US v. Sowards: Sowards was driving down I77 in North Carolina when he was stopped by a local deputy, Elliott, for speeding. Specifically, for going 75 in a 70 mile per hour zone. Elliott had a drug dog with him who alerted to the presence of drugs. A search revealed 10 kilograms of cocaine in the car. Sowards was charged with possession with intent to distribute. He moved to suppress the cocaine, arguing that Elliot lacked probable cause to stop him for speeding. Elliott testified that he had not tagged Sowards with radar or paced Sowards in his own cruiser, he had simply observed Sowards and knew he was speeding. After a hearing at which Elliott's powers of perception were somewhat undermined, the district court denied the motion. Sowards entered a conditional plea.
On appeal, the Fourth Circuit reversed the district court, 2-1. As the court framed the issue, it was "whether, given the totality of the circumstances, Deputy Elliott had reasonably trustworthy information sufficient to support a prudent person's belief that Sowards was speeding." In evaluating that issue, the court found that many of the district court's findings were clearly erroneous. For example, the district court concluded that Elliot had been "trained to estimate speeds," although that training was done in the context of how to use a radar unit, not simply to estimate speeds on his own. Furthermore, Elliot could not explain any method he used to determine Sowards's speed and, indeed, denied having any method at all. The court also found the district court's conclusion that Elliott's "difficulty with measurements is immaterial" to "ring[] in the absurd" because estimating speed requires determining the distance that object is covering in a certain period or time. The court noted that Elliott "exhibited a notable absence of fluency in his knowledge of distance measurements." Rejecting the Government's argument that Elliott's educated guess was sufficient to support the stop, the court noted that the closer the speed is to the legal limit, the more scrutiny the officer's estimation must receive. Given the high speed involved and the slight difference between the limit and the alleged speeding in this case, Elliott's uncorroborated observation alone was not sufficient.
Chief Judge Traxler dissented, resting his argument heavily on the fact that Elliott's certification for estimating speed provided him with an average error rate of no more than 3.5 miles per hour. The majority points out that this "certification" involved a visual estimate backed up with a radar gun, which Elliot did not use in this case (he testified that he intentionally positioned his cruiser so he could not use radar). Traxler also argues that the majority's new requirement for some sort of corroboration to the officer's observation has no basis in prior caselaw.
Wednesday, June 27, 2012
Friday, June 08, 2012
Pirates repelled by the USS Nicholas lose their appeals
US v. Dire, US v. Said: The crime of piracy returns to relevance in Dire, after several Somalis launched an ill-fated attack on a United States warship in disguise as a merchant vessel in the waters off the horn of Africa. Chiefly, the appellants argued that since they did not actually board and rob the USS Nicholas, that their actions did not, as a matter of law, amount to a piracy offense under 18 U.S.C. § 1651. The Fourth Circuit disagreed and upheld all the convictions.
The Fourth Circuit held that the statutes defining "piracy" here incorporate a definition of piracy that changes with advancements in the law of nations (derived from such international legal authorities as the United Nations Convention on the Law of the Sea, and the High Seas Convention), and the definition at the time of the appellants’ attack on the USS Nicholas encompassed the Somalis’ violent conduct (they fired AKs at the ship). The Fourth Circuit rejected the appellants’ challenge to the piracy convictions.
Another bone of contention in this appeal was whether the confessions obtained by U.S. servicemen aboard the USS Nicholas three days after the attack were appropriately advised of their Miranda rights. The appellants argued that there was a language barrier, they lacked any familiarity with the U.S. legal system, and they lacked education and were illiterate, in order to maintain that their waiver of their rights was not knowing or intelligent. The Fourth Circuit disagreed, and found that based upon a totality of the circumstances, the appellants must have known that they did not have to speak with the special agent investigating them and that they could request counsel.
In a companion case, US v. Said, the Fourth Circuit vacates the dismissal of the piracy count in a case arising from a separate attack on the USS Ashland, based upon its reasoning and holding in Dire.
The Fourth Circuit held that the statutes defining "piracy" here incorporate a definition of piracy that changes with advancements in the law of nations (derived from such international legal authorities as the United Nations Convention on the Law of the Sea, and the High Seas Convention), and the definition at the time of the appellants’ attack on the USS Nicholas encompassed the Somalis’ violent conduct (they fired AKs at the ship). The Fourth Circuit rejected the appellants’ challenge to the piracy convictions.
Another bone of contention in this appeal was whether the confessions obtained by U.S. servicemen aboard the USS Nicholas three days after the attack were appropriately advised of their Miranda rights. The appellants argued that there was a language barrier, they lacked any familiarity with the U.S. legal system, and they lacked education and were illiterate, in order to maintain that their waiver of their rights was not knowing or intelligent. The Fourth Circuit disagreed, and found that based upon a totality of the circumstances, the appellants must have known that they did not have to speak with the special agent investigating them and that they could request counsel.
In a companion case, US v. Said, the Fourth Circuit vacates the dismissal of the piracy count in a case arising from a separate attack on the USS Ashland, based upon its reasoning and holding in Dire.
Thursday, June 07, 2012
Halstead merger problem occurs in cases other than illegal gambling operations
US v. Cloud: William Roosevelt Cloud, convicted of several charges arising from a mortgage fraud conspiracy that he masterminded, raised several issues in this appeal: evidentiary rulings, the district court’s loss calculation, and the district court’s order directing him to reimburse his court-appointed attorneys fees. The Fourth Circuit affirmed on the first two issues, but vacated the reimbursement order. Cloud also argued that some of his money laundering convictions should be reversed due to a merger problem, and the Fourth Circuit agreed.
The scheme included at least fourteen others charged as co-conspirators, and it lasted from 1999 to 2005. Cloud’s scheme involved purchasing numerous properties, "flipping" them to buyers at increased prices, and banking the difference. He encouraged the unsuspecting buyers to purchase several properties, and in order to perpetuate the scheme, Cloud falsified loan applications, forged signatures, and provided false information to closing attorneys. Cloud signed false HUD-1 forms containing false information and distributed kickbacks to buyers, a mortgage broker, and recruiters who found buyers. The loss amount to lenders and the community totaled around $19 million.
With respect to the evidentiary issues, Cloud objected to victim-impact testimony, but the Fourth Circuit found that this type of testimony must meet only a low bar of relevancy, so it was properly admitted. Also admitted were conversations between Cloud and several tenants, from which an inference could be drawn that Cloud was dishonest with tenants to hide his scheme; the Fourth Circuit concluded that any error in admitting this testimony was harmless. The Fourth Circuit vacated the district court’s reimbursement order because no findings were made with respect to Cloud’s ability to pay for representation, nor whether Cloud had funds available for payment. Previously, the Fourth Circuit had rejected a similar order in United States v. Moore, so the directive to reimburse was vacated here.
Additionally, Cloud argued that his money laundering convictions must be reversed under United States v. Santos, as interpreted by the Fourth Circuit in United States v. Halstead. The Fourth Circuit agreed, and reversed those convictions. In Santos, the Supreme Court affirmed the vacatur of money laundering convictions that arose from an illegal gambling operations, when it determined that the money laundering offenses merged with the convictions for operating an illegal gambling business. Six counts against Cloud of promotional money laundering suffered from a "merger problem," as they charge illegal activity including money transactions to pay for the costs of his illegal activity, and the government also used those transactions to prosecute Cloud for money laundering. To put it another way, a merger problem does not arise when the financial transactions of the predicate offense are different from the transactions prosecuted as money laundering. Here, the six money laundering convictions were based on paying the "essential expenses" of the underlying fraud, so a merger problem existed, and the Fourth Circuit reversed the money laundering convictions with respect to those counts.
