Stop for Speeding, Following to Close, OK Under Fourth Amendment

US v. Mubdi:  Mubdi (and a passenger) were stopped along the Interstate in North Carolina for speeding and following too closely.  During the ensuing traffic stop, a drug dog alerted on the car.  The subsequent search uncovered drugs and firearms.  Mubdi was charged with drug and firearm offenses as a result.  He moved to suppress the evidence found in the car, arguing both that the officer who stopped him lacked probable cause to do so and, even if such cause existed, the stop was unduly prolonged without reasonable suspicion.  The district court denied the motion and Mubdi entered a conditional guilty plea and was sentenced to 300 months in prison.

On appeal, the Fourth Circuit affirmed Mubdi's conviction and sentence.  As to the basis for the stop, the court concluded that the officer had probable cause to believe both that Mubdi was speeding and following too closely, as defined by North Carolina law.  As to the speeding, the court noted that although the officer used only visual means to estimate Mubdi's speed this case was quite different from the court's recent decision in Sowards, in which the officer utilizing the same visual method was "to put it mildly, measurement-challenged."  Without such difficulties present in the record, there was probable cause to stop Mubdi for speeding.  Alternately, the court held that there was also probable cause to stop him for following too closely, rejecting Mubdi's argument that the North Carolina regulation did not apply in the situation at hand (in which he was overtaking another car) and that, even if it did, it was a mistake of fact, rather than one of law, and did not prevent the officer from making the stop.  As to the stop itself, although the court appeared to conclude that the stop was not unduly prolonged at all (the drug dog arrived while the officer was writing the ticket), it also concluded that there was reasonable suspicion to extend the stop, based on Mubdi's behavior.  Finally, the court upheld Mubdi's sentence, turning away a challenge to the applicable mandatory minimum under binding Supreme Court precedent.

Judge Davis authored an interesting concurring opinion.  He laid out how expanding Supreme Court precedent on traffic stops has allowed the officers involved in this case to do precisely what they did - conduct a drug interdiction investigation in the guise of a traffic stop: "it was not for nothing that, as shown on the video taken by the dashboard camera in [the officer]'s vehicle, the officers in this case expressed unmitigated glee, punctuated by serial 'fist-bumps' all around, when the cache of more than two hundred grams of crack cocaine was removed from the [car]."  He concluded that the speeding justification was similar to the one in Sowards and therefore insufficient to support the stop.  However, he agreed with the majority on the following too closely analysis and concurred as to all other parts of the opinion.

Duplicating forensic tests, and elements of RICO offense

US v. Mouzone and US v. Fleming:  These two appellants were indicted and tried for RICO and drug offenses related to their mutual membership in Tree Top Piru, a subset of the Bloods gang that operated in Essex, Maryland. Both Mouzone and Fleming were convicted of the RICO charge, and Fleming was also convicted on two drug charges. Both appellants raised several district court errors; the Fourth Circuit affirmed the convictions and sentences. 

In one of these issues, Fleming challenged the district court’s ruling that permitted the government to present a drug analysis report on bags of cocaine seized from his pocket at the time of his arrest. Two different chemists performed drug analyses; the government learned that the first analyst would be unable to appear for trial, so a second analyst performed the same tests nearly two years later. The results after the second test, specifically weight determinations, were "discordant." The Confrontation Clause requires that the accused "be confronted with the analyst who made the certification, unless that analyst be unavailable at trial, and the accused had an opportunity, pre-trial, to cross-examine that particular [analyst]," the Fourth Circuit quoted from Bullcoming v. New Mexico. Introducing a surrogate analyst, who does not sign the certification or perform or observe the test reported in the certification cannot satisfy the Confrontation Clause.

The Fourth Circuit reasoned that even if the admission of the second analyst’s testimony violated the Confrontation Clause, it was confident that the admission did not sway the jury on the drug charges: the second analyst performed an independent analysis; the weight determinations were still well above threshold amounts for which Fleming was convicted; and the second analyst made no attempt to vouch for the first analyst’s findings.

Mouzone and Fleming both challenged the district court’s charge to the jury of the elements of the RICO offense under 18 U.S.C. sect. 1962(d). Both appellants requested that the district court instruct the jury that in order to "participate, directly or indirectly, in the conduct of such enterprise’s affairs, one must have some part in directing those affairs. Some part in directing the enterprise’s affairs is required." The district court denied this request.

The Fourth Circuit disagreed with appellants that a managerial role in the enterprise’s affairs is required for conviction under this statute. Rather, it held that "simply agreeing to advance a RICO undertaking is sufficient." The Fourth Circuit joined several other circuits (D.C., 9^th, 3^rd, 2^nd, and 5^th) in holding that sect. 1962(d) liability does not require that a defendant have a role in directing an enterprise.

Writ of error coram nobis successful

US v. Akinsade:  In this appeal, the Fourth Circuit granted the appellant’s request for a writ of error coram nobis pursuant to 28 U.S.C. sect. 1651, vacating his prior conviction for embezzlement, to which he plead guilty in 2000. Akinsade claimed that he was misadvised by his attorney about the immigration consequences of taking a plea, and the Fourth Circuit agreed. When making the decision whether to plead, his attorney had advised that Akinsade could not be deported based on his single offense, and that he could only be deported if he had two felony convictions, which advice was contrary to the law at that time.

In order to reach its decision, the Fourth Circuit enunciated a standard it will use in reviewing petitions for writ of error coram nobis: abuse of discretion. In order to receive this type of extraordinary relief, a petitioner must show the following: 1) a more usual remedy is not available; 2) valid reasons exist for a failure to attack a conviction earlier; 3) adverse consequences from the conviction exist, such that the case or controversy requirement of Article III is satisfied; and 4) the error is "of the most fundamental character." This final requirement received the most attention in this opinion.

Prior to reaching the Fourth Circuit, the district court that received Akinsade’s petition denied his petition without a hearing, on the grounds that this extraordinary remedy was not available for a "mere garden-variety" ineffective assistance of counsel claim that did not allege a "fundamental error." The district court did find that Akinsade’s counsel’s affirmative misrepresentations rendered the advice Akinsade received constitutionally defective, but that Akinsade did not experience prejudice as a result.

The Fourth Circuit points to three aspects of Akinsade’s plea that caused him to experience prejudice: the equivocal nature of the admonishment - that his plea could lead to deportation, when in fact deportation was a mandatory consequence; his counsel’s affirmative mis-advice clearly contrary to the law; and the severity of deportation itself as a consequence. With respect to the mis-advice, the Fourth Circuit reiterated and applied its position from U.S. v. Gajendragadkar, in which it found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the U.S. and thus, would reasonable risk going to trial over taking a plea and facing certain deportation. The Fourth Circuit did not discuss a retroactive application of Padilla because neither the appellant nor the government contested the fact that the incorrect advice Akinsade received was constitutionally deficient.

The dissent noted that the civil immigration proceedings against Akinsade in the Second Circuit recently decided that Akinsade had not, in fact, pleaded guilty to an aggravated felony, and thus, the government did not plan to oppose termination of Akinsade’s deportation. The dissent found it unnecessary to vacate Akinsade’s plea when he would not be deported as a result of it.

No plea agreement breach when government gets the statutory maximum wrong

US v. Davis:  The government indicted William Davis for unlawful possession of a firearm by a convicted felon under 18 U.S.C. sect. 922(g)(1). Davis had three prior state felony convictions. The government presented a plea agreement in which Davis was incorrectly advised that he faced a ten-year maximum sentence when in fact, he faced a fifteen-year mandatory minimum based on his criminal history. Davis entered the plea agreement; to make matters worse, the district court similarly misadvised Davis at the plea hearing about the actual extent of exposure to punishment he faced.

The probation officer who prepared the pre-sentence investigation report discovered the errors and concluded that Davis’ sentence should be fifteen years to life in prison. At sentencing, Davis objected on three grounds, none of which included a contention that the government breached his plea agreement or that he had been misadvised regarding the statutory maximum punishment. The district court overruled his objections and designated Davis an armed career criminal, and sentenced him to 180 months.

Nine months later, Davis filed a claim under 28 U.S.C. sect. 2255 to challenge his sentence, based in part on his counsel’s failure to file a direct appeal upon his request. Davis’ attorney had recently died, so the Court granted his petition and gave him 14 days to appeal his sentence. He raised two issues: the government breached the plea agreement and deprived him of the benefit of his bargain; and his qualification as an armed career criminal.

The Fourth Circuit found that Davis’ claim of breaching the plea agreement failed because he sought "the benefit of a promise that the government never made," as it did not promise a particular sentence and made only "non-binding" recommendations and "no representations" as to the final sentence. Also, the district court has no discretion to sentence an individual in contravention of a statute, so even if the government had breached an agreement with Davis, he would not have been entitled to "specific performance" of that promise.

There was an appeal waiver contained in Davis’ plea agreement, but the Fourth Circuit found that his waiver was invalid because he did not knowingly waive the right to appeal the sentence ultimately imposed. The Fourth Circuit did not agree with Davis that he did not qualify for an armed career criminal enhancement, and upheld his sentence against this claim of error.
 

Illegal re-entry & prior TX burglary conviction lead to enhanced sentence

US v. Bonilla:  Francisco Bonilla pleaded guilty to one count of illegal re-entry; the presentence report ordered in advance of the sentencing in his case included an enhancement based on his prior state conviction for burglary of a habitation in Texas. Bonilla objected to the application of this enhancement, arguing that this prior conviction did not qualify as a crime of violence as required in Taylor v. United States, 495 U.S. 575 (1990).

