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.
Austin T. Reed
Decided: August 5, 2015
In this case stemming from a series of armed robberies, the Fourth Circuit held that obtaining cell service location information (CSLI) without a warrant violates the Fourth Amendment, but that the Government here relied in good faith on the Stored Communications Act, so the district court did not err in admitting CSLI obtained without a warrant. Further, the Fourth Circuit upheld the district court on several issues related to Graham’s co-defendant, Jordan. These included restrictions on Jordan’s testimony, denial of a motion for severance, exclusion of out-of-court statements by Graham, admission of evidence seized in a search of Jordan’s home, and denial of a motion by Jordan for dismissal based on insufficient evidence. On this basis, the Fourth Circuit affirmed the district court.
Following the armed robberies of six businesses in and around Baltimore, Maryland in early 2011, Aaron Graham and Eric Jordan were charged with being felons in possession of a firearm, Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, brandishing a firearm during a crime of violence, conspiracy to brandish a firearm during a crime of violence, and related aiding and abetting charges. Jordan was also charged with possession of an unregistered, sawed-off shotgun. Prior to trial, Graham and Jordan moved for severance, and to suppress CSLI as violating the Fourth Amendment. Jordan also moved to suppress evidence seized in a search of his home based on an allegedly invalid warrant. The district court denied all pre-trial motions. At trial, Graham and Jordan objected to testimony by a Sprint/Nextel representative and an FBI agent related to CSLI as inadmissible expert opinion, but the district court disagreed, and admitted the testimony. The district court also denied Jordan’s motion in limine to admit a written statement by Graham, which it found was unauthenticated hearsay, and a phone call by Graham, which it found irrelevant. Finally, the district court restricted Jordan’s testimony by not allowing him to discuss items prejudicial to Graham. At the close of the case, the Government moved to dismiss the conspiracy to possess a firearm charge, and Graham and Jordan moved for acquittal on all remaining charges for insufficient evidence. The court granted acquittal to Jordan on the felon-in-possession count, and denied the motion for acquittal on all other counts for both Graham and Jordan. The trial jury found Graham and Jordan guilty on all remaining counts, and the court denied their motions for new trials.
Graham and Jordan appealed to the Fourth Circuit, arguing that the district court erred in admitting the CSLI, and testimony related to the CSLI by the Sprint/Nextel representative, and the FBI agent. Graham and Jordan also argued that the district court erred in restricting Jordan’s testimony, denying severance, excluding the statements by Graham, admitting the evidence from Jordan’s apartment, and finding sufficient evidence to support the charges against them.
The Fourth Circuit then upheld the district court’s findings on all other issues Graham and Jordan appealed. The Fourth Circuit found the Sprint/Nextel representative’s testimony in part factual, and thus lay testimony, and in part closer to expert opinion, but found that admitting the expert portion was harmless error. The Fourth Circuit found that the FBI agent’s testimony was lay testimony. The Court found some of the restrictions on Jordan’s testimony were consistent with a desire not to prejudice Graham, and still allowed Jordan to engage in a full defense. The Court found that the district court abused its discretion in relation to restrictions on anti-impeachment testimony, but that Jordan forfeited his right to object by not objecting at trial, and the error did not impact Jordan’s substantial rights. The Fourth Circuit upheld the district court’s denial of severance because Graham’s and Jordan’s defenses were quite similar. The Court also upheld the district court in not admitting Graham’s statements because the written statement was not truly adverse to Graham, and was not trustworthy, and the call was irrelevant. The Fourth Circuit also upheld the admission of the evidence seized from Jordan’s home, finding no reason to set aside the presumption of warrant validity. Finally, the Court found the evidence sufficient to uphold the convictions. On this basis, the Fourth Circuit affirmed the district court.
Judge Thacker wrote a separate concurrence to note how privacy was breaking down in the face of new technologies. Judge Motz wrote a concurring/dissenting opinion, in which she agreed with the overall finding of the court upholding the district court. She argued, however, based on the third-party doctrine, that obtaining the CSLI without a warrant did not violate the Fourth Amendment.
Katherine H. Flynn
Decided: May 11, 2015
The Fourth Circuit reversed and remanded the district court’s ruling because it abused its discretion in excluding evidence that was reasonably necessary for the government to make its case regarding the fraudulent scheme.
