Wake Forest Law Review
5Oct

Fourth Circuit Affirms Revocation of Supervised Release

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Affirms Revocation of Supervised Release

By Blake Stafford

On June 9, 2015, the Fourth Circuit issued its published opinion in the criminal case of United States v. Padgett.  In this case, the district court revoked the two concurrent supervised release sentences of Defendant Robert L. Padgett (Padgett) after he was found to have violated the terms and conditions of his release.  The district court sentenced him to consecutive terms of ten months and fourteen months in prison, followed by two new concurrent terms of twenty-four and twenty months of supervised release.  The Fourth Circuit affirmed, holding that (1) the district court did not clearly err in finding, by a preponderance of the evidence, that Padgett violated the terms of his supervised release, and (2) the revocation sentence imposed by the district court was reasonable.

Padgett’s Two Convictions, Sentences, and Revocations

In 1998, Padgett was convicted of conspiracy to distribute and possess with intent to distribute cocaine base, violating 21 U.S.C. § 846.  In 2009, he was convicted of attempted escape from custody, violating 18 U.S.C. § 751(a).  Padgett’s sentence for each conviction included a term of supervised release.  In January 2013, the district court revoked Padgett’s supervised release, sentencing him to two days in prison followed by two new concurrent terms of supervised release.

In July 2014, the court again revoked Padgett’s supervised release.  In its petition for this second revocation, the Government alleged four violations of the terms of Padgett’s supervised release: possession of a firearm, two counts of battery, and possession of a switchblade knife.  Following an evidentiary hearing, the district court found that the Government had proven, by a preponderance of the evidence, that Padgett possessed a firearm, committed one count of battery, and possessed a switchblade knife.  Based on these violations, the court revoked Padgett’s supervised release, and sentenced him to consecutive terms of ten months and fourteen months in prison, followed by concurrent terms of twenty-four and twenty months of supervised release.

Padgett appealed this revocation sentence on two grounds, contending that: (1) the district court’s finding of fact that he possessed a firearm constituted an abuse of discretion, and (2) the imposed revocation sentence was plainly unreasonable.

Finding of Fact: Possession of a Firearm

First, Padgett challenged the district court’s finding of fact that he possessed a firearm.  A district court’s findings of fact underlying a revocation are reviewed on appeal for clear error, and the ultimate decision to revoke a defendant’s supervised release is reviewed for abuse of discretion.  Reliance on a clearly erroneous material fact itself constitutes an abuse of discretion.

In this case, the Government offered three witnesses in the evidentiary hearing to support the firearm allegation.  First, an officer testified that, while on patrol, he heard five gunshots fired in rapid succession.  He then received a call directing him to Padgett’s workplace, Sheer Fantasy, to investigate a possible shooting, where witnesses provided a description of the shooter.  Shortly thereafter, nearby officers apprehended Padgett, who matched the witnesses’ description.  The officers also found shell casings less than a block from Sheer Fantasy.  Second, a bystander testified that she observed an altercation in the Sheer Fantasy parking lot between two men.  One of the men, whom she recognized as Padgett, fired five shots in the area where the shell casings had been found.  Third, a forensic analyst testified that Padgett’s hands and face contained particles consistent with gunshot residue.  The analyst offered her expert opinion that Padgett had either discharged a firearm or came into contact with an environment where gunshot residue was present.

On cross-examination, the defense elicited testimony from the forensic analyst that gunshot residue could be transferred by means other than discharging a firearm.  The defense also offered a single witness—Padgett’s girlfriend—who testified that she too heard five gunshots that night, but that she was inside her home at the time, with Padgett.

The district court found that the Government had proven that Padgett had possessed a firearm by a preponderance of the evidence, a burden that only requires “the existence of a fact” to be “more probable than its nonexistence.”  The Fourth Circuit held that the district court did not clearly err in this finding of fact; thus, the revocation of Padgett’s supervised release was not an abuse of discretion.

Revocation Sentence: Imprisonment for 10 and 14 Consecutive Months

Next, Padgett challenged the revocation sentence of ten and fourteen consecutive months of imprisonment.  A district court’s revocation sentence will not be disturbed on appeal unless it falls outside the statutory maximum or is otherwise plainly unreasonable.  In determining unreasonableness of revocation sentences, the Court strikes a more deferential appellate posture than when reviewing original sentences, and evaluates the district court’s consideration of (1) the policy statements and the applicable policy statement range in Chapter 7 of the Sentencing Guidelines Manual, and (2) applicable factors from 18 U.S.C. § 3553(a).  A sentence that is within the policy statement range is presumed reasonable, though the sentencing court retains broad discretion to impose a term of imprisonment up to the statutory maximum.