In Taylor, the Supreme Court set out to uniformly define "burglary" from the variety of definitions in different States’ criminal codes. The Fourth Circuit discusses Taylor at length as the backdrop for making its decision here, and the short version: if the state definition corresponds "substantially" to generic burglary, then the sentencing enhancement at stake here applies.

The Fifth Circuit has held that a burglary conviction under the same code section as Bonilla received is NOT a generic burglary under Taylor, because it does not contain an intent element to commit a felony, theft, or assault at the moment of entry. The Fourth Circuit respectfully states that this holding results from a "too rigid" reading of Taylor, and Bonilla’s guilty plea contained all the elements to satisfy Taylor’s description of generic burglary "notwithstanding that Bonilla might not have formulated his intent prior to the unlawful entry." The dissent’s well-reasoned view supports the opposite conclusion, based on the common law notion that intent must be contemporaneous with the other elements of the offense, in order for a burglary to satisfy Taylor.

Possession of weapon in prison - crime of violence?

US v. Mobley:  Mobley, imprisoned at FCI Butner, visited the infirmary for pain and numbness in his feet. Upon examination, a shank was discovered in the insole of Mobley’s right shoe. Despite Mobley’s attempt to hide it, the physical therapist turned the shank over to prison staff.

Mobley received a charge for possessing a prohibited object to which he pleaded guilty. The presentence report calculated Mobley’s base offense level and then applied the career offender enhancement, considering the possession of the shank to be a "crime of violence" for sentencing purposes. Application of this enhancement increased Mobley’s punishment from a range of 24-30 months, based upon his criminal history, to 37 to 46 months. Mobley objected to the application of this enhancement at sentencing; the district court decided that "there is no passive possession of a weapon in a prison setting,"and imposed a sentence of 37 months.

The Third Circuit has adopted the position that possession of a weapon, "even in a prison," is not the same in kind or in degree of risk as crimes of violence under the career offender sentencing enhancement. The Fifth, Eighth, and Tenth Circuits, however, have reached a different conclusion when faced with this issue, holding that possession of a weapon in prison "is similar in kind and degree of risk" to burglary, arson, or extortion, or any other enumerated crime of violence under this sentencing enhancement. The Fourth Circuit concurred with the latter group and affirmed Mobley's sentence, though Justice Wynn dissented, agreeing with the Third Circuit that possession of a weapon is "a far cry" from the conduct of enumerated crimes listed in U.S.S.G. sect. 4B1.2(a).

Special Conditions on Supervised Release Reversed

US v. Worley:  Appellant David Worley received a 100-month sentence for his convictions for methamphetamine offenses. He challenged the length of the sentence as well as the special conditions imposed on his supervised release, arguing that the district court abused its discretion in imposing the conditions. The Fourth Circuit disagreed with respect to the 100 months of incarceration (within his advisory guidelines range), but it agreed that several of the special conditions should be reversed.

Worley’s presentence report recommended fifteen special conditions in this case, based upon two twelve-year-old state convictions for carnal knowledge of a child (committed when Worley was twenty-one).  In particular, three of the special conditions prohibited Worley from having unsupervised contact with children, residing with minor children without permission from a probation officer, and forming a romantic relationship with anyone who has physical custody of a child. In the intervening twelve years, Worley had started a family with three young children, and maintained his relationship with his family and girlfriend.  Worley did not explicitly object to the district court’s imposition of the special conditions at sentencing. 

The Fourth Circuit stated that it did not need to determine whether to use plain error review of the special conditions, or the more deferential standard, an abuse of discretion: the imposition of these three restrictive special conditions on Worley’s supervised release was plain error, and did not further the defendant’s rehabilitation. "Conditions that interfere with a defendant’s constitutional liberties, such as raising his child or associating with a loved one, must be adequately explained or else their imposition undermines the fairness and integrity of our judicial proceedings." The Fourth Circuit noted that, "[g]iven the severity of these restrictions in hindering Worley’s familial relations weighed against the lack of evidence that Worley currently poses a threat to children, the district court erred in imposing the conditions and this error requires a complete reversal with no remand." 

With respect to the remaining special conditions on Worley’s supervised release, the Fourth Circuit remanded them to the district court, as "they impose restrictions that do well beyond Worley’s state sex offender registration requirements," but they did not infringe on his relationship with his children and girlfriend. In imposing these conditions, the district court had only relied on Worley’s prior state sex offense convictions, and the record according to the Fourth Circuit, did not support the conclusion that Worley’s current behavior and character required them.

Mandatory Restitution statute interpreted

US v. Burgess:  The Fourth Circuit affirmed Burgess's two convictions and 292-month sentence for receipt and possession of materials depicting minors engaged in sexually explicit conduct, but it vacated the restitutionary award to the victim, "Vicky," for a calculation of the amount of loss proximately caused by Burgess.

At the sentencing hearing, the government submitted a request pursuant to the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. sect. 2259, for "Vicky," the victim portrayed in the materials seized from the appellant's residence.  The government argued that Burgess should be held "jointly and severally liable with all other defendants [for] the full amount of Vicky's losses."  The district court based its restitution award on the government's memorandum and calculation of loss. 

The appeal presented the question of whether a victim's losses attributable to a defendant under this restitution statute are limited to losses proximately caused by the defendant, or whether the plain language of the statute imposes no such limitation (as "Vicky" argued as amicus curiae).  Other circuits that have considered this issue have determined that a proximate cause limitation is applicable to this statute based upon a variety of rationales; though most them, like the Fourth Circuit here, examined the issue by using tort law principles in the construction of the criminal statute to resolve any ambiguity. 

The Fourth Circuit concluded that nothing in the text or structure of this statute indicated that Congress intended to "negate the ordinary requirement of proximate causation for an award of compensatory damages," and found that this statute "invokes the well-recognized principle that a defendant is liable only for harm that he proximately caused," and not for those injuries inflicted by others at different times.

The dissent argues that the majority's opinion in premature, in that the district court below did not make factual findings with respect to proximate cause.  Additionally, he does not believe that district courts will be able to "meaningfully say precisely x amount of Vicky's psychological injuries were caused by Burgess's watching the video, that y amount was caused by Defendant #2's watching the same video, and so on."  Further, the dissent argues that the question of whether "a defendant proximately caused some injury is entirely separate from the question of how those proximately caused losses should be allocated among several offenders." 

Fraud Convictions for Manufactured Regulatory Approval Upheld

US v. Wynn: Wynn was an engineer with a firm responsible for a project extending the runway of a regional airport in South Carolina.  In order to embark on the project, the airport needed the plans drawn up by Wynn to be approved by regulators.  Wynn never got such approval, but when asked if the approval had been given, fabricated an appropriate stamp from the regulators and sent it to the airport by mail and later the regulators as an attachment to an email.  As a result, Wynn was charged and convicted for mail fraud and wire fraud.  He was sentenced to 12 months and one day in prison and ordered to pay restitution of $118,000.

On appeal, Wynn challenged both his conviction and sentence, both of which the court upheld.  As to his convictions, Wynn argued that the district court improperly instructed the jury by allowing a conviction without the Government proving that he intended to harm the airport (or the county that ran it) and that the evidence was insufficient to prove that element.  The court disagreed, holding that the instructions correctly told the jury it needed to find an intent to defraud on Wynn's part, not simply a falsehood in his dealings with the airport.  The court also rejected Wynn's argument that providing the falsely approved version of the plan to was not material or reasonably relied upon.  As to his sentence, Wynn argued that the loss calculation by the district court greatly overestimated the actual loss, because it included fees paid by the county to Wynn's firm that were unrelated to the fraud.  The court disagreed, holding that it was not clear error for the district court to concluded that the other fees would not have been paid to Wynn's firm had the county paying them been aware of his fraud.

Citizens United Doesn't Undermine Corporate Contribution Prohibition

Danielczyk: Danielczyk and Biagi were officers at Galen Capital who arranged for others to make contributions to Hillary Clinton's presidential campaign in 2008 and be reimbursed by Galen.  As a result, they were indicted on multiple counts, including one (Count Four) that charged them with causing contributions of corporate money to a candidate for federal office (in excess of $25,000) and conspiring to do so.  They moved to dismiss Count Four, arguing that the statute was unconstitutional in the wake of the Supreme Court's decision in Citizens United.  The district court agreed, holding that the statute at issue in Citizens United, as it reads now, treats corporate and individual contributions differently.

The Government appealed and the Fourth Circuit reversed the district court.  The Court relied on a pre-Citizens United decision by the Supreme Court that upheld the statute at issue against an earlier First Amendment challenge.  It rejected Danielczyk and Biagi's argument that the prior decision was no longer valid in light of Citizens United and that, at any rate, it was limited to nonprofit corporations (the party at issue in that case), rather than for-profit corporations.  It reversed the district court and remanded the case for further proceedings.

Religious Tax Evasion Convictions, Sentences, Upheld

US v. Jinwright: Anthony Jinwright became the senior pastor at a North Carolina church in 1981.  By the time his wife (and codefendant) Harriet joined him as a pastor in 2000, he was making a six figure income, not to mention a luscious benefits package.  Between 2001 and 2007, Anthony earned a total of $3.9 million in wages and benefits, while Harriet made nearly $1 million.  Unfortunately, not all of that income was reported to the IRS, which estimated that they underpaid by more than $650,000 in that time.  Both Jinwrights were convicted of conspiracy to defraud the Government and tax evasion, with Anthony convicted of several additional counts of tax evasion and filing false tax returns.  Anthony was sentenced to 105 months in prison, Harriet to 80 months.