Dr. Amar Bajoghli was indicted for executing a scheme to defraud when billing public and private healthcare benefit programs in violation of 18 U.S.C. § 1347, and for related offenses. Dr. Bajoghli filed three pretrial motions to limit the government’s evidence against him at trial: (1) motion to strike allegations of certain financial details from the indictment; (2) motion in limine to exclude evidence of post-scheme conduct, which the government planned to introduce to show consciousness of guilt; and (3) motion in limine to exclude any evidence that was not directly related to one of the 53 executions specifically charged in the indictment.
The Fourth Circuit found that evidence of a scheme is an element of § 1347, and thus, evidence of the entire scheme is relevant to proving each particular act of fraud. The Court held that when the government elects to only charge some of the executions of the scheme, its election does not limit its proof to only the charged executions. Although a district court retains broad discretion to manage trials, “its discretion must be balanced by the need to give the government adequate latitude to prove its case….” Additionally, because evidence not charged may be relevant to the nature of the fraudulent scheme, such evidence is intrinsic to the “scheme” element; therefore, Rule 404(b) does not limit it as “other bad acts” evidence. Furthermore, the Fourth Circuit found that the district court misapplied Rule 403 because unfair prejudice “speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Neither Bajoghli nor the district court identified any ground that would support a finding of guilt different from proof that is specific to the offense charged. Thus, because the district court misapplied Rule 404(b) and Rule 403 in excluding evidence of Bajoghli’s post-scheme conduct, it abused its discretion. Accordingly, the Fourth Circuit reversed and remanded.
Decided: May 5, 2015
The Fourth Circuit reversed the grant of summary judgment to the Underwriters and remanded the case to the district court to determine whether the answers Dr. Cohen supplied on the policy applications were material misrepresentations.
This appeal stemmed from a magistrate judge granting summary judgment to the Underwriters due to Dr. Cohen’s material misrepresentations on his policy applications and denying Dr. Cohen’s motion in limine to exclude all references to the Consent Order. Cohen, on April 1, 2011, submitted initial applications for disability insurance. Each of the insurance applications contained questions that were pertinent to the applicant’s personal, financial, and medical information. Three of Cohen’s responses were at issue. Cohen checked the “Yes” box when asked “Are you actively at work?” In response to the question “Are you aware of any fact that could change your occupation or financial stability?,” Cohen checked the “No” box. Finally, when asked “Are you party to any legal proceeding at this time?,” Cohen checked the “No” box. Cohen signed final applications with these responses on August 8, 2011.
Notably, on April 12, 2011, after submission of his initial application and before submission of his final applications, Cohen signed a Consent Order with the Maryland State Board of Physicians, which suspended his license to practice. Cohen’s suspension would begin on August 2, 2011 and would last for three months. Further, the Consent Order stated that if Cohen returned to active practice after his suspension, he would be on probation for five years. On September 8, 2011, Cohen sought medical treatments for injuries to his thumb and leg. The Underwriters retained Disability Management Services, Inc. to investigate and adjust the potential claim. This investigation uncovered the Consent Order, and the Underwriters notified Cohen that they intended to rescind the policy. Under the policy’s grievance procedures and informal review, the rescission was upheld. Later, the magistrate judge concluded that the Underwriters validly rescinded the insurance policies due to the material misrepresentations made by Cohen in his applications.
Under Maryland law, a material misrepresentation on an insurance policy application allows for the recession on an insurance policy issued on the basis of that application. Applying the principles of contracts, the Fourth Circuit could only conclude that each of the questions to which Cohen allegedly gave false answers for is subject to more than one reasonable interpretation. Being “actively at work” was considered by the Underwriters to include surgery, from which he was banned. “Actively at work” was considered by Cohen to include the administrative duties of running his practice. The court determined that neither of these interpretations was unreasonable. Each of the general questions contains undefined terms susceptible to more than one reasonable interpretation, “making them ill-suited to elicit the specific type of information the Underwriters claim to have requested.” On remand, the court may consider whether extrinsic or parol evidence can be used to cure the ambiguity. The Fourth Circuit noted that it is of course within the court’s discretion, on remand, to conduct any further proceedings that it finds appropriate, including further consideration of summary judgment.
