US v. Reid: Reid and his co-defendants were charged with (among other things), conspiracy to distribute more than 50 grams of crack and murder. Reid acted as a sort of middle man, purchasing powder cocaine for conversion into crack as well as amounts of crack that were then sold to street-level dealers. After being arrested on state charges, Reid told co-defendants he thought he was set up by an informant, who was eventually murdered. Reid's role in the actual killing was to provide transportation and disposal of the murder weapon. At trial, Reid was convicted, but on the crack count the jury did not return a verdict indicated the specific amount of crack involved. He was sentenced to 240 months in prison on the conspiracy charge and life on the murder charge.
On appeal, Reid argued (via plain error) that the district court's instructions left the jury with three options: convict of conspiracy involving more than 50 grams of crack, convict of more than 5 but less than 50 grams of crack, or acquit. The Fourth Circuit agreed, in a strange way, holding that the district court did indeed err in its instructions to the jury, but only because it tied the crack amounts to a "guilty" verdict in the first place. As the Fourth explains:
in order to obtain a conviction on Count 1, the government was required to prove that (1) an agreement to possess cocaine with intent to distribute existed between two or more persons; (2) Reid knew of the conspiracy; and (3) Reid knowingly and voluntarily became a part of this conspiracy. In instructing the jury that a specific drug quantity was an element of conviction under § 841(a), the district court misstated the law and heightened the government’s burden of proof.
(citation omitted). So there was error and it was plain, but Reid could not show prejudice because the sentence he received on that count (240 months) was the maximum allowed for a conviction without regard to a specific amount of crack. The court also rejected Reid's sufficiency challenge to his convictions.
Wednesday, April 23, 2008
Wednesday, April 16, 2008
Double Jeopardy No Bar to Arson, Mail Fraud, and Use of Fire Convictions
US v. Martin: Martin was the owner of an unsuccessful convenience store in Virginia. She was deep in debt, both the creditors and the commonwealth, and failed when she tried to sell the business. Unfortunately, at that point, she told others that she would "torch" the store "if she had the guts" and that "it's not going to be long and I'm not going to have to worry about any of it anyway." Ultimately, the store burned down. After collecting insurance proceeds for the fire, Martin was charged with staging the whole thing for her benefit. Specifically, she was charged with arson, using fire to commit another felony, mail fraud, and making false statements. She was convicted by a jury on all charges.
On appeal, Martin raised two arguments. First, she argued that the evidence was insufficient to sustain convictions for arson and use of fire. The Fourth Circuit rejected that argument, noting that while there was no direct evidence linking Martin to the fire, there was sufficient circumstantial evidence (motive, she was the last person in the building, lying to investigators) for a reasonable jury to conclude that she was guilty. Second, martin argued that her simultaneous convictions for arson, use of fire, and mail fraud violated the Double Jeopardy clause. Again, the Fourth Circuit disagreed, holding that separate sentence for use of fire was clearly meant to apply as punishment in addition to the underlying crime (mail fraud, in this case) and that arson and use of fire are separate offenses when analyzed under the Blockburger test.
On appeal, Martin raised two arguments. First, she argued that the evidence was insufficient to sustain convictions for arson and use of fire. The Fourth Circuit rejected that argument, noting that while there was no direct evidence linking Martin to the fire, there was sufficient circumstantial evidence (motive, she was the last person in the building, lying to investigators) for a reasonable jury to conclude that she was guilty. Second, martin argued that her simultaneous convictions for arson, use of fire, and mail fraud violated the Double Jeopardy clause. Again, the Fourth Circuit disagreed, holding that separate sentence for use of fire was clearly meant to apply as punishment in addition to the underlying crime (mail fraud, in this case) and that arson and use of fire are separate offenses when analyzed under the Blockburger test.
Monday, April 14, 2008
Civil Arrest Does Not Start Speed Trial Clock
US v. Rodriguez-Amaya: Rodriguez-Amaya was deported in 1998 to El Salvador following a conviction in Virginia for sexual assault. He returned to the United States without permission and was arrested by ICE on May 17, 2005. On June 6, 2005, Rodriguez-Amaya's custody was transferred from ICE to Virginia, which sought to prosecute him for failure to register as a sex offender. While in Virginia custody, a federal criminal warrant charging Rodriguez-Amaya with illegal reentry was obtained on July 21, 2005. Rodriguez-Amaya was returned to ICE custody on October 7, 2005. It was not until October 27, 2005, that the outstanding criminal warrant was executed and Rodriguez-Amaya was transferred to the USMS. On November 23, 2005, Rodriguez-Amaya was indicted. Prior to trial, he moved to dismiss the indictment under the Speed Trial Act due to the delay from being returned to ICE custody on October 7 to indictment on November 23. The district court denied the motion, convicted Rodriguez-Amaya, and sentenced him to 41 months in prison.
On appeal, the Fourth Circuit affirmed the district court's denial of Rodriguez-Amaya's motion. The court held that the Speedy Trial Act clock did not start running until the federal criminal warrant was executed on October 27. The court followed the lead of other Circuits and concluded that the civil detention, as in this case by ICE, does not trigger the running of the STA clock. However, the court also held that there is a "ruse exception" to that rule, which applies when "the 'primary or exclusive purpose of the civil detention was to hold [a defendant] for future criminal prosecution.'" The court had "little trouble" concluding that there was no evidence of such shenanigans in this case.
On appeal, the Fourth Circuit affirmed the district court's denial of Rodriguez-Amaya's motion. The court held that the Speedy Trial Act clock did not start running until the federal criminal warrant was executed on October 27. The court followed the lead of other Circuits and concluded that the civil detention, as in this case by ICE, does not trigger the running of the STA clock. However, the court also held that there is a "ruse exception" to that rule, which applies when "the 'primary or exclusive purpose of the civil detention was to hold [a defendant] for future criminal prosecution.'" The court had "little trouble" concluding that there was no evidence of such shenanigans in this case.