The scheme included at least fourteen others charged as co-conspirators, and it lasted from 1999 to 2005. Cloud’s scheme involved purchasing numerous properties, "flipping" them to buyers at increased prices, and banking the difference. He encouraged the unsuspecting buyers to purchase several properties, and in order to perpetuate the scheme, Cloud falsified loan applications, forged signatures, and provided false information to closing attorneys. Cloud signed false HUD-1 forms containing false information and distributed kickbacks to buyers, a mortgage broker, and recruiters who found buyers. The loss amount to lenders and the community totaled around $19 million.
With respect to the evidentiary issues, Cloud objected to victim-impact testimony, but the Fourth Circuit found that this type of testimony must meet only a low bar of relevancy, so it was properly admitted. Also admitted were conversations between Cloud and several tenants, from which an inference could be drawn that Cloud was dishonest with tenants to hide his scheme; the Fourth Circuit concluded that any error in admitting this testimony was harmless. The Fourth Circuit vacated the district court’s reimbursement order because no findings were made with respect to Cloud’s ability to pay for representation, nor whether Cloud had funds available for payment. Previously, the Fourth Circuit had rejected a similar order in United States v. Moore, so the directive to reimburse was vacated here.
Additionally, Cloud argued that his money laundering convictions must be reversed under United States v. Santos, as interpreted by the Fourth Circuit in United States v. Halstead. The Fourth Circuit agreed, and reversed those convictions. In Santos, the Supreme Court affirmed the vacatur of money laundering convictions that arose from an illegal gambling operations, when it determined that the money laundering offenses merged with the convictions for operating an illegal gambling business. Six counts against Cloud of promotional money laundering suffered from a "merger problem," as they charge illegal activity including money transactions to pay for the costs of his illegal activity, and the government also used those transactions to prosecute Cloud for money laundering. To put it another way, a merger problem does not arise when the financial transactions of the predicate offense are different from the transactions prosecuted as money laundering. Here, the six money laundering convictions were based on paying the "essential expenses" of the underlying fraud, so a merger problem existed, and the Fourth Circuit reversed the money laundering convictions with respect to those counts.
Friday, May 18, 2012
Vulnerable victim enhancement application affirmed
US v. Etoty: This appellant challenged the district court’s application of the "vulnerable victim" enhancement at the time of her sentencing for social security fraud and aggravated identity theft. At sentencing, Etoty argued that she did not specifically know whether the victim’s disability was physical or mental, and that the victim’s disability did not facilitate the fraud, which the district court rejected.
The Foruth Circuit reviews sentencing determinations under an abuse of discretion standard. Under the advisory sentencing guidelines, a two-level increase attaches if the "defendant knew or should have known that a victim of the offense was a vulnerable victim." A two-step analysis is thus employed to determine 1) that the victim was unusually vulnerable; and 2) that the defendant knew or should have known of this unusual vulnerability.
Evidence adduced at trial was found credible and the Fourth Circuit did not disturb the district court’s determination that the victim had a learning disability and a back problem, and that she received social security benefits. Additionally, Etoty conceded knowledge at trial that she knew the victim was disabled and was receiving disability payments - ample proof to the Fourth Circuit that Etoty knew the victim was indeed vulnerable.
The Foruth Circuit reviews sentencing determinations under an abuse of discretion standard. Under the advisory sentencing guidelines, a two-level increase attaches if the "defendant knew or should have known that a victim of the offense was a vulnerable victim." A two-step analysis is thus employed to determine 1) that the victim was unusually vulnerable; and 2) that the defendant knew or should have known of this unusual vulnerability.
Evidence adduced at trial was found credible and the Fourth Circuit did not disturb the district court’s determination that the victim had a learning disability and a back problem, and that she received social security benefits. Additionally, Etoty conceded knowledge at trial that she knew the victim was disabled and was receiving disability payments - ample proof to the Fourth Circuit that Etoty knew the victim was indeed vulnerable.
Bankruptcy-related fraud scheme conviction upheld
US v. R. Powell, Jr.: A grand jury named Powell in one count of a fifteen count Indictment, alleging he aided and abetted the making of a false entry in a bankruptcy-related document, as part of an associate, Pavlock’s, larger scheme to defraud. A jury convicted Powell of this one count. Powell raised four issues in his appeal, none of which the Fourth Circuit found meritorious: 1) the district court failed to provide several requested jury instructions; 2) the prosecutor referred to Powell and Pavlock as ‘liars,’ committing reversible misconduct; 3) defense counsel provided ineffective assistance; and 4) the district court declined to apply a mitigating role adjustment at Powell’s sentencing.
Powell’s first argument centers around the statute he was charged with violating, specifically whether it contains a materiality requirement. He argued that materiality is an element of the offense, in 18 U.S.C. sect. 1519; the Fourth Circuit disagreed under a plain reading of the statute; the 11th and 8th circuits have similarly held that sect. 1519 lacks a materiality element. Powell also wanted an advice-of-counsel defense instruction; the Fourth Circuit rejected this argument, finding that there was a lack of evidence supporting the application of this instruction. Lastly with this appeal issue, Powell wanted the jury to be instructed that his statement concerning the ownership of several limousines was true as a matter of law. The Fourth Circuit held that there was sufficient evidence presented at trial that Powell obtained title to these vehicles by fraud or theft by deception, so the titles did not establish ownership.
For Powell’s second appeal issue, Powell failed to object at trial to the prosecutor’s comment about him as a ‘liar,’ so under the plain error standard, he could not show that the remarks were improper, and so prejudiced his substantial rights that he was denied a fair trial. Previously, the Fourth Circuit held that calling a defendant a liar is not, per se, improper. In light of this and similar authority from some other circuits, Powell could not establish plain error.
The Fourth Circuit found that Powell’s ineffective assistance of counsel claim was premature, and that he could re-assert this claim in a sect. 2255 habeas petition.
Finally, Powell argued that he should have received a mitigating role adjustment. The critical inquiry for a sentencing court in considering this adjustment, according to the Fourth Circuit, is whether the ‘defendant’s conduct is material or essential to committing the offense,’ not just whether the defendant committed fewer ‘bad acts’ than a co-defendant. Here, the Fourth Circuit held that it would be reasonable to find that Powell’s conduct was essential and material, so this issue, like the others, failed.
Powell’s first argument centers around the statute he was charged with violating, specifically whether it contains a materiality requirement. He argued that materiality is an element of the offense, in 18 U.S.C. sect. 1519; the Fourth Circuit disagreed under a plain reading of the statute; the 11th and 8th circuits have similarly held that sect. 1519 lacks a materiality element. Powell also wanted an advice-of-counsel defense instruction; the Fourth Circuit rejected this argument, finding that there was a lack of evidence supporting the application of this instruction. Lastly with this appeal issue, Powell wanted the jury to be instructed that his statement concerning the ownership of several limousines was true as a matter of law. The Fourth Circuit held that there was sufficient evidence presented at trial that Powell obtained title to these vehicles by fraud or theft by deception, so the titles did not establish ownership.
For Powell’s second appeal issue, Powell failed to object at trial to the prosecutor’s comment about him as a ‘liar,’ so under the plain error standard, he could not show that the remarks were improper, and so prejudiced his substantial rights that he was denied a fair trial. Previously, the Fourth Circuit held that calling a defendant a liar is not, per se, improper. In light of this and similar authority from some other circuits, Powell could not establish plain error.