The Jinwrights challenged both their convictions and sentences on appeal, all of which were affirmed.  As to the convictions, they raised three arguments.  First, they argued that the district court erred by giving a willful blindness instruction, both because the evidence did not support it and the legal standard presented in it was incorrect.  The court disagreed, holding that the evidence supported the instruction and that it properly warned the jury that it could not convict if the Jinwrights were simply reckless or foolish in overlooking what was happening.  Second, the Jinwrights argued that a jury instruction on the tax treatments of payments from employer to employee directed the jury to find particular facts, namely that the Jinrights received payments that they were required to report as income.  The court disagreed.  Third, they argued that the district court improperly limited their cross examination of three witnesses who believe that payments from the church to the Jinwrights were gifts.  The court found the limitation was a reasonable precaution to prevent jury confusion.

As to sentencing, Harried challenged her tax loss calculation, arguing that included funds from a year for which the jury acquitted her of evasion.  The court disagreed, noting that the use of acquitted conduct at sentencing is permissible and concluding that the district court's findings were sufficiently explained.  Both Jinwrights challenged the amount of restitution they were ordered to pay, arguing that it included sums  based on losses that occurred prior to the conduct for which they were convicted.  The court concluded that the district court could order restitution based on losses caused by the acts in the conspiracy, even if the defendant was not convicted for each of the acts.  Finally, the Jinwrights both argued that the district court erred in imposing two Guideline enhancements.  One was for the use of sophisticated means, which the court held was justified based on the Jinwrights use of multiple organizations and "a variety of sophisticated techniques" laid out in the PSR.  The other was for abuse of a position of trust, which the court affirmed on the basis of "the wide range of conduct in the record," including having access to church finances.

Virginia Prior Triggers Child Porn Enhancement

US v. Colson: Colson pleaded guilty to multiple counts of receiving movies depicting child pornography.  He was sentenced to a 15-year mandatory minimum term under 18 USC 2252A(a)(2) based on a prior Virginia conviction for the "production, publication, sale, or possession, etc. of obscene items involving children."  Colson argued that, when analyzed under the categorical approach, such a conviction does not qualify for the enhancement because it could have been committed in ways that "relates to the sexual abuse of a minor," as required for the enhancement to apply.

On appeal, Colson renewed his argument, which the Fourth Circuit rejected.  Applying a purely categorical approach and reviewing the Virginia statute in force at the time of Colson's prior conviction (in 1984 - all the records had since been destroyed), the court first concluded that the Virginia statute did not, as Colson claimed, cover "innocuous depictions of nudity" because it punished only the "lewd" exhibition of nudity, not simply the nudity.  In addition, the court concluded that the enhancement applies not only if the prior conviction at issue is for "sexual abuse" or "abusive sexual conduct involving a minor," but whether it is related to those two offenses.  The Virginia statute at issue here categorically "relates to" those offenses.

Visual Estimate of Speed Not Enough for Stop

US v. Sowards: Sowards was driving down I77 in North Carolina when he was stopped by a local deputy, Elliott, for speeding. Specifically, for going 75 in a 70 mile per hour zone. Elliott had a drug dog with him who alerted to the presence of drugs. A search revealed 10 kilograms of cocaine in the car. Sowards was charged with possession with intent to distribute. He moved to suppress the cocaine, arguing that Elliot lacked probable cause to stop him for speeding. Elliott testified that he had not tagged Sowards with radar or paced Sowards in his own cruiser, he had simply observed Sowards and knew he was speeding. After a hearing at which Elliott's powers of perception were somewhat undermined, the district court denied the motion. Sowards entered a conditional plea. 

On appeal, the Fourth Circuit reversed the district court, 2-1. As the court framed the issue, it was "whether, given the totality of the circumstances, Deputy Elliott had reasonably trustworthy information sufficient to support a prudent person's belief that Sowards was speeding." In evaluating that issue, the court found that many of the district court's findings were clearly erroneous. For example, the district court concluded that Elliot had been "trained to estimate speeds," although that training was done in the context of how to use a radar unit, not simply to estimate speeds on his own. Furthermore, Elliot could not explain any method he used to determine Sowards's speed and, indeed, denied having any method at all. The court also found the district court's conclusion that Elliott's "difficulty with measurements is immaterial" to "ring[] in the absurd" because estimating speed requires determining the distance that object is covering in a certain period or time. The court noted that Elliott "exhibited a notable absence of fluency in his knowledge of distance measurements." Rejecting the Government's argument that Elliott's educated guess was sufficient to support the stop, the court noted that the closer the speed is to the legal limit, the more scrutiny the officer's estimation must receive. Given the high speed involved and the slight difference between the limit and the alleged speeding in this case, Elliott's uncorroborated observation alone was not sufficient.

 Chief Judge Traxler dissented, resting his argument heavily on the fact that Elliott's certification for estimating speed provided him with an average error rate of no more than 3.5 miles per hour. The majority points out that this "certification" involved a visual estimate backed up with a radar gun, which Elliot did not use in this case (he testified that he intentionally positioned his cruiser so he could not use radar). Traxler also argues that the majority's new requirement for some sort of corroboration to the officer's observation has no basis in prior caselaw.

Pirates repelled by the USS Nicholas lose their appeals

US v. Dire, US v. Said:  The crime of piracy returns to relevance in Dire, after several Somalis launched an ill-fated attack on a United States warship in disguise as a merchant vessel in the waters off the horn of Africa. Chiefly, the appellants argued that since they did not actually board and rob the USS Nicholas, that their actions did not, as a matter of law, amount to a piracy offense under 18 U.S.C. § 1651. The Fourth Circuit disagreed and upheld all the convictions.

The Fourth Circuit held that the statutes defining "piracy" here incorporate a definition of piracy that changes with advancements in the law of nations (derived from such international legal authorities as the United Nations Convention on the Law of the Sea, and the High Seas Convention), and the definition at the time of the appellants’ attack on the USS Nicholas encompassed the Somalis’ violent conduct (they fired AKs at the ship). The Fourth Circuit rejected the appellants’ challenge to the piracy convictions.

Another bone of contention in this appeal was whether the confessions obtained by U.S. servicemen aboard the USS Nicholas three days after the attack were appropriately advised of their Miranda rights. The appellants argued that there was a language barrier, they lacked any familiarity with the U.S. legal system, and they lacked education and were illiterate, in order to maintain that their waiver of their rights was not knowing or intelligent. The Fourth Circuit disagreed, and found that based upon a totality of the circumstances, the appellants must have known that they did not have to speak with the special agent investigating them and that they could request counsel.

In a companion case, US v. Said, the Fourth Circuit vacates the dismissal of the piracy count in a case arising from a separate attack on the USS Ashland, based upon its reasoning and holding in Dire.

Halstead merger problem occurs in cases other than illegal gambling operations

US v. Cloud:  William Roosevelt Cloud, convicted of several charges arising from a mortgage fraud conspiracy that he masterminded, raised several issues in this appeal: evidentiary rulings, the district court’s loss calculation, and the district court’s order directing him to reimburse his court-appointed attorneys fees. The Fourth Circuit affirmed on the first two issues, but vacated the reimbursement order. Cloud also argued that some of his money laundering convictions should be reversed due to a merger problem, and the Fourth Circuit agreed.

The scheme included at least fourteen others charged as co-conspirators, and it lasted from 1999 to 2005. Cloud’s scheme involved purchasing numerous properties, "flipping" them to buyers at increased prices, and banking the difference. He encouraged the unsuspecting buyers to purchase several properties, and in order to perpetuate the scheme, Cloud falsified loan applications, forged signatures, and provided false information to closing attorneys. Cloud signed false HUD-1 forms containing false information and distributed kickbacks to buyers, a mortgage broker, and recruiters who found buyers. The loss amount to lenders and the community totaled around $19 million.

With respect to the evidentiary issues, Cloud objected to victim-impact testimony, but the Fourth Circuit found that this type of testimony must meet only a low bar of relevancy, so it was properly admitted. Also admitted were conversations between Cloud and several tenants, from which an inference could be drawn that Cloud was dishonest with tenants to hide his scheme; the Fourth Circuit concluded that any error in admitting this testimony was harmless. The Fourth Circuit vacated the district court’s reimbursement order because no findings were made with respect to Cloud’s ability to pay for representation, nor whether Cloud had funds available for payment. Previously, the Fourth Circuit had rejected a similar order in United States v. Moore, so the directive to reimburse was vacated here.

Additionally, Cloud argued that his money laundering convictions must be reversed under United States v. Santos, as interpreted by the Fourth Circuit in United States v. Halstead. The Fourth Circuit agreed, and reversed those convictions. In Santos, the Supreme Court affirmed the vacatur of money laundering convictions that arose from an illegal gambling operations, when it determined that the money laundering offenses merged with the convictions for operating an illegal gambling business. Six counts against Cloud of promotional money laundering suffered from a "merger problem," as they charge illegal activity including money transactions to pay for the costs of his illegal activity, and the government also used those transactions to prosecute Cloud for money laundering. To put it another way, a merger problem does not arise when the financial transactions of the predicate offense are different from the transactions prosecuted as money laundering. Here, the six money laundering convictions were based on paying the "essential expenses" of the underlying fraud, so a merger problem existed, and the Fourth Circuit reversed the money laundering convictions with respect to those counts.

Vulnerable victim enhancement application affirmed

US v. Etoty:  This appellant challenged the district court’s application of the "vulnerable victim" enhancement at the time of her sentencing for social security fraud and aggravated identity theft. At sentencing, Etoty argued that she did not specifically know whether the victim’s disability was physical or mental, and that the victim’s disability did not facilitate the fraud, which the district court rejected.

