US v. Yengel: Officers were called to Yengel's home during a domestic dispute. He was arrested without incident outside the home, although he was upset and agitated. Notably, he wasn't armed. Yengel's wife told officers that there were guns in the house as well as a grenade in a locked closet in an upstairs bedroom. Officers seized the guns. As for the grenade, the wife showed an officer the closet in which it was kept, which was locked with both an electronic keypad and thumbprint scanner. Yengel's wife didn't know the combination and lacked the correct thumbprint to open it. After several hours the door was pried open and the "grenade" - actually a collection of gunpowder and other materials that could be assembled into a "firearm" - was seized. All this was done without a warrant and without the house being evacuated, including leaving Yengel's sleeping infant son remain in the bedroom next to the one with the "grenade."
Yengel was charged with possession of an unregistered firearm (the "grenade"). He moved to suppress that evidence, arguing that the seizure was done without a warrant and not pursuant to any of the recognized exceptions to the warrant requirement. The district court agreed, concluding that exigent circumstances weren't present when the closet door was pried open. On a Government appeal the Fourth Circuit agreed and affirmed the suppression. Noting that the person making the entry/search in an exigent circumstances case must objectively believe that such an exigency exists, the court concluded that the officer's actions showed he did not have such an objective belief. Most notably, in spite of being in pursuit of an explosive device, the officer did not clear the house or the surrounding area before attempting to retrieve it.
Congrats to defender office in the ED Virginia on the win! Both of 'em!
Wednesday, February 20, 2013
Wednesday, February 13, 2013
Recorded Statements By Cellmate Violate Fifth Amendment, But Harmlessly
US v. Holness: Holness and his wife were driving from her home in New York to his in Maryland (it was a "marriage of convenience," according to the court) when they were allegedly set upon by a carjacker. As a result, Holness wound up dazed, wet, and bloody on the porch of a stranger's house and his wife lay dead in a field, stabbed to death. After initial investigation cast doubt on Holness's carjacking story he was arrested by Maryland authorities and charged with murder. While Holness was in custody his cellmate contacted police with information about the killing. Eventually, the cellmate was given a recording device that he used while assisting Holness in writing a letter (never actually sent) to a local newspaper that was to have been written by the alleged carjacker.
For reasons that are unclear from the opinion, Holness was charged in federal court with interstate domestic violence, attempted witness intimidation, and two other offenses. Prior to trial he sought to exclude any statements he made to his cellmate and any evidence obtained as a result of those statements. The motion was denied and the cellmate testified at trial, relating for the first time that Holness told him where he had disposed of the murder weapon. Holness was convicted of the domestic violence and witness intimidation charges and sentenced to life in prison.
On appeal, Holness challenged his convictions, arguing that the police's use of his cellmate to gather information on him was done after he had been appointed counsel on the state murder charge and therefore violated his Sixth Amendment right to counsel. The Fourth Circuit disagreed, finding that there was no Sixth Amendment issue in the federal prosecution because at the time of the statements Holness had only been charged in state court. Noting that the Sixth Amendment right to counsel is "offense specific," the court concluded that the federal charges were different from the state charges. The court rejected Holness's argument under Elkins that the state should not be allowed to collude with the federal government to avoid the ramifications of their potentially unconstitutional acts.
However, the Fourth Circuit did conclude that, while the Sixth Amendment was not implicated by the use of the cellmate's statements, the Fifth Amendment's protections against self incrimination may have been violated. Because the issue "fairly arises from the face of the record" the court addressed it as well, even though Holness had not raised the issue. The court noted that, although the Sixth Amendment right to counsel is offense specific, the Fifth Amendment protections are not. Ultimately, the court assumed (rather than remand for factual findings) that Holness's Fifth Amendment rights were violated, but found the violation to be harmless error beyond a reasonable doubt.
For reasons that are unclear from the opinion, Holness was charged in federal court with interstate domestic violence, attempted witness intimidation, and two other offenses. Prior to trial he sought to exclude any statements he made to his cellmate and any evidence obtained as a result of those statements. The motion was denied and the cellmate testified at trial, relating for the first time that Holness told him where he had disposed of the murder weapon. Holness was convicted of the domestic violence and witness intimidation charges and sentenced to life in prison.
On appeal, Holness challenged his convictions, arguing that the police's use of his cellmate to gather information on him was done after he had been appointed counsel on the state murder charge and therefore violated his Sixth Amendment right to counsel. The Fourth Circuit disagreed, finding that there was no Sixth Amendment issue in the federal prosecution because at the time of the statements Holness had only been charged in state court. Noting that the Sixth Amendment right to counsel is "offense specific," the court concluded that the federal charges were different from the state charges. The court rejected Holness's argument under Elkins that the state should not be allowed to collude with the federal government to avoid the ramifications of their potentially unconstitutional acts.
However, the Fourth Circuit did conclude that, while the Sixth Amendment was not implicated by the use of the cellmate's statements, the Fifth Amendment's protections against self incrimination may have been violated. Because the issue "fairly arises from the face of the record" the court addressed it as well, even though Holness had not raised the issue. The court noted that, although the Sixth Amendment right to counsel is offense specific, the Fifth Amendment protections are not. Ultimately, the court assumed (rather than remand for factual findings) that Holness's Fifth Amendment rights were violated, but found the violation to be harmless error beyond a reasonable doubt.
No coram nobis for Skilling Error
Bereano v. US: Bereano was charged in 1994 with multiple counts of mail fraud stemming from practices at his law firm and lobbying firm. At the time, jurors were instructed that he could be convicted under either the "pecuniary fraud" theory or the "honest services fraud" theory. Their verdict, finding him guilty on seven counts, did not specify which theory the jury relied on for each count. Bereano's convictions were affirmed on appeal and he "has long since served his sentence and paid his fine." In 2011, Bereano filed a petition for a writ of coram nobis, arguing that his convictions should be vacated in light of the Supreme Court's Skilling decision in 2010, in which the Court held that the "honest services fraud" theory was limited to schemes involving bribery and kickbacks. The district court denied Bereano's petition, concluding that any error was harmless beyond a reasonable doubt because Bereano was charged under both theories.
On appeal, the Fourth Circuit affirmed the district court's dismissal. Analyzing whether the Skilling error was "of the most fundamental character," the court looked to whether Bereano would have prevailed on a direct appeal of his convictions if the appeal occurred after Skilling had been decided. Although a verdict resting on multiple theories should be set aside when one theory is no longer valid and it is impossible to tell upon which theory the jury relied, harmless error analysis still applies. Particularly, the court looks to determine the evidence credited by the jury and whether that evidence would support a conviction on the legally valid theory. Applying that analysis, the court concluded that the Government at Bereano's trial "presented overwhelming evidence that he schemed to commit pecuniary fraud." Thus, the error was harmless and the district court correctly dismissed Bereano's petition for a writ of coram nobis.
