Court Must Calculate Guidelines Under Current Law in First Step Act Proceeding

US v. Lancaster: In 2009, Lancaster pleaded guilty to a conspiracy involving more than 50 grams of crack cocaine, subjecting him to a mandatory minimum sentence of 120 months in prison. He was classified as a career offender at sentencing and ultimately received a sentence of 180 months in prison. In 2020, he filed a motion under the First Step Act’s retroactive application of the Fair Sentencing Act, seeking a sentence of time served, based on the argument that he was no longer a career offender. The district court denied the motion in a brief, one-paragraph order, concluding that it would have imposed the same sentence had the Fair Sentencing Act been in effect.

On appeal, the Fourth Circuit reversed the denial of relief under the First Step Act. While the district court’s ultimate conclusion that no relief should be granted might end up being correct, it did not properly analyze Lancaster’s request. Critically, the district court failed to recalculate the Guideline range in light of “intervening case law.” At the time of Lancaster’s conviction his offense of conviction – conspiracy – was a “controlled substance offense,” but that is no longer the case. Remand was required for the district court to perform that analysis and, ultimately, determine whether relief was appropriate.

Judge Wilkinson concurred in the result, agreeing that it was required by prior Fourth Circuit precedent. However, he noted that “to say these holdings exacerbate a circuit split greatly understates the matter” and that the issue “is an altogether serious one in sentencing, and I respectfully request that the sooner the Supreme Court resolves the fractured views concerning it, the better of we all will be.”

Congrats to the Defender office in Eastern North Carolina on the win!

Gant Applies Beyond Search of Automobiles

US v. Davis: Davis was pulled over for overly tinted windows. After officers discovered that Davis “had a history of felony drug charges and convictions,” Davis drove off while they were still in possession of his license and proof of insurance. A high-speed chase followed in a residential neighborhood until Davis “reached a dead-end cul-de-sac, drove in between two houses and into someone’s backyard,” at which point he got out of the car carrying a backpack and started running into a swamp. Davis eventually got stuck and officers caught up. After they drew their weapons, Davis “complied by returning to dry land, dropping the backpack, and lying down on his stomach.” Davis was patted down (they found cash), handcuffed, and placed under arrest. At that point, an officer opened the backpack and found cash and cocaine. A search of Davis’ car uncovered more cash and other items, while a handgun was found along the path of Davis’ flight. The district court denied Davis’ motion to suppress the contents of the backpack and his car and was ultimately convicted of drug and firearm counts and sentenced to 420 months in prison. 

On appeal, the Fourth Circuit reversed the denial of Davis’ motion to suppress. The court addressed the issue of whether Arizona v. Gant, in which the Supreme Court addressed searches of vehicles pursuant to lawful arrests, applied outside the context of vehicles. The court concluded that it did, because while Gant involved an automobile search, the prior cases upon which it was based were not limited to that situation. As a result, police “can conduct warrantless searches of non-vehicular containers incident to a lawful arrest only when the arrestee is unsecured and within reaching distance of the [container] at the time of the search.” With that in mind, the district court erred by denying Davis’ motion to suppress, because when the backpack was searched Davis was handcuffed and not within reaching distance of it. The court contrasted this situation, where Davis was “face down on the ground win this hands behind his back” with an earlier decision approving a similar search where the defendant was “milling about” while handcuffed. Without the evidence found in the backpack the officers lacked probable cause to search the car (although they had reasonable suspicion).

Hearing Required to Determine Due Process Violation Regarding Victim’s Cell Phone

 US v. Johnson: Johnson and Stewart were charged with distribution of heroin causing death. In addition, Johnson was also charged with simple distribution to another person, who also died shortly thereafter. Each defendant reached a plea agreement with the Government to plead guilty to simple distribution charges, but the district court refused to accept it in Johnson’s case, leading Stewart to withdraw his plea as well. 

