Court Affirms Revocation Based on Violation of PO’s Instructions Regarding Supervised Release

US v. Amin: In 2015, Amin (then 17 years old) pleaded guilty to conspiracy to provide material support to ISIS based partly on his online presence and use of a computer. Among the conditions of supervised release imposed as part of his sentence was that he “follow the instructions of the probation officer,” that he not “associate with any person convicted of a felony” without permission, and that he be “subject to any screening or monitoring of internet use, as directed by the probation officer.” When he began supervision, he received additional instructions from his PO that required Amin to submit to computer monitoring, obtain permission before conversing online in a language other than English, not possess any material that reflects extremist or terrorist views, and have no contact with any known extremist. Amin, pro se, challenged the instructions, which the Government in response moved to have made formal conditions of supervision. The district court denied all requests, concluding that the PO’s instructions did not do anything new, only clarified the already imposed conditions.

Amin violated the conditions/instructions in several ways (including, for example, using Linux for an operating system, which defeated probation’s tracking software, and communicating with “American Taliban” John Walker Lindh) and the Government sought the revocation of his term of supervised release based on some (but not all) of the alleged violations. The district court agreed, revoked Amin’s term of supervised release, and sentenced him to one year in prison and reimposed the lifetime term of supervised release from his original sentence.

On appeal, the Fourth Circuit affirmed Amin’s revocation and sentence, rejecting various arguments Amin made about the nature of the conditions and instructions he violated (there was no factual dispute that he violated them). For example, the court rejected Amin’s argument that the PO’s instructions amounted to additional conditions of supervised release that were not properly imposed by the district court, agreeing with the district court that they merely clarified and gave effect to conditions imposed at sentencing. The court also rejected as applied challenges to the underlying conditions, reinforcing its holding that such challenges must come in the direct appeal of the initially imposed sentence. As to any as-applied challenges to the any vagueness in the PO’s instructions, the court held that Amin had multiple means to seek clarity if there was confusion about their scope but did not.

Waiver of Appellate Rights Covered Sentence Eight Times Longer than Government Wanted

US v. Toebbe: Diana Toebbe’s husband, Jonathan, was a nuclear engineer with the US Navy’s Reactor Engineering Division, with high-level clearance to handle “restricted material.” In 2020, Jonathan offered restricted material related to Virginia-class nuclear submarines to a foreign nation, which notified the FBI. Subsequently, Jonathan delivered several SD cards with restricted material on them via dead drops during which Diana would act as a lookout, in return for payments in cryptocurrency. Each were charged (in separate cases, it appears) with conspiracy to communicate restricted data and two counts of aiding and abetting the communication of restricted data.

Diana entered into a binding plea agreement with the Government under Rule 11(c)(1)(C) of the Rules of Criminal Procedure in which she agreed to plead guilty to conspiracy in return for a sentence of no greater than three years in prison. At the plea hearing, the Government described Diana’s role as “limited” and “passive” in a “scheme led be her husband,” and that her “offense boils down to acting as a cover and a lookout on three occasions in a three-month period. Nothing more than that. Nothing less.” The district court rejected the plea agreement, calling the 36-month sentence “strikingly deficient” given the nature of the offense and the danger it posed to US naval forces. The district court noted that the probation officer had calculated the advisory Guideline range as 151 to 188 months and “found no justifiable reasons for accepting a plea agreement that would bind it to impose a sentence that far below that range.”

Diana and the Government then entered into another Rule 11(c)(1)(C) plea, in which she again agreed to plead guilty to conspiracy. This agreement bound the district court to impose a sentence of “not more than the low end of the applicable Guideline range,” which would be determined by the district court. The parties agreed to an advisory Guideline range of 108 to 135 months, based on a 3-level departure for substantial assistance and acceptance of responsibility. The plea agreement contained a waiver of Diana’s right to appeal any sentence imposed pursuant to the language above. After the agreement was reached, the probation officer, on their own initiative, contacted the jail where the Toebbes had been detained and learned that Diana had tried to send Jonathan a pair of letters making “attempts to induce her husband to . . . provide statements to authorities affirming her ignorance of his criminal scheme.”

