Cops’ Convictions for RICO, Related Offenses Upheld

US v. Taylor: Taylor and his codefendant, Hersl, were Baltimore police officers who were involved with a number of others in a scheme to rob suspected drug dealers and falsify overtime reports. As a result, they were convicted by a jury of RICO conspiracy, substantive racketeering, and Hobbs Act robbery. They were sentenced to 216 months in prison and appealed on numerous grounds.

The Fourth Circuit affirmed Taylor and Hersl’s convictions and sentences. First, the court rejected their argument that there was insufficient evidence of one of the two racketeering acts charged as part of the RICO count, wire fraud. Specifically, the defendants argued that there was insufficient evidence to show that it was reasonably foreseeable to them that the false overtime reports – which were processed by a company in another state and resulted in paychecks being sent or electronic funds transfers – used the “wires.” The court disagreed, noting that the interstate nexus portion of wire fraud was a jurisdictional element and that there was sufficient evidence of the defendants’ familiarity with the overtime time and payroll scheme that it was foreseeable that the wires would be involved. Second, the court applied that holding in rejecting the argument that there was insufficient evidence to support the substantive racketeering count, since it was based on multiple acts of wire fraud. Third, the district court affirmed the convictions for Hobbs Act robbery, based on separate events. For Taylor, the court concluded there was sufficient evidence to conclude that he stole some of the money seized from a drug dealer during a purchase of drugs based on the dealer’s testimony about the terms of the deal and the lesser amount of money turned over to police evidence control. For Hersl, the court concluded there was sufficient evidence to show that he was involved in a warrantless search of another drug dealer’s home, during which cash was seized and a portion of it divided up by the officers involved. Finally, the court found no abuse of discretion with regard to several evidentiary issues and concluded that the defendants’ sentences were substantively reasonable.

Search Based on Probation Conditions OK, Even With Law Enforcement Impetus

US v. Scott: Scott was on probation in North Carolina. One of the statutory conditions of his release was that he submit to warrantless searches of his home by “a post-release supervision officer.” However, Scott’s own supervision agreement stated the condition as applying only to searches by “my supervising officer.” Scott’s probation officer referred him to a “multi agency operation involving federal and state law enforcement agencies” designed to locate probationers who had either absconded or had outstanding warrants “and to conduct warrantless searches of supervisees subject to search conditions.” Scott’s probation officer identified him because he wore “flashy” things, yet didn’t have a job, and he was scheduled to have a warrantless search sometime in the next 45 days. A search of Scott’s home was conducted, during which two firearms were recovered. While Scott’s probation officer wasn’t there, other probation officers were, in addition to law enforcement. Scott unsuccessfully moved to suppress the guns and was convicted of being a felon in possession of a firearm.

The Fourth Circuit affirmed the denial of Scott’s motion to suppress. The court first rejected Scott’s argument that his probation officer’s absence from the search meant it was not conducted within the parameters of the condition to which he was subject. The court concluded that the statutory condition that refereed to “a post-release supervision officer” was mandatory and could not be modified by the conditions set forth in Scott’s particular agreement. Then the court concluded that the search of Scott’s apartment was “reasonably related to his post-release supervision” as required by the condition because it was “initiated and supervised” by probation officers. The involvement of other agencies did not change that analysis.

Inevitable Discovery Saves Car Search

US v. Alston: Alston ran a red light and an officer tried to pull him over. Alston didn’t do so until he ran into a parked car. While he drove, the officer saw Alston reach under the seat and suspected he might be fiddling with a gun. When the officer pulled up next to Alston said he had been distracted and he was reaching under the seat because he dropped his cell phone. When asked if there was anything in the car “he shouldn’t have,” Alston produced a bag of marijuana, which he tossed into the officer’s car. The officer and Alston then had a long dialogue about what else might be in the car while waiting for Alston’s mother to come and take the car, during which Alston repeatedly said he wasn’t going to arrest Alston. He just wanted “the heater” he was convinced Alston had been hiding. After Alston got out of the car, the officer searched it and found a gun. Alston was eventually arrested by a local task force for, among other things, being a felon in possession of a firearm. The district court ordered much of Alston’s statements and other evidence suppressed, but not the gun, concluding that it would have inevitably been seized because the marijuana provided probable cause to search the car.

The Fourth Circuit affirmed the district court’s decision. The court agreed that the bag of marijuana gave the officer probable cause to search the car, but noted that the district court never expressly held that the officer would have conducted that search. The court concluded that he would have because he believed Alston had a gun and his focus during the stop was in recovering it, testifying that “getting the heater off the street [was] more pressing than taking [Alston] to jail.”