On appeal, the Fourth Circuit affirmed the district court's dismissal. Analyzing whether the Skilling error was "of the most fundamental character," the court looked to whether Bereano would have prevailed on a direct appeal of his convictions if the appeal occurred after Skilling had been decided. Although a verdict resting on multiple theories should be set aside when one theory is no longer valid and it is impossible to tell upon which theory the jury relied, harmless error analysis still applies. Particularly, the court looks to determine the evidence credited by the jury and whether that evidence would support a conviction on the legally valid theory. Applying that analysis, the court concluded that the Government at Bereano's trial "presented overwhelming evidence that he schemed to commit pecuniary fraud." Thus, the error was harmless and the district court correctly dismissed Bereano's petition for a writ of coram nobis.
Recorded Lunch Conversation Poses No Sixth, Fifth Amendment Problems
US v. Williamson: Williamson was charged in an indictment with conspiracy to distribute more than five kilograms of cocaine. Following the indictment, but prior to Williamson's arrest, one of his associates, Alberty, contacted investigators offering to cooperate. Agents sent Alberty to a previously scheduled lunch meeting with Williamson and recorded their conversation. Williamson was arrested months later. At trial, the Government introduced the recording as evidence (in addition to the testimony of two codefendants and three other coconspirators) and Williamson was convicted. He was sentenced to life in prison.
Williamson's conviction and sentence were initially affirmed on appeal when the Fourth Circuit found that it was not plain error to introduce the recorded conversation, even though it was made without counsel present following the return of an indictment. However, when Williamson sought cert from the Supreme Court, the Government shifted gears and admitted it was plain error, although one that should not be noticed. The Supreme Court remanded. The Fourth Circuit than held that issue in abeyance and remanded to the district court for consideration of whether the use of the recorded conversation violated the Fifth Amendment as well. The district court found no problem, holding that Williamson's statement was given voluntarily. Along the way, Williamson filed a motion for a new trial based on newly discovered evidence, which the district court denied without appointed counsel.
The Fourth Circuit dealt with all three issues - the Sixth Amendment, due process, and new trial - in a single consolidated appeal, in which it again affirmed Williamson's conviction and sentence. On the Sixth Amendment issue (the "most enduring issue," according to the court), the court accepted the Government's confessing that the use of the recording was error and that it was plain, but concluded that it did not affect Williamson's substantial rights by altering the outcome of the trial. The court cataloged the other evidence against Williamson and concluded that while the conversation was "surely damaging, Williamson has not shown that its absence would alter the outcome of his trial." On the Fifth Amendment issue, the court concluded that Williamson's statement was not the product of compulsion or coercion, noting that Williamson was unaware that Alberty was working with law enforcement and that Alberty's only instructions were to "put on a wire and have lunch." Finally, on the motion for a new trial issue, the court concluded that Williamson's motion, filed while appellate proceeding were underway, was a collateral proceeding at which he had no right to counsel. Therefore, it affirmed the district court's dismissal.
Williamson's conviction and sentence were initially affirmed on appeal when the Fourth Circuit found that it was not plain error to introduce the recorded conversation, even though it was made without counsel present following the return of an indictment. However, when Williamson sought cert from the Supreme Court, the Government shifted gears and admitted it was plain error, although one that should not be noticed. The Supreme Court remanded. The Fourth Circuit than held that issue in abeyance and remanded to the district court for consideration of whether the use of the recorded conversation violated the Fifth Amendment as well. The district court found no problem, holding that Williamson's statement was given voluntarily. Along the way, Williamson filed a motion for a new trial based on newly discovered evidence, which the district court denied without appointed counsel.
The Fourth Circuit dealt with all three issues - the Sixth Amendment, due process, and new trial - in a single consolidated appeal, in which it again affirmed Williamson's conviction and sentence. On the Sixth Amendment issue (the "most enduring issue," according to the court), the court accepted the Government's confessing that the use of the recording was error and that it was plain, but concluded that it did not affect Williamson's substantial rights by altering the outcome of the trial. The court cataloged the other evidence against Williamson and concluded that while the conversation was "surely damaging, Williamson has not shown that its absence would alter the outcome of his trial." On the Fifth Amendment issue, the court concluded that Williamson's statement was not the product of compulsion or coercion, noting that Williamson was unaware that Alberty was working with law enforcement and that Alberty's only instructions were to "put on a wire and have lunch." Finally, on the motion for a new trial issue, the court concluded that Williamson's motion, filed while appellate proceeding were underway, was a collateral proceeding at which he had no right to counsel. Therefore, it affirmed the district court's dismissal.
Tuesday, February 12, 2013
No 1st Amendment or common law right to access documents
In re: Application of the United States of America for an Order Pursuant to 18 U.S.C. Sect. 2703(d), US v. Appelbaum, et al.: In this case, the Fourth Circuit considers orders issued by a magistrate judge under the Stored Communications Act ("SCA"), 18 U.S.C. § 2703, requested by the Government, directed to Twitter, Inc., to disclose records of electronic communications relevant to the ongoing criminal investigation surrounding Wikileaks.org and U.S. Army Private First Class Bradley E. Manning. Specifically, the Government requested records of Defendants Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir, including their names, usernames, personal contact information, account information, connection records, length of service, direct messages to and from email addresses and IP addresses for all communications between November 2009 and December 2010.
The Twitter Order was originally sealed to keep the criminal investigation private, but upon the Government’s motion in January 2011, the magistrate court unsealed the documents, allowing Twitter to alert its subscribers to the existence of the Order. The defendants/subscribers then petitioned the court to vacate the Twitter Order, and unseal any other similar orders that may have been issued to other companies. The magistrate court issued a memorandum opinion and order denying the motion to vacate and partially granting the motion to unseal, determining that there was no First Amendment right to access the Government’s Twitter application, and the other § 2703(d) Orders and their applications. The defendants filed objections to the magistrate court’s decisions, and the district court affirmed; defendant then filed an appeal to the Fourth Circuit.
On appeal, the Fourth Circuit first determined that a common law right to access attaches to the documents here. Next, it articulated the standard for determining whether the First Amendment might provide a right to access orders issued under the SCA as the "experience and logic" test: 1) whether the place and process have historically been open to the press and general public; and 2) whether public access plays a significant positive role in the functioning of the particular process in question. The Fourth Circuit held that the latter prong, the "logic" one was not met here, as "secrecy is necessary for the proper functioning of criminal investigations at this § 2703(d) phase, openness will frustrate the government’s operations." So, no First Amendment right to access the documents in question. Similarly, the Fourth Circuit held that the common law right to access the documents was not insurmountable because this presumption may be outweighed when the Government’s interest in continued sealing of documents due to publicity surrounding the Wikileaks investigation does not justify the unsealing of relevant records.
