Wake Forest Law Review
5Feb

Fourth Circuit Finds Insufficient Evidence in Heroin-Related Convictions

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By Paige Topper

On December 10, 2015, in the criminal case of United States v. Daniel Blue, a published opinion, the Fourth Circuit reversed Daniel Blue’s (appellant) prior convictions of conspiracy and possession with the intent to distribute heroin due to insufficient evidence.

Surveillance on Blue Leading to His Arrest

Using the cooperation of a fellow heroin distributor, officers set up a controlled heroin buy in the hopes of arresting a known middleman, Keith Townsend. During the staged buy, officers watched Blue interact with their target in what appeared to be a drug deal with Blue giving Townsend heroin folded into a slice of bread. Two weeks later the officers decided to start tracking Blue by placing a hidden GPS on Blue’s vehicle.

In their surveillance of Blue’s whereabouts the officers followed Blue to Fox Hall apartment complex where they watched Blue enter the apartment building empty-handed and return about five minutes later with a cloudy white, plastic container in his hand. The officers then followed Blue to a lake in Baltimore County known for narcotics transactions. Blue entered into a vehicle with another male, Jamar Holt, and drove around the lake in Holt’s car before returning to his own vehicle. The officers followed Holt under the assumption that a drug transaction between Holt and Blue had occurred. Holt ultimately escaped the officers. After this failed attempt, the officers went to the new address that Blue was at, according to the GPS, and arrested Blue upon his departure from a residence on Sinclair Lane. Ultimately, a grand jury convicted Blue of conspiracy to distribute heroin and possession with intent to distribute heroin.

Insufficient Evidence for Possession with Intent to Distribute 

First the Fourth Circuit addressed Blue’s sufficiency of the evidence argument for the possession with intent to distribute 100 grams or more of heroin conviction. This conviction referred to 108.6 grams of heroin located in one of the Fox Hall apartment units hidden in a footstool. The standard of review for this evidence was whether such evidence could support a rational determination of guilt beyond a reasonable doubt. The government argued there was enough evidence because the officers watched Blue enter and leave the Fox Hall apartment building and that Blue lied to the officers about not being at that location.

The Fourth Circuit noted that the two principal issues with this count were (1) whether Blue knew the 108.6 grams of heroin was in the footstool in the front bedroom of the apartment unit and (2) whether Blue had the power to exercise dominion and control over the heroin. Dominion and control cannot be established by mere proximity to the drug, by mere presence on the property where the drug is found, or by mere association with the person who does control the drug.

Although the officer’s observed Blue entering and exiting the apartment building, they did not see Blue enter the specific apartment unit where the heroin was found nor did they see Blue interact with the occupants of the apartment unit in question. Therefore, the Fourth Circuit determined there was insufficient evidence to establish Blue’s possession of the heroin found in the footstool. The  government argued that Blue was using the apartment as a stash house and thus had constructive possession of the heroin. The Fourth Circuit declared that the government did not provide constructive notice of the heroin through proof that Blue resided or leased the apartment, that Blue’s personal possessions were in the apartment, or that Blue was associated with the occupants of the apartment. As a result of the lack of connection between Blue and the occupants of the apartment, the government’s theory of a stash house was found to be unreasonable. The complete lack of connection between Blue and the heroin convinced the Court that the evidence did not support a rational determination of guilt beyond a reasonable doubt.

The Fourth Circuit also rejected the government’s reliance on case law that suggested the holder of a key has constructive possession of the contents in the apartment. In particular, the Court noted that no Fourth Circuit case had ever adopted the overly broad statement of the law derived from the Eighth Circuit. Moreover, the Eighth Circuit itself qualified the statement, which was located in a footnote, by rejecting the government’s argument in that case that the defendant’s possession of a key to the home, by itself, proved the defendant knowingly possessed cocaine found in the home. Here, the fact that Blue had a key to the apartment did not provide sufficient evidence to establish guilt beyond a reasonable doubt.

Insufficient Evidence for Conspiracy to Distribute

Blue’s second challenge was against the sufficiency of the evidence to support the charge for conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. The Fourth Circuit again found that the evidence did not support a rational determination that Blue was guilty of conspiring to distribute. To have found Blue guilty for conspiracy for distribution specifically over 100 grams the government had to tie Blue and another person to an agreement to distribute the 108.6 grams of heroin. The government failed to present such evidence.

Fourth Circuit Reversed Both Convictions

As a result of the lack of sufficient evidence linking Blue to the 108.6 grams of heroin in the footstool and linking Blue to an agreement to distribute that amount of heroin, the Fourth Circuit reversed both convictions of conspiracy and possession with intent to distribute heroin.

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28Jan

Fourth Circuit Clarifies When Sentences Imposed Pursuant to a Rule 11(c)(1)(C) Plea Agreement Are Reviewable

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By Whitney Pakalka

On January 28, 2016, the Fourth Circuit published its opinion in the criminal case, United States v. Williams, clarifying when an appellate court may review a prison sentence imposed pursuant to a plea agreement made under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The Court held that unless the sentence imposed is greater than that set forth in the plea agreement, the sentence will only be reviewable if it is unlawful or is expressly based on the United States Sentencing Guidelines. Because appellant’s plea agreement did not satisfy these criteria, the Court dismissed her attempted appeal of her sentence.

Defendants’ Plea Agreements and Arguments on Appeal

Both David James Williams, III and Kristin Deantanetta Williams separately pleaded guilty to one count of federal conspiracy to possess and distribute cocaine and cocaine base.   Both defendants entered into plea agreements under Rule 11(c)(1)(C), each stipulating that a sentence of 120 months imprisonment was “the appropriate disposition in this case.” The District Court for the District of South Carolina sentenced Defendants in accordance with those agreements.

David Williams and Kristin Williams challenged their convictions on appeal, but only Kristin Williams challenged her sentence. As to the challenged convictions, counsel raised questions as to whether the district court complied with Rule 11 as to both Defendants. The Fourth Circuit rejected this challenge and affirmed both convictions, finding that the District Court fully complied with Rule 11’s requirements. Kristin Williams’ appeal also questioned whether her sentence was reasonable. The Fourth Circuit considered whether it had jurisdiction to review her sentence on appeal.

Appropriate Review of Kristin Williams’s Prison Sentence

As an initial matter, the Fourth Circuit noted that not all sentences are subject to appellate review, and as governed by 18 U.S.C. § 3742(a), an appellate court may review a defendant’s final sentence only if it (1) “was imposed in violation of law,” (2) “was imposed as a result of an incorrect application of the sentencing guidelines,” (3) “is greater than the sentence specified in the applicable guideline range,” or (4) “was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.” However, as the Fourth Circuit noted, 18 U.S.C. § 3742(c) dictates that when a sentence is imposed under a stipulated plea agreement, the defendant cannot challenge the sentence based on the third or fourth factor unless it exceeds the sentence set forth in the plea agreement.

The Fourth Circuit quickly eliminated three of the four grounds on which Kristin Williams could seek review of her sentence under § 3742(a): the first basis was eliminated because her sentence was not imposed in violation of law; the third and fourth options were unavailable because her sentence was entered pursuant to a Rule 11(c)(1)(C) plea agreement that matched her sentence exactly. This left only the question of whether her sentence was imposed due to an incorrect application of the sentencing guidelines.

