Monday, May 30, 2011
Nearly 20-year sentence vacated by 4th Circuit
US v. Doyle: Doyle was convicted of receiving, possessing and mailing child pornography, and received a sentence of 235 months. On appeal, Doyle challenged the district court's decision to deny his motion to suppress. The Fourth Circuit disagreed with the district court that the good faith exception from Leon applied in this case, and held that the affidavit in support of the search warrant lacked the necessary information that the neutral magistrate could glean probable cause to support a search for child porn. The Fourth Circuit framed the question for review as not whether the warrant was simply deficient, rather whether the warrant was so deficient that relying upon it was unreasonable, thus precluding the operation of the good faith exception.
Wednesday, May 18, 2011
Court appointed counsel and their clients are people, too
US v. Smith, a.k.a. Poe: It's a subject matter close to the hearts of court appointed counsel everywhere, the quality of harmony in attorney-client relations. In this appeal, defendant Smith challenged the voluntariness of his plea, to which he had agreed following several attempts to obtain substitute counsel.
The Fourth Circuit waxes sympathetic as it considers the Sixth Amendment right to assistance of counsel, to deal with Smith's contention that the district court's denial of his substitution of counsel request rendered his guilty plea involuntary (he had been named in a 20-count indictment charging him and 27 others with racketeering and conspiracy to district and possess with intent to distribute drugs). "The mere physical presence of counsel is not enough: it is the marriage of the attorney's legal knowledge and mature judgment with the defendant's factual knowledge that makes for an adequate defense...more than a 'warm body' is required to satisfy the Sixth Amendment." The Fourth Circuit refers to Sixth Circuit's findings in three cases of per se Sixth Amendment violations, and a Ninth Circuit case where the denial of a substitution motion resulted in the constructive denial of counsel. Upon resolving the question of the appropriate standard of review to consider the denial of substitution requests as clear error review, the Fourth Circuit declines to find clear error.
Was Smith's guilty plea rendered involuntary? Was it effectively uncounseled because of a failure to communicate between appointed counsel and client? The parties remained on speaking terms, counsel continued to make visits to his client in prison, and though the two may have argued, the Fourth Circuit found that there was no conclusive break prior to the plea hearing, and Smith's contention that his plea was involuntary failed. Neither did the Fourth Circuit find that the denial of Smith's request for substitute counsel at the time of sentencing cause a clear error.
The Fourth Circuit considered the nature of the communication between counsel and client throughout the representation, and it noted that there had been severe damage by the time of sentencing; yet, since counsel and client had met, reviewed the PSR, and communicated enough to allow counsel to present some concerns to the court, the Fourth Circuit declined to find that counsel failed to render genuinely effective assistance.
And while "there is no one-free-lawyer" rule, the Fourth Circuit found that Smith's one appointed lawyer was sufficient here to protect his Fifth and Sixth Amendment rights.
The Fourth Circuit waxes sympathetic as it considers the Sixth Amendment right to assistance of counsel, to deal with Smith's contention that the district court's denial of his substitution of counsel request rendered his guilty plea involuntary (he had been named in a 20-count indictment charging him and 27 others with racketeering and conspiracy to district and possess with intent to distribute drugs). "The mere physical presence of counsel is not enough: it is the marriage of the attorney's legal knowledge and mature judgment with the defendant's factual knowledge that makes for an adequate defense...more than a 'warm body' is required to satisfy the Sixth Amendment." The Fourth Circuit refers to Sixth Circuit's findings in three cases of per se Sixth Amendment violations, and a Ninth Circuit case where the denial of a substitution motion resulted in the constructive denial of counsel. Upon resolving the question of the appropriate standard of review to consider the denial of substitution requests as clear error review, the Fourth Circuit declines to find clear error.
Was Smith's guilty plea rendered involuntary? Was it effectively uncounseled because of a failure to communicate between appointed counsel and client? The parties remained on speaking terms, counsel continued to make visits to his client in prison, and though the two may have argued, the Fourth Circuit found that there was no conclusive break prior to the plea hearing, and Smith's contention that his plea was involuntary failed. Neither did the Fourth Circuit find that the denial of Smith's request for substitute counsel at the time of sentencing cause a clear error.
The Fourth Circuit considered the nature of the communication between counsel and client throughout the representation, and it noted that there had been severe damage by the time of sentencing; yet, since counsel and client had met, reviewed the PSR, and communicated enough to allow counsel to present some concerns to the court, the Fourth Circuit declined to find that counsel failed to render genuinely effective assistance.
And while "there is no one-free-lawyer" rule, the Fourth Circuit found that Smith's one appointed lawyer was sufficient here to protect his Fifth and Sixth Amendment rights.
Tuesday, May 17, 2011
Confrontation Clause at sentencing hearings
US v. Powell: Powell was convicted of mail fraud, wire fraud and attempted destruction of evidence, following an investigation made on behalf of customers of his Internet-based electronics sales business. On appeal, Powell challenged the way the government gathered evidence against him for use at his sentencing hearing: the number of victims and amounts of monetary losses were not solely determined by trial testimony, but also through hearsay statements of other victims made to the investigating postal inspector. The government requested an enhanced sentence based on all of this evidence, not just the testimony of the eight victims who testified at trial. Powell argued that these investigatory methods violated his Confrontation Clause rights by relying on hearsay statements from individuals who did not testify.
