January 21, 2014

Short Wins - The First Post of 2014 Edition

There's been a lot of action in the federal circuits these first few weeks of the year, and here, in one post we have a lot of it.

One shout out in particular is U.S. v. Aparicio-Soria. The Fourth Circuit weighs in on resisting arrest. Is it always a crime of violence? Surely not, but, well, it takes a while for things to get to that point.

Congratulations Sapna Mirchandani for a nice win!

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Jones, Third Circuit: Appellant was sentenced to 120 months imprisonment following a guilty plea to possession of a firearm by a convicted felon. The Third Circuit vacated the sentence finding that the District Court erred in applying a sentencing enhancement for assault of a police officer. Since the officer was unaware that the Appellant was attempting to withdraw a gun, the officer had not been assaulted.

Defense Attorneys: Thomas W. Patton

2. U.S. v. Guzman, Fifth Circuit: Appellant, who was convicted of being a felon in possession of a firearm, appeals his conviction and sentence because the trial court denied his motion to suppress evidence. Because the District Court expressly declined to make factual findings that may have had a determinative impact on the outcome of the suppression hearing, the Fifth Circuit vacated the conviction and sentence. The case was remanded to ascertain whether the police officer asked Appellant for consent to search his car.

3. U.S. v. Shepard, Sixth Circuit: Appellant was found guilty of three counts of receipt of visual depictions of minors engaged in sexually explicit conduct and one count of attempted receipt. Appellant appealed his convictions and sentence because one juror, prior to the commencement of trial, contacted the court and expressed his inability to view any pictures or video because of the content of those materials. The Sixth Circuit remands for retrial, finding that it was an abuse of discretion to not excuse the juror.

Defense Attorney: Gregory A. Napolitano

4. U.S. v. Currie, Seventh Circuit: Appellant pled guilty to charges of conspiracy to distribute cocaine and possession of a firearm following a felony conviction and was convicted to 121 months imprisonment. At the time of sentencing, the district court believed the mandatory minimum for Appellant to be ten years. The Seventh Circuit remanded for the purpose of ascertaining whether the district court would be inclined to sentence the Appellant differently knowing that Appellant is subject to the lower statutory minimum of five years.

5. U.S. v. Spencer, Seventh Circuit: The Seventh Circuit vacated Appellant's sentence because the district court improperly included a sentencing enhancement. Because one of Appellant's prior convictions did not qualify as a "serious drug offense", the sentencing enhancement should not have been applied when calculating his sentence.

6. U.S. v. Toledo, Tenth Circuit: Appellant was convicted of voluntary manslaughter. During trial the court denied Appellant's request for self-defense and involuntary manslaughter jury instructions. The Tenth Circuit reversed and remanded for a new trial finding that the evidence warranted self-defense and involuntary manslaughter instruction s so that the jury could make factual findings once properly instructed.

Defense Attorney: Marc H. Robert

7. U.S. v. Clark, Second Circuit: After a jury trial, Appellant was convicted of being a felon in possession of a firearm and possession of a controlled substance. On appeal, the conviction for possession of a controlled substance was reversed. The Second Circuit held that there was insufficient evidence for that conviction such that no jury could reasonable find beyond a reasonable doubt that it happened.

8. U.S. v. Vasquez Macias, Second Circuit: Appellant was found guilty by a jury of being a previously-deported alien "found in" the United States. The Second Circuit reversed because Appellant had left the United States, seeking entry into Canada, when he was detained. Appellant was returned to the United States in custody and, although previously had been voluntarily in the United States, he was not "found in" the US at that point.

Defense Attorneys: Jayme L. Feldman and Tracey Hayes

9. U.S. v. Aparicio-Soria, Fourth Circuit: Appellant pled guilty to one count of unlawful reentry of a deported alien after sustaining an aggravated felony conviction. During sentencing, an enhancement was applied for the use of force because of a previous conviction for resisting arrest. The Fourth Circuit held that the Maryland crime of resisting arrest does not categorically qualify as a crime of violence within the meaning of the U.S. Sentencing Guidelines and therefore vacated and remanded for resentencing.

Defense Attorneys: Sapna Mirchandani and James Wyda

10. U.S. v. Freeman, Fourth Circuit: Appellant was convicted of obstructing federal bankruptcy proceedings and ordered to pay $631,050.52 in restitution to the victims. The Fourth Circuit vacated the order of restitution because that loss was suffered during conduct for which Appellant was not charged or convicted.

Defense Attorney: Nancy Susanne Forster

11. U.S. v. Simpson, Fifth Circuit: Simpson's conviction for registration of a false domain name was overturned on appeal because the domain was registered in October 2004 and the relevant law was not enacted until December 2004 and there was no proof that Simpson falsely registered a domain after December 2004. Simpson's sentence was vacated and the case remanded for resentencing.

12. U.S. v. Seymour, Sixth Circuit: Seymour appealed his sentence of 100 months' imprisonment following a conviction of being a felon in possession of a firearm. His sentence was vacated and the case remanded for resentencing because the district court inappropriately applied a firearm sentencing enhancement.

Defense Attorney: Jeffrey F. Kelleher

13. UU.S. v. Cureton, Seventh Circuit: Appellant was convicted of two counts of using a firearm in connection with a violent felony. On appeal, one of those convictions was vacated because both arise from the same conduct.

14. U.S. v. Washington, Seventh Circuit: Appellant pled guilty to attempting to possess cocaine with the intent to distribute and was sentenced to 97 months in prison. The Seventh Circuit found that the trial court's explanation for the sentence imposed was insufficient. The trial court only said that it had considered all factors under the law and that the crime was serious. This insufficiency required the sentence to be vacated and the case was remanded for resentencing.

15. U.S. v. Boose, Eighth Circuit: Appellant's 120-month sentence was vacated. During sentencing, an enhancement was applied for a career offender, but the Eighth Circuit held that Appellant does not meet the definition of a career offender.

December 30, 2013

Short Wins - Last Post Of The Year Edition

It's generally a slow time of year between Christmas and New Year's, but the federal circuits have been busy. But who wouldn't want to start the year with a remand in a criminal case (other than the government)?

