US v. Hornsby: In this appeal, the CEO of Prince George’s County Public Schools challenged his convictions for honest-services fraud, tampering with evidence, and obstruction of justice, for his involvement in securing two public contracts for school products and services. The Fourth Circuit reversed Andre Hornsby’s convictions for honest-services fraud, and affirmed the obstruction of justice and tampering with evidence convictions. Hornsby’s case was remanded to the district court in Maryland for re-sentencing in accordance with this opinion.
The Fourth Circuit reversed the honest-services fraud convictions because the district court erroneously instructed the jury, in a way the Fourth Circuit found was not harmless, that the jury could convict Hornsby for honest-services fraud based on a conflict of interest.
Thursday, February 02, 2012
922(g)(1) upheld as constitutionally valid
US v. Moore: Not to be outdone by other circuits who have already published on this issue, the Fourth Circuit holds that § 922(g)(1) passes constitutional muster. This statute prohibits formerly convicted felons from possessing firearms. Police had arrested Moore for an outstanding warrant, and while searching him incident to the arrest, officers discovered on him a handgun and ammunition. Moore had prior felony convictions for several offenses.
Because Moore could not distinguish his circumstances from those of other felons who have been traditionally barred from Second Amendment protections, the Fourth Circuit found the statute constitutional as applied to him. In fact, the Fourth Circuit found that Moore’s criminal history (three prior felony convictions for common law robbery and two prior convictions for assault with a deadly weapon on a government official) "clearly demonstrate that is a far from a law-abiding, responsible citizen."
The Fourth Circuit did throw Moore a bone, albeit a small one, when it vacated the order requiring him to pay his court-appointed attorneys’ fees. It was not disputed that Moore was indigent and qualified for a court appointed attorney under the Criminal Justice Act. Additionally, the district court failed to make the necessary findings to support an order of reimbursement, in error. The Fourth Circuit left open the issue of whether it could impose payment of fees at a later date, such as when Moore went on supervised release, i.e., as a condition of release; the Court limited its holding to whether the district court erred in failing to make the statutorily mandated factual finding that "funds were available" for repayment.
Because Moore could not distinguish his circumstances from those of other felons who have been traditionally barred from Second Amendment protections, the Fourth Circuit found the statute constitutional as applied to him. In fact, the Fourth Circuit found that Moore’s criminal history (three prior felony convictions for common law robbery and two prior convictions for assault with a deadly weapon on a government official) "clearly demonstrate that is a far from a law-abiding, responsible citizen."
The Fourth Circuit did throw Moore a bone, albeit a small one, when it vacated the order requiring him to pay his court-appointed attorneys’ fees. It was not disputed that Moore was indigent and qualified for a court appointed attorney under the Criminal Justice Act. Additionally, the district court failed to make the necessary findings to support an order of reimbursement, in error. The Fourth Circuit left open the issue of whether it could impose payment of fees at a later date, such as when Moore went on supervised release, i.e., as a condition of release; the Court limited its holding to whether the district court erred in failing to make the statutorily mandated factual finding that "funds were available" for repayment.
Wednesday, February 01, 2012
Criminal acts after illegal search not intervening event
US v. Gaines: The government appealed a district court’s decision to grant a motion to suppress in this case, in which the district court held that a gun found on a passenger in a vehicle illegally stopped by the police should be suppressed as fruit of the poisonous tree. Gaines was a passenger in a vehicle stopped by police who testified they observed a crack in the rear windshield the vehicle from across an intersection and through a tinted window. The district court did not find the police officers’ testimony credible, and determined that the stop in this case was supported by reasonable suspicion and was unlawful.
The government appealed under an attenuation doctrine theory, in which an assault on the police officers by the defendant after the police located a gun on the defendant served as an intervening event, purging the taint of the initial illegal stop. This government theory relied heavily upon the Fourth Circuit’s decision in U.S. v. Sprinkle, in which the Fourth Circuit recognized that it has "strong policy reason for holding that a new and distinct crime, even if triggered by an illegal stop, is a sufficient intervening event to provide independent grounds for arrest."
Here, however, the Fourth Circuit disagreed with the government’s application of Sprinkle to the facts in Gaines’ case, as the attenuation doctrine placed greatest legal importance and emphasis on the discovery of the evidence, rather than the seizure of evidence. The Fourth Circuit agreed with the district court, finding that Gaines’ illegal conduct occurred after the police had located the gun in his waistband. Thus, because the gun was located prior to any criminal act by Gaines, his criminal act did not serve as an intervening event for purposes of the attenuation doctrine.
Way to go, FPD in MD!
The government appealed under an attenuation doctrine theory, in which an assault on the police officers by the defendant after the police located a gun on the defendant served as an intervening event, purging the taint of the initial illegal stop. This government theory relied heavily upon the Fourth Circuit’s decision in U.S. v. Sprinkle, in which the Fourth Circuit recognized that it has "strong policy reason for holding that a new and distinct crime, even if triggered by an illegal stop, is a sufficient intervening event to provide independent grounds for arrest."
Here, however, the Fourth Circuit disagreed with the government’s application of Sprinkle to the facts in Gaines’ case, as the attenuation doctrine placed greatest legal importance and emphasis on the discovery of the evidence, rather than the seizure of evidence. The Fourth Circuit agreed with the district court, finding that Gaines’ illegal conduct occurred after the police had located the gun in his waistband. Thus, because the gun was located prior to any criminal act by Gaines, his criminal act did not serve as an intervening event for purposes of the attenuation doctrine.
Way to go, FPD in MD!
Assault convictions affirmed
US v. Thomas: In this appeal, a federal inmate challenged his convictions stemming from the assault of a female corrections officer at U.S.P. Hazelton. The Fourth Circuit affirmed the district court.
First, the indictment contained two plain errors, which the government conceded, that count one failed to allege an intent to commit another felony as required under 18 U.S.C. § 111(a) and that count two failed to allege infliction of bodily injury as required under 18 U.S.C. § 111(b). The government contended that while these defects were plain error, they did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings," and the Fourth Circuit agreed, finding that the prison guards’ testimony at trial satisfied the elements missing from the indictment.
Next, the appellant argued that the indictment was "multiplicitous," in that a single offense was charged in two counts in the indictment. The appellant relied on the Supreme Court’s decision in Ladner v. U.S., from 1958, in which the Court held that a single shot fired at multiple officers constituted a single offense. According to the Fourth Circuit, courts have applied Ladner in situations where there is more than one act resulting in assaults, not whether more than one federal officer is injured by the same act. Here, the district court determined, and the Fourth Circuit agreed, that Thomas committed two separate acts, the verbal threats and a punch to the guard’s face; thus, the indictment was not found to be multiplicitous.
Additionally, the appellant argued that the district court improperly sustained hearsay objections to his testimony, thereby denying him the ability to adequately present his defense. The appellant stated that the intended purpose of the statements in question went to his state of mind, not to prove the truth of the matter. The Fourth Circuit disagreed, and found that the statements were properly excluded because they were irrelevant and bore no relation to whether he committed the charged offense.
First, the indictment contained two plain errors, which the government conceded, that count one failed to allege an intent to commit another felony as required under 18 U.S.C. § 111(a) and that count two failed to allege infliction of bodily injury as required under 18 U.S.C. § 111(b). The government contended that while these defects were plain error, they did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings," and the Fourth Circuit agreed, finding that the prison guards’ testimony at trial satisfied the elements missing from the indictment.
Next, the appellant argued that the indictment was "multiplicitous," in that a single offense was charged in two counts in the indictment. The appellant relied on the Supreme Court’s decision in Ladner v. U.S., from 1958, in which the Court held that a single shot fired at multiple officers constituted a single offense. According to the Fourth Circuit, courts have applied Ladner in situations where there is more than one act resulting in assaults, not whether more than one federal officer is injured by the same act. Here, the district court determined, and the Fourth Circuit agreed, that Thomas committed two separate acts, the verbal threats and a punch to the guard’s face; thus, the indictment was not found to be multiplicitous.
Additionally, the appellant argued that the district court improperly sustained hearsay objections to his testimony, thereby denying him the ability to adequately present his defense. The appellant stated that the intended purpose of the statements in question went to his state of mind, not to prove the truth of the matter. The Fourth Circuit disagreed, and found that the statements were properly excluded because they were irrelevant and bore no relation to whether he committed the charged offense.
Two five-level enhancements approved
US v. Strieper: At Strieper’s sentencing for attempted enticement, receipt of child porn, and possession of child porn, the district court applied two different five-level enhancements under U.S.S.G. §2G2.2(b)(5), the first for engaging in a pattern of sexual abuse or exploitation of a minor, and the second for distribution of child pornography for receipt of a thing of value. On appeal, the Fourth Circuit considered the propriety of these enhancements, and affirmed the district court’s judgment.
The Sentencing Guidelines permit a five-level enhancement for a "pattern of activity involving the sexual abuse or exploitation of a minor." A "pattern of activity" consists of two or more separate instances of such conduct. A "minor" may include unidentified children, as application of the enhancement indicates a focus on the danger a defendant would pose if given the opportunity to carry out his plans, rather than on the whether a defendant actually has exposed a child to direct harm. Here, one of the bases for the enhancement included Strieper’s communication with "Stu," a confidential source from the U.S. Department of Homeland Security. Strieper argued unsuccessfully that his attempt to entice Stu does not qualify for the enhancement because the definition of "minor" required a specific victim, a requirement that the Fourth Circuit rejected.
At his sentencing, Strieper did not object to the second five-level enhancement, for distribution of child porn for the receipt of a thing of value, so the Fourth Circuit reviewed this enhancement for plain error only. The district court applied this enhancement because Strieper used a peer-to-peer file-sharing network; prior to this decision, the Fourth Circuit had previously upheld a two-level enhancement for sharing child pornography files via such a network, but it had not yet addressed the question of whether a five-level enhancement for sharing files this way was appropriate.
The Fourth Circuit followed the reasoning of the Eighth Circuit, which held that a five-level enhancement for file sharing on a peer-to-peer network, e.g. Limewire, is appropriate because these networks exist for the purpose of sharing, exchanging, or trading files with other users (as opposed to the Tenth Circuit’s position, which holds that the enhancement does not always apply to peer-to-peer file sharing network users, because defendants do not always use these networks with the expectation of receiving other users’ files in return). The Fourth Circuit found that no error had been committed in the application of this enhancement.
The Sentencing Guidelines permit a five-level enhancement for a "pattern of activity involving the sexual abuse or exploitation of a minor." A "pattern of activity" consists of two or more separate instances of such conduct. A "minor" may include unidentified children, as application of the enhancement indicates a focus on the danger a defendant would pose if given the opportunity to carry out his plans, rather than on the whether a defendant actually has exposed a child to direct harm. Here, one of the bases for the enhancement included Strieper’s communication with "Stu," a confidential source from the U.S. Department of Homeland Security. Strieper argued unsuccessfully that his attempt to entice Stu does not qualify for the enhancement because the definition of "minor" required a specific victim, a requirement that the Fourth Circuit rejected.
At his sentencing, Strieper did not object to the second five-level enhancement, for distribution of child porn for the receipt of a thing of value, so the Fourth Circuit reviewed this enhancement for plain error only. The district court applied this enhancement because Strieper used a peer-to-peer file-sharing network; prior to this decision, the Fourth Circuit had previously upheld a two-level enhancement for sharing child pornography files via such a network, but it had not yet addressed the question of whether a five-level enhancement for sharing files this way was appropriate.
The Fourth Circuit followed the reasoning of the Eighth Circuit, which held that a five-level enhancement for file sharing on a peer-to-peer network, e.g. Limewire, is appropriate because these networks exist for the purpose of sharing, exchanging, or trading files with other users (as opposed to the Tenth Circuit’s position, which holds that the enhancement does not always apply to peer-to-peer file sharing network users, because defendants do not always use these networks with the expectation of receiving other users’ files in return). The Fourth Circuit found that no error had been committed in the application of this enhancement.
Monday, January 30, 2012
Gun violence and drug use - connection?
US v. Carter: In this appeal, Benjamin Carter raised the issue of the constitutionality of his conviction under 18 U.S.C. § 922(g)(3), which prohibits persons who currently and unlawfully use or become addicted to any controlled substantive (in this case, marijuana) from possessing a firearm. In an opinion in which the Fourth Circuit informed the government not once, but twice, exactly what evidence it could have but chose not to present in order to win, the Fourth Circuit vacated the conviction, finding that the government failed to make the record to substantiate the fit between disarming drug users and its means of accomplishing this goal.
On appeal, the government contended that unlawful drug users deserve no Second Amendment protections whatsoever. The government bore the burden of showing that the statute’s limited imposition on an individual’s Second Amendment rights (unlike other parts of § 922(g) in which an individual receives a permanent disarmament, the statutory provision in this case only applies to person currently using and/or abusing illegal drugs and only temporarily prohibits their possession of guns: once the drug use ends, gun possession can ostensibly occur), advanced the goal of preventing gun violence. The government staked its success here, not on any academic research or empirical data, but by simply asserting that common sense justified taking guns away from drug users, and that addicts are sufficiently dangerous to require disarming them.
The Fourth Circuit joined its sister circuits in concluding that intermediate scrutiny applies to a review of the enforcement of § 922(g)(3), and any other subsection of § 922(g). Under intermediate scrutiny, the government must establish a reasonable fit between the statute in question and a substantial governmental objective, e.g. ending gun violence associated with drug use. Carter argued that as applied to him, the statute does not substantially further the government’s interest without excessively intruding upon his Second Amendment rights. While the Fourth Circuit did not outright disagree with Carter by concluding that Congress had an important objective for enacting the statute here, it did find that the government did not give the court sufficient evidence to substantiate the fit.
Congrats to the FPD in the southern district of WV for the win!
On appeal, the government contended that unlawful drug users deserve no Second Amendment protections whatsoever. The government bore the burden of showing that the statute’s limited imposition on an individual’s Second Amendment rights (unlike other parts of § 922(g) in which an individual receives a permanent disarmament, the statutory provision in this case only applies to person currently using and/or abusing illegal drugs and only temporarily prohibits their possession of guns: once the drug use ends, gun possession can ostensibly occur), advanced the goal of preventing gun violence. The government staked its success here, not on any academic research or empirical data, but by simply asserting that common sense justified taking guns away from drug users, and that addicts are sufficiently dangerous to require disarming them.
The Fourth Circuit joined its sister circuits in concluding that intermediate scrutiny applies to a review of the enforcement of § 922(g)(3), and any other subsection of § 922(g). Under intermediate scrutiny, the government must establish a reasonable fit between the statute in question and a substantial governmental objective, e.g. ending gun violence associated with drug use. Carter argued that as applied to him, the statute does not substantially further the government’s interest without excessively intruding upon his Second Amendment rights. While the Fourth Circuit did not outright disagree with Carter by concluding that Congress had an important objective for enacting the statute here, it did find that the government did not give the court sufficient evidence to substantiate the fit.
Congrats to the FPD in the southern district of WV for the win!