The Fourth Circuit discussed the distinctions between trial evidence and sentencing evidence, especially with respect to hearsay, finding a long line of established cases in the Supreme Court, sister circuits and its own jurisprudence, indicating the confrontation right does not apply at sentencing. The Fourth Circuit found that Powell was not without some evidentiary protections, however, stating that due process requires a minimal level of reliability sufficient to support its "probable accuracy" as required by the Guidelines.
The Fourth Circuit discussed the distinctions between trial evidence and sentencing evidence, especially with respect to hearsay, finding a long line of established cases in the Supreme Court, sister circuits and its own jurisprudence, indicating the confrontation right does not apply at sentencing. The Fourth Circuit found that Powell was not without some evidentiary protections, however, stating that due process requires a minimal level of reliability sufficient to support its "probable accuracy" as required by the Guidelines.
Friday, May 13, 2011
"Structural" versus "trial error" in discussion of co-defendants' guilty pleas
US v. Poole: Poole, an accountant, was convicted following a bench trial of four counts of aiding and assisting in the preparation of false tax returns. The Fourth Circuit affirmed.
Poole's appeal challenged the district court's verdict in three ways, claiming that the convictions were unlawfully based on the guilty pleas of his co-defendants, on the improperly credited testimony by a key government witness that Poole believed to have been false, and insufficient evidence that he knew the returns were fraudulent and that he acted willfully in filing them.
Poole referred to the district court's multiple mentions of his co-defendants' guilty plea on the record as grounds for denying him a fair trial. The Fourth Circuit found these statements to constitute error on the basis that the district court gave consideration to facts not in evidence. While Poole wanted the Fourth Circuit to find this error as "structural" as opposed to "trial error," as explained in United States v. Blevins, the Fourth Circuit held that the district court's error was "a classic example of trial error subject to harmless error review," and following a harmless error analysis, found the error harmless in light of "overwhelming" evidence of Poole's guilt.
The Fourth Circuit considered Poole's second appeal issue as a request to reverse a credibility determination, made by the district court, which it declined to do; it deferred to the district court's estimation of the witness's credibility and reliability. Finally, the Fourth Circuit determined that Poole purposefully ignored large accounting discrepancies, such that he could not claim willfull blindness about his clients' financial misdeeds.
Poole's appeal challenged the district court's verdict in three ways, claiming that the convictions were unlawfully based on the guilty pleas of his co-defendants, on the improperly credited testimony by a key government witness that Poole believed to have been false, and insufficient evidence that he knew the returns were fraudulent and that he acted willfully in filing them.
Poole referred to the district court's multiple mentions of his co-defendants' guilty plea on the record as grounds for denying him a fair trial. The Fourth Circuit found these statements to constitute error on the basis that the district court gave consideration to facts not in evidence. While Poole wanted the Fourth Circuit to find this error as "structural" as opposed to "trial error," as explained in United States v. Blevins, the Fourth Circuit held that the district court's error was "a classic example of trial error subject to harmless error review," and following a harmless error analysis, found the error harmless in light of "overwhelming" evidence of Poole's guilt.
The Fourth Circuit considered Poole's second appeal issue as a request to reverse a credibility determination, made by the district court, which it declined to do; it deferred to the district court's estimation of the witness's credibility and reliability. Finally, the Fourth Circuit determined that Poole purposefully ignored large accounting discrepancies, such that he could not claim willfull blindness about his clients' financial misdeeds.
Thursday, May 12, 2011
Overreaching protective sweep "saved" by independent source doctrine
US v. Bullard: Bullard was convicted of possession with intent to deliver crack. He appealed the denial of a motion to suppress, argued the disparities in sentencing for cocaine and crack offenses violate both Equal Protection and Due Process, and that the FSA should apply to him.
First, the Fourth Circuit held that Bullard's Fourth Amendment rights were not violated by the investigating officers in this case. After finding it unnecessary to determine whether Bullard had a privacy interest as an unregistered hotel guest, the Court focused its attention on the problematic protective sweep the police conducted here. The protective sweep included a search of closed luggage and cabinets, but only after the police had found obviously incriminating evidence in plain view (e.g. the "smell" of narcotics, paraphernalia, and cocaine residue); however, the Fourth Circuit found that the sweep was saved by the independent source doctrine for two reasons: 1) the officers did not rely on the information they obtained in the protective sweep to obtain their search warrant; and 2) the officers intended at the outset of the search to obtain a search warrant. An overly aggressive protective sweep requires suppression, only if the "illegal search tainted the later recovery of the same evidence pursuant to a valid search warrant."
Second, the Fourth Circuit held that only the Supreme Court could overrule Fourth Circuit precedent set by a prior Fourth Circuit panel, declining to adjust the position that the disparities in crack and cocaine sentencing in 21 U.S.C. sect. 841 do not violate Equal Protection or Due Process rights.
Third, the Fourth Circuit held that the Savings Statute precludes the retroactive application of the new penalty provisions of the FSA to individuals who had been sentenced prior to the effective date of the FSA in early August 2010, a decision in concert with sister circuit rulings.
First, the Fourth Circuit held that Bullard's Fourth Amendment rights were not violated by the investigating officers in this case. After finding it unnecessary to determine whether Bullard had a privacy interest as an unregistered hotel guest, the Court focused its attention on the problematic protective sweep the police conducted here. The protective sweep included a search of closed luggage and cabinets, but only after the police had found obviously incriminating evidence in plain view (e.g. the "smell" of narcotics, paraphernalia, and cocaine residue); however, the Fourth Circuit found that the sweep was saved by the independent source doctrine for two reasons: 1) the officers did not rely on the information they obtained in the protective sweep to obtain their search warrant; and 2) the officers intended at the outset of the search to obtain a search warrant. An overly aggressive protective sweep requires suppression, only if the "illegal search tainted the later recovery of the same evidence pursuant to a valid search warrant."