The Fourth Circuit found that Powell’s ineffective assistance of counsel claim was premature, and that he could re-assert this claim in a sect. 2255 habeas petition.
Finally, Powell argued that he should have received a mitigating role adjustment. The critical inquiry for a sentencing court in considering this adjustment, according to the Fourth Circuit, is whether the ‘defendant’s conduct is material or essential to committing the offense,’ not just whether the defendant committed fewer ‘bad acts’ than a co-defendant. Here, the Fourth Circuit held that it would be reasonable to find that Powell’s conduct was essential and material, so this issue, like the others, failed.
2nd Degree Murder conviction affirmed
US v. DeLeon: A jury convicted DeLeon of the second-degree murder and assault of his 8-year-old step-son. In this appeal, DeLeon raised five issues for review: whether the district court erred in 1) admitting a social worker’s hearsay testimony in violation of DeLeon’s 6th Amendment right to confrontation; 2) admitting hearsay testimony of a social worker, a Japanese woman who encountered the boy in the street, and DeLeon’s step-daughter in violation of the rules of evidence; 3) limiting the defense expert’s testimony; 4) admitting under 404(b) DeLeon’s prior acts of physical punishment of his step-children; and 5) treating the age of the boy as a sentencing factor to be determined by the court, not the jury.
The boy, Jordan, died of internal injuries that resulted from blunt force trauma. Five months prior to Jordan’s death, the family met with a social worker to deal with suspected child abuse in the family home. The social worker had several subsequent meetings with Jordan and the family to provide counseling, but to no avail. No one could testify to witnessing the specific acts that caused Jordan’s injuries, so the case was entirely circumstantial. Additionally, Jordan’s younger sister later recanted the statements she made to police in investigations shortly after Jordan’s death, which described a history of child abuse. Many of the admissions that DeLeon objected to at trial were statements detailing the abuse Jordan suffered.
DeLeon’s first constitutional claim, that the admission of the social worker’s hearsay testimony violated his 6th Amendment right to confrontation, failed because the statements Jordan made to the social worker were made during a course of therapy for the purposes of developing a plan of treatment, and thus, the statements were not made in anticipation of a criminal action or investigation, nor were the statements testimonial.
DeLeon’s other constitutional claim, that his 6th Amendment rights were violated by the imposing of a mandatory minimum sentence based on Jordan’s age, which was not a question of fact put to the jury. The Fourth Circuit concluded that under the statute governing DeLeon’s second degree murder conviction, 18 U.S.C. § 3559(f)(1), age is a sentencing factor rather than an element of the crime. Additionally, the age of the victim is not a characteristic of the offender, so legal tradition supports the conclusion that age is a sentencing factor.
The boy, Jordan, died of internal injuries that resulted from blunt force trauma. Five months prior to Jordan’s death, the family met with a social worker to deal with suspected child abuse in the family home. The social worker had several subsequent meetings with Jordan and the family to provide counseling, but to no avail. No one could testify to witnessing the specific acts that caused Jordan’s injuries, so the case was entirely circumstantial. Additionally, Jordan’s younger sister later recanted the statements she made to police in investigations shortly after Jordan’s death, which described a history of child abuse. Many of the admissions that DeLeon objected to at trial were statements detailing the abuse Jordan suffered.
DeLeon’s first constitutional claim, that the admission of the social worker’s hearsay testimony violated his 6th Amendment right to confrontation, failed because the statements Jordan made to the social worker were made during a course of therapy for the purposes of developing a plan of treatment, and thus, the statements were not made in anticipation of a criminal action or investigation, nor were the statements testimonial.
DeLeon’s other constitutional claim, that his 6th Amendment rights were violated by the imposing of a mandatory minimum sentence based on Jordan’s age, which was not a question of fact put to the jury. The Fourth Circuit concluded that under the statute governing DeLeon’s second degree murder conviction, 18 U.S.C. § 3559(f)(1), age is a sentencing factor rather than an element of the crime. Additionally, the age of the victim is not a characteristic of the offender, so legal tradition supports the conclusion that age is a sentencing factor.
Community Caretaking Function: another exception to the warrant requirement?
US v. Laudermilt: In this appeal, the Fourth Circuit reversed and remanded the district court’s decision to grant the defendant’s motion to suppress; the government filed this interlocutory appeal. The defendant, Laudermilt, was indicted for being a felon in possession. Defendant argued that the police seized the gun during an illegally protracted protective sweep. The district court believed that the police exceeded the proper scope of a legal protective sweep and granted the defendant’s motion to suppress.
The Fourth Circuit analyzed the facts here, and decided that the district court got it wrong, finding that the police had a community caretaking function which permitted them to remain in the residence without a warrant while the protective sweep was ongoing, and after it concluded. The weapon was found after the police returned the defendant’s fourteen-year-old brother to the kitchen from outside where the defendant had been taken into custody, and questioned the teenager as to the location of the firearm. The Fourth Circuit concluded that the officers’ actions here were consistent with the Fourth Amendment.
DISCLAIMER: the author of this blog post is also counsel in this case.
The Fourth Circuit analyzed the facts here, and decided that the district court got it wrong, finding that the police had a community caretaking function which permitted them to remain in the residence without a warrant while the protective sweep was ongoing, and after it concluded. The weapon was found after the police returned the defendant’s fourteen-year-old brother to the kitchen from outside where the defendant had been taken into custody, and questioned the teenager as to the location of the firearm. The Fourth Circuit concluded that the officers’ actions here were consistent with the Fourth Amendment.
DISCLAIMER: the author of this blog post is also counsel in this case.
Monday, May 14, 2012
Procedural error in sentencing; insufficient fact findings
US v. E. Davis: The appellant, Davis, pleaded guilty to being a felon in possession in ammunition, and had been sentenced with a cross-reference to the robbery sentencing guideline. Previously, Davis had pleaded "no contest" in North Carolina to a robbery charge in a related, state court prosecution. In this appeal, Davis challenges the application of the robbery advisory sentencing guideline, as insufficient evidence supported the cross-reference. The Fourth Circuit vacated and remanded the district court’s sentence because the district court failed to resolve a factual dispute in its application of the robbery guideline, thus appellate review was constrained.
The Fourth Circuit found that the correct application of the guidelines hinges on factual determinations to be made by the district court. Here, there were two plausible factual scenarios on the record which could have explained how a cell phone came into Davis’s possession; the manner in which Davis came to possess the cell phone is key to the correct guideline application. The Fourth Circuit held that Davis’s "no contest" plea to common law robbery could not provide the necessary evidentiary basis for the robbery guideline cross-reference application.
The Fourth Circuit sends the case back to the district court to determine whether the government has met its burden of proof, and whether the robbery cross-reference should legitimately apply in this case.
The Fourth Circuit found that the correct application of the guidelines hinges on factual determinations to be made by the district court. Here, there were two plausible factual scenarios on the record which could have explained how a cell phone came into Davis’s possession; the manner in which Davis came to possess the cell phone is key to the correct guideline application. The Fourth Circuit held that Davis’s "no contest" plea to common law robbery could not provide the necessary evidentiary basis for the robbery guideline cross-reference application.
The Fourth Circuit sends the case back to the district court to determine whether the government has met its burden of proof, and whether the robbery cross-reference should legitimately apply in this case.
Initial encounter found not consensual
US v. F. Jones: In this appeal, the Fourth Circuit considered the denial of a motion to suppress evidence seized as a result of a traffic stop in a "high crime neighborhood" and reversed, reasoning that the initial encounter was not consensual and infringed the appellant’s Fourth Amendment rights.
