Criminal Law

MORVA v. ZOOK, NO. 15-1

Decided: May 5, 2016

The Fourth Circuit affirmed the district court’s judgment.

In 2006, William Charles Morva was in jail in Virginia on several charges. He was in jail for a year before escaping prison and committing the crimes that are the subject of his habeas petition. Morva requested medical attention and was taken to a hospital. After a trip to the bathroom, Morva attacked the deputy that was escorting him and knocked him unconscious. Morva took the deputy’s firearm and proceeded to shoot a hospital security officer in the face before escaping the hospital. Another corporal followed Morva into the nearby woods but was shot in the head by Morva during the pursuit. Both the security officer and corporal died as a result of their injuries. Morva was found in the woods a day later with the deputy’s gun nearby and Morva’s DNA on the trigger. Morva was charged with capital murder and sentenced to death by a jury. After proceeding unsuccessfully through state court, Morva filed a federal habeas petition that was denied by the district court. This appeal followed.

Morva presents five claims for review in his petition. First, he contends that the Virginia circuit court’s denial of his motion to appoint a prison-risk-assessment expert violated his Eighth and Fourteenth Amendment rights. Next, Morva raises three related ineffective-assistance-of-counsel claims regarding counsel’s investigation into his childhood, family background, and mental-illness history; counsel’s presentation of mitigating evidence; and counsel’s assistance to the state-funded mental-health experts. Finally, Morva appeals the denial of relief regarding his counsel’s decision during the guilt phase of trial to stipulate to Morva’s status as a “prisoner in a state or local correctional facility,” who was “imprisoned, but not yet had gone to trial,” and who was “in lawful custody” at the time of the charged offenses. As to the first claim, the Court found that the Supreme Court of Virginia did not unreasonably reject Morva’s claim because his claim was improperly framed as an unconstitutional prohibition on his right to present mitigating evidence. The Court reviewed the related ineffective-assistance-of-counsel claims together finding that the Supreme Court of Virginia’s decision on deficient performance does not warrant federal habeas relief. The Court also affirmed the Supreme Court of Virginia’s decision as to prejudice. The Supreme Court of Virginia found that “Morva has not demonstrated what impact, if any,” the new family-background evidence “had on his actions,” and concluded that the information “does not mitigate Morva’s actions.” The Court went further to say that the additional evidence would not have changed the minds of the mental health experts used in the case. Finally, the Court denied Morva’s final claim due to the Commonwealth’s ability to prove all of these allegations through evidence even if they were not stipulated.

Accordingly, the Fourth Circuit affirmed the judgment of the district court.

Full Opinion

Michael W. Rabb

U.S. v. SAUNDERS, NO. 15-4498

Decided: July 5, 2016

The Fourth Circuit reversed the district court’s dismissal of the indictments and remanded the district court’s ruling for further proceedings.

On January 15, 2015, Appellees, Gaston Saunders, Bryan Daniels, Michael Potter, and Stephen Daniels, captains of commercial fishing vessels, were indicted on multiple Lacey Act violations.  Appellees were indicted because they harvested tons of bass from federal waters (EEZ) in violation of federal law.  The Government appeals the district court’s dismissal of the indictment against Saunders and Daniels in part and against Potter and Daniels in full.

The Bass Act prohibits people from harvesting bass from the EEZ.  “The Lacey Act makes it a crime to take wildlife in violation of some other federal law.”  An exemption under the Lacey Act is present if it was “‘activity regulated by a fishery management plan in effect under’ the Magnuson-Stevens Act.”  The district court determined the “Commission’s plan authorized the Secretary of Commerce to regulate striped bass in federal waters, the EEZ.”  The district court concluded the Commission’s plan regulated the captains’ behavior and the Lacey Act exemption applied because of regulation-50 C.F.R. § 697.7(b) which prohibited fishing for or harvesting Atlantic striped bass in the EEZ.  The Fourth Circuit disagreed stating “[t]he text of the Commission’s plan does not purport to grant any power to regulate federal waters to the Secretary of Commerce.”  The Commission’s plan left the regulation of federal waters to the power of the Secretary of Commerce through the Bass Act not the Commission’s plan.  Furthermore, the Court stated the Secretary of Commerce’s power to regulate federal waters “comes directly from the Bass Act,” through federal sources because the Secretary of Commerce is a member of the President’s cabinet.  The Court concluded the Commission regulates the States’ waters not federal waters.

The captains contend the statutory framework prohibiting their conduct is void for vagueness.  The Court disagreed stating, “[a] statute is unconstitutionally vague if it ‘(1) “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or (2) “authorizes or even encourages arbitrary and discriminatory enforcement.”’”  The Court stated the indictments were straightforward: the captains harvested Atlantic striped bass from federal waters, the Bass Act prohibited fishing for bass in federal waters and the Lacey Act prohibited taking wildlife in violation of a federal regulation.  Therefore, when the captains harvested bass from federal waters, they violated the Bass Act, which in turn violated the Lacey Act.  The captains contended they had to consult numerous statutes in order to know their conduct was illegal.  The Court dismissed this assertion stating “[o]ur sister circuits have squarely held that regulatory complexity does not render a statute (or set of statutes) unconstitutionally vague.”  The Court also noted the prohibition of fishing for bass in federal waters had been on the books for over 25 years.  Finally, the Court concluded the framework was not void for vagueness because the Lacey Act contained a scienter requirement demanding the Government to prove the captains’ knowledge.  A “‘scienter requirement alone tends to defeat’ vagueness challenges to criminal statutes.”  Therefore, the Court concluded the Lacey Act exemption did not apply and the regulatory regime was not void for vagueness.

Accordingly, the Court reversed the district court’s dismissal of the indictments and remanded the district court’s ruling for further proceedings.

Full Opinion

Alicia E. Morris

U.S. v. GRAHAM, NO. 12-4659

Decided: May 31, 2016

The Fourth Circuit affirmed the district court’s decision.

In 2015, a panel of the Fourth Circuit affirmed convictions of defendants Aaron Graham and Eric Jordan related to their part in a series of armed robberies. During the defendants’ trial, the government used historical cell-site location information (“CSLI”) obtained from the defendants’ cell phone provider to place the defendants in close proximity of the armed robberies whilst they occurred. Historical CSLI provides location information by indicating which cell tower, typically the tower closest to the cell phone, transmitted a signal when a cell phone is used to make and receive calls or texts. The panel majority instructed that going forward, a warrant backed by probably cause is necessary to obtain such data from cell phone providers. The government moved for rehearing en banc, which was granted. The panel opinion was vacated, and the Fourth Circuit now considers whether the government violates the Fourth Amendment where it obtains historical CSLI from a service provider without first obtaining a warrant supported by probable cause.

The defendants asserted that the provision of the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d), which allows the government to access non-content information upon the showing of “reasonable grounds to believe . . . the records . . . are relevant and material to an ongoing criminal investigation,” allows the government to unconstitutionally obtain private records, the Fourth Circuit indicated that this argument does not take into consideration the nature of the government’s activity in the present circumstances, which involves the obtaining of records from a third party provider rather than direct government tracking.

Instead, the issue at hand, according to the Fourth Circuit, is to be resolved by the third-party doctrine set forth by the Supreme Court in United States v. Miller and Smith v. Maryland, which states that no individual is privileged with a “legitimate expectation of privacy” in information voluntarily conveyed to a third party. Under this doctrine, the Fourth Circuit held that the defendants lacked a rational expectation of privacy in the historical CSLI obtained from their cell providers. As pointed out in the opinion, this position is supported by the holdings of three sister courts—the Sixth Circuit in United States v. Carpenter, the Eleventh Circuit in United States v. Davis, and the Fifth Circuit in In re Application of U.S. for Historical Cell Site Data—as well as the conclusions of the majority of federal district court judges.

The defendants provided multiple arguments as to why the third-party doctrine does not apply to the present case, all of which the Fourth Circuit rejects. First, the defendants assert “that cell phone users do not convey CSLI to phone providers, voluntarily or otherwise.” However, the Court instead found that a user does convey to their provider the location of the cell tower to which their phone connects any time the user utilizes the provider’s network, because the provider can only receive such information when a cell phone exchanges signals with a particular cell tower, typically the nearest available tower.

The defendants further argue that “a cell phone user does not actively choose to share his location information,” and consequently the third-party doctrine does not apply to historical CSLI. The Fourth Circuit sees this as an attempt to redefine the third-party doctrine, as no such rule is found in either Miller or Smith.

Finally, the defendants’ final argument relies on the idea that the use of cell phones is so ever-present in current society that individuals are forced to either risk producing CSLI or withdraw from modern society. However, the Fourth Circuit explains that dissenting justices in Miller and Smith tried and failed to push very similar concerns. Further, the defendants support this argument with cases that focus on the protection of the content of communication, but as the Fourth Circuit indicates, CSLI is classified as non-content information, and as such, the cases relied on by the defendants are not applicable to the present issue.

Judge Wilkinson concurs with the majority, but writes a separate opinion “to emphasize [his] concern that requiring probable cause and a warrant in circumstances such as these needlessly supplants the considered efforts of Congress with an ill-considered standard of [the Fourth Circuit’s] own.” According to Judge Wilkinson, the defendants’ attempt to inject their own interpretation of the Fourth Amendment into the SCA through the use of a warrant and probable cause requirement seeks to overturn Supreme Court precedent and abandon Congress’ efforts to balance privacy and law enforcement interests.

Judge Wynn, joined by Judges Floyd and Thacker, dissent in part and concur in the judgment. According to several cases from the Supreme Court, Judge Wynn writes, “voluntary conveyance” is defined by the defendant both knowing of particular information and acting in some way to communicate that information. Under this definition, the cell phone users do not “voluntarily convey” because they lack sufficient knowledge and awareness of their CSLI and CSLI is automatically generated by the provider’s network, rather than by a particular action of the user, and thus the third-party doctrine alone fails to answer whether the government violated the Fourth Amendment. Instead, Judge Wynn concludes that it is the substantial amount of information gathered in this case that clearly evidences that the government has engaged in a search and has violated the Fourth Amendment by engaging in such without a warrant.

Accordingly, the Fourth Circuit affirmed the judgment of the district court in all aspects, with Judge Wilkinson concurring, and Judge Wynn, joined by Judges Floyd and Thacker, dissenting in part and concurring in the judgment.

Full Opinion

Charlotte Harrell

U.S. v. MCFADDEN, NO. 13-4349

Decided: May 19, 2016

The Fourth Circuit affirmed in part, vacated in part, and remanded the case to the district court for further proceedings.

In July 2011, law enforcement in Virginia began investigating the distribution of synthetic stimulants commonly known as “bath salts.” The investigation eventually led them to Lois McDaniel who agreed to assist law enforcement in gathering evidence against her supplier, Stephen McFadden. After multiple recorded telephone conversations and interception of packages, McFadden was arrested in February 2012. McFadden was convicted of several counts of conspiring to distribute controlled substance analogues and distributing controlled substance analogues. McFadden appealed to the Fourth Circuit and then to the Supreme Court, which vacated the original opinion of the Fourth Circuit on this case on the grounds that the jury instructions given at trial improperly omitted elements relating to McFadden’s state of mind. The Supreme Court then remanded this case back to the Fourth Circuit to consider whether the error in jury instruction was harmless.

The Fourth Circuit examined the instructions and found that the erroneous jury instructions constituted harmless error with respect to McFadden’s convictions under Counts One, Five, Six, Seven, Eight, and Nine of the superseding indictment. The Fourth Circuit found that the error was not harmless as to Counts Two, Three and Four however. The Fourth Circuit determined that an erroneously omitted jury instruction may be deemed harmless error if the omitted element is supported by overwhelming evidence admitted at trial. First, the Fourth Circuit held that the evidence was sufficient to permit, but not so overwhelmingly to compel, the jury to find that McFadden knew that federal law regulated the bath salts as controlled substances. Therefore, the government did not meet this showing. Accordingly, the government did not meet its burden of establishing harmless error with respect to Counts Two, Three and Four. The Fourth Circuit then found that the government did meet its burden of establishing harmless error as to Counts Five through Nine due to the recorded conversations. The Fourth Circuit thus vacated and remanded Counts Two, Three and Four for further proceedings in the district court. The Fourth Circuit also remanded the convictions on Count One, and Counts Five through Nine, to the district court for resentencing.

Accordingly, the judgment of the district court is affirmed in part, vacated in part, and the case is remanded for further proceedings.

Full Opinion

Michael W. Rabb

U.S. v. SERAFINI, NO. 15-4383

Decided: June 10, 2016

The Fourth Circuit determined that the district court had the authority to issue a restitution order under 14 U.S.C. § 88(c), and therefore affirmed the judgment of the district court.

On May 11, 2014, officers discovered defendant, Brian Serafini, intoxicated in an unauthorized boat that had drifted into a restricted marine area at the Newport News Shipbuilding Company.  As officers questioned Serafini, Serafini explained that he and an unidentified man on the boat with him began fighting and eventually Serafini trough the man overboard.  Upon hearing those facts, the Coast Guard and other local agencies immediately set out to find the person Serafini allegedly tossed into the water.  During the search, Serafini was arrested for public intoxication. While in custody, he disclosed that he may have imagined the man on the boat with him.  The search was eventually called off after the Coast Guard could not find any evidence indicating that someone had been thrown off Serafini’s boat.  The total cost of the rescue efforts was $117,913, which the district court ordered Serafini to pay in restitution.  The district court reasoned that the award was statutorily authorized.  Serafini appealed the ruling with respect to the order of restitution.

Despite Serafini’s argument that Section 88(c) permits the Coast Guard to only seek civil redress against those who communicate false distress messages, the Fourth Circuit opined that Section 88(c)(3) was designed to hold individuals “liable” in either criminal or civil proceedings for “all costs the Coast Guard incurs as a result of the individual’s actions.”  The Court reasoned that if Congress wanted to limit subsection 88(c)(3) to civil proceedings, it presumably would have done so explicitly, as it did in subsection 88(c)(2)—which uses the language, “subject to civil penalty.”  Furthermore, the Court noted that a critical feature of the statute itself is that it is a criminal provision.  Thus, unlike the civil carve out specified in subsection (c)(2), Congress had no need to state in what is generally a criminal statute that subsection (c)(3) authorizes criminal liability.  Therefore, the Court affirmed the judgement of the district court.

Full Opinion

Aleia M. Hornsby

U.S. v. MURILLO, NO. 15-4235

Decided: June 14, 2016

The Fourth Circuit determined the defendant’s prosecution in the United States did not contravene the Fifth Amendment’s Due Process Clause, therefore the Court affirmed the defendant’s convictions.

Defendant Edgar Javier Bello Murillo (“Bello”), a citizen of Colombia, was involved in the murder of Special Agent James Terry Watson of the Drug Enforcement Administration (“DEA”).  Agent Watson was an internationally protected person (an “IPP”) stationed in Colombia and was thereby protected by the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (the “IPP Convention” or the “Convention”).  Bello was arrested in Colombia for his involvement in the murder, and on July 18, 2013, a grand jury in Alexandria, Virginia, returned an indictment against Bello and the others involved.   On August 22, 2013, the United States requested Bello’s extradition from Colombia for prosecution in the Eastern District of Virginia.   Pursuant to Colombia’s obligations under the IPP Convention, the extradition request was referred to Colombia’s Supreme Court of Justice, which granted the extradition for prosecution on Counts 1, 3, and 4.  After his first appearance in the Eastern District of Virginia on July 2, 2014, Bello sought dismissal of the three charges, invoking the “notice requirement” of the Fifth Amendment’s Due Process Clause.  The district court denied this dismissal motion, and in doing so ruled that Bello’s due process rights were not violated by prosecuting him in the United States for murder and kidnapping because exercising extraterritorial jurisdiction of these offenses is proper under the Fourth Circuit’s test set forth in United States v. Brehm.  Under Brehm, the court concluded that Bello’s prosecution was neither arbitrary nor unfair, because Bello’s offenses affected a “significant American interest,” and he had “ample reason to anticipate being prosecuted for his conduct ‘somewhere.’” United States v. Brehm, 691 F.3d 547, 622–23.  On April 16, 2015, Bello was sentenced to 440 months in prison, which he timely appealed.

On appeal, Bello’s sole claim was that his prosecution in the United States contravened the Fifth Amendment’s Due Process Clause, arguing specifically that his prosecution in the this country was fundamentally unfair because he did not know that Agent Watson was an American IPP and thus could not have foreseen prosecuted in the United States, rather than in Colombia.  However, the Court did not agree.  Citing to their opinion in Brehm, the Court explained that fair warning does not require that defendants understand that they could be subject to criminal prosecution in the Unites States so long as they could reasonably understand that their conduct was criminal and would subject them to prosecution somewhere.  Because kidnapping and murder are “self-evidently criminal,” it was not fundamentally unfair to prosecute Bello in the United States.  Absent fundamental unfairness, Bello’s Fifth Amendment due process claims fails under Brehm.

Therefore, the Fourth Circuit affirmed the judgment of the district court.

Full Opinion

Aleia M. Hornsby

U.S. v. FAULLS, NO. 14-4595

Decided: May 5, 2016

The Fourth Circuit affirmed the district court’s judgment.

Thomas Faulls separated from his wife in June 2012. Following this separation, there were several violent episodes between them. The final of these episodes resulted in the convictions that lead to this appeal. In August 2012, Faulls tied up his wife, put her in his truck next to his shotgun, and took her to a hotel in West Virginia. He sought to have sex with her and she acquiesced out of fear. That same evening, his wife fled and managed to contact the police. Faulls was later arrested. After a trial, a jury convicted Faulls of kidnapping, interstate domestic violence, and possessing a firearm in furtherance of a crime of violence. The jury also determined that Faulls committed aggravated sexual abuse that served as the predicate crime of violence for the interstate domestic violence charge and also enhanced Faull’s sentencing range. This appeal followed.

On appeal, Faulls contends that his counsel was ineffective in opening the door to testimony by a government expert, and in failing to object to the district court’s decision to keep the jury late one evening. He also contends that the district court erred in admitting prior acts evidence and in requiring him to register as a sex-offender. The Court declined to reach Faulls’s ineffective assistance of counsel claim because there was no conclusive evidence on the face of the record indicating the attorney’s ineffectiveness. The Court also found that the prior act evidence was relevant, demonstrated control and domination and its probative value was not substantially outweighed by the danger of unfair prejudice. Therefore, the Court affirmed the district court’s decision to admit prior acts evidence. Finally, the Court determined that aggravated sexual abuse involves a sexual act or sexual contact with another. Faulls was convicted of a criminal offense that has an element involving a sexual act or sexual contact with another – a sex offense. Therefore, the Court held that the district court did not err in requiring Faulls to register as a sex offender.

Accordingly, the Fourth Circuit affirmed the judgment of the district court.

Full Opinion

Michael W. Rabb

U.S. v. WARNER, NO. 15-4316

Decided: April 27, 2016

The Fourth Circuit vacated the defendant’s sentence and remanded the case.

Xavier Warner, the defendant, stole a .40 caliber pistol after breaking into 19 motor vehicles in a parking deck.  The defendant was arrested and subsequently pled guilty pursuant to a plea agreement to one count of aiding and abetting the theft of a firearm. As part of the plea agreement, the government agreed to advise the district court at sentencing that the 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), which would increase the defendant’s offense level for use in connection with another felony, did not apply. The government agreed to this term because it did not view breaking and entering a motor vehicle as a felony offense for this defendant considering his criminal history.

Despite the agreement and contrary to previous filing, at sentencing the government stated that breaking and entering a motor vehicle did constitute a felony, regardless of the defendant’s criminal history, based on a recent decision that tended to support the application of the enhancement. However, the government still asked the court to honor the plea agreement. The court chose to apply the enhancement and sentenced the defendant to 48 months’ imprisonment. The defendant appealed.

The Fourth Circuit concluded that although the government acted in good faith, it breached the plea agreement by stating that the enhancement did apply. Based on the holding in United States v. Jordan, 509 F.3d 191, 195 (4th Cir. 2007), the court noted that traditional contract law may used as a guide, plea agreements are subject to greater scrutiny than a commercial contract. As such, the court determined that the substance of the agreement was clear: “The government agreed to advise the court of its position that U.S.S.G. § 2K2.1(b)(6)(B) does not apply in this case.” (emphasis omitted). Such finding was supported by e-mail exchanges leading up to the agreement, as well as the government’s initial filing with the court after executing the agreement. The court noted that the government’s statement that the enhancement applies, but should not be imposes is substantially different than a statement that the enhancement does not apply. Relying on United States v.Scruggs, 356 F.3d 539, 543-44 (4th Cir. 2004), the court further determined that the breach was material because the e-mail negotiations demonstrate that the government’s willingness to state the enhancement did not apply was critical to the defendant’s decision to take the deal.

Accordingly, the court vacated the sentence and remanded the case for resentencing before a different district judge.

Full Opinion

Megan Clemency

NICHOLAS v. GRAHAM, NO. 15-6616

Decided: April 27, 2016

The Fourth Circuit reversed the judgment of the district court.

Richard Nicholas, the defendant, was convicted of killing his daughter in 1997. At trial, Nicholas stated that he was in the car with his daughter when she was shot from a passing car, and he immediately called for help. The prosecution contradicted this timeline with expert witness testimony on lividity. The expert determined that Nicholas’s daughter had died and remained on her side for two hours before he called for help based on how the blood had settled in her body. This was the strongest evidence against Nicholas.

In 2005, Nicholas filed a state petition for post-conviction relief, which was denied. Shortly thereafter, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in district court. As part of this proceeding, his counsel obtained police notes detailing two interviews with witnesses. Both witnesses stated they heard a loud noise, like a gunshot, on the night of the girl’s death. Nicholas subsequently filed a motion to re-open the state post-conviction proceeding based on this new evidence, and the federal proceeding was stayed until he exhausted state remedies.

At State court, Nicholas argued that the government’s failure to disclose the witness statements violated his rights under Brady v. Maryland, 373 U.S. 83 (1963). The state court denied the motion to reopen the case because the statements were not beneficial to Nicholas. He was denied leave to appeal, and reinitiated federal court proceedings. The district court granted relief on the Brady claim, finding the witness statements could have helped to corroborate Nicholas’s version of events.

The Fourth Circuit reversed the judgment of the district court because the district court failed to give proper deference to the determination of the state court as required by the Antiterrorism and Effective Death Penalty Act of 1996. A federal court may only grant habeas relief if the state court reached a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d) (2012). Without deciding whether the statements were favorable, the Fourth Circuit found that the state court was not unreasonable in determining that the statements were not material to the case, as required by Brady because those witness statements were inconclusive, and the jury could have still found the expert witness testimony more credible than the lay witness accounts.

Full Opinion

Megan Clemency

MANGUM v. HALLEMBAEK, NO. 15-6134

Decided: May 25, 2016

The Fourth Circuit affirmed in part, vacated and remanded in part the district court’s decision.

Mangum was arrested in Oklahoma on drug charges on February 9, 2006, and released on bond five days later. He was indicted by a federal grand jury in North Carolina for conspiracy to distribute cocaine base, and a federal arrest warrant was issued by not executed. On June 14, 2006, Mangum was arrested a second time in Oklahoma, this time charged with felony assault and battery with a dangerous weapon and misdemeanors of possession of a fictitious driver’s license, resisting an officer, and obstructing an officer. Mangum was transferred to federal custody and appeared in the Middle District of North Carolina, where he pled guilty on November 8, 2006, to conspiracy to distribute cocaine base. On May 16, 2007, Mangum was sentenced to 262 months’ imprisonment without specifying whether this federal sentence was to be served concurrently or consecutively to his pending Oklahoma sentence. On December 5, 2007, a state judge sentenced Mangum to four terms of imprisonment, ten, seven, one, and one, and ordered these sentences to run concurrently with each other and his federal sentence. Mangum remained in custody of Oklahoma while serving his state sentences, and he was paroled to federal detainer on January 13, 2011, when, according to the Bureau of Prisons (“BOP”), service of his federal sentence commenced. On January 3, 2013, Mangum requested the BOP analyze whether to designate, nunc pro tunc, the Oklahoma prison as the place of service for Mangum’s federal sentence pursuant to 18. U.S.C. § 3621. During this analysis, the North Carolina federal district court judge never responded to the BOP’s inquiry as to whether the court intended that the federal sentence run concurrent or consecutive to the later imposed Oklahoma sentence. Ultimately, the BOP determined that the federal sentence would be served consecutively to the later imposed state sentence. Mangum, acting pro se, filed a petition for writ of habeas corpus in the Eastern District of North Carolina, however the district court granted summary judgment on December 29, 2014, to the warden of the BOP facility where Mangum is serving his sentence. As a result, Mangum filed a timely notice of appeal on January 27, 2015.

As to Mangum’s claims relating to the calculation and execution of his sentence, the Fourth Circuit found that the district court properly denied relief and affirmed the judgment. However, the Fourth Circuit found that the BOP incorrectly applied 18 U.S.C. § 3584(a) in its refusal to grant Mangum nunc pro tunc relief. According to the BOP, where the federal sentencing judge is silent as to the court’s intention, a presumption exists that the federal sentence should be deemed to run consecutively to the later imposed state sentence. Instead, following the Supreme Court’s analysis in Setser v. United States, the Fourth Circuit agreed with Mangum’s assertion that the federal judge’s silence does not invoke a statutory presumption that the federal sentence is intended to be a consecutive sentence. Additionally, the Fourth Circuit points out that at the time Mangum was sentenced in the North Carolina federal court, the federal sentencing judge lacked the power to impose a federal sentence consecutive to a not yet imposed state sentence.

Accordingly, the Fourth Circuit affirmed in the judgment in party, vacated in part, and remanded the petition to the district court, instructing the court remand Mangum’s request for a nunc pro tunc designation to the BOP for further consideration.

Full Opinion

Charlotte Harrell

UNITED STATES v. LULL, NO. 15-4216

Decided: May 25, 2016

Because the search warrant application omitted material information about the reliability of the confidential informant who was the primary source of the information used to establish probable cause, the Fourth Circuit reversed the district court’s denial of Lull’s motion to suppress, vacated his conviction and sentence, and remanded for further proceedings.

In May 2014, one of the Wake Forest Police Department’s confidential informants asserted that he was able to buy illegal drugs from Lull in Lull’s home.  In following up, Investigator Welch of the Sheriff’s Office met with the informant.  The informant said that he knew Lull from high school and had previously purchased cocaine, marijuana, and other illegal substances from Lull.  The investigator arranged for the informant to buy cocaine from Lull during a controlled buy.  The Sheriff’s Office corroborated some of the informant’s information prior to conducting the controlled buy.  The informant conducted the controlled buy.  Back at the Police Department, the informant surrendered four grams of cocaine and identified Zack Lull as the seller.  He also returned $40 of the remaining buy money, when he should have returned $60.  When questioned about the money, the informant said he though he gave the money to Lull.  A strip-search revealed that the $20 was hidden in the informant’s underpants.  The Sheriff’s Office immediately determined that the informant was not reliable and terminated him as a confidential informant.  The officers arrested the informant on a felony charge of obtaining property under false pretenses.  Investigator Welch obtained a search warrant for Lull’s house, but he failed to disclose the informant’s theft and arrest to the state court magistrate.  When officers searched Lull’s home, they found cocaine, marijuana, firearms, body armor, and around $3,600 in U.S. currency.  All five individuals inside the house at the time were arrested in connection with drug charges.  A grant jury in the Eastern District of North Carolina indicted Lull on one count of possession with intent to distribute a quantity of cocaine and marijuana, and one count of possession of a firearm in furtherance of a drug trafficking crime.

Lull moved to suppress all evidence obtained from the search of his residence, arguing that officers obtained the search warrant in violation of Franks v. Delaware, 438 U.S. 154 (1978).  This case created a two-prong test to clarify what a criminal defendant must show when challenging the veracity of statements made in an affidavit supporting a search warrant.  If both prongs are met, the search warrant must be voided and the fruits of the search excluded.  Under the first prong, “intentionality”, the defendant must show that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.  Under the second prong, “materiality”, the defendant must show that with the affidavit’s false material set to the one side, the affidavit’s remaining content is insufficient to establish probable cause.  Lull contended that in the affidavit submitted to obtain probable cause, Investigator Welch intentionally and/or recklessly omitted information that was material to the determination of probable cause.  The district court entered an order denying Lull’s motion to suppress.  On appeal, the Fourth Circuit held that Investigator Welch was at least reckless in his omission of facts regarding the informant.  Furthermore, the omission was indeed material.

Because Lull showed by a preponderance of the evidence that Investigator Welch omitted information from the search warrant affidavit with at least a reckless disregard for whether these omissions made the application misleading, and because these omissions were material to a finding of probable cause, Lull established a violation of his Fourth Amendment rights under Franks v. Delaware.  Therefore, the Fourth Circuit held that the district court erred in denying Lull’s suppression motion.  The ruling of the district court was reversed, Lull’s conviction and sentence vacated, and the case remanded for further proceedings.

Full Opinion

Katie E. Lowery

UNITED STATES v. FOSTER, NO. 15-4319

Decided: May 24, 2016

The Fourth Circuit affirmed the district court’s denial of Foster’s motion to suppress evidence recovered after a stop-and-frisk.

On August 11, 2014, police in Wheeling, West Virginia received a 911 call reporting a gunshot.  Two officers arrived within minutes to the area in question.  One of the officers saw Foster standing in an alley nearby, just looking around.  Foster was the only person the officers had encountered since arriving in the area.  When the officers approached Foster, he did not respond and avoided eye contact.  The officers believed that Foster was under the influence of drugs.  When asked if he had any weapons on him, Foster began to put his right hand in his right front pocket.  The officers frisked Foster, and felt an object that felt like a firearm.  Upon a search, the officers discovered three guns on Foster.  Foster was indicted for being a prohibited person in possession of a firearm.  Arguing that he was stopped and frisked without reasonable suspicion, Foster moved to suppress the evidence that the officers recovered.  The district court denied Foster’s motion to suppress.

Foster was not seized before he reached for his pocket.  Foster was not stopped until after he reached for his pocket, and reasonable suspicion existed at that time.  Five relevant factors support the presence of reasonable suspicion that Foster was or had been engaged in criminal activity: (1) The 911 call that reported a gunshot; (2) Shortly after the officers were dispatched, Foster was the only person they encountered in the area in which the gunshot was reported; (3) The stop occurred late at night in a party of the city described as a “high crime” area; (4) Foster did not respond to the officers’ questions and avoided eye contact; and (5) Foster reached for his right pocket after being asked if he was carrying a weapon.  In evaluating the totality of the circumstances, the officers had reasonable suspicion.  Although the circumstances observed or known by the police before Foster reached for his pocket were not enough to support reasonable suspicion, Foster reaching for his pocket tied all of the factors into a coherent whole that justified an investigatory stop.  The officers justifiably performed a Terry stop because they had reasonable suspicion that Foster committed a crime associated with discharging a firearm.

Accordingly, the Court affirmed the district court’s judgment.

Full Opinion

Katie E. Lowery

IN RE MCFADDEN, NO. 15-206

Decided: June 20, 2016

The Fourth Circuit denied the motion.

In December 2006, a Virginia state jury convicted John McFadden of eleven offenses, including multiple counts of robbery and use of a firearm in the commission of a felony. McFadden is currently serving an 88-year prison sentence and has filed multiple petitions challenging his conviction and sentence, none of which have been successful. McFadden alleged in a proposed successive habeas application that despite multiple attempts over the years to obtain his entire case file from his trial, it was not until May 2014 he was provided a document that suggested his counsel provided ineffective assistance. The document is a proposed plea agreement, signed by the counsel by McFadden’s trial counsel but not the government, stipulating that McFadden would plead guilty to one count of robbery and one related count, and would be sentenced to no more than ten years of active incarceration. McFadden claimed his counsel failed to communicate this offer and that he would have accepted it if he had known about it. McFadden filed a motion for pre-filling authorization to the Fourth Circuit, a procedural prerequisite for the filing of successive federal habeas application.

The court can only grant McFadden’s pre-filing authorization motion if the application makes a prima facie showing that his claim relies on a new, retroactive and previously unavailable rule of constitutional law or that the factual reason for the claim could not have been previously discovered through the exercise of due diligence and the new facts if viewed with the evidence as a whole would be sufficient to establish that no reasonable factfinder would have found the applicant guilty of the offense. McFadden’s basis for granting the pre-filing authorization motion is on the newly discovered facts exception. The court reasoned that even if the newly discovered factual information could not have been discovered previously through the exercise of due diligence, McFadden’s new facts did not establish his innocence by clear and convincing evidence. The court stated that McFadden’s offered evidence of a plea offer would not have any bearing for a reasonable factfinder in regards to McFadden’s innocence or guilt as required for the factual exception to allow pre-filing authorization. Newly discovered evidence that a defendant may have lost out on a favorable plea offer does not fit either of the exceptions for pre-filling, therefore, McFadden’s pre-filing authorization was denied by the court.

Full Opinion

Ryan Jones

IN RE CREADELL HUBBARD, No. 15-276

Decided: June 8, 2016

The Fourth Circuit granted movant’s request for authorization to file a successive § 2255 motion for Habeas relief.

On July 19, 1988, Mr. Creadell Hubbard was indicted, and later convicted for armed bank robbery; carrying a firearm during a crime of violence; possessing stolen many; and conspiracy to possess stolen money. Based on the U.S. Sentencing Guidelines (“Guideline”) in place at the time of his sentencing, the court determined that because two of Hubbard’s prior convictions—second-degree murder and Kentucky third-degree burglary—Hubbard was a career offender.  Hubbard appealed is conviction, but his convictions and his sentence were affirmed.  In April 1997, Hubbard filed a motion to vacate under 28 U.S.C. § 2255, but the proceeding ultimately resulted in summary judgment against Hubbard and dismissal of his subsequent appeal to the Fourth Circuit.  In August 2015, Hubbard filed a pro se motion with this Court seeking an order authorizing the district court to consider a successive § 2255 motion—a motion that cannot be filed in a district court without prior approval from a circuit court of appeals.

Pursuant to § 2255(h), in deciding whether to grant the motion for pre-filing authorization, the court must determine whether it will rely on (1) newly discovered evidence, or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.  Hubbard argued that the Supreme Court’s decision in Johnson v. United States produced a new rule of constitutional law made retroactive that Court, and that he was entitled to seek relief under the new rule.  The Court determined Hubbard’s only viable argument was that his Kentucky third-degree burglary conviction was no longer a predicate for establishing his career-offender status based on Johnson.  For a movant’s motion to be granted, the moving party need only make a prima facie showing that he presents a claim that relies on a [qualifying] new rule of constitutional law, and that he makes a sufficient showing of possible merit to warrant a fuller exploration by the district court.

In Johnson, the Supreme Court struck down the residual clause of the Armed Career Criminal Act (“ACCA”) for being unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment.  Although the government argued that (1) Johnson only applied only to the ACCA’s residual clause, and not the residual clause found at 18 U.S.C. §§ 16(b) & 924(c)(3)(B); and (2) that in Hubbard’s case, application of Johnson was procedural rather than substantive, and thus not retroactive, the Court was not persuaded.  In addition to finding no grounds for either of the government’s arguments—ultimately holding that 16(b) as incorporated under the Guidelines might render the career-offender residual clause applicable at the time Hubbard was sentenced unconstitutional, and that the rule in Johnson was substantive and therefore retroactive—the Court granted Hubbard’s request for authorization to file a successive § 2255 motion.

Full Opinion

Aleia M. Hornsby

ALVAREZ v. LYNCH, NO. 15-1599

Decided: July 7, 2016

The Fourth Circuit reversed and remanded the district court’s ruling.

Petitioner Gabriel Santos Alvarez is a citizen of Bolivia and has been a lawful permanent resident of the United States since 2002. In 2012, Alvarez was convicted of embezzlement and in 2014 was convicted of forging a public record. The Department of Homeland Security (“DHS”) issued a Notice to Appear to remove Alvarez from the United States because he had been convicted of two crimes involving moral turpitude and on the separate justification of being an alien convicted of an aggravated felony – specifically, an offense “relating to” forgery. The Petitioner now seeks review of the decision finding him ineligible for cancellation of removal that was rendered ineligible due to Alvarez’s aggravated felony.

The Fourth Circuit was asked to decide whether a Virginia conviction for forgery of a public record was an aggravated felony under the INA, which is defined as “an offense relating to forgery for which the term of imprisonment is at least one year.” The federal definition “must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison.” If it is not, the Petitioner may be eligible for cancellation of removal. Petitioner argued that Virginia forgery is so broad that it does not even “relate to” federal forgery; therefore it is not an aggravated felony.

The Fourth Circuit, however, concluded that the offenses are a categorical match under the statutes because Petitioner gave the Court no reason to conclude that Virginia would apply its statute to conduct that falls outside the generic definition of forgery. Because the offenses were a match, the two statutes necessarily relate to each other. Therefore, the Fourth Circuit held that the Virginia public record forgery is an aggravated felony.

Accordingly, the Court denied the petition for review as well as the Government’s renewed request to remand.

Full Opinion

Whitney Kamerzel

U.S. v. McNEAL, Nos. 14-4871 & 14-4872

Decided: March 28, 2016

The Fourth Circuit affirmed the district court’s ruling.

In February 2014, McNeal, Stoddard and a third defendant were indicted and charged with conspiracy to commit armed robbery of a bank (Count 1), substantive armed bank robbery offenses (Counts 2, 4, and 6), and brandishing firearms during crimes of violence (Counts 3, 5, and 7).  The charges arose from a 2013 robbery of a Bank of Georgetown branch in Virginia, a 2013 robbery of a Wells Fargo branch on North Glebe Road and a 2013 robbery of a Wells Fargo branch on South George Mason Drive.   On December 30, 2013, FBI agents applied for and received a warrant authorizing the placement of a tracking device on a 2004 Ford Taurus.  The warrant relied on the details of four recent bank robberies and the information from a confidential informant.  The confidential informant stated that an individual in the surveillance photograph resembled McNeal and identified the getaway car.  On December 31, 2013, McNeal drove the Taurus with Stoddard and the third defendant to commit the New Year’s Eve robbery.  FBI agents blocked the getaway from the bank robbery after observing Stoddard and the third defendant exiting with a black trash bag overflowing with money.  After the robbery, agents sought and received a warrant to search McNeal’s residence.  During the search, agents discovered a locked box, which contained a silver revolver and $300 in cash, under a bed in the only bedroom that contained men’s clothing and toiletries.

Prior to trial McNeal sought to suppress the evidence seized in executing the two warrants and maintained that the search warrant and tracking device were not supported by probable cause.  The district court denied this motion.  At trial, a loaded semiautomatic Glock handgun, the silver revolver, and the cash seized from McNeal’s residence were introduced as well as Stoddard’s own statements about his criminal history.  The district court overruled McNeal’s objection to exclude the silver revolver and cash from being admitted at trial.  The jury found Stoddard guilty on all seven counts and McNeal guilty on the conspiracy offense, armed robbery and brandishing offense arising from the New Year’s Eve robbery.  McNeal and Stoddard filed motions for judgments of acquittal but the district court denied the acquittal motions ruling that “‘a rational trier of fact could find that the conspiracy to commit armed bank robbery.’”  Stoddard was sentenced to life in prison and McNeal was sentenced to 184 months.

On appeal, McNeal and Stoddard jointly challenged the sufficiency of the evidence supporting their convictions on the brandishing offense.  McNeal also challenged the adequacy of proof with respect to his conspiracy conviction, the denial of his motions to suppress and certain evidentiary rulings.  McNeal and Stoddard contended that armed bank robbery was not a “‘crime of violence’” in the context of the brandishing offense.  First, McNeal and Stoddard asserted that the prosecution failed to prove that the handgun brandished in the three robberies underlying offenses three, five and seven were, in fact, firearms under federal law.  The Court held that “the lay testimony of eyewitnesses that ‘a gun was used in the robbery’ is a sufficient basis for the jury to find that a ‘firearm’ was used in a bank robbery offense,” therefore rejecting McNeal and Stoddard’s assertion.  Second, McNeal’s contention that there was insufficient evidence to convict him of conspiracy was rejected because McNeal’s knowledge that a firearm would be used in the robberies was sufficient to support the guilty verdict.  His involvement in the planning and carrying out of the New Year’s Eve robbery also supported the conviction.  Third, McNeal’s contention that his motions to suppress the evidence seized pursuant to the tracking warrant and the search warrant were erroneously denied was rejected because the Taurus was registered to McNeal’s mother and he used it to target the banks as well as the informant advising the FBI that McNeal used the Taurus to rob the banks.  Therefore, both warrants were supported by probable cause and the motions were properly denied.  Fourth, McNeal’s challenge to the introduction of the silver revolver and the cash seized from his residence was denied because there was an adequate foundation for admitting the items, especially after McNeal stipulated that the residence was his.

Finally, McNeal and Stoddard stated that armed bank robbery was not a crime of violence.  The brandishing offenses can only be overturned if McNeal and Stoddard satisfy plain error review because they did not preserve it in the trial court.  A “‘crime of violence’ means a felony offense that either: ‘(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) . . . by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’”  McNeal and Stoddard contend that armed bank robbery does not have as an element the use, attempted use, or threatened use of physical force.  The Court disagreed stating that it included “the element that property must be taken ‘by force and violence, or by intimidation.’”  According to United States v. Davis, armed bank robbery has four elements: “(1) the defendant took, or attempted to take, money belonging to, or in the custody, care, or possession of, a bank, credit union, or saving and loan association; (2) the money was taken ‘by force and violence, or by intimidation’; (3) the deposits of the institution were federally insured; and (4) in committing or attempting to commit the offense, the defendant assaulted any person, or put in jeopardy the life of any person, by the use of a dangerous weapon or device.”  Relying on United States v. Adkins and several other cases, the Court stated that armed bank robbery was a crime of violence because bank robbery required the use of physical force or intimidation.  The Court rejected McNeal and Stoddard’s assertion that the Court should rely on United States v. Johnson, which held that simple battery, was not a crime of violence.  Further, the Court held that “because intimidation entails a threat to use violent physical force, and not merely a threat to cause bodily injury . . . bank robbery is a crime of violence under the § 924(c)(3) force clause.”  Finally, the Court stated that McNeal and Stoddard failed to meet plain error review and therefore the trial court did not err in concluding that armed bank robbery was a crime of violence.

Accordingly, the Court affirmed the judgment of the district court.

Full Opinion

Alicia E. Morris

U.S. v. FITZGERALD, No. 14-4795

Decided: April 27, 2016

The Fourth Circuit vacated the defendant’s convictions and remanded for further proceedings.

A Maryland grand jury returned an indictment against Robert Fitzgerald for one count each of possessing a firearm as a felon, possessing heroin with intent to distribute, and possessing marijuana with intent to distribute. During pretrial proceedings, the defendant moved to suppress certain evidence and moved for a Franks v. Delaware hearing regarding what he alleged to be knowing and material false statements in application for a warrant to search the defendant’s residence. The district court denied Fitzgerald’s motion. The defendant rejected an initial plea offer from the prosecutor. In 2014, defendant had a discussion with the court and his defense counsel concerning what appellate rights Fitzgerald would retain after pleading guilty. The parties all agreed that defendant’s guilty plea would not waive the defendant’s right to appeal his sentence particularly as it related to an appellate issue for a petition for writ of coram nobis, which would attack one of Fitzgerald’s predicate convictions and make him no longer a career offender.  The district court accepted Fitzgerald’s plea and Fitzgerald was eventually sentenced to 130 months’ imprisonment. Fitzgerald appealed his convictions.

The Fourth Circuit determined that Fitzgerald did not enter a valid conditional guilty plea and the court did not address the merits of Fitzgerald’s appeal. The general rule is that when a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to the entry of the plea, and thus the defendant has no nonjurisdictional ground to attack the judgment except the inadequacy of the plea. The Federal Rules of Criminal Procedure 11(a)(2) provides an exception that with the consent of the court and the government, a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. If the defendant prevails on appeal, he is able to withdraw the plea. The writing requirement is met if the record clearly shows no doubt that a conditional plea was agreed to. While the writing requirement is flexible, the consent of the court and government are mandatory and cannot be avoided. The Fourth Circuit determined that the government-consent requirement was not satisfied. Fitzgerald and the government both argued that the prosecutor consented to the conditional plea when he was silent during the discussion. The court looked at Rule 11’s Advisory Committee notes to determine that the government consent needed for 11(a)(2) had to be direct and could not come from an inference or implication. The record did now show clear government consent to Fitzgerald’s conditional plea, as the “that’s perfect” comment by the prosecutor after the plea colloquy was not clear to if it referred to the entire conditional plea discussion or not so an inference would have to be used and Rule 11 was written to avoid any inference being applied. Since Fitzgerald entered the conditional guilty plea on the assurance that he had appellate rights, the defendant’s conditional plea could not be treated as a voluntary unconditional plea and therefore, the court vacated and remanded the judgment so that Fitzgerald could decide to plead guilty again or whether to proceed to trial.

Full Opinion

Ryan Jones

U.S. v. BAILEY, JR., No. 15-4109

Decided: April 12, 2016

The Fourth Circuit vacated the lower courts carjacking conviction and remanded with instructions that a judgement of acquittal be entered forthwith.

On April 17, 2014, Defendant, Kenneth Lee Bailey crashed head-on into a stone wall after attempting to flee an attempted traffic stop.  The officer who pursued the chase arrived at the scene and, with her gun drawn, ordered Bailey to raise his hands.  Hearing cries of a child coming from the crashed vehicle, the officer holstered her weapon and approached the car to see if the child was injured.  At that moment Bailey fled on foot to a nearby McDonalds.  Bailey, panicked and bloodied, approached Devin Watkins while sitting in his truck and told Watkins that he would pay him for a ride.  After refusing Baileys request multiple times and attempting to lock his doors and put the car in reverse, Watkins accidently unlocked the doors and Bailey was able to open the driver’s side back door.  Eventually Bailey climbed inside the truck behind Watkins.  Bailey told Watkins to “drive, drive, drive, drive,” then placed something “hard and cold” to the back of Watkin’s neck.  Believing that Bailey was about to kill him, Watkins placed the truck in park and jumped from the vehicle into some nearby bushes.  Bailey eventually abandoned the truck and continued to flee on foot until he was apprehended.  On August 27, 2014, after the district court denied Bailey’s motion for judgement of acquittal, the jury found Bailey guilty of carjacking in violation of 18 U.S.C. § 2119.  Bailey appealed.

To satisfy the intent element necessary in a charge of carjacking, the government must show that the defendant unconditionally intended to kill or seriously injure the car’s driver or that the defendant possessed a conditional intent to kill or seriously injure the car’s driver should such violence become necessary.  Bailey argued that the government failed to present sufficient evidence that he intended to seriously harm or kill Watkins if necessary to take the truck.  Citing case from the Fourth Circuit and sister jurisdictions on the matter of sufficiency of evidence challenges, the Court noted that in each case, the evidence of intent was much stronger than the evidence presented to the jury regarding Bailey’s state of mind.  Where the defendants in the referenced cases had evidence showing that they threatened their victims with actual weapons, made affirmative threatening statements, and/or physically assaulted their victims, Bailey initially suggested that he would pay Watkins for a ride, and only when Watkins refused did Bailey enter the vehicle, place a “cold and hard” item to Watkins’s neck, and tell him to drive.  Furthermore, there was no testimony that Bailey ever had a weapon.

In Holloway v. United States, the Supreme Court explained that “an empty threat, or intimidating bluff, . . . standing on its own, is not enough to satisfy § 2119’s specific intent element.” 526 U.S. 1, 11 (1999).  There was no evidence of an actual threat to inflict harm on Watkins.  Additionally, Holloway requires factfinders to look “to the defendant’s state of mind at the precise moment he demanded or took control over the car” and instructs that proof of the requisite mens rea can only be satisfied if, at that precise moment, “the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car.” Id. at 8, 12 (emphasis added).  Considering all the testimony, the Court determined that there was insufficient evidence to support a jury finding beyond a reasonable doubt that Bailey possessed the specific intent to kill or seriously harm Watkins when he took control over Watkin’s truck.

Therefore the Court vacated the judgment and remanded the case for entry of a judgment of acquittal.

Full Opinion

Aleia M. Hornsby

U.S. v. PALMER, No. 14-4736

Decided: April 21, 2016

The Fourth Circuit affirmed the ruling of the district court.

On October 15, 2013, Officer Ring of the Chesapeake police stopped Michael Jerome Palmer (“Palmer”) because the windows of his car were tinted too dark and because the inspection sticker on the front windshield of the car appeared fraudulent. After a database check, Ring learned that Palmer had a gang affiliation. Upon another search of the database LInX, Ring learned that Palmer had a criminal record that included arrests for drug charges and firearm possession. Ring returned to the car and decided to inspect the sticker that he suspected was fraudulent. Ring asked Palmer to exit the vehicle and leaned inside the driver’s side door to inspect the sticker. While reading the sticker, Ring smelled marijuana. Ring wanted to be sure that the car contained drugs, so he called an officer with a drug dog to search the vehicle. After the search, the officers discovered a plastic bag containing crack cocaine and a 40-caliber Smith & Wesson pistol wedged between the driver’s seat. Palmer was immediately arrested. The district court conducted an evidentiary hearing where Ring explained his actions and the evidence that had been presented. Palmer moved that the evidence be suppressed and the district court denied this motion, citing eight supporting factors. Palmer plead guilty to the indictment but appealed the suppression ruling to the Fourth Circuit. Palmer alleged that there was no objectively reasonable basis for the traffic stop, that Ring unreasonably expanded the scope of the stop after it began, and that Ring’s entry into the car was constitutionally impermissible under the Fourth Amendment.

The Court reviewed the district court’s ruling de novo with respect to reasonable suspicion and probable cause, but absent clear error, will not disturb factual findings made by a district court after an evidentiary hearing on suppression issues. As to Palmer’s arguments in favor of suppression, the Court utilized the two-prong standard from Terry v. Ohio to assess the constitutionality of the traffic stop. The Court reasoned that the first prong of Terry was satisfied because Ring was familiar with the limits on window tint under Virginia law and in his view, the car’s windows were too dark. The Court stated that there was nothing that indicated the district court erred in crediting Ring’s testimony on that issue. The Court further reasoned that the second prong of Terry was satisfied in this case. The court concluded that Ring’s actions prior to examining the sticker were permissible under Terry’s second prong because he did not unreasonably expand the scope of the traffic stop. The Court reasoned that the factors present at the stop demonstrated a connection to possible criminal activity, thus satisfying Terry’s second prong. Furthermore, the Court determined that Palmer did not have a legitimate expectation of privacy that was infringed by the search of his car. The Court also determined that the district court did not err in finding that Ring had a reasonable suspicion that the inspection sticker was fraudulent. The Court further found that the means of investigation was not unreasonable given the circumstances. Therefore, the Court determined that the second prong of Terry was satisfied and no constitutional violation occurred.

Accordingly, the Court affirmed the judgment of the district court.

Full Opinion

Michael W. Rabb

U.S. v. HARE, Nos. 14-4758, 14-4770, & 14-4832

Decided: April 19, 2016

The Fourth Circuit affirmed the district court’s ruling.

A jury convicted defendants the defendants of drug, robbery, and firearm offenses based on their participation in a plan to rob a cocaine “stash house.” Unbeknownst to the defendants, the stash house did not exist; rather, it was fabricated by undercover federal agents as part of a sting operation. Appellants challenge the district court’s denial of their motion for discovery into potential race discrimination by law enforcement and motion to dismiss the indictment on due process grounds, among other claims.

The Appellants’ first contended that the district court erred in denying their motion for discovery into whether ATF targeted the Appellants because they were black, i.e. the ATF engaged in selective enforcement. In support of this motion, Appellants pointed to statistics that showed that in the five stash house stings in their geographic area conducted by ATF agents within the past three years, all of the defendants in those cases (a total of 32) were black. Appellants also pointed to a “known white crew” in the area involved in robberies and drug distributions that were not targeted by ATF. Appellants argued that this evidence entitled them to discovery into their selective enforcement claim. In order to obtain discovery in support of a selective enforcement, the Fourth Circuit affirmed that defendants must produce “some evidence making a credible showing of both discriminatory effect and discriminatory intent.”

On the appellants’ claim of discriminatory selective enforcement, the Fourth Circuit affirmed the district court’s holding and held that the Appellants’ statistical evidence did not meet the necessary standard because “absent an appropriate basis for comparison, statistical evidence [of racial disparity] alone cannot establish any element of a discrimination claim.” In other words, while the statistics relied upon by the Appellants was alarming on its face, they failed to provide any evidence that similarly situated individuals of other races were committing similar crimes in comparable frequencies. Furthermore, the Fourth Circuit pointed out that even if it were to assume that Appellants’ statistical evidence did have a basis for comparison that showed discriminatory effect, it would not necessarily prove discriminatory intent.”

In addition, Appellants contended that the district court erred in their respective firearm charges by applying the incorrect standard. However, despite their attempts, the Fourth Circuit affirmed the district court’s application of the law as it pertained to the Appellants’ firearm charges. The Fourth Circuit found not only the district court’s application correct, but also its reasoning.

Accordingly, the Fourth Circuit affirmed the Appellants’ convictions on all counts.

Full Opinion

Brandon Gregg

UNITED STATES V. UNDER SEAL, NO. 15-4265

Decided: March 30, 2016

The Fourth Circuit affirmed the district court’s decision denying the Government’s motion to transfer the Defendant for prosecution as an adult for murder in aid of racketeering.

When he was a few months shy of his eighteenth birthday, the Defendant allegedly participated in a gang-related murder.  The Government filed a motion to transfer the Defendant, who was a juvenile at the time of the alleged offense, for prosecution as an adult for murder in aid of racketeering.  This crime carries a mandatory statutory penalty of either death or life imprisonment.  The district court denied the Government’s motion after concluding that the prosecution would be unconstitutional given that recent Supreme Court decisions have held that the United States Constitution prohibits sentencing juvenile offenders to either of these punishments.

The Juvenile Justice and Delinquency Prevention Act permits juveniles 15 years or older to be transferred from juvenile status for prosecution as an adult if they are alleged to have committed certain violent crimes, including murder.  In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court held that the Constitution’s guarantee against cruel and unusual punishment prohibited juvenile offenders from being sentenced to death.  In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court held that the Constitution also prohibits juvenile offenders convicted of nonhomicide offenses from being sentenced to life imprisonment without parole.  The Supreme Court also held in Miller v. Alabama, 132 S. Ct. 2455 (2012), that the Constitution prohibits juvenile offenders who commit murder from being sentenced to mandatory life without parole.  Life imprisonment is the mandatory minimum punishment for the offense of murder in aid of racketeering.  Thus given the recent Supreme Court decisions, the crux of the case was whether a judicial remedy existed that would nonetheless allow juveniles to be prosecuted for this offense, yet subjected to a punishment different from that enacted by Congress.  The Government asked that the unconstitutional sections of the statute be severed, but once these unconstitutional punishments are removed for purposes of prosecuting juveniles, no applicable penalty provision remains.  The Government further argued that the punishments set forth for kidnapping in the same statute should be applied to murder in this scenario.  The Court found that the Government’s proposal differed from an appropriate remedy of severance and excision, and instead usurped the constitutional allocation of the power to write a statute to Congress.  Thus accepting the Government’s argument would be nothing less than judicial legislation pure and simple.  Furthermore, grafting a newly applicable penalty provision into the murder in aid of racketeering statute would run counter to the Constitution’s guarantee of due process, given the lack of notice that would arise.

Accordingly, the Court affirmed the district court’s decision that the Defendant could not be prosecuted for murder in aid of racketeering because his conviction would require the court to impose an unconstitutional sentence.

Full Opinion

Katie E. Lowery

UNITED STATES V. LINNEY, NO. 14-4847

Decided: April 26, 2016

The Fourth Circuit affirmed the district court’s ruling that the two burglaries that served as part of the predicate for Linney’s Armed Career Criminal Act (“ACCA”) sentencing enhancement occurred on different occasions.

On August 8 and 9, 2013, Linney and two companions engaged in a crime spree that started with a pair of burglaries and ended with a high-speed police chase.  When the pursuing officers eventually captured Linney and his companions, they learned that Linney had been in possession of a 9-mm handgun, but had one of his companions toss it out the window during the chase.  On August 21, 2013, a federal grand jury charged Linney with being a felon in possession of a firearm.  In anticipation of Linney’s sentencing hearing, a probation officer prepared a presentence report (“PSR”).  The PSR took note of three North Carolina burglary convictions Linney had previously received and accordingly classified Linney as an armed career criminal under the ACCA—a classification that came with a fifteen-year mandatory minimum sentence.  The PSR recommended a sentence for Linney that included 188 to 235 months of incarceration.  Linney argued that two of the burglaries noted in the PSR occurred on the same occasion and thus both could not be used to support the ACCA enhancement.  Linney contended that the burglaries were committed at neighboring houses during a largely overlapping three-hour time period, and that they shared the same nature and objective.  The district court held that the two burglaries were distinct, as they involved different victims, different locations, and different times.  The district court sentenced Linney to 235 months of incarceration.

A defendant found guilty of violating the felon in possession prohibition is subject to the ACCA fifteen-year mandatory minimum sentencing enhancement if he has three previous “violent felony” convictions.  For Linney to receive the ACCA enhancement, therefore, each of the three North Carolina burglaries must also have been committed on occasions different from one another.  The Court relied on five factors to determine whether the predicate ACCA offenses were committed on different occasion: (1) whether the offenses “arise in different geographic locations”; (2) whether “the nature of each offense was substantively different”; (3) whether each offense “involved different victims; (4) whether each offense “involved different criminal objectives”; and (5) whether “the defendant had the opportunity after committing the first-in-time offense to make a conscious and knowing decision to engage in the next-in-time offense.”  The burglaries occurred at two distinct street addresses, which means that they occurred at different geographic locations.  Likewise, the burglaries involved different victims.

Accordingly, the Fourth Circuit affirmed the district court’s ruling that the two burglaries occurred on different occasions.

Full Opinion

Katie E. Lowery

MATHERLY V. ANDREWS, NO. 14-7691

Decided: March 16, 2016

The Fourth Circuit affirmed the district court’s determination that the Adam Walsh Act was not impermissibly applied retroactively to Matherly.  However, the Fourth Circuit reversed the district court’s grant of summary judgment to the government on Matherly’s claim that he was not in custody when the certification proceedings were initiated, and remanded for further proceedings on this issue.

The Adam Walsh Act authorizes the civil commitment of sexually dangerous persons who are in the custody of the Bureau of Prisons.  If, after a hearing, the district court finds by clear and convincing evidence that the person is a sexually dangerous person, the court commits the person to the custody of the Attorney General, either for release to a state civil commitment system or to a federal facility until it is determined that the person is no longer sexually dangerous to others.  In October 2003, Matherly pled guilty to one count of possession of child pornography and was sentenced to 47 months imprisonment.  With prior time served, and assuming that he earned the good time credit, Matherly was eligible to be released to supervision on November 22, 2006.  On that same day, however, the government certified Matherly as a sexually dangerous person under 18 U.S.C. § 4248, automatically staying his release from the custody of the Bureau of Prisons.  On May 3, 2012, following an evidentiary hearing, the district court found that Matherly was a sexually dangerous person under the Act and ordered that he be committed to the custody of the Attorney General.  The Fourth Circuit Court of Appeals affirmed.  On April 1, 2013, Matherly filed a petition for a writ of habeas corpus, alleging that the Adam Walsh Act had been impermissibly applied retroactively to him and that, in any event, he was not in the custody of the Bureau of Prisons within the meaning of the Act when the government filed the certification.  The government moved to dismiss the petition or, in the alternative, for summary judgment, which the district court granted.

When determining whether a statute has been impermissibly applied retrospectively, the Court engages in a three-step inquiry.  First, the Court must determine whether Congress has expressly prescribed the statute’s proper reach.  If so, the inquiry ends there.  If not, the Court must decide whether the statute would operate retroactively.  If the Court determines that the statute does have a retroactive effect, the Court will not apply it absent clear congressional intent favoring such a result.  In applying these three steps, the Court found that Congress sufficiently expressed its intent that the Adam Walsh Act apply to all persons in the Bureau of Prison’s custody who would pose a current threat to the public if released.  Likewise, the Court found that the statute clearly did not have retroactive effect, as it simply uses prior acts solely for evidentiary purposes to support a finding of a person’s mental abnormality or future dangerousness.  The Act addresses dangers that arise postenactment.  Matherly also claimed that his civil commitment was improper because the Bureau of Prisons had already released him from its legal custody when the government filed the certification.  Matherly was released from custody on November 22, 2006 at 9:20 a.m..  Forty-eight minutes later, at 10:08 a.m., the civil commitment proceedings were commenced.  The Court found that the Bureau of Prisons records submitted by Matherly showing this forty-eight minute time gap were insufficient by themselves to demonstrate that the Bureau of Prisons relinquished its legal authority over Matherly prior to the government’s filing of the certification.  The Court found that there was a need to better develop the record, and the district court should be given the opportunity to make additional findings and conclusions in light of such developments.

Accordingly, the Court affirmed the district court’s grant of summary judgment to the government on Matherly’s retroactivity claim.  However, the Fourth Circuit reversed the district court’s grant of summary judgment to the government on Matherly’s claim that he was not in custody when the certification proceedings were initiated, and remanded for further proceedings on this issue.

Full Opinion

Katie E. Lowery

MOSES v. JOYNER, NO. 15-2

Decided: March 8, 2016

The Fourth Circuit affirmed the district court’s ruling.

Appellant Errol Duke Moses (“Moses”) challenges the district court’s denial of his motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). Moses argues the court abused its discretion in finding the motion was untimely under 60(c) and for finding that a change in habeas procedural law did not constitute the kind of “extraordinary circumstance” needed to reopen Moses’ case.

Moses was convicted for the murder of Ricky Griffin and Jacinto Dunkley and the trial court imposed two death sentences. After the state supreme court affirmed and the United States Supreme Court denied certiorari, Moses filed a “Motion for Appropriate Relief” (MAR) alleging ineffective assistance of counsel violated his Sixth Amendment right and that any procedural default of his claims was negated. A magistrate judge held Moses’ claims were procedurally barred and both the district court and this Court affirmed. This case surrounds the later 60(b) motion filed by Moses for relief from judgment while his third MAR was pending. Moses claims relief is warranted due to the 2012 decision of Martinez v. Ryan that states a procedural default under state law will not bar a federal habeas court from hearing an ineffective-assistance-of-trial-counsel claim if the prisoner’s attorney failed to raise the claim in the initial state proceedings. The rule was extended in Trevino v. Thaler to cases where it was “highly unlikely” that the defendant would have a meaningful opportunity to raise that claim on appeal.

Appellant asserts that the change in decisional law represents “extraordinary circumstances” under 60(b)(6).  He asserts his counsel’s failures fall within the Martinez exception, his ineffective-assistance-of-trial-counsel claims are not procedurally forfeited, and that the district court’s decision dismissing his federal habeas petition should be vacated. The district court held that Moses’ motion was not only untimely under Rule 60(c), but that a change in habeas decisional law, without more, is an insufficient basis for 60(b)(6) relief.

Moses waited to file his motion nearly two and a half years after Martinez was decided and fifteen months after the Trevino decision, despite having notice as to the relevance of Martinez to his case. Courts have ruled similar motions untimely in cases involving a one-year delay. The Court therefore held the delay did not satisfy the timeliness requirement under Rule 60(c), which requires 60(b) motions “be made within a reasonable time”. Furthermore, the 60(b) motion that was pending when Martinez was decided raised two issues, neither of which related to procedural default of his ineffectiveness claim. Moses did not amend this motion even in light of the change in procedural default rules. Lastly, the very same grounds Moses claims for reopening judgment under 60(b)(6) has been held insufficient to show “extraordinary circumstances” in Gonzalez v. Crosby.

Because Moses’ 60(b) claim was untimely under 60(c) and the change in post-conviction procedural default rules fashioned by Martinez and Travino do not constitute “extraordinary circumstances,” Appellant Moses is not entitled to relief from a final judgment under 60(b)(6).

 Accordingly, the Court affirmed the district court’s ruling.

Full Opinion

Whitney Kamerzel

UNITED STATES v. COWLEY, NO. 15-6067

Decided: February 29, 2016

The Fourth Circuit held that the appeal from defendant, Shane Cowley was properly before the court because a certificate of appealability (“COA”) is not required to appeal the denial of an Innocence Protection Act (“IPA”) motion brought pursuant to 18 U.S.C. §§ 3600-3600A. However, the Fourth Circuit ultimately affirmed the district court’s ruling that Cowley’s motion was untimely under the IPA.

In August 2000, a jury convicted Cowley on four different counts in conjunction with the attempted robbery and murder of Jeff Stone. The district court sentenced Cowley to forty-five years’ imprisonment. Cowley directly appealed his conviction and sentence. After the district court was affirmed, he appealed pursuant to 28 U.S.C. § 2255. That appeal was denied. In 2006, the IPA became law and allowed federal prisoners to move for court-ordered DNA testing under certain specified conditions. Cowley’s last appeal proceeding concluded in 2006, yet, he did not file a IPA motion until June 2014. In his motion, Cowley requested DNA testing for several items found at the crime scene, including spent casings from a 9mm and a .40 caliber gun. Cowley also attached affidavits from eight people that supported his alibi and pointed to four other people who could have committed the crimes. The district court denied Cowley’s motion and held that it was untimely. The district court also denied a COA.

The Fourth Circuit held that the appeal was properly before the court despite the district court’s denial of a COA and the court’s decision not to issue a COA. The court looked to the plain meaning of the IPA and also to other circuits interpretation of the IPA to determine whether an COA is required for a IPA motion. Ultimately, the court held that an appeal from the denial of an IPA motion is not subject to a COA requirement.

The Fourth Circuit then affirmed the district court’s denial of the IPA motion for it’s untimeliness. The IPA has ten requirements that must be met before the motion can be granted. One of the requirements mandates that the IPA motion be made within sixty months of enactment of the IPA or within thirty-six months of conviction, whichever is later. If it is not filed within that time, it is presumed untimely. The presumption can only be rebutted if one of the four exceptions apply. Cowley argued that the “good cause” exception and the “manifest injustice” exception applied in his case. The Fourth Circuit reviewed the district court’s rejection of these arguments and found the court did not abuse its discretion. The Fourth Circuit found the district court was correct in concluding that the “good cause” exception did not apply because incarceration alone is not enough to show good cause for untimely filing. The court also upheld the district court’s ruling that the “manifest injustice” exception did not apply because Cowley’s explanation that he was incarcerated and unable to hire an investigator was not adequate.

Accordingly, the Court affirmed the judgment of the district court.

Full Opinion

Cate E. Cardinale

UNITED STATES v. BERRY, NO. 14-4934

Decided: February 19, 2016

The Fourth Circuit vacated and remanded the district court’s decision.

In 2003, Defendant, Brian Berry, pled guilty to a sex offense in New Jersey state court and was obligated to register as a sex offender under the federal Sex Offender Registration and Notification Act (“SORNA”). Berry registered in New Jersey, but in 2013 law enforcement discovered Berry had relocated to North Carolina and had subsequently failed to properly register at his new address. Berry pled guilty to failing to register, and at sentencing the district court decided Berry was classified as a tier III sex offender under SORNA based on the conduct underlying his prior sex offense as described in the presentence report. As a result of his tier III designation, the district court calculated Berry’s Guidelines range as thirty-three to forty-one months, and he was sentenced to thirty-three months in prison and five years of supervised release. Berry appealed, arguing against his determination as a tier III sex offender.

The Court discusses two approaches to determining a defendant’s tier classification, both described in United States v. Price. First is the “categorical approach,” which “focusses solely on the relevant offenses’ elements, comparing the elements of the prior offense of conviction to the pertinent federal offense.” A categorical match exists when the elements of the prior offense as the same or narrower than those of the offense listed in the federal statute. The second approach, “the circumstance-specific approach,” focusses on the conduct underlying the defendant’s prior conviction, not the relevant offenses’ elements. In utilizing this approach, the reviewing court should evaluate whether the prior offense involved circumstances that are required under the federal statute. Ultimately, after examining the text of SONRA, the Fourth Circuit reached the same conclusion as the Tenth Circuit did in United States v. White; the language of SONRA instructs the use of a categorical approach, with the exception of considering the actual act of the victim.

Consequently, after applying the categorical approach prescribed by SONRA, the Court agreed with Berry that the district court erred in classifying him as a tier III sex offender. The statute under which Berry had originally been convicted, N.J. Stat. Ann. § 2C:24-4(a) (2002), child endangerment could be based on either “sexual conduct which would impair or debauch the morals of [a] child” or “harm that would make [a] child . . . abused or neglected.” The pertinent federal offense requires actual or physical contact. However, the New Jersey Supreme Court has previously made clear that no such contact is required for conviction under the child endangerment statute discussed here, making it a broader statute than the federal statute. Consequently, there is no categorical match, and Berry cannot be properly classified as a tier III offender.

Accordingly, the Court vacated and remanded the district court’s sentencing.

Full Opinion

Charlotte Harrell

US v. ADAMS, NO. 13-7107

Decided: February 19, 2016

The Fourth Circuit vacated the district court’s ruling and entered judgment in the defendant’s favor.

In 2008, defendant, Richard Adams was indicted on an eight-count indictment alleging that he committed a series of armed robberies.  In May of 2009, Adams pleaded guilty pursuant to a written plea agreement to three of the eight counts: (1) robbery in violation of 18 U.S.C. § 1951 (Count 2); (2) using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (Count 3); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Count 8).  The plea agreement contained a statement stating that Adams waived his right to challenge the conviction or sentence under 28 U.S.C. § 2255 unless it was for ineffective assistance of counsel or prosecutorial misconduct.  Based on his previous criminal history and total offense level, Adams received a total of 240 months.  Adams appealed his conviction and the Fourth Circuit Court of Appeals affirmed his conviction and sentence in 2011.  In August 2012, Adams filed a motion to vacate his 922(g) conviction as a felon in possession of a firearm pursuant to 28 U.S.C. § 2255.  Adams asserted that he was innocent of being a felon in possession of a firearm because none of his prior convictions were felonies after the decision in United States v. Simmons and that his attorneys were ineffective for failing to anticipate the ruling in Simmons.  In Simmons, the Fourth Circuit held that “for an offense to be a prior felony under North Carolina’s Structured Sentencing Act as then written, a defendant must have actually faced the possibility of more than a year in prison.”  In July 2013, the district court dismissed Adam’s § 2255 motion, determining that Adams waived his Simmons claims in the plea agreement.

The Fourth Circuit concluded that Adam’s claim of actual innocence was outside the scope of the waiver and that Adams was actually innocent of being a felon in possession of a firearm.  The Court stated that generally a waiver remains valid in light of subsequent changes in the law.  However, if a valid waiver results in the miscarriage of justice then a court will refuse to enforce it.  Adams’s showing of actual innocence was sufficient to satisfy the miscarriage of justice requirement so the Court determined that the § 2255 motion fell outside the scope of his waiver.  The Court relied on Miller v. United States when determining that Adams’s 922(g) conviction should be vacated.  In Miller, a defendant’s § 2255 motion was granted based on his predicate North Carolina convictions no longer being characterized as felonies.  The Court concluded in Miller that under Simmons, the felony convictions were no longer felonies and that those defendants were actually innocent of the 922(g) offense.

After determining that Adams’s actual innocence claim was outside the scope of his appeal waiver, the Court reached his § 2255 motion.  The Court concluded that Adams failed to meet the three required elements of a 922(g) conviction because he was not a felon at the time of the offense.  In Bousley v. United States, the Supreme Court added an additional requirement stating, “in cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.”  However, the Court concluded that Adams did not have to prove actual innocence of all the charges that he was charged with before entering into a plea agreement because the dismissed counts related to different criminal conduct.  Finally, the Court refused to reinstate the dismissed charges of the indictment.  Since Adams was not a convicted felon at the time of the charged offense, it was not illegal for him to possess a firearm.

Accordingly, the Court vacated the judgment of the district court.

Full Opinion

Alicia E. Morris

U.S. v. TINEKA S. MCLAUGHLIN, No. 14-4920

Decided: February 16, 2016

The Fourth Circuit dismissed the defendant’s motion to appeal.

Tineka McLaughlin pleaded guilty to bank fraud in violation of 18 U.S.C § 1344 as a result of her participation in an ATM fraud scheme in Fayetteville, North Carolina. This appeal concerns McLaughlin’s right to appeal her sentencing under her interpretation of her plea agreement. As part of her plea agreement, McLaughlin agreed to waive, in part, all of her rights to “appeal the conviction and whatever sentence is imposed on any ground, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable Guideline range . . .” In essence, the plea agreement limited McLaughlin’s right to appeal to any part of the sentencing, referred to as an upward departure, in excess of the advisory Guideline range but not the established advisory Guideline range itself. At sentencing, McLaughlin was asked by the district judge if she understood that her plea agreement only reserved her the right to appeal an upward departure from the Guideline range established at sentencing and otherwise waived all rights to appeal whatever sentence is imposed, to which she responded, by saying, “Yes, sir.”

McLaughlin was subsequently sentenced to pay restitution and to serve twenty-seven months’ imprisonment. McLaughlin’s sentence was based upon two variables. First, the district court calculated McLaughlin’s Guideline range using a four-level role-in-the-offense enhancement pursuant to U.S.S.G § 3B1.1(a) that produced an advisory Guideline range of 15 to 21 months. Second, the district court, based upon the notion that the lower Guideline range underestimated the seriousness of McLaughlin’s criminal history and her likelihood of recidivism, imposed an upward departure. The upward departure increased McLaughlin’s sentence to 27 months.

Following her sentencing, McLaughlin appealed. However, McLaughlin misconstrued her right to appeal the upward departure with her waiver of the right to appeal the advisory Guideline range. The United States moved to dismiss, arguing that she waived her right to appeal issues related to the establishment of her advisory Guideline range. McLaughlin countered, arguing that she could appeal the sentence because it was in excess of the applicable advisory Guideline range. Though she did retain a right to appeal this particular issue, in reality, McLaughlin’s appeal did not actually concern the upward departure, but rather only concerned the establishment of the advisory Guideline range. Pointing to principles of contract law which govern the construction and interpretation of plea agreements, the Fourth Circuit pointed out that McLaughlin cannot employ “selective reading” of her plea agreement and must instead “give meaning and effect to every part of the contract.” The Court seemed somewhat perplexed as to why McLaughlin declined to include a motion to appeal her sentence’s upward departure, which she was entitled to do, and instead challenged the establishment of her Guideline range, which she was not permitted to do. Nevertheless, the Court was forced to dismiss McLaughlin’s motion to appeal.

McLaughlin also argued that the plea agreement was at least ambiguous and should thus be construed in her favor. However, the Fourth Circuit declined to accept this contention, and pointed out that the fact that parties in an “adversary system unsurprisingly argue for different interpretations of an agreement does not in and of itself render an agreement ambiguous.”

Accordingly, the Court dismissed the Defendant’s motion to appeal.

Opinion

Brandon Gregg

U.S. v. WILLIAMS, No. 14-4680

Decided: January 28, 2016

In a case concerning plea agreements to drug crimes, the Fourth Circuit held that the district court did not plainly err in convicting the defendants.  The Fourth Circuit also held that it did not have jurisdiction to review the sentence of one of the defendants.  On this basis, the Fourth Circuit affirmed the district court’s conviction of the defendants, and dismissed one defendant’s appeal of her sentence.

David James Williams, III, and Kristin Deantanetta Williams each pled guilty to one count of conspiracy to possess and distribute cocaine and cocaine base, and, under Fed. R. Crim. P. 11(c)(1)(C), stipulated to a sentence of 120 months imprisonment.  The district court sentenced each defendant to 120 months imprisonment.  Under Anders v. California, both defendants appealed challenging whether their convictions complied with Fed. R. Crim. P. 11.  In addition, Kristin challenged the reasonableness of her sentence.  

The Fourth Circuit first found that there was no plain error in the defendants’ convictions.  The district court complied with Fed. R. Crim. P. 11’s requirement that the trial court speak with the defendant to be sure that he understands the nature of the charge, the mandatory minimum and maximum possible sentences, and the rights relinquished by pleading guilty.  The district court also, as required by Fed. R. Crim. P. 11, made sure there was a factual basis for the plea, and that the plea was voluntary.

The Fourth Circuit next found that it did not have jurisdiction to review Kristin’s challenge to her sentence.  The Court found that it could only review the sentence if it was “‘imposed in violation of law,’” or “‘as a result of an incorrect application of the [United States] [S]entencing [G]uidelines . . . .’”  The Court held that the sentence imposed did not violate the law because 120 months was the mandatory minimum sentence for the crime of which Kristin was convicted.  The Court then noted, based on case precedent, that sentences under Rule 11 (c)(1)(C) are generally not thought to be an incorrect application of United States Sentencing Guidelines, because the sentences come from the parties’ agreement, not the Court’s application of the Guidelines.  The Court noted an exception to that general rule where the parties’ “‘agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment.’”  The exception did not apply in the instant case, however, because Kristin’s plea agreement did not expressly rely upon the Guidelines.  On this basis, the Fourth Circuit affirmed the district court’s conviction of the defendants, and dismissed Kristin’s challenge to her sentence.

Full Opinion

Katherine H. Flynn

 

U.S. v. MOORE, No. 14-4645

Decided: January 20, 2016

In a case stemming from a murder-for-hire plot, the Fourth Circuit found that the district court did not constructively amend the charges against the defendants through erroneous jury instructions. The Fourth Circuit also found that the district court did not erroneously admit hearsay or character evidence. On that basis, the Fourth Circuit affirmed the district court’s convictions.

In April, 2013, Aaron Wilkinson was stopped by police officers while driving in Charleston, South Carolina. Wilkinson told police that he and a former prison cellmate, Samuel Yenawine, were part of a not-yet completed murder-for-hire plot to kill Nancy Latham (Cannon). As part of this plot, he and Yenawine, with the help of Yenawine’s girlfriend, had rented a car in Kentucky and driven to South Carolina where Yenawine bought a pay-as-you go cell phone, and used it to communicate with a woman who said she would meet with them at a North Charleston motel. Wendy Moore arrived at the motel, rented a room for Yenawine and Wilkinson, and met with Yenawine. Yenawine returned from the meeting with $5,000. Moore was the girlfriend of, and assistant to, Christopher Latham (Latham), a banker and the estranged husband of Cannon. Moore was also Yenawine’s ex-wife. Wilkinson later saw Moore and Yenawine meet, with Yenawine obtaining a manila envelope “hit packet,” with information on Cannon. The contents of the packet were subsequently linked to Latham and Moore, and independent evidence also corroborated Wilkinson’s story. Moore, Yenawine, and Wilkinson were arrested. Yenawine committed suicide in jail two months later.

In August, 2013, a grand jury indicted Moore, Latham, Wilkinson, and Yenawine’s girlfriend, Palmer. Moore and Latham were indicted on various counts, including conspiracy to use interstate commerce facilities in the commission of murder-for-hire and use of such facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958(a). At trial, the jury convicted Moore of all counts against her, and Latham of the use of interstate commerce facilities charge. The district court sentenced Moore to 180 months imprisonment, and Latham to 120 months imprisonment. Moore and Latham appealed, arguing that the court improperly instructed the jury, leading to constructive amendment of the charges against them in violation of their Fifth Amendment right to indictment by a grand jury. Moore and Latham also challenged as improper the court’s admission of hearsay evidence and character evidence.

The Fourth Circuit first found that the court did not constructively amend the conspiracy to use and use of facilities charges against Moore and Latham by improperly instructing the jury. The Fourth Circuit noted that 18 U.S.C. § 1958(a) encompasses two distinct types of charges, one for traveling or causing another to travel in interstate commerce connected to a murder-for-hire, and one for using or causing another to use facilities of interstate commerce. Moore and Latham were changed under the travel prong. In its closing instructions, the district court informed the jury that Moore and Latham were charged under the travel prong, but made two references to the facilities prong in explaining the statute under which Moore and Latham were charged. The Fourth Circuit found that, viewed under the totality of the circumstances, the district court had not constructively amended the charges against Moore and Latham. The majority of the jury instructions did not refer to the facilities prong, the arguments at trial spoke only to the travel prong, and any evidence

of facilities use presented at trial was presented only as substantive evidence of the plot itself, not as evidence for the facilities prong.

The Fourth Circuit next found that the district court did not improperly admit hearsay evidence. The district court admitted testimony from a cellmate of Yenawine’s about a statement Yenawine made before committing suicide in which he discussed the plot. The district court admitted the statement as a statement against interest. Moore and Latham challenged the trustworthiness of the statement. The Fourth Circuit found the statement trustworthy because Yenawine had no reason to lie to his cellmate, and other evidence corroborated his statement. The Fourth Circuit also found that admission of the statement did not violate the Sixth Amendment’s confrontation clause, because statements between prisoners are not testimonial.

Finally, the Fourth Circuit upheld the district court’s admission of various pieces of character evidence against Moore. The Fourth Circuit found that Moore and Latham had not established any error in admitting the evidence, and that even if the admission of the character evidence did rise to the level of plain error, its admission did not have a serious effect on the proceedings. On this basis, the Fourth Circuit upheld the district court’s convictions of Moore and Latham.

Full Opinion

Katherine H. Flynn

ESTATE OF ARMSTRONG v. VILL. OF PINEHURST, NO. 15-1191

Decided: January 11, 2016  

The Fourth Circuit held that the Appellees (Village of Pinehurst) used unconstitutionally excessive force when seizing Armstrong and agreed with the district court that the Appellees were entitled to qualified immunity. Therefore, the district court’s grant of summary judgment in the Appellees’ favor was affirmed.

Armstrong, who suffered from bipolar disorder and paranoid schizophrenia, had been off of his medicine for several days. Armstrong’s sister brought him into the hospital, and when he fled, the Pinehurst Police were called. When the police arrived, Armstrong’s commitment order had not yet been finalized, and the parties engaged in conversation in which Armstrong was acting weirdly. As soon as the commitment papers were complete, the police advanced toward Armstrong, where he wrapped himself around a post and refused to budge. After pleading with Armstrong for thirty seconds, the officers tased Armstrong a total of five times over two minutes and pulled Armstrong off of the post. While struggling with Armstrong to place him in handcuffs, Armstrong complained he was being choked. After subduing Armstrong, Armstrong’s sister noticed that he was facedown and unresponsive. His skin was blue, and he did not appear to be breathing. The officers administered CPR, called EMS, and the hospital pronounced him dead shortly after his admission.

Armstrong’s Estate (Appellant) sued each police officer involved in Armstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging that the officers used excessive force, in violation of Armstrong’s Fourth and Fourteenth Amendment rights, when seizing him. The district court granted summary judgment to the Appellees stating that there was not likely a constitutional violation, but if there was, the defendants were entitled to qualified immunity. This appeal followed. Qualified immunity is a protection for officers that commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful. This immunity involves two inquiries: “(1) whether the plaintiff has established the violation of constitutional right, and (2) whether that right was clearly established at the time of the alleged violation.” In order to survive summary judgment, both of these questions must be answered in the affirmative.     

The Fourth Circuit first inquired as to whether the facts alleged, taken in the light most favorable to the party asserting the injury, show the officer’s conduct violated a constitutional right. When determining if excessive force has been used, the court looks at first, “the severity of the crime at issue”; second, the extent to which “the suspect poses an immediate threat to the safety of the officers or others”; and last, “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” The first factor weighs heavily in Armstrong’s favor because no crime was actually committed, and even if his resisting was determined to be a crime, it was a minor one, and the factor would still weigh in Armstrong’s favor. It is important to note that the conduct used to treat a mentally ill person is different than the conduct used to treat someone who has committed a crime. The second and third factors, whether Armstrong threatened the safety of others and resisted seizure, do justify some, limited, use of force. However, the degree of force needed is enough to prevent Armstrong’s flight, and it was clear Armstrong was not going anywhere, and the only risk he posed was to himself. Further, the officers only spoke to Armstrong for thirty seconds to attempt to have him let go of the pole before tasing him. The use of a taser is unreasonable force in response to resistance that does not raise a risk of immediate danger. The proportionality of the force in light of the circumstances show that the amount of force Appellees used was not objectively reasonable. Here, the Fourth Circuit determined that when seizing Armstrong, the Appellees used unreasonably excessive force in violation of the Fourth Amendment.

However, the district court’s grant of summary judgment was still proper because Appellees were entitled to qualified immunity. A plaintiff can prove that an official has violated his rights, but an official is still entitled to qualified immunity. After defining the constitutional right, the court must ask whether it was clearly established at the time the Appellees acted. This requirement is satisfied when it is clear that every reasonable official would have understood that what he or she was doing would violate that right. Unlawfulness must be apparent. Here, the constitutional right in question is Armstrong’s right not be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure. While the precedent supported the conclusion that Appellees violated that right while seizing Armstrong, the Fourth Circuit acknowledged that this conclusion was not so settled at the time they acted that “every reasonable official would have understood that tasing Armstrong was unconstitutional. Case law indicated that Appellees were treading close to the constitutional line; however, the case law did not have sufficiently clear guidance to forfeit their qualified immunity. Therefore, the Fourth Circuit affirmed the district court’s grant of summary judgment to the Appellees.

The Fourth Circuit used this opinion to clarify when the use of a taser amounts to excessive force, at least in some circumstances. A taser is expected to inflict plain or injury when it is used. It, therefore, may only be deployed when a police officer is confronted with a circumstance that creates an immediate safety threat and that is reasonably likely to be cured using a taser. A seizure suspect does not create a sufficient risk because he or she is doing something that can be characterized as resistance, even when that resistance includes physically preventing an officer’s manipulations of his body. Safety risks do not necessarily arise because there is erratic behavior or mental illness. Importantly, when a seizure is intended to prevent a mentally ill individual from harming himself, the officer affecting the seizure has a lessened interest in deploying potentially harmful force. Therefore, during the course of the seizure of a mentally ill person who is only in danger to himself, police officers who choose to use a taser in the face of stationary and non-violent resistance to being handcuffed have used unreasonably excessive force. Even though qualified immunity protected the officers in this situation, law enforcement officers should now be on notice that this type of taser use constitutes a violation of the Fourth Amendment.

Full Opinion

Austin T. Reed

 

U.S. v. WHITE, NO. 14-4375

Decided: January 7, 2016  

The Fourth Circuit affirmed the jury verdict convicting the defendant of three counts in violation of 18 U.S.C. § 875(b), and one count in violation of § 875(c). Additionally, the Fourth Circuit affirmed the district court’s 92-month term of imprisonment.  

White, the defendant, has previously been imprisoned for making threatening phone calls and sending intimidating letters. During his incarceration, his relationship with his now-ex-wife, MW, deteriorated and led to a separation in which MW agreed to pay White alimony. While White was temporarily out of prison on supervised release, he fled to Mexico with an acquaintance named Sabrina Gnos. After MW learned that White had fled the country, she stopped making the alimony payments for fear that she would be aiding a fugitive. White then attempted to persuade MW to continuing the payments and became the basis of the indictment in this case. White sent several emails demanding that his alimony payments be made, or he was going to have someone use physical force to harm MW. He even asked Gnos to help him find someone to help force her to make these payments. White was then arrested in Mexico and was deported to the United States. He was charged with four counts of violating 18 U.S.C. § 875(b), which penalizes “[w]hoever, with intent to extort from any person…any money…,transmits in…foreign commerce any communication containing any threat to…injure the person of another[.]” At trial, despite the testimony from Gnos, White claimed that he did not send those emails. The jury returned a verdict finding him guilty of violating § 875(b) on three counts and violating § 875(c) on another count, which is a lesser crime than § 875(b) that does not require the person making the threat to have the “intent to extort.” The trial judge sentenced White to 92 months in prison, at the low end of the United States Sentencing Guidelines range.

On appeal, White attacks the legal requirements for conviction pursuant to § 875(b) and (c). White argues that the indictment against him was legally deficient and should have been dismissed because he could not have intended to extort alimony payments to which he was legally entitled.

First, the Fourth Circuit looked at the § 875(c) conviction. The district court instructed the jury that it could convict White pursuant to § 875(c) if he transmitted a true threat in interstate commerce, without regard to his subject intent. However, according to the Supreme Court, in Elonis v. United States, a conviction pursuant to § 875(c) requires: (1) that the defendant knowingly transmitted the communication in interstate or foreign commerce; (2) that the defendant subjectively intended for the communication as a threat; and (3) that the content of the communication contained a “true threat” to kidnap or injure. Even though the district court omitted the issue as to whether White sent the email containing the threat with the knowledge that the communication would be viewed as a threat, the Fourth Circuit found this error to be harmless. Because the record contained no evidence that would rationally lead a jury to conclude the sender of the email intended to do anything other than threaten the recipient, and because the jury concluded beyond a reasonable doubt that White was the sender, the district court’s error in instructing the jury was harmless.