In this case, the district court did not cite to Chapter 7 or to § 3553(a).  However, the Court noted that the factors relied upon by the district court closely tracked the language of both, providing the Court with a sufficient explanation to review the sentence for reasonableness.

Upon review, the Court found that the terms of ten and fourteen months’ imprisonment fell within the policy statement ranges and were, therefore, presumed reasonable.  Moreover, while the combined term of twenty-four months represented the maximum in-range sentence, the Court noted that the district court was reasonable in eschewing leniency given that Padgett had violated the terms of his supervised release once before.  Therefore, the Court held that the district court correctly calculated the policy statement range, considered the appropriate factors under Chapter 7 and § 3553(a), and sentenced Padgett to a term of imprisonment within that range; thus, the revocation sentence of ten and fourteen months’ imprisonment was reasonable.

Affirmed

The Fourth Circuit affirmed the district court’s ruling.

Tags:
1Oct

Fourth Circuit Rejects Death Row Inmate’s Claim of Intellectual Disability; Affirms Sentence

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Rejects Death Row Inmate’s Claim of Intellectual Disability; Affirms Sentence

DSC_0026

By Daniel Stratton

On June 30, 2015, the Fourth Circuit issued a published opinion in the criminal case Prieto v. Zook. The appellant, Alfredo Rolando Prieto appealed the district court’s denial of his writ of habeas corpus under 28 U.S.C. § 2254. Prieto argued that his two death sentences were unconstitutional under the Eight Amendment’s prohibition on the execution of intellectually disabled individuals, in light of the U.S. Supreme Court’s opinions in Atkins v. Virginia , and Hall v. Florida. The Fourth Circuit, after reviewing the impact of Atkins and Hall, affirmed the district court’s denial, holding that Prieto failed to prove the “fundamental miscarriage of justice” exception necessary to overcome his procedural default.

Prieto’s Conviction and Sentencing

In 2007, Prieto was convicted of two counts of capital murder, two counts of use of a firearm in committing murder, grand larceny, and rape, stemming from a 1988 crime, which he was linked to in 2005 through DNA testing. Juror misconduct ultimately caused a mistrial, and Prieto was again convicted on the same counts in 2008. During his sentencing, Prieto argued that he was ineligible for the death penalty due to an intellectual disability. Despite substantial evidence to support his claim, the jury imposed the death penalty on Prieto.

The Virginia Supreme Court, upon hearing his appeal, affirmed Prieto’s conviction but vacated his death sentence due to problems with the jury verdict forms during the sentencing phase of the trial. The sentencing was remanded to a new jury, and in 2010, he was again sentenced to the death penalty. The trial court again imposed the death penalty and Prieto again appealed. The Virginia Supreme Court affirmed.

Prieto filed a habeas petition with the Virginia Supreme Court, arguing that his counsel was constitutionally ineffective and that his execution was barred by the precedent of Atkins. The Virginia Supreme Court denied the petition, holding that because Prieto had failed to raise his Atkins claim on his 2010 direct appeal, he was now procedurally barred from raising it in his state habeas petition.

Prieto then filed his habeas application in federal court, again asserting a claim under Atkins. The district court dismissed that claim, among others. The Fourth Circuit granted a certificate of appealability as to the Atkins claim.

Atkins, Hall, and the Evolving Standards of Decency

In Atkins, a 2002 case, the Supreme Court held that punishing individuals with an intellectual disability is prohibited under the Eighth Amendment in light of “evolving standards of decency.” In order to determine which offenders fell into the category of intellectually disabled, Virginia enacted a statute which its state Supreme Court interpreted as requiring an IQ score of 70 or below. Thus a defendant with an IQ of 71 could theoretically be sentenced to death, while the Eighth Amendment would protect a defendant with an IQ of 70.

In 2014, the Supreme Court clarified this prohibition, holding in Hall that a mechanical rule with rigid cutoffs for IQ scores to determine intellectual disability is unconstitutional, and that no single factor is dispositive in making a determination. The Supreme Court instead established that states should focus on (1) significantly below average intellectual functioning and (2) inability to engage in adaptive functioning (i.e. learning basic skills).

