge in that court. Instead, an information was filed in the Circuit Court for Baltimore City, alleging the same offense, on the same day, against the same victim as the District Court charge. However, unlike the District Court charge, the Circuit Court charge did not have an equivalent to the Statement of Charges laying out the offense conduct. Harcum pleaded guilty to second-degree assault based on the information in the Circuit Court.
The issue, both in the district court and in the Fourth Circuit, was whether the district court could look to the Statement of Charges filed in the District Court to determine whether the conviction sustained in the Circuit Court was a crime of violence (the Fourth has previously held that a conviction under the Maryland statute is not per se a crime of violence). The district court concluded that it could and, based on what it found there, concluded that Harcum's conviction was for a crime of violence and sentenced him as an Armed Career Criminal.
The Fourth Circuit disagreed and vacated Harcum's sentence, holding that nothing in the Circuit Court information incorporated the District Court Statement of Charges, either directly or implicitly.
Congrats to the defender office in Maryland on the win!
Harcum was originally charged with assault in the District Court of Maryland in Baltimore City with a supporting Statement of Charges that alleged Harcum punched the victim in the face (sending said victim through a glass window). However, he was not convicted on that charge in that court. Instead, an information was filed in the Circuit Court for Baltimore City, alleging the same offense, on the same day, against the same victim as the District Court charge. However, unlike the District Court charge, the Circuit Court charge did not have an equivalent to the Statement of Charges laying out the offense conduct. Harcum pleaded guilty to second-degree assault based on the information in the Circuit Court.
The issue, both in the district court and in the Fourth Circuit, was whether the district court could look to the Statement of Charges filed in the District Court to determine whether the conviction sustained in the Circuit Court was a crime of violence (the Fourth has previously held that a conviction under the Maryland statute is not per se a crime of violence). The district court concluded that it could and, based on what it found there, concluded that Harcum's conviction was for a crime of violence and sentenced him as an Armed Career Criminal.
The Fourth Circuit disagreed and vacated Harcum's sentence, holding that nothing in the Circuit Court information incorporated the District Court Statement of Charges, either directly or implicitly.
Congrats to the defender office in Maryland on the win!
Tuesday, November 10, 2009
16-Level Enhancement Requires Actual Trafficking in Prior Offense
US v. Maroquin-Bran: Maroquin-Bran was deported following a 1989 conviction in California for "the crime of SALE OR TRANSPORTATION OF MARIJUANA" (yelling in original statute). He reentered the country illegally in 2002 and was charged with illegal reentry in 2007. After pleading guilty, the main issue at sentencing was whether Maroquin-Bran's prior conviction was a "drug trafficking conviction" that triggered the 16-level enhancement under USSG 2K1.2(b)(1)(A). The district court concluded that it was and sentenced to Maroquin-Bran to 57 months in prison, the bottom of the resulting Guideline range.
On appeal, the Fourth Circuit reversed and vacated for further proceedings. Following in the footsteps of every other circuit to resolve the issue, the court held that in order for the enhancement to apply, the specific offense that the defendant was convicted of committing must be a "drug trafficking offense." It is not enough that the statute under which the conviction was obtained includes both trafficking and non-trafficking offenses. In other words, if the same statute addresses possession and distribution, the enhancement only applies if the prior conviction was actually for distribution, not possession. Because the district court was without that guidance initially, the court remanded the case for a determination of whether Maroquin-Bran's actual conviction was a drug trafficking conviction.
Congrats to the EDNC defender office on the win!
On appeal, the Fourth Circuit reversed and vacated for further proceedings. Following in the footsteps of every other circuit to resolve the issue, the court held that in order for the enhancement to apply, the specific offense that the defendant was convicted of committing must be a "drug trafficking offense." It is not enough that the statute under which the conviction was obtained includes both trafficking and non-trafficking offenses. In other words, if the same statute addresses possession and distribution, the enhancement only applies if the prior conviction was actually for distribution, not possession. Because the district court was without that guidance initially, the court remanded the case for a determination of whether Maroquin-Bran's actual conviction was a drug trafficking conviction.
Congrats to the EDNC defender office on the win!
Monday, November 09, 2009
Consideration of Uncharged Conduct at Sentecing OK
US v. Grubbs: Grubbs pleaded guilty to six counts of transporting a minor with intent to engage in sexual activity and six counts of travelling interstate to engage in sexual activity with a minor. Those charges involved two victims. In the PSR, the probation officer set forth allegations from nine other victims of similar conduct by Grubbs in the past.
At sentencing, the district court "expressed its concern" that the Guideline range of 151-188 months was not sufficient to fully account for Grubbs's conduct, as it was based only on the counts in the indictment and did not take into account the additional allegations in the PSR. Over Grubbs's objection, the district court concluded that the uncharged conduct was reliable enough to be used at sentencing and departed upwards both as to offense level and criminal history category, raising the Guideline range to 210-262 months. Grubbs received a 240-month sentence.
On appeal, the Fourth Circuit affirmed Grubbs's sentence. Grubbs's primary arguments on appeal related to the use of uncharged conduct to enhance his sentence.
First, he argued that the sentence violated his Sixth Amendment rights under Booker because the 240-month sentence is unreasonable if based only on the offenses of conviction. In other words, only by using uncharged conduct could the sentence be reasonable (this is essentially the argument from Scalia's dissent in Rita). The court rejected that argument as "nullified by clear Supreme Court and Fourth Circuit precedent" allowing the use of uncharged and acquitted conduct at sentencing. Booker, the court held, did not change that precedent.
Second, Grubbs argued that the sentence violated his Fifth Amendment due process rights because it was based on conduct not proven by clear and convincing evidence. Applying plain error (Grubbs did not specifically object to the use of a preponderance standard), the court concluded there was no error, "plain or otherwise," In doing so, the court concluded that whatever viability the potential exception to the general preponderance standard at sentencing suggested in McMillan v. Pennsylvania - where the enhancement is the "tail that wags the dog of the substantive offense" - has been "nullified" in light of Booker. Adopting a Sixth Circuit formulation, the court explains that challenges to large sentencing enhancements are properly dealt with in terms of Booker reasonableness review, not due process.
