Raw Data from Computer Tests Not "Statements" Subject to Confrontation

US v. Washington: Washington was pulled over on the Baltimore-Washington Parkway (over which the Government has jurisdiction) and charged with driving under the influence of alcohol and drugs and reckless driving. At trial, the Government presented expert testimony from the head of a local toxicology laboratory that a blood sample taken from Washington that night showed he had consumed PCP and alcohol. Washington objected to that testimony, arguing that the raw data reports of the drug testing upon which the doc relied were testimonial hearsay statements of the technicians who actually performed the test and Washington was entitled to confront them. The court disagreed and Washington was convicted.

On appeal, the Fourth Circuit affirms, 2-1. The court held that, to the extent that the raw data upon which the witness relied were "statements" at all, they were statements of the equipment and computer program that actually performed the testing, not the technicians who ran the tests. Because the equipment were not "persons," they could not produce "statements" within the meaning of the Rules of Evidence. Cross examination of the technicians would have been pointless, as they had no testimony to offer regard what the raw data actually meant. Dissenting, Judge Michael argued that the test results were statements of the technicians (because they were produced via human inputs), that they were testimonial, and that whether their cross examination would prove useful is a decision for the defendant, not the court, to make.

Potential Federal Criminality Produces Sufficient Nexus for Witness Tampering

US v. Harris: Codefendants Harris, Royal, and Smith were involved in a firebomb attack on the home of a community activist in Baltimore. The woman, a long time resident of the neighborhood, had begun providing information to Baltimore police regarding drug dealing in the area. As a result, she was subjected to a pattern of harassment that culminated with a firebomb attack on her home. Harris, Royal, and Smith were charged and convicted of, among other things, witness tampering and conspiracy to commit witness tampering.

The main issue at trial, and the crux of the defendants arguments on appeal, was whether there was a sufficient nexus between the information provided by the victim, the attempt to silence her, and a federal investigation. The district court rejected arguments that the Government, so secure convictions for witness tampering, was required to prove that the victim had or was likely to contact federal authorities. On appeal, the Fourth Circuit did the same. First, the court held that it was sufficient that the information provided by the victim concerned a potentially federal offense - drug trafficking - even though she never communicated directly with federal authorities. Second, the court held that the Government was not required to prove that the defendants specifically intended to prevent the communication of information to federal officers, so long as the information related to a potential federal offense.

The court also rejected arguments that Royal and Harris's trial should have been severed from Smith's because of the introduction of a gang video in which Smith appeared and that the prosecution engaged in improper rebuttal closing argument.

However, the court did vacate Smith's sentence because the district court failed to sufficiently justify its variance from the top of the advisory Guideline range (773 months) when imposing his 960-month sentence.

Failure to Recogzie Justification Defense to 922(g) Charge is Ineffective Assistance of Counsel

US v. Mooney: Mooney was a convicted felon. One night, after returning home from work at a nearby bar in Huntington, West Virginia Mooney found himself in a room with his ex-wife (with whom he shared the home), who was putting a gun to his head. Mooney's ex had (as the court put it) "a propensity to brandish and shoot guns at the men in her life," having previously shot another husband, shot at a boyfriend, and brandished a gun at Mooney on a prior occasion. Mooney took the gun away from his ex and called his boss at the bar to let him know he was bringing the gun to the bar in order to turn it in to the police. Mooney then tried twice to call 911, but his ex disconnected the calls. As he left the house, she ripped his shirt off and yelled at him that he was going to jail. Mooney escaped and made it to the bar. The police arrived shortly thereafter. Mooney turned the gun over to the police and was arrested.

Mooney was charged with being a felon in possession of a firearm. He pleaded guilty, after his attorney told him that there was no defense to his possession of the gun, even though he "did the right thing." At sentencing, Mooney moved to withdraw his plea, but the district court denied his motion after his attorney asserted (and the court agreed) that there was no justification defense available. Mooney was sentenced to 180 months in prison. His conviction and sentence were affirmed on appeal. Mooney they filed a habeas petition alleging ineffective assistance of counsel. The district court denied that petition, holding that Mooney could not claim justification for the offense once he carried the gun outside the home.