The Fourth Circuit wrote that it has suggested on numerous occasions that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea deal is not the result of an incorrect application of the sentencing guidelines by the district court, but is instead based on the parties’ agreement. While some sister circuits follow this approach, others still permit a defendant to appeal a sentence imposed under a stipulated plea if it results from an incorrect application of the guidelines. Yet, despite its previous holdings, the Fourth Circuit chose to consider the issue in light of the Supreme Court’s decision in Freeman v. United States.

Reconsidering Appellate Review of Prison Sentences based on the Supreme Court’s Decision in Freeman v. United States

In Freeman, the Supreme Court held that a stipulated plea agreement can, in some circumstances, be “based on” the sentencing guidelines. Although Freeman was interpreting a different section of the federal code, 18 U.S.C. § 3582(c)(2), which defines a district court’s power to reduce a sentence already imposed, the issue in that case was whether a Rule 11(c)(1)(C) plea agreement was “based on” sentencing guidelines and was therefore reviewable. The Supreme Court held that when a plea “agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment,” the sentence is “based on” the guidelines and is reviewable. The Fourth Circuit applied Freeman’s rule in United States v. Brown, concluding that for purposes of § 3582(c)(2), when a Rule 11(c)(1)(C) plea agreement expressly uses the sentencing guidelines to establish the prison term, the sentence is reviewable.

The Fourth Circuit could find no reason not to extend this logic to the statutory subsection at issue here: “Surely, where a stipulated plea is ‘based on’ the Guidelines and reviewable in . . . subsection 3582(c)(2), it also involves an “application of” the Guidelines and is reviewable under subsection 3742(a)(2).” In addition, the Fourth Circuit found this reading to be in line with the overall operation of § 3742. The Court reasoned that because 3742(c) specifically prohibits appeals of Rule 11(c)(1)(C) sentences under paragraphs (3) and (4), it would stand to reason that appeals are permitted under paragraph (2).   The Fourth Circuit held that when a sentence is imposed pursuant to a Rule 11(c)(1)(C) plea agreement, it may be reviewed only where the sentence is unlawful, the sentence imposed exceeds the term set forth in the plea agreement, or where the agreement expressly used the sentencing guidelines in establishing the prison term.

Kristin William’s Appeal of Her Sentence Dismissed

The Fourth Circuit ultimately found that Kristin Williams’ sentence was not “imposed as a result of an incorrect application of the sentencing guidelines.” Her plea agreement did not use or make reference to a guidelines-based calculation. Thus, under the standard set forth above, her sentence was not properly reviewable, and lacking jurisdiction, the Court dismissed the attempted appeal of her sentence.

 

 

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28Jan

Conviction for Receipt of Child Pornography Not Barred by Double Jeopardy

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By Elizabeth DeFrance

On December 2, 2015, the Fourth Circuit Court of Appeals issued a published opinion in the criminal case, United States v. Schnittker. Michael Schnittker appealed his conviction for receipt of child pornography in violation of  18 U.S.C. 2252(a)(2), arguing that it was barred by the Fifth Amendment’s Double Jeopardy Clause because he previously pled guilty to possession of child pornography in violation of 18 U.S.C. 2252(a)(4).

Search Reveals Two Hard Drives Containing Pornographic Material

Schnittker was indicted for possession of child pornography and for receipt of child pornography based on images contained on two hard drives, a Maxtor hard drive and a Western Digital hard drive, found during a search of his home. Each hard drive contained over a thousand images and videos, many of which were duplicates. However, the Maxtor hard drive contained many files that were not also contained on the Western Digital hard drive. After Schnittker’s attorney informed the prosecutor he intended to enter a guilty plea for the possession charge, the government sent Schnittker an e-mail making it explicit that only the Western Digital hard drive would be used for the possession charge, and the Maxtor hard drive would be used for the receipt charge. In open court, just before Schnittker entered his guilty plea, the prosecutor stated for the record that the Maxtor hard drive would be used for the receipt count and was not covered under the plea. This was reiterated in the statement of facts Schnittker and his attorney signed in connection with the guilty plea. Schnittker was later convicted of receipt of child pornography based on images from the Maxtor hard drive. Schnitter appealed, claiming that his conviction violated the Double Jeopardy Clause of the Fifth Amendment.

Double Jeopardy is a Bar Only if Offenses are the Same in Law and Fact

Punishment for two offenses violates the Double Jeopardy Clause of the Fifth Amendment if the offenses are the same in law and in fact. Here, the court assumed without deciding that the offenses were the same in law because possession of child pornography is a lesser-included offense of receipt of child pornography.

To determine if offenses are the same in fact, the court first asks whether a reasonable person in the defendant’s position “would construe the count to which [he] pled guilty to cover the offense charged later in prosecution.”  Then, if the court determines that a reasonable person in the defendant’s position would understand his guilty plea only covered the first offense, the court next asks whether “the possession conviction was based on an image the receipt of which did not form the basis of the receipt conviction.”

The Two Charges were Based on Distinct Unlawful Acts

The Court determined that Schnittker understood his guilty plea to possession of child pornography only covered the images contained on the Western Digital hard drive because the government made it expressly clear each hard  drive would be used for a different charge. The Court cited the e-mail sent to Schnittker before the guilty plea was entered, the spreadsheets the government provided Schnittker detailing which images were contained on each hard drive, the government reiterated this point in open court right before Schnittker entered his guilty plea, and the statement of facts Schnittker and his attorney signed in connection with the guilty plea only named the Western Digital hard drive.

The Court then determined that the unlawful conduct covered under Shnittker’s guilty plea was distinct from the unlawful conduct covered in his later conviction for receipt of child pornography. This was based on the fact that many files on the Maxtor hard drive were not duplicates of files on the Western Digital hard drive.

The Conviction was Upheld

Shnittker’s conviction for receipt of child pornography was based on a different set of facts than those used for his guilty plea to possession of child pornography. Therefore the Court found no double jeopardy violation and Shnittker’s conviction was affirmed.

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25Jan

Fourth Circuit Suppresses Evidence Obtained through Unlawful Search

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By Anthony Biraglia

In United States v. Kenneth Rush, a criminal case decided and published on December 21, 2015, the Fourth Circuit reversed a West Virginia district court’s denial of a motion to suppress evidence. The Court found that the good-faith exception to the exclusionary rule did not apply, and that lying about the existence of a search warrant was exactly the type of police conduct that the exclusionary rule guards against. The Court thus determined that evidence found during a search of Kenneth Rush’s (“Rush”) apartment should be suppressed, and remanded the case for further proceedings.

Circumstances of the Search and Motion In Limine

Police in Charleston, West Virginia, searched the apartment where Rush was staying pursuant to the consent of a co-habitant, who had earlier told police that she was afraid of Rush and that he was dealing drugs out of the apartment. During the search, a police officer told Rush that they had a warrant to search the apartment in response to his inquiries about why the officers were conducting the search. The officers knew that they did not, in fact, have a valid warrant to search the apartment. The search turned up crack cocaine and digital scales, which Rush admitted were his. However, the police did not arrest Rush at that time, nor did they arrest him when he made a voluntary trip to the police station to answer questions about his supplier. He was eventually arrested and charged with one count of knowingly and intentionally possessing with the intent to distribute twenty-eight grams or more of cocaine base under 21 U.S.C. § 841(a)(1).