The Twitter Order was originally sealed to keep the criminal investigation private, but upon the Government’s motion in January 2011, the magistrate court unsealed the documents, allowing Twitter to alert its subscribers to the existence of the Order. The defendants/subscribers then petitioned the court to vacate the Twitter Order, and unseal any other similar orders that may have been issued to other companies. The magistrate court issued a memorandum opinion and order denying the motion to vacate and partially granting the motion to unseal, determining that there was no First Amendment right to access the Government’s Twitter application, and the other § 2703(d) Orders and their applications. The defendants filed objections to the magistrate court’s decisions, and the district court affirmed; defendant then filed an appeal to the Fourth Circuit.
On appeal, the Fourth Circuit first determined that a common law right to access attaches to the documents here. Next, it articulated the standard for determining whether the First Amendment might provide a right to access orders issued under the SCA as the "experience and logic" test: 1) whether the place and process have historically been open to the press and general public; and 2) whether public access plays a significant positive role in the functioning of the particular process in question. The Fourth Circuit held that the latter prong, the "logic" one was not met here, as "secrecy is necessary for the proper functioning of criminal investigations at this § 2703(d) phase, openness will frustrate the government’s operations." So, no First Amendment right to access the documents in question. Similarly, the Fourth Circuit held that the common law right to access the documents was not insurmountable because this presumption may be outweighed when the Government’s interest in continued sealing of documents due to publicity surrounding the Wikileaks investigation does not justify the unsealing of relevant records.
A favorable gun price?
US v. Abramski: Bruce Abramski made a straw purchase of a Glock 19 handgun in Virginia for his uncle in Pennsylvania during November 2009. As a former police officer, Abramski believed he could obtain a more "favorable price" from a local firearms dealer than his uncle could likely receive. Abramski purportedly discussed with three federally licensed firearms dealers a legal means of conducting the transaction, and the advice he received lead him to believe that a licensed dealer in Pennsylvania could complete a legal transfer to his uncle after Abramski purchased the gun in Virginia. Three days separated Abramski’s purchase of the handgun from the transfer of the firearm to his uncle at a PA licensed federal firearms dealer. Abramski conducted this transaction despite the fact that his uncle could have legally purchased such a firearm himself, had the uncle chosen to do so.
Executing a straw purchase, however, is not a legal enterprise; the ATF form Abramski completed at the time of his purchase included several questions about the purchase of firearms, including special warnings about acquiring guns on behalf of another person. Abramski, in answering these questions, reported that he was the actual buyer, despite his plan to transfer the gun to his uncle in three days. The ATF discovered Abramski’s gun purchasing scheme, after the FBI obtained a search warrant for Abramski’s residences in the course of a bank robbery investigation (Abramski was never charged federally, and the state charges against him were dismissed). The search of one of the two homes revealed the receipt for the transfer to Abramski’s uncle of the Glock 19 handgun.
On appeal, Abramski challenged the denial of his motion to dismiss the indictment, arguing that a circuit split existed as to whether his transfer of the firearm to his uncle, who was eligible to purchase a firearm, could be considered a straw purchase. The Fourth Circuit disagreed with Abramski, and held with the Sixth and Eleventh Circuits, that the identity of the purchaser is material to the lawfulness of the acquisition by Abramski, and he made a false statement to the gun dealer in VA when he stated he was the actual buyer, as the transfer to his uncle was not an "afterthought." Abramski also challenged the denial of his motion to suppress evidence found pursuant to warrant at his home while police investigated the bank robbery. The Fourth Circuit found that the warrant was supported by adequate probable cause.
Executing a straw purchase, however, is not a legal enterprise; the ATF form Abramski completed at the time of his purchase included several questions about the purchase of firearms, including special warnings about acquiring guns on behalf of another person. Abramski, in answering these questions, reported that he was the actual buyer, despite his plan to transfer the gun to his uncle in three days. The ATF discovered Abramski’s gun purchasing scheme, after the FBI obtained a search warrant for Abramski’s residences in the course of a bank robbery investigation (Abramski was never charged federally, and the state charges against him were dismissed). The search of one of the two homes revealed the receipt for the transfer to Abramski’s uncle of the Glock 19 handgun.
On appeal, Abramski challenged the denial of his motion to dismiss the indictment, arguing that a circuit split existed as to whether his transfer of the firearm to his uncle, who was eligible to purchase a firearm, could be considered a straw purchase. The Fourth Circuit disagreed with Abramski, and held with the Sixth and Eleventh Circuits, that the identity of the purchaser is material to the lawfulness of the acquisition by Abramski, and he made a false statement to the gun dealer in VA when he stated he was the actual buyer, as the transfer to his uncle was not an "afterthought." Abramski also challenged the denial of his motion to suppress evidence found pursuant to warrant at his home while police investigated the bank robbery. The Fourth Circuit found that the warrant was supported by adequate probable cause.
Wednesday, February 06, 2013
Effect of alterations to indictment during trial
US v. Allmendinger: Christian Allmendinger and a business partner formed a company, "A & O," in late 2004 in order to sell interests in life insurance policies. Over the course of the next few years, A & O added another partner, amassed approximately 800 investors, and earned millions of dollars. Unfortunately, the three men misappropriated client funds, used fraudulent marketing materials, and lied about the company’s size, staff, and earnings. In 2006, regulators from several states became concerned about A & O’s investment products, and the three men decided to sell the company, though only Allmendinger actually sold his interest and left A & O (the other two men had secretly agreed to buy A & O and continue running it under a new name). In early 2010, Allmendinger received word from federal investigators that he would be indicted along with his former partners for his part in A & O’s fraudulent investment scheme. Allmendinger did not cooperate with investigators and opted instead to go to trial where he was convicted on seven counts and received a 540-month sentence.
On appeal, Allmendinger claimed the district court violated his Fifth Amendment rights by altering the indictment, to omit allegations of conduct that occurred after Allmendinger sold his interest and left the company. Also, the district court re-drafted other language in the indictment to reflect the shorter duration of Allmendinger’s participation in the conspiracy alleged.
According to Fourth Circuit precedent, a fatal variance or constructive amendment, can occur when the government or the district court "broadens the bases for conviction beyond those charged in the indictment," and when "the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment." Under the Fifth Amendment, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..."
A defendant’s Fifth Amendment rights are compromised if a variance creates surprise at trial, hinders the preparation of a defense, or exposes a defendant to the danger of double jeopardy. According to the Fourth Circuit here, though, the variance that occurred was not a fatal variance, but a mere, or non-fatal, variance, because the changes made to the indictment did not change the crime charged or broaden the bases for conviction. Here, the government proved a more narrow conspiracy, but that conspiracy had the same purpose and premises as the fraud alleged in the indictment. The Fourth Circuit held that this narrowing created, at most, a non-fatal variance, and Allmendinger’s constitutional rights were not abridged.