Court Defines "Abuse" in Sex Offnse/Immigration Context
US v. Diaz-Ibarra: Diaz-Ibarra was deported in 1995 following his conviction in Georgia for committing an "immoral or indecent act to or in the presence of a" minor. After returning to the United States without permission, Diaz-Ibarra pleaded guilty to illegal reentry following an aggravated felony. At sentencing, the probation officer recommended that Diaz-Ibarra's sentence be increased 16 levels because his Georgia conviction constituted a crime of violence under USSG 2L1.2(b)(1)(A)(ii). The district court overruled Diaz-Ibarra's objection and applied the enhancement, sentencing him to 78 months in prison.
On appeal, the Fourth Circuit affirmed, concluding that Diaz-Ibarra's prior conviction was a crime of violence. Specifically, "crime of violence" in 2L1.2 is defined as including "sexual abuse of a minor." Diaz-Ibarra conceded that his offense was "sexual" and involved a minor, but argued but it was not "abuse." Applying a definition of abuse that goes well beyond the common sense one, the court concluded that "abuse" included situations where there is no physical contact between the assailant and minor where the assailant intends to gratify himself sexually, regardless of the effect on the victim. Given that definition, Diaz-Ibarra's Georgia conviction constituted sexual abuse of a minor and, thus, a crime of violence.
On appeal, the Fourth Circuit affirmed, concluding that Diaz-Ibarra's prior conviction was a crime of violence. Specifically, "crime of violence" in 2L1.2 is defined as including "sexual abuse of a minor." Diaz-Ibarra conceded that his offense was "sexual" and involved a minor, but argued but it was not "abuse." Applying a definition of abuse that goes well beyond the common sense one, the court concluded that "abuse" included situations where there is no physical contact between the assailant and minor where the assailant intends to gratify himself sexually, regardless of the effect on the victim. Given that definition, Diaz-Ibarra's Georgia conviction constituted sexual abuse of a minor and, thus, a crime of violence.
Friday, April 11, 2008
Supreme Court's Decision in Lopez Applies at Sentencing
US v. Matamoros-Modesta: Matamoros-Modesta pleaded guilty to illegal reentry. At sentencing, it was determined that he had previously been deported following an "aggravated felony" conviction, in Texas, for possession of cocaine. As a result, his offense level doubled and he was sentenced to 37 months in prison. Between plea and sentencing, the Supreme Court decided Lopez v. Gonzales, 127 S.Ct. 625 (2006), in which the Court held that, in the immigration context, a prior conviction for a drug offense that was a felony offense under state law but not the Controlled Substances Act was not an "aggravated felony." But nobody noticed, so the aggravated sentence was imposed.
On appeal, the Government and defense agreed that the district court plainly erred by imposing the enhanced sentence. The Fourth Circuit agreed, as well, following the lead of numerous other courts in importing Lopez's holding into the sentencing process. It therefore vacated Matamoros-Modesta's sentence and remanded for resentencing.
Congrats to the WDNC FPD office on the win!
On appeal, the Government and defense agreed that the district court plainly erred by imposing the enhanced sentence. The Fourth Circuit agreed, as well, following the lead of numerous other courts in importing Lopez's holding into the sentencing process. It therefore vacated Matamoros-Modesta's sentence and remanded for resentencing.
Congrats to the WDNC FPD office on the win!
Tuesday, April 08, 2008
Failure to Inform Defendant of Possible ACCA Impact Requires Vacation of Guilty Plea
US v. Hairston: Hairston was charged with 31 separate offenses, including 14 felon-in-possession charges and 8 924(c) charges. He entered into a plea agreement by which he pleaded guilty to two of the 924(c) charges, with the other six dismissed, and all the other offenses. The parties agreed that with the application of the 924(c) mandatory sentences, he was subject to a term of at least 30 years in prison. However, prior to sentencing it was discovered that Hairston qualified as an Armed Career Criminal, which subjected him to a term of at least 45 years in prison (30 years on the 924(c) charges plus 15 for any of the felon-in-possession charges). At sentencing, the Government admitted that the parties "overlooked" the possibility of the ACCA applying. Hairston himself objected to a 45-year sentence and asked to withdraw his plea. The district court denied the motion, noting that Hairston was never promised he would only receive a 30-year sentence and that his Guideline range on the various offenses, without taking the ACCA into account, was 168-210 months. Therefore, any confusion about the potential sentence was "not significant."
On appeal, the Fourth Circuit vacated and remanded. Hairston argued that the district court failed in not notifying him at the plea hearing that he could be subject to a 15-year term on the felon-in-possession charges. The Government conceded the error. The Fourth Circuit agreed, noting that while Rule 11 does not require courts to inform defendants of what Guideline range they might face, it does require notification of any applicable statutory ranges. Furthermore, the error was not harmless. Without the ACCA enhancement, the district court could have imposed a minimal non-Guideline sentence on the counts without mandatory minimum sentences, effectively sentencing Hairston to only(!) 30 years in prison. For a remedy, the Fourth Circuit vacated Hairston's guilty plea with respect to all counts, not just the felon-in-possession counts, as requested by the Government.
On appeal, the Fourth Circuit vacated and remanded. Hairston argued that the district court failed in not notifying him at the plea hearing that he could be subject to a 15-year term on the felon-in-possession charges. The Government conceded the error. The Fourth Circuit agreed, noting that while Rule 11 does not require courts to inform defendants of what Guideline range they might face, it does require notification of any applicable statutory ranges. Furthermore, the error was not harmless. Without the ACCA enhancement, the district court could have imposed a minimal non-Guideline sentence on the counts without mandatory minimum sentences, effectively sentencing Hairston to only(!) 30 years in prison. For a remedy, the Fourth Circuit vacated Hairston's guilty plea with respect to all counts, not just the felon-in-possession counts, as requested by the Government.