Further, Cohen contends that the admissibility of the Consent Order was contrary to Maryland law, which requires express consent of all parties before such an Order can be admitted in a civil proceeding. The plain language of Health Occupations § 14-410 bars the “admission of ‘any order’ of the Board in ‘a civil or criminal action’ except by consent, or when ‘a party to a proceeding before the Board’ brings a civil action, claiming to be ‘aggrieved by a decision of the Board.’” Therefore, only by the express stipulation and consent of all parties before the Board can a Board order be admitted into evidence in a civil proceeding like this one. There was no consent here. The Fourth Circuit held that while public documents, Board Orders are not admissible in a civil or criminal action absent consent, except for in an action brought by a party aggrieved by a Board decision. Therefore, the judgment of the district court was reversed and the case remanded.
Austin T. Reed
Decided: August 5, 2014
The Fourth Circuit held that the district court did not abuse its discretion on any of the Appellants’ claims.
Wells Fargo and Walker Jackson Mortgage Corporation, a subsidiary of Long & Foster Real Estate (“Long & Foster”), created Prosperity Mortgage Company (“Prosperity”) in 1993. Prosperity operated as a mortgage lender, and funded its loans through a wholesale line of credit provided by Wells Fargo. Appellants used Long & Foster as their realtor and purchased their homes through mortgages from Prosperity. In 2007, Appellants filed a class action lawsuit alleging that Wells Fargo and Long & Foster formed Prosperity as a “front” organization to facilitate illegal referral fees and kickbacks in violation of the Real Estate Settlement Procedures Act (“RESPA”). The jury returned a verdict in favor of Appellees, and Appellants moved for a new trial. The district court denied Appellants’ motion, and Appellants filed a timely appeal.
The Fourth Circuit stated that the district court did not abuse its discretion in denying Appellants’ motion for a new trial because Appellants raised its argument for the first time post-verdict that the statements made by defense counsel in its closing amounted to a judicial admission that Long & Foster referred Appellants to Prosperity to obtain their mortgages. Further, in reviewing the evidence, the Fourth Circuit found that it could not conclude that there was a total absence of evidence to support the jury’s verdict. Appellants also challenged the district court’s decision to allow testimony about the lack of economic harm that Appellants suffered from their use of Prosperity’s settlement services. However, the Fourth Circuit noted that the decision to allow Appellees’ attorneys to get general testimony from Appellants about Prosperity’s competitive loan pricing was relevant to determine whether Prosperity was in fact a “front” business, and whether it independently priced its loans, or was controlled by Wells Fargo and Long & Foster. Finally, the Fourth Circuit found that the district court did not abuse its discretion by refusing to strike the statements made by Appellees’ attorney in its closing statement. The Fourth Circuit stated that although defense counsel’s statements were improper, the statements were an isolated incident over the course of a seventeen-day trial, and had no bearing on the real issues. Thus, the Court found that no reasonable probability existed that these isolated comments diverted the jury from deciding the issues on the evidence and law it received from the trial court.
Alysja S. Garansi
Decided: June 16, 2014
The Fourth Circuit ruled that the district court erred in adopting the parent-child privilege and excusing a son “from testifying before a grand jury” on potential federal charges against his father. In doing so, the Court joined several other circuits, which have declined to recognize a parent-child privilege under Federal Rules of Evidence (F.R.E.) 501.
Sheriff deputies responded to an emergency domestic assault call from the Defendant’s (Mr. Doe) wife, and mother of their son (Doe Jr.). During this response, numerous firearms were discovered and seized at the Doe home. Though the assault charges were dismissed, the Government began an investigation to determine whether Mr. Doe unlawfully possessed unregistered firearms in violation of 26 U.S.C. § 5861(d). Mr. Doe and his wife separated, and Doe Jr. moved in with his father. The Government referred the case to a grand jury for possible indictment, and subpoenaed Doe Jr. “to determine the ownership of the illegal guns” found at the Doe home. Doe Jr. filed a motion to quash, claiming parent-child privilege. The district court granted the motion, emphasizing the privacy rights of Doe Jr. and concluding that the relationship between Doe Jr. and his father created a privilege.