Since we were off last week, here are the wins from the last two weeks in the federal circuits.

Happy New Year!

To the victories:

1155650_berlin_siegessule.jpg1. U.S. v. Duron-Caldera, Fifth Circuit: Appellant was convicted of illegal reentry. The conviction was vacated and the case remanded because the government should not have been allowed to admit an affidavit by the appellant's grandmother. The use of the affidavit violated the Confrontation Clause.

2. U.S. v. Doss, Seventh Circuit: Appellant was convicted and sentenced for a variety of identity fraud and identity theft charges. Finding that a sentencing enhancement was improperly applied, the Seventh Circuit vacated the sentence.

3. U.S. v. DeJarnette, Ninth Circuit: DeJarnette appealed his conviction for failure to register as a sex offender. The Ninth Circuit reversed the conviction because the Attorney General has not validly specified if the Sex Offender Registration and Notification Act (SORNA) applied to those already under sex offender restrictions when SORNA was enacted.

Defense Attorney: Mark D. Eibert

4. U.S. v. Timmann, Eleventh Circuit: Appellant was convicted of possession of a firearm by a convicted felon. On appeal, the Eleventh Circuit vacated the convictions because the trial court improperly denied the Appellant's motion to suppress evidence collected from a warrantless search. Because there was no urgent, ongoing emergency, the emergency aid exception to the warrant requirement should not have applied, and therefore the evidence collected should have been suppressed.

5. U.S. v. Pole, D.C. Circuit: Appellant was convicted of five counts of wire fraud and one count of theft. Because Appellant's claim for ineffective assistance of counsel was colorable, they were remanded. Further, because the trial court did not make the proper factual findings regarding restitution, the restitution order was vacated and remanded.

Defense Attorneys: Beverly G. Dyer, A.J. Kramer, and Tony Axam, Jr.

6. U.S. v. Rushton, Seventh Circuit: Appellant pled guilty to one count of mail fraud and one count of money laundering and received a 4-level enhancement at sentencing for commodity pool operator fraud as well as a 2-level enhancement for abuse of a position of trust. The Seventh Circuit reversed and remanded because the abuse of trust enhancement is barred if the enhancement for being a commodity pool operator applies; therefore, Appellant's sentence was not calculated correctly.

7. U.S. v. Caceres-Olla, Ninth Circuit: After pleading guilty to unlawful reentry into the United States, Appellant was sentenced to 46 months in prison. The court applied a sentencing enhancement based on a prior crime. However, the Ninth Circuit held that a prior felony conviction under Florida Statute §800.04(4)(a) does not qualify as a crime of violence and therefore vacated and remanded for resentencing.

8. U.S. v. Lin, Ninth Circuit: Appellant was convicted under 18 U.S.C. §1546(a) for fraud and misuse of visas, permits, and other documents. The panel from the Ninth Circuit remanded because §1546 does not prohibit the mere possession of an unlawfully obtained driver's license issued by the Commonwealth of the Northern Mariana Islands. Instead, §1546 targets different documents, but the government did not prove that Appellant possessed any such document.

Defense Attorney: Mark B. Hanson

9. U.S. v. Eiland, D.C. Circuit: Eiland and Miller were convicted of various narcotics-related offenses. On appeal, the D.C. Circuit vacated Miller's conviction for participation in a continuing criminal enterprise because the government failed to produce sufficient evidence that Miller acted as an organizer, supervisor, or manager to five or more individuals. Thus, the government did not establish all elements of the crime. The Court also vacated the fine imposed on Eiland and remand for reconsideration of that portion of the sentence because the district court vacated the conviction for which the fine was imposed.

Defense Attorneys: Eric H. Kirchman, Kenneth M. Robinson, Dennis M. Hart, and Frederick Miller

10. U.S. v. Miller, D.C. Circuit: This case is related to the above case, U.S. v. Eiland. In this related opinion, the D.C. Circuit vacates a number of convictions because the district court's responses to jury notes impermissibly interfered with the jury's independent role as fact-finder. The trial court abused its discretion by directing the jury to evidence previously unidentified by the jury as supporting a charge in the indictment. The Court also vacated Thomas' life sentences for narcotics conspiracy and RICO conspiracy and remanded for resentencing because those sentences violated Apprendi.

Defense Attorneys: Dennis M. Hart and David B. Smith

December 17, 2013

Short Wins - It's White-Collar Week In The Federal Circuits

It's white-collar week here at the federal criminal appeals blog. Two big wins in white collar cases - a price fixing conspiracy case in U.S. v. Grimm and a sentencing win in a securities fraud case in U.S. v. Simmons.

It warms your heart right before the holidays.

This is also the last week to vote for this blog on the ABA Blog 100. Here's the link - scroll down to the criminal justice blogs and you'll find us.

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Grimm, Second Circuit: Three co-defendants were tried and convicted of violating the general federal conspiracy statute for charges arising from the fixing of below-market interest rates paid by General Electric to municipalities. Finding that the continued payment of depressed interest to municipalities did not constitute overt acts in furtherance of the conspiracy, the Second Circuit held that the statute of limitations had run. The convictions were reversed and the case remanded to the district court for dismissal of the indictment.

Defense Attorneys: Howard E. Heiss, Jonathan D. Hacker, Anton Metlisky, Deanna M. Rice, James R. Smart, Walter F. Timpone, David C. Frederick, Brendan J. Crimmins, Emily T.P. Rosen, Andrew Goldsmith, John S. Siffert, Daniel M. Gitner.

2. U.S. v. Simmons, Fourth Circuit: Appellant was convicted of securities fraud, wire fraud, and two counts of money laundering. Both money laundering convictions were reversed because the transactions prosecuted as money laundering constituted essential expenses of the underlying fraud claims and therefore merged with those charges. Appellant's sentence was vacated and the case remanded.

Defense Attorneys: Joshua B. Carpenter, Henderson Hill, Ann L. Hester.

December 11, 2013

The D.C. Circuit Holds That A Judge In D.C. Cannot Authorize A Bug in Maryland

The United States government thought that Lonnell Glover was a drug dealer. They tapped his phone, but he spoke in code so they couldn't get any evidence on him that way.