The court also rejected Grubbs's argument that the Guidelines had been improperly calculated.
At sentencing, the district court "expressed its concern" that the Guideline range of 151-188 months was not sufficient to fully account for Grubbs's conduct, as it was based only on the counts in the indictment and did not take into account the additional allegations in the PSR. Over Grubbs's objection, the district court concluded that the uncharged conduct was reliable enough to be used at sentencing and departed upwards both as to offense level and criminal history category, raising the Guideline range to 210-262 months. Grubbs received a 240-month sentence.
On appeal, the Fourth Circuit affirmed Grubbs's sentence. Grubbs's primary arguments on appeal related to the use of uncharged conduct to enhance his sentence.
First, he argued that the sentence violated his Sixth Amendment rights under Booker because the 240-month sentence is unreasonable if based only on the offenses of conviction. In other words, only by using uncharged conduct could the sentence be reasonable (this is essentially the argument from Scalia's dissent in Rita). The court rejected that argument as "nullified by clear Supreme Court and Fourth Circuit precedent" allowing the use of uncharged and acquitted conduct at sentencing. Booker, the court held, did not change that precedent.
Second, Grubbs argued that the sentence violated his Fifth Amendment due process rights because it was based on conduct not proven by clear and convincing evidence. Applying plain error (Grubbs did not specifically object to the use of a preponderance standard), the court concluded there was no error, "plain or otherwise," In doing so, the court concluded that whatever viability the potential exception to the general preponderance standard at sentencing suggested in McMillan v. Pennsylvania - where the enhancement is the "tail that wags the dog of the substantive offense" - has been "nullified" in light of Booker. Adopting a Sixth Circuit formulation, the court explains that challenges to large sentencing enhancements are properly dealt with in terms of Booker reasonableness review, not due process.
The court also rejected Grubbs's argument that the Guidelines had been improperly calculated.
Friday, October 30, 2009
Forced Medication Requries Clear and Convincing Evidence
US v. Bush: Barbara Bush (no, not that one) was charged with two counts of threatening a federal judge. She suffers from "Delusional Disorder, Persecutory Type," which manifests itself in "extreme litigiousness" - she filed more than 100 civil suits since 1995, one of which exploded into this case. As part of that litigation, she wrote a letter to several federal judges whom she believed had wronged her, outlining a theory of self defense (taken from a 1907 treatise) that she concluded would allow her to "slay any of such persons or all of them" (or attempt to "if she misses") who might do her continued harm. A second letter followed shortly thereafter.
After being arrested on the threat charges, Bush was sent to FMC Carswell for an evaluation where she was diagnosed. The evaluation concluded that Bush was incompetent to stand trial but that medication could restore her competency. Bush refused to take the medication, so the Government moved for an order to forcibly medicate her. At one of several hearings, Bush's personal physician agreed with the diagnosis from FMC Carswell, but disagreed that medication would help. One of the FMC Carswell docs testified that despite the "common wisdom" that conditions like Bush's would not respond to medication, he disagreed, partly based a fresh study (done after Bush's evaluation) from FMC Butner. The district court ordered Bush medicated, applying the analysis from Sell v. US.
Bush sought an interlocutory appeal and the district court's order was stayed. On appeal, the Fourth Circuit unanimously reversed the district court and remanded for further proceedings. First, the court held that in order to obtain an order to forcibly medicate a defendant the Government must satisfy all four prongs of the Sell analysis by clear and convincing evidence, rather than a mere preponderance. Applying that standard of proof, the court found the record lacking on the second Sell prong - whether medication will "significantly further" the government's interest in prosecution - and remanded to the district court for further proceedings on that issue. The court also remanded because the district court failed to address whether forced medication was medically appropriate and would serve Bush's best medical interests.
After being arrested on the threat charges, Bush was sent to FMC Carswell for an evaluation where she was diagnosed. The evaluation concluded that Bush was incompetent to stand trial but that medication could restore her competency. Bush refused to take the medication, so the Government moved for an order to forcibly medicate her. At one of several hearings, Bush's personal physician agreed with the diagnosis from FMC Carswell, but disagreed that medication would help. One of the FMC Carswell docs testified that despite the "common wisdom" that conditions like Bush's would not respond to medication, he disagreed, partly based a fresh study (done after Bush's evaluation) from FMC Butner. The district court ordered Bush medicated, applying the analysis from Sell v. US.
Bush sought an interlocutory appeal and the district court's order was stayed. On appeal, the Fourth Circuit unanimously reversed the district court and remanded for further proceedings. First, the court held that in order to obtain an order to forcibly medicate a defendant the Government must satisfy all four prongs of the Sell analysis by clear and convincing evidence, rather than a mere preponderance. Applying that standard of proof, the court found the record lacking on the second Sell prong - whether medication will "significantly further" the government's interest in prosecution - and remanded to the district court for further proceedings on that issue. The court also remanded because the district court failed to address whether forced medication was medically appropriate and would serve Bush's best medical interests.
Tuesday, October 20, 2009
Sex-Related SR Conditions Vacated in Threats Case
US v. Armel: Armel called a local FBI office in Virginia, claiming that the Bureau tried to kill him and owed him money. He called back shortly thereafter and claimed that if he didn't get "paid" the people in the office were "gonna' lose you're [sic] genitalia," that "God promised me he would curse you," and that if "[y]ou come and try to pull on me . . . [y]ou will die." He punctuated the final phone call (of three total) with a warning to "[g]et it straight or fucking die!" Armel was arrested and charged with threatening federal officials under 18 USC 115(a)(1)(B). After being convicted at a bench trial, Armel was sentenced to prison and a term of supervised release term that included special conditions involving pornography, contact with children, and mandated sex offender testing.
Armel appealed both his conviction and his sentence to the Fourth Circuit, which affirmed the conviction but vacated the special conditions of supervised release (Armel's term of imprisonment had ended by the time the case was decided).
On the conviction, the court concluded that there was sufficient evidence to support Armel's conviction, both because the statements at issue were true threats and they were directed to a small group of specific people (the employees in one particular FBI office) even if they were not directed at specific named individuals.