After canvassing cases in other circuits, the Court stated that “reason and experience” did not warrant creation of the privilege in the face of substantial authority to the contrary. Moreover, the Court found that the nineteen-year-old son did not make a strong showing of the need for the parent-child privilege. The Court explained that the son was “not an impressionably very young child,” but rather an adult college student. The Court also referenced Doe Jr.’s testimony that he did not think his father would “cut [him] off[,]” or “hold it against [him]” if he testified truthfully. Because the Government only sought to determine the ownership of the firearms found at the Doe residence, the Court could not “say with certainty that Doe Jr.’s potential testimony would be of a nature that would damage the father-son relationship.”
The Court emphasized the “fundamental principal that the public has a right to ‘every man’s evidence.’” Doe Jr. was the only individual available to testify to the ownership. Thus, his testimony was particularly relevant to the grand jury’s investigation. On these facts, the Court stated that: “[c]reating a parent-child privilege in this case would therefore discount the [U.S.] Supreme Court’s admonishment that only limited exceptions should trump ‘the normally predominant principle of utilizing all rational means for ascertaining truth.’”
Lastly, the Court opined that allowing Doe Jr. to assert the parent-child privilege would fail the purpose of the privilege. Doe’s wife called 911 alleging spousal abuse, and, automatic weapons, firearms, and illegal weapons were discovered in the home. Based on these facts, the Government certainly had reason to investigate.
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.
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).
Samantha R. Wilder
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.
Samantha R. Wilder
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.
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.
– Sarah Bishop
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.
– Wesley B. Lambert
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.
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.
– Wesley B. Lambert
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.
– Stephen Sutherland
Decided: November 20, 2013
The Fourth Circuit = affirmed the district court’s grant of summary judgment in favor of the defendant, the United States Coast Guard (“USCG”), in a personal injury and wrongful death action. The Fourth Circuit held that the Coast Guard did not breach a duty of care in attempting to rescue Susan Turner and her husband, Roger Turner, Jr. and, therefore, that the Coast Guard was not liable for Mrs. Turner’s injuries or Mr. Turner’s death.
On July 4, 2007, Mrs. Turner and her husband (collectively, the “Turners”) left home on their private 20-foot long motorboat, intending to watch holiday fireworks. Before leaving, Mr. Turner told his father that the Turners would be going to one of three possible locations. After leaving a party on the Perquimans River, Mrs. Turner fell overboard, nearly one and half miles offshore. At some point thereafter, Mr. Turner also entered the water. The Turners’ boat stayed afloat, drifting downriver. When the Turners did not return home by 9:30 p.m., Mr. Turner’s father called 911. The USCG decided that, due to the number of potential locations and the current deployment of search assets on a confirmed emergency mission (a missing jet ski), the USCG would not initiate an active search for the Turners’ overdue boat at that time. Instead, the USCG would begin making radio calls and would inquire with local marinas later that morning. When the USCG discovered the Turners’ empty boat on the morning of July 5, it launched an air and sea search. During the night of July 4 and into the morning of July 5, Mrs. Turner tread water for nearly 12 hours, surviving by clinging to crab pot buoys. The USCG, despite extensive search efforts, did not find Mr. Turner; his body washed ashore two days later.
On appeal, Ms. Turner first argued that the Coast Guard breached a duty of care in attempting to rescue the Turners. The USCG’s enabling statute, 14 U.S.C. § 88, authorizes the USCG to undertake rescue efforts, but does not impose any affirmative duty to commence such rescue operations. However, pursuant to the Good Samaritan doctrine, once the Coast Guard undertakes a rescue operation, it must act with reasonable care. The Court held that this doctrine sets a high bar to impose liability on a rescuer: the evidence must show that the rescuer failed to exercise reasonable care in a way that worsened the position of the victim. The Turners did not show that the USCG’s actions worsened their position. The thrust of the plaintiff’s case was that the USCG should have done something to alleviate the Turners’ predicament sooner; however, the USCG was under no obligation to do so. Nor did the USCG’s actions worsen the Turners’ position by inducing reliance on the part of either the Turners or a third party. Because the Turners themselves never spoke with the Coast Guard, they could not have relied on representations by the USCG.
