Wake Forest Law Review
16Mar

Exclusion On My Mind: The Admissibility of Rap Lyrics as Evidence in Criminal Proceedings

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Mae Zeitouni

The State of Florida v. Jamell Demons is an ongoing criminal case in Florida concerning popular rap artist Jamell Demons, more commonly known by his stage name YNW Melly.[1] Demons faces two first degree murder charges related to the 2018 deaths of Anthony Williams and Christopher Thomas.[2] This case has garnered a great deal of attention from the public, mainly in connection with Demons’ popular single “Murder on My Mind,” a rap single detailing homicidal ideations through a fictional story of Demons accidentally killing a friend.[3] After Demons’ first trial ended in a mistrial, the prosecution has sought to introduce the majority of Demons’ discography into evidence in his upcoming second trial. The prosecution hopes to cite the lyrics in Demon’s rap songs as proof of culpability, intent, and/or his real-life actions.[4] In a controversial decision, presiding Judge John Murphy has ruled that Demon’s lyrics are admissible evidence that the prosecution may use as part of their case.[5]

Demons is far from the first high-profile rapper to “face the music” in court, as the admissibility of artistic expression in criminal trials has been the subject of much discussion over the past few decades.[6] Over the past 30 years, rap lyrics have often been used as evidence in criminal trials—a strategy that has become increasingly popular with prosecutors over time.[7]  For example, when hip-hop star Jeffery “Young Thug” Williams was charged with criminal racketeering under Georgia’s Racketeer Influenced and Corrupt Organizations Act (“RICO”) in 2023, a Fulton county judge ruled that Williams’ rap lyrics and music videos were “conditionally admissible” as long as the lyrics were relevant to proving either mens rea or actus reus.[8]

In essence, the lyrics must be “relevant” to be admissible. Under the Federal Rules of Evidence, relevance requires (1) that the evidence makes a fact more of less probable and (2) that the fact is a “fact of consequence.”[9] Rap lyrics cannot be used only to emphasize a defendant’s “bad character” or their general “propensity” to commit certain crimes.[10] Furthermore, under Federal Rule of Evidence 403, even if the evidence is considered to be relevant, courts ruling on the admissibility of evidence are required to weigh and balance the probative value of evidence against its potential to illicit unfair prejudice.[11] If the probative value of relevant evidence outweighs its prejudicial influence, the evidence may be admitted.[12] It is important to note courts often caution that unfair prejudice does not equate to evidence which will harm a party’s case, but rather to evidence which is likely to cause the case to be decided upon an improper basis.[13]

Even with the boundaries established by the Federal Rules, artistic expression and its relation to an alleged wrongdoing is largely uncontemplated by the law. Musicians often create fictional personas under which they produce their music. Consequently, it can be difficult to determine whether their artistic expression is based upon lived events or fabricated stories which fit with their fictitious character.[14] Thus, courts are faced with an additional responsibility in determining the admissibility of rap lyrics: whether the words/speech of the artist is based in reality or fiction.

There have been some efforts by legislators at both state and federal levels to resolve this issue, through either modification of jurisdictional evidentiary rules or sweeping legislation aiming to restrict the use of rap lyrics entirely; however, these efforts have not yet been widely successful.[15] While the problems surrounding the evidentiary admissibility of artistic expression, particularly rap lyrics, are not yet completely settled, inconsistent administration of such decisions could pose a problem.

[1] YNW Melly’s Double Murder Retrial On Pause As Prosecutor Appeal Judge Order Over Evidence, NBC6 (Jan. 26, 2024), https://www.nbcmiami.com/news/local/ynw-mellys-double-murder-retrial-on-pause-as-prosecutors-appeal-judge-order-over-evidence/3217421/.

[2] Mary Helen Moore, Grand Jury Indictment: YNW Melly Fired The Gun, Killing The Friends He Grew Up With, Treasure Coast Newspapers (Feb. 15, 2019), https://www.tcpalm.com/story/news/crime/2019/02/14/indictment-ynw-melly-shot-friends-staged-scene-look-like-drive-by/2868483002/.

[3] Kyle Eustice, YNW MELLY’S “MURDER ON MY MIND” NABS NO. 1 SPOT ON APPLE MUSIC AMID MURDER CHARGES, HipHopDX (Feb. 16, 2019), https://hiphopdx.com/news/id.50328/title.ynw-mellys-murder-on-my-mind-nabs-no-1-spot-on-apple-music-amid-murder-charges.

[4] Eddie Fu, YNW Melly’s Lawyer Thinks The Rappers Lyrics May Be Used As Evidence In Court, Genius (Apr. 9, 2019), https://genius.com/a/ynw-melly-s-lawyer-thinks-the-rapper-s-lyrics-may-be-used-as-evidence-in-court.