On appeal, the Fourth Circuit reversed. In doing so, it recognized a fact pattern that would support a justification defense for a felon-in-possession charge. The court held that Mooney's counsel was ineffective because the Fourth Circuit law at the time of Mooney's plea was clear that justification was, in theory, available as a defense in such cases and had been specifically recognized by other courts. The court also held that Mooney was prejudiced by counsel's deficient performance, noting that it was clear Mooney would not have pleaded guilty had he been properly informed of the law and that, as presented in the habeas proceeding, Mooney would be entitled to present the justification defense to a jury.

Mooney's conviction was vacated, and the case remanded to allow Mooney to withdraw his guilty plea.

Court Affirms Life Sentence for Witness Tampering Conviction

US v. Ruhbayan: Ruhbayan's case deals with sentences imposed following convictions for perjury, subornation, conspiracy and witness tampering. Ruhbayan was previously charged with drug conspiracy and using a firearm in connection with that offense. At that trial, Ruhbayan's girlfriend, Goodman, testified on his behalf in a generally exculpatory way. The jury believed her and he was acquitted of the most serious offenses (he was convicted on some misdemeanors). Sometime after that proceeding, Goodman was charged with firearm charges based on what she said in her testimony at Ruhbayan's trial. She cracked and admitted that she lied at Ruhbayan's trial at his behest. As a result, Ruhbayan was then indicted and ultimately convicted of perjury, subornation of perjury, conspiracy and witness tampering.

At sentencing, the district court found that the witness tampering offense related to an underlying charge that carried a life sentence (the original 924(c) count) and accordingly sentenced Ruhbayan to life in prison on that count, along with concurrent 60-month terms on the other charges. On appeal in 2005, the court upheld Ruhbayan's convictions, but remanded for resentencing in light of Booker. At resentencing, the district court imposed the same sentences.

On appeal, Ruhbayan first argued that the enhancement of his maximum sentence on the jury tampering count from 10 years to life violated the Sixth Amendment because it relied on a fact - that the tampering occurred in a criminal prosecution - not charged in the indictment. The Fourth Circuit disagreed, holding that the indictment and subsequent jury instructions were sufficient to trigger the enhancement and not run afoul of the Sixth Amendment. Next, Ruhbayan argued that the district court improperly calculated his advisory Guideline range due to (1) improper calculation of drug amounts for the underlying conspiracy offense, (2) an improper upward departure due to an understated criminal history, and (3) an improper upward departure for the offense level based on the Guidelines' failure to properly address his conduct. The court rejected all those arguments. Finally, the court held that Ruhbayan's sentence, having been within the range available under the Guidelines, was reasonable.

Minor Victim's Statements to Fellow Plane Passengers are Excited Utterances; Government Need Not Prove Defendant Knew Age of Victim

US v. Jennings: Jennings was convicted of abusive sexual conduct with a minor based on his actions on a flight from San Diego to Dulles, during which he hit on, groped, and fondled a 13 year old girl. On appeal, Jennings made several arguments regarding his trial, which were rejected by the Fourth Circuit.

First, Jennings argued that the district court erred by admitting into evidence the testimony of two other passengers on the flight who recounted allegations the victim made against him during the flight. The court held that the statements were properly admitted as excited utterances under FRE 803(2) and rejected Jennings argument that the five minutes that passed between the alleged events and the victim's recitation of them to another passenger gave her sufficient time to reflect upon her statements. Second, Jennings argued that the Government was required to prove (and failed to do so) that he knew the victim was between 12 and 16 years of age. Applying plain error review (Jennings first raised the issue in a motion for a new trial), the court found there to be no error, plain or otherwise, based on the language of the statute. Finally, Jennings argued that the district court erred by giving the jury a deliberate ignorance instruction. The court held that the district court did not abuse its discretion in giving that instruction.

851 Information Filed Between Jury Selection & Opening Statements Not Plain Error

US v. Beasley: Beasley was charged with conspiracy to distribute more than 50 grams of crack and possession with intent to distribute more than 5 grams of crack. Jury selection took place on January 6, 2004. However, the jury was not sworn and opening statements didn't take place until three weeks later. In the interim, the Government filed an information pursuant to 21 USC 851, increasing Beasley's potential maximum sentence from 5 to 40 years up to 10 years to life. Beasley was convicted, found to be a career offender, and sentenced to 408 months in prison.