On appeal, Allmendinger claimed the district court violated his Fifth Amendment rights by altering the indictment, to omit allegations of conduct that occurred after Allmendinger sold his interest and left the company. Also, the district court re-drafted other language in the indictment to reflect the shorter duration of Allmendinger’s participation in the conspiracy alleged.
According to Fourth Circuit precedent, a fatal variance or constructive amendment, can occur when the government or the district court "broadens the bases for conviction beyond those charged in the indictment," and when "the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment." Under the Fifth Amendment, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..."
A defendant’s Fifth Amendment rights are compromised if a variance creates surprise at trial, hinders the preparation of a defense, or exposes a defendant to the danger of double jeopardy. According to the Fourth Circuit here, though, the variance that occurred was not a fatal variance, but a mere, or non-fatal, variance, because the changes made to the indictment did not change the crime charged or broaden the bases for conviction. Here, the government proved a more narrow conspiracy, but that conspiracy had the same purpose and premises as the fraud alleged in the indictment. The Fourth Circuit held that this narrowing created, at most, a non-fatal variance, and Allmendinger’s constitutional rights were not abridged.
Tuesday, February 05, 2013
Multiple motives for preventing witness testimony expand the forfeiture-by-wrongdoing exception
US v. Jackson: After a jury trial, Antwan Jackson received convictions for the murder of Johnell Greene, as well as various firearms and drug offenses related to his role in a drug distribution conspiracy. In March 2006, Mr. Greene had interfered with Jackson’s drug activities, by robbing an associate of Jackson’s, Garian Washington, of drugs and money. Mr. Greene managed to escape one shooting attempt by Mr. Washington, after which attempt, Mr. Greene cooperated with police while he was incarcerated on unrelated charges, implicating Washington and Jackson in his attempted shooting. Shortly after his release from jail, Mr. Greene was shot multiple times and died after an attack by a masked assailant. Jackson purportedly made statements to the effect that he believed Mr. Greene had "deserved" to be killed.
Approximately one year later, a grand jury indicted Jackson and three other individuals for their participation in a separate crack cocaine operation. Jackson pleaded guilty to these offenses, and received an 87-month sentence. While imprisoned for these offenses, Jackson received an indictment for Mr. Greene’s murder, some prior drug activity, and for persuading a former associate to provide Jackson with a false alibi to law enforcement during an investigation of Mr. Greene’s death.
Before Jackson’s trial, the government moved to admit Mr. Greene’s written statements to police which implicated Jackson. The government argued that Jackson had waived his right to confront Mr. Greene’s out-of-court statements by killing him, "at least in part," to prevent him from testifying against Jackson. In response, Jackson argued that his intent to prevent Mr. Greene from testifying must be unqualified in order to trigger the forfeiture-by-wrongdoing exception to the Confrontation Clause, and thus permit the admission of Mr. Greene’s statements to police at Jackson’s trial. The district court disagreed, admitted the statements, and a jury found Jackson guilty on all counts.
On appeal to the Fourth Circuit, Jackson contended that the forfeiture-by-wrongdoing exception (a common law doctrine which permits the admission of testimonial statements where the defendant had acted to prevent the witness’s ability to testify) required that a defendant make a witness unavailable with the SOLE motivation of preventing the witness from testifying. The Fourth Circuit disagreed, and declined to "provide criminal defendants with an opportunity to avoid the exception by adducing some additional motive for their misconduct." As long as the defendant intended, according to the Fourth Circuit’s holding, to prevent a witness from testifying, the exception will apply even if the defendant had other motivations for harming a witness.
Approximately one year later, a grand jury indicted Jackson and three other individuals for their participation in a separate crack cocaine operation. Jackson pleaded guilty to these offenses, and received an 87-month sentence. While imprisoned for these offenses, Jackson received an indictment for Mr. Greene’s murder, some prior drug activity, and for persuading a former associate to provide Jackson with a false alibi to law enforcement during an investigation of Mr. Greene’s death.
Before Jackson’s trial, the government moved to admit Mr. Greene’s written statements to police which implicated Jackson. The government argued that Jackson had waived his right to confront Mr. Greene’s out-of-court statements by killing him, "at least in part," to prevent him from testifying against Jackson. In response, Jackson argued that his intent to prevent Mr. Greene from testifying must be unqualified in order to trigger the forfeiture-by-wrongdoing exception to the Confrontation Clause, and thus permit the admission of Mr. Greene’s statements to police at Jackson’s trial. The district court disagreed, admitted the statements, and a jury found Jackson guilty on all counts.
On appeal to the Fourth Circuit, Jackson contended that the forfeiture-by-wrongdoing exception (a common law doctrine which permits the admission of testimonial statements where the defendant had acted to prevent the witness’s ability to testify) required that a defendant make a witness unavailable with the SOLE motivation of preventing the witness from testifying. The Fourth Circuit disagreed, and declined to "provide criminal defendants with an opportunity to avoid the exception by adducing some additional motive for their misconduct." As long as the defendant intended, according to the Fourth Circuit’s holding, to prevent a witness from testifying, the exception will apply even if the defendant had other motivations for harming a witness.
Friday, January 18, 2013
Can reasonable suspicion arise in 5-10 seconds?
US v. Bumpers: According to his testimony, a police officer in a high crime neighborhood observed two men, standing, for approximately five to ten seconds near some dumpsters at the back of local convenience store before attempting to leave at the sight of the police, when that officer determined that reasonable suspicion for the crime of trespassing had arisen. Additionally, the store had posted "No Trespassing" signs and alerted the police to enforce the store’s no trespassing policy.
Irvin Bumpers initially gave the police a false first name when asked for his identification by police; that name had an active warrant, so he gave his actual first name, which also returned an active warrant. Upon arrest, the police discovered a firearm on Bumpers. Prior to trial, Bumpers moved to suppress the firearm, but failed in his efforts. He was convicted at trial of being a felon in possession.
On appeal, the Fourth Circuit reviewed the district court’s decision to deny the motion to suppress. It referred to this case as a close call, but because only an investigative stop was at issue, not a frisk or an arrest the Fourth Circuit found there was sufficient reasonable suspicion based on the facts of this case. The cogent dissent finds otherwise, stating that "[p]ermitting a Terry stop under these tenuous circumstances fails to prevent a substantial portion of innocent travelers in high-crime areas from being subjected to what the majority concedes can be a degrading and unwarranted intrusion."
Irvin Bumpers initially gave the police a false first name when asked for his identification by police; that name had an active warrant, so he gave his actual first name, which also returned an active warrant. Upon arrest, the police discovered a firearm on Bumpers. Prior to trial, Bumpers moved to suppress the firearm, but failed in his efforts. He was convicted at trial of being a felon in possession.