The Fourth Circuit distinguished this case from other police-citizen encounters, as the citizen here knew that police officers were conspicuously following him, rather than a case where a citizen was unaware of any police presence, and is approached by officers seemingly at random. This case lacked a "traditional hallmark of a police-citizen consensual encounter: the seemingly routine approach of the police officer." This was involved a targeted vehicle, and the police blocked the vehicle’s only exit from the scene of the encounter with a police cruiser, without having observed any traffic violations. Jones, an African American, was simply driving a vehicle with New York tags in Richmond, with three other African American men in the car with him, observed by a police officer who "thought that that vehicle did not belong there and that the people in the vehicle didn’t belong there."
The Fourth Circuit believed that the totality of the circumstances in this case would suggest to a reasonable person in Jones’ position, that the officers suspected him of illegal activity in a "high crime area," that he was a target, and that he was not free to leave or walk away. The panel concluded that the officers detained Jones before having any legal justification to do so.
Way to go, FPD in Richmond!
The Fourth Circuit distinguished this case from other police-citizen encounters, as the citizen here knew that police officers were conspicuously following him, rather than a case where a citizen was unaware of any police presence, and is approached by officers seemingly at random. This case lacked a "traditional hallmark of a police-citizen consensual encounter: the seemingly routine approach of the police officer." This was involved a targeted vehicle, and the police blocked the vehicle’s only exit from the scene of the encounter with a police cruiser, without having observed any traffic violations. Jones, an African American, was simply driving a vehicle with New York tags in Richmond, with three other African American men in the car with him, observed by a police officer who "thought that that vehicle did not belong there and that the people in the vehicle didn’t belong there."
The Fourth Circuit believed that the totality of the circumstances in this case would suggest to a reasonable person in Jones’ position, that the officers suspected him of illegal activity in a "high crime area," that he was a target, and that he was not free to leave or walk away. The panel concluded that the officers detained Jones before having any legal justification to do so.
Way to go, FPD in Richmond!
Friday, May 11, 2012
Proper factors for consideration when determining the extent of a sentencing reduction
US v. D. Davis: In this appeal, the appellant challenges the district court's decision to grant the government's Rule 35(b) motion for sentence reduction, for considering other factors than his substantial assistance in determining the extent of the reduction. The factors the district court considered included the appellant's offense of conviction, his criminal history, and a prior reduction in his guidelines range following the government's 5K1.1 motion. The Fourth Circuit affirmed the district court's judgment.
After determining whether the Fourth Circuit had jurisdiction to hear the appeal in the affirmative, the panel considered whether the district court committed any error in considering factors other than the appellant's cooperation with the police in fashioning his sentence reduction following the decision to grant the government's Rule 35(b) motion. The Fourth Circuit distinguishes this case from others it has decided on what factors to consider in analyzing whether to grant a Rule 35(b) motion; in those cases, the Fourth Circuit has stated that district courts may not consider any factor other than the defendant's substantial assistance to the government. Here, the Fourth Circuit determines that the district court is not so limited, based on the plain language of Rule 35(b) and the explicit holdings of several other circuits in agreement.
After determining whether the Fourth Circuit had jurisdiction to hear the appeal in the affirmative, the panel considered whether the district court committed any error in considering factors other than the appellant's cooperation with the police in fashioning his sentence reduction following the decision to grant the government's Rule 35(b) motion. The Fourth Circuit distinguishes this case from others it has decided on what factors to consider in analyzing whether to grant a Rule 35(b) motion; in those cases, the Fourth Circuit has stated that district courts may not consider any factor other than the defendant's substantial assistance to the government. Here, the Fourth Circuit determines that the district court is not so limited, based on the plain language of Rule 35(b) and the explicit holdings of several other circuits in agreement.
Quantum of evidence for drug conspiracy
US v. Edmonds: A jury convicted Edmonds of a single conspiracy count to traffic more than 50 grams of crack, and three counts of crack distribution. This appellant challenged the jury’s findings that he participated in a drug conspiracy, in addition to two sentencing challenges. The Fourth Circuit affirmed.
According to the Fourth Circuit, conspiracy is proved by demonstrating agreement or understanding between two or more persons to commit an offense. Additionally, when the conspiracy involves the sale of cocaine, a conspiracy to commit the distribution of cocaine must involve an agreement separate from the distribution conduct that is the object of the conspiracy. If the drug transaction includes in addition to the bare agreement inherent in a sale, an agreement that the buyer will resell the cocaine in the marketplace, the two participants to the distribution transaction have also "conspired" to the redistribution of cocaine, and thus, they can be guilty of the distribution offense, and a conspiracy offense.
The government does not need to prove an explicit agreement occurred. Some types of indirect evidence that will suffice for a conviction include the amount of cocaine involved in a transaction; the regularity of drug transactions between two parties; the "fronting" of drugs for payment later, which implied a sort of credit arrangement; and essentially any agreement made in addition to or beyond a simple buy-sell transaction can be used to infer a conspiratorial relationship. The agreement which forms a conspiracy, however, cannot exist between an individual and a government agent.
Here, the statements the appellant made during several controlled purchases conducted in this case were used to establish the conspiracy, especially his comment, "you know me."
According to the Fourth Circuit, conspiracy is proved by demonstrating agreement or understanding between two or more persons to commit an offense. Additionally, when the conspiracy involves the sale of cocaine, a conspiracy to commit the distribution of cocaine must involve an agreement separate from the distribution conduct that is the object of the conspiracy. If the drug transaction includes in addition to the bare agreement inherent in a sale, an agreement that the buyer will resell the cocaine in the marketplace, the two participants to the distribution transaction have also "conspired" to the redistribution of cocaine, and thus, they can be guilty of the distribution offense, and a conspiracy offense.
The government does not need to prove an explicit agreement occurred. Some types of indirect evidence that will suffice for a conviction include the amount of cocaine involved in a transaction; the regularity of drug transactions between two parties; the "fronting" of drugs for payment later, which implied a sort of credit arrangement; and essentially any agreement made in addition to or beyond a simple buy-sell transaction can be used to infer a conspiratorial relationship. The agreement which forms a conspiracy, however, cannot exist between an individual and a government agent.
Here, the statements the appellant made during several controlled purchases conducted in this case were used to establish the conspiracy, especially his comment, "you know me."
Tuesday, May 01, 2012
Convictions, Life Sentence, Affirmed in MS-13 Prosecution
US v. Palacios: Palacios was a member of MS-13 and was involved in planning the murder of a friend of the gang who was "fraternizing with rival gang members." As a result, he was charged with (among other things) conspiracy to participate in a racketeering enterprise, conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, use of a firearm in relation to a crime of violence, and murder resulting from that use of a firearm. He was convicted on those charges after a jury trial and sentenced to life in prison, plus a consecutive term of 240 months.
On appeal, Palacios raised several arguments challenging his convictions, all of which the Fourth Circuit rejected. First, Palacios argued that the testimony of a police officer as an expert witness on MS-13 violated his right to confront witnesses against him. Relying on prior precedent (involving the same officer, no less) the court held that the testimony did not run afoul of the Confrontation Clause, even if it was based on interviews that would have constituted testimonial statements subject to the Clause under Crawford. Second, the court rejected Palacios's argument that the Government introduced prior bad act evidence without proper notice under FRE 404(b), concluding that the evidence was not actually governed by FRE 404(b) because it involved the acts charged in the indictment itself, not acts committed beforehand. The court also concluded that no other authority (including a pretrial discovery agreement between the parties) compelled its disclosure before trial. Third, Palacios argued that the district court erred by admitting the testimony of his cellmate without prior notice from the Government. The court disagreed, holding that the disclosure requirement of Rule 16(a)(1)(A) applies only to statements made in response to state interrogation and did not include the cellmate (even if he had already signed a plea agreement and was looking to cooperate). Finally, the court rejected Palacios's arguments that there was insufficient evidence to sustain his convictions, particularly as to whether MS-13 was an "enterprise" and the murder in aid of racketeering conviction.