Before going to trial, the defendants moved to dismiss the causing death count, arguing that the Government had violated their due process rights by not turning over exculpatory evidence from the victim’s cell phone or preserving the phone for further examination. The Government explained that the state police investigator who had the phone had returned it to the victim’s family, who could no longer find it. The district court denied the motion, without hearing any testimony about the matter. The district court also declined to give a spoliation instruction at trial, suggesting (among other things) that would require the jury to be informed of the defendants’ withdrawn guilty pleas. At trial, the district court also allowed the Government to present extensive evidence that the person to whom Johnson had separately sold heroin to had died shortly thereafter. The jury convicted the defendants on all counts, with the district court then sentencing Johnson to 365 months in prison and Steward 293 months.

On appeal, the Fourth Circuit reversed the defendants’ convictions and sentences. As to the due process issue regarding the victim’s phone, the court ultimately concluded that the “record was too meager to render a proper ruling,” holding that there were numerous unanswered questions that required the district court to hold an evidentiary hearing. The court did state that “we also have doubts about the merits of the district court’s decision,” however. The court did not resolve the related instructional issue, but noted that if the district court rejected again the due process argument, “the court should assess anew whether the defendants are entitled to an adverse inference instruction.” With regard to Johnson’s separate conviction, the court concluded that the district court had erred by concluding that Johnson had “opened the door” to extensive testimony about his death by cross examining one of the Government’s witnesses about how the person to whom Johnson allegedly sold heroin was in a parking lot, unsupervised, for hours afterward and could have obtained drugs from other sources during that period.

Congrats to the Defender office in the Northern District of WV on the win!

Hobbs Act Robbery Not “Crime of Violence” Under Guidelines

US v. Green: Green pleaded guilty to Hobbs Act robbery and the parties agreed to a sentence of no less than 120 months in prison. The probation officer classified Green as a career offender, however, raising his advisory Guideline range to 151 to 188 months. Green objected, arguing that his offense of conviction was not a “crime of violence” because that definition was too vague. The district court disagreed, applied the enhancement, and ultimately sentenced Green to 144 months in prison.

On appeal, the Fourth Circuit vacated Green’s sentence. Turning first to the substance of Green’s argument, the court concluded that Hobbs Act robbery does not meet the definition of “crime of violence” used in the Guidelines. In particular, Hobbs Act robbery can be committed by the use of force (or threat thereof) against property, whereas the various crime of violence definitions were limited to the use of force against persons (by contrast to the definition for 18 U.S.C. 924(c), which includes property, meaning Hobbs Act robbery is a crime of violence under that provision). Therefore, it qualified neither under the force clause or under the enumerated offense clause because it was broader than generic robbery. The court then addressed the issue of standard of review, applying de novo review, but concluding that Green would prevail under plain error review as well. It rejected the Government’s argument that plain error should apply because Green’s brief objection in the district court was on different grounds than his arguments on the appeal that the court found persuasive. The court concluded that because Green had raised the claim – that he was not a career offender – before the district court, he could make new arguments in support of that claim on appeal.

Judge Rushing concurred in the judgment, but could have applied plain error review.

Courts Must Reduce First Step Act Eligible Defendants’ Sentences to New Statutory Maximum

US v. Collington: In 2010, just before the Fair Sentencing Act was passed, Collington was sentenced to 30 years in prison after pleading guilty to possession with intent to distribute more than five grams of crack cocaine. That sentence, part of a plea agreement, was below the statutory maximum (and recommended Guideline sentence) of 40 years. After the First Step Act was passed, Collington sought a reduction in his sentence, noting a new statutory maximum of 20 years. The district court concluded that Collington’s conviction was a “covered offense” and that he was eligible for relief, but ultimately determined not to disturb the 360-month sentence due to the “seriousness” of his offense and the fact that the murder cross reference in the Guidelines applied at sentencing.