Second, Mrs. Turner demanded sanctions premised on the USCG’s alleged deliberate spoliation of evidence, which the court denied. A party seeking sanctions based on the spoliation of evidence must establish that the alleged spoliator had a duty to preserve material evidence. Here, Mrs. Turner said that the USCG wrongfully destroyed audio recordings of telephone calls to the Coast Guard by recycling them and recording over them. The Court found, however, that Mrs. Turner did nothing to trigger a duty to preserve evidence on the part of the USCG. She did not send the USCG a document preservation letter, or any other correspondence threatening litigation.
Third, Mrs. Turner challenged the propriety of USCG’s responses to Turner’s Freedom of Information (“FOIA”) request. A valid FOIA claim requires three components: the agency must have (1) improperly (2) withheld (3) agency records. Here, Mrs. Turner argued that the USCG’s failure to retain voice tapes and emails should stand as proof that the USCG’s search for such responsive documents was inadequate. However, the lack of responsive documents does not signal a failure to search.
Finally, Mrs. Turner argued that the district court deprived her of due process by permitting the USCG to file its summary judgment motion more than 12 months after the deadline for filing dispositive motions. However, the district court gave Mrs. Turner the opportunity to file a brief in opposition to USCG’s motion for summary judgment, and Mrs. Turner did so. Therefore, her due process rights were not violated.
– Sarah Bishop
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.
– Sarah Bishop
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,
– John G. Tamasitis
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.
– Stephen Sutherland
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.
-John G. Tamasitis
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.
– A. Hadden Lucas
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.”
– Stephen Sutherland
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.
– Sarah Bishop
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.
– Stephen Sutherland
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.
– Sarah Bishop
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.
– Allison Hite
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).
-Jonathan M. Riddle
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.
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 committed the robbery. The bank teller’s testimony, while damaging to the defendant, had not been an essential part of the prosecutor’s case against the defendant. Thus, the court refused to reverse the defendant’s convictions on the basis of plain error.
-John C. Bruton, III
Decided: December 18, 2012
The Fourth Circuit affirmed Ayesh’s convictions of two counts of theft of public money in violation of 18 U.S.C. § 641 and one count of committing acts affecting a personal financing interest in violation of 18 U.S.C. § 208(a). Ayesh challenged the district court’s extraterritorial jurisdiction over him, denial of his motion to suppress post-arrest statements, and the sufficiency of the evidence to sustain his convictions.
Ayesh, a resident of Jordan, was hired by the U.S. Department of State to work as the shipping and custom supervisor of the U.S. Embassy in Baghdad, Iraq. While working there, Ayesh devised a scheme to divert United States funds to his wife’s bank account in Jordan. U.S. officials suspected Ayesh’s wrongdoing and arranged for him to come to the United States on the pretext of attending a training seminar. Ayesh was then arrested at Dulles International Airport and questioned by FBI agents. After about five hours of questioning, Ayesh confessed.
The Fourth Circuit found no error with the extraterritorial jurisdiction exercised over Ayesh. Congressional intent to exercise overseas jurisdiction can be inferred from the nature of the offenses criminalized by 18 U.S.C. §§ 208(a) and 641. The extraterritorial application of these statutes also comported with international law and due process. The Fourth Circuit upheld the district court’s denial of Ayesh’s motion to suppress his post-arrest statements. While Ayesh claimed his statements were involuntary or coerced after traveling for nineteen hours without sleep or food, the Fourth Circuit found that Ayesh was offered food which he refused, signed his rights away, and never appeared to be or stated that he was tired, confused, or not thinking clearly. Under the totality of the circumstances, the Fourth Circuit found that Ayesh’s statements were freely and voluntarily given. The Fourth Circuit also rejected Ayesh’s claim that there was insufficient evidence to sustain his convictions. Ayesh challenged his conviction of theft of public money because the government actually received the specified goods and services. However, this does not negate Ayesh’s criminal intent to deprive the United States of the use or benefit of the money.
Decided: December 17, 2012
Kristen Deanna Smith appealed her conviction by a jury of involuntary manslaughter, arguing that the district court committed three reversible errors. The Fourth Circuit held that the district court did not commit reversible error and that sufficient evidence supported the jury’s verdict and accordingly affirmed Smith’s conviction.