On appeal, Palacios raised several arguments challenging his convictions, all of which the Fourth Circuit rejected. First, Palacios argued that the testimony of a police officer as an expert witness on MS-13 violated his right to confront witnesses against him. Relying on prior precedent (involving the same officer, no less) the court held that the testimony did not run afoul of the Confrontation Clause, even if it was based on interviews that would have constituted testimonial statements subject to the Clause under Crawford. Second, the court rejected Palacios's argument that the Government introduced prior bad act evidence without proper notice under FRE 404(b), concluding that the evidence was not actually governed by FRE 404(b) because it involved the acts charged in the indictment itself, not acts committed beforehand. The court also concluded that no other authority (including a pretrial discovery agreement between the parties) compelled its disclosure before trial. Third, Palacios argued that the district court erred by admitting the testimony of his cellmate without prior notice from the Government. The court disagreed, holding that the disclosure requirement of Rule 16(a)(1)(A) applies only to statements made in response to state interrogation and did not include the cellmate (even if he had already signed a plea agreement and was looking to cooperate). Finally, the court rejected Palacios's arguments that there was insufficient evidence to sustain his convictions, particularly as to whether MS-13 was an "enterprise" and the murder in aid of racketeering conviction.
Tuesday, April 24, 2012
Lengthy Detention of Vehicle OK, Use of Prior Bad Act Not So Much
US v. McBride: Officers in South Carolina were performing surveillance of a club parking lot at about 6:15 in the evening. Their attention was drawn to the club, which has in the past been a site of drug dealing, because there were several cars in the parking lot at the time, although the officers thought the club usually opened around midnight. Officers saw what they thought might be a drug deal, which transpired in and around a black Cadillac SLS in the parking lot. When one of the men involved drove away in the rain without his lights on, the officers pulled him over. A subsequent search of that vehicle uncovered a large amount of cash.
The officers returned the club and went inside and were met at the door by McBride, who was the other man involved in the alleged drug deal they had observed. The officers repeatedly told McBride and the others in the club that they were free to leave, but their vehicles outside were being detained pending the arrival of a drug dog from the next county. At first, McBride claimed that the SLS was his, but after the drug dog was mentioned he "got very[,] very loud, nervous, [began] pacing back and forth, [and was] sweating profusely." He also recanted his claim to ownership of the SLS. After again being told he was free to leave (without his car), McBride left the club. The drug dog arrived about an hour after the "detention" began and alerted on the SLS. A later search pursuant to a warrant uncovered cash, drugs, and a firearm.
McBride was charged with gun and drugs offenses and moved to suppress the evidence seized from the SLS, which the district court denied. McBride went to trial, where the Government introduced prior bad act evidence under FRE 404(b) from a CI who had tried to purchase crack from McBride in the past, but could not because the drugs were in the process of being cooked from powder to crack cocaine. The district court instructed the jury that it could only consider the CI's testimony as to the issue of McBride's knowledge, intent, or lack of mistake. McBride was convicted on all counts and sentenced to 235 months.
On appeal, McBride challenged both the denial of his motion to suppress and the admission of the 404(b) evidence. As to the search, he made two arguments, both of which the Fourth Circuit rejected. First, he argued that the officers lacked reasonable suspicion to detain the SLS. The court disagreed, pointing to the officers' prior knowledge of the club and McBride, the potential drug deal that took place in the parking lot (and the resulting traffic stop and search), and the fact that so many people were at the club during non-business hours. Second, McBride argued that even if the initial detention of the SLS was proper, the nearly hour-long delay caused by waiting for the drug dog was unreasonable. The court disagreed, noting that the nature of the detention "did not impede McBride during any travel, because McBride already had arrived at his club" and that the duration of the detention, while lengthy, was not the result of any lack of diligence on the part of the officers. As to the 404(b) evidence, the court agreed with McBride that it was improperly admitted because it was of dubious relevance to McBride's charged drug offense (possession with intent) and unduly prejudicial. Further, the court was unable to conclude that the error was harmless. Thus, McBride's convictions for possession with intent and using a gun during a drug trafficking offense were reversed, while the conviction for being a felon in possession of a firearm was affirmed.
Judge Wilkinson dissented on the 404(b) issue, arguing that the majority's position "pulls the trial process away from both the trial court and the jury, substituting its own assessment of the relevance and weight of the defendant's prior criminal activity."
The officers returned the club and went inside and were met at the door by McBride, who was the other man involved in the alleged drug deal they had observed. The officers repeatedly told McBride and the others in the club that they were free to leave, but their vehicles outside were being detained pending the arrival of a drug dog from the next county. At first, McBride claimed that the SLS was his, but after the drug dog was mentioned he "got very[,] very loud, nervous, [began] pacing back and forth, [and was] sweating profusely." He also recanted his claim to ownership of the SLS. After again being told he was free to leave (without his car), McBride left the club. The drug dog arrived about an hour after the "detention" began and alerted on the SLS. A later search pursuant to a warrant uncovered cash, drugs, and a firearm.
McBride was charged with gun and drugs offenses and moved to suppress the evidence seized from the SLS, which the district court denied. McBride went to trial, where the Government introduced prior bad act evidence under FRE 404(b) from a CI who had tried to purchase crack from McBride in the past, but could not because the drugs were in the process of being cooked from powder to crack cocaine. The district court instructed the jury that it could only consider the CI's testimony as to the issue of McBride's knowledge, intent, or lack of mistake. McBride was convicted on all counts and sentenced to 235 months.
On appeal, McBride challenged both the denial of his motion to suppress and the admission of the 404(b) evidence. As to the search, he made two arguments, both of which the Fourth Circuit rejected. First, he argued that the officers lacked reasonable suspicion to detain the SLS. The court disagreed, pointing to the officers' prior knowledge of the club and McBride, the potential drug deal that took place in the parking lot (and the resulting traffic stop and search), and the fact that so many people were at the club during non-business hours. Second, McBride argued that even if the initial detention of the SLS was proper, the nearly hour-long delay caused by waiting for the drug dog was unreasonable. The court disagreed, noting that the nature of the detention "did not impede McBride during any travel, because McBride already had arrived at his club" and that the duration of the detention, while lengthy, was not the result of any lack of diligence on the part of the officers. As to the 404(b) evidence, the court agreed with McBride that it was improperly admitted because it was of dubious relevance to McBride's charged drug offense (possession with intent) and unduly prejudicial. Further, the court was unable to conclude that the error was harmless. Thus, McBride's convictions for possession with intent and using a gun during a drug trafficking offense were reversed, while the conviction for being a felon in possession of a firearm was affirmed.
Judge Wilkinson dissented on the 404(b) issue, arguing that the majority's position "pulls the trial process away from both the trial court and the jury, substituting its own assessment of the relevance and weight of the defendant's prior criminal activity."
Commerce Clause Covers Cockfighting; DIY Wikipedia Research from Juror Requires Reversal
US v. Lawson and US v. Gibert: These two cases involve multiple prosecutions and convictions under the federal statute criminalizing "animal fighting venture[s]" (in this case, cockfighting). Lawson and his codefendants went to trial, while Gibert and codefendants entered guilty pleas. Although the cases were argued together, the court entered separate opinions at the same time due to their "distinct legal issues."