The government knew that Mr. Glover liked to talk in his truck, as so many Americans do. So they decided to get authorization from a judge to put a bug - a little microphone - in his truck.

The bug was authorized by a federal judge in Washington, D.C. The truck, at the time, was at Baltimore Washington International Airport (or, more accurately, Thurgood Marshall Baltimore Washington International Airport).

bug-1411396-m.jpgThe bug picked up some conversations, not in code, that strongly suggested Mr. Glover is a drug dealer. He was convicted, and, on appeal, challenged the validity of the wire tap because it was authorized by a federal judge in D.C. for a car in Maryland.

The D.C. Circuit, in an opinion by Senior Judge Silberman, reversed, in United States v. Glover.

Eighteen U.S.C. section 2518(3) allows a federal district judge to:

"authoriz[e] or approv[e] interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction)."

Does this language let a federal judge in Washington, D.C. authorize a wire tape for a wire that's not in Washington, D.C.?

That parenthetical is not a model of clarity. Here's how the D.C. Circuit parses it:

To be sure, the parenthetical phrase is somewhat ambiguous. It seems reasonable to read the words "such jurisdiction" in the phrase as referring back to the jurisdiction in which the judge is sitting; i.e., in this case, the District of Columbia, since the provision mentions no other jurisdiction. It is also possible that the phrase, by implication, refers to the jurisdiction in which the mobile interception device is installed.

So, could the parenthetical be read to say that a federal judge in D.C. could authorize the interception of conversations in Maryland for an investigation being run by the U.S. Attorney's Office in DC? The D.C. Circuit says no - it doesn't work with the rest of the language of the section:

Under either reading, the parenthetical makes clear that a judge cannot authorize the interception of communications if the mobile interception device was not validly authorized, and a device cannot be validly authorized if, at the time the warrant is issued, the property on which the device is to be installed is not located in the authorizing judge's jurisdiction. A contrary reading would render the phrase "authorized by a Federal court within such jurisdiction" completely superfluous.

The government has a response to this.

It argues that:

The government points to a handful of cases in which courts have found that an "interception" under Title III takes place at both the location of the listening post and at the location of a tapped phone. The government argues that in light of these cases, we should recognize that an issuing court has the power to authorize covert, trespassory entries onto private property, anywhere in the country, for purposes of placing surveillance equipment. The only jurisdictional limitation the government acknowledges is that the listening post must be located in the issuing court's jurisdiction.

It's like the argument the government frequently makes about wire fraud venue - any place that the wire goes through is an appropriate location for venue. If you email from California to Nevada, but the email goes through a server in Virginia, the government has argued that you can be tried in Virginia. Though it's a little odder here - the government, of course, controls where the listening post sits.

The D.C. Circuit doesn't go along with the government here - noting that the "listening post" language is just not in the statute.

Finally, the government asks the Court to ignore the jurisdictional problem because of the "good faith" exception to the warrant requirement. The D.C. Circuit gives this argument short shrift:

The government's last refuge is a plea that we recognize the government's "good faith" and, therefore, import a good faith exception to Title III's remedy of suppression. The Supreme Court has done so regarding Fourth Amendment violations, see United States v. Leon, 468 U.S. 897, 911 (1984), where there is no explicit textual remedy. Here, of course, Congress has spoken: The statute requires suppression of evidence gathered pursuant to a facially insufficient warrant.

The convictions were reversed, and the wiretapped conversations are suppressed.

December 10, 2013

Short Wins - The Bizarre Supervised Release Condition Edition

There are some good wins in the federal circuits from last week, but I think that perhaps the most interesting is U.S. v. Malenya.

The case deals, primarily, with supervised release conditions. I've seen some odd supervised release conditions, but this one takes the cake:

You shall notify the U.S. Probation Office when you establish a significant romantic relationship, and shall then inform the other party of your prior criminal history concerning your sex offenses. You understand that you must notify the U.S. Probation Office of that significant other's address, age, and where the individual may be contacted.

Check out the full opinion to see how this, and other really broad conditions, are handled.

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Taylor, Second Circuit: Taylor and his co-defendants were convicted of various charges related to a robbery of a pharmacy. Taylor fell asleep repeatedly during post-arrest questioning and was only intermittently alert. Finding that Taylor's post-arrest statements were not voluntary, and admission of those statements was harmful error, the Second Circuit vacated the convictions of all three men and remanded for a new trial.

Defense Attorneys: Kelley J. Sharkey, Jillian S. Harrington, and Colleen P. Cassidy

2. U.S. v. Robertson, Fourth Circuit: Appellant pled guilty to carrying a firearm as a convicted felon, a charge which arose after he was approached by police and allowed them to search him. Finding that Appellant never actually consented, but merely obeyed the police officer's orders, the Fourth Circuit found that the search was presumptively unreasonable in the absence of probable cause. The conviction was reversed.

Defense Attorney: Ronald Cohen

3. U.S. v. Malenya, D.C. Circuit: Appellant entered a plea agreement and received a 36-month term of incarceration, with all suspended but a year and a day. The court also imposed 36 months of supervised release subject to several specific conditions. Because the trial court did not weigh the burden of the supervision conditions with their likely effectiveness, there was an unconstitutional deprivation of liberty. The supervised release conditions are vacated and the case remanded to impose alternative conditions.

Defense Attorneys: Jonathan S. Jeffress, A.J. Kramer, Rosanna M. Taormina, and Tony Axam Jr.

4. U.S. v. Martinez-Cruz, D.C. Circuit: Appellant pled guilty to a single count of conspiracy to distribute methamphetamine. At the time he pled guilty, Appellant waived his right to counsel. Because Appellant provided proof that he was illiterate at the time he signed the plea agreement, the D.C. Circuit found that the burden should have shifted to the government to show, by a preponderance of the evidence, that the wavier was in fact valid. Since the trial court did not shift the burden, the judgment was vacated and the case remanded.

