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A unanimous panel of the D.C. Circuit (Tatel, Srinivasan and Pillard, JJ), found error and vacated for lack of jurisdiction a 36- month term of imprisonment imposed on an appellants who had violated his conditions of supervised release by committing another felony offense.

One would hope that Brian Marsh, who had completed his 63-month sentence for drug dealing and was on a four year term of supervised release, would have stayed out of trouble. Alas, that was not to be: nine months before his supervised release was to end, Mr. Marsh was indicted, arrested, and detained for new trafficking offenses. He pled guilty to those charges and was sentenced – in both instances after his original term of supervised release had expired. That new term brought Mr. Marsh a 150-month term and another five years of supervised release.

Doubtless displeased with Mr. Marsh’s misadventures, the Government successfully petitioned for revocation of his earlier supervised release. The trial judge who presided over Marsh’s first case agreed. Mr. Marsh thus found himself tagged with an additional 36 months of imprisonment, to commence after serving the new charges. (The 36-months was the statutory maximum under 18 U.S.C. § 3583(e)(3).)

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A unanimous panel of the D.C. Circuit (Kavanaugh, Srinivasan and Pillard, JJ), found error and vacated a 12 year and seven month sentence imposed on one of several appellants who were found guilty of a 21 U.S.C. § 846 heroin trafficking offense. After rejecting several merits-based arguments, including a thorough discussion of Rule 404b), F. R. EVID., standards, the Court of Appeals examined the three appellants’ sentencing claims. One of those issues struck home: the contention raised by Appellant Burnett that the Trial Judge had mistakenly based the sentence in part on drug distributions that occurred before Burnett joined the conspiracy.

Writing for the panel, Circuit Judge Kavanaugh explained that “[t]he Sentencing Guidelines limit the relevant conduct that may be attributable to a co-conspirator: (1) The acts must be in furtherance of the conspiracy to which the defendant agreed; and (2) the acts must be reasonably foreseeable to the defendant.” (Slip Op. at 18) (citing United States v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995)). Further, Judge Kavanaugh pointed out that “when calculating a sentence, a district court may not attribute to a defendant conduct that occurred before he joined the conspiracy.) (Slip Op. at 21) (emphasis original) (citing U.S.S.G. § 1B1.3, Application Note 3).

Burnett conceded that his counsel below had failed to raise that claim. As a result, the issue was governed by a plain error standard: “The Supreme Court recently explained that plain error in the Guidelines calculation context means this: A defendant must demonstrate ‘a reasonable probability that, but for the error, the outcome of the proceeding would have been different.’” (Slip Op. at 21) (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted)). Moreover, “[i]n the sentencing context, a defendant who demonstrates that he was sentenced under an incorrect Guidelines range will typically have demonstrated a reasonable probability that the outcome of the proceeding would have been different but for the error.” (Slip Op. at 21) (citing Molina, 136 S. Ct. at 1345).

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The D.C. Circuit, in an exhaustive opinion discussing the federal wiretap laws and other issues frequently encountered in narcotics prosecutions, reversed one appellant’s conviction because an FBI agent who testified as a “two-hatted expert,” offering expert and lay opinion testimony, was erroneously allowed to offer his lay opinion as to the meaning of otherwise ambiguous or innocent-sounding phrases overheard in intercepted communications in which that appellant had spoken with various alleged co-conspirators.

In United States v. Henry Williams, the Government prosecuted several individuals for engaging in a cocaine trafficking conspiracy. Among other issues, Williams argued on appeal that the trial judge should not have allowed the “case agent” to have rendered his “lay opinion,” purportedly offered under Rule 701, Fed. R. Evid., of what Williams supposedly was talking about in a number of wiretapped conversations. Under the guidelines laid down in United States v. Hampton, 718 F.3d 978 (D.C. Cir. 2013), a decision rendered after the underlying trial, the Circuit panel (Rogers, Pillard and Wilkins, JJ) found error solely as to Williams. (Slip Op. at 32-46). The court rejected Williams’ claim that the Trial Judge had erred in failing to grant his motion for judgment of acquittal, however, and remanded the case, because a reasonable juror could have concluded that the evidence pointed to his guilt. (Id. at 46-50).

Williams, the panel explains, follows both Hampton and earlier Circuit precedent – as well as decisions in recent decisions in sister Circuit Courts of Appeals – expressing discomfiture with the Government’s use of case agents as so-called “summary” experts. (Slip Op. at 36-37) (citing, inter alia, Hampton, 718 F.3d at 983, United States v. Moore, 651 F.3d 30, 57 (D.C. Cir. 2011), and United States v. Miller, 738 F.3d 361, 373 (D.C. Cir. 2013)). First, Williams points out, “‘there is no way for the court to assess whether it [the agent’s opinion] is rationally based on the witness’s perceptions, and second because the opinion does not help the jury but only tells it in conclusory fashion what it should find.’” (Slip Op. at 36) (quoting Hampton, 718 F.3d at 981) (internal citation omitted). Second, merely having listened to all the wiretapped communications and investigated the case was an inadequate basis for admitting the testimony, the panel commented, “because its lack of specificity invited ‘the risk that he was testifying based upon information not before the jury, including hearsay’ and left the jury with ‘no way of verifying his inferences or of independently reaching its own interpretations’ as FRE 701 requires.” (Slip Op. at 36) (quoting Hampton, 718 F.3d at 982-83) (internal citation omitted). Third, “‘[j]udicial scrutiny of a law-enforcement witness’s purported basis for lay opinion is especially important because of the risk that the jury will defer to the officer’s superior knowledge of the case and past experiences with similar crimes.’” (Slip Op. at 36) (quoting Hampton, 718 F.3d at 981-82) (internal citation omitted)