Gibert (and his codefendants) pleaded guilty to conspiring to violate 7 USC 2156, which prohibits (among other things) "sponsor[ing] or exhibit[ing] an animal in an animal fighting venture." As part of a plea agreement, he reserved the right to challenged the constitutionality of the statute on appeal. He did so on two grounds, that the statute exceeds Congress's authority under the Commerce Clause and that, to survive scrutiny, the statute must be read to require the Government to prove that the defendant knew the animal fighting venture was "in or affected interstate commerce." The Fourth Circuit rejected both arguments. As to the Commerce Clause argument, the court noted that section 2156 (from the Animal Welfare Act) is part of a "comprehensive regulatory scheme" and quoted liberally from the legislative history leading to its enactment. The court concluded that "we have no difficulty concluding that Congress acted within the limitations established by the Commerce Clause." Specifically, the court found that the statute had the required nexus to interstate commerce. As to the scienter argument, the court concluded that similar statutes based on the interstate nexus do not require the defendant's knowledge and neither does this one.
Lawson and many codefendants went to trial and were convicted on multiple counts relating to the cockfighting operation. On appeal, he raised several issues, most of which the Fourth Circuit rejected. First, it relied on Gibert to reject Lawson's argument that the statute violated the Commerce Clause. Second, the court rejected Lawson's argument that because the Government had to prove an additional element during prosecutions in districts where animal fighting was legal (no states and only a few territories meet that criterion) it violated equal protection. Third, the court concluded that the district court did not clearly abuse its discretion to deny Lawson's request for a trial separate from his codefendants.
The court also rejected two arguments raised by four of Lawson's codefendants (referred to collectively as Dyal) who were convicted of conspiracy to engage in an illegal gambling business and operating an illegal gambling business. First, the court concluded that the district court did not err by failing to instruct the jury that the Government must prove that Dyal knew their conduct was illegal under state law and that they weren't operating in good faith. Second, the court concluded that the district court did not err by instructing the jury that the state gambling statute at issue was violated when "a person pays a fee to enter a contest of skill and the winnings depend on the number of entries."
However, the court did vacate Lawson's convictions, due to juror misconduct. During deliberations, one of the jurors did some research on Wikipedia (really!) on the meaning of "sponsorship" (one of the elements of the offenses) and brought the fruits of his/her labor into the jury room. Applying a presumption of prejudice due to the juror's DIY research, the court concluded that the Government could not rebut that presumption. As a result, the convictions of the defendants convicted under AWA were vacated, although the conspiracy counts related to gambling (with two exceptions) were not.
Gibert (and his codefendants) pleaded guilty to conspiring to violate 7 USC 2156, which prohibits (among other things) "sponsor[ing] or exhibit[ing] an animal in an animal fighting venture." As part of a plea agreement, he reserved the right to challenged the constitutionality of the statute on appeal. He did so on two grounds, that the statute exceeds Congress's authority under the Commerce Clause and that, to survive scrutiny, the statute must be read to require the Government to prove that the defendant knew the animal fighting venture was "in or affected interstate commerce." The Fourth Circuit rejected both arguments. As to the Commerce Clause argument, the court noted that section 2156 (from the Animal Welfare Act) is part of a "comprehensive regulatory scheme" and quoted liberally from the legislative history leading to its enactment. The court concluded that "we have no difficulty concluding that Congress acted within the limitations established by the Commerce Clause." Specifically, the court found that the statute had the required nexus to interstate commerce. As to the scienter argument, the court concluded that similar statutes based on the interstate nexus do not require the defendant's knowledge and neither does this one.
Lawson and many codefendants went to trial and were convicted on multiple counts relating to the cockfighting operation. On appeal, he raised several issues, most of which the Fourth Circuit rejected. First, it relied on Gibert to reject Lawson's argument that the statute violated the Commerce Clause. Second, the court rejected Lawson's argument that because the Government had to prove an additional element during prosecutions in districts where animal fighting was legal (no states and only a few territories meet that criterion) it violated equal protection. Third, the court concluded that the district court did not clearly abuse its discretion to deny Lawson's request for a trial separate from his codefendants.
The court also rejected two arguments raised by four of Lawson's codefendants (referred to collectively as Dyal) who were convicted of conspiracy to engage in an illegal gambling business and operating an illegal gambling business. First, the court concluded that the district court did not err by failing to instruct the jury that the Government must prove that Dyal knew their conduct was illegal under state law and that they weren't operating in good faith. Second, the court concluded that the district court did not err by instructing the jury that the state gambling statute at issue was violated when "a person pays a fee to enter a contest of skill and the winnings depend on the number of entries."
However, the court did vacate Lawson's convictions, due to juror misconduct. During deliberations, one of the jurors did some research on Wikipedia (really!) on the meaning of "sponsorship" (one of the elements of the offenses) and brought the fruits of his/her labor into the jury room. Applying a presumption of prejudice due to the juror's DIY research, the court concluded that the Government could not rebut that presumption. As a result, the convictions of the defendants convicted under AWA were vacated, although the conspiracy counts related to gambling (with two exceptions) were not.
Rule 11 Doesn't Require Notice of Loss of Benefits
US v. Nicholson: Nicholson was charged with federal workers comp fraud and entered a guilty plea. Prior to sentencing, Nicholson asked to withdraw his plea on several grounds, including that he was under the influence of prescription pain killers at the time and "credibly asserting his legal innocence." Although the item that spurred him to move to withdraw his plea was a letter from the government "terminating all future benefits and wages," that was not among the grounds cited as a basis to withdraw the plea. The district court denied the motion to withdraw and sentenced Nicholson to probation.
On appeal, Nicholson raised several issues with regards to his plea, all of which the Fourth Circuit rejected. First, the court concluded (applying plain error) that there was no violation of Rule 11 by the district court when it failed to explain to Nicholson that a conviction would make him ineligible for future benefits because that was a collateral, not direct, consequence of his conviction. Second, the court concluded that the district court conducted an adequate inquiry into Nicholson's competency at the Rule 11 hearing, inquiring if he had taken any substances prior to the hearing and what those were. Finally, the court concluded that the district court did not abuse its discretion by denying the motion to withdraw Nicholson's plea because there was no fair and just reason for doing so.
On appeal, Nicholson raised several issues with regards to his plea, all of which the Fourth Circuit rejected. First, the court concluded (applying plain error) that there was no violation of Rule 11 by the district court when it failed to explain to Nicholson that a conviction would make him ineligible for future benefits because that was a collateral, not direct, consequence of his conviction. Second, the court concluded that the district court conducted an adequate inquiry into Nicholson's competency at the Rule 11 hearing, inquiring if he had taken any substances prior to the hearing and what those were. Finally, the court concluded that the district court did not abuse its discretion by denying the motion to withdraw Nicholson's plea because there was no fair and just reason for doing so.
Counterfeit Goods Convictions Affirmed
US v. Lam: Lam and his codefendant, Chan, "owned or otherwise controlled" at least 10 companies that imported handbag and wallets into the United States. Some of them were allegedly counterfeit. After a seizure of goods in Norfolk in 2005, Lam and Chan were charged with conspiracy to traffic in counterfeit goods, trafficking, and smuggling, based on purses that bore markings and logos similar to those on products made by Burberry. At trial, the main issue was whether the marks on the seized bags were "identical or substantially indistinguishable from" the Burberry marks. After the district court denied their pretrial motion to have "substantially indistinguishable" declared unconstitutionally vague, Lam and Chan were convicted after a jury trial of conspiracy, trafficking, and smuggling (although not with regards to all the alleged fraudulent goods). The verdict was "based, in part, on [the jury's] determination that the plaid displayed on the goods seized . . . was a counterfeit of the Burberry Check mark."