Defense Attorney: Richard K. Gilbert

December 5, 2013

In a Child Porn Case, the Fourth Circuit Clarifies Who's Opinion About Custody Matters, and Worries about the Government Having a 'Heavy Foot'

In many ways, Faisal Hashime's case is a typical child pornography case. A government agent was on the internet looking at child pornography. He saw an email address. He emailed that address and the person who answered agreed to send some child pornography to him.

red-symbols-3-1092769-m.jpgAgents traced the IP address for the email that was sent, and it led to the Hashime residence. There, 19 year old Faisal Hashime lived with his family while he went to community college in Northern Virginia. The agents got a search warrant, as they almost always do in child pornography cases.

Armed with a battering ram, a search warrant, and a phalanx of officers, they stormed into the Hashime residence one morning.

They ordered Faisal and the rest of his family outside. Like many college students, Faisal had been up until 5 a.m. He was wearing his boxer shorts and was forced to stand with the rest of his family in the front yard where the neighbors could see him. It was a chilly morning in this Washington, D.C. suburb, but the family was forced to stand outside in the cold.

Eventually, the family was taken back inside. They weren't allowed to move around their home. They were then taken into their living room. Faisal asked to go to the bathroom but was refused. His mother, who was recovering from brain surgery, asked to lie down, but was not allowed to.

Finally, Faisal was taken to an unfinished part of the basement and interrogated for three hours. He was told he could leave and that he didn't have to make a statement, but he was also told by the officers that they needed to get the truth from him, and that they couldn't leave him there alone.

His mother told the agents that they shouldn't talk to him without a lawyer, but they ignored her and wouldn't let her near Faisal.

At one point, he asked if the interrogation was being recorded. The lead agent told him he wasn't recording the conversation. One of his colleagues, though, was.

He wasn't given Miranda warnings until the end. But before those warnings, he gave a lengthy confession.

He was indicted for possession of child pornography, receipt, distribution, and production.

He filed a motion to suppress his statement, saying that it was custodial and he wasn't given Miranda warnings.

The district court in the Eastern District of Virginia listened to the tape. She said that Faisal sounded calm, so he couldn't have thought he was in custody. The motion was denied.

The Fourth Circuit, in a surprisingly strong opinion by Judge Wilkinson in United States v. Hashime, overturned the district court.

The Fourth Circuit pointed out that here, the agent's action looked like this was custodial. Yet Faisal's demeanor looked like he didn't think this was custody (as far as one could tell from the tape).

But, while the district court relied on Faisail's demeanor, the Fourth Circuit pointed out that it should have, instead, focused on the agents' conduct.

Whether a person is in custody depends on whether a reasonable person in that situation would think she isn't free to leave. It's a classic objective test.

So, the Fourth Circuit pointed out - things from the point of view of the person being interrogated kind of don't really matter. The question isn't what that guy thought, but what someone in his position should have thought.

So the case was remanded for a new trial.

But that's not the only thing interesting about this case.

Faisal decided to plead guilty to the charge of possession and receipt. The receipt of child pornography charge alone carried a mandatory minimum term of five years.

The government, wanting to push forward for even more time, went to trial on the production and distribution charge. The production charge is perhaps the most disturbing - Faisal "produced" child pornography by convincing boys on the internet to send him naked pictures of themselves.

He was convicted, and a fifteen year mandatory minimum applied.

Looking at this, the Fourth Circuit said,

Our reversal of the conviction makes it unnecessary to address any sentencing questions. It suffices to note that, in line with our own review of the custody issue and the district court's comments at sentencing, this was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant's conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.

This is not your father's Fourth Circuit

December 4, 2013

Short Wins - The Fair Trial, New Yorker, and Voting Link Edition

Before we get to the last week's wins in the federal circuits, three things:

First, I think the most interesting opinion from the federal circuits in the last week is United States v. Murray from the Second Circuit. Trials in criminal cases may be statistically anomalous, but you still have to let the defendant put on his case.

Second, I can't strongly recommend enough the article in the December 9 issue of the New Yorker on false confessions (sadly, subscription is required). If you're a law geek, there's a lot in the New Yorker this week for you - including a piece by Jeffery Toobin on why the Constitution is really dusty (login required). More on that piece from Above the Law is here.

If you don't have access to the false confession piece, here's the bottom line (and, yes, folks in the trenches already knew much of this):

  • Confessions are really important to jurors.
  • Police can get confessions really easily based on the way American law enforcement do things using a "Reid-style interrogation".
  • Psychologists have shown pretty persuasively (to my eye) that Reid-style interrogations get false confessions.
  • Reid-style interrogations have been at the root of false confessions in a bunch of false conviction DNA cases.
  • British cops have figured out a way to do interrogations that doesn't get false confessions, but still let the police do their investigations.
  • American law enforcement resist change from Reid-style interrogations because they hate science.

Ok, that last point may be the result of an aggressive read on my part. But, like the New Yorker's recent pieces on forfeiture, child pornography civil commitments, and errors in deportation (subscription required for this one), there's some really good reporting on criminal justice issues going on there.

Third, it was pointed out to me that I never provided a link to where you can vote for your favorite law-related blog of 2013. That link is here. Apologies and Happy voting!

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Murray, Second Circuit: Appellant was tried and convicted of four counts of cultivating marijuana following a jury trial. The district court, during the trial, did not allow Appellant to present surrebuttal evidence regarding cell phone towers. The sentence was vacated and the case remanded because this denied Appellant a fair opportunity to defend his case.

Defense Attorney: Lee Ginsberg

2. United States v. Montes-Flores, Fourth Circuit.pdf: After Appellant was sentenced to 46 months imprisonment for illegal reentry into the United States, he appealed his sentence. The Fourth Circuit vacated the sentence and remanded for resentencing finding that the district court improperly applied the modified categorical approach to assault and battery of a highly aggravated nature. This misapplication resulted in a higher sentencing enhancement and therefore sentencing guidelines calling for a higher sentence.

Defense Attorney: Kimberly Harvey Albro and Ann Briks Walsh

November 26, 2013

Short Wins - Blog 100 Announcement Edition

Gentle readers, the ABA has, for the third year in a row, said that this is one of the best legal blogs in the land. Thank you very much for writing in to the ABA to promote this blog and, I assume, bribe them.

