No Error In Partial Courtroom Closure, but Rehaif Error Requires Vacation

US v. Barronette: Barronette (and several codefendants) were part of an organization that “distributed drugs and engaged in countless acts of violence using firearms” in West Baltimore, for which they were charged with offenses including conspiracy to commit racketeering, murder, a drug distribution conspiracy, substantive drug distribution counts, and several firearm offenses, including being a felon in possession of a firearm. At trial, the district court limited the number of spectators in the courtroom (sending the rest to an overflow room) do to “extremely serious security concerns” including “fights in the gallery, knives being found in the gallery . . . the fact that government witnesses in the case had been murdered, and an alleged request from Barronette while imprisonment for people to pack the courtroom when government witnesses were testifying.” The defendants were convicted on all charges and sentenced to lengthy terms imprisonment, including life.

On appeal, the Fourth Circuit affirmed most of the convictions, rejecting numerous arguments raised by various defendants. Two issues stand out. First, all the defendants argued that their right to a public trial had been violated by the restriction on spectators in the courtroom. The court disagreed, noting that “the courtroom was never completely closed to the public” and that the “district court advanced overriding interests of maintaining order and preventing witness intimidation.” The restriction was properly tailored to serve those needs and the district court had considered reasonable alternatives. Second, two defendants, Wilson and Pulley, argued that their felon-in-possession convictions had to be vacated in the wake of the Supreme Court’s decision in Rehaif. The court agreed with Pulley, but not Wilson. The difference between the two was that Pulley’s prior convictions were for “state-law misdemeanors” that, nonetheless, fit within the federal definition of “felony” for this offense. In light of the sentences he had been given, “there is a lack of record evidence that Pulley knew that he was convicted of a state crime for which the punishment was for more than two years, especially when his crimes were labelled as misdemeanors.” The court found error, that the error was plain and prejudicial, and ordered Pulley’s conviction vacated. For Wilson, however, the court denied relief because, in comparison to Pulley, he “had been convicted of robbery with a dangerous weapon, which is a felony under Maryland law” and therefore the “presumption that he would ordinarily know he was a felon applies.”

Pipe Sufficient to Justify Search of Car, Even Given Other Uses

US v. Runner:  A police officer in West Virginia got an anonymous tip of a person sitting in a blue Volkswagen in a Wal-Mart parking lot “shooting up.” An officer made contact with the woman, who “adamantly denied having injected narcotics,” answered the officer’s questions in a “straightforward and logical manner” and otherwise “exhibited no symptoms of impairment. There were no fresh track marks on her arms. A second officer, a “trained drug recognition expert” arrived and did find “scars from prior intravenous drug use but . . .  no evidence of fresh use.” The woman allowed a search of her purse, which uncovered no contraband, but she denied a request to search the car, explaining that it was not hers and the driver, Runner, was in the store. The drug recognition expert looked into the car and “identified a glass stem pip in the center console” which he believed “had a ‘frosted tip’ to it, indicating prior use.” The first officer went into the store and got Runner, who also denied permission to search the car. The officers searched it anyway, finding small amounts of drugs and, after Runner conceded there might be firearms in the car (it belonged to his cousin), a pistol in the trunk.

Runner filed a motion to suppress, arguing that the incriminating nature of the pipe was not immediate apparent from the inspection outside of the car. Both officers testified that the pipe was drug paraphernalia used to smoke “meth, crack cocaine, stuff like that.” Runner countered with testimony from a local CBD shop owner that sold (among other things) glass pipes, who testified that they “are used by some to smoke hemp and CBD oils.” The district court denied the motion, concluding that the “criminal nature of the pipe was immediately apparent,” notwithstanding the legal uses to which it might be put. Runner pleaded guilty to being a felon in possession of a firearm and was sentenced to 51 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Runner’s motion to suppress. The court rejected Runner’s argument that the seeing the pipe alone was the basis for the search, pointing to the other evidence collected, starting with the anonymous tip. The conclusion that the pipe was contraband “meets the admittedly low standard: that the facts available warrant that items may be contraband or stolen property.” The court also rejected the argument that the pipe was an everyday item that could be used to smoke drugs, but was in fact primarily used for that purpose.

Rehaif Plain Error Where Prior Conviction Was State Misdemeanor

US v. Heyward: In 2014, Heyward fired two shots from his front porch, killing a person in a car parked outside. After initially being charged in state court, Heyward was charged with federal firearm offenses and eventually pleaded guilty to being a felon in possession of a firearm. He was sentenced to 120 months in prison.

A divided Fourth Circuit reversed Heyward's conviction in the wake of Rehaif. Applying plain error review, there was no dispute that Heyward's plea, taken without the knowledge element laid out in Rehaif, was error and plain. The dispute was over prejudice, which, the Supreme Court held in Greer, the defendant "faces an uphill climb in trying to satisfy" because if "a person is a felon, he ordinarily knows he is a felon" as it is "simply not the kind of thing that one forgets." In Heyward's case, however, a review of the "entire record" showed that "Heyward repeatedly insisted that he had not known of the relevant fact - that is, his status as a felon - that made it unlawful for him to possess a firearm." At most, the record reflected that Heyward knew of his status by the time he was in court, but not at the time he possessed the firearm. The court also found this the type of error that must be noticed and, therefore, vacated Heyward's conviction.

On the subject of the "record," the Government moved to file a supplemental joint appendix on appeal, one that "consists of four documents not contained in the district court record," at least one of which was "an affidavit created long after Heyward's conviction and even after he filed his opening supplemental brief on appeal." The court denied the request, noting that Rule 10 of the Federal Rules of Procedure "does not grant a license to build a new record."

Judge Agee dissented, arguing that the record does not support the court's conclusion as to Heyward's state of mind and taking the court to task for having "already permitted the Government to supplement the record . . . evidence which only confirms that Heyward cannot meet his burden" and then "vacat[ing] this ruling in a footnote."

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