Next, the Fourth Circuit reviewed White’s three § 875(b) convictions. Similar to § 875(c), this statute prohibits the transmission in interstate or foreign commerce of threats to kidnap or injure; however, it also requires the threatening communication to be sent “with intent to extort from any person…any money or thing of value.” The Fourth Circuit held that the intent to extort for purposes of § 875(b) is the intent to procure something of value through the use of a wrongful threat to kidnap or injure the person of another. Therefore, the Fourth Circuit concluded that one cannot have the intent to scare someone into relinquishing property or something of value by communicating a wrongful threat to kidnap or injure without also intending the communication to be threatening. Here, since the jury charge required the finding that White intended to threaten MW to induce her to pay the alimony, there was no error in the instruction. White also argued that he could not have intended to extort MW because he had a “claim of right” to the alimony payments. Again, the intent to extort is the intent to procure something of value through the use of a wrongful threat to kidnap or injure the person of another. The key word is “wrongful.” The Fourth Circuit stated the “claim of right” defense applies to “legitimate economic threats” and not threats of violence. Therefore, the legal framework was proper.

Further, the Fourth Circuit found no abuse of discretion in the district court’s use of an anonymous jury due to White’s prior convictions reflecting his willingness to use threats and personal information to intimidate people involved in judicial proceedings. The district court took appropriate safeguards to protecting White’s right to a fair trial by instructing the jurors that the anonymity was to prevent the press from communicating with them during trial. Additionally, the Fourth Circuit determined the admittance of the Gnos notes into evidence created a harmless error, even if the notes were determined to be inadmissible hearsay. Here, the weight of all of the evidence was sufficient for a jury to convict White on all of the charges, and the district court’s denial of White’s motion for judgment of acquittal was appropriate.

Finally, White argued that his sentencing was unreasonable. He first asserts that the district court erred in applying the two-level enhancement for obstruction of justice, rendering his sentence procedurally unreasonable. Second, White claimed his sentence was substantively unreasonable because the district court improperly considered his political views. Third, White contended that the district court erred by failing to group his counts of conviction under § 3D1.2 of the Sentencing Guidelines. However, the Fourth Circuit found no merit in each of these arguments, and the 92-month sentence, on the low end of the Sentencing Guidelines was appropriate. Even though there were a few harmless errors from the district court, the Fourth Circuit ended by stating, “A defendant is entitled to a fair trial, not a perfect one.” Here, White received a fair trial, and there was no reason to disturb the jury’s verdict or the district court’s sentence.  

Full Opinion

Austin T. Reed

U.S. v. MARTINOVICH, No. 13-4828

Decided: January 7, 2016

In a case stemming from the defrauding of investors, the Fourth Circuit held that the district court erred by interfering with the trial, but that the error did not lead to an unfair trial.  The Fourth Circuit also held that the district court incorrectly treated the United States Sentencing Guidelines (USSG) as mandatory.  On that basis, the Fourth Circuit affirmed the defendant’s conviction, vacated his sentence, and remanded the case, ordering that it be assigned to a new judge.

Jeffrey Martinovich was a licensed broker who owned an investment services company.  From about late 2006 to early 2009, Martinovich inflated the values of stock, resulting in increased fees to him.  After investigating Martinovich’s company, in May, 2010, the Financial Industry Regulatory Authority forced the company to close, and Martinovich gave up his broker’s license.  In February, 2011, Martinovich filed for bankruptcy.  During the bankruptcy proceedings, he failed to disclose income and losses from gambling.

In October, 2012, Martinovich was charged with lying in a bankruptcy proceeding, conspiracy to commit mail and wire fraud, and multiple counts of mail and wire fraud.  During his trial, the court often interrupted and challenged counsel, but Martinovich never objected.  The trial jury found Martinovich guilty on one conspiracy count, four counts of wire fraud, five counts of mail fraud, and seven counts of money laundering, not guilty on three more counts, and was unable to reach a verdict on an additional five counts.  Over the disagreement of both Martinovich and the government, the district court repeatedly indicated at sentencing that the USSG were mandatory.  The district court found that Martinovich’s USSG guideline was 135-168 months imprisonment, and sentenced him to 140 months imprisonment.  Martinovich appealed, arguing that the court’s interruptions deprived him of a fair trial, and that the district court erred by treating the USSG as mandatory.

The Fourth Circuit first found, under the plain error standard, that the court’s interference was error, but that the error did not deprive Martinovich of a fair trial.  The Fourth Circuit noted the repeated times the court interrupted counsel, interfered with counsel’s presentation of evidence, and challenged counsel’s tactics, finding that “the district court’s repeated comments were imprudent and poorly conveyed.”  The Fourth Circuit found that while the court’s behavior was error, the error did not lead to an unfair trial.  The Court based this holding on the fact that district courts are generally entitled to manage trials, the court warned jurors that its opinions and comments should not influence how they thought about or decided the case, Martinovich did not object to the court’s behavior at the time, and the evidence against Martinovich was overwhelming.

The Fourth Circuit then found that the district court erred by treating the USSG as mandatory.  Under case law, the Court noted, treating the USSG as mandatory makes the sentence imposed procedurally unreasonable, and subject to being vacated.  Here, the district court repeatedly said that the USSG left it no discretion, or that what discretion it did have was disfavored.  The Court then held that the error in treating the USSG as mandatory was not harmless, because if the district court had treated the USSG as advisory, it might have imposed a shorter sentence on Martinovich.  On this basis, the Fourth Circuit affirmed Martinovich’s convictions, vacated his sentence, and remanded the case.  In addition, the Fourth Circuit ordered that the resentencing be done by a different judge to preserve the appearance of fairness.

Judge Wynn wrote a separate concurring opinion in which he noted that judges “must avoid even the appearance of improper interference and excessive interruptions of court proceedings.”  He noted that, “[a]t some point, repeated injudicious conduct must be recognized by this Court as a compelling basis for finding plain error.”

Full Opinion

Katherine H. Flynn

 

U.S. V. BARLOW, NO. 15-4114

Decided: December 21, 2015

In a case about criminal sentencing, the Fourth Circuit found that Camden Barlow’s prior state convictions qualified as felonies under federal law, but that, given new law, he did not have enough predicate violent felonies to qualify as an armed career criminal under the Armed Career Criminal Act (ACCA).  On this basis, the Fourth Circuit partially affirmed, and partially reversed the District Court, and remanded the case for resentencing.

In April, 2013, Barlow pled guilty to two North Carolina counts of felony speeding to elude arrest.  In July, 2013, Barlow pled no contest to two North Carolina counts of felony breaking and entering.  In May, 2014, Barlow was indicted by a federal grand jury for being a felon in possession of a firearm who had committed three prior violent state felonies.  At trial, Barlow pled guilty, but maintained that his prior state crimes were not felonies, and that he did not have three prior violent felonies as required for ACCA sentencing enhancement.  The District Court found against Barlow on both counts.  The Court found that his state crimes were felonies because they carried a possible sentence of more than one year.  The Court then counted his two speeding convictions as two felonies, but his two breaking and entering convictions as one felony because the two breaking and entering charges came from the same incident.  The Court also found that Barlow’s prior North Carolina juvenile delinquency conviction for discharging a firearm into occupied premises could be a predicate violent felony.  Having found at least the three required predicate violent felonies, the District Court sentenced Barlow as an armed career criminal under the ACCA to the mandatory minimum 180 months imprisonment.  Barlow appealed to the Fourth Circuit.  He argued that his speeding convictions did not qualify as predicate violent felonies under the ACCA.  He also argued that none of his prior state convictions constituted felonies, because North Carolina sentencing law required a nine-month post-release supervision period for the last nine months of his sentence, and each of his actual prison sentences was thus under one year, so he did not meet the definition of a felon, and thus could not be a felon in possession.  

The Fourth Circuit first found that the two speeding to elude arrest convictions did not constitute predicate violent felonies under the ACCA.  The Fourth Circuit noted that for a felony to be an ACCA violent felony, it must: 1) involve “use, attempted use, or threatened use of physical force” against another person, 2) be among an ACCA list of violent felonies, or 3) fall into a residual category as a crime that “‘otherwise involves conduct that presents a serious potential risk of physical injury to another.’”  Speeding to elude arrest did not fit into the first two categories, so it could only be an ACCA predicate violent felony if it fit into the third category.  The Supreme Court’s 2015 Johnson v. U.S. ruling held this third category to be unconstitutionally vague.  On this basis, the Government in the instant case conceded that the two speeding to elude arrest convictions no longer qualified as predicate violent felonies under the ACCA.  Thus, Barlow only had at most two predicate violent felonies under the ACCA, and thus was no longer eligible for ACCA sentencing enhancement.

The Fourth Circuit next found that Barlow’s remaining state convictions qualified as felonies.  The Fourth Circuit found that under North Carolina’s Structured Sentencing Act and Justice Reinvestment Act, all felonies in North Carolina now include a minimum possible sentence of at least 13 months, so all qualify as predicate felonies under federal law.  The new laws also require a mandatory nine-month period of supervised release to be served as the last nine months of the prison sentence imposed for a category of felonies including those for which Barlow was convicted.  Based upon North Carolina’s statutory language, a contrast with the federal sentencing system, and how North Carolina treats revocation of post-release supervision, the Fourth Circuit held that this post-supervision release period did not cut down the prison sentence, but was part of the prison sentence.  Because the period of imprisonment for Barlow’s state crimes was thus long enough to qualify them as felonies under federal law, Barlow could be a felon in possession of a firearm.  On this basis, the Fourth Circuit partly affirmed, and partly reversed the District Court, and remanded the case for resentencing.

Full Opinion

Katherine H. Flynn

 

U.S. v. STOVER, NO. 14-4283

Decided: December 18, 2015  

The Fourth Circuit affirmed the district court’s denial of the defendant’s motion to suppress a firearm as the fruit of an illegal seizure.  

In the early morning hours, two uniformed police officers were patrolling the “King Sector” of Temple Hills, Maryland. This was an area where several violent robberies had recently occurred. At approximately 1:00 a.m., the officers noticed a vehicle double-parked in the small private parking lot of an apartment building. Despite noting that it was “not suspicious for someone to be sitting in a parking lot,” the officers returned a few minutes later to check on the car. Because of the car’s out-of-state plates, the area’s reputation for crime, and the double-parking, the officers concluded they had the right to stop the occupant of the car to see what was going on.  The officers pulled behind the vehicle, activated the emergency lights, and illuminated the driver’s side of the vehicle with a spotlight.  

During the suppression hearing, there was conflicting testimony between the officers and a passenger that was in the vehicle. After considering the conflicting accounts, the district court found the following facts by a preponderance of the evidence. When the police vehicle pulled up, Stover did at some point get out of the vehicle and open two of the vehicle’s doors. Stover, at some point, did walk to the front of the car. At some point, one of the officers said, “get back in the car” and tried to stop Stover from getting out of the car. When one of the officers saw Stover move to the front of the vehicle, the officer ran to the front of the vehicle with his gun out, and put the gun in Stover’s face. It was the presence of the officer’s gun in the face of Stover that caused Stover to “acquiesce” and for Stover to drop a gun in front of the vehicle. Only after Stover dropped his loaded gun did he comply with the officers and got back in the vehicle.

Stover was charged with a single count of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) (2012). Stover attempted to suppress the gun as the fruit of an illegal seizure. The government did not maintain that the officers had reasonable suspicion to stop Stover; however, the government argued that under California v. Hodari, Stover never submitted to police and thus was not seized until after he dropped the loaded gun at the hood of the vehicle. The district court agreed and because Stover dropped his gun prior to complying with police orders, the district court found that the gun had been abandoned before the seizure and was admissible at trial. Stover was found guilty and appealed, challenging the district court’s denial of his motion to suppress.

Neither party disputed that a seizure occurred during the interaction in the parking lot. However, they did dispute exactly when the seizure occurred. Stover argues that the officers seized him, without reasonable suspicion, when the police vehicle pulled up behind his vehicle in the parking lot, rendering his gun the fruit of an illegal seizure. Conversely, the government argues that the officers did not seize Stover until after he abandoned his firearm in front of his car, prior to submitting to police authority.

The Fourth Amendment protects the rights of the people against unreasonable seizures. Generally, law enforcement officers do not seize individuals by merely approaching them in a public place and putting questions to them. In Terry v. Ohio, the Supreme Court explained, “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred.” When there is an absence of physical force, a seizure requires both a “show of authority” from law enforcement officers and “submission to the assertion of authority” by the defendant. In order to display a “show of authority,” an objective test is used, looking at the circumstances of the incident and whether a reasonable person would have believed that he was not free to leave. But without actual submission to the police, there has only been an attempted seizure, which is not subject to protection by the Fourth Amendment.

First, the Fourth Circuit considered whether, under the totality of the circumstances, a reasonable person would have felt free to leave after the officers pulled behind Stover’s car. The officers blocked Stover’s vehicle, were armed and uniformed and did not ask if they could speak to him, activated the blue lights, drew their weapons, and shined a spotlight on Stover. The Fourth Circuit determined this was not a close question and the police officers’ aggressive conduct from the start of their interaction would have made a reasonable person feel unable to leave.

Second, the Fourth Circuit considered whether Stover’s conduct constituted a submission to the assertion of authority by the police officers. Stover argues that he passively acquiesced to police authority by remaining at the scene. However, the district court determined his actions did not show his submission to the assertion of the officer’s authority. The evidence shows that instead of remaining seated in his car, Stover exited the vehicle with the loaded gun in his hand. Officers attempted to get him to stay in the car; however, Stover continued to walk away towards the front of the vehicle. Only after Stover dropped his firearm did he comply with police orders. The Fourth Circuit concluded that, under the totality of the circumstances, it could not hold that “walking away from police with a loaded gun in hand, in contravention of police orders, constitutes submission to police authority.” Therefore, the Fourth Circuit held the gun was not the fruit of the seizure, but was abandoned.

Judge Gregory dissented, believing that Stover passively acquiesced to the police’s show of authority because he remained at the focal point of the investigation without attempting to avoid being seized; therefore, the firearm would have been the fruit of an illegal seizure.

Full Opinion

Austin T. Reed

 

U.S. v. WILLIAMS, NO. 15-7114

Decided: December 14, 2015

The Fourth Circuit vacated and remanded.

Lance Antonio Williams (“Williams”) appeals the decisions of the Middle District of North Carolina that ruled he was ineligible for a sentence reduction. Williams argues that Guidelines Amendment 780 revised § 3582(c)(2)’s policy statement covering sentence reductions, thus qualifying him for relief. Williams had originally pled guilty to distributing cocaine base, and prior to his plea, the U.S. Attorney filed notice that Williams’ previous North Carolina drug conviction would be used to enhance his sentence. They then calculated the proper sentence, and after Williams’ filed a pro se motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), the district court denied his motion because his sentence was based on a statutory mandatory minimum, as opposed to the Guidelines range that had been lowered. This appeal followed.

The Fourth Circuit began by determining that the standard of review for the case was de novo. The Court first summarized the principles behind sentence reductions. Primarily, the Court relies on the idea that the Commission has the power to “abrogate precedent in the courts of appeals,” and has the power to set and amend the guidelines where it sees fit. Therefore, the Court recognized that the “precedent in the sentence-reduction context must give way if it conflicts with the Commission’s amendments.” The Court then looked at U.S. v. Hood, the case the district court relied on its decision. Specifically, the Court looked at its then-treatment of Amendment 706, which at the time did not impact any of the provisions in Guidelines section 5K1.1, and because of that, could not provide relief per § 3582(c)(2). However, following Hood and the subsequent circuit split, the Commission passed Guidelines Amendment 780, which modified § 3582(c)(2) relief. This Amendment, reasoned the Court, changes the outcome of Hood, so the district court’s reliance on that case was wrong. The Amendment “explicitly provides that a defendant in Williams’s situation is eligible for a § 3582(c)(2) sentence reduction.” After rejecting the applicability of Hood, the Court then turned to the question of whether Williams was eligible for a sentence reduction under Guidelines section 1B1.10. Going through the factors, the Court determined that Williams was indeed eligible for such a reduction; however, because the amount of the reduction Williams is eligible for is a “decision for the sentencing court,” the Fourth Circuit vacated the judgment of the lower court and remanded the case.

Full opinion

Jennie Rischbieter

U.S. v. WILLIAMS, NO. 14-4049

Decided: December 14, 2015  

The Fourth Circuit concluded the district court was incorrect in finding that reasonable suspicion existed to extend a traffic stop beyond its initial purpose; and therefore, vacated the defendant’s conviction and sentence and remanded for such other and further proceedings as may be appropriate.

Williams and his girlfriend were pulled over in North Carolina for speeding by a deputy sheriff. The deputy sheriff requested another deputy to stop and assist with administering a breathalyzer test after smelling alcohol. The test revealed that Williams was not intoxicated, and he was issued a written warning. Next, the officers asked if there was anything illegal in the vehicle, and Williams denied consent to search the vehicle. The officer told Williams to hold on, and the officer had a drug dog sniff the vehicle. The dog alerted the deputy, and a search of the trunk revealed crack cocaine. Williams attempted to suppress this evidence; however, he was unsuccessful. The court explained the Government had reasonable suspicion due to five specific factors: (1) Williams was driving in a rental car; (2) Williams was traveling in a known drug corridor; (3) Williams stated inconsistent travel plans; (4) Williams had contradictions in the addresses he provided; and (5) Williams stated he was traveling with the car ahead of him, but that car’s driver denied any association with Williams. Further, the court stated that the two-minute-and-forty-second extension for the dog sniff fell within the general parameters of a de minimis delay that does not offend the Fourth Amendment. However, after a reconsideration hearing, the evidence regarding the court’s fifth factor was determined to be inconsistent, but there was sufficient evidence to deny the suppression motions.  Williams was sentenced to prison and this appeal followed.

On appeal, Williams reiterated his contention that the deputies did not have the reasonable suspicion required to extend the traffic stop beyond its initial purpose. The government conceded that the de minimis ground for denying the suppression was not legally valid. Since a traffic stop is a “seizure” and is akin to an investigative detention, the Fourth Circuit analyzed the constitutionality of such a stop under the two-prong test illustrated in Terry v. Ohio. First, the officer’s reason for the traffic stop needs to be reasonable. Second, the officer’s actions during the seizure needs to be “reasonably related in scope” to the basis for the traffic stop. In Rodriguez v. United States, the Supreme Court held that, absent reasonable suspicion of criminal activity, a detaining officer may not extend an otherwise-completed traffic stop in order to conduct a dog sniff. Under the second prong, authority for the seizure ends when tasks tried to the traffic stop are reasonably completed.

With respect to the first Terry prong, whether the reason for the traffic stop was legitimate, Williams did not dispute that the deputy had every right to stop his vehicle for speeding. However, the Fourth Circuit discussed Terry’s second prong, whether the officers’ actions were reasonably related in scope to the basis for the traffic stop. The propriety of extending Williams’ detention beyond the completion of the traffic stop turns on whether reasonable, articulate suspicion existed when the deputy decided to conduct a dog sniff of the vehicle. Reasonable suspicion is a commonsense, nontechnical standard that relies on the judgment of experienced law enforcement officers. The court was required to look at the totality of the circumstances.

The Fourth Circuit walked through each of the four factors used by the district court in determining that reasonable suspicion existed. The Fourth Circuit was critical of the use of the first factor, determining the reasons provided by the deputies that the fact that the defendant was driving in a rental car was of minimal value to the reasonable suspicion analysis. Similarly, the fact that the defendant was driving “on a known drug corridor at 12:37 a.m.” was not very convincing because the number of persons using the interstate highways as drug corridors pales in comparison to the number of innocent travelers on those roads, even at the late hour. Further, no reasonable, articulable suspicion of criminality arises from the mere fact that Williams’ travel plans were likely to exceed the initial duration of the rental agreement. Finally, although the district court related that Williams had failed to provide either deputy with his home address, the record showed that neither deputy specifically asked Williams for his home address. Neither officer identified any aspect of the fourth factor as suspicious. Each of the factors, standing alone, failed to support any reasonable, articulable suspicion of criminal activity.

Also, the Fourth Circuit noted “reasonable suspicion may exist even if each fact standing alone is susceptible to an innocent explanation.” However, the record failed to show how the four factors reasonably pointed to criminal activity. Therefore, the Fourth Circuit vacated Williams’ conviction and sentence and remanded for such other and further proceedings that may be appropriate.  

Full Opinion

Austin T. Reed

 

U.S. v. BLUE, NO. 13-4069

Decided: December 10, 2015

The Fourth Circuit found the evidence was insufficient to support Daniel Blue’s convictions for possession with intent to distribute 100 grams or more of heroin, and aiding and abetting, and conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin.  On that basis, the Fourth Circuit reversed Blue’s convictions.

With the help of Herbert Fenner, who had been arrested on heroin distribution and firearms charges, Baltimore police in June, 2011, set up a controlled heroin buy targeting Keith Townsend, a middleman from whom Fenner claimed to have bought heroin.  While police observed from a nearby car, Fenner called Townsend to order 50 grams of heroin, and Townsend told him that he would be ready in fifteen minutes.  Townsend then emerged from his house, and interacted with occupants of a nearby Lexus, handing the driver money, and putting his hands briefly inside the Lexus.  Townsend then met with Blue on a street corner.  At the start of that interaction, Blue had a tan item in his left fist.  The two men then moved their left hands towards each other.  When the men lowered their hands, Townsend was holding an item, which he put in his left front pants pocket, and Blue’s hand was empty.  On the way home, Townsend called Fenner to say he was ready.  Police arrested Townsend, and searched his person, finding a plastic bag with a folded slice of bread in his pants pocket.  Inside the bread was a plastic bag with 49.87 grams of heroin.

Two weeks later, police hid a GPS tracker on Blue’s car.  Police then followed Blue to the Fox Hall apartment complex, and observed him enter building seven, though they could not see whether he entered a particular apartment.  Blue emerged in under five minutes holding a “sandwich-sized, cloudy white, plastic container,” got into his car, and drove away.  Police followed Blue to a lake recreation area known for narcotics trafficking.  There, Blue exited his car holding just his mobile phone, got into a car with another man, Jamar Holt, and Holt drove them around the lake.  Several minutes later, Blue got out of the car, and Holt drove away.  Shortly thereafter, while following Holt, police stopped him for a traffic violation.  The stop escalated with Holt brandishing a handgun and attempting to run over one of the policemen, and the policemen firing on Holt.  Holt then fled the scene.  The police found Holt’s vehicle an hour later with no firearms or narcotics inside.  Later the same day, Blue’s car was GPS tracked to a home on Sinclair Lane, where he was arrested based upon his June meeting with Townsend.

A search of Blue’s person yielded a set of keys, one of which unlocked the door to an apartment at Fox Hall.  A police search of the apartment discovered, hidden inside a footstool, 108.6 grams of heroin, two scales with heroin residue, and empty plastic sandwich bags.  The police also found mail addressed to Tiffany Elliott and to her brother, Brandon Cooper.  Cooper was asleep in the apartment.  A search of the Sinclair Lane house revealed no evidence incriminating Blue.  

Blue was indicted for conspiring with Townsend and others to distribute and possess with intent to distribute 100 grams or more of heroin or heroin mixture, possession with intent to distribute a detectable amount of heroin or heroin mixture and aiding and abetting, and possession with intent to distribute 100 grams or more of heroin or heroin mixture and aiding and abetting.  A jury found Blue guilty on the two 100 gram charges, and acquitted him on the other charge.  After Blue moved for acquittal, the district court upheld the jury findings, though it noted that the sufficiency of the evidence as to the amount of heroin involved in the conspiracy was a close call.

Blue appealed denial of an earlier motion to suppress evidence, and denial of his motion for acquittal.  While the appeal was pending, Blue moved for a new trial on the two counts of which he was convicted based on newly discovered evidence.  The Fourth Circuit granted a motion by Blue to stay his appeal, and remanded his case to reconsider his motion for a new trial.  The District Court denied that motion.  Blue again appealed, and the Fourth Circuit consolidated the appeals for a new trial and for conviction.

The Fourth Circuit first found that there was not sufficient evidence to support Blue’s conviction for possession with intent to distribute 100 grams or more of heroin or heroin mixture and aiding and abetting.  The Fourth Circuit noted that for Blue to have had constructive possession of the heroin, he had to know of the 108.6 grams of heroin in the Fox Hall apartment, and have had dominion and control over the heroin.  Here, Blue’s having a key to the apartment, entering a Fox Hall building, and taking a container out of the building was not enough to establish his constructive possession.  This was particularly so given that there was no evidence that Blue lived in or leased the apartment, had any personal property in the apartment, or had any connection to the people who lived in the apartment, the plastic container was never found, and there was no evidence of connection between Blue and the heroin seized from Townsend, or the drugs or drug-related items found in the apartment.

The Fourth Circuit next found that there was not sufficient evidence to support Blue’s conviction for conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin or a heroin mixture.  Because the Fourth Circuit found that there was not enough evidence to show that Blue knew about the 108.6 grams of heroin in the Fox Hall apartment, and because there was no evidence of a relationship between Blue, Townsend, or Holt and the apartment’s occupants, the Fourth Circuit found that there was not enough evidence to support the conspiracy conviction.  On this basis, the Court overturned Blue’s convictions.  The Fourth Circuit then declined to enter judgment on the lesser-included charge of conspiracy to distribute less than 100 grams of heroin because it felt that to do so would be to insert itself in the jury’s place.  Further, because of the way the jury verdicts were found at trial, the Fourth Circuit found that it could not know whether the jury found a conspiracy independent of finding a conspiracy involving 100 grams or more of heroin.  

Full Opinion

Katherine H. Flynn

 

FONTANEZ v. O’BRIEN, NO. 14-7607

Decided: December 2, 2015

The Fourth Circuit reversed the district court’s order and remanded the case for proceedings on the merits.

In 2004, Defendant Jeremy Fontanez (“Fontanez”) plead guilty and was convicted for his involvement in a series of armed robberies. The sentencing court imposed restitution in the amount of $27,972.61. The Inmate Financial Responsibility Program (“IFRP”) is a program initiated by the Bureau of Prisons (“BOP”) that enables prisoners to make payments from their inmate accounts towards court ordered financial obligations. IFRP is a voluntary program, therefore, the BOP cannot compel an inmate to make a payment. However, inmates with financial obligations who refuse to participate in the IFRP might lose many other privileges in prison, including more desirable housing or work outside the prison. In April of 2013, Fontanez was moved to the United States Penitentiary- Hazelton (“USP-Hazelton”), where he signed an Inmate Financial Plan. One year later, he filed a written request to be released from the IFRP, arguing that the BOP’s requirement that he make IFRP payments violated the Mandatory Victims Restitution Act of 1966 (“MVRA”). The MVRA obligates a district court to “specify in [a] restitution order the manner in which, and the schedule according to which, the restitution is to be paid.” Fontanez argued that the sentencing court had failed to set a schedule for his restitution payments, and instead delegated its power to the BOP. He contended that the BOP lacked the authority to require him to make restitution payments through the IFRP or to punish him for refusing to pay. The Warden of USP Hazelton, Terry O’Brien (“O’Brien”), denied Fontanez’s request.

In June 2014, Fontanez filed an application for a writ of habeas corpus under 28 U.S.C. § 2241 in the Northern District of West Virginia. Fontanez argued that he had a claim under § 2241 because he was challenging the execution and not the validity of his sentence. The matter was referred to a magistrate judge, who issued a report that the government’s motion to dismiss be granted and Fontanez’s position be denied. The district court adopted the ruling of the magistrate judge and dismissed the case.

On appeal, the Fourth Circuit reviewed the district court’s denial of habeas corpus relief de novo. The Court reasoned that the district court denied Fontanez’s petition because it understood his claim to be challenging the validity of his sentencing order, not the execution of his sentence. However, the Court noted that Fontanez was instead only challenging the execution of his sentence by the BOP. Fontanez did not seek to have the sentencing order set aside. The Court stressed, “it is well established that attacks on the execution of a sentence are properly raised in a §2241 petition.” Therefore, the Court held that an inmate’s challenge to the BOP’s administration of the IFRP is a challenge to the execution of a sentence, not the validity of the sentence, and is therefore cognizable under § 2241.

Accordingly, the Court reversed the district court’s order and because the district court did not reach the merits of the case, remanded it for further proceedings.  

Full Opinion

Meredith Weisler

 

U.S. v. SCHNITTKER, NO. 14-4905

 

Decided: December 2, 2015

The Fourth Circuit affirmed the district court’s ruling that there was no Double Jeopardy.

This case arose when Michael Schnittker (“Schnittker”) pled to the possession of child pornography under 18 U.S.C. 2252(a)(4) and then was tried and convicted under 18 U.S.C. 2252(a)(2) for the receipt of child pornography. There were two hard drives containing images at issue: the Maxtor hard drive and the Western Digital hard drive. Schnittker brought this appeal, claiming that the plea should have barred his conviction of the second charge due to the Fifth Amendment’s Double Jeopardy Clause.

The Fourth Circuit began by briefly reciting the facts and procedural history of the lower court, and then determined that the proper standard of review was de novo. First, the Fourth Circuit determined whether or not the two charges were the same in fact, after assuming for the purposes of this case that they’re the same in law. The Court said that “the inquiry must focus on what a reasonable person would understand at the time the defendant entered his plea, because that is the time at which jeopardy attaches.” The Court decided that an “objective person” in Schnittker’s place would have thought he was pleading guilty to possession only in regard to the Western Digital hard drive. Furthermore, once the government learned of his intent to plea, the government expressly limited his guilty plea to what was found on the Western Digital hard drive, and had spreadsheets documenting the file names on the different hard drives to show that the Maxtor hard drive only applied to Count 1 and the Western Digital hard drive only applied to Count 2. Although the hard drives shared some of the same images, the Court decided that because there were different files on the Western Digital hard drive that did not support the receipt of files that the Maxtor hard drive supported, there was no double jeopardy. Accordingly, the Fourth Circuit affirmed.

Full opinion

Jennie Rischbieter

TELEGUZ v. ZOOK NO. 11-9 & NO. 14-2

 

Decided: November 30, 2015

The Fourth Circuit affirmed.

Ivan Teleguz (“Teleguz”) was convicted of capital murder for hire of his ex-girlfriend, and after his habeas corpus relief was granted due to the district court’s failure to fully inquire into his habeas petition, the district court conducted a full evidentiary hearing and denied his petition for writ of habeas corpus. Teleguz appealed.

After briefly delving into the underlying facts of the case and Teleguz’s habeas corpus efforts, the Court looked at Teleguz’s three categories of evidence in support of his Gateway Innocence claim, reviewed de novo. Teleguz claimed that the district court’s analysis was unsound and that its decision amounted to reversible error. The Court first determined that a gateway innocence claim must be supported by new reliable evidence, and that the new evidence must be considered along with the old evidence in considering the claim, and the district court must determine that the “totality of the evidence would prevent an reasonable juror from finding him guilty beyond a reasonable doubt, such that his incarceration is a miscarriage of justice;” only after clearing this high hurdle would the district court then be able to reach the merits of the claim. The Court then looked at the three categories of evidence Teleguz presented to see if they met that hurdle. As to the testimony that the two key witnesses recanted, one of whom claimed he was coerced into testifying by the prosecution, the Court was unpersuaded, agreeing with the district court in finding their testimony unreliable as it was provided only by affidavits and not by in-person testimony, and was at odds with the in-person testimony of the government witnesses. As to Hetrick’s testimony, the Court again refused to disturb the district court’s finding that his testimony was credible, as the district court had a full opportunity to observe his testimony. The next category of evidence, whether or not Teleguz attended a birthday party in which he allegedly hired his ex-girlfriend’s killer, the Court agreed with the district court that the affidavits presented were not reliable, and in fact may have had their integrity called into question by one of the affiants. Finally, as to the category of evidence that a Pennsylvania murder that was alluded to during the trial never occurred, the Court agreed with the district court that such evidence simply failed to satisfy the requirements necessary to support a gateway innocence claim, because the Court said that the issue had no bearing on whether or not Teleguz was innocent of the murder that took place in Virginia. Furthermore, when the Court compared Teleguz’s case to the House case, it found that Teleguz’s case simply did not rise to the “rare” or “extraordinary” case in which it was “more likely than not that no reasonable jury would have convicted Teleguz.”

As to Teleguz’s argument about the Pennsylvania murder, although the Court acknowledged that the district court erred when it said that Teleguz failed to preserve his Martinez claim with respect to that Pennsylvania argument, the district court’s rejection of Teleguz’s Martinez claim was not a fatal error. Teleguz, under Martinez, had to show that there was a substantial ineffective assistance of trial counsel claim, such that counsel “made errors so serious that counsel was not functioning as the counsel guaranteed,” and the Court, after looking at the record and the instances in which the potential Pennsylvania murder was mentioned, rejected Teleguz’s argument. The Fourth Circuit therefore affirmed the district court’s dismissal of Teleguz’s petition.

Full Opinion

Jennie Rischbieter

GRAY v. ZOOK, No. 12-5

Decided: November 25, 2015

In a murder case, the Fourth Circuit found that the Supreme Court of Virginia considered the petitioner’s evidence, and did not make an unreasonable determination of facts under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) by resolving an ineffective-assistance-of-counsel claim without holding an evidentiary hearing.  The Fourth Circuit also found that the state court had already decided Gray’s ineffective-assistance claim, and thus he could not raise the claim in the District Court under Martinez v. Ryan.  On this basis, the Fourth Circuit affirmed the District Court’s holdings.  

During a 2006 home burglary, Gray violently murdered Mr. and Mrs. Harvey and their two young children.  The trial jury found Gray guilty of five counts of capital murder, and issued verdicts of life imprisonment on three counts, and death sentences for the childrens’ murders.  The Supreme Court of Virginia affirmed.  Gray filed a state habeas corpus petition.  One of Gray’s claims was that his trial counsel did not sufficiently investigate his confession.  Gray alleged that he repeatedly asked police for an attorney and a phone call, but received neither, and that he told police that his drug use on the day of the murders left him with no memory of what happened.  The Supreme Court of Virginia dismissed all but one of Gray’s habeas claims.  In dismissing the insufficient investigation claim, the court found that Gray showed neither that counsel performed unreasonably, nor that counsel’s performance caused him prejudice.

Gray filed a federal habeas corpus petition alleging that the Supreme Court of Virginia’s dismissal of his ineffective investigation claim was an unreasonable determination of facts under AEDPA.  While Gray was awaiting the District Court’s ruling, the Supreme Court decided Martinez v. Ryan.  Martinez is an exception to the rule that state habeas counsel errors do not excuse procedural default.  Where state habeas counsel was ineffective, and an ineffective-assistance claim was procedurally defaulted in state court, Martinez allows federal courts to review the claim de novo.  Because Gray’s counsel represented him in both the state and federal habeas proceedings, there was a conflict of interest in arguing a Martinez claim.  Gray thus moved for appointment of new counsel, a motion denied by the District Court.  The District Court also denied Gray’s habeas petition finding that the procedures employed, including the lack of evidentiary hearing, were not per se unreasonable.  The District Court certified two questions to the Fourth Circuit.  The Fourth Circuit reserved the first question: whether dismissal of the ineffective investigation claim was based on unreasonable determination of facts.  On the second question, whether Martinez entitled Gray to appointment of new counsel, the Fourth Circuit found that Gray was entitled, and directed the District Court to appoint counsel to prepare a Martinez claim.  

Gray and his new counsel filed an amended federal habeas petition with several claims, one of which alleged that trial counsel was ineffective for not presenting evidence of Gray’s voluntary intoxication at the time of the burglary, and state habeas counsel was ineffective for not bringing the claim before the State Supreme Court.  The District Court again dismissed the petition, finding the claim had not been procedurally defaulted, and even if it had, it did not meet other elements of Martinez.  The District Court issued a certificate of appealability with respect to the penalty phase of his trial.  Gray appealed to the Fourth Circuit.  In regards the earlier reserved issue, Gray claimed that the Supreme Court of Virginia had ignored Gray’s evidence, and had dismissed his habeas petition without an evidentiary hearing, and that this amounted to an unreasonable determination of the facts.  Gray also claimed that his ineffective-assistance claim should have been allowed under Martinez.  

The Fourth Circuit first found that the Supreme Court of Virginia did not unreasonably determine the facts in dismissing Gray’s habeas petition.  Based on the record, the Fourth Circuit found that the Virginia court reviewed Gray’s evidence, but did not find it credible.  The Fourth Circuit further found that an evidentiary hearing is not always required.  In Gray’s case, the Fourth Circuit found that his allegations were conclusory, and strongly rebutted by other evidence.  Thus, an evidentiary hearing was not required before dismissing the habeas petition.

The Fourth Circuit next found that Gray’s ineffective-assistance claim was presented to the state court, and thus did not qualify under Martinez.  Although Gray may have strengthened the evidence supporting his ineffective-assistance claim, the Fourth Circuit found that the federal ineffective-assistance claim was essentially the same as the state ineffective investigation claim.

Judge Davis wrote a concurring/dissenting opinion.  He agreed with the dismissal of Gray’s Martinez claim, but dissented on the need for an evidentiary hearing.  Judge Davis felt the Supreme Court of Virginia gave too much weight to the affidavit of Gray’s trial counsel, did not allow Gray the opportunity to fully develop his claim, and did not fully consider Gray’s evidence.

Full Opinion

Katherine H. Flynn

 

U.S. v. SELLERS, No. 14-4568  

Decided: November 18, 2015

The Fourth Circuit held that, in deciding whether a prior conviction qualifies as a predicate for federal sentence enhancement, the standard is what sentence might have been imposed for the prior crime, not what sentence was actually imposed.  On that basis, the Fourth Circuit upheld the District Court.

In 1999, Sellers pled guilty to three counts of possession with intent to distribute crack cocaine in violation of South Carolina statute.  He was sentenced under the Youthful Offender Act (YOA) to an indeterminate period of custody not to exceed six years.  In 2014, a federal jury found Sellers guilty of unlawful possession of a firearm.  The presentence report recommended that Sellers be sentenced as an armed career criminal under the Armed Career Criminal Act (ACCA) based upon his earlier South Carolina drug offenses.  The ACCA provides for enhanced sentences for defendants with three prior convictions for drug offenses that carry a maximum prison term of ten years or more.  The South Carolina statutes under which Sellers had been previously convicted carried maximum prison terms of 15 years or more.  Sellers objected to the presentence report, arguing that his prior convictions did not qualify as ACCA predicates because his YOA sentence imposed a maximum penalty of six years imprisonment.  Sellers recognized that the Fourth Circuit had rejected this argument in United States v. Williams, but argued that United States v. Simmons abrogated Williams.  The District Court overruled Sellers’s objections, and sentenced him to 210 months imprisonment and five years supervised release.  Sellers appealed to the Fourth Circuit arguing that Simmons overruled Williams, and thus his earlier drug convictions did not qualify for ACCA sentence enhancement, because his YOA sentence was for a maximum of six years imprisonment

The Fourth Circuit began its analysis by reviewing Williams and Simmons.  In Williams, a case very similar to the instant case, the defendant argued that his YOA sentence did not qualify for ACCA sentence enhancement because his maximum term of imprisonment under the YOA was six years.  The Fourth Circuit rejected this argument, finding that the YOA allowed for a variety of sentencing alternatives, and that eligibility for ACCA sentence enhancement should be decided based on the maximum sentence allowed under the statute of conviction, not based upon the sentence actually imposed.  In Simmons, which concerned predicate sentences for sentencing enhancement under a different federal Act, the defendant had been previously sentenced under North Carolina’s unique Structured Sentencing Act (SSA).  The SSA requires judges to match class of offense and prior history of offender to a statutory table, which gives presumptive, mitigated, and aggravated sentencing ranges.  Barring additional findings/procedures allowing for sentencing in another range, defendants must be sentenced in their presumptive ranges.  The Fourth Circuit found that a prior North Carolina conviction is punishable by imprisonment over one year only if the sentence for that particular defendant could exceed one year.

The Fourth Circuit found Sellers’s argument that Simmons overruled Williams, and thus his ACCA sentence enhancement was incorrect because his YOA sentence was for a maximum of six years, was incorrect.  It held this on the basis of the difference between the discretionary YOA and the mandatory SSA, and because the standard for predicate crimes for federal sentence enhancement has been, and remains, the sentence which could have been imposed, not the sentence actually imposed.

The Fourth Circuit held that the test for whether a crime qualifies as a predicate for federal sentence enhancement is the maximum sentence permitted, not the sentence imposed, and whether the judge could have imposed a qualifying sentence.  Under that standard, Sellers’s prior convictions qualified as predicate crimes for ACCA sentence enhancement, because the judge could have sentenced Sellers to more than ten years of prison for his prior drug convictions.  On this basis, the Fourth Circuit affirmed the District Court.

Full Opinion

Katherine H. Flynn

 

U.S. v. QAZAH, NO. 14-4204

Decided: November 17, 2015

The Fourth Circuit affirmed the Defendants’ convictions, but vacated their sentences, remanding for resentencing.

In 2010 and 2011, Defendant Kamal Zaki Qazah (“Qazah”), along with other conspirators, began purchasing thousands of cases of stolen cigarettes from undercover law enforcement officers. The officers had represented that the cigarettes had been stolen from Philip Morris trucks. Qazah sold the cigarettes to conspirators who operated convenience stores in South Carolina. Qazah’s Uncle, Defendant Nasser Kamal Alquza (“Alquza”) eventually became a part of the conspiracy in order to make additional money by laundering the undercover officers’ cash proceeds from the cigarette sales. In November 2011, the officers arranged a final controlled purchase. However, instead of completing the transaction, the officers arrested Qazah and Alquza, where they also executed a search warrant of Qazah’s house, where they found 1.3 million dollars in cash and a notebook in which Qazah had recorded his cigarette sales. Later that day, officers executed another search warrant at Alquaza’s house, recovering relevant financial records and false identification documents. On trial, a jury convicted Qazah and Alquza of conspiracy, in violation of 18 U.S.C. § 371, by conspiring to receive and transport stolen cigarettes in interstate commerce in violation of 18 U.S.C. §§ 2314 and 2315, along with other charges. The district court sentenced Qazah to 216 months’ imprisonment and Alquza to 108 months’ imprisonment.

On appeal, Alquza challenged the district court’s denial of his motion to suppress evidence recovered from a search of his home. He argued that because the search warrant for his home identified items that were instead in Qazah’s home, that the warrant did not satisfy the Fourth Amendment’s particularity requirement. The Court agreed with the district court’s ruling, holding that this error was a technical one, which did not influence the warrant’s issuance or affect its execution. Further, the Court found that the officers were acting in good faith, therefore, the suppression of evidence in this case would have no deterrent effect. Qazah challenged the court’s denial of his motion to sever his trial from Alquza’s. The Court affirmed the district court, finding that when defendants are charged together, a district court should grant severance only if there is a “serious risk that a joint trial would compromise a specific trial right of the defendants.”

Both Defendants challenged their respective sentences, claiming that the district court inaccurately calculated the “loss” for which they were responsible under the Sentencing Guidelines. Defendants claimed that the court relied on the retail value of the stolen cigarettes, rather than their wholesale value. The Court held that the district court’s reasoning behind their calculation of loss was in error, but that the final number was not necessarily incorrect. The Court concluded that the district court needed to re-evaluate their calculations to expand its inquiries into the intended victim of the relevant offenses and then to recalculate the Defendants’ sentencing ranges based on its findings and conclusions about the amount of loss that they intended to result from their commission of their crimes.

Accordingly, the Court affirmed in part, vacated in part, and remanded for resentencing.

Full Opinion

Meredith Weisler

 

U.S. v. PALOMINO-CORONADO, NO. 14-4416

Decided: November 5, 2015

The Fourth Circuit reversed and vacated the district court’s ruling.

Defendant, Anthony Palomino-Coronado was convicted of knowingly employing, using, persuading, inducing, enticing, or coercing a minor in sexually explicit conduct, for the purpose of producing a visual depiction of that conduct, in violation of 18 U.S.C. § 2251(a).

On May 3, 2012, Prince George’s county police offers were called to a home in response to a report of a missing seven-year-old girl, B.H. Police eventually found B.H. who had been sexually assaulted. At a hospital, B.H. was examined and the nurse found that B.H.’s hymen had been torn and that she had an infection, indicating that the sexual activity had also occurred previously. Detective Cleo Savoy interviewed B.H. During the unrecorded portion of the interview, B.H. told Savoy that the Defendant kissed her and had sex with her. However, once the interview began to be recorded, B.H. denied having any sexual intercourse with Defendant. On the same day, police seized Defendant’s cell phone and found several photos of B.H., as well as deleted sexually explicit photos. On May 15, 2012, Martha Finnegan, and FBI child forensic interview specialist, interviewed B.H. During that interview, B.H. told Finnegan that she and Defendant had sexual contact.

At trial, B.H. testified that Defendant had touched her private parts on several occasions and that she was afraid to tell the police the truth in her first interview. She identified herself and Defendant in the pictures from his cell phone, including the sexually explicit photo. Finnegan also testified at trial. As part of her testimony, she evaluated B.H.’s interview with Detective Savoy and explained that it was coercive and did not follow established protocols. Finnegan also testified about her own conversation with B.H., where B.H. told her that Defendant and B.H. had engaged in sexual conduct. At the close of trial, Defendant motioned for acquittal based on insufficient evidence pursuant to Federal Rule of Criminal Procedure 29, which the district court denied. Defendant wa found guilty.

On appeal, the Court noted that it must affirm the district court’s verdict if it is supported by substantial evidence, viewed in the light most favorable to the government. Substantial evidence is “evidence that a reasonable fact finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt. Defendant contended that the government failed to prove one of the elements of § 2251(a) that he acted for the purpose of producing a visual depiction. Section 2251 contains a specific intent element, therefore the government was required to prove that production of a visual depiction was a purpose of engaging in the sexual activity. The Court found that the evidence produced at trial did not support the conclusion that Defendant engaged in sexual conduct with B.H. for the purpose of producing a picture. The fact that Defendant took one photo of B.H. does not show that he engaged in sexual activity with her only to take that picture. The Court stressed that to find otherwise would eliminate the specific intent requirement, thus turning Section 2251 into a strict liability offense. Therefore, the Court held that the government produced insufficient evidence to show that Defendant acted for the purpose of producing a visual depiction of the sexual act.

Accordingly, the Court reversed and vacated the judgment of the district court.

Full Opinion

Meredith Weisler

 

US v. VINSON NO. 14-4078

Decided: November 3, 2015

The Fourth Circuit affirmed the district court’s order dismissing the indictment.

Marshall Vinson (“Vinson”) was charged with “possession of a firearm by a prohibited person” after police officers found a rifle and ammunition at his residence, because the government determined that his prior North Carolina conviction qualified as a “misdemeanor crime of domestic violence.” The government appealed the district court’s grant of Vinson’s motion to dismiss because the court determined that Vinson was not a prohibited person.

The Fourth Circuit first began by looking to the Federal statute that prohibited possession of firearms by those convicted of a “misdemeanor crime of domestic violence” (“MCDV”), and determined that it was necessary to decide if Vinson was a prohibited person by deciding if the underlying state offense had an element of “physical force” by using the “categorical approach” to look at the elements of the prior offense as opposed to the conduct that caused the conviction. The Court also considered a divisible approach for circumstances in which the underlying crime had multiple elements, to determine if those elements in the state statute match the Federal offense. Although under the categorical approach the district court determined that Vinson’s conviction would not qualify under the Federal statute, the government argued that the North Carolina statute was divisible and that the modified categorical approach should be applied, and that in doing so, Vinson’s battery against his wife counted as a prior MCDV such that the district court erred in dismissing the indictment. The government argued that since North Carolina law defined assault through three alternative elements, it was divisible. The court assumed for the purposes of the case, but didn’t actually decide, that the assault definitions amounted to “alternate elements creating separate forms of the offense,” but ultimately found that none of those definitions required the requisite level of intent needed to be considered an MCDV. The Court then looked at MCDV’s definition, and focused on the “use or attempted use of physical force” requirement, and looking at case law, determined that North Carolina requires a defendant to act intentionally to be guilty of assault. Because North Carolina law allowed intent to be established through “culpable negligence,” North Carolina law allows convictions for all forms of assault, and since those forms of assault didn’t categorically qualify as an MCDV, assault was not a divisible approach, and the Fourth Circuit rejected the government’s argument and affirmed the district court’s dismissal of the indictment.

Full Opinion

Jennie Rischbieter

UNITED STATES v. MCLEOD, NO. 14-4766

Decided: October 30, 2015  

The Fourth Circuit concluded that the evidence the government offered with respect to at least four of the defendant’s five burglary convictions did not show that the convictions qualified as “violent felonies” under the Armed Career Criminal Act (ACCA) because the government was unable to demonstrate that the object of each conviction was a building or structure, apart from a vehicle, boat, or airplane.

McLeod pleaded guilty to unlawfully possessing a firearm in May of 2014. Since the presentence report showed that McLeod had five earlier convictions for second-degree burglary, the district court determined at sentencing that those convictions were “violent felonies” and that McLeod therefore qualified as an armed career criminal, requiring a sentence of at least 15 years imprisonment. On appeal, McLeod argues the two issues he preserved: “(1) that the district court should not have been able to enhance his sentence under ACCA because the government did not include his predicate convictions in the indictment and (2) that his 1998 South Carolina convictions for second-degree burglary do not qualify as “violent felonies” for ACCA sentence-enhancement purposes.”

As to McLeod’s first argument, the Fourth Circuit determined that the argument was foreclosed by a decision previously made by the Supreme Court. See Almendarez-Torres v. United States, 523 U.S. 224 (1998). Therefore, since that case is still controlling law, the Fourth Circuit affirmed the district court’s rejection of this argument.

Second, McLeod contended that the district court erred in relying on his 1998 South Carolina convictions for second-degree burglary to enhance his sentence under ACCA, claiming those convictions do not qualify as predicate convictions under the ACCA. Specifically, McLeod argues that the elements of the offense for which he was convicted in South Carolina are broader than generic burglary because the statute prohibits not only the breaking and entering of a building and structure but also of other “edifices and things.” McLeod points out that the statute of conviction also prohibits the breaking and entering of vehicles, boats, or planes. Therefore, he argues that the convictions cannot serve as predicate burglary convictions, which are required to be limited to the breaking and entering into a building or structure. Conversely, the government argued that his previous South Carolina convictions qualify as predicate offenses under the ACCA because the relevant indictments show that his convictions were for “burglary of a building,” which matches the generic definition of burglary determined by the Supreme Court.

The ACCA states that any person convicted under 18 U.S.C. § 922(g) who has three prior convictions for a violent felony shall be imprisoned for not less than 15 years. A violent felony includes the crime of burglary when punishable by imprisonment for a term exceeding one year. When examining burglary as a predicate offense under the ACCA, it intended to refer to a generic definition of burglary and not the state definitions. The Supreme Court defined generic burglary as an “unlawful or privileged entry into, or remaining in, a building or structure, with intent to commit a crime.” When a statute defines burglary with alternative elements such that one alternative corresponds to generic burglary and another does not, a sentencing court may apply the “modified categorical approach,” which allows it to examine relevant court records or documents to find out whether the defendant was convicted of generic burglary or an alternative form of burglary that would not qualify as a predicate offense. Those documents are often limited to the charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial court to which the defendant assented.

Here, McLeod was charged with second-degree burglary of a building under South Carolina law, which includes entering a building without consent. This crime includes a sentence for over one year. At first glance, this seems to mimic the definition of generic burglary; however, in South Carolina a “building” can include a structure, vehicle, watercraft, or aircraft. While the modified categorical approach would allow the district court to determine whether McLeod’s plea involved generic or nongeneric burglary, the government presented no documentation to show that the crime of conviction was generic burglary. Therefore, since the Fourth Circuit could not determine whether McLeod pleaded guilty to generic burglary with respect to four of his convictions, they cannot serve as predicate offenses under the ACCA. McLeod’s conviction was affirmed, but his sentence was vacated and remanded for resentencing.  

Full Opinion

Austin T. Reed

 

U.S. v. ANDREWS, No. 14-4422

Decided: October 30, 2015

In an armed robbery case, the Fourth Circuit found that the District Court properly applied a sentence enhancement against Andrews for obstruction of justice.  On that basis, the Fourth Circuit upheld the sentence enhancement.  

In March, 2011, Andrews entered a Domino’s Pizza in Kannapolis, North Carolina, with a handgun.  He forced an employee at gunpoint into the office, and ordered the manager to open the safe.  When he was told there was nothing in the safe, Andrews stole from the cash register, from two employees, and took the manager’s wallet.  During the encounter, Andrews pointed his gun at the employees, and twice threatened to shoot.  The Domino’s manager reported the robbery right away.  In searching for Andrews, police found an abandoned car.  Inside the car were wallets belonging to Andrews and the manager, a cell phone with photos of Andrews’s family which records showed had been used in Kannapolis near the time of the robbery, a traffic ticket issued to Andrews, sales records showing Andrews owned the car, and a baseball cap matching that described as worn by the robber, which DNA analysis showed belonged to Andrews.  

Andrews was charged with interference with commerce by robbery and carrying and using a firearm during and in relation to a crime of violence in violation of federal statutes.  He pled not guilty, and filed several pre-trial motions including one accusing prosecutors of witness intimidation.  He also filed a notice of alibi with a brief describing expected alibi testimony.  At trial, during opening statement, Andrews’s attorney identified Andrews’s girlfriend and her mother as alibi witnesses, and previewed their testimony.  During the trial, Andrews’s alibi witnesses testified that he was at their house at the time of the robbery, but the mother of one of Andrews’s children testified that he had visited her the night of the robbery, and told her he robbed a Domino’s store.  The trial jury found Andrews guilty on all charges.  The Fourth Circuit reviewed an appeal, found that Andrews was no longer eligible to be sentenced as a career offender, vacated his sentence, and remanded for resentencing.  

On remand, the Probation Office calculated Andrews’s total offense level as 22.  The government requested a two-level enhancement for obstruction of justice, and the Probation Office added this enhancement to its recommendations.  Andrews objected to the enhancement.  The District Court found that Andrews knew his attorney would present the alibi witnesses, and must have known what they would say.  On this basis, the District Court found sufficient evidence that Andrews obstructed justice by allowing the false testimony without objecting, and thus was subject to the enhancement.  Andrews was sentenced to 115 months imprisonment on one charge, and 84 months imprisonment on the second charge served consecutively, followed by five years of supervised release.  

Andrews appealed to the Fourth Circuit arguing that the sentencing enhancement was improper.  The Fourth Circuit found that an enhancement for obstruction of justice is proper under the U.S. Sentencing Guidelines if there is a proper finding of obstruction, even if there was no specific finding of suborning perjury.  The Fourth Circuit analyzed the facts of the case.  A large amount of evidence placed Andrews at the scene of the crime.  Further, Andrews knew what his alibi witnesses would testify to, as shown in his notice of alibi, accompanying brief, his attorney’s opening statement, and his motion accusing the prosecutors of witness intimidation, including intimidating one of his alibi witnesses.  Even if Andrews didn’t know what the first alibi witness would say, the testimony of the first witness put him on notice of what the second witness would say.  Based on these elements, the Fourth Circuit held that the District Court properly found that Andrews obstructed justice by allowing his alibi witnesses’ false testimony, and thus upheld the sentence enhancement.  The Fourth Circuit further found that the sentence enhancement did not penalize Andrews for exercising his Fifth Amendment right to remain silent, nor was Andrews’s Sixth Amendment right to counsel violated.

Full Opinion

Katherine H. Flynn

 

GRIFFIN v. BALTIMORE POLICE DEP’T, NO. 14-1494

Decided: October 27, 2015

The Fourth Circuit affirmed the district court’s ruling.

In 1982, Plaintiff, Wendell Griffin was convicted for the murder of James Williams Wise and also for related weapons charges. In June of 2010, Griffin filed a pro se petition seeking post-conviction DNA testing of certain evidence. Griffins’ appointed counsel filed a Maryland Public Information Act request, which provided documents that allegedly revealed that Baltimore City Police Department detectives withheld from the defense certain exculpatory evidence.  On February 2, 2012, Griffin moved for state post-conviction relief and on May 23, 2012, Griffin was placed on three years unsupervised probation. Griffin then sued the Baltimore City Police Department and three of its former detectives under 42 U.S.C. § 1983 for damages. The district court dismissed his claims pursuant to the bar set forth in Heck v. Humphrey, stating that Griffin had “ample opportunity to seek federal review . . . prior to his release from incarceration.”

In Heck, the United States Supreme Court prohibited § 1983 claims from implicating issues more appropriately resolved via federal habeas corpus or state post-conviction relief. Griffin argued that his claims were not subject to Heck because they fell under an exception recognized in Wilson v. Johnson. Wilson recognizes an exception to the Heck bar in cases where a litigant could not have sought habeas corpus relief while in custody. The Court found, however, that Griffin did not lack access to habeas relief while he was in custody. Griffin had three decades to seek habeas relief, whereas Wilson only had a few months to make a habeas claim. Griffin was even able to bring a federal habeas claim while in custody. Although his petition was denied, the fact that he was able to file it demonstrates the differences between his case and Wilson. Therefore, the Court found that Griffin had no obstruction to habeas access allowing an expansion of the Heck exception. The Court noted that its decision sounded in procedure and not substance. Its holding was not meant to bar Griffin from seeking a remedy for possible police misconduct, only that the vehicle he chose was not appropriate under Supreme Court and circuit precedent.

Accordingly, the Court affirmed the judgment of the district court.

Full Opinion

Meredith Weisler

 

U.S. v. PATIUTKA, NO. 14-4932

Decided: October 23, 2015

The Fourth Circuit affirmed the lower court’s ruling.

The district court rejected all of the Government’s contentions that that the evidence was admissible under Fourth Amendment exceptions, granted the defendant’s motion to suppress, and the Government appealed.

After determining that the standard of review on a motion to suppress was de novo, and then examined the two exceptions to the warrant requirement that the Government set forth. The first exception that the Government contends applied was that the search was incident to Patiutka’s arrest. Although the Court agreed that a search incident to an arrest may be made under appropriate circumstances, and cited to appropriate case law, in this instance, the Court found that the officers did not have probable cause to arrest Patiutka for any offense after he revoked consent for officers to search his car. The Court pointed to the district court’s findings that Trooper Cox’s testimony regarding probable cause was not held to be creditable, and specifically noted that the video shown at the hearing showed that Cox stopped the search as soon as Patiutka objected, which indicated that the search was purely consent-based. Therefore, because Trooper Cox did not have probable cause to arrest Patiutka, the search incident to arrest exception was inapplicable.

As to the Government’s second argument, that the search was valid under the automobile exception, the Court again found that this argument was without merit. After carefully setting forth the automobile exception rule, as well as the probable cause definition, the Court then delineated the facts that the district court used in making its determination, and agreed with the district court that those facts did not provide an adequate objective basis for finding probable cause to search an automobile. Because the Court found that there were legitimate, law-abiding reasons for Patiutka to have had credit card readers, iPads, and suitcases in his car, and that at best Trooper Moore potentially had a “reasonable articulable suspicion” that should have resulted in further questioning, the automobile exception did not apply.

Although the Government attempted to argue that the “collective-knowledge doctrine” should impute Trooper Cox’s suspicion about Patiutka’s identification to Trooper Moore, the Court agreed with the district court that the doctrine did not apply, albeit for a slightly different reason. The Court found that because Trooper Cox had no probable cause to “communicate to a fellow officer,” and that Trooper Moore continued the search even though Trooper Cox had halted the search, the collective knowledge doctrine was insufficient to provide probable cause. For those reasons, the Fourth Circuit held that neither of the exceptions applied and affirmed the district court’s grant of Patiutka’s motion to suppress.

Full Opinion

Jennie Rischbieter

U.S. v. SLOCUMB, NO. 14-4733

Decided: October 22, 2015  

The Fourth Circuit reversed the district court’s denial of defendant’s motion to suppress, vacated the defendant’s conviction and sentence, and remanded for further proceedings after determining the Culpeper, Virginia, Police Department lacked reasonable suspicion to detain the defendant.

The Culpeper Police department executed a search warrant on a house that was suspected for drug activity. The police used the parking lot of Culpeper Salvage, located across the street, as a staging area for the search. When the officers arrived, they found Slocumb, his girlfriend, Lewis, and an infant in the parking lot transferring a child seat from one car to the other. The officers observed Slocumb hurrying Lewis along, and Slocumb told an officer that one of the cars had broken down. The officers informed Slocumb and Lewis to not leave and had an officer wait with them as the other officers executed the warrant.

At some point, the officer waiting with Slocumb and Lewis asked Slocumb for identification. Slocumb cooperated and gave the officer the name “Anthony Francis.” Further, Slocumb declined to give the officer consent to search him and answered inconsistently to several questions. When Lewis was asked what Slocumb’s name was, she responded that his name was “Hakeem,” which officers recognized as someone who was under investigation for drug trafficking. Slocumb was promptly arrested for providing a false name, and officers found approximately $6,000 on his person. When asked by officers, Lewis gave permission for the search of one of the vehicles. The officers found methamphetamine, cocaine powder, cocaine base, and marijuana in the car. At that moment, Slocumb claimed ownership of the drugs. A subsequently obtained search warrant for Slocumb’s residence uncovered more drugs and paraphernalia.  

Slocumb made a motion to suppress the physical evidence seized and the statements made. The district court denied the motion, finding that his initial detention was supported by reasonable suspicion, and the officers had probable cause to arrest him. Additionally, the district court found Lewis had authority to consent to the search of the vehicle. Slocumb appealed.

In review of Slocumb’s seizure, the court looks at the totality of the circumstances to determine whether the officer had reasonable suspicion of criminal activity. The district court determined that factors such as the high-crime area, the lateness of the hour, the fact that the business had been closed for many hours, and Slocumb’s individual behavior are permissible factors that can contribute to a finding of reasonable suspicion. However, the Fourth Circuit determined that these factors were insufficient to support reasonable suspicion. When a defendant does not try to flee or leave the area, we have found reasonable suspicion on a showing of more “extreme” or unusual nervousness or acts of evasion. It is important to not overplay a suspect’s nervous behavior in situations where citizens would normally be expected to be upset. Here, Slocumb’s behavior was normal considering the situation, and his behavior did not give rise to reasonable suspicion. Therefore, the district court erred in denying Slocumb’s motion to suppress.

Full Opinion

Austin T. Reed

 

U.S. v. DUCTAN, NO. 14-4220

Decided: September 2, 2015

In this case about the Sixth Amendment right to counsel, the Fourth Circuit held that Ductan neither forfeited nor waived his right to counsel.  Based on these findings, the Fourth Circuit vacated Ductan’s conviction on drug charges, and remanded the case for a new trial.  

In April, 2004, a tip from a confidential informant to police that Ductan offered to sell him 100 pounds of marijuana led to a controlled buy.  During the controlled buy, Ductan arrived with two other men, showed the informant marijuana, and threw a firearm to the ground when police closed in on him.  Ductan was charged with state charges for trafficking in marijuana and carrying a concealed firearm, but the charges were dismissed.  

In September, 2004, Ductan and his co-conspirators were indicted by a federal grand jury for conspiracy to possess with intent to distribute marijuana, possession with intent to distribute marijuana and aiding and abetting the same, and carrying a firearm during and in relation to a drug trafficking crime.  In his first appearance before the federal magistrate, Ductan said that he had retained an attorney, Brant, but Brant moved to withdraw, saying that Ductan was uncooperative, would not sign a discovery waiver, and failed to communicate with him.  At the hearing on Brant’s motion, Ductan told the magistrate that he did not consent to appointment of a new lawyer, but did not want to represent himself.  The magistrate explained that Ductan could represent himself, have counsel appointed, or hire new counsel.  At that point, Ductan began making “nonsense statements.”  As the hearing continued, Ductan said more nonsensical things, and the judge asked whether Ductan was under the influence of drugs or alcohol.  The magistrate said that he would not appoint new counsel, because Ductan could be said to have waived his right by making nonsense statements.  The magistrate told the Federal Defender to appoint standby counsel, and granted Brant’s motion to withdraw.

One month later, standby counsel, Lee, moved to withdraw because Ductan did not want his representation, and would not sign a discovery agreement.  At a hearing on the motion, Ductan said he felt Lee had spent too little time with him to represent him.  The judge explained that Lee was serving only in a standby capacity because Ductan had waived his right to appointed counsel at the earlier hearing, and was thus representing himself.  Ductan said he did not wish to have Lee represent him, and was looking for a private attorney.  The magistrate judge denied Lee’s motion to withdraw, told Ductan he was proceeding pro se unless he hired an attorney or worked with Lee, and explained the dangers of pro se representation to Ductan.  

At a hearing the day before jury selection, Ductan made a nonsense comment, said he was looking for a private attorney, and said he could not represent himself.  At jury selection, Ductan said he was not prepared to move forward, and made several nonsense comments during the venire.  The magistrate told him to stop interrupting.  When Ductan continued to interrupt, the magistrate held him in contempt, and placed him in a holding cell outside the courtroom where he could observe, but not participate in, jury selection.  Lee remained in the courtroom for jury selection, introduced himself to prospective jurors, and attended a bench conference, but did not strike jurors, or otherwise participate in jury selection.  Once the jury was empaneled, the magistrate brought Ductan back to the courtroom, invited him to participate in the trial, and told him he would purge the contempt citation if he followed court rules.  Ductan said he did not want to represent himself, did not want Lee’s representation, and would like to find private counsel.  The magistrate said that Ductan seemed to be choosing to proceed pro se because the court was ready to begin.  Ductan disagreed with that characterization, and said he did not want this type of representation.  The district court proceeded with the trial, telling Ductan that he was proceeding pro se, but could have Lee’s assistance.  Following a normal trial, the jury found Ductan guilty on all three counts.  Per his request, Ductan was represented by an appointed attorney at sentencing.  He was sentenced to a total of 84 months imprisonment.  Ductan appealed on the basis that his Sixth Amendment right to counsel was violated when the magistrate incorrectly found that he forfeited or waived his right to counsel, and when the magistrate deprived him representation during jury selection by removing him from the courtroom without counsel representing him in the courtoom.

The Fourth Circuit held that the magistrate erred in finding that Ductan forfeited or waived his right to counsel.  Under Fourth Circuit precedent, the right to counsel can only be relinquished through waiver, and the waiver must be knowing, intelligent, clear, and unequivocal.  The Court found that Ductan’s behavior did not meet that standard, and even if he had clearly and unequivocally waived his right to counsel, the magistrate judge did not complete the Faretta inquiry, so no valid waived occurred.  Finding this error sufficient as a violation of Ductan’s right to counsel, the Fourth Circuit vacated Ductan’s conviction and remanded for a new trial.

Judge Davis wrote a separate concurring opinion explaining how the error during jury selection was an independent ground for vacating Ductan’s conviction.  He argued that representation during jury selection is critical.  If a disruptive pro se defendant must be removed from the courtroom, the proper procedure is thus for the court to revoke the right to self-representation, and appoint an attorney.  Here, Lee was not representing Ductan.  Thus, the magistrate erred in not providing Ductan representation during jury selection, and thereby violated Ductan’s right to counsel.

Full Opinion

Katherine H. Flynn

 

U.S. v. BOLLINGER, NO. 14-4086

Decided: August 19, 2015

The Fourth Circuit affirmed the district court and held that 18 U.S.C. § 2423(c) is constitutional because of the Foreign Commerce Clause.

Defendant, Larry Bollinger (“Bollinger”), is an ordained Lutheran minister who moved to Hati in 2004 to run a large ministry outside of Port Au Prince with his wife. In 2009, Bollinger, a self-proclaimed sex addict, began molesting young girls. Bollinger molested four girls. The first was a 16-or 17-year-old and the other three were each 11-years-old. Bollinger testified that the girls would come to the ministry and make themselves available to him and he then “took advantage of them.” After returning to the U.S., the minister attended a three-day intensive therapy session with Dr. Magness, a psychologist who treats clergy members who have sex addictions. Bollinger told Magness about the molestations, who had to report the molestations according to an informed consent form Bollinger signed. Magness reported the molestations and Bollinger was later arrested for the offenses.

Bollinger was charged with two counts of engaging in an illicit sexual act with a minor after traveling in foreign commerce, in violation of 18 U.S.C. § 2423(c) and (e). Bollinger moved to dismiss the indictment, arguing that Section 2423(c) is unconstitutional because it criminalizes non-commercial activity and exceeds Congress’s authority to regulate commerce under the Foreign Commerce Clause.  The district court denied Bollinger’s motion to dismiss and found that Congress had authority under the Necessary and Proper Clause to enact the statute as a rational means to implement the Optional Protocol. The district court then sentenced Bollinger to 25 yeas imprisonment. On appeal, Bollinger challenged the constitutionality of 18 U.S.C. § 2423(c) and the length of his prison sentence.

Regarding the constitutionality of 18 U.S.C. § 2423(c), the Fourth Circuit held that the Foreign Commerce Clause allows Congress to regulate activities “that demonstrably affect” foreign commerce. The Court reiterated that a rational basis exists to determine whether defendant’s activities, taken in the aggregate, substantially affect interstate commerce. Here, the Court concluded that it is rational to believe that prohibiting non-commercial sexual abuse of children abroad by Americans has a demonstrable effect on sex tourism and the commercial sex industry. Accordingly, the Court found 18 U.S.C. § 2423(c) to be constitutional as a result of the Foreign Commerce Clause.

As for Bollinger’s 25-year prison term, the Court disagreed with Bollinger’s argument that the district court committed both procedural and substantive error with regards to his sentence. Procedurally, the Court found that the district court had a “reasoned basis” for its sentence because it expressly recognized that Bollinger had self-reported and considered all of the other mitigating factors in its decision. Substantive reasonableness is determined by looking at the totality of the circumstances to determine whether the district court abused its discretion in applying the factors to be considered in imposing a sentence, per 18 U.S. Code § 3553(2). In this case, the Court determined that the district court’s sentence of a 60% downward variance was not unreasonable in light of its deferential standard of review, the statements of the victims, and the minister’s abuse of authority.

Full Opinion

Meredith Weisler

 

U.S. v. FUERTES, NO. 13-4755

Decided: August 18, 2015  

The Fourth Circuit held that it was appropriate for the district court to allow evidence of violent acts and threats of violence against competitors and that it was appropriate for the government’s expert witness to testify. Additionally, the Fourth Circuit affirmed the Fuertes judgment in No. 13-4755 and under Ventura’s appeal, No. 13-4931, concluded that the conviction under 18 U.S.C. § 924(c) was erroneous because sex trafficking by force, fraud, or coercion is not categorically a crime of violence.

Ventura, with the assistance of Fuertes, was operating brothels in Annapolis, Maryland. To guarantee exclusivity of their business, Ventura and Fuertes threatened competitors with violence. Ramirez, an Annapolis-area pimp, received threatening phone calls and eventually was murdered. Following the murder, Fuertes was arrested after an unrelated traffic stop. While providing booking information, Fuertes provided a phone number that matched one of the numbers used to make threatening calls to Ramirez. With warrants, police later uncovered evidence of the brothel and that Ventura was the subscriber for the other number that made the threatening calls to Ramirez. While investigating both Fuertes and Ventura for the murder of Ramirez, they began to uncover evidence of the brothel. The police uncovered expansive evidence of the illegal operations in which Ventura and Fuertes were participating.

On November 29, 2011, a federal grand jury returned an indictment, charging Fuertes and Ventura with “conspiracy to transport an individual in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 371 (Count One); transportation of individuals in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2421 (Count Two); and sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a) (Count Six).” Further, Ventura was charged separately with “coercing or enticing an individual to travel in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2422(a) (Count Three); transportation of individuals in interstate commerce for the purpose of prostitution, in violation of 18. U.S.C. §2421 (Counts Four and Five); and possession and use of a firearm in relation to a crime of violence – namely, sex trafficking by force, fraud, or coercion – in violation of 18 U.S.C. § 924(c) (Count Seven).”

At trial, a jury found Ventura guilty of all counts and Fuertes guilty of Count One and the part of Count Six that was based on events after December 24, 2008. The jury found Fuertes not guilty of Count Two. On appeal, Fuertes and Ventura argue that the district court erred in admitting evidence of violent acts and threats of violence against competitors because: “(1) such evidence was offered for no purpose other than to establish their bad character; (2) the evidence was not relevant, as it did not make it more likely that they actually committed the sex trafficking offenses for which they were charged; and (3) even if the evidence was relevant, its probative value was far outweighed by the danger of unfair prejudice.”

Rule 404(b) of the Federal Rules of Evidence bans evidence of past crimes or wrongs solely to prove a defendant’s bad character; however, such evidence can be admissible for other purposes, such as proof of motive, opportunity, intent, or knowledge. To be admissible under this rule, the evidence of “bad acts” must be relevant to issues other than character, needed to prove an element of the crime charged, reliable, and “its probative value must not be substantially outweighed by its prejudicial nature.”

The Fourth Circuit determined that the district court did not err in admitting evidence of violent acts and threats of violence against the competitor pimps. The evidence was relevant to Ventura’s familiarity with the prostitution business, as well as their intent to participate in the business, and that they conspired with each other to do so. The decision of the district court to admit evidence of violence and threats of violence was neither legally erroneous nor an abuse of discretion.

Further, Fuentes and Ventura argue that there was error in allowing Dr. Baker, an expert witness to testify regarding the injuries of one of the prostitutes. Rule 702 of the Federal Rules of Evidence provides an expert witness is qualified by knowledge, skill, experience, training or education. The Fourth Circuit determined there was no error by the district court to allow Dr. Baker to testify despite her focus being on child abuse because there is no distinction between adults and children when it comes to cutaneous findings.

Additionally, Ventura claims the district court erred in denying his motion of acquittal for Count Seven because sex trafficking by force, fraud, or coercion was not a predicate offense for his § 924(c) conviction. To be convicted under § 924(c), the government must show Ventura (1) used or carried a firearm and (2) did so during and in relation to a crime of violence. The Fourth Circuit determined that sex trafficking by force, fraud, or coercion does not qualify categorically as a crime of violence and; therefore, the district court committed obvious error in its instruction to the jury.

Finally, Fuertes argues that the district court erred in denying his motion for acquittal on Count Six. He stated that there was insufficient evidence that he knew or recklessly disregarded that one of the prostitutes was coerced or forced to engage in commercial sex acts. However, the Fourth Circuit determined the district court was proper because a reasonable jury could have found that Fuertes knew or recklessly disregarded that the prostitute was forced or coerced to commit commercial sex acts.

Full Opinion

Austin T. Reed

 

U.S. v. SAID, NO. 14-4413

Decided: August 13, 2015

In this piracy case, the Fourth Circuit rejected the defendants’ objections to the district court’s failure to dismiss piracy charges, jury instructions on piracy, and sufficiency of evidence on piracy and other charges.  The Fourth Circuit found merit in the Government’s appeal of the district court’s finding that the statutorily mandated life sentences for piracy violated the Eighth Amendment prohibition against cruel and unusual punishment.  On this basis, the Fourth Circuit reversed the district court’s Eighth Amendment Order, vacated defendants’ sentences, and remanded for resentencing.

In early 2010, seven Somalis including Said piloted a boat into the Gulf of Aden for the purpose of seizing a merchant ship.  Their plan was foiled when they were stopped by a British warship, the HMS Chatham, and ultimately sent home.  In April, 2010, another group of seven Somalis including Said and three of his earlier accomplices took a boat into the Gulf of Aden.  Incorrectly thinking that it was a merchant ship, the Somalis attacked a United States Navy warship, the USS Ashland.  During the attack and resulting response from the Ashland, several of the Somalis sustained injury, one Somali died, and the Somali boat was destroyed.  There was little to no damage to the Ashland and her crew.  The crew of the Ashland apprehended the Somalis.

In April, 2010, a grand jury in the Eastern District of Virginia indicted the six remaining Somalis (the six).  In July of that same year, the grand jury, in a superseding indictment based only on the Ashland incident, indicted the six for various crimes, including piracy under 18 U.S.C. § 1651.  In July, the six moved to dismiss the piracy charge on the basis that piracy required robbery at sea, and because they had not seized the Ashland, they could not be guilty of robbery at sea.  The district court granted their motion, and dismissed the piracy charge.  In August, one of the six agreed to assist the government in the prosecution of the remaining five Somalis (the five), and subsequently pled guilty to three non-piracy charges.  The government appealed the district court’s dismissal of the piracy charges.  Following the Fourth Circuit’s holding in United States v. Dire, which found that the definition of piracy did not require robbery on the high seas, the Fourth Circuit in May, 2012, vacated the dismissal of the piracy charges, and remanded for further proceedings.  

In August, 2012, the grand jury indicted the five in a second superseding indictment on piracy and related charges which incorporated both the Chatham and Ashland incidents.  The five again moved to dismiss the piracy charges, and the district court rejected the motion based on Dire.  At trial, the five moved unsuccessfully for acquittal of charges, and objected unsuccessfully to jury instructions based on Dire.  In February, 2013, the five were convicted on all counts.  They again moved unsuccessfully for acquittal.  Before sentencing, the five moved to invalidate the mandatory life sentence under 18 U.S.C. § 1651 as constituting cruel and unusual punishment in violation of the Eighth Amendment.  Applying the two prong test from Graham v. Florida for as-applied non-capital punishment, the district court first found that the there was a gross disproportion between the crime here and the life sentence, because the five had in effect committed only attempted piracy.  Under the second prong of the test, the court found the life sentence disproportionate in relation to other crimes requiring mandatory life sentence which nearly all involve the death of another, and in relation to global sentences for piracy, which average 14 years.  On the basis of this analysis, the district court found the mandatory life sentences for piracy cruel and unusual, and sentenced the five to from 360 to 500 months imprisonment, of which 140 to 264 months were for piracy.  The government appealed the district court’s decision not to impose the mandatory life sentence under 18 U.S.C. § 1651.  The five cross-appealed the court’s failure to dismiss the piracy charge, jury instructions on piracy, and sufficiency of evidence supporting their convictions.

The Fourth Circuit first analyzed the five’s objections.  The Court held that the district court did not err in declining to dismiss piracy charges, nor in instructing the jury on piracy.  The Court based this finding on Dire’s holding that piracy did not require robbery on the seas, which the five conceded the district court had to, and did, follow.  The Fourth Circuit then held, based on Dire and the trial evidence, that there was sufficient evidence to prove a case against the five on piracy.  The Court also held, based on the trial evidence, that there was sufficient evidence against four of the five of conspiracy, intent to perform an act of violence against an individual on a ship, and consequently against two of the five on related firearms charges.  

The Fourth Circuit next analyzed the government’s objection to the finding that the statutorily mandated life sentences for piracy violated the Eighth Amendment.  Using the Graham v. Florida test, the Fourth Circuit found that the first prong was not met, because it is hard to meet the grossly disproportionate standard for non-capital sentences, and Congress had rationally decided that piracy should be harshly punished.  Because the first prong of the test was not met, the Fourth Circuit did not analyze the second prong.

On this basis, the Fourth Circuit affirmed the conviction of the five, reversed the district court’s holding in regards to the Eighth Amendment, vacated the sentences of the five, and remanded for resentencing.  Judge Davis wrote a separate concurring opinion to note that not all piracy offenses are alike.  Though he found the Fourth Circuit’s holding correct under the current law, he noted that Congress could allow federal judges more discretion in sentencing those convicted of piracy, so that the sentences would more accurately reflect the actual crimes committed.

Full Opinion

Katherine H. Flynn

 

U.S. v. SURRATT, NO. 14-6851

Decided: July 31, 2015

The Fourth Circuit affirmed the district court’s ruling.

In 2005, Raymond Surratt (“Surratt”) was found guilty of conspiracy to distribute cocaine and sentenced to life imprisonment. The Government sought enhanced penalties based on Surratt’s criminal history. According to the Government, if two or more of Surratt’s prior convictions constituted “felony drug offenses,” then Surratt would face a mandatory term of life imprisonment. Before Surratt’s sentencing, the Fourth Circuit decided United States v. Harp, which held that a North Carolina drug conviction was a “felony drug offense” if “the maximum aggravated sentence that [the state court] could [have] imposed for that crime upon a defendant with the worst possible criminal history” exceeded one year. The district court sentenced Surratt to life imprisonment. On appeal, the Fourth Circuit affirmed Surratt’s sentence.  Surratt then filed a post-conviction relief motion in 2008, but both the district court and Fourth Circuit denied that as well. More than three years after his first motion was denied, the Fourth Circuit decided Simmons, which overruled Harp. In Simmons, the Court held that a prior North Carolina conviction will constitute a felony for purposes of an enhanced punishment only if the prior conviction was punishable for more than one year of imprisonment as to that defendant. Surratt and the Government agreed that only one of his prior convictions would qualify was a “felony drug offense” under Simmons.

Hoping to capitalize on the Simmons decision, in the Fourth Circuit, Surratt filed another motion for post-conviction relief under 28 U.S.C § 2255. The Court denied the motion because it fell outside of the statutory exceptions enumerated under §2255. Simultaneously, Surratt filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking relief under Simmons. However, as a federal prisoner, Surratt could not challenge his conviction under Section 2241 unless 28 U.S.C § 2255(e), the “savings clause,” applied, and the district court concluded that it did not give the court jurisdiction to consider Surratt’s claim.

On appeal, the Fourth Circuit stressed that it was not unsympathetic to the gravity of Surratt’s sentence of life imprisonment. However, the Court determined that Congress was given the power to define the scope of the writ of habeas corpus, and Congress used that power to carefully limit the circumstances in which a Section 2241 petition can be brought. The Court stressed that Section 2255(e) preserves “only the chance to request relief, not the ultimate and absolute right to obtain it.” Surratt’s case did not fall under one of the limited circumstances under Section 2255(e) and therefore, the Court held that the district court lacked the jurisdiction to hear Surratt’s § 2241 petition.

Dissenting, Justice Gregory argued that the role of habeas corpus is to protect against convictions that violate a fundamental fairness. He argued that the plain language of the United States habeas corpus statutes, precedent, and the Constitution demands that Surratt should not die in prison.

Full Opinion

Meredith Weisler

 

UNITED STATES v. VINSON, NO. 14-4078

Decided: July 21, 2015  

The Fourth Circuit held that the district court erred in dismissing the indictment against the defendant. The Fourth Circuit determined the analytical approach called the “modified categorical approach” applies to this case. Therefore, the defendant was convicted of a qualifying misdemeanor crime of domestic violence, and the indictment should be reinstated.

During a consensual search of Rodney Vinson’s residence, police officers found a rifle and ammunition. After determining that Vinson had a prior North Carolina misdemeanor conviction of domestic violence under 18 U.S.C. § 921(a)(33)(A), the government charged Vinson with possession of a firearm by a prohibited person under 18 U.S.C. § 922(g)(9). Possession of firearms by persons convicted of a “misdemeanor crime of domestic violence” is prohibited. 18 U.S.C. § 922(g)(9). The district court granted the defendant’s motion to dismiss, concluding that the defendant was not a prohibited firearm possessor because the relevant state statute did not qualify as a misdemeanor crime of domestic violence.

When determining whether a prior conviction qualifies the defendant as a prohibited person under § 922(g), the court applies a categorical approach. Under the categorical approach, the court looks “only to the fact of conviction and the statutory definition of the prior offense…focus[ing] on the elements of the prior offense rather than the conduct underlying the conviction.” United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013). The categorical approach can be modified and can be used in situations where the underlying state crime “consists of the multiple alternative elements creating several different crimes, some of which would match the generic federal offense and others that would not.” Omargharib v. Holder, 775 F.3d 192, 197 (4th Cir. 2014). A state crime is divisible for purposes of applying the modified categorical approach only if at least one of the categories into which the crime may be divided constitutes, by its elements, a qualifying predicate offense. Cabrera-Umanzor, 728 F.3d at 352.

The district court concluded that the North Carolina state crime was not divisible and that the modified categorical approach was therefore inapplicable. Under the categorical approach, the district court concluded that a violation of the North Carolina statute did not amount to a misdemeanor crime of domestic violence (MCDV) because the use or threatened use of physical force is not an element of assault under North Carolina law.

The question for the Fourth Circuit is whether Vinson’s conviction under N.C. Gen. Stat. § 14-33(c)(2) qualifies as a conviction for a MCDV, defined by 18 U.S.C. § 921(a)(33)(A). The government contends that the modified categorical approach should have been applied by the district court. Any convictions for the completed-battery form of assault would necessarily include the use of physical force sufficient to satisfy the federal definition of an MCDV. The Fourth Circuit determined that the kind of conduct proscribed by the different formulations of assault should be treated as separate crimes warranting the use of the modified categorical approach. When determining the divisibility of a state crime, the Fourth Circuit looks to the manner in which the offense is charged to the jury. Omargharib, 775 F.3d at 199. In North Carolina, a single definition of assault is typically given, and that definition is nothing more than a description of the charged conduct. The jury instructions, with their focus on the single form of assault, implicated by the underlying facts, indicates that the alternative formulations of assault are alternate elements, not alternate means. The Fourth Circuit concluded that for purposes of inquiry under 18 U.S.C. § 922(g)(9), the attempted-battery and completed-battery forms of assault effectively create separate crimes with separate elements.

Further, the Magistrate’s Order charges Vinson with assault by completed-battery, which establishes that the various formulating of assault are alternate elements, which establishes that the assault is divisible. Because the Fourth Circuit determined the offense to be divisible, the modified categorical approach is applicable, and under this approach, Vinson’s prior conviction qualifies as a MCDV. Therefore, the Fourth Circuit held that the district court erred by dismissing the case and remanded to the district court to reinstate the indictment.

Dissenting, Justice Gregory stated that North Carolina’s common law crime of assault is ambiguous and/or inconsistently applied. For that reason, Gregory stated it would be smart to err on the side of constitutional caution, construing the state law in a way that minimizes the danger of the Sixth Amendment by imposing a sentence based on a fact that need not be found beyond a reasonable doubt. Additionally, the modified categorical-approach should only be applied in a narrow range of cases. Gregory could not agree with the conclusion of the majority that the North Carolina crime of assault encompasses functionally separate alternative offenses such that the modified categorical approach would be permissible.

Full Opinion

Austin T. Reed

 

UNITED STATES v. MCRAE, NO. 13-6878

Decided: July 13, 2015  

The Fourth Circuit held that the recent Supreme Court jurisprudence is clear that the defendant’s motion constitutes a mixed Federal Rules of Civil Procedure 60(b) and 28 U.S.C. § 2253(c)(1)(B) and remanded to the district court to allow the defendant the opportunity to decide whether to abandon his improper claim or to proceed with a successive habeas petition.

In 2004, Immigration and Customs Enforcement (ICE) began investigating McRae’s codefendant, Rodney Green, after becoming suspicious of drug trafficking. The ICE Agent learned that learned that Green and McRae had traveled to Jamaica along with other women, Spears, Bailey, and Harris. The women were stopped at Charlotte Douglas International Airport and customs agents seized cocaine and marijuana. Bailey identified McRae, and he was later arrested and charged with four drug charges in February 2005. After a three-day trial in September, McRae was convicted of all charges and was sentenced to 210 months imprisonment.

McRae filed a petition in 2008 under 28 U.S.C § 2255 to vacate the sentence claiming ineffective assistance of counsel at trial and prosecutorial misconduct. Later without holding an evidentiary hearing, the district court granted the government’s motion for summary judgment and the Fourth Circuit determined that McRae could not appeal absent a Certificate of Appealability (COA). After unsuccessfully filing petitions for rehearing and a writ of certiorari, he filed a motion entitled “Motion for Relief from Judgment 60(b)(1)(3)(6).” In his motion he alleged five errors in the district court’s § 2255 proceedings: 1) the district court falsely stated that the court had not mentioned counsel’s failure to move to suppress when denying counsel’s motion for voir dire; 2) the district court mistakenly stated that McRae admitted to knowing Bailey; 3) the district court did not consider every statement made by McRae in determining whether his counsel was ineffective for failing to move to suppress; 4) the district court mistakenly attributed one of the ICE Agent’s testimony that McRae knew his rights; and 5) the district court misquoted the ICE Agent as telling McRae an attorney would be appointed for him if he could not afford one. McRae’s Rule 60(b) motion for lack of subject-matter jurisdiction was dismissed and the court held that the motion was a successive § 2255 motion for which he failed to obtain preauthorization under 28 U.S.C. § 2244(b)(3), and declining to issue a COA. The issue for the Fourth Circuit is whether McRae’s appeal of the district courts dismissal of his Rule 60(b) motion as an unauthorized § 2255 motion is subject to the COA requirement.