2013_Blawg100Honoree_150x150.jpgHere's a list of all the ABA Blog 100 blogs. You can also vote for this blog in the criminal justice category.

This week, not counting the Migdal win we saw last week, there is but one win.

Happy Thanksgiving everyone!

To the victory!

1155650_berlin_siegessule.jpg1. United States v. Arreguin, Ninth Circuit: Appellant's motion to suppress evidence was denied by the District Court. The Ninth Circuit reversed and remanded, directing the trial court to grant the motion to suppress. The Ninth Circuit found that the agents could not have an objective reasonable belief that a houseguest had apparent authority to consent to a search, the government's protective sweep argument was waived, and the plain view doctrine does not apply.

Defense Attorney: Nicholas F. Reyes

November 18, 2013

Short Wins - the Greg Poe Vindicates An AFPD's Reputation Edition

Last week's wins are below - and there are some great reads.

But today, let's congratulate Greg Poe for his work challenging sanctions imposed on a fine career AFPD in the Sixth Circuit.

Here's a link to the opinion.

Nice work, Greg!

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Christie, Second Circuit: The district court denied Appellant's motion for a reduction of sentence based on the sentencing guidelines range, even though Appellant was eligible for such a reduction. On appeal, Appellant's case was vacated and remanded to the district court because the court failed to provide an explanation of its decision that was sufficient to permit meaningful appellate review.

Defense Attorney: John W. Brewer

2. U.S. v. Chavez, Tenth Circuit: After being deemed not competent to stand trial, the government won a motion to have Appellant involuntarily medicated. Because the government did not present evidence of an individualized treatment plan for the Appellant, the Tenth Circuit found clear error, vacated the court order, and remanded for further proceedings.

Defense Attorneys: John T. Carlson and Warren R. Williamson

3. U.S. v. Oyegoke-Eniola, Tenth Circuit: Appellant pled guilty to mail fraud and making a false statement on an immigration document. Finding that the district court improperly imposed enhancements under the sentencing guidelines, the sentence was vacated and the case remanded.

Defense Attorneys: Stephen K. Christiansen and Kelley M. Marsden

November 11, 2013

Short Wins - Three Wins

Happy Monday!

We have three short but good cases from the circuits from last week. I think my favorite is U.S. v. Glover, a nice suppression case. Congrats to Adam Kurland for the win.

To the victories!

1155650_berlin_siegessule.jpg1. Huff v. U.S., Sixth Circuit: Appellant entered a plea agreement, pleading guilty to various fraud and identity theft charges. The parties also agreed to use the November 1, 2002 Sentencing Guideline Manual but the court used a later version, resulting in a higher sentencing range. When Appellant first appealed, his attorney talked him into dismissing and the district court rejected Appellant's ineffective assistance of counsel claim without an evidentiary hearing. The Sixth Circuit reverses and remands because a hearing was necessary to properly evaluate the ineffective assistance of counsel claim.

Defense Attorney: Michael M. Losavio

2. U.S. v. Bruguier, Eighth Circuit: After a jury trial, Appellant was convicted of sexual abuse, burglary, aggravated sexual abuse, and sexual abuse of a minor and sentenced to 360 months imprisonment. Appellant argued that the jury instructions for sexual abuse omitted a mens rea element. Agreeing with Appellant, the Eighth Circuit remanded for a new trial on the sexual abuse count and vacated Appellant's sentence.

3. U.S. v. Glover, DC Circuit: Glover was convicted of conspiring to possess and distribute cocaine. A warrant was issued in D.C. but allowed the police to place an electronic bug on Glover's truck which was parked in Maryland. The D.C. Circuit found that this warrant was facially insufficient and the evidence obtained pursuant to it should have been suppressed. Because the district court did not suppress the evidence, the conviction is reversed.

Defense Attorneys: Adam H. Kurland and Robert S. Becker

November 6, 2013

Short Wins - Overcriminalization and Prison Costs Head to Congress

Congress these days seems to have noticed that we have too many federal criminal laws - which is a good thing (the Congressional notice, less the excessive criminal laws).

Last week, the House Judiciary Committee heard testimony on overcriminalization of regulatory crimes. The Hill has a nice write-up in "Regulation horror stories for Halloween."

Here's the intro:

Joyce Kinder was fined $5,000 and sentenced to three years probation for unknowingly catching protected paddlefish in the Ohio River.

Lawrence Lewis was arrested for violating the Clean Water Act after he disposed of sewage from a Washington, D.C., retirement home. He thought it would drain to a water treatment plant, but it instead went into Rock Creek.

Lewis and Kinder are both victims of overenforcement of regulations, according to lawmakers from both parties who say agencies should not threaten to jail people for violating regulations they don't even know exist.

Next week, the Senate is having a meeting on "Oversight of the Bureau of Prisons and Cost-Effective Strategies for Reducing Recidivism." It seems that folks have noticed that the Fair Sentencing Act and Holder's recent announcement about charging policies aren't actually going to help the folks who are already in prison get out sooner.

Here's hoping something comes out of these.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Bethea, Second Circuit: Appellant pled guilty to one count of cocaine distribution in 2010 and was sentenced to 80 months' imprisonment. Although this sentence was outside of the 60-71-month guidelines range and new guidelines would require only a 60-month sentence, Bethea's motion for sentencing modification was denied. Bethea's sentence was vacated and the case remanded to the district court to determine the impact of the new guidelines on his sentence.

2. United States v. Hemingway, Fourth Circuit: Appellant pled guilty to being a felon in possession of a firearm and ammunition and was sentenced to 15 years based on a mandatory minimum statute. The judgment was vacated and the case was remanded for sentencing because the mandatory minimum statute is only controlling when certain prior crimes were committed and Hemingway's prior crimes did not fall within that statute.

3. United States v. McManus, Fourth Circuit: Appellant pled guilty to one count of possession of child pornography and was sentenced to 72 months' imprisonment. Finding that the district court improperly interpreted statutory language and therefore applied the wrong sentencing enhancement, and that this error was not harmless, McManus' sentence was vacated and the case remanded for resentencing.