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In April, May and June the Third Circuit vacated convictions in three cases. The first, United States v. Lopez, addresses prosecutorial misconduct (Doyle error); the second, United States v. Vasquez-Algarin, addresses law enforcement misconduct (Fourth Amendment/forced entry); the third, United States v. Dennis, addresses trial court error (failure to give an entrapment instruction) in the larger context of reverse-sting stash house operations. Each opinion touches on policy concerns raised by the legal issues; the majority and Judge Ambro’s concurrence in Dennis are particularly worth reading for anyone litigating stash house cases. The three cases were decided by three non-overlapping panels of judges.

Continue reading →

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Manager-Leader– D.C. Circuit vacates enhancement for trial judge’s failure to make adequate findings: United States v. Martinez-Vega, _ F.3d _ (D.C. Circuit, No. 10-3083, June 24, 2016).

The D.C. Circuit, in affirming the convictions of two alleged members of the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) paramilitary organizations vacated the sentence handed out to one appellant.

In United States v. Martinez-Vega, the district court had increased Martinez Vega’s base offense level by three points for being a “manager or supervisor” in the narcotics conspiracy. Martinez Vega argued on appeal that the trial judge’s findings fell far short of what was necessary to demonstrate that he has supervised other participants in the conspiracy. (Slip Op. at 35). In a per curiam opinion, a unanimous Circuit panel (Brown, Millett, & Ginsburg, JJ), found that the district court had failed to make adequate findings to justify the 3-point role in the offense enhancement. (Id. at 35-39).

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In the wake of last Friday’s “Trifecta” (my words) when the D.C. Circuit remanded three criminal appeals, another divergent panel vacated a district court that had denied a motion to suppress physical evidence and a statement gained as a result of a warrantless seizure.

In United States v. Castle a divided Circuit panel overturned the district court, finding the police officers’ street apprehension of Harold Castle to have been unreasonable and built on the officers’ flimsy inferences and the Trial Judge’s “generalized findings regarding ‘the neighborhood.’” (Slip Op. at 3). Speaking for the majority, Senior Circuit Judge Edwards found that the officers had no reasonable basis to detain appellant and question Castle, and suppressed the evidence therefrom. The officers claimed that Castle was acting furtively and they intuited that he must have known of their presence in an unmarked vehicle, because he lived in an area with a high incidence of drug trafficking. However, Circuit Judge Edwards demolished those claims, one-by-one, liberally sprinkling his opinion with citations to a number of key precedents worthy of defense counsel’s reading and study.

First, Judge Edwards addressed the governing legal framework. He observed that “‘[u]nder the Fourth Amendment our society does not allow police officers to “round up the usual suspects.”’” (Slip Op. at 3) (quoting United States v. Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006)). “‘An officer relying on his or her ‘knowledge of [an individual’s] criminal record’ is ‘required to pair’ that knowledge with ‘”concrete factors” to demonstrate that there [is] a reasonable suspicion of current criminal activity.’” (Slip Op. at 3) (quoting United States v. Foster, 634 F.3d 243, 247 (4th Cir. 2011) (emphasis added)). Not only must there be “’‘objective indications of ongoing criminality,’” (Slip Op. at 4) (quoting United States v. Monteiro, 447 F.3d 39, 47 (1st Cir. 2006)), “[t]he law also makes clear what is eminently logical. In order to find that a person is evading the police, there must be evidence that the person has knowledge of a police presence.” (Slip Op. at 4) (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). “Similarly, in the context of a reasonable, articulable suspicion analysis, ‘furtive gestures “are significant only if they were undertaken in response to police presence.’”” (Slip Op. at 4) (quoting United States v. Brown, 33 F.3d 1161, 1168 (D.C. Cir. 2003)) (internal quotations omitted)). “In both instances,” the Court found, “the putatively evasive or furtive conduct cannot provide the necessary evidence of knowledge of a police presence. There must be independent evidence from which that knowledge can be inferred.” (Slip Op. at 4) (Citing, inter alia, Wardlow, 528 124; Brown, 334 F.3d at 1168).

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Ineffective Assistance and Expert Testimony – D.C. Circuit remands denial of coram nobis petition advancing battered woman syndrome defense: United States v. Nwoye, _ F.3d _ (D.C. Circuit, No. 14-3060, June 10, 2016).