Friday, January 27, 2012
When unidentified witnesses may be okay
US v. Ramos-Cruz: In this case, Israel Ramos-Cruz appeal his convictions for several offenses related to his activities with a gang. At issue was the jury instruction for the aiding and abetting witness-tampering murder, which was abrogated by the Supreme Court’s decision in Fowler v. United States after trial but while this appeal was pending; Ramos-Cruz challenged the denial of his motion for judgment of acquittal, in that he argued he was not in the country illegally; also, Ramos-Cruz challenged the district court’s decision to permit two unidentified witnesses to testify against him as violative of the Confrontation Clause; and finally, Ramos-Cruz took issue with the district court’s denial of his motion to suppress evidence seized at his home during a search. The Fourth Circuit affirmed the district court’s judgment.
The Supreme Court’s decision in Fowler abrogated the Fourth Circuit’s instruction given here, rendering them incorrect, but the Fourth Circuit found that the error in giving this instruction was harmless. Fowler changes the burden of proof necessary to sustain a conviction under § 1512(a)(1)(C), in circumstances in which a defendant kills a victim in order to prevent that individual from talking to federal authorities. The government must now show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer, as opposed to a possible or potential communication. The test that the Fourth Circuit had articulated here was similar to the 11th Circuit test that the Supreme Court overturned in Fowler; however, the Fourth Circuit found uncontroverted and overwhelming evidence of the reasonable likelihood of communication with a federal officer, and concluded any error in its instruction was harmless.
Next, Ramos-Cruz argued that he had a pending TPS ("temporary protected status") application at the time he was found in possession of a firearm, and thus he was not illegally in this country. Temporary protective status can provide some benefit to individuals from foreign countries where ongoing conflict or natural disaster prevents its nationals from returning in safety. El Salvador, where Ramos-Cruz is from, has been designated such a country, but at issue here was not whether Ramos-Cruz’s country of origin enabled him to apply for TPS, but whether his application had been pending here, as Ramos-Cruz asserted. The district court and the Fourth Circuit disagreed with Ramos-Cruz, however, finding evidence that Ramos-Cruz’s application for TPS had been effectively denied prior to the relevant events.
With respect to the two El Salvadorian witnesses which the district court allowed to testify anonymously in order to protect the safety of the witnesses and their families, Ramos-Cruz contended that this ruling violated his 6th Amendment confrontation rights, that he could not conduct independent research into the witnesses’ veracity. The government had the burden to prove an actual threat existed in order to protect the witnesses’ identities; the government submitted affidavits to the district court and it examined the two witnesses in camera, and concluded that "the threat to the witness [was] actual and not a result of conjecture." Defense counsel received details of these two witnesses prior to trial, so that they could be cross-examined without a threat to their safety. The Fourth Circuit did not find an abuse of discretion with the district court’s actions, as the witnesses were testifying only to background information on the internal workings of Central American gang activity, not Ramos-Cruz or his activities.
Finally, the search of Ramos-Cruz’s residence pursuant to warrant was held to have given the issuing judge sufficient facts upon which to provide a basis for determining the existence of probable cause. The Fourth Circuit did not disturb the district court’s decision here, considering the deferential standard of review given to the issuing judge’s finding of probable cause.
The Supreme Court’s decision in Fowler abrogated the Fourth Circuit’s instruction given here, rendering them incorrect, but the Fourth Circuit found that the error in giving this instruction was harmless. Fowler changes the burden of proof necessary to sustain a conviction under § 1512(a)(1)(C), in circumstances in which a defendant kills a victim in order to prevent that individual from talking to federal authorities. The government must now show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer, as opposed to a possible or potential communication. The test that the Fourth Circuit had articulated here was similar to the 11th Circuit test that the Supreme Court overturned in Fowler; however, the Fourth Circuit found uncontroverted and overwhelming evidence of the reasonable likelihood of communication with a federal officer, and concluded any error in its instruction was harmless.
Next, Ramos-Cruz argued that he had a pending TPS ("temporary protected status") application at the time he was found in possession of a firearm, and thus he was not illegally in this country. Temporary protective status can provide some benefit to individuals from foreign countries where ongoing conflict or natural disaster prevents its nationals from returning in safety. El Salvador, where Ramos-Cruz is from, has been designated such a country, but at issue here was not whether Ramos-Cruz’s country of origin enabled him to apply for TPS, but whether his application had been pending here, as Ramos-Cruz asserted. The district court and the Fourth Circuit disagreed with Ramos-Cruz, however, finding evidence that Ramos-Cruz’s application for TPS had been effectively denied prior to the relevant events.
With respect to the two El Salvadorian witnesses which the district court allowed to testify anonymously in order to protect the safety of the witnesses and their families, Ramos-Cruz contended that this ruling violated his 6th Amendment confrontation rights, that he could not conduct independent research into the witnesses’ veracity. The government had the burden to prove an actual threat existed in order to protect the witnesses’ identities; the government submitted affidavits to the district court and it examined the two witnesses in camera, and concluded that "the threat to the witness [was] actual and not a result of conjecture." Defense counsel received details of these two witnesses prior to trial, so that they could be cross-examined without a threat to their safety. The Fourth Circuit did not find an abuse of discretion with the district court’s actions, as the witnesses were testifying only to background information on the internal workings of Central American gang activity, not Ramos-Cruz or his activities.
Finally, the search of Ramos-Cruz’s residence pursuant to warrant was held to have given the issuing judge sufficient facts upon which to provide a basis for determining the existence of probable cause. The Fourth Circuit did not disturb the district court’s decision here, considering the deferential standard of review given to the issuing judge’s finding of probable cause.
Tuesday, January 24, 2012
Selective prosecution claim fails
US v. Venable: James Venable was charged with being a felon in possession of a firearm. Venable moved for discovery and to dismiss the indictment on a theory of selective prosecution, that he, an African American male, had been prosecuted for his race in violation of his Fifth Amendment right to Due Process, while two other individuals, both white, were not prosecuted for the same firearms. The district court denied Venable’s motions, and the Fourth Circuit affirmed.
Venable was prosecuted in a program known as Project Exile, a joint effort of the United States Attorney’s Office and the Richmond Commonwealth Attorney’s Office, which specifically targets convicted felons who possess guns, with the goal of reducing Richmond’s high rates of gun crime, federally. Basically, local law Virginia law enforcement officers will contact the U.S. Marshals whenever they encounter a gun; the U.S. Attorney’s Office will review the case and then determine whether to file federal criminal charges.
In making a selective prosecution claim, a defendant has a high burden, as the government is given wide discretion in its decisions to prosecute. A defendant must present clear evidence that the government has violated equal protection, and was motivated by a discriminatory purpose to adopt a prosecutorial policy with a discriminatory effect. To meet the burden, a defendant must show: 1) that similarly situated individuals of a different race were not prosecuted; and 2) the decision to prosecute was "invidious or in bad faith," as determined by the Fourth Circuit in United States v. Olvis, from 2006.
Here, the Fourth Circuit finds that similarly situated individuals are so only when prosecuted by the same sovereign; Venable’s case originally began in eastern Virginia, whereas the other two individuals involved in his case were prosecuted in state court in western Virginia. Project Exile solely applies in the Eastern District of Virginia. Of the nine factors from Olvis for determining whether the individuals in this case were similarly situated, the Fourth Circuit found that Venable was only able to establish one, to wit, that each of the three individuals were convicted felons not permitted to possess firearms; the Fourth Circuit concluded that these individuals were not similarly situated.
Next, the statistical evidence that Venables presented in support of the position that the prosecutors acted in bad faith, the Fourth Circuit did not find probative of discriminatory intent; holding, instead, that absent an appropriate basis for comparison, statistical evidence of racial disparity alone cannot establish any element of a discrimination claim.
Finally, the Fourth Circuit includes a gem of a footnote here regarding the disrespectful and uncivil language some attorneys, even government ones, have included to their own disservice in their briefs against district courts, parties, opposing counsel and witnesses, and cautions that such briefs "should be stricken from the files." Take heed.
Venable was prosecuted in a program known as Project Exile, a joint effort of the United States Attorney’s Office and the Richmond Commonwealth Attorney’s Office, which specifically targets convicted felons who possess guns, with the goal of reducing Richmond’s high rates of gun crime, federally. Basically, local law Virginia law enforcement officers will contact the U.S. Marshals whenever they encounter a gun; the U.S. Attorney’s Office will review the case and then determine whether to file federal criminal charges.
In making a selective prosecution claim, a defendant has a high burden, as the government is given wide discretion in its decisions to prosecute. A defendant must present clear evidence that the government has violated equal protection, and was motivated by a discriminatory purpose to adopt a prosecutorial policy with a discriminatory effect. To meet the burden, a defendant must show: 1) that similarly situated individuals of a different race were not prosecuted; and 2) the decision to prosecute was "invidious or in bad faith," as determined by the Fourth Circuit in United States v. Olvis, from 2006.
Here, the Fourth Circuit finds that similarly situated individuals are so only when prosecuted by the same sovereign; Venable’s case originally began in eastern Virginia, whereas the other two individuals involved in his case were prosecuted in state court in western Virginia. Project Exile solely applies in the Eastern District of Virginia. Of the nine factors from Olvis for determining whether the individuals in this case were similarly situated, the Fourth Circuit found that Venable was only able to establish one, to wit, that each of the three individuals were convicted felons not permitted to possess firearms; the Fourth Circuit concluded that these individuals were not similarly situated.
Next, the statistical evidence that Venables presented in support of the position that the prosecutors acted in bad faith, the Fourth Circuit did not find probative of discriminatory intent; holding, instead, that absent an appropriate basis for comparison, statistical evidence of racial disparity alone cannot establish any element of a discrimination claim.
Finally, the Fourth Circuit includes a gem of a footnote here regarding the disrespectful and uncivil language some attorneys, even government ones, have included to their own disservice in their briefs against district courts, parties, opposing counsel and witnesses, and cautions that such briefs "should be stricken from the files." Take heed.
4th Circuit abstains from intervening in court martial proceeding
Hennis v. Hemlick: In this appeal, the Fourth Circuit upholds the Councilman abstention doctrine, against a petitioner pursuing habeas corpus relief in relation to a death penalty conviction handed down by a military court.
Hennis filed among other papers, a writ of habeas corpus, to appeal a district court’s decision not to reach the merits of his challenge to the Army’s exercise of court martial jurisdiction over him. The district court based its decision to abstain on Schlesinger v. Councilman, in which the Supreme Court held that federal courts should abstain from intervening in pending court martial proceedings and should require the exhaustion of remedies within the military justice system before collaterally reviewing cases.
The Fourth Circuit affirmed the district court, disagreeing with Hennis that his case had extraordinary facts sufficient to warrant any intrusion on the integrity of the military court processes.
Hennis filed among other papers, a writ of habeas corpus, to appeal a district court’s decision not to reach the merits of his challenge to the Army’s exercise of court martial jurisdiction over him. The district court based its decision to abstain on Schlesinger v. Councilman, in which the Supreme Court held that federal courts should abstain from intervening in pending court martial proceedings and should require the exhaustion of remedies within the military justice system before collaterally reviewing cases.
The Fourth Circuit affirmed the district court, disagreeing with Hennis that his case had extraordinary facts sufficient to warrant any intrusion on the integrity of the military court processes.
Monday, January 23, 2012
Revocation of supervised release not equal to termination of the release
US v. Winfield: A supervised release revocation sentencing here occurred over the course of two bifurcated hearings, the first part of which occurred in May 2010 dealing with the technical violations (i.e., charges not related to the commission of some state offenses during the appellant’s supervised release), and the second occurred in September 2010, following the resolution of the appellant’s substantive violations in state court.
At the May 2010 hearing, the district court imposed a 12-month sentence on Winfield for his technical violations, e.g. failing to follow his probation officer’s instructions, failing to work regularly, and twice testing positive for cocaine. Winfield’s probation officer had filed a petition for violations of the terms of Winfield’s supervised release in October 2009 on the technical violation behavior. The probation officer subsequently filed two amended petitions for revocation, the first for receiving a state court charge while he was on supervised release, and the second for failing to inform the probation officer of his arrest for the state court charge within 72 hours of his arrest. In the September 2010 hearing, the district court imposed a second 12-month sentence on the substantive violations, the state court convictions, for crimes committed while Winfield was on federal supervised release.
At issue is the definition of the term "revoke" under 18 U.S.C. § 3583(e) and whether an effective revocation of a term of supervised release also ends the court’s supervision over that release when the term has not yet expired. Based upon an unpublished 3rd Circuit case from 2007 and Supreme Court precedent, the Fourth Circuit here determined that because a revoked term of supervised release continues to have some effect post-revocation, a district court retains authority to alter a defendant’s punishment during a re-incarceration for supervised release violations. Moreover, a revocation of a term of supervised release, according to the Fourth Circuit, is not equivalent to a termination of the release and the revoked term remains in effect. Thus, a district court may hold bifurcated hearings based on a petition for revocation filed prior to the expiration of the term of supervised release, provided the individual is sentenced according to the Rules of Criminal Procedure, the court makes a finding of guilt by a preponderance of the evidence, and does not exceed the statutory maximum for re-incarceration.
At the May 2010 hearing, the district court imposed a 12-month sentence on Winfield for his technical violations, e.g. failing to follow his probation officer’s instructions, failing to work regularly, and twice testing positive for cocaine. Winfield’s probation officer had filed a petition for violations of the terms of Winfield’s supervised release in October 2009 on the technical violation behavior. The probation officer subsequently filed two amended petitions for revocation, the first for receiving a state court charge while he was on supervised release, and the second for failing to inform the probation officer of his arrest for the state court charge within 72 hours of his arrest. In the September 2010 hearing, the district court imposed a second 12-month sentence on the substantive violations, the state court convictions, for crimes committed while Winfield was on federal supervised release.
At issue is the definition of the term "revoke" under 18 U.S.C. § 3583(e) and whether an effective revocation of a term of supervised release also ends the court’s supervision over that release when the term has not yet expired. Based upon an unpublished 3rd Circuit case from 2007 and Supreme Court precedent, the Fourth Circuit here determined that because a revoked term of supervised release continues to have some effect post-revocation, a district court retains authority to alter a defendant’s punishment during a re-incarceration for supervised release violations. Moreover, a revocation of a term of supervised release, according to the Fourth Circuit, is not equivalent to a termination of the release and the revoked term remains in effect. Thus, a district court may hold bifurcated hearings based on a petition for revocation filed prior to the expiration of the term of supervised release, provided the individual is sentenced according to the Rules of Criminal Procedure, the court makes a finding of guilt by a preponderance of the evidence, and does not exceed the statutory maximum for re-incarceration.
Career offender enhancement principles warrant remand
United States v. Jones: A husband and wife appeal their convictions for methamphetamine possession and conspiracy to distribute it. The couple’s convictions resulted from their conditional guilty pleas, which preserved their right to appeal the denial of pretrial motions to suppress. The Fourth Circuit upheld the denial of the motions to suppress, but vacated the husband’s sentence and remanded.
A burn victim at a hospital in North Carolina informed police that he received his injuries from a meth lab explosion at the defendants’ home. The police went to the home, but did not detect any evidence of a meth lab explosion. Mr. Jones spoke with police and denied knowing anything about the burn victim or alleged explosion. When the police were leaving the scene, one of the officers recalled that Mr. Jones may have had an outstanding warrant, and placed him, standing in his doorway, under arrest. Mrs. Jones objected to the arrest, but she did not obstruct the police.
The officers then decided to conduct a protective sweep of the Jones residence for officer safety. The police officers located a marijuana cigarette near where Mrs. Jones was sitting in the house, so they placed her under arrest for possession of marijuana. An officer remained at the residence after both Joneses were taken to the county sheriff’s office, in order to secure the residence until other officers could secure a search warrant. Later that day, pursuant to warrant, the police seized drug paraphernalia and a meth mixture.