Friday, March 21, 2008
Court Rejects Diminished Capacity Argument, Touches on Crack Guideline Changes
US v. Brewer: Brewer pleaded guilty to distributing crack. Prior to sentencing, it was established that Brewer suffered from serious mental deficits, with a tested IQ as low as 59. At sentencing, he argued for a downward departure under USSG 5K2.13 for diminished capacity. The court rejected that invitation, because based on a review of Brewer's evidence that he was "impulsive and a follower" and therefore posed a danger to society. The court then imposed a sentence of 70 months in prison. It's unclear from decision if Brewer also asked for a Booker variance on similar grounds.
Brewer appealed his sentence, which the Fourth Circuit affirmed. First, the court reasserted its holding that it cannot review a district court's decision not to depart except on the ground that the court was incorrect in its ability to depart. As there was no question that the district court knew it could depart and chose not to do so, the Fourth left that decision intact. Second, the Fourth Circuit held that Brewer's sentence was not unreasonable, given that it was at the bottom of the advisory Guideline range. The court took the opportunity, in the course of its reasonableness review, to address the recent change to the crack Guideline, holding that it would not remand the case for the district court to consider the amended Guidelines, leaving that to a future proceeding under 18 USC 3582(c)(2).
Brewer appealed his sentence, which the Fourth Circuit affirmed. First, the court reasserted its holding that it cannot review a district court's decision not to depart except on the ground that the court was incorrect in its ability to depart. As there was no question that the district court knew it could depart and chose not to do so, the Fourth left that decision intact. Second, the Fourth Circuit held that Brewer's sentence was not unreasonable, given that it was at the bottom of the advisory Guideline range. The court took the opportunity, in the course of its reasonableness review, to address the recent change to the crack Guideline, holding that it would not remand the case for the district court to consider the amended Guidelines, leaving that to a future proceeding under 18 USC 3582(c)(2).
Wednesday, March 12, 2008
Aggravated ID Theft Requires Use of Specific Person's Information
US v. Mitchell: Mitchell undertook a scheme in which he bought merchandise with a fake ID using counterfeit checks and later returned the items for cash refunds. The name on the checks and the fake ID was "Marcus Jackson" who had a specific listed address. Mitchell was charged with bank fraud and aggravated identity theft. He pleaded guilty to the fraud charge, but had a bench trial on the identity theft, testifying that he didn't know anyone named "Marcus Jackson" and got the name out of a phone book. Although police did identify two Marcus Jacksons in the state, neither address matched the one on the ID and checks. Mitchell argued that to secure a conviction for aggravated identity theft, the Government had to prove the use of another specific person's identity, while the Government argued that it was sufficient that someone with the same name was located as a potential victim. The court convicted Mitchell.
On appeal, the Fourth Circuit reversed. The court held that the plain meaning of 18 USC 1028A requires the use of a means of identification that "may be used to identify a specific individual." Ordinarily, a name standing alone would not be sufficient to meet that requirement. While a couple of other bits of information on the fake ID matched one of the real Marcus Jacksons, they were so vague as to not show that Mitchell was presenting himself as a real Marcus Jackson. Because only the name in this case could be traced to a specific person, the Government failed to meet its burden of proof. Mitchell's conviction was reversed and his case remanded for resentencing.
On appeal, the Fourth Circuit reversed. The court held that the plain meaning of 18 USC 1028A requires the use of a means of identification that "may be used to identify a specific individual." Ordinarily, a name standing alone would not be sufficient to meet that requirement. While a couple of other bits of information on the fake ID matched one of the real Marcus Jacksons, they were so vague as to not show that Mitchell was presenting himself as a real Marcus Jackson. Because only the name in this case could be traced to a specific person, the Government failed to meet its burden of proof. Mitchell's conviction was reversed and his case remanded for resentencing.
Acquittal on Substantive Drug Charges Doesn't Bar Further Prosecution for Drug Conspiracy
US v. Yearwood: Yearwood was originally charged with conspiracy to distribute crack and distribution/aiding and abetting the distribution of crack. At his first trial, he was acquitted on the distribution charge and the jury hung on the conspiracy charge. At a second trial on the conspiracy charge, Yearwood argued that Double Jeopardy precluded the second prosecution, arguing that in acquitting him on the distribution charge the first jury resolved an issue of ultimate fact needed to find him guilty on the conspiracy charged. The district court rejected that argument and Yearwood was convicted
The Fourth Circuit affirmed, concluding no Double Jeopardy violation occurred. First, the court determined that distribution and conspiracy have distinct elements and thus are not the same offense. It rejected Yearwood's attempt to link the "knowingly associate" element of aiding and abetting with the conspiracy element of "knowingly and voluntarily" becoming part of the conspiracy. Second, the court concluded that the collateral estoppel element of Double Jeopardy was not violated, as the conspiracy charge did not require the relitigation of factual issues resolved in the first trial. In doing so, it followed cases from the Fifth and Eleventh Circuits. The court also turned away Yearwood's challenge to the sufficiency of the evidence underlying his conviction.
The Fourth Circuit affirmed, concluding no Double Jeopardy violation occurred. First, the court determined that distribution and conspiracy have distinct elements and thus are not the same offense. It rejected Yearwood's attempt to link the "knowingly associate" element of aiding and abetting with the conspiracy element of "knowingly and voluntarily" becoming part of the conspiracy. Second, the court concluded that the collateral estoppel element of Double Jeopardy was not violated, as the conspiracy charge did not require the relitigation of factual issues resolved in the first trial. In doing so, it followed cases from the Fifth and Eleventh Circuits. The court also turned away Yearwood's challenge to the sufficiency of the evidence underlying his conviction.
Wednesday, February 27, 2008
No Error Where Distrcict Court Doesn't Know Whether Guidelines Are Still Mandatory
US v. Go: Go was a gopher in a methamphetamine distribution conspiracy. For his role in the offense - mostly running errands related to the conspiracy in return for methamphetamine - he was convicted after a jury trial of conspiracy to distribute more than 50 grams of methamphetamine. At sentencing, Go's advisory Guideline range was determined to be 188 to 235 months. Go argued for a variance down to the 10-year mandatory minimum, while the Government argued for a sentence at the bottom of the advisory Guideline range. The district court imposed a sentence of 188 months in prison.