Lam and Chan raised several issues on appeal, all of which the Fourth Circuit rejected. First, they argued that there was insufficient evidence to support their convictions. The court concluded otherwise, holding that the fact that the seized goods included plaid mark with a knight imposed upon it could be found sufficiently similar to good with just a plaid mark (adding that those, in some cases, had an equestrian mark superimposed on them) and noting that counterfeit goods are not required to be exact matches of the products they are copying. Second, the court rejected their argument that the jury plainly erred in instructing the jury about what it could consider when determining if the goods were counterfeit. Third, the court concluded that "substantially indistinguishable" was "sufficiently clear to allow an ordinary person to understand what conduct it punishes" and was therefore not unconstitutionally vague, as all other circuits to deal with the issue also concluded. Finally, Lam and Chan argued that they were entitled to a new trial (which the district court erred by not giving them) due to comments by the prosecution during trial that misstated the "perspective the jury should use" when determining if the goods were counterfeit, relying on a "average person on the street" view rather than the jurors' own judgment. The court concluded that it was not an abuse of discretion for the district court to conclude that its instructions cured any problems raised by the Government's statements.
Judge Floyd dissented, arguing that the Government's comments about the "average person on the street" perspective were not overcome by the district court's instructions, noting that the Government "misstated the legal standard governing the key issue" eight times, six times after the first of the defense's four objections.
Lam and Chan raised several issues on appeal, all of which the Fourth Circuit rejected. First, they argued that there was insufficient evidence to support their convictions. The court concluded otherwise, holding that the fact that the seized goods included plaid mark with a knight imposed upon it could be found sufficiently similar to good with just a plaid mark (adding that those, in some cases, had an equestrian mark superimposed on them) and noting that counterfeit goods are not required to be exact matches of the products they are copying. Second, the court rejected their argument that the jury plainly erred in instructing the jury about what it could consider when determining if the goods were counterfeit. Third, the court concluded that "substantially indistinguishable" was "sufficiently clear to allow an ordinary person to understand what conduct it punishes" and was therefore not unconstitutionally vague, as all other circuits to deal with the issue also concluded. Finally, Lam and Chan argued that they were entitled to a new trial (which the district court erred by not giving them) due to comments by the prosecution during trial that misstated the "perspective the jury should use" when determining if the goods were counterfeit, relying on a "average person on the street" view rather than the jurors' own judgment. The court concluded that it was not an abuse of discretion for the district court to conclude that its instructions cured any problems raised by the Government's statements.
Judge Floyd dissented, arguing that the Government's comments about the "average person on the street" perspective were not overcome by the district court's instructions, noting that the Government "misstated the legal standard governing the key issue" eight times, six times after the first of the defense's four objections.
Third Time's the Charm for Terrorism Enhancement
US v. Chandia: This is the third appeal for Chandia as to his sentence, imposed following his conviction for providing and conspiring to provide material support to terrorists and a foreign terrorist organization. All the appeals revolve around the district court's application of the "federal crime of terrorism" enhancement in USSG 3A1.4. In the first appeal, the Fourth Circuit vacated Chandia's sentence and remanded for a "fresh analysis" about the enhancement, particularly whether Chandia had the intent necessary to trigger it. In the second appeal, the Fourth Circuit vacated the sentence due to the district court's failure to resolve factual disputes and explain its findings. On remand for the second time, the district court again concluded that the enhancement applied and imposed a sentence of 180 months in prison.
On appeal, Chandia challenged his sentence as procedurally unreasonable. This time, the Fourth Circuit affirmed. First, it rejected Chandia's argument that the factual basis for the enhancement should have been found by clear and convincing evidence due to the severity of the enhancement. Second, it rejected Chandia's argument that the factual basis, even under a preponderance standard, was not sufficient to support the enhancement (the court spends several pages laying out the details of the facts of the case). Finally, the court rejected Chandia's argument that the district court did not adequately consider all the relevant 3553(a) factors before imposing a within-the-Guideline-range sentence.
On appeal, Chandia challenged his sentence as procedurally unreasonable. This time, the Fourth Circuit affirmed. First, it rejected Chandia's argument that the factual basis for the enhancement should have been found by clear and convincing evidence due to the severity of the enhancement. Second, it rejected Chandia's argument that the factual basis, even under a preponderance standard, was not sufficient to support the enhancement (the court spends several pages laying out the details of the facts of the case). Finally, the court rejected Chandia's argument that the district court did not adequately consider all the relevant 3553(a) factors before imposing a within-the-Guideline-range sentence.
Thursday, March 29, 2012
One conviction (of eleven) vacated for improper venue
US v. Jefferson: This appeal stems from a highly-publicized corruption case involving a former United States House member from Louisiana, William J. Jefferson, who engaged in "an ongoing course of illicit and repugnant conduct - conduct for which he was compensated considerably by those on whose behalf he was acting." The facts of the case below are described in great detail in this opinion, and can be located elsewhere on the Web; briefly, Jefferson received 11 convictions and the longest sentence ever given to a congressman for bribery or any other crime.
Important for this appeal is the definition of the term "official act," and venue for the honest services wire fraud offense. The Fourth Circuit discusses what constitutes an "official act" at great length, and for anyone representing a public official, this discussion may be useful. More relevant may be the discussion of venue for an honest services wire fraud offense, in which the Fourth Circuit determined the venue was improper and vacated this conviction.
Here, there is no specific venue provision in the statutes at stake, 18 U.S.C. §§ 1343 and 1346, so venue lies where the essential conduct elements took place. Jefferson contended that venue did not lie in the Eastern District of Virginia because the phone call underlying this count was neither begun nor completed in that district. The Fourth Circuit reviewed the essential elements of the honest services wire fraud offense and determined that the misuse of mail or wire is the actus reus punishable by federal law. Finding itself in agreement with the 2nd and 9th Circuits, the Fourth Circuit determined that venue is established in those locations where the wire transfer either originated or was received, so it did not lie in Virginia here. It could lie in Kentucky, though, and the Fourth Circuit pointed out that as the location where the call was received, and where this charge could be properly brought.
Important for this appeal is the definition of the term "official act," and venue for the honest services wire fraud offense. The Fourth Circuit discusses what constitutes an "official act" at great length, and for anyone representing a public official, this discussion may be useful. More relevant may be the discussion of venue for an honest services wire fraud offense, in which the Fourth Circuit determined the venue was improper and vacated this conviction.
Here, there is no specific venue provision in the statutes at stake, 18 U.S.C. §§ 1343 and 1346, so venue lies where the essential conduct elements took place. Jefferson contended that venue did not lie in the Eastern District of Virginia because the phone call underlying this count was neither begun nor completed in that district. The Fourth Circuit reviewed the essential elements of the honest services wire fraud offense and determined that the misuse of mail or wire is the actus reus punishable by federal law. Finding itself in agreement with the 2nd and 9th Circuits, the Fourth Circuit determined that venue is established in those locations where the wire transfer either originated or was received, so it did not lie in Virginia here. It could lie in Kentucky, though, and the Fourth Circuit pointed out that as the location where the call was received, and where this charge could be properly brought.
Issues a lower court may consider on remand
US v. Susi: This appeal challenges the sentence imposed following a remand for re-sentencing. Susi raises three issues here: 1) the district court did not recalculate the Sentencing Guidelines as part of the re-sentencing; 2) the re-sentencing court imposed sentence based on the impermissible factor that Susi exercised his right to trial; and 3) the sentence was procedurally and substantively unreasonable because the court did not provide an adequate explanation on the record for the sentence. The Fourth Circuit affirmed the sentence.