In the hearing on defendants’ motion to suppress, the court concluded that the protective sweep of the Jones residence was constitutionally permissible under Maryland v. Buie. Subsequently, the couple entered their conditional guilty pleas to possession of meth, and conspiracy to manufacture and distribute it. At Mr. Jones’ sentencing, he objected to the determination in the PSR of his career offender enhancement, and both defendants objected to the amount of relevant drug conduct recommended by the PSRs.
Prior to oral argument in this appeal, the Fourth Circuit decided United States v. Simmons, in which the Fourth Circuit concluded that a conviction like Mr. Jones’ predicate conviction, one that was not punishable by more than one year in prison, does not qualify as a prior felony for the purposes of the career offender provision. So, the government conceded that Mr. Jones’s sentence was procedurally unreasonable and should be vacated and remanded, which the Fourth Circuit did here.
The protective sweep in question was found constitutionally permissible because the police reasonably believed that other individuals may have been present who presented a danger to them based on the following: surveillance of the residence, known drug users frequented the house, information that a fugitive from Georgia was staying there, and seven vehicles present at the scene despite assurances from Mr. and Mrs. Jones that they were alone.
A burn victim at a hospital in North Carolina informed police that he received his injuries from a meth lab explosion at the defendants’ home. The police went to the home, but did not detect any evidence of a meth lab explosion. Mr. Jones spoke with police and denied knowing anything about the burn victim or alleged explosion. When the police were leaving the scene, one of the officers recalled that Mr. Jones may have had an outstanding warrant, and placed him, standing in his doorway, under arrest. Mrs. Jones objected to the arrest, but she did not obstruct the police.
The officers then decided to conduct a protective sweep of the Jones residence for officer safety. The police officers located a marijuana cigarette near where Mrs. Jones was sitting in the house, so they placed her under arrest for possession of marijuana. An officer remained at the residence after both Joneses were taken to the county sheriff’s office, in order to secure the residence until other officers could secure a search warrant. Later that day, pursuant to warrant, the police seized drug paraphernalia and a meth mixture.
In the hearing on defendants’ motion to suppress, the court concluded that the protective sweep of the Jones residence was constitutionally permissible under Maryland v. Buie. Subsequently, the couple entered their conditional guilty pleas to possession of meth, and conspiracy to manufacture and distribute it. At Mr. Jones’ sentencing, he objected to the determination in the PSR of his career offender enhancement, and both defendants objected to the amount of relevant drug conduct recommended by the PSRs.
Prior to oral argument in this appeal, the Fourth Circuit decided United States v. Simmons, in which the Fourth Circuit concluded that a conviction like Mr. Jones’ predicate conviction, one that was not punishable by more than one year in prison, does not qualify as a prior felony for the purposes of the career offender provision. So, the government conceded that Mr. Jones’s sentence was procedurally unreasonable and should be vacated and remanded, which the Fourth Circuit did here.
The protective sweep in question was found constitutionally permissible because the police reasonably believed that other individuals may have been present who presented a danger to them based on the following: surveillance of the residence, known drug users frequented the house, information that a fugitive from Georgia was staying there, and seven vehicles present at the scene despite assurances from Mr. and Mrs. Jones that they were alone.
Monday, January 09, 2012
As-applied challenge to Sect. 922(g)(8) shot down, too
US v. Chapman: Similar to the Fourth Circuit's recent holding in United States v. Staten (see blog post here), it upheld another portion of this statute against an as-applied challenge that it violates the Second Amendment right to bear arms in self-defense of the home.
Chapman, subject to a domestic violence protective order, pleaded guilty to possessing several firearms in violation of that DVPO, following an incident with his ex-wife that began with his threats to commit suicide on December 28, 2009. Chapman’s DVPO was to last 180 days, not a lifelong prohibition. Prior to his guilty plea, Chapman filed a motion to dismiss the indictment on grounds that as-applied, the statute violated his Second Amendment rights to bear arms in defense of his home, which the district court rejected. Chapman reserved the right to appeal with respect to his Second Amendment challenge.
On appeal, the Fourth Circuit recognized the "core" of an individual’s Second Amendment right to be "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," from District of Columbia v. Heller, 554 U.S. 570 (2008), and employed a two-part approach to analyze Chapman’s as-applied challenge. In the first part, the court must inquire whether the law imposes a burden on conduct falling within the "historically understood" scope of the Second Amendment’s guarantee. If yes, then the court moves to part two; if no, the analysis ends. Here, the Fourth Circuit determined that even if Chapman’s Second Amendment rights were intact and that he was entitled to some protection to keep his guns for defense of his home, intermediate scrutiny will apply and his challenge will fail.
Relying on its 2010 opinion in United States v. Chester, the Fourth Circuit holds that intermediate scrutiny is the appropriate standard to analyze the defendant’s statutory challenge here, and decides that Chapman’s claim does not fall within the core right identified in Heller because he is neither responsible nor law-abiding: he likely committed domestic abuse (judicial determination); he engaged in behavior which caused him to be judicially prohibited for 180 days from causing or threatening to cause bodily injury to his partner; his suicidal thoughts and actions; and his discharge of the firearms in his ex-wife’s direction.
Under intermediate scrutiny, the government must establish a "reasonable fit" between the challenged statute and a substantial governmental objective. The government identified reducing domestic gun violence as the substantial objective behind this statute. Also, the statutory language, the Fourth Circuit explained, keeps the prohibitory sweep of people affected by the statute exceedingly narrow.
Chapman, subject to a domestic violence protective order, pleaded guilty to possessing several firearms in violation of that DVPO, following an incident with his ex-wife that began with his threats to commit suicide on December 28, 2009. Chapman’s DVPO was to last 180 days, not a lifelong prohibition. Prior to his guilty plea, Chapman filed a motion to dismiss the indictment on grounds that as-applied, the statute violated his Second Amendment rights to bear arms in defense of his home, which the district court rejected. Chapman reserved the right to appeal with respect to his Second Amendment challenge.
On appeal, the Fourth Circuit recognized the "core" of an individual’s Second Amendment right to be "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," from District of Columbia v. Heller, 554 U.S. 570 (2008), and employed a two-part approach to analyze Chapman’s as-applied challenge. In the first part, the court must inquire whether the law imposes a burden on conduct falling within the "historically understood" scope of the Second Amendment’s guarantee. If yes, then the court moves to part two; if no, the analysis ends. Here, the Fourth Circuit determined that even if Chapman’s Second Amendment rights were intact and that he was entitled to some protection to keep his guns for defense of his home, intermediate scrutiny will apply and his challenge will fail.
Relying on its 2010 opinion in United States v. Chester, the Fourth Circuit holds that intermediate scrutiny is the appropriate standard to analyze the defendant’s statutory challenge here, and decides that Chapman’s claim does not fall within the core right identified in Heller because he is neither responsible nor law-abiding: he likely committed domestic abuse (judicial determination); he engaged in behavior which caused him to be judicially prohibited for 180 days from causing or threatening to cause bodily injury to his partner; his suicidal thoughts and actions; and his discharge of the firearms in his ex-wife’s direction.
Under intermediate scrutiny, the government must establish a "reasonable fit" between the challenged statute and a substantial governmental objective. The government identified reducing domestic gun violence as the substantial objective behind this statute. Also, the statutory language, the Fourth Circuit explained, keeps the prohibitory sweep of people affected by the statute exceedingly narrow.
Wednesday, January 04, 2012
Knife Removal of Baggie from Penis Violates Fouth Amendment
US v. Edwards: Edwards was arrested late at night on a Baltimore street based on an allegation that he had earlier brandished a firearm. After his hands had been cuffed behind his back, an officer patted him down, finding neither a weapon nor contraband. After a van arrived to transport Edwards to the police station, the officers did another search. This time, one officer "pulled Edwards' pants and underwear six or seven inches away from his body" while another "directed a flashlight beam inside both the front and back of Edwards' underwear." The officers saw "a plastic sandwich baggie tied in a knot around Edwards' penis" that appeared to contain several smaller baggies indicative of drug trafficking. At this point, while one officer held the pants open, another "put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards' penis with the knife." Edwards was eventually charged with possession with intent to distribute crack. He unsuccessfully moved to have the crack suppressed, then entered a conditional guilty plea.
On appeal, the Fourth Circuit reversed the denial of the motion to suppress, 2-1. The court first held that the search that uncovered the baggie was a strip search, rejecting the Government's contention otherwise. Furthermore, the search fell into the category of "sexually invasive searches" which the Supreme Court addressed in Bell v. Wolfish, 441 US 520 (1979). Thus, among other things, the "manner in which the contraband is removed from a suspect" is a relevant consideration as to whether the search was reasonable. Looking to that issue, the court concluded that the officer's "use of a knife in cutting the sandwich baggie off Edwards' penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness." The court noted the lateness of the hour and that, in spite of needing a flashlight to find Edwards's stash, he did not use the light when actually removing it. The court also rejected the Government's argument that the nature of the underlying arrest (a firearm charge) justified the search. The application of the exclusionary rule in this situation, the court concluded, was "especially appropriate."
Judge Diaz dissented, arguing that the majority relies on the use of the knife alone to sink the search, which does not in and of itself render the search unreasonable.
Congrats to the FPD office in Maryland on the win!
On appeal, the Fourth Circuit reversed the denial of the motion to suppress, 2-1. The court first held that the search that uncovered the baggie was a strip search, rejecting the Government's contention otherwise. Furthermore, the search fell into the category of "sexually invasive searches" which the Supreme Court addressed in Bell v. Wolfish, 441 US 520 (1979). Thus, among other things, the "manner in which the contraband is removed from a suspect" is a relevant consideration as to whether the search was reasonable. Looking to that issue, the court concluded that the officer's "use of a knife in cutting the sandwich baggie off Edwards' penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness." The court noted the lateness of the hour and that, in spite of needing a flashlight to find Edwards's stash, he did not use the light when actually removing it. The court also rejected the Government's argument that the nature of the underlying arrest (a firearm charge) justified the search. The application of the exclusionary rule in this situation, the court concluded, was "especially appropriate."
Judge Diaz dissented, arguing that the majority relies on the use of the knife alone to sink the search, which does not in and of itself render the search unreasonable.
Congrats to the FPD office in Maryland on the win!
Producing False ID Convicion Affirmed
US v. Jaensch: Jaensch was convicted of producing a false identification document that appeared to be issued under the authority of the US government, based on his presentment of an ID to a state court security official. Although, according to an expert witness from the State Department testified that "almost everything about [the ID] is wrong," Jaensch told investigators he used it to get through TSA checkpoints. He ordered it from a company in Florida. After his conviction (at a second trial - the first ended in a hung jury), Jaensch was fined and sentenced to probation.
On appeal, Jaensch challenged his conviction on numerous grounds, each of which the Fourth Circuit rejected. First, the court rejected the argument that the statute under which Jaensch was unconstitutionally vague because it does not define how one can tell whether the ID "appears to be" issued by the United States. Because the statute requires knowledge to sustain a conviction, there was no vagueness. Second, the court rejected the argument that the district court erred by instructing the jury that a "reasonable person standard" applied when determining whether the ID appeared to be issued by the United States. Third, the court rejected the argument that the district court erred by denying Jaensch's motion for an acquittal after the first jury hung.
On appeal, Jaensch challenged his conviction on numerous grounds, each of which the Fourth Circuit rejected. First, the court rejected the argument that the statute under which Jaensch was unconstitutionally vague because it does not define how one can tell whether the ID "appears to be" issued by the United States. Because the statute requires knowledge to sustain a conviction, there was no vagueness. Second, the court rejected the argument that the district court erred by instructing the jury that a "reasonable person standard" applied when determining whether the ID appeared to be issued by the United States. Third, the court rejected the argument that the district court erred by denying Jaensch's motion for an acquittal after the first jury hung.
Court's Guideline Findings Not Clear Enough for Review
US v. Bell: Bell, who suffers from numerous maladies, was a patient at a pain management clinic in Tennessee who was prescribed large amounts of Oxycontin. Although complying with the controls of the clinic to ensure no improper use of the pills, Bell was taking some of the pills she received to Virginia, where she distributed them along with her codefendant, Gibson (at whose home the transactions took place). Following a series of controlled buys and a search of the home, Bell and Gibson were charged with a pleaded guilty to several drug offenses. At sentencing, the main issue was the amount of relevant conduct attributable to Bell and Gibson. Although Bell had been prescribed the equivalent of 4695 40-mg Oxycontin pills during the relevant time, she argued that she used many of the pills prescribed as intended and distributed only the equivalent of 888 40-mg pills. At sentencing, several witnesses testified about Bell and Gibson's distribution scheme. The district court rejected Bell's claim that the amount of relevant conduct should be reduced based on what she used herself on legal grounds, but concluded that the testimony had "obvious discrepancies" and reduced the relevant conduct amount to the equivalent of 2612 40-mg pills. Both Bell and Gibson were then sentenced within the resulting advisory Guideline ranges.
On appeal, the Fourth Circuit vacated the sentences and remanded for resentencing. The court drew a distinction between relevant conduct determinations involving Schedule I drugs, with no recognized medical use, and all others, noting that the key issue when determining relevant conduct is the defendant's illegal conduct. Drugs obtained and used legally, therefore, cannot necessarily be included simply because the defendant once possessed them. In this particular case, the court concluded, the district court's findings were not explained with enough sufficiency to allow for meaningful appellate review. The court rejected the Government's attempts to divine the basis for the district court's findings ex post. It also rejected the Government's contention that anyone who sells a majority of pills prescribed to them to others lacks the medical need to make their possession of the pills legal.
There is some interesting positioning by the panel with regards to the burden of proof. In footnote 8 of the opinion, it states that the Government ultimately bears the burden of proving relevant conduct, even though it may be difficult to do so in cases like this. However, that footnote expresses only the view of Judge Davis. In a brief concurrence, Judge Hamilton (joined by Judge Floyd) does not embrace footnote 8 and notes that the defendant bears some burden to bring forth evidence of personal use.
Congrats to the WDVA FPD office on the win!
On appeal, the Fourth Circuit vacated the sentences and remanded for resentencing. The court drew a distinction between relevant conduct determinations involving Schedule I drugs, with no recognized medical use, and all others, noting that the key issue when determining relevant conduct is the defendant's illegal conduct. Drugs obtained and used legally, therefore, cannot necessarily be included simply because the defendant once possessed them. In this particular case, the court concluded, the district court's findings were not explained with enough sufficiency to allow for meaningful appellate review. The court rejected the Government's attempts to divine the basis for the district court's findings ex post. It also rejected the Government's contention that anyone who sells a majority of pills prescribed to them to others lacks the medical need to make their possession of the pills legal.
There is some interesting positioning by the panel with regards to the burden of proof. In footnote 8 of the opinion, it states that the Government ultimately bears the burden of proving relevant conduct, even though it may be difficult to do so in cases like this. However, that footnote expresses only the view of Judge Davis. In a brief concurrence, Judge Hamilton (joined by Judge Floyd) does not embrace footnote 8 and notes that the defendant bears some burden to bring forth evidence of personal use.
Congrats to the WDVA FPD office on the win!