[5] Order Den. Def.’s Mot. to Suppress, State v. Demons, Dec. 18th, 2023, 19001872CF10A.

[6] See Cady Lang, What to Know About Young Thug’s Trial and the Controversial Use of Rap Lyrics in Criminal Cases, Time Magazine (Jun. 29, 2022), https://time.com/6192371/young-thug-rap-lyrics-evidence-court/; Jaeah Lee, This Rap Song Helped Sentence a 17-Year-Old to Prison for Life, N.Y. Times (Mar. 30, 2022), https://www.nytimes.com/2022/03/30/opinion/rap-music-criminal-trials.html.

[7] Emily Pecot, Using Rap Lyrics as Evidence In Court, New Jersey State Bar Assoc. (Feb. 15, 2023), https://njsbf.org/2023/02/15/using-rap-lyrics-as-evidence-in-court/.

[8] Bill Hochberg, Why Rap Lyrics Can Be Used In Young Thug’s Trial, But Not In Jam Master Jay’s Case, Forbes (Feb. 27, 2024), https://www.forbes.com/sites/williamhochberg/2024/02/27/why-jam-master-jay-and-young-thugs-trials-differ-on-rap-lyrics/?sh=236e933c2036. Mens rea refers to the state of mind which the defendant must be proved to have had at the time of the relevant conduct while actus reus refers to the outward conduct which must be proved against the defendant. Id.

[9] Fed. R. Evid. 401; Fed. R. Evid. 402.

[10] Fed. R. Evid. 404.

[11] Fed Rules Evid. R 403.

[12] Fed Rules Evid. R 403; see State v. Cheeseboro, 552 S.E.2d 300, 313 (2002) (“We find these references too vague in context to support the admission of this evidence. The minimal probative value of this document is far outweighed by its unfair prejudicial impact as evidence of appellant’s bad character i.e. his propensity for violence in general . . . these lyrics contain only general references glorifying violence. Accordingly, the Ruckus song should have been excluded.”)

[13] Kelly McGlynn, Lyrics in Limine: Rap Music and Criminal Prosecutions, ABA (Jan. 11, 2023), https://www.americanbar.org/groups/communications_law/publications/communications_lawyer/2023-winter/lyrics-limine-rap-music-and-criminal-prosecutions.

[14] Id.

[15] See e.g., Cal. Evid. Code § 352.2(a);A.B. A127, 2023 Reg. Sess. (N.Y. 2023); Press Release, Congressmen Johnson, Bowman Re-Introduce Bill To Protect Artists’ 1st Amendment Rights, The Office of Congressman Hank Johnson (Apr. 23, 2023), https://hankjohnson.house.gov/media-center/press-releases/congressmen-johnson-bowman-re-introduce-bill-protect-artists-1st.

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26Mar

Weekly Roundup – 3/19 – 3/23

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By: Ashley Collette & Evan Reid

Jimenez-Cedillo v. Sessions

A Mexican citizen present in the United States without authorization pled guilty to sexual solicitation of a minor.  The Board of Immigration Appeals determined that this offense was a crime involving moral turpitude and ordered him removed from the United States.  In doing so, the Board departed from its rule “that an offense must require proof of a culpable mental state as to the victim’s age to qualify as a crime involving moral turpitude.”  The Board did not adequately explain its reasoning for “abandon[ing] the requirement of mental culpability as to a victim’s age”, and thus the Fourth Circuit held its decision was arbitrary and capricious.  The case was remanded for a more adequate explanation.

U.S. v. McCollum

In this criminal case, the defendant, Taison McCollum, appealed the district court’s decision applying a sentence enhancement based on his prior conviction for conspiracy to commit murder in aid of racketeering under 18 U.S.C. § 1959(a)(5) after McCollum pled guilty to the possession of a firearm by a convicted felon.  The Fourth Circuit reluctantly vacated the judgment of the district court and remanded the case back to the district court for resentencing.  In holding that the district court erred in enhancing McCollum’s sentence, the Fourth Circuit followed the Supreme Court precedent in Taylor v. United States, which held “an enhanced sentence is lawful only if the prior conviction necessarily establishes that the defendant ‘has been found guilty of all the elements’ of the enumerated offense” because the crime of conspiracy under § 1959(a)(5) does not require an overt act and thus is broader than generic conspiracy.