In the third remand decision of the day, an extremely divergent panel of the D.C. Circuit vacated a district court decision to reject an ineffective assistance of counsel claim that was raised on collateral review. Finding error in the trial judge’s refusal to give credence to Appellant’s theory that trial counsel had negligently failed to raise a battered woman syndrome defense, the Court of Appeals vacated the sentence and remanded the case.

On direct appeal in United States v. Nwoye, 663 F.3d 460 (D.C. Cir. 2011), a divided Circuit panel rejected an argument that the trial court erroneously refused a defense request for an instruction on a duress defense. (“Nwoye I”) The Court of Appeals held in Nwoye I that “a defendant is only entitled to an instruction on a theory of duress if there is ‘sufficient evidence from which a reasonable jury could find’ for the defendant on that theory.” Id. at 462 (quoting United States v. Akhigbe, 642 F.3d 1078, 1083 (D.C. Cir.2011)).

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Remanding – colorable claim of ineffective assistance of counsel warrant remands to consider claim that trial counsel failed to explain plea offer: United States v. Knight _ F.3d _ (D.C. Circuit, No. 14-3010, June 10, 2016)

As earlier noted, June 10th was a watershed day in the D.C. Circuit, as three cases remanding District Court criminal proceedings issued. In the second case, Melvin Knight and Aaron Thorpe were charged with the federal offense of being a felon in possession of a firearm, as well as the D.C. Code offenses of conspiracy, assault with a dangerous weapon, kidnapping while armed, burglary while armed, possession of a firearm during a crime of violence, and obstruction of justice. (In the District of Columbia, the U.S. Attorney may prosecute D.C. Code offenses in federal court so long as federal offenses are also charged.) (Slip. Op. at 2-3).

The unanimous panel, in an opinion authored by Circuit Judge Kavanagh, rejected Appellants’ Speedy Trial Act claim and affirmed Thorpe’s 25-year sentence. (Id. at 3-10). Appellants fared better with their claim that sought a remand for ineffective assistance of counsel in plea negotiations. Citing United States v. Mohammed, 693 F.3d 192, 202 (D.C. Cir. 2012), the court explained that “[t]his Court’s typical practice on direct appeal … is to remand ‘colorable’ claims of ineffective assistance to the district court” and to do so “without first substantially analyzing the merits of those claims.” (Slip Op. at 10). In particular, the Court of Appeals agreed that the defense had established a colorable claim that their attorneys had never explained the “wired” plea offers that had been extended to them in the Superior Court, where local charged were first brought and that they would have accepted the offers. (Id. at 1-2, 11).

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Remanding – Trial Judge’s failure to address claims of sentencing entrapment: United States v. McKeever, _ F.3d _ (D.C. Circuit, No. 13-3096, June 10, 2016)

June 10th was a day in which criminal appellants hit the trifecta in the D.C. Circuit. In the first of three decisions remanding appeals, a unanimous panel of the D.C. Circuit remanded lengthy sentences given to three appellants who raised sentencing entrapment claims arising from a so-called “reverse sting” operation.

In United States v. McKeever the defendants were prosecuted under the Hobbs Act, 18 U.S.C. § 1951, for conspiracy to rob a liquor store and thereby interfere with commerce. Appellants each pleaded guilty and were sentenced. They principally argued on appeal that, inter alia, the District Court had erred in applying the so-called “Gun Bump” enhancement of Guidelines §§ 2B3.1(b)(2)(C) (five-level enhancement warranted if firearm brandished or possessed during robbery), to their sentence, reasoning that the conspiracy offense wasn’t covered by the bump. Although that theory proved unsuccessful (Slip Op. at 9-16), their key back-up claim earned a remand.

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Sentencing – trial court’s erroneous reliance on ambiguous “other crimes” evidence previously rejected under Rule 404(b), F. R. Evid., justifies vacation of lengthy sentence: United States v. Kpodi, _ F.3d _ (D.C. Circuit, No. 14-3037, May 31, 2016)

A unanimous panel of the D.C. Circuit found error and vacated a 151-month sentence imposed over objection by the trial court, which previously had found the same evidence too attenuated to allow its introduction at trial. Finding the trial judge’s decision an abuse of discretion, and the admission harmful, the Court of Appeals vacated the sentence and remanded the case.

In Kpodi the defendant had been accused of narcotics and weapons charges occurring about May 9, 2013, when federal and state agents searched a residence Kpodi shared with a roommate. The district judge had rejected the Government’s effort to present evidence under Rule 404(b), F. R. Evid., of several supposedly related events, most pertinently an April 4th shooting near Kpodi’s home. Although there was no evidence that shell casings found near the scene matched any particular weapon, the Government argued that they were circumstantial evidence of Kpodi’s constructive possession of a firearm found a month later in the search of his house. (slip op. at 2-4). Kpodi successfully argued prior to trial that no one had identified the April 4th shooter. In response to the prosecution’s contention that people had seen him running in the neighborhood after the shots rang out, Kpodi pointed out that the Government’s proffered evidence merely placed him on the street. (Id. at 4-5)