No Crawford Issue With Supervisor Testimony About DNA
US v. Summers: Summers and another man were standing on a Baltimore street corner when approached by a police officer. They ran. When the officer first approached Summers, Summers was wearing a black jacket, but he was not wearing it when apprehended shortly thereafter. A jacket was found "atop one of the houses along Summers's flight path" which contained a firearm, ammunition, and cocaine. As a result, Summers was charged with various gun and drug offenses. At trial, officers identified the jacket (with varying degrees of certainty) as the one Summers was wearing. In addition, DNA evidence linked Summers to the jacket, although there was a gap in the chain of custody between the officer who seized the jacket and its contents at the scene and the lab where the testing was done. Summers was convicted of possession with intent to distribute crack and being a felon in possession of a firearm and sentenced to 262 months in prison.
On appeal, Summers argued that the manner in which the DNA evidence about the jacket was produced at trial - via testimony only of supervisor at the lab that did the testing, rather than those who actually handled and tested the jacket - violated the Confrontation Clause. The Fourth Circuit rejected his arguments and affirmed the convictions. With regards to the chain of custody of the jacket at the lab, the court noted that the evidence about that issue was introduced by Summers, not the prosecution, and thus there was no confrontation issues. Similarly, the district court did not err by admitting the jacket itself into evidence, regardless of any chain of custody issues, because it was identified by witnesses as the one Summers had been wearing that night. With regards to the supervisor's testimony, the court concluded that his testimony was admissible because, although subordinates did the testing underlying his opinion, the opinion itself was "original product" of his own analysis and he was not merely passing on information from others.
Judge Floyd concurred in the result, but not the reasoning, and would rested the decision on the conclusion that any Confrontation Clause error was harmless, thus avoiding the "thorny issue" resolved by the court.
On appeal, Summers argued that the manner in which the DNA evidence about the jacket was produced at trial - via testimony only of supervisor at the lab that did the testing, rather than those who actually handled and tested the jacket - violated the Confrontation Clause. The Fourth Circuit rejected his arguments and affirmed the convictions. With regards to the chain of custody of the jacket at the lab, the court noted that the evidence about that issue was introduced by Summers, not the prosecution, and thus there was no confrontation issues. Similarly, the district court did not err by admitting the jacket itself into evidence, regardless of any chain of custody issues, because it was identified by witnesses as the one Summers had been wearing that night. With regards to the supervisor's testimony, the court concluded that his testimony was admissible because, although subordinates did the testing underlying his opinion, the opinion itself was "original product" of his own analysis and he was not merely passing on information from others.
Judge Floyd concurred in the result, but not the reasoning, and would rested the decision on the conclusion that any Confrontation Clause error was harmless, thus avoiding the "thorny issue" resolved by the court.
Leon Saves Search Warrant Without Nexus Between Suspect, Home
US v. McKenzie-Gude: The aunt of McKenzie-Gude's friend Yevsukov alerted police that McKenzie-Gude had brought an AK-47 (which was registered to McKenzie-Gude's father) and various chemicals to her home. She also alleged that McKenzie-Gude and Yevsukov were "constantly" discussing weapons and explosives, providing police with "data sheets" about the chemicals, as well as other information. Police talked with Yevsukov, who denied that McKenzie-Gude brought the gun to the aunt's home. McKenzie-Gude refused to talk to police. Based on the aunt's information, a state police officer and fire marshal obtained a warrant to search the home McKenzie-Gude shared with his father, although it failed to state that either of them actually lived there. The search uncovered evidence that led to McKenzie-Gude being charged with possession of a firearm not registered to him. After an unsuccessful suppression motion, McKenzie-Gude entered a conditional guilty plea and was sentenced to 61 months in prison.
On appeal, McKenzie-Gude challenged both his conviction and sentence. As to the conviction, he renewed his argument that the evidence seized from his home should have been suppressed. The Government conceded that the warrant was defective because the affidavit did not link McKenzie-Gude to the residence to be searched, but argued that the Leon good-faith exception saved the evidence from suppression. Specifically, it argued that the officers acted with "objective reasonableness" because they had evidence that McKenzie-Gude lived at the house even if it was not in the warrant application. The court agreed that such evidence could be considered and concluded that the officers who executed the warrant, who also obtained it, acted in good faith. The court also rejected McKenzie-Gude's argument that he was entitled to a Franks hearing based on either inaccuracies in the warrant application or omissions from it. As to McKenzie-Gude's sentence, the court rejected (after brief discussions) each of his three factual challenges to the district court's Guideline calculations.
On appeal, McKenzie-Gude challenged both his conviction and sentence. As to the conviction, he renewed his argument that the evidence seized from his home should have been suppressed. The Government conceded that the warrant was defective because the affidavit did not link McKenzie-Gude to the residence to be searched, but argued that the Leon good-faith exception saved the evidence from suppression. Specifically, it argued that the officers acted with "objective reasonableness" because they had evidence that McKenzie-Gude lived at the house even if it was not in the warrant application. The court agreed that such evidence could be considered and concluded that the officers who executed the warrant, who also obtained it, acted in good faith. The court also rejected McKenzie-Gude's argument that he was entitled to a Franks hearing based on either inaccuracies in the warrant application or omissions from it. As to McKenzie-Gude's sentence, the court rejected (after brief discussions) each of his three factual challenges to the district court's Guideline calculations.
Thursday, December 15, 2011
Terry-like Scenario Produces Terry-like Result
US v. Glover: Glover was convicted of being a felon in possession of a firearm after being subject to a stop-and-frisk in a parking lot in the "wee hours of the morning." Two officers on patrol drove to a 24-hour gas station which both knew had been the site of prior armed robberies (one of the officers had personally investigated one of the robberies). Only two people were present - the station attendant, who was outside checking the tank levels, and Glover, who was standing 45-60 feet away in an area that was not captured by the station's security cameras. Officers saw Glover glance around a corner and pull his head back, as if trying to hide. When they drove out of the lot, he watched them. The officers were concerned and decided they should talk to Glover. By the time they circled back around to the station, Glover was "standing, basically overtop" of the attendant, who appeared unaware of his presence. The officers walked over to Glover and one of the officer's patted him down, uncovering a gun in his right pants pocket. The district court refused to suppress the gun and Glover was sentenced to 60 months in prison.
On appeal, Glover argued that the officers lacked reasonable suspicion upon which to base a legitimate stop-and-frisk. The Fourth Circuit disagreed and affirmed his conviction. The court held that the actions of the officers in this case were essentially the same as in Terry, undertaken for the same reason. Based on the totality of the circumstances the officers had reasonable suspicion to believe an armed robbery might be in the offing. Among the factors supporting that conclusion was the high-crime nature of the area (not just in general, but the gas station's history itself), the time of night, lack of others around, and the vulnerable position of the attendant, as well as Glover's actions themselves.
On appeal, Glover argued that the officers lacked reasonable suspicion upon which to base a legitimate stop-and-frisk. The Fourth Circuit disagreed and affirmed his conviction. The court held that the actions of the officers in this case were essentially the same as in Terry, undertaken for the same reason. Based on the totality of the circumstances the officers had reasonable suspicion to believe an armed robbery might be in the offing. Among the factors supporting that conclusion was the high-crime nature of the area (not just in general, but the gas station's history itself), the time of night, lack of others around, and the vulnerable position of the attendant, as well as Glover's actions themselves.
Command While Using Gun Supports "Physical Restraint" Enhancement
US v. Dimache: Dimache pleaded guilty to armed bank robbery. He and an accomplice robbed a bank in South Carolina, during which Dimache brandished a gun, using it first to direct a teller to give money to his accomplice and then to force other tellers to get down on the floor. In the PSR, the probation officer recommended a two-level enhancement under USSG 2B3.1(b)(4)(B) for physical restraint of a person to facilitate the offense. In this case, the basis for the enhancement was Dimache using the gun as a threat to force the tellers to the ground. Dimache objected, but the district court imposed the enhancement. The district court sentenced him to 90 months in prison.
On appeal, Dimache argued that the two-level enhancement should not apply in his case because merely pointing a gun at some one and ordering them to move does not constitute "physical restraint." The court rejected that argument. It noted that the "essential nature" of the conduct justifying the enhancement is the "deprivation of a person's 'freedom of physical movement.'" While it was "not an easy question to answer" whether the presence of a gun can lead to physical restraint, the court has previously read the enhancement to apply broadly. Therefore, the use of the gun to restrict the tellers' movements supported imposition of the enhancement.
On appeal, Dimache argued that the two-level enhancement should not apply in his case because merely pointing a gun at some one and ordering them to move does not constitute "physical restraint." The court rejected that argument. It noted that the "essential nature" of the conduct justifying the enhancement is the "deprivation of a person's 'freedom of physical movement.'" While it was "not an easy question to answer" whether the presence of a gun can lead to physical restraint, the court has previously read the enhancement to apply broadly. Therefore, the use of the gun to restrict the tellers' movements supported imposition of the enhancement.
Child Pornography Warrant Based on Observations of Other Officers Saved by Good Faith
US v. Wellman: Wellman was convicted at trial of possessing child pornography, possessing an obscene image depicting minors, and doing so while being required to register as a sex offender, an offense which requires a 10-year mandatory minimum sentence to run consecutive to any other sentence imposed. The convictions were based on evidence obtained from Wellman's home pursuant to a search warrant. The warrant in turn was based primarily on assertions from a child pornography task force in Wyoming that known images of child pornography was present on Wellman's computer. Prior to trial, Wellman sought to suppress the evidence found pursuant to the warrant, arguing that the factual basis for the warrant was not sufficient to demonstrate probable cause because neither the images of alleged child pornography were attached to the warrant application, nor was there any description of the images in the application. The district court denied the motion. After his convictions, Wellman was sentenced to 300 months in prison, including the 10-year consecutive mandatory minimum.
On appeal, Wellman challenged his convictions as well as his sentence. First, he renewed his argument that there was insufficient evidence to support the probable cause needed to issue the search warrant and that in issuing the warrant the issuing judge simply rubber stamped the requesting officer's conclusions. The court rejected that argument, but did so by finding the Leon good-faith exception applied (assuming arguendo that the warrant was invalid) and that the issuing judge did not act as a rubber stamp, nor was the application so lacking in indicia of probable cause to render reliance on it unreasonable. Second, Wellman argued that the district court erred by not instructing the jury that to convict on the obscenity charge he must have known that the image was obscene. Relying on the Supreme Court's 1974 decision in Hamling, the court held that knowledge of such a legal conclusion is not necessary to sustain the conviction. Finally, Wellman argued that the 10-year consecutive mandatory minimum sentence was cruel and unusual punishment, given his age and likelihood that the sentence imposed was actually a life sentence. The court rejected that argument, concluding that the sentence was not a "disproportionate sentence of constitutional magnitude," as it was based largely on Wellman's prior record.
On appeal, Wellman challenged his convictions as well as his sentence. First, he renewed his argument that there was insufficient evidence to support the probable cause needed to issue the search warrant and that in issuing the warrant the issuing judge simply rubber stamped the requesting officer's conclusions. The court rejected that argument, but did so by finding the Leon good-faith exception applied (assuming arguendo that the warrant was invalid) and that the issuing judge did not act as a rubber stamp, nor was the application so lacking in indicia of probable cause to render reliance on it unreasonable. Second, Wellman argued that the district court erred by not instructing the jury that to convict on the obscenity charge he must have known that the image was obscene. Relying on the Supreme Court's 1974 decision in Hamling, the court held that knowledge of such a legal conclusion is not necessary to sustain the conviction. Finally, Wellman argued that the 10-year consecutive mandatory minimum sentence was cruel and unusual punishment, given his age and likelihood that the sentence imposed was actually a life sentence. The court rejected that argument, concluding that the sentence was not a "disproportionate sentence of constitutional magnitude," as it was based largely on Wellman's prior record.
Convictions Affirmed for Drug Conspiracy (Barely), Scheme to Kill Witness
US v. Hackley: Hackley sold crack cocaine to Jackson, whom had known Hackley since 1992 and acted as a confidential informant almost as long. According to Jackson, Hackley told him he "just got back from Maryland" with some crack. Jackson then contacted local law enforcement, who arranged several controlled buys of crack from Hackley. As a result, he was charged with conspiracy to distribute crack and six counts of distribution. While in jail, Hackley told a fellow inmate, Johnson (among others), that he did not want Jackson showing up in court and that he needed to be killed. He also told Johnson about a pistol he owned. Johnson went to the authorities, after which an ATF agent posed as another inmate. The agent, essentially, became the hit man Hackley sought to hire to kill Jackson. In fact, Jackson's death was staged, complete with a fake news story, which made Hackley "ecstatic." As a result, Hackley was also charged with murder for hire, solicitation of murder, obstruction of justice, and being a felon in possession of a firearm.
After a plea agreement broke down, Hackley moved that he be appointed new counsel. The district court declined and the case went to trial. The district court denied Hackley's request for an entrapment instruction on the murder for hire count. He was convicted on all counts and sentenced to 306 months in prison.
On appeal, Hackley challenged both his convictions and sentence, all of which the Fourth Circuit upheld. First, Hackley argued that there was insufficient evidence to sustain the convictions for conspiracy to distribute crack, solicitation to murder, and being a felon in possession of a firearm. The evidence on the conspiracy count, the court held, "represents the very boundary of what passes for substantial evidence of a conspiracy." However, though the evidence was sparse, it was sufficient to "support an inference that Hackley had a continuous relationship with Maryland suppliers." The evidence was more abundant on the solicitation to murder count, although the communications at issue went to Hackley's "many girlfriends" rather than the ultimate "assassin." There was also sufficient evidence that Hackley possessed the firearm stored in the home of one of those many girlfriends. Second, Hackley argued that the district court should have given an entrapment instruction because the jury could have concluded that Johnson, rather than Hackley, began the conversation about killing Jackson. The court rejected that argument, noting that because Johnson was not a agent of the police at that time, it didn't matter who started the conversation. Third, Hackley argued that the felon in possession charge should have been severed from the rest of the counts. The court disagreed, noting that the gun at issue was offered as a potential tool for dealing with Jackson. Fourth, Hackley argued that the district court erred by denying his request for new counsel a week before the trial was to begin. The court rejected that argument, holding that Hackley never expressed concern about counsel's inadequacy, merely her "style," which was not a sufficient basis for granting the request. Finally, the court affirmed Hackley's sentence, holding that the district court was aware of its ability to impose a below-the-Guidelines sentence and exercised its discretion not to do so.
After a plea agreement broke down, Hackley moved that he be appointed new counsel. The district court declined and the case went to trial. The district court denied Hackley's request for an entrapment instruction on the murder for hire count. He was convicted on all counts and sentenced to 306 months in prison.
