Guilty Plea Waives Sixth Amendment Speedy Trial Challenge

US v. Lozano: Lozano illegally reentered the country in 2011 and was charged with state crimes. While in custody he was also charged federally with illegal reentry. However, he was deported when his state case was concluded, without ever learning of the federal charges. In 2018, after he returned to the US, he was arrested on the 2011 illegal reentry charge. He pleaded guilty and was sentenced to 51 months in prison.

On appeal, the Fourth Circuit affirmed Lozano’s conviction and sentence. For the first time, Lozano argued that the delay between his charge and his guilty plea violated his Sixth Amendment right to a fair trial. The court rejected that argument on multiple grounds. First, it concluded that by pleading guilty, Lozano waived this issue. It rejected Lozano’s argument that the issue was preserved under the Supreme Court’s recent decision in Glass, noting that a speedy trial claim was not the kind of issue that goes to “the government’s power to initiate the proceedings against the defendant.” Second, applying plain error, the court found Lozano’s argument failed on the merits anyway. While the delay was presumptively prejudicial, the other factors weighed against Lozano, including that he did not assert his right to a speedy trial below and could not show any prejudice.

Government Can’t Waive First Closing Argument and Keep Rebuttal

US v Smith: Smith went to trial on two charges of possession of meth with intent to distribute arising from two separate incidents a month apart – the first involved just a “detectable” amount of meth, while the second charged more than 50 grams were involved. After the presentation of evidence, the Government stated that it only wanted to make a single closing argument in rebuttal to Smith’s. Smith objected, arguing that if the Government wanted to give up its initial closing argument it must also forfeit its rebuttal. The district court disagreed and granted the Government’s wish. During his closing argument Smith conceded he possessed the meth, but argued that he lacked the intent to distributed it, the larger second amount having been the result of buying in bulk. Smith was convicted of only simple possession on the first count, but possession with intent on the second.

On appeal, the Fourth Circuit affirmed Smith’s convictions. Relying on Rule 29.1 of the Rules of Criminal Procedure, the court concluded that the district court erred by allowing the Government to waive its initial closing argument while retaining its rebuttal. The rules is “clear as to how closing arguments shall proceed, and it thus cabins the district court’s latitude in a discrete but important way” that “provides each side in a criminal case with a meaningful opportunity to rebut the other.” However, in this case the error was harmless, as Smith could not show any prejudice from the district court’s decision. In particular, the court noted that Smith “never asked the district court for the opportunity to make a sur-rebuttal.” The court also rejected arguments that Smith’s case should have been dismiss due to the improper designation of an Acting Attorney General during his case and that a police officer’s testimony about tools of the drug trade was improperly admitted.

Court Discusses Standard for Sealing Documents That Show Cooperation

US v. Doe: In 2012, Doe was convicted of a drug conspiracy. At sentencing, he received a downward departure based on a substantial assistance motion from the Government (apparently an oral one). In 2016, Doe sought a reduced sentence under 18 USC 3582(c)(2) due to retroactive changes in the Guidelines. The district court denied them motion in an order that explained that Doe’s original sentence was based partly on his cooperation. In 2018, Doe moved to have the order sealed, arguing that “the district court’s reference to his cooperation threatened his safety because the order was available to other inmates through the prison library.” The district court denied the motion in a brief order without any real analysis.

The Fourth Circuit reversed that decision, 2-1. The court first held that an order denying a motion to seal is a final order that can be appealed by the defendant seeking to seal documents. On the merits, the court first concluded that the proper standard to apply was the public’s right to access court records under the First Amendment. Under that standard, the court must make a decision on sealing a document on “specific factual findings” rather than “conclusory assertions.” The court noted that the district court’s order in this case “made no specific findings at all.” After reviewing the various competing interests, the court ultimately concluded that, generally, “protecting cooperators from harm is a compelling interest that can justify sealing” and sealing was justified here because “the record demonstrates that Defendant faces a heightened risk” of retaliation.

Judge Richardson dissented, arguing that regardless of the proper analytical standard, Does “motion is fatally underinclusive” because Doe’s cooperation was not secret at the time he sought to have the order sealed.

Congrats to the Defender office in EDNC on the win!