McRae argues that the district court erred in treating his motion as a successive habeas petition rather than a mixed Rule 60(b)/§ 2255 motion, and that this Court may review the district court’s determination without first issuing a COA. In a habeas proceeding, a Rule 60(b) motion which attacks “the substance of the federal court’s resolution of a claim on the merits” is not a true Rule 60(b) motion, but instead a successive habeas petition. Gonzales v. Crosby, 545 U.S. 524, 531-32 (2005). The district court does not allow a successive habeas petition to be filed without preauthorization from a court of appeals. The court of appeals may issue a COA only if the applicant has made a substantial showing of the denial of a constitutional right. However, a Rule 60(b) motion that attacks a defect in the habeas proceedings is a true Rule 60(b) motion and is not subject to the preauthorization agreement.

The Fourth Circuit held that there was no need to decide whether it needed to issue a COA before determining whether the district court erred in dismissing McRae’s purported Rule 60(b) motion as an unauthorized successive habeas petition. Both parties agree that the district court erred in dismissing McRae’s motion as an impermissible successive § 2255 petition. McRae argues, and the government agrees, that his first, second, fourth, and fifth claims are properly categorized as Rule 60(b) claims. However, the government contends that 1) McRae’s Rule 60(b) claims were untimely, and 2) he failed to make the requisite showing of extraordinary circumstances.

Under the Federal Rules of Civil Procedure, Rule 60(b) motions must be made no more than a year after the entry of judgment or order of the date of the proceeding. McRae filed his motion nearly 18 months after the district court denied the § 2255 motion. Therefore, the government argues that the motion is barred. However, McRae argues that this decision should be made by the district court so he has the opportunity to come forward with evidence that might justify the application of equitable tolling or otherwise establish the motion should not be time-barred. Therefore, the Fourth Circuit determined that the proper action was to remand the case back to the district court.

Dissenting, Justice Motz determined it was inappropriate for the majority to hold that a habeas petitioner need not obtain a COA before appealing a district court’s order denying a Rule 60(b) motion as an improper successive habeas petition. Justice Motz believed that this holding was contradictive to binding circuit precedent which requires the dismissal of this appeal.

Full Opinion

Austin T. Reed

U.S. v MCDONNELL NO. 15-4019

Decided: July 10, 2015

The Fourth Circuit affirmed the judgment of the district court.

This case was an appeal of a jury trial that found Robert McDonnell and his wife guilty of accepting bribes in exchange for helping a Virginia company acquire testing at a state university for a dietary supplement developed by the company. Specifically, the jury found McDonnell guilty of eleven counts of corruption and not guilty on the two counts of making a false statement. McDonnell appealed, challenging the jury instructions, claiming there was insufficient evidence against him, that he and his wife’s trials should have been severed, that his Sixth Amendment rights were violated during voir dire, and that the district court incorrectly ruled on several evidentiary issues.

After a lengthy description of the alleged occurrences between McDonnell, his wife, and Williams, the Fourth Circuit began its analysis by reviewing the motion for severance for abuse of discretion. Since McDonnell and his wife were defendants together as members of a conspiracy, the Court noted that McDonnell needed to make an initial showing of a need for his wife’s testimony, and that since he only made vague statements about the need for her testimony, he did not meet the initial threshold. The Court next considered McDonnell’s argument that the district court failed in its voir dire of potential jurors in that it specifically failed to question jurors on the pretrial publicity. Although McDonnell argued that the Supreme Court’s decision in Skilling v. United States supported his position, the Fourth Circuit emphasized that Skilling in fact underscored the very opposite of McDonnell’s argument because Skilling maintained that jury selection remained “particularly within the province of the trial judge.” Although McDonnell challenged the sufficiency of the jury questionnaire, as well as the decision of the trial judge to question the jurors as a group instead of individually about pretrial publicity, the Court found that the trial judge’s questions were “adequate to provide a reasonable assurance that prejudice would be discovered if present.”

The Court then considered McDonnell’s claim that the district court erred multiple times in ruling on evidence. The Court noted that it reviewed such rulings for abuse of discretion, “affording substantial deference to the district court.” After considering the exclusion of expert testimony, the admission of statements of economic interest, admission of other gifts evidence, admission of email exchange regarding free golf, and the return of forensic image of Williams’s iPhone, the Court upheld the lower court’s rulings, and noted that in any case, the iPhone claim had not been properly preserved for appeal.

The Fourth Circuit then turned to what it considered to be the core arguments of the appeal. First, the Court addressed McDonnell’s claims that the jury instructions “misstated fundamental principles of federal bribery law.” McDonnell claimed that the jury instructions of bribery were too expansive of the definition, and the Court determined that it would review de novo this jury instruction. Furthermore, even if an element of the charge was misconstrued, the Court could dismiss the error as harmless provided that it was “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” After examining the relevant statutes that McDonnell was convicted under and comparing the language in the statutes to the jury instructions, and examined the challenged definition of “official act,” the Court found that McDonnell had failed to show that the “official act” instructions were “anything less than a fair and accurate statement of law.” The Court also rejected McDonnell’s “Quid Pro Quo” instruction arguments. Then, the Court addressed the claim that the “Government’s evidence was insufficient to support his convictions pursuant to the honest-services wire fraud statute and the Hobbs Act.” The Court also reviewed this claim de novo to determine the sufficiency of the evidence in a light most favorable to the Government. Although the Court acknowledged that the Government had to prove that Williams’s payments to the family came with a “corrupt understanding” and that the “key to that understanding was the expectation that Appellant would perform certain official acts for Williams’s benefit,” an examination of the evidence presented at trial showed that McDonnell’s acts were official acts and that the Government satisfied its burden in showing corrupt intent on both sides. The Fourth Circuit therefore held that McDonnell received a fair trial and affirmed the judgment of the district court.

Full opinion

Jennie Rischbieter

CHRISTIAN v. BALLARD, NO. 13-7333

Decided: July 8, 2015

In this post-conviction relief case, the Fourth Circuit found that the district court had reasonably determined Gregory Christian’s trial attorney did not render ineffective assistance of counsel regarding West Virginia’s recidivist statute.  On this basis, the Fourth Circuit affirmed the district court’s denial of federal habeas corpus relief to Christian.  

In June, 2002, a Huntington, West Virginia restaurant and gas station were robbed at gunpoint.  The responding officers were told that the suspects might be in a particular apartment.  Upon arriving at the apartment, the officers found the suspect vehicle parked in front.  When officers entered the apartment, Christian who was hiding inside, began shooting.  One of the officers suffered a gunshot wound to the chest, and Christian subsequently surrendered.  

Public defender Gerald Henderson was appointed to defend Christian.  Christian and Richard Adams, who was also in the apartment, were indicted under West Virginia law for two counts of first-degree robbery involving use of a firearm, and Christian was also indicted for malicious assault on a police officer.  In addition, Christian was indicted separately under federal law for possession of a Molotov cocktail, and possession of a firearm by a convicted felon.  West Virginia law provides for lengthening of a sentence for a second felony conviction, and for a sentence of life in prison without parole eligibility for 15 years for a third felony conviction.  Under West Virginia rules, Christian had one prior felony, and thus his sentences for the robberies and the malicious assault could have been lengthened.  

Early in the plea negotiations, Christian made it clear that, due to his declining health, he wished to serve as much of his time as possible in the federal penitentiary, where he felt conditions were better.  The state prosecutor was willing to consider a plea where state time was served concurrent to federal time, but not until the federal sentence was actually received.  In May, 2003, after pleading guilty to the federal charges, Christian received a federal sentence of only 63 months, some 1/3 of the sentence the federal public defender expected, which meant that Christian would be unable to serve the majority of his sentence in federal prison.  In August of 2003, Christian agreed to a plea deal in which the state would recommend 25 year sentences for each robbery, served concurrently, and with credit for time already served, and 3-15 years for malicious assault, all state time to be served after the federal time.  The state also agreed to various conditions, including that there would “‘BE NO RECIDIVIST’” filed.

On September 3, 2003, Christian appeared in state court for his guilty plea hearing.  At first, it appeared he would plead guilty only to malicious assault, but he ultimately entered a guilty plea on all counts after confirming to the court his understanding of the possible penalty range for each offense, and confirming that he was pleased with his attorney’s representation.  The trial court explained the consequences for any future third felony violation.  The court then sentenced Christian in line with the plea agreement.  Christian did not appeal.On September 3, 2003, Christian appeared in state court for his guilty plea hearing.  At first, it appeared he would plead guilty only to malicious assault, but he ultimately entered a guilty plea on all counts after confirming to the court his understanding of the possible penalty range for each offense, and confirming that he was pleased with his attorney’s representation.  The trial court explained the consequences for any future third felony violation.  The court then sentenced Christian in line with the plea agreement.  Christian did not appeal.

In July of 2007, Christian filed a habeas corpus petition in state court in which he denied nearly all the factual representations he had made at his plea hearing.  The state court denied Christian’s petition in its entirety, largely due to lack of credibility and lack of proof.  Christian appealed this denial to the Supreme Court of Appeals of West Virginia, raising for the first time an ineffective assistance of counsel claim based on incorrect advice about the applicability of the recidivist statute.  Christian claimed that he had told Henderson that he had two prior felonies, but that Henderson did not investigate, and that on the day of his plea, Henderson told him that the state would enhance his sentence under the recidivist statute if he pleaded guilty only to malicious assault.  Christian claimed to believe this meant that the state court would sentence him to a mandatory life sentence if he pleaded guilty only to malicious assault.  The appellate court affirmed the state court.  Christian then filed a federal habeas petition to the district court on identical grounds, and added an additional claim that Henderson effectively advised him that he would get a life sentence if he pleaded guilty only to malicious assault, and did not refer to the lengthened sentence under the recidivist statute.  The district court denied the petition, finding Henderson did not violate the constitution by not investigating Christian’s prior felonies.  The district court granted a certificate of appealability on the issue of whether Henderson rendered ineffective assistance of counsel in advising Christian on the applicability of the West Virginia recidivist law.

The Fourth Circuit first held that Christian had exhausted his state court remedies before appealing to the West Virginia Supreme Court of Appeals.  Though Christian raised the ineffective assistance of counsel claim for the first time to that court, he had offered testimony on this point at the state court.  Further, the appellate court noted that it had considered all of the arguments in Christian’s briefs.

The Fourth Circuit next summarized Christian’s basic claim as being that Henderson failed to investigate Christian’s prior felonies, and incorrectly advised Christian that conviction on any of the three counts against him in federal court would lead to a mandatory sentence of life in prison with no parole eligibility for 15 years.  The Fourth Circuit found that while Christian may have interpreted Henderson’s advice prior to the plea hearing as meaning a mandatory life sentence would be imposed if he pleaded guilty to only malicious assault, there was no evidence that Christian communicated this interpretation to Henderson.  Therefore, the Fourth Circuit reviewed the state court denial of habeas only to see whether it was an unreasonable finding based on the standards for ineffective assistance of counsel.  

The Fourth Circuit then held that the appellate court did not err in denying Christian’s habeas petition based on his ineffective assistance of counsel claim.  The Court first found that there is no duty for counsel to investigate a prior felony record during plea negotiations.  Case law does not support such a duty, and there was no evidence that Henderson believed a life sentence based on the recidivist statute was involved in this case.  Further, even if Henderson failed by not investigating Christian’s prior felonies, the Court found that he would still have needed to include the “‘no recidivist’” language in the plea deal to avoid a possible lengthened sentence for a second felony.

The Fourth Circuit next found that Henderson did not violate the constitution by failing to look into Christian’s felony record the morning of the plea hearing. Based on the record, the Court reasoned that, at most, Henderson properly advised Christian that if he had two prior usable felonies, he might be subject to a recidivist sentence of life in prison.  Such truthful advice did not meet the standard for constitutional deficiency.

The Fourth Circuit also found that the appellate court could reasonably have rejected Christian’s claim that he believed he was subject to a life sentence under the recidivist statute.  Christian’s testimony to this effect was conclusory, self-serving, and vague, or did not refer to Henderson’s advice about the recidivist statute, or to the morning of the plea hearing.  Henderson’s own testimony, which more strongly supported Christian’s claim, was not strong enough to overcome the benefit of the doubt accorded to counsel’s representation, and the state court’s view on evidence.  Further, Christian’s behavior in the months leading up to the plea hearing undercut his claim that he believed pleading guilty to only one of the three counts would lead to a mandatory life sentence.  Christian confirmed at the hearing that he understood the court believed him to have only one prior felony, and in a subsequent letter to Christian, Henderson noted that the state would not file a recidivist based on Christian’s previous felony.

Finally, the Fourth Circuit held that the appellate court could reasonably have believed that any errors on the part of Henderson were not the but-for cause of Christian pleading guilty rather than going to trial.  Christian never claimed that if not for the alleged ineffective assistance, he would have pleaded not guilty and gone to trial.  Even if he had made such a claim, the court could have found it not credible.  Further, going to trial on the robbery counts would not have been a rational choice given the evidence of Christian’s guilt, and the likely sentence.

On the above basis, the Fourth Circuit affirmed the Supreme Court of Appeals of West Virginia’s denial of Christian’s habeas corpus petition.

Judge Gregory dissented from the Court’s opinion.  In his dissent, Judge Gregory argued that Henderson gave bad legal advice about the effect of the recidivist statute on Christian’s sentence, and Christian relied on that advice in agreeing to plead guilty.

Full Opinion

Katherine H. Flynn

 

INCUMAA v. STERLING, NO. 14-6411

Decided: July 1, 2015

The Fourth Circuit held that Plaintiff’s twenty-year solitary confinement amounted to atypical and significant hardship in relation to the general population and implicated a liberty interest in avoiding security detention. In holding so, the Court reversed the district court’s judgment in part, and remanded it in part.

Plaintiff, Lumumba Incumma, is a member of a religious group known as the “Five Percenters.” In 1988, Plaintiff began serving a sentence of life imprisonment without the possibility of parole in a prison operated by the South Carolina Department of Corrections. After participating in a prison riot in 1995, he was placed in solitary confinement and has remained there for the past twenty years.

Plaintiff challenged his confinement on the grounds that the confinement violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and also that the confinement violates his right to procedural due process. RLUIPA is a federal law that prohibits states from imposing a substantial burden on an inmate’s religious exercise unless that burden furthers compelling ends in the least restrictive way. Plaintiff argued that the prison would release him from solitary only if he renounced his Five Percenters beliefs. However, the Court found that the prison was not requiring Plaintiff to renounce his beliefs and he failed to demonstrate the Department’s policy imposed a substantial burden on his religion. Furthermore, his participation in the riot was the cause of his solitary confinement, not his religious beliefs. Consequently, the Court affirmed the portion of the district court’s ruling discarding Plaintiff’s RLUIPA claim as being insufficient to go before a jury.

As far as the due process claim, the Court concluded that Plaintiff had a liberty interest in avoiding solitary confinement. Furthermore, Plaintiff demonstrated a triable dispute on his procedural due process claim because the record supports his assertion that the Department’s review process is inadequate and fails to honor the basic values of procedural due process.

Accordingly, the Court remanded the case for further proceedings.

Full Opinion

Meredith Weisler

 

PRIETO v. ZOOK, NO. 14-4

Decided: June 30, 2015

The Fourth Circuit affirmed the judgment of the district court.

This case was an appeal from the Virginia district court’s denial of Alfredo Rolando Prieto’s (“Prieto”) petition for a writ of habeas corpus. Prieto was originally convicted of two counts of capital murder, two counts of the use of a firearm in the commission of murder, grand larceny, and rape. Although juror misconduct at his first trial led to a mistrial, he was convicted again at a second trial, and although Prieto brought forth substantial evidence of an intellectual disability that would render him ineligible for the death penalty under Atkins, the jury still found him intellectually competent and sentenced him to death. Although the Supreme Court of Virginia vacated his death sentence and remanded, on remand a third jury sentenced him to death, and the Supreme Court of Virginia affirmed. Prieto filed a habeas petition with the Supreme Court of Virginia, claiming, inter alia, that his counsel was ineffective and that his death sentence was prohibited under Atkins, but the court held that he could not bring his Atkins claim because he did not raise it on direct appeal of his original death sentence. Prieto then filed a habeas petition pursuant to 28 U.S.C. § 2254, but the district court dismissed his Atkins claim as procedurally defaulted, and the rest of his claims as meritless. This appeal followed.

The Fourth Circuit first examined the standard for intellectually disabled criminals, specifically looking at the two-prong test for determining intellectual disability. Under the first prong, although Virginia courts require an IQ score of 70 or below, the Fourth Circuit looked to the recent decision in Hall that held that a specific number cutoff for intellectual disability was not the correct test. Instead, the court should consider both prongs because no one factor alone was sufficient to determine intellectual disability. Therefore, the Fourth Circuit determined that Virginia’s previous interpretation of the first prong violated the Eighth Amendment, and that a state could not “deny a defendant the opportunity to establish his intellectual disability based on evidence of ‘deficiency? in adaptive functioning over his lifetime,’ simply because that defendant has an IQ score above 70.” However, in order to resolve the question before it, the court needed to determine whether or not Prieto had procedurally defaulted on the Atkins claim.

In determining that question, the court first stated that it was not appropriate for it to review a question of federal law that had been decided by a state court “if the state court’s decision rests on an independent and adequate state ground.” Under a procedural rule established in a Virginia case, a “non-jurisdiction issue that could have been raised during the direct appeal process is not cognizable in a petition for a writ of habeas corpus,” and the court stated that this rule satisfied the state ground requirement for a denial of a habeas petition. Because Prieto procedurally defaulted, only the existence of one of the two exceptions to the procedural default rule would save his claim. Thus, Prieto would have had to establish either “cause and prejudice” for the default or that the default would work a “fundamental miscarriage of justice.” Prieto argued that both exceptions applied to his case. Since the district court held that his ineffective of assistance of counsel claim was without merit, that defeated his “cause and prejudice,” leaving only the “fundamental miscarriage of justice” exception. After examining the definition of “fundamental miscarriage of justice,” the court concluded that the “innocent of death” definition applied here, and that Prieto must show “through clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” After a thorough examination of the evidence that both Prieto and the State provided as to Prieto’s intellectual disability, the court concluded that Prieto could not meet the high burden required for the “actual innocence” exception, and that no reasonable juror would sentence him to death. Accordingly, the Fourth Circuit affirmed the judgment of the district court.

Full Opinion

Jennie Rischbieter

U.S. v. NEWBOLD, NO. 10-6929

Decided: June 30, 2015

On remand from the United States Supreme Court, the Fourth Circuit denied the government’s motion to remand the case to district court and vacated Defendant’s sentence and remanded for further proceedings consistent with its opinion.

In 2005, Defendant Joseph Newbold plead guilty to being a felon in possession of a firearm. At his sentencing, the district court found he possessed three prior North Carolina state court convictions that triggered enhancements under the Armed Career criminal Act (ACCA), including a fifteen-year mandatory-minimum prison term. Newbold argued that at least one of the convictions should not have been considered a predicate serious drug offense because it was not punishable by a term of ten years of imprisonment. Newbold challenged his designation as a career criminal by 28 U.S.C. § 2255 motion. Section 2255 allows a federal prisoner to move to set aside a sentence on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

The Court held that pursuant to Miller, a petitioner may challenge on collateral review, under a 28 U.S.C. 2255 motion, a Simmons error resulting in his erroneous designation as an armed career criminal. The Court found that Simmons was retroactive and the sentencing error Newbold sought to challenge was cognizable on collateral review. The court proceeded to examine Newbold’s prior convictions, and found that nothing in the record supports the idea that Newbold ever faced more than the presumptive term of three years for the state court, possession of drugs with intent to deliver conviction that the government sought to use as a federal ACAA predicate. The Court concluded that based on an examination of North Carolina’s sentencing regime, as well as Newbold’s criminal history and the circumstances of his offence, he should not have been sentenced under the ACCA as a career criminal.

Accordingly, the Court vacated Defendant’s sentence and remanded for further proceedings.

Full Opinion

Meredith Weisler

 

U.S. v. OBEY, NO. 14-4585

Decided: June 24, 2015

The Fourth Circuit held that the Government did not breach a plea agreement with Obey, and the district court did not commit plain error in crafting Obey’s sentence for the drug charges to which he pleaded guilty.  On this basis, the Fourth Circuit affirmed the district court.

In January 2013, Obey was convicted by a federal grand jury on a variety of counts involving distribution of cocaine and cocaine base.  The district court sentenced him to 540 months imprisonment, and Obey appealed.  While the appeal was pending, the Government filed a motion to remand the case for a new trial pursuant to a Giglio v. U.S., 405 U.S. 150 (1972), error.  The Fourth Circuit granted the motion, vacated Obey’s conviction and sentence, and remanded to the district court.  Obey then pleaded guilty to cocaine distribution and aiding and abetting.  In his plea agreement, Obey waived his right to appeal and the Government agreed to recommend an 18-year term of imprisonment.  At the July, 2014 sentencing hearing, the Government recommended the 18-year term of imprisonment, and the court asked about a pending state murder charge, which the Government said was due to go to trial in August, 2014.  The court found that the Government’s request for a lower sentence lacked merit, and imposed a 240-month term of imprisonment, the statutory maximum.  The court further made the prison term “‘consecutive to any other State or Federal sentence, including any unimposed sentence [Obey] might receive’ for the pending state murder charge.”  Obey appealed, arguing that the Government breached its plea agreement, and that the district court did not have the authority to make his prison sentence for the drug charges consecutive to a future sentence.  

The Fourth Circuit first reviewed the claim that the Government breached its plea agreement.  Since Obey first raised this claim on appeal, the court reviewed for plain error, and found no breach by the Government.  The Fourth Circuit based this finding on the fact that the prosecutor encouraged the district court several times at the sentencing hearing to adopt the 18-year prison sentence the Government agreed to recommend, and did so without critiquing the terms of the plea agreement, or undercutting its legality.  Though the prosecutor did not explicitly give reasons supporting the recommended sentence, the Fourth Circuit found that the plea agreement did not require the prosecutor to do so.  Further, the court found that the prosecutor explained at sentencing why the Government supported the plea agreement, though the plea agreement did not require him to do so.  Obey argued that at one point during the sentencing hearing, the prosecutor testified that there was “‘no real rhyme or reason for coming to [an agreement of] 18 years [imprisonment],’” and that this statement constituted a breach of the plea agreement.  The Fourth Circuit found, however, that taken in context, this statement merely explained to the sentencing court how the Government and Obey came to an agreement on 18 years imprisonment.  

The Fourth Circuit next analyzed Obey’s claim that the district court erred in imposing a sentence to run consecutive to any future Federal or State sentence.  Because Obey raised this claim for the first time on appeal, the court again reviewed for plain error.  The Fourth Circuit reviewed case law, which held that a district court could impose a sentence to run consecutive to an anticipated state sentence, but at least in the Fourth Circuit, a district court cannot impose a sentence to run consecutive to an anticipated Federal sentence.  On this basis, the Fourth Circuit held that while Obey was correct that the district court erred in ordering his sentence run consecutive to “‘any other State or Federal sentence,’” the court found that this error was not plain, especially given an unpublished Fourth Circuit opinion which supported the actions of the district court here.  On this basis, the court found that the district court did not plainly err in imposing its sentence.

Full Opinion

Katherine H. Flynn

 

U.S. v. BASHAM, NO. 13-9

Decided: June 15, 2015

The Fourth Circuit upheld the District of South Carolina’s denial of Brandon Leon Basham’s (“Basham”) motion for habeas corpus relief pursuant to 28 U.S.C. § 2255.  

This appeal arises from a seventeen day, multi-state, crime spree in November 2002.  Basham was ultimately convicted in the District of South Carolina for multiple crimes and sentenced to death for two of them: carjacking resulting in death and kidnapping resulting in death.  Basham directly appealed his sentence, and the Fourth Circuit upheld his convictions in United States v. Basham, 561 F.3d 302 (4th Cir. 2009).  After the Fourth Circuit upheld his direct appeal, Basham moved for habeas corpus relief pursuant to 28 U.S.C. § 2255 and listed 34 claims for relief.  Two of Basham’s claims for relief were subsequently removed.  The district court denied Basham’s motion on all claims, which he now appeals.  

The Fourth Circuit reviews the appeal de novo and ultimately rejects all grounds for Basham’s appeal and upholds the district court’s ruling.  The Court first rejects Basham’s arguments that he was denied his right to the effective assistance of counsel because his lawyers permitted him to speak with investigators outside of their presence and later when they failed to challenge the admissibility of his inculpatory statement.  The Court cites Strickland v. Washington, 466 U.S. 668, 687 (1984), which states that a movant seeking relief for ineffective assistance of counsel must show (1) that his counsel’s performance was deficient, and (2) that the deficiency prejudiced his defense.  The Fourth Circuit found that Basham failed to establish prejudice strong enough to undermine the confidence in the outcome, as required by Strickland.  The Court next rejects Basham’s claims that the prosecution committed misconduct by presenting false testimony.  The Fourth Circuit stated that, to establish prosecutorial misconduct in this manner, a movant “must demonstrate three elements: (1) that the testimony at issue was false; (2) that the prosecution knew or should have known of the falsity; and (3) that a reasonable probability exists that the false testimony may have affected the verdict.”  The district court found that the prosecution did not commit misconduct.  The Fourth Circuit holds that this finding is plausible based on the record, and thus, Basham has failed to establish the first of the required elements to establish prosecutorial misconduct.  The Court next rejects Basham’s challenge to his competency to stand trial and that his counsel was ineffective because they failed to raise any issues regarding his competency.  The Fourth Circuit reasons that the district court’s finding that he was competent to stand trial was not clearly erroneous and must be upheld.  Because the Fourth Circuit upheld that he was competent to stand trial, they also hold that his claims that his ineffective assistance of counsel for failure to raise the issue also lack merit.  The Court rejects Basham’s final challenges by finding that Basham was not denied effective assistance due to trial counsel’s failure to object to evidence about crimes committed against another victim or due to trial counsel’s refusal to deliver his complete file to his appellate lawyers.  In the first instance, the Fourth Circuit found that Basham was unable to show that his counsel performed in a deficient manner merely because counsel allowed evidence to come in for strategic reasons.  In the second instance, the Fourth Circuit concluded that Basham was not prejudiced simply because his counsel would not turn over the original physical copies of the files where they allowed reasonable access to the files.  

Full Opinion

William H. Yarborough

U.S. v. SHELL, NO. 14-4211

Decided: June 12, 2015

The Fourth Circuit vacated and remanded the lower court opinion, holding that a defendant’s prior conviction in North Carolina for second-degree rape was not automatically a crime of violence under sentencing guidelines for career criminals.  The Fourth Circuit also held that in order for a defendant’s sentencing to be enhanced under the guidelines for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, the defendant must have known that he was being pursued by law enforcement.  

This appeal arises from Aaron Eugene Shell’s (“Shell”) guilty plea to felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (2012).  The presentencing report (“PSR”) recommended that Shell receive an enhanced base offense level for two reason.  First, the PSR found that Shell’s prior felony conviction of second-degree rape was a crime of violence.  Second, the PSR recommended an enhanced base offense level for Shell’s reckless driving in the course of fleeing from a law enforcement officer that created a substantial risk of death or serious bodily injury to others.  Shell objected to both enhancements.  During sentencing, the district court overruled both of Shell’s objections. The court reasoned that second-degree rape constituted a violent crime under the U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2014).  Shell appeals the district court’s determination that his second-degree rape conviction was a crime of violence.

The Fourth Circuit reviewed Shell’s appeal, as a question of law, de novo.  In considering whether Shell’s second-degree rape conviction constituted a crime of violence, the Court applied the categorical approach, which focuses on the elements of the prior offense.  With this approach, the particular events that occurred in the commission of the crime are irrelevant, and the Court had to decide if any second-degree rape under the North Carolina statute would qualify as a violent crime when compared to the Sentencing Guidelines’ use of the phrase “crime of violence.”  The Court looked at the two separate offenses in the statute.  Because the records of Shell’s conviction for second-degree rape did not specify which subsection of the statute formed the basis for his prior conviction, the Court reasoned that the conviction could only be treated as a crime of violence only if both subsections qualified as crimes of violent.  The Court concluded that the first subsection of the statute, which required force, easily qualified as a crime of violence under the Guidelines.  The Court held that the second subsection, however, did not require the state to prove force and could be violated if there is legally insufficient consent.  Therefore, the Court reasoned that under the second subsection, second-degree rape in North Carolina does not qualify as a crime of violence.  The Court also held that the enhanced base offense level for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer could only be applied when the fleeing suspect was aware of law enforcement being in pursuit.  The Court vacated Shell’s sentencing and remanded the case for resentencing consistent with this opinion.

Full Opinion

William H. Yarborough

 

U.S. v. PADGETT, NO. 14-4625

Decided: June 9, 2015

The Fourth Circuit upheld the District Court’s revocation of Defendant’s two current terms of supervised release and sentence of consecutive terms of imprisonment, followed by new concurrent terms of supervised release.

Defendant was convicted in 1998 of conspiracy to distribute and possess, with intent to distribute cocaine, in violation of 21 U.S.C. § 846. In 2009, he was convicted for attempted escape from custody. This appeal stems from the District Court’s revocation of Defendant’s supervised release in 2014. The District Court held that the Government had proven by a preponderance of the evidence, through three witness testimonies, that Padgett had possessed a firearm. The Fourth Circuit reviewed the District Court’s factual findings underlying the revocation for clear error. The Court concluded that the District Court did not clearly err in finding that the Defendant possessed a firearm, and therefore, revocation of his supervised release was not an abuse of discretion.

Accordingly, the Fourth Circuit affirmed the District Court’s judgment.

Full Opinion

Meredith Weisler

 

U.S. v. SPAN, NO. 14-4655

Decided: June 8, 2015

The Fourth Circuit held that the Government failed to prove by a preponderance of the evidence that the Defendant’s prior felonies were separate and distinct criminal episodes for the purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA’). The Court vacated the District Court’s application of the ACCA enhancement and remanded for resentencing.

Defendant, Span, appealed the District Court’s ruling that each of his three robbery offenses were distinctly separate offenses. A defendant qualifies for an enhanced sentence under the ACAA if the defendant has three previous convictions for a violent felony or serious drug offense and if those offenses were committed on occasions different from one another. The Court found that Span’s robbery offenses were not “committed on occasions different from one another” under the ACCA because discrepancies in the state court documents casted doubt on the date of the robberies and the Court’s application of the Letterlough factors did not lead the court to the conclusion that the robbery occurred on a separate occasion. The Letterlough factors include 1) whether the offenses arose in different locations; 2) whether the nature of each offense was substantively different; 3) whether each offense involved different victims; 4) whether each offense involved different criminal objectives; and 5) whether the defendant had the opportunity after committing the first-in-time offense to make a conscious decision to engage in the next offense.

Accordingly, the Court vacated the District Court’s judgment and remanded the case for further proceedings.

Full Opinion

Meredith Weisler

 

U.S. v. WYNN, NO. 14-4599

Decided: May 20, 2015  

The Fourth Circuit held that a defendant’s prior drug convictions increased the extent to which a defendant’s marijuana offenses during supervised release were punishable under 21 U.S.C. § 844(a).  

This appeal stemmed from the district court determining, based on the defendant’s status as a recidivist drug offender, that certain drug offenses committed during defendant’s supervised release were Grade B violations under the United States Sentencing Commission’s advisory policy statements for violations of probation and supervised release. Anthony Wynn was convicted in 2003 of conspiracy to distribute and possession with the intent to distribute heroine and cocaine base, a violation of 21 U.S.C. §§ 846 and 841(a)(1). Wynn was sentenced to a term of imprisonment, followed by a five-year period of supervised release. As a condition of his supervised release, Wynn was required to refrain from the unlawful use of controlled substances and was required to submit to drug testing. After a petition from Wynn’s parole officer alleging numerous violations, Wynn admitted in front of the district court during a supervised release revocation hearing to possessing marijuana on the several alleged occasions.

Therefore, Wynn had his supervised release revoked. The probation officer calculated Wynn’s new term of imprisonment using the advisory policy statements. His calculation was based on his conclusion that, due to Wynn’s prior drug convictions, his marijuana offenses constituted Grade B violations because each offense was punishable by imprisonment of more than one year under an enhancement for recidivism. Wynn argued that the instances of possessing marijuana were Grade C violations because the penalty under federal law does not exceed a one-year term of imprisonment, and the district court was prohibited from the policy statements from considering his prior convictions. Wynn states that these prior convictions were only relevant in determining his term of imprisonment at his original sentencing hearing.   

Here, the Fourth Circuit had to determine whether the district court correctly determined that Wynn’s conduct of possessing marijuana constituted a Grade B violation under the policy statements. Wynn cited the Supreme Court’s decision in Carachuri-Rosendo v. Holder arguing that the district court was prohibited from finding that the drug offenses that he committed during supervised release were punishable under an enhanced statutory penalty. Specifically, Wynn argued that the government was in violation of 21 U.S.C. § 851(a)(1) by not filing notice signifying the intent to rely on Wynn’s prior convictions at his revocation sentencing.

Despite Wynn’s argument, the Fourth Circuit determined that nothing in the decision in Carachuri-Rosendo suggested that § 851 prevents a district court from considering a defendant’s prior convictions during a supervised release revocation hearing. The purpose of this hearing is to determine the gravity of the breach of trust committed by the defendant. Additionally, by the plain terms of the statute, § 851 applies only to the sentencing of criminal defendants who have been convicted of a crime following the “entry of a plea of guilty” or a “trial.”

Further, Wynn argued that the district court could only consider the “basic” penalty imposed for simple possession of marijuana, rather than the penalty for these acts committed by a recidivist defendant. To support his argument, Wynn relied on Application Note 1 to U.S.S.G. § 7B1.1. However, his argument failed to support his position. Instead of limiting a district court’s ability to consider the conduct of a defendant, Application Note 1 states that district courts should consider all conduct that affects the maximum penalties for a supervised release violation. Accordingly, the district court was correct in determining that Wynn’s instances of possessing marijuana during his supervised release equated to Grade B violations under the Guidelines’ Chapter 7 advisory policy statements.

Full Opinion

Austin T. Reed

USSERY v. MANSFIELD, NO. 14-7096

Decided: May 19, 2015

The Fourth Circuit affirmed a North Carolina district court’s denial of summary judgment to correctional officers implicated in a Section 1983 excessive force claim.

The 1983 claim arose from Ussery’s forcible extraction from his cell. According to Ussery, in the several days leading up to the extraction, officers had searched his cell repeatedly and never found any weapon or other contraband. On the date of the extraction, when told to exit his cell, Ussery refused to do so for fear that his cell would be “tossed.” Upon his refusal, Sergeant Mansfield pepper sprayed Ussery, but Ussery continued to refuse to exit. The parties agree about the extraction, but have significantly different versions of the event. While they all agree Sergeant Mansfield assembled a team of five correctional officers for the extraction and one to videotape the extraction per prison procedure, then telling the team that Ussery had a weapon and threatened to harm anyone who entered, Ussery denies ever possessing a weapon or making a threat. Furthermore, the team found no weapons. Ussery contends when his cell was unlocked, the officers restrained him on the floor and repeatedly beat, punched, and kicked him. While the video is consistent with Ussery’s account in some respects, Sergeant Mansfield stood in front of the camera for a significant period of time, blocking the view of the extraction. Later, Ussery had to go to a hospital for emergency treatment of his wounds and lacerations, which he contends medical records indicated caused an increase in bi-lateral hearing loss, neck pain, loss of vision in the right eye, chronic swelling and loss of feeling in his hands and knees, and recurring migraines. As a result, the North Carolina Department of Corrections launched an investigation into whether the officers employed excessive force. The report was inconclusive but stated the behavior of the officers appeared too aggressive for the situation. The officers denied punching and kicking Ussery and relied on a report from a prison doctor who had not personally examined Ussery that stated Ussery’s injuries were all minor and had since healed.

Given the timing of the incident, the applicable precedent (prior to the Wilkins standard adopted in 2010) required that an inmate must show more than de minimis injuries or that the defendants’ use of force be repugnant to mankind’s conscience. The trial court found there was insufficient evidence in the record regarding the extent of injuries and noted that the repugnant circumstances were a question of fact for the jury, thereby precluding a granting of summary judgment. The Fourth Circuit disagreed with the officers’ account that Ussery’s injuries were de minimis and pointed to the Department of Corrections investigation into the incident to establish that the injuries were likely severe if they warranted an investigation into excessive force. The court also compared Ussery’s injuries to comparable injuries that were not held to be de minimis.

Full Opinion

Kayla M. Porter

 

U.S. v. FOOTE, NO. 13-7841

Decided On: April 27, 2015

The Fourth Circuit held that defendant’s collateral appeal, based on §2225 allegations, did not state a claim of error that sufficiently fulfilled the high standards required in §2225, and affirmed the lower court’s decision.

The appellant, Foote, originally pled guilty to drug crimes that resulted in his designation as a “career offender,” and a sentence of 262 months. Under the sentencing guidelines, and due to a decision rendered in U.S. v. Harp, one of Foote’s prior drug crimes qualified him as a “career offender,” which elevated his offense level and the sentence range, and the district court sentenced him at the bottom of the sentencing range. Although Foote appealed, and the Fourth Circuit affirmed based on Harp, the Supreme Court vacated and remanded for consideration due to the decision in Kimbrough v. U.S. On remand, the district court applied the same sentence, and the Fourth Circuit again affirmed. However, a subsequent case, U.S. v. Simmons, abrogated Harp in light of Carachuri-Rosendo v. Holder, which held that a court should look to the conviction itself, and not the crime or sentence that a defendant could have been sentenced with when determining a defendant’s “career offender” status. Because the court announced that Simmons could be applied retroactively, and because this appeal was still pending at that announcement, appellant amended his §2225 complaint, asking the court to resentence him, and reduce his sentence.

The court first determined that, since the appeal was a matter of pure law, it could review the case de novo. The court then examined §2225 itself, noting that if the error is neither constitutional nor jurisdictional, then a district court would not have jurisdiction to hear the case unless the alleged error was of a nature of “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” The court first looked at U.S. v. Davis, a case where the court held that defendants could bring a §2225 claim when they are convicted for acts that are later determined to be non-criminal. The court then looked at other cases where §2225 claims were not allowed, such as when a district court’s failure to follow procedural rules did not prejudice the defendant. In between these two types of cases, what the court termed the “spectrum,” the court placed the kinds of cases where §2225 claims were unsuccessful, where the way the court’s sentencing was changed but not in a way that made the sentence unlawful. After looking at these cases, the court then proceeded to examine how three other circuits had decided cases similar to Foote’s, noting that those cases were “nationally consistent yet internally divided.” Although the three circuits reached the same conclusion, and that there is no circuit where  “a challenge to one’s change in career offender 21 status, originally determined correctly under the advisory Guidelines, is cognizable on collateral review,” the court also recognized that these were close decisions that needed to be addressed. The court then looked at two Fourth Circuit cases that held that errors in applying the Sentencing Guidelines normally could not be addressed in §2225 claims, and that errors in the “post-conviction context are grounded in actual innocence.” Furthermore, the court was “hesitant to declare that a fundamental defect or a complete miscarriage of justice has occurred in a situation in which Appellant was (and on remand, would again be) sentenced under an advisory Guidelines scheme requiring individualized analysis of the sentencing factors set forth in 18 U.S.C. § 3553(a).” Since Foote was not claiming innocence, and since the district court did not seem to have overstepped its discretion in sentencing, and since the Fourth Circuit did not think that the “career offender” designation was a “fundamental” error, and, even though the Fourth Circuit acknowledged that Foote’s sentence was increased due to the “career offender” status, the Fourth Circuit affirmed the district court’s decision.

Full Opinion

Jennie Rischbieter

JONES v. CLARKE, NO. 14-6590

Decided: April 22, 2015

The Fourth Circuit held that a federal trial court’s order granting habeas corpus based on a claim of ineffective assistance of counsel must be vacated and the petition remanded for dismissal.

In state court, Jones waived a jury trial after being charged with grand larceny and breaking and entering. During the period that Jones was awaiting trial, the victim visited Jones in jail, informed him that police had his fingerprints, and asked why he did it, to which Jones replied he made a mistake. While the only evidence explicitly connecting Jones to the crime, which involved the breaking of a window and theft of a television and other items, was a single fingerprint on the broken glass offered without the testimony of a fingerprint analyst, Jones’s attorney failed to object to the hearsay evidence. The judge ultimately held that the fingerprint evidence in conjunction with Jones’s admission to the victim, which his attorney argued was ambiguous and not a clear admission, constituted enough evidence to find Jones guilty beyond a reasonable doubt. The Supreme Court of Virginia ultimately denied Jones’s habeas petition, prompting Jones to file a petition with a federal trial court, which ultimately granted the relief on the grounds that the Supreme Court of Virginia unreasonably applied the Strickland v. Washington, 466 U.S. 668 (1984), standard in rejecting Jones’s ineffective assistance of counsel claim.

In vacating the trial court’s order, the Fourth Circuit noted that because the state supreme court had adjudicated the matter on the merits, a federal court lacked the ability to grant habeas relief unless the state court’s adjudication was (1) contrary to federal laws as determined by the United States Supreme Court or (2) based on an unreasonable determination of facts in light of the evidence. Additionally, the court noted that an ineffective assistance of counsel claim required both a showing of deficient performance by counsel and a resulting prejudice to the defendant. The court reasoned that here the Strickland standard was reasonably applied because there was no reasonable, substantial likelihood that the result would have differed in the absence of the fingerprint evidence because of Jones’s jailhouse admission to the victim. Since the judge explicitly found Jones’s statement to the victim to be an admission, the court must presume that the factual finding was correct. Accordingly, even if the fingerprint evidence had been excluded, Jones was not prejudiced by that evidence because of his jailhouse admission.

Dissent: The dissent noted that trial counsel did very little in the way of actually defending Jones, surrendering the Sixth Amendment right of confrontation and ultimately putting up no fight at all. The dissent expounded the trial judge’s statement that the fingerprint evidence combined with the jailhouse admission gave rise to guilt beyond a reasonable doubt as follows:  the logical conclusion of such reasoning was that the lack of fingerprint evidence would give rise to a reasonable probability of Jones’s acquittal.

Full Opinion

Kayla M. Porter

LEE v. CLARKE, NO. 13-7914

Decided: March 20, 2015

The Fourth Circuit held that Virginia’s state habeas court incorrectly applied the Strickland standard because they did not find prejudice in a lack of a heat of passion jury instruction, and reversed and remanded for a writ of habeas.

This case was an appeal from a dismissal of a writ of habeas corpus, in which appellant Lee claimed ineffective assistance of counsel due to his attorney’s failure to ask for a jury instruction that defined heat of passion.  In the original trial, when Lee was charged with murder, there was evidence presented that demonstrated that Lee killed the man after the man attacked him. Defense counsel therefore moved to proceed either on a second degree murder charge or manslaughter charge, since defense contended that the prosecution failed to show premeditation, and that there was no malice present since Lee was provoked. The trial court denied the motions, and the defense then presented their case and a witness who testified on Lee’s behalf. Defense counsel then moved to proceed solely on the manslaughter charges, but again trial counsel rejected the defense’s motions, and proceeded to ask both sides for the appropriate jury charges. Although there were several forms to choose from, neither side chose any charges that included the definition of heat of passion, although defense counsel attempted to distinguish between the definition of malice and the definition of heat of passion in his closing arguments. During deliberations, the jury was given an Allen charge twice, as well as a clarification of another legal term. The jury pronounced him guilty, and the Court of Appeals of Virginia upheld the conviction, and the Supreme Court of Virginia declined to hear his subsequent appeal. Lee then, with new counsel, filed a state habeas petition claiming that he received ineffective assistance of counsel due to his attorney’s failure to ask for a heat of passion jury charge. The Circuit Court of Richmond denied his appeal, as did the Supreme Court of Virginia. He then filed a federal petition in the Eastern District of Virginia, who denied his claim and also noted that the evidence against Lee was strong enough that he was not prejudiced by the lack of a heat of passion instruction.   

After asserting that it would review the proceedings de novo, the Fourth Circuit went on to define both the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) test for habeas petitions and the Strickland two-prong test for ineffective assistance of counsel, and determined that it was appropriate to apply both simultaneously in this case. The court then looked at the facts of the case and, based on the facts present, said that because there were facts that were in dispute in the case, it was appropriate for it to go before the jury. However, the court firmly stated that in cases where there is “ample evidence” of heat of passion, it was ineffective to request a manslaughter instruction and fail to also request a heat of passion instruction. Since the court could not find that there was a legitimate strategic reason for failing to request the instruction, defense counsel failed the first prong. The Fourth Circuit then examined the second prong, whether or not there was prejudice by the failure to request the instruction. The court noted that even though the Director argued that it was sufficient for defense counsel to mention heat of passion in closing arguments, juries do not give closing arguments the same weight as they do jury charges. Furthermore, even though defense counsel attempted to distinguish between malice and heat of passion, he did so without the benefit of the jury having heard the full definitions of those terms. Based on the facts of the case, which the court believed created a substantial jury question that could have resulted in a different outcome had the jury been able to choose based on knowing the definition of heat of passion, as well as on the fact that Lee’s sentence would have been considerably shorter had he been charged with manslaughter, the Fourth Circuit reversed the district court’s order and remanded to issue Lee a writ of habeas corpus unless Virginia decided to hold a new trial.

Full Opinion

Jennie Rischbieter

U.S. v. BEYLE, NO. 13-4985

Decided: April 3, 2015

This is an appeal from a jury trial convicting the defendants of murder. Beyle and Abrar were Somali pirates who were part of a group that raided an American ship and took four Americans hostage. During a confrontation with the US Navy out in the middle of the ocean, the pirates killed the four American hostages. Both men were convicted of murder.  Beyle appeals, claiming that the murders did not take place on the high seas. Abrar claims that his Fifth and Sixth Amendment rights were violated because he was not able to call pertinent witnesses to prove that he had been forced into piracy. However, since the Fourth Circuit determined that the pirates were on the high seas when the murders took place, they affirmed Beyle’s conviction. Furthermore, they concluded that Abrar’s Fifth and Sixth Amendment rights were not violated, and confirmed his convictions as well.

After an in-depth discussion of the circumstances surrounding the murder of the hostages, the Court first looked to the Constitution’s provisions on piracy and the high seas, and determined that the statutes used to convict Beyle were constitutional. Next, the Court addressed Beyle’s argument that even if the statutes weren’t facially unconstitutional, he wasn’t actually on the high seas when the murders took place, and so the Court had no jurisdiction. The Court thus addressed the issue of whether or not a person is considered “on the high seas” if they are thirty to forty nautical miles off the coast of Somalia, a question that they reviewed de novo. To determine this question, the Court first looked to various case law to determine the meaning of “high seas,” defining it as “beyond the boundary of the various territorial waters,” and looked to customary international law to see if it supports such a meaning. The Court looked to the Geneva Convention on the High Seas as well as the UN Convention on the Law of the Sea (UNCLOS). According to the UNCLOS, there is an exclusive economic zone (EEZ) that is within two hundred miles of a nation’s coast. Beyle contended that this meant he was not on the high seas; however, the Court pointed out that although that zone has special protections, it is still considered the “high seas,” and at any rate, special economic protections are quite different from a nation’s exclusive authority to punish criminals. Finally, the Court established, through the weight of the authorities it examined, that the outer territorial limits for a country is twelve nautical miles, and thus, the pirates were on the high seas when they murdered the Americans, and therefore fell within American jurisdiction. The Court noted that although the United States is not a signatory to the treaty, the United States still recognizes the treaty as customary international law, so its provisions should apply, and that furthermore the U.S. had a policy in place that it does not recognize claims that a country’s territory extends beyond the twelve nautical miles. Although Beyle raised the argument that Somalia passed legislation that extended its territory to two hundred nautical miles, the Court rejected this argument by pointing out that since Somalia signed onto UNCLOS, they agreed to be bound by the twelve nautical mile restriction in the treaty, so their territory does not extend beyond that. The Court also considered the policy implications of extending Somalia’s territory to the two-hundred-mile designation, and concluded that policy reasons point in favor of limiting their territory to twelve nautical miles.

As to Abrar’s claims, the Court looked to the Constitutional provisions, noting that the Sixth Amendment right is not unlimited, and that the Sixth Amendment does not grant the witness the right to call any and all witnesses. The problem for Abrar was that all of the witnesses he sought were foreign nationals, and thus were outside of the court’s power to subpoena, due to a problem created by Somalia, a problem that the U.S. did not have the authority or power to resolve. The Court also noted that there was little evidence that the testimony of the witnesses would even have been material to Abrar’s duress defense, so their absence did not work a hardship on his defense. Furthermore, Abrar was given multiple opportunities to prepare his defense, and the Court noted that the weight of the evidence against Abrar was so strong that they did not see a reason to disturb the jury’s verdict.

Accordingly, the Court affirmed the District Court’s orders against both defendants.

Full Opinion

Jennie Rischbieter

U.S. v. HELTON, NO. 13-4412

Decided: April 2, 2015

The Fourth Circuit held that, under the facts of the case, a lifetime term of supervised release following a 60 month term of imprisonment was both substantively and procedurally reasonable, and affirmed the district court’s sentence.

The West Virginia Internet Crimes Against Children Task Force, with the help of the FBI, caught the 19-year-old defendant, Steven Helton (Helton), with 961 child pornography images on his computer, of which 42 were actively accessible for viewing.  Helton alleged that he had been sexually abused as a juvenile, and admitted he had sexually abused another minor while a minor himself, and that he had a history of viewing child pornography, for which he had sought unsuccessful treatment.  A federal grand jury indicted Helton for two counts of knowing receipt and possession of child pornography under 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B), and § 2252A(b)(1)-(2).  Helton pled guilty to one count of knowing possession of child pornography under U.S.C. § 2252A(a)(5)(B) and § 2252A(b)(2).  Following the preparation of a presentence report and a sentencing hearing, the district court judge sentenced Helton to 60 months imprisonment and a lifetime of supervised release.  Helton appealed the supervised release portion of the sentence.

The Fourth Circuit found the lifetime term of supervised release both substantively and procedurally reasonable.  The Court said that sentences within the Sentencing Guideline range are presumed substantively reasonable.  Here, the lifetime supervised release was within the Sentencing Guideline under U.S.S.G. § 5D1.2(b), and within the statutory rule under 18 U.S.C. § 3583(k).  Thus, the supervised release term was substantively reasonable.  For a sentence to be procedurally reasonable, the sentencing judge must consider the factors under 18 U.S.C. 3553(a), and explain why the particular sentence fits the goals of sentencing.  The Fourth Circuit found that the district court judge specifically reviewed the factors under 18 U.S.C. 3553(a) in fashioning her sentence.  Further, the district court judge granted a downward departure from the prison term of 78 to 97 months recommended in the presentence report, finding that in light of Helton’s age, lack of prior criminal convictions, the seriousness of the crime, and the lifetime term of supervised release, the interests of punishment and deterrence would be served by the shorter prison term.  The Fourth Circuit further noted that the U.S. Sentencing Commission Guidelines Manual specifically recommends the maximum supervised release term of lifetime supervised release for sex offenses.  Finally, the court noted that Helton could petition to reduce his supervised release term after completing one year of supervised release.

Judge Gregory wrote a separate concurring opinion.  He found that the lifetime supervised release sentence imposed in this case was both substantively and procedurally reasonable, though he felt the case was closer for substantive reasonableness.  Judge Gregory wrote separately to warn against granting “undue deference” to the Sentencing Guidelines, which are advisory.  He noted that the Sentencing Guidelines for child pornography cases are unusual, and can lead to under- or over-sentencing for the actual crime committed.  Against this backdrop, he warned that a sentence within the Guideline range – at least in the area of child pornography crimes – may not, in fact, be substantively reasonable under all the circumstances of a given case.

Full Opinion

Katherine H. Flynn

UNITED STATES v. RANGEL, NO. 13-7445

Decided: April 1, 2014

The Fourth Circuit affirmed the judgment of the district court and denied Rangel’s motion to vacate his conviction and sentence under 28 U.S.C. § 2255, alleging that his trial and appellate counsel had rendered constitutionally ineffective assistance.

In October of 1992, Rangel and alleged co-conspirators were arrested for possessing 5.25 pounds of marijuana.  Upon questioning Rangel’s alleged co-conspirators, police learned details regarding the men’s drug dealing enterprise.  Specifically, the police learned that the men had been driving to Mexico and San Antonio, TX and bringing back around 50 pounds of marijuana each trip.  The men had been doing this for several years.

On November 28, 1995, a federal grand jury indicted Rangel, charging him in four counts: Count 1 for conspiracy to distribute over 1,000 kg of marijuana from 1990 through 1995; Count 4 for possession with intent to distribute marijuana on September 30, 1992; Count 7 for distribution of marijuana on October 1, 1992; and Count 10, which was later dismissed.  Following his indictment, Rangel fled to Texas, where he evaded arrest until March 23, 2010.  Thereafter, a jury tried Rangel and found him guilty on the charges in the indictment on August 25, 2010.

Based on his conviction and, more specifically, that the court attributed 1000 kg of marijuana to Rangel, the mandatory minimum sentence was 120 months.  Moreover, the presentence report provided that his advisory guideline range was 121 to 151 months.  If, however, the court had attributed 50 kg or less to Rangel, the default statutory term would have been 0 to 5 years instead of 0 to 20 years.

Rangel argued that his trial counsel was ineffective for not requesting an instruction that the jury find a drug weight based on the amount attributable to or reasonably foreseeable by Rangel; that his appellate counsel was ineffective for not raising the failure to request that instruction as an issue on direct appeal; and that his trial counsel was ineffective for failing to object to the drug weight and advisory guidelines range of sentencing.

The court applied the Strickland v. Washington test for ineffective assistance of counsel, which provides that a defendant must show (1) that “counsel’s performance was deficient,” and (2) that “the deficient performance prejudiced the defense.”  The court determined that Rangel’s trial counsel did not render ineffective assistance of counsel because Rangel would have received the same guideline range and the same sentence if his trial counsel had requested a different instruction.  Further, the court determined that Rangel’s appellate counsel was not ineffective because, if any error was committed, it was harmless; thus, Rangel could not demonstrate prejudice.  Lastly, the court determined that Rangel suffered no prejudice as a result of his trial counsel’s failure to challenge the district court’s drug weight finding and the resulting guideline range.

Full Opinion

Charles Buist

U. S. v. PINEDA, NO. 13-4555

Decided: October 29, 2014

The Fourth Circuit upheld the Appellant’s conviction for possession of a firearm in furtherance of a drug-trafficking crime. The Court also upheld the district court’s application of sentencing enhancements under the U.S. Sentencing Guidelines (U.S.S.G.).

In November 2011, the Appellant, Jesus Pineda, accompanied an individual to a drug deal in which the individual sold cocaine and a stolen assault rifle to a criminal informant (“CI”). After the transaction, Pineda arranged to sell additional drugs to the CI. The CI reported the information back to Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) agents. In January 2012, the CI purchased cocaine and a sawed-off shotgun from Pineda, all under police surveillance. Pineda had a handgun on him during the transaction, but he refused to sell the gun to the CI despite their previous agreement. Pineda explained that he could not sell the handgun because it was the only one he had at that time. In February 2012, Pineda again sold the CI cocaine and the handgun that he had refused to sell in the last transaction. Pineda was convicted of two counts of distributing cocaine—stemming from the January and February transactions, but not the November 2011 sale; possession of a firearm in furtherance of a drug-trafficking crime; and possession of a sawed-off shotgun. The probation officer included the November 2011 transaction in the presentence report, so that Pineda received enhancements for possessing a stolen firearm, committing crimes involving three firearms, and trafficking of firearms. The district court sentenced Pineda to 132 months in prison.

Pineda conceded that he possessed a firearm during the January 2012 drug deal, but claimed that there was insufficient evidence to show that he possessed a firearm in furtherance of a drug-trafficking crime. The Court has previously established that merely having a gun accessible during a drug sale can lead to a reasonable inference that the gun was in furtherance of the drug sale because the gun provides potential protection in case anything goes wrong. United States v. Jenkins, 566 F.3d 160, 164 (4th Cir. 2009). In this case, Pineda explicitly stated that he could not sell the CI the gun because he needed it for protection, which is substantial evidence to support the jury’s finding.

Pineda also claimed that the district court erred in designating the November 2011 transaction to be relevant conduct and therefore applicable to his sentencing enhancements. Conduct is relevant to sentencing when “two or more offenses . . . constitute part of a common scheme or plan” or if the offenses are part of the same course of conduct. U.S.S.G. § 1B1.3 cmt. n.9(A) and (B). Offenses are part of the same course of conduct “if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree or ongoing series of offenses.” Id. Because of both the similarity and regularity of the three transactions, the Court determined that the transactions were part of the same course of conduct, and therefore the November 2011 transaction was relevant conduct under the U.S.S.G. Thus, the Court affirmed the district court’s conviction and sentencing.

Full Opinion

Amanda K. Reasoner

U.S. v. SPINKS, NO. 13-4771

Decided: October 28, 2014

The Fourth Circuit held that a court may not consider factors other than the substantial assistance offered to the prosecution when determining the extent of a defendant’s sentence reduction (i.e. downward departure) below the mandatory minimum.

Defendant (“Spinks”) was sentenced to a 240-month mandatory minimum sentence for conspiracy to distribute cocaine and cocaine base. Pursuant to 18 U.S.C. § 3553(e), the Government filed a motion to reduce Spinks’ sentence on the ground that he had provided the Government with substantial assistance in the prosecution of the codefendant. The motion was granted and Spinks’ sentence was reduced by thirty percent to 168 months. Spinks’ also requested that the court consider other factors to further reduce his sentence, but the court rejected his request. Spinks appealed this denial, but the Fourth Circuit affirmed. After a habeas review, Spinks was re-sentenced to 120 months, and the Government renewed its § 3553(e) motion, which was again granted, reducing Spinks’ 120 months sentence to 84 months. Spinks asked the court to further reduce his sentence based on his post-conviction rehabilitation. The district court, however, denied that it had the authority to depart any further from the minimum sentence based on § 3553(a) factors. Spinks filed an appeal challenging the court’s failure to consider other factors.

Spinks argued that Pepper v. United States, 131 S. Ct. 1229 (2011), and United States v. Davis, 679 F.3d 190 (4th Cir. 2012), permitted the district court to consider factors other than the substantial assistance to the prosecution. The Fourth Circuit, however, held that precedent clearly establishes that “the extent of a § 3553(e) departure below a mandatory minimum guideline must be based solely on a defendant’s substantial assistance and factors related to that assistance.” The Court emphasized that United States v. Hood, 556 F.3d 226 (4th Cir. 2009), addressed the same issue and concluded that the statutory language limited departures from the mandated minimum sentence only where a defendant provided substantial assistance to the prosecution. The Court rejected Spinks’ reliance on Davis. Unlike the present case, Davis involved a motion for sentence reduction pursuant to Federal Rule of Criminal Procedure 35(b), a much broader rule. Davis established that a district court may consider additional factors only after a Rule 35(b) motion had been granted, which was not the case for Spinks. Similarly, the Court rejected Spinks’ claim that Pepper supported his argument. The defendant in Pepper sought a variance from the advisory U.S. Sentencing Guidelines range, not a variance from a mandatory minimum.

Judge Davis concurred in the judgment, but disagreed with the majority’s reasoning. Citing to the First and Sixth Circuits, Judge Davis emphasized that “there is no logical reason to treat Rule 35(b) and § 3553(e) differently,” as the majority did. He also noted that even if the district court would have considered Spinks’ post-rehabilitation, the record shows that the district court would still have imposed the same sentence.

Full Opinion

Abigail Forrister

U.S. v. MCLAURIN, NO. 13-4138

Decided: August 22, 2014

The Fourth Circuit affirmed Appellants’ convictions, but vacated McLaurin’s sentence and remanded for resentencing.

Appellants were working with disgruntled drug couriers, and implemented a plan to rob a drug “stash house” containing between seven to nine kilograms of cocaine. However, the stash house did not exist, and the alleged drug couriers were actually undercover law enforcement officers. Appellants were arrested, and convicted on a variety of conspiracy and firearms charges. Appellants each moved to sever the felon-in-possession charges from the conspiracy charges, which the district court granted for Lowery, but denied for McLaurin. Both received a jury trial on the remaining charges, and both primarily relied on an entrapment defense. However, the jury rejected the defense and convicted both Appellants. Appellants filed timely appeals.

The Fourth Circuit found no error in the district court’s jury instructions regarding Appellants’ entrapment defense, and its supplemental instruction on the term “inducement.” The Court stated that the district court’s elaboration on the circumstances for inducement were consistent with Fourth Circuit law. Further, the Court stated that the district court did not err by admitting evidence of prior bad acts by Appellant Lowery because evidence that tended to prove that Lowery had the ability to bring a powerful firearm to the planned stash house robbery was relevant in determining Lowery’s predisposition to commit the robbery. Also, the Court found that Appellant McLaurin’s prior conviction of common law robbery, the district court was in the best position to determine whether McLaurin opened the door to the introduction of his past history with robbery. The Court stated that Appellant McLaurin was not prejudiced by the district court’s denial of his motion to sever his felon-in-possession charges from his conspiracy charges, and agreed that the charges were properly joined because both charges were logically related to each other, and helped give a complete picture of the criminal enterprise that McLaurin planned. However, the Fourth Circuit did vacate McLaurin’s sentence and remand for resentencing due to an error in the calculation of McLaurin’s criminal history that increased his sentencing range from 121-151 months’ imprisonment, to 151-188 months’ imprisonment under the U.S. Sentencing Guidelines (U.S.S.G.).

Full Opinion

Alysja S. Garansi

U.S. v. WHITE, NO. 13-4949

Decided: November 17, 2014

The Fourth Circuit affirmed Michael White’s (“White”) conviction for arson-related charges, and affirmed his enhanced sentence for commission of arson to a “dwelling.”

White was something of an entrepreneur in West Virginia. Among other ventures, in 1998, he began renting a duplex apartment building. Unfortunately, by 2009, White’s financial situation had deteriorated. One of his ventures had failed, and White’s tenants at the duplex were not paying their rent. Prior to the arson, White obtained an eviction order against one tenant, but apparently the other was never notified and never removed her personal belongings from the apartment. In June 2009, White took out a fire insurance policy on the duplex, and later that summer he paid the Kinders, who lived across the street from the duplex, to burn it down, so that he could collect the insurance proceeds. In the aftermath of the arson, White reneged on his promise to pay the Kinders but he also made comments to an insurance agent that tended to exonerate them of liability. However, the Kinders ultimately implicated White in their testimony to the police, and White was eventually tried and convicted for conspiracy to commit arson, aiding and abetting arson, and accessory after the fact to arson.

The Court first reasoned that the Government had established White was involved in an “activity that [sufficiently] affect[ed]” interstate commerce, as required for the first two convictions. Although White conceded that renting real estate is an “activity” that sufficiently affects interstate commerce, he argued that the duplex was no longer being rented because his tenants had vacated it when the arson took place. However, according to the Court, there was enough evidence to show that the duplex was still being rented at the time of the arson. First, it remained insured as a commercial property. Second, White’s act of commissioning the arson indicated that he did not intend to “remove” the duplex from the rental market, but rather, he intended to collect on the insurance policy.

Next, the Court affirmed White’s conviction for accessory after the fact to arson because, even though he made untruthful statements to an insurance agent instead of a police officer, a reasonable juror could infer that White knew the insurance agent would relay his comments to law enforcement. Further, White’s only purpose for lying to the insurance agent was to shift police attention away from himself and the Kinders.

Finally, the Court affirmed White’s enhanced sentence for committing arson to a “dwelling,” even if the duplex was vacant at the time of the arson. According to the Court, a “brief [vacancy] period” did not warrant a status change from dwelling to “mere building.” Therefore, the Court affirmed White’s convictions.

Full Opinion

James Bull Sterling

U.S. v. DOWELL, NO. 13-4576

Decided: November 13, 2014

The Fourth Circuit held that the district court erred in applying a “vulnerable victim” sentence enhancement to John Dowell’s (“Dowell”) conviction for child pornography-related crimes. However, the Court also held that the district court’s error was harmless, and affirmed Dowell’s 960-month sentence.

Dowell was arrested in late 2011 on child pornography charges. After his arrest, a search of his computers revealed over 70,000 pornographic files, seventy-five percent of which were child pornography. Some of the files included videos of Dowell engaging in sexual acts with two minor children. Thereafter, Dowell was convicted on twelve counts of producing child pornography, and one count of transportation of child pornography.

The Court first reasoned that “as applied” to Dowell, the district court’s sentence did not amount to a “cruel and unusual” punishment in violation of the Eighth Amendment of the U.S. Constitution because the sentence was not “grossly disproportionate” to the crimes he committed. The Court rejected Dowell’s claim that his life-sentence was cruel and unusual merely because he never threatened the minor children with physical harm. Psychological damage, the Court noted, can be just as harmful to the children; for instance, it may cause the minor children to have developmental issues for the rest of their lives.

Next, in considering the district court’s application of the U.S. Sentencing Guidelines (U.S.S.G.), the Court determined that the district court had impermissibly “double count[ed]” when it applied a “vulnerable victim enhancement” to Dowell’s production of child pornography charges. Double counting “occurs when a provision of the Guidelines is applied to increase punishment on the basis of a consideration that has been accounted for by application of . . . a statute.” Although the vulnerable victim enhancement could have been applied in this case for a non-age related reason, the district court clearly applied it based on “age related factors” that were already accounted for in the original charge. However, notwithstanding its double counting, the district court’s error was harmless because Dowell would be still be subject to the same length prison term even if his sentence were recalculated without the double counting.

Full Opinion

James Bull Sterling

U.S. v. AVILA, NO. 13-4606

Decided: November 14, 2014

The Fourth Circuit affirmed the judgment of the district court and upheld an eight-level sentencing enhancement under the U.S. Sentencing Guidelines (“U.S.S.G.”) based on Defendant’s prior first-degree burglary conviction. The Court concluded that Defendant’s prior conviction supported the enhancement because the crime was a crime of violence under California’s statute. The Court further concluded that the district court’s sentencing was procedurally adequate.

Defendant (“Avila”), a Mexico citizen, had a long history of illegally entering the United States and engaging in criminal activity while in the United States. Following a sentence for first-degree burglary in 1994 in California, Avila was removed to Mexico, but again reentered the United States, and was arrested in North Carolina where Avila was indicted by a federal grand jury for illegal reentry following an aggravated felony conviction. The United States Probation Office prepared a pre-sentence investigation report (“PSR”) and recommended an eight-level enhancement. Avila pleaded guilty to illegal entry, and the district court adopted the recommended guidelines range in the PSR.

On appeal, Avila challenged the district court classification of his first-degree California burglary conviction as an aggravated felony justifying an eight-level enhancement under the U.S.S.G. The Court rejected Avila’s argument. First, the Court noted that U.S.S.G. § 2L1.2(b)(1)(C) provides an eight-level increase to the base offense level of any defendant who “previously was deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony.” The Court then noted that the relevant statute defines “aggravated felony” by listing a series of qualifying offenses, including a “crime of violence.” Employing a categorical approach, and relying on Leocal v. Ashcroft, the Court concluded that California’s first-degree burglary qualifies as a crime of violence within the meaning of U.S.C. § 16(b), and therefore qualifies as an aggravated felony. 543 U.S. 1 (2004).

Separately, Avila argued that the district court district court failed to sufficiently individualize the assessment or address his “non frivolous argument for a below-guideline sentence.” The Court, however, held that the district court’s explanation of its sentencing was more than sufficient to preclude a finding of error. The Court similarly rejected Avila’s argument that the district court failed to address his non frivolous argument for a below-guideline sentence concluding that the district court made clear that it considered Avila’s personal history and characteristics.

Full Opinion

Abigail Forrister

U.S. v. BRILEY, NO. 13-4831

Decided: October 22, 2014

The Fourth Circuit affirmed Jay Briley’s (“Briley”) conviction on two felony counts and one misdemeanor count of violating 18 U.S.C. § 111(a) by causing injury to Federal Park Officers (“Officers”) during their official duties. The Court held that the Government did not have to prove an “assault” occurred to obtain a conviction under § 111(a). The Court also held that the district court erred when it allowed the introduction of evidence of Briley’s “other bad acts” to convict him for misdemeanor disorderly conduct. However, the Court found that the error was harmless, and affirmed that conviction as well.

In January 2012, two Officers who were patrolling a national park in Virginia discovered Briley and another man in Briley’s car about to engage in “sexual relations.” The two Officers asked Briley to exit the vehicle but he refused, which led to a struggle between Briley and the Officers. Finally, with the help of two other Park Officers, who arrived during the struggle, Briley was removed from the car and placed under arrest. After a trial, Briley was convicted on three counts of injuring various Park Officers, and one count of disorderly conduct. On the disorderly conduct charge, the district court allowed the Government to introduce evidence of a subsequent incident where Park Officers arrested Briley under similar circumstances. During this subsequent arrest, however, Briley did not act violently.

The Court first reasoned that the Government was not required to prove an “assault” occurred to obtain a conviction under § 111(a) because doing so would render the statute superfluous. Section 111 imposes penalties in varying degrees for a person who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” a federal officer. While the specific penalty depends on the severity of the crime committed, each penalty referred back to these previously mentioned “violative acts.” Therefore, Briley could be held liable under § 111(a) for committing any of the six violative acts, including, but not limited to, an assault.

The Court also reasoned that Briley’s subsequent arrest was improperly admitted into evidence by the district court, under Federal Rule of Evidence (F.R.E.) 404(b), to support the disorderly conduct charge because Briley did not act violently during the subsequent arrest. F.R.E. Rule 404(b) evidence can be introduced as evidence of other bad acts but not to show that the defendant has a “propensity” to break the law. In this case, there was no evidence that Briley was violent during the subsequent arrest. The error in admitting this subsequent arrest was harmless, however, because the Government only needed to prove to the jury that Briley knew his conduct was “inappropriate.” Other evidence that the Government introduced at trial satisfied this “modest bar[,]” and so the Court affirmed Briley’s convictions.

Full Opinion

James Bull Sterling

U.S. v. CATONE, JR., NO. 13-4663

Decided: October 15, 2014

The Fourth Circuit upheld Defendant’s (“Catone”) conviction for making a false statement in connection with his receipt of federal worker’s compensation benefits, but vacated his sentence and the restitution order, and remanded for further proceedings.

In 2006, Catone, a former United States Postal Service employee, began receiving payments under the Federal Employees Compensation Act based on injuries arising from extended periods of driving. To verify his continued eligibility for benefits, Catone was required to submit a form each year, which disclosed whether he had been employed, or earned any compensation, during the past fifteen months. From March 2007 to September 2009, Catone reported that he was unemployed for all periods and had not earned any compensation. Catone, however, had received $635 for custodial services. As a result, Catone was convicted by a jury for violating 18 U.S.C. § 1920. The district court sentenced Catone to a sixteen-month term of imprisonment, and imposed restitution in the amount of $106,411.83.

On appeal, Catone challenged his conviction, imprisonment, and the imposed restitution amount. First, Catone argued that the Government should have produced a form that he had submitted to the Department of Labor in March 2007, which disclosed the $ 635 compensation. Catone claimed that the Government’s failure to produce the form as part of discovery constituted a Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963). Reviewing the claim for plain error, the Court rejected Catone’s argument because the material was known to Catone; the form was publicly available and could have been uncovered by Catone; and, because Catone was unable to show that had the form been disclosed, it would have likely changed the verdict.

The Court, however, citing 18 U.S.C. § 1920, did conclude that the imposition of Catone’s sixteenth months’ felony sentence violated his Sixth Amendment right to trial by jury. Section 1920 establishes two levels of sentencing depending on the amount of benefits “falsely obtained.” If the amount of loss does not exceed $1,000, the defendant may be convicted of a misdemeanor, but if the amount received is more than $1,000, the defendant may be convicted of a felony. Thus, the Court adopted the Eleventh Circuit’s interpretation of § 1920, and held that the amount of benefits falsely obtained constitutes a substantive element for a felony offense, which must be submitted to the jury and proven beyond a reasonable doubt. The Court further rejected the Government’s claim that the error was harmless. Rather, the Court concluded that the jury made no finding that the amount of benefits obtained exceeded $1,000, which would support a felony sentence. Accordingly, the Court vacated Catone’s felony conviction, and instructed the district court to impose a misdemeanor sentence on remand.

Finally, the Court held that the district court erred in calculating the loss amount for purposes of sentencing enhancement and restitution. The district court failed to use the correct formula, as established in United States v. Dawkins, 202 F.3d 711, 715 (4th Cir. 2000), when calculating the loss amount. Thus, the Court vacated the restitution order and remanded to the district court for calculation under the correct formula.

Full Opinion

Abigail Forrister

U.S. v. MODANLO, NO. 13-4378

Decided: August 7, 2014

The Fourth Circuit denied Modanlo’s midtrial notice of appeal, and held that the district court was not stripped of jurisdiction when Modanlo made his midtrial notice of appeal.

Modanlo was charged on eleven counts relating to his involvement in “conspiring to illegally avoid the [Iran] trade embargo[,]” money laundering, and transferring “criminally derived property[.]” Count Eleven of Modanlo’s indictment charged him with obstructing joint bankruptcy proceedings for him and his closely held business. However, eight months prior to the trial the joint proceedings were dismissed, and Modanlo argued that dismissal collaterally estopped the Government from bringing the obstruction charge against him. The district court denied Modanlo’s motion but failed to provide a written opinion until the sixth day of trial. During trial, Modanlo filed a notice of appeal on Count Eleven, which he argued could be severed from the other counts. The district court denied his motion and Modanlo was convicted on all but one count. Modanlo appealed, asserting that his midtrial appeals, “divested the court of jurisdiction to adjudicate his case,” therefore rendering his convictions and sentences a “legal nullity.”

The Court reasoned that Modanlo’s appeals were the “nullity” because he waited to file a notice of his appeal until after the trial began, and before the trial court entered a final judgment against him. Although the trial court failed to provide a written ruling on his pretrial motion until after the trial began, Modanlo was “without a basis for extraordinary relief[,]” and, therefore, had to wait for a final judgment to be entered against him before appealing. Thus, Modanlo’s midtrial appeals were dismissed.

Full Opinion

James Bull Sterling

U.S. v. STEPHENS, NO. 12-4625

Decided: August 19, 2014

The Fourth Circuit declined application of the exclusionary rule to suppress evidence police officers gathered against Stephens, and affirmed his conviction for illegal possession of a firearm.

In 2011, police officers attached a GPS device to Stephens’s car because of a tip that informed them Stephens, a convicted felon, would be carrying a weapon. The officers used the GPS device to track Stephens to a nightclub and, after his behavior provided the officers with reasonable suspicion, they performed a patdown on Stephens that revealed an empty holster. The officers then used a dog to inspect the outside of Stephens’s car, which led to a search of the car, where they found a firearm. While Stephens’s case was pending, the U.S. Supreme Court decided United States v. Jones, in which it held that “installation of a GPS device on a target’s vehicle . . . constitutes a ‘search’” under the Fourth Amendment. Consequently, although it had previously been standard practice for police to attach GPS devices to a suspect’s vehicle, after Jones that practice had uncertain constitutional validity.

In affirming Stephens’s conviction, the Court reasoned that it would be contrary to the purpose of the exclusionary rule—“deter[ring] future Fourth Amendment violations”—to suppress the evidence gathered against Stephens, even if the search was unconstitutional after Jones. Here, the officers acted in good-faith reliance on what appeared to be a settled legal precedent, and well-established practices. Therefore, admitting the evidence against Stephens was unlikely to lead to future Fourth Amendment violations.

Further, the Court applied the good-faith inquiry here because the officers had acted reasonably by relying on the widely understood legal principal from the U.S. Supreme Court decision in United States v. Knotts. Many courts understood Knotts to support the proposition that use of a beeper to track a vehicle on public roads, and that this action did not constitute a search. Although Jones proved that reading of Knotts was flawed, the Court reasoned that the good-faith inquiry depends on the totality of the circumstances. Here, the circumstances supported introducing the evidence against Stephens, and so the Court affirmed Stephens’s conviction.

Full Opinion

James Bull Sterling

DANSER v. STANSBERRY, NO. 13-1828

Decided: July 3, 2014

The Fourth Circuit held that the district court erred in denying the defendants’, employees at a federal detention center, motion for summary judgment based on qualified immunity.

After he was assaulted by another inmate in the Butner, North Carolina Federal Correctional Institute, Plaintiff, David Danser, alleged that Theron Boyd, a correctional officer, Lieutenant Bobby Roy, Boyd’s immediate supervisor, and Patricia Stansberry, the prison warden, violated Danser’s Eighth Amendment right to be free from cruel and unusual punishment. Specifically, Danser alleged that the defendants showed deliberate indifference to his safety. Defendant Boyd’s job duties included, inter alia, grouping inmates in the recreation cages for outdoor time and supervising the recreation area. Boyd assigned Danser, who was serving a sentence for sexual abuse and exploitation of a minor, and possession of child pornography, and three other inmates, including a member of a violent prison gang, to the same recreation cage. In violation of his duties, Boyd left the recreation area for several minutes. While Boyd was gone, the gang member assaulted Danser, and during the assault commented about Danser’s sexual abuse of children. Danser suffered “a ruptured spleen, a punctured lung, some broken ribs, and numerous bruises and abrasions.” The defendants filed a motion for summary judgment on the basis of qualified immunity, and the district court denied the motion.

In reviewing the district court’s decision to reject the defendants’ qualified immunity claim, the Court applied the two-step Saucier test. The Saucier test first requires that the reviewing court “decide whether the undisputed facts show that the government official’s actions violated the plaintiff’s constitutional rights.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the first step is satisfied, then the court “must determine whether the right at issue was ‘clearly established’ at the time of the events in question.” Id. To prove the deprivation of a constitutional right a prisoner must show (1) a serious deprivation in the form of a “serious or significant physical or emotional injury,” Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 723 (4th Cir. 2010), and (2) that the prison official allegedly responsible for the deprivation had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Here Danser suffered serious physical injuries, thus the Court found the first element was satisfied. Specific to the claim against Boyd, the Court reasoned that Boyd may have been negligent when he left the inmates unsupervised, but that Danser failed to provide any evidence to suggest that Boyd acted out of deliberate indifference. With respect to the claims against Stansberry and Roy, the Court concluded that the district court’s conclusions were erroneous for two reasons. First, government officials cannot be held liable under a theory of respondeat superior. Second, the record revealed no evidence that the prison had a policy or practice that failed to provide adequate protection for sex offenders. Because Danser failed to prove the first step of the Saucier test, the Court concluded that the district court erred in denying the defendants’ summary judgment motion on the basis of qualified immunity without reaching the second step of the Saucier test.

Full Opinion

Amanda K. Reasoner

UNITED STATES v. SEIGNIOUS, NO. 12-4621

Decided: July 1, 2014

The Fourth Circuit held that: (1) Seignious failed to show prejudice because the district court failed to follow the various procedures that 18 U.S.C. § 3664(a)–(d) required; (2) Seignious was not entitled to relief from the district court’s factual finding on the actual losses caused by the conspiracy; and (3) there was no reason to believe that the district court would have ordered Seignious to pay a different amount under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, if the district court had explained its reasoning for imposing the restitution.

Seignious, the Defendant, was a key player in a conspiracy to steal credit card numbers. The Government’s evidence included a color-coded spreadsheet listing three categories of stolen credit cards: 1) credit cards gained through the bulk purchase of stolen credit card numbers that could have been purchased by people outside of the conspiracy; 2) credit cards with evidence verifying usage by the conspiracy; and 3) credit cards with evidence verifying usage by the conspiracy, but without corroborating evidence on the computers that were used by the conspiracy. This spreadsheet was prepared as the law enforcement agency was gathering evidence, and was not created specifically for trial. The Defendant appealed the district court’s judgment for restitution, and the Government submitted the Restitution Worksheet shortly after the appeal was filed, which specified the names of the victims and their addresses.

The Fourth Circuit first examined whether the Government and the district court sufficiently complied with 18 U.S.C. § 3664(a)–(d), which lays out the procedures for issuance and enforcement of a restitution order under MVRA. The Fourth Circuit reviewed the case for plain error because Seignious failed to object to the procedural compliance with § 3664(a)–(d) in the lower court. The four prongs of plain error review considered by the Court were: (1) whether the existence of legal error had been waived by the appellant; (2) whether the legal error was “clear or obvious;” (3) whether the obvious legal error affected the outcome of the district court’s proceedings; and (4) if the first three prongs were satisfied, whether “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 134 (2009). The Court reasoned that, though all required procedures were not followed, Seignious failed to show an obvious legal error that would have affected the outcome of the district court’s proceedings because the district court had all of the evidence that it relied on when it calculated the restitution, and Seignious had a fair opportunity to challenge the evidence.

Also under plain error review, the Fourth Circuit found that the district court’s accounting of the evidence was plausible because: (1) the district court had evidence to support at least half of the loss amounts even without the bulk purchase stolen credit cards; (2) the spreadsheet was based on losses found during the time period in which the conspiracy was ongoing and in which the conspiracy had care, custody, and control of the credit card information; and (3) the evidence included corroborating coconspirator testimony. Focusing on the third prong of plain error review, the Court further determined that Seignious would not be able to show that the district court’s failure to sufficiently explain its reasoning would have affected his substantial rights because the Court could find no reason to believe that the outcome would have been different when the district imposed the restitution. Finally, the Court concluded that the lower court’s failure to specifically identify the victims and their respective losses in its judgment was not plain error because filing of the Restitution Worksheet approximately one week after the district court’s judgment did not affect Seignious’ substantial rights.

Full Opinion

Verona Sheleena Rios

U.S. v. VALDOVINOS, NO. 13-4768

Decided: July 25, 2014

The Fourth Circuit affirmed the Appellant’s sentence enhancement based on the district court’s finding that he illegally reentered the country after his prior conviction for felony drug trafficking in North Carolina (NC).

In May 2013, the Appellant illegally reentered the United States, and was arrested a few weeks later for resisting a public officer. The district court increased the Appellant’s sentence due to his prior 2008 NC conviction for felony drug trafficking, a charge punishable by more than one year in prison. The Appellant argued that his prior conviction was not punishable by more than a year because he was sentenced according to a plea agreement that capped his prison sentence at twelve months. Thus, the Appellant stated that his prior conviction was not a felony for the purpose of the sentence enhancing guidelines. However, the district court rejected the Appellant’s argument, and found that this plea agreement did not change the fact that the original offense was punishable by imprisonment for over a year because the maximum statutory penalty was sixteen months. The Appellant filed a timely appeal.

The Fourth Circuit stated that in determining the maximum sentence an offender may receive for a prior conviction, a judge must examine three pieces of evidence: the offense class, the offender’s prior record level, and the aggravated sentencing range’s applicability. U.S. v. Simmons, 649 F.3d 237, 247 n.9 (4th Cir. 2011). In the Appellant’s case, the NC Structured Sentencing Act (NCSSA) authorized a maximum sentence of sixteen months in prison due to his prior conviction. The Court found it irrelevant that the Appellant’s sentence pursuant to his plea deal was only recommended to range from ten to twelve months. Further, the Fourth Circuit stated that prior NC conviction qualified as a federal sentencing predicate because it was punishable by imprisonment over one year based on the Appellant’s prior offense class, record level, and sentencing range. The Court also found no precedent to support the Appellant’s argument that the plea deal negotiations that he participated in displaced the NCSSA and established the maximum punishment for any offender sentenced pursuant to a plea negotiation deal. The Court stated that the Appellant should have tried to plead guilty to a lesser crime if he wanted to avoid a conviction punishable under NC law by imprisonment greater than a year, but the reality was that the Appellant did plead guilty to an offense punishable under NC law by a maximum imprisonment of sixteen months in prison. Thus, the Appellant could not now claim that the district court unfairly enhanced his sentence based on a predicate offense. Therefore, the Fourth Circuit affirmed the district court’s judgment, and held that NC’s legislatively mandated sentencing structure determined whether the Appellant’s prior NC conviction was punishable by more than one year in prison, not the sentence recommended in the Appellant’s plea deal.

Full Opinion

Alysja S. Garansi

U.S. v. JONES, No. 12-7675

Decided: July 14, 2014

The Fourth Circuit affirmed the district court, and held that McQuiggin v. Perkins does not extend to cases in which a movant asserts actual innocence from his sentence, rather than from his crime of conviction.

Appellee was convicted of federal cocaine charges, with a sentence enhancement based on two prior Florida state court convictions, among other things. Appellee’s state convictions were later vacated; he subsequently challenged the federal sentencing enhancements but his motions were denied as untimely. Appellee then appealed to the Fourth Circuit, arguing that, under McQuiggin, he was “actually innocent” of his sentence, and was entitled to equitable relief from the one year statute of limitations. In McQuiggin, the United States Supreme Court, for the first time, provided equitable relief to a statutory bar to prevent the “miscarriage of justice” when an appellee was “actually innocent” of his conviction.

The Fourth Circuit held that that McQuiggin did not extend to actual innocence from sentences. The Court reasoned that because the McQuiggin Court “made no explicit indication that its holding was intended to be applied to the actual innocence of sentence context”, and that “the McQuiggin standard . . . cannot . . . be easily applied to a sentencing decision,” the Appellee was not entitled to equitable relief.

Full Opinion

Chris Hampton

U.S. v. PERRY, NO. 13-4012

Decided: July 1, 2014

The Fourth Circuit affirmed the district court, and held that the indictment contained sufficient evidence to support the Defendant’s convictions, and identify the essential elements of the crimes charged.

Perry, the Defendant, was convicted of three counts of fraud related to his receipt of Social Security and healthcare benefits. On appeal, Defendant argues that the district court should have dismissed the indictment for failure to include essential elements of the fraud charges, and because it was barred by the statute of limitations. In addition, Defendant claimed that the Government failed to prove that he engaged in a scheme, or artifice to defraud the government.

Defendant applied for Social Security disability insurance benefits, and agreed to report to the agency if his medical condition improved such that he could work. Defendant later held several jobs, and continued to receive aid from the Medicare Part D program and the Low Income Subsidy program. Defendant was then accepted to the Federal Career Intern Program, a two-year paid training program to become a Benefits Technical Examiner with the Social Security Administration (“SSA”). After repeated failed requests to report his income from the SSA to Defendant, the SSA terminated Defendant’s aid. On appeal, Defendant argued that Counts One and Two of the indictment were unconstitutionally defective because they failed to specify the “event” that triggered his obligation to disclose his employment to the Government; that the indictment failed to allege specific intent for all three counts; that the indictment failed to allege a scheme, or artifice, to defraud the Government on Count Three; and that the indictment is time-barred by the statute of limitations. Defendant also challenges the sufficiency of the evidence on Count Three.

The Fourth Circuit agreed with the district court that the indictment contained sufficient evidence to uphold the Defendant’s convictions, and identify the essential elements of the crimes charged. The Court noted that the indictment tracked the statutory language, provided specific details about the nature of the charges, and identified the “event” triggering Defendant’s disclosure obligations. The Court also agreed with the district court, and held that Defendant’s indictments did allege specific intent to defraud (as an essential element of the crime) by stating that the Defendant “did conceal and fail to disclose said events with intent to fraudulently secure payment [:] . . .” 1) in a greater amount than is due and when no payment is authorized, and 2) concealed and failed to disclose his employment and earnings to Medicare. Furthermore, the Court refuted the Defendant’s statute of limitations argument by applying the continuing offense doctrine.

Full Opinion

Grace D. Faulkenberry

U.S. v. BROWN, NO. 13-4249

Decided: July 1, 2014

The Fourth Circuit affirmed Brown’s convictions for conspiring to traffic drugs, and for her role in a related murder. The Court concluded that the police did not violate Brown’s Fifth Amendment rights by interviewing her without her attorney present; that the district court did not commit plain error when it left the bench while the jury watched Brown’s taped interview with the police; and that although the district court miscalculated the conversion rate of kilograms to pounds, which enhanced Brown’s sentence, the miscalculation resulted in harmless error.

For many years, Brown ran a drug trafficking operation where she smuggled drugs into the United States from Mexico, and sold them throughout the Northeast. She moved about one ton of marijuana per month, using a portion of the proceeds to invest in real estate in Jamaica. In 2010, Brown was indicted and pled guilty to “bulk cash smuggling” money out of the United States. While in jail, she elected to conduct two interviews with the police to discuss her role in the murder of Michael Knight. Brown’s attorney was not present for either interview, but each time she waived her Miranda Rights prior to speaking with the police. Based on her two interviews and further investigation, the Government brought charges against Brown for conspiring to traffic drugs, and for her role in Knight’s murder. For sentence enhancement purposes, on the drug trafficking charge, the Government had to prove that Brown conspired to traffic 1,000 or more kilograms of marijuana. However, when the jury was charged, all parties miscalculated the proper conversion ratio between kilograms and pounds. The parties believed 2,200 pounds equates to 1,000 kilograms, but 2,200 pounds actually equates to just less than 998 kilograms. Therefore, the Government presented evidence that Brown trafficked 2,200 pounds of marijuana, when it needed to prove she trafficked 2,204.63 pounds. Brown’s attorney initially questioned the conversion but failed to object, and Brown was convicted on all counts.