On appeal, the Fourth Circuit reversed the district court’s denial of relief. In doing so, the court was required to “consider the limits of a court's discretion in disposing of First Step Act motions,” including “whether courts can retain a sentence above the retroactive statutory maximum.” After a thorough review of its First Step Act cases to date, the court concluded that Congress’ intention was to give “retroactive effect to the new statutory maximums imposed by the Fair Sentencing Act” and that, as a result, the district court must reduce an eligible defendant’s sentence to at least the top of the newly applicable Guideline range. That First Step Act relief is generally discretionary did not matter, as it was the new statutory ranges in the Fair Sentencing Act that controlled. Therefore, where Collington would face no more than a 20-year sentence “[i]f sentenced today” for his offense of conviction, the “district court erred by not resentencing Collington to – at most – twenty years’ imprisonment.” Secondarily, the court also held that First Step Act sentencing decisions would be reviewed using the same reasonableness standards as other sentences.

Congrats to the Defender office in South Carolina on the win!

Restitution Following Slavery Conviction Requires Liquidated Damages

US v. Edwards: Edwards “pleaded guilty to forced labor” under the Trafficking Victims Protection Act after “effectively enslave[ing]” an intellectually disabled man for five years at the restaurant Edwards managed (the man had worked there for 19 years prior while being paid). After imposing a sentence of 120 months, the district court ordered Edwards to pay restitution of approximately $273,000, representing the unpaid wages, but declined to include an “additional equal amount as liquidated damages.”

On appeal, the Fourth Circuit reversed the restitution order. The court noted that the TVPA requires restitution in the “full amount of the victim’s losses” and defines that with reference to the Fair Labor Standards Act. That Act specifically requires the payment of liquidated damages when an employer fails to meet minimum wage and overtime requirements. The court also recognized that “awarding liquidated damages for violations of the FLSA’s minimum-wage and overtime provisions is the norm.” Therefore, the district court erred by not including liquidated damages in the restitution aware imposed upon Edwards.

Terrorism Enhancement Upheld for Silencer Possession Case

US v. Kobito: After Kobito appeared at a North Carolina mosque to “ask about an inflammatory video of a Imam that was circulating on social media,” a confidential informant contacted him to ask whether he was planning any actions related to the mosque. They met in person, where Kobito explained part of the local federal building was “a front for the” NSA and that he needed to figure out “the exact floor” it was on to “dump shots into the building.” As part of his discussion, Kobito explained that he knew how to make a “poor man’s silencer” using an automotive air filter. After additional discussions with the informant about silencers and Kobito’s plans, investigators executed a search warrant at his home and recovered two of the silencers. After pleading guilty to possession of an unregistered silencer, Kobito’s offense level was enhanced under USSG 3A1.4 for a “felony that involved, or was intended to promote, a federal crime of terrorism,” which includes destroying or injuring any structure “within the special maritime and territorial jurisdiction of the United States.” The district court imposed the enhancement, resulting in a statutory maximum Guideline range of 120 months, but ultimately imposed a sentence of 60 months.

On appeal, the Fourth Circuit affirmed Kobito’s sentence. Rejecting (on plain error grounds) Kobito’s argument that the Government failed to prove that the federal building was within the proper jurisdiction, the court held that such proof was not required in the first instance. The enhancement applies when the offense was “‘intended to promote’ a federal crime of terrorism, even if it didn’t ‘involve’ such a crime.” There was no need to prove that Kobito had completed, attempted, or conspired to commit such a crime. All that matters is the defendant’s purpose “and if that purpose is to promote a terrorism crime, the enhancement is triggered.”

Allegations of IAC Regarding Sentencing Exposure Prior to Plea Required Hearing; Cannot Raise Restitution Challenge

US v. Mayhew: Mayhew was convicted on numerous counts of fraud (and related offenses) and sentenced to 320 months in prison, along with a restitution obligation of more than $2 million. After his conviction was final, Mayhew filed a motion under 28 USC 2255 alleging that he received ineffective assistance of counsel on two grounds: that counsel misadvised him as to his sentencing exposure under the Guidelines which caused him to turn down a favorable plea bargain and that counsel failed to object to the inclusion of restitution amounts related to dismissed counts. The district court denied Mayhew’s motion without having a hearing.