At sentencing, the district court denied the Government’s motion for substantial assistance, assessed a two-level enhancement based on the letters, and declined to award a reduction for acceptance of responsibility, producing an advisory Guideline range of 262 to 327 months. Diana argued for a variance sentence “in the range of 3 to 4.9 years,” arguing that Jonathan “was the principal actor” who came “up with the idea to do this” and that a 262-month sentence would be an unwarranted disparity compared to other espionage cases. The Government argued for a three-year sentence, arguing that it was “universally accepted” that the “person with the access . . . should be punished more severely than someone who might have helped in some way.” It urged the district court to not give excess weight to the letters and reiterated the assistance that Diana had given, which was considered “significant” by both the FBI and the Navy. The district court imposed a sentence of 262 months, noting that this offense was “one of the most serious it had ever seen” and concluding that far from being a minor participant “it was most probably Mrs. Toebbe that was driving the bus.” The district court sentenced Jonathan to 232 months.

On appeal, the Fourth Circuit granted the Government’s motion to dismiss the appeal without reaching the merits of any of Diana’s arguments. She argued that the district court’s rejections of the parties’ position as to a departure and acceptance, and the Government’s ultimate support for a three-year sentence, resulted in a sentence she could not have anticipated at the time the plea agreement was signed. The Government argued that the language of the plea agreement covered the arguments Diana sought to make. The court agreed, ultimately concluding that the sentence was at the bottom of the Guideline range found to apply by the district court, who the plea agreement recognized had the ultimate authority on such calculations.

Trial Delay Primarily Based on COVID Conditions Doesn’t Require Granting Motion to Dismiss

US v. Pair: Pair was charged with two counts of distribution of fentanyl on January 31, 2020 – the same day the first case of COVID-19 was confirmed in the United States. He was convicted of both counts at a trial that began 401 days later, after unsuccessfully moving to have his case dismissed for violations of the Speedy Trial Act and Sixth Amendment speedy trial rights. With the exception of time excluded due to defense counsel illness and the need for new counsel, most of the time was due to district-wide general orders continuing trials due to COVID or case-specific orders due to COVID. The district court found all that time excludable due to the ends of justice and found no Sixth Amendment denial of rights.

On appeal, the Fourth Circuit affirmed Pair’s convictions and the denial of his motion to dismiss. As to the Speedy Trial Act analysis, the court first found that the delay caused be counsel’s illness and the need for new counsel was properly excluded, even though Pair himself objected to any such continuance, as was the time needed to resolve Pair’s motion to dismiss. The court then addressed the COVID-fueled delays and ultimately found that they were all excludable, both those directly related to the general orders and those caused by specific orders entered in Pari’s case (which nonetheless incorporated the findings of the general orders regarding COVID). In those orders it was “clear that the district court contemporaneously balanced” the relevant factors and that the “result of this balancing was not in error.” “It would,” the court concluded, “be the worst kind of hindsight to say that this judgment was in error.” As for the Sixth Amendment analysis, while the 401-day delay was presumptively prejudicial (the Government agreed), the other factors did not favor Pair. In particular, the court rejected Pair’s defense was adversely impacted by his pretrial detention, noting that “were such prison conditions to establish a Sixth Amendment violation . . . entire facilities could be substantially depopulated, a result that [the Supreme Court] in no way countenanced.”

Coram Nobis Claim Fails on Failure to Prove Underlying Offense Subsection

US v. McDaniel: In 1993, McDaniel was involved with a robbery that turned into a chase in which he (the front seat passenger in a car) “leaned from a car window and fired at least two pistol shots” at the pursuing US Marshal. He eventually pleaded guilty to an information charging him with using a firearm in relation to a crime of violence – “an assault on a deputy marshal” and was sentenced to 36 months in prison. In 2005, McDaniel was charged in a multi-count indictment with  (among other things) another firearm possession offense, this time in connection with a drug trafficking crime. Due to his 1993 conviction, McDaniel was subject to the 25-year mandatory minimum on that charge because it was his second such conviction.