The Court reasoned that the district court did not err by introducing the videotaped interviews between Brown and the police, although these interviews were conducted without Brown’s attorney present, because she made those statements voluntarily. Furthermore, Brown’s attorney was not constitutionally ineffective under the Sixth Amendment simply because her attorney failed to “insist” in joining the interviews.

The Court also reasoned that the district court’s “vacation from the bench” while the jury watched those taped interviews was not reversible error per se because the district court was “absent for a relatively short time after all the evidence had been presented; no rulings were requested during the court’s absence”; and nothing else “of note” happened in its absence. Furthermore, Brown’s attorney failed to make a timely objection to preserve the error on appeal.

Finally, although the district court mistakenly calculated the kilograms to pounds conversion, Brown’s attorney failed to timely object—rather, her attorney questioned the conversion numbers, but then accepted the district court’s flawed conversion. Thus, the district court’s flawed conversion was a harmless error because the Government presented evidence that Brown trafficked drugs more than 2,204.63 pounds, which was the requisite. In fact, the jury foreperson’s words to the district court seemed to understand that to be the case, and stated that the jury found that Brown trafficked 2,200 pounds “or more.”

Full Opinion

James Bull Sterling

U.S. v. HENRIQUEZ, NO. 13-4238

Decided: June 27, 2014

The Fourth Circuit vacated the Defendant’s enhanced sentence, and remanded the case for resentencing.

Henriquez, the Defendant, pled guilty to illegally reentering the United States (U.S.) in violation of 8 U.S.C. § 1326(a) and (b)(2).  Defendant’s pre-sentence report (PSR) listed his 2000 conviction for first-degree burglary in Maryland as a crime of violence.  Thus, the district court applied the sentencing enhancement to the Defendant’s sentence based on his PSR and sentenced Defendant to forty-one months’ imprisonment.  Defendant filed a timely appeal, arguing that a Maryland conviction for first-degree burglary did not qualify as a crime of violence, and, thus, did not allow for an enhancement of Defendant’s PSR.

The Fourth Circuit stated that a defendant previously convicted of a crime of violence is subject to a sentencing enhancement if the defendant is later convicted of illegally re-entering the U.S.  “Burglary of a dwelling” is specifically listed as a crime of violence under the U.S. Sentencing Guidelines (U.S.S.G.).  § 2L1.2(b)(1)(A)(ii).  However, the Fourth Circuit stated that a sentencing court must ascertain whether a defendant’s prior burglary conviction included an “unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime” before it can apply a sentencing enhancement.  Taylor v. U.S., 495 U.S. 575, 598 (1990).  Further, the burglary must have occurred in a “dwelling.”  U.S. v. Bonilla, 687 F.3d 188, 190 n.3 (4th Cir. 2012).  The Supreme Court’s definition of generic burglary excludes boats, motor vehicles, or any other enclosures from the term “dwelling.”  Shepard v. U.S., 544 U.S. 13, 16 (2005).  Federal courts cannot interpret a state statute differently from a state’s highest court.  Maryland’s criminal code does not define the meaning of dwelling under its robbery statutes.  However, Maryland’s highest court determined that the test for a dwelling is whether it is used regularly as a place to sleep.  Thus, Maryland’s statutory definition for “dwelling” is broader than the U.S. Supreme Court’s generic burglary definition.  The Fourth Circuit stated that it did not have the authority to place a limiting construction on the Maryland statute to exclude boats, motor vehicles, or other enclosures not covered by the federal definition of generic burglary.  The Court also noted that a “realistic probability” existed that Maryland would apply its first-degree burglary statute to conduct that falls outside of the U.S. Supreme Court’s generic definition of burglary.  The Fourth Circuit stated that a sentencing court is unable to determine whether a first-degree burglary in Maryland did not involve an excluded enclosure because federal courts are precluded from looking at the facts that underlie a prior conviction. Therefore, the district court erred by applying a sentencing enhancement to Defendant’s conviction.

Full Opinion

Alysja S. Garansi

U.S. v. ADEPOJU, NO. 12-5007

Decided: June 23, 2014

The Fourth Circuit affirmed the defendant’s convictions for bank fraud and identity theft, and vacated the defendant’s sentence; the Court determined that the Government failed to establish that defendant used sophisticated means, and the district court erred by shifting the burden to the defendant to disprove sophistication.

Defendant was involved in a bank fraud scheme with a government confidential informant (“CI”).  The CI opened two bank accounts using false identification documents provided by the defendant.  Defendant then provided checks for the CI to deposit, and asked the CI to withdraw the money, and share the proceeds with defendant.  The district court applied a two-level enhancement to the bank fraud sentences for using sophisticated means, as required by the U.S. Sentencing Guidelines (U.S.S.G.).  The district court determined that because defendant could not show that he used unsophisticated means (i.e. common internet sources) to commit bank fraud, the evidence “reinforces the view that [defendant’s] scheme must have been sophisticated.”  Accordingly, the district court applied the sentencing enhancement.

The Fourth Circuit determined that the district court erred in shifting the burden to defendant to disprove the use of sophisticated means.  Relying on the axiom that the Government must prove by a preponderance of the evidence the applicability of a sentencing enhancement, the Fourth Circuit determined that the district court erred in applying the sentencing enhancement by failing to rely on any evidence that defendant had used sophisticated means in committing bank fraud.

Full Opinion

Chris Hampton

U.S. v. LOUTHIAN, NO. 13-4231

Decided: June 23, 2014

The Fourth Circuit affirmed the Western District of Virginia Court’s decision convicting Appellant of multiple offenses related to a healthcare fraud scheme.

Appellant was the former President and Business Manager of the Saltsville Rescue Squad, Inc., (the “Squad), which provided ambulance transport for medical emergencies, as well as non-emergency transportation for dialysis patients.  The Medicare Fraud Control Unit of the Virginia Attorney General’s began investigating the Squad in 2008, and discovered that it provided transportation to three dialysis patients on a weekly basis who could have been transported by less extraordinary means.  The Squad double billed Medicare and a private insurer approximately $1200 to $1500 per trip.  Testimony at trial revealed that Appellant encouraged staff to falsify patients’ physical conditions to ensure that Medicare paid for the Squad’s transport.  A jury convicted Appellant of health care fraud and perjury.  The district court also awarded the Government a money judgment of forfeiture against Plaintiff for $907,521.77.  Plaintiff then filed a timely appeal.

The Fourth Circuit rejected Appellant’s assertion that the prosecution presented insufficient evidence to support his conviction on the health care fraud because it failed to prove the transport of the patients to dialysis was not “medically necessary.”  The Court stated that the prosecution’s evidence at trial sufficiently displayed that the Squad’s transport patients could stand, walk, and perform manual labor, yet Appellant submitted information describing the patients as bedridden.  Further, Appellant was personally aware of the patients’ conditions since he participated in some of the transports, and even altered the Squad’s reporting practices to cover up the fraud.  The Fourth Circuit also found sufficient evidence to support Appellant’s perjury conviction.  A perjury charge requires that the prosecution prove that Appellant knowingly made a “false material declaration” while he was under oath.  At trial, the prosecution compared Appellant’s testimony that one of the clients was transported on a stretcher by the Squad for a couple of years against a video of Appellant watching that same client walk from the ambulance to her home a few months before trial.  The Fourth Circuit also rejected Appellant’s “baseless” argument that it was inconsistent for a jury to convict Appellant of the health care fraud when it acquitted the Squad.  The U.S. Supreme Court established that a defendant cannot challenge a conviction simply because the conviction is inconsistent with a jury’s acquittal on another count. The Fourth Circuit also found no abuse of discretion in Appellant’s forty-eight month sentence because he failed to show that the sentence was unreasonable or tainted by procedural flaws.  Finally, the Court found that Appellant was not prejudiced by the criminal forfeiture since 18 U.S.C. § 982(a)(7) required that the prosecution seek a court order to mandate the Appellant forfeit any property derived from the commission of his health care fraud.

Full Opinion

Alysja S. Garansi

U.S. v. HAIRSTON, NO. 12-8096

Decided: June 11, 2014

The Fourth Circuit held that when the facts that supported the Appellant’s motion for resentencing did not exist at the time of his first 28 U.S.C. § 2255 motion, then his subsequent § 2255 motion was not successive, and remanded his case; therefore reversing the district court’s dismissal of his claim.

In 2003, Appellant, Robert Hairston, pled guilty to conspiracy to possess with intent to distribute (P.W.I.D.) cocaine, cocaine base, and marijuana.  According to the U.S. Sentencing Guidelines (U.S.S.G.), Appellant’s criminal history was a category IV, and thus received a 324-month sentence, which was at the lowest end of his range under the Guidelines.  Appellant filed his first § 2255 motion within a year of sentencing, which the district court denied.  Appellant then repeatedly filed motions to vacate one of his North Carolina convictions for eight years.  In 2011, North Carolina vacated this conviction, which had factored into his category IV criminal history.  Thus, Appellant filed this successive § 2255 motion to lower his criminal history to category III, which would subsequently lower his sentence range for his 2003 P.W.I.D. under the U.S.S.G.  The district court dismissed Appellant’s motion as unauthorized under 28 U.S.C. § 2244(b)(3)(A).

The Court granted a Certificate of Appealability (COA) on the issue of “whether [Appellant’s] numerically second § 2255 motion is a ‘second or successive’ motion for purposes of 28 U.S.C. § 2255(h), where the basis for his claim did not arise until after the district court denied his first § 2255 motion,” and reviewed the district court finding de novo.  The Court restated § 2255(h) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and noted that the Tenth and Eleventh Circuits have held that § 2255 motions are not successive when asked to reopen a federal sentence upon the vacatur of a state conviction.  See In re Weathersby, 717 F.3d 1108, 1111 (10th Cir. 2013); Stewart v. United States, 646 F.3d 856, 863–65 (11th Cir. 2011).  Ultimately, the Court aligned with the Tenth and Eleventh Circuits, and reemphasized its position that not every petition is “second or successive” under the statutory definition of AEDPA.  In re Williams, 444 F.3d 233, 235 (4th Cir. 2006).

Full Opinion

Samantha R. Wilder

U.S. v. SAAFIR, NO. 13-4049

Decided: June 11, 2014

The Fourth Circuit held that law enforcement conducted an unreasonable search of the defendant’s car because the probable cause to search the vehicle was tainted, and thus the defendant’s statements and evidence of the weapon found in the car should have been suppressed.

The defendant, Saafir, was pulled over by law enforcement for speeding through a residential area and for excessively tinted windows.  Saafir informed the officer that his license had been revoked.  The officer then ran a check on Saafir’s identification, and discovered that Saafir was considered an armed and dangerous person, a validated gang member and had an order to stay away from Durham Public Housing Authority property.  The officer radioed for backup and requested that Saafir step out of the car so that the officer could explain the warnings that the officer was giving for speeding and for tinted windows.  When Saafir exited the car, the officer noticed a flask in the pocket of the driver’s side door.  The officer informed Saafir of shootings and violence in the area and requested permission to frisk Saafir, to which Saafir consented.  After a second officer arrived, the officer then requested permission to search the vehicle, and Saafir refused, saying that he did not own the car.  The officer further attempted to “talk [Saafir] into letting him search the car,” stating that the driver could give consent without being the vehicle’s owner.  In the face of Saafir’s continued refusal, the officer said that he had probable cause to search the vehicle due to the presence of the flask because it is illegal to possess alcohol that is not in the original unopened manufacturer’s container.  Saafir did not give express consent, but did not stop the officers from conducting the search.  The officers asked if there was anything they should know about inside the vehicle. Saafir responded that there “might” be a gun in the vehicle and that the gun “might” be under the seat.  The officer’s did not find a weapon.  The officers did not check the flask, nor did either officer detect the odor of alcohol in the vehicle or on Saafir’s person.  Upon request, Saafir gave the officers the key to the locked glove box where they found a pistol.  In the district court, Saafir moved to suppress evidence of the pistol.  The district court denied his motion holding that the officer had probable cause based on Saafir’s statement that there “might” be a gun in the car.

The Fourth Circuit determined that the officer’s assertion of probable cause to search the vehicle based on the presence of the flask was “an independent, antecedent threat to violate the Fourth Amendment that ultimately fatally taints the search of the car and the seizure of the gun.”  A search is unreasonable when the searching officer lacks probable cause.  Ornelas v. United States, 517 U.S. 690, 696 (1996).  Probable cause exists “where the known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found.”  Id.  There was no evidence that Saafir was under the influence of alcohol, and the officers did not check the flask for alcohol.  A search or seizure is unconstitutional when premised on a law enforcement officer’s misstatement of authority to perform the search or seizure.  E.g. Bumper v. North Carolina, 391 U.S. 543, 547–50 (1968) (invalidating a search of a home after the officer falsely stated that he had a warrant).  “[E]ngaging or threatening to engage in conduct that violates the Fourth Amendment” does not justify a law enforcement officer’s search or seizure.  Kentucky v. King, 131 S. Ct. 1849, 1858 (2011).  Thus, the Fourth Circuit reasoned that because Saafir’s admission that there might be a gun in the car was given only after the officer falsely stated his authority to search the car, Saafir’s admission could not provide probable cause to search the vehicle for a weapon.  The Court held that the evidence of the pistol and Saafir’s statements should have been suppressed.  Wong Sun v. United States, 371 U.S. 471, 487–88 (1963).

Full Opinion

Verona Sheleena Rios

U.S. v. MUNGRO, NO. 13-4503

Decided: June 11, 2014

The Fourth Circuit held that defendant’s prior “breaking or entering” convictions qualified as Armed Career Criminal Act (“ACCA”) predicate offences.  Affirmed.

Defendant had three prior state convictions for “breaking or entering.”  The ACCA establishes minimum sentencing requirements for felons in possession of a firearm when the felon has previously been convicted of three, or more, “predicate offenses,” which include burglary.  Defendant argued that his convictions for “breaking or entering” were not burglary as defined in the ACCA, and, therefore, the district court erred in applying the heightened sentence.

The Court compared North Carolina’s “breaking or entering” statute with the generic burglary offense as defined in the Model Penal Code and popular treatises, and determined that it fell within the definition of burglary found in the ACCA because the North Carolina’s “breaking or entering” offense “sweeps no more broadly” than generic elements of burglary.

Full Opinion

Chris Hampton

U.S. v. BAREFOOT, NO. 13-4108

Decided: June 9, 2014

The Fourth Circuit affirmed the district court’s decisions to deny Charles Barefoot’s motion to represent himself at trial; to admit into evidence proof of Barefoot’s involvement in a previous murder; and to uphold Barefoot’s convictions for receiving explosives, and soliciting an associate to help use those explosives to blow up a courthouse, because the government presented sufficient evidence to support those convictions.  Conversely, the Court reversed the district court’s decisions to deny Barefoot’s motion to dismiss charges for improperly storing explosives (Count Five), and providing explosives to a minor (Count Six), which the Government had brought in violation of Barefoot’s plea agreement.  However, these dismissals, the Court ultimately denied Barefoot’s appeal for resentencing.

Based on a tip from an informant, police stopped and searched Barefoot’s van for weapons.  Inside the van, police found two handguns, and later they found more guns, Ku Klux Klan material, and material used for making explosives at Barefoot’s home.  Police also searched the home of Barefoot’s son, Daniel, where they found more explosives, which Daniel said Barefoot had given him.  Barefoot was indicted on one count for his possession of a firearm, and subsequently entered into a plea agreement with the Government whereby he pled guilty to that charge in exchange for the Government’s agreement “not to use any information provided by [Barefoot] . . . to prosecute him for additional crimes, except for crimes of violence[.]”  However, based on police discussions with Barefoot, and upon further investigation, the Government learned about Barefoot’s involvement in several other crimes of violence.  The Government found evidence that Barefoot had been involved in the murder of a fellow clansman, the theft of over thirty weapons, the receipt of explosives with the intent to use them to bomb a courthouse, and the solicitation of an associate to help bomb the local courthouse.

The Court reasoned that the district court did not abuse its discretion by ruling that, given all of the circumstances, Barefoot was not mentally competent to represent himself at trial.  The district court did not err when it considered a psychiatric evaluation from the prior year because, even if that report alone was not enough to prove Barefoot’s competency, the district court also relied on its personal observations of Barefoot, and the lack of evidence Barefoot presented to prove his competency.

The Court also reasoned that the district court did not abuse its discretion by admitting evidence of Barefoot’s involvement in a discussion that led to the murder of a fellow clansman as a “prior bad act.”  Barefoot’s prior bad act showed his intent to kill a fellow clansmen, and because that plan was executed, it increased the likelihood that in the “analogous situation” where Barefoot solicited an associate to help him bomb a courthouse, he actually had the intent to follow through with the bombing.  Additionally, the district court on multiple occasions gave the jury limiting instructions on the purpose of the murder evidence.

Finally, the Court agreed with the district court that the Government had presented sufficient evidence to prove Barefoot had received explosives with the intent “to use [them] for prohibited purposes[,]” and that the Government had presented sufficient evidence to prove Barefoot had actually solicited his associate to help him use the explosives to blow up the courthouse.  Based on the timeframe that Barefoot acquired the explosives, and then solicited his associate, the Government was able to prove his mal intent.  Although Barefoot never solicited his associate by “just ask[ing]” for help with the bombing, ample testimony existed to prove he “endeavored to persuade” his associate throughout the conversation.  Further, even if Barefoot only requested help with transportation to the courthouse, and not actually setting off the bomb, his associate would still have been liable as a principal for “aid[ing] and abet[ing]” in the crime.

The Court reversed the district court’s verdicts on Counts Five and Six because those charges violated the “use immunity” the Government agreed to grant Barefoot in his plea agreement.  The Court interpreted use immunity to include direct, and “derivative use immunity[,]” so that the Government should not have been allowed to make indirect use of Barefoot’s statements in connection to his plea agreement to charge him with other related non-violent crimes.  The Government violated the plea agreement with the Count Five conviction, which was a non-violent misdemeanor.  The Court declined to definitively rule whether the Count Six conviction constituted a violent crime, but reasoned that the ambiguity should favor Barefoot, and so it reversed the Count Six conviction as well.

Although the Court reversed Barefoot’s convictions for Counts Fix and Six, it denied his appeal for resentencing because the convictions “had no material effect on his sentence.”  The Court noted that the Count Six conviction ran concurrently with other convictions, and the Count Fix conviction was for a misdemeanor offense.

Full Opinion

James Bull Sterling

U.S. v. WEISS, NO. 13-4039

Decided: June 6, 2014

The Fourth Circuit affirmed the United States District Court for the Middle District of North Carolina and held that: 1) a defendant’s false representation of himself as a certified public accountant (CPA) warranted an increase of two levels in his base offense level for sentencing by his abuse of a position of trust; 2) a defendant could be held accountable at sentencing for knowingly and intentionally failing to claim his illegally acquired gains as income; and 3) the district court did not plainly err by not appointing various experts sua sponte to assist in his defense at sentencing.

The defendant, who headed up a payroll processing company, was convicted of abuse of a position of trust after his convictions for wire fraud, money laundering, and corrupt interference with the United States’ internal revenue laws.  The presentence report (PSR) calculated Weiss’ total offense level under the U.S. Sentencing Guidelines (the U.S.S.G.) at thirty-three, which included a two-level enhancement for the abuse of a position of trust.  The offense level of thirty-three included twenty levels for the loss attributable to the defendant.

The Court upheld the two-level enhancement and reasoned that “[t]he central purpose of [the applicable rule] is to penalize defendants who take advantage of a position that provides them with the freedom to commit a difficult-to-detect wrong.”  The Court found that the defendant’s false representation of himself as a CPA reasonably induced at least one company to do business with him as a professional employer organization (PEO), and caused it to repose a higher level of trust or confidence in him, which is statutorily required to increase his sentencing offense level by two levels.

The Court further agreed with the district court that the personal federal income tax due on the defendant’s illegal gains could be included as part of the loss calculation under the U.S.S.G., in addition to the illegal gain.  The Court noted that the district court’s reasoning was “on the money.”  Specifically the Court stated that the defendant’s first offense was complete when he fraudulently diverted income to himself.  Thus, when he also knowingly and intentionally failed to report such ill-gotten income as income on his federal income tax return, he committed a second, and distinct, offense.

On appeal, the defendant further claimed that the district court abused its discretion by failing sua sponte to appoint him various experts to assist in his defense at his sentencing.  Because the defendant never requested any of the expert assistance that he claimed on appeal was crucial to his ability to mount a successful defense at sentencing, the Court’s review was limited to plain error.  On this standard, the Court held that even assuming arguendo that defendant could establish error as he alleged, there was still no basis to conclude that such error was plain.  Accordingly, the Court concluded that the defendant was not entitled to relief on his claim for various experts on appeal, when he never made known to the district court.

Full Opinion

Abigail Forrister

U.S. v. TAYLOR, NO. 13-4316

Decided: June 6, 2014

The Fourth Circuit affirmed Taylor’s convictions for two counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) and one count of using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c).

Taylor, as part of a robbery group known as the Southwest Goonz, broke into the homes of drug dealers to steal drugs and money.  The victims were assaulted and held at gunpoint.  Money, jewelry, cell phones, and a marijuana cigarette were stolen.  The district court granted the Government’s motion to preclude Taylor from offering evidence that the robbery of drugs grown within the state borders does not affect interstate commerce, reasoning that the drug dealing effects interstate commerce as a matter of law under United States v. Williams, 342 F.3d 350 (4th Cir. 2003).  After a guilty verdict on the Hobbs Act crimes, the district court dismissed Taylor’s motion to set aside the verdict because the Government failed to offer evidence that Taylor’s actions affected interstate commerce.  Taylor appealed.

The Fourth Circuit reasoned that to show a Hobbs Act crime, the Government must prove that (1) there was a robbery or extortion, and (2) that there was interference with commerce.  United States v. Tillery, 702 F.3d 170, 174 (4th Cir. 2012).  The U.S. Supreme Court has recognized that the Hobbs Act should be interpreted broadly.  Stirone v. United States, 361 U.S. 212, 215 (1960).  The Fourth Circuit has previously held that the Government need only prove that the robbery would have a “minimal” effect on interstate commerce.  United States V. Spagnola, 546 F.2d 1117, 1119 (4th Cir. 1976).  The effect could be de minimis, United States v. Buffey, 899 F.2d 1402, 1404 (4th Cir. 1976), and the Government may show an effect on interstate commerce by “proof of probabilities,” United States v. Brantley, 777 F.2d 159, 162 (4th Cir. 1985).  The Hobbs Act violator does not need to intend to effect interstate commerce; rather, the effect can be the “natural, probable consequence of the defendant’s actions.”  Williams, 342 F.3d at 354.  Furthermore, the Court does not consider whether the individual act has an effect, but that the “relevant class of actions” has an impact.  Tillery, 702 F.3d at 174.  The U.S. Supreme Court has repeatedly determined that Congress may regulate conduct that has an aggregate effect on interstate commerce.  See, e.g., Gonzales v. Raich, 545 U.S. 1, 18–19, 22 (2005); Wickard v. Filburn, 317 U.S. 111, 128–29 (1942).  The Fourth Circuit has extended this reasoning to violations of the Hobbs Act.  Tillery, 702 F. 3d at 174–75; Williams, 342 F.3d at 355.  The Court found that other circuits agree with this theory as well.  See United States v. Powell, 693 F.3d 398, 402 (3d Cir. 2012); United States v. Robinson, 119 F.3d 1205, 1214 (5th Cir. 1997); United States v. Davis, 473 F.3d 680, 683 (6th Cir. 2007); United States v. Marrero, 299 F.3d 653, 655 (7th Cir. 2002); United States v. Bolton, 68 F.3d 396, 399 (10th Cir. 1995); United States v. Guerra, 164 F.3d 1358, 1361 (11th Cir. 1999).  The Fourth Circuit determined that the legality of the business was irrelevant, and that it is enough that the transactions are commercial enterprises.  The Court also reasoned that, because businesses can be operated out of the home, the fact that the robberies took place in a private residence was not dispositive of whether the Hobbs Act.

The Fourth Circuit held that a jury could reasonably have found that the Government met its burden of showing that the Hobbs Act applies.  First, the jury could have reasonably found that Taylor’s robberies would have an effect on interstate commerce by depleting the drug dealers of assets, known as the depletion of assets theory.  Buffey, 899 F.2d at 1404.  The Court determined in Williams that drug dealing was “an inherently economic enterprise that affects interstate commerce.”  342 F.3d at 355.   There was sufficient evidence at trial to show that Taylor’s victims were drug dealers, and that Taylor took part in the robberies because he expected to find drugs and drug proceeds in the homes.  The stolen items were enough to satisfy the de minimis standard for showing a depletion of assets.  The jury could also reasonably conclude that Taylor had attempted to steal drugs and drug proceeds.  Second, there was evidence to suggest that Taylor intentionally targeted these businesses engaged in interstate commerce, known as the targeting theory.  Although intent is not a necessary required element, intent can be probative of whether the robberies would have the “natural consequence[]” of affecting commerce.  The Fourth Circuit limited its holding to the robbery of businesses which fall under the Hobbs Act.  The Court noted that the Hobbs Act would not apply to the “private citizens in a private residence,” even if some of the stolen assets belonged to a business in interstate commerce.  United States v. Wang, 222 F.3d 234, 240 (6th Cir. 2000) (stating that the Hobbs Act did not apply where the defendant robbed a private residence and happened to steal cash that belonged to the homeowners restaurant business).

Full Opinion

Verona Sheleena Rios

U.S. v. MARTIN, NO. 12-5001

Decided: June 5, 2014

The Fourth Circuit held that the district court erred by treating the defendant’s 2009 conviction for fourth degree burglary as a “crime of violence” for the purposes of determining his base offense level under the U.S. Sentencing Guidelines (U.S.S.G.).

Martin was convicted for being a felon in possession under the Armed Career Criminals Act (“ACCA”).   According to the applicable Sentencing Guideline for the ACCA, there is a four-point discrepancy for an individual’s base offense level based on his prior felony convictions for crimes of violence.  At the time he plead guilty, Martin had three previous convictions, including two Maryland convictions, one for conspiracy to commit robbery, and one for fourth degree burglary.  The district court held that both convictions involved crimes of violence, and set Martin’s base offense level at twenty-four.  As a result, Martin’s advisory sentencing guideline range was seventy-seven to ninety-six months, and Martin was ultimately sentenced to seventy-seven months’ imprisonment.  On appeal, Martin accepted that the conspiracy charge as a crime of violence, but argued that the fourth degree burglary charge was not.  Martin contended that his base level offense should have been twenty, with a corresponding guideline range of fifty-one to sixty-three months.

The applicable U.S.S.G. defines a “crime of violence” as any federal or state offense that is punishable by more than one years’ imprisonment and that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” of (2) “is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”  The Court noted that the statute does not involve an element of attempted, or threatened, use of force against another, and so its analysis focused on the second prong.

Maryland’s fourth degree burglary statute includes four different crimes: (1) “breaking and entering the dwelling of another,” (2) “breaking and entering the storehouse of another,” (3) “being in a dwelling or storehouse of another” with the intent to commit theft, and (4) “possessing burglar’s tools with the intent to use.”  In Taylor v. United States, the U.S. Supreme Court defined burglary under the ACCA as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. 575, 602 (1990). The ACCA adds an additional element that the unlawful entry be in a dwelling.  Therefore, under this definition, the fourth degree burglary statute does not qualify as “burglary” under the ACCA because it lacks the requirement that the offender intend to commit a crime.  Thus, the Court noted that in order to be considered a “crime of violence,” the Maryland statute must satisfy the residual clause—that is, it must involve “conduct that presents a serious potential risk of physical injury to another.”

The Court reviewed the U.S. Supreme Court precedent discussing the scope of the residual clause.  In Begay v. United States, the U.S. Supreme Court held that the residual clause only encompasses crimes similar in kind and of comparable risk to the enumerated crimes. 553 U.S. 137 (2008). Under this analysis, the U.S. Supreme Court noted that all of the enumerated offenses generally involve “purposeful, violent, and aggressive conduct.”  In a subsequent decision, Sykes v. United States, 131 S. Ct. 2267 (2011),the U.S. Supreme Court returned to a comparable degree of risk analysis, by analyzing the degree of risk posed by the offense in order to determine whether it qualifies under the residual clause.  Specifically, the U.S. Supreme Court noted that Begay involved a strict liability offense.

The Fourth Circuit acknowledged that most circuits have held that Sykes has limited Begay’s similar-in-kind inquiry to only those offenses involving strict liability, negligence, or recklessness.  However, the Fourth Circuit continues to apply Begay to residual clause cases, and the Court did so in this case.  Under the degree of risk test, the Court found that the offense of fourth degree burglary presents a comparable risk of harm to general burglary—the closest enumerated offense—because the risk associated with both is the possibility of a face-to-face confrontation between the burglar and property owner.  In so holding, the Court rejected Martin’s contention that the risk of harm from general burglary stems from the burglar’s intent to commit a crime.

However, this conclusion did not end the Court’s analysis because under the approach adopted by the Fourth Circuit, the offense must also be similar in kind to the offenses enumerated in the U.S.S.G.—burglary, arson, extortion, or a crime involving explosives.  After examining Maryland’s statute, the Court determined that the crimes could be committed based on an unreasonable assumption that an individual had permission to enter, which constitutes negligent, but not purposeful, conduct.  Therefore, the Court held that the fourth degree burglary statute is not similar in kind to the enumerated offenses.  As such, it does not qualify as a crime of violence under the applicable Sentencing Guideline, and the district court erred in its treating it as such.  The Court vacated Martin’s sentence and remanded the case for resentencing.

Judge Diaz wrote separately to concur, and specifically noted the lack of clarity surrounding this issue, and urged Congress or the U.S. Supreme Court to “shed light on this ‘black hole of confusion and uncertainty.’”  In his dissent, Judge O’Grady agreed with the majority’s degree-of-risk analysis.  However, Judge O’Grady disagreed that Begay should apply in this case because fourth degree burglary is not a strict liability or negligence crime.  Judge O’Grady noted that the Fourth Circuit’s application of Begay and Sykes has been inconsistent, and recent cases have limited its application to only those cases involving strict liability or negligence offenses.  However, even if Begay did apply, the dissent argued that the presence of a defense for reasonable mistake does not mean the crime is one of negligence.  Rather, a breaking and entering under the fourth degree burglary statute must be knowingly committed, which constitutes purposeful conduct under Begay.

Full Opinion

Jennifer Jokerst

U.S. v. GRANT, NO. 13-4302

Decided: June 3, 2014

The Fourth Circuit affirmed the district court’s inclusion of the Appellant’s two court-martial convictions as violent felonies for purposes of armed career criminal status under 18 U.S.C. § 924(e).  Therefore, increasing Appellant’s appropriate sentencing range for being a felon in possession of ammunition.

The Appellant received both violent felony convictions in 1980 while serving with the Army in Korea.  In the first incident, Grant used a razor blade to cut a fellow service member in the face, and received a general court-martial for assault by inflicting grievous bodily harm.  Subsequently, Grant overtook the guards that were transporting him after his assault charge, and received a general court-martial for kidnapping.  Ultimately, Grant was dishonorably discharged, and returned to the U.S. to serve out his sentence for both court-martials.  Later, on August 18, 2012, a fifteen-year-old girl disappeared from Columbia, South Carolina, and the Appellant, Freddie Grant, was the main suspect.  During the investigation, the Richland County Sheriff Department and Elgin Police Department executed a search warrant at Grant’s home where they discovered two boxes of ammunition.  Grant was arrested by the Federal Bureau of Investigation (FBI) and convicted for being a felon in possession of ammunition.

Under the Armed Career Criminal Act (ACCA), an individual who has “three previous conviction by any court referred to in section 922(g)(1) . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another” qualifies under the statute.  18 U.S.C. § 924(e)(1) (emphasis added).  On appeal, Grant argued that a general court-martial is not “any court” under the ACCA definition.  Specifically, Grant relied upon Small v. United States to support his claim that court-martials substantially differ from civilian courts, and, thus, should not meet the ACCA definition.  544 U.S. 385 (2005).  In Small, the U.S. Supreme Court held that convictions in foreign courts did not meet the statutory definition of “any court” under the ACCA, section 922(g)(1).  Id.

The Fourth Circuit noted some differences between military courts, Article I courts under the U.S. Constitution, and civilian courts, Article III courts.  However, the Court emphasized that both courts are required to find an individual guilty beyond a reasonable doubt.  Additionally, the Court reviewed fellow U.S. Court of Appeals’ decisions, and found that the Seventh and Ninth Circuit have held that court-martials meet the ACCA’s statutory definition for “any court.”  The Court reasoned that the legislative history and congressional intent surrounding the ACCA support its holding.  Moreover, the Court found that the differences Grant emphasized failed to reach the level of concern the U.S. Supreme Court relied upon in Small.  Therefore, the Court declined to extend that precedent without clear indication from Congress or the U.S. Supreme Court.

Full Opinion

Samantha R. Wilder

FOWLER v. JOYNER, NO. 13-4

Decided: June 2, 2014

The Fourth Circuit held that the pre-trial identification process used to identify the appellant was not impermissibly suggestive, and even if it were unduly suggestive, that the witness’s identification of appellant was reliable.  Affirmed.

Appellant sought federal habeas relief after his state convictions for assault with a deadly weapon with intent to kill, first-degree murder, and two counts of robbery with a dangerous weapon were affirmed on direct appeal.  The district court denied the petition, and declined to issue a certificate of appealability; the Fourth Circuit then granted a certificate of appealability, and affirmed the ruling of the district court.  The Court relied upon Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012), which established a two-part test to determine whether an in-court eyewitness’s identification must be suppressed.  The test requires a court to first consider whether the identification procedure employed by the police was both suggestive and unnecessary, and, second, assess whether improper police conduct creates a substantial likelihood of misidentification.

The witness observed that the appellant was not wearing a mask for five seconds from a distance of twenty-five feet.  Prior to trial the witness was presented with two photographic displays, each containing the appellant’s photograph.  Witness did not positively identify appellant from these arrays.  At a hearing before trial, witness confidently identified appellant as the person he witnessed at the scene of the crime.  Appellant argued that the pretrial identification procedures relating to the photographic arrays were impermissibly suggestive and violated due process.

The Court reasoned that “the North Carolina state court’s rejection of [appellant’s] claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court,” and affirmed the lower court’s denial of appellant’s petition for habeas relief.  The Court found that the photographs of appellant were substantially different in each photographic array.  Further, the record reflected no evidence that police “rigged” the appellant’s identification.

Full Opinion

Chris Hampton

U.S. v. GARCIA, NO.13-4136

Decided: May 15, 2014

The Fourth Circuit held that the district court abused its discretion on its evidentiary rulings as viewed in their totality due to its inadequate adoption of safeguards to avoid the substantial risk of prejudice of the decoding expert’s testimony.  However, the Court also held that the district court did not abuse its discretion by admitting the expert testimony.

Garcia was named in five counts, including conspiracy to distribute heroin, possession with intent to distribute (P.W.I.D.) heroin, and P.W.I.D. 100 grams or more of heroin on three separate occasions.  At trial, Federal Bureau of Investigation (FBI) agents, Drug Enforcement Administration (DEA) agents, and state and local law enforcement officers testified about the government’s surveillance of Garcia and other defendants, including wiretaps on four mobile phones used by Garcia and his accomplices.  FBI Special Agent Carrie Dayton testified as an expert witness about coded telephone conversations gathered in the course of this investigation, appearing on eighteen separate occasions during six days over the two-week trial.  Agent Dayton’s experience included time as paralegal; over six years as an attorney; and over eight years in law enforcement with the FBI.  Agent Dayton was involved in twenty narcotics investigations and five wiretap investigations where she listened to thousands of phone conversations.  Prior to this trial, Dayton had never testified as an expert witness on coded drug language.  Defense counsel repeatedly objected to Agent Dayton’s testimony, particularly for her blending of fact testimony with her expert testimony, failure to conform to recognized methodologies, and failure of counsel to lay a foundation for many of her interpretations.

The Fourth Circuit affirmed the district court’s admission of Agent Dayton’s expert testimony.  Under Federal Rules of Evidence (F.R.E.) 702, a witness is a qualified expert based on knowledge, skill, experience, training, or education.  The Court reasoned that it was the quality of the agent’s experience and not the quantity, which qualified her as an expert.  In particular, her focus on narcotics trafficking for the previous five years with the FBI, which included listening to thousands of wiretap conversations.  However, the Court noted that her description of methodology was vague, but found that the methodology was similar to that described by a decoding expert in U.S. v. Wilson, 484 F.3d 267 (4th Cir. 2007).  Thus, the Court found no indication that the district court abused its discretion.

Furthermore, the Court commended the district court for its early identification of two potential problems with the testimony: (1) the need to distinguish between Agent Dayton’s lay fact testimony and her expert opinion, and (2) the need to ensure that the testimony is based on her experience and expertise and not simply relating what Garcia’s co-conspirators or other witnesses had told her, especially because Agent Dayton had debriefed several of Garcia’s co-conspirators in this case.  Despite early acknowledgement of these issues, the district court failed to safeguard the jury against the danger of confusing when Agent Dayton was offering lay testimony versus expert testimony.  The Court offered recommended safeguards including: requiring the witness to testify at separate times with lay testimony or with expert testimony; giving cautionary instruction to the jury regarding the basis of the testimony; allowing the defense counsel to cross-examine the witness; establishing a proper foundation for the expertise; or having counsel base the question in either fact or expertise while asking the question.  In many instances, a cautionary instruction may be enough to protect against the possible confusion; however, the instructions given here were insufficient.  The district court informed the jury that the Government would clearly ask questions based on the facts or expertise; however, Agent Dayton repeatedly oscillated between these two roles without clarification.  On several occasions, the Government asked Agent Dayton for an expert opinion, and then followed with a fact question based on the agent’s knowledge.  Under F.R.E. Rule 702, an expert must reliably apply their method in forming an opinion that will be helpful to the jury, and not as a way to give fact testimony in the guise of expert opinion.

Agent Dayton relied on her debriefing of the co-conspirators, which lead the court to question whether she was merely channeling out-of-court statements, instead of basing her testimony on her experience with law enforcement and wiretaps.  The U.S. Supreme Court has held that out-of-court testimony by an absent witness is allowed “only where the declarant was unavailable, and only where the defendant has had a prior opportunity to cross-examine.”  Crawford v. Washington, 541 U.S. 36, 59 (2004).  In the Fourth Circuit, the test for whether an expert is giving expert opinion or simply channeling an out-of-court witness is “whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay.”  U.S. v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009).  The Court did not rule on whether Agent Dayton was giving expert opinion or channeling out-of-court witnesses because the Government failed to lay a proper foundation for much of the expert opinion.  The impact of the multilingual telephone conversations on her methodology was not addressed.  Agent Dayton’s interpretations were sometimes inconsistent with each other, and any fact witness would have sufficed for some words and phrases, which were in common parlance.  Thus, the reliability of the record was questionable from the lack of foundation because it was unclear whether Agent Dayton executed her claimed methodology in forming her expert opinion.

Furthermore, the Court was not able to find Agent Dayton’s testimony to be harmless because a lot of the case relied on her interpretation of the wiretap conversations.  These conversations were the only evidence tying Garcia to some of the charges against him.  The test is whether the error had “a substantial and injurious effect or influence in determining the jury’s verdict.” U.S. v. Curbelo, 343 F.3d 273, 278 (4th Cir. 2003) (quoting Kotteakos v. U.S., 328 U.S. 750, 776 (1946)).  The Court considered it irrelevant that there was other evidence inculpating Garcia because the concern was whether the error had a substantial influence.

Full Opinion

Verona Sheleena Rios

U.S. v. BLACKLEDGE, NO. 12-7419

Decided: May 5, 2014

The Fourth Circuit held that the district court abused its discretion by denying the motions to withdraw as council, and, thus, vacated these denials and remanded the decision.

Respondent-Appellant was civilly committed as a sexually dangerous person under the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”).  Before a hearing on his commitment, Respondent successfully moved for the appointment of an expert forensic examiner, who confirmed that he was a sexually dangerous person.  In response, Respondent sought the appointment of a second expert and an extension of the deadline for discovery.  A magistrate judge denied both motions without prejudice.  Respondent’s counsel renewed the motions after the discovery deadline had passed, but the motions were again, denied.

Council for Respondent moved to withdraw from the case, reasoning that she could “no longer continue to ethically represent” Respondent.  Respondent’s counsel also added that she had arranged for new counsel to take over the hearings.  The magistrate judge, however, denied the motion.  Respondent’s counsel appealed the decision to the district court and filed a second motion to withdraw, noting that Respondent had filed a bar complaint against her.  Both motions were denied.  Respondent challenged the denial of the motions to extend and reopen the discovery period, motions to withdraw as counsel, and motions to appoint a second expert forensic examiner.

The Fourth Circuit vacated and remanded the district court’s decision, concluding that it abused its discretion in denying the motions to withdraw as counsel.   The Court concluded that the district court forced Respondent to be represented by counsel, despite asserting multiple conflicts of interest.  In deciding whether a district court abused its discretion in denying a motion to withdraw or to substitute counsel, the Court considers three factors: (1) timeliness of the motion; (2) adequacy of the court’s inquiry; and (3) whether the attorney/client conflict was so great that it had resulted in a total lack of communication preventing an adequate defense.

Examining the first factor, the Court concluded that at least the second motion to withdraw was untimely.  The district court, however, failed to engage in an adequate inquiry regarding the Respondent’s dissatisfaction with his counsel.  The district court also failed to inquire into the factual basis of the conflicts asserted by Respondent’s counsel.  Moreover, the conflict between Respondent and his counsel was so substantial that “[their] relationship had deteriorated to a point that [they] [could not] discuss [Respondent’s] case.”  Thus, Respondent and his counsel were unable to adequately prepare for trial.  Accordingly, the Court held that the district court abused its discretion in requiring counsel to continue representing Respondent.

Where a court abuses its discretion, the ruling is subject to harmless error review.  The Court concluded that, in proceedings that could result in lifelong incarceration for a Respondent who had already served his full prison sentence, to force the Respondent into representation by counsel with whom Respondent could not communicate is not harmless.  Thus, the Court vacated the district court’s judgment denying the motions to withdraw and remanded for the district court to consider the motions after engaging in the appropriate inquiry regarding the extent of counsel’s conflict.

Full Opinion

Abigail Forrister

BARNES v. JOYNER, NO. 13-5

Decided: May 5, 2014

The Fourth Circuit held that the state post-conviction court’s failure to apply a Remmer presumption of prejudice over external juror communication and failure to investigate Barnes’ juror misconduct claim were unreasonable applications of clearly established federal law.  The Court remanded the case to determine whether the state court’s failures had a substantial and injurious effect, or influence, on the jury’s verdict.

In 1994, Barnes was convicted of first-degree murder, and sentenced to death.  Barnes alleged that, after counsel’s provocative closing argument that a juror’s soul would be damned if the death penalty was recommended, a juror discussed the death penalty with her pastor prior to giving a sentencing recommendation.  Barnes later alleged that the juror relayed this discussion to fellow jurors, brought a Bible into the jury room, and read passages suggested by the pastor.  The North Carolina Supreme Court held that Barnes failed to prove that the juror’s contact with her pastor prejudiced Barnes, or denied him the right to an impartial jury.  Despite new evidence in 1999 that confirmed some of what Barnes alleged, the state post-conviction court denied Barnes’ claim, and adopted the same analysis as the state supreme court because the court was procedurally barred from considering an issue on which the state supreme court had already ruled.  Barnes then applied for a Writ of Habeas Corpus in federal court.  A federal magistrate judge recommended that all claims be denied, which the district court then adopted.  The district court determined that the state court’s application of federal law was valid, but granted Barnes’s a Certificate of Appealability on the issue of whether the external juror communication violated Barnes’s Sixth Amendment right to a fair trial.

The Fourth Circuit began its habeas corpus analysis with the question of whether a state prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.”  28 U.S.C. § 2254(a).  Because the Court determined that the decision made by the state court was on the merits, its analysis is constrained by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  After a previous state court rules on the merits, habeas relief may be granted only if the state court’s decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.”  28 U.S.C. § 2254(d)(1).  A ruling is contrary to clearly established federal law if the state court arrived at a decision that is opposite to the U.S. Supreme Court’s decision on a question of law or if the result is different form a previous U.S. Supreme Court’s decision on materially similar facts.  William v. Taylor, 529 U.S. 362, 413 (2000).  A ruling is an unreasonable application of clearly established federal law as interpreted by the U.S. Supreme Court when the state court unreasonably applies the law to the facts of the prisoner’s case.  Id. at 413.  The petitioner has the burden of proving that the state court’s ruling so lacked in justification that the error existed “beyond any possibility for fairminded disagreement.”  White v. Woodall, 2014 WL 1612424, at *4 (2014).  The state court’s decision is reviewed under an “objectively unreasonable” standard.  Robinson v. Polk, 438 F.3d 350, 355 (4th Cir. 2006).  Before granting habeas relief, the court must also determine that the error had “a substantial and injurious effect or influence in determining the jury’s verdict,” Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002), that actually prejudiced the habeas petitioner, Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011).

U.S. Supreme Court precedent clearly establishes that external influences on jury deliberations are a violation of a criminal defendant’s right to an impartial jury.  In Remmer v. U.S., the U.S. Supreme Court established a presumption of prejudice against any communications or contact between a third party and a juror on a pending matter, and required an evidentiary hearing to determine if the defendant’s case suffered actual prejudice.  347 U.S. 227 (1954).  The Court acknowledged that the Remmer presumption remains good law in the Fourth Circuit, despite a circuit court split.  See Smith v. Phillips, 455 U.S. 209 (1982); United States v. Olano, 507 U.S. 725 (1993).  The U.S. Supreme Court determined that, though there are cases where an intrusion should be presumed prejudicial, the ultimate inquiry is: “did the intrusion affect the jury’s deliberations and thereby its verdict?”  Olano, 507 U.S. at 739.  The Fourth Circuit has interpreted this to mean that there can be either a presumption of prejudice, or a specific analysis of the contact or communication on the jury’s verdict.  U.S. v. Lawson, 677 F.3d 629 (4th Cir. 2012).

The Fourth Circuit applies the Remmer presumption to direct appeals, and those under § 2254 review.  Post-Remmer case law confirms that a constitutional right to due process requires a hearing to ascertain whether contact or communication with a juror in a pending trial is prejudicial to the defendant’s right to a fair trial.  Depending on when the issue arises, the hearing can be held during or after trial.  Remmer hearings are triggered when the defendant shows unauthorized contact with a juror, and that the integrity of a verdict is reasonably in question.  In other words, the contact must be “more than innocuous interventions,” U.S. v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996).  Scenarios include bribes to a juror; applications by a juror to the prosecuting attorney’s office during a trial; comments to a juror about what the juror should decide; pressure from the juror’s spouse to decide a certain way; comments by the bailiff about how to decide, or that any incorrect verdict will be corrected by a higher court.  AEDPA does not require identical facts to previous U.S. Supreme Court precedent to find clearly established law to guide the court’s decision.

The state court’s adjudication of Barnes’s claim was an unreasonable application of clearly established federal law.  Despite additional claims before the state court based on juror testimony that there was contact between a juror and her pastor which led to certain Bible passages being read to jurors who were unsure about the death penalty, the state court essentially required Barnes to prove a Sixth Amendment violation before giving Barnes a Remmer hearing.  If Remmer applied this way, then the Remmer hearing requirement, which is meant to determine what, if any, violation actually happened, would be meaningless.  The defendant only needed to make a threshold showing that the external contact was more than just an “innocuous intervention” about a matter pending before the jury.  The Fourth Circuit reasoned that this was clearly a matter before the jury because the jury was charged with determining whether to give a death sentence.

The Court remanded the decision to the district court to determine whether the state court’s failure to apply Remmer and to investigate whether the external contact had a substantial and injurious effect or influence on the jury’s verdict.  The Court noted that, in deciding to grant a habeas petition, Barnes will not be entitled to the Remmer presumption because it does not apply in the federal habeas corpus context, and thus Barnes would need to affirmatively prove actual prejudice by showing that the jury’s verdict was tainted by the extraneous communication between the juror and her pastor.

In the dissent, Judge Agee argued that the majority failed to give proper AEDPA deference to the state court’s adjudication of this matter.  In his opinion, AEDPA deference includes not only any reasoning articulated by the state court, but also any arguments or theories that could have supported the state court’s decision.  Instead, Judge Agee claimed that the majority disagreed with the state court’s interpretation of Remmer, and inserted the federal court’s interpretation over that of the state court.  Ultimately, Judge Agee agreed that the state court reasonably applied Remmer as clearly established precedent, but that the state court’s interpretation was reasonable because no court had determined when a matter was pending before the jury.  Thus, the majority should not have addressed the issue in the first instance because the state court’s interpretation was not unreasonable.  According to the dissent, the state court could have reasonably concluded that the communication at issue was not about the pending matter because it was not about the choice of sentencing.  The jurors were not charged with deciding the eternal consequences of their soul.

Full Opinion

Verona Sheleena Rios

U.S. v. OCASIO, NO. 12-4462

Decided: April 29, 2014

The Fourth Circuit affirmed the Defendant’s conviction on count one, a conspiracy charge, but vacated the sentencing court’s restitution award to Erie Insurance because it found that Erie did not qualify as a victim under the Victim Witness Protection Act (“VWPA”).

Samuel Ocasio (“Defendant”), a former officer with the Baltimore Police Department (the “BPD”), was found guilty of four offenses that related to his involvement in a kickback scheme to funnel wrecked automobiles to a Baltimore repair shop in exchange for monetary payments.  Defendant was convicted of three Hobbs Act extortion counts, plus a charge of conspiracy to commit extortion.  On appeal, Defendant maintained that his conspiracy was fatally flawed.  He also challenged a portion of the sentencing court’s restitution award.

Defendant, along with nine other BPD officers, Moreno and Mejia, co-owners and operators of the Majestic Repair Shop (“Majestic”), were indicted for conspiracy to commit extortion.  The indictment alleged that the defendants, along with others “known and unknown” violated the Hobbs Act by agreeing to “unlawfully obtain under color of official right, money and other property” from the co-owners and Majestic.  A grand jury returned a seven-count-superseding indictment charging only Defendant and Manrich, another BPD officer who had not initially been indicted.  Count one alleged that the defendants conspired to violate the Hobbs Act.  Counts two through four alleged that Manrich unlawfully obtained, under color of official right, money and property.  Counts five through seven charged Defendant with Hobbs Act extortion of one of the co-owner of Majestic on three occasions.

The prosecutions underlying Defendant’s appeal resulted from an extensive investigation by the BPD and Federal Bureau of Investigation (“FBI”).  The investigation of BPD officers and Majestic established that there was a wide-ranging kickback scheme in which BPD officers would refer accident victims to Majestic for repair, and in exchange for these referrals the officers would receive monetary payments.  At trial, Defendant raised his primary argument that was the crux of his appeal:  that he could not be convicted of conspiring with the co-owners of the repair shop, because they were the victims of the alleged Hobbs Act extortion conspiracy.  Defendant moved for judgment of acquittal in relation to the extortion conspiracy, but his motion was denied.  At the conclusion of his trial on the superseding indictment, Defendant renewed his judgment of acquittal motion, which was again denied.  The jury found Defendant guilty of all charges and he was sentenced to eighteen months in prison.  The court also ordered Defendant to make restitution to the BPD for the cash payments Defendant had received from the repair shop.  The prosecution further sought restitution with respect to Erie Insurance, predicated on the proposition that Defendant had defrauded GEICO, which in turn had been reimbursed by Erie (as insurer for the at-fault driver involved in an accident with Defendant’s wife).  The court entered an amended judgment, which directed Defendant to make restitution to Erie in an amount representing the difference between the total reimbursement made by Erie and the amount actually attributable to Erie.  Defendant timely noticed his appeal.

Reviewing Defendant’s contention that his count one conspiracy conviction was fatally flawed, the Court noted that it must sustain a guilty verdict if, viewing the evidence in the light most favorable to the prosecution, the verdict is supported by substantial evidence.  The Court also noted that it must review de novo a question of law, including an issue of statutory interpretation.  The Hobbs Act defines “extortion”, in part, as “the obtaining of property from another, with his consent, . . . under color of official right.”  To prove such an offense, the prosecution “need only show that a public official . . . obtained a payment to which he was not entitled, knowing that the payment was made in return for his official acts.”  The Court concluded that, contrary to Defendant’s arguments, the Hobbs Act contains no language that forecloses the possibility that “another” can also be a conspirator of the public official.  The Court also rejected Defendant’s argument that the law requires that victim under the Hobbs Act be a person outside the conspiracy.  Accordingly, the Court affirmed Defendant’s count one conspiracy.

The Court, however, vacated the sentencing court’s award of restitution to Erie Insurance, concluding that it was unable to endorse the sentencing court’s determination that Erie Insurance suffered any losses that resulted from the Hobbs Act extortion conspiracy charge in count one.  The Court concluded that because Erie was not a “victim”, as required by the VWPA, the award of restitution must be vacated.

Full Opinion

Abigail Forrister

U.S. v. PEREZ, NO. 13-6043

Decided: May 15, 2014

The Fourth Circuit affirmed the district court’s civil commitment of the defendant to the custody of the United States Attorney General when the district court found that he was a sexually dangerous person under the Adam Walsh Child Protection and Safety Act of 2006 (“the Act)”, 18 U.S.C. § 4248(a).

Under the Act, the government may civilly commit “sexually dangerous” inmates at the end of their federal prison sentence by filing a certification to this effect with the clerk of court in the district where the inmate is held.  Procedurally, this filing stays the inmate’s release until an evidentiary hearing may be held, and the government proves its case by clear and convincing evidence.  The Act requires that (1) the person has previously “engaged or attempted to engage in . . . child molestation” 18 U.S.C. § 4247(a)(5); (2) the person currently “suffers from a serious mental illness, abnormality, or disorder” 18 U.S.C. § 4247(a)(6); and (3) “the government is required to show that the defendant, as a result of the illness, abnormality, or disorder, ‘would have serious difficulty in refraining from . . .child molestation if released’” 18 U.S.C. § 4247(a)(6).  The Act also sets forth procedural guarantees for each defendant, which include: the right to counsel, the right to testify, right to present evidence, right to subpoena witnesses, the right to confront witnesses, and the right to cross-examine those witnesses.  18 U.S.C. § 4247(d).

On January 6, 2011, the government filed a certification that the defendant, Jose Perez (“Perez”), was a sexually dangerous person under the Act because Perez’s twenty-year federal sentence for transportation of a minor in foreign commerce with intent to engage in criminal sexual activity, 18 U.S.C. § 2423(a), and importation of an alien for immoral purposes, 8 U.S.C. § 1328, had almost expired.  The district court denied Perez’s motion to dismiss, and held an evidentiary hearing.  After electing to appear pro se, Perez failed to participate or appear for the evidentiary hearing because he believed it to be unlawful; the hearing continued in his absence.  During the evidentiary hearing, the government presented three forensic psychologists’ expert testimony that relied on individual evaluations of Perez, and his criminal history that involved multiple sexual encounters with minors.  Specifically, Perez’s criminal history includes an incident in September 1970, two incidents in May 1982, an incident in March 1983, and the two incidents in September 1993 that led to his twenty-year sentence.  After reviewing the data, all three experts diagnosed Perez with pedophilia, and agreed that he met the other statutory requirements.  Thus, the district court found that Perez qualified as a sexually dangerous person under the Act.  On appeal, Perez claims that the district court lacked personal jurisdiction over him when the government failed to serve him with a summons pursuant to Federal Rules of Civil Procedure (F.R.C.P.) 4.  Perez also claims that the district court clearly erred when it found that he was a sexually dangerous person under the Act.

After generally noting that the F.R.C.P. apply to civil commitment hearings, the Fourth Circuit found that the procedural requirements in the Act, which require that a copy of the certificate be sent to the defendant, 18 U.S.C. § 4248(a), displaced the Rule 4 summons requirement.  The Court reasoned that the primary functions of service of process were unnecessary in light of the statutory proceeding requirements under the Act.  Then, the Court reviewed the district court’s record for a “definite and firm conviction that a mistake has been committed,” United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012), on its finding that Perez was a sexually dangerous person.  The Court found no clear error, and upheld the district court’s order, and commended its careful review of evidence.  Finally, the Court quickly dismissed Perez’s constitutional arguments that the Act deprived him of equal protection under the Fifth and Fourteenth Amendments and imposed an unconstitutional criminal punishment by reiterating its previous decision in United States v. Timms, 664 F.3d 436, 449, 455 (4th Cir. 2012).

Full Opinion

Samantha R. Wilder

IN RE: UNDER SEAL, NO. 13-4625

Decided: April 16, 2014

The Fourth Circuit held that the district court did not clearly err by holding Lavabit LLC (“Lavabit”) and its owner, Levison, in contempt for their failures to comply with a Pen/Trap Order.

Lavabit and Levison (“Lavabit”) provided email service to around 400,000-plus users, and used the industry-standard Secure Sockets Layer (“SSL”) encryption and decryption method to transmit its data.  Essentially, this encryption method relies on a public key, less important, and a private key, which may compromise the data of all users if a third party gains access.  In 2013, the Government obtained court orders under the Pen/Trap State, 18 U.S.C. §§ 3123–27, and the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701–12, which required Lavabit to turn over metadata, not email content, on the target account for a criminal investigation.  While meeting with Federal Bureau of Investigation (FBI) agents, Lavabit signaled that he did not plan to comply with the order, but indicated he was “technically capable [of] decrypt[ing] the [target’s] information.”  Thus, the Government secured an order to compel Lavabit’s compliance with the Pen/Trap Order.  This order specifically stated that a failure to comply could result in a criminal contempt of court proceeding against Lavabit.  Nonetheless, Lavabit disregarded the court’s order, ignored the FBI’s requests to confer, and withheld the unencrypted metadata.  After a series of court orders, hearings, failed compliance, and attempted demands to pay for his services; Lavabit allowed a Pen/Trap Device to be installed but failed to provide the encryption keys so that the information was useless to the Government.  Then, Lavabit moved to quash the seizure warrant, which the district court denied, and held a compliance hearing that ordered Lavabit to provide the private keys by August 5.  Again, Lavabit failed to comply.  On August 5, the Government moved for sanctions in the amount of five-thousand-dollars per day against Lavabit and Levinson until they complied.  Finally, after six weeks of data was lost, Lavabit complied.  Now, Lavabit appeals its civil contempt charges with various statutory and constitutional challenges.

Before addressing the appeal, the Fourth Circuit noted that the civil contempt order presented a live controversy because Lavabit and Levison may be sanctioned further for their conduct.  The Court noted that Lavabit’s failure to raise its statutory challenges to the Pen/Trap Order and the SCA in the district court constricted the Fourth Circuit to “reverse only if the newly raised argument establishes ‘fundamental error’ or a denial of fundamental justice.”  Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir. 1985).  The Court emphasized that forfeiture and waiver rules are critical to maintaining the integrity of courts, avoiding unfair surprise to opponents, preserving finality, and conserving judicial resources.  Holly Hill Farm Corp. v U.S., 447 F.3d 258, 267 (4th Cir. 2006).

The Court refused to rewrite Lavabit’s own statements to create a specific, timely objection that would preserve a claim on appeal, and instead stated that Lavabit’s own statements likely misled the Government, and the district court.  The Court emphasized that Lavabit’s failure to raise his challenges in the district court required that he demonstrate a plain error standard for reversal by this Court.  In re Celotex Corp., 124 F.3d 619, 631 (4th Cir. 1997).  Instead, Lavabit attempted to persuade the Fourth Circuit to craft a new exception; by claiming that the district court and Government induced him to forfeit his challenges; to answer his question of pure law; to sympathize with him because he appeared pro se in the lower court; and to recognize that this case is one of “public concern.”  The Court found none of these arguments persuasive, and reiterated that Lavabit failed to make his most essential argument for plain error.  Therefore, the Court reasoned that Lavabit abandoned that argument as well.  Finally, the Fourth Circuit noted that two independent bases supported the district court’s civil contempt order, which allowed the Court to avoid any constitutional challenges, and uphold the district court.

Full Opinion

Samantha R. Wilder

U.S. v. GALLOWAY, NO. 12-4545

Decided: April 15, 2014

The Fourth Circuit held that the defendant failed to meet the high standard on appeal for his ineffective assistance of counsel claim.  The Court also found that the district court acted reasonably, in light of past securities breaches, when it prohibited the defendant from taking any discovery materials back to his detention center.  The Court concluded that the district court did not err when it denied the defendant’s motion to suppress the evidence from his wiretaps because each of the affidavits provided specific facts that demonstrated the necessity of the wiretaps.  Finally, the Court held that the district court acted within its scope of discretion, as granted by Federal Rule of Evidence (F.R.E.) 702, and did not plainly err in its admission of expert testimony, and its management of that testimony to avoid confusion.

The defendant, Charles Galloway, was convicted of conspiracy to distribute and possession with intent to distribute (P.W.I.D.) heroin from wiretaps and testimony of drug traffickers in the Baltimore area.  He was then sentenced to 292 months’ imprisonment.  While investigating an international drug trafficking conspiracy, Drug Enforcement Agency (DEA) Special Agent (SA) Karas uncovered a link between the defendant, and Santos Chavez, a coconspirator in Los Angeles, California.  After this discovery, SA Karas notified Detective Sokolowski of the Baltimore City Police Department, who then began his investigation of the defendant.  As a result of Sokolowski’s investigation, wiretaps were placed on four of the defendant’s cellphones, which were used as evidence in his trial.  During the defendant’s trial, SA Karas and Detective Sokolowski both testified as fact and expert witnesses on drug distribution methods and interpreting the coded language used in drug-related telephone calls.

While an effective assistance of counsel claim is typically raised as a collateral challenge with the district court, the Fourth Circuit noted that a defendant may raise this challenge on appeal “if it conclusively appears from the record that” counsel failed to provide effective assistance.  United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).  Upon review of the record, the Court reasoned that the defendant failed to meet this high standard, and that the defendant’s lack of trial preparation resulted from his decisions to fire his lawyer, withdraw a continuance motion, and represent himself.

The defendant also claimed that the district court abused its discretion by prohibiting him from taking any discovery materials to the detention center while he prepared his pro se defense.  The Fourth Circuit reasoned that any inconvenience the defendant suffered was reasonable because the district court had experienced past security issues with discovery at federal detention facilities, which resulted in the killing of witnesses.  The Court also noted that the district court attempted to mitigate the defendant’s inconveniences while he prepared his pro se defense, and that the defendant failed to seek a continuance as a result of the logistical challenges.

Next, the defendant claimed that the district court erred when it denied his motion to suppress the evidence from the wiretaps because two of the three affidavits failed to specify facts that demonstrated the necessity of the wiretaps.  The Fourth Circuit emphasized that bare conclusory statements do not meet the requirements of 18 U.S.C. § 2518(1)(c), but that specific factual information is enough for “‘wiretapping [to] become reasonable, despite ‘the statutory preference for less intrusive [investigation] techniques.’”  United States v. Smith, 31 F.3d 1294, 1297–98 (4th Cir. 1994).  The Court reasoned that the government met this burden by detailing around ten alternative investigatory procedures, along with the likelihood of success on each procedure, in each of the three affidavits.

Finally, the defendant claimed that the district court erred in its admission of expert testimony, and in its management of the testimony presented to avoid confusion.  The Fourth Circuit reviewed the district court’s admission of expert testimony and management of the witnesses’ dual capacity for plain error because the defendant failed to object during trial.  Plain error requires that the court review for “a miscarriage of justice that would seriously affect the fairness, integrity, or public reputation of the judicial proceedings.”  United States v. Baptiste, 596 F.3d 214, 220 (4th Cir. 2010).  Here, the Court found that the district court specifically instructed the prosecutor to “be careful that we separate . . . lay testimony as a lay witness from the proffer of any expert testimony” in front of the jury.  In addition, the Court reasoned that the jury, as fact finder, was able to accept or reject any of the testimony presented.  Therefore, the district court acted properly and followed established protocol.

Full Opinion

Samantha R. Wilder

U.S. v. MCFADDEN, NO. 13-4349

Decided: May 21, 2014

The Fourth Circuit affirmed the district court’s judgment that found the Appellant guilty of nine counts under the Substance Analogue Enforcement Act of 1986 (the Act) originating from his distribution of substances prohibited by the Act.

Congress enacted the Act to prohibit underground chemists from creating new drugs that have a similar effect on the human body to drugs that are illegal under federal drug laws.  The Act states that a “controlled substance analogue” intended for human ingestion will be treated as a Schedule I controlled substance under federal law.  21 U.S.C. § 813.  Police from the Charlottesville, Virginia area began investigating the use and distribution of “bath salts,” a synthetic stimulant, in July 2011.  When consumed, bath salts have an effect similar to cocaine, methamphetamine, and methcathinone, which are all illegal under federal drug laws.  Police discovered that the bath salts were being sold out of a local video store, and later seized that store’s supply.  The video store’s owner cooperated with the police, told them that the appellant was her supplier, and participated in recorded phone conversations where she placed orders with the appellant for more bath salts.  As a result of the phone calls, police received bath salts from appellant on five separate instances, and led to his indictment in November 2012, where he was charged with nine offenses under the Act.  The jury trial focused on whether certain chemicals in the bath salts counted as “controlled substance analogues” under the Act.  After testimony from experts on both sides, the jury found the defendant guilty of all nine counts, and the defendant appealed.

The Fourth Circuit began with appellant’s argument that the Act was unconstitutional as applied to him because it failed to provide a person of ordinary intelligence notice that his conduct was unlawful.  In particular, (1) the Act uses general terms and does not provide a list of prohibited substances, (2) the Act is subject to arbitrary and discriminatory enforcement since there is no statutory guidance on prohibited conduct, and (3) despite appellant’s significant efforts to learn about what he could and could not do under the Act, he was not aware that his distribution of controlled substance analogues qualified as prohibited conduct under the Act.  The Fourth Circuit stated that an act is unconstitutionally vague if it does not describe an offense in a manner such that it is sufficiently defined, and ordinary people understand the type of conduct that is prohibited.  However, referencing an earlier decision, the Fourth Circuit stated that its holding in that case defeated the appellant’s argument that the term “substantially similar” is unconstitutionally vague as applied to the chemicals at issue in his trial because the experts sufficiently addressed the chemical diagrams of the substances at issue and compared them to the chemical structure of ecstasy.  The Fourth Circuit also rejected appellant’s argument that the term “human consumption” is unconstitutionally vague under the Act because it clearly includes the use of a substance by a human being in a way that introduces the substance into the human body.  Further, the Fourth Circuit rejected Appellant’s argument that the Act was unconstitutionally vague because it did not include a list of prohibited substances, and noted the possibility that the rate at which new substances are created would outpace the ability of authorities to identify and catalog those substances in a list.

The Fourth Circuit also found no merit in the appellant’s claim that the Act was subject to arbitrary and discriminatory enforcement because the intent element under the Act requires the government to prove that a defendant intended for a human to consume the substance at issue.  In addition, the government must prove the substantial chemical similarity between the alleged analogue substance and the controlled substance.  The Court also rejected the appellant’s claim that he attempted to educate himself on whether the chemicals he was selling were illegal by looking on the DEA’s website, by citing the settled principal that “ignorance of the law is no excuse.”  See U.S. v. Mitchell, 209 F.3d 319, 323 (4th Cir. 2000).  The Fourth Circuit reviewed appellant’s claims that the district court erred in certain evidentiary and jury instruction rulings for an abuse of discretion, and found that the district court had not abused its discretion in these rulings.  Finally, the Court addressed appellant’s argument that challenged the sufficiency of evidence and the district court’s denial of his motion for judgment of acquittal, and concluded that the evidence in the record provided the government with sufficient evidence that the chemicals at issue were substantially similar in structure to a controlled substance, and that these chemicals have similar effects on the human body as a controlled substance.

Full Opinion

-Alysja S. Garansi

U.S. v. FERGUSON, NO. 13-4396

Decided: May 21, 2014

The Fourth Circuit held that a Virginia district court committed legal error when it denied the defendant the opportunity to cross-examine the forensic examiner whose report was presented at the defendant’s revocation hearing.

The defendant served ten years in prison, and began his first period of supervised release in 2010.  After several violations, the defendant was sentenced to a second term in prison.  The defendant, again, had a series of violations, which primarily involved the possession of marijuana.  At his revocation hearing, the defendant contested one of the violations, which was the crux of his appeal.  Following a traffic stop, the defendant was arrested for possession of marijuana.  The recovered marijuana was then sent to a forensic lab to test the weight and nature of the substance.  During the defendant’s hearing, this forensic report was introduced by the arresting officer, not the forensic examiner.  Based on this report, the district court revoked the defendant’s supervised release and sentenced him to forty-two months in prison.

The defendant claimed the introduction of the forensic report, in the absence of an opportunity to cross-examine the forensic examiner, violated Federal Rule of Criminal Procedure 32.1(b)(2)(C).  This rule entitles defendants to “an opportunity . . . to question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Although revocation hearings are less formal than trials, due process rights still apply to these hearings.  Relying on its holding in United States v. Doswell, the Court noted that the application of Rule 32.1(b)(2)(C) requires “the district court to balance the releasee’s interest in confronting an adverse witness against any proffered good cause for denying such confrontation.”  Thus, if the government is unable to show good cause for denying a defendant the right to confront his witnesses, the hearsay evidence is inadmissible at revocation hearings.

In the defendant’s case, the Government did not proffer an explanation for the examiner’s absence.  Still, the district court concluded that the report was reliable and that the other evidence presented corroborated the report.  Conversely, the Fourth Circuit concluded that this was legal error; neither reliability nor the existence of corroborating evidence obviates the requirement to show good cause.  Both the majority and concurring opinion  emphasized their frustrations with the “government’s barefaced failure to abide by [their] command in Doswell.”

Additionally, on appeal, the Government argued that notwithstanding the legal error, the error was harmless because there was adequate evidence for the district court’s sentence.  The Court ultimately concluded that the district court’s error was an evidentiary mistake, not a constitutional error.  Accordingly, the Court concluded that “the proper harmlessness test must ensure that the error had no ‘substantial and injurious effect or influence’ on the outcome.”  After noting that reversal is reserved for serious errors that affect substantial rights or that directly affect the outcome of the case, the Court determined that the district court’s error constituted both, and vacated and remanded the district court’s decision.

In her dissent, Judge Keenan opined that the majority’s harmless error analysis was inappropriate.  Instead, Judge Keenan concluded that the proper standard was harmless beyond a reasonable doubt.  Even applying the higher standard, Judge Keenan asserted that the district court’s error was harmless in light of the weight of evidence against the defendant.

Full Opinion

Abigail Forrister

PROUSALIS v. MOORE, NO. 13-6814

Decided: May 7, 2014

The Fourth Circuit held that a change in law to an implied private cause of action under 17 C.F.R. § 240.10b-5 (“Rule 10b-5”) was inapplicable in the context of a criminal cause of action under Rule 10b-5.

Thomas Prousalis was a securities lawyer who failed to accurately disclose his retainer agreement to the Securities and Exchange Commission (SEC) while he represented a company, Busybox, in the process of filing its initial public offering (IPO).  Prousalis admitted that he knew his acts were deceitful, violated the law, and that if he had accurately disclosed his retainer agreement to the SEC Busybox would not have been eligible to be listed on the NASDAQ.  Based on his non-disclosures, Prousalis pled guilty to multiple counts of fraud, but subsequently appealed the Rule 10b-5 criminal charges.  He was denied collateral relief under 28 U.S.C. § 2255(e), and then habeas relief under 28 U.S.C. § 2241.  On appeal, Prousalis seeks § 2241 relief on the basis that the U.S. Supreme Court “changed the substantive law such that the conduct of which” he was convicted was no longer criminal “subsequent to his direct appeal and § 2255(e) motion.”  According to Prousalis, the U.S. Supreme Court case Janus Capital Group v. First Derivative Traders changed the law so that he no longer qualified as a “maker” of false statements.  If Prousalis did not make any false statements, then he could not be guilty of directly violating Rule 10b-5.

The Court denied Prousalis’s § 2241 appeal because Janus only applied to an implied private cause of action brought under Rule 10b-5, and did not affect a criminal conviction under Rule 10b-5.  Therefore, the definition of a “maker” in Janus did not apply to Prousalis.  The Court reasoned that “context” was very important to the Janus decision.  Janus had to be construed narrowly because it dealt with a judicially created private cause of action under Rule 10b-5.  Further, the U.S. Supreme Court did not hold that their decision applied outside of the civil context.  Therefore, “judicial restraint and legislative primacy” supported a narrow reading of Janus.  On the other hand, Prousalis’s criminal charges under Rule 10b-5 did not trigger the same policies of judicial restraint and legislative primacy because Congress clearly acknowledged the judiciary’s power to sanction those who violate Rule 10b-5 with criminal penalties.  Prousalis’s actions clearly fell within the spectrum of conduct that Congress sought to prevent when it passed Rule 10b-5, and so the Court denied his appeal.

Full Opinion

James Bull Sterling

IN RE: VASSELL, NO. 13-284

Decided: May 6, 2014

The Fourth Circuit denied Tadd Vassell’s (Vassell) motion for leave to file a successive motion under 28 U.S.C. § 2255 to challenge his mandatory life sentence without parole.

In 1997 Vassell received a life sentence without parole for conspiracy to traffic controlled substances.  Vassell became involved with the conspiracy when he was a seventeen-year-old, and his involvement continued until he was almost nineteen.  Pursuant to 28 U.S.C. § 2255, federal prisoners may file one motion to set aside or reduce a sentence after final judgment; Vassell’s first § 2255 motion was denied.  In order to file successive motions, prisoners must first obtain the authorization of a court of appeals, and must also satisfy the gate-keeping requirements of § 2244.  Section 2244 requires that successive motions contain either “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or “newly discovered evidence.”  Vassell filed a motion for leave to file a successive § 2255 motion based on the U.S. Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012).  In Miller, the Supreme Court held that, when imposed on juveniles, mandatory life sentences without parole for homicide are unconstitutional.

The Court denied Vassell’s motion for leave because the holding from Miller, while “a new rule of constitutional law,” applies to juvenile homicide offenders, not non-homicide offenders.  Rather, Vassell’s potential right to resentencing, assuming that he actually qualifies as a juvenile offender, became available after the U.S. Supreme Court’s opinion in Graham v. Florida, 560 U.S. 48 (2010), in which the U.S. Supreme Court held that imposing a life sentence without parol on a juvenile offender convicted of a non-homicide is unconstitutional.  However, the statute of limitations for § 2255 motions is one year, and the Graham decision was published more than a year prior to Vassell’s motion for leave.  The Court noted that while § 2244 requires only a new rule of constitutional law or newly discovered evidence for the Court to grant leave for a successive § 2255 motion, the statute does not require the Court “to authorize a successive § 2255 motion that is plainly barred as a matter of law.”  Therefore, because Vassell’s § 2255 motion would necessarily rely on the holding from Graham, which was decided more than one year prior to Vassell’s motion for leave, the statute of limitations had already run.

Full Opinion

-Amanda K. Reasoner

U.S. v. CARTER, NO. 12-5045

Decided: April 30, 2014

The Fourth Circuit held that Carter’s conviction under 18 U.S.C. § 922(g)(3), for possession of firearms while being an unlawful user of, and addicted to, marijuana, did not violate his Second Amendment right to bear arms.

Police came to Carter’s apartment after receiving complaints of drug use on the premises.  Carter allowed the police to enter his apartment where they found evidence of marijuana use.  He would later admit to being a long-term user of the drug.  Carter also told the police that there were two firearms in his closet that he claimed to have purchased for protection.  The police seized Carter’s firearms, and he was subsequently convicted under § 922(g)(3).  The Court remanded the case to give the Government an opportunity to present “empirical evidence or data” to show that there was “a reasonable fit” between § 922(g)(3), and a substantial government interest, thereby justifying the infringement on Carter’s Second Amendment right to bear arms.  Carter appealed the District Court’s ruling in favor of the Government.

The Court reasoned that § 922(g)(3) did not violate Carter’s constitutional rights because the Government satisfied an intermediate scrutiny inquiry.  The Government showed “‘a reasonable fit’ between § 922(g)(3), and ‘a substantial [or important] government objective.’”  First, the Government satisfied the “substantial government interest” prong by showing that it had a substantial interest in protecting the community from gun violence.  Then, the Government satisfied the “reasonable fit” prong because it presented empirical evidence that established a reasonable fit between the law and the Government’s substantial interest in protecting the community from gun violence.  The Court disagreed with Carter’s argument that the Government’s empirical evidence was too general – suggesting a connection between violence and drug use in general, as opposed to marijuana specifically.  The Court reasoned that the Government’s empirical evidence “amply demonstrate[d] a connection between marijuana use specifically and violence.”  According to the Court, the Government’s empirical evidence satisfied the reasonable fit prong even though it did not show that marijuana use “caused” increased gun violence because the Government did show a “correlation” between marijuana use and gun violence.  Finally, although empirical evidence was necessary to satisfy the “reasonable fit” prong, the District Court was not precluded from also using “common sense” to support its judgment.

Full Opinion

James Bull Sterling

U.S. v. RAMIREZ-CASTILLO, NO. 13-4158

Decided: April 30, 2014

The Fourth Circuit vacated the Appellant’s conviction and sentence, and remanded the case because the district court violated the Appellant’s right to have a jury determine his guilt beyond a reasonable doubt.

Appellant was charged with knowingly possessing prohibited objects while incarcerated as an inmate at a South Carolina (SC) Federal Correctional Institute in violation of 18 U.S.C. §§ 1791(a)(2), (b)(3), and (c).  A jury trial was held on September 25, 2012, where the district court charged the jury with determining whether the first object at issue (a shank) was a “weapon,” and whether the second object (a sharpened piece of metal) was in the appellant’s possession.  The jury answered, “yes” to each question, but never determined whether the appellant was “guilty” or “not guilty” of the charged offense.  Despite never being found guilty, the appellant was sentenced to thirty-three months in prison in 2013.  Appellant then timely appealed.

The Fourth Circuit stated that it reviewed for plain error when the appellant’s trial counsel failed to raise an objection to a particular issue before the district court.  Here, the district court rejected the suggestion that the verdict form should ask the jury for a finding of “guilty” or “not guilty,” and drafted the questions that went to the jury itself.  The Fourth Circuit stated that according to Federal Rule of Criminal Procedure 52(b) it may only correct an unpreserved error if (1) an error was made, (2) the error is plain, (3) the error affects substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.  Here, the Court reasoned that the district court instructed the jury that they need not consider certain elements of each crime, instead of asking the jury to determine whether or not the appellant was guilty beyond a reasonable doubt of each element of the charged offenses.  By giving these instructions, the district court infringed on the jury’s role by stating that certain facts essential to appellant’s conviction had already been conclusively established.  Further, the Court found that the district court erred by preventing the jury from making the “ultimate, indispensible conclusion” of guilty or not guilty.  Additionally, the Court determined that the error was plain because a court is prohibited from directing a verdict against a defendant, and requires that a jury make the ultimate determination of guilt.  The Court stated that appellant was deprived of the right to a jury finding him guilty beyond a reasonable doubt.  This right is a basic protection without which a criminal trial does not serve its requisite function, thus, the Court opined that the district court’s error also affected appellant’s substantial rights.  The Fourth Circuit exercised its discretion and noted that the district court’s plain error by stating that a failure to do so would gravely affect the fairness, integrity, and public reputation of the judiciary.

Full Opinion

-Alysja S. Garansi

U.S. v. GOMEZ-JIMENEZ, NO. 12-5030

Decided: April 29, 2014

The Fourth Circuit held that the evidence was sufficient to support the defendant’s conviction; the district court’s sentencing enhancement for defendant’s use of a minor in the commission of a crime was warranted; the district court did not err in applying the sentencing enhancement for possession of a dangerous weapon to defendant; and any error in the application of sentencing enhancements regarding defendant’s use of a minor to commit a crime and defendant being an organizer, leader, manager, or supervisor was harmless.

Defendants Erasto Gomez–Jimenez (“Erasto”) and Aaron Juarez–Gomez (“Juarez–Gomez”) were charged with various drug related charges including: conspiracy to distribute and possession with intent to distribute (P.W.I.D.) cocaine; distribution of cocaine on four separate occasions; P.W.I.D. cocaine, as well as aiding and abetting the P.W.I.D.; and finally, Jaurez-Gomez was charged for being an alien in possession of a firearm.  Defendants appealed the application of various sentencing enhancements that the district court applied to their convictions.  Specifically, Juarez–Gomez appealed the application of sentencing enhancements for use of a child in carrying out a crime and sentencing enhancement for being an organizer, leader, manager, or supervisor of a crime; Erasto appealed the application of sentencing enhancements for use of a child in a crime and possession of a firearm.

The Fourth Circuit reasoned that the prosecution presented sufficient evidence to support Juarez–Gomez’s conviction for conspiracy to distribute and possess cocaine because there was a trailer that was used to store drugs, contained firearms, and held materials used to package the cocaine for distribution.  In addition, the Court noted that Juarez–Gomez returned to the trailer following drug sales, stayed in the trailer overnight, and his minor son, who participated in the drug activities, lived in the trailer with him.  The Court reasoned that the application of the sentencing enhancement for use of a minor was warranted when Juarez–Gomez’s son lived in the trailer, sometimes paid rent, and accompanied his father on drug deals.  As to Erasto, the Court determined that it was reasonably foreseeable that his coconspirator’s possession of a firearm would warrant application of the sentencing enhancement for firearm possession to Erasto.  As to the leadership sentencing enhancement and use of child sentencing enhancement for Juarez–Gomez, the Court ruled that they were both harmless because the district court certified that it would apply the same penalty regardless of these enhancements.

Full Opinion

Chris Hampton

U.S. v. MCVEY, NO. 13-4285

Decided: April 23, 2014

The Fourth Circuit affirmed Terry McVey’s seventy-eight-month sentence, holding that the district court did not clearly err when applying a two level sentencing enhancement to his distribution of child pornography conviction.

In December of 2010, McVey began emailing a man that he believed to be the stepfather of three minor girls, ages eight, eleven, and fourteen.  For several months McVey emailed the man, who was actually an undercover police officer, and expressed his interest in performing sexual acts with the minor girls.  In response to McVey’s request for a video of the girls, the undercover officer mailed McVey a DVD containing child pornography in exchange for $10.  On July 28, 2011, when the DVD arrived at McVey’s residence, police executed a federal search warrant and discovered child pornography on his computer.  During an interview, McVey was forthcoming about his activities and admitted to purchasing the DVD, possession and distribution of child pornography over the previous ten years, and to uploading child porn at least six times.  Further investigation revealed that on December 31, 2008 McVey uploaded child pornography; despite his confession, this upload is the only documented instance of McVey’s distribution of child pornography.  McVey pled guilty to one count of knowingly possessing images and videos of child pornography that had been shipped and transported through interstate commerce.  During sentencing, McVey received and accepted multiple sentence enhancements, but objected to the sentence enhancement for distribution of child pornography.  McVey argued that because so much time passed between the conduct that led to his arrest and when he uploaded the video, the upload was not relevant conduct to the offense.  The district court rejected McVey’s argument and applied five sentencing enhancements, including the distribution of child pornography.

The Court determined that the district court had sufficient evidence to conclude that the distribution conduct was part of the same course of conduct as the conviction, despite the significant passage of time.  First, McVey admitted to uploading child pornography at least six times, which supports that the crimes were an ongoing, single course of conduct.  Second, possession and distribution are tightly connected crimes; possession is a prerequisite of distribution, and they share a common purpose.  Lastly, McVey admittedly possessed child pornography for an ongoing period of at least ten years, and distributed porn at least six times throughout that period.  With these facts, the Court concluded that a court could reasonably find that McVey’s distribution was in the same course of conduct as his possession conduct.

Full Opinion

-Amanda K. Reasoner

U.S. v. COBLER, NO. 13-4170

Decided: April 11, 2014

The Fourth Circuit affirmed the district court by finding that it did not abuse its discretion by imposing a 120-year sentence on a defendant convicted of production, possession, and transportation of child pornography, in connection with sexual molestation of a four-year-old boy.  The Court held that the sentence was appropriate because it was designed to protect the public, and address the seriousness of the defendant’s crimes.

Numerous images and video recordings depicting the sexual abuse of children were found on defendant’s computer.  During an interview with police, defendant admitted he downloaded, possessed, and shared child pornography.  Defendant also confessed that he had sexually molested a four-year-old boy while acting as the child’s babysitter on several occasions and had documented the encounters.  Further, the defendant admitted to having a serious communicable disease at the time he molested the child, and acknowledged the possibility that his disease could be transmitted to the child by sexual contact.  None of the defendant’s criminal charges provided for a lifetime sentence but the sentence was ultimately calculated to be 120 years, which represented the sum of the statutory maximum sentences available for each count of the defendant’s conviction.  The defendant argued that his 120-year sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment because the sentence is disproportionate to the severity of his crimes.

A defendant may challenge the proportionality of a sentence under the Eighth Amendment in two different ways.  First, under an “as-applied” challenge, a defendant contests the length of a certain term-of-years sentence as being disproportionate under the totality of circumstances.  Second, in a “categorical” challenge, a defendant asserts that an entire class of sentences is disproportionate based on the nature of the offense, or the characteristics of the offender.  In this appeal, the defendant argued that his sentence is constitutionally infirm under both these approaches.

Before an appellate court concludes that a sentence is grossly disproportionate based on an as-applied challenge, the court first must determine that a “threshold comparison” of the gravity of the offense and the severity of the sentence “leads to an inference of gross disproportionality.”  In the event that such an inference may be drawn, the court is required to compare the defendant’s sentence: (1) to sentences for other offenses in the same jurisdiction; and (2) to sentences for similar offenses in other jurisdictions.  If this extended analysis validates the threshold determination that the sentence is grossly disproportionate, then the sentence is deemed cruel and unusual punishment under the Eighth Amendment.

With respect to a categorical challenge, the reviewing court first determines whether a national consensus against the sentencing practice at issue is evident from objective societal standards.  Next, the court exercises its independent judgment whether the punishment violates the Constitution.  Thus, a categorical challenge requires consideration of the culpability of the class of offenders in light of their crimes and characteristics, along with the severity of the punishment.

Given the defendant’s shocking and vile conduct, the Court held that he failed to substantiate the required threshold inference of gross disproportionality.  The Court also held that the defendant’s categorical challenge likewise lacked merit.  Thus, the sentence of 120 years’ imprisonment did not constitute cruel and unusual punishment under the Eighth Amendment.  The Court also reviewed the defendant’s challenge to the reasonableness of his sentence.  The Court determined that the sentencing court did not commit significant procedural error.  Further, the Court determined that the sentence was substantively reasonable as the district court explicitly considered the need for defendant’s sentence to deter others from engaging in what the court considered “the most serious and egregious conduct.”  Judgment affirmed.

Full Opinion

Grace Faulkenberry

WHITESIDE v. UNITED STATES, NO. 13-7152

Decided: April 8, 2014

The Fourth Circuit held that Whiteside could use 28 U.S.C. § 2255 to challenge his erroneous “career offender enhancement” prison sentence under the United States Sentencing Guidelines (U.S.S.G.).  The Court also held that Whiteside did not waive his right to collaterally attack the sentence in his plea agreement, and the Court tolled the one-year limitations period normally allowed for Whiteside’s motion to vacate the sentence.  Ultimately, the Court vacated the sentence and remanded for resentencing.

Whiteside was indicted on a charge of Possession With Intent to Distribute (PWID) cocaine.  Based on an earlier felony drug conviction he received, the Government sought a career offender enhancement prison sentence under the U.S.S.G.  The U.S.S.G. defines a career offender as a person with “a prior state conviction for an offense punishable by imprisonment for a term exceeding one year . . . .”  Whiteside entered into his plea agreement with the Government under the assumption that he qualified as a career offender because of his prior conviction, and he received a prison sentence based on the U.S.S.G.’s recommended range for a career offender.  His prison sentence was eight years longer than it would have been had he not qualified as a career offender.  After Whiteside’s sentencing, a Fourth Circuit decision changed the law that applied to his prior offense so that he would not have been punished by more than one year in prison.  Thus, Whiteside should not have qualified as a career offender, nor be subject to a longer prison sentence.  Whiteside moved to set aside his sentence in the plea agreement as “in violation of the Constitution or Laws of the United States” under 28 U.S.C. § 2255, because he lacked the necessary predicate offense.

The Court reasoned that Whiteside could use 28 U.S.C. § 2255 to vacate his prison sentence under the plea agreement because the application of the erroneous career offender enhancement had a “significant impact” on his sentence, and refusal to allow Whiteside to appeal would amount to a “miscarriage of justice.”  This erroneous enhancement amounted to a miscarriage of justice even though Whiteside’s sentence in the plea agreement fell below the applicable range recommended in the U.S.S.G.  Furthermore, although technically “advisory” in nature, the U.S.S.G. significantly influenced Whiteside’s sentence.