On appeal, for the first time, Beasley argued that the 851 motion was not timely filed. Section 851 requires that the information be filed "before trial, or before entry of a plea of guilty." Beasley argued that the trial began when the jury was selected on January 6, before the information was filed. He also argued that the 851 information is a jurisdictional requirement and therefore the issue was not subject to plain error review.

The Fourth Circuit rejected Beasley's arguments. First, it concluded that the 851 information was not jurisdictional, holding that it merely allows for increased punishment and does not confer on the district court any additional jurisdictional authority beyond 18 USC 3231. Proceeding to plain error review, the court held the term "before trial" is ambiguous and that, without any controlling precedent discussing the issue, any error (if there was one) is certainly not plain. Notably, the court does not go on to resolve the issue of whether there actually was an error in the first place. The court also briefly disposed of two evidentiary issues raised by Beasley.

Illegal Reentry Conviction Upheld Against Fourth Amendment, STA Challenges

US v. Soriano-Jarquin: Soriano-Jarquin was a passenger in a van that was stopped along I-95 in Virginia due to a defective headlight. While citations were being prepared on the headlight and other violations, a state trooper asked to see the identification of the dozen passengers in the van. It became apparent that the passengers did not speak English and the trooper suspected they were illegal immigrants. He was right, as discovered by an ICE agent shortly thereafter. Of the bunch, Soriano-Jarquin has been previously deported for illegal entry (a month prior in Arizona) and was therefore arrested for illegal reentry.

What happened next is best tucked in the "go see your client before the prelim" file:

At a preliminary hearing before a magistrate judge on May 17, 2005, the government mistakenly produced an individual named Francisco Almaraz Soriano, rather than the defendant, Francisco Soriano-Jarquin. At the time, no one alerted the court to the error. On the stand, ICE Special Agent Jason Fulton identified the individual present as Francisco Soriano-Jarquin, though upon cross-examination Fulton stated that he could not be sure the individual was Soriano-Jarquin. The judge found probable cause to hold Soriano-Jarquin.

Soriano-Jarquin was later indicted for the same offense, although the body of the indictment named another defendant (not even Almaraz Soriano). It was dismissed, without prejudice, and a new indictment obtained the same day. Soriano-Jarquin then moved for a dismissal pursuant to the Speedy Trial Act, arguing that the second indictment was not timely filed. The district court rejected that motion, as well as Soriano-Jarquin's motion to suppress evidence obtained during the stop of the van. A jury convicted Soriano-Jarquin of illegal reentry.

On appeal, the Fourth Circuit rejected all of Soriano-Jarquin's arguments. First, the court rejected the argument that the trooper violated the Fourth Amendment by asking to see the identification of the van's passengers, noting that such a request is part of a legitimate traffic stop and is related to officer safety. In addition, the request in this case did not prolong the stop. Second, the court held that the mistake of not having Soriano-Jarquin at his own preliminary hearing was not fatal to the prosecution, because he failed to timely raise the issue and the later-filed indictment essentially mooted any problems with the prelim. Third, the court rejected the claim that the prosecution violated the Speedy Trial Act because of the problems with the initial indictment, noting that an incorrect indictment is not the same as the "no indictment" required for dismissal under the STA. Finally, the court rejected the argument that the district court erred by not allowing Soriano-Jarquin to call an ICE agent to testify after Soriano-Jarquin failed to follow the proper regulatory procedures to secure that testimony.

Court Affirms Use of Testimony from Co-conspirator ID'd by Defendant

US v. Sweets: Sweets (yes, that's his real name) was convicted at trial of conspiracy to distribute 50 or more grams of crack and conspiracy to possess a firearm in connection with a drug offense. At issue in his appeal were two interactions with police that Sweets claimed violated his constitutional rights. First, police came to Sweets' home looking for another man, Long, who was a suspect in a murder investigation. Sweets first denied knowing where Long was hiding, but after police threatened to have everyone locked up (Sweets, his girlfriend, etc.), Sweets agreed to lead police to a hotel where Long was hiding. Once arrested, Long provided testimony against Sweets regarding his role in the drug conspiracy. Second, Sweets gave a statement to police after he was arrested which he claimed was taken after he requested a lawyer and before he was Mirandized. The district court rejected both of those claims.