Rush moved in limine to suppress the evidence seized. While the district court did find a violation of Rush’s Fourth Amendment right to object to the search, it determined that the officers’ lie about the search warrant was a “justifiable attempt to protect” the co-habitant and that exclusion would have little deterrent effect on police conduct. Rush pled guilty while reserving the right to appeal the district court’s decision on his suppression motion. On appeal, the Fourth Circuit reviewed the district court’s legal conclusions de novo and factual findings for clear error.

The Good-Faith Exception to the Exclusionary Rule is Not Applicable

The exclusionary rule is designed to deter violations of the Fourth Amendment by police through the exclusion of evidence that is the fruit of an unlawful search. Even though the search in this case was unlawful, the United States argued that the evidence should still be admissible under the good-faith exception to the exclusionary rule. The good-faith exception applies where the police act with an objectively reasonable, good-faith belief that their conduct is lawful. The Supreme Court has applied the good-faith exception in cases where the police relied upon a facially valid warrant, and where police relied upon erroneous information from the Clerk of Court’s office concerning an outstanding warrant.

The Court found that a deliberate lie about the existence of a warrant was unlike other situations where the good-faith exception has applied. The officer who made the statement in this case was a sixteen-year veteran of the police force that the Court reasoned could not have believed that it was lawful to lie about the existence of a search warrant. It is settled law that such lies are violative of the Fourth Amendment.

The government argued that the officers did not intend to violate Rush’s rights, but rather lied to him in order to protect the co-habitant. Whether or not this was truly their motive, (and the Court cited evidence showing that it was likely not) the test for the good-faith exception is subjective rather than objective. The the police officers’ subjective intentions are therefore irrelevant.

Exclusion of this Evidence will Deter Police Misconduct

Unlike the district court, the Fourth Circuit found that excluding the evidence would likely deter police officers from violating the Fourth Amendment in similar circumstances going forward. Quoting the Sixth Circuit, the Court stated “so long as there is an exclusionary rule, it seems safe to say that it will apply to officers who enter and remain in a house based on false pretense.”

Reversed and Remanded

For the above reasons, the Fourth Circuit reversed the district court’s decision on the suppression motion and remanded the case for further proceedings.

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19Jan

Drug Conviction Renders Petitioner Ineligible for Relief Under the INA or CAT Despite Fleeing Gang Violence in Central America

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By Elizabeth DeFrance

On December 4, 2015, the Fourth Circuit issued a published opinion in the case, Hernandez-Nolasco v. Lynch, in which the petitioner sought review of orders of the Board of Immigration Appeals (BIA).

Being Kidnapped And Threatened By A Gang After His Brother and Father Were Killed Failed to Meet The Burden of Proving He Would Face Torture If Removed

In 2009, Jose Hernandez-Nolasco, a citizen of Honduras,  entered the United States without authorization at the age of seventeen. In 2012, he pled guilty to possession of cocaine with intent to distribute, a violation of Virginia Code § 18.2-248 and was sentenced to five years. The sentence was suspended.

Sometime later, the Department of Homeland Security issued a Notice of Intent to issue a Final Administrative Removal Order for Hernandez-Nolasco. He claimed he was entitled to withholding of removal under the Immigration Nationality Act (INA) or the United Nations Convention Against Torture Act (CAT) because he would face persecution upon return to Honduras because of his membership in a particular social group. Hernandez-Nolasco’s father and brother were killed by a gang leader, and he left Honduras after being kidnapped and threatened by the same gang.

An Immigration Judge (IJ) held that Hernandez-Nolasco was not entitled to withholding of removal under the INA or CAT because he was convicted of a “particularly serious crime.” The IJ also found that Hernandez-Nolasco was not entitled to deferral of removal under the CAT because he failed to prove he would be subject to torture if returned to Honduras.

On appeal, the BIA affirmed the IJ’s decision. Hernandez-Nolasco filed a motion for reconsideration which was denied by the BIA. Hernandez then petitioned the Fourth Circuit Court of Appeals for review, claiming the BIA erred in determining his drug conviction meets the definition of an “aggravated felony,” rendering him ineligible for relief under the INA and the CAT. He also claims that the BIA erred in holding that he failed to meet his evidentiary burden to qualify for relief under the CAT.

A Drug Trafficking Crime Is Considered An Aggravated Felony

A petitioner is ineligible for relief under the INA or the CAT if he has been convicted of a particularly serious crime. A conviction for an aggravated felony with a sentence of at least five years is considered a particularly serious crime. Under the INA, a “drug trafficking crime” is considered to be an aggravated felony. Any “conviction under a state statute that proscribes conduct necessarily punishable as a felony under the Controlled Substances Act (CSA)” qualifies as a drug trafficking crime.

Hernandez-Nolasco’s Drug Trafficking Conviction Qualifies As A Particularly Serious Crime

Because Hernandez-Nolasco was convicted of a state crime that necessarily constitutes as felony under the CSA, the conviction qualifies as an aggravated felony under the INA. An aggravated felony is considered a particularly serious crime if it results in a sentence of at least five years, thus Hernandez-Nolasco is ineligible for withholding of removal under the INA or the CAT.

Under the INA, the Court’s jurisdiction for review of final orders of removal involving crimes related to controlled substances is limited to constitutional claims and questions of law. The BIA’s finding that Hernadez-Nolasco’s failed to provide enough evidence he would face torture upon his return to Honduras is a question of fact, not law. Thus, the Court lacked jurisdiction to decide the merits of his claim.

Petitions for Review Were Denied In Part And Dismissed In Part

The Court upheld the BIA’s denial of Hernandez-Nolasco’s petition for withholding of removal. The Court lacked jurisdiction to decide the merits of Hernadez-Nolasco’s claim he was entitled to deferral of removal under the CAT.

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19Nov

In International Piracy Case, Fourth Circuit Vacates Sentences but Affirms Convictions

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By George Kennedy

On August 13, in the criminal case of United States v. Said, the Fourth Circuit affirmed the convictions but vacated the sentences of six individuals involved in acts of piracy in the Gulf of Aden. Defendants in this case are Somali pirates apprehended by the U.S. Navy after a foiled plot to seize a merchant ship.

Attempts to Seize Merchant Ships

In an area notorious for piracy and hostage-taking on the high seas, Defendants attempted, on at least two separate occasions, to board merchant ships, take the crew members hostage, and obtain ransom money. Defendants’ first attempt came in 2010. At that time, Defendants secured a small motor boat, loaded it with weapons, and travelled into the Gulf of Aden searching for a merchant ship to seize. Soon after, however, Defendants’ boat was noticed by the HMS Chatham of the British Royal Navy. Sailors from the Chatham intercepted Defendants, confiscated their weapons, and ordered them to return home.

Undaunted by their initial failure, Defendants again set out in the same motor boat in order to seize a merchant ship in April 2010. Before sunrise, Defendants attempted to storm what they believed was a merchant ship crewed by civilians. Defendants fired rounds from AK-47s in order to scare the crew. Unbeknownst to Defendants, however, the ship they were trying to seize was in fact the USS Ashland, a dock landing ship of the United States Navy. Personnel aboard the USS Ashland promptly returned fire on Defendants, killing one member of their crew and destroying their boat. All Defendants were apprehended and taken prisoner by the U.S. Navy. The U.S. Navy transported Defendants to a naval brig in Norfolk, Virginia where they awaited trial.