Second, the Fourth Circuit held that only the Supreme Court could overrule Fourth Circuit precedent set by a prior Fourth Circuit panel, declining to adjust the position that the disparities in crack and cocaine sentencing in 21 U.S.C. sect. 841 do not violate Equal Protection or Due Process rights.
Third, the Fourth Circuit held that the Savings Statute precludes the retroactive application of the new penalty provisions of the FSA to individuals who had been sentenced prior to the effective date of the FSA in early August 2010, a decision in concert with sister circuit rulings.
Murder and Conspiracy convictions affirmed following evidentiary challenges
US v. Byers: Byers and Co-Defendant Goodman were convicted of conspiracy and murder of a witness, Carl Lackl, to prevent Lackl from testifying in a Maryland state murder trial. On appeal, the two challenged several evidentiary rulings, and Goodman appealed the denial of his pretrial motion to suppress. The Fourth Circuit affirmed.
Lackl was to testify as an eyewitness against Byers in the March 2006 shooting of Larry Haynes; another eyewitness recanted, leaving Lackl as the sole person who could place Byers at the Haynes murder scene. Whether Byers had motive to kill and whether Lackl was accurate in his identification of Byers in the earlier murder investigation became crucial at trial.
The Fourth Circuit determined that 404(b) evidence of Byers's invovled in two prior shootings suggested a common theme, and was "necessary" to counter Byers's strategy of negating motive. And, for good measure, even if the district court abused its discretion in allowing this evidence in, the Fourth Circuit found this error was harmless. Byers attacked Lackl's reliability as an effective witness and Lackl's identification of Byers at the scene of Haynes's murder. Also, the Fourth Circuit held that it was not error to admit the statements of Lackl's girlfriend, who warned him of the mortal danger of his involvement as a testimonial witness.
Goodman's appeal issues concerned the testimony of a rebuttal witness, arguing that the proposed testimony failed to counter any new evidence presented in Goodman's case-in-chief. The Fourth Circuit decided that the proposed testimony went to the witness's credibility, and any error in admitting it was harmless. Goodman also appealed the denial of his motion to suppress of his post-arrest statements, which he claimed were involuntary. Under a totality of the circumstances, the Fourth Circuit found no unconstitutional coercion on the record.
Lackl was to testify as an eyewitness against Byers in the March 2006 shooting of Larry Haynes; another eyewitness recanted, leaving Lackl as the sole person who could place Byers at the Haynes murder scene. Whether Byers had motive to kill and whether Lackl was accurate in his identification of Byers in the earlier murder investigation became crucial at trial.
The Fourth Circuit determined that 404(b) evidence of Byers's invovled in two prior shootings suggested a common theme, and was "necessary" to counter Byers's strategy of negating motive. And, for good measure, even if the district court abused its discretion in allowing this evidence in, the Fourth Circuit found this error was harmless. Byers attacked Lackl's reliability as an effective witness and Lackl's identification of Byers at the scene of Haynes's murder. Also, the Fourth Circuit held that it was not error to admit the statements of Lackl's girlfriend, who warned him of the mortal danger of his involvement as a testimonial witness.
Goodman's appeal issues concerned the testimony of a rebuttal witness, arguing that the proposed testimony failed to counter any new evidence presented in Goodman's case-in-chief. The Fourth Circuit decided that the proposed testimony went to the witness's credibility, and any error in admitting it was harmless. Goodman also appealed the denial of his motion to suppress of his post-arrest statements, which he claimed were involuntary. Under a totality of the circumstances, the Fourth Circuit found no unconstitutional coercion on the record.
Rehearing on Batson claim results in affirmance
US v. Barnette: Barnette was convicted in 2000 of killing his ex-girlfriend and another person. He received a death sentence, appealed it, had his convictions affirmed but received a new sentencing hearing. His death sentence was affirmed; on his second appeal of the sentencing, the Fourth Circuit rejected his initial Batson challenge. Barnette appealed to the Supreme Court, which granted certiorari, vacated the judgment and remanded the case for reconsideration of the Batson claim in light of the Supreme Court's recently-issued opinion, Miller-El v. Dretke. The Fourth Circuit remanded to the district court, which in turn issued a memorandum order, finding that Barnette had not met his burden of demonstrating that the prosecution had engaged in unconstitutional peremptory strikes against five African American members of the jury venire for his second sentencing in 2002. The Fourth Circuit found no prejudicial error in the district court's findings, and affirmed.
Monday, May 09, 2011
Burglary of "Shop" In Virginia Triggers ACCA Enhancement
US v. Baxter: Baxter was convicted of being a felon in possession and was sentenced as an armed career criminal. Baxter argued that a 1976 Virginia conviction for burglarizing a "shop" was not a violent felony, within the meaning of ACCA. The district court disagreed. On appeal, the Fourth Circuit affirmed the sentence. Relying on "the definitive construction" of the burglary statute from the Virginia Supreme Court, the court held that "shop" was not so vague as Baxter argued and that the "shop" was "affixed to the ground" and therefore fell within the generic definition of "burglary" found in Taylor v. US, 495 U.S. 575 (1990).