4. United States v. Hashime, Fourth Circuit: Appellant was convicted of multiple counts related to child pornography. His conviction and sentence were reversed because Hashime was in custody, the agents did not read Hashime his Miranda rights, and the statements made by Hashime during that interrogation were not properly suppressed at trial. The case was remanded for further proceedings so the court did not address whether mandatory minimums were appropriate in this case.

5. United States v. Miller, Sixth Circuit: A jury found Appellant guilty of two counts of making false statements to a bank and two counts of aggravated identity theft. The court reversed both aggravated identity theft convictions because Miller did not "use" the identities as required by statute. The court also reversed one of the false statements convictions because the document did not contain false statements as the term is statutorily defined.

6. United States v. Lyons, Seventh Circuit: Lyons appealed his conviction of possession of a firearm as a felon and the imposed 210 month sentence. Although the conviction was affirmed, the case was remanded for resentencing because the district court committed two procedural errors. First, it failed to state the reasons supporting the sentence and, second, the court incorrectly believed it was required to impose a five-year period of supervised release.

7. United States v. Kyle, Ninth Circuit: Appellant pled guilty to aggravated sexual abuse of a child and was sentenced to 450 months' imprisonment. The guilty plea and sentence were vacated because the district court participated in plea negotiations by prematurely committing itself to a sentence of a specific severity. Because this prejudiced Kyle, the case was remanded with instructions for reassignment to a different judge.

October 31, 2013

Short Wins - the "I'm not dead edition"

Gentle readers,

I have been remiss in my postings of late. Apologies. Here is, in one place, a mass of cases from the last few weeks.

Enjoy.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Dominic Pelligrino, Second Circuit.pdf
Appellant Pellegrino was charged with having violated New York's narcotics laws and pleaded guilty in state court. Although the circuit court found his arguments on appeal without merit, they act nostra sponte to hold that it was an error not to apply the civil forfeiture standards established by the Civil Asset Forfeiture Reform Act of 2000. This led to the district courts verdict being vacated and remanded.

2. United States v. Arqueta-Ramos, Ninth Circuit.pdf
The case of Delicia Arqueta-Ramos illegally entering the United States was vacated and remanded on the grounds that she took a plea en masse. The circuit court held that district court did not err by advising the defendants of their rights en masse, however it did err but not questioning the defendant individually to ensure she understood her rights.

3. United States v. Haggerty, Tenth Circuit.pdf
After pleading guilty to one count of possession with intent to distribute and one count of possession of a firearm by a previously convicted felon, Haggerty appealed his seventy-two-month sentence. His case was reversed and remanded due to the district court's failure to consider United States Sentencing Guidelines for a one-level reduction for acceptance of responsibility.

4. United States v. Royal, Fourth Circuit.pdf
Royal was convicted by a jury of unlawfully possessing ammunition was sentenced the 188 months imprisonment after it was determined that he is an armed career criminal under the ACCA. Upon his appeal his sentence was affirmed in part, vacated in part, and remanded for resentencing due to the Supreme Court's recent holding in Descamps v. United States regarding imposition of the ACCA sentencing enhancement.

5. United States v. Liu, Ninth Circuit.pdf
Liu's convictions and sentencing for criminal copyright infringement and trafficking in counterfeit labels were vacated and remanded for two reasons: (1) the jury was improperly instructed to the criminal statutes of acting "willfully" and "knowingly" at the time of the offense; (2) Liu's counsel was ineffective by failing to raise an obvious statute-of-limitation defense.

6. United States v. Lang, Eleventh Circuit.pdf
After being charged with 70 counts of Lang's case was vacated and remanded with directions to dismiss the indictment on the grounds that the indictment was "so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted."

7. United States v. Chandler, Fifth Circuit.pdf
The 420 month sentence Chandler received for engaging in a child exploitation enterprise was vacated and remanded for re-sentencing because 127 months of sentencing imposed on Chandler was partially based on the fact that he was a police officer at the time of the offense. After reviewing the case, the fifth circuit court determined that his status of police officer did not justify the increased sentence.

8. United States v. Gomez, Ninth Circuit.pdf
Appellant Gomez's case was affirmed in part and vacated in part, and remanded. The court affirmed his indictment charging him with illegal reentry. His sentence for sexual conduct with a minor was vacated and remanded due to the court's incorrect imposition of a sixteen-level sentencing enhancement by the district court.

9. United States v. Nelson, Fifth Circuit.pdf
Nelson's conviction for soliciting and receiving bribes as a government official was affirmed, but his sentence was vacated and remanded. This occurred because the district court failed to provide enough evidence to support their decision to apply the Sentencing Guideline that permits the court to increase the offense level corresponding to the bribery amount. The district court valued the bribery amount to be $6,382,000 but only had sufficient evidence to support a claim of $250,000.

10. United States v. Rufai, Tenth Circuit.pdf
All of Mr. Rufai's convictions of aiding and abetting health care fraud charge were reversed due to the absence of sufficient evidence. The district court failed to provide sufficient evidence that demonstrates that Mr. Rufai knowingly and willfully participated in fraud.

11. United States v. Rodriguez, Eleventh Circuit.pdf
Rodriquez's conviction was affirmed, but his sentence was reversed and remanded. The circuit court ruled that the district court had enough evidence to support that Mr. Rodriguez had committed wire, however they did not have enough evidence to support the claim that there were more than 50 victims. This led the circuit court to remand the conviction to the district court for resentencing with a 2-level enhancement rather than a 4-level enhancement.

12. United States v. Moore, Fifth Circuit.pdf
Defendant Moore pleaded guilty to one count for her role in a conspiracy to steal mail from six collection boxes. She appeals her sentence on the grounds that her recommended enhancement was miscalculated. The court ruled that Moore was correct and that she should have only received a 4-level enhancement not the 6-level enhancement she was given. Her sentence was vacated and remanded for resentencing.