The Foruth Circuit reviews sentencing determinations under an abuse of discretion standard. Under the advisory sentencing guidelines, a two-level increase attaches if the "defendant knew or should have known that a victim of the offense was a vulnerable victim." A two-step analysis is thus employed to determine 1) that the victim was unusually vulnerable; and 2) that the defendant knew or should have known of this unusual vulnerability.

Evidence adduced at trial was found credible and the Fourth Circuit did not disturb the district court’s determination that the victim had a learning disability and a back problem, and that she received social security benefits. Additionally, Etoty conceded knowledge at trial that she knew the victim was disabled and was receiving disability payments - ample proof to the Fourth Circuit that Etoty knew the victim was indeed vulnerable.

Bankruptcy-related fraud scheme conviction upheld

US v. R. Powell, Jr.:  A grand jury named Powell in one count of a fifteen count Indictment, alleging he aided and abetted the making of a false entry in a bankruptcy-related document, as part of an associate, Pavlock’s, larger scheme to defraud. A jury convicted Powell of this one count. Powell raised four issues in his appeal, none of which the Fourth Circuit found meritorious: 1) the district court failed to provide several requested jury instructions; 2) the prosecutor referred to Powell and Pavlock as ‘liars,’ committing reversible misconduct; 3) defense counsel provided ineffective assistance; and 4) the district court declined to apply a mitigating role adjustment at Powell’s sentencing.

Powell’s first argument centers around the statute he was charged with violating, specifically whether it contains a materiality requirement. He argued that materiality is an element of the offense, in 18 U.S.C. sect. 1519; the Fourth Circuit disagreed under a plain reading of the statute; the 11^th and 8^th circuits have similarly held that sect. 1519 lacks a materiality element. Powell also wanted an advice-of-counsel defense instruction; the Fourth Circuit rejected this argument, finding that there was a lack of evidence supporting the application of this instruction. Lastly with this appeal issue, Powell wanted the jury to be instructed that his statement concerning the ownership of several limousines was true as a matter of law. The Fourth Circuit held that there was sufficient evidence presented at trial that Powell obtained title to these vehicles by fraud or theft by deception, so the titles did not establish ownership.

For Powell’s second appeal issue, Powell failed to object at trial to the prosecutor’s comment about him as a ‘liar,’ so under the plain error standard, he could not show that the remarks were improper, and so prejudiced his substantial rights that he was denied a fair trial. Previously, the Fourth Circuit held that calling a defendant a liar is not, per se, improper. In light of this and similar authority from some other circuits, Powell could not establish plain error.

The Fourth Circuit found that Powell’s ineffective assistance of counsel claim was premature, and that he could re-assert this claim in a sect. 2255 habeas petition.

Finally, Powell argued that he should have received a mitigating role adjustment. The critical inquiry for a sentencing court in considering this adjustment, according to the Fourth Circuit, is whether the ‘defendant’s conduct is material or essential to committing the offense,’ not just whether the defendant committed fewer ‘bad acts’ than a co-defendant. Here, the Fourth Circuit held that it would be reasonable to find that Powell’s conduct was essential and material, so this issue, like the others, failed.

2nd Degree Murder conviction affirmed

US v. DeLeon:  A jury convicted DeLeon of the second-degree murder and assault of his 8-year-old step-son. In this appeal, DeLeon raised five issues for review: whether the district court erred in 1) admitting a social worker’s hearsay testimony in violation of DeLeon’s 6^th Amendment right to confrontation; 2) admitting hearsay testimony of a social worker, a Japanese woman who encountered the boy in the street, and DeLeon’s step-daughter in violation of the rules of evidence; 3) limiting the defense expert’s testimony; 4) admitting under 404(b) DeLeon’s prior acts of physical punishment of his step-children; and 5) treating the age of the boy as a sentencing factor to be determined by the court, not the jury.

The boy, Jordan, died of internal injuries that resulted from blunt force trauma. Five months prior to Jordan’s death, the family met with a social worker to deal with suspected child abuse in the family home. The social worker had several subsequent meetings with Jordan and the family to provide counseling, but to no avail. No one could testify to witnessing the specific acts that caused Jordan’s injuries, so the case was entirely circumstantial. Additionally, Jordan’s younger sister later recanted the statements she made to police in investigations shortly after Jordan’s death, which described a history of child abuse. Many of the admissions that DeLeon objected to at trial were statements detailing the abuse Jordan suffered.

DeLeon’s first constitutional claim, that the admission of the social worker’s hearsay testimony violated his 6^th Amendment right to confrontation, failed because the statements Jordan made to the social worker were made during a course of therapy for the purposes of developing a plan of treatment, and thus, the statements were not made in anticipation of a criminal action or investigation, nor were the statements testimonial.

DeLeon’s other constitutional claim, that his 6^th Amendment rights were violated by the imposing of a mandatory minimum sentence based on Jordan’s age, which was not a question of fact put to the jury. The Fourth Circuit concluded that under the statute governing DeLeon’s second degree murder conviction, 18 U.S.C. § 3559(f)(1), age is a sentencing factor rather than an element of the crime. Additionally, the age of the victim is not a characteristic of the offender, so legal tradition supports the conclusion that age is a sentencing factor.

Community Caretaking Function: another exception to the warrant requirement?

US v. Laudermilt:  In this appeal, the Fourth Circuit reversed and remanded the district court’s decision to grant the defendant’s motion to suppress; the government filed this interlocutory appeal. The defendant, Laudermilt, was indicted for being a felon in possession. Defendant argued that the police seized the gun during an illegally protracted protective sweep. The district court believed that the police exceeded the proper scope of a legal protective sweep and granted the defendant’s motion to suppress.

The Fourth Circuit analyzed the facts here, and decided that the district court got it wrong, finding that the police had a community caretaking function which permitted them to remain in the residence without a warrant while the protective sweep was ongoing, and after it concluded. The weapon was found after the police returned the defendant’s fourteen-year-old brother to the kitchen from outside where the defendant had been taken into custody, and questioned the teenager as to the location of the firearm. The Fourth Circuit concluded that the officers’ actions here were consistent with the Fourth Amendment.

DISCLAIMER: the author of this blog post is also counsel in this case.

Procedural error in sentencing; insufficient fact findings

US v. E. Davis:  The appellant, Davis, pleaded guilty to being a felon in possession in ammunition, and had been sentenced with a cross-reference to the robbery sentencing guideline. Previously, Davis had pleaded "no contest" in North Carolina to a robbery charge in a related, state court prosecution. In this appeal, Davis challenges the application of the robbery advisory sentencing guideline, as insufficient evidence supported the cross-reference. The Fourth Circuit vacated and remanded the district court’s sentence because the district court failed to resolve a factual dispute in its application of the robbery guideline, thus appellate review was constrained.


The Fourth Circuit found that the correct application of the guidelines hinges on factual determinations to be made by the district court. Here, there were two plausible factual scenarios on the record which could have explained how a cell phone came into Davis’s possession; the manner in which Davis came to possess the cell phone is key to the correct guideline application. The Fourth Circuit held that Davis’s "no contest" plea to common law robbery could not provide the necessary evidentiary basis for the robbery guideline cross-reference application.

The Fourth Circuit sends the case back to the district court to determine whether the government has met its burden of proof, and whether the robbery cross-reference should legitimately apply in this case.

Initial encounter found not consensual

US v. F. Jones:  In this appeal, the Fourth Circuit considered the denial of a motion to suppress evidence seized as a result of a traffic stop in a "high crime neighborhood" and reversed, reasoning that the initial encounter was not consensual and infringed the appellant’s Fourth Amendment rights.

The Fourth Circuit distinguished this case from other police-citizen encounters, as the citizen here knew that police officers were conspicuously following him, rather than a case where a citizen was unaware of any police presence, and is approached by officers seemingly at random. This case lacked a "traditional hallmark of a police-citizen consensual encounter: the seemingly routine approach of the police officer." This was involved a targeted vehicle, and the police blocked the vehicle’s only exit from the scene of the encounter with a police cruiser, without having observed any traffic violations. Jones, an African American, was simply driving a vehicle with New York tags in Richmond, with three other African American men in the car with him, observed by a police officer who "thought that that vehicle did not belong there and that the people in the vehicle didn’t belong there."

The Fourth Circuit believed that the totality of the circumstances in this case would suggest to a reasonable person in Jones’ position, that the officers suspected him of illegal activity in a "high crime area," that he was a target, and that he was not free to leave or walk away. The panel concluded that the officers detained Jones before having any legal justification to do so.

Way to go, FPD in Richmond!

Proper factors for consideration when determining the extent of a sentencing reduction

US v. D. Davis:  In this appeal, the appellant challenges the district court's decision to grant the government's Rule 35(b) motion for sentence reduction, for considering other factors than his substantial assistance in determining the extent of the reduction.  The factors the district court considered included the appellant's offense of conviction, his criminal history, and a prior reduction in his guidelines range following the government's 5K1.1 motion.  The Fourth Circuit affirmed the district court's judgment. 

After determining whether the Fourth Circuit had jurisdiction to hear the appeal in the affirmative, the panel considered whether the district court committed any error in considering factors other than the appellant's cooperation with the police in fashioning his sentence reduction following the decision to grant the government's Rule 35(b) motion.  The Fourth Circuit distinguishes this case from others it has decided on what factors to consider in analyzing whether to grant a Rule 35(b) motion; in those cases, the Fourth Circuit has stated that district courts may not consider any factor other than the defendant's substantial assistance to the government.  Here, the Fourth Circuit determines that the district court is not so limited, based on the plain language of Rule 35(b) and the explicit holdings of several other circuits in agreement. 