Delay In Mutli-Defendant Drug Case Doesn't Violate STA or Due Process
US v. Shealey: Shealey was initially charged, along with several codefendants, with several counts related to the distribution of drugs. As trial neared - already delayed by on continuance - one of Shealey's codefendants sought further delay, based on a change of counsel and the late delivery of substantial discovery by the Government. Shealey objected to the continuance and asked for his trial to be severed from the others and to proceed without delay. That motion was denied. After rejecting a plea bargain, Shealey was further charged with two counts of money laundering. He was convicted on all counts at trial and sentenced to life in prison.
On appeal, Shealey raised several arguments challenging his conviction and sentence, all of which the Fourth Circuit rejected. First, Shealey argued that the district court erred by dismissing his motion to sever, particularly given that numerous codefendants who testified at his trial only pleaded guilty after the original trial date had passed. The court disagreed, holding that the district court did not abuse its discretion and that Shealey's argument for why he was harmed is not an injury to a "specific trial right" or other prejudice that resulted from a joint trial. Second, Shealey argued that the late filing of the superseding indictment against him violated his right to due process because it gave the Government time to negotiate plea bargains with other defendants/witnesses. The court disagreed, holding that Shealey could not point to any concrete prejudice he suffered as a result. Finally, Shealey argued that his life sentence was substantively unreasonable. The court disagreed, noting his criminal history and "voluminous quantities of drugs" involved.
On appeal, Shealey raised several arguments challenging his conviction and sentence, all of which the Fourth Circuit rejected. First, Shealey argued that the district court erred by dismissing his motion to sever, particularly given that numerous codefendants who testified at his trial only pleaded guilty after the original trial date had passed. The court disagreed, holding that the district court did not abuse its discretion and that Shealey's argument for why he was harmed is not an injury to a "specific trial right" or other prejudice that resulted from a joint trial. Second, Shealey argued that the late filing of the superseding indictment against him violated his right to due process because it gave the Government time to negotiate plea bargains with other defendants/witnesses. The court disagreed, holding that Shealey could not point to any concrete prejudice he suffered as a result. Finally, Shealey argued that his life sentence was substantively unreasonable. The court disagreed, noting his criminal history and "voluminous quantities of drugs" involved.
Felony Enhancements for Unauthorized Computer Access Misdemeanors Violate Double Jeopardy
US v. Cioni: Cioni engaged in a pattern of harassment against an ex-lover and those around him. As a result, she was charged with several offenses, including two counts of obtaining information through unauthorized access to computers. Although that offense is ordinarily a misdemeanor, it can become a felony if it was committed "in furtherance" of other offenses. In Cioni's case, she was alleged to have committed the offenses in furtherance of obtaining access to communications in electronic storage. The jury convicted her on those charges (and three others) and found they were committed in furtherance of other offenses, triggering the felony enhancement.
On appeal, the Fourth Circuit reversed Cioni's convictions on those two counts, remanded for the imposition of misdemeanor convictions and for resentencing. The court agreed with Cioni that, the way the offenses were charged, she was convicted of the misdemeanor offense and then had that enhanced to a felony, based on the same conduct. That enhancement violated the Double Jeopardy Clause. The court then rejected Cioni's arguments that the evidence was insufficient to sustain two of the other convictions against her, that she did not knowingly and voluntarily waive her right to counsel at sentencing, where she proceeded pro se, and several other minor arguments. The court vacated Cioni's 15-month sentence, the two felony convictions, and remanded for further proceedings.
On appeal, the Fourth Circuit reversed Cioni's convictions on those two counts, remanded for the imposition of misdemeanor convictions and for resentencing. The court agreed with Cioni that, the way the offenses were charged, she was convicted of the misdemeanor offense and then had that enhanced to a felony, based on the same conduct. That enhancement violated the Double Jeopardy Clause. The court then rejected Cioni's arguments that the evidence was insufficient to sustain two of the other convictions against her, that she did not knowingly and voluntarily waive her right to counsel at sentencing, where she proceeded pro se, and several other minor arguments. The court vacated Cioni's 15-month sentence, the two felony convictions, and remanded for further proceedings.
Wednesday, April 20, 2011
Court Clarifies "Evidnce as a Whole" in 2255 Cases
US v. MacDonald: MacDonald was convicted in 1979 of murdering his wife and two daughters at Fort Bragg in 1970. He has steadfastly maintained his innocence. In 2006, he filed (with permission from the Fourth Circuit) a successive 2255 motion asserting a due process claim of newly discovered evidence with regards to a former US Deputy Marshal named Britt ("Britt claim"). Britt stated that he was present when the prosecutor at MacDonald's trial interviewed another potential suspect (and defense witness) and threatened her with being prosecuted for the murders if the testified consistently with what she told him. Shortly thereafter, results of DNA testing (authorized by the Fourth Circuit in 1997!) became available. MacDonald (without permission) added a claim of actual innocence based on the results of the DNA tests ("DNA claim"). He also urged the district court to consider the DNA evidence as part of the "evidence as a whole" in resolving the Britt claim. The district court denied relief. As to the DNA claim, the court found it lacked jurisdiction because MacDonald failed to get permission to file that claim. As to the Britt claim, after a "more searching" analysis than the Fourth Circuit made, the court denied MacDonald leave to file the new 2255 motion.
The Fourth Circuit (a two-judge panel, due to the death of Judge Michael after oral argument) reversed and remanded for further consideration of both claims. As to the Britt claim, the court found that the district court applied the standard of review applicable to review of state convictions, rather than federal ones. While the standards were very similar, the court remanded for reconsideration rather than find the error be harmless because "the court committed prejudicial error by taking an overly restrictive view of what constitutes the 'evidence as a whole'" by not expanding the record to consider evidence received after trial and MacDonald's initial 2255 petition. The district court erred by limiting its review to only the trial record and the specific newly presented evidence of the Britt claim. As to the DNA claim, the court concluded that the district court had jurisdiction over it because it was properly added to an otherwise authorized successive motion. The court did not reach the substance of either of MacDonald's new claims.