In the wake of Johnson and other cases narrowing the relevant definition of “crime of violence,” McDaniel sought relief, either through a 28 USC 2255 motion or a writ of coram nobis, arguing that his 1993 conviction was invalid because his assault offense did not meet the definition of crime of violence. The district court denied relief, on the 2255 because he was no longer in custody related to that offense, and on the coram nobis because McDaniel had failed to prove that the version of assault for which he was convicted was not a crime of violence.

On appeal, the Fourth Circuit affirmed the district court’s denial of relief. McDaniel proceeded only on the coram nobis theory, arguing that the version of assault for which he was convicted did not require the necessary level of force to qualify as a crime of violence. The Fourth Circuit agreed that the relevant statute, 18 USC 111, set forth different offenses in subsection (a) and (b), with the first no longer qualifying as a crime of violence. The court rejected McDaniel’s argument that the firearm enhancement in subsection (b) could be committed recklessly. Under the standard for obtaining coram nobis relief, however, McDaniel had to prove with certainty which version of the offense he had been convicted of committing. The relevant documents were not sufficiently clear to support that burden.

Maryland Assault with a Firearm Not ACCA Violent Felony

US v. Redd: In 2008, Redd was convicted of being a felon in possession of a firearm and sentenced to the 180-month statutory maximum under the Armed Career Criminal Act. Two of the prior convictions that served as ACCA predicates were convictions from Maryland for first-degree assault. In 2016, Redd filed a second 2255 motion arguing that those convictions no longer met the definition of “violent felony” under ACCA. The district court denied relief, holding that because the Fourth Circuit affirmed the sentence on direct appeal Redd’s argument was foreclosed.

On appeal, the Fourth Circuit reversed the denial of relief for Redd. Examining the statutory text of the applicable Maryland statute, the court concluded that it was indivisible, setting out only one offense. The conclusion was reinforced by how Maryland courts had dealt with the statute and by charging practices for that offense. Looking to the elements of the offense, the court first concluded that the offense could be committed recklessly, as it was merely second-degree assault (simple common-law assault) “plus a statutorily defined aggravating factor, such as the use of a firearm.” The court then concluded that there was no added mens rea requirement related to the aggravating factor. Thus, the court ultimately concluded that the offense was not a violent felony.

Judge Quattlebaum concurred, but got “there following a slightly different path.”

Tennessee Intentional Aggravated Assault is ACCA Violent Felony

US v. Ogle: Ogle pleaded guilty to being a felon in possession of a firearm. The primary issue at sentencing was whether he qualified for sentencing under the Armed Career Criminal Act and, in particular, whether a 2017 conviction out of Tennessee for aggravated assault fit the definition of “violent felony.” The district court held that it was and sentenced Ogle to 210 months in prison.

On appeal, the Fourth Circuit affirmed. Agreeing with the parties that the Tennessee statute was divisible and Ogle had been convicted of the version of the offense that criminalizes the knowing commission of an assault that required “causing extremely offensive or provocative physical contact with another  . . . that involves the display of a deadly weapon.” That display of a weapon meant that the assault “necessarily” involved “a threat of violent force.” It doesn’t matter that simple assault requires only de minimis force because of the use of a weapon, with the court noting that “ACCA’s force clause . . . does not require that injury be an element of the crime . . . only the use, attempted use, or threated use of force ‘capable of causing physical pain or injury.”

Neighborhood Stranger With Weighted Pocket Not Enough to Support Stop

US v. Critchfield: Critchfield was walking down an alley in Bridgeport, West Virginia, when he caught the eye of a postal inspector who was leaving his house. The inspector through Critchfield looked suspicious (he thought “Critchfield had an ‘Oh, no, I’m caught’ look on his face”) and kept an eye on him, noticing that his sweatshirt “had what appeared to be something very heavy in it, so heavy that it was falling down below his crotch.” Critchfield also kept looking back over his shoulder at the inspector. The inspector called the local police (with whom he’d worked on prior investigations) and relayed this information. Two officers arrived, stopped Critchfield, and recovered a gun and some pills from his sweatshirt pocket. Critchfield unsuccessfully moved to suppress that evidence and eventually pleaded guilty to being a drug user in possession of a firearm.