With regards to the supervised release conditions, the court found that, while the district court noted that they were "very rigid," it did not provide any basis for why such conditions were necessary in this case, in light of 3553(a). The conditions were not asked for by the Government, which did not argue that they were appropriate on appeal. Lacking any support in the record, the conditions were vacated and the case remanded for resentencing.
Congrats to the Defender office in the Eastern District of Virginia on the win!
Armel appealed both his conviction and his sentence to the Fourth Circuit, which affirmed the conviction but vacated the special conditions of supervised release (Armel's term of imprisonment had ended by the time the case was decided).
On the conviction, the court concluded that there was sufficient evidence to support Armel's conviction, both because the statements at issue were true threats and they were directed to a small group of specific people (the employees in one particular FBI office) even if they were not directed at specific named individuals.
With regards to the supervised release conditions, the court found that, while the district court noted that they were "very rigid," it did not provide any basis for why such conditions were necessary in this case, in light of 3553(a). The conditions were not asked for by the Government, which did not argue that they were appropriate on appeal. Lacking any support in the record, the conditions were vacated and the case remanded for resentencing.
Congrats to the Defender office in the Eastern District of Virginia on the win!
Tuesday, August 18, 2009
Good Faith Saves Search Based on Anticipatory Warrant
US v. Andrews: Andrews was convicted of being a felon in possession of a firearm after officers recovered a gun during the search of his home pursuant to a warrant. The warrant was issued after a package was intercepted at the local FedEx depot that contained marijuana. Although it was not addressed to Andrews (by name or by street address), circumstances, including a call from the shipper modifying the address (still not Andrews's), led officers to believe it was meant for him. They obtained an anticipatory search warrant set to become effective once Andrews took delivery of the box. Andrews took delivery of the box, took it inside briefly, and then took it to another nearby home. He was arrested at that point and the search, which uncovered the gun, took place.
As before the district court, on appeal Andrews argued that the search of his home violated the Fourth Amendment. The Fourth Circuit disagreed (as did the district court, obviously) and affirmed his conviction. Applying Leon, the court concluded that the facts presented to the issuing magistrate were not so deficient such that they clearly failed to establish probable cause or that the magistrate acted merely as a rubber stamp for the officer. The court also rejected Andrews's argument that the officer who obtained the warrant had misled the issuing magistrate by leaving out relevant information about the location of the search.
As before the district court, on appeal Andrews argued that the search of his home violated the Fourth Amendment. The Fourth Circuit disagreed (as did the district court, obviously) and affirmed his conviction. Applying Leon, the court concluded that the facts presented to the issuing magistrate were not so deficient such that they clearly failed to establish probable cause or that the magistrate acted merely as a rubber stamp for the officer. The court also rejected Andrews's argument that the officer who obtained the warrant had misled the issuing magistrate by leaving out relevant information about the location of the search.
Jurisdiction Proper in North Carolina to Prosecute Assault in Afghanistan
US v. Passaro: This case arises from an "interrogation" Passaro, a former special forces medic (apparently a civilian contractor at the time of the incident), inflicted upon an Afghan detainee at a small US base in Afghanistan in 2003. The interrogation consisted mostly of beating and kicking (the suspect died shortly thereafter), which led to Passaro being charged and convicted of assault with a deadly weapon and assault resulting in serious bodily injury (two counts of each) and being sentenced to a 100-month term of imprisonment. The wrinkle is that, while the crime occurred in Afghanistan, it was prosecuted in the Eastern District of NC when Passaro returned to the United States.
On appeal, Passaro challenged his conviction and both he and the Government challenged his sentence. As to the conviction, Passaro first argued that the district court in North Carolina lacked the jurisdiction over acts committed in Afghanistan. The Fourth Circuit disagreed, arguing that the language of 18 USC 7(9) extended jurisdiction to incidents that happened at the US base in Afghanistan. The court also turned away Passaro's argument that the prosecution violated separation of powers principals because the courts were interfering with the executive's foreign policy authority, noting that the executive was the one that brought the prosecution in the first place. In addition, the court concluded that the statute under which Passaro was convicted, 18 USC 113, was not unconstitutionally vague, rejecting his argument that his "battlefield interrogation" could not be an "assault." Passaro's argument that the district court erred in dealing with classified information denied him a fair trial was similarly turned away.
As to sentencing, both Passaro and the Government agreed that the district court's Guideline calculations were wrong (although for slightly different reasons), therefore Passaro's sentence was vacated and the case remanded for resentencing.
On appeal, Passaro challenged his conviction and both he and the Government challenged his sentence. As to the conviction, Passaro first argued that the district court in North Carolina lacked the jurisdiction over acts committed in Afghanistan. The Fourth Circuit disagreed, arguing that the language of 18 USC 7(9) extended jurisdiction to incidents that happened at the US base in Afghanistan. The court also turned away Passaro's argument that the prosecution violated separation of powers principals because the courts were interfering with the executive's foreign policy authority, noting that the executive was the one that brought the prosecution in the first place. In addition, the court concluded that the statute under which Passaro was convicted, 18 USC 113, was not unconstitutionally vague, rejecting his argument that his "battlefield interrogation" could not be an "assault." Passaro's argument that the district court erred in dealing with classified information denied him a fair trial was similarly turned away.
As to sentencing, both Passaro and the Government agreed that the district court's Guideline calculations were wrong (although for slightly different reasons), therefore Passaro's sentence was vacated and the case remanded for resentencing.
DC Use of Presumption of Reasonableness Requires Resentencing
US v. Raby: Raby pleaded guilty to possession of child porn and faced a Guideline range of 210-262 months. Over the course of several sentencing hearings, during which Raby argued for a variance and the Government sang from the Guideline hymnal, the district court judge repeatedly stated that he didn't see how he could impose anything other than a Guideline sentence without getting reversed on appeal. In the end, he imposed a 210-month sentence, explaining that he wasn't at liberty to consider any of the several mitigating factors without being "unreasonable."