Trial and Eighth Amendment Challenge

While Defendants were initially indicted by a grand jury in April 2010, Defendants awaited trial on the substantive charges leveled against them until February 2013. Defendants were charged with piracy, conspiracy to commit hostage taking, and several other related charges stemming from Defendants’ actions in attempting to seize the USS Ashland and from Defendants’ attempt to commit piracy when intercepted by the HMS Chatham. Following a six-day trial, the jury convicted Defendants on all counts.

Following their convictions, Defendants filled motions for judgment of acquittal, as well motions to invalidate the mandatory life sentence imposed by 18 U.S.C. § 1651, the anti-piracy statute. While the district court denied the motion for judgment of acquittal, the district court did hold that the mandatory life sentence as imposed by § 1651 violated Defendants’ Eighth Amendment Rights. Accordingly, the district court upheld the convictions of Defendants, and imposed sentences ranging from 360 months to 510 months imprisonment.

Issues on Appeal

On appeal, Defendants contended that the district court made three errors: (1) denying their motions to dismiss the piracy charge, (2) improperly instructing the jury on the elements of piracy under § 1651, and (3) denying their motions for judgment of acquittal. The Fourth Circuit dismissed all Defendants’ claims.

First, the Fourth Circuit held that, contrary to Defendants’ arguments, the Fourth Circuit faithfully applied the principles of United States. v. Dire, the foundational case on interpreting § 1651. Because the district court made no error in interpreting § 1651, the Fourth Circuit held that the district court made no error in denying the motions to dismiss the piracy charge nor did the district court err in instructing the jury on the elements of piracy under § 1651. As to the denial of Defendants’ motions for judgment of acquittal, the Fourth Circuit also held that district court did not err. The Fourth Circuit found that there was more than sufficient evidence in the record to support each charge for which Defendants were convicted. Therefore, the district court made no error in refusing to acquit Defendants.

The government also raised an issue on appeal. The government contended that the district court erroneously determined that 18 U.S.C. § 1651’s mandatory life sentence, as applied to the defendants, violates the Eight Amendment’s prohibition against cruel and unusual punishment. To this point, the Fourth Circuit agreed, and vacated the sentences imposed by the district court, and remanded for resentencing. In so holding, the Fourth circuit argued that the seriousness of the crime of piracy made imposition of a life sentence not “grossly disproportionate” to the crime committed. Furthermore, the Fourth Circuit argued that cases that did reduce the severity of punishments based on the Eighth Amendment almost always involved capital punishment, and that cases which did not reduce the severity of punishment involved crimes far less serious than piracy. Therefore, the Fourth Circuit urged deference to the text of § 1651 which mandates life imprisonment for piracy.

Reversed, Vacated, and Remanded

Accordingly, the Fourth Circuit reversed the judgment of the district court in regards to sentencing, vacated the sentences imposed, and remanded the case for resentencing.

 

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18Nov

Nephew/Uncle Conspiracy to Sell “Stolen” Marlboros Remanded Back for Resentencing

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By Mikhail Petrov

Today, in the published criminal case of United States v. Qazah, the Fourth Circuit affirmed the Defendants’ convictions, but vacated their sentences and remanded the case back for resentencing. The Defendants, Kamal Qazah, better known by his street name Keemo, and his uncle Nasser Alquza, were convicted for a conspiracy to receive and transport stolen cigarettes in interstate commerce as well as money laundering. Two issues were before the Fourth Circuit. The first issue was whether undercover law enforcement agents had a proper warrant. The second issue was in the calculation of the Defendants’ sentences using the Sentencing Guidelines. The Fourth Circuit affirmed the district court’s decision to dismiss the Defendants’ motion to suppress evidence but vacated the Defendants’ sentences and remanded for resentencing.

A Business Deal Too Good…

In 2010 and 2011, Qazah, in conspiracy with others, purchased thousands of cases of purportedly stolen Marlboro brand cigarettes manufactured by Phillip Morris. Qazah didn’t know that he was actually buying Marlboros from undercover law enforcement officers. Qazah made big money by selling the purportedly stolen cigarettes, on which state taxes had not been paid, to convenience stores in South Carolina. Qazah even brought his uncle, Nasser Alquza, into the business.

In November 2011, the undercover officers arranged the final controlled purchase, agreeing to deliver 1,377 cases of cigarettes to a warehouse owned by Alquza for $1.8 million. Instead of completing that transaction, however, law enforcement officers arrested Qazah and Alquza at Qazah’s house, where they also executed a search warrant and recovered, among other things, $1.3 million in cash and a notebook in which Qazah had recorded his cigarette sales to various retailers. That same day, officers executed another search warrant at Alquza’s house, recovering relevant financial records and false identification documents.

The problem arose with the warrant used by the undercover agents.  The warrant used to search Alquza’s house had an attachment, Attachment B, which was prepared in connection with Qazah’s warrant. Thus, Attachment B that the undercover agents intended to include for Alquza’s house should have specified documents relating to “Nasser ALQUZA” in paragraph one, rather than those relating to “Kamal QAZAH.” The warrant had previously been emailed to the magistrate judge, with Attachment B in its proper place. When it was presented to the judge for her signature, Attachment B was with the wrong warrant.

The Procedural History – The Deficient Warrant and The Sentencing Guidelines

Alquza had filed a motion to suppress the evidence seized during the search on the grounds that the warrant was incorrect. Following a hearing, the district court denied the motion to suppress, finding that the incorrect attachment was a clerical error. The district court concluded that the evidence recovered in the search was admissible under the good-faith exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897 (1984).

With the motion to suppress denied, the presentencing report for Qazah recommended that he be held responsible for 8,112.66 cases of cigarettes, with a retail value of $24,337,980, and Alquza for 2,909.66 cases, with a retail value of $8,728,980. Based on those loss amounts, the reports applied a 22-level enhancement to Qazah’s offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(L) (2012), and a 20-level enhancement to Alquza’s offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(K) (2012). In coming up with the dollar amounts of the “stolen” cigarettes, the district court valued the retail price of the cigarettes at $3,000 per case, as distinct from the wholesale value of $2,126 per case.

The Deficient Warrant

Alquza first contends that the district court erred in denying his motion to suppress the evidence seized from his house. The district court found that the error here was a technical one, and did not influence the warrant’s issuance, nor adversely affect its execution. Alquza contended that the warrant did not satisfy the Fourth Amendment’s particularity requirement.

The Fourth Circuit found that the good-faith exception, as explained by the district court, applied to the deficient warrant. In this case, the magistrate judge had seen the correct warrant on her email, even though she signed the one with Attachment B. The Leon Court held that, the exclusionary rule should not be applied to bar the government from introducing evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant was ultimately found to be deficient.

Thus, the Fourth Circuit concluded that the magistrate did not wholly abandon her judicial role in issuing the warrant. See Leon, 468 U.S. at 923. Nor did she “merely rubber stamp the warrant.” United States v. Gary, 528 F.3d 324, 329 (4th Cir. 2008). To the contrary, the magistrate judge examined the email version of the proposed warrant, which was the correct version, before deciding to sign it, although she unwittingly signed an incorrect version. Alquza does not challenge the correct version that was considered by the judge.

Most importantly, the Fourth Circuit found that the suppression of evidence recovered in this case would have almost no deterrent effect because the officers were acting in good faith. The Supreme Court has repeatedly explained that the exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment violations” and that exclusion is appropriate only when “the deterrence benefits of suppression . . . outweigh its heavy costs.” Davis v. United States, 131 S. Ct. 2419, 2426-27 (2011). Thus, the decision of the district court on the warrant was affirmed.