On appeal, the Fourth Circuit affirmed. With regard to the Long location and testimony, the court assumed arguendo that Sweets's cooperation in locating Long was coerced. Nevertheless, there was no Fifth Amendment violation because Sweets's act did not provide "incriminate Sweets in any real and substantial way," and, in any regard, was not actually used against him at trial. Long's actual testimony was sufficiently attenuated from the coercion to be admissible. With regard to the Miranda issue, the court affirmed the district court's factual findings that Sweets was given Miranda warnings both before an initial statement was given and then again before he repeated the statement on tape.

Judge Michael and District Judge Goodwin (SDWV) concurred separately, refusing to join in the court's use of a "substantial incrimination" standard, but agreeing that Long's testimony was appropriately admitted.

No Suppression of Testimony Following Illegal Search; Proper to Look to Sentencing Facts in Suppression Review

US v. Gray: Gray and Askew were at Gray's apartment in Huntington when police arrived to conduct a "knock and talk." When Gray refused them entry into the apartment, they pushed their way in anyway, discovering Askew inside along with drugs, money, and other paraphernalia. Based on what they saw, police obtained a warrant and conducted a more thorough search. While the search was in process, two people came to the apartment to buy drugs. They were intercepted by police. One of them gave a statement at that time, while the other gave a statement to police several months later - both implicating Gray and Askew in a scheme to sell crack. Askew and Gray both filed motions to suppress. The district court denied Askew's based on lack of standing to object to the search of Gray's apartment. As to Gray, the district court granted the motion with regards to the physical evidence found in the apartment, but refused to suppress the statements of Askew or the two folks who showed up at the apartment. Askew and Gray pleaded guilty, reserving their rights to appeal the search issues.

On appeal, the Fourth Circuit affirmed the district court's rulings, 2-1. First, the court held that Askew did not have standing to object to the search of Gray's apartment. Applying Minnesota v. Carter, 525 U.S. 83 (1998), the court held that Askew was more of a business visitor than social guest and therefore lacked any standing in Gray's apartment. Although the court reached that conclusion based on the evidence adduced at the suppression hearing, the court engaged in a lengthy review of Askew's sentencing proceedings, finding "confirmatory" information to support its conclusion. The court likened sentencing information to evidence produced during trial, which courts have traditionally utilized when resolving suppression issues.

Second, the court agreed with the district court that the statements of the two drug seekers and Askew should not be suppressed. As to the two drug seekers, the court held that the illegal search was not a "but-for cause of their" statements, but that it was "pure happenstance" (or stupidity, take your pick) that they came to Gray's apartment while the police were there. Regardless, their statements were given of their own free will, free from coercion (even though one of them failed to appear to testify pursuant to a subpoena). As to Askew's statements, the court held that he was not coerced into cooperated with the police, even though he was forced to cooperate due to the evidence seized during the illegal search of Gray's home (because Askew lacked standing to challenge the search).

Judge Michael unleashed a fiery dissent, disagreeing with the majority on just about everything. The dissent particularly takes issue with the majority's exploration of Askew's sentencing proceedings for evidence to support the denial of suppression, even though the majority admits it need not do so. Judge Michael calls such an approach "unprecedented." The dissent also substantively disagreed with the majority's conclusion as to Askew's standing to object to the search and the suppression of Aksew's statements in Gray's prosecution (no mention is made of the two drug seekers).

Appeal Waiver Does Not Excuse Counsel's Failure to File Appeal

US v. Poindexter: Poindexter pleaded guilty to three counts of distribution of heroin after beginning trial. He entered into a plea agreement with the Government in which other charges were dropped, the parties agreed on the amount of drugs attributable to Poindexter, and Poindexter waived his right to appeal his sentence unless the district court upwardly departed or imposed a sentence above the statutory maximum. Poindexter received a sentence within the Guideline range and did not appeal. A few years later, Poindexter files a habeas petition under 2255 alleging ineffective assistance of counsel. Specifically, he argued that he told his trial attorney to file an appeal and the attorney did not do so. The district court denied Poindexter's claim because of the plea agreement appeal waiver.