On appeal, the Fourth Circuit reversed the denial of Critchfield’s motion to suppress. In doing so, the court emphasized both the need for reasonable suspicion to be articulable and for it to be particularized to support a stop. Noting that the two officers who stopped Critchfield didn’t see anything suspicion, so they were relying entirely on the observations from the postal inspector. The court concluded that those observations were not enough to generate reasonable suspicion, as they did not suggest that he had been involved in a theft (the offense being investigated). The court noted that Critchfield’s evasive behavior meant less here than it might if he’d had reason to know that the inspector was a law enforcement officer. Further, there was no testimony as to why, specifically, the nature of the pocket of Critchfield’s sweatshirt was suspicious of criminal activity.

Congrats to the NDWV Defender office on the victory!

Gun Enhancement Vacated, Assault Enhancement Affirmed in Fractured Opinion

US v. Mitchell: Police arrived at a rural road and found a car “stopped at a stop sign with the engine running and brake lights on” with “Mitchell in the car, non-responsive and slumped over in the driver seat with a gun in his right hand.” After securing the gun, officers eventually roused Mitchell who, when ordered out of the car simply “stared at them.” When an officer “attempted to forcibly remove Mitchell from the car . . . Mitchell twice punched him in the face.” The officer fell and hit his face. The struggle continued, but Mitchell eventually got out of the car (during which one officer observed “keep in mind he’s incoherent”). Officers found a “small plastic baggie in Mitchell’s pants pockets that contained a white substance,” cocaine. Mitchell pleaded guilty to being a felon in possession of a firearm and was sentenced to 84 months in prison.

On appeal, a fractured Fourth Circuit vacated his sentence. At issue was a pair of Guideline enhancements – a six-level enhancement for assault of a law enforcement officer that created a serious risk of serious bodily injury and a four-level enhancement for possession of the firearm in connection of another felony offense, possession of cocaine – that boosted Mitchell’s sentence. On the six-level enhancement, Judges Benjamin and Rushing rejected Mitchell’s arguments that the enhancement should not apply – concluding that the district court made sufficient findings, that there was sufficient evidence of assault, that Mitchell knowingly struck a law enforcement officer, and that his action created a substantial risk of serious bodily injury (although no actual injury occurred). On the four-level enhancement, Judges Benjamin and Keenan agreed that the district court did not make sufficient findings to support the conclusion that the firearm facilitated or had the potential to facilitate the possession of the cocaine. They distinguished this case from Jenkins, where there were specific findings as to how the firearm in that case facilitated drug possession.

Judge Rushing filed a separate opinion concurring and dissenting in parts, arguing that there was sufficient evidence to support the four-level enhancement. Judge Keenan also filed a separate opinion concurring and dissenting, arguing that the six-level enhancement suffered from the same flaw as the four-level one, that the district court had not sufficiently identified the basis for its application.

Congrats on the EDNC Defender office on the victory!

Reversing Denial of Compassionate Release Motion Based on 924(c) Disparity

US v. Brown: In 2014, Brown was convicted of (among other things) two counts of possessing a firearm in connection with a drug trafficking offense, under 18 USC 924(c). At the time, the statute was written in such a way as to require the “second” of those convictions to carry a mandatory minimum sentence of 25 years, served consecutively to any other imposed sentence – including the five-year mandatory minimum on the “first” 924(c) count. All told, Brown was sentenced to 687 months in prison.

In 2020, Brown filed a motion for compassionate release based on his increased risk of complications should he contract COVID-19 in prison. The motion also “highlighted the steps he had taken to rehabilitate since he was sentenced.” The district court initially denied Brown’s motion, but the Fourth Circuit remanded because the district court did not address all of Brown’s arguments. On remand, Brown argued that the changes to 924(c) – under which he would now be subject only to a pair of stacked five-year terms – separately constituted “extraordinary and compelling reasons” for his release. The district court again denied Brown’s motion, holding that he had not proven he was at a particularized risk from COVID-19 and that the 924(c) argument had not been properly presented to the Bureau of Prisons before Brown made it in court.