On appeal, Hackley challenged both his convictions and sentence, all of which the Fourth Circuit upheld. First, Hackley argued that there was insufficient evidence to sustain the convictions for conspiracy to distribute crack, solicitation to murder, and being a felon in possession of a firearm. The evidence on the conspiracy count, the court held, "represents the very boundary of what passes for substantial evidence of a conspiracy." However, though the evidence was sparse, it was sufficient to "support an inference that Hackley had a continuous relationship with Maryland suppliers." The evidence was more abundant on the solicitation to murder count, although the communications at issue went to Hackley's "many girlfriends" rather than the ultimate "assassin." There was also sufficient evidence that Hackley possessed the firearm stored in the home of one of those many girlfriends. Second, Hackley argued that the district court should have given an entrapment instruction because the jury could have concluded that Johnson, rather than Hackley, began the conversation about killing Jackson. The court rejected that argument, noting that because Johnson was not a agent of the police at that time, it didn't matter who started the conversation. Third, Hackley argued that the felon in possession charge should have been severed from the rest of the counts. The court disagreed, noting that the gun at issue was offered as a potential tool for dealing with Jackson. Fourth, Hackley argued that the district court erred by denying his request for new counsel a week before the trial was to begin. The court rejected that argument, holding that Hackley never expressed concern about counsel's inadequacy, merely her "style," which was not a sufficient basis for granting the request. Finally, the court affirmed Hackley's sentence, holding that the district court was aware of its ability to impose a below-the-Guidelines sentence and exercised its discretion not to do so.
Detention of Defendant Away from Home Being Searched OK'd
US v. Montieth: After receiving a tip from an ATF agent that Montieth was selling marijuana, local law enforcement (based on the tip and evidence recovered from Montieth's trash) obtained a warrant to search his home. Rather than go straight to the home, they waited until Montieth drove away from the home, stopped and detained him (officers smelled marijuana), and secured his cooperation in executing the search warrant without the need for a "dynamic entry" (I think that's cop speak for "breaking down the front door with the SWAT team"). Once Montieth's wife and children left the home, officers searched the home and, with Montieth's assistance, recovered marijuana and firearms. As a result, Montieth was charged with several offenses, including carrying a firearm in connection with a drug trafficking offense. Montieth moved to suppress both the physical evidence recovered from his home, as well as his statements made during the search. The district court denied the motion and Montieth entered a conditional plea to the gun charge.
On appeal, Montieth reiterated his arguments about the suppression of the physical evidence and his statements. The Fourth Circuit disagreed with those arguments and affirmed. First, the court concluded that the warrant itself was based on sufficient evidence to show probable cause, particularly the evidence recovered from the trash. The warrant also particularly described the items to be seized. Second, the court concluded that the fact a warrant had been obtained justified a Terry stop of Montieth's car, particularly because the warrant allowed the search of Montieth himself, not just his home. It is not necessary for that detention to take place in the location being searched. Third, the court concluded that Montieth's statement during the traffic stop that there was marijuana in the home was not made pursuant to any questioning by the officers and thus there had been no Miranda violation there. Finally, with regards to the search itself, the court held that the statements Montieth made during the search were made following an oral waiver of his Miranda rights and the warrant itself had been validly issued.
On appeal, Montieth reiterated his arguments about the suppression of the physical evidence and his statements. The Fourth Circuit disagreed with those arguments and affirmed. First, the court concluded that the warrant itself was based on sufficient evidence to show probable cause, particularly the evidence recovered from the trash. The warrant also particularly described the items to be seized. Second, the court concluded that the fact a warrant had been obtained justified a Terry stop of Montieth's car, particularly because the warrant allowed the search of Montieth himself, not just his home. It is not necessary for that detention to take place in the location being searched. Third, the court concluded that Montieth's statement during the traffic stop that there was marijuana in the home was not made pursuant to any questioning by the officers and thus there had been no Miranda violation there. Finally, with regards to the search itself, the court held that the statements Montieth made during the search were made following an oral waiver of his Miranda rights and the warrant itself had been validly issued.
Convictions, Sentence Affirmed In "Pump & Dump" Stock Case
US v. Offill: Offill, an attorney and securities specialist, was contacted by another attorney , Stocker, in 2004 about how to issue stock without the need to register it. The two eventually engaged in a "pump and dump" scheme in which they inflated the value of stock they owned before selling it to members of the public at a great profit. Offill was charged with one count of conspiring to artificially manipulate stock prices and nine counts of wire fraud. After a jury trial, he was convicted on all counts. At sentencing, the district court imposed a sentence of 96 months in prison, well below the advisory Guideline range of 168 to 210 months.
Offill appealed, raising issues related to both his convictions and his sentence, all of which the Fourth Circuit rejected. As to the trial issues, the court first rejected Offill's argument that two of the Government's expert witnesses improperly addressed the ultimate issue in the case, making conclusions reserved for the jury. Although the testimony involved discussion of legal issues that were ultimately covered by the judge's instructions to the jury, the court found no abuse of discretion in allowing the testimony. The court also concluded that the district court did not abuse its discretion by allowing lay expert testimony from two coconsiprators (including Stocker) about their own activity. The court also found no error in the admission of evidence of Offill's subsequent acts or the failure of the district court to give a multiple conspiracies instruction. As to Offill's sentence, the court first concluded that there was sufficient evidence to support the district court's decision that Offill should not have received a Guideline reduction for a minor role in the offense. The court also rejected the argument that Offill's sentence was unreasonable because it was longer than his codefendants (who pleaded guilty and cooperated with the Government). Finally, the court held that the district court properly calculated the loss attributed to Offill.
Offill appealed, raising issues related to both his convictions and his sentence, all of which the Fourth Circuit rejected. As to the trial issues, the court first rejected Offill's argument that two of the Government's expert witnesses improperly addressed the ultimate issue in the case, making conclusions reserved for the jury. Although the testimony involved discussion of legal issues that were ultimately covered by the judge's instructions to the jury, the court found no abuse of discretion in allowing the testimony. The court also concluded that the district court did not abuse its discretion by allowing lay expert testimony from two coconsiprators (including Stocker) about their own activity. The court also found no error in the admission of evidence of Offill's subsequent acts or the failure of the district court to give a multiple conspiracies instruction. As to Offill's sentence, the court first concluded that there was sufficient evidence to support the district court's decision that Offill should not have received a Guideline reduction for a minor role in the offense. The court also rejected the argument that Offill's sentence was unreasonable because it was longer than his codefendants (who pleaded guilty and cooperated with the Government). Finally, the court held that the district court properly calculated the loss attributed to Offill.
As-Applied Challenge to 922(g)(9) Shot Down
US v. Staten: Staten was charged with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. He filed a motion to dismiss, arguing that 922(g)(9) violated his Second Amendment rights. The district court denied the motion and Staten entered a conditional guilty plea preserving the Second Amendment issue.
Between conviction and appeal, the Fourth Circuit issued its published decision in Chester (the second opinion), which laid out a two-step process for evaluating Second Amendment claims (at least in 922(g)(9) cases), but ultimately concluded that the Government hadn't met its burden of proving there was a "reasonable fit" between 922(g)(9) and a substantial governmental objective and remanded for further proceedings. In Staten's case, the Government did not provide the kind of evidence it has on remand in Chester, but did cite numerous social science studies linking domestic violence and firearms.
Ultimately, the Fourth Circuit affirmed the denial of Staten's motion to dismiss because the Government's citations, while not the best way of proving a reasonable fit, did do the job. They were all (but one) available publicly and could have been countered by Staten. What objections he did raise were easily dismissed. In making its ruling, the court repeatedly noted that Staten's challenge on appeal was an as-applied, rather than facial, challenge, so it's unclear what sort of impact it might have on other cases (like Chester itself on remand).
Between conviction and appeal, the Fourth Circuit issued its published decision in Chester (the second opinion), which laid out a two-step process for evaluating Second Amendment claims (at least in 922(g)(9) cases), but ultimately concluded that the Government hadn't met its burden of proving there was a "reasonable fit" between 922(g)(9) and a substantial governmental objective and remanded for further proceedings. In Staten's case, the Government did not provide the kind of evidence it has on remand in Chester, but did cite numerous social science studies linking domestic violence and firearms.
Ultimately, the Fourth Circuit affirmed the denial of Staten's motion to dismiss because the Government's citations, while not the best way of proving a reasonable fit, did do the job. They were all (but one) available publicly and could have been countered by Staten. What objections he did raise were easily dismissed. In making its ruling, the court repeatedly noted that Staten's challenge on appeal was an as-applied, rather than facial, challenge, so it's unclear what sort of impact it might have on other cases (like Chester itself on remand).
Monday, December 05, 2011
Criminal forfeiture of assets affirmed
US v. Martin, et al.: The Appellants in this case challenged the district court’s criminal forfeiture orders concerning the seizure of property purportedly connected to their drug crimes. The government initially moved civilly to forfeit the property, and following the filing of the fourth superseding indictment, filed criminal forfeiture warrants for the same property.
Appellant Martin argued that the government violated the pre-trial civil forfeiture statute, which renders the later criminal forfeiture invalid. Collectively, the appellants argued that the district court lacked jurisdiction to order the criminal forfeiture (which occurred after their sentences and entry of judgments against them).
With respect to Appellant Martin’s issue, the Fourth Circuit stated that even assuming the government did seize the property at issue illegally (which it declined to decide), the illegal seizure of property does not immunize that property from forfeiture as long as the government can sustain the claim with independent evidence, citing to a 2007 First Circuit case, United States v. Pierre, for support. Here, Martin did not challenge the sufficiency of the evidence produced by the government, independent of the property, to justify the forfeiture; so, the Fourth Circuit rejected this challenge.
The jurisdiction claim failed because of a Supreme Court decision, Dolan v. United States, which guided the Fourth Circuit here to held that missing the deadline under Rule of Criminal Procedure 32.2 for finalizing forfeiture orders at the time of sentencing, does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so long as the sentencing court has clarified prior to sentencing that it intends to order the forfeiture. In Dolan, the Supreme Court provided an analytical structure for examining a statute that sets forth a deadline without specifying a consequence for missing the deadline (e.g., a defendant is ordered to pay restitution to the victim of the crime, and the statute says that the court shall set a date for the determination of the victim’s losses, not to exceed 90 days after sentencing).
The Fourth Circuit considered the kind of deadline in this forfeiture case as a "time-related directive," or the most forgiving type of deadline. This type of deadline is "legally enforceable but does not deprive a judge or other public official of the power to take action to which the deadline applies if the deadline is missed," citing Dolan. The deadline was held not to bar the district court’s exercise of jurisdiction, stating that the purpose of the deadline was not to create a coercive sanction, but to ensure the defendant’s notice of any and all aspects of sentencing, including forfeiture. There was no dispute here that appellants had notice prior to sentencing that a forfeiture was pending at their sentencing.
The dissent argued that the majority’s holding will allow courts to subject defendants to the punishment of forfeiture without discussing it at sentencing or ordering it in judgment, if the defendant has notice that such punishment may be ordered. Also, Judge Gregory argued that the majority took Dolan out of context and expanded the breadth of its holding into a qualitatively separate area of the law. Dolan, the dissent stated, was limited to restitution cases in which the amount of restitution was not yet determined; moreover, the restitution and forfeiture statutory schemes have differing purposes and structures.
Appellant Martin argued that the government violated the pre-trial civil forfeiture statute, which renders the later criminal forfeiture invalid. Collectively, the appellants argued that the district court lacked jurisdiction to order the criminal forfeiture (which occurred after their sentences and entry of judgments against them).
With respect to Appellant Martin’s issue, the Fourth Circuit stated that even assuming the government did seize the property at issue illegally (which it declined to decide), the illegal seizure of property does not immunize that property from forfeiture as long as the government can sustain the claim with independent evidence, citing to a 2007 First Circuit case, United States v. Pierre, for support. Here, Martin did not challenge the sufficiency of the evidence produced by the government, independent of the property, to justify the forfeiture; so, the Fourth Circuit rejected this challenge.
The jurisdiction claim failed because of a Supreme Court decision, Dolan v. United States, which guided the Fourth Circuit here to held that missing the deadline under Rule of Criminal Procedure 32.2 for finalizing forfeiture orders at the time of sentencing, does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so long as the sentencing court has clarified prior to sentencing that it intends to order the forfeiture. In Dolan, the Supreme Court provided an analytical structure for examining a statute that sets forth a deadline without specifying a consequence for missing the deadline (e.g., a defendant is ordered to pay restitution to the victim of the crime, and the statute says that the court shall set a date for the determination of the victim’s losses, not to exceed 90 days after sentencing).
The Fourth Circuit considered the kind of deadline in this forfeiture case as a "time-related directive," or the most forgiving type of deadline. This type of deadline is "legally enforceable but does not deprive a judge or other public official of the power to take action to which the deadline applies if the deadline is missed," citing Dolan. The deadline was held not to bar the district court’s exercise of jurisdiction, stating that the purpose of the deadline was not to create a coercive sanction, but to ensure the defendant’s notice of any and all aspects of sentencing, including forfeiture. There was no dispute here that appellants had notice prior to sentencing that a forfeiture was pending at their sentencing.
The dissent argued that the majority’s holding will allow courts to subject defendants to the punishment of forfeiture without discussing it at sentencing or ordering it in judgment, if the defendant has notice that such punishment may be ordered. Also, Judge Gregory argued that the majority took Dolan out of context and expanded the breadth of its holding into a qualitatively separate area of the law. Dolan, the dissent stated, was limited to restitution cases in which the amount of restitution was not yet determined; moreover, the restitution and forfeiture statutory schemes have differing purposes and structures.
Friday, December 02, 2011
Common sense in ACCA cases?
US v. John Joel Foster: In an unfortunate twist for the appellant, the Fourth Circuit vacated Mr. Foster’s twenty-four month sentence for being a felon in possession of a firearm, and remanded the case for re-sentencing under the Armed Career Criminal Act, for the mandatory minimum fifteen-year sentence.
At issue in this appeal was whether Mr. Foster’s prior state convictions for breaking and entering under Virginia’s non-generic burglary statute qualified as violent felonies under ACCA. The Fourth Circuit found that the language of the indictments for Foster’s three prior convictions for breaking and entering mandated that the prior convictions were based on entries into buildings or structures, to wit, the "Sunrise-Sunset Market," the "blacksmith shop," and the "Corner Market," and as such, the convictions qualified as predicate violent felonies of the ACCA.
The concurrence and dissent gain purchase from Judge Agee's statement that "courts are, of course, permitted to draw reasonable inferences from the underlying state documents." The dissent finds that the government "must show more than the possibility, based solely on common sense and logic, that Defendant's prior convictions may qualify under ACCA." The concurrence chides the dissent that "our common sense neither is an outside evidentiary source that is prohibited by Shepard nor is our use of it going to create a trial within a trial in ACCA cases."
At issue in this appeal was whether Mr. Foster’s prior state convictions for breaking and entering under Virginia’s non-generic burglary statute qualified as violent felonies under ACCA. The Fourth Circuit found that the language of the indictments for Foster’s three prior convictions for breaking and entering mandated that the prior convictions were based on entries into buildings or structures, to wit, the "Sunrise-Sunset Market," the "blacksmith shop," and the "Corner Market," and as such, the convictions qualified as predicate violent felonies of the ACCA.
The concurrence and dissent gain purchase from Judge Agee's statement that "courts are, of course, permitted to draw reasonable inferences from the underlying state documents." The dissent finds that the government "must show more than the possibility, based solely on common sense and logic, that Defendant's prior convictions may qualify under ACCA." The concurrence chides the dissent that "our common sense neither is an outside evidentiary source that is prohibited by Shepard nor is our use of it going to create a trial within a trial in ACCA cases."
Tuesday, November 29, 2011
Effective assistance and CBLA evidence
US v. Higgs: The Fourth Circuit affirmed the district court’s denial of Higgs’ 28 U.S.C. § 2255 motion, having granted a certificate of appealability to consider his due process and ineffective assistance arguments predicated on the introduction of Comparative Bullet Lead Analysis ("CBLA") evidence.