Quantum of evidence for drug conspiracy

US v. Edmonds:   A jury convicted Edmonds of a single conspiracy count to traffic more than 50 grams of crack, and three counts of crack distribution. This appellant challenged the jury’s findings that he participated in a drug conspiracy, in addition to two sentencing challenges. The Fourth Circuit affirmed.

According to the Fourth Circuit, conspiracy is proved by demonstrating agreement or understanding between two or more persons to commit an offense. Additionally, when the conspiracy involves the sale of cocaine, a conspiracy to commit the distribution of cocaine must involve an agreement separate from the distribution conduct that is the object of the conspiracy. If the drug transaction includes in addition to the bare agreement inherent in a sale, an agreement that the buyer will resell the cocaine in the marketplace, the two participants to the distribution transaction have also "conspired" to the redistribution of cocaine, and thus, they can be guilty of the distribution offense, and a conspiracy offense.

The government does not need to prove an explicit agreement occurred. Some types of indirect evidence that will suffice for a conviction include the amount of cocaine involved in a transaction; the regularity of drug transactions between two parties; the "fronting" of drugs for payment later, which implied a sort of credit arrangement; and essentially any agreement made in addition to or beyond a simple buy-sell transaction can be used to infer a conspiratorial relationship. The agreement which forms a conspiracy, however, cannot exist between an individual and a government agent.

Here, the statements the appellant made during several controlled purchases conducted in this case were used to establish the conspiracy, especially his comment, "you know me." 

Convictions, Life Sentence, Affirmed in MS-13 Prosecution

US v. Palacios: Palacios was a member of MS-13 and was involved in planning the murder of a friend of the gang who was "fraternizing with rival gang members."  As a result, he was charged with (among other things) conspiracy to participate in a racketeering enterprise, conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, use of a firearm in relation to a crime of violence, and murder resulting from that use of a firearm.  He was convicted on those charges after a jury trial and sentenced to life in prison, plus a consecutive term of 240 months.

On appeal, Palacios raised several arguments challenging his convictions, all of which the Fourth Circuit rejected.  First, Palacios argued that the testimony of a police officer as an expert witness on MS-13 violated his right to confront witnesses against him.  Relying on prior precedent (involving the same officer, no less) the court held that the testimony did not run afoul of the Confrontation Clause, even if it was based on interviews that would have constituted testimonial statements subject to the Clause under Crawford.  Second, the court rejected Palacios's argument that the Government introduced prior bad act evidence without proper notice under FRE 404(b), concluding that the evidence was not actually governed by FRE 404(b) because it involved the acts charged in the indictment itself, not acts committed beforehand.  The court also concluded that no other authority (including a pretrial discovery agreement between the parties) compelled its disclosure before trial.  Third, Palacios argued that the district court erred by admitting the testimony of his cellmate without prior notice from the Government.  The court disagreed, holding that the disclosure requirement of Rule 16(a)(1)(A) applies only to statements made in response to state interrogation and did not include the cellmate (even if he had already signed a plea agreement and was looking to cooperate).  Finally, the court rejected Palacios's arguments that there was insufficient evidence to sustain his convictions, particularly as to whether MS-13 was an "enterprise" and the murder in aid of racketeering conviction.

Lengthy Detention of Vehicle OK, Use of Prior Bad Act Not So Much

US v. McBride: Officers in South Carolina were performing surveillance of a club parking lot at about 6:15 in the evening.  Their attention was drawn to the club, which has in the past been a site of drug dealing, because there were several cars in the parking lot at the time, although the officers thought the club usually opened around midnight.  Officers saw what they thought might be a drug deal, which transpired in and around a black Cadillac SLS in the parking lot.  When one of the men involved drove away in the rain without his lights on, the officers pulled him over.  A subsequent search of that vehicle uncovered a large amount of cash.

The officers returned the club and went inside and were met at the door by McBride, who was the other man involved in the alleged drug deal they had observed.  The officers repeatedly told McBride and the others in the club that they were free to leave, but their vehicles outside were being detained pending the arrival of a drug dog from the next county.  At first, McBride claimed that the SLS was his, but after the drug dog was mentioned he "got very[,] very loud, nervous, [began] pacing back and forth, [and was] sweating profusely."  He also recanted his claim to ownership of the SLS.  After again being told he was free to leave (without his car), McBride left the club.  The drug dog arrived about an hour after the "detention" began and alerted on the SLS.  A later search pursuant to a warrant uncovered cash, drugs, and a firearm.

McBride was charged with gun and drugs offenses and moved to suppress the evidence seized from the SLS, which the district court denied.  McBride went to trial, where the Government introduced prior bad act evidence under FRE 404(b) from a CI who had tried to purchase crack from McBride in the past, but could not because the drugs were in the process of being cooked from powder to crack cocaine.  The district court instructed the jury that it could only consider the CI's testimony as to the issue of McBride's knowledge, intent, or lack of mistake.  McBride was convicted on all counts and sentenced to 235 months.

On appeal, McBride challenged both the denial of his motion to suppress and the admission of the 404(b) evidence.  As to the search, he made two arguments, both of which the Fourth Circuit rejected.  First, he argued that the officers lacked reasonable suspicion to detain the SLS.  The court disagreed, pointing to the officers' prior knowledge of the club and McBride, the potential drug deal that took place in the parking lot (and the resulting traffic stop and search), and the fact that so many people were at the club during non-business hours.  Second, McBride argued that even if the initial detention of the SLS was proper, the nearly hour-long delay caused by waiting for the drug dog was unreasonable.  The court disagreed, noting that the nature of the detention "did not impede McBride during any travel, because McBride already had arrived at his club" and that the duration of the detention, while lengthy, was not the result of any lack of diligence on the part of the officers.  As to the 404(b) evidence, the court agreed with McBride that it was improperly admitted because it was of dubious relevance to McBride's charged drug offense (possession with intent) and unduly prejudicial.  Further, the court was unable to conclude that the error was harmless.  Thus, McBride's convictions for possession with intent and using a gun during a drug trafficking offense were reversed, while the conviction for being a felon in possession of a firearm was affirmed.

Judge Wilkinson dissented on the 404(b) issue, arguing that the majority's position "pulls the trial process away from both the trial court and the jury, substituting its own assessment of the relevance and weight of the defendant's prior criminal activity."

Commerce Clause Covers Cockfighting; DIY Wikipedia Research from Juror Requires Reversal

US v. Lawson and US v. Gibert: These two cases involve multiple prosecutions and convictions under the federal statute criminalizing "animal fighting venture[s]" (in this case, cockfighting).  Lawson and his codefendants went to trial, while Gibert and codefendants entered guilty pleas.  Although the cases were argued together, the court entered separate opinions at the same time due to their "distinct legal issues."

Gibert (and his codefendants) pleaded guilty to conspiring to violate 7 USC 2156, which prohibits (among other things) "sponsor[ing] or exhibit[ing] an animal in an animal fighting venture."  As part of a plea agreement, he reserved the right to challenged the constitutionality of the statute on appeal.  He did so on two grounds, that the statute exceeds Congress's authority under the Commerce Clause and that, to survive scrutiny, the statute must be read to require the Government to prove that the defendant knew the animal fighting venture was "in or affected interstate commerce."  The Fourth Circuit rejected both arguments.  As to the Commerce Clause argument, the court noted that section 2156 (from the Animal Welfare Act) is part of a "comprehensive regulatory scheme" and quoted liberally from the legislative history leading to its enactment.  The court concluded that "we have no difficulty concluding that Congress acted within the limitations established by the Commerce Clause."  Specifically, the court found that the statute had the required nexus to interstate commerce.  As to the scienter argument, the court concluded that similar statutes based on the interstate nexus do not require the defendant's knowledge and neither does this one.

Lawson and many codefendants went to trial and were convicted on multiple counts relating to the cockfighting operation.  On appeal, he raised several issues, most of which the Fourth Circuit rejected.  First, it relied on Gibert to reject Lawson's argument that the statute violated the Commerce Clause.  Second, the court rejected Lawson's argument that because the Government had to prove an additional element during prosecutions in districts where animal fighting was legal (no states and only a few territories meet that criterion) it violated equal protection.  Third, the court concluded that the district court did not clearly abuse its discretion to deny Lawson's request for a trial separate from his codefendants. 

The court also rejected two arguments raised by four of Lawson's codefendants (referred to collectively as Dyal) who were convicted of conspiracy to engage in an illegal gambling business and operating an illegal gambling business.  First, the court concluded that the district court did not err by failing to instruct the jury that the Government must prove that Dyal knew their conduct was illegal under state law and that they weren't operating in good faith.  Second, the court concluded that the district court did not err by instructing the jury that the state gambling statute at issue was violated when "a person pays a fee to enter a contest of skill and the winnings depend on the number of entries."

However, the court did vacate Lawson's convictions, due to juror misconduct.  During deliberations, one of the jurors did some research on Wikipedia (really!) on the meaning of "sponsorship" (one of the elements of the offenses) and brought the fruits of his/her labor into the jury room.  Applying a presumption of prejudice due to the juror's DIY research, the court concluded that the Government could not rebut that presumption.  As a result, the convictions of the defendants convicted under AWA were vacated, although the conspiracy counts related to gambling (with two exceptions) were not.

Rule 11 Doesn't Require Notice of Loss of Benefits

US v. Nicholson: Nicholson was charged with federal workers comp fraud and entered a guilty plea.  Prior to sentencing, Nicholson asked to withdraw his plea on several grounds, including that he was under the influence of prescription pain killers at the time and "credibly asserting his legal innocence."  Although the item that spurred him to move to withdraw his plea was a letter from the government "terminating all future benefits and wages," that was not among the grounds cited as a basis to withdraw the plea.  The district court denied the motion to withdraw and sentenced Nicholson to probation.