On appeal, a divided Fourth Circuit reversed the denial of Brown’s motion. As to the COVID-19 issue, the court found no abuse of discretion on the district court’s part. As to the 924(c) disparity argument, however, the court held that it was a basis for relief. Noting that the district court’s procedural ruling was no longer good law under since-decided Fourth Circuit precedent, the court found that it was error for the district court to fail to address it (either as the basis for relief or under the relevant factors for imposing a new sentence). The court then reviewed the record and found that the 924(c) disparity was both an exceptional and compelling reason for granting relief and weighed heavily in determining a new sentence. Rather than remand, the court directed that Brown’s motion be granted and his sentence reduced.

Judge Quattlebaum dissented from what he called an “extraordinary, and in my view, regrettable decision.” He took issue not just with the majority’s conclusion of error on the district court’s failure to address the 924(c) disparity, but in the majority’s decision to directly order relief rather than remand.

Aiding and Abetting Carjacking Remains a Crime of Violence

US v. Draven: Draven and his paramour hired a hitman to kill her husband. As a result, he was convicted of (among other things) murder with a firearm in relation to a crime of violence, said crimes being a conspiracy to commit murder and aiding and abetting carjacking resulting in death. While Draven’s post-Johnson motions were winding through the courts, the Fourth Circuit held, in the appeal of his codefendant Runyon (the shooter) that carjacking remains a crime of violence. Ultimately, Draven conceded that carjacking remained a crime of violence, but because the verdict on the firearm count was a general one it was unclear which predicate the jury relied upon, particularly whether it had relied on an aiding and abetting theory.

The Fourth Circuit concluded Draven’s firearm conviction should be affirmed. It rejected his argument that the Supreme Court’s recent decision in Taylor rendered aiding and abetting no longer a basis for an offense being a crime of violence, similar to attempt. The court relied upon Ali, in which it held that the aiding and abetting statute “does not set forth an essential element of the offense” meaning that “aiding and abetting a crime has the exact same elements as the principle offense.” As such, “aiding and abetting and attempt are not comparable offenses.”

Court Affirms Convictions and Death Sentence Despite Competency Issues

US v. Council: Council robbed a bank in South Carolina, during which he shot and killed a teller and a manager. He was charged with bank robbery resulting in death and using a firearm in relation to a crime of violence causing death. He was convicted at trial and sentenced to death.

On appeal, the Fourth Circuit affirmed Council’s convictions and sentence. His primary argument on appeal revolved around how issues of his competency had been dealt with by the district court. While not arguing against “the district court’s bottom-line finding that he was competent to proceed,” he argued that the district court should not have deferred to the representations of his counsel (based on their retained experts) as to his competency. While the district court raised the issue “on its own initiative several times,” Council’s counsel “vigorously opposed any court-ordered examination . . . because it could place information in the government’s hands that could increase the risk of a death sentence.” Ultimately, the court conclude that even if it agreed “that obtaining an independent evaluation that results in the filing of a detailed report is generally preferable to relying on a private evaluation by defense-chosen experts – we cannot say the district court exceeded its discretion in proceeding as it did here.” The court also rejected Council’s arguments regarding jury selection, both that the district court should have asked more nuanced questions about racial bias and that the Government’s violated Batson, holding that the Batson challenge had been “affirmatively waived” by trial counsel.

Erroneous Guideline Calculation Didn’t Undermine Denial of First Step Act Relief

US v. Smith: Long ago (it’s unclear precisely when), Smith was convicted of conspiracy to distribute crack cocaine. He received the then-mandatory minimum sentence of 240 months, above the otherwise applicable Guideline range of 188 to 235 months. He sought relief under the First Step Act. The Government agreed that Smith was eligible for relief (his mandatory minimum had dropped to 120 months), but argued that he should not get it. The district court ultimately recalculated the advisory Guideline range as 130 to 162 months in prison, but noted that his 240-month sentence was still within the statutory maximum (life) for the offense. Noting that the amount of crack attributable to Smith was just below the new threshold for the 240-month mandatory minimum, as well as its “strong suspicion” that Smith played a role in an informant’s murder, the district court denied Smith’s motion.

On appeal, the Fourth Circuit affirmed the denial of Smith’s First Step Act motion. Smith argued, under plain error, that his newly applicable Guideline range was even lower than that calculated by the district court, but the court held that was incorrect – the applicable Guideline range was actually 151 to 188 months, even higher than the one used by the district court. Given that determination, there was “no reasonable probability the outcome would have been different had the court recognized its mistake.” The court also concluded that Smith’s 240-month sentence remained substantively reasonable based on the totality of the circumstances, even though the district court did not note that the sentence was now an upward variance, rather than the minimum required by law. As to the “strong suspicion” of Smith’s involvement in a murder, the court noted that the district court also stated that it “was not convinced that the evidence was sufficient to implicate” Smith.