On appeal, the Fourth Circuit concluded that the district court erred by not holding a hearing on Mayhew’s claims. The Government admitted that it made an offer for Mayhew to plead guilty to a single conspiracy count that would have capped his statutory maximum sentence at 60 months. Mayhew rejected this because his attorney allegedly told him if he was convicted at trial he would only face a sentence of two to five years. With no evidence contradicting that allegation in the record, Mayhew was entitled to an evidentiary hearing. The court also held that the record did not show a lack of prejudice, as any advisories from the district Mayhew had about sentencing exposure came after he rejected the favorable plea agreement. In addition, while the court held that a defendant could not challenge a restitution award in a 2255 proceeding, it concluded that Mayhew’s issue went also to the loss calculations under the Guidelines, which can be raised under the banner of ineffective assistance of counsel.

No Seizure Without Acquiescence to Authority (Reasonable Suspicion Supported Anyway)

US v. Cloud: Officers were patrolling a high-crime area when they spotted a red Dodge Avenger, with four people inside, sitting outside Room 110 of a nearby motel. The officers parked their car behind the Dodge, in a way that left no “clear path for the car’s driver to back out of the parking spot.” An officer, both in uniform, went to either side of the Dodge. One saw the driver’s side rear passenger “holding what I believed to be . . .a firearm.” The person in the seat, when the officer shined his flashlight inside, acted “really nervous” and attempted to conceal the firearm.

While those conversations were taking place, Cloud and his girlfriend emerged from Room 110. He told officers he was not staying at the motel, indicated that the front seat passenger of the Dodge was his daughter, then got in the driver’s seat of the car and “turned his head and acted like he wanted to back out.” Nonetheless, he did not try and back out. The officer on the driver’s side then asked the passenger whey he put under the seat, to which the passenger he had dropped a cigarillo. When he asked Cloud if there were any drugs or guns in the car, Could said there were not. As other officers arrived, Could got out of the car, began “pacing up and down the sidewalk” outside the motel and called his mother. An officer asked him to “come back” and “hang out” with the officers, but Cloud did not. Eventually, all of the passengers in the car got out and were “paired with an officer.”

An officer tried to explain to Cloud why they were there, but Cloud “refused to listen and instead handed [the officer] his phone and asked [the officer] to speak with his mother.” The officer took the phone, briefly, but never talked to Cloud’s mother before returning it. Cloud started talking on the phone again, at which point he “walked towards, and eventually past” the officer. Cloud denied permission to search the car, but an officer “frisked” it anyway, finding the firearm in the floor of the backseat. Cloud was then detained, after a struggle, and was found to be in possession of a separate stolen firearm. That firearm formed the basis of Cloud’s conviction for being a felon in possession of a firearm.

The Fourth Circuit affirmed Cloud’s conviction, holding that the district court had correctly denied his motion to suppress the firearm found after he was detained. The court agreed that Cloud never acquiesced to the shows of authority the officers made and, therefore, the Fourth Amendment was not implicated. The parking of the car, though it effectively blocked the Dodge from leaving, was “of no constitutional significance” to Cloud because it occurred while he was still inside Room 110. However, once Cloud was in the car and being questioned without a real option to leave, that could have been a seizure, had Cloud acquiesced to the officers’ authority. But he did not, as his merely “remaining in the vicinity of the motel and answering their questions” was not enough. Alternately, the court held that even if Cloud was seized earlier in the encounter, officers had reasonable suspicion to support a seizure.

Unintentional Distribution of CP Enough to Preclude Guideline Reduction

US v. Miltier: Miltier pleaded guilty to receiving and possessing child pornography. Agents found Miltier by tracing the IP address of a computer that was offering child pornography for download on a peer-to-peer network. Miltier lived at the same residence and “admitted responsibility for the images agents downloaded but denied intentionally sharing” the images or any others. At sentencing, he argued his offense level should be reduced under USSG 2G2.2(b)(1) because his conduct was limited to receipt and he “did not intend to traffic in, or distribute, such material.” The district court rejected that argument and sentenced Miltier within the resulting Guideline range. 