On appeal, Nicholson raised several issues with regards to his plea, all of which the Fourth Circuit rejected.  First, the court concluded (applying plain error) that there was no violation of Rule 11 by the district court when it failed to explain to Nicholson that a conviction would make him ineligible for future benefits because that was a collateral, not direct, consequence of his conviction.  Second, the court concluded that the district court conducted an adequate inquiry into Nicholson's competency at the Rule 11 hearing, inquiring if he had taken any substances prior to the hearing and what those were.  Finally, the court concluded that the district court did not abuse its discretion by denying the motion to withdraw Nicholson's plea because there was no fair and just reason for doing so.

Counterfeit Goods Convictions Affirmed

US v. Lam: Lam and his codefendant, Chan, "owned or otherwise controlled" at least 10 companies that imported handbag and wallets into the United States.  Some of them were allegedly counterfeit.  After a seizure of goods in Norfolk in 2005, Lam and Chan were charged with conspiracy to traffic in counterfeit goods, trafficking, and smuggling, based on purses that bore markings and logos similar to those on products made by Burberry.  At trial, the main issue was whether the marks on the seized bags were "identical or substantially indistinguishable from" the Burberry marks.  After the district court denied their pretrial motion to have "substantially indistinguishable" declared unconstitutionally vague, Lam and Chan were convicted after a jury trial of conspiracy, trafficking, and smuggling (although not with regards to all the alleged fraudulent goods).  The verdict was "based, in part, on [the jury's] determination that the plaid displayed on the goods seized . . . was a counterfeit of the Burberry Check mark."

Lam and Chan raised several issues on appeal, all of which the Fourth Circuit rejected.  First, they argued that there was insufficient evidence to support their convictions.  The court concluded otherwise, holding that the fact that the seized goods included plaid mark with a knight imposed upon it could be found sufficiently similar to good with just a plaid mark (adding that those, in some cases, had an equestrian mark superimposed on them) and noting that counterfeit goods are not required to be exact matches of the products they are copying.  Second, the court rejected their argument that the jury plainly erred in instructing the jury about what it could consider when determining if the goods were counterfeit.  Third, the court concluded that "substantially indistinguishable" was "sufficiently clear to allow an ordinary person to understand what conduct it punishes" and was therefore not unconstitutionally vague, as all other circuits to deal with the issue also concluded.  Finally, Lam and Chan argued that they were entitled to a new trial (which the district court erred by not giving them) due to comments by the prosecution during trial that misstated the "perspective the jury should use" when determining if the goods were counterfeit, relying on a "average person on the street" view rather than the jurors' own judgment.  The court concluded that it was not an abuse of discretion for the district court to conclude that its instructions cured any problems raised by the Government's statements.

Judge Floyd dissented, arguing that the Government's comments about the "average person on the street" perspective were not overcome by the district court's instructions, noting that the Government "misstated the legal standard governing the key issue" eight times, six times after the first of the defense's four objections.

Third Time's the Charm for Terrorism Enhancement

US v. Chandia: This is the third appeal for Chandia as to his sentence, imposed following his conviction for providing and conspiring to provide material support to terrorists and a foreign terrorist organization.  All the appeals revolve around the district court's application of the "federal crime of terrorism" enhancement in USSG 3A1.4.  In the first appeal, the Fourth Circuit vacated Chandia's sentence and remanded for a "fresh analysis" about the enhancement, particularly whether Chandia had the intent necessary to trigger it.  In the second appeal, the Fourth Circuit vacated the sentence due to the district court's failure to resolve factual disputes and explain its findings.  On remand for the second time, the district court again concluded that the enhancement applied and imposed a sentence of 180 months in prison.

On appeal, Chandia challenged his sentence as procedurally unreasonable.  This time, the Fourth Circuit affirmed.  First, it rejected Chandia's argument that the factual basis for the enhancement should have been found by clear and convincing evidence due to the severity of the enhancement.  Second, it rejected Chandia's argument that the factual basis, even under a preponderance standard, was not sufficient to support the enhancement (the court spends several pages laying out the details of the facts of the case).  Finally, the court rejected Chandia's argument that the district court did not adequately consider all the relevant 3553(a) factors before imposing a within-the-Guideline-range sentence.

One conviction (of eleven) vacated for improper venue

US v. Jefferson:   This appeal stems from a highly-publicized corruption case involving a former United States House member from Louisiana, William J. Jefferson, who engaged in "an ongoing course of illicit and repugnant conduct - conduct for which he was compensated considerably by those on whose behalf he was acting." The facts of the case below are described in great detail in this opinion, and can be located elsewhere on the Web; briefly, Jefferson received 11 convictions and the longest sentence ever given to a congressman for bribery or any other crime.

Important for this appeal is the definition of the term "official act," and venue for the honest services wire fraud offense. The Fourth Circuit discusses what constitutes an "official act" at great length, and for anyone representing a public official, this discussion may be useful. More relevant may be the discussion of venue for an honest services wire fraud offense, in which the Fourth Circuit determined the venue was improper and vacated this conviction.

Here, there is no specific venue provision in the statutes at stake, 18 U.S.C. §§ 1343 and 1346, so venue lies where the essential conduct elements took place. Jefferson contended that venue did not lie in the Eastern District of Virginia because the phone call underlying this count was neither begun nor completed in that district. The Fourth Circuit reviewed the essential elements of the honest services wire fraud offense and determined that the misuse of mail or wire is the actus reus punishable by federal law. Finding itself in agreement with the 2^nd and 9^th Circuits, the Fourth Circuit determined that venue is established in those locations where the wire transfer either originated or was received, so it did not lie in Virginia here. It could lie in Kentucky, though, and the Fourth Circuit pointed out that as the location where the call was received, and where this charge could be properly brought.

Issues a lower court may consider on remand

US v. Susi:  This appeal challenges the sentence imposed following a remand for re-sentencing. Susi raises three issues here: 1) the district court did not recalculate the Sentencing Guidelines as part of the re-sentencing; 2) the re-sentencing court imposed sentence based on the impermissible factor that Susi exercised his right to trial; and 3) the sentence was procedurally and substantively unreasonable because the court did not provide an adequate explanation on the record for the sentence. The Fourth Circuit affirmed the sentence.

The main issue in this appeal is what a lower court may consider on remand: is the defendant entitled to a de novo hearing at re-sentencing, does the re-sentencing court consider the entire sentence anew, including any objections to the Guidelines range? Or is the re-sentencing limited in correcting the error in the original sentence? The Fourth Circuit considers here the "mandate rule," wherein the re-sentencing court is bound to carry out the mandate of the superior court, and may not reconsider issues that mandate laid to rest, referring to its earlier case, United States v. Bell, for its explanation of the "law of the case" doctrine, of which the mandate rule is a "specific application." Under this doctrine, the dictates of the higher court forecloses re-litigation of issues decided by the lower court but foregone on appeal or otherwise waived.

The sentencing error identified by the Fourth Circuit when it vacated Susi’s sentence originally, dealt with the district court’s consideration of factors outside the scope of the record during the § 3553(a) analysis and calculating the restitution ordered, so the error below, according to the Fourth Circuit, in no way impacted the calculation of his Guidelines range. Since the guidelines range was not objected to in the original appeal by Susi, it was unnecessary and duplicative to recalculate the Guidelines in order to address the error that caused the remand.

Additionally, Susi’s second argument that he was penalized merely by exercising his constitutional right to a trial (he received a higher sentence than his co-conspirators who took plea deals to resolve the charges against them) was undercut by the fact that he received a lower sentence on remand of 160 months than he originally received, 180 months. The Fourth Circuit has previously stated in United States v. Perry, that in order to prove improper or vindictive motive by the government against someone exercising a constitutional right, a presumption of improper vindictive motion must arise, a presumption only warranted in cases in which a reasonable likelihood of vindictiveness exists, e.g. when a defendant succeeds in attacking his sentence on appeal, and then receives a higher sentence on re-trial. That did not happen here, so this appeal issued failed.

Finally, in discussing Susi’s third appeal issue, the Fourth Circuit held for the first time that a below-Guidelines sentence is entitled to a presumption of reasonableness, when a defendant challenges the length of the below-Guidelines sentence as being substantively unreasonable. Also, this presumption would not apply where a defendant challenged the substantive reasonableness on other grounds, nor would this presumption apply when the government appeals a district court’s sentence as substantively unreasonable.

What constitutes a claim of citizenship?

US v. Castillo-Pena:  Appellant Humberto Jose Castillo-Pena appeals his convictions for falsely representing himself as a United States citizen and of committing identity theft of another individual in relation to his false claim of citizenship.  The Fourth Circuit affirmed the convictions. 

Castillo-Pena first came to the U.S. in 1987, when he began dating Yolanda Bernal.  The two married and subsequently divorced; Bernal served as a witness at her then-husband's first INS immigration proceeding in 1991.  As part of this proceeding, Castillo-Pena provided a sworn affidavit including his full name, his birthplace and citizenship in Nicaragua; he was also fingerprinted at that time. 

After the couple divorced in 1995, Castillo-Pena informed his wife that he would henceforth be known as Erick Cardona.  He attempted to apply for a passport under this pseudonym.  The real Erick Cardona, born in Puerto Rico and a U.S. citizen, had never met Castillo-Pena. An investigation of Castillo-Pena for deportation began with an interview with ICE agent Cindy Yang.  At the interview, Castillo-Pena responded to Yang's question about whether he would like to make a statement that he was a United States citizen, and Castillo-Pena, claiming to be Cardona, responded, "yes, I would like to."  Additionally, Castillo-Pena's fingerprints, taken in 2010, matched those taken in 1991. 