District Court Erred in Applying the Sentencing Guidelines  

The Defendants appeal the decision to use the retail value of the cigarettes rather than their wholesale value in evaluating their sentencing range under the Sentencing Guidelines. In rejecting the wholesale value of the cigarettes as the appropriate measure of loss, the district court relied on U.S.S.G. § 2B1.1(b)(1) and Application Note 3(A) to conclude that it should apply the “greatest intended loss” as between the wholesale and retail value of the cigarettes, regardless of whether that value in fact represented a loss.

In the version of the Sentencing Guidelines used in sentencing the Defendants, the Application Notes explain that the “intended loss” is determined by “the pecuniary harm that was intended to result from the offense.” Thus, as the Fourth Circuit has observed before, “the general rule is that loss is determined by measuring the harm to the victim” of the offense committed. United States v. Ruhe, 191 F.3d 376, 391 (4th Cir. 1999).

The victim, of course, is determined by the nature of the offense and the impact of its violation. In this case, the Defendants were told–and they believed–that they were receiving cigarettes stolen from Philip Morris trucks in either Virginia or Tennessee.

Thus, for the purpose of determining the loss that was intended to result from the offense, the court must identify and focus on the intended victim or victims of the offense of receiving and selling stolen property. Had the cigarettes actually been stolen, the most obvious victim would have been the property’s true owner, which the Defendants believed to be Philip Morris, the cigarettes’ manufacturer. This makes Philip Morris the most obvious intended victim of the conspiracy offense. Philip Morris’ loss would have been the amount of money that it would have otherwise received for selling the purportedly stolen cigarettes, a figure that the record indicates was an average of $2,126 per case.

Still, the Fourth Circuit held that the question about the identity of the intended victim and its losses are a question of fact for the district court to resolve. However, the district court in this case appeared to conclude, without making any such inquiries, that the cigarettes’ retail market value was the appropriate measure of loss simply because the Guidelines required it to apply the “greater intended loss,” and the cigarettes’ retail value was greater than their wholesale value. Thus, the sentence is vacated and remanded back to the district court for a determination of the victim and the proper amount that is lost or taken away from the victim.

Holding of The Fourth Circuit

The Fourth Circuit affirmed the district court’s decision to deny the motion to suppress but vacated the Defendants’ sentences and remanded back for resentencing while allowing the district court to expand its inquiry into the intended victim or victims of the relevant offenses and to recalculate the Defendants’ sentencing ranges based on its findings and conclusions about the amount of loss that they intended to result from their commission of the offense.

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12Nov

Pro Se Defendant’s Case Remanded After Fourth Circuit Finds No Forfeiture of Right to Counsel

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By Daniel Stratton

On September 2, 2015, the Fourth Circuit reversed the conviction of an individual convicted on several charges related to his possession of marijuana with intent to distribute, and remanded for further proceedings in a published opinion in the criminal case United States v. Ductan. The appellant, Phillip Ductan, argued that the district court violated his Sixth Amendment right to counsel by finding that he forfeited his right to counsel and requiring him to proceed pro se, and by subsequently removing him from the courtroom during the jury selection process. The Fourth Circuit, after reviewing Ductan’s argument, reversed the lower court’s decision and remanded the case back to the district court, holding that the lower court erred in finding that Ductan forfeited his right to counsel.

Ductan’s Arrest and Trial

Following a tip from a confidential informant in April 2004, the Charlotte, N.C., Police Department set up a controlled purchase of marijuana from Ductan at a restaurant in Charlotte. After Ductan showed the informant the drugs, the Charlotte Police moved in to arrest Ductan and two men accompanying him. Ductan fled the scene of the crime and in September 2004 was indicted by a federal grand jury on charges of possession of marijuana with intent to distribute, conspiracy to possess marijuana with intent to distribute, and carrying a firearm during a drug trafficking crime. He was arrested in May 2012.

At his initial court appearance, Ductan indicated to the magistrate judge that he had retained Charles Brant, an attorney, to represent him. Brant soon thereafter made a motion to withdraw from the case, explaining that Ductan was uncooperative, would not communicate, and refused to sign a discovery waiver.

At the hearing on Brant’s motion, the magistrate asked Ductan whether he intended to hire an attorney or have the court appoint one. Ductan explained that he did not want to have an attorney appointed and that he did not intend to represent himself. He also complained to the magistrate judge that it was difficult to obtain counsel while incarcerated.

The magistrate explained to Ductan that he had three options: represent himself, hire a new attorney, or ask the court to appoint an attorney for him. At this point Ductan began to make nonsensical statements (telling the judge that he was a “secured party creditor,” for example). The magistrate asked the prosecutor to explain the charges and potential penalties to Ductan, but Ductan claimed he did not understand what was being told to him and that he was “only here for the settlement of the account.” The magistrate questioned whether Ductan was under the influence of drugs or alcohol, but only received nonsense responses in return.

At this point, the magistrate told Duncan that he would not appoint a new attorney because Ductan had waived his right to an appointed attorney through his nonsense answers. The magistrate judge directed a Federal Defender’s office to appoint standby counsel for Ductan. In his order granting Brant’s motion to withdraw, the magistrate noted that Ductan had not “knowingly and intentionally waived his right to counsel” but because of his evasive responses, Ductan had “forfeited his right to counsel.”

Ductan refused to cooperate with Randy Lee, the court appointed standby counsel. About one month later, Lee moved to withdraw as Ductan’s attorney. Ductan continued to state that he did not want an appointed attorney because he was seeking private counsel, however the judge denied the motion explaining that Lee would not have to try the case because Ductan had “waived his right to appointed counsel” through his conduct.

At a calendar call, Ductan again stated that he was seeking private counsel, and stressed that he could not properly represent himself. The court explained that although Ductan had waived his right to appointed counsel, he was still free to hire an attorney.

Jury selection began the next day. Ductan told the district court that he was not prepared to move forward with the proceedings. Ductan repeatedly made nonsense statements, interrupting as the judge attempted to call the venire. After refusing the court’s instruction to stop, Ductan was held in contempt and removed from the court.

Ductan was allowed to observe the jury selection from a holding cell. Lee had no participation in the jury selection process beyond a brief bench conference; he did not strike any jurors.

Following jury selection, Ductan was allowed back into the courtroom and the judge offered to purge the contempt citation if Ductan would behave. Ductan once again stated that he did not want to represent himself and intended to seek private counsel. When Ductan again refused Lee as his counsel, the judge concluded that Ductan had chosen self-representation because the trial was ready to begin. Ductan told Lee that the judges assessment was not a fair representation of his decision.

During the trial Ductan waived his opening, cross-examined several witnesses and gave a closing argument, occasionally consulting with Lee. Ductan was convicted on all three counts of his indictment. He was sentenced to 24 months in prison for the two drug counts, followed by a 60-month term for the gun conviction.

The Fourth Circuit’s Standard of Review for Waiving Right to Counsel

Typically, a defendant’s failure to object in district court to an alleged error would bar a review on appeal absent plain error. However, in certain circumstances the Circuit can review under a de novo standard. There is a circuit split regarding the proper standard of review when a defendant does not object to a right-to-counsel waiver. Previously, the Fourth Circuit has acknowledged there is uncertainty surrounding the question, but declined to determine a specific standard. At different times, the Fourth Circuit has applied both a de novo standard and a plain error standard.