Years pass, as the case languishes on appeal. In the interim, the Supreme Court decides Gall and other cases that both uphold the presumption of reasonableness as an appellate review tool, but make clear that district court's cannot apply it at the initial sentencing. The Fourth Circuit, after lots of direct quotations from the numerous sentencing hearings, concluded that the district court erroneously applied the presumption at sentencing and, thus, Raby's sentence was procedurally unreasonable. His sentence was vacated and the case remanded for a new sentencing hearing.
Congrats to the defender office in the SDWV for the win!
Years pass, as the case languishes on appeal. In the interim, the Supreme Court decides Gall and other cases that both uphold the presumption of reasonableness as an appellate review tool, but make clear that district court's cannot apply it at the initial sentencing. The Fourth Circuit, after lots of direct quotations from the numerous sentencing hearings, concluded that the district court erroneously applied the presumption at sentencing and, thus, Raby's sentence was procedurally unreasonable. His sentence was vacated and the case remanded for a new sentencing hearing.
Congrats to the defender office in the SDWV for the win!
Wednesday, July 22, 2009
Maker of Fake Money Not Necessarily a "Leader" of Operation
US v. Cameron: Cameron was caught trying to pass a counterfeit $20 bill at a store in Dunbar. Police who responded secured a second fake $20 and an admission from Cameron that he intended to pass it. Searches of Cameron's grandmother's home and his sister's home follow, uncovering various implements and equipment that could be used for making counterfeit bills. In particular, officers seized a computer from his sister's house that had, on the hard drive, a single image of a counterfeit $20 bill. Cameron went to trial and was convicted of producing and uttering counterfeit currency.
At sentencing, his offense level was enhanced under USSG 3B1.1(a) for being an "organizer or leader" of the counterfeiting operation. However, at sentencing, the Government's sole witness actually testified that she barely knew Cameron, didn't know much of his role in the operation, that he did not recruit her, nor did he get a cut of the scheme's proceeds. Nonetheless, the district court overruled Cameron's objection and imposed the enhancement. Cameron was sentenced to 46 months in prison.
On appeal, Cameron challenged both his production conviction and the application of the leadership enhancement. The Fourth Circuit affirmed the conviction, concluding that there was sufficient evidence collected from the two searches (there was no testimony from inside the operation at trial) to allow a jury to conclude that the Government met its burden of proof.
However, the Fourth Circuit vacated the sentence because of the application of the leadership enhancement. Reiterating both earlier precedent and Guideline commentary that the enhancement only applies to the supervision of other people, not property. It rejected the Government's argument that because Cameron made the bills he must have exercised some leadership role in the operation. The court also noted that the Guidelines provide a separate enhancement in counterfeiting cases for the person who actually makes the fake bills.
Congrats to the SDWV defender office on the win!
At sentencing, his offense level was enhanced under USSG 3B1.1(a) for being an "organizer or leader" of the counterfeiting operation. However, at sentencing, the Government's sole witness actually testified that she barely knew Cameron, didn't know much of his role in the operation, that he did not recruit her, nor did he get a cut of the scheme's proceeds. Nonetheless, the district court overruled Cameron's objection and imposed the enhancement. Cameron was sentenced to 46 months in prison.
On appeal, Cameron challenged both his production conviction and the application of the leadership enhancement. The Fourth Circuit affirmed the conviction, concluding that there was sufficient evidence collected from the two searches (there was no testimony from inside the operation at trial) to allow a jury to conclude that the Government met its burden of proof.
However, the Fourth Circuit vacated the sentence because of the application of the leadership enhancement. Reiterating both earlier precedent and Guideline commentary that the enhancement only applies to the supervision of other people, not property. It rejected the Government's argument that because Cameron made the bills he must have exercised some leadership role in the operation. The court also noted that the Guidelines provide a separate enhancement in counterfeiting cases for the person who actually makes the fake bills.
Congrats to the SDWV defender office on the win!
Tuesday, July 21, 2009
Failure to Give Justification Defense Requires Reversal of Felon-in-Possession Conviction
US v. Ricks: Ricks's partner, Blue, returned to their home after several days absence, acting strangely. Ricks noticed that Blue had a gun in his hand, so Ricks pinned him against the wall and knocked the gun out of his hand. Ricks then picked up the gun, removed the clip, and tossed the gun and clip away in opposite directions. Blue fled. Ricks picked up the gun and the clip and placed them (without putting the clip back in the gun) on a dresser in their bedroom and returned to the living room to watch TV. About 15 minutes later, Blue returned to the home with two police officers. Ricks admitted there was a gun in the house and admitted he had a prior felony conviction.
Ricks was charged with being a felon in possession of a firearm. At trial, he requested a jury instruction on justification, which the district court denied. The court concluded that such a defense was not available in this circuit, as the Fourth Circuit had never held that the defense existed. However, the district court indicated that, if the defense were available, it would apply in this case. Ricks was convicted at trial.
While he was awaiting sentencing, the Fourth Circuit decided the Mooney case, in which the Fourth Circuit held that failure to inform a defendant that the defense was available constituted ineffective assistance of counsel. The district court held a sue spontehearing as to what application Mooney had to Ricks's case. Reversing itself, somewhat, the district court concluded that although a justification defense was apparently available in the Fourth Circuit, it was not applicable in this case. Therefore, Ricks's conviction stood and he was sentenced to 180 months in prison.
On appeal, the Fourth Circuit unanimously reversed. The parties agreed on appeal that the district court's initial decision that the justification defense was not available in the Fourth Circuit was error. Therefore, the only issue on appeal is whether the facts of the case supported the jury being instructed about the defense. As to that issue, the focus was on what Ricks did with the gun after Blue fled their home. The Government argued that because Ricks left the gun in the home afterwards, he "had other reasonable alternatives to continued possession of the gun." The Fourth Circuit disagreed, essentially concluding that a properly instructed jury could have found otherwise. Critically, the court refused the Government's invitation to hold that the method of dispossessing the firearm in Mooney- turning it over to police as soon as possible - is the only means to do so. The Government also tried to argue that Ricks's constructive possession of the gun extended to the point where the police officers arrived, but the court concluded that there was insufficient evidence to concluded that Ricks intended to exercise continued dominion and control over the gun left in the bedroom.
Ricks's conviction, therefore, was reversed.
Congrats to the FPD office in the WDNC on the win!