 

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14Mar

4th Amendment Rights: The Reasonableness of Prolonged Traffic Stops

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By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman.  The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina.  He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners.  The DEA also provided a license plate number for the car.  At 3:40 a.m., Officer Waycaster spotted an older red Lexus.  Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.”  When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence.  The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger.  Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate.  Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat.  Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information.  Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk.  Officer Waycaster found no weapons.  Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration.  While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from.  Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house.  He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS.  Officer Waycaster also asked Bowman what he did for a living.  Bowman replied, saying that he was a welder but was currently unemployed.  Bowman also said that he recently bought the Lexus off Craigslist.  Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.”  Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman.  Bowman consented.  After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?”  Bowman responded, “okay,” and remained in the vehicle.  As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.”  Bowman responded with, “oh, okay.”  Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over.  Alvarez’s story conflicted with Bowman’s.  Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no.  Bowman then refused to let Officer Waycaster search the Lexus.  Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman.  Then Office Waycaster summoned a K-9 team.  The K-9 team passed around the outside of the Lexus.  The dog alerted an officer that illegal narcotics were present in the vehicle.  Thereafter, Office Waycaster and the K-9 handler searched the interior of the car.  They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine.  Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion.  The district court followed the recommendation of the magistrate judge in denying the motion to suppress.  The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding.  Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable.  Here, Bowman does not challenge the reasonableness of the traffic stop.  Bowman was swerving and traveling 10 mph over the speed limit.  Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention.  To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent.  Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?”  However, under a reasonable person standard, the court said that this was not consent by Bowman.  Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do.  Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.”  The Court noted there is no precise definition for what constitutes reasonable suspicion.  Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life.  The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality.  However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis.  First, Waycaster noted that both Bowman and Alvarez appeared to be nervous.  However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police.  The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle.  Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior.  Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion.  However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity.  While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case.  Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion.  But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history.  The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers.  The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.”  Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law.  Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion.  Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion.  Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.

 

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16Mar

Fourth Circuit Clarifies Definition of “Travel in Foreign Commerce” in Sex Offense Case

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By Sophia Blair

On January 4, 2017, the Fourth Circuit published a criminal case, United States v. Schmidt. Richard Schmidt (“Schmidt”) originally pled guilty to traveling in foreign commerce and engaging in illicit sexual conduct in violation of 18 U.S.C. § 2423(c). However, claiming ineffective counsel, Schmidt argued that he did not, as a matter of law, travel in interstate commerce and was actually innocent of the § 2423(c) claim. The district court agreed, but the Fourth Circuit reversed.

Did Schmidt continue to travel in foreign commerce for the purposes of § 2423(c)?

Schmidt had a history of convictions for sex offenses involving young boys. In 2002, Schmidt fled the United States to the Philippines to avoid arrest for making unauthorized contact with a minor during his parole. While in the Philippines, Schmidt worked as a school teacher but was arrested again for molesting young boys. In 2003, Schmidt left the Philippines for Cambodia where he was again arrested for sex offenses. After raping a young boy following his release, Schmidt was deported to the United States and faced several charges including the § 2423(c) violation.

Schmidt petitioned the court to vacate his conviction because he claimed that his travel in foreign commerce ended during his time in the Philippines. Furthermore, he argued that his flight to Cambodia did not constitute independent travel in foreign commerce under § 2423(c). The issue before the Fourth Circuit was, at what time did Schmidt’s travel in foreign commerce end? The Fourth Circuit held that, for the purposes of § 2423(c), Schmidt continued to travel in foreign commerce when he left the Philippines for Cambodia. Therefore, he violated § 2423(c).

Interpreting § 2423(c) “Travel in Foreign Commerce”

§ 2423(c) was enacted as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT”) of 2003, and was intended to criminalize illicit sexual conduct in foreign places. In order to answer the question before it, the Fourth Circuit had to interpret what “travel” and “foreign commerce” meant for the purposes of § 2423(c). Looking to the Merriam-Webster’s Collegiate Dictionary definition, the court refused to construe “travel” narrowly to mean “en route from one place to another” and instead adopted the broader concept of “movement abroad.” Therefore, a person is still traveling even if they spend a significant amount of time in one place, as long as “the visit is sufficiently transient and contemplates some future departure.” United States v. Jackson, 480 F.3d 1014, 1022 (9th Cir. 2007). Therefore, travel continues until a person returns to their place of origin or permanently resettles elsewhere.

The Fourth Circuit construed “foreign commerce” parallel to the Foreign Commerce Clause to mean “commerce with a foreign country.” Foreign commerce requires a nexus with the United States. As a result, the Fourth Circuit held that “travel in foreign commerce” encompasses movement abroad that maintains some nexus with the United States, though there is no clear standard for what satisfies the nexus requirement.

Schmidt argued that his travel in foreign commerce ended during his stay in the Philippines because he was there for 18 months, obtained a work permit and had a full-time job as a teacher. Additionally, he rented a home and had a local driver’s license. The Fourth Circuit disagreed because his status remained transient, despite Schmidt’s insistence that he never intended to return to the United States. He was using two-month tourist visas, had an “alien employment permit,” maintained assets in the United States, and never purchased any property abroad. He travelled with a U.S. passport and did not make an effort to obtain permanent status in the Philippines or Cambodia. Therefore, Schmidt was traveling in foreign commerce at the time he committed the sexual offenses in Cambodia.