In the lone published decision applying a plain error standard, U.S. v. Bernard, the defendant sought to remove his attorney and proceed pro se. Despite a history of mental illness, the court granted that defendant’s motion because at the time of the hearing to decide, he was still represented by counsel who advocated for the defendant’s ability to represent himself. Because the counsel bore “substantial responsibility for allowing the alleged error to pass without objection” the Fourth Circuit concluded that the defendant had failed to preserve his claim of invalid waiver under a plain error review. Conversely, in cases where a defendant waives counsel while being completely unrepresented, some circuits will review de novo because it is inappropriate to expect a defendant to know fully the perils of self-representation. Such reasoning also applies when an unrepresented defendant does not raise a proper objection to a court’s finding of forfeiture.

The Fourth Circuit Addresses Tension Between Sixth Amendment’s Right to Counsel and Right to Self-Representation

Under the Sixth Amendment of the U.S. Constitution, a criminal defendant has a right to counsel before he can be convicted and punished to imprisonment. At the same time, the Sixth Amendment also protects a defendant’s right to self-representation. Because access to counsel can often be essential in asserting other rights a defendant may have, the Fourth Circuit presumes that the right to counsel is the default position. To this end, the Fourth Circuit has never held that anything less than a waiver relinquishes one’s right to be appointed counsel. In order to assert a right to self-representation, a defendant must “knowingly and intelligently” forgo the benefits of representation after being made aware of the dangers and disadvantages of self-representation.

The U.S. Supreme Court has not “established precise guidelines for determining whether a waiver is knowing and intelligent.” In the Fourth Circuit, a court must find that (1) an individual’s background, (2) appreciation of the charges against him and their potential penalties, and (3) understanding of the pros and cons of self-representation support the conclusion that a waiver to counsel is knowing and intelligent. In order to prevent a defendant from manipulating the system, the waiver must also be “clear and unequivocal.”

Did Ductan Unequivocally Waive His Right To Counsel?

As a starting point, the Fourth Circuit applied a de novo standard of review to Ductan’s case. The court explained that Ductan’s case differed from Bernard because at the time that the magistrate judge determined Ductan had forfeited his right to counsel, Brant had already successfully withdrawn from the case. Thus, Ductan was left without representation and was in a position where he could not be fully expected to understand the necessity of raising a proper objection to the lower court’s decision.

Ductan argued to the Fourth Circuit that at no point did he ever “clearly and unequivocally” elect to proceed without counsel, as required by the court’s case law. He also argued that his waiver was not knowing and intelligent because the judge did not complete the required inquiry to ensure that Ductan was fully aware of his decision’s impact.

Throughout the trial, Ductan continued to reiterate his desire to retain counsel. The Fourth Circuit noted that the magistrate judge was correct in determining that Ductan had not knowingly and intentionally waived his right to counsel, but that the magistrate was wrong in concluding that he had forfeited that right through his “frivolous arguments and answers to questions.” While acknowledging that Ductan had been uncooperative in his interactions with the trial court, the Fourth Circuit explained that it had never previously held that a defendant could forfeit their rights to counsel. Thus, Ductan could not have forfeited his right to counsel through his actions.

The Fourth Circuit also found that Ductan had never waived his right to counsel either. Because Ductan never expressed any desire to proceed pro se, the lower court should have insisted on appointed counsel against Ductan’s wishes in the absence of an unequivocal request to proceed on his own.

Finally, the Fourth Circuit explained that even if Ductan had unequivocally requested to proceed pro se, he still would not have waived his right to counsel because the lower court never finished its inquiry to ensure his decision was knowing and intelligent. Although the judge attempted to start the inquiry, Ductan’s nonsense answers prevented the court from fully exploring his understanding of the proceedings. The Fourth Circuit found that in such a situation it was a requirement that Ductan be appointed counsel “until he either effected a proper waiver or retained a lawyer.”

Ductan’s Case is Reversed and Remanded on First Claim; Court Declines to Address Second Claim

Ultimately, the court held that the lower court erred in finding that Ductan forfeited his right to counsel or made a valid waiver of that right. The court vacated Ductan’s conviction and remanded for a new trial. Judge Diaz, writing a concurring opinion, explained that while the court was right to remand on the first claim, the second claim regarding what happened during jury selection also provided an independent grounds for relief as well.

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11Nov

Fourth Circuit Revisits Sex Trafficking Case

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By Malorie Letcavage

On August 18, 2015 the Fourth Circuit Court of Appeals issued its published opinion in the criminal case of United States v. Fuertes. In this case, the Court had to review the conviction of German de Jesus Ventura and Kevin Garcia Fuentes for conspiracy to commit and commission of sex trafficking and related offenses. The Court affirmed Fuertes’ conviction and vacated Ventura’s conviction on Count Seven and remanded for judgment of acquittal.

Background

German de Jesus Ventura was operating brothels in Annapolis, Maryland with the help of Kevin Garcia Fuentes. Ventura threatened any local competitive pimps with violence. A local competing pimp, Ramirez, received threatening phone calls and was subsequently murdered. When Fuertes was arrested for a traffic violation, the phone number he gave matched the one that made the threatening phone calls to Ramirez. Fuertes also had business cards for his prostitution services on him when he was arrested. Fuertes consented to a search of his home and the police found that it was being used as a brothel. The police continued to monitor Fuertes and Ventura because they believed the two had murdered Ramirez. The police discovered that Ventura was also running brothels. Rebeca Duenas Franco testified that she had a violent history with Ventura, and that he forced her to commit sexual acts against her will through violence and threats. She also stated that she witnessed Fuertes and Ventura celebrating Ramirez’s murder.

The police continued surveillance and learned of other brothels the Defendants were running. They had intelligence that the two would be transporting a prostitute across state lines and that another local pimp was assaulted at the behest of Fuertes and Ventura. The Defendants were arrested in 2011 and indicted on seven charges relating to prostitution and sex trafficking. Fuertes and Ventura appealed their guilty charges claiming errors regarding evidentiary rulings, jury instructions and sufficiency of evidence.

Evidence Under 404b

Defendants claimed that the evidence of violent acts and violence against competitors was improperly admitted. The Court disagreed and held it was properly admitted under the Federal Rules of Evidence 404(b). This rule allows evidence of bad acts if they are admitted for a purpose other than to prove character. The evidence must also be necessary to prove an element of the crime, be reliable, and its probative value must not be substantially outweighed by prejudice. The Court found the violent acts relevant because they showed evidence of Defendant’s participation in the sex trafficking business and that they knowingly conspired to participate in that business. Since the jury had to find an overt act in furtherance of the conspiracy, the threat to use violence against competitors went towards that element.

Further, Defendants did not offer evidence that the information was unreliable or unfair. Since there was already substantial evidence about the violence committed against Duenas, the further evidence of violence was no more likely to cause the jury to react with their emotions instead of their intellect than her testimony of Defendants’ violent behavior. The Court held that the admission of the evidence of violence against other pimps was allowed, and not an abuse of discretion.