On appeal, the Fourth Circuit reviewed the district court’s decision to deny the motion to suppress. It referred to this case as a close call, but because only an investigative stop was at issue, not a frisk or an arrest the Fourth Circuit found there was sufficient reasonable suspicion based on the facts of this case. The cogent dissent finds otherwise, stating that "[p]ermitting a Terry stop under these tenuous circumstances fails to prevent a substantial portion of innocent travelers in high-crime areas from being subjected to what the majority concedes can be a degrading and unwarranted intrusion."
Wednesday, January 16, 2013
Bank teller's questioning held unnecessarily suggestive, should not have been admitted, though did not affect robbery defendant's substantial rights
US v. Greene: Deshawn Greene received convictions for armed bank robbery and brandishing a firearm during and in relation to a crime of violence, and he appealed his convictions on two grounds: 1) whether the district court erred in admitting a bank teller’s testimony; and 2) whether the district court erred in failing to provide a Holley-Telfaire instruction to the jury. Regarding both issues, the Fourth Circuit conducted plain error review, as defense counsel did not object at trial to the identification testimony from the bank teller, or the lack of Holley-Telfaire instruction. The Fourth Circuit, though it was a close case on the first issue, ultimately affirmed the convictions.
First, the bank teller’s questioning consisted of the prosecutor drawing the teller’s attention directly to Greene at trial, and instructing to the her to tell the jury what similarities existed between Greene and the bank robber. The district court permitted this identification testimony. In contrast, the Fourth Circuit found this questioning unnecessarily suggestive, exactly the sort of questioning it had previously warned against, where the phrasing of the question suggests the desired response.
The Fourth Circuit next considered whether the teller’s testimony was reliable, and after analyzing the five factors for reliability, found that it was not: the teller’s attention at the time of the offense was greatly diminished due to her fear and having a gun pointed at her head, she did not state that the defendant was the bank robber, and seventeen months had passed between the robbery and trial, and she was not asked once during that time to view a line-up, photo array, or assist a police artist in sketching the suspect. Since the questioning was overly suggestive, and the teller’s testimony was unreliable, the Fourth Circuit found it was plain error by the district court to admit this testimony.
The admission of the bank teller’s testimony, however, did not affect Greene’s substantial rights, according to the Fourth Circuit, as Greene’s accomplice testified directly to Greene’s involvement in the robbery. Lear, a known crack addict, had been subjected to “piercing” cross examination, and the jury was apparently aware of any credibility issues he may have presented. The Fourth Circuit declined to grant Greene relief on the basis of plain error.
Second, Greene argued that the district court erred in failing to issue a Holley-Telfaire instruction to the jury. This instruction advises the jury on how to appraise a witness’s identification testimony, and the defense did not request this instruction at trial. The Fourth Circuit held that this instruction was not required as there was independent evidence (i.e., Lear’s testimony) that Greene participated in the robbery.
First, the bank teller’s questioning consisted of the prosecutor drawing the teller’s attention directly to Greene at trial, and instructing to the her to tell the jury what similarities existed between Greene and the bank robber. The district court permitted this identification testimony. In contrast, the Fourth Circuit found this questioning unnecessarily suggestive, exactly the sort of questioning it had previously warned against, where the phrasing of the question suggests the desired response.
The Fourth Circuit next considered whether the teller’s testimony was reliable, and after analyzing the five factors for reliability, found that it was not: the teller’s attention at the time of the offense was greatly diminished due to her fear and having a gun pointed at her head, she did not state that the defendant was the bank robber, and seventeen months had passed between the robbery and trial, and she was not asked once during that time to view a line-up, photo array, or assist a police artist in sketching the suspect. Since the questioning was overly suggestive, and the teller’s testimony was unreliable, the Fourth Circuit found it was plain error by the district court to admit this testimony.
The admission of the bank teller’s testimony, however, did not affect Greene’s substantial rights, according to the Fourth Circuit, as Greene’s accomplice testified directly to Greene’s involvement in the robbery. Lear, a known crack addict, had been subjected to “piercing” cross examination, and the jury was apparently aware of any credibility issues he may have presented. The Fourth Circuit declined to grant Greene relief on the basis of plain error.
Second, Greene argued that the district court erred in failing to issue a Holley-Telfaire instruction to the jury. This instruction advises the jury on how to appraise a witness’s identification testimony, and the defense did not request this instruction at trial. The Fourth Circuit held that this instruction was not required as there was independent evidence (i.e., Lear’s testimony) that Greene participated in the robbery.
Monday, January 14, 2013
Second conviction upheld despite Simmons
US v. Ford: Here, the Fourth Circuit considers the second conviction of Harold Ford for being a felon in possession of a firearm. Originally convicted for this offense in 2009, Ford’s conviction was reversed and remanded following his trial, due to a change in the law arising from United State v. Simmons from 2011. Upon remand, the district court convicted Ford a second time, and he appealed on double jeopardy grounds, but the Fourth Circuit found no error in his second conviction.
In his first conviction for this offense, the government introduced evidence of Ford’s earlier state conviction for felony PWID marijuana, for which Ford received an 8-10 month prison sentence. With his prior criminal record, Ford could not have been sentenced to more than 12 months for the marijuana offense, even though someone with a more serious criminal history could have been sentenced for the same offense to up to 15 months (under North Carolina’s structured sentencing laws then in effect). Ford appealed, and the Fourth Circuit held his appeal in abeyance pending Simmons. Following Simmons, the Fourth Circuit reversed Ford’s conviction and remanded the case; however, in Ford’s second trial, the government introduced additional previous convictions of Ford’s, each of which was for a crime “indisputably” punishable by more than one year in prison (aggravated assault and assault with a deadly weapon inflicting serious injury from 1973, and selling controlled substances and possession with intent to sell and deliver a controlled substance from 1983).
The Fourth Circuit has held that the Double Jeopardy Clause “forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding,” but, the Double Jeopardy Clause “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside…because of some error in the proceedings leading to conviction.” Moreover, it has held that when a conviction is reversed because of a post-trial changed in the law, a second trial is permitted.
Fictional crime leads to real life convictions
US v. Min, et al.: Saraeun Min participated with several others in a conspiracy to steal drugs from the stash house of a drug cartel in Virginia. Little did the members of the conspiracy realize, the drugs and stash house were fictions developed by the ATF to trap Min’s co-defendant Phun and his crew. When the police revealed themselves to the crew, most of whom had gathered, ready to participate in the robbery, only Min waived his Miranda rights and confessed to the police officers his involvement in the conspiracy.