The Fourth Circuit (a two-judge panel, due to the death of Judge Michael after oral argument) reversed and remanded for further consideration of both claims. As to the Britt claim, the court found that the district court applied the standard of review applicable to review of state convictions, rather than federal ones. While the standards were very similar, the court remanded for reconsideration rather than find the error be harmless because "the court committed prejudicial error by taking an overly restrictive view of what constitutes the 'evidence as a whole'" by not expanding the record to consider evidence received after trial and MacDonald's initial 2255 petition. The district court erred by limiting its review to only the trial record and the specific newly presented evidence of the Britt claim. As to the DNA claim, the court concluded that the district court had jurisdiction over it because it was properly added to an otherwise authorized successive motion. The court did not reach the substance of either of MacDonald's new claims.
Flight Tolls Supervised Release Term
US v. Buchanan: Buchanan started his five-year term of supervised release in 1993. He was allowed to relocate to Ohio, but his supervision continued out of the Eastern District of Virginia. In 1994, he was indicted on state drug charges in Ohio. When his trial started in 1995, Buchanan was a no show. His probation officer in Virginia filed a petition to revoke Buchanan's supervised release and a warrant was issued. Years passed, until Buchanan was located and arrested in Georgia in 2008. After his arrest, the probation officer in Virginia filed two addenda to the petition to revoke. Buchanan moved to dismiss the addenda, as they were filed after his five-year term had expired. The district court held that the term was tolled while Buchanan was on the lam, revoked his supervised release, and sentenced him to concurrent sentences of 48, 36, and 27 months on the petition and two addenda.*
On appeal, the Fourth Circuit affirmed the district court. The court noted that the supervised release statute does not address whether a term tolls while a supervisee is AWOL, if no petition/warrant is issued during the supervised release term. For the First Circuit, that means it does not toll. For the Ninth, it read into the statute a tolling mechanism in order to avoid providing supervisees with a reason to abscond. The Fourth Circuit followed the Ninth (I can't believe I actually wrote that!), holding that to do otherwise would foil congressional intent and reward absconders.
* This completely baffles me. In every supervised release case I've seen, there's only been one sentence per SR term, not one per violation (or batch of violations). Since Buchanan didn't challenge the initial petition, which was the basis of the 48-month term, the Fourth Circuit could have dismissed the appeal under the "concurrent sentence doctrine" but declined to do so.
On appeal, the Fourth Circuit affirmed the district court. The court noted that the supervised release statute does not address whether a term tolls while a supervisee is AWOL, if no petition/warrant is issued during the supervised release term. For the First Circuit, that means it does not toll. For the Ninth, it read into the statute a tolling mechanism in order to avoid providing supervisees with a reason to abscond. The Fourth Circuit followed the Ninth (I can't believe I actually wrote that!), holding that to do otherwise would foil congressional intent and reward absconders.
* This completely baffles me. In every supervised release case I've seen, there's only been one sentence per SR term, not one per violation (or batch of violations). Since Buchanan didn't challenge the initial petition, which was the basis of the 48-month term, the Fourth Circuit could have dismissed the appeal under the "concurrent sentence doctrine" but declined to do so.
Court Affirms Threatening Mail Convictions for Letters to USMS
US v. Rendelman: Rendelman went to trial (pro se) on six counts of mailing threatening communications under 18 USC 876(c). The threat in Count Two was directed specifically at the president, while the threat in Count Seven (one count of the indictment was dismissed before trial) was directed against the president and "all White House employees." Both counts involved letters sent to the US Marshal's Service while Rendelman was incarcerated. He was convicted on all counts and sentenced to 180 months in prison, including an enhanced 120-month term on Count Seven (in which the stat max was doubled because of the threat to White House employees).
On appeal, Rendelman (no longer pro se) raised several challenges to Counts Two and Seven, which the Fourth Circuit rejected. First, he argued that both counts were fatally defective for failing to allege violations of the statute. As to Count Two, the court rejected Rendelman's argument that the USMS is not a "person" under 876(c), holding that Count Two alleged the fundamental elements of the offense: mailing, threat, and mens rea. The same argument met the same fate on Count Seven, which also set forth the element triggering the enhanced statutory maximum. Second, the court rejected Rendelman's argument that the evidence was insufficient to support the convictions, including the jury's determination that the Count Seven enhancement had been triggered. Finally, the court rejected, with little discussion, his argument that the charges had been constructively amended at trial.
On appeal, Rendelman (no longer pro se) raised several challenges to Counts Two and Seven, which the Fourth Circuit rejected. First, he argued that both counts were fatally defective for failing to allege violations of the statute. As to Count Two, the court rejected Rendelman's argument that the USMS is not a "person" under 876(c), holding that Count Two alleged the fundamental elements of the offense: mailing, threat, and mens rea. The same argument met the same fate on Count Seven, which also set forth the element triggering the enhanced statutory maximum. Second, the court rejected Rendelman's argument that the evidence was insufficient to support the convictions, including the jury's determination that the Count Seven enhancement had been triggered. Finally, the court rejected, with little discussion, his argument that the charges had been constructively amended at trial.