Expert Testimony Properly Admitted

The Defendants also argued that the testimony of Dr. Baker was improperly allowed because her experience was mostly with juveniles and was only attempting to bolster Duenas’ credibility about the source of her injuries. The Court disagreed based on Rule 702 concerning expert witnesses. It held that the scientific nature of the testimony meant that the district court as the gatekeeper had properly determined that it was relevant and reliable. It found that Dr. Baker had twenty-five years of experience with abuse cases, and had been qualified to testify as an expert in two dozen other cases. The Court found that it did not matter that her experience with abuse focused on juveniles because there is no distinction between adults and children when it comes to abusive injuries and her training would go to weight, not admissibility.

The Court further held that Dr. Baker did not comment on Duenas’ credibility or guess as to who caused her injuries. Just because her testimony corroborated Duenas’ testimony, did not mean it had to be excluded. The Court thus held that the decision to admit Dr. Baker’s testimony was not an abuse of discretion.

Classification as a Violent Crime

Ventura claimed that he should be acquitted for sex trafficking by force, fraud, or coercion in violation of 18 U.S.C. § 1591(a), which was a predicate for his 18 U.S.C. § 924(c) conviction, because it is not categorically a crime of violence. The Court reviewed the district court’s decision for plain error. To prove a conviction under 18 U.S.C. § 1591(a), the government must prove that the Defendant 1) used or carried a firearm and 2) did so during or in relation to a crime of violence. A crime of violence is defined as “an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

To determine whether it is a crime of violence the Court used the categorical approach to determine whether the defendant was in fact convicted of a crime that qualifies as a crime of violence under the force clause of the § 924(c)(3)(A). Because the definition of the offense allows that it may be committed nonviolently, it does not qualify as a categorical crime of violence under the force clause. The Court also found that it did not qualify as a crime of violence under the residual clause, § 924(c)(3)(B). There was not a substantial risk that the defendant would use physical force against the victim in completing the crime, so sex trafficking could not be categorically considered a crime of violence.

The Court then held that there was clear error when the District Court instructed the jury that sex trafficking by force, fraud or coercion was categorically a violent crime. It held that the error affected Defendant’s substantial rights and the fairness of the judicial proceedings. The Court vacated Ventura’s §924(c) conviction and remanded it for judgment of acquittal.

Evidence was Sufficient

The Defendants argued that there was insufficient evidence that Fuertes knew or recklessly disregarded that Duenas was coerced or forced to engage in commercial sex acts. The Court found that when viewing the facts in the light most favorable to the government, a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Court held that a reasonable jury could have found that Fuertes knew or recklessly disregarded that Duenas was forced or coerced to commit commercial sex acts because he witnessed Ventura beat her with a belt and was heavily involved in the prostitution business.

Conclusion

The Court affirmed the district court’s conviction of Fuertes because the evidence of violence was relevant to proving his involvement in sex trafficking and the expert testimony of Dr. Baker was properly admitted because she was a qualified expert. The Court also vacated Ventura’s conviction under 18 U.S.C. §924(c) because sex trafficking is not categorically a violent crime. The Court remanded that count for acquittal.

 

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10Nov

Fourth Circuit Does Not Require a COA to Review Dismissal of a Mixed 60(b)/ § 2255 Motion

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By Elizabeth DeFrance

On July 13, 2015 the Fourth Circuit issued a published opinion in the criminal case United States v. McRae.  The issue before the Court was whether the district court improperly categorized the appellant’s pro se motion as an impermissible successive habeas petition. However, the threshold issue was whether the Court was required to obtain a Certificate of Appealability (COA) before it could review the district court’s categorization of the appellant’s motion.

McRae Claims his Motion was Improperly Categorized

Madison Duane McRae (McRae) was convicted of four drug-related charges in 2005. He unsuccessfully filed a habeas petition under 28 U.S.C. § 2255 in 2008. He later filed the motion at issue in this case, titled “Motion for Relief from Judgment 60(b)(1)(3)(6).”  In this motion, McRae alleged the district court made five errors in its  § 2255 proceedings. The district court held that the motion was a successive § 2255 motion and dismissed it for lack of subject-matter jurisdiction because McRae did not first get a COA as required under 28 U.S.C. § 2244(b)(3). The district court declined to issue a COA. McRae appealed and claims that the district court erred by not treating his motion as a mixed 60(b)/ § 2255. He also argued that the circuit court could review this issue without first obtaining a COA.

COA is Not Required for a “True 60(b)”

A 60(b) motion that challenges a defect in a federal court’s habeas proceedings rather than the court’s conclusion based on the merits is a “true 60(b) motion” and does not require a COA.

The Court Follows Gonzales and Harbison

The Court looked to the Supreme Court’s decision in Gonzalez v. Crosby, in which it held that a 60(b) motion must be treated distinctly from a successive habeas motion because of the “unquestionably valid role” they play in habeas actions. The Court also followed reasoning from the Supreme Court decision in Harbison v. Bell that only a 60(b) motion “with a sufficient nexus to the merits of a habeas petition” should require a COA. Thus, the Court determined that denial of a 60(b) requires a COA because the district court necessarily considers the merits of the underlying habeas claim before denying the motion. However, dismissal of a 60(b) motion on jurisdictional grounds does not require a COA because it is far removed from a consideration of the merits of the habeas claim.

COA was Not Required and the 60(b) Claim Must be Considered on the Merits

The Court held that it did not need a COA before addressing whether the district court erred in categorizing McRae’s motion as a successive habeas petition.

The Court further held that when a motion contains both a 60(b) and a successive habeas claim, the district court must allow the petitioner the option to delete the improper claim and have the 60(b) claim decided on the merits. Because the district court was in the best position to judge the merits of McRae’s 60(b) claim, the Court reversed and remanded for further proceedings.

Circuit Judge Diana Gribbon Motz dissented because the majority’s holding departed from precedent.

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5Nov

Fourth Circuit Finds Insufficient Evidence to Convict Defendant Under Sexual Exploitation Statute

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By George Kennedy

Today, in the criminal case of United States v. Palomino-Coronado, the Fourth Circuit vacated the conviction of Defendant under 18 U.S.C. § 2251(a). Holding that there was insufficient evidence to show that Defendant had engaged in sexual activity with a minor for the purpose of producing a visual depiction, the Fourth Circuit reversed the district court’s ruling and vacated Defendant’s conviction.

Events Leading up to Defendant’s Conviction

Defendant Anthony Palomino-Coronado was convicted under 18 U.S.C. § 2251(a) based upon the testimony of a seven-year-old child, B.H., who claimed that Defendant had sexual intercourse with her. The events leading up to the conviction began on May 3, 2012 in Prince George’s County, Maryland. On that day, police officers were called to a home that had reported B.H. missing. The officers found B.H. at Defendant’s home, and then interviewed B.H. on suspicion that she had been sexually assaulted.

After interviewing B.H., police officers took her to the hospital for a sexual assault forensic exam. The examining nurse found physical evidence that suggested that she had engaged in sexual intercourse. Furthermore, the nurse interviewed B.H., and B.H. told the nurse that she and Defendant had engaged in sexual intercourse. Following the exam, detectives also interviewed B.H., and she again told them that she and Defendant had sex, and also that Defendant had taken pictures of her during the act.

Detectives filed a search warrant and recovered Defendant’s phone. They found several images of B.H. stored on the phone, and one picture of a man penetrating a child that had recently been deleted. During a later interview, B.H. told questioning detectives that the man and child in the picture were indeed her and Defendant.

Defendant’s Conviction Under 18 U.S.C. § 2251(a)

At trial, the jury found Defendant guilty of “knowingly employing, using, persuading, inducing, enticing, or coercing a minor in sexually explicit conduct, for the purpose of producing a visual depiction of that conduct in violation of 18 U.S.C. § 2251(a). The court sentenced Defendant to thirty years imprisonment.