On appeal, the Fourth Circuit reversed. Applying Roe v. Flores-Ortega, 528 U.S. 470 (2000), the court held that when a defendant tells his attorney he wants to file an appeal, the attorney is under a duty to do so. Because the district court failed to hold a hearing to determine whether Poindexter actually made such a demand, the case required remand. The court rejected the Government's argument that the appeal waiver had any effect on that holding, noting that such waivers do not prevent the filing of appeals and the Government is free to rely upon it when fighting the appeal.

Forcible Rape Conviction Does Not Preclude Enhancement for Restraint of Victim

US v. Johnson: Johnson and other man rapped a woman on a naval base. He pleaded guitly to two counts of aggravated sexual abuse. At sentencing, his offense level was enhanced by two levels under USSG 3A.13 for physical restraint of the victim. He argued that physical restraint was already taken into account by the Guideline for his offense, 2A3.1(b)(1), which included a four-level increase for forcible rape. The district court disagreed, and sentenced Johnson to 188 months in prison.

On appeal, Johnson raised the same issue, which the Fourth Circuit rejected. Noting that the two-level restraint enhancement does not apply when such restraint is an element of the offense itself. The court concluded that the offense to which Johnson pleaded guilty, 18 USC 2241(a)(1) includes "force" an element, but not restraint. Specifically, while restraint of the type involved in this case can constitute force under 2241(a)(1), force may include various other actions which would not be considered restraint.

Court Upholds Wire Fraud Convictions

US v. Allen: Allen and his codefendant Reinhardt were involved in a fraud scheme in which they would provide "loans" to businesses that were structured as lease agreements for equipment (computers, etc.) that was never actually delivered. They were each convicted of multiple counts of wire fraud.

Both defendants made several unsuccessful arguments on appeal challenging their convictions. First, they both argued that the evidence against them was insufficient to support their convictions, primarily because the scheme itself was masterminded by someone else (it's unclear whether he was charged). The court rejected that argument, holding that the evidence of Allen and Reinhardt's guilt was overwhelming. Second, they argued that the district court erred by omitting a paragraph of the jury instructions on intent when providing the written summary to the jury. The court rejected that argument as well, holding that the omitted language was repeatedly told to the jury during oral instructions. In addition, Allen argued that his trial should have been severed from Allen's due to the use at evidence of corporate documents produced under subpoena by Reinhardt (thus preventing cross examination) and due to Reinhardt's trial strategy. First, the court held that the documents at issue were not statements by Reinhardt, as the jury was never told who produced the documents. Second, the court held that the defense theories of the two defendants were the same, although Allen sought to prove the defense with positive evidence, while Reinhardt relied on the Government's failure of proof. Therefore, severance was not necessary. Finally, the court rejected an argument that the district court erred by requiring the defense to provide argument regarding potential cross examination of a witness to the court and, later, to the Government, noting that neither defendant alleged any prejudice from the decision.

Reinhardt also made several arguments that his sentence was improperly calculated and imposed, which were dismissed by the court in summary fashion.

Court Upholds Conviction in Bank Robbery (Using Gasoline) Case

US v. Midgett: How's this for a statement of facts:

Around 12:30 on the afternoon of October 19, 1999, J.W. Shaw, a construction worker, was sitting in a van eating lunch at his worksite in Charlotte, North Carolina, when another van pulled up on his driver’s side. Defendant Paul Midgett was the driver of this second van, and his girlfriend, Theresa Russell, was a passenger. Midgett emerged from his van, walked over to Shaw, doused Shaw with gasoline from a large fast-food drink cup, and demanded that Shaw hand over his wallet. Shaw complied with this demand, but Midgett nonetheless proceeded to ignite the gasoline, setting Shaw on fire. Shaw suffered burns that caused him to be hospitalized and miss between six and seven weeks of work.

After fleeing the scene of the attack on Shaw, Midgett and Russell decided to rob a bank. They stopped at a gas station and filled an empty Dr. Pepper soda bottle with gasoline. Midgett and Russell then drove to a BB&T bank branch in Indian Trail, North Carolina. Midgett told Russell that he planned to enter the bank, demand money from a teller, and, if his demand was refused, douse the teller with gasoline and ignite it.