In light of this decision, Virginia’s interpretation of its statute, which imposed a rigid cutoff at an IQ score of 70 or below was clearly unconstitutional. However, because Prieto had procedurally defaulted on his claim, the constitutionality of the cutoff system was not enough to resolve his Atkins claim.

Virginia and Prieto’s Procedural Default

Under Virginia state law, a claim procedurally defaults when “a non-jurisdictional issue could have been raised during the direct appeal process” but was not. Afterwards, it cannot be used in a petition for a writ of habeas corpus. A habeas petitioner can, however, overcome the procedural default if she can establish either “cause and prejudice” for the default or that it would result in “a fundamental miscarriage of justice.” One way to establish cause is by demonstrating constitutionally ineffective assistance of counsel. To establish a fundamental miscarriage of justice, according to the Supreme Court, a defendant must show that a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” This can also be applied in a death penalty case, where a defendant can show “actual innocence,” meaning that she can prove through “clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found” the defendant eligible for the death penalty.

Prieto argued at the district court level that he had constitutionally ineffective assistance in his 2010 sentencing and appeal, which resulted in his intellectual disability not being raised. The district court found this claim to be meritless, and on this appeal, Prieto did not challenge that finding. For that reason, Pietro was only able to argue that his Atkins claim could survive procedural default because of a fundamental miscarriage of justice. To prove this, Prieto did not argue that he was actually innocent, instead opting to argue that he is “innocent of death.”

The Fourth Circuit, following the Supreme Court, declined to decide if Hall applied retroactively, instead choosing to assume without deciding that it did. The Fourth Circuit then reviewed the district court’s decision de novo. Prieto argued that the evidence he offered during the 2008 sentencing hearing proved his actual innocence claim. Despite the substantial volume of evidence produce by Prieto, which included multiple expert witnesses, numerous interviews with relatives, and “a comprehensive evaluation of his neuropsychological functioning,” the state offered strong evidence to counter his claim. The State’s evidence included testimony from three prison psychologists, evidence that Prieto had written his own list of prison grievances, and had filed a pro se legal challenge relating to his confinement. Because Prieto did not argue that if he were re-sentenced he would introduce additional evidence, the Fourth Circuit ultimately concluded that a jury at a new sentencing would view largely the same evidence as before.

Prieto finally attempted to draw comparisons in his case to the Supreme Court’s Hall case. The Fourth Circuit found this unpersuasive, in part because the Supreme Court did not rule on Hall’s intellectual disability; it simply remanded the case back so Hall could attempt to prove such disability.

The Fourth Circuit Affirms Prieto’s Sentence

Ultimately, the Fourth Circuit, when looking at the entirety of the record, held that it could not conclude that “no reasonable jury would find Prieto eligible for the death penalty.” Because of the high burden required of establishing a “fundamental miscarriage of justice” exception, the Fourth Circuit concluded that Prieto failed to prove his Atkins claim and the judgment was affirmed.

 

Tags:
26Sep

Fourth Circuit Affirms Use of Prior Convictions in Supervised Release Violation Sentencing

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Affirms Use of Prior Convictions in Supervised Release Violation Sentencing

By Sarah Saint

On May 20, 2015, the Fourth Circuit issued a published opinion in the criminal case U.S. v. Wynn, affirming the district court’s judgment. Anthony Wynn was convicted of drug offenses and sentenced to imprisonment followed by supervised release. Wynn violated the conditions of his release by possessing marijuana. The district court considered Wynn’s prior drug offenses when determining the grade of these possession violations, which Wynn argued was against the United States Sentencing Commission’s advisory policy statements for violations of probation and supervised release (the “policy statements”). The Fourth Circuit held that the district court did not err by using Wynn’s prior convictions to select the violation grade and accordingly affirmed the district court’s judgment.

The Marijuana Possessions and Revocation of Supervised Release

In 2003 Wynn was sentenced to a 150-month imprisonment, followed by a five-year supervised release, after being convicted of conspiracy to distribute and possession with intent to distribute under 21 U.S.C. §§ 846 and 841(a)(1). The conditions of the supervised release included refraining from unlawful use of controlled substances and submitting to drug testing.  After Wynn began his supervised release, his probation officer alleged Wynn had violated these conditions, including possession of marijuana on six occasions. Wynn admitted to these possessions and the district court found Wynn had violated the terms of his supervision, revoking his supervised release.