Friday, March 18, 2011
One to watch
On Wednesday, March 23, 2011, the Fourth Circuit will hear argument in the case, US v. Maurice Williams, No. 10-4368, considering whether the district court erred in imposing the mandatory minimum term on crack cocaine in light of the FSA and a 5-year consecutive term on a Sect. 924(c) count.
Thursday, March 10, 2011
The case for changing your email password
United States v. Blauvelt: Blauvelt appealed from his convictions for possession and production of child porn, as well as possession of cocaine and two counts of distributing controlled substances to minors. Blauvelt received a 293-month sentence. The Fourth Circuit affirmed, with the Honorable Sandra Day O'Connor sitting by designation as an Associate Justice.
Factually, Blauvelt's former girlfriends, Anne Bridges and Erin Ruley, had a phone conversation, in which Bridges revealed that she had received an email from Blauvelt that contained explicit images of Ruley's 14-year-old sister, B.R. Bridges reportedly deleted the email, but she recalled Blauvelt's email account password and used it to open Blauvelt's email account, accessed the images, and showed them to Ruley. Ruley recognized both her younger sister and the interior of Blauvelt's home depicted in the photos. Bridges supplied Ruley with the email password, and Ruley went to her mother's home, printed out the photos and a screen shot of Blauvelt's email inbox, which demonstrated that the explicit photos were taken with Blauvelt's cell phone and were forwarded to his email account.
Ruley's mother called police, who then interviewed her, Ruley, and B.R., who confirmed that she was the girl in the photos. T.J., a minor male who also appears in the photos, arrived and gave statements to the police, incriminating Blauvelt. The police went to Blauvelt's home, and secured the residence while waiting for a search warrant to be signed. When the rest of the investigative team arrived with the warrant, Blauvelt was given his Miranda warnings, and he waived these rights. Blauvelt then gave statements to police; infamously, he said "oops." Officers seized his cell phone, a desktop computer, a media storage card, a digital camera, a mirror and a straw.
On appeal, Blauvelt made numerous challenges, starting with the denial of his motion to suppress evidence seized pursuant to the search warrant (for lack of probable cause), to the denial of his request for a hearing pursuant to Franks v. Delaware, to the legality of his detention for three hours prior to the issuance of the search warrant, to the improper admission of some bad acts evidence under Rule 404(b), the imposition of a two-level obstruction of justice enhancement, and jury tampering. The Fourth Circuit showed little trouble rejecting each of these arguments and affirming the convictions.
Factually, Blauvelt's former girlfriends, Anne Bridges and Erin Ruley, had a phone conversation, in which Bridges revealed that she had received an email from Blauvelt that contained explicit images of Ruley's 14-year-old sister, B.R. Bridges reportedly deleted the email, but she recalled Blauvelt's email account password and used it to open Blauvelt's email account, accessed the images, and showed them to Ruley. Ruley recognized both her younger sister and the interior of Blauvelt's home depicted in the photos. Bridges supplied Ruley with the email password, and Ruley went to her mother's home, printed out the photos and a screen shot of Blauvelt's email inbox, which demonstrated that the explicit photos were taken with Blauvelt's cell phone and were forwarded to his email account.
Ruley's mother called police, who then interviewed her, Ruley, and B.R., who confirmed that she was the girl in the photos. T.J., a minor male who also appears in the photos, arrived and gave statements to the police, incriminating Blauvelt. The police went to Blauvelt's home, and secured the residence while waiting for a search warrant to be signed. When the rest of the investigative team arrived with the warrant, Blauvelt was given his Miranda warnings, and he waived these rights. Blauvelt then gave statements to police; infamously, he said "oops." Officers seized his cell phone, a desktop computer, a media storage card, a digital camera, a mirror and a straw.
On appeal, Blauvelt made numerous challenges, starting with the denial of his motion to suppress evidence seized pursuant to the search warrant (for lack of probable cause), to the denial of his request for a hearing pursuant to Franks v. Delaware, to the legality of his detention for three hours prior to the issuance of the search warrant, to the improper admission of some bad acts evidence under Rule 404(b), the imposition of a two-level obstruction of justice enhancement, and jury tampering. The Fourth Circuit showed little trouble rejecting each of these arguments and affirming the convictions.
Wednesday, March 09, 2011
Convictions affirmed, Circuit split joined
US v. Halstead: Halstead was convicted of healthcare fraud and conspiring to launder money, and he received a sentence of 151 months. After his direct appeals failed, Halstead filed a petition for the collateral review of his convictions, attempting to vacate the money laundering conviction. Halstead wanted the Fourth Circuit to find a "merger problem" resolved by the Supreme Court in United States v. Santos, so that his money laundering conviction would be vacated, and dramatically reduce the jail time he could expect.
The Fourth Circuit decides here that Santos does not apply, because the charging documents for Halstead's convictions adequately defined his crimes as separate transactions not subject to merger. Indeed, affirming Halstead's convictions was a sideshow in comparison to the main event in this case, in which the Fourth Circuit joins a circuit split on the correct reading of the Santos holding.
The Fourth Circuit joins the 1st and 8th Circuits, finding that Santos requires the solution that when a merger problem arises in the context of money laundering coupled with illegal gambling, the proceeds of the illegal gambling business are its net profits. When the merger problem rears its ugly head outside of this context, e.g. when a case involves money laundering with some predicate crime other than illegal gamblng, the solution depends on a case-by-case analysis, with a consideration of the legislative history of the predicate offense.
The Fourth Circuit decides here that Santos does not apply, because the charging documents for Halstead's convictions adequately defined his crimes as separate transactions not subject to merger. Indeed, affirming Halstead's convictions was a sideshow in comparison to the main event in this case, in which the Fourth Circuit joins a circuit split on the correct reading of the Santos holding.