The Court also reasoned that Whiteside’s waiver in the plea agreement did not bar an appeal of his prison sentence because the waiver was ambiguous.  Additionally, the Court tolled the limitations period for Whiteside’s motion to vacate his prison sentence because the erroneous application of the career offender enhancement “worked a gross miscarriage of justice[,]” Whiteside pursued his motion “diligently[,]” and “extraordinary circumstances” caused the delay in filing.

Full Opinion

– James Bull Sterling

UNITED STATES V. NEUHAUSER, NO. 13-6186

Decided: March 11, 2014

The Fourth Circuit affirmed the district court by holding that a defendant’s term of supervised release does not commence while he remains in federal custody pending the resolution of his status under the Adam Walsh Child Protection and Safety Act (the “Act”).

In 1999, Defendant Jeffrey Neuhauser pled guilty to one count of interstate travel with intent to engage in sex with a minor and one count of distribution of child pornography. The court sentenced him to 109 months and an additional five years of supervised release. Just two weeks before his release, the Government certified Neuhauser as a “sexually dangerous person” under the Act. The certification stayed Neuhauser’s release from prison for four and a half years, but the district court ultimately held that Neuhauser did not qualify as a “sexually dangerous person” and released Neuhauser. Six months after his release, Neuhauser moved to terminate his five-year period of supervised release on the grounds that his four and half-year confinement under the Act counted toward his five year supervised release period. The district court disagreed and held that Neuhauser’s supervised release period did not begin until he was released from prison confinement. Neuhauser appealed.

On appeal, Neuhauser argued that the district court erred by finding that his “supervised release” began only after being released from physical custody, and instead contended that his “supervised release” began on the date that his prison sentence ended. The Fourth Circuit affirmed the district court. Under the Act, “a defendant’s ‘term of supervised released commences on the day the person is released from imprisonment.’” Neuhauser argued that his “imprisonment” only lasted as long as the government detained him as punishment for a crime. The Fourth Circuit dismissed his argument, explaining that the term “imprisonment” “evinces no necessary link to criminal punishment.” Furthermore, in other legal contexts, such as a period of detention before conviction, the term “imprisonment” does not describe service of a criminal sentence. Moreover, the Act itself explains that a period of supervised release is tolled “when a person is imprisoned in connection with a conviction.” Finally, the court concluded a broad reading of the term “imprisonment” comports with the Act’s policy of protecting children. Therefore, the Fourth Circuit affirmed the district court and held that Neuhauser had not satisfied his period of supervised release.

Full Opinion

– Wesley B. Lambert

UNITED STATES V. COX, NO. 13-4066

Decided: March 5, 2014

The Fourth Circuit held that the United States District Court for the District of South Carolina did not commit error by applying a cross-reference to Harvey Cox’s (Cox) sentence pursuant to § 2G2.2(c)(1) of the Sentencing Guidelines (U.S.S.G.).  The Fourth Circuit therefore found Cox’s sentence to be procedurally reasonable and affirmed the judgment of the district court.

In 2011, Cox was arrested during the course of an investigation concerning the sexual assault of a minor.  After Cox’s arrest, A.C.—Cox’s daughter—turned over forty-six Polaroid photographs of a naked young girl to authorities.  A.C. identified the girl in the pictures as M.G.—Cox’s niece—and told investigators that she found the photos in Cox’s truck and bedroom.  Each photograph was marked with a date, written in Cox’s handwriting; the dates ranged from June 2004 to December 2005.  When investigators interviewed M.G., she verified that she was the girl in the photos.  The PSR reiterated evidence that, inter alia, Cox photographed M.G. after having sexual intercourse with her; that Cox gave M.G. alcohol and money; that Cox threatened to “do it” to M.G.’s little sister if M.G. disclosed the sexual abuse; and that Cox kept the photos of M.G. “for as many as seven years.”  While Cox was in jail prior to the adjudication of his case, he wrote letters to A.C.; in one letter, Cox instructed A.C. to lie about the origins of the photos.

Cox pleaded guilty to, inter alia, knowingly possessing material containing images of child pornography, a violation under 18 U.S.C. § 2252A(a)(5)(B).  When preparing the PSR, a probation officer applied U.S.S.G. § 2G2.2 in the calculation of Cox’s sentencing range.  A cross-reference to this section, § 2G2.2(c)(1), applies “[i]f the offense involved causing . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.”  When the cross-reference is applicable, it advises the court to apply a different section, § 2G2.1, if this section would result in the imposition of an adjusted offense level greater than the relevant adjusted offense level under § 2G2.2.  The probation officer found the cross-reference applicable to Cox’s case; the application of § 2G2.1 instead of § 2G2.2 resulted in an increase of thirteen offense levels.  Cox objected, arguing that there was not sufficient evidence to support a finding of acting “for the purpose of producing a visual depiction of [sexually explicit conduct].”  The district court overruled the objection and applied the cross-reference.  Cox appealed, challenging his sentence’s procedural reasonableness.  On appeal, Cox argued that, while he “caus[ed] . . . a minor to engage in sexually explicit conduct” and took photographs of the sexually explicit conduct, production of his photos was not a “central component of the sexual encounters.”  Cox also asserted that the district court’s only basis for applying the cross-reference was the “existence of the photographs”—and argued that this basis is impermissible.

The Fourth Circuit first noted that the “purpose” requirement in the relevant cross-reference “is to be construed broadly,” U.S.S.G. § 2G2.2 cmt. n.5, and found that the purpose requirement “is satisfied anytime one of the defendant’s purposes was to produce a visual depiction of the sexually explicit conduct.”  The Fourth Circuit then found that the district court did not use the existence of the photos as the sole basis for applying the cross-reference: rather, the district court relied on evidence recounted in the PSR, as well the instructions Cox sent to A.C. from jail.  The Fourth Circuit also found that the evidence reiterated in the PSR corroborated Cox’s purpose—to produce visual depictions of sexually explicit conduct.  The Fourth Circuit therefore did not reach the question of whether the mere production of sexually explicit photos involving minors can, without more, support the application of the relevant cross-reference.

Full Opinion

– Stephen Sutherland

UNITED STATES V. STRAYHORN, NOS. 12-4487, 12-4495

Decided: February 26, 2014 

The Fourth Circuit held that (1) the United States District Court for the Middle District of North Carolina committed error by denying Janson Strayhorn’s motion for judgment of acquittal with regard to the charges of robbery—in violation of the Hobbs Act, 18 U.S.C. § 1951—and brandishing a firearm in relation to the robbery, in violation of 18 U.S.C. § 924(c)(1); (2) that the district court did not commit error by denying Janson Strayhorn’s motion for judgment of acquittal with regard to the charges of conspiracy to commit robbery—in violation of the Hobbs Act—and using a firearm in relation to the Hobbs Act conspiracy, in violation of § 924; and (3) that the district court committed error by applying an enhanced mandatory minimum to Jimmy Strayhorn’s sentence for brandishing a firearm—in violation of § 924—without instructing the jury on the element of brandishing.  The Fourth Circuit therefore affirmed the judgment of the district court in part, reversed it in part, and vacated and remanded the cases for resentencing.

In August 2010, two robbers arrived at P & S Coins (P & S)—a North Carolina store—in a cream-colored Cadillac.  While one robber held the store’s owner at gunpoint, the other robber tied up the owner, binding his legs with duct tape and tying his hands with zip ties.  The robbers took coins and a revolver from the store.  Two months later, Jimmy Strayhorn—who had been detained as a suspect for unrelated crimes—made several phone calls to Thania Woodcock (Woodcock), his girlfriend.  The police monitored his calls and discovered that, to obtain money for bond, Jimmy Strayhorn had asked Janson Strayhorn—his brother—to rob a Butner, North Carolina store called All American Coins and Collectibles (All American Coins).  Jimmy Strayhorn’s calls were forwarded to the Butner police.  From Jimmy Strayhorn’s phone conversations, the Butner police knew that the robbers would probably drive a Cadillac belonging to Woodcock.  In late October 2010, a Butner police officer saw a Cadillac drive slowly past All American Coins; after observing certain suspicious behavior, Butner called in the license plate of the car and confirmed that he was following the “targeted Cadillac.”  He then stopped the Cadillac and searched it with another officer.  The officers found that, inter alia, Janson Strayhorn drove the car and the Cadillac was registered to Woodcock.  The officers also discovered two revolvers in the car—one of which was the revolver stolen from P & S.  The officers arrested Janson Strayhorn.  After obtaining a search warrant, the officers search Woodcock’s house, finding a coin taken from P & S; black zip ties, like those used to tie up the owner of P & S; and ammunition.  While Jimmy Strayhorn resided at Woodcock’s house—at least occasionally—Janson Strayhorn did not.

With regard to the P & S robbery, Janson and Jimmy Strayhorn (collectively, the defendants) were each charged with robbery under the Hobbs Act (Count 1) and using a firearm by brandishing it, in violation of § 924 (Count 2).  With regard to the incidents related to All American Coins, the defendants were each charged with conspiracy to commit robbery (Count 3)—again under the Hobbs Act—and using a firearm in relation to this conspiracy (Count 4).  At trial, the owner of P & S identified Jimmy Strayhorn as one of the people who had robbed the store; however, the owner failed to identify Janson Strayhorn.  Furthermore, though a fingerprint expert testified that the duct tape used to bind the owner had a partial fingerprint belonging to Janson Strayhorn on it, the expert “could not determine when that fingerprint had been imprinted on the tape and [testified] that such a print could remain on the tape for as long as a year.”  The jury found the defendants guilty on all counts.  The district court denied the defendants’ motions for a judgment of acquittal, the defendants appealed.  On appeal, Janson Strayhorn challenged the sufficiency of the evidence used to support his convictions, and Jimmy Strayhorn challenged his sentence for the § 924 offense charged in Count 2.

The Fourth Circuit noted that Janson Strayhorn’s convictions on Count 1 and Count 2 were based primarily on the duct-tape fingerprint—and that duct tape is an easily movable object.  Regarding challenges to convictions supported by fingerprints on easily moveable objects, the Fourth Circuit stated that “in the absence of evidence regarding when the fingerprints were made, the government must marshal sufficient additional incriminating evidence so as to allow a rational juror to find guilt beyond a reasonable doubt.”  The Fourth Circuit then noted that, while Janson Strayhorn was in possession of a stolen gun, “the gun was no longer recently stolen by the time Butner police stopped [him]”; furthermore, the gun was “small light, and easily transferable,” and the presence of the gun in the Cadillac could be explained by Jimmy Strayhorn’s participation in the P & S robbery, combined with Janson Strayhorn’s use Woodcock’s car to case All American Coins.  The Fourth Circuit also rejected the Government’s assertion that the conspiracy to rob All American Coins indicated Janson Strayhorn’s guilt with regard to the P & S robbery, terming this assertion “an impermissible propensity argument.”  Furthermore, the Fourth Circuit found that the use of the Cadillac in both incidents and the presence of the zip ties in Woodcock’s house were not probative of Janson Strayhorn’s guilt with regard to the P & S robbery.  However, the Fourth Circuit found that substantial evidence supported Janson Strayhorn’s convictions on Count 3 and Count 4, as the transcripts of Jimmy Strayhorn’s phone calls indicated that Janson Strayhorn agreed to rob All American Coins, the transcript of a phone conversation between Janson Strayhorn and Woodcock after his arrest indicated his involvement with the conspiracy, and Janson Strayhorn took certain steps in furtherance of the conspiracy.  With regard to Jimmy Strayhorn’s sentence as to Count 2, the Fourth Circuit noted that, per Alleyne v. United States, 133 S. Ct. 2151, facts that increase the mandatory minimum sentence are “elements” and have to be submitted to the jury.  The Fourth Circuit found that, while the jury instructions “reflected that brandishing was one method of ‘using’ the firearm,” the district court did not inform the jury that brandishing was an element of the offense—therefore making Jimmy Strayhorn’s enhanced mandatory minimum sentence impermissible under Alleyne.

Full Opinion

– Stephen Sutherland

UNITED STATES V. MCDOWELL, NO. 13-4370

Decided:  March 11, 2014

The Fourth Circuit Court of Appeals affirmed the defendant’s 196-month sentence imposed pursuant to the Armed Career Criminal Act. The Fourth Circuit held that the district court did not err by relying an uncertified criminal record check as proof that the defendant committed a violent felony in New York more than forty years ago.

In August 2010, DEA agents authorized a confidential informant to buy heroin from the defendant, Ernest James McDowell, Jr. (“McDowell”). In March 2011, McDowell pled guilty without a plea agreement to one count of possession of heroin with intent to distribute and one count of being a felon in possession of a firearm. Prior to the sentencing hearing, McDowell’s probation officer prepared a pre-sentence report (“PSR”) with an increased recommended sentence, on the ground that he was an “armed career criminal” as defined by the Armed Career Criminal Act (“ACCA”). The officer concluded that three of McDowell’s prior convictions met the ACCA’s definition of a “violent felony.” The Government located formal court judgments evidencing two of the tree convictions, but was unable to produce a formal judgment documenting the third—a 1971 conviction in the Bronx for second-degree assault. Instead, the Government relied on a criminal record check obtained from the National Crime Information Center (“NCIC”) database, which listed the 1971 assault among the crimes for which McDowell had been convicted. NCIC typically links suspects’ criminal histories to their fingerprints. The one at issue here listed four different names for McDowell, as well as two social security numbers and four different birthdays that were all inaccurate. The report correctly detailed McDowell’s birthplace, height, weight, and hair color. It indicated that McDowell pled guilty under the name “Michael Mc Dowell” to second-degree assault in the Bronx in 1971, a conviction for which he received a sentence of four years.

On appeal, McDowell contended that the NCIC report could not establish, even by a preponderance of the evidence, the fact of the 1971 conviction. However, every court of appeals has concluded that a district court may use an NCIC report to help establish the fact of a prior conviction. Although the NCIC database is fallible, there is no evidence to suggest that it is categorically unreliable. In fact, McDowell’s counsel pointed to Urbina-Mejia, which recounted a probation officer’s remark that one out of two hundred NCIC reports he had encountered in his career was inaccurate. This 99.5% accuracy rate actually suggests that the NCIC database is generally (albeit not always) accurate. Moreover, the pervasive use of NCIC reports throughout the criminal justice system further indicates that such reports may be trusted.

The Fourth Circuit rejected McDowell’s argument that this specific report was still unreliable, based on its inaccurate statement of his name and birthday and the passage of forty years. Although the issues did cast some doubt on the report’s accuracy, the Government provided unrebutted explanations regarding each of the report’s alleged defects. The PSR noted that McDowell occasionally used the alias “Michael” and that the report includes any names and birthdays provided by the defendant upon arrest—including false ones. In addition, the probation officer spoke with an FBI agent who confirmed that the NCIC report linked McDowell to the 1971 assault through fingerprint analysis. Further, the Government pointed out that McDowell had been convicted of other crimes in the Bronx under the alias “Michael” shortly before 1971, rendering the subsequent conviction more likely. And finally, the Government noted that McDowell was convicted of a federal crime in 1983—a conviction that would have resulted in a criminal background check revealing the 1971 conviction—and that if he had a legitimate basis for challenging the 1971 conviction, would have done so then. The Fourth Circuit held that the district court did not clearly err in finding that this report, in addition to the corroboration provided by the Government, established the facts of the 1971 conviction by a preponderance of the evidence.

Then, McDowell contended that in applying the preponderance-of-the-evidence standard to establish the fact of his prior conviction, the district court violated his Sixth Amendment right to have the jury find each element of his offense beyond a reasonable doubt. However, the Supreme Court has recognized an exception to the general Sixth Amendment rule: a jury need not find the “fact of a prior conviction” beyond a reasonable doubt. Instead, the Court has held that the Sixth Amendment permits a judge to find the fact of a prior conviction by a mere preponderance of the evidence, even if this fact raises the statutory maximum or minimum penalty for the current offense.

Full Opinion

– Sarah Bishop

UNITED STATES V. ROBINSON, NO. 12-4639

Decided: February 21, 2014

The Fourth Circuit affirmed Steven Robinson’s 140-month sentence for cocaine distribution, finding that the district court committed no error in following the sentencing guidelines relating to the drug quantity assigned and in calculating his criminal history.

In 2010, police videotaped Robinson and others selling crack cocaine to a police informant. Robinson was indicted of conspiring to distribute crack cocaine from 2002 to 2011, aiding and abetting the distribution of crack cocaine, and distribution of crack cocaine. After both of his co-conspirators pled guilty, Robinson finally pled guilty to the charges on the day of his trial. At sentencing, Robinson objected to the court’s calculation of the quantity of drugs attributable to him and his criminal history.

At sentencing, Robinson first objected to the district court’s reliance on the pre-sentence report (“PSR”) drafted by a probation officer attributing “50 grams or more” of crack cocaine to Robinson. Although Robinson was captured on tape selling far less than 50 grams, the probation officer concluded that between 2002 and 2011, Robinson sold far more crack cocaine than what was caught on tape. The probation officer largely relied on the testimony of a police informant who claimed to have purchased drugs regularly from Robinson between 2000 and 2008 in amounts totaling more than a kilogram. Robinson challenged the credulity of the police informant largely because the informant first claimed to have bough 6 kilograms of the drug before revising his estimate to 1.4 kilograms. Furthermore, Robinson claims that he could not have sold the informant drugs between 2005 and 2008 because he was away at culinary school during the period. The government defended the “50 grams or more” quantity of crack cocaine, claiming that its informant simply revised the amount of drugs purchased to an amount that was more conservative and reliable than the first estimate. Moreover, the government claimed that there was ample evidence that Robinson sold drugs to other witnesses in amounts exceeding 50 grams without resorting to the drugs sold from the 2005 to 2008 period when Robinson claims to have been away at culinary school. The district court gave Robinson two options: start the pre-sentence report process over again, realizing that Robinson may potentially receive a worse sentence, or go forward with the evidence as presented. Robinson chose not to restart the process and opted to move forward with the information in the record. Robinson appealed the district court’s sentence based on its calculation of the amount of drugs.

On appeal, the Fourth Circuit upheld the district court’s calculation of drugs attributable to Robinson. The court reasoned that Robinson “made the conscious choice at sentencing to proceed on the basis of the information contained the PSR,” waving his right to appeal the district court’s reliance on the information. The district court clearly provided Robinson with the choice of either: postponing sentencing until the parties could collect more evidence as to the proper drug quantity, or proceeding based on the evidence before the court. Robinson stated that he “would rather go ahead and do it now.” Moreover, even when the district court gave him the opportunity again, Robinson maintained that he wished to proceed. Thus, the court believed that Robinson consciously and with a full appreciation of the consequences, chose to waive his right to challenge the information contained in the PSR.

Robinson also objected to the PSR’s assignment of criminal history points on the basis of his one-day probation for a 2003 marijuana conviction. Robinson claimed that the PSR wrongly concluded that Robinson violated his probation on that day by selling drugs because he spent his entire day traveling home from Maryland, and thus, could not have sold drugs on that day. The district court rejected Robinson’s argument and adjusted Robinson’s range upward accordingly from 121-151 months to 135-168 months. The court ultimately imposed a sentence of 140 months, which fell “well within” both ranges. On appeal, the Fourth Circuit upheld the enhancement, holding that even if he did not sell crack cocaine during the 24 hours of probation, the sentencing enhancement was still proper because “even a short period of probation imposed during an ongoing conspiracy triggers an enhancement.” Thus, because the conspiracy conviction included the day of probation in 2003, the sentencing enhancement was proper.

Full Opinion

– Wesley B. Lambert

STEVENSON V. CITY OF SEAT PLEASANT, NO. 12-2047

Decided: February 21, 2014

The Fourth Circuit held that Marques Stevenson (Stevenson), Gary Barnett (Barnett), and Christopher Howard (Howard) (collectively, the appellants) waived any challenge to the United States District Court for the District of Maryland’s partial or total dismissal of claims against Officer LaVance Lowery (Lowery), Officer Rickie Adey (Adey), Prince George’s County, Maryland (County) (collectively, the appellees), and the City of Seat Pleasant, Maryland (Seat Pleasant); that the district court correctly determined, after the trial, that the appellants sufficiently stated a cause of action for bystander liability in their complaint—and that the district court’s previous ruling on summary judgment, in which the court reached the opposite conclusion, was therefore erroneous; that because the district court’s previous summary judgment ruling was erroneous, the court’s denial of the appellants’ motion under Federal Rule of Civil Procedure 60(b) did not warrant consideration on appeal; and that the district court did not abuse its discretion by denying the appellants’ Rule 59(e) motion.  The Fourth Circuit therefore affirmed the judgment of the district court in part, reversed it in part, and remanded the case with instructions.

On July 8, 2007, police officers—including Lowery, who works for Seat Pleasant, and Adey, who works for the County—allegedly attacked the appellants in an unprovoked assault outside a County nightclub.  In July 2009, the appellants sued Lowery, Adey, the County, and Seat Pleasant, suing Lowery and Adey in their official and individual capacities and using the theory of vicarious as to the County and Seat Pleasant.  The appellants’ complaint contained counts for, inter alia, excessive force and police brutality, battery, deprivation of civil rights under 42 U.S.C. § 1983, and “a count under Articles 245 and 26 of the Maryland Constitution.”  Each defendant moved for partial or complete dismissal of the applicable counts; the appellants did not oppose these motions.  All of the counts were dismissed except the following: the § 1983 count against Lowery, the excessive force and battery counts against Adey and the state constitutional count against the County.  The district court dismissed all the counts against Seat Pleasant.  The appellees then moved for summary judgment.  At a hearing on December 21, 2010, the district court granted the appellees’ motions, except for Stevenson’s § 1983 claim against Lowery.  In addition to its assessment of the other counts, the district court found that the appellants had not stated a cause of action under the theory of bystander liability.  The district court placed its finding on summary judgment in a written order, which it entered on December 22, 2010.  In January 2011, the appellants moved to alter or amend the district court’s summary judgment ruling under Rule 59(e).  The appellants disputed, inter alia, the district court’s conclusions with regard to bystander liability.  On May 19, 2011, the district court denied the motion.

In the subsequent jury trial, the district court allowed Stevenson’s attorney to mention bystander liability during closing arguments.  After the jury found that Lowery violated Stevenson’s constitutional rights through the use of excessive force, Lowery moved for judgment as matter of law under Rule 50(b).  He argued that bystander liability had not been pleaded—and the reference to this theory during closing arguments was therefore improper.  However, at a hearing in January 2012, the district court found that the appellants’ complaint did state a cause of action for bystander liability.  The district court then ordered a new trial under Rule 50(b); however, Lowery and Stevenson settled prior to trial.  In May 2012, the appellants made a Rule 60(b) motion to vacate the district court’s order of May 29, 2011, with regard to bystander liability.  The district court denied the motion. In August 2012, the district court “entered an order respecting Officer Lowery and Stevenson’s settlement agreement and dismissing all claims.”  On appeal, the appellants disputed the district court’s decisions with regard to the appellees’ motions to dismiss, the appellee’s motions for summary judgment, the Rule 60(b) motion, and the 59(a) motion.

The Fourth Circuit declined to consider the district court’s grant of the various motions to dismiss, as the appellants did not present arguments on this issue in their brief.  With regard to summary judgment on the issue of bystander liability, the Fourth Circuit noted that, in paragraph 35 of the appellants’ complaint—which discussed the § 1983 count—the appellants stated that Lowery and Adey “did . . . commit or allow to be committed an unreasonable seizure . . .” (emphasis added).  The Fourth Circuit found inapposite the appellants’ failure to use the phrase “bystander liability” in their complaint.  The Fourth Circuit also rejected the appellees’ contention that they were not put on notice due to the lack of a bystander liability claim in the appellants’ discovery responses, attributing this failure to the appellees’ line of questioning and noted that the complaint—and not the parties’ discovery responses—is the source of “fair notice.”  However, the Fourth Circuit also noted that the reversal of summary judgment would only affect Lowery, as “he is the only defendant against whom the § 1983 count survived dismissal.”  The Fourth Circuit then found that there was no reason to consider the appellants’ Rule 60(b) motion due to its conclusion on the underlying summary judgment issue.  However, the Fourth Circuit noted that the appellants also appealed the district court’s conclusions—with regard to summary judgment and the Rule 59(e) motion—on Adey’s status as a principal actor and the County’s vicarious liability for Adey’s alleged assault.  On this issue, the Fourth Circuit noted that the appellants relied principally on affidavits—especially Barnett’s affidavit—in support of their points, and that Barnett’s affidavit contained inconsistencies and contradictions of earlier testimony.  Because the Fourth Circuit affirmed the summary judgment in favor of Adey, it also found that the County could not be held liable under a theory of vicarious liability.  Also, pursuant to the evidentiary findings of the district court, the Fourth Circuit affirmed the summary judgment in favor of Lowery with regard to his purported role as a principal actor pursuant to the § 1983 claim—but only with regard to Barnett and Howard.  This left room for reconsideration, on remand, “of Officer Lowery’s and Howard and Barnett’s summary judgment papers pursuant to a framework in which bystander liability was properly pleaded.”

Full Opinion

– Stephen Sutherland

UNITED STATES V. KEITA, No. 12-4957

Decided: February 6, 2014

The Fourth Circuit Court of Appeals affirmed the defendant’s conviction for various charges related to credit and debit card fraud. The Fourth Circuit rejected the defendant’s arguments that the district court: should have dismissed the government’s case based on the Speedy Trial Act; erred in allowing certain business records into evidence; and miscalculated the loss at sentencing.

On January 31, 2012, pursuant to a search warrant based on a credit card fraud investigation, federal agents searched the residence of Defendant Mohammed Keita (“Defendant”). There, they seized laptop computers containing stolen credit card information, credit and debit cards bearing Defendant’s name but re-encoded with stolen credit card information, numerous credit card receipts, and a device for re-encoding credit cards.

Defendant first argued that the district court erred in denying his motion to dismiss the indictment based on asserted violations of his rights under the Speedy Trial Act. The Speedy Trial Act provides that “any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” An indictment filed in violation of the thirty-day time limit must be dismissed. However certain delays shall be excluded when calculating the thirty-time period, such as those resulting from plea negotiations or from a continuance. Here, Defendant was arrested on January 31, 2012 and, therefore, the government was required to file an indictment by March 1, 2012. However, the parties twice jointly requested additional time and the district court accordingly granted two continuances: The first secured a continuance until March 15, 2012, and the second secured a continuance until April 5, 2012. Applying the exclusions, the speedy trial clock began on February 1 (the day after Defendant’s arrest) and stopped on February 10 (when the first continuance was granted). It resumed on April 6 (when the second continuance lapsed) and stopped again on April 9 (when the indictment was filed). Thus, a total of twelve non-excluded days elapsed, well within the Speedy Trial Act’s thirty-day limit.

Defendant next argued that the introduction of business records relating to cardholders who did not testify at trial violated his Sixth Amendment right to confrontation and that those records were irrelevant. In accordance with the Confrontation Clause, testimonial statements of witnesses absent from trial are admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. But, business and public records are generally admissible absent confrontation because they are not testimonial. Business records are generally not testimonial if they are created for the administration of an entity’s affairs rather than for proving some fact at trial. Here, American Express maintains certain records called common point of purchase reports, which are internal documents identifying customer accounts that have been compromised. American Express creates the reports daily as part of its regular business practices and sends them throughout the global security team throughout the country. Many of the business reports do not mention individual cardholders, let alone contain statements made by cardholders. Therefore, the Fourth Circuit concluded that the reports were not were not testimonial. Defendant further objected to the business records as irrelevant, because they were not probative of the aggravated identity theft charges, and unfairly prejudicial, because they identified cardholders other than those named in the indictment. To prove the three counts of access device fraud, the government had to show that Defendant “knowingly and with intent to defraud” used an “unauthorized access device” to “obtain anything of value aggregating $1,000 or more” for each of the three one-year periods charged in the indictment. Thus, the Fourth Circuit concluded that even if the business records were not probative of the identity theft charges, they were probative of the access device fraud charges.  The Fourth Circuit further concluded that the evidence was not unduly prejudicial under Rule 403, which excludes evidence only if any unfair prejudice substantially outweighs its probative value. Based on the substantial evidence presented by the government, which included videotapes and photographs of Defendant using the cloned credit cards, as well as highly incriminating evidence seized from Defendant’s laptop computers, the Fourth Circuit concluded that introduction of the business records posed no disproportionate risk of inflaming the passions of the jury to “irrational behavior.”

Finally, the Defendant asserted that the district court erred in calculating the amount of loss at sentencing. Each loss attributed to Defendant was supported by videotape evidence. According to those calculations, the actual loss caused by Defendant’s conduct was $117,313, and the amount of intended loss, where Defendant swiped a card but it did not go through, was $19,525.30. Therefore, the district court added the two numbers together and found that the government established $136,838.30 as the amount of loss. Therefore, the Fourth Circuit concluded that factual findings regarding the amount of loss were supported by a preponderance of the evidence. The court need only make a reasonable estimate of the loss, and it could include evidence of unauthorized transactions to which no cardholder testified.

Full Opinion

– Sarah Bishop

UNITED STATES V. MOSTELLER, NO. 12-4434

Decided: February 4, 2014

The Fourth Circuit Court of Appeals affirmed the district court’s judgment charging Megan Hanson Mosteller (“Mosteller”) with theft of government funds. The Fourth Circuit held that although Mosteller’s attempt to waiver her rights under the Speedy Trial Act (“the Act”) was null and void, she was not entitled to assert for the first time on appeal that a violation of the Act occurred, based on the plain language of the Act. Therefore, in view of this waiver imposed by statute, the Fourth Circuit may not review for plain error Mosteller’s argument asserting a violation of the Act.

In September 2007, Megan and Jeremy Lewis Mosteller, Jr. (“Jeremy”) were married. In March 2008, Jeremy committed suicide. After Jeremy’s death, Megan Mosteller applied for and began receiving “dependency and indemnity compensation” as Jeremy’s surviving spouse from the Department of Veteran Affairs (“VA”). She was required to inform the VA of any change in marital status. Mosteller also applied for and received education benefits, for which she was obligated to notify the VA if she ceased attending classes or remarried. In August 2008, Mosteller remarried. She did not inform the VA of her change in marital status and continued to receive surviving spouse benefits until October 2010. Additionally, Mosteller did not inform the VA that after receiving the education benefits, she had not attended any classes. Mosteller was charged with one count of theft of government funds. Notably, the indictment charged her with theft of surviving spouse benefits but did not include any reference to education benefits.

Mosteller’s first trial began on November 11, 2011. When evidence was introduced at trial regarding the education benefits, for which she was not charged, Mosteller moved for a mistrial. The court decided to grant a mistrial on the condition that Mosteller waive her rights under the Act. Two weeks later, the grand jury issued a superseding indictment, charging Mosteller based on her receipt of both the education and the surviving spouse benefits. Although Mosteller’s second trial began on February 21, 2012, well more than 70 days after the mistrial, Mosteller did not move to dismiss the superseding indictment based on a violation of the Act.

On appeal, Mosteller argued that the district court erred in requiring that she waive her rights under the Act as a condition of granting a mistrial, and that her rights under the Act were violated.

The Act generally requires that a trial begin “within 70 days of the filing of an information or indictment or the defendant’s initial appearance.” Or, in the event of a mistrial, a new trial must begin within 70 days “from the date the action occasioning the retrial becomes final.” Under the Act, if a defendant makes a timely motion to dismiss, the remedy for a violation of the Act is dismissal of the information or indictment. Significantly, the Act contains a waiver provision stating that the “failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.”

The Fourth Circuit initially agreed with Mosteller that the district court erred in requiring that she agree to waive her rights under the Act as a condition of granting the mistrial. Based on the Supreme Court’s holding in Zedner, a defendant may not waive application of the Act for a violation that has not yet occurred. However, the Zedner court further explained that although a defendant may not waive future application of the Act, a waiver nevertheless will result by operation of the statutory waiver provision if the defendant fails to move to dismiss the indictment before the new trial begins. Therefore, the Fourth Circuit concluded that Mosteller’s failure to make a timely motion to dismiss an indictment before the start of the new trial constituted a waiver of the defendant’s right to assert a violation of the Speedy Trial Act, based on Zedner.

However, the Fourth Circuit for the first time addressed the question whether plain error review was available to consider asserted violations of the Act not timely raised in the district court. The Fourth Circuit noted that the express language of the waiver provision states that the failure to file a motion to dismiss before trial “shall” constitute a “waiver of the right to dismissal” under the Act. Based on the unambiguous terms of the statute, “waiver of the right to dismissal” is the only possible outcome of a defendant’s failure to file a timely motion to dismiss under the act. Therefore, because the Act specifies that such a “waiver” occurs when a defendant fails to timely assert a Speedy Trial Act violation in the district court, the Fourth Circuit concluded it was not permitted to conduct any appellate review, for plain error or otherwise, of Mosteller’s claim.

Full Opinion

– Sarah Bishop

UNITED STATES V. ANTONE, NO. 12-2400

Decided: February 4, 2014

The Fourth Circuit, finding that the Government failed to establish by clear and convincing evidence that Bryan Neil Antone (“Antone”) is a sexually dangerous person subject to civil commitment, reversed and remanded the district court’s judgment with instructions to dismiss.

Antone, now forty-one years old, was born and raised on an Indian Reservation in Arizona. Antone was often neglected and both verbally and physically abused as a child. By age seven, his aunt, on several occasions, sexually abused him. By age fifteen, he had engaged in sexual intercourse with at least two adult women. Not surprisingly, Antone had serious behavioral issues as a child, which led to school expulsions and stints in juvenile detention. He dropped out of high school in the ninth grade and was unable to maintain steady employment thereafter. When he was nineteen years old, in 1991, Antone was arrested. The arrest related to two sexual acts with his sixteen-year-old girlfriend. The first sexual act was consensual. The second, however, was forcible rape. Antone pled guilty to the rape in tribal court and served six months in jail.

Antone went on to engage in several other acts of sexual misconduct between 1997 and 1999. As a result, Antone entered into a consolidated plea agreement and judgment was entered on March 16, 2009. The consolidated tribal judgment related to four victims and spanned incidents from 1992 through 1997. The incidents included sexual assault, attempted rape, two instances of forcible rape, and improper touching. He was sentenced to 3,600 days in jail by the tribal court. Notably, Antone has a serious history of substance abuse and the incidents described above all took place when Antone was either intoxicated from alcohol and/or high on cocaine.

At the initiation of Antone and his attorney, Antone was sentenced in the United States District Court for the District of Arizona for a charge related to one of the sexual assaults that was also a subject of his consolidated tribal judgment. The reasoning was to enable Antone to be transferred to federal custody and thereby have access to sex offense treatment designed specifically for Native Americans. Antone was incarcerated in the federal prison from November 1999 through February 23, 2007, when the Government initiated a civil commitment proceeding four days before his expected release. Since then, Antone has resided in FCI-Butner, a medium security prison in North Carolina, awaiting his civil commitment hearing and its resolution. As a result, he has been in continuous federal custody for the past fourteen years, or since he was twenty-seven years old.

During his entire period of custody, Antone had not been shown to consume alcohol or drugs even though the Bureau of Prisons regularly administers Breathalyzer tests on inmates in recognition of the fact that it is possible to make and obtain contraband alcohol within the prison. Antone, moreover, attended Alcoholics Anonymous, Narcotics Anonymous, as well as, other drug education and substance abuse programs on his own initiative. He has had minimal behavioral problems while in prison. He completed his GED in 2001 and maintained employment as an orderly in his housing unit, where his work performance was characterized as “superior.” In addition, Antone regularly seeks out advice and counseling from his prison’s counselors and treatment specialists. He has taken classes in art, beading, meditation, and guitar. He now teaches other inmates guitar. As for sexual conduct, Antone’s record indicates that he has not engaged in sexual misconduct during his incarceration. In sum, Antone has been a model inmate.

Four days before Antone’s expected release date, on February 23, 2007, the Government filed a civil commitment order naming Antone as a sexually dangerous person. The district court referred the matter to a magistrate judge for an evidentiary hearing and a report and recommendation. During a three day hearing in October 2011, the Government presented the testimony of Antone and two expert witnesses; Antone presented the testimony of a specialist and a counselor at the prison at which he resided, a United States Probation Officer from Arizona, and an expert witness. On April 30, 2012, the magistrate judge issued his M&R, in which he recommended that Antone not be found a sexually dangerous person. Although the district court accepted the magistrate judge’s credibility determinations and findings of historical fact, it rejected the M&R’s ultimate recommendation of a finding of not sexually dangerous. Rather, the district court found that the combination of Antone’s mental illnesses would cause him to have serious difficulty in refraining from sexually violent conduct if released. Antone was, therefore, committed to the custody of the United States Attorney General as a sexually dangerous person. This appeal followed.

On appeal, the Fourth Circuit was left to address only the third prong of the requirements that must be proven before an individual can be civilly committed under Section 4248. The third prong requires the Government to prove, by clear and convincing evidence, that the individual would have serious difficulty in refraining from sexually violent conduct or child molestation if released. The Court first discussed the clear and convincing standard, which requires the court to identify credible supporting evidence that renders its factual determinations “highly probably.” Next, after assessing the record, the Court found that the aggregate of historical, direct, and circumstantial evidence contained therein, at most, rose to a level of preponderance in favor of commitment. But, it did not satisfy the statutory burden of clear and convincing evidence.

In so finding, the Court observed that the core of Antone’s case was his decade-long process of rehabilitation, which the Government’s expert completely discounted and the district court dismissed with one sentence. Notably, the Government relied on one of its expert witness’s opinions that was based entirely on Antone’s conduct prior to incarceration and did not take into account his rehabilitation. Thus, the Fourth Circuit concluded that the appellate record did not support the district court’s determination that Antone would have serious difficulty refraining from sexually violent conduct if released. Accordingly, the district court’s judgment was reversed and remanded with instructions to dismiss the petition.

Full Opinion

– W. Ryan Nichols

UNITED STATES OF AMERICA V. HASSAN, NOS. 12-4601; 12-4603; 12-4607

Decided: February 4, 2014

Three defendants, Omar Hassan, Ziyad Yahi and Hysen Sherifi (collectively “Defendants”) were tried jointly in the Eastern District of North Carolina and convicted of several offenses arising from terrorist activities.  After numerous challenges, the Fourth Circuit affirmed the conviction and sentence.

Defendants’ offenses stem from a conspiracy to commit terrorist acts orchestrated by Daniel Boyd (“Boyd”). Boyd pled guilty to the crimes and, as a part of his plea agreement, testified against Defendants. Boyd spent time in his early life at a training in Pakistan and Afghanistan run by Osama Bin Laden. Eventually, Boyd settled with his family in Raleigh, North Carolina. By 2004, Boyd was fully immersed in radical Islam and disassociated himself from the mainstream Islamic community. He began meeting with others at his Raleigh home and at a grocery store he owned and operated to discuss his violent religious views. Boyd explained that “to him, jihad required ‘doing something to fulfill [his] obligation in Islam.’” Boyd and Defendants met numerous times from 2004 to 2009 to discuss ways to fulfill this objective. The FBI initiated an investigation of Boyd in 2005, and two federal agents developed a close personal relationship with Boyd, with Boyd eventually helping one agent obtain a passport to travel abroad to engage in violent jihad. These federal agents provided much of the evidence necessary to capture Boyd and the Defendants.

Defendant Yaghi met Boyd in 2006 when Yaghi was just eighteen years old. Yaghi asked Boyd about his time in Afghanistan and the two developed a close personal relationship. The men regularly met and discussed Boyd’s experiences in the Middle East and his views on Islam and violent jihad. Yaghi sought Boyd’s advice about traveling to Jordan and asked Boyd where to find the “best brothers,” in an effort to join the violent Islamic resistance movement in Jordan. Before traveling to Jordan in 2006, Yaghi met with Boyd and others and had a “joyous send-off” where well-wishers conveyed messages to Boyd, encouraging him to make his way to the battlefield and engage in jihad against the “kuffar” (non-Muslims). Additionally, Yaghi expressed an interest in finding a “wife” overseas, a term synonymous with engaging in violent jihad. Yaghi was not successful in engaging in jihad while overseas, but he did post numerous statements on Facebook reflecting his sympathies to the violent jihadist ideology, particularly Anwar al-Awlaki, a prominent American born al-Qaida militant. After returning, Yaghi spoke to the Islamic Association of Raleigh “promoting jihad and the corresponding moral obligation to commit violence against non-Muslims.”

While overseas, Yaghi also kept in touch with Defendant, Hassan. The two primarily talked through Facebook, frequently posting vulgar rap songs and poems about their animosity toward the non-Muslim Kuffar. After returning from Jordan, Yaghi introduced Hassan to Boyd and the three men discussed their desire to engage in violent jihad around the world. In fact, when Boyd traveled to Israel and Palestine in 2007, Yaghi and Hassan sought to travel with Boyd and his family. Boyd declined, but helped the men obtain plane tickets to travel to the Middle East to engage in jihad. Hassan and Yaghi also assisted Boyd in creating a bunker beneath Boyd’s home to conceal his large stockpile of weapons. While abroad, Boyd claims that rumors circled regarding his involvement in violent jihad. Boyd learned that Hassan’s father was particularly troubled by the rumors and had a heated discussion with Boyd regarding his son’s whereabouts. After the 2007 trip, Yaghi and Hassan remained close friends, but their contacts with Boyd diminished. In 2009, Yaghi and Hassan were arrested on unrelated charges. While detained, Hassan asked his paramour to contact al-Awlaki to seek advice on his behalf and to remove some of Hassan’s postings on Facebook related to violent jihad.

In March 2008, Boyd met Defendant Sherifi, often discussing shared views of violent jihad and that dying as a martyr was an important goal for a good Muslim. Sherifi, Boyd and others made regular efforts to raise money to support jihadist causes. In June 2008, Sherifi gave Boyd $500 “for the sake of Allah.” Shortly before his arrest, Sherifi received a $15,000 check from a man who attended the same mosque as Sherifi to contribute to the cause. When Sherifi encountered difficultly traveling, Boyd suggested that “if Sherifi could not travel, he should ‘make jihad’ in the United States.” Eventually, Sherifi traveled to Kosovo and developed a relationship with a FBI informant. During Sherifi’s relationship with the informant, Sherifi provided literature and videos, including one depicting a beheading. Sherifi explained that beheading was what happened to those who leave the Islamic religion. Sherifi returned to North Carolina to save money to buy a family farm is Kosovo to help other jihadists on the battlefield. As a method of saving money, Sherifi worked delivering medical supplies to Fort Bragg Army Post in North Carolina. Sherifi boasted about the ease of accessing the military base as a military truck driver. Boyd and Sherifi then identified Quantico Marine Corps Base in Virginia as a target. They discussed the possibility of kidnapping a Marine officer for ransom to seek the release of an Islamic scholar imprisoned in the United States. As part of the kidnapping, Boyd suggested cutting off the officer’s finger and sending it to the other officials so that they would “know it was him.” In 2009, Sherifi participated in two weapons training sessions in Caswell County, North Carolina on a rural property actually owned by the United States government and under heavy surveillance. Shortly after the second training session, the Defendants were arrested.

After a lengthy trial, the Defendants were convicted and sentenced. Defendants appealed the conviction and sentence to the Fourth Circuit on several grounds. First, Defendants argued that their conviction could not stand because the district court committed reversible error in instructing the jury on the First Amendment. Defendants claimed that they were prosecuted “purely for their offensive discourse” and that they “never agreed to take action in connection with their beliefs.” The Fourth Circuit held that the district court did not err in dismissing the Defendants’ First Amendment defense. In this case, the Defendants’ actions went far beyond speech, committing many overt acts in furtherance of the conspiracy. The trial court adequately charged the jury regarding the Defendants’ rights to speak freely and exercise their religion under the First Amendment, but the Defendants’ were not prosecuted for their speech. Rather, the Defendants were convicted for acts far beyond their speech, including traveling abroad to engage in violent jihad, recruiting others, and engaging in extensive weapons training.

The Defendants also raised a number of evidentiary issues on appeal. The Fourth Circuit dismissed the Defendants’ claims on all counts. First, the Fourth Circuit affirmed the district court’s allowance of the testimony of the government’s expert to explain various aspects of Islamic extremism. The court explained that the expert’s extensive knowledge of Islamic phrases and of the structure, recruiting methods, and leadership of Islamic extremist groups likely helped the jury understand many of the unfamiliar facts of the case.

Second, Defendants Hassan and Yaghi objected to the presentation of exhibits consisting of Facebook pages and videos hosted on YouTube, arguing that it was not properly authenticated and violated the rule against hearsay. The Fourth Circuit disagreed, ruling that the information contained on the web was self-authenticating and admissible as business records. All information was accompanied by a certification of records custodians verifying that the sites were maintained as business records in the course of regularly conducted business activity. Hassan additionally argued that allowing the presentation of certain training videos to the jury while refusing to admit his related comments under his video violated the rule of the completeness. The video at issue contained numerous quotations suggesting Hassan’s terrorist sympathies. However, Hassan’s lawyer sought to introduce a comment that Hassan posted under the video stating that he “does not support terrorists.” The Fourth Circuit held that there was no violation of the rule of completeness by refusing to also introduce the subsequent exculpatory statements and that the additional comments violated the rule against hearsay. Furthermore, the court affirmed the use of a cell phone video of Hassan using a firearm at an outdoor location near the Islamic center in Raleigh in 2009, determining that it was relevant to show Hassan’s weapons training and his continued involvement in the terrorist conspiracy. In fact, on cross-examination, a government witness readily admitted that the mere possession or firing of the rifle was not illegal.

Third, the Defendants’ argued that the district court improperly allowed Boyd to present lay opinion testimony regarding his understanding of Defendants’ statements during face-to-face and email conversations. The Fourth Circuit found that Boyd’s opinion testimony was permissible under Federal Rule of Evidence 701. Boyd’s testimony was based purely on his perception after consistent contact with the witnesses. Furthermore, the testimony was helpful to assist the jury in understanding many words associated with violent jihad of which the jury is likely unfamiliar.

Next, the Defendant Yaghi asserted that district court erred by allowing the government to present evidence obtained pursuant to Foreign Intelligence Surveillance Act (FISA) because there was no probable cause for the government to believe that Yaghi was an agent of a foreign power, as required by FISA. The Fourth Circuit disagreed, citing the government’s strict adherence with all formal requirements under FISA. Moreover, after an in camera review of the documents, the court determined that the government had sufficient probable cause to suspect that Yaghi was an agent of a foreign power.

As their final evidentiary challenge, the Defendants argued that there was insufficient evidence to support their convictions. The court conceded that while a majority of the evidence was circumstantial, the evidence against the Defendants was substantial enough to support the conviction. To support the conviction of Defendant Yaghi, the court explained that the substantial evidence supporting the jury’s conviction included, inter alia, seeking out Boyd at as Islamic center to exchange views on radical Islam, traveling to the Middle East with the expressed intention to commit violent jihad, recruiting other to the terrorism conspiracy, and violent Facebook messages promoting radical jihadist beliefs. Additionally, the jury had sufficient evidence to conclude that Sherifi was involved in the terrorism conspiracy alleged, including, inter alia, the sharing of a violent Islamist ideology with Boyd, openly advocating for the overthrow of United States law in favor of Shari’ah Law, traveling to Kosovo for the purpose of “being closer to the battlefield,” participation in firearms training with like-minded individuals, assisting Boyd in building a bunker to store Boyd’s weapons arsenal, his attempt to raise funds to purchase a farm to aid Islamic terrorists in the “battlefields” of Kosovo, and his efforts relating to targeting an American Military base for violent jihad. Finally, the court found that there was sufficient evidence for the jury to conclude that Hassan entered into the terrorism conspiracy, such as, regular contact with Boyd, seeking assistance to travel abroad to the Middle East to participate in jihadist efforts, discussion with Boyd about “killing and maiming,” participation in weapons training, the posting of the physical training video showing his determination to train for violent jihad, his contacts with Anwar al-Awlaki, and his online posting showing support for car bombings and other forms of violent jihad.

Finally, the Fourth Circuit affirmed the sentences imposed by the district court. The court held that the district court properly imposed the “federal crime of terrorism” sentencing enhancement under the federal sentencing guidelines. In order to impose the terrorism enhancement, the court must conclude that the defendant committed a “federal crime of terrorism,” defined as, inter alia, actions “calculated to influence or affect he conduct of government by intimidation or coercion, or to retaliate against government conduct.” The district court found that the Defendants “became part of a loose group of conspirators whose goal was to kill non-Muslims.”  Based on the considerable evidence presented, the court affirmed the conviction, the sentencing, and the terrorism enhancement.

Full Opinion

– Wesley B. Lambert

WALL V. WADE, NO. 13-6355

Decided: February 3, 2014

The Fourth Circuit held that (1) the Red Onion State Prison’s (ROSP) decision to abandon its policy of requiring prisoners to present physical indicia of Islamic faith to qualify for special Ramadan meals did not moot Gary Wall’s (Wall) claims for equitable relief under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., and (2) that the defendant officials were not entitled to qualified immunity with regard to Wall’s claim for damages under the First Amendment.  The Fourth Circuit therefore vacated the decision of the United States District Court for the Western District of Virginia and remanded the case to the district court.

Wall, a member of the Islamic faith, is a state prisoner at ROSP.  In 2008 and 2009, he participated in Ramadan while in custody: prison officials provided him with special meals prior to sunrise and after sunset.  Before 2010, ROSP’s Muslim inmates simply had to sign up to partake in Ramadan observance.  However, after ROSP officials determined that many participating inmates were not actually Muslims, ROSP created a new policy for 2010 (the 2010 Ramadan policy): this year, inmates “had to provide some physical indicia of Islamic faith, such as a Quran, Kufi, prayer rug, or written religious material obtained from the prison Chaplain’s office” to participate in Ramadan.  When Wall was asked by three of the defendant officials to provide such evidence of the sincerity of his beliefs, he could not do so: Wall told the officials that his possessions had been lost when he was transferred to ROSP, and showed one of the officials a judgment against the state indicating that the Virginia Department of Corrections (VDOC) had lost his belongings.  Wall also told the officials that he had participated in Ramadan in the two previous years and produced documentary evidence that he was receiving “common fare” meals,” in accordance with his religious beliefs.  However, the officials removed Wall from the list of prisoners participating in Ramadan.  Wall filed an informal complaint explaining his situation, but ROSP’s food services manager simply reiterated the new policy.  Wall subsequently filed a formal grievance; however, this grievance was also denied.  Wall was ultimately forbidden from observing Ramadan in 2010.

Wall filed a lawsuit under the RLUIPA and 42 U.S.C. § 1983, alleging, inter alia, violations of RLUIPA and the First Amendment and seeking equitable and monetary relief.  Wall was subsequently transferred to another facility.  After his transfer, the district court granted the defendants’ summary judgment motion, holding that Wall’s claims for equitable relief were mooted after the transfer and that the defendants were entitled to qualified immunity with regard to Wall’s damages claim.  Wall was transferred back to ROSP after the district court issued its decision; according to the defendants, ROSP had since abandoned the 2010 Ramadan policy.

On appeal, the Fourth Circuit found that, under Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, the defendants could not meet their burden of showing that it is “absolutely clear” that the VDOC would not reinstate the 2010 Ramadan policy.  With regard to qualified immunity, the Fourth Circuit noted the defendants’ concession that the 2010 Ramadan policy resulted in a substantial burden on Wall’s religious freedom; in addition, the Fourth Circuit found that the 2010 Ramadan policy was not “reasonably adapted to achieving a legitimate penological objective,” Lovelace v. Lee, 472 F.3d 174, as it did not satisfy the four factors from Turner v. Safley, 482 U.S. 78 (1987).  The Fourth Circuit also found that Wall’s right to observe Ramadan was clearly established under Lovelace, and that reasonable officials in the defendants’ position would not have “felt it permissible to apply the policy in so strict a fashion.”

Full Opinion

– Stephen Sutherland

UNITED STATES V. BISHOP, NO. 13-4356

Decided:  January 28, 2014

The Fourth Circuit Court of Appeals affirmed the defendant’s conviction for attempting to export small-arms ammunition to Jordan without a license. The Fourth Circuit held that there was sufficient evidence to support the district court’s conclusion that the defendant willfully violated the Arms Export Control Act (“ACEA), which regulates the export of “defense articles” such as ammunition, and subjects to criminal liability anyone who “willfully” violates its requirements.

In 2011, Brian Keith Bishop (“Bishop”) worked as a financial-management Foreign Service Officer (“FSO”) at the U.S. embassy in Amman, Jordan. In the summer of 2011, Bishop sought to ship certain personal possessions from his parents’ home in Alabama to Jordan via a government contract carrier, Paxton Van Lines (“Paxton”). The shipment included nearly 10,000 rounds of small-arms ammunition: 9mm, 7.62X39mm (for use in AK-47 assault rifles), .45-caliber rounds, and 12-gauge shotgun shells. The inventory of shipped items signed by Bishop, however, did not reference the 366 pounds of ammunition included in his household effects, instead listing them as weights. Bishop also signed a statement certifying that his belongings did not include “any unauthorized explosives, destructive devices or hazardous materials.” Paxton employees discovered the ammunition during the repacking process, and removed it from the boxes labeled “weights.” One of the boxes did in fact contain a single small weight. In September 2012, a federal grand jury returned a two-count indictment against Bishop relating to his attempted transportation of the ammunition.

On appeal, Bishop raised two challenges to his conviction: (1) that he did not willfully violate the ACEA because he did not know that it applied to the ammunition, and (2) that there was insufficient evidence that he even knew that exporting the ammunition was generally illegal rather than merely a violation of administrative policy.

Regarding (1), the Fourth Circuit looked to the Supreme Court case Bryan v. United States to determine whether a conviction under the AECA requires specific intent. The Bryan Court interpreted the Firearm Owners’ Protection Act (FOPA), which established a willfulness requirement for certain violations of prohibitions against dealing in firearms without a license. Bryan held that, to establish a willful violation of a statute, the Government only has to prove that the defendant acted with knowledge that his conduct was unlawful, and does not have to prove that he knew of the federal licensing requirement. The Fourth Circuit also noted that, as with FOPA, the ACEA’s language and structure make clear that Congress struck a balance between punishing those who intentionally violate the law and ensnaring individuals who make honest mistakes. But, the AECA does not include any highly technical requirements as might inadvertently criminalize good-faith attempts at reliance. The export of 9mm and AK-47 ammunition to Jordan would quickly strike someone of ordinary intelligence as potentially unlawful. Further, ACEA’s legislative history makes clear that Congress was especially concerned that arms exports not become an “automatic, unregulated process.” Therefore, the Fourth Circuit concluded that reading the willfulness requirement as narrowing as Bishop proposes would be a step toward such an unregulated system and undermine congressional intent. The Fourth Circuit further concluded that he did not need to know that 9mm and 7.6X39mm ammunition were, in fact, on the United States Munitions List (USML) and, therefore, subject to ACEA. If Bishop believed that the “ammunition could not be shipped,” and “he knew what he was doing was unlawful,” he would necessarily have believed that exporting each type of ammunition – 9mm and 7.62X39mm included— was illegal as well.

Then, the Fourth Circuit addressed (2), whether there was sufficient evidence to conclude that Bishop knew his actions were illegal rather than merely violations of State Department policy. First, Bishop was thoroughly trained in the rules and regulations surrounding the State Department’s transportation policies. He was required to attend training that warned against transporting ammunition and was provided with numerous documents that not only informed him that transporting ammunition was prohibited but also referenced the ACEA and explained that violations could be punished by imprisonment. Bishop also received an email from Paxton reiterating that he could not transport ammunition, and was told explicitly by a DSS agent prior to his trip to Alabama that he could not keep firearms in Jordan. In addition, Bishop’s own witness characterized him as skilled at following complex legal rules and performing sophisticated independent legal research. Moreover, Bishop engaged in numerous acts of deception. He told Paxton packers that the boxes generally contained weights and failed to include ammunition on inventory lists that he signed. When the ammunition was discovered, Bishop’s first instinct was to ask if the State Department knew how much ammunition he had tried to ship, and he changed his story about why he attempted to ship the ammunition.

Full Opinion

– Sarah Bishop

United States v. Bridges, No. 13-4067

Decided: January 27, 2014

The Fourth Circuit Court of Appeals held that the district court correctly found defendant’s plea of nolo contendere with adjudication constituted a conviction for the purposes of the Sex Offender Registration Act (“SORNA”) because it resulted in a penal consequence. The Fourth Circuit affirmed the district court’s denial of defendant’s motion to dismiss.

On February 17, 1999, Defendant William David Bridges (“Defendant”) entered a plea of nolo contendere in Florida State court to a charge of Attempted Sexual Battery upon a Child under 15 Years of Age. The court entered judgment, ordering that adjudication of guilt be withheld, but directing Defendant to pay court costs and serve two years of probation. As a result of this judgment, Defendant was required to register as a sex offender under Florida law. In 2010, Defendant moved to Virginia, where he was registered as a sex offender. However, in 2011, Virginia authorities discovered Defendant no longer lived at his reported address and that he had not updated his registration.

On appeal, the issue was whether Defendant’s nolo contendere plea to a Florida attempted sexual battery charge, in which adjudication was withheld, qualified as a conviction for purposes of the federal registration requirements.

Congress enacted SORNA in order to protect the public from sex offenders and offenders against children. In order to address the significant number of “missing” sex offenders, SORNA established a comprehensive national system for the registration of sex offenders. SORNA thus requires a sex offender, defined as “an individual who was convicted of a sex offense,” to register in each jurisdiction where he resides. Congress left the statutory term “convicted” undefined and expressly granted authority to the Attorney General to issue guidelines and regulations to interpret and implement SORNA. The Attorney General promulgated The National Guidelines for Sex Offender Registration and Notification (“SMART Guidelines”), which have the force and effect of law. Under these Guidelines, an adult sex offender is “convicted” for SORNA purposes if the sex offender remains subject to penal consequences based on the conviction. The federal registration requirement cannot be avoided simply because a jurisdiction has a procedure under which the convictions of sex offenders in certain categories are referred to as something other than “convictions.” Rather, so long as the sex offender is nevertheless required to serve what amounts to a criminal sentence for the offense, he is “convicted” and falls within the ambit of SORNA’s registration requirements.

Here, the Fourth Circuit held that Defendant was sentenced to a two-year term of probation pursuant to his nolo contendere plea to the attempted sexual battery charge, and he served three days in jail. Defendant conceded that probation is a penal consequence.

In addition, the Court held that the ambiguity in SORNA’s use of the term “convicted” did not rise to the level of grievousness that would warrant application of the rule of lenity.

Full Opinion

– Sarah Bishop

Martinez v. Holder, No. 12-2424

Decided: January 27, 2014

The Fourth Circuit partially granted Julio Ernesto Martinez’s (“Martinez”) Petition for Review, finding that a group consisting of former MS-13 gang members constitutes a “particular social group” within the meaning of 8 U.S.C. § 1231(b)(3).

Martinez was born in San Miguel, El Salvador, in 1980. In 2000, he unlawfully entered the United States. When Martinez was stopped for a traffic offense in May 2011, the Department of Homeland Security initiated removal proceedings against Martinez. Martinez conceded that he was subject to removal, but sought relief on the ground that his life would be endangered should he return to El Salvador. At the hearing before the Immigration Judge (“IJ”), Martinez testified that his stepfather died when he was 12 and that soon after he befriended a group of older boys who had also lost family members. He later learned that some of the boys who had recruited him into this group were also associated with MS-13. After several members of MS-13 were deported from the United States and arrived in Martinez’s neighborhood, Martinez’s group was then “incorporated” into the larger MS-13 gang structure. This was, to some extent, involuntary. Upon being told that he had no option, Martinez, who was now 15, agreed to undergo MS-13’s initiation rite of a beating that lasts 13 seconds. Thereafter, the deportees killed the original leaders of Martinez’s group of friends and became the new gang leaders. They ordered him to get tattoos signifying his allegiance to MS-13. He did. They also ordered him to extort money from members of the community. He refused. Because of this, he was beaten on a weekly basis. Although he admitted to participating in one beating of another gang member, Martinez testified that thereafter he refused to join in those disciplinary beatings, which consequently subjected him to further beatings.

MS-13 held weekly meetings for its members. Martinez attended most of those meetings. When he did not attend, he was beaten. At the meetings, members were informed as to who had the “green light,” which indicated that the member was to be executed. A principal reason for receiving the “green light” was attempting to leave MS-13. Indeed, two of Martinez’s friends who attempted to leave the gang were killed. By the time Martinez turned 16, he became tired of the beatings and wished to leave MS-13. When he made this known, gang members beat him and stabbed him, leaving him for dead. Martinez survived, however, and, after leaving the hospital, went to live with a cousin about an hour south of San Miguel. Two months later, MS-13 members found him and shot at him from a car. Martinez was hospitalized again for several weeks. After recovering, Martinez went into hiding again. However, MS-13 members found him once more. This time, Martinez was able to escape without injury. Soon after, he fled to the United States and entered illegally. He believes that if he were to return to El Salvador, MS-13 members would kill him. Even while in the United States, he claims that he has refrained from going places where he might meet an MS-13 member, such as Spanish nightclubs.

Based on his fear of bodily harm at the hands of MS-13, Martinez sought several forms of relief from removal. He argued that under 8 U.S.C. § 1231(b)(3), he was eligible for withholding of removal because his life was threatened on account of his membership in the particular social group of former gang members from El Salvador. He also argued that he qualified for protection under the Convention Against Torture (“CAT”) because the Salvadoran government would acquiesce in his torture should he be removed. Finally, he applied for temporary protected status and, as an alternative, he requested voluntary departure. Following a hearing, the IJ found Martinez credible but nonetheless denied him all relief except his application for voluntary departure. The Board of Immigration Appeals (“BIA”) also rejected Martinez’s request for relief. This appeal followed.

On appeal, the Fourth Circuit first addressed Martinez’s challenge to the BIA’s determination that, for purposes of Section 1231(b)(3), “former members of a gang in El Salvador” are not a “particular social group” as that term is used in the statute, because members of the group do not have “a common, immutable characteristic where that characteristic results from voluntary association with a criminal gang.” Without applying Chevron deference, the court held that the BIA erred as a matter of law in its interpretation of the phrase “particular social group” by holding that former gang membership is not an immutable characteristic of a particular social group for purposes of the statute. In so holding, the Court distinguished between current and former gang members, finding that former MS-13 members shared an immutable characteristic. Next, the Court rejected Martinez’s contention that the BIA erred in rejecting his claim for protection under CAT, finding that the IJ and the BIA reviewed the relevant evidence before them in concluding that Martinez failed to make the necessary showing to warrant CAT protection. Thus, Martinez’s Petition for Review was granted in part, denied in part, and remanded for further proceedings.

Full Opinion

-W. Ryan Nichols

United States v. Zayyad, No. 13-4252

Decided: January 24, 2014

The Fourth Circuit held that the United States District Court for the Western District of North Carolina did not abuse its discretion by prohibiting Awni Shauaib Zayyad (Zayyad) from cross-examining government witnesses regarding the existence of a gray market for certain prescription pills and that—when assessed in the light most favorable to the Government—the evidence sufficiently established that Zayyad knew he was selling counterfeit prescription drugs.  The Fourth Circuit therefore affirmed the judgment of the district court.

Essam Elasmar (Elasmar) sold counterfeit erectile-dysfunction drugs that looked like Cialis and Viagra in Charlotte, North Carolina.  After Elasmar sold drugs to an undercover Department of Homeland Security (DHS) agent and a fruitful search revealed hundreds of pills, Elasmar “agreed to cooperate with investigators.”  Elasmar gave his supplier’s telephone number to DHS officials, who traced it to Zayyad.  Under the direction of government authorities, Elasmar then ordered drugs from Zayyad twice.  Police detained Zayyad when he delivered the second shipment of pills, finding over 800 unpackaged pills in the sunglasses holder and glove box of Zayyad’s van.  Police also visited Zayyad’s home on the day of the traffic stop; a search of the home revealed a yellowish pill on a toilet with an “industrial strength flushing system.”  Though some of the pills seized by government officials looked like genuine Viagra and Cialis, chemical analyses revealed that the pills had “incorrect compositions and active-ingredient levels”; at trial, various specialists testified that all of the pills they sampled were counterfeit.

A federal grand jury indicted Zayyad on “one count of conspiracy to traffic in and dispense counterfeit drug products, three counts of trafficking in counterfeit goods, and three counts of selling and dispensing counterfeit prescription drugs.”  At trial, the Government relied mainly on the nature of the drug transactions to prove Zayyad’s knowledge of the counterfeit nature of the pills.  Through cross-examination, Zayyad tried to suggest that he thought the pills came from the “gray market”—which involves goods that are “imported outside the distribution channels that have been contractually negotiated by the intellectual property owner,” Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351.  The evidence also showed that Zayyad said the pills were real when speaking to Elasmar; furthermore, there was no evidence indicating that Zayyad ever said the pills were counterfeit.

After the jury deadlocked during deliberations, the district court declared a mistrial.  The grand jury then issued a superseding indictment that narrowed the scope of the conspiracy count and removed two of the other counts.  Prior to the second trial, the Government made a motion in limine to prevent Zayyad from raising gray-market evidence through cross-examination; the Government argued that this evidence would only be relevant if, for instance, Zayyad was to testify during his case-in-chief regarding his state of mind—specifically, that he believed the pills he sold were genuine pills from a specific part of the gray market or “diversion market.”  The district court granted the Government’s motion, finding that gray-market evidence was not relevant under Federal Rule of Evidence 401.  The district court also excluded the evidence under Rule 403, finding that the probative value of the evidence would be overwhelmed by “concerns about confusion of the issues, misleading the jury, and considerations of waste of times.”  After the closure of the evidence in the second trial, Zayyad moved for a judgment of acquittal.  The district court denied his motion, and the jury convicted him on all counts.  Zayyad appealed, arguing that the district court committed error by prohibiting the gray-market evidence and that the Government did not provide sufficient evidence to prove the knowledge element of the offenses charged.

With regard to the gray-market issue, the Fourth Circuit first noted that the district court only limited Zayyad’s right to cross-examine witnesses—and that Zayyad did not make a proffer of gray-market evidence or try to introduce gray-market evidence during his case-in-chief.  The Fourth Circuit then found that Zayyad likely did not preserve this argument below—but that the result would be the same under either the plain error standard or the abuse of discretion standard.  The Fourth Circuit concluded that the proposed subject of cross-examination was irrelevant: Zayyad never suggested that he believed he was peddling gray-market goods, and he also did not even establish his knowledge of the gray market.  The Fourth Circuit also rejected the implication of an infringement upon Zayyad’s constitutional right not to testify, finding that “Zayyad cannot use the privilege against self-incrimination as a means to free himself from the basic rules of relevancy.”  In addition, the Fourth Circuit found that, even if the gray-market evidence was relevant, the district court did not commit reversible error “by directing the evidence to Zayyad’s case-in-chief”; the Fourth Circuit noted that Zayyad had the chance to present gray market evidence during his own case, and that Zayyad had the opportunity to cross-examine Government witnesses on other issues.  With regard to the district court’s alternative ruling on Rule 403 grounds, the Fourth Circuit noted that gray-market evidence “threatened to lead the jury into pure speculation based on no foundational evidence as to Zayyad’s state of mind.”  Lastly, with regard to Zayyad’s challenge to the sufficiency of the evidence, the Fourth Circuit found that the jury could reasonably infer that the drugs were counterfeit based on the circumstantial evidence provided by the Government.

Full Opinion

 -Stephen Sutherland

United States v. Williams, No. 12-4374

Decided: January 23, 2014

The Fourth Circuit held that the United States District Court for the District of Maryland properly denied Leconie Williams, IV’s (Williams) motion to suppress evidence and did not abuse its discretion by excluding evidence of prior police misconduct allegations against Williams’s arresting officers.  The Fourth Circuit therefore affirmed the decision of the district court.

On June 12, 2009, at about 1:00 AM, police officer Joseph McCann (McCann) saw a vehicle sitting still in the “middle of the road” while driving through a residential area.  He observed the vehicle in this posture for thirty seconds to a minute.  Williams—the driver of the vehicle—gestured for McCann to drive by him; however, McCann stayed behind Williams.  When Williams started to pull away, McCann turned his lights on, and Williams “pulled over to the side of the road.”  Another police officer, Edward Finn (Finn), arrived at the scene.  While McCann and Finn approached Williams’s vehicle, Finn saw Williams take an object out of his pants and drop it on the floorboard, making a “thud.”  McCann and Finn removed the occupants of the vehicle and searched it, discovering a gun on the floorboard near the driver’s seat.  Finn cited Williams for violating a section of the Maryland Code that prohibits leaving a vehicle sitting in such a way that it obstructs traffic.  Md. Code Ann., Transp. § 21-1001(b).

The Government subsequently indicted Williams for, inter alia, being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).  Williams moved to suppress the gun before trial, asserting that McCann did not have the requisite probable cause to make the traffic stop.  The district court denied Williams’s motion, concluding that McCann had reasonable suspicion that Williams violated another state statutory provision—specifically, § 21-1001(a) of the Transportation Article.  Additionally, the district court granted the Government’s motion to exclude evidence of prior police misconduct allegations against McCann and Finn under Federal Rule of Evidence 404(b).  At trial, the jury could not reach a verdict on the felon in possession of a firearm charge, and the district court granted a mistrial on that count.  At the next trial—upon Williams’s motion—the district court reaffirmed its decisions with regard to the suppression issue and the exclusion of the evidence of prior police misconduct allegations.  The jury found Williams guilty.  Williams appealed.

On appeal, Williams asserted that the district court committed error by denying his motion to suppress the gun, as McCann did not have the requisite probable cause or reasonable suspicion to stop Williams’s vehicle; he argued that McCann incorrectly identified his pre-stop conduct as illegal—as § 21-1001(b) of the Transportation Article does not apply to roads in residential areas.  Williams also argued that the district court erred by excluding the evidence of prior police misconduct allegations.

Quoting the Sixth Circuit’s decision in United States v. Hughes, 606 F.3d 311, the Fourth Circuit asserted that probable cause or reasonable suspicion of traffic law violations is not undermined by “a police officer’s inability to identify the correct code section at the time of a stop.”  The Fourth Circuit found that, while § 21-1001(b) could not serve as the basis for stopping Williams’s vehicle, Williams’s conduct was plainly illegal under a different provision in the Transportation Article—specifically, § 21-1004(a).  The Fourth Circuit also found that “the conduct relied upon by McCann” in making the stop “supported the reasonable suspicion to believe that [Williams] had violated Section 21-1004(a).”  Additionally, the Fourth Circuit found that Williams did not demonstrate clear error on the part of the district court with regard to the factual basis for a violation under § 21-1004(a).  With regard to the district court’s exclusion of the prior police misconduct allegations, the Fourth Circuit noted that, under the four-factor test enumerated in United States v. Queen, 132 F.3d 991, proffered Rule 404(b) evidence must also satisfy Rule 403.  The Fourth Circuit then found that the district court did not act in an “arbitrary” or “irrational” manner by excluding the evidence of prior police misconduct, as this evidence had minimal probative value, could have created admissibility problems, and probably would have been time-consuming and confusing to the jury.

Full Opinion

– Stephen Sutherland

United States v. Dehlinger, No. 12-7121

Decided: January 23, 2014

The Fourth Circuit Court of Appeals affirmed the judgment of the district court, denying the defendant habeas relief. The Fourth Circuit held that the trial counsel’s failure to call three witnesses, who were involved in the same fraudulent tax scheme as the defendant, was an objectively reasonable strategic decision.

The defendant, Dr. Erik Dehlinger (“Dehlinger”), was convicted of three counts of filing false income tax returns. Dehlinger was involved with Anderson’s Ark and Associates (“AAA”), which marketed programs enabling users to avoid current income tax liability and “recapture” taxes paid in the previous two years. Dehlinger avoided $363,207 in tax liability and obtained annual refunds. Dehlinger retained Scott Engelhard (“Engelhard”) based largely on Engelhard’s relative success as court-appointed counsel for AAA planner Tara LaGrand (“LaGrand”) in her 2004 trial. Before undertaking representation of Dehlinger, Engelhard obtained a conflict waiver from LaGrand and, therefore, no longer represented LaGrand. However, when LaGrand was later subpoenaed to testify in the prosecution of other AAA clients, Engelhard was re-appointed to serve as LaGrand’s counsel due to his familiarity with the AAA prosecutions. Engelhand filed a motion to quash the subpoena of LaGrand. Dehlinger fired Engelhard when he learned that Engelhard had filed this motion on behalf of LaGrand.

On appeal, Dehlinger contended that, in preparation for and during his trial, Engelhard labored under an active conflict of interest because of Engelhard’s history with LaGrand, Kuzel, and Redd.

In order to establish constitutionally deficient performance on the basis of an alleged conflict of interest, a defendant, like Dehlinger, who has raised no objection at trial, must establish that (1) an actual conflict of interest (2) adversely affected his lawyer’s performance. In order to establish that the conflict of interest adversely affected his lawyer’s performance, the defendant must satisfy the three-prong test set forth in Mickens v. Taylor: (i) identify a plausible alternative defense strategy or tactic, (ii) show the alternative strategy or tactic was objectively reasonable, and (iii) show failure to pursue that strategy or tactic was linked to the actual conflict.

Like the district court, the Fourth Circuit based its denial of Dehlinger’s request for habeas relief on its determination that—even assuming arguendo than an actual conflict of interest existed—Dehlinger failed to satisfy the third prong of Mickens. The court focused on whether Engelhard’s decision to call witnesses other than LaGrand, Kuzel, and Redd was “linked” to the asserted conflict, or instead was the product of a legitimate trial strategy.

Dehlinger, as the defendant, bears the burden of proving the requisite “link” and, therefore, must show Engelhard’s decision was not objectively reasonable. With regard to potential witnesses Kuzel and Redd, Dehlinger barely knew them and they had not prepared any of his tax returns. Thus, it is unlikely that either of them would have been permitted to testify as to Dehlinger’s assertedly innocent state of mind. Even if they were, Dehlinger failed to demonstrate that they could have provided testimony not elicited from the defense witnesses who did testify on his behalf at trial. As to LaGrand, Engelhard believed that the risk of LaGrand’s testimony outweighed the benefits, and informed Dehlinger of this strategy, as seen in several emails. The strategic considerations that led Engelhard to conclude that calling LaGrand would be “too risky” were objectively reasonable. Not only was LaGrand a convicted felon, she had also pled guilty to tax fraud involving the very same fraudulent organization that provided the basis of its charges against Dehlinger. In addition, LaGrand had a history of conflicting statements made under oath about this tax fraud and played no part in Dehlinger’s decision to follow the AAA tax “plan.”

Full Opinion

– Sarah Bishop

United States v. Beckton, No. 13-4037

Decided: January 21, 2014

Defendant Reggie Beckton was convicted of two counts of bank robbery. Beckton appeals on two grounds: (1) that the district court erred in refusing to permit him to testify in narrative form; and (2) that the district court erred in forcing him to choose between his right to testify in his own defense and his right to represent himself.

In the months leading up to his trial, Beckton was unable to find a satisfactory public defender. Beckton alleged that his first public defender presented a conflict of interest. The court allowed Beckton’s second public defender to withdraw after Beckton made crude sexual remarks. Finally, a week before trial, Beckton made an oral motion to disqualify his third public defender on the grounds of a conflict of interest. The court denied his motion, finding that Beckton’s complaints did not constitute a conflict of interest. The court similarly denied Beckton’s motion to postpone his trial. After denying both motions, Beckton stated that he wished to proceed pro se. The court acknowledged Beckton’s right to do so, but strongly cautioned him against it, warning him that he would be held to the same standards as an experienced attorney. Nevertheless, Beckton insisted that he continue on his own behalf. The court allowed him to proceed pro se with the third public defender serving as standby counsel.

Beckton’s trial was riddled with evidentiary errors and ad hominem attacks against the government and the prosecutor. At the close of the prosecution’s case, Beckton stated that he wished to testify in narrative form. The court denied his request, requiring Beckton to both ask and answer the question, to afford the government an opportunity to object. The court denied Beckton’s request to draft questions for the public defender to ask, insisting that Beckton could either choose to continue on his own or avail himself of the public defender, but not both. During testimony, Beckton slipped into narrative form on a couple of occasions, accused the court of “favoring one party,” and asked why he had to “keep quiet about this corruption.” After several such outbursts, the court declared the evidence closed and the jury convicted Beckton on both counts of bank robbery. Beckton appealed.

On appeal, the Fourth Circuit affirmed the conviction. First, the court held that the district court’s requirement that Beckton proceed in question-answer format was not an abuse of discretion. Federal Rule of Evidence 611(a) gives the district court considerable discretion to control the mode of examining witnesses and presenting evidence “to make those procedures effective for determining the truth.” Furthermore, the court may place any restrictions on a defendant’s right to testify are not “arbitrary or disproportionate to the purposes they are designed to serve.” The Fourth Circuit acknowledged that the pro se litigant’s questioning himself was awkward and uncomfortable, but nonetheless held that the requirement was not an abuse of discretion. Moreover, Beckton had the opportunity to avail himself of the assistance of counsel and repeatedly refused. Second, the Fourth Circuit similarly held that the district court did not abuse its discretion in forcing Bectkon to choose between his right to represent himself and the right to testify in narrative form in response to questions from counsel controlling his case. The district court gave Beckton the opportunity to exercise his right to testify and his right to represent himself, but Beckton lost that opportunity when he repeatedly defied the court’s instruction on using the question and answer format proscribed. Therefore, the Fourth Circuit affirmed the conviction.

Full Opinion

– Wesley B. Lambert

United States v. Heyer, No. 12-7472

Decided: January 17, 2014

The Fourth Circuit held that the United States District Court for the Eastern District of North Carolina did not abuse its discretion by allowing only simultaneous sign language interpretation—rather than consecutive interpretation—for respondent–appellant Thomas Heyer (Heyer) during commitment proceedings under the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. §§ 4247–48; that the district court did not commit plain error by failing to allow a hearing on the interpretation issue; that the district court did not commit a mistake of law by labeling the case a civil matter during its discussion of the interpretation issue; that the district court did not commit clear error by finding Heyer to be a “sexually dangerous person” under 18 U.S.C. § 4248; and that the district court did not commit error by rejecting Heyer’s due process and equal protection claims. The Fourth Circuit therefore affirmed the judgment of the district court.

In 1993, Heyer—a deaf man—was convicted of kidnapping after he molested a ten-year-old, tied him up, and placed him in a hole.  Heyer was later convicted of possession of child pornography after he “was found to have approximately 180 images of child pornography in his possession” around 2002.  After serving time in prison, Heyer began sex offender treatment during supervised release; however, his supervised release was revoked in 2007 when he went to a treatment session while under the influence of alcohol.  Heyer also admitted that, inter alia, he looked at “a lot of different websites that were triple-x” while on probation and that the pictures he viewed included both adults and children in sexual situations; that he showed some of the pictures to a young teenage boy and that he engaged in sexual activity with the boy over a period of about one-and-a-half years; that he knew his sexual activities with the boy were wrong, but he continued them because Heyer “liked it and [the boy] was willing”; that he had sexual contact with between eighteen and twenty-five boys after his eighteenth birthday; that his adolescent years were “plagued by fighting and being the victim of sexual aggression”; and that he experienced “some arousal to pre-pubescent boys, around age eight.”

In December 2008, the Government sought to have Heyer civilly committed as a “sexually dangerous person.”  The district court conducted an evidentiary hearing in May 2012.  Two forensic psychologists, Dr. Jeffrey Davis (Dr. Davis) and Dr. Heather Ross (Dr. Ross), testified that Heyer met the criteria for civil commitment; another forensic psychologist testified that Heyer did not meet the criteria, and an expert in “deafness and psychological issues related to deafness” also testified on behalf of Heyer.  Heyer moved the court to provide consecutive interpretation at the hearing; the district court denied the motion, stating “[w]ell, it’s a civil case.  The answer is no.  We are not going to make this into a marathon.”  In July 2012, the district court issued its Findings of Fact and Conclusions of Law, in which it found that the Government had met is evidentiary burden of proving that Heyer was a “sexually dangerous person.”  The district court civilly committed Heyer under 18 U.S.C. § 4248.  Heyer appealed, raising issues with the district court’s denial of his motion for consecutive interpretation, the district court’s conclusion that he is a “sexually dangerous person,” and with regard to equal protection and due process.

The Fourth Circuit noted that, under the Court Interpreters Act (CIA), 28 U.S.C. § 1827(k), there is a presumption of simultaneous interpretation for non-witnesses unless the district court finds that consecutive interpretation “will aid in the efficient administration of justice”—and the district court found that consecutive interpretation would unduly delay and enlarge the hearing.  Furthermore, Heyer’s attorney offered only a speculative reason for using consecutive interpretation, and the district court offered numerous linguistic accommodations to Heyer.  With regard to the district court’s failure to holding a hearing on the interpretation issue under 28 U.S.C. § 1827(k), the Fourth Circuit stated that, inter alia, it was unclear what—if any—additional evidence Heyer would have submitted during the hearing and that there was no evidence that Heyer suffered prejudice from the lack of a hearing on the issue.  The Fourth Circuit also found that the district court’s statement about the civil nature of the case made no indication that the court lacked understanding of the CIA’s application to civil and criminal cases alike.  With regard to the district court’s conclusion that Heyer is a “sexually dangerous person,” the Fourth Circuit noted the high level of deference owed to the district court’s determinations regarding the credibility expert witnesses.  The Fourth Circuit then noted that there was no dispute regarding Heyer’s engagement in past acts of child molestation and found that the district court adequately took Heyer’s deafness and linguistic difficulties into account, the district court properly quoted the American Psychiatric Association’s definition of pedophilia, and that Heyer failed to show that the opinions of Dr. Davis and Dr. Ross were unreasonable.  Lastly, the Fourth Circuit found that Heyer’s equal protection argument (that § 4248 creates an improper classification by subjecting Federal Bureau of Prisons individuals, but not other individuals under federal control, to civil commitment) and his due process argument (that § 4248 is better categorized as a criminal statute, and therefore fails to protect various rights provided to criminal defendants) were foreclosed by the Fourth Circuit’s decision in United States v. Timms, 664 F.3d 436.

Full Opinion

– Stephen Sutherland

United States v. Green, No. 12-4879

Decided: January 17, 2014

The Fourth Circuit affirmed the district court’s denial of Herbert Green’s (“Green”) suppression motions based on the scope and duration of a traffic stop and the reliability of the drug-detection dog.

Trooper Daryl Johnson (“Johnson”) executed a traffic stop of Green’s vehicle because the windows appeared to be excessively tinted and the license plate was partially obscured. To begin the stop, Johnson approached Green’s vehicle and explained his reasons for making the stop. Johnson later testified that Green appeared to be excessively nervous and that the vehicle contained a strong “air-freshener” odor and had a “lived-in look.” After obtaining his license and registration, Johnson had Green accompany him to the patrol car so he could check Green’s information on his computer. While in the patrol car, Johnson reiterated the reasons for the traffic stop, questioned Green about his itinerary, and radioed Trooper Brian Dillon (“Dillon”), who was positioned some distance behind Johnson’s vehicle, to “come on up.” Soon after, Johnson’s computer program responded to his inquiry, notifying him of a protective order against Green, which alerted Johnson to potential officer safety issues. Johnson and Green then had a brief exchange about the protective order and Jonson requested additional information from dispatch. Thereafter, Johnson checked the window tint on Green’s vehicle and found that it was illegal. After informing Green that the tint was illegal, Johnson asked Green if there were any drugs in the vehicle. Johnson later testified that Green became visibly nervous and uncomfortable after being asked about drugs. He then questioned Green about his criminal history and requested a criminal history from dispatch. Green was not entirely truthful regarding his criminal history. Before receiving Green’s history from dispatch, Johnson left the patrol car and requested that Trooper Dillon conduct a free-air sniff using his drug-detection dog, Bono.

Bono alerted to the vehicle’s rear passenger panel. Just after completing the sniff, dispatch informed Johnson that Green’s criminal history raised multiple officer safety issues and included charges for homicide, carrying concealed weapons, robbery, kidnapping, and terroristic threats. Upon another officer’s arrival, the troopers began searching Green’s vehicle. The search revealed a duffle bag containing over one kilogram of cocaine and approximately $7,000 in cash. The entire traffic stop took place between 10:08:35 AM and 10:21:42 AM. Green was indicted for possession with intent to distribute cocaine. Following his indictment, Green moved to suppress the evidence found in the vehicle, contending that the traffic stop was unreasonable in its scope and duration, and that the delay was not justified by reasonable suspicion of criminal activity. The district court denied both motions. This appeal followed.

On appeal, the Fourth Circuit first addressed Green’s contention that the 14-minute period of detention between the initial stop and Bono’s alert was not reasonably related in scope to the circumstances that justified the stop. The Court held that the delay, at most, amounted to a de minimis intrusion on Green’s liberty interest and thus did not constitute a violation of his Fourth Amendment rights. In so holding, the Court noted that at all times before learning of Green’s criminal history, Johnson was focused on pursuing the reason for the initial stop. Next, the Court addressed Green’s challenge that Bono’s alert did not justify probable cause to search his vehicle because Bono’s track record in the field is not sufficiently reliable. Recognizing that, for numerous reasons, a drug-detection dog’s field performance does not accurately reflect the dog’s reliability; the Court held that the totality of the circumstances established Bono’s reliability in detecting drugs.

Full Opinion

-W. Ryan Nichols

United States of America v. Freeman, No. 12-4636

Decided: January 17, 2014

The Fourth Circuit reversed and remanded the district court’s order directing a defendant to pay restitution to victims that he defrauded because the crime for which the defendant was convicted did not cause the victims’ loss.

Defendant, Robert J. Freeman purported to be a minister and through fraudulent charities, caused several parishioners to take out substantial loans purportedly to help the church. In reality Freeman used the loan proceeds to accumulate substantial assets including: a $1.75 million house and more than $340,000 in luxury automobiles. Freeman convinced the parishioners that, although they took out the loan, he and the church would make payments. By October of 2005, Freeman and his wife owed debts in excess of $1.3 million and filed for bankruptcy. At his creditors meeting, Freeman falsely misrepresented his assets and presented fabricated earnings statements to a fictitious business.  The government charged Freeman with numerous crimes relating to his fraudulent activity; however, as a result of a plea agreement, he only pled guilty to one count of obstructing an official proceeding, relating to his misrepresentations at his bankruptcy hearing. Freeman was not convicted nor did he plead guilty to any crime relating to defrauding parishioners. The district court sentenced Freeman to 27 months in prison and ordered him to pay a total restitution of $631,050.52 to his victims. Freeman appealed to challenge the legality of the order of restitution.

On appeal, the Fourth Circuit first explained that a court may only order restitution based on statutory authority. In this case, the court determined that the district court ordered restitution as a condition of supervised release, pursuant to 18 U.S.C. § 3583(d). Under that section, a court may order restitution to repay victims “of the offense.” The Fourth Circuit held that, based on the plain language of the statute, “of the offense” meant that the court may order restitution “only for the loss caused by the specific conduct that is the basis of the offense of the conviction.”  In adopting this position, the Fourth Circuit sided with the overwhelming weight of authority from other circuits. In the present case, the Fourth Circuit held that the government failed to demonstrate the requisite causal connection between Freeman’s misrepresentations to bankruptcy officials and the victims’ significant financial loss. Even if Freeman had been entirely truthful at his bankruptcy proceeding, his victims would have suffered no less in unfortunate financial loss. Therefore, the Fourth Circuit reversed the district court order of restitution and remanded to the district court to determine whether or not to impose a fine.

Full Opinion

– Wesley B. Lambert

United States v. Aparicio–Soria, No. 12-4603

Decided: January 14, 2014

On rehearing en banc, the Fourth Circuit held that the Maryland crime of resisting arrest, Md. Code, Crim. Law § 9-408(b)(1), does not categorically qualify as a “crime of violence” under U.S. Sentencing Guideline § 2L1.2 (the reentry Guideline).  The Fourth Circuit therefore vacated the judgment of the United States District Court for the District of Maryland and remanded Marcel Aparicio–Soria’s (Aparicio–Soria) case for resentencing.

Aparicio–Soria pled guilty to a count of unlawful reentry of a deported alien subsequent to an aggravated felony conviction, under 8 U.S.C. §§ 1326(a) and (b)(2).  At sentencing, the Government argued that Aparicio–Soria’s sentence should be enhanced pursuant to the reentry Guideline, which advises federal district judges to enhance the offense level of a defendant convicted of certain immigration offenses “if that defendant has a prior conviction for ‘a crime of violence,’” U.S.S.G. § 2L1.2(b)(1)(A).  Specifically, the Government argued that Aparicio–Soria’s sentence should be enhanced pursuant to the “force clause” of the reentry Guideline—under which a state offense “that has as an element the use, attempted use, or threatened use of physical force against another” constitutes a crime of violence, U.S.S.G. § 2L1.2 cmt. N.1(B)(iii)—due to Aparicio–Soria’s prior conviction for resisting arrest in Maryland.  The district court found that, under the categorical approach, Aparicio–Soria’s prior conviction did not constitute a crime of violence under the force clause; however, under the modified categorical approach, his prior conviction did constitute a crime of violence.  Aparicio–Soria appealed.

