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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)

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Ex Post Facto – counsel’s failure to seek a sentence by application of the Guidelines in effect at the time of the offense was plain error: United States v. Head, _ F.3d _ (D.C. Circuit, No. 14-3055, March 25, 2016)

A 2-1 panel of the D.C. Circuit found plain error for trial counsel’s failure to ask the district court to sentence the offender in accordance with the Guidelines in effect at the time of the offense. Because those Guidelines would have been more favorable to the defense, an Ex Post Facto clause violation occurred.

Head is a split opinion that is reminiscent of United States v. Abney, _ F.3d _ (D.C. Circuit, No. 14-3074, February 5, 2016). In Head, another interesting alignment (Circuit Judge Pillard and Senior Circuit Judge Silberman comprising the majority with Senior Circuit Judge Sentelle dissenting) found that defense counsel should have urged the district judge not to rely on post-offense Guidelines, and vacated and remanded the sentence for re-sentencing under the proper Guidelines.

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Correction of judgment and restitution: “There is something very wrong with this picture – so wrong Stevie Wonder could see the flaw from a phone booth in Chicago:United States v. Hughes_ F.3d _ (D.C. Circuit, No. 13-3073, February 23, 2016) (Brown, J., concurring)

A unanimous panel of the D.C. Circuit, expressing its distaste for the Internal Revenue Service’s seizure of a tax refund due a small-fry former employee of Blackhawk, Inc., reversed a trial judge’s failure to correct a clerical error in its judgment and in failing to order the refund be returned to the defendant.

In his characteristically crisp way, Circuit Judge Williams expressed distaste with the “ordeal” (slip op. at 2) the Government had put Shawn Hughes to, after she had served her 30-day sentence and towards the end of supervised release. Hughes and a co-defendant had pled guilty to making false statements to government authorities about the (non)-training given guards employed by the now-defunct Blackhawk, Inc. The district court made both jointly and several responsible for $442,000 in restitution but had expressed a clear intention that the actual restitution amount should be much smaller. If Blackhawk paid a $1 million judgment, the court said she would owe nothing, and if it didn’t she would only pay “at a rate of not less than $50 each month.” (slip op. at 2)

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A 2-1 panel of the D.C. Circuit found ineffective assistance of counsel for failure to seek a continuance of sentencing that was about to occur in the short interval between the Fair Sentencing Act’s (“FSA”) passing Congress and its being signed into law.

In a split opinion featuring an interesting alignment (Circuit Judges Rogers and Griffith comprising the majority with Circuit Judge Brown vigorously dissenting) the Circuit overturned Appellant’s ten year mandatory minimum sentence for possessing 68 grams of crack cocaine. The majority found that Abney satisfied the rigorous standards of Strickland v. Washington, 466 U.S. 668 (1994), to justify setting aside his sentence. Abney’s trial counsel knew that the FSA (Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010)) had just cleared Congress and that its provisions would cut Abney’s mandatory minimum in half, from ten years to five years. It was also clear at the time that numerous defense lawyers were seeking continuances of scheduled sentencings until the FSA became law, to take advantage of the Sentencing Reform Act’s (“SRA”) provision that the applicable Sentencing Guidelines are those applicable at the time of sentencing, not the time the offense was committed. “Any competent criminal defense attorney familiar with federal sentencing principles would have understood that courts were reasonably likely to read the FSA’s lower mandatory minimums to apply to defendants sentenced after its enactment.” (slip op. at 2-3).

And yet, even though Abney was incarcerated and posed no danger to the public, and notwithstanding a wealth of contemporaneous evidence – all painstakingly noted by the majority (slip op. at 3 n.1) – that the President intended to sign the measure into law, trial counsel failed to seek a continuance of Abney’s scheduled sentencing, which occurred one day before the FSA became law. The fatal flaw, the majority found, was that counsel mistakenly believed legislation was necessary for the FSA to apply retroactively, and didn’t understand that under the SRA, Abney stood to benefit greatly by being sentenced just a few days later, because the FSA’s more generous provisions would govern his sentencing. (slip op. at 5-6). If any further proof of prejudice to Abney was necessary, it was apparent in the district judge’s comment at sentencing that if it had any discretion, it would have sentenced Abney to a term somewhere between the about-to-become new and the about-to-expire mandatory minima. (slip op. at 6).

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United States v. Soto-Rivera

In this case, the First Circuit reviewed a sentencing court’s determination that Mr. Soto-Rivera qualified as a Career Offender. A defendant who is over 18 at the time he commits a “felony that is either a crime of violence or a controlled substance offense,” and who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense,” is a Career Offender. U.S.S.G. § 4B1.1(a).

Mr. Soto-Rivera pled guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).  At sentencing, the court announced Mr. Soto-Rivera had two previous convictions for “controlled substance offenses.”  The judge then stated, in “conclusory fashion,” that Mr. Soto-Rivera’s latest conviction for felon in possession of a firearm is “considered a crime of violence.”  As a result, the sentencing court found Mr. Soto-Rivera was a Career Offender.  Incredibly, Mr. Soto-Rivera failed to object to the Career Offender classification.

Even more incredible, however, was that on appeal, the Government never recognized Mr. Soto-Rivera’s failure to object during sentencing.  The First Circuit noted that normally, Mr. Soto-Rivera’s failure to timely object at sentencing to the Career Offender designation would subject him to plain error review on appeal.  But the Government never argued for plain error review.  In fact, the Government stated at oral argument the issue should be reviewed de novo.  Thus, the First Circuit held: “in accordance with our precedent and the government’s own request, we will review the issue as if it had been properly preserved.”

Mike Brownlee is an appellate attorney in Orlando, Florida with the firm of Fisher Rushmer, P.A.  His practice is dedicated to federal and state civil and criminal appeals.  

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Here is a recap of some recent victories from the Sixth Circuit. Good to see vigilant defense counsel using foresight to prevent undue restrictions resulting from sentencing conditions.

United States v. Arnold. Sixth Circuit: A jury convicted Appellant of being a felon in possession of a firearm. At sentencing, the district court departed upward, at least in part, because of its concern that a longer term of imprisonment was needed to ensure that Appellant received appropriate mental health treatment. Specifically, the district court found that Appellant’s “anger” warranted an upward departure to promote public safety, but also that Appellant so needed a “psychiatric intervention” that the Court felt compelled “to grant the government’s motion to go outside and above the sentencing guidelines” to ensure the Appellant would receive that treatment. The Sixth Circuit found that the district court abused its discretion.

United States v. Kelly. Sixth Circuit: Appellant violated his terms of supervised release by failing to register as a sex offender. As part of its Judgment, the district court imposed that district’s rote conditions of supervised release for sex offenders. But the Appellant’s last sex offense predated the revocation by 26 years. Moreover, the record demonstrated that Appellant had a low likelihood of recidivism (for sex offenses), had no mental disorder, had benefitted from previous therapy, and the age had lessened the risk of re-offending. Under such circumstances, the district court abused its discretion and the sentence was substantively unreasonable. The case further highlights the need for Counsel to be vigilant when Courts seek to impose “standard” conditions of supervised release.