The Fourth Circuit joins the 1st and 8th Circuits, finding that Santos requires the solution that when a merger problem arises in the context of money laundering coupled with illegal gambling, the proceeds of the illegal gambling business are its net profits. When the merger problem rears its ugly head outside of this context, e.g. when a case involves money laundering with some predicate crime other than illegal gamblng, the solution depends on a case-by-case analysis, with a consideration of the legislative history of the predicate offense.
Monday, March 07, 2011
Army Board decision on application for discharge reinstated
Kanai v. McHugh: Kanai, a West Point cadet in his final year, sought a discharge from the Army as a conscientious objector. The Department of the Army Conscientious Objector Board denied Kanai's application on the basis that he failed to demonstrate sincerely-held beliefs entitling him to conscientious objector status. The Army subsequently relieved Kanai of his duties at West Point; Kanai went home to Maryland and filed a petition for writ of habeas corpus under 28 U.S.C. 2241. The district court granted Kanai's petition, and the Army appealed.
In determining whether the district court had jurisdiction to hear Kanai's habeas petition, the Fourth Circuit was presented with a question the federal courts have not yet resolved: where should habeas suits be filed when the petitioner is not in jail? The Fourth Circuit sidestepped the challenge to formally resolve the precise meaning of the phrase, "within their respective jurisdictions," in section 2241(a), finding instead that this statutory language "identifies the proper location of the federal district court in which a habeas petition should be filed," rejecting a subject-matter jurisdiction analysis (in accordance with the Supreme Court's holding in Rumsfeld v. Padilla). Additionally, the Fourth Circuit states that any challenge based on this language is waived if not asserted at the district court. Since the Army did not assert a jurisdictional challenge until its appeal, the Fourth Circuit deemed it waived.
On the merits of whether the Army Board had a basis to deny Kanai's application for discharge as a conscientious objector, the Fourth Circuit decided against Kanai, though it remarked favorably on him as "contemplative, self-reflective, and honest." The standard of review for the Army Board's decision required the Fourth Circuit to uphold the denial if it were supported by a "basis in fact." Such a basis exists when "conflicting inferences can be drawn from the same evidence." The Fourth Circuit held that three members of the Army Board's five-member panel appropriately found that Kanai had not presented sufficient evidence to demonstrate his "moral opposition to all wars." On this narrow standard of review, it upheld the Army Board's denial of Kanai's application for discharge.
In determining whether the district court had jurisdiction to hear Kanai's habeas petition, the Fourth Circuit was presented with a question the federal courts have not yet resolved: where should habeas suits be filed when the petitioner is not in jail? The Fourth Circuit sidestepped the challenge to formally resolve the precise meaning of the phrase, "within their respective jurisdictions," in section 2241(a), finding instead that this statutory language "identifies the proper location of the federal district court in which a habeas petition should be filed," rejecting a subject-matter jurisdiction analysis (in accordance with the Supreme Court's holding in Rumsfeld v. Padilla). Additionally, the Fourth Circuit states that any challenge based on this language is waived if not asserted at the district court. Since the Army did not assert a jurisdictional challenge until its appeal, the Fourth Circuit deemed it waived.
On the merits of whether the Army Board had a basis to deny Kanai's application for discharge as a conscientious objector, the Fourth Circuit decided against Kanai, though it remarked favorably on him as "contemplative, self-reflective, and honest." The standard of review for the Army Board's decision required the Fourth Circuit to uphold the denial if it were supported by a "basis in fact." Such a basis exists when "conflicting inferences can be drawn from the same evidence." The Fourth Circuit held that three members of the Army Board's five-member panel appropriately found that Kanai had not presented sufficient evidence to demonstrate his "moral opposition to all wars." On this narrow standard of review, it upheld the Army Board's denial of Kanai's application for discharge.
Thursday, March 03, 2011
Vitalizing the exclusionary rule
US v. Foster: Foster pled guilty to one count of possession with intent to deliver cocaine after police officers discovered drugs and some paraphernalia during an investigative stop. Foster reserved the right to appeal the denial of a suppression motion in which he argued that the officers lacked a reasonable suspicion to make the stop.
In a felicitous turn for Foster, the Fourth Circuit on appeal expresses its dismay at what it characterizes as "Government attempts to spin these largely mundane acts into a web of deception," finding a lack of articulable facts to support the district court's finding of reasonable suspicion sufficient to support the investigative stop, and vacates Foster's conviction.
Remarking on the similarity of this case to the factual scenario of US v. Sprinkle, in which the court held officers had unlawfully seized a driver with a known criminal record and his passenger while the two were huddled together in a car parked in a high crime area, the Fourth Circuit here chides the Government for making sinister the actions of Foster in a parked SUV: Foster sat up swiftly from a crouched position in the front passenger seat as a detective walked towards the vehicle; and Foster's "frenzied" arm movements directed towards the floor of the car. In its evaluation of the totality of the circumstances, the Fourth Circuit decided that the defendant's behavior, observed at some distance by the off-duty detective, in the middle of the day, in a parking lot near a restaurant where the detective had just lunched with his wife, could not have supplied the requisite reasonable suspicion necessary for a Terry stop. The Fourth Circuit concludes by advising the Government against a reliance upon "ad hoc rationalizations to validate those seizures that happen to turn up contraband."
Please use this case for the colorful judicial invective in such quotes as "we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous," and "we note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Bookmark this case for your next motion to suppress, folks.