The intervening precedent Descamps v. United States, 133 S. Ct. 2276, established that the district court erred in applying the modified categorical approach in this case.  However, because the Fourth Circuit can “affirm the district court on any ground in the record, including those rejected by the district judge,” United States v. Moore, 7098 F.3d 287, the Government argued for affirmation of the judgment under the categorical approach.

The Fourth Circuit noted that, under the Supreme Court’s analogous reasoning in Johnson v. United States, 130 S. Ct. 1265, the term physical force means “violent force—that is, force capable of causing physical pain or injury to another person.”  On the other hand—per the Maryland Court of Appeals case Nichols v. State, 44 A.3d 396—the force necessary for conviction under Maryland’s resisting arrest statute is the de minimis force constituting offensive touching.  The Fourth Circuit also found the Government’s reliance on Rich v. State, 44 A.3d 1063, unavailing; found the cases United States v. Wardrick, 350 F.3d 446, and United States v. Jenkins, 631 F.3d 680, irrelevant to the case at hand; and rejected the Government’s focus on the “realistic probability” of a resisting arrest conviction based on something other than violent force, as the focus in the categorical analysis is on the “elements, not facts.”

Full Opinion

– Stephen Sutherland

United States v. Shepperson, No. 11-4618

Decided: January 8, 2014

Chinua Shepperson was convicted several crimes, including racketeering, conspiracy, and murder in connection with his involvement in the Latin King gang. The district court sentenced Shepperson to life plus ten years’ imprisonment. Shepperson argues that the district court erred by not affording him the assistance of two attorneys at trial and by not excluding the testimony of a witness based on the government’s failure to furnish him with a list of witnesses three days before commencement of trial. On appeal, the Fourth Circuit affirmed Shepperson’s convictions.

On appeal, Shepperson first argued that the district erred by not affording him the assistance of two attorneys as required by the United States Code where a defendant is on trial for “treason or other capital crime.” Although the Attorney General did not seek a capital sentence in this particular case, the Fourth Circuit previously held that a defendant is entitled to representation by two attorneys in any capital-eligible case whether or not the death penalty is actually sought. Shepperson admitted that he did not request additional counsel; however, he asserted that the court nevertheless was obligated to inform him of his right to two attorneys sua sponte because of Shepperson’s obvious dissatisfaction with his own attorney. The Fourth Circuit disagreed, finding that the district court had no affirmative obligation with respect to the appointment of a second attorney where the defendant did not ask for one. Moreover, while the right to the assistance of a single attorney is a constitutional right guaranteed by the sixth amendment, the right to a second attorney in a capital case is a right created entirely by statute. Thus, the district court had no burden beyond the plain language of the statute, which merely imposed the obligation on the district court to appoint a second attorney upon the defendant’s request.

Secondly, Shepperson contended that the district court erred by not excluding the testimony of a witness for the government because the government did not furnish Shepperson with a list of witnesses three days before the commencement of trial as required in a capital case under the United States Code. The Fourth Circuit found this requirement inapplicable because the Attorney General elected not to pursue the death penalty. Moreover, while the government did not provide a list of witnesses three days before trial, the statute’s purpose of avoiding surprise was nevertheless met because the witness’s name was read aloud during the first day of jury selection, three days before the witness testified. Furthermore, Shepperson made no effort to exclude the witness’s testimony during trial because of the late disclosure. Therefore, the Fourth Circuit affirmed Shepperson’s convictions in district court.

Full Opinion

– Wesley B. Lambert

Snider Int’l Corp. v. Town of Forest Heights, No. 12-2490

Decided: January 7, 2014

The Fourth Circuit affirmed the district court’s decision and held that two Maryland towns’ use of first-class mail to issue electronically-signed speeding citations and use of those citations as evidence at trial did not violate due process.

Snider International Corporation, Mark Cranford, Stan Brown, and Al Goyburu (“Plaintiffs”) received citations from the Town of Forest Heights, Maryland and the Town of Riverdale Park Maryland (“Defendants”). The citations were issued under Maryland’s speed camera program. These speed cameras produce electronically-recorded images of vehicles traveling in excess of the speed limit by at least twelve miles per hour. The automated citations carry a civil penalty no greater than forty dollars. Nonpayment and failure to contest the citation amounts to an admission of civil liability. The appropriate agency mails the citation to the registered owner of the recorded vehicle, and the citation must have the prescribed contents. A citation recipient may elect a trial in lieu of payment. At trial, the agency may introduce the citation as evidence without any corroborating evidence or authentication by the systems operator.

On appeal, the Fourth Circuit addressed whether the automated citations violated both procedural and substantive due process. At bottom, procedural due process requires fair notice of impending state action and an opportunity to be heard. Proper notice is that which is “reasonably calculated to effect actual notice.” The Supreme Court has routinely recognized that the use of mail satisfies the notice element of due process. Here, first-class mail was reasonably calculated to confer actual notice. Defendants used registration information collected by the state’s transportation agency to mail summonses to the addresses registered in connection with the recorded vehicles. Due to successful delivery, Plaintiffs lacked any indication that first-class mail could not reasonably provide actual notice. In addition, sufficiency of notice does not turn upon the distinctions of in personam, in rem, and quasi in rem. Finally, no evidence indicated that the United States Postal Service delivers certified mail at a rate so superior to that of first-class mail that the Fourth Circuit should have declared first-class mail not reasonably calculated to provide actual notice. Therefore, notice via first-class mail comports with due process.

The Fourth Circuit also addressed the validity of electronic signatures on citations and the admissibility of the citations as sworn testimony in trial. Having found notice sufficient, the Fourth Circuit only needed to evaluate the opportunity to be heard. This prong of the procedural due process inquiry has three factors: (1) the private interest involved, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the state interest, including fiscal and administrative burdens imposed by additional process. Here, Plaintiffs received constitutionally sufficient notice of the citation and potential penalty, and they could elect a trial. The notice set forth the basis for the adverse action. The trial permitted Plaintiffs to call witnesses and rebut the state’s evidence with their own. Plaintiffs’ driving privileges were unaffected and the $40 civil penalty was not subject to additional monetary penalties for nonpayment. The state has an interest in efficiently enforcing traffic laws would be greatly burdened were additional procedural safeguards required. Moreover, the mere availability of a trial is fatal to Plaintiffs’ procedural due process claims. Further, having forgone the opportunity to object to the use of electronically-signed citations as evidence, Plaintiffs were not able raise this issue for the first time on appeal in federal court.

Finally, the Fourth Circuit held that there was no substantive due process violation. Only the most egregious official conduct qualifies as constitutionally arbitrary. Plaintiffs failed to identify any element of the disputed procedures that equate to egregious official conduct unjustified by the state interest in traffic enforcement. Further, assessment of the $40 civil penalty was subject to correction through trial, presentation of witnesses, and rebuttal evidence and was, therefore, not arbitrary.

Full Opinion 

– Sarah Bishop

United States v. Savage, No. 13-6326

Decided: December 10, 2013

The Fourth Circuit affirmed the district court’s civil commitment of the defendant, Richard Savage, as a “sexually dangerous person” under the United States Code. Savage appeals his commitment on the grounds of that the district court lacked the jurisdiction to order his commitment.

In 2006, Savage pled guilty and was convicted of distributing heroin in violation of the District of Columbia Code (“D.C. Code”). Savage served his three-year sentence in a facility operated by the Bureau of Prisons (“BOP”) in North Carolina. Prior to his release, the United States Government certified Savage as a “sexually dangerous person” pursuant to 18 U.S.C. § 4248 and ordered Savage civilly committed. Savage moved to dismiss the commitment proceedings on the grounds that the district court lacked jurisdiction because, as a District of Columbia offender, he was merely in physical custody of the BOP and not in legal custody of the BOP as required by § 4248. The district court denied his motion and ordered Savage civilly committed as a sexually dangerous person under § 4248. Savage appealed his commitment.

On appeal, the Fourth Circuit affirmed the district court’s jurisdiction to issue the civil commitment. In order to issue a civil commitment under § 4248, the prisoner must be “in the custody of” the BOP. Savage argued that the BOP lacked custody under § 4248 because, despite his confinement in a prison operated by the BOP, his conviction under District of Columbia law rather than federal law deprived the BOP of the legal custody required by § 4248. Savage argued that his case mirrored the Fourth Circuit’s decision in United States v. Joshua, 607 F.3d 379 (4th Cir. 2010), where the court held that an army prisoner detained under the Uniform Code of Military Justice (“UCMJ”) did not qualify as being “in the custody of” of the BOP because the Army retained legal custody over the offender pursuant to a memorandum of agreement under the Uniform Code of Military Justice (UCMJ), even after the prisoner was confined in a prison operated by the BOP.

The Fourth Circuit disagreed. The court distinguished Savage’s case from Joshua because, unlike the prisoner in Joshua who was a prisoner in the military criminal justice system, Savage was a prisoner of the District of Columbia criminal justice system. Under the military system, the prisoner is merely “confined” in a federal prison that may fall within the BOP while the military retains “custody” over the prisoner. In contrast, under the District of Columbia’s criminal justice system, all prisoners are confined to prisons operated by the BOP. Moreover, all D.C. criminals are subject to “any law or regulation applicable to persons committed for violations of laws of the United States.” Moreover, the D.C. Code requires that the BOP retain responsibility for the care and custody of prisoners convicted of a violation of D.C. law. The Fourth Circuit held that, by placing D.C. criminals in physical custody of the BOP and subjecting them to the laws and regulations of the BOP, Congress intended to place D.C. criminals under both physical and legal custody of the BOP. Therefore, by possessing physical and legal custody, the Fourth Circuit held that the district court did not err in determining that it had the jurisdictional authority to civilly commit Savage as a “sexually dangerous person” under § 4248.

Full Opinion

– Wesley B. Lambert

United States v. Kerr, No. 12-4775

Decided: December 3, 2013

The Fourth Circuit affirmed the district court’s judgment and held that the defendant’s prior North Carolina state convictions, which sentenced the defendant in the mitigated rather than the presumptive range of punishment under North Carolina’s Structured Sentencing Act, did qualify as predicate felonies for sentencing under the Armed Career Criminal Act (“ACCA”) and for a 18 U.S.C. § 922(g)(1) conviction.

Norman Alan Kerr (“Kerr”) was charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The indictment alleged that, for purposes of the ACCA, Kerr had previously been convicted of three violent felonies or serious drug offenses punishable by imprisonment for a term greater than one year. Kerr had three 2008 North Carolina state convictions for felony breaking and entering.

On appeal, the Fourth Circuit reviewed the novel question of whether a district court, in determining whether a defendant has the requisite predicate felonies for sentencing as an armed career criminal, must consider the fact that the defendant received a mitigated sentence of less than one year in prison under North Carolina law for those felonies.

North Carolina law establishes three sentencing ranges based on the appropriate offense class and prior record level. The presumptive sentencing range is the default. The sentencing judge may deviate from the presumptive range if the judge makes written findings of aggravating or mitigating factors, finds that aggravating factors outweigh mitigating factors (or vice versa), and chooses to depart. But North Carolina law also provides that a judge may sentence a defendant in the presumptive range even if the judge finds that mitigating factors outweigh those in aggravation. In Simmons and Edmonds, the Fourth Circuit held that the maximum sentence the particular defendant faced—not the sentence actually imposed—controls whether the defendant has a qualifying predicate felony.

The state court judge who sentenced Kerr found that the relevant mitigating factors outweighed those in aggravation and then chose to exercise her discretion by sentencing Kerr to a mitigated range sentence of 8 to 10 months’ imprisonment for his crimes. But, the judge remained free at all times to sentence Kerr to a presumptive prison term of up to 14 months.

Because the maximum possible prior sentence that Kerr faced for his prior state convictions exceeded one year, and because that potential punishment was far from hypothetical, the Fourth Circuit held that Kerr’s prior state convictions qualified as predicate felonies for sentencing under the ACCA. For the same reasons, the Fourth Circuit held that Kerr had the requisite predicate felony for his § 922(g)(1) conviction.  Because he was not innocent of his § 922(g)(1) conviction, his contention that his prior appellate counsel was ineffective for failing to raise this very issue in his first appeal was held to be moot.

Full Opinion

– Sarah Bishop

United States v. McGee, No. 12-4664

Decided: November 18, 2013

The Fourth Circuit upheld the district court’s denial of Randall Justin McGee’s (“McGee”) motion to suppress evidence and further held that the district court did not commit clear error in its sentencing procedure.

Following an anonymous tip, police first encountered McGee on July 10, 2011. After a search of McGee revealed a bus ticket in the name of someone else, officers handcuffed him and, with his consent, searched his bag. Inside the bag, the police found $5,800 in cash. McGee stated that he had been unemployed for over a year and that he was traveling to see the mother of his child. Because McGee did not have a reasonable explanation for his possession of the cash, the police seized the money. Police then contacted McGee’s mother who stated that McGee did not yet have a child. She also reported that McGee was in West Virginia “earning money.” Police also seized his phone and discovered texts that they believed to be “drug related.” McGee was later released without being arrested.

Approximately two weeks later, Officer Jonathan Halstead (“Halstead”) stopped a vehicle, in which McGee was a passenger, after he observed it had a defective brake light. Because the driver admitted to having a suspended drivers license, Halstead spoke with McGee to determine whether he had a valid drivers license. Halstead later testified that McGee was visibly nervous during the exchange. Soon after, backup arrived and McGee exited the vehicle at the officers’ request and consented to a search. The search produced a bag of pills containing 246 oxycodone pills and 151 oxymorphone pills. McGee was charged with possession with intent to distribute oxycodone.

Before trial, McGee filed a motion to suppress the drugs seized at the traffic stop, claiming the car did not have a defective headlight. At the hearing on the motion, the three police officers present at the scene testified. The district court denied the motion, finding that Halstead’s testimony was “entirely credible.” Several weeks later, McGee filed a renewed motion to suppress based on newly obtained evidence. This time McGee presented evidence that tended to show that all the brake lights in the vehicle were operational in November 2011, and that the rental car company had no record of a repair after the traffic stop in July 2011. Another hearing was held. Again, the court denied McGee’s motion, finding that the evidence was ultimately insufficient to overcome Halstead’s direct and unimpeached testimony. McGee was ultimately convicted.

Before sentencing, the presentence investigation report laid out the “Offense Conduct,” describing the traffic stop as well as the earlier incident at the bus station. Over McGee’s objection, it also converted the $5,800 seized from McGee at the bus station, stating the cash “is viewed as representing proceeds of drug distribution, since McGee was later found with the drugs and “he has had no legitimate employment” since 2006.  With the conversion, McGee’s base offense level under the Guidelines was raised from 22 to 24. Thus, the final Guidelines range was 51 to 63 months rather than 41 to 51 months. The court sentenced McGee to 55 months. This appeal followed.

On appeal, the Fourth Circuit first addressed McGee’s challenge to the district court’s order denying his motion to suppress evidence of the pills obtained at the traffic stop. McGee argued that the district court erred in relying on Halstead’s testimony, which was undermined by conflicting evidence. The court rejected this argument, noting it was in no position to say that the district court committed clear error even if the court would have reached a different determination if presented with the same evidence in the first instance. Next, the court addressed McGee’s challenges to the procedural reasonableness of his sentence in turn. As to McGee’s first procedural challenge: that the district court erred in including the drug equivalent of the cash seized from him weeks before his arrest in its Guidelines range calculation, the court held that no clear error was committed in finding that the two incidents comprised the same course of conduct. The court also rejected McGee’s contention that the district court erred in failing to afford him an individualized assessment in arriving at his sentence. In so doing, the court found that the district court offered a sufficiently individualized rationale for its sentence, without undue emphasis on McGee’s status as a nonresident importer of drugs into the district.

Full Opinion

– W. Ryan Nichols

Cooper v. Sheehan, No. 13-1071

Decided: November 7, 2013

The Fourth Circuit affirmed the district court’s determination that two police officers were not entitled to qualified immunity or public officers’ immunity, respectively, in response to the plaintiff’s federal and state claims for excessive use of force.

On May 7, 2007 two cousins spent the day performing home repairs for a nearby relative. Later that evening, the cousins spent time sitting outside the North Carolina home of the plaintiff, George Cooper, talking, drinking, smoking marijuana laced with cocaine, and consuming a pint of brandy. Around 11:00 p.m., a neighbor called the police, claiming to hear screams coming from Cooper’s property. Two police officers, Carlisle and Sheehan (collectively “Officers”) responded to the call and arrived at around 11:30 that evening. The officers heard screaming coming from the property. Officer Sheehan then approached the door of Cooper’s mobile home and tapped on the window with his flashlight. Neither officer announced his presence or identified himself as a police officer. The Officers then heard obscenities coming from inside the home. Eventually, Cooper emerged from the mobile home’s rear door and called out for anyone on the property to identify himself. When neither officer responded, Cooper reentered his home and retrieved his shotgun. Cooper then took a couple of steps out onto the porch of the mobile home, with the butt of his shotgun in hand and the muzzle pointed toward the ground. Upon seeing the shotgun, the Officers drew their guns and fired on Cooper without warning. Cooper suffered multiple gunshot wounds, but ultimately recovered. In 2010, Cooper filed a lawsuit against the Officers for excessive force under § 1983 and similar state law claims. The Officers moved for summary judgment on the grounds of qualified immunity and public officer’s immunity from the plaintiff’s federal and state claims, respectively. The district court denied the motion. The Officers appealed.

The Fourth Circuit first held that the district court correctly denied the Officers’ qualified immunity claim in response to the plaintiff’s § 1983 claim for the excessive use of force. The Fourth Circuit explained that a police office is not entitled to qualified immunity when: (1) a constitutional violation occurred, and (2) the right violated was clearly established. The court explained that a police officer violates a person’s constitutional rights through the excessive use of force when an officer’s actions are unreasonable “from the perspective of a reasonable officer on the scene.” Furthermore, an officer is only justified to use deadly force when, “based on a reasonable assessment, the officer or another person is threatened with [a] weapon.” First, the Officers argued that they did not violate Cooper’s constitutional rights because they were justified in the use of deadly force because Cooper brandished his shotgun in “plain view.” The Fourth Circuit disagreed, finding that although Cooper had a shotgun, the threat from the gun did not justify the use of deadly force. The court emphasized that the muzzle remained pointed at the ground. In addition, Cooper made no sudden moves or threats that would justify a reasonable officer to feel threatened by Cooper’s actions. Moreover, the Officers never identified themselves, which had they done so, may have led to the reasonable assumption that “a man who greets law enforcement with a firearm is likely to pose a deadly threat.” Secondly, the court found that “the right to be free from deadly force when posing not threat” was clearly established at the time of the incident. Thus, the Fourth Circuit denied the Officer’s qualified immunity defense to Cooper’s § 1983 claim for the excessive use of force.

Similarly, the Fourth Circuit determined that the Officers were not entitled to public officers’ immunity in response to Cooper’s state tort claims. In North Carolina, a public officer is not entitled to immunity when he acts in a manner that a man of reasonable intelligence would know to be contrary to his duty. The Fourth Circuit determined that a North Carolina police officer could only use deadly force when reasonably necessary to defend against “the use or imminent use of deadly physical force.” The court determined that the test for public officers’ immunity was the functional equivalent of the test for qualified immunity in this case. Thus, the Fourth Circuit similarly denied the Officers’ state public officer’s immunity claim.

Full Opinion

– Wesley B. Lambert

United States v. Hemingway, No. 12-4362

Decided: October 31, 2013

The Fourth Circuit Court of Appeals held that the defendant’s 20002 South Carolina conviction for the common law crime of assault and battery of a high and aggravated nature (“ABHAN”) is not categorically a predicate “violent felony” for sentencing purposes under the Armed Career Criminal Act (“the ACCA”). However, the Fourth Circuit further held that the modified categorical approach had no role to play in this matter.

On June 28, 2011, a grand jury returned an indictment charging Leroy Deon Hemingway (“Hemingway”) with illegal possession of a firearm, having previously been convicted of a felony. The probation officer then prepared Hemingway’s presentence report (the “PSR”), recommending that his sentence be enhanced under the ACCA because four of his previous convictions were for ACCA predicate offenses. Hemingway objected to the PSR, asserting that two of the four crimes identified in the PSR – ABHAN and its lesser included offense of assault of a high and aggravated nature (“AHAN”) – were not predicate offenses under ACCA because they do not constitute ACCA violent felonies.

The Fourth Circuit addressed whether ABHAN constitutes a “violent felony” under the ACCA.

The first step of the Fourth Circuit’s review related to whether the district court properly applied the categorical approach or whether the court should have analyzed Hemingway’s ABHAN conviction under the modified categorical approach. Under the categorical approach, courts look only to the elements of a defendant’s prior offense, and not to the particular underlying facts. Under the modified categorical approach, courts look beyond the statutory elements to the charging paper and jury instructions. After Decamps, the modified categorical approach applies only in cases where a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant’s conviction.

In this case, the Fourth Circuit held for the first time that the divisibility analysis should also apply to common law offenses. As a practical matter, state criminal statutes, for the most part, codify existing common law crimes. Furthermore, a common law offense can be a predicate offense under the ACCA and the Guidelines. In addition, the language of the ACCA directs courts to examine “previous convictions,” meaning the fact of the convictions themselves and not to the underlying facts. Nothing in the ACCA suggests that Congress should only consider the fact of conviction for a statutory offense, but may examine the facts underlying a conviction for a common law crime. In addition, designating a common law crime as an ACCA predicate offense presents the identical Sixth Amendment concerns as those arising when the previous conviction was a statutory offense. Finally, the “difficulties and inequities” inherent in the modified categorical approach, which the Court cautioned against in Dechamps, may well be of greater concern in the context of common law crimes, which are often not as clearly defined as their statutory counterparts, and thus may be more susceptible to disparate treatment from the sentencing courts.

The Fourth Circuit then applied the divisibility analysis to determine whether Hemingway’s previous crime was a divisible common law offense and thus subject to the modified categorical approach. The Supreme Court of South Carolina has ruled that the elements of ABHAN are (1) the unlawful act of violent injury to another, accompanied by (2) circumstances of aggravation. Although (2) is a non-exhaustive list, these are simply alternative means of committing an offense, rather than elements listed in the alternative, so as to warrant the modified categorical approach. Therefore, the Fourth Circuit concluded that the district court properly applied the categorical approach.

The second step of the Fourth Circuit’s review related to whether the sentencing court erred in ruling that ABHAN is categorically an ACCA violent felony. Here, ABHAN could only qualify as an ACCA “violent felony” under the residual clause, which includes any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.  The Supreme Court in James v. United States identified the relevant inquiry for assessing whether a previous crime qualifies as an ACCA violent felony under the residual clause. The inquiry is whether the risk posed by the crime is comparable to that posed by its closest analog among the enumerated offenses.

Here, the relevant residual clause inquiry, applying the categorical approach, was whether an ABHAN offense presents the same “serious potential risk of physical injury” as the ACCA’s enumerated offenses— “burglary, arson, or extortion, [or offenses that] involve use of explosives.” Because the first element of an ABHAN offense—a violent injury— can be satisfied even though “no actual bodily harm was done,” this element does not suggest that an ABHAN offense presents the same “serious potential risk of physical injury” as one of the ACCA’s enumerated offenses. The second ABHAN element, the presence of circumstances of aggravation, can be satisfied simply by showing, for example, a disparity in age, and such a showing fails to present a degree of risk similar to that posed by the ACCA’s enumerated offenses. These elements demonstrate that an ABHAN offense, in the generic sense, does not pose the requisite degree of risk to come within the residual clause and, therefore, ABHAN is not categorically a violent felony.

Finally, although Hemingway was reckless and ABHAN requires a mental state of recklessness, proof of recklessness does not satisfy the purposeful, violent, and aggressive test established in Bengay v. United States.

Full Opinion 

– Sarah Bishop

United States v. Webb, No. 12-4856

Decided: December 19, 2013

The Fourth Circuit affirmed the defendant’s thirty-two month sentence following the revocation of his supervised release. Because the district court appropriately focused its discussion on the Chapter Seven policy statements and based the defendant’s revocation sentence on factors listed in § 3583(e), the Fourth Circuit found no error in the district court’s consideration of related factors.

In 2006, defendant Austin Romaine Webb, Jr. (“Webb”) pled guilty to conspiracy to possess with intent to distribute fifty grams or more of cocaine base and a detectable amount of cocaine hydrochloride, and was sentenced to an eighty-month term of imprisonment followed by a five-year term of supervised release. Webb received a sixteen-month reduction to his sentence and began serving his supervised release in August 2010. Less that one year into his term of supervised release, Webb was arrested for possession of marijuana and tested positive for use of marijuana. In September 2011, the district court found Webb had committed a Grade C violation of his supervised release. In September and December 2011, Webb was arrested again and indicted for distribution, possession, and conspiracy to distribute cocaine base. In October 2012, Webb appeared for sentencing and for a hearing on the supervised release violation. As to the supervised release violation, the government pressed the court for sentencing at the high end of Webb’s Guidelines range, on account of his marijuana charge at the beginning of his supervised release, but the court imposed a sentence near the low end of the Guidelines range. The court concluded that Webb’s conduct constituted a Grade A violation, revoked the term of supervision, and sentenced Webb to thirty-two months’ imprisonment. In explaining the rationale for its sentence, the court referenced, among other factors, the seriousness of the offense, the need to promote respect for the law, and the need to provide just punishment for the offense.

Webb appealed the district court’s revocation sentence, claiming that the sentence was plainly unreasonable because the district court mentioned § 3553(a) factors not specifically cross-referenced in Section 3583(e), the statute governing supervised release.

The Fourth Circuit reviewed the district court’s sentence for plain error. In exercising its discretion to impose a sentence of imprisonment upon revocation of a defendant’s supervised release, a district court is guided by the Chapter Seven policy statements in the federal Guidelines manual, as well as the statutory factors applicable to revocation sentences under 18 U.S.C. § 3553(a) and 3583(e). Chapter Seven instructs that, in fashioning a revocation sentence, “the court should sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.” Section 3583(e), the statute governing supervised release, further directs courts to consider factors enumerated in various sections of § 3553. Absent from these enumerated factors is § 3553(a)(2)(A), which requires district courts to consider the need for the imposed sentence “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” However, the Fourth Circuit found that, although § 3583(e) enumerates the factors a district court should consider, it does not expressly prohibit a court from referencing other relevant factors omitted from the statute. Moreover, the factors listed in § 3553(a)(2)(A) are intertwined with the factors courts are expressly authorized to consider under § 3583(e). For example, the “nature and circumstances of the offense,” a mandatory revocation consideration under § 3583(e), necessarily encompasses the seriousness of the violation of supervised release.  Even assuming, arguendo, Webb were able to demonstrate the district court committed plain error, the Fourth Circuit nevertheless concluded that he was unable to show that the court’s error affected his substantial rights by influencing the outcome of the revocation hearing. Webb’s thirty-two month revocation sentence was near the bottom of his Chapter Seven range and was presumed reasonable.

Full Opinion

– Sarah Bishop

United States v. Dargan, No. 13-4171

Decided: December 24, 2013

The Fourth Circuit held that the United States District Court for the District of Maryland did not err in denying Reginald Dargan, Jr.’s (Dargan) motion to suppress evidence; that the district court did not abuse its discretion by admitting testimony involving certain out-of-court statements, per Federal Rule of Evidence 804(b)(3); and that the admission of these statements did not violate Dargan’s Sixth Amendment right to confront opposing witnesses.  The Fourth Circuit therefore affirmed the judgment of the district court.

On March 30, 2011, three men robbed a jewelry store in Columbia, Maryland.  Police subsequently arrested several people in connection with the robbery, including Deontaye Harvey (Harvey) and Aaron Pratt (Pratt).  The police investigation also implicated another person nicknamed “Little Reggie,” who was not yet in custody.  Dargan was arrested two months later.  Police suspected Dargan was Little Reggie.  Investigators later acquired a search warrant for Dargan’s residence.  An attachment to the warrant, Attachment A, catalogued the items subject to seizure.  These items included, among other things, “[i]ndicia of occupancy.”  While searching Dargan’s residence, officers seized a receipt for a $461.10 belt, which they found in a bag on a dresser in Dargan’s bedroom; the receipt indicated that the buyer, who had identified himself as “Regg Raxx,” bought the belt on the day after the robbery and paid for it with cash.  Also, at some point after Dargan’s arrest, Harvey allegedly told a cellmate named Zachary Shanaberger (Shanaberger) that he had robbed a jewelry store with two co-conspirators and that, at the time of the conversation, he and his-coconspirators were imprisoned in the same facility.

A federal grand jury indicted Dargan, Harvey, and Pratt on October 26, 2011.  Dargan moved to suppress the receipt for the belt prior to trial.  Though the district court concluded that the receipt did not fall under Attachment A’s terms, the court found that the plain-view exception to the warrant requirement justified the seizure.  Also, prior to trial, the Government filed a motion to admit testimony regarding Harvey’s out-of-court statements to Shanaberger; specifically, the Government sought to admit Harvey’s comments as statements against interest under Federal Rule of Evidence 804(b)(3).  Dargan objected to this categorization and argued that the introduction of Harvey’s statements would violate his rights under the Confrontation Clause.  The district court granted the Government’s motion.  At trial, the Government introduced the receipt as evidence and called Shanaberger as a witness, who testified as to Harvey’s aforementioned comments to him.  The jury returned a verdict of guilty, and Dargan appealed.  On appeal, Dargan argued that the seizure of the receipt violated the Fourth Amendment, as the receipt did not fall under any of Attachment A’s enumerated items; that Harvey’s statements were inadmissible under Rule 804(b)(3); and that the introduction of Harvey’s statements violated the Confrontation Clause.

With regard to Dargan’s Fourth Amendment arguments, the Fourth Circuit noted that courts should employ a “commonsense and realistic” approach to interpreting warrants.  The court found that “[t]he officers conducting the search could plausibly have thought that the occupant of the premises was also the purchaser identified on the belt receipt”—thus making the receipt one of the “[i]ndicia of occupancy” under Attachment A.  Furthermore, the officers were justified in opening the bag on Dargan’s dresser, as many of the items described in Attachment A could have been in the bag.  With regard to the admission of Harvey’s statements under Rule 804(b)(3), the Fourth Circuit found that Harvey was unavailable as a witness, as he invoked his Fifth Amendment right not to testify; that Harvey’s statements were self-inculpatory, as he made them to a cellmate rather than an investigator, and the statements demonstrated Harvey’s knowledge of “significant details about the crime” and “implicate[d] him in a conspiracy”; and that the factors enumerated in United States v. Kivanc, 714 F.3d 782, indicated that Harvey’s statements were supported by corroborating circumstances.  Lastly, with regard to Dargan’s Confrontation Clause argument, the Fourth Circuit found that Harvey’s statements to Shanaberger were non-testimonial.

Full Opinion

– Stephen Sutherland

United States v. Simmons, No. 12-4469

Decided: December 11, 2013

The Fourth Circuit affirmed Keith Simmons’s (Simmons) convictions for securities fraud and wire fraud, but reversed his conviction for two counts of money laundering because the transactions underlying these latter convictions constituted essential expenses of Simmons’s fraudulent endeavor.  The Fourth Circuit therefore affirmed the decision of the United States District Court for Western District of North Carolina in part, reversed the decision in part, vacated Simmons’s sentence, and remanded the case.

Simmons operated a Ponzi scheme called Black Diamond Capital Solutions (Black Diamond) from April 2007 to December 2009.  He promised investors that, inter alia, he would invest their money in a foreign currency exchange, and that the investors could withdraw their investments at will after an initial ninety-day period.  Because numerous investors received returns from Black Diamond when they withdrew money after the ninety-day period, they sent Simmons even more money.  In reality, however, Simmons simply used deposits from subsequent investors to pay “returns” to earlier ones; furthermore, instead of investing in a foreign currency exchange, he used investments for his own purposes.  Simmons’s Ponzi scheme eventually unraveled.  The FBI raided his offices in December 2009, and Simmons confessed to the fraud.  A jury subsequently convicted Simmons on one count of securities fraud, one count of wire fraud, and two counts of money laundering; both of the money laundering convictions arose from payments Simmons made to Black Diamond investors.  Simmons challenged his convictions for money laundering on appeal, arguing that his payments to the investors did not involve the “proceeds” of fraud under 18 U.S.C. § 1956(a)(1)(A)(i).  He relied on United States v. Santos, 553 U.S. 507, in which a Supreme Court plurality held that the term proceeds only covers the profits of criminal endeavors—thus excluding the essential “crime-related expenses” of the underlying crime from the scope of the money laundering statute.

The Fourth Circuit noted that, though Congress effectively overruled Santos by amending the money laundering statute and defining proceeds to include “gross receipts,” 18 U.S.C. § 1956(c)(9), Congress’s amendment “was not enacted at the time of the conduct giving rise to Simmons’s money-laundering convictions”; thus, the court was bound by the Santos framework rather than Congress’s expanded definition.  Applying Santos, the Fourth Circuit found that Simmons’s payments to Black Diamond investors were essential to the operation of his fraudulent scheme.  The court noted that the victims who received the payments underlying Simmons’s money laundering charges “testified to the critical importance of those payments in fostering the (misplaced) confidence necessary to perpetuate fraud”; that Simmons’s scheme unraveled after he ceased making payments to investors; that the Government treated the payments as essential to the fraud throughout its prosecution; that payments to early investors “are understood to constitute essential features of Ponzi schemes”; that the Ninth Circuit reached the same conclusion in a similar case, United States v. Van Alstyne, 584 F.3d 803; and that, during the Congressional deliberations surrounding the congressional amendment of the money laundering statute, a Senate Report noted that payments from Ponzi schemes did not constitute money laundering under existing statute.

Full Opinion

– Stephen Sutherland

United States v. Wood, No 12-7653

Decided: December 20, 2013

The Fourth Circuit, holding that Vernon Dale Wood (“Wood”) was a “sexually dangerous person” under the Adam Walsh Act (the “Act”), affirmed the district court’s order committing Wood to the custody of the Attorney General of the United States (“U.S.A.G.”).

Wood was born in 1953. In 1976, he was arrested for promoting prostitution and simple assault in the state of Washington. The prostitution charges were dropped, but Wood was convicted of the simple assault charge. The following year, Wood was arrested for promoting prostitution and compelling prostitution in Oregon. He was found guilty on both counts and served approximately five years in prison. One of the women involved in the Oregon prostitution offenses was sixteen years old. In 1987, Wood was charged with sexual abuse in Iowa. He was found guilty of this offense, which involved intercourse with a ten-year old girl, and sentenced to twenty years in prison. However, he was released in January 2001. The following April, Wood was arrested and charged with failure to comply with Iowa’s sex offender registry requirements. He was placed on probation. Wood’s probation was revoked in 2002, however, when he was arrested on five counts of supplying alcohol to minors. In 2004, Wood was again arrested in Iowa and charged with lascivious acts with a child and being a felon in possession of a firearm. The state of Iowa deferred to the U.S.A.G.’s office for prosecution and a grand jury charged Wood with two counts o f being a felon in possession of a firearm. While the federal charges were pending, in 2005, Wood was charged with seven counts of sexual abuse stemming from an alleged molestation of a female under the age of twelve over a period of three years. Following Wood’s 2006 conviction on the federal firearm charge, a presentence report (the “2006 PSR”) was prepared in preparation for sentencing. The 2006 PSR detailed Wood’s extensive criminal history, which also included numerous offenses in a variety of state courts for non-sexual offenses. Wood’s received concurrent 100-month sentences, his projected release date was August 13, 2012.

 In January 2012, the Bureau of Prisons certified that Wood was a “sexually dangerous person” in accordance with the Act, automatically staying his release pending an evidentiary hearing. The entire procedure was guided by a standing order governing all cases arising under the Act (the “Standing Order”). Paragraph 5(h) of the Standing Order provides for two types of examiners identified as a “court selected examiner” and an “additional examiner” selected by the defendant. The Standing Order bars counsel from either party from ex parte communication with either Paragraph 5(h) examiner. Additionally, Paragraph 5(h) provides an opportunity for the defendant to obtain a “non-testifying examiner” to assist in developing a defense. Wood, however, never sought the appointment of such an examiner. The district court, appointed Dr. Harry Hoberman (“Dr. Hoberman”), a licensed psychologist, as the “court selected examiner.” Following a motion by Wood, Dr. Fabian Saleh (“Dr. Saleh”) was selected as an “additional examiner.”  Wood then filed a motion seeking leave to substantively communicate ex parte with Dr. Saleh. The motion was denied.

The district court held a civil commitment hearing in July 2012. At the hearing, Dr. Tanya Cunic (“Dr. Cunic”), Dr. Hoberman, and Dr. Saleh testified as experts in the field of psychology. Based on a record review, Dr. Cunic testified that she diagnosed Wood with two serious mental disorders: (1) Pedophilia; and (2) Personality Disorder, Not Otherwise Specified with Antisocial Traits. Dr. Cunic further testified that, based on Wood’s serious mental disorders and dynamic risk factors; he would have serious difficulty in refraining from child molestation. Similarly, Dr. Hoberman testified that he diagnosed Wood with two serious mental disorders: (1) Pedophilia; and (2) Antisocial Personality Disorder. Dr. Hoberman also testified that he believed Wood would have serious difficulty refraining from future acts of child molestation. Dr. Saleh, on the other hand, testified that there was no evidence that Wood suffered from Pedophilia or Antisocial Personality Disorder. Dr. Saleh did, however, testify that he diagnosed Wood with Personality Disorder, Not Otherwise Specified but that there was no link in this case between the disorder and sexual reoffending. Dr. Saleh further testified that he believed Wood would not have serious difficulty in refraining from engaging in child molestation.

On September 6, 2012, the district court issued its civil commitment order. With regard to the second element required under the Act, the court credited the opinions of Drs. Cunic and Hoberman over the opinion of Dr. Saleh and found that Wood suffered from Pedophilia, a serious mental disorder. Moreover, the district court found Wood suffered from Personality Disorder, Not Otherwise Specified with Antisocial Traits. With regard to the third element, the district court found that Wood would have serious difficulty in refraining from child molestation if released. Again, the court credited the opinions of Drs. Cunic and Hoberman over that of Dr. Saleh. This appeal followed.

On appeal, the Fourth Circuit first addressed Wood’s contention that the Standing Order violated his due process rights because it did not allow him to substantively communicate ex parte with his selected examiner, Dr. Saleh. The court rejected this contention, reasoning that (1) Dr. Saleh’s expert opinions supported Wood’s claim that he was not a sexually dangerous person; and (2) Wood had the opportunity to select a “non-testifying expert” to assist in building his defense. Next, the court addressed Wood’s argument that the district court erred in admitting unreliable hearsay into evidence. The court also rejected this argument. In so concluding, the court noted that the challenged reports were admissible under Rule 703 of the Federal Rules of Evidence, which permits an expert to testify to opinions based on inadmissible evidence. Moreover, the reliability of the challenged reports was supported by the fact that they were used in preparation of the 2006 PSR, which was admissible as an official document under Rule 803(8). Importantly, the 2006 PSR set forth the vast majority of the relevant evidence contained in the challenged reports.

Full Opinion

-W. Ryan Nichols

United States v. Steffen, No. 12-4484

Decided: December 20, 2013

The Fourth Circuit affirmed the district court’s application of a sentencing enhancement to the defendant’s conviction for participating in a drug conspiracy based on his role as a “manager or supervisor” of the drug conspiracy.

Defendant, Patrolman Kurt Steffen (“Steffen”) was arrested in November 2009 for his participation in a large-scale drug conspiracy in Dorchester County, South Carolina. Steffen was the owner of one of five properties involved in a large-scale drug conspiracy. In addition to his duties as a highway patrolman, Steffen allowed others involved in the conspiracy to use his property to cultivate marijuana in exchange for a share of the profits. Additionally, Steffen initially paid for equipment and a shed furnished with electricity for use in the operation prior to transferring the utilities into another conspirator’s name to avoid detection. Moreover, on a couple of occasions, Steffen used his patrol car to follow someone selling marijuana to “prevent any other law enforcement agency from stopping [the] vehicle.” At trial, the district court imposed a three-level upward sentencing enhancement for being a “manager or supervisor” of criminal activity primarily because his ownership of the land gave him the “ability…to pull the plug on the enter operation.” Steffen appealed the enhancement.

On appeal, the Fourth Circuit affirmed the enhancement, finding that the district court did not commit clear error in applying the enhancement. A defendant qualifies for the “manager or supervisor” enhancement if the defendant “managed or supervised ‘participants, as opposed to property, in the criminal enterprise.’” The Fourth Circuit found that Steffen exercised management responsibility on several occasions. Frist, his use of his patrol car to “prevent another other law enforcement officers from stopping” the vehicle transporting marijuana “reflected a management decision regarding the manner in which another participant in the conspiracy was to conduct the conspiracy’s business.” Second, the court found that Steffen’s transfer of the electric bill out of his name to “avoid detection” further reflected a management decision to reduce his risk of exposure. Therefore, under the deferential standard of review for clear error, the Fourth Circuit affirmed the sentencing enhancement.

Full Opinion

– Wesley B. Lambert

United States v. Perez-Perez, No. 12-4935

Decided: December 18, 2013

The Fourth Circuit held that Carlos Perez-Perez’s (“Perez-Perez”) prior conviction of indecent liberties with a minor, in violation of N.C. Gen. Stat. § 14-202.1, constituted a crime of violence, and warranted the the sixteen-level enhancement the district court imposed on him after he plead guilty to illegal reentry after deportation by an aggravated felon.

Perez-Perez, an illegal alien from Mexico, who was then twenty-four years old, had sex with a fifteen-year-old girl in 2001. He was charged with statutory rape in North Carolina, but pleaded guilty to taking indecent liberties with a minor and was subsequently deported. Perez-Perez unlawfully reentered the United States and was convicted in federal district court in Texas of reentry by an alien after deportation following an aggravated felony conviction. He was again deported to Mexico in 2004. After unlawfully reentering the United States yet again, Perez-Perez pleaded guilty in federal district court in North Carolina to illegal reentry after deportation by an aggravated felon. The district court concluded that Perez-Perez’s prior conviction for taking indecent liberties with a minor constituted a crime of violence and therefore applied the sixteen-level sentence enhancement, which raised Perez-Perez’s sentencing range from a range of one to seven months to a range of forty-six to fifty-seven months. Ultimately, Perez-Perez was sentenced to forty-six months.

On appeal, Perez-Perez contended that the district court erred in finding that his prior North Carolina conviction for taking indecent liberties with a minor qualifies categorically as sexual abuse of a minor, and thus as a crime of violence within the meaning of the reentry Guideline. In affirming the district court, the Fourth Circuit again held, as in Diaz-Ibarra, that a perpetrator can engage in conduct that constitutes sexual abuse when he is “in the actual or constructive presence of the minor.” The court further held that Perez-Perez’s argument, that Vann militates in favor of concluding that taking an indecent liberty with a minor is not a “crime of violence,” ultimately fails because accepting it would require the court to set aside prior precedent in Diaz-Ibarra. Accordingly, the court reaffirmed that a conviction for taking indecent liberties with a minor qualifies categorically as sexual abuse of a minor under Diaz-Ibarra and is therefore a crime of violence within the meaning of the reentry Guideline.

Full Opinion

-W. Ryan Nichols

United States v. Black, No 13-6228

Decided: December 6, 2013

The Fourth Circuit affirmed the district court’s denial of Darnell Black’s (“Black”) motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).

On September 14, 2006 Black pleaded guilty to conspiracy to distribute and possess with intent to distribute more than 50 grams of crack cocaine. Because the offense involved more than 50 grams of crack cocaine, Black was subject to a statutory minimum sentence of 120 months imprisonment. On January 23, 2007, he received the minimum 120 months prison sentence. More than three years later, Congress enacted the Fair Sentencing Act of 2010 (“FSA”) in response to criticism about the disparity in sentences between crack cocaine offenses and powder cocaine offenses. By increasing the quantity of crack cocaine necessary to trigger the 120 month minimum sentence from 50 grams to 280 grams, the FSA reduced statutory minimum sentences for such offenses. Under the FSA, Black would have been subject to a statutory minimum of 60 months imprisonment. In October 2012, Black filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which allows for a sentence reduction in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. The district court, however, denied Black’s motion, relying on Fourth Circuit precedent holding that the FSA mandatory minimums do not apply retroactively.

On appeal, the Fourth Circuit reaffirmed prior precedent and held that the reduced statutory minimum sentences enacted in the FSA on August 3, 2010, do not apply retroactively to defendants who both committed crimes and were sentenced for those crimes before August 3, 2010. Addressing Black’s next argument, the court drew on the Supreme Court’s holding in Dorsey, that the FSA only applies prospectively to all sentences imposed after the Act’s effective date. Here, the court held that a proceeding commenced by filing a motion under § 3582(c)(2) is not a sentencing proceeding to which the holding of Dorsey applies. Lastly, the court concluded that Black was ineligible for a reduction under § 3582(c)(2) because the Sentencing Commission did not, nor could not, reduce the Congressionally mandated statutory minimum sentence for a person who has been convicted of a crack cocaine offense.

Full Opinion

-W. Ryan Nichols

United States v. Robertson, No. 12-4486

Decided: December 3, 2013

The Fourth Circuit held that the government did not meet its burden of proving Jamaal Robertson (Robertson) consented to a search conducted by Durham Police Officer Doug Welch (Officer Welch).  The Fourth Circuit therefore reversed the United States District Court for the Middle District of North Carolina’s refusal to suppress evidence seized during the search.

On April 14, 2011, Officer Welch responded to a call reporting an altercation involving three African-American males in white t-shirts.  While responding to the call, Officer Welch noticed a group of people in a sheltered bus stop, three of whom were African-American males in white shirts.  Robertson, who was wearing a dark shirt, was also in the bus shelter.  While other police officers were “dealing with the other subjects at the bus shelter,” Officer Welch focused on Robertson.  Robertson was sitting with his back to the bus shelter’s back wall so that he was blocked by walls on three sides when Officer Welch approached him.  Officer Welch stopped about four yards in front of Robertson and asked Robertson if he had anything illegal on him; Robertson remained silent.  Officer Welch then asked to conduct a search while simultaneously waving Robertson forward to search him.  Robertson stood up, walked toward officer Welch, turned around, and put his hands up.  Officer Welch then recovered a firearm from Robertson.  Because Robertson was a convicted felon, he was indicted for illegal possession of a firearm.  Robertson moved to suppress the evidence seized during the search, arguing that, rather than validly consenting to a search, he submitted to a search to obey an order from Officer Welch.  The district court denied Robertson’s motion to suppress, and Robertson appealed.

Basing its ruling exclusively on the facts garnered from Officer Welch’s testimony, the Fourth Circuit noted the circumstances of the search: around the bus shelter, there were three patrol cars and five armed, uniformed police officers; Robertson saw the other individuals in the bus shelter get “handled by” police officers prior to his interactions with Officer Welch; Officer Welch’s line of questioning was immediately accusatory; Officer Welch—who was blocking Robertson’s only exit—never told Robertson that he had the right to refuse to be searched; and Robertson never gave Officer Welch verbal or written consent.  Therefore, the Court determined that the government did not meet its burden of proving that Robertson consented to the search and reversed the decision of the district court below.

Full Opinion

– Stephen Sutherland

United States v. Montes-Flores, No. 12-4760

Decided: November 26, 2013

The Fourth Circuit vacated appellant, Fabian Montes-Flores’, 46-month sentence, finding that the district court erroneously applied the modified categorical approach to determine that appellant’s prior conviction for assault and battery of a high and aggravated nature (“ABHAN”) was a “crime of violence” for purposes of a sentencing enhancement. The Fourth Circuit held that the district court should have applied the categorical approach as opposed to the modified categorical approach to the ABHAN conviction because it was an indivisible common law crime.

Appellant was arrested during a 2010 traffic stop when officers noticed alcohol and a loaded revolver in the appellant’s vehicle. Subsequent to his arrest, an Immigration and Customs Enforcement agent determined that appellant was previously deported following a 2006 ABHAN conviction in South Carolina state court. The district court determined that, beyond a sentence for illegal reentry, appellant was also subject to a sentencing enhancement for his prior ABHAN conviction. Appellant appealed his conviction, arguing that his prior ABHAN conviction did not constitute a “crime of violence” that triggered to the sentencing enhancement.

A “crime of violence” is defined by the sentencing guidelines to include, inter alia, “any…offense under federal, state, or local law that has an element the use, attempted use, or threatened use of physical force against the person of another.” There are two approaches to determine whether a prior conviction constitutes a crime of violence: the categorical approach and the modified categorical approach. Under the categorical approach, the trial judge is instructed to look “only to the fact of conviction and the statutory definition of the prior offense” to determine whether the prior conviction was a “crime of violence.” The defendant’s actual conduct is immaterial. Conversely, under the modified categorical approach, the trial judge looks beyond the elements of the crime to the defendant’s actual conduct. However, the Fourth Circuit explained that the modified approach is only to be used if the prior conviction rests on a statute that “contains divisible categories of proscribed conduct, at least one of which constitutes—by its elements—a violent felony.” The district court applied the modified categorical approach to Appellant’s ABHAN conviction.

The Fourth Circuit held that the district court should have applied the categorical approach to Appellant’s prior ABHAN conviction because the crime sets forth only two elements under South Carolina law: (1) an unlawful act of violent injury to another, and (2) injury to another accompanied by circumstances of aggravation. Although the “circumstances of aggravation” may be satisfied in a number of ways, the court found that it was a single divisible element of a crime. Thus, ABHAN was not the type of divisible crime subject to the modified categorical approach Following the categorical approach, the court found that ABHAN can be committed “with or without force—and even when force is involved, ABHAN can be committed in a violent or nonviolent manner.” Therefore, the Fourth Circuit held that an ABHAN conviction in South Carolina was not categorically a crime of violence. Because ABHAN was not a crime of violence, the Fourth Circuit found that the district court erred in applying the sentencing enhancement and vacated Appellant’s sentence and remanded his case to the district court for resentencing.

The Fourth Circuit was similarly not persuaded by the government’s assertion that any error in sentencing was harmless. Error in sentencing is harmless only where the court knows that the district court would have reached the same result without erroneously determining the guideline range and that the sentence was reasonable under the appropriate guideline range. The Fourth Circuit was uncertain whether the district court would have reached the same sentence under the appropriate guideline range. The sentencing guidelines departed downward by 22 months without the crime of violence included. Furthermore, the district court’s original sentence fell within the guidelines when the crime of violence enhancement was included, but was far above the sentence under the appropriate guideline range. Therefore, the Fourth Circuit vacated Appellant’s sentence and remanded the case for resentencing.

Full Opinion

– Wesley B. Lambert

United States v. Ali, Nos. 12-4630, 12-4361, 12-4632, 12-4657, 12-4672, 12-4674, 12-4675, 12-4676, 12-4679, 12-4682, 12-4687, 12-4699, 12-4700

Decided: November 14, 2013

Addressing appeals by thirteen individuals involved in conspiracy to traffic khat, a leafy plant containing the controlled substance cathinone, the Fourth Circuit affirmed the district court’s rulings as to all challenges.

In August 2008, federal law enforcement began an investigation into the importation of khat into the United States and its subsequent distribution. The investigation ultimately led to Yonis Ishak, the head of a large-scale distribution operation. The investigation also revealed that proceeds from the sale of khat were laundered through the Virginia branch of Dahabshil, Inc., a wire transfer service, and sent to Ishak’s overseas suppliers. In June 2011, seventeen individuals, including Ishak, were indicted for their participation in the operation. Thirteen were also charged with conspiracy to commit money laundering. After four defendants, including Ishak, pleaded guilty pursuant to plea agreements, the remaining thirteen proceeded to trial. Pursuant to his plea agreement, Ishak served as the government’s principal witness. At trial, after the prosecution rested, the defendants sought to present an expert witness that had not previously been identified to testify. However, citing untimeliness and irrelevancy, the district court excluded the expert’s testimony. At the conclusion of the trial, all thirteen defendants were convicted of all charges, except one, who was acquitted of the money laundering charge.

All defendants appealed, arguing that the evidence was insufficient to convict them because it failed to show that they knew that cathinone was a controlled substance and that khat contained cathinone; that the district court erred in its instructions to the jury relating to scienter and willful blindness; and that the district court erred in excluding their expert witness. In addition, the defendants convicted of money laundering argued that the indictment failed to adequately identify the financial transaction and other details so as to give them sufficient notice of the charges. One defendant, Abokor Gurreh (“Gurreh”), also appealed the district court’s denial of his motion for severance made following counsel for Ismail Abdi’s cross-examination of Ishak.

On appeal, the Fourth Circuit first addressed the district court’s jury instruction on both scienter and willful blindness. With respect to scienter, the court rejected the defendants’ argument, noting that the government need only prove that the defendants knew that their khat contained some controlled substance, which it could do without showing that the defendants had ever heard of cathinone. With respect to willful blindness, despite noting that such an instruction is only appropriate in rare circumstances, the court found the district court’s instruction appropriate because numerous circumstances contained in the record demonstrated that there were sufficient warning signs that khat contained an unlawful substance.

Next, the Fourth Circuit addressed the defendants’ primary contention: that although the evidence was sufficient to show they possessed khat with the intent to distribute, the evidence was insufficient to convict them with conspiring to traffic cathinone. The court disagreed, however, holding that all defendants conducted themselves in a manner that indicated circumstantially that they knew that khat contained a controlled substance. In so holding, the court relied not only on Ishak’s testimony implicating all defendants in the conspiracy, but also on individualized evidence as to each defendant. The court then rejected the defendants’ challenge based on the district court excluding their expert witness, and agreed that the proffered testimony was both untimely and irrelevant. Next, it moved to Gurreh’s challenge based on the district court’s denying his motion to sever and found that, because Ishak’s cross examination by counsel for defendant Ismail Abdino did not prejudice Gurreh, the district court did not abuse its discretion.

Lastly, the Fourth Circuit rejected the challenge based on the alleged insufficiency of the indictment. Noting that the defendants failed to recognize that the first paragraph of the money laundering count incorporated by reference the other 37 paragraphs alleged in the introductory portion of the indictment, where the specific transactions, funds, and related unlawful activity were described, the court concluded that the defendants were adequately informed of the charges against them and were therefore provided with sufficient detail to enable them to plead an acquittal. Accordingly, the judgments of the district court were affirmed.

Full Opinion

-W. Ryan Nichols

United States v. Hunter, No. 12-5035

Date Decided: November 13, 2013

In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits life imprisonment without possibility of parole for juvenile offenders. Criminal defendant, Jimmy Hunter claimed that Miller similarly prohibited sentencing enhancements based on felonies he committed as a juvenile. The Fourth Circuit disagreed.

At age thirty-three, Hunter sold a gun and ammunition to a confidential FBI informant. Defendant was indicted and pled guilty to knowingly possessing a firearm after a felony conviction. This crime typically carries a maximum sentence of ten years imprisonment. However, the probation officer recommended that Hunter receive a fifteen-year sentence under the Armed Career Criminal Act because he had more than three previous violent felony convictions. In fact, Hunter had five prior violent felony convictions: two of the felonies occurred when Hunter was fifteen, two occurred at age seventeen, and a fifth felony occurred when Hunter was twenty-five. Hunter argued that, under Miller, the juvenile convictions could not support the sentencing enhancement. The district court judge disagreed and sentenced Hunter to seventeen years’ imprisonment.

On appeal, Hunter argued that the sentencing enhancement violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The Fourth Circuit disagreed. The court explained that in Miller and other cases examining sentencing of juveniles, the Supreme Court emphasizes that children receive more lenient treatment because of their “diminished culpability and greater prospects for reform.” While the defendants in Miller received life imprisonment for a murder committed at age fourteen, in Hunter’s case, the defendant faced punishment for a crime he committed at age thirty-three, an age exceeding concerns about maturity and prospects for reform. Furthermore, the Fourth Circuit emphasized that a sentencing enhancement is not punishment for past crimes. Instead, it is an aggravated offense because it is a repetitive one. Additionally, other circuits agree that juvenile offenses can properly serve as grounds for a sentencing enhancement for a post-majority conviction. The Fourth Circuit concluded by reinforcing that Hunter was “no juvenile when he committed the crime for which he was sentenced here” and thus, the Eighth Amendment concerns in Miller did not apply to Hunter’s present conviction.

Full Opinion

– Wesley B. Lambert

United States v. Crawford, No. 12-4531

Decided:  November 1, 2013

The Fourth Circuit affirmed the defendant’s sentence for drug distribution. The Court held that the district court’s use of multiple hearsay evidence to calculate the defendant’s drug quantity did not render his sentence unreasonable.

On November 21, 2011, defendant Crawford (“Crawford”) plead guilty to distribution of 38.3 grams of crack cocaine without the benefit of a plea agreement. At sentencing, Crawford objected to the presentence report’s (PSR) drug quantity calculation, which found him responsible for 408.1 grams of crack cocaine from 2003 to 2011. Crawford argued that information that two paid informants- Veronica Ready and Melanie Latta- supplied via telephone interviews to Chad Nesbitt, an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives who did not testify at Crawford’s sentencing hearing, was not sufficiently reliable.  At Crawford’s sentencing hearing, Brunswick County Sherriff’s Office Deputy Jeffrey Beck testified regarding Latta and Ready. The informants worked with law enforcement for money and to reduce their crack cocaine charges; however, neither had provided false information in the past. Crawford alleged that his drug sentence was procedurally unreasonable because the district court utilized unreliable multiple hearsay evidence.

The Fourth Circuit evaluated the district court’s sentence under an abuse-of-discretion standard. Sentences must be both procedurally and substantively reasonable. Pursuant to the Sentencing Guidelines, where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance. However, when the approximation is based only upon uncertain witness estimates, the Court instructed that district courts should sentence at the low end of the range to which the witness testified, which the district court did in this case. When determining facts relevant to sentencing, such as an approximated drug quantity, the Fourth Circuit explained that the Sentencing Guidelines allow courts to “consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” Accordingly, for sentencing purposes, hearsay alone can provide sufficiently reliable evidence of drug quantity.

However, Crawford made three primary arguments that Beck’s recounting of Nesbitt’s interviews with Latta and Ready was not reliable evidence of drug quantity. First, Crawford argued that the evidence simply established that Crawford dealt drugs, not the quantity of drugs that the court attributed to him. However, the court did not dwell on Crawford’s relationship with Latta to establish that he was a drug dealer; it did so because this relationship showed that Latta had first-hand knowledge of the drug quantity attributable to Crawford and, therefore, provided information regarding drug quantity. Second, Crawford argued that the telephone was an inherently unreliable form of communication, which the court also rejected. Third, Crawford argued that the informants’ statements were unreliable because they are drug users who cooperated with law enforcement officials to reduce pending felony charges. However, the Court explained that while these factors may affect a witness’s credibility, they do not render a witness per se unreliable. Finally, the Court held that the Sixth Amendment’s Confrontation Clause does not apply at sentencing hearings.

Full Opinion

– Sarah Bishop

United States v. McManus, No. 12-4901

Decided: October 30, 2013

The Fourth Circuit found that the district court improperly calculated William McManus’s (“McManus”) applicable Sentencing Guideline range and therefore vacated the sentence and remanded for resentencing.

Gigatribe is a file-sharing computer program. By way of an invitation and acceptance feature, Gigatribe allows users to share files with other users with whom they are “friends.” Despite being “friends” with a particular user, however, a user cannot access that particular user’s files unless the other user maintains a shared folder, accessible to friends that are populated with files. McManus used Gigatribe’s file-sharing feature to acquire and maintain child pornography. After an FBI agent downloaded several files containing child pornography from McManus’s Gigabtribe account, McManus was arrested and indicted. He subsequently pleaded guilty. The record indicated that the agent gave McManus nothing in exchange for the files he downloaded and there was no evidence that any other Gigatribe user downloaded pornographic files from McManus. Following McManus’s guilty plea, at his sentencing hearing, the district court applied a five-level enhancement to McManus’s base offense level by way of United States Sentencing Guideline § 2G2.2(b)(3)(B). Because Section 2G2.2(b)(3)(B) only applies when a defendant has “distributed” child pornography “for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain,” McManus filed this appeal arguing that the district court erred by applying the five-level enhancement instead of the two level enhancement for simple distribution under Section 2G2.2(b)(3)(f), and therefore, his sentence was procedurally unreasonable.

On appeal, the Fourth Circuit first addressed the meaning of Section 2G2.2(b)(3)(B) and held that the meaning of the phrase at issue was unambiguous. The clear meaning of the text, according to the court, requires that for the enhancement to trigger, the government must prove that the defendant distributed pornography with the specific purpose of securing some kind of benefit in exchange. In other words, the government must show that the defendant conditioned his decision to distribute his files on his belief that he would receive something of value in return.

Next, the court applied its interpretation to the facts of the case and rejected the government’s proposed inherent reciprocity argument. In so doing, the court concluded that it is clearly possible, based on the features of the Gigatribe system, that a user could distribute his files without any reasonable expectation of receiving anything of value in exchange.  The court further found that the government did not submit sufficient individualized evidence of McManus’s intent to distribute his pornographic material in expectation of receipt of a thing of value. Therefore, because the district court’s improper sentencing range calculation constituted a significant procedural error that was not harmless to McManus, the Fourth Circuit vacated the district court’s sentence and remanded for sentencing.

Full Opinion

– W. Ryan Nichols

United States v. Hashime, No. 12-5039

Decided:  October 29, 2013

The Fourth Circuit reversed Faisal Hashime’s convictions on multiple counts related to child pornography and remanded the case for further proceedings because law-enforcement agents did not read Hashime his Miranda rights until well after he made numerous self-incriminating statements during an interrogation that occurred while law-enforcement agents searched his home.

In November 2010, a law-enforcement agent with Immigration and Customs Enforcement’s Homeland Security Investigations unit (“HSI”) discovered a naked picture of a minor boy while monitoring a website used to exchange child pornography that had the caption “Email me, [email protected]”  In July 2011, the agent sent an email to the aforementioned address, asking to trade child pornography images.  In return, the agent received twenty-four images of a naked boy.  HSI traced the email account’s associated IP address and discovered that someone in the Hashime family home utilized the email account.  Based on that information, law enforcement obtained a search warrant for the email account and the Hashime’s home.  On May 18, 2012, a team of 15-30 state and federal agents executed the search warrant.  The team was equipped with a battering ram and, upon arrival, banged on the entrance to the home yelling, “Open the door.”  Hashime, who was 19 years old at the time, was living with his parents while attending a local community college.  The agents were let into the home by Hashime’s aunt and moved into the home with their guns drawn.  One of the officers entered Hashime’s bedroom and pointed a gun at him while he was in bed, naked and asleep.  The officer ordered Hashime out of bed and, after allowing him to put on boxer shorts, escorted Hashime by the arm out to the front lawn, where officers were keeping Hashime’s other family members outside.

When law enforcement finally allowed the family back into the home, they were quarantined in the living room while the officers completed their search.  Hashime was not allowed to use the bathroom until the officers completed their search and Hashime was given his clothes, but was not provided with shoes or socks.  Hashime’s mother, who was recovering from brain surgery, was not allowed to lie down.  All of Hashime’s family members were instructed that they had to be accompanied by officers at all times and the agents proceeded to interrogate each one of them individually.   Two officers escorted Hashime to the basement for questioning and the officers chose to conduct the interrogation in a room that was being used for a storage area.  According to Hashime’s mother, the officers told her that her son was under arrest.  The officers secretly recorded the interrogation of Hashime and lied to Hashime about whether they were recording the conversation.  The officers also told Hashime that he did not have to answer their questions and could leave at any time, but, at some point during the interrogation, one of the officers told Hashime, “I need to know, and I need you to be completely honest with me here even if you’re afraid, I don’t care if you say I don’t want to answer that or I’m afraid to answer it, but I need to know the truth.”  The agents did not read Hashime his Miranda rights until over two hours into the interrogation.  During the interrogation, Hashime admitted to having child pornography on his computer and provided details about how he obtained the photographs.  Hashime also provided the password to his computer and instructed the officers how to find the photographs on his hard drive.

Hashime was indicated on seven counts of production, distribution, receipt, and possession of child pornography in violation of federal law.  Prior to his trial, Hashime moved to suppress the statements made to law-enforcement agents during the interrogation.  Hashime argued that he was in custody at the time of the interrogation and, because he did not receive his Miranda warnings, his statements should be suppressed.  The district court denied the motion.  The district court asserted that Hashime’s demeanor during the interrogation, his familiarity with law-enforcement practices, and his apparent lack of concern with an imminent arrest led to the conclusion that Hashime believed he was free to leave and end the interrogation at any time.  Hashime subsequently pled guilty to the receipt and possession charge, but the government pressed forward and chose to prosecute Hashime on the production and distribution charges.  Hashime was convicted of these other counts following a bench trial.  Hashime appealed and argued that his conviction should be reversed because the law-enforcement officers failed to read him his Miranda rights at the beginning of the interrogation.

The Fourth Circuit explained that, generally, law enforcement officers are required to inform individuals in custody of their Miranda rights prior to interrogation.  In order to determine whether a defendant, not under formal arrest, was in custody for the Miranda requirements to apply, the court will look at the totality of the circumstances to make an objective inquiry into whether a reasonable person in the individual’s situation would have thought they were in custody.  The Fourth Circuit noted that the government conceded it interrogated Hashime, but argued that Hashime was not in custody so agents were not required to provide Miranda warnings.  The government’s argument rested on two grounds:  “law enforcement’s conduct toward and statement to Hashime prior to and during the interrogation, and Hashime’s tone and demeanor during the interrogation.”  With respect to law enforcement’s conduct, the Fourth Circuit concluded that even though law enforcement told Hashime that he did not have to answer any of their questions and he was free to leave, the broad setting of the entire search and interrogation, including the fact that Hashime was isolated from his family during the interrogation, would lead a reasonable person to believe he was in custody.  Importantly, the Court noted that Hashime and his family were unable to move freely throughout their own home.  The Court pointed to the fact that Hashime and his family, even though they were in their own home, were required to have law enforcement escort where they went in the house changed the entire setting of the interrogation.  Because the family had lost control of their home, the fact that the interrogation was conducted in his basement did not change the fact that the interrogation was conducted in a custodial setting.

Turning to the government’s argument that Hashime’s tone and demeanor during the interrogation demonstrated that Hashime did not believe he was in custody, the Court held that such factors were not dispositive of the custodial inquiry.  Rather, the Court provided that Hashime’s attitude was more of a subjective factor that went primarily to the voluntariness of his confession and had no real bearing on the objective inquiry into whether Hashime believed he was in custody at the time of the interrogation.  Instead, an objective inquiry should be more directed towards the conduct of law enforcement and how a reasonable person would interpret their actions.  Therefore, the Court held that Hashime was in custody for the purposes of Miranda and that law enforcement’s failure to read him his Miranda rights made his testimony inadmissible and required that the conviction be reversed.  The Fourth Circuit further related that because Hashime’s conviction was reversed on the Miranda issue, the Court chose not to render a decision on Hashime’s challenge to his sentencing under the Eighth Amendment.

Full Opinion

– John G. Tamasitis

United States v. George, No. 12-5043

Decided: October 16, 2013

The Fourth Circuit, finding that Officer Roehrig had a reasonable suspicion that Decarlos George (“George”) was armed and dangerous, held that the protective frisk did not violate George’s Fourth Amendment rights and therefore affirmed the district court’s decision denying George’s motion to suppress evidence of the handgun and the judgment of the court.

At 3:30 a.m., while patrolling one of Wilmington’s high crime areas, Officer Roehrig observed a dark-colored station wagon, containing four male occupants, closely and aggressively following another vehicle—within a car’s length—as if in chase. During which time, the two vehicles made illegal right-hand turns through a red light at approximately twenty to twenty-five miles per hour. Following the turn, Officer Roehrig pulled behind the two vehicles causing the station wagon to slow down and make a left-hand turn, breaking off the apparent chase. The station wagon subsequently made three additional left-hand turns in an apparent effort to determine whether Officer Roehrig was following the vehicle. When Officer Roehrig decided to stop the station wagon for its aggressive driving and red light violation, he called for backup, which was answered by Officer Poelling. Upon Officer Poelling’s arrival, Officer Roehrig approached the vehicle. George, who was seated behind the driver’s seat, was holding up his I.D. card with his left hand, while turning his head away from Officer Roehrig’s view. His right hand was on the seat next to his leg and was concealed from view by his thigh. Officer Roehrig instructed George to place both of his hands on the driver’s seat headrest, but George placed only his left hand on the headrest. According to Officer Roehrig’s testimony, he requested George move his hand four or five times more before he ultimately complied; still, he did not make eye contact. Officer Roehrig then proceeded to speak with the driver and ultimately, after consulting with Officer Poelling, decided to remove all four passengers from the car in order to interview them separately. Officer Roehrig then directed George to step out of the vehicle. As George was doing so, he dropped his wallet and cell phone onto the ground. As George attempted to bend over and retrieve his possessions, Officer Roehrig, fearing such action would create an increased risk that George would reach for a weapon, stopped him and performed a protective frisk, uncovering a handgun. Officer Roehrig then placed George under arrest and, upon checking his criminal history, discovered that he was a convicted felon and that the handgun was stolen. George was charged and pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).  Before pleading guilty, however, George filed a motion to suppress evidence of the handgun on the ground that it resulted from an unlawful frisk in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. The district court denied George’s motion to suppress. Consequently, he entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion. This appeal followed.

On appeal, the Fourth Circuit held that, based upon the “totality of the circumstances,” Officer Roehrig’s protective frisk was supported by objective and particularized facts sufficient to give rise to a reasonable suspicion that George was armed and dangerous. In so holding, the court explained seven factors contributing to its finding of reasonable suspicion. The most important factor, according to the court, was George’s movements in the vehicle when Officer Roehrig initially approached.

Full Opinion

-W. Ryan Nichols

U.S. v. Calvin Douglas Dyess, No. 11-7335

Decided: September 16, 2013

The Fourth Circuit Court of Appeals affirmed the district court’s denial of Defendant’s motion to vacate his sentence under 28 U.S.C. § 2255. Defendant Calvin Dyess (“Dyess”) pled guilty to conspiracy to commit money laundering and to conspiracy distribute cocaine, cocaine base, and marijuana, and was sentenced to life imprisonment.

Dyess and several co-conspirators were indicted for their operation of a large-scale drug conspiracy in Charleston, West Virginia, from 1955 to 1998. Dyess entered a plea agreement whereby he agreed to plead guilty to the aforementioned crimes. At the plea hearing, the district court expressly told Dyess that he was facing a sentence of ten years to life imprisonment for the drug conspiracy. Then, a presentence report (PSR) was prepared, indicating the particular amounts of drugs that Dyess was responsible for in the conspiracy. For those particular amounts, Dyess faced life imprisonment. Dyess objected to the drug amounts at a contested sentence hearing. The district court heard from several witnesses about the scope of Dyess’ drug enterprise, upheld the PSR’s findings and sentenced Dyess to life. Dyess appealed, during which time his ex-wife admitted to a sexual relationship with Hart, one of the lead investigators in Dyess’ case and to committing perjury at the sentencing hearing. On remand, Dyess moved to be resentenced. The district court deferred ruling on the motion pending an evidentiary hearing, limited to the issue of whether Hart’s misconduct and his ex-wife’s perjury at the sentencing affected Dyess’ sentence. The district court found the tainted testimony did not affect Dyess’ sentence and declined to hold a resentencing. Dyess appealed, and this court granted Dyess a COA on six claims.

Dyess’ first contention was that the district court erred in failing to address all of his § 2255 claims. In Dyess’ first § 2255 motion, he listed approximately 30 claims for relief, 25 of which consisted of a single sentence.  In Dyess’ “amended” § 2255 petition, he raised 16 claims, several of which were repeated from his earlier filings. The district court considered only the claims in the amended petition and this court found that was not error. Many of the claims in the amended motion were also raised in the original filing and the rest consisted only of vague and conclusory allegations.

Dyess’ second claim was that his sentence violated Apprendi because the indictment did not allege a specific drug quantity and, therefore, limits his maximum sentence to 20 years. The court rejected this claim for two reasons. First, Dyess cannot circumvent a proper ruling on direct appeal by re-raising the same challenge in a § 2255 motion. Dyess raised his Apprendi argument on remand to the district court and the district court rejected it. Second, this claim would still fail on the facts of this case. Dyess waited until the remand from this court to raise the issue, well after judgment issued. Therefore, the claim would be reviewed for plain error. On plain error, Apprendi errors will not be recognized when the evidence as to drug quantity is essentially uncontroverted, as in this case.

Dyess’ third claim was that trial counsel failed to investigate and discover Hart’s affair with Dyess’ wife prior to Dyess’ guilty plea. For ineffective assistance claims, the Defendant must show (1) that the attorney’s performance fell below an objective standard of reasonableness and (2) that he experienced prejudice as a result. The court found Dyess did not show (1) just because his attorney hired an investigator who failed to discover evidence of the affair. Under Strickland, counsel should conduct a reasonable investigation into potential defenses, but is not required to uncover every scrap of evidence that could conceivably help their client. In addition, Dyess could not establish prejudice under (2), where the Government had overwhelming evidence of Dyess’ guilt. Dyess’ arrest and prosecution were the result of a long investigation complete with wiretaps, drug buys, and co-conspirator testimony. Further, while Dyess subjectively claimed he would have gone to trial had he known about the affair, objectively a reasonable defendant would have pled guilty and offered substantial assistance.

Dyess’ fourth claim was that trial counsel should have recognized that drug weights were an element of the offense under § 841(b) that must be charged in the indictment. In Jones v. United States, the Supreme Court held that certain sentencing enhancements were actually elements of the charged offense. Jones was decided after Dyess’ superseding indictment but prior to his guilty plea and sentencing. The Fourth Circuit did not extend Jones and Apprendi to § 841 (b) until 2001, more than two years after Dyess’ sentencing. According, Dyess’ counsel was not deficient by failing to anticipate Apprendi. In any event, Dyess could not show that trial counsel’s performance prejudiced him, because of the overwhelming evidence in support of the drug weights.

Dyess’ fifth claim was that remand counsel failed to call all of the necessary witnesses at the evidentiary hearing involving Hart’s misconduct. However, counsel called all of the witnesses whose testimony was possibly tainted by Hart’s misconduct. Because the evidentiary hearing was limited to this one issue, it did not need all of the voluminous testimony from Dyess’ first sentencing hearing. In any event, the Fourth Circuit held that courts provide counsel wide latitude in determining which witnesses to call as a part of their trial strategy.

Dyess’ sixth claim was that remand counsel failed to “effectively challenge” his guilty plea on remand. Dyess moved to withdraw his guilty plea on remand, arguing that it was not knowing and voluntary. The court affirmed the district court’s denial of this motion, rejecting Dyess’ claim that his plea was unknowing because he faced a life sentence and because trial counsel failed to uncover the Hart/Rader relationship. Dyess also argued that his plea should have been attacked under Apprendi, but did not raise this claim to the district court. However, even though Dyess’ counsel did not raise Apprendi as a ground for withdrawing his guilty plea, Dyess did raise that argument when he was acting pro se and the court rejected it. Therefore, Dyess could not show prejudice.

Full Opinion

– Sarah Bishop

United States v. Royal, No. 10-5296

Decided:  October 1, 2013

The Fourth Circuit held that the government presented sufficient evidence to convict Thomas Royal (“Royal”) of possession of ammunition by a prohibited person, in violation of the federal Gun Control Act (“the GCA”), 18 U.S.C. § 922(g)(1); that the United States District Court of the District of Maryland properly instructed the jury on the meaning of the phrase “knowingly possessed ammunition”; and that the district court erroneously applied the modified categorical approach when determining whether Royal’s second-degree assault conviction qualified as a violent felony under the Armed Career Criminal Act (“the ACAA”), 18 U.S.C. § 924(e).  The Fourth Circuit therefore affirmed the decision of the district court in part, vacated the decision in part, and remanded the case for resentencing.

On January 8, 2009, a police officer and a detective recovered an antique Iver Johnson revolver (“the antique revolver”) from Royal’s car.  The antique revolver was loaded with five .32 caliber bullets.  The government charged Royal with possession of ammunition by a prohibited person, as Royal had previously been convicted of a crime punishable by more than a year in jail, and the GCA therefore prohibited him from knowingly possessing “any firearm or ammunition” that has passed through interstate commerce.  Under the GCA, the term “firearm” does not include antique firearms manufactured before 1898; “ammunition” denotes “ammunition . . . designed for use in any firearm.”  18 U.S.C. § 921(a)(3), (a)(16)(A), (a)(17)(A).

At trial, the evidence demonstrated that the rounds were .32 caliber bullets manufactured by the companies Remington and Winchester.  The government did not present specific evidence on the rounds’ design; additionally, though Royal cross-examined an expert witness on the manufacture dates of the rounds, he did not otherwise raise the issue of design.  Royal subsequently moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that the government did not provide sufficient evidence to support a guilty verdict.  The district court denied the motion.  After closing arguments, the district court instructed the jury on the mens rea component of the alleged violation, explaining, “whether the defendant acted knowingly . . . means [whether] he knew that the ammunition was ammunition as we commonly use the word.”  The jury found Royal guilty of violating 18 U.S.C. § 922(g)(1).  During the sentencing phase, the government asserted that Royal was subject to a mandatory minimum sentence of fifteen years, as he had three prior convictions “for a violent felony or serious drug offense,” 18 U.S.C. § 924(e)(1).  Royal argued that his conviction for second-degree assault under Maryland’s assault statute did not constitute a “violent felony” under the categorical approach.  However, the district court applied the modified categorical approach, finding that Royal’s second-degree assault conviction was a violent felony.  The district court sentenced Royal to fifteen years and eight months in prison.

On appeal, Royal argued that the government did not meet its burden of proving that the bullets were designed for use in any non-antique firearm; that the district court plainly erred by failing to instruct the jury that, to have the requisite mens rea, Royal had to have known that the bullets were designed for use in a non-antique firearm; and that the district court erroneously applied the modified categorical approach during the sentencing phase.

The Fourth Circuit concluded that the antique firearm exception to the GSA—in this case, the firearm exception as applied to the definition of ammunition in 18 U.S.C. § 921(a)(17)(A)—is an affirmative defense that the defendant must raise and support by evidence.  The Fourth Circuit found that Royal did not satisfy his burden of raising this defense.  With regard to the jury instructions, the Fourth Circuit found that the district court “adequately informed the jury that, to sustain a conviction, Royal needed to have knowledge of those facts that brought the rounds in this case within that legal definition.”  Lastly, the Fourth Circuit noted that in Descamps v. United States, 133 S. Ct. 2276, the Supreme Court held that, when assessing a defendant’s prior convictions for purposes of sentencing under the ACCA, courts cannot apply the modified categorical approach to indivisible criminal statutes.  The Fourth Circuit found that the applicable Maryland assault statute was indivisible, as it did not contain alternative elements that could be used to prove an offense.

Full Opinion

– Stephen Sutherland

United States v. Jackson, No. 12-4559

Date Decided: August 26, 2013

The Fourth Circuit affirmed the district court’s conclusion that the police’s search of the defendant’s trashcan did not violate the defendant’s Fourth Amendment rights.

Around 4:00 a.m. on May 26, 2011, Richmond police officers pulled two garbage bags from a trash can located behind the apartment of Sierra Cox under the suspicion that Defendant Dana Jackson was selling drugs from the apartment. Jackson was Cox’s boyfriend and regularly stayed at the apartment. The layout of the apartment and surrounding areas was particularly important to the district court’s ruling. The court explained that the apartment was a row-type housing unit. Beyond the back door, each unit had a ten by twenty-foot patio that connected to a common sidewalk running the length of the building. Between the patio and a sidewalk ran a narrow strip of grass. Finally, beyond the patio and sidewalk, there was a courtyard that served as a common area.  The officers testified that the trashcan was partially on the patio and partially on the strip of grass beyond the patio. They further explained that they recovered two trash bags by stepping onto the grass and pulling the bags out of the trashcan. The officers claimed that they did not have to step onto the patio to recover the trash.

After recovering items in the trash bags consistent with drug trafficking, the police obtained a warrant and searched the home. In the home, the police found ample evidence of drug trafficking including firearms, scales, a large amount of cash, and other drug paraphernalia. At trial, Jackson moved to suppress the evidence obtained in the trash pull. Jackson argued that the search was unconstitutional under the Fourth Amendment’s prohibition on unlawful search and seizure on two grounds: first, because the police physically intruded on a constitutionally protected area, and second, because he had a reasonable expectation of privacy to the contents of the trash can. The district court dismissed both arguments and sentenced Jackson to 137 months imprisonment. Jackson appealed the district court’s ruling.

On appeal, Jackson first argued that the district court’s factual finding regarding the location of the trashcan was clearly erroneous. Cox testified that she often kept the trashcan chained and locked on her patio. She claimed that she unlocked the trashcan only to move it to the curb. Nevertheless, she could not say definitively where the trashcan was located on the day in question. In contrast, the officers testified with great precision about the location of the trashcan. The Fourth Circuit held that the discrepancy of the testimony, the differences in specificity, and the district court’s unique ability to evaluate the credibility of witnesses rendered the district court’s decision not clearly erroneous.

Jackson next argued that the officers’ actions involved an unlicensed physical intrusion of a constitutionally protected area so as to constitute an illegal search or seizure under the Fourth Amendment. Jackson contended that that the trash can was located within the “curtilage” of the home, that is, the “area immediately surrounding and associated with the home…[treated] as part of the home itself for Fourth Amendment purposes.” The Fourth Circuit, after conducting a de novo review, disagreed. The court acknowledged that if the trash can fell within the home’s curtilage, the officers were required to obtain permission to gather information under the Fourth Amendment. The parties stipulated that the curtilage of Cox’s apartment included the concrete patio behind her home. Beyond the patio, the parties disagreed as to whether the curtilage extended to the grass strip and the sidewalk behind the apartment. The Fourth Circuit held that the apartment’s curtilage did not extend beyond the patio.  The grass strip where the officers conducted the trash pull was at least twenty feet from the apartment’s back door. Furthermore, the trashcan was not included in an enclosure or shielded from public view. Most importantly, everything beyond the strip of grass was a “common area” used by all residents. Thus, the court held that because the officers “did not physically intrude upon a constitutionally protected area” Jackson was not entitled to relief under this “property-based approach” to the Fourth Amendment.

Finally, Jackson argued that the officers’ actions violated his Fourth Amendment by infringing on Jackson’s reasonable expectation of privacy in the trashcan’s contents. The Fourth Circuit found the situation fell under the Supreme Court’s Greenwood decision and disagreed. In Greenwood, the Supreme Court held that defendants’ Fourth Amendment rights were not violated where the police obtained the defendants garbage from the trash collector when he picked up the defendants’ garbage from the curb. The court concluded that the defendants had “exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection.” The court acknowledged that the present case differed slightly because the garbage at issue in this case was located behind the house rather than in front of the house for pickup, but nevertheless concluded that there was no reasonable expectation of privacy. The garbage can was easily accessible to all passing through the common area. Moreover, Cox testified that the trashcan contained contents that she “want[ed] to get rid of” and stuff that she “didn’t want anymore.” Therefore, the Fourth Circuit concluded that the Richmond Police’s trash pull did not offend Jackson’s Fourth Amendment rights and affirmed the district court’s decision to deny Jackson’s motion to suppress and the subsequent conviction.

Full Opinion

– Wesley B. Lambert

United States v. Cabrera-Umanzor, No. 11-4621

Decided: August 26, 2013

The Fourth Circuit held that, because the elements of sexual abuse under the Maryland Code do not correspond to the elements of any enumerated “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), the district court erred in applying a 16-level sentencing enhancement to Cabrera-Umanzor’s (“Defendant”) sentence. The court therefore reversed and remanded for resentencing.

Defendant pleaded guilty to unlawful re-entry of a removed alien after an aggravated felony conviction. The base offense level for such conviction is 8, however, Section 2L1.2(b) provides for various offense-level enhancements depending on the specific characteristics of the Defendant’s offense. At issue in this case, was the 16-level enhancement that applies in cases where a Defendant was deported after a conviction for a “crime of violence,” as defined in Section 2L1.2 The district court held that the modified categorical approach applied because some, but not all, of the conduct proscribed by Section 35c would constitute a crime of violence. Then, without considering the elements of Section 35c, it concluded that having intercourse with an 11-year-old when Defendant was 19 was a forcible sex offense and thus a crime of violence. The district court therefore applied the 16-level enhancement and, consequently, the Defendant was sentenced to 41 months imprisonment.

Citing recent Supreme Court precedent, the Fourth Circuit noted that the central feature of both the categorical approach and the modified categorical approach is a focus on the elements, rather than the facts, of a crime. Then, after determining that the modified categorical approach was inapplicable because Section 35c is not divisible along crime of violence lines, the court held that, under the categorical approach, sexual abuse under Section 35c is not a “crime of violence” for purposes of the sentencing enhancement. In so holding, the court noted that sexual abuse under Section 35c does not require the use or threatened use of physical force, and the offense may be committed without committing any of the enumerated crimes of violence. Therefore, the elements of sexual abuse under Section 35c do not correspond to the elements of any of the “crimes of violence.” Consequently, the Fourth Circuit reversed and remanded for resentencing.

Full Opinion

– W. Ryan Nichols

United States v. Bartko, No. 12-4298

Decided: August 23, 2013

The Fourth Circuit affirmed the sentence and conviction of Gregory Bartko in connection with his role in a fraudulent investment scheme. The court found that district court did not err in failing to award Bartko a new trial. Additionally the court held that the district court’s jury instructions were not an abuse of discretion and that the district court properly imposed sentencing enhancements.

Defendant Gregory Bartko was a securities attorney, investment banker, and a registered broker/dealer. Bartko led and organized a fraudulent financial scheme that involved securing money from investors to provide funding for private equity funds. Bartko and his accomplices led investors to believe that the money would be used for investments and loans while the money was actually used to pay salaries and expenses. Ultimately, Bartko personally received $2,684,928.86 from forty different investors. After a thirteen-day trial, the jury convicted him on all counts. Bartko made four motions for a new trial, which were all denied. He also objected to jury instructions, consideration of a sealed document, and several of the Sentencing Guideline enhancements. The district court overruled Bartko’s objections and sentenced him to 272 months imprisonment. Bartko appealed.

On appeal, Bartko first contends that the district court erred by not granting him a new trial, citing four separate grounds on which the trial court erred. The Fourth Circuit disagreed. The court dismissed the first ground for new trial, finding that Bartko had waived the argument by failing to include it in his brief. Second, Bartko argued that he was entitled to a new trial based on a government witness’s false testimony that he had not received any promises or inducements for his testimony and the government’s failure to correct such testimony. The court agreed that the witness should have disclosed certain promises that the government made regarding how the prosecution would use the witness’s testimony. However, the court denied the motion for a new trial on this ground, finding that it would have had little to no impact on the final judgment. The court cited the district court’s statement that it had “never seen a witness more thoroughly impeached.” Bartko’s final two arguments stemmed from the government’s failure to disclose agreements with witnesses. The court again agreed that the government should have produced this information, but held that Bartko was not prejudiced by the nondisclosure, citing the district court’s conclusion that the defense’s impeachment of the witness was “devastatingly thorough and thoroughly devastating” and that the additional information was merely cumulative. Nevertheless, the court issued a stern warning to the attorney general’s office in the Eastern District of North Carolina based on its failure to provide information. Second, Bartko argued that the court improperly considered a sealed document. After an in camera review, the Fourth Circuit held that the document was harmless to Bartko, providing no basis for a new trial. Third, Bartko appealed based on the district court’s jury instruction regarding accomplice/informant testimony and multiple conspiracies. Bartko’s requested instruction for accomplice/informant testimony included a provision that charged the jury to view testimony of the accomplice/informants with “great care and scrutiny.” On appeal, the Fourth Circuit held that the district court’s instruction was not an abuse of discretion, finding that the jury instruction given “substantially covered” the requested instruction. Bartko also argued that the district court did not have sufficient evidence to warrant a multiple conspiracy instruction. The Fourth Circuit disagreed, finding that there were sufficient similarities between the defendant’s investment schemes to justify the district court’s instruction, including similar methods of investor recruitment, the same actors, the same goals, and the same methods of handling money.