On appeal, the Fourth Circuit affirmed Miltier’s sentence. The court noted that 2G2.2(b)(1) “expressly excludes all ‘conduct’ that goes beyond mere ‘receipt or solicitation.’” Any distribution, regardless of whether it was intentional or not, takes the conduct outside of that provision’s scope. The court rejected Miltier’s argument that such a reading rendered language about intent to distribute superfluous, as that only came into play if the conduct itself did not include distribution. In addition, it did not matter that such unknowing distribution would be insufficient to sustain a conviction for distribution of child pornography.

Implicit Acceptance of Plea Agreement Possible, Gives Effect to Appeal Waiver

US v. Soloff: Soloff agreed to plead guilty to the receipt of child pornography as part of a plea agreement in which he agreed to waive certain appellate rights. Both a magistrate judge and district court judge provisionally approved the plea agreement pending review of the Presentencing Investigation Report. At sentencing, there were no objections to the Guideline calculations and the district court ultimately imposed a sentence at the bottom of the advisory Guideline range. While noting the “existence of the plea agreement” and the appeal waiver and imposing restitution “in accordance with the terms and conditions of Defendant’s plea agreement,” it did not specifically adopt the plea agreement. 

Soloff challenged his sentence on appeal. The Government moved to dismiss the appeal, arguing that the waiver provision of the plea agreement applied. The Fourth Circuit agreed and dismissed the appeal. There was no dispute that the issues raised by Soloff on appeal fell within the waiver’s scope, only whether the waiver was binding. The court rejected Soloff’s argument that the waiver never gained effect because the district court failed to adopt it, holding that such adoption can be implicit, rather than explicit. All that is needed is evidence that the district court acted in accordance with the plea agreement, as it did here. Still, explicit adoption is the best practice.

 

No Abuse of Discretion for Denial of Compassionate Release

US v. Kibble: Kibble pleaded guilty to travelling in interstate commerce with the intent to engage in illicit sexual conduct and was sentenced to 57 months in prison. He reported to being serving that sentence on February 14, 2020. Shortly thereafter, Kibble filed a motion for compassionate release, arguing that his health conditions – a heart defect and non-alcohol related cirrhosis – left him more vulnerable to the effects of COVID-19, which was running rampant through FCI Elkton, where he was housed. The district court concluded that Kibble had satisfied the necessary procedural requirements for filing the motion and that he presented “extraordinary and compelling reasons” for relief, but ultimately denied relief on the grounds that Kibble was a danger to others and that the 3553(a) sentencing factors did not support release.

The Fourth Circuit affirmed the district court’s denial of relief. Reviewing for abuse of discretion, the court initially concluded that the district court erred by relying on Kibble’s danger to others, a factor set forth in the Sentencing Guidelines, as a basis for denying relief, as those factors are not binding in compassionate release proceedings at this time. However, the court found no abuse of discretion in the district court’s reliance on the 3553(a) factors. Particularly, the court concluded that the district court did not put undue weight on the fact that Kibble had only served a small part of his sentence and had fully considered the relevant factors.

Judge Gregory concurred in the judgment, writing to “express my additional views on the court’s analysis and, more broadly, on the range of permissible considerations for motions for compassionate release.

NC PJC Disposition Counts for Criminal History Point

US v. Miller: Miller pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was the proper calculation of his criminal history score, particularly whether a criminal history point should be added for a prior North Carolina "prayer for judgment" (PJC) disposition, where Miller pleaded guilty to marijuana possession, but no sentence was ever imposed or judgment entered. The district court concluded that it did count and sentenced Miller to the top of the resulting Guideline range.