Higgs had been convicted in 2000 in federal district court for his involvement in the abduction and murders of three women at the Patuxent National Wildlife Refuge; Higgs received nine death sentences, which the Fourth Circuit affirmed. Higgs filed motions for a new trial, which the district court denied and the Fourth Circuit affirmed. The government presented the contested CBLA evidence along with other forensic evidence of "rifling" at Higgs’ trial. Prior to Higgs’ attempt at attacking his convictions collaterally, the FBI and others began questioning the significance of bullet lead matching, which resulted in a study conducted by the National Research Council in 2004. Upon the findings of this study, the FBI Laboratory announced that it would no longer perform CBLA, whereas it had been widely used in courts at the time of Higgs’s trial and until at least 2003. Higgs claimed that a Brady violation occurred when the government failed to produce the internal reports that he believed could have impeached the forensic expert’s testimony on CBLA; he also argued that trial counsel were ineffective for failing to present any available expert testimony to challenge the CBLA evidence, and post-trial counsel were also ineffective because they failed to file a motion for a new trial on the basis of the studies on CBLA.
The Fourth Circuit concluded that there was no reasonable probability that the district court would have excluded the CBLA testimony at Higgs’ trial if his attorneys had challenged it, or that the penalty phase of the trial would have ended differently if the CBLA evidence had been excluded or subject to additional cross-examination. Additionally, criticisms of CBLA appear to have been available to others, not just the within the government, so the Fourth Circuit determined that counsel had not been constitutionally ineffective for failing to file a motion under Rule 33 for a new trial because of the post-trial studies.
Higgs had been convicted in 2000 in federal district court for his involvement in the abduction and murders of three women at the Patuxent National Wildlife Refuge; Higgs received nine death sentences, which the Fourth Circuit affirmed. Higgs filed motions for a new trial, which the district court denied and the Fourth Circuit affirmed. The government presented the contested CBLA evidence along with other forensic evidence of "rifling" at Higgs’ trial. Prior to Higgs’ attempt at attacking his convictions collaterally, the FBI and others began questioning the significance of bullet lead matching, which resulted in a study conducted by the National Research Council in 2004. Upon the findings of this study, the FBI Laboratory announced that it would no longer perform CBLA, whereas it had been widely used in courts at the time of Higgs’s trial and until at least 2003. Higgs claimed that a Brady violation occurred when the government failed to produce the internal reports that he believed could have impeached the forensic expert’s testimony on CBLA; he also argued that trial counsel were ineffective for failing to present any available expert testimony to challenge the CBLA evidence, and post-trial counsel were also ineffective because they failed to file a motion for a new trial on the basis of the studies on CBLA.
The Fourth Circuit concluded that there was no reasonable probability that the district court would have excluded the CBLA testimony at Higgs’ trial if his attorneys had challenged it, or that the penalty phase of the trial would have ended differently if the CBLA evidence had been excluded or subject to additional cross-examination. Additionally, criticisms of CBLA appear to have been available to others, not just the within the government, so the Fourth Circuit determined that counsel had not been constitutionally ineffective for failing to file a motion under Rule 33 for a new trial because of the post-trial studies.
Monday, November 28, 2011
Habeas relief awarded to remedy 29 years of injustice
Elmore v. Ozmint: The Fourth Circuit awarded Edward Elmore habeas relief on his ineffective assistance of counsel claims, arising from his original 1982 murder conviction. The Fourth Circuit, in its 194-page tome, found that Elmore's attorneys blindly accepted South Carolina's forensic evidence against their client. The Fourth Circuit also noted that there were grave concerns as to whether Elmore actually committed the murder.
"If our opinion embarrasses anyone, so be it. It would be entirely inappropriate for us to pull our punches or take any such consideration into account. There are far greater interests at stake: the fairness of our judicial system and, more specifically, Elmore's Sixth Amendment right to the effective assistance of counsel."
Elmore will be free unless the State of South Carolina decides to prosecute him a fourth time for the murder of Dorothy Edwards. The State has not yet announced its decision, though it must do so within a reasonable time.
"If our opinion embarrasses anyone, so be it. It would be entirely inappropriate for us to pull our punches or take any such consideration into account. There are far greater interests at stake: the fairness of our judicial system and, more specifically, Elmore's Sixth Amendment right to the effective assistance of counsel."
Elmore will be free unless the State of South Carolina decides to prosecute him a fourth time for the murder of Dorothy Edwards. The State has not yet announced its decision, though it must do so within a reasonable time.
Wednesday, November 16, 2011
Reasonable suspicion not established for patdown
US v. Powell: The Fourth Circuit vacated Powell’s conviction for simple possession of crack, holding that the government did not present a set of facts which sufficiently establish reasonable suspicion.
The Fourth Circuit, without hesitation, concluded that the government failed to establish that the officers in traffic stop here had reasonable suspicion that Powell was armed and dangerous when they began the patdown in question. First, the context of the stop provided no basis for the officers to reasonably suspect that Powell might have been armed and dangerous. In fact, he was eating at the time the traffic stop began, and he and one of the police officers discussed their mutual appreciation for fish sandwiches. The traffic stop, prior to Powell’s removal from the back seat was "remarkable" for its "amicable, cooperative, and relatively safe nature."
The government urged two factors weighed in support of their reasonable suspicion argument: 1) caution data, or a person’s possible involvement in prior criminal activity; and 2) Powell’s purported deliberate misrepresentation of his driver’s license. While a prior criminal record can be relevant in establishing reasonable suspicion, the Fourth Circuit explained, in most instances, standing alone it is not enough to create reasonable suspicion. The caution data here (a prior armed robbery) was the sole basis for the police officer’s pat down of Powell, and the Fourth Circuit found that it certainly did not justify a reasonable suspicion that Powell was armed and dangerous on the night in question. And, while a false statement can be considered in establishing reasonable suspicion, Powell’s purported misrepresentation, did not "remotely" tend to suggest that he was armed and dangerous.
In dissent, Justice King stated that he found an ample basis here for suspecting that Powell may have been armed and dangerous, and that the risk of dismissing a "common sense" suspicion that a suspect may be armed is "inherently perilous to arresting officers."
The Fourth Circuit, without hesitation, concluded that the government failed to establish that the officers in traffic stop here had reasonable suspicion that Powell was armed and dangerous when they began the patdown in question. First, the context of the stop provided no basis for the officers to reasonably suspect that Powell might have been armed and dangerous. In fact, he was eating at the time the traffic stop began, and he and one of the police officers discussed their mutual appreciation for fish sandwiches. The traffic stop, prior to Powell’s removal from the back seat was "remarkable" for its "amicable, cooperative, and relatively safe nature."
The government urged two factors weighed in support of their reasonable suspicion argument: 1) caution data, or a person’s possible involvement in prior criminal activity; and 2) Powell’s purported deliberate misrepresentation of his driver’s license. While a prior criminal record can be relevant in establishing reasonable suspicion, the Fourth Circuit explained, in most instances, standing alone it is not enough to create reasonable suspicion. The caution data here (a prior armed robbery) was the sole basis for the police officer’s pat down of Powell, and the Fourth Circuit found that it certainly did not justify a reasonable suspicion that Powell was armed and dangerous on the night in question. And, while a false statement can be considered in establishing reasonable suspicion, Powell’s purported misrepresentation, did not "remotely" tend to suggest that he was armed and dangerous.
In dissent, Justice King stated that he found an ample basis here for suspecting that Powell may have been armed and dangerous, and that the risk of dismissing a "common sense" suspicion that a suspect may be armed is "inherently perilous to arresting officers."
Tuesday, November 15, 2011
Matters unrelated to justification for traffic stop
US v. Guijon-Ortiz: Saul Guijon-Ortiz took issue with his conviction for illegal reentry after deportation; the Fourth Circuit affirmed. Guijon-Ortiz appealed the denial of his motion to suppress, in which he argued that during a traffic stop of a vehicle wherein he was a passenger, Guijon-Ortiz provided a fake ID, which the police officer discovered by calling ICE while the traffic stop was ongoing. Guijon-Ortiz argued that because of the length of time it took for the officer to contact ICE, he was subjected to an unconstitutional seizure. Guijon-Ortiz’s fingerprints were obtained when he was subsequently taken to an ICE office and questioned. The Fourth Circuit concluded that under a totality of the circumstances, the traffic stop was not unreasonably prolonged by the officer’s call to ICE.
Guijon-Ortiz’s appeal issue is this: once the officer learned that no one in the stopped vehicle had outstanding warrants, and since Guijon-Ortiz had given the officer an LPR card as identification, was the officer then permitted to call ICE to verify the validity of the LPR card? Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?
The Fourth Circuit relies on its decision from earlier this year, United States v. Digiovanni, in which it held that a stop exceeded the permissible duration and scope when an officer "failed to diligently pursue" the purpose of the stop and went off on a tangential investigation into drugs in the vehicle, the latter investigation constituting the bulk of the encounter. The officer’s diligence in pursuit of the investigation of the justification for the stop, is key, though the duration and scope of the stop are still relevant to the Terry analysis.
The Fourth Circuit finds it decision is consistent the position of the Sixth, Eighth and Ninth Circuits, which is at odds with the Seventh Circuit, which holds that questions unrelated to the justification for a stop that hold potential for detecting crime, that create little or no inconvenience, do not turn reasonable detention into unreasonable detention.
However, the Fourth Circuit affirmed for the following reasons: 1) calling ICE is analogous with how an officer routinely runs a driver’s license and registration to check their validity; 2) the time it took to call ICE was very brief; 3) the purpose of the stop was "still alive" when the officer called ICE; and 4) although the call to ICE was unrelated to the purpose of the stop, the call was a single, brief detour from an otherwise diligent investigation into whether the driver was impaired. They did not decide whether the officer had reasonable suspicion to believe that criminal activity was afoot at the time he called ICE. And, to the extent that the reasonableness of a traffic stop would be judged solely on the duration of the stop, the Fourth Circuit rejects that reasoning.
Guijon-Ortiz’s appeal issue is this: once the officer learned that no one in the stopped vehicle had outstanding warrants, and since Guijon-Ortiz had given the officer an LPR card as identification, was the officer then permitted to call ICE to verify the validity of the LPR card? Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?
The Fourth Circuit relies on its decision from earlier this year, United States v. Digiovanni, in which it held that a stop exceeded the permissible duration and scope when an officer "failed to diligently pursue" the purpose of the stop and went off on a tangential investigation into drugs in the vehicle, the latter investigation constituting the bulk of the encounter. The officer’s diligence in pursuit of the investigation of the justification for the stop, is key, though the duration and scope of the stop are still relevant to the Terry analysis.
The Fourth Circuit finds it decision is consistent the position of the Sixth, Eighth and Ninth Circuits, which is at odds with the Seventh Circuit, which holds that questions unrelated to the justification for a stop that hold potential for detecting crime, that create little or no inconvenience, do not turn reasonable detention into unreasonable detention.
However, the Fourth Circuit affirmed for the following reasons: 1) calling ICE is analogous with how an officer routinely runs a driver’s license and registration to check their validity; 2) the time it took to call ICE was very brief; 3) the purpose of the stop was "still alive" when the officer called ICE; and 4) although the call to ICE was unrelated to the purpose of the stop, the call was a single, brief detour from an otherwise diligent investigation into whether the driver was impaired. They did not decide whether the officer had reasonable suspicion to believe that criminal activity was afoot at the time he called ICE. And, to the extent that the reasonableness of a traffic stop would be judged solely on the duration of the stop, the Fourth Circuit rejects that reasoning.
Drug conspiracy, and the vehicles of its operation
US v. Cabrera-Beltran: A jury in Alexandria, VA, convicted Cabrera-Beltran of conspiracy to import and distribute cocaine and heroin. On appeal to the Fourth Circuit, Cabrera-Beltran raised several issues, including violations of his 6th and 14th Amendment rights.
On appeal, Cabrera-Beltran argued that three Spanish-speaking venirepersons should not have been struck by the district court after each of them expressed an inability to accept the translations of their native tongue by a court interpreter. The Fourth Circuit determined that the district court did not abuse its discretion in striking the potential jurors, holding that the "for-cause striking of prospective jurors based upon their perceived inability to accept an interpreter as the final arbiter of what was said or written does not violate the Equal Protection Clause" of the 14th Amendment, as it is integral to a fair trial that all jurors base their decision on the same evidence.
Next, Cabrera-Beltran argued that case management documents (Treasury Enforcement Communications System, or TECS) maintained by Customs and Border Patrol, to monitor the vehicles and license plates that cross the national borders, should not have been admitted because he could not cross-examine the border patrol agent who produced the information. The Fourth Circuit found that these documents were not testimonial, and did not violate the rule against hearsay because they are kept in the normal course of business, not for the purposes of a subsequent legal action. Additionally, at least two federal courts (5th and 9th) have held that these TECS records are admissible under the public records exception to hearsay.
Cabrera-Beltran also argued that because the jury convicted him for an amount of cocaine less than the amount alleged in the indictment, that he essentially received a variance which required reversal. The Fourth Circuit found, however, that a lesser included offense is included in the charged offense, and hence, there is no variance. Further, Cabrera-Beltran raised the issue of whether the indictment was effective, but since he had not raised this issue prior to trial, this claim was found to be waived. Cabrera-Beltran argued that the district court erred in giving an Allen charge as opposed to granting his request for a mistrial, when the jury announced its failure to reach a verdict. After two days, the jury eventually reached a verdict.
Cabrera-Beltran moved for acquittal based on insufficient evidence, that the witness testimony against him was vague, uncertain and incredible. The Fourth Circuit found substantial evidence supporting the verdict and found that the district court did not err in denying that motion. Cabrera-Beltran raised the issue that the district court erred in admitting testimony from Lorenzo Salgado as 404(b) evidence, testimony which detailed heroin transactions that occurred prior to the conduct alleged in the indictment. The Fourth Circuit concurred with the government that the testimony was relevant to prove knowledge and intent. Finally, Cabrera-Beltran raised two sentencing issues, that the district court erred in calculating the drug quantity by accounting for drugs that were sld to Salgado prior to the events of the indictment; second, that the district court erred in adding a two-level enhancement for his managerial role in the conspiracy. The Fourth Circuit found no sentencing errors.
On appeal, Cabrera-Beltran argued that three Spanish-speaking venirepersons should not have been struck by the district court after each of them expressed an inability to accept the translations of their native tongue by a court interpreter. The Fourth Circuit determined that the district court did not abuse its discretion in striking the potential jurors, holding that the "for-cause striking of prospective jurors based upon their perceived inability to accept an interpreter as the final arbiter of what was said or written does not violate the Equal Protection Clause" of the 14th Amendment, as it is integral to a fair trial that all jurors base their decision on the same evidence.
Next, Cabrera-Beltran argued that case management documents (Treasury Enforcement Communications System, or TECS) maintained by Customs and Border Patrol, to monitor the vehicles and license plates that cross the national borders, should not have been admitted because he could not cross-examine the border patrol agent who produced the information. The Fourth Circuit found that these documents were not testimonial, and did not violate the rule against hearsay because they are kept in the normal course of business, not for the purposes of a subsequent legal action. Additionally, at least two federal courts (5th and 9th) have held that these TECS records are admissible under the public records exception to hearsay.