In 2009, Smith’s car crossed the median of a highway, flipped several times, and finally crashed into a stone wall. Emergency medical technicians pronounced Smith’s passenger dead at the scene and transported Smith to the hospital, which administered a blood test. An officer monitoring Smith at the hospital testified that she made unsolicited statements, including: “Don’t ever drink and drive,” “I just hope he’s okay,” and “Lock me up and throw away the key.” Another blood draw conducted the next morning revealed that Smith had a blood alcohol content of .09. The government charged Smith with “homicide during the commission of an unlawful act not amounting to a felony,” in violation of 18 U.S.C. § 1112(a); the underlying unlawful act, 34 C.F.R. § 4.23(a)(2), prohibits operating or controlling a vehicle with a blood alcohol content of .08 or greater. A jury convicted Smith of involuntary manslaughter and Smith appealed.
On appeal, Smith argued that the district court improperly admitted expert testimony about alcohol metabolization. The Fourth Circuit found that the prosecution’s summary of anticipated expert testimony, required to be delivered upon the defense’s request pursuant to Federal Rule of Criminal Procedure 16(a)(1)(G), was “less than fulsome,” but found that any error was harmless, as Smith failed to show prejudice. Next, Smith argued that the district court erred in failing to give a judgment of acquittal, because the government did not prove beyond a reasonable doubt that her blood alcohol level at the time of the accident exceeded .08. Interpretation of § 4.23(a)(2) varies; some courts require the government “directly prove a defendant’s blood alcohol content at the time he or she was driving,” while others hold it is sufficient to “produce evidence of blood alcohol levels within a reasonable time after driving.” The Fourth Circuit held that, based on all of the evidence, the government established a per se violation of § 4.23(a)(2), and thus concluded that Smith was not entitled to a judgment of acquittal. Finally, Smith argued that the district court’s refusal “to give her requested jury instruction concerning blood alcohol level extrapolation” amounted to error. Failure to give requested jury instructions is reviewed for abuse of discretion and constitutes a basis for reversal “only when the rejected instruction ‘(1) was correct; (2) was not substantially covered by the court’s charge to the jury; and (3) dealt with [an integral part of the trial], that failure to give the requested instruction seriously impaired the defendant’s ability to conduct his defense.’” United States v. Passaro, 577 F.3d 207, 211 (4th Cir. 2009). The Fourth Circuit held that the district court did not abuse its discretion because Smith’s proposed instruction “was not necessarily correct and…was ‘substantially covered by the court’s charge to the jury.’” The Fourth Circuit affirmed the district court’s judgment.
Decided: December 13, 2012
On appeal, Phillip A. Hamilton challenged his conviction for federal program bribery and extortion under color of official right. Hamilton also challenged his sentence of 114 months’ imprisonment. The Court of Appeals affirmed both Hamilton’s conviction and sentence.
From 1988 to 2009, Hamilton served as a state legislator. During this time, Hamilton also worked as an administrator and a part-time consultant for the Newport News public schools system. In August 2006, Hamilton sought a meeting with Old Dominion University (ODU) officials to discuss state funding for a new Center for Teacher Quality (the “Center”). Immediately prior to the meeting, Hamilton and his wife exchanged emails discussing their financial difficulties. Hamilton hoped that the new Center would employ Hamilton and that he would make about $6,000 a month. These emails were sent to and from Hamilton’s public school workplace computer, through his work email account. About four months later, Hamilton emailed ODU officials and explained that because the Governor’s budget did not include money for the Center, Hamilton had proposed a budget amendment to secure $1 million in funding. Hamilton also reiterated his desire have a salary-based position with the Center. Thereafter, Hamilton introduced legislation for the first of two $500,000 appropriations for the Center. Both appropriations ultimately passed. Hamilton was then selected as Center Director at a salary of $40,000 per year. However, he had never filed an application for the position, and an ODU official later testified that Hamilton would have never been offered the position if not for his legislative assistance. Based on this evidence, the Government charged Hamilton with bribery concerning federal program funds in violation of 18 U.S.C. § 666(a)(1)(B) (2006), and extortion under color of official right in violation of 18 U.S.C.§ 1951. The jury convicted Hamilton of both crimes, and the district court sentenced him to 114 months. Hamilton then filed a timely appeal.