Ricks was charged with being a felon in possession of a firearm. At trial, he requested a jury instruction on justification, which the district court denied. The court concluded that such a defense was not available in this circuit, as the Fourth Circuit had never held that the defense existed. However, the district court indicated that, if the defense were available, it would apply in this case. Ricks was convicted at trial.
While he was awaiting sentencing, the Fourth Circuit decided the Mooney case, in which the Fourth Circuit held that failure to inform a defendant that the defense was available constituted ineffective assistance of counsel. The district court held a sue spontehearing as to what application Mooney had to Ricks's case. Reversing itself, somewhat, the district court concluded that although a justification defense was apparently available in the Fourth Circuit, it was not applicable in this case. Therefore, Ricks's conviction stood and he was sentenced to 180 months in prison.
On appeal, the Fourth Circuit unanimously reversed. The parties agreed on appeal that the district court's initial decision that the justification defense was not available in the Fourth Circuit was error. Therefore, the only issue on appeal is whether the facts of the case supported the jury being instructed about the defense. As to that issue, the focus was on what Ricks did with the gun after Blue fled their home. The Government argued that because Ricks left the gun in the home afterwards, he "had other reasonable alternatives to continued possession of the gun." The Fourth Circuit disagreed, essentially concluding that a properly instructed jury could have found otherwise. Critically, the court refused the Government's invitation to hold that the method of dispossessing the firearm in Mooney- turning it over to police as soon as possible - is the only means to do so. The Government also tried to argue that Ricks's constructive possession of the gun extended to the point where the police officers arrived, but the court concluded that there was insufficient evidence to concluded that Ricks intended to exercise continued dominion and control over the gun left in the bedroom.
Ricks's conviction, therefore, was reversed.
Congrats to the FPD office in the WDNC on the win!
Tuesday, July 07, 2009
Conspiracy Is "Violent Felony" Under ACCA
US v. White: White was convicted of being a felon in possession of a firearm and was sentenced as an Armed Career Criminal. The only issue on appeal was whether one of White's priors - a North Carolina conviction for conspiracy to commit robbery with a dangerous weapon - qualifies as a "violent felony" for ACCA purposes. The Fourth Circuit concluded that it does.
White argued that because conspiracy in North Carolina does not have an overt act as an element, it failed to present the a degree of risk similar to the offenses listed in the definition of violent felony. The court disagreed, noting that a defendant must intend the conspiratorial agreement be carried out in order to be guilty of the offense. In addition, the conspiracy offense is similar in kind to the other enumerated offenses in the ACCA.
White argued that because conspiracy in North Carolina does not have an overt act as an element, it failed to present the a degree of risk similar to the offenses listed in the definition of violent felony. The court disagreed, noting that a defendant must intend the conspiratorial agreement be carried out in order to be guilty of the offense. In addition, the conspiracy offense is similar in kind to the other enumerated offenses in the ACCA.
Carjacking Conviction Affirmed Over Numerous Objections
US v. Blake: Blake and Tolbert were involved in a carjacking in Maryland, during which the driver of the car was shot in the head, run over, and killed. Tolbert was arrested shortly thereafter and gave a statement basically admitting to being part of the process but putting the gun in Blake's hand and the ideas in Blake's head. That statement provided probable cause to arrest Blake.
Once at the station, Blake demanded a lawyer and was placed in a cell. He received a notice of the charges to be filed against him, which incorrectly stated that he faced the death penalty (at 17, he was too young to qualify in Maryland). The notice of charges also included a summary of what Tolbert had told the officers. At one point, while Blake was in the cell, an officer not otherwise involved in the investigation who was accompanying the lead officer taunted Blake, saying "I bet you want to talk now, huh?" He was escorted out by the lead officer, who said, "no, he doesn't want to talk to us, you can't say anything to him, he asked for a lawyer." Later, when the lead officer went to take Blake some clothes, Blake asked if he could talk to him. Blake was re-Mirandized and gave a statement, admitting to being present during the carjacking, but putting the gun in Tolbert's hands.
Blake was charged in Maryland with murder. He moved to suppress the statements he made after his arrest, arguing that they were made in violation of his already invoked right to counsel. The case bounced around the Maryland courts and was eventually accepted for review by the Supreme Court, which later dismissed the case as having been improvidently granted. As a result, Blake was never convicted of the charges in Maryland. Blake was then charged in federal court of, among other things, carjacking causing death. He was convicted and sentenced to life in prison.
On appeal, Blake made several arguments attacking his conviction, all of which the Fourth Circuit rejected. First, Blake made the same argument that had been successful in the Maryland courts, that his statements should have been suppressed. The court disagreed, holding that the officer's taunt about Blake wanting to talk wasn't interrogation and therefore did not violate Blake's right to counsel. The fact that Blake was re-Mirandized and otherwise cooperative after asking to resume conversations with the lead officer was also key. Second, Blake argued that the federal court lacked jurisdiction over him because he was only 17 at the time of the crime and the Government had not complied with the procedures set forth in the Juvenile Delinquency Act.
The court also concluded that Blake was, in fact, not a juvenile by the time federal charges were brought (three months after his 21st birthday) and therefore the JDA had no application to him. The court also concluded that the trial court did not abuse its discretion by denying Blake's request for a mistrial based on statements made during the Government's opening statement, in allowing evidence about a polygraph examination Blake took, allowing a prosecution witness to testify sooner rather than later at trial, or in excluding as hearsay the testimony of a defense witness. Finally, the court rejected Blake's argument that the district court erred in instructing the jury on the death element of the carjacking offense.
Once at the station, Blake demanded a lawyer and was placed in a cell. He received a notice of the charges to be filed against him, which incorrectly stated that he faced the death penalty (at 17, he was too young to qualify in Maryland). The notice of charges also included a summary of what Tolbert had told the officers. At one point, while Blake was in the cell, an officer not otherwise involved in the investigation who was accompanying the lead officer taunted Blake, saying "I bet you want to talk now, huh?" He was escorted out by the lead officer, who said, "no, he doesn't want to talk to us, you can't say anything to him, he asked for a lawyer." Later, when the lead officer went to take Blake some clothes, Blake asked if he could talk to him. Blake was re-Mirandized and gave a statement, admitting to being present during the carjacking, but putting the gun in Tolbert's hands.