At trial, each of the other members of the conspiracy desired to have their joint trial severed from Min’s. The Fourth Circuit has held admissible a co-defendant’s redacted statement that referred to the existence of another person through neutral phrases, e.g. “another person,” or “another individual.” The district court determined that Min’s redacted confession did not implicate any one defendant in particular, nor did it leave the jury to fill in any obvious blanks: it did not facially incriminate any other defendant. The Fourth Circuit held that the district court did not abuse its discretion in denying the defendants’ motion to sever.
On appeal, the defendants also made an impossibility argument, that the fictional nature of the premise of the stash house robbery should be a defense to their conspiracy charges, rendering the evidence against them insufficient. The district court declined to permit the defendants from arguing impossibility during closing argument, and they challenge the exclusion of impossibility from the jury instructions. The Fourth Circuit concluded here that factual impossibility is not a defense to conspiracy.
Additionally, defendants argued that the district court erred in permitting one of the case detectives to testify at trial about a conversation between the detective and Phun, the crew leader. The detective testified as to what he personally understood Phun meant in the conversation, which the Fourth Circuit decided was rationally based on the detective’s knowledge, the context, and the detective’s past conversations with Phun, meeting the requirements of Federal Rule of Evidence 701 on lay witness opinion testimony. The Fourth Circuit held that the district court properly admitted this testimony.
Finally, the district court corrected an error in the verdict form during the jury’s deliberation, and Phun argued that this constituted reversible error, improperly influencing the jury. The Fourth Circuit determined that the defendants could not identify how the jury had been improperly influenced by the correction of a typo, and that if any error did occur, it was harmless. The district court’s judgment was affirmed.
Mandate Rule prevents district court from considering restitution award in case on remand
US v. Pileggi: In this appeal, the Fourth Circuit considers whether the district court had the authority to reconsider a restitution award in a remanded case. Previously, in a companion, unpublished opinion, the Fourth Circuit determined that the district court erred in sentencing the defendant, Giuseppe Pileggi, to 50 years of imprisonment for his role in a fraudulent sweepstakes scheme. The Fourth Circuit here determined that the district court lacked authority to reconsider the amount of restitution on remand, and reinstated the district court’s original restitution amount ($4,274,078.40).
Pileggi argued that the Fourth Circuit’s mandate to the district court remanded the case solely to correct the prison sentence (the district court reduced the 50-year sentence to 25 years) that allegedly violated the extradition agreement the government made with Costa Rica, where the sweepstakes scheme was operated; the restitution amount was not addressed in the direct appeal. The Fourth Circuit “unhesitatingly conclude[d]” that the mandate rule barred the district court from reconsidering the restitution order on remand.
Friday, January 11, 2013
Convenience store clerk's arrest held unlawful
US v. Watson: Prentiss Watson worked at a convenience store in downtown Baltimore, downstairs in the same building where he rented a room. In February 2010, detectives conducting surveillance on the building observed some other individuals engaging in drug transactions near the building on Tivoly Avenue, and arrested them. One of these individuals, Anthony Jackson, the police had observed entering and exiting the building where Prentiss worked, during the course of a drug transaction. Additionally, officers had reason to believe Mr. Jackson was carrying a gun at the time of this transaction. After arresting Jackson, police obtained a search warrant for the entire building. Officers entered the building to secure it and all individuals inside, including Mr. Watson. The detention of Mr. Watson and Keta Steele, owner of the store, neither of whom had been observed engaging in the drug transactions, lasted over three hours, and they were forced to remain in a back area of the store while police obtained their warrant. Upon execution of the warrant, a revolver and some ammunition was found on the same floor as Mr. Watson’s room, but in a separate area from Mr. Watson’s room and belongings. Police questioned Mr. Watson about the revolver, and he made the incriminating statement, "that old thing, it doesn’t even work."
The government charged Mr. Watson with being a felon in possession of a firearm and ammunition. Mr. Watson moved to suppress his statement on Fourth Amendment grounds and failed in his efforts. Mr. Watson went to trial and a jury convicted him on both counts. On appeal, the Fourth Circuit vacated Mr. Watson’s conviction, finding that on the unique facts presented here, that the police seizure of Mr. Watson violated his Fourth Amendment rights. In conducting its reasonableness review, the Fourth Circuit ultimately determined that the seizure was illegal, and Mr. Watson’s incriminating statement should have been suppressed. The government conceded that Mr. Watson was "seized," and that there was no probable cause to detain him. The Fourth Circuit considered the governmental objectives, i.e. preserving evidence and officer safety, and the Fourth Circuit determined that neither interest was implicated here to justify the unlawful custodial arrest that occurred. The length of the detention here seemed downplayed as a basis for finding the seizure illegal; rather, the fact that there was no probable cause for the detention, and no link between Mr. Watson and the criminal activity observed by the police that aided Mr. Watson in his appeal.
The government charged Mr. Watson with being a felon in possession of a firearm and ammunition. Mr. Watson moved to suppress his statement on Fourth Amendment grounds and failed in his efforts. Mr. Watson went to trial and a jury convicted him on both counts. On appeal, the Fourth Circuit vacated Mr. Watson’s conviction, finding that on the unique facts presented here, that the police seizure of Mr. Watson violated his Fourth Amendment rights. In conducting its reasonableness review, the Fourth Circuit ultimately determined that the seizure was illegal, and Mr. Watson’s incriminating statement should have been suppressed. The government conceded that Mr. Watson was "seized," and that there was no probable cause to detain him. The Fourth Circuit considered the governmental objectives, i.e. preserving evidence and officer safety, and the Fourth Circuit determined that neither interest was implicated here to justify the unlawful custodial arrest that occurred. The length of the detention here seemed downplayed as a basis for finding the seizure illegal; rather, the fact that there was no probable cause for the detention, and no link between Mr. Watson and the criminal activity observed by the police that aided Mr. Watson in his appeal.
Thursday, December 20, 2012
$100 Robbery Sufficient to Sustain Hobbs Act Conviction
US v. Tillery: A man with a gun robbed a dry cleaner's in Petersburg, Virginia, taking a small amount of cash and the clerk's laptop. After he left, the clerk ran to the barbershop next door for help. Later that month, someone came to the barber shop and sold the owner a laptop, which turned out to be the one taken from the clerk. The owner identified Tillery from a photo array as the one who sold him the laptop. The clerk then identified Tillery as the man who committed the robbery. A few months later, an officer recovered two shotguns from an abandoned motel, next to a motel where Tillery lived at the time of the robbery. Tillery was in jail at the time and described the robbery and where he kept his guns to his cellmate in "shocking detail." He was charged and convicted of a Hobbs Act robbery and brandishing a firearm in connection with a crime of violence, then sentenced to a combined term of 360 months in prison.