On appeal, the Fourth Circuit affirmed Miller's sentence. The Guidelines, the court noted, add a point (up to four points total) for any "prior sentence" of less than 60 days, with "prior sentence" being defined to include a "conviction for which the imposition . . . of sentence was totally suspended or stayed." While "diversionary" findings made "without a finding of guilt" are excluded, where there is an admission of guilt the point is awarded "even if a conviction is not formally entered." That is what happened to Miller, who pleaded guilty to the possession offense, but no judgment was entered. In the end, it didn't matter how North Carolina law treats a PJC disposition, only whether it came within the language of the Guideline, which it did.

 

Sentence Vacated Due to Ineffective Assistance of Counsel, Substantive Unreasonableness

US v. Freeman: When she was a teenager, Freeman broke her tailbone, was prescribed opioids, and became addicted, In the intervening 16 years, she faked prescriptions to obtain an increasing number of pain pills, some of which she used herself and some of which she sold. Eventually, she was charged and pleaded guilty to possession with intent to distribute. She arrived at sentencing facing an advisory Guideline range of 210 to 240 months in prison. Although she had made some objections to the Guideline calculations (with regards to relevant conduct, an obstruction enhancement, and the lack of reduction for acceptance of responsibility), those objections were withdrawn by counsel (with Freeman's consent), who argued primarily for a variance or that Freeman be deferred into a drug court program. The district court eventually imposed a sentence of 210 months in prison.  

A divided Fourth Circuit vacated Freeman's sentence on two grounds (after directly appellate counsel to brief them following an Anders brief). The first was that Freeman received ineffective assistance of counsel at sentencing based on the withdrawal of the objections to the Guideline calculations. All of them had potential merit and, if successful, could have dropped the advisory Guideline range down to 97 to 121 months. There was enough on the record showing counsel's confusion and apparent lack of grasp of those issues (counsel said in withdrawing the objections that they would not impact the sentence anyway) to demonstrate deficient performance and the potential change in the Guideline range showed prejudice. The second basis for vacating the sentence was that it was substantively unreasonable, even though it was presumptively reasonable. That was because the district court failed to consider sentencing disparities between Freeman and other opioid defendants (who, on average, received a sentence about half as long) and did not adequately address Freeman's history of addiction.

Judge Quattlebaum dissented. He noted that this was the first time the Fourth Circuit had ever found ineffective assistance in a direct appeal and argued that that issue should have been left for collateral attack, given that there was nothing in the record suggesting what strategic consideration (if any) trial counsel had for waiving the Guideline objections. As to the substantive reasonableness of the sentence, he notes that this is also the first time the Fourth Circuit has found a within-the-Guideline sentence to be substantively unreasonable. He argued that the disparity identified by the court is not a good comparison (not "apples to apples," in other words) and that the district court did consider Freeman's history of addiction.

UPDATE: Per Sentencing Law & Policy, the court has decided to rehear this case en banc, without any apparent request from the Government. As a result, this opinion has been withdrawn pending the outcome of the en banc proceedings.

No Reasonable Suspicion to Support Stop Where Police Lacked Evidence of Drug Trafficking

US v. Drakeford: Drakeford was charged with drug and firearm offenses after a stop and patdown by officers in the parking lot of a car stereo store. They had come to be there because, months before, an informant had stated that a man matching Drakeford’s description and associated with a car registered to Drakeford was selling drugs. Police conducted surveillance at Drakeford’s home and that of his girlfriend for months without observing any obvious drug trafficking. This included on alleged sale of drugs, after which officers stopped and searched the “buyer’s” vehicle but found no drugs. At the car stereo store, officers saw Drakeford converse with another man in the parking lot and shake hands twice – the second of which was allegedly a hand-to-hand drug transaction. After Drakeford and the others went inside (followed by police, who didn’t do anything inside), they emerged and Drakeford was patted down, leading to the discovery of drugs. A search warrant was then executed at his girlfriend’s home, where more drugs and a firearm was found. Drakeford unsuccessfully moved to suppress that evidence and entered a conditional guilty plea.