Blake was charged in Maryland with murder. He moved to suppress the statements he made after his arrest, arguing that they were made in violation of his already invoked right to counsel. The case bounced around the Maryland courts and was eventually accepted for review by the Supreme Court, which later dismissed the case as having been improvidently granted. As a result, Blake was never convicted of the charges in Maryland. Blake was then charged in federal court of, among other things, carjacking causing death. He was convicted and sentenced to life in prison.
On appeal, Blake made several arguments attacking his conviction, all of which the Fourth Circuit rejected. First, Blake made the same argument that had been successful in the Maryland courts, that his statements should have been suppressed. The court disagreed, holding that the officer's taunt about Blake wanting to talk wasn't interrogation and therefore did not violate Blake's right to counsel. The fact that Blake was re-Mirandized and otherwise cooperative after asking to resume conversations with the lead officer was also key. Second, Blake argued that the federal court lacked jurisdiction over him because he was only 17 at the time of the crime and the Government had not complied with the procedures set forth in the Juvenile Delinquency Act.
The court also concluded that Blake was, in fact, not a juvenile by the time federal charges were brought (three months after his 21st birthday) and therefore the JDA had no application to him. The court also concluded that the trial court did not abuse its discretion by denying Blake's request for a mistrial based on statements made during the Government's opening statement, in allowing evidence about a polygraph examination Blake took, allowing a prosecution witness to testify sooner rather than later at trial, or in excluding as hearsay the testimony of a defense witness. Finally, the court rejected Blake's argument that the district court erred in instructing the jury on the death element of the carjacking offense.
Friday, June 19, 2009
Court Rejects Numerous Challenges to SORNA Conviction
US v. Gould: Gould was convicted of a sex offense in DC in 1985. After his release he moved several times in the states surrounding the District. He finally settled in Maryland in August 2006. He did not register as a sex offender, as required by state law. In July 2007, Gould was charged federally with failing to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"). He moved to dismiss the indictment on various grounds, but the district court declined to do so. He entered a conditional plea and was sentenced to 24 months in prison.
On appeal, the Fourth Circuit affirmed Gould's conviction, rejected several of the arguments he had raised below.
First, Gould had argued that SORNA could not be applied to him because, at the time of his indictment, Maryland had not yet updated its sex offender registration procedure to conform with SORNA requirements. In other words, because he could not register in the way SORNA set forth, he could not be convicted for failing to do so. The court concluded otherwise, holding that the criminal provisions of SORNA are separate and apart from the spending/state mandate provisions of SORNA that requires action from the states. Maryland had a means for registration and Gould's failure to avail himself of it was sufficient. For similar reasons, Gould's ex post facto claim was also rejected.
Second, Gould argued that he could not comply with SORNA's registration requirement because it requires registration before completion of a sentence, which he completed in 2002, prior to SORNA's passage. The court noted that this argument "bootstraps on his first argument" due to Maryland's failure to come up to SORNA standards with its registration scheme. Regardless, because Maryland law required Gould to register when he came to the state, SORNA applied to him. The court also noted that Gould was aware of his general duty to register, as he had done so in other states before he moved to Maryland. He was not in the (very small) category of offenders who wasn't required to register with anybody until SORNA's passage.
Third, Gould argued that it could not be proven that he "knowingly" failed to comply with SORNA registration requirements because the Government never notified him of those requirements, as the law requires. However, the court held that the word "knowingly" modifies "fails to register" and thus relates to the Maryland state requirement that he register, not SORNA's specific requirements. Conviction under SORNA does not require knowing that a failure to register violates federal law.
Fourth, Gould argued that the interim regulations promulgated by the Attorney General clarifying that SORNA applied to defendants convicted before it was enacted violated the Administrative Procedures Act. The regulation was enacted without notice and without the required 30-day waiting notice. The court concluded that the AG had good cause to do so, given the "need for legal certainty about SORNA's 'retroactive' application . . ." Delay "could reasonably be found to put the public safety at greater risk."
Finally, Gould argued that SORNA exceeded the scope of Congressional power under the Commerce Clause. The court noted that one of the elements of a SORNA offense is that the defendant "must travel in interstate commerce" and that the Act applies even when the act of failing to register is purely intrastate. The court pointed out several other statutes that criminalize "local acts" undertaken after interstate travel. As explained by the court, "[t]here must be a conviction that gives rise to the registration requirement, subsequent interstate travel, and a failure to register." That conclusion is in line with other circuits have decided the issue.
Judge Michael dissented, arguing that the AG's reason for promulgating a rule without following the APA procedures was inadequate. Because Gould's conviction relied upon that regulation, it must be reversed.
On appeal, the Fourth Circuit affirmed Gould's conviction, rejected several of the arguments he had raised below.
First, Gould had argued that SORNA could not be applied to him because, at the time of his indictment, Maryland had not yet updated its sex offender registration procedure to conform with SORNA requirements. In other words, because he could not register in the way SORNA set forth, he could not be convicted for failing to do so. The court concluded otherwise, holding that the criminal provisions of SORNA are separate and apart from the spending/state mandate provisions of SORNA that requires action from the states. Maryland had a means for registration and Gould's failure to avail himself of it was sufficient. For similar reasons, Gould's ex post facto claim was also rejected.
Second, Gould argued that he could not comply with SORNA's registration requirement because it requires registration before completion of a sentence, which he completed in 2002, prior to SORNA's passage. The court noted that this argument "bootstraps on his first argument" due to Maryland's failure to come up to SORNA standards with its registration scheme. Regardless, because Maryland law required Gould to register when he came to the state, SORNA applied to him. The court also noted that Gould was aware of his general duty to register, as he had done so in other states before he moved to Maryland. He was not in the (very small) category of offenders who wasn't required to register with anybody until SORNA's passage.
Third, Gould argued that it could not be proven that he "knowingly" failed to comply with SORNA registration requirements because the Government never notified him of those requirements, as the law requires. However, the court held that the word "knowingly" modifies "fails to register" and thus relates to the Maryland state requirement that he register, not SORNA's specific requirements. Conviction under SORNA does not require knowing that a failure to register violates federal law.