Disposition

The Fourth Circuit reversed the district court’s judgment and remanded for reinstatement of the judgment of conviction on the § 2423(c) offense.

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27Feb

Fourth Circuit Affirms Conviction for Mine Health and Safety Violations

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By: Kristina Wilson

On Thursday, January 19, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Blankenship. The Fourth Circuit affirmed the defendant’s conviction for federal mine safety laws and regulations and held that the District Court committed no reversible error. The defendant raises four arguments on appeal.

Facts and Procedural History

The defendant owns and operates Upper Big Branch Coal Mine (“The Mine”). The Mine had received repeated citations for violations of the Mine Safety & Health Act of 1977 (the “Mine Safety Act”) and its accompanying regulations. 30 U.S.C. § 801 et seq. Many of these violations related to improper ventilation and the accumulation of combustible materials. The defendant was made aware of these violations on a daily basis through routine reports. In 2015, a jury convicted the defendant of conspiring to violate federal mine safety laws. On appeal, the defendant raised the following four contentions: i) the District Court erroneously concluded that the indictment sufficiently alleged a violation of Section 820(d); ii) the District Court improperly denied the defendant the opportunity for cross examination; iii) the District Court incorrectly instructed the jury regarding the 30 U.S.C. § 820(d); and (iv) the District Court incorrectly instructed the jury as to the state’s burden of proof.

The District Court Did Not Err in Refusing to Dismiss the Indictment

Under the Fifth and Sixth Amendments, an indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense. United States v. Perry, 757 F.3d 166, 171 (4th Cir. 2014). An indictment that sets forth the statutory language itself is usually sufficient under this standard, provided that the language sets forth all the elements of the offense without uncertainty or ambiguity. Id. The indictment in question used the language of the 30 U.S.C. § 820(d) , which provides that an operator of a mine may not willfully violate a mandatory mine health or safety standard.

The defendant argued that the indictment was insufficient because it did not cite any specific mine safety laws or regulations that he allegedly conspired to violate. The Fourth Circuit noted that although the indictment itself did not set out the specific citations, the indictment included as an attachment a thirty-page document that detailed the specific laws and regulations violated and how the defendant violated them. Thus, the Fourth Circuit dismissed the defendant’s first contention.

The District Court Did Not Deny the Defendant the Opportunity for Cross Examination

When a new matter is revealed on redirect examination, a defendant is entitled to cross examination concerning the new matter. United States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996). A new matter is testimony that raises a subject outside the scope of direct examination or testimony that is materially diffferent from the testimony presented on direct examination. United States v. Jones, 982 F.2d 380, 384 (9th Cir. 1992).

The defendant argued that a witness’s testimony regarding a statement allegedly the defendant allegedly made, as well as made testimony regarding safety violations constituted new matters. However, even if the testimony did constitute new matters, the Fourth Circuit asserted that the District Court could only have committed harmless error. The content in the questioned testimony, according to the fourth Circuit, was sufficiently introduced and examined at various points throughout the trial. Moreover, the defendant cross examined the witness for five full days at trial, which the Fourth Circuit felt was sufficient opportunity. Therefore, the District Court’s holding that the testimony did not constitute a new matter could only have been harmless error.

The District Court Did Not Improperly Instruct the Jury

The defendant argued that the District Court improperly instructed the jury on the meaning of “willfully” in 30 U.S.C. § 820(d). The District Court gave the following four instructions regarding the definition of willfully under the statute: i) knowingly taking actions that cause a mine health or safety standard to be violated, ii) knowingly failing to take an action required to meet mandatory mine health or safety standards and knowingly allowing that omission to continue, iii)knowingly failing to take actions that are necessary to comply with mandatory mine health and safety standards, or iv) or knowingly, purposefully, and voluntarily taking action or failing to take action with reckless disregard for whether that action or failure to act will cause a mandatory safety or health standard violation.

The defendant argued that the fourth definition allowed the jury to impermissibly equate reckless disregard and willfulness. However, the Fourth Circuit noted that both “reckless disregard” and “plain indifference” can generally constitute criminal willfulness. RSM, Inc. v. Herbert, 466 F.3d 316, 320 (4th Cir. 2006). The Fourth Circuit then had to determine whether reckless disregard could constitute criminal willfulness specifically under the statute in question. To answer this question, the Fourth Circuit first examined precedent that held that a defendant violated the Mine Safety Act when intentionally or with reckless disregard disobeyed mandatory safety standards. United States v. Jones, 735 F.2d 785, 789 (4th Cir. 1984). The Fourth Circuit also examined the Mine Safety Act’s legislative intent and history and held that Congress enacted the Mine Safety Act to punish habitual offenders against a backdrop of courts construing criminal willfulness to include reckless disregard when defendants continually violate a federal law despite repeated citations. Thus, the District Court did not incorrectly define “willfulness” under the statute.