On appeal, the Fourth Circuit reversed the denial of Drakeford’s motion to suppress. Examining the totality of the circumstances, the court concluded that the officers lacked reasonable suspicion to stop and patdown Drakeford. As to the informant, the court noted that they had provided no predictive information (not even Drakeford’s name) and that, although the informant could allegedly contact Drakeford, never used them to try and setup a controlled purchase of drugs. With regard to the second hand shake, the court pointed out that the only thing that made it suspicious was the officer’s conclusory testimony that it was – the officer was later forced to concede that he saw no drugs or money change hands. In addition, while he testified that drug transactions in this locale typically happen inside vehicles, the suspect handshake here took place outside, in a public place, and in front of security cameras. The court also noted that in months of surveilling Drakeford investigators had not developed any additional evidence of drug trafficking.

 

Judge Wynn concurred in the decision, writing about the need for district courts to no be overly deferential to officers’ “training and experience” when evaluating reasonable suspicion “often at the expense of the robust judicial scrutiny that the Fourth Amendment demands.”

Congrats to the Defender office in Western North Carolina on the win!

Government Doesn’t Need to Prove Defendant Knew of Ongoing Federal Investigation in Obstruction Prosecution

US v. Hassler: Hassler was the head nurse at a local jail where two inmates were beaten. One inmate was not examined until several days later (after it became “common knowledge” that law enforcement were investigating the assaults) and found to need emergency care. Hassler wrote a report two days later stating that he had seen the second inmate’s injuries at the time of the assault, but that he had declined medical treatment. Under later questioning by an FBI agent, Hassler admitted he wrote the report “to cover [his] butt” and did not see the second inmate. However, he stated he wasn’t aware of any ongoing investigation at the time. Hassler was eventually convicted of obstruction of justice under 18 U.S.C. 1519 and sentenced to 12 months and 1 day in prison.

 

On appeal, the Fourth Circuit affirmed Hassler’s conviction. Hassler’s main argument was that under Rehaif the Government had to prove that he intended to impede an investigation that he knew or contemplated would become a federal investigation. Relying on the Supreme Court’s 2015 decision in Yates, the court held that 1519 covers attempts to impede any federal investigation, even one “not even on the verge of commencement.” The jurisdictional language in the statute is not subject to Rehaif because such requirements are subject to lower culpability requirements than other elements of the offense. The district court did not err in not instructing the jury otherwise. Similarly, the evidence was sufficient to sustain Hassler’s conviction.

Aiding and Abetting Crime of Violence is Crime of Violence Under 924(c)

US v. Ali: Ali (and several others) was involved in a series of armed robberies in North Carolina for which he was convicted of being a felon in possession of a firearm, four counts of aiding and abetting Hobbs Act robbery, and four counts of carrying a firearm in connection with a crime of violence. Due primarily to the multiple firearm convictions, he was sentenced to 1195 months in prison.

 

On appeal, the Fourth Circuit affirmed Ali’s convictions and sentence. Of primary importance, the court rejected Ali’s argument that he had not engaged in a “crime of violence” under 18 U.S.C. 924(c) because the designated crime was aiding and abetting Hobbs Act robbery, rather than the robbery itself. The court concluded that, given that aiding and abetting is a theory of liability and not a stand-alone offense with its own elements, conviction for aiding and abetting here required proof of the elements of Hobbs Act robbery, which requires the use of violent force. Therefore, if the underlying crime is a crime of violence (as with Hobbs Act robbery), then aiding and abetting the commission of that crime is also a crime of violence. The court also held that the district court did not abuse its discretion in handling the issue of witness sequestration, where several of Ali’s coconspirators who were testifying against him were kept in a holding cell near each other before and after their testimony. The court also held there was no abuse of discretion for denying Ali’s motion for new trial due to newly discovered evidence, noting that the evidence was either not newly discovered or went only to impeachment and could not serve as the basis for a grant of a new trial.