Cabrera-Beltran also argued that because the jury convicted him for an amount of cocaine less than the amount alleged in the indictment, that he essentially received a variance which required reversal. The Fourth Circuit found, however, that a lesser included offense is included in the charged offense, and hence, there is no variance. Further, Cabrera-Beltran raised the issue of whether the indictment was effective, but since he had not raised this issue prior to trial, this claim was found to be waived. Cabrera-Beltran argued that the district court erred in giving an Allen charge as opposed to granting his request for a mistrial, when the jury announced its failure to reach a verdict. After two days, the jury eventually reached a verdict.
Cabrera-Beltran moved for acquittal based on insufficient evidence, that the witness testimony against him was vague, uncertain and incredible. The Fourth Circuit found substantial evidence supporting the verdict and found that the district court did not err in denying that motion. Cabrera-Beltran raised the issue that the district court erred in admitting testimony from Lorenzo Salgado as 404(b) evidence, testimony which detailed heroin transactions that occurred prior to the conduct alleged in the indictment. The Fourth Circuit concurred with the government that the testimony was relevant to prove knowledge and intent. Finally, Cabrera-Beltran raised two sentencing issues, that the district court erred in calculating the drug quantity by accounting for drugs that were sld to Salgado prior to the events of the indictment; second, that the district court erred in adding a two-level enhancement for his managerial role in the conspiracy. The Fourth Circuit found no sentencing errors.
Thursday, November 10, 2011
Former sheriff's convictions affirmed
US v. Medford: Medford, formerly the Buncombe, North Carolina, County Sheriff appealed his convictions for conspiracy and other charges related to his receipt of bribes in connection with an unlawful video poker machine scheme in that state, involving a South Carolinian video poker machine operator, Henderson Amusement, Inc. The Fourth Circuit affirmed the convictions on all counts.
Medford raised five issues in his appeal: the court committed error in admitting the recording of a meeting between Henderson Amusement reps and people affiliated with a sheriff’s department outside of Buncombe County; the court denied Medford’s motion to sever his trial from a co-defendant’s (Penland); insufficient evidence was presented for a conviction under the Hobbs Act; Medford was subjected to inconsistent and biased treatment from the court; and the Honest Services Statute, 18 U.S.C. sect. 1346 is unconstitutionally vague.
With respect to the admission of the recording, the Fourth Circuit did not decide whether the recording was admissible under Rule 801(d)(2)(E), concluding that any error in the admission of the recording was harmless in light of the "overwhelming evidence" supporting the jury’s verdict. The Fourth Circuit affirmed the district court’s decision not to sever the trials of Medford and Penland, a self-described "captain" in the Buncombe sheriff department, relying on its decision in United States v. Parodi for support. In Parodi, the Fourth Circuit established a four-factor test was issued for the analysis of motions to sever based upon the asserted need for a co-defendant’s testimony. The defendants here failed to satisfy the test because of Penland’s equivocation on his willingness to waive his 5th Amendment rights if the trials were indeed severed.
The Fourth Circuit quickly dispensed with the claim that the district court subjected Medford to inconsistent and biased treatment, reminding that there is a difference between "fair" and "perfect" trials, and concluded that Medford’s treatment was not unfair or biased.
The Fourth Circuit reviewed Medford’s claim that insufficient evidence had been presented to sustain a conviction under the Hobbs Act, under the plain error standard of review, as Medford failed to raise the issue at trial. Here, Medford argued incorrectly that all the parties from whom the conspirators obtained property were part of the conspiracy, which the Fourth Circuit found to be a false premise, and consequently rejected Medford’s claim that the evidence was insufficient.
Finally, the Fourth Circuit found that Medford’s position on the Honest Services statute has been foreclosed by the Supreme Court’s 2010 decision in Skilling v. United States, in which the "bribery and kickback schemes" provisions of the statute, under which Medford was convicted, were not unconstitutionally vague.
Medford raised five issues in his appeal: the court committed error in admitting the recording of a meeting between Henderson Amusement reps and people affiliated with a sheriff’s department outside of Buncombe County; the court denied Medford’s motion to sever his trial from a co-defendant’s (Penland); insufficient evidence was presented for a conviction under the Hobbs Act; Medford was subjected to inconsistent and biased treatment from the court; and the Honest Services Statute, 18 U.S.C. sect. 1346 is unconstitutionally vague.
With respect to the admission of the recording, the Fourth Circuit did not decide whether the recording was admissible under Rule 801(d)(2)(E), concluding that any error in the admission of the recording was harmless in light of the "overwhelming evidence" supporting the jury’s verdict. The Fourth Circuit affirmed the district court’s decision not to sever the trials of Medford and Penland, a self-described "captain" in the Buncombe sheriff department, relying on its decision in United States v. Parodi for support. In Parodi, the Fourth Circuit established a four-factor test was issued for the analysis of motions to sever based upon the asserted need for a co-defendant’s testimony. The defendants here failed to satisfy the test because of Penland’s equivocation on his willingness to waive his 5th Amendment rights if the trials were indeed severed.
The Fourth Circuit quickly dispensed with the claim that the district court subjected Medford to inconsistent and biased treatment, reminding that there is a difference between "fair" and "perfect" trials, and concluded that Medford’s treatment was not unfair or biased.
The Fourth Circuit reviewed Medford’s claim that insufficient evidence had been presented to sustain a conviction under the Hobbs Act, under the plain error standard of review, as Medford failed to raise the issue at trial. Here, Medford argued incorrectly that all the parties from whom the conspirators obtained property were part of the conspiracy, which the Fourth Circuit found to be a false premise, and consequently rejected Medford’s claim that the evidence was insufficient.
Finally, the Fourth Circuit found that Medford’s position on the Honest Services statute has been foreclosed by the Supreme Court’s 2010 decision in Skilling v. United States, in which the "bribery and kickback schemes" provisions of the statute, under which Medford was convicted, were not unconstitutionally vague.
Thursday, November 03, 2011
Obstruction of justice enhancement not a foregone conclusion when a defendant takes the stand
US v. Perez: Perez challenged the denial of his request for new counsel, as well as an obstruction of justice imposed on his sentence. The Fourth Circuit affirmed the denial of his request for new counsel, but reversed and remanded on the sentencing enhancement, holding that the district court failed to make the necessary factual findings to support the imposition of the enhancement.
Prior to trial, Perez moved for new counsel, which request the district court denied. After trial and prior to sentencing, Perez moved for new counsel a second time, which the district court denied again (without a hearing), deciding that it would be better for Perez to be represented at sentencing by an attorney familiar with his case. On appeal, the Fourth Circuit found that there had been neither a lack of communication nor an inadequate defense, despite Perez’s complaint that counsel had "avoided my rights. He has not been paying attention to them." In the balance with the district court’s interest in efficiently administering justice, the Fourth Circuit found the district court correctly denied Perez’s request for new counsel.
In considering Perez’s obstruction of justice enhancement, the Fourth Circuit discusses the irregular application of United States v. Dunnigan by its district courts. In that case, the Supreme Court said that an enhancement based on perjury does not unconstitutionally undermine the right to testify in one’s own defense, as "not every accused who testifies at trial and is convicted will incur an enhanced sentence." If a defendant receives the enhancement and object to it, the district court is supposed to conduct a review of the evidence and make "independent findings necessary to establish a willful impediment to, or obstruction of, justice..."
District courts, after Dunnigan, are also supposed to make separate and clear findings to address each element of the alleged perjury, but it will suffice if they make a finding that encompasses all of the factual predicates for perjury. It is this sufficiency that has apparently caused some problems, and the Fourth Circuit gives a little mea culpa, stating, "[t]o date, we have not provided a great deal of guidance to the district courts in applying Dunnigan..." and resolves to remedy the situation by holding that "if a district court does not make a specific finding as to each element of perjury, it must provide a finding that clearly establishes each of the three elements...and requiring district courts to clearly articulate the findings necessary to reach a legal conclusion preserves our ability to conduct meaningful appellate review."
Prior to trial, Perez moved for new counsel, which request the district court denied. After trial and prior to sentencing, Perez moved for new counsel a second time, which the district court denied again (without a hearing), deciding that it would be better for Perez to be represented at sentencing by an attorney familiar with his case. On appeal, the Fourth Circuit found that there had been neither a lack of communication nor an inadequate defense, despite Perez’s complaint that counsel had "avoided my rights. He has not been paying attention to them." In the balance with the district court’s interest in efficiently administering justice, the Fourth Circuit found the district court correctly denied Perez’s request for new counsel.
In considering Perez’s obstruction of justice enhancement, the Fourth Circuit discusses the irregular application of United States v. Dunnigan by its district courts. In that case, the Supreme Court said that an enhancement based on perjury does not unconstitutionally undermine the right to testify in one’s own defense, as "not every accused who testifies at trial and is convicted will incur an enhanced sentence." If a defendant receives the enhancement and object to it, the district court is supposed to conduct a review of the evidence and make "independent findings necessary to establish a willful impediment to, or obstruction of, justice..."
District courts, after Dunnigan, are also supposed to make separate and clear findings to address each element of the alleged perjury, but it will suffice if they make a finding that encompasses all of the factual predicates for perjury. It is this sufficiency that has apparently caused some problems, and the Fourth Circuit gives a little mea culpa, stating, "[t]o date, we have not provided a great deal of guidance to the district courts in applying Dunnigan..." and resolves to remedy the situation by holding that "if a district court does not make a specific finding as to each element of perjury, it must provide a finding that clearly establishes each of the three elements...and requiring district courts to clearly articulate the findings necessary to reach a legal conclusion preserves our ability to conduct meaningful appellate review."
Wednesday, November 02, 2011
Statment of PC Not Sufficient to Determine Prior
US v. Donnell: This is a pretty straight forward application of Shepard. Donnell was convicted of being a felon in possession of a firearm. His Guideline range was enhanced because the district court concluded that his prior Maryland conviction for second-degree assault was a "crime of violence." That conclusion was based on a "statement of probable cause" that the Government presented at sentencing in order to sort out the facts of the incident. Of course, such a statement was not part of the Shepard-approved documents during the plea hearing in Maryland, thus the Fourth Circuit concludes that the district court erred by considering it. Sentence vacated and remanded for further proceedings.
No mens rea Required for Stolen Firearm Enhancement; Counsel's Affirmation OK Basis for ACCA Prior
US v. Taylor: Taylor and his codefendant, Thompson, were both convicted by a jury of being felons in possession of a firearm (same one, actually). A police officer in Baltimore saw Taylor hand the weapon to Thompson. When officers approached to arrest them, Thompson fled, dropping the gun along the way. Taylor received a sentence 96 months in prison, partly due to a two-level enhancement based on the firearm being stolen, while Thompson got a sentence of 180 months in prison, based on the application of the ACCA.
Taylor challenged both his conviction and sentence on appeal. As to the conviction, the Fourth Circuit concluded that there was sufficient evidence to support it, even though it was based on the direct observation of only one police officer (upon whose credibility Taylor launched "an extended attack"). As to the sentence, Taylor argued that the two-level enhancement for possession of a stolen firearm could not apply because it lacks a mens rea requirement. The court rejected that argument, noting that every other Circuit has rejected it and concluding that a mens rea requirement, while important in general, is not required for every sentencing enhancement to apply. The court also concluded that Taylor's bottom-of-the-Guideline range sentence was substantively reasonable.
Thompson challenged only his sentence on appeal, specifically whether a prior Maryland conviction for second-degree assault was a "violent felony" under the ACCA. The district court had relied upon a recitation of facts at Thompson's state plea hearing as a basis for concluding that the conviction was a violent felony. Thompson did not directly affirm those facts, but his counsel said there were no "additions or corrections" to that recitation. The court turned away Thompson's reliance on Alston, noting that his plea was not an Alford plea. That his lawyer, rather than Thompson himself, affirmed the factual basis for the plea was irrelevant.
Judge Davis dissented with regards to Thompson's sentence, arguing that the majority effectively rewrites Shepard and its protections for a defendant to not be bound by anything not explicitly agreed to by him.
Taylor challenged both his conviction and sentence on appeal. As to the conviction, the Fourth Circuit concluded that there was sufficient evidence to support it, even though it was based on the direct observation of only one police officer (upon whose credibility Taylor launched "an extended attack"). As to the sentence, Taylor argued that the two-level enhancement for possession of a stolen firearm could not apply because it lacks a mens rea requirement. The court rejected that argument, noting that every other Circuit has rejected it and concluding that a mens rea requirement, while important in general, is not required for every sentencing enhancement to apply. The court also concluded that Taylor's bottom-of-the-Guideline range sentence was substantively reasonable.
Thompson challenged only his sentence on appeal, specifically whether a prior Maryland conviction for second-degree assault was a "violent felony" under the ACCA. The district court had relied upon a recitation of facts at Thompson's state plea hearing as a basis for concluding that the conviction was a violent felony. Thompson did not directly affirm those facts, but his counsel said there were no "additions or corrections" to that recitation. The court turned away Thompson's reliance on Alston, noting that his plea was not an Alford plea. That his lawyer, rather than Thompson himself, affirmed the factual basis for the plea was irrelevant.
Judge Davis dissented with regards to Thompson's sentence, arguing that the majority effectively rewrites Shepard and its protections for a defendant to not be bound by anything not explicitly agreed to by him.
"Employment" Can Include, Doesn't Require, Payment of Wages
US v. Weaver: Weaver and his codefendants were members of the Pagans Motorcycle Club, which the Government alleged was involved in various nefarious activities. They were charged with "being employed" by a prohibited person and possessing a firearm "in the course of such employment." The "employer" was the president of the club, who was a convicted felon and, thus, could not legally possess firearms. The district court concluded that the statute required the Government to prove that Weaver and the others were "employed for wages," a standard which the Government admitted it could not meet. Therefore, the district court dismissed that charge.
The Government appealed and the Fourth Circuit reversed. After dealing with the procedural irregularities of the appeal (in a footnote), the court concluded that the district court's reading placed "an artificial restriction on the statute." The statute's plain language, the court concluded, does not show a "rigid requirement that defendants be hired for tangible compensation," because the word "employ" has many potential meanings. A more flexible test is appropriate and better implements the structure and purpose of the statute. However, the court declined the opportunity to set out that test in detail, remanding to the district court for further proceedings.
The Government appealed and the Fourth Circuit reversed. After dealing with the procedural irregularities of the appeal (in a footnote), the court concluded that the district court's reading placed "an artificial restriction on the statute." The statute's plain language, the court concluded, does not show a "rigid requirement that defendants be hired for tangible compensation," because the word "employ" has many potential meanings. A more flexible test is appropriate and better implements the structure and purpose of the statute. However, the court declined the opportunity to set out that test in detail, remanding to the district court for further proceedings.
Wednesday, October 12, 2011
En Banc Court Addresses ACCA, Categorical Approach, and Indecent Liberties
US v. Vann: Vann was convicted of being a felon in possession of a firearm. The PSR recommended that he be classified as an Armed Career Criminal based on three prior convictions in North Carolina for "indecent liberties" (aka sex offenses against children), which were violent felonies under the ACCA. Vann objected, arguing that in a post-Begay world some indecent liberties convictions would be violent felonies, while others would not and the record did not prove that his were violent felonies. The district court and a panel of the Fourth Circuit disagreed and Vann was sentenced to 180 months in prison.