The probation officer used Wynn’s prior drug convictions to determine that his marijuana possessions were Grade B violations and punishable by between twenty-one and twenty-seven months imprisonment. Wynn argued that the marijuana possessions were Grade C violations and that the probation officer could not use his prior drug convictions in determining the violation grade under the policy statement. Because these are Grade C violations, Wynn argued for between eight and fourteen months’ imprisonment. The district court rejected Wynn’s argument and found the acts of possession constituted Grade B violations. The district court then sentenced Wynn to a term of twenty-four months imprisonment.

Standard of Review

Wynn only challenged the procedural calculation of the grade and thus the sentencing range. The Fourth Circuit reviewed the district court’s judgment de novo because properly applying policies is a question of law. The Court considered whether the district court correctly determined that the marijuana possessions were Grade B violations, or if they were actually Grade C violations as Wynn argued.

Grade B vs. Grade C Violations

Under U.S.S.G. § 7B1.1(a), Grade B violations are appropriate when the conduct constitutes an offense punishable by a term of imprisonment exceeding one year. Grade C violations are appropriate when the conduct constitutes an offense punishable by a term of imprisonment of one year or less. Under 21 U.S.C. § 844(a), drug possession offenses by a non-recidivist are punishable by a term of imprisonment of one year or less. However, drug possession offenses by a recidivist are punishable by a term of imprisonment greater than one year.

Wynn’s Arguments Against Using Prior Offenses Are Unpersuasive

Wynn argued that the Court should use 21 U.S.C. § 851(a)(1) to hold that when determining imprisonment for supervised release violations, a court cannot consider a defendant’s prior criminal history unless the government files notice. However, the Court did not find this persuasive and determined that this statute only applies to sentencing after a guilty plea in a trial and in immigration proceedings.  Further, the purpose of a supervised release revocation hearing is to determine the breach of trust committed by the defendant by considering the context. Accordingly, the Court determined the government could use Wynn’s prior convictions in selecting the violation grade.

Wynn also argued that, under U.S.S.G. § 7B1.1 application notes, the violation grade should be based only on conduct committed during supervised release. However, the application notes state that the court should consider all of the defendant’s conduct. The Court determined the application notes, then, suggest all conduct affects the violation grade.

The Fourth Circuit Affirmed the Decision of the District Court

Because the district court did not err in selecting Grade B for the supervised release violation based on Wynn’s prior convictions, the Fourth Circuit affirmed the district court’s judgment.

Tags:
24Sep

Maximum Statutory Punishment Determines Whether a Crime Constitutes an Aggravating Felony Under the Federal Sentencing Guidelines

Categories: 4th Cir. Blog
Comments Off on Maximum Statutory Punishment Determines Whether a Crime Constitutes an Aggravating Felony Under the Federal Sentencing Guidelines

Gavel

by Sarah Walton

On May 14, 2015, the Fourth Circuit issued a published opinion in the criminal case of United States v. Bercian-Flores. The court held that the defendant’s prior conviction of transporting illegal aliens was punishable “by imprisonment for a term exceeding one year” and therefore qualified as an aggravating felony under Federal Sentencing Guideline § 2L1.2(b)(1)(A)(vii) (“USSG”). As a result, the Fourth Circuit upheld the district court’s twelve-point enhancement of the defendant’s sentence.

The District Court Denied Bercian-Flores’ Objection to the Twelve-Point Enhancement

In 1997, Defendant Jose Bercian-Flores (“Bercian-Flores”) pled guilty in the United States District Court for the Southern District of Texas (“Texas Court”) to transportation of an illegal alien pursuant to 8 U.S.C. § 1324(a)(1)(A)(ii). The statutory maximum for this offense was five years imprisonment, but the USSG calculated confinement between zero and six months. The Texas Court sentenced Bercian-Flores to 107 days’ imprisonment and he was subsequently removed to El Salvador in August 1997.

In May 2012, Bercian-Flores was charged in Mecklenburg County, North Carolina with Reentry of a Removed Alien under 8 U.S.C. § 1326. He subsequently pled guilty. The initial presentence report, in accordance with the USSG, suggested an eight-level sentencing enhancement due to Bercian-Flores’ aggravating felony offense of transporting illegal aliens. An aggravating felony offense is punishable by more than one year in prison.