Six-Month Longer Sentence Made Consecutive to State Sentence Not Vindictive

US v. Singletary: In 2019, following participation in an armed robbery, Singletary was sentenced to 60 months on a Hobbs Act robbery charge and a consecutive 84-month sentence on a firearm brandishing charge. He appealed, challenging the application of a pair of supervised release conditions. Successful, the Fourth Circuit vacated his entire sentence, remanding for further proceedings. At resentencing, the district court imposed an extra six months of imprisonment on the robbery charge and ordered his federal sentence to run consecutively to a state sentence imposed after his initial federal sentencing (those state charges had been pending at the time). As a result, Singletary’s sentence was effectively increased by about 11 years.

On appeal, the Fourth Circuit affirmed Singletary’s new sentence. The court first concluded that Singletary’s appeal was not covered by a waiver of his right to appeal his sentence in his plea agreement because the argument he was making – that his new sentence was the product of vindictive conduct by the district court – did not fall within the scope of the waiver. However, the court ultimately held that the presumption of vindictiveness created by the lengthened sentence had been rebutted. That was due to two factors relied upon by the district court in imposing the new sentence. The first was Singletary’s poor disciplinary record in prison, which led the district court to doubt the sincerity of Singletary’s initial remorse at sentencing. The second was the new state convictions, which the district court did not consider when first imposing sentence because they were merely pending charges at the time.

False Lien Filed Against IRS Agent’s Pseudonym Supports Attempt Conviction

US v. Reed: Reed owed years’ worth of unpaid taxes and was referred to the Abusive Tax Avoidance Transactions division of the IRS. There an IRS agent, acting under a pseudonym, directed Reed’s employer to garnish his wages. After he was unsuccessful convincing his employer not to do so he lost his job, then filed a series of documents against the IRS agent’s pseudonym stating she owed him a judgment. When IRS investigators came to Reed’s home, he admitted that he intended the false lien (and related paperwork) to “get the IRS to leave him alone.” As a result, he was charged with attempting to file a false lien against a federal employee and attempting to interfere with the administration of internal revenue laws. Reed was convicted on both counts at trial and sentenced to 60 months in prison.

On appeal, the Fourth Circuit affirmed Reed’s convictions and sentence. As to his conviction for attempting to file a false lien, the court rejected Reed’s argument that he could not be convicted under that statute because the lien was filed in the name of the IRS agent’s pseudonym. The pseudonym was still a real person, “no more fictious than George Eliot or Mark Twain,” and had impacted the agent’s credit history. As to the interference conviction, the court held that the IRS action involving Reed was the type of “targeted administrative action” required under the Supreme Court’s interpretation of the statute. The court also rejected several related Guideline arguments.

Federal Land Element of Arson Statute Is Only Jurisdictional, but Mistake of Fact May Apply

US v. Evans: Evans set a fire that eventually burnt 70 acres of a national forest in North Carolina. He was charged with arson “on land owned by the United States.” Prior to trial, the Government moved in limine to exclude any testimony or evidence that Evans knew whether or not he was on federal land, arguing that the location element was merely jurisdiction. Evans argued that knowledge of federal ownership of the land was an element that included a scienter requirement. The district court sided with the Government, preventing Evans from testifying at trial that he thought the land where he started the fire belonged to his family (but abutted the national forest). Evans was convicted and sentenced to time served.

On appeal, the Fourth Circuit reversed Evans’ conviction. On the issue of the nature of the “on land owned by the United States” element, the court held that the district court had been correct – it was a jurisdictional element only and didn’t require proof of the defendant’s knowledge of the status of the land.  However, the court went on to conclude that a mistake of fact defense was available to Evans because the statute “requires that the defendant set the fire willfully – that is, with a bad purpose or with knowledge that his conduct is unlawful.” What makes the conduct unlawful is whether he willfully burned “the property of another – not whether the government owns the burned property.” Thus, a “defendant may attempt to negate the willfulness element by showing that he mistakenly believed he was not on federal land and had authorization to set the fire.” Because the district court prevented Evans from presenting such testimony, the court reversed his conviction.