On appeal, Go argued that the district court incorrectly concluded that it could not impose a sentence below the bottom of the advisory Guideline range without committing reversible error. At sentencing, the district court said, in part:
It's worth noting that, in a footnote, the court noted that Go did not claim that the district court treated the Guidelines as presumptively reasonable and that "if the district court had done so, it would have erred." Still, it's hard to see how a district court that concludes the Guideline range is the "range of punishment that I have to choose from" set forth by Congress hasn't done just that.
On appeal, Go argued that the district court incorrectly concluded that it could not impose a sentence below the bottom of the advisory Guideline range without committing reversible error. At sentencing, the district court said, in part:
The Fourth Circuit rejected Go's argument, deriding his "selective" use of the record, and holding that the district court ultimately imposed the sentence it did because it was consistent with the other sentences handed out in the case. The court held that it was "clear from the sentencing record that the district court was not under the misapprehension that it could not impose a sentence outside of the advisory Guidelines range." The court also rejected Go's argument that his sentence was unreasonable.[The presumption of reasonableness] may mean that the guidelines are still mandatory. I don't know. But it sure sounds like when they say that they're reasonable that they're saying if a judge gives a sentence outside the guidelines, then it's per se not reasonable.
There are cases that say that it is not a proper application of the law and maybe some day the Supreme Court will decided that [see Rita, Gall, etc.]. But the point is at this moment, I'm bound to apply the guidelines as a reasonable range of punishment.* * *
Congress has set forth a range of punishment that I have to choose from, and that range of punishment is what I said earlier, 188 to 235 months.
It's worth noting that, in a footnote, the court noted that Go did not claim that the district court treated the Guidelines as presumptively reasonable and that "if the district court had done so, it would have erred." Still, it's hard to see how a district court that concludes the Guideline range is the "range of punishment that I have to choose from" set forth by Congress hasn't done just that.
Wednesday, February 13, 2008
Court Affirms Drug & Gun Convictions
US v. Wallace: Wallace was convicted by a jury of several drug and gun offenses and sentenced to 248 months in prison. Wallace's activities came to light after local police were called to an apartment he shared to investigate a domestic disturbance. A maroon van with two men in it was seen leaving the apartment complex and later stopped. Wallace and a codefendant (who pleaded guilty) were inside, along with several firearms, drugs, and cash.
On appeal, the Fourth Circuit affirmed both Wallace's convictions and his sentence. The court rejected Wallace's argument that he should have been granted a mistrial or immediate curative instruction when a Government witness started to discuss the details of the domestic dispute, which had been ruled off limits in a pretrial order. Counsel objected immediately, but waited until a break in the proceedings to ask for a mistrial or curative instruction. The trial court denied the mistrial and gave a curative instruction during the closing jury charge. The Fourth Circuit found no error. The court also rejected Wallace's challenge to the sufficiency of one of the firearm convictions, using a plain error review (counsel failed to move for a judgment of acquittal at trial). Finally, the court held that Wallace's sentence, within the Guideline range, was reasonable.
On appeal, the Fourth Circuit affirmed both Wallace's convictions and his sentence. The court rejected Wallace's argument that he should have been granted a mistrial or immediate curative instruction when a Government witness started to discuss the details of the domestic dispute, which had been ruled off limits in a pretrial order. Counsel objected immediately, but waited until a break in the proceedings to ask for a mistrial or curative instruction. The trial court denied the mistrial and gave a curative instruction during the closing jury charge. The Fourth Circuit found no error. The court also rejected Wallace's challenge to the sufficiency of one of the firearm convictions, using a plain error review (counsel failed to move for a judgment of acquittal at trial). Finally, the court held that Wallace's sentence, within the Guideline range, was reasonable.
Government Victory in Mann Act Appeals
US v. Singh: Singh and co-defendant Patel were managers of motels in Martinsburg, West Virginia. They became involved in a prostitution ring run by Susan Powell in which prostitutes recruited from West Virginia, Virginia, and Maryland would use rooms in Singh and Patel's motels to conduct their business. Powell would communicate with the prostitutes using the motel switchboards and had an arrangement with Singh and Patel wherein they would be paid for use of the rooms, but the rooms would be empty early enough in the afternoon to allow them to be rented to "regular" customers. Singh, Patel, and the company that owned Patel's motel were charged and convicted of conspiracy to violate the Mann Act, substantive violations of the Mann Act, conspiracy to launder money, and substantive money laundering counts. An order of forfeiture seizing more than $670,000, in addition to the two motels. Following post-trial motions, the district court vacated all the convictions against the company (and accompanying forfeitures) and the money laundering convictions against Singh and Patel. They were sentenced to 15 months in prison.
The Government appealed the district court's post-trial rulings and the Fourth Circuit reversed. As to the money laundering charges, the court rejected the district court's reasoning that the money Powell's prostitutes paid to Singh and Patel for the use of the motel rooms were separate from the underlying Mann Act offense. The court concluded that the Mann Act violation was complete once money was paid for sex and the later passage of some of those funds to the motel managers promoted that unlawful activity. The court also reversed the district court's conclusion regarding the company, holding that Patel's actions at his motel were undertaken within the scope of his employment.
Singh and Patel also appealed. First, the challenged the sufficiency of the evidence supporting the Mann Act convictions. They argued that they neither induced the prostitutes' interstate travel nor knew of Powell's inducements. The Fourth Circuit rejected that argument, noting that the Singh and Patel required the prostitutes to fill out registration forms on which they listed their out of state addresses. The court also noted that given Martinsburg's proximity to Virginia, Maryland, and Pennsylvania, it was reasonable that Singh and Patel knew that Powell would recruit from those areas. Second, the court rejected the argument that the district court erred by preventing Singh and Patel from offering evidence that Powell's daughters were involved in the prostitution ring and Powell made a deal with the Government party to shield them from prosecution. Third, the court rejected Singh and Patel's Batson argument regarding the only minority juror struck by the Government. Finally, the court held that Singh and Patel were properly tried together.