Bercian-Flores objected to the presentence report. He argued that his prior offense did not qualify as an felony because his sentence did not exceed one year. The district court overruled the objection, stating that the statutory maximum of five years, rather than the USSG, controlled the inquiry. As a result, the district court held that Bercian-Flores’ prior offense was an aggravating felony, thereby warranting a twelve-point sentencing enhancement.

            Bercian-Flores’ Argued that the District Court Erred Because the USSG, Rather than the Statutory Maximum, Controlled the Texas Court’s Decision in 1997

On appeal, Bercian-Flores argued that under United States v. Simmons, the statutory maximum was not controlling because the USSG guidelines in 1997 (“1997 Guidelines”) were mandatory, rather than advisory. Bercian-Flores further contended that because the Texas Court was obligated under the 1997 Guidelines to sentence him to less than one year in prison, his offense did not qualify as a felony. Thus, the question before the Fourth Circuit was whether the Texas Court was completely bound by the 1997 Guidelines, thereby leaving the court with no discretion to impose a sentence that would qualify as a felony.

The Fourth Circuit Rejected Bercian-Flores’ Argument

The Fourth Circuit recognized that judges could depart from the 1997 Guidelines in very limited circumstances. Bercian-Flores likened the 1997 Guidelines to the North Carolina Structured Sentencing Act, which did not allow judges to depart from the recommendation set forth in the Act under any circumstances. The Fourth Circuit rejected Bercian-Flores’ argument for two reasons. First, the court was bound by the Supreme Court’s decision in United States v. Rodriquez. In Rodriquez, the Court held that statutory law, rather than the USSG, determined the maximum sentence for imprisonment. Second, the Fourth Circuit reasoned that unlike the North Carolina Structured Sentencing Act, judges could, in certain circumstances, depart from the 1997 Guidelines. As a result, the court held that the statutory maximum of five years, rather than the USSG, determined whether Bercian-Flores’ prior offense qualified as a felony.

The Fourth Circuit Affirmed the District Court’s Holding

The Fourth Circuit affirmed the district court’s holding that Bercian-Flores’ prior offense should be measured by statutory guidelines and was therefore punishable by “imprisonment exceeding one year.” As a result, Bercian-Flores’ prior offense constituted an aggravating felony, thereby warranting a twelve-point sentencing enhancement.

Tags:
23Sep

Fourth Circuit Defers to West Virginia’s Habeas Court’s Decision to Deny Habeas Corpus

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Defers to West Virginia’s Habeas Court’s Decision to Deny Habeas Corpus

jail-831270_1280

By: Mikhail Petrov

Today, in the criminal case of Watkins v. Hoke, the Fourth Circuit issued a published opinion reversing the decision of the United States District Court for the Southern District of West Virginia. In its decision, the Fourth Circuit denied habeas corpus to Defendant Steven Watkins (“Watkins”), who was convicted of attempted robbery. Prosecuting Attorney Brian Parsons (“Parsons”) stated to Defense Counsel James Adkins (“Adkins”), after trial, that he had discussed the element of fear with victim Mike Zimm (“Zimm”) and that Zimm suggested that he might not have been afraid of Watkins. Watkins filed a writ of habeas corpus because fear is one of the elements that is required to uphold a conviction for attempted robbery. The Fourth Circuit deferred to West Virginia’s habeas court’s ruling that Parsons’ discussion of the element of fear with Zimm was not an admission that Zimm was not afraid and the conversation was a routine step in trial preparation.

The Attempted Robbery and the Subsequent Decision of West Virginia’s Habeas Court

On June 7, 2007, Steven Watkins entered Zimm’s Pharmacy in Fayetteville, West Virginia wearing a hard hat, sunglasses, and a red bandanna. When Watkins entered, only the owner, Mike Zimm, and two female employees were inside. Watkins asked a question, but Zimm did not understand and asked Watkins to repeat. Watkins adjusted his disguise and asked Zimm if he had activated the store’s security system. Zimm said he did, even though he had not. Watkins then fled the store and was arrested by the police some time later. Watkins was charged with attempted robbery in the second degree which punishes “any person who … attempts to commit robbery by placing the victim in fear of bodily injury.” At trial, Zimm testified that he was fearful of Watkins. The jury found Watkins guilty.

After trial, Defense Counsel Adkins stated that he was present in a conversation with Prosecuting Attorney Parsons where Parsons allegedly uttered that Zimm had told him that he was never afraid of Watkins. Parsons then stated to Zimm that if that was the case, they should stop prosecuting. Adkins realized that this was possibly exculpatory evidence that should have been submitted to the defendant.