Midgett carried through with the bank robbery plan, making off with approximately $3000. He was tried and convicted on charges of malicious damage to property used in interstate commerce resulting in personal injury (Count 1), bank robbery by force or violence (Count 2), and putting in jeopardy the life of another by use of a dangerous weapon or device in committing a bank robbery by force or violence (Count 3). On the malicious damage charge he received a sentence of 360 months, with concurrent life sentences on the other two counts.

Midgett made several arguments on appeal, challenging both his conviction and sentences, which were all save one briefly dealt with and rejected by the Fourth Circuit.

The court rejected Midgett's arguments that the district court erred when it (1) denied his pretrial request to plead guilty to Count 2, (2) denied his motion for judgment of acquittal on Count 3, (3) allowed him to be placed in leg restraints during his trial, (4) denied his request for injections of the painkiller Nubain (even though medical science says the condition Midgett claimed to have did not cause pain), (5) excluded from evidence an exculpatory letter allegedly written by his coconspirator and onetime girlfriend and limiting the use of other letters also purportedly written by her to impeachment, (6) limited the direct examination of Midgett; (7) limited Midgett’s cross-examination of his girlfriend, and (8) acted out of bias against Midgett.

As to sentences, court rejected Midgett’s argument that the district court erred in declining to continue his sentencing hearing and contravened his constitutional rights in enhancing his sentences on Counts 2 and 3 based on his prior convictions. However, the court did agree that the district erred in imposing separate sentences on Counts 2 and 3, as one was a lesser included offense of the other, vacated the sentences on those counts, and remanded for resentencing.

Lenient Sentences for Tax Protestors Vacated

US v. Baucom: Baucom and his codefendant ran a land surveying and computer consulting business. Between 1990 and 2002, they filed neither personal nor business related tax returns. Why? Because they're tax protestors. Their beliefs regarding the constitutionality of the tax system led to multiple pretrial delays as they unsuccessfully tried to find counsel willing to put forward those arguments. The district court eventually ran out of patience. Baucom and chum proceeded pro se and were convicted. At sentencing, they were granted credit for acceptance of responsibility and their failure to pay state income taxes were excluded from relevant conduct calculations. In addition, the district court imposed sentences below the advisory Guideline range on the theory that there was little deterrent impact for tax protestors when long sentences were imposed.

Both sides appealed. Baucom and colleague appealed their convictions, arguing that they were denied their Sixth Amendment right to counsel. The Fourth Circuit made quick work of that argument, noting the lengths to which the district court went to ensure that they had time to find counsel and the offers to appoint counsel.

The Government appealed the sentences, both on Guideline calculation grounds and as to the reasonableness of the sentences imposed. On the Guideline issues, the Fourth Circuit concluded that the district court had erred in two ways. First, the district court improperly excluded the North Carolina taxes Baucom and his codefendant failed to pay during their scheme, noting that they were "part of the same course of conduct or common scheme or plan" as their failure to pay federal taxes. Second, the court concluded that the district court should not have awarded Baucom and codefendant credit for acceptance of responsibility, based on their obstructive behavior and factual arguments made during trial. Finally, the court, while not reaching the issue directly, rejected the district court's argument about deterrence, noting that the Guideline commentary specifically emphasizes deterrence in tax cases due to the low number of prosecutions.

Upward Variance for Steroid Scheme Upheld

US v. Shortt: Shortt was a South Carolina doctor who ran a 7-year scheme in which he provided steroids and human growth hormone to athletes (including some of the Carolina Panther, apparently). In addition to providing the substances, he helped craft means by which the use of those substances could be hidden from officials and testers. Charged in a 43-count indictment with conspiracy and substantive distribution charges, Shortt eventually pleaded guilty to the conspiracy charge. Shortt's Guideline calculations produced an advisory range of 0-6 months. At sentencing, the Government moved for an upward variance, arguing that the Guidelines did not adequately address Shortt's conduct (there is no Guideline dealing with human growth hormone, for instance). The district court agreed and sentenced Shortt to 12 month and 1 day in prison.

On appeal, Shortt argued that his sentence was unreasonable. The Fourth Circuit disagreed, upholding the district court's findings regarding the scope and seriousness of Shortt's offense and his general lack of contrition (in spite of getting credit for acceptance of responsibility). Along the way, the court makes some bold statements about the purposes of sentencing and the proper consideration of sentences (as Doug Berman highlights here).