On appeal, Tillery challenged both his convictions and sentence, all of which the Fourth Circuit affirmed. First, Tillery argued that the robbery did not meet the Hobbs Act threshold of having a "minimal effect" on interstate commerce, because it only resulted in the theft of $100. The court disagreed, noting that a robbery has a "minimal effect" if it depletes the assets of an inherently economic enterprise and that in making that determination it is not the individual act that matter, but rather the "relevant class of actions" and the impact they have on interstate commerce. The robbery in this case met that burden. Second, Tillery argued that the evidence was insufficient to convict him on either count. The court disagreed, concluding that there was ample evidence aside from the clerk's identification of him as the robber (including the "damning testimony" of his cellmate) to support a conviction. Finally, Tillery argued that he was improperly classified as a career offender because a prior conviction for eluding police was not a "crime of violence." The court disagreed, noting that it had previously held that any "intentional vehicular flight" is a violent felony.
On appeal, Tillery challenged both his convictions and sentence, all of which the Fourth Circuit affirmed. First, Tillery argued that the robbery did not meet the Hobbs Act threshold of having a "minimal effect" on interstate commerce, because it only resulted in the theft of $100. The court disagreed, noting that a robbery has a "minimal effect" if it depletes the assets of an inherently economic enterprise and that in making that determination it is not the individual act that matter, but rather the "relevant class of actions" and the impact they have on interstate commerce. The robbery in this case met that burden. Second, Tillery argued that the evidence was insufficient to convict him on either count. The court disagreed, concluding that there was ample evidence aside from the clerk's identification of him as the robber (including the "damning testimony" of his cellmate) to support a conviction. Finally, Tillery argued that he was improperly classified as a career offender because a prior conviction for eluding police was not a "crime of violence." The court disagreed, noting that it had previously held that any "intentional vehicular flight" is a violent felony.
Jurisidction Proper In Virginia for Theft Comitted in US Embassy in Iraq
US v. Ayesh: Ayesh, who lived in Jordan, was hired to oversee shipping and customs at the US Embassy in Baghdad. In that role, he created a scheme that allowed him to funnel funds from vendors to his wife's bank account in Jordan. He kept the various instruments needed to run the scheme in his apartment in the Embassy. Ayesh was arrested at Dulles when he came for a training seminar (which was just a ruse to get him in the country). He was charged with two counts of theft of public money and one count of committing acts affecting a personal financial interest. He was convicted on all counts and sentenced to 42 months in prison.
On appeal, Ayesh raised three challenges to his convictions, all of which the Fourth Circuit rejected. First, he argued that the district court in Virginia lacked jurisdiction over him given that his conduct took place in Iraq and Jordan. The court disagreed, holding that, although the statutes involved do not specifically apply to conduct that occurs overseas, they were enacted out of the right of the Government to defend itself from fraud and do not require such a specific jurisdictional nexus. The court also concluded that the prosecution comported with international law and due process, as Ayesh had been told as part of his employment that he was subject to the laws of the United States. Second, Ayesh argued that his post-arrest statements should have been suppressed because they came during a lengthy interview conducted after a 19-hour flight and had been coerced. The court disagreed, concluding that Ayesh was given Miranda warnings, was fluent in English, and "asked good questions and spoke confidently on his own behalf." Finally, Ayesh argued that there was insufficient evidence to support the two theft of public money counts. The court concluded there was sufficient evidence from which the jury could find intent to deprive the United States of the use or benefit of the money involved.
On appeal, Ayesh raised three challenges to his convictions, all of which the Fourth Circuit rejected. First, he argued that the district court in Virginia lacked jurisdiction over him given that his conduct took place in Iraq and Jordan. The court disagreed, holding that, although the statutes involved do not specifically apply to conduct that occurs overseas, they were enacted out of the right of the Government to defend itself from fraud and do not require such a specific jurisdictional nexus. The court also concluded that the prosecution comported with international law and due process, as Ayesh had been told as part of his employment that he was subject to the laws of the United States. Second, Ayesh argued that his post-arrest statements should have been suppressed because they came during a lengthy interview conducted after a 19-hour flight and had been coerced. The court disagreed, concluding that Ayesh was given Miranda warnings, was fluent in English, and "asked good questions and spoke confidently on his own behalf." Finally, Ayesh argued that there was insufficient evidence to support the two theft of public money counts. The court concluded there was sufficient evidence from which the jury could find intent to deprive the United States of the use or benefit of the money involved.
Tardy Expert Testimony Not Error, Nor Harmless, In DUI Trial
US v. Smith: Smith was the driver of a car that rolled and crashed into a wall on the Baltimore-Washington Parkway. A passenger was killed and Smith showed signs of intoxication before and after the crash. Nearly three hours after the crash, Smith was given a blood test that showed a blood alcohol content of 0.09. She was charged with misdemeanor manslaughter, with the underlying offense being operation of a motor vehicle with a blood alcohol content above 0.08. At trial, a Government expert witness testified not just to the alcohol content of Smith's blood as tested, but about how human bodies both absorb and eliminate alcohol from their system, pegging the rate of elimination for women at 0.017 per hour. Smith was convicted after a jury trial.
On appeal, Smith challenged her conviction on several grounds, all of which the Fourth Circuit rejected. First, she argued that the Government's expert should not have been allowed to testify about generic alcohol absorption/elimination rates because it was beyond the scope of the pretrial notice of the subject of the expert's testimony. The court disagreed, concluding that "although full disclosure by the government would have been more in keeping with the spirit of Rule 16," the testimony at issue was general background information and not tied directly to an expert opinion about Smith. At any rate, if there was any error, it was harmless. Second, Smith argued that the evidence was not sufficient to prove she had a blood alcohol level of at least 0.08 at the time of the crash (as opposed to several hours afterward). The court disagreed, concluding that there was enough evidence to conclude that she violated the statute, including that the expert's testimony about absorption/elimination rates made it highly unlikely that her blood alcohol level was below 0.09 before the accident. Finally, the court rejected her argument that the district court erred by refusing to instruct the jury that the blood test result, standing alone, was insufficient evidence to convict her.
On appeal, Smith challenged her conviction on several grounds, all of which the Fourth Circuit rejected. First, she argued that the Government's expert should not have been allowed to testify about generic alcohol absorption/elimination rates because it was beyond the scope of the pretrial notice of the subject of the expert's testimony. The court disagreed, concluding that "although full disclosure by the government would have been more in keeping with the spirit of Rule 16," the testimony at issue was general background information and not tied directly to an expert opinion about Smith. At any rate, if there was any error, it was harmless. Second, Smith argued that the evidence was not sufficient to prove she had a blood alcohol level of at least 0.08 at the time of the crash (as opposed to several hours afterward). The court disagreed, concluding that there was enough evidence to conclude that she violated the statute, including that the expert's testimony about absorption/elimination rates made it highly unlikely that her blood alcohol level was below 0.09 before the accident. Finally, the court rejected her argument that the district court erred by refusing to instruct the jury that the blood test result, standing alone, was insufficient evidence to convict her.