US Had Jurisdiction to Convict Overseas Service Member of Online Sex Offense With Victim In Virginia

US v. Harris: Harris was in the Navy, stationed in Japan, when he began a “lengthy and coercive sexual relationship with a young girl in Virginia.” This continued for two years as Harris moved from station to station (including in the United States). As a result, he was charged and convicted at trial of coercing a minor into illegal sexual activity (among other offenses). After an unsuccessful direct appeal, Harris filed a 2255 motion arguing that the district court lacked jurisdiction over actions that happened outside of the United States. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the denial of Harris’ 2255 motion. At issue was the meaning of “within the special maritime and territorial jurisdiction of the United States,” particularly when applied to service members. In 1973, the court had held that the definition included “overseas United States facilities.” However, Congress later amended the definition to exclude “members of the Armed Services subject to  . . . the Uniform Code of Military Justice.” Ultimately, the court avoided resolving any conflict between prior precedent and the amended code language by holding that “the conduct charged in Count 14 that is relevant to [18 U.S.C.] 2422(b)’s focus occurred in the United States, not overseas.” The court noted that not only was the victim in Virginia, but that Harris was in the United States when he sent some of the messages to her.

Court Reverses Judgment of Acquittal and Grant of New Trial In Prosecution Involving Lobbying for Foreign Government

 US v. Rafiekian: Rafiekian worked with Michael Flynn’s lobbying and consulting group. After a failed coup in Turkey, which Turkey’s leader blamed partly on a dissident cleric who resided in Pennsylvania, Rafiekian became involved in various activities related to pressuring the United States to extradite the cleric. This was done in concert with a Turkish businessman and involved a shell organization to do PR and lobby. Ultimately, Rafiekian never disclosed any of these contacts to the Government as required and was charged with conspiracy and acting as a foreign agent without notifying the Attorney General. After a jury trial where he was convicted on both counts, the district court granted a motion for a judgment of acquittal, concluding that there was insufficient evidence that Rafiekian had been operating “subject to the direction or control of that foreign government.” In the alternative, the court granted Rafiekian a new trial on several grounds.

On appeal, the Fourth Circuit reversed the district court in both matters. As to the judgment of acquittal, the court concluded that the district court erred in identifying what the Government was required to prove with regard to acting as a foreign agent. It was enough, the court concluded, to show some degree of “direction” by the foreign government short of a direct employer/employee style relationship and sufficient evidence of that was presented here (it “lassoed enough stars to reveal a distinct constellation”). The court also held that the district court abused its discretion in ordering a new trial. Aside from issues related to the sufficiency of the evidence, the court held that there was no problem with the use of certain hearsay testimony (with appropriate limiting instructions from the district court) or with the lack of instruction related to Flynn’s role in the conspiracy, an issue which Rafiekian had not raised in the first place.

Remand Necessary to Determine Whether Counsel Made Strategic Decision Not to File Motion to Suppress

 US v. Pressley: In 2012 Pressley (and others) were under investigation for drug trafficking. Officers went to talk to Pressley and wound up interrogating him in one of their vehicles, causing him to make incriminating statements. Those statements played a large part in the Pressley’s eventual trial, where he was convicted on 13 counts related to drug trafficking. Pressley later filed a 2255 motion arguing that his trial counsel had been ineffective for failing to move to suppress the statements he made, claiming they were given without Miranda warnings. The district court denied Pressley’s motion without a hearing.

On appeal, the Fourth Circuit ordered the case remanded with instructions for the district court to hold an evidentiary hearing. Pressley’s version of events surrounding the statements, which must be accepted as true in the absence of an evidentiary hearing, showed that a motion to suppress would have had “some substance,” as it suggested the questioning was done in custody and thus Miranda warnings were required. However, the record did not show whether Pressley relayed those facts to his trial counsel or whether counsel made a strategic decision not to file a motion to suppress. As a result, the case had to return to the district court for an evidentiary hearing. However, the court did go ahead and hold Pressley was prejudiced by the use of his statements at trial (assuming they should have been suppressed in the first place).