Fourth, Gould argued that the interim regulations promulgated by the Attorney General clarifying that SORNA applied to defendants convicted before it was enacted violated the Administrative Procedures Act. The regulation was enacted without notice and without the required 30-day waiting notice. The court concluded that the AG had good cause to do so, given the "need for legal certainty about SORNA's 'retroactive' application . . ." Delay "could reasonably be found to put the public safety at greater risk."
Finally, Gould argued that SORNA exceeded the scope of Congressional power under the Commerce Clause. The court noted that one of the elements of a SORNA offense is that the defendant "must travel in interstate commerce" and that the Act applies even when the act of failing to register is purely intrastate. The court pointed out several other statutes that criminalize "local acts" undertaken after interstate travel. As explained by the court, "[t]here must be a conviction that gives rise to the registration requirement, subsequent interstate travel, and a failure to register." That conclusion is in line with other circuits have decided the issue.
Judge Michael dissented, arguing that the AG's reason for promulgating a rule without following the APA procedures was inadequate. Because Gould's conviction relied upon that regulation, it must be reversed.
Thursday, June 18, 2009
Court Affirms Drug, Gun Convictions Against Multiple Claims of Error
US v. Jeffers: Jeffers was involved with crack distribution in western Virginia. After a three-day trial, he was convicted of conspiracy to distribute 50 grams or more of crack and carrying a firearm in connection with that offense. He was sentenced to a total of 302 months in prison. He raised several challenges on appeal to his conviction and sentence, all of which the Fourth Circuit rejected.
First, Jeffers argued that his due process rights were violated when certain proceedings were held but not transcribed by the court reporter, particularly the charge conference. While noting that Jeffers had a due process right to an appeal with a complete transcript, the court concluded that there is no requirement that the charge conference be held in open court and that counsel had ample opportunity to make any objections to the jury instructions on the record.
Second, Jeffers argued that the evidence was insufficient to sustain the firearm conviction. The court noted that several witnesses linked Jeffers to firearms in relation to drug trafficking and concluded that, in the light most favorable to the Government, the evidence was sufficient.
Third, Jeffers raised several instructional errors relating to the conspiracy charge, including the failure to give a multiple conspiracy instruction, giving an instruction allowing the inference of guilt from attempts to conceal himself after indictment, and the failure to instruct the jury to determine the amount of crack attributable to Jeffers. The court rejected all those argument on a plain error review, as none of them had been preserved at trial.
Fourth, Jeffers challenged two aspects of his sentence: the amount of crack attributed to him and the imposition of a $25,000 fine. The court held that the determination of relevant conduct was amply supported by the evidence in the record and that the fine was not imposed in retaliation for Jeffers not providing financial information to the probation officer on Fifth Amendment grounds.
Finally, Jeffers argued that the Government failed to abide by the discovery provisions in Rule 16 of the Rules of Criminal procedure in that it would not allow him to have copies of certain documents related to controlled buys in the case, although his counsel had access to them at the US Attorney's office. While concluding that the Government failed to abide by the terms of Rule 16, the court held that Jeffers failed to show how he was prejudiced and thus the error was harmless. The court also concluded that Jeffers was not entitled to an acquittal of his convictions under Brady for material that related to several other charges for which he was acquitted.
First, Jeffers argued that his due process rights were violated when certain proceedings were held but not transcribed by the court reporter, particularly the charge conference. While noting that Jeffers had a due process right to an appeal with a complete transcript, the court concluded that there is no requirement that the charge conference be held in open court and that counsel had ample opportunity to make any objections to the jury instructions on the record.
Second, Jeffers argued that the evidence was insufficient to sustain the firearm conviction. The court noted that several witnesses linked Jeffers to firearms in relation to drug trafficking and concluded that, in the light most favorable to the Government, the evidence was sufficient.
Third, Jeffers raised several instructional errors relating to the conspiracy charge, including the failure to give a multiple conspiracy instruction, giving an instruction allowing the inference of guilt from attempts to conceal himself after indictment, and the failure to instruct the jury to determine the amount of crack attributable to Jeffers. The court rejected all those argument on a plain error review, as none of them had been preserved at trial.
Fourth, Jeffers challenged two aspects of his sentence: the amount of crack attributed to him and the imposition of a $25,000 fine. The court held that the determination of relevant conduct was amply supported by the evidence in the record and that the fine was not imposed in retaliation for Jeffers not providing financial information to the probation officer on Fifth Amendment grounds.
Finally, Jeffers argued that the Government failed to abide by the discovery provisions in Rule 16 of the Rules of Criminal procedure in that it would not allow him to have copies of certain documents related to controlled buys in the case, although his counsel had access to them at the US Attorney's office. While concluding that the Government failed to abide by the terms of Rule 16, the court held that Jeffers failed to show how he was prejudiced and thus the error was harmless. The court also concluded that Jeffers was not entitled to an acquittal of his convictions under Brady for material that related to several other charges for which he was acquitted.
Monday, June 08, 2009
Evidence Not Sufficient for Enhanced Statutory Drug Penalties
US v. Kellam: Kellam and his codefendant were convicted on multiple drug counts and, on appeal, each alleged multiple errors at trial. Although the Fourth Circuit affirmed their convictions, the court vacated Kellam's life sentence.
That sentence was imposed after the Government filed an information under 21 USC 851 alleging Kellam had prior convictions that made her eligible for an enhanced sentence. In response to the 851 information, Kellam disputed both of the alleged prior convictions and argued that the Government and not proven beyond a reasonable doubt that she had been convicted of them. The Government produced certified copies of the criminal dockets in the two cases, which the district court concluded proved the convictions.
On appeal, the Fourth concluded that it was "unable to conclude" that the Government had met its burden of proof with regards to the prior convictions. The district court made no finding, and the Government made no effort to prove, that Kellam was the same person named in the documents showing the prior convictions. No photographic or fingerprint evidence was produced to link Kellam with the prior convictions. In addition, the district court failed to ask Kellam at the hearing whether she affirmed or denied that she had been previously convicted. In summary, the court concluded that it was possible, "or perhaps probable," that Kellam was convicted of the prior offenses, but such speculation does not satisfy the burden the Government has to prove that fact beyond a reasonable doubt.