The main issue in this appeal is what a lower court may consider on remand: is the defendant entitled to a de novo hearing at re-sentencing, does the re-sentencing court consider the entire sentence anew, including any objections to the Guidelines range? Or is the re-sentencing limited in correcting the error in the original sentence? The Fourth Circuit considers here the "mandate rule," wherein the re-sentencing court is bound to carry out the mandate of the superior court, and may not reconsider issues that mandate laid to rest, referring to its earlier case, United States v. Bell, for its explanation of the "law of the case" doctrine, of which the mandate rule is a "specific application." Under this doctrine, the dictates of the higher court forecloses re-litigation of issues decided by the lower court but foregone on appeal or otherwise waived.
The sentencing error identified by the Fourth Circuit when it vacated Susi’s sentence originally, dealt with the district court’s consideration of factors outside the scope of the record during the § 3553(a) analysis and calculating the restitution ordered, so the error below, according to the Fourth Circuit, in no way impacted the calculation of his Guidelines range. Since the guidelines range was not objected to in the original appeal by Susi, it was unnecessary and duplicative to recalculate the Guidelines in order to address the error that caused the remand.
Additionally, Susi’s second argument that he was penalized merely by exercising his constitutional right to a trial (he received a higher sentence than his co-conspirators who took plea deals to resolve the charges against them) was undercut by the fact that he received a lower sentence on remand of 160 months than he originally received, 180 months. The Fourth Circuit has previously stated in United States v. Perry, that in order to prove improper or vindictive motive by the government against someone exercising a constitutional right, a presumption of improper vindictive motion must arise, a presumption only warranted in cases in which a reasonable likelihood of vindictiveness exists, e.g. when a defendant succeeds in attacking his sentence on appeal, and then receives a higher sentence on re-trial. That did not happen here, so this appeal issued failed.
Finally, in discussing Susi’s third appeal issue, the Fourth Circuit held for the first time that a below-Guidelines sentence is entitled to a presumption of reasonableness, when a defendant challenges the length of the below-Guidelines sentence as being substantively unreasonable. Also, this presumption would not apply where a defendant challenged the substantive reasonableness on other grounds, nor would this presumption apply when the government appeals a district court’s sentence as substantively unreasonable.
The main issue in this appeal is what a lower court may consider on remand: is the defendant entitled to a de novo hearing at re-sentencing, does the re-sentencing court consider the entire sentence anew, including any objections to the Guidelines range? Or is the re-sentencing limited in correcting the error in the original sentence? The Fourth Circuit considers here the "mandate rule," wherein the re-sentencing court is bound to carry out the mandate of the superior court, and may not reconsider issues that mandate laid to rest, referring to its earlier case, United States v. Bell, for its explanation of the "law of the case" doctrine, of which the mandate rule is a "specific application." Under this doctrine, the dictates of the higher court forecloses re-litigation of issues decided by the lower court but foregone on appeal or otherwise waived.
The sentencing error identified by the Fourth Circuit when it vacated Susi’s sentence originally, dealt with the district court’s consideration of factors outside the scope of the record during the § 3553(a) analysis and calculating the restitution ordered, so the error below, according to the Fourth Circuit, in no way impacted the calculation of his Guidelines range. Since the guidelines range was not objected to in the original appeal by Susi, it was unnecessary and duplicative to recalculate the Guidelines in order to address the error that caused the remand.
Additionally, Susi’s second argument that he was penalized merely by exercising his constitutional right to a trial (he received a higher sentence than his co-conspirators who took plea deals to resolve the charges against them) was undercut by the fact that he received a lower sentence on remand of 160 months than he originally received, 180 months. The Fourth Circuit has previously stated in United States v. Perry, that in order to prove improper or vindictive motive by the government against someone exercising a constitutional right, a presumption of improper vindictive motion must arise, a presumption only warranted in cases in which a reasonable likelihood of vindictiveness exists, e.g. when a defendant succeeds in attacking his sentence on appeal, and then receives a higher sentence on re-trial. That did not happen here, so this appeal issued failed.
Finally, in discussing Susi’s third appeal issue, the Fourth Circuit held for the first time that a below-Guidelines sentence is entitled to a presumption of reasonableness, when a defendant challenges the length of the below-Guidelines sentence as being substantively unreasonable. Also, this presumption would not apply where a defendant challenged the substantive reasonableness on other grounds, nor would this presumption apply when the government appeals a district court’s sentence as substantively unreasonable.
Wednesday, March 28, 2012
What constitutes a claim of citizenship?
US v. Castillo-Pena: Appellant Humberto Jose Castillo-Pena appeals his convictions for falsely representing himself as a United States citizen and of committing identity theft of another individual in relation to his false claim of citizenship. The Fourth Circuit affirmed the convictions.
Castillo-Pena first came to the U.S. in 1987, when he began dating Yolanda Bernal. The two married and subsequently divorced; Bernal served as a witness at her then-husband's first INS immigration proceeding in 1991. As part of this proceeding, Castillo-Pena provided a sworn affidavit including his full name, his birthplace and citizenship in Nicaragua; he was also fingerprinted at that time.
After the couple divorced in 1995, Castillo-Pena informed his wife that he would henceforth be known as Erick Cardona. He attempted to apply for a passport under this pseudonym. The real Erick Cardona, born in Puerto Rico and a U.S. citizen, had never met Castillo-Pena. An investigation of Castillo-Pena for deportation began with an interview with ICE agent Cindy Yang. At the interview, Castillo-Pena responded to Yang's question about whether he would like to make a statement that he was a United States citizen, and Castillo-Pena, claiming to be Cardona, responded, "yes, I would like to." Additionally, Castillo-Pena's fingerprints, taken in 2010, matched those taken in 1991.
This statement constituted a false representation of U.S. citizenship, and the jury at Castillo-Pena's trial concluded that he willfully misrepresented himself as a U.S. citizen, and that this statement constituted a direct claim of American citizenship. Additionally, on appeal, Castillo-Pena did not challenge the evidence put on by the government that he attempted to assume the identity of Erick Cardona to apply for a passport.
Castillo-Pena first came to the U.S. in 1987, when he began dating Yolanda Bernal. The two married and subsequently divorced; Bernal served as a witness at her then-husband's first INS immigration proceeding in 1991. As part of this proceeding, Castillo-Pena provided a sworn affidavit including his full name, his birthplace and citizenship in Nicaragua; he was also fingerprinted at that time.
After the couple divorced in 1995, Castillo-Pena informed his wife that he would henceforth be known as Erick Cardona. He attempted to apply for a passport under this pseudonym. The real Erick Cardona, born in Puerto Rico and a U.S. citizen, had never met Castillo-Pena. An investigation of Castillo-Pena for deportation began with an interview with ICE agent Cindy Yang. At the interview, Castillo-Pena responded to Yang's question about whether he would like to make a statement that he was a United States citizen, and Castillo-Pena, claiming to be Cardona, responded, "yes, I would like to." Additionally, Castillo-Pena's fingerprints, taken in 2010, matched those taken in 1991.
This statement constituted a false representation of U.S. citizenship, and the jury at Castillo-Pena's trial concluded that he willfully misrepresented himself as a U.S. citizen, and that this statement constituted a direct claim of American citizenship. Additionally, on appeal, Castillo-Pena did not challenge the evidence put on by the government that he attempted to assume the identity of Erick Cardona to apply for a passport.
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