The District Court’s Use of the Two-Inference Instruction Was Not Reversible Error

The defendant finally argued that the District Court’s use of the two-inference instruction reduced the government’s burden of proof to a preponderance of the evidence. The two-inference instruction tells the jury that if the evidence permits reasonable conclusions of both guilt and innocence, the jury should favor innocence. Although the Fourth Circuit had not yet had the opportunity to evaluate the two-inference instruction, it noted that other circuits generally disapproved of the practice as failing to instruct the jury on how to find if the evidence of guilt is stronger than that of innocence, but not beyond a reasonable doubt. United States v. Khan, 821 F.2d 90, 92 (2d Cir. 1987). The Fourth Circuit agreed that this inference was problematic and prohibited its future use.

However, the Fourth Circuit did not agree that the use of the two-inference instruction was reversible error. It concluded that throughout the trial, the government’s burden was properly stated as beyond a reasonable doubt. Further, the District Court also repeatedly instructed the jury on the presumption of innocence. Therefore, the use of the two-inference instruction did not constitute reversible error.

Conclusion

The Fourth Circuit affirmed the District Court’s conviction of the defendant for health and safety violations under the Mine Safety Act.

 

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30Jan

Fourth Circuit Affirms Career Offender Status and Controlled Substance Offense Convictions

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By: Kristina Wilson

On Monday, January 30, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Dozier. The Fourth Circuit affirmed the Southern District Court of West Virginia’s designation of the defendant as a career offender and also held that the defendant’s prior state conviction under West Virginia law constituted a controlled substance offense under § 4B1.2 of the Sentencing Guidelines.

Facts and Procedural History

In April of 2015, the defendant pled guilty to violating 21 U.S.C. § 841(a)(1) by knowingly distributing a set quantity of crack cocaine. The court used the modified categorical approach to hold that the defendant’s two prior state convictions were “controlled substance offenses” under § 4B1.2 of the Sentencing Guidelines. The court consequently determined that the defendant should receive career offender status. On appeal, the defendant argued that the second of his two prior state convictions did not qualify as a controlled substance offense and that consequently, he should not be termed a career offender.

The District Court Should Not Have Used the Modified Categorical Approach

When determining whether to apply a Guideline sentencing enhancement, courts use a categorical inquiry to determine whether a defendant was convicted of a crime that qualifies as a predicate offense. However, when a statute is “divisible,” courts deviate from this categorical approach to apply a modified categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). A “divisible” statute lists elements in the alternative and defines multiple crimes. Id.

The modified categorical approach consults particular documents to ascertain of what crime and with what elements a court convicted a defendant. Id. Courts should only use the modified categorical approach in limited circumstances. Where a statute defines an offense broadly and is not divisible, the modified categorical approach “has no role to play.” Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct. at 2285).

Thus, the Fourth Circuit’s first task was to determine if the West Virginia statute under which the District Court convicted the defendant was divisible and therefore subject to the modified categorical approach. While the Fourth Circuit conceded that the statute could be “generally divisible,” it argued that such general divisibility was not sufficient to apply the modified categorical approach without first engaging in the following two-part inquiry: (i) Was the state statute’s definition of “attempt” consistent with the generic definition of “attempt” in the career offender enhancement? United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014), and (ii) Was the underlying state offense a categorical match for the Guideline predicate offense? Id. The Fourth Circuit stated that the District Court should not have applied the modified categorical approach without first engaging in these analyses.

West Virginia’s Attempt Statute Is A Categorical Match For the Generic Definition of Attempt

West Virginia’s attempt statute requires both specific intent to commit the underlying crime and an overt act in furtherance of that crime. Similarly, Fourth Circuit precedent defines “attempt” as requiring both culpable intent to commit the charged crime and a substantial step toward committing the crime. The Fourth Circuit argued that the intent requirement in the West Virginia statute was no broader than that of the Fourth Circuit statute and that the act elements in each statute were consistent; each required more than preparatory acts that strongly indicated criminal intent. Therefore, the Fourth Circuit held that the statutes were substantially similar and were a categorical match.

The Prior State Conviction Was A “Controlled Substance Offense”

The Fourth Circuit held that the West Virginia controlled substance statute was no broader than § 4B1.2 of the Sentencing Guidelines. West Virginia Code § 60A-4-401 prohibits the manufacture, delivery, or possession with intent to manufacture or deliver of controlled substances. Sentencing Guideline § 4B1.2 proscribes the manufacture, importation, exportation, distribution, or dispensation of controlled substances. Thus, the two acts have substantially similar intent and action requirements, and the defendant’s underlying offense was a categorical match of a generic controlled substance offense.