As a result, the entire case was remanded to the district court for resentencing in light of the original verdict being reinstated.
The Government appealed the district court's post-trial rulings and the Fourth Circuit reversed. As to the money laundering charges, the court rejected the district court's reasoning that the money Powell's prostitutes paid to Singh and Patel for the use of the motel rooms were separate from the underlying Mann Act offense. The court concluded that the Mann Act violation was complete once money was paid for sex and the later passage of some of those funds to the motel managers promoted that unlawful activity. The court also reversed the district court's conclusion regarding the company, holding that Patel's actions at his motel were undertaken within the scope of his employment.
Singh and Patel also appealed. First, the challenged the sufficiency of the evidence supporting the Mann Act convictions. They argued that they neither induced the prostitutes' interstate travel nor knew of Powell's inducements. The Fourth Circuit rejected that argument, noting that the Singh and Patel required the prostitutes to fill out registration forms on which they listed their out of state addresses. The court also noted that given Martinsburg's proximity to Virginia, Maryland, and Pennsylvania, it was reasonable that Singh and Patel knew that Powell would recruit from those areas. Second, the court rejected the argument that the district court erred by preventing Singh and Patel from offering evidence that Powell's daughters were involved in the prostitution ring and Powell made a deal with the Government party to shield them from prosecution. Third, the court rejected Singh and Patel's Batson argument regarding the only minority juror struck by the Government. Finally, the court held that Singh and Patel were properly tried together.
As a result, the entire case was remanded to the district court for resentencing in light of the original verdict being reinstated.
Tuesday, February 05, 2008
Jury Trial Waiver Without Court Examination OK'd
US v. Boynes: Boynes was charged with drug and firearm offenses arising from "a cocaine deal that degenerated into a murder." Prior to trial, Boynes requested new counsel, alleging that the relationship with his initially appointed counsel had become "adversarial." New counsel was appointed. Eventually, Boynes also requested that his new counsel be replaced, due to the "adversarial" nature of their relationship. That request was denied and trial preparations went forward. Prior to trial, counsel met with Boynes, who requested that he be tried by a judge, rather than a jury. Counsel filed the motion, the Government agreed, and the district court accepted the waiver. No hearing was held on the motion to waive a jury trial.
At trial, Boynes was convicted on all counts. Before sentencing, Boynes filed a bar complaint against counsel, resulting in the appointment of a third attorney. That attorney then filed a motion for a new trial arguing, for the first time, that Boynes's waiver of a jury trial was not knowing and voluntary. After a hearing, which included testimony from counsel #2 but not Boynes, the district court denied the motion. Boynes was sentenced to life in prison, plus 480 months.
On appeal, Boynes argued that his jury trial waiver was not knowing and voluntary. Specifically, he argued that the district court should have undertaken some on the record inquiry into Boynes's wishes, particularly given the strained relationship he had with counsel. The Fourth Circuit disagreed, 2-1, and upheld the conviction. The court held that, although it is better practice to make such inquiries, it is not required by either the Rules of Criminal Procedure or the Sixth Amendment. Dissenting, Judge Gregory argued that the determination of whether a waiver of a jury trial is knowing and voluntary cannot be made post-trial and therefore must be resolved before a bench trial goes forward.
At trial, Boynes was convicted on all counts. Before sentencing, Boynes filed a bar complaint against counsel, resulting in the appointment of a third attorney. That attorney then filed a motion for a new trial arguing, for the first time, that Boynes's waiver of a jury trial was not knowing and voluntary. After a hearing, which included testimony from counsel #2 but not Boynes, the district court denied the motion. Boynes was sentenced to life in prison, plus 480 months.
On appeal, Boynes argued that his jury trial waiver was not knowing and voluntary. Specifically, he argued that the district court should have undertaken some on the record inquiry into Boynes's wishes, particularly given the strained relationship he had with counsel. The Fourth Circuit disagreed, 2-1, and upheld the conviction. The court held that, although it is better practice to make such inquiries, it is not required by either the Rules of Criminal Procedure or the Sixth Amendment. Dissenting, Judge Gregory argued that the determination of whether a waiver of a jury trial is knowing and voluntary cannot be made post-trial and therefore must be resolved before a bench trial goes forward.
Monday, February 04, 2008
Court Affirms Involuntary Servitude Convictions Against Hearsay, Crawford Challenges
US v. Udeozor: Udeozor: and her (now former) husband helped a 14-year old Nigerian girl emigrate to the United States. They told her family that she would be enrolled in school, but she wasn't. In fact, she became basically an indentured servant, working for the family for five years without payment or any kind of compensation. She was repeatedly subjected to physical, emotional, and (by Udeozor's husband) sexual abuse. Udeozor was convicted of conspiracy to hold another in involuntary servitude and harboring an alien for commercial advantage or private gain. She was sentenced to 87 months in prison and to pay restitution to the victim of over $100,000.
On appeal, the Fourth Circuit rejected several of Udeozor's arguments on the way towards upholding the convictions. First, the court held that the district court did not err by admitting evidence of Udeozor's husband's sexual abuse of the victim during Udeozor's trial. The court concluded that the use of sexual abuse to maintain control of the victim was part of the conspiracy between Udeozor and her husband, even if there was conflicting evidence as to whether she knew about the abuse. Second, the court held that recordings of phone conversations between Udeozor's husband and the victim were properly admitted as statements against penal interest under FRE 804(b)(3). The court also rejected Udeozor's confrontation argument, holding that her husband's statements (made to the victim who was acting at police behest) were not "testimonial" and thus not subject to a Crawford analysis. Finally, the court held that the district court did not abuse its discretion by using a two-page verdict form, with three special findings (on sentencing issues) on the second page.