Post-Arrest Distribution in Jail Not Relevant Conduct

US v. Dugger: Dugger was charged with distribution of crack based on a controlled buy made in Huntington, West Virginia. Denied bond, he was shipped to Carter County, Kentucky. While there, he joined with other inmates and guards to bring in and distribute marijuana and Xanax. The scheme was detected and Dugger freely admitted his role in it. There is no indication that he has been charged with an offense related to that conduct. At sentencing, Dugger was denied credit for acceptance of responsibility due to his participation in the Carter County scheme. He was also assessed a two-level enhancement under USSG 2D1.1(b)(3) because "the object of the offense was the distribution of a controlled substance in a prison . . .." He received a sentence of 121 months, the bottom of the advisory Guideline range.

On appeal, Dugger made two arguments. First, he argued that this Carter County conduct did not support denying him credit for acceptance of responsibility because it was unrelated to his offense of conviction and he admitted his responsibility for that conduct. The Fourth Circuit quickly rejected that argument, noting that post-arrest drug dealing hardly shows that someone charged with distribution of crack has accepted responsibility for his actions. Second, Dugger argued that the 2D1.1(b)(3) enhancement was not applicable because the Carter County conduct was not related to the offense of conviction. The Fourth Circuit agreed, concluding that the Carter County scheme was not part of the relevant conduct of the crack distribution charge. Dugger's sentence was vacated and remanded for further proceedings.

Congrats (again) to CJA panel member Troy Giatras on the win.

Look-a-Like Drug Conviction = Controlled Substance Offense Under 2K2.1

US v. Mills: Mills was stopped in his car in Baltimore. During a consensual search, an officer found 120 rounds of ammunition. A later search at Mills's business uncovered a stash of guns and associated paraphernalia. Mills eventually pleaded guilty to being a felon in possession of ammunition. At sentencing, the issue was whether Mills's base offense level under USSG 2K2.1 should be 24 or 20, based on his prior convictions. Mills contended that his prior Maryland conviction for "possession with intent to distribute look-a-like controlled dangerous substances" was not a "controlled substance offense" sufficient to support the higher base offense level (he admitted another prior conviction that fit the definition of "crime of violence"). The district court disagreed, set the base offense level at 24, and sentenced Mills to 70 months in prison.

On appeal, the Fourth Circuit affirmed Mills's sentence. The court concluded that the term "counterfeit substance," as used in USSG 4B1.2(b) and to which 2K2.1 cross references, was not defined by the Guidelines and therefore retained its plain meaning. Under that plain meaning, Mills's prior offense - which involved distributing substances that were not narcotics under the false pretense that they were - involved a counterfeit substance and therefore was a controlled substance offense. The court rejected Mills's attempt to read the definition of "counterfeit substance" from 21 USC 802(7) (which involves falsely labelled prescription drugs) into 4B1.2(b), noting that the Sentencing Commission knows how to cross reference to specific statutory definitions and it's failure to do so in this case must have been intentional. The court also rejected Mills's argument that the fact that simulated drug offenses are not counted for career offender purposes required a definition of counterfeit substance different from the plain meaning.

Court Reverses Suppression Due to Illegal Arrest; Scolds Government in the Process

US v. McNeill: A Baltimore police officer responded to a 911 call from a nearby convenience store. When he arrived, he found McNeill standing next to a woman and her children who were exiting a phone booth. The woman approached the officer, with McNeill in pursuit, and said that she wanted McNeill to leave her alone and that he had been "following her and messing with her." McNeill tried to interject his version of the situation into the discussion but was told by the officer to "chill out." McNeill decided that discretion was not called for and said to the woman "I'm going to get you, bitch, for this." The officer arrested McNeill for committing "assault by threat." While in custody with the Baltimore PD, McNeill, for reasons not hinted at in the opinion, confessed to participating in two bank robberies.

McNeill was charged with two counts of bank robbery under 18 USC 2113(a). He moved to suppress the statements as the fruit of an illegal arrest, claiming that he did not commit an offense in the presence of the officer who arrested him without a warrant. The district court granted that motion and the Government instigated an interlocutory appeal. As has been its recent trend, the Government failed to file the required certification for such an appeal under 18 USC 3731 until six months after the notice of appeal was filed (i.e., six months late) and it was filed in the wrong court, to boot.