Hamilton’s main argument on appeal challenged the district court’s admission into evidence of the emails he sent to and received from his wife. Hamilton essentially argued that the admission of the emails violated the marital communications privilege. The Court of Appeals first noted that under the general rule, private communications between spouses are presumptively confidential and thus privileged. However, the court also noted this privilege can be waived by a “voluntary disclosure.” The Government argued that Hamilton waived his privilege by communicating with his wife on his workplace computer, through his work email account, and subsequently failing to safeguard the emails. The court agreed and held that Hamilton waived any privilege he had over the emails. The court noted that the school district’s computer use policy expressly provided that users have “no expectation of privacy in their use of the Computer System.” The court also noted that Hamilton electronically signed forms accepting the policy and that he had to acknowledge the policy by pressing a key to proceed to the next step of the log-on process every time he logged into his workplace computer.
Decided: August 14, 2012
The Fourth Circuit Court of Appeals affirmed the convictions of three defendants who were tried together for charges relating to the murder of certain government witnesses, the murder of a co-conspirator, and numerous other narcotics and firearms-related offenses. While defendant’s raised many issues on appeal, the primary holdings were that “the district court did not abuse its discretion in maintaining juror anonymity, and that the challenged hearsay statements were admissible based on the defendants’ conduct leading to the witness’ death.”
The offenses arise from the three defendants’ involvement in a Baltimore drug-trafficking organization known as “Special.” Gilbert was considered a “leader,” Dinkins was an “enforcer” who committed murders for hire, and Goods sold drug for the organization. On September 10, 2005, Dinkins was paid to shoot and killed Jemmison, a government informant. John Dowery, another Special member, witnessed a murder committed by two other Special members and became a government witness and informant. On October 19, 2005, Dinkins and West shot Dowery multiple times outside of his house. Dowery survived and identified Dinkins as the shooter. Dowery was relocated and measures were taken to protect his as a witness. Dowery decided to return home for Thanksgiving, and was shot several times by Gilbert and Goods. Dowery died from those wounds.
The main focus of the Fourth Circuit was whether the district court committed reversible error in deciding to empanel an anonymous jury, and whether the hearsay statements of Dowery were admissible.
The issues and circumstances under which a district court may empanel an anonymous jury presented a matter of first impression. In non-capital cases a district court may empanel an anonymous jury in any case in which the interests of justice so require. In capital cases, an anonymous jury may be empanelled when a district court determines, by a preponderance of the evidence, that a non-anonymous jury may jeopardize the life or safety of any person. The Fourth Circuit held that a district court may empanel an anonymous jury only in rare circumstances and when two conditions are met: (1) there is a strong reason to conclude that the jury needs protection, and (2) reasonable safeguards have been adopted to protect the rights of the accused. The Fourth Circuit applied these conditions and the Ross factors, and found that an anonymous jury was justified for all three defendants. The defendants participated in organized criminal activity, belong to an organization with the capacity to harm jurors, had previously engaged in attempts to interfere with judicial process, and had the incentive to do so again due to the severe sentences they faced. The district court took reasonable precautions to minimize the risk that the defendants’ rights would be infringed by downplaying the existence of an anonymous jury. The jury did not know their biographical information was withheld, protecting the defendants’ right to a presumption of innocence. The district court also took appropriate measures to protect the defendants’ right to a trial by impartial jury by allowing a juror questionnaire collaboratively drafted by all parties, a four day voir dire, and for zip codes, counties, and neighborhoods of potential jurors to be revealed to the parties.
The Fourth Circuit held that Dowery’s hearsay statements were admissible under Federal Rule of Evidence 804(b)(6) and the common law hearsay exception of forfeiture-by-wrongdoing. Dowery, who was shot by Dinkins, and then shot and killed by Goods and Gilbert, was made unavailable by the defendants’ intentional, or acquiesced in, wrongdoing to prevent him from testifying. As a matter of first impression, the Fourth Circuit held that traditional principles of conspiracy liability are applicable within the forfeiture-by-wrongdoing analysis.