This statement constituted a false representation of U.S. citizenship, and the jury at Castillo-Pena's trial concluded that he willfully misrepresented himself as a U.S. citizen, and that this statement constituted a direct claim of American citizenship.  Additionally, on appeal, Castillo-Pena did not challenge the evidence put on by the government that he attempted to assume the identity of Erick Cardona to apply for a passport. 

 

Rockfish wholesalers' convictions affirmed

US v. Oceanpro Industries:  In this appeal, a D.C. seafood wholesaling operation, its vice president, and an employee challenged their convictions for purchasing untagged and oversized striped bass (known colloquially as "rockfish") in violation of the Lacey Act (prohibiting the purchase in interstate commerce of fish or wildlife sold in violation of state law), and also for lying to federal agents investigating the crimes.  The appellants disputed the District of Maryland's venue for the false statement offense, because the statements were uttered in D.C., not Maryland.  Secondly, the appellants argued that the $300,000 order of restitution (well below the market value for the fish allegedly caught and sold illegally) was improper because the States were not "victims," as they lacked a sufficient interest in the illegally caught fish.  The Fourth Circuit affirmed the convictions.

The statute governing the false statement, 18 U.S.C. sect. 1001, does not contain an express venue provision; in this event, the Supreme Court has instructed that the place of the crime, its locus delicti, controls venue, and the place is "determined from the nature of the crime alleged and the location of the act or acts constituting it."  The Fourth Circuit has held that the "circumstance" elements of an offense, even if essential, are without moment to a venue determination.  The mens rea element of the false statement offense is such a circumstance element, and the essential conduct prohibited by the statute is "making any materially false statement."  The Fourth Circuit concluded that the District of Maryland had a substantial connection to the employee's criminal conduct and to the charges based on that conduct against him and Oceanpro. 

The Fourth Circuit held the restitution order, $300,000 to the states of Maryland and Virginia as compensation for the rockfish that had been illegally harvested from the Potomac River and sold to Oceanpro, was proper because the states had a proprietary interest in the illegally harvested fish after they were caught, so they were entitled to restitution under the Mandatory Victims' Restitution Act ("MVRA").  The Fourth Circuit relied on a Second Circuit case, United States v. Bengis, for its reasoning, a case involving illegally harvested South African lobsters, where restitution was mandated under the MVRA because the lobsters were forfeited to the state. 

Safety valve ineligibility affirmed and thermal imagery warrant held valid

US v. Henry:  Mr. and Mrs. Henry received two convictions related to growing marijuana at their rural West Virginia home. On appeal, they challenged whether there was probable cause to support the issuance of the thermal imaging warrant; whether the district court erred when it granted the government’s motion in limine to exclude testimony that Mr. Henry used marijuana to improve his symptoms from medical illnesses; and whether the district court erred in finding them ineligible for safety valve relief at sentencing.

First, the Henrys argued that the affidavit from the police to the magistrate for the thermal search warrant failed to meet the probable cause standard, as the information to support the application was provided by a cooperating inmate interviewed twenty months before the warrant issued, and two other, unidentified sources. The Fourth Circuit concedes that none of the information provided by the three sources was recent, and any one of the sources considered alone would not have been sufficient information to base the application on; however, taken collectively, the three sources were unrelated and provided consistent information about the marijuana at the Henry residence, or that they had purchased from the couple. The Fourth Circuit held that the affidavit provided a sufficient basis to establish probable cause, and the district court did not err in denying the Henrys’ pre-trial motion to suppress.

Next, with respect to the government’s motion in limine to exclude testimony of the beneficial effect of marijuana on Mr. Henry’s health, the Fourth Circuit held that with the exception of government-approved research projects, medical necessity is not a defense to conduct prohibited by the Controlled Substances Act, including the manufacture and possession of marijuana to distribute. Additionally, as if to put a final nail in this coffin, the Fourth Circuit pointed out that the Supreme Court has explained and Congress has determined that there is no medical benefit from the use of marijuana. Thus, it found that the district court did not err here.

Finally, the district court declined to grant safety valve eligibility to Mr. and Mrs. Henry because it found that they did not provide truthful information to the government concerning their offenses. The safety valve program permits shorter sentences for first-time offenders who would otherwise be subject to a mandatory minimum sentence, provided the defendant can meet the following five requirements: 1) the defendant does not have more than one criminal history point; 2) the defendant did not use violence or weapons in connections with the criminal conduct; 3) the offense did not result in death or bodily harm; 4) the defendant did not have a supervisory or managerial role in the offense; and 5) prior to sentencing, the defendant was truthful in providing evidence and information concerning the offense to the government. The Henrys satisfied the first four prerequisites, but the district court concluded that they were not credible witnesses, as they provided "certain representations" that "were inconsistent with a full and truthful disclosure of all relevant information." The district court’s credibility determinations were accorded "substantial deference" by the Fourth Circuit and it held that the district court did not clearly err in this decision.

Objective test for true threats affirmed

US v. White:  White, leader of a neo-Nazi white supremacist group, received several convictions for threats to injure or intimidate others, and intimidating others to "influence, delay, or prevent the[ir] testimony." White filed a Rule 29 motion for acquittal, which the district court denied; both White and the government appealed aspects of White’s sentencing, in particular the district court’s application of a certain standard in imposing an enhancement for victims’ vulnerability. The Fourth Circuit affirmed White’s convictions, but vacated his sentence, remanding for re-sentencing, because the district court employed an incorrect standard in its analysis of enhancing a defendant’s sentence for the vulnerability of victims.

White argued that his communications were political speech protected by the First Amendment, and that there was no showing made of a specific, subjective intent to threaten, the test adopted by the Ninth Circuit after the Supreme Court’s decision in Virginia v. Black. The Fourth Circuit disagreed with White’s interpretation of the statute and affirmed the district court’s holding that the statute required a showing that the defendant specifically intended to "communicate a threat and not that the defendant specifically intended to threaten the victims," quoting from the Court’s earlier decision of precedent, United States v. Darby. The Fourth Circuit also held that Virginia v. Black was not contrary to its precedent in Darby, such that the Court had to re-examine precedent. The reasonable recipient test from Darby continues to define a true threat.

Alford pleas are adjudications of guilt

US v. King:  The Fourth Circuit affirmed the sentence imposed by the district court in this possession of a firearm by a convicted felon case. The appellant argued the following errors were made: 1) that his prior, South Carolina conviction for pointing and presenting a firearm qualified as a "crime of violence" at sentencing; 2) a prior case in which he entered an Alford plea to involuntary manslaughter was a "prior sentence" under the Guidelines; and 3) the district court did not provide a sufficient explanation for the sentence imposed.

The Fourth Circuit discussed how it employed a "modified categorical approach" that it only uses in a narrow group of cases in which it looks beyond the generic elements of the offense to the specific conduct underlying the prior offense, in order to determine whether the conviction is a "crime of violence." Here, the Fourth Circuit determined that since King’s crime involved his pointing and presenting a firearm in a threatening manner at another person, based on how South Carolina courts interpret the statute under which he was convicted, that his crime qualified as a "crime of violence."

The Third Circuit, in US v. Mackins, provided guidance to the Fourth in determining that convictions resulting from Alford pleas can serve as predicate convictions for the purposes of calculating an individual’s criminal history points. The parties disagreed whether an Alford plea qualifies as an "adjudication of guilt" and the Fourth Circuit concluded that it does because an Alford plea requires a factual basis, and it can only be accepted by the court when the record contains "strong evidence of actual guilt."

Finally, the Fourth Circuit found that the district court was within its discretion when it granted the government’s motion for an upward variance, because the court offered several reasons on the record for its decision, including what it viewed as King’s increasingly violent behavior.

Error in excluding testimony from appellant's mother not harmless

US v. Ibisevic:  Ibisevic was convicted for attempting to leave the United States without reporting some $40,000 in U.S. currency he carried in his luggage. At trial, the district court prohibited his mother from testifying as to Ibisevic’s statements to her at the time of this arrest, which tended to negate a finding of his intent to commit bulk cash smuggling, failing to report the international transportation of currency, and making false statements to authorities. The Fourth Circuit vacated and remanded the district court’s determination that any error it made in prohibiting the admission of Ibisevic’s mother’s testimony at trial was harmless.

According to Ibisevic’s motion for a new trial, which the district court denied, Ibisevic’s mother Rahima would have testified that Ibisevic had told her, immediately upon signing the customs form, that the officers were asking the insurance value of the checked luggage. The district court conceded its error in excluding this testimony; however, it found its error harmless.

The Fourth Circuit used to a three-part test in its analysis of whether the error was harmless from United States v. Ince: 1) the centrality of the issue, 2) the steps taken to mitigate the error, and 3) the closeness of the case. The Fourth Circuit resolved that the excluded testimony went directly to the central issue of this case, Ibisevic’s intent, because Ibisevic’s mother’s testimony was the only evidence that corroborated his claim that he gave truthful answers to customs agents who questioned him. Next, it found that there was no effort made to mitigate the effects of the error. Finally, the Fourth Circuit found that the "closeness" question involved an assessment of whether the evidence was not only sufficient to convict, but whether the evidence was sufficiently powerful in relation to the excluded testimony to ensure the error did not affect the outcome. The Fourth Circuit disagreed with the district court, holding that evidence against Ibisevic was not "overwhelming" and the jury deliberated for more than four hours, so the case was apparently a close one. None of the factors, then, weighed in favor of harmless error.