That sentence was imposed after the Government filed an information under 21 USC 851 alleging Kellam had prior convictions that made her eligible for an enhanced sentence. In response to the 851 information, Kellam disputed both of the alleged prior convictions and argued that the Government and not proven beyond a reasonable doubt that she had been convicted of them. The Government produced certified copies of the criminal dockets in the two cases, which the district court concluded proved the convictions.
On appeal, the Fourth concluded that it was "unable to conclude" that the Government had met its burden of proof with regards to the prior convictions. The district court made no finding, and the Government made no effort to prove, that Kellam was the same person named in the documents showing the prior convictions. No photographic or fingerprint evidence was produced to link Kellam with the prior convictions. In addition, the district court failed to ask Kellam at the hearing whether she affirmed or denied that she had been previously convicted. In summary, the court concluded that it was possible, "or perhaps probable," that Kellam was convicted of the prior offenses, but such speculation does not satisfy the burden the Government has to prove that fact beyond a reasonable doubt.
Wednesday, June 03, 2009
No Mistake of Age Defense for Child Porn Manufacture
US v. Malloy: Malloy and a friend twice had sex with a 14-year old girl, one of the times being videotaped by Malloy. He was charged and convicted of sexual exploitation of a minor for the purpose of producing a visual depiction and sentenced to the mandatory minimum sentence of 180 months.
On appeal, the Fourth Circuit affirmed both Malloy's conviction and sentence. As to his conviction, Malloy raised three arguments that the court rejected. First, he argued that a mistake of age defense must be read into section 2251(a) for it to pass First Amendment muster, as without it the statute is overbroad and chills protected speech. Second, he argued that because the indictment charged that he acted "knowingly," although that was not an element of the offense and thus not charged to the jury, the charge against him was constructively amended. Third, he argued that the statute as applied to him exceeded Congress's authority under the Commerce Clause. As to Malloy's sentence, the court rejected his argument that the mandatory minimum penalty violated the Eighth Amendment.
On appeal, the Fourth Circuit affirmed both Malloy's conviction and sentence. As to his conviction, Malloy raised three arguments that the court rejected. First, he argued that a mistake of age defense must be read into section 2251(a) for it to pass First Amendment muster, as without it the statute is overbroad and chills protected speech. Second, he argued that because the indictment charged that he acted "knowingly," although that was not an element of the offense and thus not charged to the jury, the charge against him was constructively amended. Third, he argued that the statute as applied to him exceeded Congress's authority under the Commerce Clause. As to Malloy's sentence, the court rejected his argument that the mandatory minimum penalty violated the Eighth Amendment.
Indicment for Conspiracy Must Define Elements of Underlying Offense
US v. Kingrea: This case arose from a raid on a cockfighting venue in Virginia. Kingrea was there as a vendor of equipment and materials used in the fighting, but did not have an animal involved in the fighting. He was charged with conspiracy to sponsor or exhibit and animal fighting venture and illegal gambling business, conspiracy to sell animal fighting equipment, aiding and abetting the animal fighting operation, and conducing an illegal gambling business. The district court dismissed the substantive animal fighting operation count, but Kingrea was convicted on the other three counts and sentenced to six months in prison and six months of home confinement.
On appeal, the Fourth Circuit reversed Kingrea's conviction on the conspiracy count, while affirming on the other two. On the conspiracy count, the court concluded that the indictment failed to state a necessary element of the offense - that the underlying conspiracy involve "an animal fighting venture" and that the inclusion of that element in the jury instructions amounted to a constructive amendment. The court rejected the Government's argument that because the missing element was part of the object of the conspiracy was not a constitutional error. The court affirmed Kingrea's other two convictions and remanded his case for resentencing.
On appeal, the Fourth Circuit reversed Kingrea's conviction on the conspiracy count, while affirming on the other two. On the conspiracy count, the court concluded that the indictment failed to state a necessary element of the offense - that the underlying conspiracy involve "an animal fighting venture" and that the inclusion of that element in the jury instructions amounted to a constructive amendment. The court rejected the Government's argument that because the missing element was part of the object of the conspiracy was not a constitutional error. The court affirmed Kingrea's other two convictions and remanded his case for resentencing.
Court Narrows Understanding of "Best Evidence" Rule
US v. Smith: Smith was charged with (among other things) being a felon in possession of firearms and possessing firearms in connection with a drug trafficking offense. At trial, the Government presented testimony from an ATF agent who explained that all the firearms were manufactured out of state (and therefore traveled in interstate commerce), based upon his review of ATF databases and written reference materials. Smith objected to that testimony, arguing that without entering the materials upon which the agent relied into evidence, allowing his testimony violated the best evidence rule of FRE 1002. The district court disagreed and allowed the testimony. Smith was convicted and sentenced to 197 months in prison.
On appeal, the Fourth Circuit affirmed Smith's conviction. The court concluded that Smith's argument rested on a "misconception" of FRE 1002, namely that it required the Government to produce the "best evidence" of the information to which the agent testified. In fact, FRE 1002 is better understood as the "original document rule," as it is designed to require production of an original document "to prove the content" of it. The Government never sought to prove the contents of the materials upon which the agent relied, only that the firearms at issue moved in interstate commerce.
The Fourth Circuit did vacate Smith's sentence, as the district court employed a presumption of reasonableness for the Guidelines when it imposed sentence.
On appeal, the Fourth Circuit affirmed Smith's conviction. The court concluded that Smith's argument rested on a "misconception" of FRE 1002, namely that it required the Government to produce the "best evidence" of the information to which the agent testified. In fact, FRE 1002 is better understood as the "original document rule," as it is designed to require production of an original document "to prove the content" of it. The Government never sought to prove the contents of the materials upon which the agent relied, only that the firearms at issue moved in interstate commerce.
The Fourth Circuit did vacate Smith's sentence, as the district court employed a presumption of reasonableness for the Guidelines when it imposed sentence.
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