No Second Amendment Protection for Illegal Alien
US v. Carpio-Leon: Carpio-Leon had lived in the country illegally for 13 years, with his wife and three children (all of whom were born in the US). During a consensual search of Carpio-Leon's house (the opinion doesn't say based on what) officers recovered firearms and ammunition. Carpio-Leon was charged with being an illegal alien in possession of a firearm and illegal entry into the US. After the district court denied his motion to dismiss under Heller, Carpio-Leon pleaded guilty, sentenced to time served, and ordered deported.
On appeal, Carpio-Leon renewed his Second Amendment challenged to the illegal alien in possession of a firearm statute (922(g)(5)).
The Fourth Circuit affirmed his conviction and sentence. Rather than resolve the issue of whether illegal immigrants were part of "the people" as understood at the time the Second Amendment was ratified, the court concluded that they are not part of the "law abiding" community to which Second Amendment protections extend. The court further noted that this was so because of a designation made by Congress in an area in which it was owed great deference, i.e., immigration. Thus, Carpio-Leon had no protections under the Second Amendment. The court also rejected Carpio-Leon's argument that he was denied equal protection under the Fifth Amendment, because 922(g)(5) survives a rational basis analysis.
The Fourth Circuit affirmed his conviction and sentence. Rather than resolve the issue of whether illegal immigrants were part of "the people" as understood at the time the Second Amendment was ratified, the court concluded that they are not part of the "law abiding" community to which Second Amendment protections extend. The court further noted that this was so because of a designation made by Congress in an area in which it was owed great deference, i.e., immigration. Thus, Carpio-Leon had no protections under the Second Amendment. The court also rejected Carpio-Leon's argument that he was denied equal protection under the Fifth Amendment, because 922(g)(5) survives a rational basis analysis.
Friday, December 14, 2012
Emails Sent from Work Not Covered By Spousal Privilege
US v. Hamilton: Hamilton was a member of the Virginia House of Delegates. He communicated with Old Dominion University about a new center for teaching it was looking to build, with state funds. In conversations between Hamilton and ODU (and Hamilton's wife), he made repeated references to pushing funding through the legislature and possibly coming to work at the center. Many of these conversations took place over Email, Hamilton using his work Email account. After Hamilton introduced legislation for $1 million worth of funding for the ODU center, he was offered a job there. As a result of all this, Hamilton was charged and convicted of bribery concerning federal program funds and extortion under color of official right. He was sentenced to 114 months.
On appeal, Hamilton challenged both his convictions and sentence, all of which the Fourth Circuit affirmed. Hamilton first argued that the introduction of Emails between he and his wife violated spousal privilege. The court agreed that there is a general expectation of privacy in such Emails, but concluded that because Hamilton sent the Emails from a work computer and "did not take any steps to protect" their content they were not privileged. Second, Hamilton challenged the sufficiency of the evidence supporting his convictions, which the court found was sufficient. Third, he argued that the district court erred by not instructing the jury on the difference between a bribe and a gratuity, which the court rejected because the matter of intent had been sufficiently covered in the instructions. Finally, the court affirmed the district court's calculation of the advisory Guideline range.
On appeal, Hamilton challenged both his convictions and sentence, all of which the Fourth Circuit affirmed. Hamilton first argued that the introduction of Emails between he and his wife violated spousal privilege. The court agreed that there is a general expectation of privacy in such Emails, but concluded that because Hamilton sent the Emails from a work computer and "did not take any steps to protect" their content they were not privileged. Second, Hamilton challenged the sufficiency of the evidence supporting his convictions, which the court found was sufficient. Third, he argued that the district court erred by not instructing the jury on the difference between a bribe and a gratuity, which the court rejected because the matter of intent had been sufficiently covered in the instructions. Finally, the court affirmed the district court's calculation of the advisory Guideline range.
Identity Theft Statute Doesn't Cover Corporations
US v. HIlton: This appeal involves three Hiltons - Jimmy, Tamatha, and Jacqueline - who were convicted of a scheme to defraud a company where Tamatha worked. Over the course of two years, the Hiltons cashed numerous checks written by customers to the business, taking about $655,000 in the process. As part of the scheme, Jacqueline opened a bank account in her name, but falsely purporting to be the owner of the business. Jimmy endorsed the stolen checks and filled out the deposit slips. The various Hiltons were charged with 43 counts of fraud, money laundering, and identity theft. They were convicted on all but one count.
On appeal, Jimmy and Jacqueline argued that their identity theft convictions must be reversed because the statute does not contemplate the theft of the identity of a corporation. The statute refers only to the identification of "persons" and "specific individuals," which it does not define. While the Dictionary Act defines "persons" as including corporations, it does not define "individual." The court concluded that the context of the identity theft statute does not indicate whether "individual" would include corporations. Noting the ambiguity and applying the rule of lenity, the court concluded that the statute cannot be read to include corporations and reversed Jimmy and Jacqueline's convictions on those counts. It also vacated their sentences.
On all other grounds, the Fourth Circuit affirmed the convictions, as well as Tamatha's sentence. It rejected Tamatha's argument that the district court erred by rejecting her motion to suppress her post-arrest statements because she requested counsel, as well as Jimmy's argument that the district court erred by denying his motion to proceed pro se on the morning of jury selection. The court also rejected Jimmy and Jacqueline's argument that there was insufficient evidence to support their mail theft convictions, as well as the arguments of all the Hiltons as to the sufficiency of the evidence supporting their mail fraud affecting a financial institution convictions.
On appeal, Jimmy and Jacqueline argued that their identity theft convictions must be reversed because the statute does not contemplate the theft of the identity of a corporation. The statute refers only to the identification of "persons" and "specific individuals," which it does not define. While the Dictionary Act defines "persons" as including corporations, it does not define "individual." The court concluded that the context of the identity theft statute does not indicate whether "individual" would include corporations. Noting the ambiguity and applying the rule of lenity, the court concluded that the statute cannot be read to include corporations and reversed Jimmy and Jacqueline's convictions on those counts. It also vacated their sentences.
On all other grounds, the Fourth Circuit affirmed the convictions, as well as Tamatha's sentence. It rejected Tamatha's argument that the district court erred by rejecting her motion to suppress her post-arrest statements because she requested counsel, as well as Jimmy's argument that the district court erred by denying his motion to proceed pro se on the morning of jury selection. The court also rejected Jimmy and Jacqueline's argument that there was insufficient evidence to support their mail theft convictions, as well as the arguments of all the Hiltons as to the sufficiency of the evidence supporting their mail fraud affecting a financial institution convictions.
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