Watkins filed for a habeas corpus proceeding in state court. In a written response, Parsons admitted that he had a discussion with Zimm, but that he only explained the element of fear and that Zimm did not state that he was never afraid. Zimm wanted a better understanding of what fear meant in the context of the case. Watkins argued that the Parsons knowingly withheld evidence that was exculpatory. The state court denied the habeas corpus petition.

Watkins then filed for habeas corpus with the district court. The district court found that the state court never made a finding of whether or not Zimm stated that he was not in fear of Watkins. The district court ordered a plenary evidentiary hearing to make an independent factual determination. Finding later that such a hearing is inconsistent with the Cullen v. Pinholster decision of the Supreme Court (which held that federal habeas law limits review to the record that was before the state court), the district court scrapped the hearing and granted Watkins’ petition for habeas corpus.

The Rule of the Case

Watkins filed a petition for habeas corpus in West Virginia’s state court because Parsons had failed to inform him that Zimm was never in fear of Watkins. A victim’s fear of bodily harm is an essential element, material to a conviction for attempted robbery. In Brady v. Maryland the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Reasoning of the Fourth Circuit

Watkins contends that the Prosecution violated Brady in failing to produce before trial the fact that Zimm had admitted that he was not afraid at the time of the attempted robbery. If this information is true, it is favorable to Watkins and thus a violation of Brady. But, Watkins’ claim is not supported by the state habeas record or the state habeas court’s finding and conclusion.

Watkins relies on amorphous statements made by Parsons to Adkins after the trial. The post-trial statements of Parsons to Adkins does not make it evidence of something that Parsons knew before trial. The statements could have been based on something after trial and amount only to retrospective speculation.

Additionally, the only evidence of a pretrial conversation was between Parsons and Zimm about the element of fear. The state habeas court found that (1) after the trial Zimm said he may not have been afraid and (2) Parsons had a pre-trail conversation with Zimm to discuss the meaning behind the fear element.

The district court did not find the state habeas court’s finding unreasonable in light of the evidence presented. Nor did the district court find that Watkins had rebutted the state habeas court’s factual finding with clear and convincing evidence. On the contrary, the district court accepted all factual findings. Still, it impermissibly altered the state’s findings to conclude that Parsons admitted to having been told by Zimm that he was not afraid. The record did not support that leap. In granting habeas corpus, the district court failed to accord the appropriate deference to the state habeas court’s findings.

The Fourth Circuit Reversed the Decision of the District Court

The Fourth Circuit concluded that the state habeas court did not base its decision on “an unreasonable determination of the facts” and Watkins’ did not attempt to rebut the presumption of correctness by clear and convincing evidence. Additionally, the Brady rule was not applied in an objectively unreasonable manner. Thus the Court revered the district court’s grant of a writ of habeas corpus.

In her dissent, Judge Diana Gibbon Motz argues that the district court properly concluded that the state court unreasonably applied Brady. Motz goes on to say that the state habeas court did indeed find that Parsons had evidence that Zimm was not afraid of Watkins and that Parsons failure to inform the defense of this evidence clearly violated Brady.

Tags:
22Sep

Fourth Circuit Reverses Trial Court’s Exclusion of Evidence in Healthcare Fraud Case

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Reverses Trial Court’s Exclusion of Evidence in Healthcare Fraud Case

By Anthony Biraglia

In the criminal case of United States v. Bajoghli, the Fourth Circuit found that the trial court abused its discretion in granting a defendant’s pre-trial motions in connection with an indictment for healthcare fraud under 18 U.S.C. § 1347. The Court concluded that the pre-trial evidentiary rulings unreasonably restricted the government’s ability to carry its burden of proof by preventing the introduction of evidence concerning the defendant’s post-scheme conduct, limiting testimony not specifically related to the fifty-three transactions that comprise the charges, and excluding evidence of the defendant’s financial gain. In a published opinion released on May 11, 2015, the Fourth Circuit reversed the trial court and remanded the case for further proceedings.