On appeal, the Fourth Circuit rejected several of Udeozor's arguments on the way towards upholding the convictions. First, the court held that the district court did not err by admitting evidence of Udeozor's husband's sexual abuse of the victim during Udeozor's trial. The court concluded that the use of sexual abuse to maintain control of the victim was part of the conspiracy between Udeozor and her husband, even if there was conflicting evidence as to whether she knew about the abuse. Second, the court held that recordings of phone conversations between Udeozor's husband and the victim were properly admitted as statements against penal interest under FRE 804(b)(3). The court also rejected Udeozor's confrontation argument, holding that her husband's statements (made to the victim who was acting at police behest) were not "testimonial" and thus not subject to a Crawford analysis. Finally, the court held that the district court did not abuse its discretion by using a two-page verdict form, with three special findings (on sentencing issues) on the second page.
Wednesday, January 30, 2008
In-Store Movement During Roberry Supports Abduction Enhancement
US v. Osborne: Although the court sets out the facts in great detail, the short version is that Osborne robbed a Walgreen's pharmacy in Virginia. He was driven there, and presumably away, by a co-defendant, McCrae, which whom he discussed the robbery beforehand. During the robbery, Osborne brandished a knife as a means to get the pharmacist and technician to provide him with pills and to accompany him to the front door as he escaped. Both Osborne and McCrae were charged with conspiracy to rob a pharmacy, robbery of a pharmacy, and possession of OxyContin with intent to distribute. Osborne pleaded guilty to the robbery and possession charge, but went to trial on the conspiracy charge and was convicted (as was McCrae on all three counts). He was sentenced to 151 months, the top of the advisory Guideline range.
On appeal, the Fourth Circuit affirmed both his conviction and sentence. Regarding the conviction for conspiracy, Osborne argued that while the evidence was sufficient to support his role in the robbery and possession, it wasn't sufficient to prove that he conspired with McCrae. The Fourth Circuit disagreed, noting evidence of their cooperation before and after the robbery (some of it provided by Osborne's son, who overheard the preparations). As to sentencing, first Osborne argued that his Guideline should not have been enhanced for abducting the pharmacist and technician because he did not take them out of the Walgreens - in other words, to "another location." The court rejected that argument (partly relying on previous unpublished Fourth Circuit authority) and concluded that moving the pair from one part of the store to another met the definition. Second, the court rejected Osborne's argument that a prior conviction for shoplifting should not have been included in his criminal history score.
On appeal, the Fourth Circuit affirmed both his conviction and sentence. Regarding the conviction for conspiracy, Osborne argued that while the evidence was sufficient to support his role in the robbery and possession, it wasn't sufficient to prove that he conspired with McCrae. The Fourth Circuit disagreed, noting evidence of their cooperation before and after the robbery (some of it provided by Osborne's son, who overheard the preparations). As to sentencing, first Osborne argued that his Guideline should not have been enhanced for abducting the pharmacist and technician because he did not take them out of the Walgreens - in other words, to "another location." The court rejected that argument (partly relying on previous unpublished Fourth Circuit authority) and concluded that moving the pair from one part of the store to another met the definition. Second, the court rejected Osborne's argument that a prior conviction for shoplifting should not have been included in his criminal history score.
Monday, January 28, 2008
Office Experience Can Aid in Production of Reasonable Suspicion
US v. McCoy: McCoy & his girlfriend pulled into the parking lot of a grocery store in Loudon County, Virginia, that was under the surveillance of Loconti, an experienced narcotics officer. Loconti knew that a majority of drug deals in Loudon County took place in those kinds of parking lots. A tow truck pulled into the lot near McCoy. The driver of the truck and McCoy exchanged words and eventually drove down the street about 1/4 mile to another grocery store parking lot. Loconti followed. In the new lot, McCoy got out of his car, got in the truck for a few minutes, got out, and returned to his car. Loconti was convinced that a drug deal had just taken place. As McCoy walked back to his car, Loconti approached him and signaled the truck to stop. Instead, it sped away.
Loconti approached McCoy and, eventually, placed him in handcuffs. A pat-down search of McCoy produced nothing, but McCoy's girlfriend helpfully responded to Loconti's query admitting that McCoy had participated in a drug deal. A search of the car produced marijuana and cash, which McCoy admitted were his and that he had crack cocaine concealed in his hindquarters. That evidence was supplemented by a search of McCoy's home several months later. McCoy filed a motion to suppress that evidence after being charged with drug and firearms charges. The district court granted the motion, holding that when Loconti seized McCoy, he lacked reasonable suspicion to believe that criminal conduct was afoot.
The Government appalled and the Fourth Circuit reversed, 2-1. The court held that the district court improperly focused on what the officer didn't know about what was going on, rather than the totality of the information he did have. Particularly important to the court was Loconti's previous experience with drug deals occurring in grocery story parking lots. The myriad of potentially innocent behaviors that Loconti observed were sufficient, with his experience, to support reasonable suspicion. However, the court was quick to note that "[t]his is not to say that a wealth of experience will overcome a complete absence of articulable facts." District Judge Wilson concurred, emphasizing the importance of the fact that the truck sped away when Loconti went to intercept McCoy. Judge Gregory dissented, arguing that the majority's "holding renders law enforcement - not the courts - the sole arbiter of what qualifies as reasonable suspicion."
Loconti approached McCoy and, eventually, placed him in handcuffs. A pat-down search of McCoy produced nothing, but McCoy's girlfriend helpfully responded to Loconti's query admitting that McCoy had participated in a drug deal. A search of the car produced marijuana and cash, which McCoy admitted were his and that he had crack cocaine concealed in his hindquarters. That evidence was supplemented by a search of McCoy's home several months later. McCoy filed a motion to suppress that evidence after being charged with drug and firearms charges. The district court granted the motion, holding that when Loconti seized McCoy, he lacked reasonable suspicion to believe that criminal conduct was afoot.