Finally, Bartko contended that the district court improperly imposed Sentencing Guideline enhancements based on the amount loss, the number of victims, and his status as a registered broker/dealer at the time of the offense. First, Bartko argued that the amount of loss enhancement was improper because the court failed to offset the amount of loss by the amount he returned to the victims. The court dismissed this argument on the grounds that he did not return the money until the government detected the crime. Second, Bartko argued that the district court improperly concluded that there were more than fifty victims of his crime. The court disagreed, finding that there were 171 investors in the fraudulent scheme, and while they could not all be pinned to Bartko’s actions, their money was sufficiently comingled to assign a pro-rata loss to each investor. Finally, Bartko challenged the broker/dealer enhancement on the grounds that his status as a broker/dealer was not used to commit the crime. The court acknowledged that his broker/dealer status was not used in the crime, but dismissed his argument. The court found that the Sentencing Guidelines required the enhancement where a broker or dealer’s criminal offense involves a securities law violation, regardless of whether a connection existed between the broker/dealer designation and the securities violation. Therefore, the Fourth Circuit affirmed the conviction and sentence.

Full Opinion

– Wesley B. Lambert

Miller v. United States, No. 13-6254

Decided: August 21, 2013

The Fourth Circuit Court of Appeals reversed the dismissal of defendant’s 28 U.S.C. § 2255 motion to vacate his conviction for violating 18 U.S.C. § 922(g)(1) – possession of a firearm by a convicted felon.

In 2008, Gordon Lee Miller (“Miller”) was convicted for a single count of possession of a firearm by a convicted felon, violating 18 U.S.C. § 922(g)(1). He was charged with possessing a firearm after having been previously convicted of one or more crimes punishable by imprisonment for a term exceeding one year. His previous convictions included felony possession of cocaine and threatening a court officer, both of which had sentences of six to eight months in prison. At the time of trial, under then valid precedent, Miller’s convictions were considered to be “punishable by imprisonment for a term exceeding one year.” In 2012, Miller filed a motion to vacate his conviction, arguing that in light of new precedent, his previous convictions did not constitute crimes “punishable by imprisonment for a term exceeding one year” and, therefore, he did not have any qualifying predicate convictions for the firearm offense.

The Fourth Circuit first explained the line of precedent on which Miller relied. In 2010, the Supreme Court in Carachuri held that an “aggravated felony” must be determined by looking at the defendant’s actual conviction and not the offense for which he could have possibly been convicted based on his conduct. Prior to Carachuri, the Fourth Circuit Court of Appeals considered the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history. After Carachuri, the Fourth Circuit Court of Appeals reconsidered its decision in Simmons. The court vacated Simmon’s sentence in light of Carachuri. It held that a prior conviction under North Carolina law is punishable by more than one year of imprisonment only if the defendant’s conviction, based on his individual characteristics and criminal history, allowed for such a sentence. Thus, Simmons announced a new rule affecting 18 U.S.C. § 922(g)(1). Prior to Simmons, the individual defendant’s actual criminal record did not matter; the conviction was based on a hypothetical defendant. After Simmons, the defendant’s actual criminal record became the only basis for a firearms possession conviction.  However, in this case, the court declined to vacate the defendant’s conviction. The court found that Carachuri announced a procedural rule that was not retroactive on collateral view. Therefore, the issue in the case was whether Simmons announced a new rule that applied retroactively and thereby entitled Miller to relief.

In Simmons, the Fourth Circuit applied Carachuri to create a new substantive rule. This did not mean that Carachuri itself announced a new rule of substantive criminal law. However, the court applied Carachuri in such a way as to announce a new substantive rule that is retroactively applicable. In Powell, the Fourth Circuit court determined that Carachuri announced a procedural rule that was not retroactively applicable on collateral review. However, the retroactivity of Simmons was irrelevant to Powell because Powell’s § 2255 petition could be sustained only by a retroactive Supreme Court decision. The court had to determine whether Carachuri was retroactive to decide if the motion filed by Powell was timely. In that context, Carachuri looks only at whether a certain procedure was followed in obtaining a prior conviction. Therefore, Powell does not necessarily mean that Simmons did not announce a substantive rule.  In sum, even though Powell determined that Carachuri is a procedural rule that is not retroactive, this does not mean that Simmons, in applying Carachuri, did not announce a substantive rule that is retroactive. Because Simmons did announce a new substantive rule that applies retroactively, the court vacated Miller’s conviction.

Full Opinion

– Sarah Bishop

United States v. Carthorne, No. 11-4870

Decided: August 13, 2013

The Fourth Circuit held that a conviction under Virginia law for assault and battery of a police officer did not categorically qualify as a crime of violence that could serve as a predicate offense for a career offender enhancement. Nevertheless, with no prior controlling decision and an unsettled state of the law in other states, the court also held that it was not plain error for the district court to determine that a criminal defendant’s prior conviction for assault and battery of a police officer was a “crime of violence” constituting a predicate offense for the career offender enhancement.

Defendant, Jolon Devon Carthorne (“Carthorne”) pled guilty to possession with intent to distribute cocaine and possession of a firearm in furtherance of a drug trafficking crime as part of a plea agreement. As a part of the plea agreement, the government agreed to recommend a reduction in Carthorne’s sentence based on acceptance of responsibility. A probation officer filed Carthorne’s final presentence report (the “PSR”) recommending that Carthorne be sentenced as a “career offender” based on two prior convictions: (1) a felony conviction for distribution of cocaine; and (2) a felony conviction under Virginia law for assault and battery of a police officer (the “Virginia conviction”). The probation officer labeled the Virginia conviction as a “crime of violence,” subjecting Carthorne to a sentencing enhancement. Carthorne did not dispute the facts surrounding the Virginia conviction where Carthorne apparently spit in the face of a police officer without provocation. The district court adopted the PSR and sentenced Carthorne to 300 months imprisonment. Based on sentencing guidelines, without the “career offender” enhancement, Carthorne would have received between 181 and 211 months’ imprisonment for the conviction. At trial, however, Carthorne failed to object to the PSR’s conclusion that he should be classified as a career offender. In fact, when pressed, Carthorne’s counsel conceded that any argument that the Virginia conviction was not a crime of violence was “without merit.” Carthorne appealed the district court’s determination that the Virginia conviction was a crime of violence” under the federal sentencing guidelines.

On appeal, the Fourth Circuit reviewed the district court’s classification of the Virginia conviction for plain error because Carthorne failed to object to the ruling at the trial level. To establish plain error, the defendant must prove: (1) that an error was made; (2) that the error was plain; and (3) that the error affected his substantial rights. The court agreed with the defendant that the Virginia conviction did not categorically qualify as a “crime of violence.” The court found that the elements of the Virginia conviction did not involve the requisite “conduct that presents a serious potential risk of physical injury to another” to qualify as a crime of violence because assault and battery can occur under Virginia law without a resulting injury. In fact, under Virginia law, “the slightest touching of another…if done in a rude, insolent, or angry manner, constitutes a battery for which the law affords redress.” Therefore, because the elements of the Virginia conviction did not include “the use, attempted use, or threatened use of physical force against another,” it does not categorically qualify as a crime of violence. The court dismissed the government’s argument that the assault and battery conviction was aggravated by the fact that it was perpetrated on a police officer, parting with several other circuits.

Despite finding error, the court found that the error was not “plain.” Neither the Supreme Court nor the Fourth Circuit had previously determined whether the Virginia conviction was a crime of violence. Furthermore, other circuits have split on the issue. Since a district court does not commit plain error by following the reasoning of another circuit, the court determined that the error was not plain and affirmed the district court.

Full Opinion

– Wesley B. Lambert

United States v. Lespier, No. 12-4266

Decided: August 6, 2013

The Fourth Circuit affirmed James Ernest Lespier’s jury conviction on two offenses arising from the murder of his ex-girlfriend on the Eastern Band of Cherokee Indians’ reservation.  In its opinion, the Fourth Circuit rejected Lespier’s challenges that the district court’s denial of judgment of acquittal, two of the court’s evidentiary rulings, and its decision not to instruct the jury on the lesser-included offense of second-degree murder.

On May 17, 2010, Lespier, an enrolled member of the Eastern Band of Cherokee Indians, spent the day fishing with friends and hosted a fish fry at his residence located within the boundaries of the Eastern Cherokee reservation.  The fish fry ended, however, when Lespier got into a verbal argument with his ex-girlfriend Mandi Smith, with whom he had a three-year-old son.  Lespier drove one of his friends home from the party and, when he returned to his residence, he shot Smith in the back of the head with a .38 caliber revolver, killing her instantly.  Later that evening, Lespier called 911 “screaming incomprehensibly but ultimately conveying the message that Smith had been shot and was dead.”  When the police arrived, Lespier was covered in blood and incoherent.  After securing the crime scene, the police began their investigation and soon determined that the crime scene ‘had been cleaned up.’  In addition, they found the revolver under Smith’s body, several holes bullet holes located in the walls of the home, a single oxycodone pill, in a plastic baggie, and an unloaded shotgun with a fresh crack in the wooden stock.  In the days and months following the murder, Lespier gave authorities several exculpatory versions of the events of that night that conflicted with each other.  Witnesses and friends of Smith and Lespier also provided information to law enforcement about Lespier’s long history of threats and physical violence against Smith and their young son.  Prior to trial, prosecutors notified Lespier’s lawyers that they intended to present evidence, under Federal Rules of Evidence 404(b), of Lespier’s prior threats and physical violence against Smith.  Lespier opposed use of any of this evidence and the district court excluded certain prior bad acts and reserved judgment on others.  Ultimately, the court allowed the evidentiary use of certain threats and physical violence by Lespier against Smith.  The court also addressed the issue of a psychology expert Lespier intended to call to offer testimony to explain the inconsistencies in statements made by Lespier.  The court decided to exclude the testimony because it would have invaded the province of the jury.  At the conclusion of the prosecution’s evidence and at the close of all evidence, Lespier sought judgments of acquittal.  The district court denied both motions.  Finally, the court turned to the issue of jury instructions.  Lespier initially opposed an instruction that would permit the jury to convict him on the lesser-included offense of second-degree murder.  Specifically, Lespier asserted that he was not asking for a second-degree charge and argued that the government was trying “to change the rules.”  Over the government’s continued objections, the court held that a trial court may decline to instruct on a lesser-included offense when the defendant objects and only instructed the jury on the elements of first-degree murder.  The jury found Lespier guilty of first-degree murder and that he used a firearm during and in relation to a crime of violence and Lespier appealed.

Lespier raised three contentions on appeal.  First, he challenged the district court’s denial of judgments of acquittal.  The Fourth Circuit held that there was substantial evidence to support the guilty verdict and the district court properly denied the judgments of acquittal.  Next, Lespier argued that the district court abused its discretion in permitting the introduction of the Rule 404(b) evidence and precluding his psychology expert’s testimony.  With regards to the Rule 404(b) evidence, the court analyzed the district court’s decision under the four-part test set forth in United States v. Queen, 132 F.3d 991, and held that the district court did not abuse its discretion admitting the evidence because it was relevant to show Lespier’s intent and absence of mistake.  The Fourth Circuit then took up the challenge to the district court’s decision to exclude the testimony of the psychology expert.  The Fourth Circuit agreed with the trial court that the expert testimony would have intruded on the jury’s role in assessing the credibility of witnesses, namely Lespier himself, and therefore the court did not abuse its discretion.  Finally, the Fourth Circuit addressed Lespier’s argument that the district court erred in declining the prosecutor’s requests for instruction on the lesser-included offense of second-degree murder.  Though Lespier argued against such an instruction, on appeal he contended that an exception to the “invited error doctrine” applied in this case.  The court acknowledged that the district court erred when it declined to instruct on the lesser-included offense.  In addition, the Fourth Circuit agreed that there was a potential exception to the invited error doctrine to preserve the integrity of the judicial process or prevent the miscarriage of justice.  However, the Fourth Circuit ultimately held that the instructional error committed by the district court was not a basis for disturbing Lespier’s convictions because Lespier opposed the second-degree murder instruction as a matter of sound trial strategy and that there was no indication that this failed strategy would undermine the justice system,

Full Opinion

– John G. Tamasitis

United States v. Sterling, No. 11-5028

Decided:  July 19, 2013

The Fourth Circuit held that the United States District Court for the Eastern District of Virginia (“the district court”) improperly granted a qualified reporter’s privilege to James Risen (“Risen”) under the First Amendment, thereby preventing the government from uncovering the identify of a source who allegedly leaked national security information in violation of the Espionage Act, 18 U.S.C. § 793(d)–(e); that the district court improperly struck two government witnesses to sanction the government’s violation of a discovery order; and that the district court properly ordered disclosure of the names of certain government witnesses—specifically, current or former operatives for the Central Intelligence Agency (“CIA”)—to defendant Jeffrey Alexander Sterling (“Sterling”) and his attorney, but improperly ordered disclosure of these names to the jurors.  The Fourth Circuit therefore affirmed the decision of the district court in part, reversed the decision in part, and remanded the case.

In 1993, the CIA hired Sterling as a case officer and granted him top-secret security clearance.  In 1998, the CIA assigned Sterling to a classified program designed to encumber Iran’s acquisition or development of nuclear weapons (“the CIA program”).  Sterling was reassigned from the CIA program in May 2000.  In August 2000, Sterling filed an equal opportunity complaint, alleging the CIA denied him assignments on the basis of race.  He later filed a federal lawsuit against the CIA, seeking compensation for racial discrimination.  Sterling was removed from service in October 2001, and terminated from the CIA in January 2002; his federal lawsuit was subsequently dismissed.  Sterling also filed a second civil suit against the CIA in March 2003, claiming that the CIA had infringed upon his right to publish his memoirs after the CIA’s Publications Review Board edited portions of the memoirs.  The suit was later dismissed by stipulation of the parties.  In 2006, Risen published a book titled State of War:  The Secret History of the CIA and the Bush Administration, which contained classified details about the CIA program.  Risen did not reveal his sources for the classified details.  In December 2010, Sterling was indicted by a federal grand jury for, inter alia, violations of the Espionage Act—specifically, the unauthorized retention and disclosure of national security information.  The grand jury made a probable cause determination that Sterling illegally disclosed classified information to Risen, and that he may have done so to retaliate against the CIA for terminating him and interfering with his memoirs.

In May 2011, the government obtained authorization to issue a trial subpoena seeking, inter alia, testimony from Risen regarding his source of information on the CIA program.  The government asked the court to admit the testimony through a motion in limine.  Claiming the First Amendment or, in the alternative, a federal common-law reporter’s privilege protected him from compelled testimony, Risen moved to quash the subpoena.  The district court quashed the subpoena and denied the government’s motion in limine.  The district court found that Risen had a qualified reporter’s privilege under the First Amendment, and the government did not meet the three-part test established in LaRouche v. National Broadcasting Co., 780 F.2d 1134, thereby failing to overcome the privilege.

The parties consented to a discovery order prior to trial, in which the government agreed to a schedule for disclosing evidence tending to impeach a prosecution witness, per Giglio v. United States, 405 U.S. 150.  Under this schedule, the government had to provide all Giglio materials to Sterling no later than five days prior to the trial’s commencement.  As the disclosure deadline approached, the government discovered impeachment materials in the personnel files of certain CIA witnesses; the government did not disclose these materials to Sterling until the day after the discovery period’s expiration.  Sterling objected to the late disclosure at a pre-trial hearing, and the district court sanctioned the government by striking two of its witnesses.

The government also moved for a protective order prior to trial, under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 § 6.  Seeking to protect the identities of certain witnesses—specifically, current or former CIA operatives—the government asked the court to, inter alia, allow the witnesses to use their last initials instead of their full names.  At a pre-trial hearing, the court agreed to allow the witnesses to use pseudonyms while testifying, but ordered the government to provide a key with the witnesses’ actual names (“the witness key”) to Sterling, his counsel, and the jury.

On appeal, the Fourth Circuit found that the First Amendment reporter’s privilege claimed by Risen—involving testimony in a criminal proceeding regarding criminal conduct the reporter personally observed or participated in—had been rejected by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665.  Furthermore, the Fourth Circuit found that the subpoena was not issued in bad faith or for purposes of harassment.  The court also rejected Risen’s claim to a common-law reporter’s privilege, noting that the Branzburg Court failed to recognize such a privilege, and finding that the Supreme Court’s interpretation of Federal Rule of Evidence 501 in Jaffee v. Redmond, 518 U.S. 1—which established a psychotherapist-patient privilege—did not overrule Branzburg or allow federal courts to recognize a reporter’s privilege under the common law.  With regard to the sanction for the government’s late Giglio disclosure, the Fourth Circuit found that the Giglio violation was not made in bad faith; that Sterling’s trial preparations were not irreparably damaged by the late disclosure; and that a less severe sanction—specifically, a continuance—would have remedied any prejudice from the brief delay.  Lastly, with regard to the district court’s CIPA ruling, the Fourth Circuit noted that Sterling already knew or may know some of the witnesses, and asserted that depriving Sterling of the witness key could infringe upon his Confrontation Clause rights; furthermore, the court noted that the government made no showing that Sterling or his counsel posed an actual threat to the witnesses’ safety.  However, the Fourth Circuit also noted that the jurors could remember the names on the witness key; that the actual names of the witnesses would not help the jury understand the facts and legal issues of the case, and that disclosure of the witness key to jurors was therefore not worth the risk; and that a proper jury instruction could alleviate any prejudice to Sterling.

Full Opinion

-Stephen Sutherland

United States v. Weon, No. 12-4164

Decided: July 17, 2013

Finding that the district court’s criminal sentence was neither procedurally nor substantively unreasonable, the Fourth Circuit affirmed.

Yooho Weon (“Weon”) was charged with five counts of willfully evading corporate income tax returns from 2004 to 2008. With the assistance of counsel, and a CPA, Weon entered into a written plea agreement, admitting all charges. The plea agreement stipulated that, for the purposes of the plea agreement and sentencing, the total tax loss was approximately 2.4 million dollars. Subsequently, the district court held a Rule 11 hearing to determine whether the guilty plea was entered into knowingly and voluntarily. During the hearing, Weon confirmed, under oath, that he had reviewed the factual stipulation and that those facts were true and correct. Still, following a six-month postponement, two weeks prior to the sentencing hearing, he informed opposing counsel that, according to his newly obtained forensic accountant, the actual tax loss was $40,000 rather than $2.4 million. The district court, however, held that Weon was bound by his stipulation for purposes of the sentencing hearing. Consequently, Weon moved to withdraw his guilty plea, arguing that it was entered into involuntarily because he was under the mistaken belief that the tax revenue loss figure was accurate when he agreed to the plea agreement’s terms. Finding the report of Weon’s forensic accountant “highly unpersuasive and riddled with holes,” the court disagreed.  Following its ruling on Weon’s motion to withdraw his plea, the court conducted his sentencing hearing. Without considering any evidence or argument that the tax revenue loss was materially lower than $2.4 million, the court imposed concurrent sentences of 30 months imprisonment, a sentence below the guidelines range, 33 to 41 months, found by the court. Weon appealed.

On appeal, the Fourth Circuit first addressed whether Weon waived his right to appeal pursuant to the plea agreement’s waiver provision. Finding that the provision was ambiguous as applied to Weon, the court declined to construe the waiver provision as barring Weon’s right to appeal. Turning to the merits, the court considered Weon’s challenges regarding the reasonableness of his sentence and found that: (1) procedurally, the district court did not abuse its discretion in prohibiting Weon from arguing that the tax revenue loss was materially less than $2.4 million because Weon knowingly and voluntarily stipulated to that amount in his plea agreement; and (2) Weon’s below-guidelines sentence of 30 months’ imprisonment was not substantively unreasonable.

Full Opinion

-W. Ryan Nichols

United States v. Alston, No. 11-5204

Decided:  July 17, 2013

The Fourth Circuit held that the United States District Court for the Eastern District of North Carolina properly considered the government’s motion for an upward departure under section 4A1.3 of the United States Sentencing Guidelines (“Sentencing Guidelines”), after the Fourth Circuit remanded the case of defendant Lewis Alston (“Alston”) to the district court; that the district court erred by not retroactively applying the Fair Sentencing Act (“FSA”) to Alston’s case, but that the error was harmless; and that the sentence applied by the district court was not substantively unreasonable.  The Fourth Circuit therefore affirmed the judgment of the district court.

Alston pleaded guilty to two cocaine-related offenses.  The district court determined the applicable Sentencing Guidelines range in accordance with United States v. Harp, 406 F.3d 242.  The government moved for an upward departure under section 4A1.3 of the Sentencing Guidelines, but the district court denied the government’s motion, issuing a prison sentence of 150 months.  Alston appealed.  While his appeal was pending, the Fourth Circuit overruled Harp in United States v. Simmons, 649 F.3d 237.  The Fourth Circuit therefore vacated Alston’s sentence and remanded his case for resentencing in United States v. Alston, 447 F. App’x 498 (Alston I).  On remand, the government again moved for an upward departure under section 4A1.3; over Alston’s objection, the district court granted the motion.  The district court issued a prison sentence of 120 months.  At the end of the sentencing hearing, Alston asked the court to retroactively apply the FSA, which had been enacted after Alston’s conviction but before resentencing.  The district court found that the FSA could not be applied to Alston’s case retroactively.  Additionally, after the district court determined Alston’s sentence under 18 U.S.C. § 3553(a), the court described the purposes of the sentence, stating that, inter alia, it “provide[s] the needed treatment of care in the most effective manner possible.”  On appeal, Alston asserted that the district court violated the mandate rule by granting the upward departure motion; that the district court should have retroactively applied the FSA; and that his sentence was substantively unreasonable, as district courts cannot lengthen prison terms for purposes of criminal rehabilitation.

The Fourth Circuit found that the district court did not violate the mandate rule.  The Fourth Circuit vacated Alston’s sentence in its entirety and remanded his case for de novo resentencing; furthermore, the Fourth Circuit’s mandate in Alston I did not relate to the district court’s consideration of a departure under section 4A1.3.  The Fourth Circuit also found that the district court erroneously failed to apply the FSA retroactively; however, the Fourth Circuit deemed this error harmless, as the 120-month sentence was within the applicable FSA range.  Lastly, the Fourth Circuit found that the district court did not lengthen Alston’s prison term for purposes of rehabilitation; rather, the district court was simply reiterating the sentencing factors contained in § 3553(a)(2) and discussing how Alston’s sentence met these factors.

Full Opinion

-Stephen Sutherland

United States v. Shibin, No. 12-4652

Decided: July 12, 2013

Finding that the district court did not err in finding Mohammad Saaili Shibin (“Shibin”) guilty of all 15 charges relating to his involvement in the piracy and ransom of two ships on the high seas, the Fourth Circuit affirmed.

On May 8, 2010, the Marida Maruerite (“Marida”), a German Merchant ship was seized by Somali pirates on the high seas and transported to Somalia. While docked in Somalia, Shibin boarded the vessel and, over the course of seven months, participated in ransom negotiations and torture of the crew. In December 2010, Shibin completed a five million dollar ransom deal for the Marida’s crew. Several months later, the Quest, an American sailing vessel was also hijacked by a group of Somali pirates and four Americans were taken hostage. While en route to Somalia, the US Navy learned of the hijacked ship and established radio communications with the pirates. Through the course of the communications, the pirates represented that Shibin was the individual with the authority to negotiate and provided the Navy with his cell phone number. On February 22, 2011, as the Quest was nearing Somalia waters, the Navy advised the pirates to stop. When they did not comply, the Navy attempted to cut the Quest off, prompting the pirates to initiate hostilities. As Navy vessels began to close in, but before they reached the Quest, the pirates killed all four American hostages on board. Thereafter, on April 4, 2011, acting in cooperation with local authorities, the FBI arrested Shibin in Somalia. While in custody in Somalia, with the assistance of an interpreter, FBI agents questioned Shibin several times over three days. It was confirmed that his cell phone number matched the number provided to the Navy during communications with the Quest hijackers. Shibin admitted involvement in the Marida ransom negotiations, but denied any involvement in the Quest hijacking despite admitting to conducting various searches on his cell phone related to the Quest hijacking and its crew. Searches of Shibin’s bank records and phone records uncovered a sizable amount of damning evidence indicating his involvement in the Quest hijacking. In April 2011, after obtaining custody of Shibin, the FBI transported him to the Oceana Naval Air Station in Virginia Beach, Virginia, where he was “found” for jurisdictional purposes. Shibin was indicted on 15 counts relating to his involvement in the two piracies. Counts 1 through 6 (the “Marida Charges”), were based on his involvement in the Marida piracy, and counts 7 through 15, were based on his involvement in the Quest piracy and killing of the American hostages. Following a ten-day trial, Shibin was convicted on all counts. This appeal followed.

On appeal, Shibin contended that the district court erred by refusing (1) to dismiss the piracy charges on the ground that Shibin himself did not act on the high seas and therefore the court lacked subject-matter jurisdiction; (2) to dismiss all counts for lack of personal jurisdiction because he was forcibly seized in Somalia and involuntarily removed to the U.S.; (3) to dismiss certain alleged “non-piracy charges” contained within the Marida Charges—charges 2 through 6—because “universal jurisdiction” did not extend to justify the U.S. government’s prosecution of those crimes; and (4) to exclude FBI Agent Kevin Coughlin’s testimony about prior statements made by a Somali-speaking witness through an interpreter because the interpreter was not present in court.

Rejecting Shibin’s first contention, the Fourth Circuit affirmed Shibin’s piracy convictions because the court found he intentionally facilitated two piracies on the high seas, even though his conduct took place in Somalia and its territorial waters. Next, the court rejected Shibin’s second contention, and found that, although Shibin was brought into the U.S. involuntarily, the personal jurisdiction requirement, as contained in 18 U.S.C. §§ 1651, 1203, and 2280, was satisfied. In so concluding, the court noted that generally, under the Ker-Frisbie doctrine, the manner in which the defendant is captured and brought to court is generally irrelevant to the court’s personal jurisdiction over him. The court next rejected Shibin’s third argument, finding that counts 2 through 6 were based on a statute that Congress validly applied to extraterritorial conduct rather than “universal jurisdiction.” Lastly, the court addressed Shibin’s contention that the district court abused its discretion in allowing Agent Coughlin to testify regarding statements made by a Somali interpreter during the interrogations of a Shibin witness, Salad Ali, because the interpreter was an out of court declarant. Finding that (1) Agent Coughlin’s statements were admissible testimony of prior inconsistent statements made by Salad Ali and (2) that the absence of the interpreter did not render the statements inadmissible as hearsay because the interpreter was not the declarant, but only a language conduit, the Fourth Circuit held that the district court did not commit plain error in its evidentiary ruling.

Full Opinion

-W. Ryan Nichols

United States v. Bolander, No. 12-6146

Decided:  July 5, 2013

The Fourth Circuit held that the United States District Court for the Eastern District of North Carolina did not commit clear error by ordering civil commitment of Mikel Bolander (“Bolander”) as a “sexually dangerous person” under the Adam Walsh Act, 18 U.S.C. § 4248 (“section 4828”); that section 4828 did not deprive Bolander of equal protection, and did not impose an unconstitutional criminal punishment on him; that the length of time between Bolander’s projected release from prison and the evidentiary hearing regarding civil commitment did not violate Bolander’s due process rights; and that the district court did not commit error by denying Bolander’s December 6, 2011 motion in limine, in which Bolander argued that evidence relating to disclosures he made during participation in a Sex Offender Treatment Program (“SOTP”) should be excluded under the psychotherapist-patient privilege.  The Fourth Circuit therefore affirmed the rulings of the district court.

Bolander began experiencing attraction to prepubescent boys at the age of twelve.  In December 1988, when Bolander was twenty-four years old, he was charged with multiple sexual offenses in San Diego, California after molesting an eleven-year-old boy over a six-month period.  Bolander was sentenced to six years’ imprisonment in April 1989.  Bolander was paroled in 1992; however, a parole officer subsequently discovered child pornography and other lewd materials in a search of Bolander’s residence.  Bolander was arrested in 1996, and later pled guilty to federal charges for distribution of child pornography.  Bolander participated in a SOTP while serving a sentence in federal prison.  Bolander was released in 1998, and was subsequently sentenced to prison for federal child pornography violations on two separate occasions.  Bolander’s projected release date for the most recent prison term was February 9, 2007; however, on that day, the Federal Bureau of Prisons certified that Bolander was a “sexually dangerous person” pursuant to section 4248(a), thereby staying Bolander’s release in anticipation of an evidentiary hearing.

The hearing took place on January 19, 2012, nearly five years after Bolander’s projected release date.  Prior to the hearing, on December 6, 2011, Bolander moved in limine to exclude the evidence related to disclosures he made as a participant in the SOTP, claiming the protection of the psychotherapist-patient privilege.  The district court denied Bolander’s motion.  At the January 19 hearing, the district court heard testimony from three psychologists, who had evaluated Bolander and prepared expert reports; a former director of the SOTP, who directed the program while Bolander was enrolled in it; and Bolander himself.  The district court concluded that the government had proven Bolander was a “sexually dangerous person” by clear and convincing evidence, as the government proved that Bolander had engaged in an act of child molestation in the past, Bolander suffered from serious mental disorders, and Bolander “would have serious difficulty in refraining from . . . child molestation if released” due to his mental disorders.  Of these three conclusions, Bolander appealed only the third.

The Fourth Circuit found that there was evidence in the record to support the district court’s finding of “serious difficulty”; furthermore, as a result of the reasonable explanations offered by one of the government’s psychologists, the district court had the liberty to reject Bolander’s alternative arguments.  The Fourth Circuit also noted that Bolander’s equal protection argument, as well as his assertion that section 4828 imposed an unconstitutional criminal punishment, were foreclosed by the court’s decision in United States v. Timms, 664 F.3d 436.  With regard to the delayed hearing, the Fourth Circuit found that the government’s justification for the delay satisfied due process requirements:  The court listed Bolander’s own pretrial requests and decisions, as well as the constitutional uncertainty surrounding United States v. Comstock, 130 S. Ct. 1949, as reasons for the delay.  Lastly, with regard to Bolander’s motion in limine regarding the SOTP evidence, the Fourth Circuit found that Bolander waived any potential psychotherapist-patient privilege by failing to properly assert the privilege in a timely manner.

Full Opinion

– Stephen Sutherland

United States v. Aparicio-Soria, No. 12-4603

Decided: July 5, 2013

Finding that the Maryland offense of resisting arrest constitutes a crime of violence under U.S.S.G. § 2L1.2, the Fourth Circuit affirmed the District Court for the District of Maryland’s application of the “crime of violence enhancement” in the sentencing of Marcel Aparicio-Soria (“Aparicio-Soria”).

In April 2012, Aparicio-Soria pleaded guilty to illegally reentering the U.S. after having been previously deported following a conviction for aggravated felony. With respect to the sentencing determination, the main issue before the district court concerned another prior state conviction for resisting arrest. The question before the district court was whether Maryland’s resisting arrest offense qualifies as a “crime of violence,” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for the purposes of applying a significant sentencing enhancement for any defendant convicted of illegally reentering or staying in the country after previously being convicted for a felony that is a crime of violence. There was no dispute that resisting arrest did not fall under any of the enumerated offenses, however, the issue was whether resisting arrest fell under the residual “force clause.” The district court first employed the so-called “categorical approach” for determining the applicability of the sentencing enhancement. However, the court found that the type of force required to sustain a conviction for resisting arrest under Maryland law was insufficient to trigger the enhancement as a general matter. The court then turned to the “modified categorical approach,” examining the factual statement incorporated into the charging document to determine whether the underling charge involved a sufficient element of force and concluded that the type of force involved was sufficient to render his resisting arrest conviction a crime of violence. This resulted in raising the advisory guidelines range from between 24 and 30 months to between 54 and 71 months. Ultimately, after granting a downward variance based on the factors in 18 U.S.C. § 3553(a), Aparicio-Soria was sentenced to 36 months of incarceration. Aparicio-Soria appealed, challenging the district court’s application of the crime of violence enhancement.

In appealing his sentence, Aparicio-Soria argued that the district court erred in applying the crime of violence enhancement to his sentence by (1) proceeding beyond the categorical approach and purporting to apply the modified categorical approach; (2) by incorrectly focusing on concrete facts underlying his crime rather than elements required for conviction in its application of the modified categorical approach; and (3) by incorrectly concluding that the conduct described in the charging document was sufficient to demonstrate the necessary level of force.

Noting its authority to affirm the district court’s judgment based on any ground supported by the record, the Fourth Circuit affirmed the judgment on the basis of a categorical analysis without reaching the other issues presented. As a preliminary matter, in addressing Aparicio-Soria’s sentencing enhancement under the categorical approach, the court observed that the approach requires a comparison of (1) the elements of the offense category contained in the force clause of the crime of violence enhancement and (2) the elements of the offense of resisting arrest under Maryland law. After finding that force was an element of the Maryland crime of resisting arrest at the time of Aparicio-Soria’s conviction, the court then analyzed whether such force satisfied the standards of the crime of violence enhancement. Noting that the categorical approach requires an elements-based rather than a conduct-based methodology, the court found overwhelming evidence that Maryland law requires violent force against the person of another in order to justify a charge of resisting arrest, and therefore held that Aparicio-Soria’s conviction fell within the force clause of the crime of violence enhancement.

Full Opinion

-W. Ryan Nichols

United States v. Harris, No. 12-4521

Decided: June 26, 2013

The Fourth Circuit affirmed the 105 month sentence imposed on Timothy Harris after he pleaded guilty to two counts of possession of firearms by a felon after the district court applied U.S.S.G. § 2K2.1(b)(4)(B).  The court upheld the four-level enhancement for when a firearm “had an altered or obliterated serial number,” even though the firearms possessed by Harris had been gouged and scratched, “rendering it less legible, but arguably not illegible.”

Harris was arrested in Raleigh, North Carolina after he used a gun to threaten a woman during the course of an argument.  The police recovered a .25 caliber handgun from him after the arrest and described the condition of the serial number on the gun as having “numerous deep gouges and scratches across the width of the alpha numerics” and that it appeared these marks were done “with some sort of tool.”  However, the police report indicated that the serial number was nonetheless legible.  Harris subsequently pleaded guilty to illegal firearms possession and the presentence report recommended a four-level enhancement based on the condition of the serial number.  Harris objected because the serial number was still legible.  At the sentencing hearing, the district court overruled Harris’ objection and, after considering the police report and examining the handgun itself, ruled that enhancement should be applied even though no evidence was offered to prove that Harris made the marks on the firearm.

On appeal, the Fourth Circuit addressed the single question, “whether the serial number on Harris’ handgun, which was marked with gouges and scratches that the district court found made it less legible, was ‘altered,’ within the meaning of U.S.S.G. § 2K2.1(b)(4)(B).”  Harris’ main argument was that a serial number should not be considered “altered” when it otherwise remains legible.  The Fourth Circuit first noted that it had yet to address this question, though other circuits had.  The Fourth Circuit then discussed the Gun Control Act of 1968 which makes it a crime to “possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered,” even though Harris was not charged with a violation of its provisions.  However, according to the court, the applicable Sentencing Guidelines mimic the Gun Control Act’s provision in its language.  After analyzing the policy behind the statute and the generally accepted meaning of the words “altered” and “obliterated,” the Fourth Circuit rejected Harris’ arguments.  Instead, the Fourth Circuit agreed with the majority of courts and held that a firearm’s “serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible.”  As a result, the Fourth Circuit agreed that the district court’s findings that the gouges and scratches on the serial number made it more difficult to read the numbers accurately and the fact that there were no other markings on the gun, indicating that the scratches and gouges were intentional, was enough to warrant the district court’s decision.  Therefore, the Fourth Circuit concluded that the district court did not err in applying the four-level enhancement because the evidence supported the conclusion that the serial number had been “altered” by making it less legible.

Full Opinion

– John G. Tamasitis

United States v. Davis, No. 12-4346

Decided: June 24, 2013

The Fourth Circuit vacated Zavier Marquis Davis’ consolidated sentence for multiple violations of North Carolina state law and remanded the case for resentencing holding that a consolidated sentence under North Carolina law is a single sentence for the purposes of the career offender enhancement under the U.S. Sentencing Guidelines.

In July 2004, Davis was arrested and indicted in state court for using a handgun to rob a Burger King in Charlotte, North Carolina.  In February 2005, he also used a gun to rob a McDonald’s in Charlotte and, a day prior to that robbery, used a gun to assault an individual and rob another.  Davis was indicted for the February 2005 robberies and charged with five counts of robbery with a dangerous weapon, among other offenses.  Davis pled guilty in state court to six counts of robbery with a dangerous weapon, one count for the 2004 robbery and five counts for the 2005 robberies.  Pursuant to a plea arrangement, the charges were consolidated for judgment as one and sentenced as a class D felony.  On July 31, 2010, Davis again used a handgun to rob a Wendy’s Restaurant in Charlotte.  In district court, Davis pled guilty to three counts:  Hobbs Act robbery; use of a firearm in furtherance of a violent crime; and possession of a firearm by a convicted felon.  A Presentence Investigation Report (“PSR”) indicated that Davis qualified for “career offender enhancement” under the U.S. Sentencing Guidelines because he was at least 18 years old when he committed the robbery and had two prior state robbery offenses.  A federal probation officer then recommended that the court sentence Davis as a career offender increasing the base offense level from twenty-six to thirty-two.  At the sentencing hearing, Davis objected to the career offender enhancement arguing that he had received a “consolidated sentence” for his prior state offenses and, therefore, he did not have “at least two prior felony convictions” as required by the Sentencing Guidelines.  The district court denied Davis’ objection and applied the enhancement and sentenced him to a within-Guidelines sentence of 276 months.  Davis appealed the sentence.

The Fourth Circuit indicated that the sole issue on appeal was “whether Davis’ prior state robbery offenses qualif[ied] as ‘two prior felony convictions’ as defined by the Guidelines.”  The Fourth Circuit first noted that, according to the Sentencing Guidelines, the “existence of two prior felony convictions alone is not dispositive; the defendant must also have at least two prior sentences for those convictions” that are counted separately.   The Fourth Circuit found that when the North Carolina court consolidated Davis’ 2004 and 2005 offenses, he received a single judgment and, consequently, he came before the federal court with just one consolidated sentence.  The Fourth Circuit also provided that there was no published authority on whether a North Carolina consolidated sentence is considered a single sentence or multiple sentences under the Sentencing Guidelines that would guide the court in disregarding the plaint meaning of the Sentencing Guidelines.  The Fourth Circuit rejected the Government’s contention that the court had already decided the issue by distinguishing the cases presented by the Government.  Instead, the court provided that the language of the Sentencing Guidelines is plain and requires that there be more than one prior sentence for the career offender enhancement to apply.  As a result, the Fourth Circuit held that “where a defendant receives a ‘consolidated sentence’ . . . under North Carolina law, it is one sentence and absent another qualifying sentence, the [career offender] enhancement is inapplicable.”

Full Opinion

– John G. Tamasitis

United States v. Ashford, No. 12-4477

Decided: June 20, 2013

The Fourth Circuit held that the United States District Court for the District of South Carolina properly applied the offense level of attempted second-degree murder to James Ashford’s conviction of illegal possession of a firearm, via an applicable “cross reference” under section 2K2.1(c) of the United States Sentencing Guidelines (“USSG”).

In April 2011, James Ashford (“Ashford”), Marcus Chaplin (“Chaplin”), and the respective girlfriends of the two men became embroiled in a dispute at an apartment complex.  After the parties seemingly had resolved the dispute, Ashford retrieved a revolver that, as a convicted felon, he possessed illegally.  Ashford told “a couple of people” at the apartment complex “that the gun was for [Chaplin].”  When Ashford went to a store, Chaplin and his cousin confronted him in an alleyway, supposedly to resolve the dispute.  Ashford drew his gun, Chaplin retreated to the apartment complex with his cousin, and Ashford pursued Chaplin.  At the apartment complex, Chaplin tried to retrieve a gun from a vehicle, but failed to do so; he told Ashford he was unarmed.  However, Ashford said “I should kill you” and fired three shots, two of which hit Chaplin.  Ashford said he was “not angry” when he shot Chaplin; rather, he was “scared.”  Ashford was subsequently arrested, and pled guilty to illegal possession of a firearm as a convicted felon under 18 U.S.C. §§ 922(g)(1), 924(a)(2).

USSG § 2K2.1(c) allows a district court to substitute the offense level for a criminal offense committed or attempted in connection with such firearm possession, so long as the “cross-referenced” criminal offense qualifies as “relevant conduct” under USSG § 1B1.3(a).  This latter guideline provides four bases for determining the applicability of a cross-reference.  The first basis, USSG § 1B1.3(a)(1), applies to acts or omissions occurring “during the commission of the offense of conviction.”  The second basis, USSG § 1B1.3(a)(2), applies to certain certain acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction”; however, this subsection only applies to “offenses of a character for which § 3D1.2(d) would require grouping of multiple counts.”  Under USSG § 3D1.2(d), crimes against the person are excluded from grouping.  After a hearing, the district court substituted the offense level of attempted second-degree murder.  On appeal, Ashford argued that all four bases listed in USSG § 1B1.3(a) must be satisfied for a cross-reference to apply, and since USSG § 3D1.2(d) prohibits the grouping of crimes against the person, cross-referencing attempted second-degree murder was improper under USSG § 1B1.3(a)(2); Ashford also asserted that, even if a cross-reference did apply, the facts stated in the presentence investigation report (“PSR”) did not establish the elements of attempted second-degree murder.

The Fourth Circuit concluded that the four bases for cross-referencing under USSG § 1B1.3(a) should be read disjunctively.  Thus, even though Ashford’s substituted offense could not be grouped, attempted second-degree murder could still be substituted under USSG § 1B1.3(a)(1), as the substituted offense occurred during Ashford’s illegal possession of a firearm.  The Fourth Circuit also concluded that the PSR stated a sufficient basis for attempted second-degree murder, as Ashford reinitiated the dispute by retrieving the revolver and telling neighbors about his intentions, Ashford told Chaplin “I should kill you” before shooting him, and Ashford was “not angry” or in danger when he drew the gun and chased Chaplin—indicating “the wanton behavior that warranted an inference of malice.”

Full Opinion

-Stephen Sutherland

United States v. Hager, No. 08-4

Date Decided: June 20, 2013

The Fourth Circuit affirmed the conviction and capital sentence of appellant, Thomas Morocco Hager, stemming from Hager’s intentional killing of a victim while engaged in a drug trafficking conspiracy.

The district court separated Hager’s trial into three parts: (1) the guilt-innocence phase, (2) the death penalty eligibility phase, and (3) the sentencing phase. In the first phase, the government established that, shortly before the incident at hand, Hager shot and wounded someone while engaged in the sale and distribution of crack cocaine. Following the incident, Hager went into hiding with his girlfriend in Maryland. Fearing that White, the mother of a rival gang member’s mother, had become aware of his whereabouts, Hager decided to kill White. Hager, his girlfriend, and two other accomplices went to White’s apartment in November of 1993. After letting them in, Hager hit White in the face with a pistol, breaking her jaw. Hager and his two accomplices then took White upstairs to her bathroom, put her in the bathtub and stabbed her more than eighty times. Because the stabbing was not enough to cause her death, Hager then stood on White, forcing her head under water, until he was certain she was dead. During the murder, Hager’s girlfriend stayed downstairs with White’s thirteen-month-old daughter. When they fled the apartment, they left the thirteen-month-old alone without supervision. Hager teased one of the accomplices for being scared and bragged on them for being “soldiers” now. Hager declined to take the stand at trial. After a five-week trial, the jury unanimously found Hager guilty and eligible for the death penalty based on numerous aggravating factors. Finally, based on a weighing on aggravating and mitigating factors, the jury found that the aggravating factors sufficiently outweighed the mitigating factors and recommended that Hager be sentenced to death.

On appeal, Hager first challenged the sufficiency of the evidence to support his conviction on the grounds that the statutory provision under which he was convicted only applies to substantive drug offenses and not drug conspiracies such as the one in this case. The Fourth Circuit disagreed, finding that a conspiracy to commit a drug related offense was sufficient to sustain a conviction under the applicable provision of the United States Code. Furthermore, based on the evidence presented, the jury was entirely justified in determining that Hager killed White in an attempt to guard his long running drug conspiracy in the Washington D.C. area. The court said, “[a]ll of Hager’s apparent purposes for killing White were intertwined with his drug conspiracy.”  Even Hager’s counsel conceded that “clearly” the killing occurred during a drug conspiracy. The court further found that applicable statute, 21 U.S.C.  § 848(e)(1)(a), was not void for vagueness under the due process clause because the statute provided adequate notice to potential criminals.

Hager next challenged the district court’s rejection of his jury instruction. The district court charged the jury that to convict, they must find “that the killing was connected to the conspiracy in a meaningful way.” Hager challenged the jury instruction, insisting that the proper statement of law required the jury to find that White was killed while Hager “was then actively engaged in a drug trafficking offense…. You may not find the defendant guilty if you find…White’s death merely furthered the…drug trafficking activities.” The Fourth Circuit agreed with the district court, emphasizing that a drug conspiracy during the murder was sufficient to sustain a conviction, and that, as a whole, the district court’s instruction was “appropriately described” the necessary nexus required to sustain a conviction.

Next, Hager argues that the district court abused its discretion in treating the jurors as anonymous in the courtroom. The Fourth Circuit upheld the decision, finding that referring to jurors by number in open court was not an abuse of discretion given the numerous witnesses that feared for their safety by testifying against Hager, the seriousness of the crime charged, Hager’s involvement in organized crime, and Hager’s prior conviction for obstruction of justice. The court informed the jurors that its decision was to “protect [them] from contract in the media or other persons, curiosity seekers and the like, to protect [them] from unwanted publicity and to insure that no outside information is communicated.” Importantly, the court instructed the jury that the decision to refer to jurors anonymously should not have any bearing on the jury’s presumption of innocence. Hager also argued that referring to the jurors anonymously denied him his Sixth Amendment right to a public trial. The Fourth Circuit dismissed Hager’s concern, finding that Hager’s access to the jury list and had ability to voir dire the witnesses. Hager also argued that the district court abused its discretion in seating a particular juror after questions arose regarding the jurors’ ability to be fair and impartial. The Fourth Circuit found no abuse of discretion because, despite any questionable responses, when the judge pressed the juror on his ability to be fair an impartial, the juror agreed that he could do so.

Then, Hager argued that the district court erred by excluding mitigating testimony from his two daughters. The Fourth Circuit disagreed, finding that his daughters’ testimony that they loved their father did not speak to the Hager’s character. Furthermore, the daughters’ psychologist was allowed to testify, but Hager declined to call the psychologist as a witness. The court agreed that the videotapes that Hager sought to introduce showing interaction between Hager and his daughters contained too much “execution-impact” testimony. Moreover, the daughters were allowed to testify, but their testimony was properly limited to the character of their father, not their love for him. The court found that love for their father did not speak to Hager’s character because presumably his daughters’ love for him was not dependent on his good character.

Additionally, Hager argued that the district court erred by allowing the jury to be misled regarding sentence reduction for his co-defendants. The Fourth Circuit dismissed Hager’s argument, finding that the co-defendants made it abundantly clear during their testimony that they sought and expected to receive sentence reductions in return for their testimony.

Next, Hager challenged the district court’s denial of his challenge to the “future dangerousness” aggravating factor. Hager believed that the jury was misled in considering Hager’s future dangerousness on the basis of his behavior in a maximum-security prison specifically designed to handle the most violent criminals. The court held that this argument was properly made the jury and the jury was entitled to give it the weight that it determined appropriate. The Fourth Circuit also disagreed that the prosecutor’s argument that Hager’s horrific childhood made it more likely that he would commit violent crimes in the future misled the jury. The court found that the jury could weigh out the mitigating effects of Hager’s bad childhood with the aggravating effects of future dangerousness.

Hager also avowed that the aggravating factor of lack of remorse lacked a sufficient evidentiary basis. The jury unanimously found that Hager’s lack of remorse was an aggravating factor. Hager argues that this finding improperly placed a duty on him to testify to account for his state of mind following the killing. The Fourth Circuit disagreed, finding that the jury merely had to decide whether Hager’s actions following White’s murder indicated a lack of remorse. Even though many years passed between the murder and trial, the jury was still justified in finding that Hager lacked remorse. Furthermore, the judge instructed that the jury, following the prosecution’s argument that Hager lacked remorse, that the jury could not infer that Hager’s refusal to testify in any way indicated his culpability.

Finally, Hager argued that the district court erred by not instructing the jurors that they could recommend a death sentence only if they found, beyond a reasonable doubt, that the aggravating factors outweighed the mitigating ones. The court determined that the district court properly instructed the jury to weigh aggravating and mitigating factors, and that the jury was not required to find each aggravating or mitigating factor beyond a reasonable doubt. Therefore, the Fourth Circuit affirmed the conviction and capital sentence.

Full Opinion

– Wesley B. Lambert

United States v. Smalls, 12-6021

Decided: June 19, 2013

The Fourth Circuit Court of Appeals affirmed the district court’s order granting, in part, the defendant’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).

In September 1996, Smalls was found guilty of conspiracy to import cocaine and sentenced to life in prison. In February 2008, Smalls filed a motion for reduction, based on the 2007 crack cocaine amendments to the Sentencing Guidelines, which reduced his guideline range to 324 to 405 months. The district court granted the motion and reduced Smalls’ sentence from life to 405 months. In November 2011, Smalls filed a second motion for reduction, based on Amendment 750, which reduced his guideline range to 262 to 327 months. The district court again reduced his sentence to 327 months, the maximum sentence in the range. The district court used a form document to rule on Smalls’ motion, indicating that it granted the motion by considering the factors set forth in 18 U.S.C. § 3582(c)(2). Smalls appealed, arguing that the court erred in failing to provide an individualized explanation.

The Fourth Circuit Court of Appeals addressed whether a court ruling on a § 3582(c)(2) motion must provide an individualized explanation. The court cited to United States v. Legree for the presumption that a court deciding such a motion has considered the pertinent factors, unless evidence suggests otherwise. Consideration is implicit in the court’s ultimate ruling. A full explanation for its decision is not necessary.  However, Smalls contended the district court did err in his case for three reasons. First, Smalls argued that Legree did not address the question of whether a district court must provide some reasoning in support of its grant or denial of a § 3582(c)(2) motion. However, the Court of Appeals concluded that Legree addressed that exact issue and did not find that the district court erred even though it provided no individualized explanation.

Second, Smalls argued that the facts of his case overcame the Legree presumption that the district court considered all relevant factors in ruling on his motion. However, the court concluded that, like Legree, Smalls failed to offer any new mitigating circumstances to rebut the presumption. As in Legree, the same district judge presided over Smalls’ original sentencing and his § 3582(c)(2) proceeding. Therefore, he was familiar with the mitigating factors set forth at the time. Further, it did not matter that fifteen years elapsed between Small’s original sentencing and his motion, in comparison to four years in Legree. Smalls filed, and the same district judge addressed, several motions during the fifteen-year period, suggesting that the judge remained familiar with the facts of Smalls’ case. Further, it did not matter that Smalls had no opportunity to submit evidence of his exemplary post-sentencing conduct by way of a reply brief before the court decided his motion. The court concluded that new arguments cannot be raised in a reply brief and, therefore, the district court did not fail to consider all relevant factors properly before it. And finally, the court rejected Smalls’ argument that his case resembles not Legree, but another case where the defendant and the government jointly recommended a sentence reduction and the district court refused to adopt that agreed-upon reduction or explain its refusal to do so. In Smalls’ case, the Government never agreed to the extent of the reduction he requested. The Government requested a reduction only to the top of the amended guideline range, and the district court granted that request.

Third, Small argued that Legree is no longer good law because of the Supreme Court’s decisions in Gall v. United States and Dillon v. United States. The Court of Appeals concluded that while Gall makes clear that a sentencing court must explain its reasoning when initially sentencing a defendant, it says nothing about § 3582(c)(2) proceedings. In Gall, the district court was required to explain its reasoning on the basis of 18 U.S.C. § 3553(c), a provision which does not apply to § 3582(c)(2) proceedings and applies at the time of sentencing, not at the time of sentence modification. The Court of Appeals also concluded that while Dillon did note that courts deciding § 3582(c)(2) motions are to consider applicable § 3553(a) factors, Dillon did not create that requirement. Rather, § 3582(c)(2) itself instructs courts to consider the § 3553(a) factors. Courts do not necessarily have to consider those factors on the record. Because Legree governs and the facts of Smalls’ case fail to overcome its presumption, the court held the district court’s explanation sufficient and affirmed the judgment

Full Opinion

– Sarah Bishop

United States v. Otuya, No. 12-4096

Decided: June 19, 2013

The Fourth Circuit affirmed the conviction of Okechukwo Ebo Otuya on one count of conspiracy to commit bank fraud, two counts of substantive bank fraud, and one count of aggravated identify theft for his role in a scheme defrauding Bank of America of hundreds of thousands of dollars.  Otuya was sentenced to a 96-month prison sentence, which he appealed on several grounds to include his conviction and, in the alternative, his sentence.

In 2007, Otuya and several coconspirators were involved in an elaborate scheme to defraud Bank of the America through the use of stolen checks. Otuya and his partners would drive through affluent residential neighborhoods and steal mail out of roadside mailboxes searching for credit card convenience checks.  The conspirators would then pay local college students for access to their bank accounts and ATM cards so that they could process the stolen checks and then deposit the checks into the purchased student accounts and withdraw the funds.  Otuya and four co-defendants were indicted in September 2010.  Three of the co-defendants plead guilty and the fourth was convicted by jury trial.  A jury returned a verdict convicting Otuya on all counts charged and the district court, during sentencing, began its guidelines range calculation by noting that the base offense level for Otuya’s crimes was seven.  The district court then considered three enhancements relevant to the appeal before the Fourth Circuit.  The first was a twelve-level enhancement that the district court applied because it found that the intended amount of loss from the fraud exceeded $200,000.  The second enhancement was a four-level enhancement because the offense involved 50 or more victims.  The last enhancement was a three-level on the grounds that Otuya was a manager or supervisor in an offense involving five or more participants.  These enhancements coupled with Otuya’s criminal history category resulted in a guidelines range of 63 to 78 months for the bank fraud conspiracy and substantive bank fraud counts.  The court selected a within-guidelines range of 72 months for these counts, to run concurrently.  The court also imposed a sentence of 24 months for the aggravated identify theft count, which resulted in a total sentence of 96 months.   Otuya appealed the sentence.

Otuya also appealed his conviction on two separate grounds.  Prior to trial, the government moved to admit evidence that was discovered in Otuya’s backpack at the time of his arrest.  The government filed its motion pursuant to FRE 404(b)(2) to introduce of other bad acts.  Specifically, the government sought to introduce evidence found within the backpack that provided further evidence related to a modified version of the fraud.  The court admitted the evidence because the contents of the backpack “arose out of the ‘same series of transactions as the charged offenses’” and related to the on-going conspiracy.  In the alternative, the government asserted that the evidence was admissible because it went to show identity rather than character evidence through other bad acts.  Otuya renewed his objection to this evidence when it was brought up at trial.  Otuya also challenged his conviction for aggravated identity theft.  Otuya asserted that 18 U.S.C. § 1028A(a)(1), which supplies the law for the charge, imposes a mandatory consecutive two-year prison sentence against one who “during and in relation to any felony violation enumerated in subsection (c) [including bank fraud], knowingly . . . uses, without lawful authority, a means of identification of another person.”  Otuya argued that the use of the phrase “without lawful authority” means that a defendant must use another person’s identification without the person’s consent and Otuya had consent to use the college students’ identification.

The Fourth Circuit first rejected Otuya’s objection to the evidence in the backpack.  The court held that evidence was admissible because the government sustained its burden and proved (1) the evidence concerned acts “intrinsic to the alleged crime” or, in the alternative, (2) it was offered for non-character purpose to prove identity.  The Fourth Circuit also summarily rejected Otuya’s challenge to the aggravated identity theft conviction.  The court succinctly held that “no amount of consent from a coconspirator can constitute ‘lawful authority’ to engage in the kind of deplorable conduct that Otuya engaged in.”  Finally, the Fourth Circuit addressed Otuya’s several challenges to the sentence.

First, Otuya challenged the twelve-level enhancement on the ground that Otuya’s offense involved an intended loss amount in excess of $200,000.  The Fourth Circuit upheld the district court’s calculation because the court made a “reasonable estimate” that the intended loss reasonably foreseeable to Otuya was in excess of $200,000.  Next, the court took up Otuya’s challenge to the four-level enhancement for a crime having fifty victims or more.  The main argument Otuya made was that the district court counted as victims several individual account holders whose losses the bank reimbursed and, as such, they should not be considered victims because they did not suffer any actual loss.  The district court, in its decision, noted the circuit split on this issue and then decided that those who were reimburse were, nonetheless, victims.  However, the Fourth Circuit chose to address the issue on an alternative basis and relied on the fact that Otuya’s conduct created several other victims, pursuant to U.S.S.G. § 2B1.1 cmt. n.4(C) that provides an additional definition for victim that includes those who had undelivered mail taken and were the intended recipient of undelivered U.S. mail.  As a result, the Fourth Circuit upheld the district court’s decision by identifying a number of individuals who were victims of Otuya’s stealing mail from mailboxes.  Finally, the Fourth Circuit addressed Otuya’s imposition of the three-level enhancement for his role as a manager or supervisor in the offense.  The Fourth Circuit held that, given the facts presented at trial, enough evidence was available to prove that Otuya was intimately involved in the planning and directing of the scheme.

Full Opinion

-John G. Tamasitis

United States v. Baker, No. 12-6624

Decided: June 13, 2013

The Fourth Circuit affirmed the District Court for the Eastern District of Virginia’s decision rejecting Baker’s motion to vacate, set aside, or correct his sentence on the ground that his counsel was unconstitutionally ineffective.

On March 3, 2008, a police officer stopped a vehicle that had a broken taillight and an expired license plate. Mario Baker (“Baker”) was operating the vehicle and Dashawn Brown (“Brown”) was in the front passenger seat. Upon checking Baker’s driver’s license, the officer learned that he had an outstanding federal arrest warrant. He then summoned back-up and, upon another officer’s arrival, arrested Baker. Thereafter, the arresting officer turned Baker over to another officer and focused his attention on Brown. Upon the officer’s command, Brown exited the vehicle but then began to walk away. The officer then commanded Brown to put his hands on the vehicle and a search was performed, uncovering a handgun. Brown then attempted to reenter the vehicle, claiming that he wanted to retrieve his cellphone—which was on the passenger-side floorboard. A struggle ensued and the officer wrestled Brown to the ground, arresting him for possessing the firearm. He then searched Brown incident to the arrest, finding multiple narcotics, a large amount of cash, and a digital scale on his person. After securing Brown in the police car, the officer then searched the passenger compartment of Baker’s vehicle, where he found 20.6 grams of heroin, .24 grams of crack cocaine, 12.2 grams of methadone, and a burnt marijuana joint. He also found another handgun in the glove box. Based on the evidence uncovered during the search of the vehicle, Baker was convicted of various federal firearm and drug offenses. Although Baker’s lawyer filed several motions prior to trial, he never filed a suppression motion challenging the search of Baker’s vehicle. Following his conviction, Baker appealed to the Fourth Circuit. After Baker filed his opening brief, the day before the government filed its response brief, the Supreme Court decided Arizona v. Gant, which held that, under the Fourth Amendment, the “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Baker’s convictions and sentence were affirmed on August 7, 2009. At no point did Baker’s counsel argue that the search of Baker’s vehicle violated the Fourth Amendment under Gant. Baker, proceeding pro se, subsequently filed a motion to vacate, set aside, or correct his sentence, asserting four claims for relief—all of which the district court rejected—denying a certificate of appealability on all claims. The Fourth Circuit, however, granted a partial certificate of appealability to consider the question of whether Baker’s lawyer was ineffective in failing to raise a Gant argument on direct appeal.

On appeal, before conducting its analysis on Baker’s ineffective assistance of counsel claim, the Fourth Circuit addressed the Supreme Court’s decision in Gant and its effect upon searches incident to an arrest as it relates to vehicle searches. Importantly, the court noted that Gant left unaltered other exceptions that might authorize police to search a vehicle without a warrant even when an arrestee is secured beyond reaching distance of the passenger compartment and it is unreasonable to expect to find any evidence of the crime of arrest in the vehicle. Most relevant to this appeal was the so-called automobile exception, which permits a warrantless search of a vehicle when there is probable cause to believe the vehicle contains contraband or other evidence of criminal activity. Next, the court addressed Baker’s contention that his lawyer was unconstitutionally ineffective in failing to challenge the search of his vehicle under Gant on direct appeal. Under the first prong of the Strickland test, the Fourth Circuit found that Baker’s lawyer was not deficient in failing to challenge the evidence because the search was plainly justified under the automobile exception as there was probable cause to search the vehicle following the officer’s finding a gun, drugs, and a digital scale on Brown’s person. Lastly, the court rejected Baker’s argument under the second prong of Strickland, finding that the alleged deficiency did not prejudice Baker because the evidence obtained during the search was not subject to suppression, pursuant to the Fourth Amendment exclusionary rule’s good-faith exception, as the officers were following the law as it existed at the time the search was conducted.

Full Opinion

– W. Ryan Nichols

United States v. Marco Antrione Cherry, Jr., No. 12-4263

Decided June 13, 2013

The Fourth Circuit Court of Appeals affirmed the defendant’s convictions of various firearm and drug crimes. The court held that the Speedy Trial Act precludes dismissal of an untimely indictment when a defendant fails to move for dismissal prior to trial. The court also held that although the district judge’s comments to the jury were erroneous, they did not rise to the level of plain error.

On March 9, 2010, police officers pulled over Lamont Jordan’s vehicle, in which defendant Marco Cherry was a passenger. Cherry attempted to push one of the officers, a struggle ensued, and Cherry attempted to flee. The officer activated a Taser on Cherry and recovered Ecstasy bills and a nine-millimeter pistol from the ground as Cherry stood up. Cherry was charged with various firearm and drug crimes on July 12, 2010 and released from jail on April 1, 2011 after completing his state sentence. On April 6, 2011, the U.S. District Court in Norfolk held a detention hearing and ordered that Cherry be detained pending further proceedings. On May 4, 2011, the grand jury issued an indictment charging Cherry with the crimes set forth in the complaint. The district court set the case for trial on June 30, 2011. However, prior to trial, Cherry’s court-appointed attorney filed a motion to withdraw, which the court granted and appointed another attorney. Cherry then filed a motion to suppress, which the court denied, and a motion to continue his trial, which the court granted. No motions were filed under the Speedy Trial Act. The court ultimately held the trial on September 20, 2011. The trial lasted for two days and when the jury finished deliberating, the judge thanked the jury and, in doing so, alluded to the existence of inadmissible evidence. The defense counsel subsequently polled the jury and each juror replied in the affirmative that it was their verdict.

Cherry argued for reversal of the verdict on the basis of (1) the district court should have dismissed the indictment as untimely under the Speedy Trial Act, notwithstanding his failure to move for its dismissal prior to trial and (2) the district court’s comments to the jury revealing his criminal history before the jury could be polled constituted plain error.

First, the court explained that the Speedy Trial Act requires that a defendant be indicted within thirty days of arrest and tried within seventy days from the later of the filling of the information or indictment or the defendant’s initial appearance before a judicial officer. The “Sanctions” section of the Speedy Trial Act states that failure to timely bring a defendant to trial constitutes a waiver of the right to dismissal under this section. The court rejected Cherry’s argument that because the waiver clause is included only in § 3162(a)(2)—the speedy trial provision of the “Sanctions” section—and not § 3162(a)(1)—the speedy indictment provision.  As such, there is no requirement that a motion under the speedy indictment provision of the Act be filed before trial. The court found the waiver clause applies to “this section”—i.e., § 3162, which governs both the speedy trial right and the speedy indictment right. Thus, a defendant who fails to move for dismissal prior to trial on the basis of an untimely indictment waives his right to move for dismissal under the speedy indictment provision of the Speedy Trial Act.

Next, the court addressed the district court’s comments to the jury.  According to the court, the Federal Rule of Criminal Procedure 31(d) provides that “after a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the juror’s individually.” Because Cherry did not object after the court revealed his criminal history, the court reviewed the lower court’s action for plain error, under which the defendant must demonstrate an error occurred, that was plain, and affected his substantial rights. The court found that the judge’s injection of remarks that might influence juror’s decisions before they may be polled individually is thus improper. Nonetheless, the court found that Cherry could not prove the error affected the outcome of the trial or probably influenced the verdicts against him. The evidence against him was overwhelming and the circumstances surrounding the erroneous remarks were strong indicia that the jury had reached a unanimous guilty verdict.

Full Opinion

– Sarah Bishop

United States v. Al Sabahi, No. 12-4363

Decided: June 12, 2013

The Fourth Circuit affirmed Appellant Al Sabahi’s conviction on four courts for knowingly possessing firearms while unlawfully present in the United States, in violation of 18 U.S.C. §§ 922(g)(5)(a) and 924(a)(2).  Al Sabahi appealed alleging that (1) he was not illegally or unlawfully present in the United States; (2) the district court committed a Confrontation Clause violation; and (3) the evidence was insufficient to support his conviction.

Al Sabahi, a Yemeni citizen, entered the U.S. on November 12, 1997.  His visa expired in May 1998.  Al Sabahi remained in the U.S. after his visa expired.  On January 10, 2003, he voluntarily registered with the National Security Entry-Exit Registration System (NSEERS).  Immigrations and Customs Enforcement then placed Al Sabahi in removal proceedings for overstaying his visa.  Al Sabahi married a U.S. citizen in August 2003.  Thereafter, he filed an I-485 application to legalize his presence in the U.S.  Al Sabahi worked at a convenience store in Littleton, North Carolina during the relevant time period.  On February 15, 2007, a Pepsi employee went to the store to remove a Pepsi cooler.  Al Sabahi placed a .9-millimeter pistol on the store’s counter during the visit and would not turn over the cooler.  The Pepsi employee called his supervisor who came to the store, saw the gun, realized Al Sabahi would not release the cooler, and called the chief of the Littleton Police Department.  Two months later, Al Sabahi was stopped at a traffic checkpoint – conducted by the police chief and other officers – while driving a gold Toyota Camry.  The car belonged to Ali Saleh, the owner of the convenience store, but Al Sabahi frequently borrowed it.  An officer saw part of a pistol grip on the car’s floorboard.  A .9-millimeter pistol was retrieved from the vehicle.  The police chief instructed that Al Sabahi be charged with carrying a concealed weapon. On May 9, 2007, another individual went to the convenience store to sell a .380 caliber handgun to Al Saleh.  Saleh was not present at the store.  Al Sabahi took cash from the register and purchased the firearm.  The seller wrote a receipt in Al Sabahi’s name.  When Saleh learned Al Sabahi had bought the gun, he informed the seller that Al Sabahi was an illegal and should not have purchased the gun.  Lee later prepared a second receipt naming Saleh as the purchaser.  Saleh testified that, on September 7, 2007, he went home and found Al Sabahi drunk, carrying the .380 caliber handgun and claiming it belonged to him.  Al Sabahi then left with the firearm.  Saleh reported the theft to the police.  The police retrieved the firearm from one of Saleh’s relatives.  These four incidents made up the facts of the four specific counts leveled against Al Sabahi.  A jur convicted Al Sabahi on all counts.

The court first addressed Al Sabahi’s argument that the district court improperly found he was unlawfully present in the U.S.  The court noted that federal regulations recognize that illegal aliens include nonimmigrants whose authorized period of stay has expired.  The court cited case law for the proposition that an alien becomes unlawfully present in the U.S., for the purposes of the statute, upon commission of a status violation.  Moreover, the court cited case law indicating that an alien who has acquired unlawful or illegal status cannot relinquish that status until his application for adjustment of status is approved.  The court concluded Al Sabahi was unlawfully in the United States at the time he possessed the firearms in question, since he remained in the country after his visa expired and his request for adjustment of status has not been approved.  Al Sabahi argued that he was “in effect ‘paroled’ via 8 U.S.C. §1182(d) when he registered through NSEERS, since federal regulations provide that aliens are not unlawfully in the United States if they are in valid parole status.  The court noted that parole is only granted to aliens who have not yet entered the U.S.  Also, the court observed that the U.S. Code authorizes the Attorney General to parole aliens into the United States temporarily for urgent humanitarian reasons or significant public benefit.  The court rejected Al Sabahi’s argument after finding that he was already present in the U.S. when registering with NSEERS, and that he had not shown any humanitarian reasons or significant public benefit warranting his parole.  Al Sabahi also argued that he was not illegally in the United States due to his I-485 application and cited a Tenth Circuit decision suggesting, in dicta, that a defendant who received a pistol after filing an amnesty application would not be illegally in the U.S. for purposes of the statute.  The court noted that while some courts had favorably cited the dicta, the Fourth Circuit has held “that the mere filing of an application for adjustment of status does not legalize the alien’s presence in the United States, and it is still a crime under § 922(g)(5), for that individual to possess a firearm.”

For this reason, the court found Al Sabahi’s argument lacked support and concluded that the pendency of his application did not alter his unlawful status at the time he possessed the firearms.

Al Sabahi also contended that the district court erred in allowing the case to proceed without waiting for an immigration judge to decide whether Al Sahabi was removable.   Al Sabahi cited 8 U.S.C. § 1229(a)(1), which states: “[a]n immigration judge shall conduct proceedings for deciding the admissibility or deportability of an alien.”  However, the court stated that this provision does not divest district courts of the ability to decide whether aliens are unlawfully present for purposes of the statute.  Therefore, the court determined that Al Sabahi’s argument lacked merit.

In addition, Al Sabahi contended that the district court violated his Confrontation Clause rights by not allowing his counsel to question government witness regarding his pending I-485 application and NSEERS participation.  The district court permitted cross-examination of the witness, but declined to permit questioning on NSEERS and the I-485 application on the basis that it was irrelevant.  The court declined to find any Sixth Amendment violation, since Al Sabah was permitted to cross-examine and had given no reason how this exclusion of testimony violated his confrontation right.

Lastly, Al Sabahi contended that the evidence was insufficient to support the jury verdict.  The court held that the substantial evidence supported the jury’s verdict for each conviction.

Full Opinion

– A. Hadden Lucas

United States v. Chatmon, No. 12-4725

Decided: June 10, 2013

The Fourth Circuit vacated and remanded the United States District Court for the Eastern District of Virginia’s decision to allow the government to forcibly medicate Chatmon in order to restore his competency to stand trial.

Chatmon was arrested and charged with conspiracy to distribute large amounts of crack cocaine and heroin. Before he could be tried, however, his attorney filed a motion requesting a formal competency evaluation. The motion was granted and the evaluation revealed that Chatmon suffered from Schizophrenia, a mental disease that rendered him “unable to understand the nature and consequences of the proceedings against him.” Consequently, Chatmon was deemed incompetent to stand trial. Thereafter, he was hospitalized and treatment was initiated to determine whether he might be restored to competency such that the criminal proceedings could go forward. Beginning in September 2011, a competency restoration evaluation was undertaken. On December 9, 2011, a final report was produced (“December Report”) confirming Chatmon’s initial diagnosis; however, the report also indicated that, although he remained incompetent to stand trial, there was a substantial probability that a period of treatment with an antipsychotic medication, known as haloperidol decanoate, could restore his competency. Following the competency restoration report, Chatmon was transferred from a restrictive movement unit to an open population unit within the treatment facility. While in the open unit, Chatmon demonstrated notable improvement in his behavior although no additional competency evaluation was undertaken. On January 10, 2012, the December Report was submitted to the parties and the district court. Based on the December Report, the government filed a motion to forcibly medicate. The motion was heard on August 29, 2011. Following the hearing, the district court issued an order permitting the government to forcibly medicate Chatmon against his will. This appeal followed.

In its review, the Fourth Circuit employed the four-part analysis provided by Sell v. United States, 539 U.S. 166 (2003). The court first addressed Chatmon’s contention that the first prong of Sell was not met because the district court incorrectly deemed his drug trafficking charge a “serious” crime. Rejecting this argument, the Fourth Circuit observed that the central consideration when determining whether a particular crime is serious enough to satisfy this factor is the maximum penalty authorized by statute. Here, because Chatmon was potentially facing life imprisonment, the court held that it was clear his drug trafficking charge was a “serious” crime under the Sell framework. Next, the court addressed Chatmon’s challenge relating to the third Sell factor, the existence of less intrusive means for restoring competency. Vacating and remanding the district court’s decision, the Fourth Circuit found that the lower court erred in its analysis of the third Sell factor. Specifically, in its analysis, the district court not only failed to actually consider less intrusive means offered by Chatmon; it also failed to recognize Sell’s specific requirement that the court “must consider” less intrusive means for administering the medication such as a court order backed by contempt sanctions.

Full Opinion

-W. Ryan Nichols

United States v. Medina, No. 12-4009

Decided: June 10, 2013

The Fourth Circuit affirmed the district court’s ruling that a diversionary disposition, in which a court sentences a criminal defendant but does not formally enter judgment against him, is a predicate conviction for the purposes of a sentencing enhancement under the United States Sentencing Guidelines (the “USSG”).

Ever Enrique Medina, a citizen of El Salvador, pled guilty to possession of a concealed weapon and possession of Marijuana in 2004. In that case, the judge issued a “probation before judgment” diversionary disposition, sentencing Medina to eighteen months of probation without entering judgment. In 2007, Medina was convicted for driving under the influence, triggering his deportation to El Salvador. Subsequently, Medina illegally reentered the United States, and was arrested in September of 2008 for driving without a valid license. He was sentenced to sixty days in jail. In 2010, Medina pled guilty to second-degree assault, stemming from an altercation in a bar where Medina alleged threatened a security officer with a knife. After sentencing on the assault charge, Immigration and Customs Enforcement Detained Medina, and a federal grand jury indicted Medina for unlawful reentry after removal under the Untied States Code. Although Medina did not contest the finding, he argued that his 2004 probation-before-judgment disposition was not a “conviction,” and thus, did not trigger a sentencing enhancement under the USSG. The district court rejected Medina’s argument, and sentenced him to thirty months in prison.

On appeal, Medina argued that the district court erred in applying the enhancement because under Maryland law, a diversionary disposition is not a conviction. The Fourth Circuit disagreed, holding that federal law applied absent a clear indication in the USSG that state law should apply. Under federal law, the court called it “beyond dispute” that the term “conviction” under the USSG includes guilty pleas followed by an entry of judgment. The court found that by not entering judgment, Medina’s 2004 guilty plea was not transformed into something other than a conviction for the purposes of the USSG. Furthermore, other immigration laws under the United States code provide that a conviction includes diversionary dispositions where “adjudication of guilty has been withheld.” Finally, the Fourth Circuit noted that its decision was consistent with all other circuits facing the issue. Therefore, the Fourth Circuit affirmed the district court’s sentence of thirty months in prison.

Full Opinion

– Wesley B. Lambert

United States v. Hasan, No. 12-4442

Decided:  May 29, 2013

The Fourth Circuit affirmed the judgment of the U.S. District Court for the Eastern District of Virginia and rejected Hasan’s challenges to his conviction of various offenses related to the trafficking of contraband cigarettes.

Hasan was involved in the trafficking and distribution of contraband black market cigarettes across interstate lines in violation of the federal Contraband Cigarette Trafficking Act (“CCTA”), which prohibits the trafficking of tobacco products to avoid payment of state taxes.  Hasan was caught up in an undercover investigation led by agents with the Federal Bureau of Alcohol, Tobacco, and Firearms (“ATF”).  The ATF alleged that Hasan was involved in a conspiracy that resulted in the purchase of nearly 40,000 cartons of untaxed cigarettes from undercover agents over a period of approximately two years.  In 2011, Hasan was indicted on six separate counts.  Prior to his trial, Hasan filed a motion to dismiss the indictment or, in the alternative, to exclude evidence collected against him on the basis that the undercover sales “constituted government conduct so outrageous as to violate his due process rights.”  The district court denied the motion.  Hasan then proceeded to agree to a bench trial, preserving his due process challenge, and was found guilty of the offenses charged, sentenced to twenty-four months of incarceration, and adopted the government’s proposed civil forfeiture order in the amount of $604,220.  Hasan appealed both the denial of his due process challenge and the court’s civil forfeiture order, asserting that the court miscalculated the amount.

The Fourth Circuit first took up Hasan’s challenge to his conviction that the undercover agents’ conduct was so outrageous that it violated fundamental notions of fairness.  The Fourth Circuit articulated the “outrageous conduct” doctrine, as set forth by the U.S. Supreme Court,  requires that in order to find a due process violation, the government conduct as issue must be ‘outrageous, not merely offensive.’  However, the Court held that this doctrine is “highly circumscribed” and the Court has never held in a specific case that the government violated the defendant’s due process rights only through outrageous conduct.  To satisfy this high standard, the court adopted the Osborne test from the Ninth Circuit which established that in order for the government conduct to be so outrageous as to offend due process it must be ‘shocking,’ or ‘offensive to traditional notions of fundamental fairness.’  The Fourth Circuit then rejected Hasan’s first contention that the multiple sales of cigarettes to him by the ATF, anticipating he would then later sell them without payment of state taxes is outrageous, per se, because ATF agents were basically distributing “contraband cigarettes.”  The court found support for its decision in both the CCTA and in Congress’ general authorization to federal law enforcement to engage in commercial endeavors in the context of undercover investigations and then use the proceeds to offset the cost of these undercover operations.  The court also summarily rejected Hasan’s claim that the ATF agents were engaged in behavior that was ‘offensive to traditional notions of fundamental fairness.’

The court next took up Hasan’s challenge to the civil forfeiture amount arguing that the court miscalculated by calculating the sum based on gross proceeds, rather than by profits realized from the scheme.  The court again rejected Hasan’s argument that the “contraband cigarettes” were a good or service that is not inherently illegal, but is sold or provided in an illegal manner and, thus, the defendant is only required to forfeit the profit gained.  The court held, for the first time to its knowledge, that “contraband cigarettes” do constitute “illegal goods” under the federal forfeiture statue 18 U.S.C. § 981, and thus triggers § 981(a)(2)(A) definition of proceeds meaning “property of any kind obtained directly or indirectly, as a result of the commission of the offense giving rise to forfeiture . . . and is not limited to the net gain or profit realized from the offense.”

Full opinion

John G. Tamasitis

United States v. Castellanos, No. 12-4108

Decided: May 29, 2013

The Fourth Circuit affirmed the judgment of the district court that Castellanos failed to prove he had a legitimate expectation of privacy in a vehicle that was holding cocaine in its gas tank and being transported on a commercial car carrier.

On September 20, 2010, Captain Kevin Roberts of the Reeves County, Texas, Sheriff’s Department was conducted a routine patrol in Pecos, Texas when he observed a Direct Auto Shippers (“DAS”) commercial car carrier at a gas station. Captain Roberts first became suspicious of a Ford Explorer (“the Explorer”) that was being transported on the DAS carrier  when he noticed that it bore a dealership plate rather than a traditional license plate.  After questioning the DAS driver, Roberts was provided the shipping documents that identified the owner of the Explorer as Wilmer Castenada.  The documents also provided that the trip origin was in California with a final destination in North Carolina.  Roberts attempted to contact Castenada with no luck.  He also attempted to verify the origin and destination of the vehicle by contacting the locations on the shipping documents, but both locations were not associated with Castenada nor were the business representatives that answered the phone aware of the delivery.  Without being able to contact Castenada, Roberts asked the DAS driver if he could search the vehicle; to which the driver acquiesced.  The initial search revealed several abnormalities and caused Roberts to insert a fiber optic scope into the vehicle’s gas tank, which revealed several blue bags floating in the tank.  Roberts then requested to take custody of the vehicle and a more in-depth search revealed “23 kilogram-sized bricks of cocaine with a street value of approximately $3 million.”    After the search, DAS informed Roberts that someone claiming to be Castenada had contacted DAS and was asking about the delivery of the Explorer.  Roberts then lured the caller by telling him that the driver of the DAS carrier had been arrested and the Explorer had been impounded.  A few days later, Roberts was told that someone identified as Castellanos had arrived in the area and was waiting for a ride to pick up the Explorer from the impound lot.  Police subsequently detained Castellanos, who had, inter alia, the title to the Explorer in his possession, the DAS tracking number for the vehicle, and other documentation linking him to the Explorer.  He initially waived his Miranda rights and told Roberts he was in the process of purchasing the vehicle from Castenada, who lived in North Carolina, and that he was instructed to pick up the vehicle and drive it to North Carolina.  After Roberts challenged the story, Castellanos discontinued the interview.  Police also seized circumstantial evidence from a co-conspirator that linked Castellanos to the vehicle.  Castellanos was indicted in the Middle District of North Carolina on one count of conspiracy to distribute cocaine hydrochloride.  Prior to trial, he attempted to suppress the search of the cocaine found in the gas tank.  The district court fueled that Castellanos had not introduced any evidence to show that he owned the Explorer and, as a result, could not object to the search of the vehicle because he had no reasonable expectation of privacy to its contents.  Castellanos entered into a conditional plea agreement and pled guilty to the sole count of the indictment, but reserved his right to appeal the district court’s decision to deny his motion to suppress the evidence.

The Fourth Circuit only addressed the issue that Castellanos could not challenge the search because he could not show that he had a reasonable expectation of privacy in the Explorer’s gas tank.  The Fourth Circuit reviewed the district court’s legal conclusions de novo because the district court had made no finding of fact.  The Fourth Circuit agreed with the Government that Castellanos “failed to demonstrate by a preponderance of the evidence that, at the time of the search, the evidence showed that he had a legitimate expectation of privacy in the Explorer.”  Though Castellanos asserted that he was purchasing the Explorer from Castenada, there was no evidence entered into the record to prove that fact.  Rather, Castellanos did not enter the title of the Explorer into evidence nor did he provide any bill of sale.  He also failed to show that anyone had give him permission to use the vehicle or any other right with respect to the vehicle.  In the end, Castellanos failure to provide any evidence definitively linking him to the Explorer forced the court to hold that Castellanos failed to support a conclusion that he “had anything more than a distantly attenuated connection to the Explorer” and, as such, had no reasonable expectation of privacy in its contents.  Therefore, he could not challenge the warrantless search on those grounds.

Full opinion

– John G. Tamasitis

Wolfe v. Clarke, No. 12-7

Decided: May 22, 2013

Following a complex and extended procedural history, the Fourth Circuit concluded that the Commonwealth of Virginia failed to satisfy the terms of the U.S. District Court for the Eastern District of Virginia’s conditional writ, an operative retry-or-release directive.  The Court of Appeals next held that the district court abused its discretion in barring the reprosecution of the petitioner, Justin Wolfe.  As such, the Fourth Circuit vacated the district court’s Order Enforcing Judgment and remanded with instructions that the lower court enter a substitute order.

In 2002, a jury in Prince William County, Virginia, found Wolfe guilty of the capital murder of Danny Petrole, of using a firearm in the commission of a felony, and of conspiring to distribute marijuana. According to the Prosecution, Wolfe allegedly hired his friend and fellow drug dealer, Owen Barber, to murder Petrole.  Barber, the only witness to testify concerning the “for hire” element, entered into a plea deal in exchange for his testimony.  Wolfe was eventually sentenced to death for his murder conviction and received a combined sentence of 33 years for his drug and firearm convictions. Wolfe appealed, and while Wolfe’s petition was pending, Barber executed an affidavit repudiating his trial testimony and exculpating Wolfe from the murder-for-hire scheme. Barber subsequently sought to recant the statements in his exculpatory affidavit, insisting he testified truthfully at trial and had falsified the prior affidavit.  Consequently, the district court dismissed Wolfe’s petition. Wolfe timely appealed that dismissal, and the court vacated in part and remanded for further proceedings. On remand, the district court determined Wolfe was entitled to an evidentiary hearing.  At this hearing, Barber testified, exculpated Wolfe, and his testimony was credited by the court.  The court ruled that the prosecutors in Wolfe’s trial had contravened his Fourteenth Amendment due process rights by failing to disclose favorable and material evidence and alling Barber to testify, despite having information indicating his testimony was false.  Therefore, the court granted habeas corpus relief to Wolfe.  His “conviction and sentence” were vacated.  Wolfe thereafter moved to clarify whether the relief granted on his capital murder conviction also encompassed his firearm and drug convictions. The court issued a Relief Order, explaining that Wolfe was entitled to a new trial on all of the original charges, and it accorded the Commonwealth the option of either providing Wolfe with a new trial, or releasing him unconditionally from custody within 120 days.  The Commonwealth appealed, and in Wolfe II the court affirmed the judgment of the district court.

On the same day the court’s Wolfe II mandate issued, Wolfe was transferred from the Sussex State Prison to the Prince William County Adult Detention Center, for a status hearing that set the date for his bond hearing.  The following day, the Commonwealth’s attorney and several investigating officers interviewed Barber.  In the interview, recorded without Barber’s knowledge, the agents suggested that because his testimony in the federal habeas proceedings was inconsistent with his trial testimony, he had breached his plea agreement and could face reinstatement of his original capital murder charge.  In the meantime, a Prince William County grand jury returned new indictments against Wolfe, charging him with six additional offenses in addition to the original charges.  Based primarily on the Barber interview, Wolfe filed a motion to dismiss in the circuit court, contending that the prosecutors had engaged in “gross prosecutorial misconduct” because they threatened Barber with the death penalty.  The district court subsequently entered its Order Enforcing Judgment, concluding that the Commonwealth had not satisfied either compliance option specified in the Relief Order.  Specifically, Wolfe had not been released unconditionally and he had not been retried within 120 days of the Relief Order.  Concerning the Barber interview, the lower court determined that “extraordinary circumstances” had been shown warranting a bar to Wolfe’s retrial. The court found that the Barber interview “incurably frustrated the entire purpose” of the federal habeas corpus proceedings, and “permanently crystalized” the constitutional violations infecting Wolfe’s trial, causing Barber to be legally unavailable to testify in a retrial. Consequently, the district court ordered Wolfe’s release within ten days and barred the Commonwealth from reprosecution.  The Commonwealth appealed.

Thus, the Fourth Circuit faced two grave issues: whether the Commonwealth complied with the Relief Order, and if so, whether the district court abused its discretion in barring Wolfe’s retrial.  The Court of Appeals first held that the district court did not abuse its discretion in ruling that the Commonwealth neglected to satisfy either compliance option.  The Commonwealth had a choice: it could either provide Wolfe with a new trial or unconditionally release him from custody.  The Commonwealth maintained that since Wolfe’s 2012 bond hearing, his status was that of a pretrial defendant who had been denied bond.  The Fourth Circuit, however, disagreed, holding that “releasing Petitioner from the custody of the Virginia Department of Corrections to Prince William County for the purposes of retrial did not constitute releasing Petitioner ‘unconditionally from custody.’”  The Commonwealth’s other option for compliance with the Relief Order was to provide Wolfe with a new trial “within 120 days of the date of the Order.”  The Commonwealth maintained that as long as proceedings had been commenced it had satisfied its obligation. In the alternative, they suggested that the 120-day retrial period did not begin to run until the issuance of the mandate in Wolfe II.  Both contentions were rejected.  First, the Fourth Circuit determined that the retrial had to be completed within the 120 day time limit.  Second, concerning whether the retrial period ran from the issuance of the mandate, the court explained that the stay pending the Commonwealth’s appeal paused or halted the 120-day deadline imposed by the Court to provide Wolfe a new trial. When that stay was lifted, the deadline clock resumed where it left off when the stay was granted and there were 36 days remaining.  The court agreed with the Commonwealth’s complaint that the completion of a retrial of a complex death penalty case within thirty-six days was a practical impossibility; however, they could have, and did not, seek either a clarification or an extension.

The Commonwealth next contended that the district court abused its discretion in barring Wolfe’s retrial. The Fourth Circuit agreed, asserting that preventing the retrial of a state criminal case is the “strongest of medicine” and should be utilized sparingly. The Court held that such limited and narrow circumstances were not present; therefore, the district court abused its discretion in barring Wolfe’s retrial. According to the court, any scenario presenting circumstances sufficiently extraordinary to warrant federal interference with a State’s reprosecution of a successful § 2254 petitioner will be extremely rare, and will ordinarily be limited to situations where a recognized constitutional error cannot be remedied by a new trial.  Here, the constitutional claims for which Wolfe was awarded habeas corpus relief were readily capable of being remedied in a new trial.

Full Opinion

-Kara S. Grevey

United States v. Jones, No. 12-4211

Decided:  May 29, 2013

Affirming the United States District Court for the Eastern District of Virginia, the Fourth Circuit held that the district court properly admitted certain hearsay statements made by the defendant’s cousin and uncle over prison telephone calls, properly impaneled a juror with alleged ideological biases, properly grouped only one of the defendant’s two witness tampering counts with his aiding and abetting false claims counts, and properly calculated the total loss wrought by the defendant’s fraudulent scheme.