13. United States v. Smith, Tenth Circuit.pdf
After pleading guilty to two counts of wire fraud, Mr. Smith was assigned a total offense level of 16, a criminal history category of VI, and sentenced to a term of 180 months' imprisonment on each count of wire fraud. The court ordered these sentences run concurrently and consecutively to a Kansas state sentence Mr. Smith is serving for burglaries and thefts underlying the fraud offenses. This sentence was reversed and remanded on the grounds of a sentencing disparity argument the court found to be a reversible error.

14. United States v. North, Fifth Circuit.pdf
North appeals the district court's denial of his motion to suppress evidence from interception of his cellular phone. The court reversed the denial of his motion on the grounds that the FBI agents recording his call failed to perform minimization efforts and remanded the case for further proceedings.

September 16, 2013

Short Wins - A Twofer week

Due to my own sloth, we're presenting two weeks of short wins in one post. Here it is!

There are some good cases here, featuring the Armed Career Criminal Act, the Fourth Amendment, and law enforcement agents testifying as experts.

In other news, the Sentencing Commission has put out two "quick fact" sheets. One is on "Theft Property Destruction and Fraud" and the other is on Mandatory Minimum Penalties.pdf. My favorite fun fact - the median loss in federal fraud cases is $95,408.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Bonilla-Guizar, Ninth Circuit.pdf: Appellants were convicted of conspiracy to commit hostage taking, hostage taking, and harboring an alien. At sentencing, the court applied two improper enhancements: (1) to Bonilla, the enhancement for a leadership role was improper because the court's findings on this enhancement were ambiguous; (2) for both appellants, the enhancement for use of a firearm was improper, because the evidence was that appellants merely brandished a firearm. For these reasons, appellants' sentences were remanded for a hearing on the leadership role enhancement and to vacate the use of a firearm enhancement.

Attorneys: for Appellants, Francisco Leon and Rosemary Márquez

2. United States v. Lopez-Cruz, Ninth Circuit: Appellant was charged with conspiracy to transport illegal aliens after police answered appellant's cell phone posing as appellant, when appellant had only given police consent to search the phone. The appellate court affirmed the order suppressing evidence obtained from the call because appellant had standing to claim that his Fourth Amendment rights were violated when police answered the call and the consent to search the phone did not extend to answering incoming calls. Further, the district court did not abuse its discretion in denying the government's motion for reconsideration, which raised an exigent circumstances argument for the first time.

Attorney: Devin Burstein for the appellant

3. United States v. Richard North, Fifth Circuit: The district court erred in denying appellant's motion to suppress evidence obtained from the interception of his cellphone, which led to his arrest for possession of cocaine, for three reasons: (1) it lacked jurisdiction to permit interception of cell phone calls from Texas at a listening post in Louisiana under the criminal investigations wiretap statute; (2) the court's non-compliance with the wiretap statute implicates a core concern of the statute; and (3) the government failed to comply with minimization protocols when it monitored one of the phone calls at issue. The denial of the motion to suppress was reversed and the case remanded for further proceedings.

4. United States v. Bahr, Ninth Circuit: Appellant pled guilty to possessing child pornography and was sentenced to two 240-month concurrent sentences. In a prior period of post-release supervision, appellant made statements that were incorporated into his presentence report for the current case. This violated appellant's Fifth Amendment privilege against self-incrimination and, as a result, his sentence was vacated and the case remanded for resentencing.

Attorney for Appellant: Thomas J. Hester

5. United States v. Descamps, Ninth Circuit:The Supreme Court reversed the Ninth Circuit's decision in United States v. Descamps, 466 F. App'x 563 (9th Cir. 2012). The Supreme Court held that (1) courts may not apply the modified categorical approach to sentencing under the Armed Career Criminal Act ("ACCA") when the offense of conviction has a single, indivisible set of elements, and (2) appellant's prior burglary conviction under California law was not for a violent felony within the meaning of ACCA. The Ninth Circuit, in turn, reversed its prior decision and remanded the case for further proceedings.

6. United States v. Freeman, Sixth District.pdf Appellant was convicted by a jury of conspiracy to use interstate commerce facilities in the commission of murder for hire and was sentenced to life without parole. After bringing an appeal, the court ruled that his conviction be vacated and remanded for a new trial on the grounds that the lay testimony given by an FBI agent did not show any clear expert methodology on the formation of his opinions. In other words, the agent's testimony failed to live up to the requirement of Rule 702 that states "the product of reliable principles and methods...reliably applied... to the facts of the case".

7. United States v. Hockenberry & Gray, Sixth District.pdf One of two Appellants' sentences was in part affirmed and reversed. Appellant Hockenberry's district court sentence was vacated and remanded for sentencing on the grounds of the district court erring on their denial of the appellants' motion to suppress and their classifications as armed career criminals. Appellant Gray's sentence was affirmed.

September 10, 2013

Short Wins - Sleepy Time In The Circuits

It's a sleepy week in the Circuits last week - a resentencing and a restitution remand.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Daniels, et al., Fifth Circuit: Appellants were convicted of conspiring to distribute and to possess with intent to distribute five kilograms or more of cocaine. The finding as to drug quantity was vacated because there was insufficient evidence to support it. Appellants' sentences were vacated and the case remanded for resentencing for the court to recalculate appellants' Guidelines range calculations, which were driven by the conspiracy's vacated five kilogram finding.

2. United States v. Edwards, et al., Eleventh Circuit: Appellants were convicted of wire fraud, mail fraud, and money laundering, and ordered to pay over $6 million in restitution. Because the government had no evidence to demonstrate that five of the alleged victims were entitled to restitution, the court clearly erred in awarding restitution with respect to these victims. The restitution order was vacated and the case remanded for a hearing on whether the five individuals at issue are entitled to restitution.

September 3, 2013

Definitely Not Short Wins

On this, the Monday after Labor Day, I suspect many of us have the feeling that work piles up when you leave the office. And, with last week off from Short Wins, that's definitely what happened here.

Without further ado, to the victories!