Potential Police Promise Not to Arrest Defendant Can Be Enforced

US v. Bailey: A police officer, Page, stopped someone as they drove away from Bailey’s home, recovering 0.1 gram of crack cocaine. Page returned to Bailey’s home and talked to him. During that conversation, Page (allegedly) made representations to Bailey about helping him find work and that if Bailey handed over any additional drugs “everything is still squared away” between them. Bailey produced a bag with 0.7 gram of crack in it, which Bailey seized. Afterwards, Bailey helped Page locate another person with an outstanding warrant, but did not otherwise assist police in any investigations. Eventually, Bailey got two arrests warrants, one for distribution of the 0.1 gram of crack and one for possession with intent to distribute the 0.7 gram of crack (more drugs were found during the execution of the arrest).

Bailey filed a motion to suppress the 0.7 gram of crack, arguing that Page had wrongfully entered his home that night. At the end of the suppression hearing, the district court raised concerns about Page’s statement (in the court’s words) that Bailey could “put the drugs here and we’re square,” interpreting that as meaning “I’m not going to do anything. Give it here and you get immunity, zero for it.” In supplemental briefing, Bailey argued Page breached his promise by arresting him. The Government countered that it was Bailey who breached a promise, by not providing substantial assistance to Page with regard to other drug dealers. In addition, it argued that even Page had breached a promise it led only to suppression of the 0.7 gram of crack, not the 0.1 gram and the charge based on that. The district court sidestepped the issue of whether a promise was made and breached, but agreed that the suppression of 0.7 gram of crack didn’t impact the other charge and denied the motion to suppress.

On appeal, the Fourth Circuit vacated the district court’s decision and remanded for further proceedings. The court’s primary analysis involved whether a promise that Page is alleged to have made can be enforced by the defendant. The court concluded it could, analogizing it to non-prosecution agreements negotiated by prosecutors. The court rejected the Government’s argument that Page didn’t have the authority to make such promises, noting that his promise was not to arrest Bailey, which was within his authority as a police officer (as opposed to promising not to charge him). Because the district court had not reached a conclusion on whether a promise had been made (or breached), the case was remanded for additional proceedings.

Rule of Completeness Doesn’t Allow for Admission of Exculpatory Portion of Phone Call

US v. Davis: Davis was the driver, and lone occupant, of a car that was subject to a traffic stop. After a short car chase, Davis tried to flee further on foot. Once apprehended, officers found 25 pills (of a couple of different varieties) in Davis’ pocket along with cash. From the car they recovered a pistol “lodged between the front passenger seat and the center console.” While in custody awaiting trial, Davis had a phone call with his girlfriend in which he first said that “none of that ain’t mine. If it was mine I would claim it,” then two minutes later said, “I ain’t want to talk about how the gun got in the car.” At trial the Government used the second statement against Davis, who was prevented from presenting the first statement to the jury as well. The district court also denied Davis’ request to instruct the jury on simple possession of drugs as an alternative to possession with intent. Davis was convicted on drug and firearm charges, then sentenced as a career offender.

On appeal, the Fourth Circuit affirmed Davis’ conviction and sentence. Davis’ main argument as to his drug conviction was that the district court should have allowed the jury to hear the “none of that ain’t mine” statement under the Rule of Completeness. Bypassing whether the statement was inadmissible hearsay, the court applied prior precedent that the Rule does not require (or allow) the admission of self-serving statements from the party against whom the other portion of the statement is being admitted. Davis also argued that there was insufficient evidence to support the firearm conviction, which the court rejected because “substantial evidence demonstrates that Davis was in constructed possession of the stolen and loaded” firearm found in his car. Finally, the court rejected Davis’ argument that under Campbell his prior South Carolina drug distribution convictions were not “controlled substance offenses” so as to support his career offender designation. The court, again, limited Campbell to the peculiarities of the West Virginia statute at issue in that case.