Disposition

The District Court erred in applying the modified categorical approach before analyzing the two inquiries above. However, the District Court reached the proper result in classifying the prior state conviction as a “controlled substance offense” and in classifying the defendant as a career offender. Consequently, the Fourth Circuit affirmed.

 

 

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23Jan

Fourth Circuit Affirms Denial of Motion to Suppress by Clarifying the Terry Doctrine

Categories: 4th Cir. Blog Criminal Cases
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By John Van Swearingen

On Monday, January 23, 2017 the Fourth Circuit issued a published opinion following a rehearing en banc in the criminal case United States v. Robinson. The defendant Robinson appealed his conviction under 18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm by a felon. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Robinson’s motion to suppress evidence of weapon possession, holding that the potential legal status of a concealed weapon does not automatically render that weapon harmless, and therefore, any officer that lawfully stops an individual and reasonably believes that individual to be armed is justified in frisking that individual to secure any weapons.

Facts and Procedural History

On March 24, 2014, an anonymous caller called the Ranson Police Department (West Virginia) to report seeing a black male, the defendant Robinson, in a “bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket” while parked at a 7-Eleven. After this occurred, according to the tipster, the driver of the vehicle, a white female, pulled the Camry out of the parking lot and headed southbound.

This particular 7-Eleven, as several officers would later testify, was located next to the Apple Tree Garden Apartments. The 7-Eleven and the apartment complex were both part of “the highest crime area in Ranson,” especially with regard to drug trafficking, and calls to either location were treated with a heightened sense of alertness.

Two officers responded to the call, and within minutes, spotted the subject Camry containing the defendant and the white female. Neither occupant in the Camry was wearing a seatbelt. The first officer, Officer Hudson, effected a traffic stop for the seatbelt violations. Because the anonymous caller stated that defendant was armed, Officer Hudson asked Robinson to step out of the car.

The second officer, Captain Roberts, opened Robinson’s door and, as Robinson was getting out, asked if Robinson was armed. The Captain later testified that Robinson gave him an “oh, crap” look in lieu of a verbal response. Captain Roberts then frisked Robinson, discovering and securing a loaded handgun from Robinson’s pants pocket.

Captain Roberts, recognizing Robinson as a known felon, then arrested Robinson for illegal possession of a firearm by a felon.

Robinson filed a motion to suppress the firearm, claiming the frisk was a violation of his Fourth Amendment rights. More specifically, Robinson contended that, while the officers may have reasonably suspected that he was armed, West Virginia’s generally permissive laws regarding concealed carry mean an armed individual cannot be assumed to be dangerous absent other factual information. The United States District Court for the Northern District of West Virginia denied his motion.

Armed and Dangerous Means Armed and thus Dangerous

Terry v. Ohio, 392 U.S. 1, 30 (1968), governs the doctrine of weapons frisks by law enforcement officers. If an officer reasonably believes that criminal activity is afoot and suspects an individual is armed and dangerous, that officer may stop that individual and pat down that persons clothing to feel for weapons.

Robinson argued that language of Terry – “armed and dangerous” – requires an officer to reasonably suspect an individual be armed and – as a separate consideration – also dangerous.

Robinson correctly noted that West Virginia generally permits its citizens to acquire permits to arm themselves with concealed weapons. Therefore, Robinson contended, the suspicion that an individual is armed in and of itself does not give rise to suspicion that the individual is dangerous. Robinson conceded that Officer Hudson’s stop of the Camry was lawful. Thus, this challenge turns on the “armed and dangerous” language of the Terry opinion.

Robinson misconstrues both the language of Terry and the Supreme Court’s jurisprudence regard frisks. The Court does use the phrase “armed and dangerous” near the end of the Terry opinion. However, in the preceding discussion regarding the legality of frisks, the Court stated that an officer may frisk a lawfully-stopped individual if “a reasonably prudent man would have been warranted in believing [that individual] was armed and thus presented a threat to the officer’s safety.”

The Court applied the Terry doctrine to traffic stops in Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977). The Mimms opinion echoed Terry, holding that an officer’s frisk of a lawfully-stopped individual was proper where the officer reasonably believed the individual was “armed and thus posed a serious and present danger to the safety of the officer.”

The language of the Terry and Mimms opinions is fatal to Robinson’s argument. The phrase “armed and dangerous” does not, as Robinson argued, create a two element test wherein an officer must have reasonable suspicion that an individual is armed and also dangerous. Rather, Terry and its progeny state that, where an individual is reasonably suspected of being armed, they are presumed dangerous as a matter of law and fact.