McNeill moved the Fourth Circuit to dismiss the appeal due to the Government's failure to follow the requirements of section 3731. After noting the Government's repeated failures to comply with 3731 in recent years (see Hatfield & Dequasie) and a similar failure in another pending case, the court noted:

In this case, we are presented with the unfortunate fact that after our repeated warnings in 2004, the government continued to neglect the statutory requirements as we construed them. At the least, the government's failures are shameful lapses in professionalism. To his credit, however, the U.S Attorney himself stepped into this case to address the problem. He noted that the Assistant U.S. Attorneys involved in this case and in [the other pending case] were not personally aware of our 2004 decisions and that the requirements of those decisions were not reflected in the manuals used by Assistant U.S. Attorneys.

Emphasis added. Nonetheless, after restating once and for all that the 3731 certification must be filed along with the notice of appeal, the court applied the seven-factor test set forth in Hatfield and concluded that dismissal was not warranted in this case as a remedy for the Government's shortcomings. Thus the court, once again, gives lip service to the importance of the Government actually playing by the rules without actually imposing any negative consequences for failing to do so.

On the merits, McNeill fared no better. While the court initially questioned whether there was an "in the presence" requirement under the Fourth Amendment for warrantless misdemeanor arrests, it concluded that it need not resolve the issue in this case because McNeill did commit an offense in the officer's presence. To be fair, he did not commit "assault by threat," as it is not a crime in Maryland. However, noting that the arrest would be upheld if any offense was committed, regardless of the one given as the reason for arrest at the time, the court held that McNeill committed the Maryland offense of harassment (Md. Code Ann., Crim. Law 3-803). The officer therefore had probable cause to make the arrest and the later statements McNeill made regarding the bank robberies were thus not fruit of an illegal arrest.

Lack of Notice of Upward Variance Does Not Require Remand

US v. McClung: McClung was an assistant state school superintendent who was responsible for, among other things, getting the Mingo County (WV) school system running again after a series of devastating floods. During his tenure, McClung renewed an old friendship with Philip "Porkchop" Booth, who ran several businesses that sold furniture and other supplies. McClung basically funnelled business Porkchop's way in return for cash. As a result, McClung pleaded guilty to extortion and filing a false tax return. His Guideline range, to which neither party objected, was 51 to 63 months. Without notice, the district court imposed a sentence of 84 months.

McClung made two arguments on appeal regarding his sentence. First, he argued that the district court erred by imposing an above-the-Guidelines sentence without notice. Because McClung did not object to the imposition of that sentence at the time, review was only for plain error. While conceding that the district court was erroneous in proceeding without notice, the court held that McClung could not show any prejudice from the error. He filed a sentencing memorandum that addressed the 3553(a) factors and included a long letter addressing his personal conduct and remorse. Because McClung could not point to any other argument he might have made had he been given notice, the court rejected that argument. Second, and similarly, McClung argued that his sentence was unreasonable. For reasons similar to the first issue, the Fourth Circuit disagreed and upheld McClung's sentence.

Court Upholds Conspiracy and Gun Convictions

US v. Wilson: Wilson and his codefendants were convicted of conspiracy to distribute drugs and firearm offenses. They raised various arguments regarding their trial, all of which the Fourth Circuit rejected. First, the court held that the district court properly allowed a detective to testify as an expert witness regarding "drug lingo" and "translate" numerous phone conversations among the conspirators. There were individual questions/answers which went beyond the scope of proper expert testimony that were not objected to by Wilson, the they did not rise to the level of plain error. Second, the court rejected several challenges to the jury instructions, applying plain error review (although the court concluded that there were no errors to begin with) - that the district court's telling the jury that it was the only one that "has ever decided or will decide" whether the Government proved its case was an impermissible Allen charge; that the instructions failed to require the jury to find the existence of an unlawful agreement before determining who was a part of it; and that the examples of conspiracies provided by the district court of too nearly tracked the facts of this case. Third, the court concluded that the Government's filings in support of the warrants used to wiretap the conspirators' phones were sufficient. Finally, the court rejected challenges to the sufficiency of the evidence.