No Error Where Court Refers to Defendant By Name During In-Court Witness ID

US v. Ross: Police got a report that Ross might be sexually abusing children and began investigating. The investigation uncovered images of child pornography and evidence that Ross had livestreamed video of a child in the Philippines being sexually abused at his command by an adult. He was eventually charged with multiple counts of production of child pornography as well as possession. At Ross’ trial, a woman named Peters testified about her relationship with Ross and what she witnessed during it. Early in her testimony she had trouble identifying Ross as the defendant. As a result, the Government asked the court to direct “the defendant to remove his mask and we’ll see if Ms. Peters can recognize him if he’s not wearing a mask,” to which the district court stated, “Mr. Ross, if you would please take down your mask.” Peters made a positive identification. Ross was convicted on all counts and sentenced to 660 months in prison, a variance from the 2040 months recommended by the Guidelines, but still a de facto life sentence.

On appeal, the Fourth Circuit affirmed Ross’ conviction and sentence. As to Ross’ conviction, the court initially held that any error in the in-court identification process on the district court’s part would not be a structural error, entitling Ross to relief even though he had not objected during trial. Having decided that, however, the court then concluded that there was no error at all by the district court, much less one that was plain. Assuming that the district court’s use of Ross’ name was unnecessarily suggestive, Ross could not show that the identification was unreliable under the totality of the circumstances. That was due to several factors, including that Peters had a “month-long intimate relationship with Ross” that “gave her numerous opportunities to view Ross around the time of his offenses.” As to Ross’ sentence, the court held that it did not violate the Eighth Amendment.

Inventory Search of Apparently Abandoned Van Justified as Community Caretaking

US v. Treisman: Police were called to a bank in North Carolina where a van had been left overnight. Through the passenger window, an officer saw multiple firearms, ammunition, a container for Tennerite (“a legal target shooting product that can also be used to make explosives”), along with pills and a suitcase. One firearm was an assault rifle with an extended magazine. Some officers expressed concern over the contents of the van, while one suggested there might be someone inside in need of aid. Officers opened the slightly ajar rear door and did not find anyone inside, but found more guns. After the van had been towed away, Treisman arrived asking about it. He was detained and officers obtained a warrant to search Tresiman’s phone, which led to the discovery of child pornography. Treisman eventually pleaded guilty to charges related to those images as part of a plea agreement that allowed him to appeal the denial of his motion to suppress.

On appeal, the Fourth Circuit affirmed the denial of Treisman’s motion to suppress. The court concluded that the initial entry of the van was reasonable under the community caretaking doctrine, in that the district court had not clearly erred by concluding that the officers were motivated primarily by safety concerns. Similarly, those concerns extended to the inventory search and seizure of the van, which was conducted pursuant to department polices (essentially). In addition, once “the cumulative effect of the contents of the van caused officers to suspect potential criminal activity . . . they initiated the criminal search warrant process.”

Partly Corroborated Tip, Prior History, Among Factors to Support Stop

US v. Howell: Police in Virginia got a tip from a previously reliable informant about a meeting between drug dealers that was to happen at a local hotel, which officers knew had a history of being used for drug dealing. When, after a few hours of surveillance, the target of the tip did not appear, they checked the guest register and found Howell was registered there. Officers knew that Howell had been previously part of drug trafficking investigations and had a prior drug conviction. They returned to surveillance and eventually a vehicle showed up that partially matched the tip, driven by Howell (who was not the target given by the tipster). After a brief trip inside the hotel and back out, Howell drove away and was shortly stopped. A drug dog alerted on and in the vehicle and officers recovered drugs. Howell was eventually convicted at trial of conspiracy to distribute drugs, distribution, and conspiracy to launder money, after the district court denied his motion to suppress the fruits of the stop and search of his vehicle.

On appeal, the Fourth Circuit affirmed Howell’s conviction and the denial of his motion to suppress. The court held that that totality of the circumstances present when the stop was made provided reasonable suspicion that criminal activity was afoot, even if some of the factors individually (Howell’s prior history, the hotel’s status, etc.) would not have created reasonable suspicion on their own. One of those factors was “Howell’s conduct in driving his vehicle” – that is, that he was “driving under the speed limit and giving unusually early turn signals.”