Jermar Jones, a former Navy serviceman, orchestrated fraudulent marriages involving several of his shipmates.  Between 2006 and 2008, Jones and a codefendant would arrange marriages between the sailors and foreign nationals.  As a result of these fraudulent arrangements, the sailor would receive a monthly stipend to support his spouse, the foreign national would gain the opportunity to become a permanent U.S. resident, and Jones would receive a fee from the foreign spouse or “back pay” from sailor—that is, funds received during the period between the marriage and the stipend’s commencement.  After the Naval Criminal Investigative Service (NCIS) began investigating the marriages, Jones intimidated other participants in the scheme, urging them not to cooperate with the investigation.

A grand jury issued an eleven-count indictment against Jones, including with three counts of aiding and abetting false claims to the U.S. Navy and two counts of witness tampering.  During jury selection, one of the jurors revealed that she hosted a conservative talk radio show that discussed immigration issues; though the juror admitted that her show was ideologically conservative, she also stated that she could approach the case impartially.  Jones moved to strike the juror for cause, and the district court denied the motion.  At trial, the government introduced jailhouse phone conversations involving Jones, his cousin Otis Jones, and, in one instance, Jones’s uncle Austin Jones.  The district court admitted statements of Otis and Austin over the Jones’s objection.  A federal jury convicted Jones on every count.  At the sentencing phase, Jones raised an objection to the presentence report, which only grouped one of the witness tampering counts with the aiding and abetting false claims counts.  The district court overruled the objection, sentencing Jones to serve concurrent fifty-two month sentences on each count, and ordering him to pay $134,702.39 in restitution for the monthly stipend fraud.

On appeal, the Fourth Circuit held that the district court properly impaneled the juror with an alleged conservative bias toward illegal immigration.  Jones argued that, because his criminal activity involved facilitating illegal immigration, the juror could not have determined Jones’s guilt impartially.  However, the Fourth Circuit noted the each juror’s mind need not be a “tabula rasa,” and that jurors must simply be able to put aside biases in order to reach a determination based on the evidence presented; furthermore, the juror asserted she could decide the case impartially, and Jones failed to sufficiently challenge her assurances.  The Fourth Circuit also held that the district court properly admitted the statements made by Otis and Austin.  On appeal, Jones argued that admission of these statements violated the Confrontation Clause, characterizing the statements as testimonial and asserting that he had no opportunity to cross-examine the declarants at or before trial.  However, the Fourth Circuit found these statements were not testimonial, characterizing them as “casual conversations.”  With regard to the first sentencing issue, the Fourth Circuit noted that, when a defendant is convicted of both the underlying offense and an obstruction of justice offense—like witness tampering—the obstruction offense is grouped with the underlying offense under the Federal Sentencing Guidelines, with a resulting increase in offense level.  However, where there are multiple obstruction offenses, the Sentencing Guidelines advise the district court to group only the most serious obstruction count.  Thus, the district court properly grouped only one of the two witness tampering counts—specifically, the more serious one.  With regard to the other sentencing issue, Jones asserted that his restitutionary payments should be reduced, as some of the participants in the fraudulent scheme received stipend payments after making confessions to the NCIS.  Jones argued that these losses were not reasonably foreseeable, as required by the Sentencing Guidelines; however, the Fourth Circuit rejected this argument, finding it “entirely foreseeable that losses caused by a fraudulent scheme will not cease the moment that coconspirators confess to the fraud.”

Full Opinion

– Stephen Sutherland

United States v. Grant, No. 12-4037

Decided:  May 9, 2013

The Fourth Circuit vacated the decision of the United States District Court for the Eastern District of Virginia, finding that the court abused its discretion by ordering Nicole Grant to adhere to a special condition on her probationary restitution payments without first determining the effects of the condition on Grant’s financial circumstances.

In 2009, Grant pled guilty to a count of theft of government property in excess of $1,000 in the Northern District of Florida.  Grant had received Supplementary Security Income (“SSI”) from the Social Security Administration (“SSA”) after her eligibility for SSI had ended.  On October 28, 2009, the district court sentenced Grant to a probationary sentence.  The court required that, inter alia, Grant pay $42,152 in restitution to the SSA in monthly installments and provide the probation office with requested financial data.  In January 2010, the district court transferred jurisdiction of the case to the Eastern District of Virginia.  In 2010 and 2011, Grant received tax refunds totaling around $2,900 and $3,300, respectively.  In November 2011, Grant’s new probation officer asked the district court to apply a special condition to Grant’s probation, under which Grant would have to “apply monies received from income tax refunds . . . to the outstanding court ordered financial obligations.”  In a subsequent hearing before the Eastern District of Virginia, Grant argued that the special condition would be improper, as her financial conditions had not improved materially.  The government characterized the tax refunds as windfall benefits that created a material change in Grant’s financial circumstances.  The government also noted that, if the court later determined that Grant could not afford her restitution obligations, it could adjust her payment amounts.  Without deciding whether a material change in Grant’s financial circumstances had occurred, the district court ruled in favor of the government, and Grant appealed.

The Fourth Circuit discussed the history of criminal restitution and relevant probationary conditions, noting that under the Mandatory Victims Restitution Act of 1996 (MVRA), criminal defendants convicted of certain offenses—including offenses against property—must be ordered to pay restitution under 18 U.S.C. § 3664.  Under § 3664(f)(2), the court must take the defendant’s financial circumstances into account when determining the manner and schedule of restitutionary payments.  Furthermore, under § 2664(k), the restitution order must require the defendant to “notify the court and the Attorney General of any material change in the defendant’s economic circumstance that might affect the defendant’s ability to pay restitution.”  The Court may then proceed to adjust the payment schedule under certain circumstances.  In this case, the Fourth Circuit noted that the district court ordered Grant to adhere to a special condition without determining the effect it would have on her financial circumstances.  The Fourth Circuit rejected the government’s characterization of tax refunds as windfall benefits, noting that “[m]illions of Americans living paycheck to paycheck rely on tax refunds every year to catch up on their bills and pay for or save for other one-time expenses.”  The Fourth Circuit also dismissed the government’s argument that the court could simply change the amount of restitutionary payments in the future if it found them inappropriate, noting that this “has no bearing on whether the challenged order was authorized in the first place.”

Full Opinion

– Stephen Sutherland

United States v. Davis, No. 12-4088

Decided May 1, 2013

The Fourth Circuit Court of Appeals reversed the district court’s order requiring the defendant to pay restitution for all property stolen and damaged as a result of his house burglary.

On March 23, 2009, the defendant, Jervis Ricky Davis (“Davis”), broke into a home and stole a handgun, bag of ammunition, and several pieces of jewelry.  The police recovered all of the stolen items except for the firearm. Davis entered into a plea agreement in which he pled guilty to possession of a stolen firearm and agreed to make restitution to all victims. The United States Probation Office conducted a presentence investigation to determine the amount of restitution the defendant owed. Its presentence investigation report (“PSR”) noted the homeowner’s total requested restitution of $685.00 to cover window damage and the unrecovered firearm’s insurance deductible. However, the PSR also noted the restitution was non-compensable. Under the Victim and Witness Protection Act as interpreted by the Supreme Court in Hughey v. United States, restitution is limited to the count of conviction unless specifically agreed upon by both parties in the plea agreement. Because the homeowner was not specifically identified as the victim in the plea agreement nor associated with Davis’ count of conviction, the district court had no authority to compensate the homeowner. As such, the PSR noted that the requested restitution of $685.00 was non-compensable.  However, the court disregarded that portion of the PSR and amended its judgment to order Davis to pay the $685.00 restitution. Davis appealed the restitution order although he did not previously object to it in the district court.

Davis challenged the restitution order on the basis that the order required repayment of losses that were not caused by the conduct underlying the offense of conviction or consented to in the plea agreement. Under the Victim and Witness Protection Act, a district court may order restitution to a victim that has been proximately harmed by the defendant’s criminal commission or to any other person recognized by the parties in the plea agreement.  First, the court analyzed whether Davis’ underlying conduct for committing the offense proximately caused the homeowner’s loss. The court followed the analysis set forth in United States v. Blake, where owners of stolen credit cards were denied compensation. The credit card thief was convicted of fraudulent use of unauthorized access devices, an offense for which actual theft is not required. Therefore, the losses incurred by the card owners as a result of the defendant’s theft, rather than his fraudulent use of such cards, did not represent harms proximately caused by the convicted conduct. Likewise, the Fourth Circuit denied the homeowner victim status in this case. The court noted that the offense of possessing a stolen firearm did not require an element of theft and, as such, the court did not find the homeowner was a victim entitled to compensation under the Act’s proximate causation prong.  Next, the court analyzed whether Davis consented to repayment in his plea agreement.  Under applicable law, a person who is not a proximately harmed victim may still be entitled to restitution where the parties have specifically granted this right in the plea agreement. The court searched for such a provision in Davis’ plea agreement and, in light of governing contract principles, found no provision specifically identifying the homeowner as the victim or person to whom money is owed. Therefore, the court held the district court erred in ordering restitution. Lastly, the court analyzed whether the district court’s error affected the parties’ substantial rights. Because Davis failed to object to the restitution order in the district court, the appellate court can only reverse where there has been plain error. The court did, in fact, find plain error where the restitution order was not authorized by case law or either prong of the Act and, therefore, affected Davis’ substantial rights. Therefore, the court reversed the restitution order.

Full Opinion

– Sarah Bishop

United States v. Springer, No. 12-7687

Decided: April 29, 2013

The Fourth Circuit affirmed the U.S. District Court for the Eastern District of North Carolina that found that Springer was ineligible for civil commitment because the government had failed to prove that he suffered from a serious mental illness under the Walsh Act.

Springer, a thirty-four year old male, had been convicted of six sex offenses between 1997 and 2004.  Four of those offenses involved victims who were thirteen years or younger.  In 2010, Springer was sentenced to 37-months in prison and a lifetime of supervised release following his failure to comply with the federal Sex Offender Registration and Notification Act after he moved from New York to North Carolina.  Approximately six months before his scheduled release, the government classified Springer as “sexually dangerous” and moved to have him civilly committed pursuant to the Walsh Act.  The district court held an evidentiary hearing to determine if Springer qualified under the Walsh Act commitment criteria.  Both parties stipulated that Springer satisfied the “conduct prong” and so the evidence focused on whether he satisfied the “serious mental illness” and “volitional control” prongs.  The district court – finding that Springer’s expert’s testimony more persuasive than the government’s experts – determined that the government failed to meet its burden under.  Springer was released from prison and the government appealed.  Prior to the appeal, the U.S. District Court for the Northern District of New York determined that Springer violated the conditions of his supervised release by failing to spend the required amount of time at his group residence and by engaging in a “consensual intimate relationship” with another adult who was also a convicted sex offender.  Because of these violations, Springer was sentenced to another 13 months in prison and the Bureau of Prisons again certified Springer as meeting the criteria for civil commitment.

The Fourth Circuit first addressed whether Springer’s most recent arrest and imprisonment rendered the case moot because, regardless of their decision, Springer was going to remain in prison until the district court decided the second civil commitment case.  The court concluded that Springer’s re-incarceration did not preclude the court from providing “effectual relief” in the current case because Springer’s current sentence, if he met the criteria for civil commitment, could be extended past the 13 months he now faced in prison.  In the alternative, the court held that because the Bureau of Prisons attempted to civilly commit Springer a second time after the district court’s initial ruling and during the pendency of appeal fell into an exception to the mootness doctrine for “wrongs ‘capable of repetition, yet evading review.’”  Next, the court took up whether it should remand the case in light Springer’s recent violation.  The court stated that it generally orders a remand for consideration of new evidence when there is a basis for doing so in a rule or statute; however the Walsh Act has no provisions for when remand is appropriate and the federal courts had not yet had an opportunity to confront the issue.  The court held that Springer’s violation of his supervised release was not material to the issue of whether Springer currently suffers from a serious mental illness – in this case pedophilia – and, therefore, did not require the Fourth Circuit to remand the case back to the district court.  After concluding that the case was ripe for review, the court then turned its attention to the actual merits of the appeal.  The government argued that the district court’s erred in its decision that Springer did not have a serious mental illness because its findings were contrary to the diagnostic criteria for pedophilia provided by the Diagnostic and Statistical Manual of Mental Disorders (“DSM”).  The government also argued that the district court incorrectly concluded that Springer no longer suffered from pedophilia, gave too much credit to Springer’s testimony that he was no longer attracted to prepubescent children, and improperly relied on Springer’s medical expert because the expert failed to consider pertinent conflicting evidence.  The Fourth Circuit held that it was within the district court’s discretion to not follow the DSM in deciding whether Springer suffered from a serious mental illness and provided great deference to the district court’s determination regarding the credibility of Springer’s expert.  Lastly, the court held that the record showed that Springer’s expert did not fail to consider the contested evidence in making his determination and, therefore, the district court did not commit error in holding that Springer did not suffer from a serious mental illness.

Full Opinion

– John G. Tamasitis

United States v. McLean, No. 11-5130

 Decided April 23, 2013

The Fourth Circuit Court of Appeals affirms the district court’s convictions of an interventional cardiologist for health care fraud and making false statements in connection with the delivery of or payment for health services.

This case involved an interventional cardiologist, John McLean  (“McLean”), practiced privately at Peninsula Regional Medical Center (“PRMC”), where he performed cardiac catheterizations and coronary stent procedures. PRMC began investigating McLean in 2006 after a quality control review revealed McLean had performed inappropriate stent procedures in 13 cases. PRMC then conducted its own review, which confirmed that McLean had performed inappropriate stents in approximately half of 25 randomly selected cases, after which McLean resigned on account of an alleged eye condition.  In 2007 the United States subpoenaed patient files from McLean’s practice, but when FBI agents arrived at his office, they found the files stacked on McLean’s desk and a shred bin nearby.

At trial, two expert cardiologists for the government testified that coronary stents were not medically necessary until a certain threshold. One of the experts testified that McLean had grossly overstated the level of blockage in the patient files he reviewed, often over-recording stenosis for patients. In addition, testimony from PRMC staff revealed that McLean overstated the stenosis shown in angiograms. Patients testified that McLean had recorded symptoms in medical records that the patients had never experienced. The government also offered peer comparison data which showed that the patients McLean chose to stent received nearly twice as many stents on average as the patients of his peers and these stent reimbursement claims increased dramatically in the same year that McLean purchased a 1.7 million dollar condominium.

On appeal, McLean challenged his convictions on the basis that (1) the health care fraud statute was unconstitutionally vague as applied to him; (2) that the evidence was insufficient to support his convictions on all counts; (3) and that his trial was prejudiced by the government’s failure to disclose impeachment evidence and certain erroneous evidentiary rulings committed by the district court.  First, the court analyzed whether the statute was unconstitutionally vague on the basis of whether an ordinary person would understand that the health care fraud statute prohibited McLean’s charged conduct. The court did not find it unconstitutionally vague, recognizing that it is a simple fraud statute and not a medical malpractice statute. Therefore, although the statute does not enumerate every possible fraud scheme, an average person would understand that this kind of conduct is prohibited.  Second, the court analyzed whether the jury’s verdict was supported by “substantial evidence” on the basis of whether evidence existed that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt. The court evaluated the evidence supporting the health care fraud charge and then the evidence supporting the false statement charge. For both charges, the specific intent to defraud could be inferred from the totality of the circumstances and did not need to be proven by direct evidence. In addition, sufficient evidence existed to rule out non-criminal explanations for the overstatements such as McLean’s expertise, the fact that his eye condition did not affect his central vision, and the fact that the cases at issue were not borderline cases.  In rebutting this evidence, McLean argued that the government’s pattern evidence was not probative of fraud because a study existed where the average error rate was not much lower than his own. However, the court found that the import of the pattern evidence was not simply that McLean repeatedly performed medically unnecessary stents, but rather that he repeatedly overstated blockage by a wide margin. For the false statement charge, the court again found that sufficient evidence existed on account of the sheer disparity between the stenosis McLean recorded and what the angiograms showed, as well as the other evidence of fraud previously discussed.  Third, the court analyzed whether the trial was prejudiced by failure to produce impeachment evidence to McLean on the basis of whether such evidence was favorable to the accused, suppressed by the government, or material. The court found that PRMC’s settlement with the government had little impeachment value, no witnesses in McLean’s case were parties to the settlement, and that disclosure of such settlement would not likely have altered the jury’s verdict. Although McLean also challenged the government’s permission to conduct voir dire on his expert, the court found it was proper on account of the fact that McLean did not respond with an appropriate written summary under Rule 16 for any expert testimony that will be used at trial. McLean also challenged the government’s objections to several aspects of his expert testimony; however, the court again finds no abuse of discretion because McLean did not provide appropriate notice and the expert’s personal observations were not admissible under Federal Rule of Evidence 702. Finally, the court analyzed McLean’s challenge of the procedural reasonableness of his sentence and how the amount of loss was established. In calculating the loss, the district court considered factors such as the reimbursement received not only for the unnecessary stent procedures, but also the follow up tests, as well as how much the hospital repaid to federal programs in connection with the settlement. The Fourth Circuit found that both were properly included as losses from relevant conduct, because neither the follow-up tests nor the hospital’s losses would have occurred but for the medically unnecessary stents McLean performed.

Full Opinion

– Sarah Bishop

United States v. Abdulwahab, No. 11-5093

Decided: April 29, 2013

Adley H. Abdulwahab appealed his conviction and sentence for several crimes related to a fraudulent investment scheme. The Fourth Circuit reversed Abdulwahab’s conviction for money laundering, but affirmed the conviction on all other counts.

Abdulwahab’s conviction stemmed from a fraudulent investment scheme where Abdulwahab and two co-conspirators sold interests in life insurance polices through their company A&O. Abdulwahab joined A&O in 2005 as the main salesperson for the fraudulent securities, and with his co-conspirators, misrepresented numerous critical facts about the company and misappropriated in excess of one-hundred million dollars, personally receiving in excess of eight million dollars. In addition, Abdulwahab misrepresented several important facts about his past on documents relating to the sale of securities, including falsely stating that he held an economics degree from Louisiana State University and failing to disclose a 2004 guilty plea for the felony forgery of a commercial instrument. In late 2006, state regulators began to investigate A&O under suspicion that it was selling unregistered securities. To shield the company from investigation, A&O undertook a sham sale to a company partially owned by Abdulwahab. In 2010, Abdulwahab was convicted of: (1) money laundering, (2) conspiracy to commit money laundering, (3) mail fraud, (4) conspiracy to commit mail fraud, and (5) securities fraud. The court sentenced Abdulwahab to 720 months imprisonment. Abdulwahab appealed all convictions and the length of the sentence.

On appeal, Abdulwahab first argued that the district court erred in denying his motion for acquittal relating to the money laundering conviction. The Fourth Circuit agreed, finding that certain counts of money laundering were barred by the “merger problem” identified by the Supreme Court in United States v. Santos. A conviction for money laundering may be based only on the “proceeds” of the illegal activity, which the Fourth Circuit defined as the “net profits” of the fraudulent scheme. Thus, certain expenses and payments made to carry out the fraud, while serving as evidence of the fraud, do not constitute money laundering because they are not “net profits.” In particular, the Fourth Circuit held that district court erred in determining that commission payments to sales agents were “proceeds,” finding instead that they were part of the “essential expenses” of the illegal activity. Since the Fourth Circuit reversed the money laundering conviction, and the error was not harmless, the court remanded Abdulwahab’s case for resentencing.

Second, Abdulwahab argued that his conviction for conspiracy to commit money laundering also suffers from the same “merger problem” as the substantive money laundering conviction. The Fourth Circuit, reviewing for plain error, rejected his argument. The court found that Abdulwahab’s sham sale of A&O provided sufficient evidence for a rational jury to conclude that the transactions were intended to promote the continuation of the fraudulent investment scheme. Furthermore, there was no “merger problem” because the payments Abdulwahab received from the sham sale were not included in the “essential expenses” of the scheme, but rather were part of the general plan of deception to defraud investors.

Third, Abdulwahab argued that the district court erred in denying his motion for acquittal regarding the convictions for mail fraud, conspiracy to commit mail fraud, and securities fraud because the evidence was insufficient for a jury to conclude that he knew of and intended to participate in a scheme to defraud. The Fourth circuit disagreed, citing the numerous misrepresentations Abdulwahab made to investors personally. In addition, Abdulwahab’s extensive participation in the sham sale provided evidence that was “well beyond what was necessary to support his convictions.”

Finally, Abdulwahab argued that the district court erred in holding him responsible at sentencing for losses of funds that were invested with A&O before he became an equity partner. The Fourth Circuit disagreed, finding that the Abdulwahab became a part of the conspiracy when he joined the company as a salesperson and agreed to make false representations to induce investors to invest their money with A&O. The court emphasized that as a salesperson, Abdulwahab knew that investor funds were being procured by fraud and in concert with his co-conspirators to continue the scheme.

Full Opinion

– Wesley B. Lambert

United States v. Kivanc, No. 12-1321

Decided:  April 26, 2013

In this federal suit for forfeiture in rem against certain properties the government believed to be derived from health care fraud and involved in money laundering, the Fourth Circuit held that the United States District Court for the Eastern District of Virginia properly denied various motions by the claimants in interest, properly granted an evidentiary motion by the government, and properly rejected certain jury instructions proposed by the claimants.  The Fourth Circuit thus upheld a jury finding that the properties were subject to civil forfeiture.

In April 2005, the Federal Bureau of Investigation (“FBI”) began investigating Dr. Mert Kivanc, a physician, for overprescribing controlled substances.  In October 2006, the FBI uncovered evidence that Dr. Kivanc had conducted a health care fraud scheme involving the drug Remicade.  An FBI forensic accountant traced $701,507 in fraudulent payments to Dr. Kivanc’s business account at Wachovia Bank.  Dr. Kivanc fled the country for Turkey in November 2007.  He was indicted for distributing and conspiring to distribute controlled substances in October 2010.  Meanwhile, Dr. Kivanc’s parents, the claimants, bought a residential property in Fairfax, Virginia in 1993.  In September 2005, Kivanc’s parents transferred the property to Dr. Kivanc.  Dr. Kivanc began renovating the property in February 2007, but transferred the property back his parents in May 2007.  However, Dr. Kivanc continued to pay for renovations until late October 2007:  After the deed transferring the property to back to his parents was recorded, Dr. Kivanc paid about $430,000 for renovations from his Wachovia business account.  Dr. Kivanc also wrote four checks to his dad between November 2006 and May 2007; one of these checks was traced to his bank account at PNC Bank, which was seized by the government in July 2011.  On June 15, 2011, the government filed a complaint for forfeiture in rem against the residential property, claiming it was subject to forfeiture as property derived from health care fraud and involved in money laundering. Kivanc’s parents then filed a claim of interest for both properties.  The jury issued a verdict in favor of the government, and claimants appealed.

On appeal, the parents argued that the district court erred on the following matters:  Denying the claimants’ motion to dismiss based on the relevant statute of limitations; denying their motion to allow Turan Kivanc and Dr. Kivanc to testify remotely from Turkey, due to Turan’s health and Dr. Kivanc’s unwillingness to return to the United States; admitting certain hearsay statements against interest made by Dr. Kivanc but refusing to admit, under Federal Rule of Evidence 106, an affidavit filed by Dr. Kivanc and a letter he wrote to his attorney; rejecting the claimants’ proportionality instruction with regard to the money laundering issue, and rejecting the claimants’ theory of the case instruction; and denying claimants’ motion for judgment as a matter of law, on the grounds that the government failed to offer enough evidence that Dr. Kivanc committed health care fraud and money laundering.  The Fourth Circuit rejected all of these arguments.

First, the court noted that the government had five years from the discovery of the alleged offense to initiate a suit.  Though the FBI began investigating Dr. Kivanc for overprescribing controlled substances in April 2005—which fell outside the five-year statute—the government did not discover the Remicade fraud until October 18, 2006.  Second, the court concluded that, due to conflicting expert analyses of Turan Kivanc’s ability to travel, the district court did not err in denying his parent’s motion for remote testimony; furthermore, to allow Dr. Kivanc to testify remotely would “make a mockery of our system of justice.”  Third, the court ruled that the challenged statements against interest were properly admitted.  Some of them were not actually hearsay, and the rest were corroborated by certain circumstances indicating trustworthiness:  Dr. Kivanc made the statements while at his office discussing work-related matters with his employees, some of the statements involved Dr. Kivanc’s then-existing plans, and the statements exposed him to criminal liability.  The court also ruled Federal Rule of Evidence 106 inapplicable to Dr. Kivanc’s affidavit and letter:  While this Rule covers partially-produced writings or recorded statements, Dr. Kivanc’s documents involved witness testimony and conversations.  Fourth, the court found the parents’ proportionality instruction a misstatement of the law as to money laundering, as legitimate funds commingled with funds involved with laundering money are also subject to forfeiture.  Furthermore, the parents’ theory of the case also included an incorrect proportionality instruction, as well as the prejudicial assertion that “the [g]overnment has not met is burden on tracing the [PNC Bank] funds.”  Lastly, the court concluded that the government proved, by a preponderance of the evidence, that “Dr. Kivanc knowingly and willfully committed or conspired to commit health care fraud,” and that he had the specific intent to conceal illegal acts through money laundering.  Thus, the district court properly denied the parents’ motion for a judgment as a matter of law.

Full Opinion

– Stephen Sutherland

United States v. Allen, No. 12-4168

Decided April 26, 2013

The Fourth Circuit Court of Appeals affirmed the plaintiff’s conviction of conspiracy to possess crack cocaine with the intent to distribute, finding substantial supporting evidence and no error in its pretrial evidentiary rules. However, the Court of Appeals vacated the plaintiff’s sentence and remanded for resentencing in accordance with the Fair Sentencing Act, which applies to all sentences imposed after its enactment, regardless of the fact that plaintiff’s underlying crime was committed before its enactment.

In June 2010, the defendant, Raymond Allen (“Allen”), was convicted of conspiring to possess fifty grams or more of cocaine base with intent to distribute and sentenced to ten years’ imprisonment. Allen was one of eleven defendants named in a fifteen-count indictment. Evidence at trial showed that street dealers bought from three suppliers, who bought from Chrissawn Folston, who would then buy in bulk from another supplier or from Allen. On May 17-18, 2010, Folston drove twice to Ashville in order to make a purchase from Allen. Folston was driven both times by his girlfriend, who was a government informant, and had first-hand knowledge of both transactions.  As such, Allen does not dispute the fact that these two buy-sell transactions occurred; he only disputes the evidence regarding his knowledge of the conspiracy. To this the government responded with evidence indicating Allen’s awareness of the drug distribution network. While Allen was detained awaiting trial, he had a conversation with a street dealer wherein he admitted they would all “be partying” if the others had kept their mouths shut and had not told on everyone.

On appeal, Allen challenged his conviction on the basis that (1) there was insufficient evidence to support his knowledge of the drug rink, (2) the court erred in denying his pretrial motions, and (3) the court erred in imposing the ten-year mandatory minimum sentence given that Congress passed the Fair Sentencing Act of 2010 prior to his sentencing. First, the court analyzed the factors for finding a defendant guilty of conspiracy. The court recognized that a conspiracy may be proven wholly by circumstantial evidence and even a defendant’s minimal involvement is sufficient. Although the court agreed with Allen that evidence of a single sale is insufficient on its own to infer knowledge of a conspiracy,  it did recognize that it was relevant on the conspiracy issue. Therefore, considering that the sale and the fact that it involved 3.5 ounces of crack cocaine, which is enough to produce over 1,000 “crack rocks”, the court held that a reasonable juror could infer that when Allen sold Folston such a substantial quantity of crack cocaine over the course of two days he knew the drug was going to be further distributed. This inference is further buttressed by Allen’s jailhouse conversation where he indicated at least some awareness of “others” in the scheme.  On the second issue, the court reviewed the district court’s denial of Allen’s two pretrial motions. In the first, Allen moved to see his codefendants’ Presence Reports (PSR) and sealed sentencing memorandum. The court recognized that PSR’s have always been jealously guarded by the federal courts and customarily requires the court to first perform an in camera review before granting a defendant’s request to view it. However, the court need only perform the review once the defendant plainly articulates how the information contained in the PSR will be both material and favorable to his defense. When Allen requested the PSR’s, he referenced the fact that one codefendant was responsible for 361.1 grams of crack cocaine but was only sentenced in the memorandum for at least 1.4 grams of crack cocaine but less than 2.8 grams, which led to a reduction in his sentence. However, the court affirmed the district court’s reasons for denying the request. Although evidence of a “sweetheart deal” is relevant to a witness’s credibility, it does not mean that a defendant can go on a fishing expedition every time a codefendant pleads guilty. In the second motion, Allen moved to call a criminal defense expert to help explain the potential significance of all of the indicted codefendants reaching plea agreements with the government. However, the court again affirmed the district court’s denial of the motion on the basis that expert testimony introduced solely for the purpose of undermining the credibility of the codefendant witnesses is not the function of an expert. This is not the type of expert testimony required under Rule 702 of the Federal Rules of Evidence of scientific or technical expertise.  Finally, the court vacated the district court’s application of the ten-year mandatory minimum sentence for offenses involving fifty or more grams of crack cocaine. Although the district court was correct in recognizing the fact that the Fair Sentencing Act does not apply retroactively, it failed to incorporate the reasoning of the recent Supreme Court decision in Dorsey v. United States. In that case the Supreme Court held that the Fair Sentencing Act applies to all sentences imposed after its enactment, regardless of when the underlying crime was committed. Therefore, because the Act was passed before Allen was sentenced and he did not possess 280 grams of crack cocaine necessary for the ten-year mandatory minimum sentence to apply under the Fair Sentencing Act, the district court erred by sentencing Allen to the mandatory minimum.

Full Opinion

– Sarah Bishop

United States v. Medina-Campo, No. 12-4402

Decided:  April 18, 2013

The Fourth Circuit held that the United States District Court for the District of Maryland properly applied a sixteen-level sentencing enhancement to Trino Medina-Campo’s prison term, as his felony conviction under an Oregon statute proscribing unlawful delivery of a controlled substance qualified as a “drug trafficking offense” warranting such enhancement.

After he was deported to Mexico in 2005, Medina-Campo returned to the United States.  On April 1, 2011, he was arrested for driving under the influence.  Medina-Campo subsequently pled guilty to a charge of illegal entry after deportation, and the district court sentenced him to fifty months in prison.  Section 2L1.2 of the federal Sentencing Guidelines (“Guidelines”), titled “Unlawfully Entering or Remaining in the United States,” provides for a sixteen-level sentencing enhancement if the defendant reentered the United States unlawfully after a felony conviction for “a drug trafficking offense for which the sentence imposed exceeded 13 months.”  In 2001, Medina-Campo pled guilty to unlawful delivery of a controlled substance in Oregon, after which he was sentenced to a twenty-four month prison term.  The district court therefore applied the sixteen-level sentencing enhancement to Medina-Campo’s offense level.  Medina-Campo appealed, arguing that his Oregon felony conviction did not constitute a “drug trafficking offense.”

On appeal, Medina-Campo argued that the Oregon felony of unlawful delivery of a controlled substance did not, categorically speaking, constitute a “drug trafficking offense” for purposes of sentence enhancements for prior convictions.  Medina-Campo asserted that the relevant statute penalized solicitation, attempted delivery, and actual delivery of controlled substances; that solicitation is a separate crime from attempted delivery or actual delivery; and that, because the statute covered separate crimes, the court had to apply the modified categorical approach to the review of his prior conviction.  Medina-Campo maintained that the documents relevant under this approach—i.e., the indictment and the petition and order evincing his guilty plea—lacked details necessary for the court to determine whether he committed solicitation, attempted delivery, or actual delivery.  Medina-Campo then noted that, though an Application Note to § 2L1.2 noted that the statute “includes[s] aiding and abetting, conspiring . . . and attempting . . . to commit [a drug trafficking offense],” it did not mention solicitation; furthermore, though the term “include” indicates a non-exhaustive list, the crime of solicitation was insufficiently similar to the enumerated offenses to be covered by the Application Note.  Thus, according to Medina-Campo, solicitation cannot be considered a “drug trafficking offense” under § 2L1.2, rendering the documents related to his conviction too indeterminate for a sentence enhancement.

The Fourth Circuit rejected Medina-Campo’s arguments, stating that solicitation, aiding and abetting, conspiracy, and attempt are “simply different ways to commit the broad, unitary offense of drug trafficking described in the Guidelines.”  The court therefore applied the categorical approach to the Oregon statute, concluding that unlawful delivery of a controlled substance constitutes a drug trafficking offense—even if the defendant merely committed solicitation.

Full Opinion

– Stephen Sutherland

United States v. Cone, No. 11-4888 and No. 11-4934

Decided: April 15, 2013

Consolidating appeals from a joint-criminal trial, the Fourth Circuit affirmed the District Court for the Eastern District of Virginia with respect to the district court’s evidentiary rulings and one defendant’s argument that a conviction on a particular count was not supported by sufficient evidence. Based on the facts of the case, with respect to both defendants, the court vacated the district court’s decision regarding conspiracy convictions that were prosecuted on a theory of “material alteration” and further vacated a conviction on a particular count, with respect to one defendant, based on insufficient evidence. Based on the vacation of several counts of conviction, the Fourth Circuit remanded for sentencing.

Co-defendants, Zhao and Cone, were married immigrants from China, living and working in the United States. They formed JDC Networking, Inc. (“JDC”), a licensed distributor of products made by and for Cisco. JDC conducted frequent business with a Hong Kong based company, allegedly operated by members of Zhao’s family, known as Han Tong. As a Cisco “registered partner,” JDC was prohibited from purchasing Cisco products for resale from outside the US. Yet, trial records reflect that, from 2004 through 2010, JDC frequently imported shipments from Han Tong containing both genuine Cisco products and fake imitations. During that time frame, as evidenced by emails introduced at trial, several JDC customers returned products because they believed that they were counterfeit Cisco products. Also during that time frame, Zhao filed income tax returns indicating that JDC was struggling and that she was only earning a small salary; however, to the contrary, JDC was thriving by purchasing Cisco products (or purported Cisco products) in China for resale at rates considerably below the expected market price. Beginning in 2006, U.S. Customs and Border Patrol (“CBP”) began intercepting shipments, however, that investigation went cold until 2010. In 2007, Zhao and Cone’s marriage began to deteriorate. Upset with their faltering marriage, Cone sent a series of emails to Zhao implicating both defendants in the counterfeiting conspiracy at issue. In 2010, CBP got a new lead in their investigation leading them to Zhao. CBP agents, along with Immigration and Customs Enforcement agents, executed a search warrant at Zhao’s residence and a storage unit maintained by her, which resulted in a wealth of evidence. During a post-arrest interview, Zhao eventually confessed to selling “fake” Cisco products. Subsequently, Cone was interviewed and arrested after confessing that JDC received and resold both real and counterfeit Cisco products from Han Tong. With respect to “authentic” Cisco products, Cone further admitted that he and Zhao altered the products, representing that they were higher end products than they actually were. Following their joint-trial, the jury returned a mixed verdict, convicting Cone of conspiracy, convicting Zhao of conspiracy along with several other charges. Cone was sentenced to 30 months imprisonment. Zhao was sentenced to 60 months imprisonment. Both Zhao and Cone appealed several of the district court’s rulings; the Fourth Circuit consolidated the appeals.

The Fourth Circuit held that “material alteration”—one of the three theories of conspiracy, which the prosecution relied on to support criminal liability under the federal counterfeiting statute—is not a crime as defined by the statute. In so holding, the court found that Zhao and Cones’ acts of obtaining a genuine Cisco product bearing a genuine mark and altering the product, but not the mark, was not a criminal act as defined under the statute. The court was not persuaded by the fact that, in the context of civil cases, courts have found liability based on a material alteration theory under the Lanham Act. Zhao’s conviction for money laundering was also vacated because the court found that the “material alteration” theory may have formed the basis for her money laundering convictions. Similarly, because the court found that the district court may have utilized some of the acts under the material alteration theory in arriving at the sentences, the Fourth Circuit vacated and remanded the sentences with respect to both Zhao and Cone. Zhao and Cone, also challenged the introduction of JDC customer emails complaining that JDC products were “fake.” The Fourth Circuit found that the evidence was properly introduced, as non-hearsay, to prove that the defendants were on notice that their products may be fraudulent, but that the district court committed error by not issuing a limiting instruction to the jury. However, in light of the context of a twelve-day jury trial in which the government adduced overwhelming evidence of guilt, the court held that his was harmless error.

The Fourth Circuit also addressed several of Zhao’s individual challenges. First, she challenged the sufficiency of the evidence, with respect to two counts, upon which she was convicted. The court quickly concluded the jury had ample evidence on which to convict her on with respect to one count. However, with respect to the other count, the court found that testimony from a client that packaging was not genuine, standing alone, was not sufficient to sustain a conviction under the statute for a counterfeit mark on the goods in the package. Next, the court addressed Zhao’s argument that the district court committed reversible error by admitting Cone’s out-of-court statements against her in violation of the Confrontation Clause. Applying Fourth Circuit precedent, the court held that the substitution of Zhao’s name with “another individual” was sufficient to protect her rights under the Confrontation Clause.  Addressing Cones’ individual challenge to his conviction for conspiracy to import misdeclared goods, the court found that, because the record reflects Cones’ active participation in the overall scheme, the government adduced sufficient evidence to support a conviction

Full Opinion

– W. Ryan Nichols

United States v. Price, No. 12-4010

Decided: March 29, 2013

Price pled guilty to accessing the Internet with the intent to view child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). The district court found that Price’s offense involved more than 600 images of child pornography, and thus imposed a five-level sentencing enhancement pursuant to 2G2.2(b)(7)(D). On appeal, Price challenged the five-level enhancement, arguing that duplicate images should not be counted when applying 2G2.2(b)(7). In the alternative, Price argued that sending the same image multiple times via email does not constitute duplication. The Court of Appeals rejected Price’s arguments and affirmed his sentence.

First, the Court of Appeals held that any image should be counted when applying the 2G2.2(b)(7) enhancement without regard to its originality so long as the image depicts child pornography and is relevant to the underlying conviction.

Next, the Court of Appeals noted that reproducing pornographic images with the click of a send button as opposed to the use of a photocopier still has the effect of increasing the number of images of child pornography, and thus held that where the same image is emailed multiple times, every image sent to every person should be counted when applying the number of images enhancement.

In summary, the Court of Appeals affirmed Price’s sentence, finding that the district court correctly counted each image in each email separately without regard to the uniqueness of the image when it applied the five-level enhancement under 2G2.2(b)(7)(D).

Full Opinion

– Kassandra Moore

United States v. Graham, No. 09-5067

Decided:  March 29, 2013

William Leonard Graham appealed his conviction of one count of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846.  On appeal, Graham asserted reversible error on three bases:  (1) an alleged violation of the Court Reporter Act, 28 U.S.C. § 753(b); (2) the admission of statements by coconspirators recorded during wiretapped conversations; and (3) a life sentence that allegedly contravenes the Constitution.  The Fourth Circuit rejected Graham’s three contentions and affirmed the district court’s judgment.

Graham’s first argument on appeal is based on the fact that the Government introduced numerous recordings of wiretap conversations among Graham’s codefendants in which Graham was not a participant.  On appeal, the Fourth Circuit appointed appellate counsel for Graham, and because none of the recordings played during trial were recorded or transcribed by the court reporter during their presentation to the jury, the appointed counsel was concerned that he had incomplete knowledge of the trial record that could impede his representation of Graham on appeal.  Therefore, the Fourth Circuit granted a consent motion to rescind the briefing order, and the district court subsequently held an evidentiary hearing to determine which of the recordings were originally played for the jury during Graham’s trial.  Despite the district court’s conclusion identifying the recordings that were played at trial, Graham argued that the court reporter’s failure to transcribe the contents of the wiretap conversations played to the jury during trial constituted a violation of the Court Reporter Act (“CRA”), 28 U.S.C. § 753(b).  The Fourth Circuit reviewed the district court’s compliance with the CRA de novo and concluded that it did not need to resolve the issue because Graham could not satisfy the elements needed to obtain a new trial based on transcript errors, as described in its decision in United States v. Brown.  Specifically, the Court found that the district court’s findings with respect to the recordings “were amply supported by the evidence presented at the [evidentiary] hearing and enabled Graham to ‘perfect [his] appeal.’”  Therefore, Graham could not establish the prejudice necessary to substantiate his claim under the CRA.

Next, “Graham ague[d] that the district court erred in admitting the wiretap conversations of his coconspirators under Federal Rule of Evidence … 801(d)(2)(E) because the tapes merely captured ‘idle chatter’ between them about Graham’s past debt for marijuana, and because the conversations were not in the course, or in furtherance, of a conspiracy.  The Court reviewed the district court’s admission of the statements for abuse of discretion and noted that the “existence of the three prongs of admissibility for coconspirator statements … must be supported by a preponderance of the evidence.”  (citation omitted).  On this issue, the Court first addressed Graham’s contention “that the district court erred by not making explicit findings on the existence of a conspiracy prior to admitting the statements.”  The Court dismissed this argument, finding that “a trial court is not required to hold a hearing to determine whether a conspiracy exists before admitting statements under the rule, and the court need not explain the reasoning behind the evidentiary ruling.”  (citation omitted).  Second, the Court assessed Graham’s argument “that each of the five recordings played for the jury was nothing more than ‘profanity laden conversation’ about collecting a debt from Graham” and that the conversations could not constitute coconspirator statements.  The Court found that even though Graham was not captured in any of the calls between the coconspirators that were recorded during the Government’s investigation leading up to the case, “and even though there was adversity between Graham and his coconspirators, each call played at trial contained discussions that rendered them ‘in furtherance’ of the overall conspiracy.”  Therefore, the Court ultimately found the district court’s admission of the statements to be neither erroneous nor an abuse of discretion.

Finally, Graham challenged his mandatory life sentence imposed by the district court judge after the Government informed the judge that Graham faced a mandatory life sentence because it had filed an information under 21 U.S.C. § 851 based on Graham’s three prior felony offenses.  Graham argued that his life sentence contravenes the Constitution.  The Court rejected this argument, finding that it was bound by the Supreme Court’s decision in Almendarez-Torres v. United States, which holds that Graham’s argument cannot be sustained.

Full Opinion

– Allison Hite

United States v. Woods, No. 11-4817

Decided: March 18, 2013

Woods was convicted of numerous charges arising from a tax fraud scheme. On appeal, he argued that his trial was prejudiced by three errors: (1) that the district court improperly restricted his constitutional right to testify in his own defense, (2) that the prosecutor committed reversible error by making an improper statement during closing argument, and (3) that the district court’s instructions to the jury were improper. The Court of Appeals found that, while two errors occurred during the Woods’ trial, neither constituted reversible error. As such, the Court affirmed Woods’ convictions.

Woods first argued that he was effectively denied his constitutional right to testify in his own defense because the district court repeatedly sustained the government’s objections during his testimony and otherwise limited his presentation of evidence. The Court of Appeals reviewed the entire record and concluded that the district court did not abuse its discretion in its evidentiary rulings, did not act arbitrarily, and did not impose limitations on Woods’ testimony that were disproportionate to the legitimate evidentiary and trial management concerns. As such, the Court held that the district court did not deprive Woods of his constitutional right to testify in his own defense.

Woods also alleged that he was prejudiced by an improper statement that the prosecutor made during closing argument; specifically, by the prosecutor’s argument that Woods had lied under oath. The Court first noted that since Woods did not object to the prosecutor’s statement at trial, plain error review applied, under which Woods must show that the district court committed plain error and that the error affected his substantial rights thereby impacting the outcome of the trial. The Court then reviewed the record and found that, in light of the volume of evidence of Woods’ guilt, the one improper statement by the prosecutor did not violate Woods’ substantial rights and thus did not warrant reversal of his convictions.

Woods also contested the jury charge on the grounds that the district court improperly declined to include his requested character evidence instruction and improperly instructed the jury on the statutory elements of an offense. The Court of Appeals rejected these arguments finding that, in light of the strength of the government’s case in comparison to the defense evidence, the jury would have returned guilty verdicts with or without the requested character instruction, and that, considering the jury charge as a whole, the instructions accurately stated the statutory elements of the offense at issue.

Finally, Woods argued that his convictions should be vacated because the cumulative effect of the alleged errors prejudiced the outcome of his trial. The Court of Appeals rejected this argument holding that it could not conclude that the two errors that occurred during Woods’ trial prejudiced his case so as to justify the unusual remedy of reversal based on cumulative error.

In summary, the Court of Appeals found that Woods’ trial was affected by two errors, but held that those errors, when considered both individually and cumulatively, do not warrant reversal of Woods’ convictions.

Full Opinion

– Kassandra Moore

MacDonald v. Moose, No. 11-7427

Decided: March 12, 2013

William Scott MacDonald challenged the district’s court denial of his writ of habeas corpus. The Fourth Circuit Court of Appeals vacated the district court’s judgment and remand for an award of habeas corpus. The court held that MacDonald had been prosecuted under a facially unconstitutional statute.

On the evening of September 23, 2004, MacDonald met with a seventeen year old girl. At one point during the evening, MacDonald asked the girl to perform a sexual favor on him. MacDonald also asked the girl to have sex. The girl refused both requests, and she then drove MacDonald home. Nearly three months later, MacDonald accused the girl of sexually assaulting him. Detectives interviewed the girl, and she gave a very different version of events. The detectives credited the girl’s version of events and charged MacDonald, with, among other things, felony criminal solicitation. At trial, McDonald asked the Virginia circuit court to dismiss the solicitation offense on the ground that the predicate felony —an anti-sodomy provision — was unconstitutional. MacDonald argued that under Lawrence v. Texas, all state statutes that prohibit “consensual sodomy between individuals with the capacity to consent” are facially invalid. On July 25, 2005, the circuit court denied MacDonald’s motion to dismiss. The following day, the court found MacDonald guilty of solicitation (via the anti-sodomy provision). Thereafter, MacDonald appealed his conviction through the Virginia state court system, but he was unsuccessful. On September 16, 2009, MacDonald filed a habeas corpus petition in the Eastern District of Virginia. The court denied his petition, and MacDonald filed a timely appeal to the Fourth Circuit.

On appeal, MacDonald argued that Lawrence v. Texas compelled the facial invalidation of the anti-sodomy provision under the Fourteenth Amendment. The Fourth Circuit agreed. The court stated, “[W]e adhere to the Supreme Court’s holding in Lawrence by concluding that the anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.” Therefore, the court reversed the district court’s judgment and remanded for an award of habeas corpus relief.

Full Opinion

-Graham Mitchell

United States v. Rangel-Castaneda, No. 12-4408

Decided: March 7, 2013

The Fourth Circuit held that convictions under Tennessee’s statutory rape statute, which sets the age of consent at eighteen, do not categorically qualify for the crime-of-violence sentencing enhancement established at U.S.S.G. § 2L1.2(b)(1)(A)(ii).

At the age of fifteen the defendant, who was born in Mexico, settled illegally in Tennessee.  In April 2009, Rangel was convicted in Tennessee state court of “aggravated statutory rape” for having sex with his then sixteen-year-old girlfriend, who was twelve years his junior.  The victim stated that she willingly participated in the relationship and that Rangel thought she was eighteen.  Rangel received a suspended two-year prison sentence.  Rangel was subsequently convicted of illegal reentry in federal district court and again deported to Mexico in September 2009.  Once more Rangel returned to the United States unlawfully, this time settling in North Carolina.  In 2010, he was convicted in state court of driving while impaired and failing to register as a sex offender.  Rangel was then indicted in federal court for one count of illegal reentry by an alien who was removed after an aggravated felony conviction.  He pleaded guilty in June 2011.  At a sentencing hearing, the district court held that Rangel’s Tennessee statutory rape conviction constituted a “crime of violence” pursuant to the sentencing enhancement codified at U.S.S.G. § 2L1.2(b)(1)(A)(ii).

In Taylor v. United States, the Supreme Court held that where Congress has not indicated how a prior offense enumerated in a sentencing enhancement statute is to be interpreted, it should be understood to refer to the “generic, contemporary meaning” of the crime.  The age of consent is central to the conception of statutory rape in every jurisdiction.  The majority of American jurisdictions set the general age of consent at sixteen years old, while Tennessee sets the age of consent at eighteen years old.  The Fourth Circuit concluded that the “generic, contemporary meaning” of the term “statutory rape” in U.S..S.G.. § 2L1.2 is sixteen.   Tennessee’s higher age of consent is overbroad and thus does not qualify for the crime-of-violence sentencing enhancement.  The Fourth Circuit also refused to affirm the sentencing enhancement on the alternative basis that a statutory rape conviction constitutes a “forcible sex offense” or an “aggravated-felony” under the Tennessee statute.

Full Opinion

-Jenna Hendricks

United States v. Mann, No.12-6590

Decided:  March 4, 2013

The Government appealed the district court’s decision to reduce the Defendant’s sentence under 18 U.S.C. § 3582(c)(2), contending that the district court erred in its interpretation of its original sentencing ruling and that the district court could have made additional findings in its resentencing determination.  The Fourth Circuit found that the district court judge, who also presided at the Defendant’s original trial and sentencing, was entitled to deference in his sentence reduction analysis, and the Court found that the judge’s interpretation of his original ruling was reasonable in light of the record.  Additionally, the Court found that the district court judge was not obligated to make any new findings at the resentencing hearing and that he did not error in exercising the discretion afforded to him under § 3582(c)(2) by not making any such additional findings.  Based on these determinations, the Court affirmed the district court’s decision.

This case was based on the Defendant’s motion for a sentence reduction in light of the United States Sentencing Commission’s 2011 amendments to the Sentencing Guidelines that were originally used by the district court to sentence the Defendant to 252 months’ imprisonment for his jury conviction of one count of possession with intent to distribute cocaine base and one count of distribution of cocaine, both in violation of 21 U.S.C. § 841(a)(1) (2006).  At the time of these amendments, the Defendant had been serving his sentence for approximately thirteen years, and his motion relied on these amendments, which retroactively lowered the penalties for crack cocaine offenses by raising the minimum crack cocaine quantity necessary to justify the base offense level that the Defendant was sentenced under.

The Fourth Circuit reviewed the district court’s decision to reduce a sentence under § 3582(c)(2) for abuse of discretion, the district court’s ruling as to the scope of its legal authority under § 3582(c)(2) de novo, and the district court’s factual determinations at the resentencing hearing for clear error.  The Court first found that while the record of the sentencing hearing was not clear, precedent required the Court to “defer to the sentencing judge’s reasonable understanding of the record—and particularly his interpretation of his own earlier findings.”  (citation omitted).  Affording the district court judge the deference due, the Court concluded that “the district court’s interpretation was reasonable in light of the record.”

Next, the Court addressed the Government’s argument “that the district court could have made additional findings as to drug amounts, consistent with its original findings, in making its resentencing determination.”  After noting that it had not addressed this contention in a published opinion, the Court followed its sister courts’ decisions “that additional findings lie within a sentencing court’s discretion.”  (citations omitted).  Accordingly, the Court concluded that the district court “did not err in exercising its discretion not to make additional findings more than a decade after the original sentencing.”

Finally, the Court applied § 3582(c)(2) to the facts of the case and found that the district court “did not abuse its discretion in concluding that Mann was eligible for a sentence reduction.”  Based on these findings and conclusions, the Court affirmed the district court’s decision to reduce the Defendant’s sentence.

Full Opinion

– Allison Hite

United States v. Moore, No. 11-5095

Decided: March 1, 2013

The Fourth Circuit Court of Appeals reversed and vacated the defendant’s conviction of a carjacking and remanded the case for a new trial.  The Fourth Circuit ruled that the district court abused its discretion when it denied a new trial based on newly discovered evidence. The district court improperly ruled that the defendant did not meet the materiality prong of the Chavis test.

In November of 20007, Donald Roarty was carjacked by a man holding a revolver in Baltimore, Maryland.  Roarty could not see the suspects face, and only noticed his eyes and dreadlocks.  The suspect was also carrying a revolver.  Three days later, undercover detectives conducted a drug buy with a man named Larry Pollin.  Pollin was driving a Jeep that turned out to belong to Roarty.  Pollin was not arrested for the drug buy or suspected carjacking, but was arrested and booked in December for an unrelated crime. Four days after the drug buy, an officer stopped a man who was a known drug dealer.  This man pulled out a key which belonged to a Jeep that turned out to be Roarty’s.  Shortly after that, the officer obser4ved the defendant, Tyrone Moore, another known gang member, walk by.  Due to the defendant wearing a Baltimore Orioles shirt and an Orioles cap being found in the Jeep, the officer questioned Moore about the carjacking.  Moore denied any involvement, and the other man was arrested for the carjacking.  The police then prepared a photo lien-up for Roarty, including a photo of Moore.  Roarty picked out Moore due to the eyes and the fact that he had dreadlocks.  At trial, Moore attempted to prove Pollin committed the carjacking, and that Pollin had dreadlocks at the time.  The prosecution provided a booking photo of Pollin dated December 31, 2007, in which Pollin had short hair.  The prosecution also provided a picture of Pollin with dreadlocks, which was undated.  At trial, an officer involved in the drug buy stated that Pollin had short hair during the drug buy.  These testimonies, along with the dated photograph of Pollin with short hair, lead the jury to convict Moore.  After the trial, Moore’s attorney contacted Pollin’s attorney who had a booking picture of Pollin from December 2007 where Pollin had dreadlocks.  The error occurred due to a police department procedure where a defendant who changes his looks drastically will have a new photo put on file with the original booking date.  The short hair picture, while dated December 31, 2007, was actually taken in January of 2009.  Based on this evidence, Moore moved for a new trial based on the five prong Chavis test.  The district court stated Moore met the first three prongs, dealing with evidence discovered after trial, due diligence, and the evidence not being cumulative. However, the court stated that Moore could not meet the materiality prong because Moore had presented two other disingenuous defenses and that placing the blame on Pollin was tangentially related to these defenses.  The court did not reach the issue of whether the new evidence was likely to result in an acquittal.  From this ruling, Moore appealed.  Moore also appealed the introduction of witness testimony stating that Moore owned a revolver, and physical evidence showing Moore owned a semi-automatic pistol. Moore appealed the introduction of this evidence as improper propensity evidence.

The Fourth Circuit first looked to the five prongs of the Chavis test.  The Court stated that Moore not only met the first three prongs, but that materiality was met because proving that Pollin was the likely carjacker was the main part of Moore’s defense.  The identity of the carjacker was the main issue involved, thus the new photo was material to the issues involved in the trial.  Without explaining its reasoning, the Court also held that Moore met the fifth prong of Chavis.  Finally, while it was not dispositive, the Court ruled on the introduction of witness testimony and physical evidence of Moore’s gun ownership.  The Court allowed the witness testimony of Moore owning a revolver, because it was relevant an necessary to proving his guilt.  However, the evidence showing Moore owned a semi-automatic pistol was merely used to prove that Moore had a certain character and acted in accordance with this character.  Thus it is improper propensity evidence under FRE 404(b).

Full Opinion

-Jonathan M. Riddle

United States v. Deffenbaugh, No. 11-4951

Decided: February 28, 2013

The Fourth Circuit affirmed Deffenbaugh’s conviction for conspiracy to cause a false distress call to be communicated to the U.S. Coast Guard, and causing a false distress call to be communicated to the U.S. Coast Guard, in violation of federal law.  The Fourth Circuit also affirmed Deffenbaugh’s eighty-four month sentence.

Deffenbaugh designed a plan to fake his death with the assistance of his girlfriend in order to avoid a state probation violation hearing.  Deffenbaugh went boating with his brother in Virginia, and when his brother wasn’t looking he jumped off the boat.  Deffenbaugh swam to shore where his girlfriend was waiting for him, and they fled to Texas.  The U.S. Coast Guard searched for Deffenbaugh for fifteen hours, which cost $220,940.  Deffenbaugh was not declared dead and was subsequently arrested in Texas.

Deffenbaugh argued that there was no conspiracy to cause a false distress call to be made to the U.S. Coast Guard because his girlfriend did not have knowledge and intent that the recipient of the false distress call would be the U.S. Coast Guard.  The Fourth Circuit rejects this argument, citing United States v. Yermian, 468 U.S. 63 (1984) in which the United States Supreme Court “held that the federal nature of a crime need not be in the mind of the perpetrator.”  The Fourth Circuit also confirmed the reasonableness of Deffenbaugh’s eighty-four month sentence.

Full Opinion

-Jenna Hendricks

 

United States v. Bernard, No. 11-4054

Decided on: February 28, 2013

Michael Defonte Bernard appealed the district court’s decision to allow him to represent himself at trial, despite his questionable mental capacity. Bernard argued that Indiana v. Edwards, 554 U.S. 164 (2008), required that, where a borderline competent defendant seeks to represent himself at trial, the court must conduct an additional inquiry and hold the defendant to a higher standard of competency. The Fourth Circuit disagreed and affirmed the district court’s decision.

Bernard suffered from a long history of mental illness and drug abuse. A grand jury indicted Bernard on various charges. After a court-ordered evaluation, a government psychologist recommended that Bernard be found incompetent to stand trial because of his schizophrenia, paranoid delusions, and disorganized thought processes. Subsequently, a second psychologist recommended that Bernard be found competent to stand trial because his medications enabled him to understand the proceedings and assist his counsel. Bernard then made a request to proceed pro se, which the court granted, provided that Bernard have standby counsel. At trial, Bernard made no objections during the Government’s case-in-chief, failed to question two witnesses, and failed to call witnesses on his own behalf. The jury deliberated for only 12 minutes before finding Bernard guilty. At sentencing, Bernard was fully represented by former standby counsel, and was ultimately sentenced to 180 months imprisonment.

Bernard raised several arguments for the first time on appeal, thus the Fourth Circuit reviewed for plain error. Bernard could waive his right to counsel and represent himself, provided that certain requirements were met, but the right to self-representation must be weighed against the government’s interest in ensuring integrity and efficacy at trial. In Edwards, 554 U.S. at 177, the court recognized that the trial court is in the best position to assess mental competency. Edwards held that “the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial…but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id. at 175–76. Edwards does not compel the State to insist Bernard proceed with counsel, but rather outlines a permissive rule. Bernard argued that the court knew of his “severe mental illness,” and thus should have acted, pursuant to Edwards, to deny him the right to proceed pro se. However, the Fourth Circuit noted that the district court satisfied itself at the start of and throughout trial that Bernard was competent, and thus did not commit plain error. Accordingly, the Fourth Circuit affirmed the district court’s decision.

Circuit Judge Diaz dissented on the grounds that the district court was unaware of the discretion afforded by Edwards to apply a higher mental competency standard when deciding whether Bernard could waive his right to counsel. The district court thus abused its discretion by reaching a permissible result it believed to be mandatory.

Full Opinion

-Michelle Theret

United States v. Under Seal, No. 12-4055

Decided: February 26, 2013

A juvenile defendant-appellant appealed part of his sentence that required him to register under the Sex Offender Registration and Notification Act (“SORNA”).  Appellant claimed that requiring him to register contravened his confidentiality protection under the Federal Juvenile Delinquency Act (“FJDA”) and violated the Eighth Amendment’s prohibition on cruel and unusual punishment.  The Fourth Circuit Court of Appeals held that the District Court did not err for imposing this condition of his sentence.

The defendant-appellant admitted to sexually abusing his two half-sisters, ages ten and six at the time.  He was charged with a one-count Information filed under seal in the District of South Carolina; the Information alleged that he was a juvenile under the age of eighteen and had committed an act of juvenile delinquency, aggravated sexual abuse.  He was sentenced to incarceration and juvenile delinquent supervision; he was also required to comply with the mandatory reporting requirements of SORNA.

The Fourth Circuit considered the conflict between the FJDA, requiring juvenile information to be kept confidential, and the mandatory reporting requirements of SORNA which requires typically confidential information about juveniles to be made public.  When two statutes conflict, a more specific statute controls over a more generalized provision; therefore, the Court concluded that the specific provision of SORNA which provides that juvenile sex offenders over the age of fourteen register controlled the outcome of this conflict.  This was further supported by Congressional intent where the legislative history showed in balancing between juvenile confidentiality and public safety, the policy choice was made to protect the public and potential victims by requiring minors to register.  The court also noted that the later in time statute should rule, and SORNA was enacted later than the FJDA.

The Court also considered the defendant-appellant’s argument that the SORNA reporting requirement violated the Eighth Amendment.  To determine whether SORNA’s requirements rose to the level of punishment, the court must consider whether the civil regulatory scheme is punitive in purpose or effect.  The court considered the seven factors from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).  The court concluded that SORNA was a civil, nonpunitive regulatory scheme in purpose and effect, and therefore did not violate the Eighth amendment.  Therefore, the district court’s judgment was affirmed.

Full Opinion

-Jennifer B. Routh

United States v. Fisher, No. 11-6781

Decided:  April 1, 2013

The Fourth Circuit reversed the judgment of the district court and held that a Drug Enforcement Agency (“DEA”) officer’s misconduct – deliberately lying on an affidavit for a search warrant that produced the sole basis for a search of the defendant’s home where evidence was uncovered that provided the foundation for the criminal charge – rendered defendant’s guilty plea involuntary and violated his due process rights.

Mark Lunsford, a Baltimore City DEA Task Force Officer, applied for a warrant to search Cortez Fisher’s residence and vehicle for evidence of a crime.  Lunsford provided the sole affidavit to accompany the application for the warrant.  The affidavit provided that Lunsford first became aware of Fisher after a confidential informant indicated that Fisher was distributing narcotics and had a handgun in his residence.  On the basis of this lone affidavit, Lunsford obtained the warrant and executed a search on Fisher’s vehicle and residence.   The search resulted in the discovery and seizure of crack cocaine and a loaded handgun.  Defendant was later charged with possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).  Defendant entered into a plea agreement where he plead guilty to the illegal firearm charge and was sentenced to ten years in prison.  Over a year later, Lunsford was charged with various offenses, including “falsely attributing information to a confidential informant with whom he was splitting reward money.”  Lunsford later admitted that the confidential informant that he identified in his affidavit to search Fisher’s residence and vehicle “had no connection to the case” and that someone else was the actual informant.  Following his guilt plea, Fisher filed a pro se motion seeking to have his guilt plea vacated. The district court denied Fisher’s motion to vacate under the reasoning that Fisher did not deny he had, in fact, unlawfully possessed a firearm regardless of Lunsford’s conduct.

On appeal, Fisher argued that Lunsford’s deliberate misrepresentations in the affidavit, which was the sole basis for obtaining the search warrant, “induced” the guilty plea and, as a result, rendered his plea involuntary and invalid under the standard set forth in Brady v. United States, 397 U.S. 742 (1970).  The Fourth Circuit agreed and expanded the application of Brady v. United States as a bar against involuntary pleas to include, not only “prosecutorial promises designed to elicit a guilt plea,” but also “affirmative government misrepresentation” that results in defendant’s misapprehension of the strength of the government’s case and, therefore, affects the defendant’s decision to accept the plea of guilt in order to secure leniency in sentencing.  The Fourth Circuit rejected the government’s good faith prosecution argument and recognized that both parties did not dispute the fact that the evidence presented to Fisher and his counsel during plea deliberations were obtained through a search warrant that was issued solely on the basis of intentional misrepresentation by law enforcement.  As a result, the Fourth Circuit maintained that Fisher was successful in proving that 1) “impermissible government conduct” resulted in the government securing a search warrant that led to collection of evidence against him, and 2) that there was “a reasonable probability” that, but for that misconduct, Fisher would not have plead guilty.  Lastly, the Fourth Circuit held that its decision to vacate Fisher’s plea was supported by the important interest of deterring police misconduct and ensuring public confidence in the judicial system.

Full Opinion

– John G. Tamasitis

United States v. Black, No. 11-5084

Decided: February 25, 2013

The Fourth Circuit Court of Appeals reversed and vacated the district court’s denial of a motion to suppress a firearm obtained during an improper Terry stop.  The Fourth Circuit ruled that the defendant was seized without particularized reasonable suspicion.

In June of 2010, two Charlotte-Mecklenburg officers were patrolling the Eastway Division of Charlotte.  They observed a man, later identified as Dior Troupe, sitting alone in a vehicle at a gas pump.  Troupe did not pump gas or leave the car, which the officers felt was indicative of a drug transaction.  Later, Troupe drove to a parking lot between two apartment complexes the officers knew were high crime areas.  Troupe walked up to a group of five men sitting in the parking lot.  Neither officer observed any illegal activity, but decided to call for backup and voluntarily contact the men.  After a total of six officers arrived, they approached the men.  Troupe indicated that he was carrying a firearm openly, which is generally legal in North Carolina.  The officers secured the firearm and ran Troupe’s identification.  While the officers approached the other men, Defendant Nathaniel Black offered his ID and stated he did not live in the apartment complexes and was just visiting friends.  The officers found Black to be “overly cooperative,” which they found unusual.  The officers questioned the other men, who were not cooperative.  The officers were looking for other firearms, due to a “one-plus” departmental rule.  This rule was a presumption that when there is one firearm, there will be more.  While questioning the other men, Black began to leave.  The officers told him he could not leave and tried to block his path, eventually grabbing his bicep and feeling an incredibly fast pulse rate.  Black began to run, and one officer tackled him.  The officers found a firearm and eventually learned that Black was a convicted felon. Black was charged under § 922(g)(1). Black moved to suppress the firearm, arguing that he was seized when told he could not leave, and the seizure was not supported by reasonable articulable suspicion.  The government argued that Black was not seized until the officers grabbed his bicep and certain indicia of suspiciousness supported the stop.  When his motion was denied, Black plead guilty and was sentenced to 180 months.

The Fourth Circuit first looked to when Black was seized for Fourth Amendment purposes.  In view of all the circumstances, Black was seized before he was told he could not leave.  This is due to factors such as the collective show of authority by the police, the fact that Troupe could not leave, officers were frisking other men indicating they would frisk others, and the officers had pinned Black’s ID to his uniform.  These factors lead to a decision that a reasonable person would not have felt free to leave.  Furthermore, all of Blacks interactions with the police before his bicep was grabbed were not consensual.  The Court then looked to Terry to see if the seizure was reasonable, which requires a reasonably and articulable suspicion particularized for the person in question. The Court held that the officers relied on indicia of suspiciousness that were not particular to Black being involved in criminal activity.  The officers tried to use reasonable suspicion as to the other men to Black.  The Court felt that some of the factors that led to reasonable suspicion Troupe was engaged in criminal activity was suspect as well.  Finally, Black’s cooperation and the “one plus” rule were not sufficient to establish a particular suspicion of Black engaging in criminal activity.  For these reasons, the Court vacated the ruling of the district court and remanded the case.

Full Opinion

-Jonathan M. Riddle

United States v. Copeland, No. 11-4654

Decided: February 25, 2013

Larry Junior Copeland pleaded guilty to distributing five or more grams of crack cocaine, in violation of 21 U.S.C.§ 841(a)(1). Copeland waived his right to appeal in his plea agreement. However, Copeland appealed his sentence. On appeal, Copeland argued that the district court incorrectly calculated his sentence range under the Sentencing Guidelines and imposed an “illegal” and substantively unreasonable sentence. Copeland also argued that the district court abused its discretion by denying his motion to continue his sentencing hearing. The Fourth Circuit Court of Appeals dismissed the sentencing issues and affirmed the continuance issue.

In early 2010, Copeland sold 28.7 grams of cocaine and 39.2 grams of crack cocaine to a confidential informant. Based on this evidence, the government charged Copeland with one count of distributing five or more grams of cocaine (Count One) and one count of distributing five or more grams of crack cocaine (Count Two), both in violation of 21 U.S.C. § 841(a)(1). On June 28, 2010, the government notified Copeland that it was seeking an enhanced sentence based on Copeland’s prior felony drug offenses. On February 22, 2011, Copeland pleaded guilty to Count Two, and the government dismissed Count One. As part of the plea agreement, Copeland waived his right to appeal. The plea agreement also set out the statutory sentencing ranges mandated by §841(b)(1)(b), which is a five- to forty-year term that can be increased to ten years to life by the statutory enhancement. The plea agreement made clear that Copeland could not withdraw his guilty plea even if the court imposed the maximum. Copeland also acknowledged to the district court that he understood the terms of the plea agreement. Therefore, the court found that Copeland’s guilty plea was entered into freely and voluntarily.

The Fourth Circuit first examined whether Copeland entered into a valid waiver. The court explained that “[a] defendant may waive the right to appeal his conviction and sentence so long as the waiver is knowing and voluntary.” The court found that Copeland knowingly and intelligently waived his right to appeal because he affirmed to the district court that he had read and discussed the entire plea agreement with his lawyer. Nevertheless, Copeland argued that his sentencing challenge did not fall within the scope of the waiver. The court disagreed and held that Copeland’s sentencing challenge fell within the scope of the waiver. Finally, the court held that the district court did not abuse its discretion in denying Copeland’s motion to continue his sentencing hearing. The court explained that Copeland’s sentencing hearing had been scheduled for over three months and that Copeland therefore had adequate time to prepare.

Full Opinion

– Graham Mitchell

United States v. Yengel, No. 12-4317

Decided:  February 15, 2013

The Fourth Circuit Court of Appeals affirmed the district court’s decision to exclude evidence that was obtained during a warrantless search.  The government argued that the exigent circumstances exception applied to render the evidence admissible, but the Fourth Circuit disagreed noting that the officer’s behavior at the time of the search contradicted the idea that exigent circumstances existed.

On December 31, 2011, police responded to a 911 call regarding a domestic dispute at the home of Joseph Robert Yengel, Jr. (“Yengel”) between Yengel and his wife.  Shortly after arriving on the scene, Yengel was arrested and removed from the scene.  Sargeant Staton then interviewed Yengel’s wife and Yengel’s mother.  Staton learned that Yengel kept a large number of firearms and a “grenade” inside the house.  Staton also learned that Yengel’s young son was sleeping inside the house.  Staton asked where the “grenade” was, and Yengel’s wife collected a variety of firearms strewn about the master bedroom and asked Staton to remove them.  Staton again asked about the location of the grenade; Mrs. Yengel showed Staton a closet inside the guest bedroom that was locked with a combination keypad and thumbprint scanner.  Mrs. Yengel did not have the combination lock but told Staton the grenade was inside.  Mrs. Yengel gave Staton permission to kick open the door or do whatever he needed to get inside.  Staton was able to pry the door open with a screwdriver.  Once inside the closet, Staton identified military equipment including gun safes, camouflage, and other weapons.  Only after the entry into the closet, Staton ordered the evacuation of the house and surrounding residences.  He requested the assistance of an explosive ordnance disposal team.  Once the team arrived, they discovered, not a grenade, but a container of smokeless shotgun powder and a partially assembled explosive device attached to a kitchen timer.

Yengel was charged with possession of an unregistered firearm.  He moved to suppress the evidence gained from the warrantless search of the locked closet.  The district court granted his motion to suppress the evidence, and the Government appealed following an unsuccessful motion for reconsideration.  Searches without warrants are presumptively unconstitutional, but the touchstone for a warrantless search inquiry is “reasonableness.”  Therefore, there are certain exceptions that will render warrantless evidence admissible in court.  However, the court determined that there were no circumstances that would constitute an exigency sufficient to justify the warrantless search of private property.  The information available to the officer was limited to what Mrs. Yengel told him and this did not justify a reasonable belief that the grenade was live or could detonate at any moment.  Further, the location of the grenade diminished the scope of any possible emergency.  Finally, the officer did not evacuate the sleeping son or surrounding area until after the closet had been entered which provides evidence that the officers did not actually think there were emergent circumstances such to justify a warrantless entry.

Full Opinion

-Jennifer B. Routh

United States v. Holness, No. 11-4631

Decided: February 11, 2013

After a jury trial, Holness was convicted of interstate domestic violence and attempted witness intimidation. On appeal, Holness alleged that the district court erred in denying his motion to suppress certain evidence flowing from jail cell conversations Holness had with Stephen McGrath. Holness alleged that this evidence was obtained in deprivation of his Sixth Amendment right to the assistance of counsel.

McGrath was Holness’s cell mate when Holness was incarcerated in connection with a state murder charge. Holness contended that McGrath became an agent of the police as of August 31, 2009, when McGrath met with Sergeant Hall of the Maryland State Police homicide unit. Since Holness had retained the services of a public defender in connection with the state murder charge, he argued that his subsequent conversations with McGrath— which his lawyer was not present for—amounted to police interrogation in contravention of the Sixth Amendment. Subsequent to McGrath’s meeting with Hall, the state court charges were dismissed when the US Attorney charged Holness with interstate domestic violence, attempted witness intimidation, and two other counts that were ultimately dismissed. At that time, Holness moved to suppress all statements he made to McGrath and any evidence obtained as a result of those statements.

The Court of Appeals concluded that, since there was no involvement by the federal government in advance of the August 31, 2009 meeting between McGrath and Hall, no actions imputable to the state deprived Holness of his Sixth Amendment right to counsel with respect to the federal charges of which he was convicted. However, the Court went on to address whether those actions contravened Holness’s Fifth Amendment rights, noting that “although the Sixth Amendment right to counsel is offense-specific, the similar right derived from the Fifth Amendment is not.”

The Court presumed that the relevant evidence was obtained in contravention of the Fifth Amendment, but found that the evidence of Holness’s guilt went “far beyond mere sufficiency,” such that the lower court’s judgment could not have been substantially swayed by the improperly obtained evidence. Thus, the Court held that, under the circumstances of the case, any Fifth Amendment error was harmless beyond a reasonable doubt.

In summary, the Court of Appeals found that the underlying facts failed to sustain Holness’s Sixth Amendment theory, but noted that the facts indicate a potential violation of Holness’s Fifth Amendment privilege against self-incrimination and right to counsel. However, the Court held that remand to further develop the record was unnecessary since any Fifth Amendment error was harmless beyond a reasonable doubt. Thus, the Court affirmed Holness’s convictions.

Full Opinion

– Kassandra Moore

United States v. Runyon, No. 09-11

Decided: February 25, 2013

The Fourth Circuit Court of Appeals affirmed the conviction of David Anthony Runyon for conspiracy to commit murder-for-hire among other charges including carjacking resulting in death and murder with a firearm in relation to a crime of violence.  Runyon received a capital sentence.

David Runyon was hired by Catherina Voss (“Cat”) and Michael Draven to murder Cory Voss, Cat’s husband. On April 20, 2007 Cat opened a bank account and sent Voss to an ATM to withdraw cash from the account. A surveillance camera at the ATM showed an individual entering Voss’s truck while he was standing at the ATM. The next morning Voss was found dead in his truck in a parking lot near the bank where the ATM was located.

Runyon appealed both his conviction and his sentences.  Runyon attempted to claim that the murder for hire statutes under which he was convicted were unconstitutional.  The court held that Congress did not exceed its power under the Commerce Clause in enacting the statute.  Runyon next challenged the “nonstatutory aggravating factors charged by the prosecution and found by the jury” during his sentencing.  Runyon challenged the use of an interrogation video that showed him being asked questions about his race and religion. The court found that it was error to allow the jury to hear the remarks made to Runyon. After making this determination, the court stated that it would take the most defendant-favorable standard in order to determine whether or not this error required Runyon’s sentences to be reversed. The court ultimately found that admitting the video into evidence did not contribute to the verdict obtained. Runyon also challenged evidence regarding victim-impact, his personal training and experience, and his physical abuse towards women.  The court found that the admittance of this evidence was constitutional, and the district court did not err in admitting it.

Judge Niemeyer concurred in the opinion of the court and found that the district court did not err in admitting the video tape of Runyon into evidence.  Judge Niemeyer found the video tape to be relevant, voluntarily given by Runyon after being read Miranda rights, and showed Runyon’s lack of remorse.

Full Opinion

-Samantha James

Bereano v. United States, No. 12-6417

Decided:  February 8, 2013

Petitioner Bruce C. Bereano appealed the district court’s denial of his petition for a writ of coram nobis in which Bereano sought coram nobis relief to vacate his seven mail fraud convictions and to secure repayment of a fine imposed as part of his sentencing.  Bereano’s petition relied on the Supreme Court’s decisions in Skilling v. United States that limited the application of the “honest services fraud” theory, one of the two theories considered by the jury that convicted Bereano of mail fraud.  The Fourth Circuit agreed with the district court’s denial of Bereano’s petition and affirmed the lower court’s decision.

The basis of Bereano’s petition arose out of the trial judge’s instructions to the jury during Bereano’s trial for his mail fraud charges.  The judge’s instructions stated that the jury could convict Bereano if it found him guilty under the “pecuniary fraud” or “honest services fraud” theories.  Because the jury returned a general verdict on each count of fraud, there was no indication as to which theory Bereano was convicted under, and the Fourth Circuit recognized that Bereano was convicted and prosecuted under both theories.

In light of the Supreme Court’s subsequent decision in Skilling, in which the Court circumscribed the honest services fraud theory and limited it to cases involving actual bribery and kickbacks, Bereano appealed, contending that a constitutional error occurred at trial “when the district court erroneously instructed the jury that it could convict Bereano on the honest services fraud theory.”  While recognizing that Bereano’s honest services fraud scheme did not involve the bribery or kickbacks required under Skilling, the district court nonetheless denied Bereano’s petition, reasoning that Bereano’s fraudulent actions implicated the pecuniary fraud theory, which was not affected by Skilling, and therefore, despite the existence of a constitution error under Skilling, the error was “harmless beyond a reasonable doubt.”

To analyze the district court’s denial of Bereano’s petition, the Fourth Circuit applied the harmless error review prescribed by the Supreme Court in Neder v. United States for cases involving constitutional errors brought about through “a failure to properly instruct on an element of an offense.”  The court additional relied on its decision in United States v. Jefferson in which it “ratified the Neder harmless error standard as the law of this Circuit with respect to Skilling error,” and it applied the harmless error test described in Jefferson to the facts of the present case.  Applying this test, the court concluded that there was sufficient evidence that Bereano had committed “pecuniary fraud” and that this pecuniary fraud was “necessarily accepted by the jury.”  Furthermore, the court found that “no reasonable jury could have acquitted Bereano of pecuniary fraud for falsely billing his clients, but convicted him of honest services fraud for the same false billing scheme.”  Therefore, despite the instructional error on the honest services fraud theory, Bereano had failed to establish the fourth prerequisite for coram nobis relief: “identification of ‘an error of the most fundamental character.’”  Therefore, the court refused to grant the “‘extraordinary’ remedy of coram nobis relief” and affirmed the district court’s decision.

Full Opinion

– Allison Hite

United States v. Bumpers, No. 11-4689

Decided:  January 16, 2013

Defendant Irvin Bumpers appealed the district court’s denial of his pre-trial motion to suppress the firearm that served as the basis of his conviction of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).  Bumpers argued that the firearm and ammunition were taken as a result of an unlawful seizure.  The Fourth Circuit dismissed Bumpers’ argument and upheld the district court judge’s ruling, finding that the police officer’s retrieval of these goods was the result of a lawful stop and arrest.  The court further articulated its belief that appellate courts should “uphold[] a district court’s Terry ruling when it is objectively reasonable in light of the record … [in order to] best achieve in the aggregate the very equipoise between individual liberty and public safety that the Fourth Amendment commands.”

The facts revealed that Bumpers was arrested in a high crime area when a police officer, who was patrolling the area, noticed Bumpers acting suspiciously and suspected that Bumpers and a companion were trespassing upon property.  After the officer stopped Bumpers to question him, the officer’s search of computer records revealed an outstanding warrant for Bumpers.  Consequently, the officer arrested Bumpers and conducted a search incident to this arrest which revealed that Bumpers was carrying the firearm and ammunition at issue on appeal.

In its analysis of this case, the majority focused on numerous factors surrounding the officer’s arrest of Bumpers.  After stating that “[t]he touchstone of the Fourth Amendment inquiry is one of simple reasonableness” and citing to the Supreme Court’s decision regarding police investigatory stops in Terry v. Ohio, the court concluded that in cases involving police stops an individual’s “liberty interest” must be balanced with the “weighty interest on the other side of the balance:  the community’s interest in basic public safety.”  The court then defended its decision to defer to the trial judge’s factual findings and inferences regarding the circumstances surrounding Bumpers’ arrest, stating that “[t]e most precise instrument that the judiciary possesses for ensuring the proper balance between the interests that undergird the Fourth Amendment is the on-the-ground assessment of district courts.”  Ultimately, the court was convinced that the trial judge rightfully considered the totality of the factors surrounding the officer’s stop and concluded that the district court correctly determined that the officer had the reasonable suspicion necessary to conduct the stop in question.  Therefore, the court upheld the district court’s denial of Bumpers’ motion to suppress.

Full Opinion

– Allison Hite

United States v. Ford, No. 11-5193

Decided: January 4, 2013

A jury found Harold Ford guilty of being a felon in possession of a firearm. Based on a post-trial change in law effected by United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), the court of appeals reversed and remanded the case. On remand, Ford was convicted again. He appealed that conviction on double jeopardy grounds. The court found no error and affirmed the conviction.

The Double Jeopardy Clause prohibits the retrying of a defendant whose conviction is reversed on appeal solely for lack of sufficient evidence to sustain the jury verdict, but does not prohibit retrying a defendant whose first conviction was set aside because of an error in the proceedings leading to the conviction. In line with precedent in this and other circuits, the court noted that where a reviewing court determines that the evidence presented at trial is rendered insufficient only by a post-trial change in law, it is analogous to one for procedural error and thus does not bar retrial.

As such, the court found no error in the retrial of Ford and affirmed the conviction.

Full Opinion

– Kassandra Moore

United States v. Min, No. 11-4702; United States v. Johnson, No. 11-4703; United States v. Stevens, No. 11-4704; United States v. Phun, No. 11-4758; United States v. McCalister, No. 11-4795; United States v. Un, No. 11-4796

Decided:  January 3, 2013

This case involved an appeal brought by six defendants (collectively, the “Defendants”) convicted of various counts related to their participation in a conspiracy to steal cocaine from the stash house of a drug cartel.  Unbeknownst to the Defendants, their planned robbery was orchestrated by undercover law enforcement officers, and they were arrested just before they could carry out the robbery.  When the Defendants were arrested, the law enforcement officers recovered five loaded firearms from the Defendants’ van and one of the Defendants waived his Miranda rights and confessed to his involvement in the conspiracy to rob a drug trafficker of cocaine and money.

The Fourth Circuit first addressed “whether the district court erred in denying the five non-confessing defendants’ motions to sever and admitting the redacted confession of their non-testifying codefendant . . . in the resulting joint trial.”  Reviewing the decision to deny the motion to sever for abuse of discretion, the court noted that while the general rule calls for defendants to be “indicted and charged together if they are alleged to have participated in the same act or transaction,” there are “some situations [in which] the risk of prejudice is so high as to require a separate trial.”  The court acknowledged that the non-confessing defendants’ situation, “where the out-of-court confession of a non-testifying codefendant … inculpates one or more of the other defendants” could be one such situation in which a separate trial is necessary.  However, the court relied on its decision in United States v. Akinkoye in which it “held admissible a codefendant’s redacted statement that referred to the existence of another person through neutral phrases” and concluded that “the obfuscation of the names of other defendants in the version of [the codefendant’s] confession admitted at trial was not obvious.”  The court was convinced that because the redacted statement was written in third person in grammatically correct sentences and “referred generally and without facial incrimination to some number of individuals who could, or could not, be the other defendants,” it “did not implicate any one defendant in particular, nor did it leave the jury to fill in any obvious blanks.”  Therefore, the court determined that the redacted confession was properly admitted against the Defendants with a limiting instruction and affirmed the district court’s denial of the non-confessing defendants’ motion to sever.

Next, the court looked to determine “whether factual impossibility is a defense to the crime of conspiracy.”  The Defendants argued that because “the stash house, drugs, and entire factual premise of the robbery were the fictional creation of law enforcement officers,” they should be able to assert factual impossibility as a defense to their conspiracy charges.  The court rejected the Defendants’ argument and “conclude[ed] that factual impossibility is not a defense to the crime of conspiracy” after finding that “[i]t is well-established that the inchoate crime of conspiracy punishes the agreement to commit an unlawful act, not the completion of the act itself.”  Accordingly, the court “reject[ed] defendants’ arguments that factual impossibility of the robbery they conspired to commit render[ed] their convictions legally insupportable.”

The court also reviewed the sufficiency of the evidence in the case and found “that the evidence was more than sufficient to sustain each conviction on these particular facts.”  The “Defendants argue[d] the evidence established neither the amount of cocaine defendants conspired to steal nor the possession of firearms.”  The Defendants relied on the Fourth Circuit’s decision in United States v. Hickman, which required “evidence of the amount of drugs the conspiracy intended to possess and distribute.”  The court distinguished the present case from Hickman and determined that “the evidence introduced was replete with references to the amount of cocaine the defendants conspired to steal.”  The court additionally concluded that “there was a wealth of evidence that the defendants planned to possess firearms while committing the robbery, and did possess them in furtherance of the conspiracy.”  Therefore, reviewing the sufficiency of the evidence under a substantial evidence standard, the court found that the evidence introduced to prove each element of the crimes at issue “support[ed] the jury’s verdict … beyond a reasonable doubt.”

Next, the court addressed the Defendants’ “challenge [to] the district court’s decision to permit Detective Snyder to testify at trial regarding conversations he had with [one of the Defendants] while setting up the sting.”  The Defendants argued that the detective’s testimony amounted to “narrative gloss” testimony and was improper under Federal Rule of Evidence 701 that governs lay witness opinion testimony.  The court reviewed the district court’s admission of this testimonial evidence for abuse of discretion and found that “each of Rule 701’s requirements [were] satisfied here.”  Specifically, the court found that it was critical that the detective “had been a participant in each of the conversations about which he testified” such that his testimony “was rationally based on his perception.”  The court also found that the detective’s testimony “easily” met Rule 701’s third requirement because “[t]he kinds of questions asked and answers elicited went directly to [the detective’s] personal knowledge … rather than calling upon any specialized expertise he might have.”  Accordingly, the court concluded that the testimony “was rationally based on [the detective’s] own personal perception” and was properly admitted.

Finally, the court addressed an argument made by Phun, one of the Defendants, “that the correction of an error in [Phun’s] verdict form during the jury’s deliberations constituted reversible error.”  The court noted that the record was very unclear about the circumstances surrounding the alleged improper influence, and it also expressed concerns with the methods used by the district court in “correcting a substantial error on the jury form,” calling the methods “less than ideal.”  However, despite these concerns, the court found that the “Defendants fail to identify and we fail to see how any of these events could have improperly influenced the jury.”  Therefore, it concluded that “even if some improper influence unclear from the record constituted error, it was harmless,” and it found “no reason to overturn any of the defendants’ convictions” based on such error.

Based on the foregoing, the court affirmed the district court’s judgment.

Full Opinion

-Allison Hite

United States v. Greene, No. 11-4683

Decided: January 3, 2013

The issue in this appeal involved the in-court identification of a defendant charged with armed bank robbery and brandishing a firearm during and in relation to a crime of violence.  During the defendant’s trial, the prosecution put on the witness stand a bank teller who had been present during the robbery.  The bank teller had not been able to make an out-of-court identification of the perpetrator, likely because the witness had only a limited opportunity to view the robber, who was had been wearing a makeshift disguise.  In addition, the trial took place seventeen months after the robbery, and during that time, the teller was “not once asked to view a lineup or photo array or assist a police artist in drawing a sketch.”  During the government’s direct examination, the prosecutor asked the witness to look at the accused sitting at the defense table and describe any similarities between him and the robber she had seen.  The defendant was ultimately convicted by a jury on both criminal offenses.

On appeal, the Fourth Circuit considered whether it was plain error for the trial court to have admitted this witness’s testimony.  The court applied a two-step test established by the Supreme Court to determine the admissibility of identification testimony:  “First the court must consider whether the identification procedure is unnecessary suggestive.  Second, if the procedure was unnecessarily suggestive, a court must look at several factors to determine if the identification testimony is nevertheless reliable under the circumstances.”  After a lengthy analysis of the first prong of the test, the court concluded that the identification testimony was unnecessarily suggestive.  According to the court, the prosecutor’s action in asking the witness if the defendant sitting in the courtroom reminded her of the robber was designed to put undue pressure on the witness and was thus unreliable.  In addition, the impermissible procedure utilized to elicit the testimony was not overcome by other indicia of reliability in the identification.  Applying the so-called Biggers factors (from Neil v. Biggers, 409 U.S. 188 (1972)), the court stated that other circumstances, such as the witness having had only a hurried view of the disguised armed robber, demonstrated a lack of reliability.  Thus, the court held it was error for the trial court to admit this in-court identification.

Nonetheless, because the defendant had not objected at trial to the witness’s testimony, the Fourth Circuit reviewed the lower court’s error under the plain error doctrine.  The court stated that the error was plain, in that it is “well-settled that a prosecutor cannot verbally or physically point to a defendant and ask a witness if the defendant is the person who committed the crime.”  However, the Fourth Circuit then stated that the plain error did not affect the defendant’s substantial right to a fair trial.  According to the court, there was “strong independent evidence” indicated that the defendant had co