In a felicitous turn for Foster, the Fourth Circuit on appeal expresses its dismay at what it characterizes as "Government attempts to spin these largely mundane acts into a web of deception," finding a lack of articulable facts to support the district court's finding of reasonable suspicion sufficient to support the investigative stop, and vacates Foster's conviction.
Remarking on the similarity of this case to the factual scenario of US v. Sprinkle, in which the court held officers had unlawfully seized a driver with a known criminal record and his passenger while the two were huddled together in a car parked in a high crime area, the Fourth Circuit here chides the Government for making sinister the actions of Foster in a parked SUV: Foster sat up swiftly from a crouched position in the front passenger seat as a detective walked towards the vehicle; and Foster's "frenzied" arm movements directed towards the floor of the car. In its evaluation of the totality of the circumstances, the Fourth Circuit decided that the defendant's behavior, observed at some distance by the off-duty detective, in the middle of the day, in a parking lot near a restaurant where the detective had just lunched with his wife, could not have supplied the requisite reasonable suspicion necessary for a Terry stop. The Fourth Circuit concludes by advising the Government against a reliance upon "ad hoc rationalizations to validate those seizures that happen to turn up contraband."
Please use this case for the colorful judicial invective in such quotes as "we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous," and "we note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Bookmark this case for your next motion to suppress, folks.
Wednesday, February 23, 2011
Harp Still Controls Analysis of NC Priors
US v. Simmons: Simmons pleaded guilty to three drug charges after the Government filed an information under 21 USC 851 to enhance his sentence based on a prior conviction. The prior at issue is a 1996 North Carolina conviction for possession with intent. Under North Carolina law, which ties statutory sentencing maximums to criminal history, Simmons could not have been sentenced to a term of more than 12 months in prison for that offense, as needed to trigger the 851 provisions. However, someone with the worst possible criminal history could have received such a sentence. Under Fourth Circuit law at the time of his sentencing, the conviction therefore triggered the provisions of 851.
After Simmons's sentence was affirmed on appeal, the Supreme Court GVR'd in light of Carachuri-Rosendo v. Holder. On remand, the Fourth Circuit held that Carachuri-Rosendo did not undermine the earlier circuit precedent and again affirmed the sentence. Specifically, the court rejected Simmons's argument that Carachuri-Rosendo required the court to abandon its "hypothetic defendant" analysis when examining prior convictions. The court held that the difference in statutory language between the immigration laws at issue in Carachuri-Rosendo and 851 showed the rule of Carachuri-Rosendo could not be imported into the 851 context. Carachuri-Rosendo was simply "inapplicable to our present inquiry." The court also rejected Simmons's argument with regards to whether his prior conviction was obtained in violation of his right to counsel.
UPDATE: See here, reversed en banc.
After Simmons's sentence was affirmed on appeal, the Supreme Court GVR'd in light of Carachuri-Rosendo v. Holder. On remand, the Fourth Circuit held that Carachuri-Rosendo did not undermine the earlier circuit precedent and again affirmed the sentence. Specifically, the court rejected Simmons's argument that Carachuri-Rosendo required the court to abandon its "hypothetic defendant" analysis when examining prior convictions. The court held that the difference in statutory language between the immigration laws at issue in Carachuri-Rosendo and 851 showed the rule of Carachuri-Rosendo could not be imported into the 851 context. Carachuri-Rosendo was simply "inapplicable to our present inquiry." The court also rejected Simmons's argument with regards to whether his prior conviction was obtained in violation of his right to counsel.
UPDATE: See here, reversed en banc.
Harmless Error Analysis for Guideline Miscalculation
US v. Savillon-Matute: Savillon-Matute pleaded guilty to illegal reentry. Prior to sentencing, the probation officer recommended an 8-level enhancement because Savillon-Matute's prior Maryland conviction for second-degree assault was an "aggravated felony." The Government objected, arguing that a 16-level enhancement was applicable because that prior offense was a "crime of violence" because the victim was seven years old and force was involved. Savillon-Matute argued that neither enhancement applied. At sentencing, the district court agreed with Savillon-Matute that his Maryland conviction was not a crime of violence, but took judicial notice that the charging documents made the age of the victim and use of force clear. The 8-level enhancement was applied. However, Savillon-Matute was sentenced to 36 months in prison, twice the top of the advisory Guideline range.
On appeal, Savillon-Matute argued that his sentence was unreasonable because the district court incorrectly calculated the advisory Guideline range by using documents outside the scope of those allowed by Shepard to determine the victim's age and use of force. The Fourth Circuit affirmed the sentence, refusing to "wad[e] into the morass of how to apply Shepard in the particular circumstances of this case" because any error in calculating the Guidelines was harmless. Adopting the logic of an 11th Circuit case, the court held that "it would make no sense to set aside [a] reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm." Looking to the statements of the district court in this case, the court concluded that the same sentence would have been applied regardless of the Guideline calculation.
On appeal, Savillon-Matute argued that his sentence was unreasonable because the district court incorrectly calculated the advisory Guideline range by using documents outside the scope of those allowed by Shepard to determine the victim's age and use of force. The Fourth Circuit affirmed the sentence, refusing to "wad[e] into the morass of how to apply Shepard in the particular circumstances of this case" because any error in calculating the Guidelines was harmless. Adopting the logic of an 11th Circuit case, the court held that "it would make no sense to set aside [a] reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm." Looking to the statements of the district court in this case, the court concluded that the same sentence would have been applied regardless of the Guideline calculation.
Subscribe to:
Comments (Atom)