The Government appalled and the Fourth Circuit reversed, 2-1. The court held that the district court improperly focused on what the officer didn't know about what was going on, rather than the totality of the information he did have. Particularly important to the court was Loconti's previous experience with drug deals occurring in grocery story parking lots. The myriad of potentially innocent behaviors that Loconti observed were sufficient, with his experience, to support reasonable suspicion. However, the court was quick to note that "[t]his is not to say that a wealth of experience will overcome a complete absence of articulable facts." District Judge Wilson concurred, emphasizing the importance of the fact that the truck sped away when Loconti went to intercept McCoy. Judge Gregory dissented, arguing that the majority's "holding renders law enforcement - not the courts - the sole arbiter of what qualifies as reasonable suspicion."
Exigent Circumstances Don't Save Warrantless Search of Home
US v. Mowatt: Mowatt was at his apartment when police came and knocked on the door. The police were sent there after receiving complaints about loud music and the odor of marijuana. After they knocked, the officers heard someone moving around inside. The music was turned down and they could hear the sound of an aerosol being sprayed. Mowatt talked the officers, but refused to open the door. After being reported ordered to do so, Mowatt cracked the door, but refused to let the officers inside and asked if they had a warrant. Officers were concerned that Mowatt might have a weapon in his hand, as it was shielded from view. They then forced their way into the apartment and wrestled Mowatt to the floor. He wasn't holding anything in his hand. A quick check of the apartment uncovered a gun. By that time, Mowatt struggled with the officer(s) restraining him, which ended when he was thrown against the refrigerator, which conveniently opened. Inside, officers saw several hundred pink pills. They were later seized (pursuant to a search warrant) and determined to be ecstasy. The search also uncovered more guns, body armor, and $20,000 in cash.
After being indicted for drug and firearms offenses, Mowatt moved to suppress the evidence against him, arguing that the officers engaged in an unlawful warrantless search when they barged into his home. The district court denied the motion, holding that the officers had probable cause to arrest Mowatt for marijuana possession and that a warrant wasn't required because they arrived at the apartment to "resolve a noise complaint" rather than search for drugs. Mowatt went to trial, was convicted on all counts, and was sentenced to 197 months in prison.
On appeal, the Fourth Circuit unanimously reversed. First, the court rejected the Government's argument that forcing Mowatt to open his door and thus being able to see inside was not a "search" within the meaning of the Fourth Amendment. Second, the court held that even if the officers had probable cause when the door was opened, they lacked a warrant and there were no exigent circumstances to justify proceeding without one. Third, the court held that the search warrant eventually obtained (after the forced entry, struggle with Mowatt, etc.) was tainted by the illegal entry. Mowatt's convictions were reversed and his case returned to the district court for further proceedings.
After being indicted for drug and firearms offenses, Mowatt moved to suppress the evidence against him, arguing that the officers engaged in an unlawful warrantless search when they barged into his home. The district court denied the motion, holding that the officers had probable cause to arrest Mowatt for marijuana possession and that a warrant wasn't required because they arrived at the apartment to "resolve a noise complaint" rather than search for drugs. Mowatt went to trial, was convicted on all counts, and was sentenced to 197 months in prison.
On appeal, the Fourth Circuit unanimously reversed. First, the court rejected the Government's argument that forcing Mowatt to open his door and thus being able to see inside was not a "search" within the meaning of the Fourth Amendment. Second, the court held that even if the officers had probable cause when the door was opened, they lacked a warrant and there were no exigent circumstances to justify proceeding without one. Third, the court held that the search warrant eventually obtained (after the forced entry, struggle with Mowatt, etc.) was tainted by the illegal entry. Mowatt's convictions were reversed and his case returned to the district court for further proceedings.
Thursday, January 24, 2008
Findings Needed to Support 3A1.4 Terrorism Enhancement
US v. Chandia: Chandia was charged with conspiracy and a substantive count of providing material support to terrorists and conspiracy and substantive count of providing material support to a foreign terrorist organization. The charges arose from Chandia's ties to a group called Lashkar-e-Taiba (LET), with whom he attended a training camp in Pakistan. He also provided assistance to an LET member who came to the United States to secure equipment and support for LET. After a jury trial, Chandia was convicted on all counts except the substantive count of providing material support to terrorists. At sentencing, the district court applied the terrorism enhancement under USSG 3A1.4, jumping Chandia's advisory Guideline range from 63-78 months to 360 months to life. The district court imposed the statutory maximum sentence of 180 months in prison.
On appeal, Chandia challenged both his convictions and sentence. The Fourth Circuit rejected the arguments Chandia raised with regards to his conviction. First, the court concluded the affidavits submitted to obtain warrants to search Chandia's home and car were sufficient to support probable cause and that Chandia was not entitled to a Franks hearing on the issue of inaccuracies/omissions from those affidavits (using a plain error standard because Chandia did not specifically request a Franks hearing in the district court). Second, the court rejected several constitutional arguments against the statutes under which Chandia was convicted, relying on the prior resolution of those issues in US v. Hammoud, 381 F.3d 316 (4th Cir. 2004). Third, the court rejected Chandia's argument that the counts on which he was convicted were duplicitous and violated due process. Finally, the court rejected Chandia's argument that the district court erred by allowing the Government to play for the jury excepts of a CD-ROM video glorifying the 9-11 attacks that was found in Chandia's home. Even if it was error (which the court doesn't say), the error would be harmless given the limited roll of the excerpts at trial.
While sustaining Chandia's convictions, the court did vacate his 180-month sentence. The court concluded that, although the district court utilized the Guideline range provided by the 3A1.4 terrorism enhancement, it failed to make specific findings supporting the enhancement. The court rejected the idea that the mere fact that Chandia was convicted of one material support count justified the enhancement. In a footnote, the court noted that it was not resolving the issue of the proper burden of proof for 3A1.4 enhancements (preponderance of the evidence v. clear and convincing evidence), leaving the issue open for a case "where we are presented to relevant findings."