Great work, FPD in Alexandria!

Valid appeal waiver prevents appeal of Rule 35(b) motion denial

US v. Thornsbury:  In this appeal, the Fourth Circuit determined that the appellant, Thornsbury, waived his right to appeal a district court’s denial of a Rule 35(b) motion filed by the Government to reward his substantial assistance in a separate case (prison assault in which he was the victim). While the district court considered "non-assistance factors" in reaching its decision, the Fourth Circuit did not reach the merits of the district court’s decision; instead, it found dispositive the issue whether Thornsbury waived his right to appeal the denial of the Rule 35(b) motion and dismissed Thornsbury’s appeal.

Thornsbury’s plea agreement contained the following waiver: as long as his sentence fell within the advisory guidelines range, he "knowingly and voluntarily waives his right to seek appellate review of any sentence of imprisonment or fine imposed by the District Court, or the manner in which the sentence was determined, on any other ground whatsoever including any ground set forth in 18 U.S.C. § 3742..."

Thornsbury argued that Rule 35(b) proceedings were not part of the plea agreement, so he could not have intelligently or knowingly waived his rights related to them; and secondly, that his challenge was outside the normal purview of valid appeal waivers. The Fourth Circuit found that to agree with Thornsbury’s arguments would be to undermine the value of appellate waivers. Moreover, Thornsbury’s sentence was not so "illegal," not more than just "touched by a legal error," to warrant disregarding the appellate waiver. Arguments against such "illegal" sentences may include challenging a district court’s exceeding its authority, a district court’s consideration of a constitutionally impermissible factor (e.g., race), or a post-plea violation of the right to counsel.

Supervised release revocation vacated

US v. Doswell:  In this appeal of a supervised release revocation, the Fourth Circuit vacated and remanded a decision based on hearsay evidence relied upon at Doswell’s revocation hearing, a decision which failed to comply with Fed. R. Crim. P. 32.1(b)(2)(C).

"Rule 32.1 (b)(2)(C) specifically requires that prior to the admission of hearsay testimony in the supervised release revocation setting, that the district court must balance the releasee’s interest in confronting adverse witnesses against any proffered good cause for denying such confrontation." While reliability of the evidence remains a critical factor in this balancing test, hearsay evidence of questionable reliability will not provide sufficient basis for denying a releasee the opportunity to cross-examine an adverse witness.

The "questionably reliable" evidence the Government put forth in this case was a chemist’s report on the drug analysis of some seized capsules suspected of containing heroin, though the chemist who authored the report failed twice to appear in state court proceedings to verify the reliability of the report; the state court charge was nol prossed upon the chemist’s failure to appear. Despite that, the Government asserted that this charge alone (notwithstanding Doswell’s other alleged supervised release violations) mandated revocation of Doswell’s supervised release. The Fourth Circuit disagreed, and remanded the case to the district court for proceedings in accordance with this opinion.

Way to go, Baltimore Office of the Federal Public Defender!!

Defendant Fails to Meet Safety Valve Burden

US v. Aidoo: Aidoo was caught at Baltimore-Washington International Airport coming into the country with nearly 1 kilogram of heroin inside him. He made a proffer to investigators about the man who paid him to smuggle the heroin and other aspects of the scheme. Investigators told Aidoo that they did not think he was being truthful. Aidoo pleaded guilty to importing heroin, pursuant to a plea agreement in which the Government noted its intention to argue that Aidoo did not qualify for a "safety valve" reduction at sentencing. Nonetheless, the probation officer in the PSR did award Aidoo a safety valve reduction, to which the Government did not object until its sentencing memo was filed. The resulting advisory Guideline range was 57-71 months (without the safety valve, Aidoo was subject to a 60-month mandatory minimum).

At sentencing, the Government argued that Aidoo had not been truthful with them, particularly in claiming that this was his first time smuggling drugs. In addition, he never identified his contact in the US and his explanation for his extensive overseas travel was not plausible. Aidoo argued he had been truthful, but "counsel presented no evidence to support Aidoo's story." The district court agreed with the Government, concluded Aidoo had not been truthful and therefore did not qualify for the safety valve, and sentenced him to the mandatory minimum of 60 months.

On appeal, Aidoo argued that the district court erred by concluding he did not qualify for the safety valve. The Fourth Circuit disagreed and affirmed his sentence. It noted that the burden of proving safety valve qualification rests with the defendant and rejected Aidoo's argument that because he provided information to the Government the burden shifted to the Government to prove its falsity. Because Aidoo's proffer was so lacking in credibility, no burden shifting occurred. Although Aidoo did provide information to the Government, he did not testify, nor did he introduce documentation or other evidence to support his version of events. Given the evidence in the record, Aidoo had not met his burden. Furthermore, the district court's consideration of the Government's arguments, given its failure to object to the PSR's recommendation until it filed its sentencing memorandum, was not plain error.

Judge Gregory dissented, arguing that Aidoo had met his burden of proof and should have been awarded safety valve status.

Sexual Exploitation Is Continuing Offense, Venue Proper in Multiple Districts

US v. Engle: Engle was sexually involved with two underage girls. One he travelled from Virginia to Pennsylvania in order to have sex with her (he videotaped it). The other he went to South Carolina and brought back with him to Virginia. He was arrested and then communicated with the SC victim several times while incarcerated. As a result, he was charged with sexual exploitation of a minor (as to the PA victim) and three counts of attempted enticement of a minor (as to the SC victim, based on post-arrest communications), in addition to nine counts of witness tampering. He was convicted on those counts and sentenced to 40 years in prison and a lifetime term of supervised release.

On appeal, Engle raised challenges to both his conviction and his sentence. As to his conviction on the sexual exploitation count, Engle argued that venue was improper in EDVA because the actual alleged exploitation occurred in Pennsylvania, not in Virginia (although Engle returned there with the video he made). The Fourth Circuit rejected that argument, concluding first that because Engle's motion to dismiss due to venue was made before trial, it was limited to the facts charged in the indictment (assuming they were true) and the indictment alleged the act occurred in EDVA "and elsewhere." It also concluded that venue was proper because the exploitation charge was both a continuing offense (so it continued when Engle returned to EDVA with the recording) and began before Engle went to Pennsylvania while he was still in Virginia convincing the victim to participate. As to the attempted enticement counts, the court rejected Engle's argument that the evidence was insufficient to support those convictions, concluding that Engle's incarceration, and thus the impossibility of him actually engaging in further sexual activity with the victim, did not prevent him from taking the substantial step needed to support an attempt charge. Finally, as to his sentence Engle argued that he was denied the ability to meaningfully allocute before sentencing, because the district court first indicated what sentence it might impose upon him. Applying plain error review, the Fourth Circuit concluded there was no error, much less a plain one.

Sexual Abuse Convictions Affirmed Over Due Process, Venue Challenges

US v. Holmes: Holmes was accused of sexually abusing his 9-year old step daughter while the family lived in Japan, where Holmes, who was in the Air Force, was stationed, in 1999 and 2002. In 2007, when Holmes returned to Virginia from a deployment in Qatar, he was interviewed by a pair of Air Force investigators about the allegations. Eventually, Holmes admitted the abuse, in some detail.

He was charged in EDVA with two counts of sexual abuse of a minor (a first indictment was dismissed without prejudice and a second indictment sought after Holmes moved to Ilinois and was arrested in North Carolina). That indictment was dismissed based on lack of venue, because of his arrest in North Carolina. Within hours of his release following the dismissal, Holmes was arrested on a fresh criminal complaint (based on the same conduct) and eventually indicted for the third time. Holmes was convicted after a jury trial, at which the district court precluded his presentation of expert testimony about false confessions, and sentenced to 262 months in prison.

On appeal, Holmes raised several arguments attacking his convictions, all of which the Fourth Circuit rejected. First, the court concluded that Holmes's statements to Air Force investigators should have been suppressed because they were given under circumstances that broke his will and rendered the statements involuntary. Holmes was advised of and waived his Miranda rights, there was no indication that the long journey from Qatar (and lack of time to acclimate to being home) led to him giving the statements, and there was no evidence of improper conduct on the investigators' part. Second, the court concluded that venue was proper in EDVA because the relevant "offense" in the analysis was the same for each of the three indictments and the first arrest in Virginia was proper (it's unclear from the record why the first indictment was dismissed). Finally, the court concluded that the district court did not abuse its discretion by excluding Holmes's expert witness because the disclosure of that witness was untimely.

Strict Meaning of "Father" Leads to False Statement Convictions

US v. Sarwari: Sarwari was born in Afghanistan, was given asylum in the United States, and became a citizen in 1998. In 1992 he married and "gave his last name to [his wife] and her four children." She and the children came to the United States in 1999. In 2004, Sarwari prepared passport applications for three of the children, in which he listed himself as their "father." Although Sarwari had birth certificates from the Afghan embassy naming him as the children's' "father," he was not their biological father nor had he legally adopted them. As a result, he was charged with three counts of making a false statement on a passport application. He was convicted on all three counts and sentenced to concurrent terms of 12 months and a day on each.

On appeal, Sarwari raised several challenges to his convictions, all of which the Fourth Circuit turned away. First, it rejected Sarwari's argument that his answers on the forms were "literally true," concluding that in cases such as this one where the terms at issue are ambiguous and subject to different meanings, that defense is not available. Second, it rejected the argument that the term "father" as used on the forms is so ambiguous as to preclude anyone making a false statement. In the formal context of the passport applications, "father" could not be read to include "stepfather." Third, the court rejected Sarwari's argument that the jury should have been instructed about the lack of a statutory definition of "father." Finally, it found that the evidence was sufficient to support the convictions.