Defendant’s Sufficiency of the Evidence Challenge on Appeal

Defendant appealed his conviction based on a sufficiency of the evidence challenge. Defendant argued that there was insufficient evidence to convict him and that the district court improperly denied his judgment for acquittal under Federal Rule of Criminal Procedure 29. The Fourth Circuit agreed with Defendant and vacated his conviction.

In so holding, the Fourth Circuit focused on the elements required for conviction under 18 U.S.C. § 2251(a), specifically the “purpose” element. To be convicted under the statute, a defendant must coerce a minor to engage in sexually explicit conduct “for the purpose of producing any visual depiction of such conduct.” As the Fourth Circuit explained, the statute contains a specific intent element: “the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct.” This specific intent may be proved either by direct evidence such as express statements to the fact or by circumstantial evidence. For example, a defendant providing a minor with “specific instructions” regarding her position relative to the camera may be sufficient proof of an intent to produce a visual depiction of the sexual activity. Alternatively, the presence of a large number of sexually explicit recordings can serve as proof that the defendant engaged in sexual activity for the purpose of producing a visual depiction of the sexual conduct.

In this case, however, the Fourth Circuit held that there was neither direct nor circumstantial evidence to support that Defendant engaged in sexual activity with B.H. for the purpose of producing a visual depiction of that activity. The fact that Defendant made no statements evincing an intent to make a visual depiction and the fact that Defendant only had one sexually explicit picture of B.H. on his phone were cited as support for the Fourth Circuit’s holding.

Reversed and Vacated

Accordingly, the Fourth Circuit reversed the judgment of the district court and vacated the conviction of Defendant, holding that there existed insufficient evidence at trial to support a conviction under 18 U.S.C. § 2251(a).

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4Nov

Unlawful Immigrant’s Discharge of Firearm into Winston-Salem Building not a “Crime of Violence”

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By Mikhail Petrov

On July 23, 2015, in the criminal case of United States v. Parral-Dominguez, the Fourth Circuit issued a published opinion vacating the sentence of foreign national Edgar Parral-Dominguez (“Dominguez”) and remanding the case back to the district court. This case examined whether Edgar Parral-Dominguez, a Mexican citizen, was properly subject to a sentencing guidelines enhancement. After Dominguez plead guilty to illegally reentering the country, the district court applied the enhancement because, in its view, Dominguez’s previous conviction in North Carolina for discharging a firearm into an occupied building is a requisite “crime of violence.” The Fourth Circuit found this decision was in error.

The Facts

In 2000, at the age of 14, Edgar Parral-Dominguez left Mexico with his father and entered the United States. Although his father went back, Dominguez remained. On New Year’s Day, a firearm was discharged toward a woman’s residence in Winston-Salem, North Carolina. A year later, Dominguez was arrested and charged for the incident. He was convicted for an aggravated felony–discharging a firearm into a building under N.C.G.S.A. § 14-34.1(a) (“the State Offense”).

During his post-arrest processing, state authorities found that Dominguez was unlawfully present in the country. Thus, after he plead guilty to the State Offense he was deported to Mexico. Within months, however, Dominguez returned to North Carolina, and settled in Wilmington.

Three years after his deportation, Dominguez was arrested with more than an ounce of cocaine. He was convicted for trafficking and state authorities again discovered that Dominguez was previously deported and was unlawfully present in the country. In December 2013, a federal grand jury sitting in the Eastern District of North Carolina indicted Dominguez under 8 U.S.C. §§ 1326(a) for illegally reentering the United States after being convicted of an aggravated felony.

Before Dominguez’s sentencing, U.S. Probation prepared a presentence investigation report (PSR), which found that Dominguez was a Category IV criminal, that his base offense level was eight, and that he earned a three-point reduction for accepting responsibility. The PSR then proposed a sixteen-level enhancement to Dominguez’s offense level for having been previously convicted of a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Applying this enhancement, the PSR calculated an offense level of twenty one, resulting in fifty-seven to seventy-one months of imprisonment. Dominguez argued that, as a matter of law, the State Offense did not constitute the requisite crime of violence under § 2L1.2(b)(1)(A)(ii).

The district court overruled Dominguez’s objection after concluding that the occupant of a building would feel threatened by the physical force when a defendant shoots at the building. The court then imposed a sixty-five month sentence. The day after sentencing, the district court issued a nine-page memorandum opinion which argued, without binding precedent, that Dominguez’s offense was a crime of violence as anyone would be inherently threatened if their building was shot at. Dominguez appealed.

The Rule of the Case

This appeal centers on whether the state offense of discharging a firearm into an occupied building under N.C.G.S.A. § 14-34.1(a) constitutes a crime of violence for federal sentencing purposes under U.S.S.G. § 2L1.2. The Fourth Circuit first compared the contours of a “crime of violence” under § 2L1.2 with the breadth of conduct proscribed by N.C.G.S.A. § 14-34.1(a). The court applied the so called “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990) (finding that the elements of a statute, not the actual conduct, dictate its interpretation for sentencing purposes). Under the Taylor approach, the court considers only the elements of the statute of conviction rather than the defendant’s conduct underlying the offense.

Reasoning of the Fourth Circuit

Section 2L1.2 states that a 16-level enhancement applies if “the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence.” Although the text of § 2L1.2 does not expressly define the phrase “crime of violence,” the application note clarifies that the phrase contemplates any offense under federal, state, or local law that has, as an element, the use, attempted use, or threatened use of physical force against a person. The so-called “use-of-force clause” was the sole basis with which the Government argued that the State Offense is a crime of violence under § 2L1.2. Still, the use of force clause is limited because first, the plain language of the clause does not encompass acts involving the use of force against property. Second, unlike other sections of the Guidelines, the use-of-force clause does not include “acts that merely pose a risk of harm to another person.”

Although not listed as an element in the statute, the Supreme Court of North Carolina has read a knowledge element into the State Offense which requires the defendant to have had “reasonable grounds to believe that the building might be occupied by one or more persons.” Thus, the State Offense does not require that an offender use, attempt to use, or threaten to use force against another person. Instead, the crime is complete when a person (1) intentionally (2) discharges a firearm (3) toward an occupied building (4) when the shooter knows or has reasonable grounds to believe that the building might be occupied. Therefore, the State Offense cannot be construed as a crime of violence under § 2L1.2’s use-of-force clause and the district court committed procedural error by concluding that Dominguez’s offense under the State Offense is a crime of violence.

Finally, the Fourth Circuit reasoned that the error was not harmless. While in many cases, a judge is unequivocal about what effect any Guidelines miscalculation would have on the ultimate sentence, no such words exist here. It is not clear that Dominguez’s sentencing was unaffected by the court’s error. The Fourth Circuit, looking at the amount of time devoted to calculating the sentence, reasoned that the Guidelines played a large role in the sixty-five month sentence.

Holding

The Fourth Circuit vacated and remanded Dominguez’s sixty-five month sentence. The court held that the State Offense is not a crime of violence, and thus that the district court committed procedural error. Additionally, the procedural error was not harmless. The dissent by Circuit Judge Wilkinson argues that the decision should be upheld because the State Offense is not a crime against property, but a crime against people who occupy the property and is therefore a crime of violence.

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