Robinson’s argument also fails to account for the factual circumstances of his stop. First, an anonymous tip reported a man concealing a gun in a high-crime, high-drug activity area. The tip was then corroborated when the responding officers observed Robinson and the female driver in the blue-green Camry heading south away from the 7-Eleven. Further, Robinson’s “oh, crap” look to Captain Roberts was reasonably perceived as an evasive response to a direct question about being armed.

The Fourth Circuit also noted that widespread legal concealed carry does not render the presence of a firearm somehow less dangerous. The court held that concerns for officer safety logically permit an officer to secure a firearm when that officer lawfully stops an unknown individual who is reasonably suspected of being armed.

In sum, when an individual is lawfully stopped by law enforcement and that individual is reasonably suspected of being armed, that individual is therefore suspected of being dangerous as a matter of law. Therefore, Robinson’s Fourth Amendment rights were not violated when he was frisked.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s denial of Robinson’s motion to suppress the firearm. Robinson was lawfully stopped, and based on the facts of this case, the responding officers reasonably suspected that Robinson was armed and thus dangerous. Therefore, Captain Roberts’ frisk of Robinson was permissible, and the firearm recovered pursuant to that frisk was admissible as evidence against Robinson.

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26Oct

Fourth Circuit Vacates Exclusion of Grand Jury Evidence in Human Trafficking Case

Categories: 4th Cir. Blog Criminal Cases
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By John Van Swearingen

On Wednesday, October 26, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Alvarado. The district court had issued an order precluding the government from calling upon two witnesses to testify about anything discussed during a grand jury proceeding for a post-superseding indictment; the order also excluded those witnesses’ grand jury testimony for all purposes at trial, including impeachment. The government appealed, arguing the district court abused its discretion by excluding this evidence. Further, the government argued that, in the absence of a finding of prosecutorial misconduct, evidentiary exclusion cannot be used as a remedy. The Fourth Circuit vacated the district court’s order, holding that the district court abused its discretion by ordering the exclusion of the evidence for two reasons. First, the district court did not provide any legal justification for determining how the scope of the government’s questions at the grand jury proceeding exceeded permissible grounds. Second, the district court did not explain how delay, cited by the district court as a reason supporting the exclusionary remedy, was appropriately related to the remedy. However, the Fourth Circuit refused to adopt a blanket policy forbidding district courts to enact exclusionary remedies regarding grand jury proceedings in the absence of prosecutorial misconduct.

Facts and Procedural History

On December 4, 2014, Maria Rosalba Alvarado McTague (“Alvarado”) and Felix Chujoy (“Felix”) were indicted by a federal grand jury for visa fraud and immigration charges. More specifically, Alvarado and Felix were accused of smuggling undocumented immigrants into the country to work, in horrendous conditions and for below minimum wage, in their Peruvian restaurant in Virginia. Alvarado and Felix were released on bond. Expecting a superseding indictment, the defendants and the government moved jointly for a continuance. The district court set trial for June 22, 2015.

The grand jury returned a superseding indictment on March 12, 2015. Alvarado and Felix were charged with additional counts of labor trafficking, Gladys Chujoy was added as a defendant, and all three Defendants were charged with witness tampering, conspiracy to witness tamper, and obstruction of justice. Because evidence suggested Alvarado and Felix were using third-parties’ phones to contact witnesses, their bonds were revoked by the magistrate.

The government continued investigating these matters by questioning individuals whose phone numbers appeared in the phone records of witnesses. Carolyn Edlind (“Edlind”) and Sheriff Donald Smith (“Smith”) were interviewed during this investigation in May 2015, and both were subsequently subpoenaed to testify at trial.

On June 21, 2015, the government moved to continue the trial because of a personal emergency. Defendants did not object and explicitly waived any speedy trial objection; however, Alvarado did have to retain new counsel. The district court set trial for October 26, 2015.

In August 2015, counsel for an inmate incarcerated alongside Felix contacted the government with an invitation to interview that inmate. The inmate advised that he and others had provided PINs to Felix in order to facilitate Felix making surreptitious phone calls. After obtaining the recorded conversations, the government discovered evidence that Felix, Edlind, and Smith were potentially engaged in a witness-tampering scheme.

On October 6, 2015, the government subpoenaed Edlind and Smith to testify before the grand jury regarding the post-superseding indictment tampering scheme. This information was disclosed to both the district court and Defendants.

On October 20, 2015, Felix, Edlind, and Smith testified before the grand jury about the scheme, and the grand jury returned a new indictment. Felix and Edlind were charged with new counts of witness tampering, conspiracy to witness tamper, and obstruction of justice. Edlind was also charged with an additional count of obstruction (based on her prior grand jury testimony) and perjury.

Alvarado thereafter filed a motion to continue in order to investigate the possibility of prosecutor misconduct. The court granted the motion, set trial for December 1, 2015, and invited all Defendants to join the investigation regarding prosecutorial misconduct.