On appeal, Chandia challenged both his convictions and sentence. The Fourth Circuit rejected the arguments Chandia raised with regards to his conviction. First, the court concluded the affidavits submitted to obtain warrants to search Chandia's home and car were sufficient to support probable cause and that Chandia was not entitled to a Franks hearing on the issue of inaccuracies/omissions from those affidavits (using a plain error standard because Chandia did not specifically request a Franks hearing in the district court). Second, the court rejected several constitutional arguments against the statutes under which Chandia was convicted, relying on the prior resolution of those issues in US v. Hammoud, 381 F.3d 316 (4th Cir. 2004). Third, the court rejected Chandia's argument that the counts on which he was convicted were duplicitous and violated due process. Finally, the court rejected Chandia's argument that the district court erred by allowing the Government to play for the jury excepts of a CD-ROM video glorifying the 9-11 attacks that was found in Chandia's home. Even if it was error (which the court doesn't say), the error would be harmless given the limited roll of the excerpts at trial.
While sustaining Chandia's convictions, the court did vacate his 180-month sentence. The court concluded that, although the district court utilized the Guideline range provided by the 3A1.4 terrorism enhancement, it failed to make specific findings supporting the enhancement. The court rejected the idea that the mere fact that Chandia was convicted of one material support count justified the enhancement. In a footnote, the court noted that it was not resolving the issue of the proper burden of proof for 3A1.4 enhancements (preponderance of the evidence v. clear and convincing evidence), leaving the issue open for a case "where we are presented to relevant findings."
Friday, January 18, 2008
Notice of Variance Must Prompt Parties to Make Arguments
US v. Fancher: Fancher was investigated by police after reports that he had sexually molested a nine-year-old girl. During the investigation, authorities uncovered numerous images of child pornography in Fancher's home. Fancher pleaded guilty to one count of possession of child porn. Due to a previous conviction for sexual abuse of a minor, Fancher's statutory sentence was between 15 and 40 years in prison.
Prior to sentencing, the probation officer calculated Fancher's Guideline range to be 180-210 months. The PSR mentioned "mitigating" factors and also that "[g]iven the defendant's criminal history and the ages [of] and relationship to his victims[,] the Court may which to consider a sentence pursuant to [3553(a)] to meet the objectives of sentencing." After the PSR was completed, the probation officer was contacted by the mother of a 16-year-old girl to whom Fancher had been writing letters while incarcerated proclaiming his love for her and requesting (among other things) that she send him pictures. At sentencing, Fancher argued for a 180-month sentence, while the Government sought a 210-month sentence. Concluding that Fancher was beyond rehabilitation, the district court imposed the maximum sentence of 480 months in prison.
On appeal, the Fourth Circuit vacated Fancher's sentence. Applying US v. Spring, 305 F.3d 276 (4th Cir. 2002), the court held that while the language in the PSR was sufficient to meet the notice requirements of Rule 32(h), it was not adequate to prompt the parties to present arguments about the propriety of a variance. In Spring's words, the PSR "informed counsel that it needed to prepare arguments on this issue, but not that they needed to present them." Applying harmless error review (Fancher objected to the lack of notice after sentence was imposed) and concluding that, based on post-sentencing proffers made by counsel, that the district court's concerns would have been addressed (if not alleviated), the court held that the error was not harmless. Fancher's case was remanded for resentencing.
Nice work by the FPD office in the Northern District of WV on the win!
Prior to sentencing, the probation officer calculated Fancher's Guideline range to be 180-210 months. The PSR mentioned "mitigating" factors and also that "[g]iven the defendant's criminal history and the ages [of] and relationship to his victims[,] the Court may which to consider a sentence pursuant to [3553(a)] to meet the objectives of sentencing." After the PSR was completed, the probation officer was contacted by the mother of a 16-year-old girl to whom Fancher had been writing letters while incarcerated proclaiming his love for her and requesting (among other things) that she send him pictures. At sentencing, Fancher argued for a 180-month sentence, while the Government sought a 210-month sentence. Concluding that Fancher was beyond rehabilitation, the district court imposed the maximum sentence of 480 months in prison.
On appeal, the Fourth Circuit vacated Fancher's sentence. Applying US v. Spring, 305 F.3d 276 (4th Cir. 2002), the court held that while the language in the PSR was sufficient to meet the notice requirements of Rule 32(h), it was not adequate to prompt the parties to present arguments about the propriety of a variance. In Spring's words, the PSR "informed counsel that it needed to prepare arguments on this issue, but not that they needed to present them." Applying harmless error review (Fancher objected to the lack of notice after sentence was imposed) and concluding that, based on post-sentencing proffers made by counsel, that the district court's concerns would have been addressed (if not alleviated), the court held that the error was not harmless. Fancher's case was remanded for resentencing.
Nice work by the FPD office in the Northern District of WV on the win!
Thursday, January 10, 2008
Successive Habeas Rule Clarified
US v. Blackstock: Blackstock was convicted in 1993 and filed a request seeking discovery from the Government in 2001. The district court, without notifying Blackstock, treated that filing as a petition under 28 USC 2255, because it mentioned that Blackstock's conviction was no longer valid under Apprendi. The district court denied the motion. In 2005, Blackstock filed a motion to set aside the district court's order, along with a 2255 petition. The district court denied both, holding that the 2255 petition was a "second or successive" petition and therefore prohibited under the AEDPA.
On appeal, the Fourth Circuit reversed, agreeing with Blackstock that the court's prior decision in US v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), was not consistent with the Supreme Court's later decision in US v. Castro, 540 U.S. 375 (2003). Castro makes notice mandatory in cases like Blackstock's, whereas Emmanuel contained an exception to the notice rule that the district court had applied.
On appeal, the Fourth Circuit reversed, agreeing with Blackstock that the court's prior decision in US v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), was not consistent with the Supreme Court's later decision in US v. Castro, 540 U.S. 375 (2003). Castro makes notice mandatory in cases like Blackstock's, whereas Emmanuel contained an exception to the notice rule that the district court had applied.
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