1155650_berlin_siegessule.jpg1. Miller v. United States, Fourth Circuit: Appellant was convicted of possession of a firearm by a convicted felon. For appellant's two prior convictions (upon which the instant offense was based), he was sentenced to 6 to 8 months for each offense. He filed a 28 U.S.C. § 2255 motion to vacate his sentence, arguing that his prior convictions were not qualifying predicate convictions. The court agreed, vacated appellant's conviction, and remanded for the petition to be granted.

Attorney: Ann Loraine Hester for Appellant.

2. United States v. Avila, Tenth Circuit: Appellant was charged with possession with intent to distribute a controlled substance. After his motion to suppress was denied, he entered an unconditional guilty plea to the charge. Because the district court informed appellant that he would retain a right to appeal following the entry of his plea without ensuring he understood that the plea might limit that right, the plea was not knowing and voluntary. Appellant's conviction was vacated and the case remanded with instructions for the court to allow appellant to withdraw his guilty plea.

Attorney: Kari S. Schmidt for Appellant.

3. United States v. Booker, Sixth Circuit: Appellant was convicted of possession of a five-ounce rock of crack cocaine, which he had hidden in his rectum. The police took appellant to an emergency room doctor who, using a procedure appellant did not consent to, removed the rock. The court attributed the doctor's actions to the state for Fourth Amendment purposes. Because the unconsented procedure shocks the conscience and violates due process, the crack rock should have been excluded. Appellant's conviction was reversed.

Attorney: Robert L. Jolley, Jr. for Appellant

4. United States v. Cabrera-Umanzor, Fourth Circuit: Appellant pled guilty to unlawful reentry. At sentencing, the court used the "modified categorical approach" to find that appellant's prior state conviction was a "crime of violence," which increased appellant's base offense level by 16. This was error, as the categorical approach should have been used, which would have resulted in a finding that the prior conviction was not a crime of violence. The case was remanded for resentencing.

Attorneys: Joanna Beth Silver, James Wyda for Appellant

5. United States v. Evans, Ninth Circuit: In two cases, appellant was charged with being an alien in the U.S. after deportation and misrepresenting his identity and citizenship to fraudulently obtain social security benefits, food stamps, make a claim of citizenship, and apply for a passport. His primary defense was that he was a citizen. His primary evidence to support the defense was a delayed Idaho state birth certificate. The certificate was excluded before trial because the court ruled it was "substantively fraudulent." This violated appellant's Fifth Amendment due process right to present a defense. The error was not harmless. Appellant's convictions were vacated and the case remanded for new trials.

Attorney: Stephen R. Hormel

6. United States v. Flores, et al., Ninth Circuit: Appellants pled guilty to conspiring to possess an unregistered firearm arising out of their purchase of a grenade launcher and ammunition for the launcher. At sentencing, the court enhanced appellants' sentences 15 levels after finding that the offense involved a missile under Guideline § 2K2.1(b)(3)(A). This was error because the ammunition did not qualify as missiles. The sentences were vacated and the case remanded for resentencing.

Attorneys: Richardo M. Gonzalez for Appellant Alfredo Lara; Barbara M. Donovan for Appellant Arturo Lara; Frederick Carroll for Appellant Flores.

7. United States v. John Doe, Sixth Circuit: Appellant pled guilty to two counts of distributing over 50 grams of crack cocaine and was sentenced to 130 months after a downward departure was applied. The Fair Sentencing Act was passed four years later, substantially reducing the mandatory minimum and advisory range applicable to appellant's offense. Because appellant's original sentence was based on an advisory range which was subsequently lowered, and because the reduction is consistent with the Sentencing Commission's policy statement in § 1B1.10, he was eligible for a sentence reduction. The sentence was vacated and the case remanded.

Attorney: Melissa M. Salinas

8. United States v. McKye, Tenth Circuit: Appellant was convicted of conspiring to commit money laundering and securities fraud. At trial, the court refused to give an instruction appellant tendered that would have permitted the jury to decide whether the investment notes at issue constituted securities. Instead, the court instructed the jury that the term "security" includes a "note." Because whether a note is a security is a mixed question of law and fact, the court erred in giving that instruction. The government failed to show the error was harmless. Appellant's conviction was reversed.

Attorneys: Howard A. Pincus, Raymond P. Moore, for Appellant

9. United States v. Sedaghaty, Ninth Circuit: Appellant was convicted of conspiring to defraud the United States and filing a false return on behalf of a tax exempt organization. Several errors were made below that, cumulatively prejudiced appellant: the government violated its obligations under Brady v. Maryland by withholding significant impeachment evidence; the court erred in approving an inadequate substitution for classified material in violation of the Classified Information Procedures Act; and the government's search of appellant's hard drives went far beyond the scope of the warrant. The case was remanded for a new trial.

Attorneys: Steven T. Wax, Lawrence Matasar

10. United States v. Swor, Ninth Circuit: Appellant pled guilty to investment fraud and was ordered to pay restitution under the Mandatory Victims Restitution Act. The court abused its discretion by including in the restitution order losses suffered by victims of an investment scheme that began two months after, and was separate from, the scheme in which appellant was involved. These losses were too attenuated to impose liability on appellant. Appellant's sentence was vacated with regard to the amount of restitution order and remanded to reduce the restitution amount.

11. United States v. Thompson, et al., Ninth Circuit: Appellants were convicted of bank larceny and their sentences were enhanced because they were convicted of using a thermal lance to open the back of an ATM to steal the money inside. Their sentences were enhanced under 18 U.S.C. § 844(h)(1), which imposes a mandatory 10-year consecutive sentence (in addition to the underlying felony) on anyone who "uses fire . . . to commit any felony." Because the enhancement does not apply to the use of a thermal lance, the case was remanded for resentencing.

Attorneys for Appellants: Mark Yanis; Gretchen Fusilier; Sean K. Kennedy; Samuel A. Josephs.

12. United States v. Tragas, Sixth Circuit: Appellant was convicted of offenses arising out of her involvement in an international credit and debit card fraud conspiracy. She was sentenced to 300 months in prison. Because the district court used an incorrect version of the Guidelines when sentencing appellant, appellant's sentence was vacated and the case remanded for resentencing.

Attorneys: Erik W. Scharf, Wayne R. Atkins