On November 13, the Defendants filed a joint motion for dismissal of all indictments, alleging the government used the third grand jury proceeding with the primary intent of uncovering evidence for the charges on the March 12 indictment as well as determining the Defendants’ trial strategy. The district court found no prosecutorial misconduct and denied dismissal of the indictments. However, the district court forbade the government from calling Edlind or Smith to testify about anything covered in their testimony before the October 6 grand jury; the court also excluded that testimony for any use at trial, including impeachment.

The district court stated this exclusionary remedy was appropriate for two reasons. First, the district court stated the government’s questions during the October 6 grand jury proceeding delved too far into the original underlying charges. Second, the court stated, in the interests of fundamental fairness, the delay caused by the government’s June 21 continuance and Alvarado’s later continuance supported exclusion.

The government appealed pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291, arguing two points. First, the district court’s exclusionary remedy was an abuse of discretion. Second, an exclusionary remedy could never apply without prosecutorial discretion.

Exclusion of Evidence Based on the Government’s Questioning, Where the Questioning Had the Dominant Purpose of, and in Fact Did, Produce New Indictments, Was an Abuse of Discretion

The Fourth Circuit held the district court abused its discretion in excluding the grand jury evidence. Absent compelling evidence that the grand jury process was abused – for example, finding that the dominant purpose of a grand jury proceeding was building evidence against a defendant already charged – district courts are generally guided to refrain from intervening. See United States v. Moss, 756 F.2d 329, 331­–32 (4th Cir. 1985).

Also, grand jury proceedings have a presumption of regularity that is bolstered when those proceedings result in new indictments. Id. The function of those proceedings, gathering evidence for an indictment, requires broad latitude in questioning witnesses. See id. at 332. Investigating additional crimes, for example, does not require the government to ignore previous ones.

Here, the district court did not find any improper purpose behind the October 6 grand jury proceedings. Additionally, the district court did not explain its legal basis for determining that the government’s lines of questioning in the October 6 proceeding ­– given the regularity of grand jury proceedings and the fact that new indictments were, in fact, issued – merited an exclusionary remedy. Rather, the court based its remedy on incidental benefits to the government’s case as a result of the proceeding, as well as the court’s determination that some questions seemed too far removed from the new allegations. Lacking a finding of bad faith or improper purpose, the district court essentially excluded the government’s evidence as punishment for not being clairvoyant. The Fourth Circuit therefore held the district court abused its discretion by issuing an exclusionary remedy.

Exclusion of Evidence Based on Delay Without a Supporting Legal Basis Was an Abuse of Discretion

The Fourth Circuit also held the district court’s exclusion of evidence based on delay was an abuse of discretion. The district court never explained in its order why the continuances it once granted later justified exclusion of evidence. The district court did not find bad faith on behalf of the government; further, the court did not state that the government did anything other than conduct a good-faith investigation into the new witness tampering and obstruction charges.

If a district court is going to exclude evidence on the basis that the evidence was attained due to a bad-faith continuance, grand jury abuse, or other prosecutorial misconduct, then the court must clearly state so in its order. Failing to do so – yet ordering exclusion of evidence – was an abuse of the district court’s discretion.

Strict Categorical Limitations on District Courts’ Powers to Issue Remedies in Grand Jury Proceedings Rejected

The Fourth Circuit rejected the government’s argument to categorically limit a district court’s available remedies regarding grand jury proceedings. As argued by the government, if a grand jury proceeding is found to have a proper dominant purpose, the district court will be unable to issue any remedies regarding evidence and testimony obtained during that proceeding. Such is the case in the Eleventh Circuit – a district court may only issue an exclusionary remedy if grand jury proceedings were conducted with the improper dominant purpose of obtaining evidence for existing charges. See United States v. US Infrastructure, Inc., 576 F.3d 1195, 1215 (11th Cir. 2009).

The Fourth Circuit did not want to exclude the availability of a remedy for lines of questioning that skirt the limits of permissibility but do not go beyond them. In certain situations, the court held, remedial actions may still be justified despite a proper dominant purpose for grand jury proceedings.

However, the district court here failed to justify its exclusionary remedy. The district court failed to state any findings of bad faith or prosecutorial misconduct in its order. The government’s lines of questioning did not support a finding of improper purpose. The delays were not connected to reasons for the district court’s exclusionary remedy. For those reasons, and not – as the government proposed – due to a blanket prohibition on available district court remedies, the Fourth Circuit vacated the district court’s order.

Disposition

The Fourth Circuit vacated the district court’s order excluding evidence and testimony from or relating to the October 6 grand jury proceedings. The court remanded the case back to the district court with instructions to either (a) admit the excluded evidence or (b) issue a new order specifically stating how the exclusion of the evidence is narrowly tailored to the court’s concerns regarding the government’s conduct.

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