Sitting en banc, the Fourth Circuit reversed course and vacated Vann's sentence. In a brief per curiam opinion (in which nine judges joined), the court explained that it "assumed" that (applying a "modified" categorical approach) any conviction under subsection (a)(2) (as opposed to (a)(1)) of the North Carolina indecent liberties statute was a violent felony, the Government could not prove that Vann's convictions were sustained under that subsection. It rejected the conclusion of Judge Niemeyer (concurring and dissenting) that because the charging documents were worded conjunctively and cited both subsections that Vann pleaded guilty to violating both of them, holding that (a) those documents weren't part of the record before the district court and shouldn't be considered and (b) even if they were, prior circuit precedent on conjunctively worded indictments did not support the dissent's position.
That's the first 10 pages. The other 90 pages of the opinion consist of a plethora of concurrences and one dissent:
Sitting en banc, the Fourth Circuit reversed course and vacated Vann's sentence. In a brief per curiam opinion (in which nine judges joined), the court explained that it "assumed" that (applying a "modified" categorical approach) any conviction under subsection (a)(2) (as opposed to (a)(1)) of the North Carolina indecent liberties statute was a violent felony, the Government could not prove that Vann's convictions were sustained under that subsection. It rejected the conclusion of Judge Niemeyer (concurring and dissenting) that because the charging documents were worded conjunctively and cited both subsections that Vann pleaded guilty to violating both of them, holding that (a) those documents weren't part of the record before the district court and shouldn't be considered and (b) even if they were, prior circuit precedent on conjunctively worded indictments did not support the dissent's position.
That's the first 10 pages. The other 90 pages of the opinion consist of a plethora of concurrences and one dissent:
- Judge King concurred (with three others signed on),arguing against adopting a modified version of the categorical approach, concluding that such would "contravene Supreme Court precedent and the interests of justice," although noting that the result is the same in this particular case.
- Judge Agee concurred both with the per curiam opinion Judge Keenan's concurrence and picks up Justice Scalia's withering attack on the vagueness of the ACCA (a "black hole of confusion and uncertainty stymies our best efforts," Judge Agee writes) in Sykes, calling upon Congress to fix it, and lays the blame squarely at Congress's feet "should a majority of the Supreme Court come to find Justice Scalia's conclusion the only constitutionally valid course."
- Judge Davis (who joined Judge King's concurrence) concurred, offering more thoughts on the perils of the modified categorical approach.
- Judge Keenan's concurrence (to which four other judges signed on) offers a defense of the modified categorical approach.
- Judge Wilkinson concurred, offering another defense of the modified categorical approach, noting that "too many courts are too deep in the weeds on the matter of the ACCA's residual clause."
- Judge Niemeyer dissented (joined by Judge Shedd), arguing that the record showed that Vann's prior convictions were ACCA violent felonies. He concurred in the use of the modified categorical approach, however.
Monday, August 22, 2011
Warrantless Entry Violates Fourth Amendment, Will Later Consent Avoid Suppression?
US v. Hill: Police obtained a warrant for Hill's arrest on drug charges. They went to his last known address, a townhouse he shared with his girlfriend and their son. However, from prior experience the officers knew that Hill only spent about half of his time there and one officer speculated there was only a 20% chance he would be there (a previous visit to the home on a 911 hang-up led Hill's girlfriend to tell the officers he knew he had an arrest warrant out against him). Officers knocked on the door, but no one answered. They could hear what sounded like the TV playing inside. One officer called Hill's wife, who was at work. She said the only person who would be there was her sister. She did not give the officers' permission to enter.
Nonetheless, one of them turned the knob, opened the door, and saw Hill (and a friend) sitting on the couch. Officers did a protective search of the home, finding some marijuana. One officer went to obtain a search warrant. Before he returned, however, Hill's girlfriend arrived home. She may or may not have consented to a search of the home at that time. Regardless, a search was done by the time the warrant arrived. Officers found a gun and more drugs in the home, leading to Hill being charged with drug and firearm offenses. Hill moved to suppress the evidence, but the motion was denied. He entered a conditional guilty plea and was sentenced to 120 months in prison.
On appeal, the Fourth Circuit reversed the denial of the motion to suppress. First, the court held that the officers did not have sufficient evidence to suggest that Hill was actually in the home to execute the arrest warrant. Hill conceded he resided there (he had to in order to assert a Fourth Amendment protection), but the court held there was not sufficient evidence from which the officers could conclude he was actually there. Second, the court concluded that there were no exigent circumstances present that would justify entry into the home without a warrant. Third, the court held that Hill's girlfriend did consent to a search once she arrived at the home. However, the court did not decide whether the consent dissipated the taint of the initial illegal entry, an issue the district court did not reach. It remanded to the district court for further proceedings on that issue.
Judge Agee dissented, arguing that the majority did not give sufficient deference to the district court's finding of facts. When viewed with the proper deference, there was no basis for overturning the district court's ruling.
Congrats to the Defender office in Eastern Virginia on the win!
Nonetheless, one of them turned the knob, opened the door, and saw Hill (and a friend) sitting on the couch. Officers did a protective search of the home, finding some marijuana. One officer went to obtain a search warrant. Before he returned, however, Hill's girlfriend arrived home. She may or may not have consented to a search of the home at that time. Regardless, a search was done by the time the warrant arrived. Officers found a gun and more drugs in the home, leading to Hill being charged with drug and firearm offenses. Hill moved to suppress the evidence, but the motion was denied. He entered a conditional guilty plea and was sentenced to 120 months in prison.
On appeal, the Fourth Circuit reversed the denial of the motion to suppress. First, the court held that the officers did not have sufficient evidence to suggest that Hill was actually in the home to execute the arrest warrant. Hill conceded he resided there (he had to in order to assert a Fourth Amendment protection), but the court held there was not sufficient evidence from which the officers could conclude he was actually there. Second, the court concluded that there were no exigent circumstances present that would justify entry into the home without a warrant. Third, the court held that Hill's girlfriend did consent to a search once she arrived at the home. However, the court did not decide whether the consent dissipated the taint of the initial illegal entry, an issue the district court did not reach. It remanded to the district court for further proceedings on that issue.
Judge Agee dissented, arguing that the majority did not give sufficient deference to the district court's finding of facts. When viewed with the proper deference, there was no basis for overturning the district court's ruling.
Congrats to the Defender office in Eastern Virginia on the win!
Court Reverses on North Carolina Priors
US v. Simmons: Simmons was convicted on a federal drug charge and faced an enhanced sentence for a prior drug conviction "punishable by imprisonment for more than one year." The prior at issue was a North Carolina conviction for possession with intent to distribute marijuana. A "Class I" felony, it carried a potential sentence of more than one year in prison only if (a) certain aggravating factors were present and (b) Simmons had a "prior record level" of at least 5. Neither condition was met in Simmons's case. Nevertheless, the district court found that Simmons's prior qualified him for an enhanced sentence, applying an old Fourth Circuit case which held that the applicable potential maximum sentence in such cases was based on an offender with the worst possible criminal history. A panel of the Fourth Circuit affirmed that sentence, both before and after a remand from the Supreme Court.
On a rehearing en banc, the court changed course, 8-5, and vacated Simmons's sentence. The court, via Judge Motz, concluded that the Supreme Court expressly rejected the "hypothetical defendant" approach for analyzing North Carolina convictions. Because a defendant's maximum potential sentence on an offense in North Carolina is tied directly to his criminal history, the correct analysis is to determine what the maximum sentence possible a defendant with the same criminal history could have received (the actual sentence received is, of course, irrelevant). That brings the Fourth Circuit into line with the other two circuits that have looked at the North Carolina system.
Judge Agee led the dissenters, arguing that the language of the enhancement statute talks about an "offense" that is "punishable" by a certain potential sentence and does not allow for any consideration of a particular defendant's criminal history.
Congrats the Defender office in Western North Carolina, which headed up the amicus forces on this win!
On a rehearing en banc, the court changed course, 8-5, and vacated Simmons's sentence. The court, via Judge Motz, concluded that the Supreme Court expressly rejected the "hypothetical defendant" approach for analyzing North Carolina convictions. Because a defendant's maximum potential sentence on an offense in North Carolina is tied directly to his criminal history, the correct analysis is to determine what the maximum sentence possible a defendant with the same criminal history could have received (the actual sentence received is, of course, irrelevant). That brings the Fourth Circuit into line with the other two circuits that have looked at the North Carolina system.
Judge Agee led the dissenters, arguing that the language of the enhancement statute talks about an "offense" that is "punishable" by a certain potential sentence and does not allow for any consideration of a particular defendant's criminal history.
Congrats the Defender office in Western North Carolina, which headed up the amicus forces on this win!
Tuesday, August 16, 2011
Nervousness During Refusal to Consent to Patdown Doesn't Generate Reasonable Suspicion
US v. Massenburg: Officers in Richmond responded to an anonymous report of shots fired in a "high-crime" neighborhood. They encountered a group of four men, including Massenburg, about four blocks away. The men were generally helpful (one reported hearing shots), provided identification, and consented to patdowns. However, Massenburg refused to consent to a patdown. He was, according to one of the officers, "real reluctant to give consent." Because Massenburg distanced himself somewhat from the other three men and would not make eye contact with an officer repeatedly asking for consent to perform a patdown, an officer patted him down anyway. The patdown uncovered a gun and some marijuana, leading to Massenburg being charged with drug possession and possession of a firearm by a drug user. He moved to suppress the gun and marijuana, but the district court denied the motion. Massenburg entered a conditional guilty plea and appealed that decision.
On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. Noting that it recently (in Foster) chided the Government for attempting to spin "mundane acts into a web of deception" in order to support a Terry intervention, the court wrote that such concern "is only heightened when the 'mundane acts' emerge from the refusal to consent to a voluntary search," concluding that, if Terry is to mean anything, "refusing to consent to a search cannot itself justify a nonconsensual search." After examining the testimony about the incident in some detail, the court concluded that "there is precious little to sustain the district court's holding" that there was reasonable suspicion to support a patdown. Massenburg's observed nervousness came only when the officer repeatedly sought his consent to pat him down, a situation that would make almost anyone nervous. The court also refused to impart to the officer who searched Massenburg the observation of another officer (not reported at the time) that he saw a bulge in Massenburg's jacket.
On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. Noting that it recently (in Foster) chided the Government for attempting to spin "mundane acts into a web of deception" in order to support a Terry intervention, the court wrote that such concern "is only heightened when the 'mundane acts' emerge from the refusal to consent to a voluntary search," concluding that, if Terry is to mean anything, "refusing to consent to a search cannot itself justify a nonconsensual search." After examining the testimony about the incident in some detail, the court concluded that "there is precious little to sustain the district court's holding" that there was reasonable suspicion to support a patdown. Massenburg's observed nervousness came only when the officer repeatedly sought his consent to pat him down, a situation that would make almost anyone nervous. The court also refused to impart to the officer who searched Massenburg the observation of another officer (not reported at the time) that he saw a bulge in Massenburg's jacket.
3582 Reduction Requires Reliance on Guidelines
US v. Brown: Brown pleaded guilty to maintaining a crack house in 2005. As part of a Rule 11(c)(1)(C) binding plea agreement, he agreed that the "appropriate sentence in this case is incarceration for not less than 180 months and not more than 240 months." He was sentenced to 210 months in prison. In 2009, Brown filed a motion for a reduced sentence under 3582(c)(2) and the revised crack guidelines. The district court granted the motion and reduced his sentence to 180 months. The Government appealed, arguing that the district court lacked the jurisdiction to reduce a sentence imposed as part of a binding plea agreement.
On appeal, the Fourth Circuit agreed and vacated Brown's reduced sentence. The Supreme Court recently dealt with the issue in Freeman v, United States. However, as the Fourth recognized, that decision was not a hallmark of clarity. Four justices held that reduced sentences are always available in binding plea cases, while four others concluded (in dissent) that such reductions are never available. Justice Sotomayor took a middle approach, concluding that reductions were unavailable in such cases, unless the plea agreement specifically relies upon a particular Guideline range. Concluding that Sotomayor's opinion controls, the court concludes that Brown's plea agreement does not rely on a particular Guideline range. Therefore, the district court lacked the authority to reduce his sentence.
On appeal, the Fourth Circuit agreed and vacated Brown's reduced sentence. The Supreme Court recently dealt with the issue in Freeman v, United States. However, as the Fourth recognized, that decision was not a hallmark of clarity. Four justices held that reduced sentences are always available in binding plea cases, while four others concluded (in dissent) that such reductions are never available. Justice Sotomayor took a middle approach, concluding that reductions were unavailable in such cases, unless the plea agreement specifically relies upon a particular Guideline range. Concluding that Sotomayor's opinion controls, the court concludes that Brown's plea agreement does not rely on a particular Guideline range. Therefore, the district court lacked the authority to reduce his sentence.
Identity Evidence Insufficient to Sustain Robbery, Firearm Charges
US v. Bonner: Bonner was charged with a Hobbs Act robbery and use of a firearm. The charges arose from the robbery of a Subway restaurant in North Carolina by two African American men. One was wearing a NY Yankees cap. That was the only description provided by the two employees present during the robbery. Police pulled over an SUV exiting the parking lot shortly thereafter that, while it only included one occupant (who was never charged), did contain items linking the vehicle to Bonner. Police also recovered a Yankees cap from behind the store which contained DNA that matched Bonner (as well as several other people who could not be identified). Finally, a canine followed a scent from the area to a nearby gas station, from which a phone call was placed to Bonner's girlfriend several hours after the robbery.
Bonner was convicted at trial. However, the district court granted his motion for a judgment of acquittal after the conviction, having deferred ruling on Bonner's motion made after the close of the Government's case (and every subsequent opportunity). The Government appealed, arguing that the evidence was sufficient to support the convictions, when considered in the light most favorable to the Government.
The Fourth Circuit affirmed the district court's grant of the motion for acquittal. The court concluded that there was a "conspicuous absence of any contemporaneous 'identity' evidence linking the defendant to the robbery." As for the DNA match to the Yankee cap, the court noted that the cap had several different DNA samples on it and nothing proved that Bonner wore it the night of the robbery (as opposed to some other time). The court also refused to rely on an inference put forth by the Government that the dog tracking a scent from the scene to the gas station did so based on the "predominant DNA" present on the cap (Bonner's). The court noted that the Government's inference lacked any basis in the record. In addition, "not every articulable inference is proper because scientific rigor demands more than a theory of plausible deductions strung together."
Bonner was convicted at trial. However, the district court granted his motion for a judgment of acquittal after the conviction, having deferred ruling on Bonner's motion made after the close of the Government's case (and every subsequent opportunity). The Government appealed, arguing that the evidence was sufficient to support the convictions, when considered in the light most favorable to the Government.
The Fourth Circuit affirmed the district court's grant of the motion for acquittal. The court concluded that there was a "conspicuous absence of any contemporaneous 'identity' evidence linking the defendant to the robbery." As for the DNA match to the Yankee cap, the court noted that the cap had several different DNA samples on it and nothing proved that Bonner wore it the night of the robbery (as opposed to some other time). The court also refused to rely on an inference put forth by the Government that the dog tracking a scent from the scene to the gas station did so based on the "predominant DNA" present on the cap (Bonner's). The court noted that the Government's inference lacked any basis in the record. In addition, "not every articulable inference is proper because scientific rigor demands more than a theory of plausible deductions strung together."
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