Dr. Bajoghli Indicted for Healthcare Fraud Scheme and the Trial Court Ruled in His Favor on His Three Pre-Trail Motions

On August 12, 2014, a grand jury returned a sixty-count indictment against Dr. Amir Bajoghli (“Bajoghli”), a dermatologist operating offices in Virginia and Washington, D.C., that included fifty-three counts related to an alleged healthcare fraud scheme. According to the government, Bajoghli violated 18 U.S.C. § 1347 by “knowingly and willfully . . . execut[ing] a scheme or artifice to defraud” consisting of four types of conduct: (1) misdiagnosing patients with skin cancer and performing medically unnecessary surgery, (2) directed non-physician medical personnel to perform wound closures while billing as though he had done the closures himself, (3) billing as though he had performed services himself that were in fact performed by non-physicians, and (4) billing for skin pathology slide analysis performed by outside contractors for significantly lower than the claimed amount.

Bajoghli filed three pre-trial motions related to the exclusion or limitation of certain evidence, all of which were granted by the trial court. The first motion (“September 23 motion”) struck language in the indictment concerning fees Bajoghli received for fraudulently reporting that he had done work himself that he had in fact outsourced, thus limiting the evidence that could be introduced on that allegation. The second motion (“October 13 motion”) prevented the government from introducing evidence about Bajoghli’s alleged post-scheme activities. The third motion (“October 20 motion”) suppressed any evidence that was not specifically related to the fifty-three allegedly fraudulent transactions referred to in the indictment. The trial court ruled on the second and third motions one day prior to the scheduled trial date. The government sought review of these evidentiary rulings via an interlocutory appeal.

Abuse of Discretion

The Fourth Circuit determined that the trial court abused its discretion in granting Bajoghli’s pre-trial motions because the exclusions and limitations contemplated in the motions would not allow the government to present evidence required to prove both the “scheme” element and the intent element of 18 U.S.C. § 1347(a). Although the trial court has the discretion to manage evidence in a trial, that discretion must be tempered by the need to allow the government “sufficient latitude to carry its burden of proof” in complex healthcare fraud cases where criminal intent is an issue.

Granting the Pre-Trail Motions Was Too Restrictive

With regard to the September 30 motion, the Court focused on the fact that intent was a hotly contested issue in the case. Evidence of alleged financial gain can be “particularly probative” in establishing a defendant’s intent to defraud, and to exclude such evidence would not allow the government to present sufficiently detailed evidence about an element of the offense. Thus, the trial court’s decision to exclude evidence of Bajoghli’s alleged financial gain constituted an abuse of discretion.

The court also found that the trial court abused its discretion in granting the October 13 motion. While Bajoghli argued that evidence of his conduct after the alleged scheme ended was subject to suppression under Federal Rules of Evidence (“FRE”) 404(b) as extrinsic to charged acts, the court reasoned that evidence of his post-scheme conduct was relevant to proving intent, an element of the crime, and thus avoided the requirements of FRE 404(b). The court also rejected the argument that evidence of post-scheme conduct was unfairly prejudicial to the defendant under FRE 403.

Finally, the Fourth Circuit overturned the trial court’s ruling on the October 20 motion. Suppressing any evidence not directly related to the fifty-three charges would effectively prevent the government from proving that the various fraudulent transactions it alleged were part of a “scheme” to defraud, as is required by 18 U.S.C. 1347(a). The court, citing precedent, reasoned that evidence relevant to the overall scheme should not be excluded, even if it is not directly relevant to the specific fraudulent transaction with which the defendant is charged. If the government were so limited, it would have to bring hundreds of charges in large healthcare fraud cases in order to prove the “scheme” element.

Reversed and Remanded

Because the Fourth Circuit concluded that granting the pre-trial motions was too restrictive, it reversed the trial court and remanded the case for further proceedings.

Tags:
16Sep

Fourth Circuit Vacates Guilty Plea Due to District Court Coercion

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Vacates Guilty Plea Due to District Court Coercion

file000371802493

By Eric Jones

On April 28, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Braxton.  The Circuit Court held that Fed. R. Crim. P. 11(c)(1) explicitly prohibits district courts from participating in discussions about plea agreements in any way.  Because the United States District Court for the District of Maryland impermissibly made repeated comments about the benefits of accepting a guilty plea to Braxton just before he elected to plead guilty, the Fourth Circuit vacated the proceedings and remanded for further proceedings.

Background and Proceedings Below

In 2012, Savino Braxton was charged with possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841(a) (2012).  This charge carries a minimum ten-year sentence if convicted.  Braxton, however, has a prior felony drug conviction, which allows the government to file a prior felony information that would effectively double the mandatory minimum to twenty years’ imprisonment.  Braxton’s court-appointed counsel repeatedly expressed concern that if he did not plead guilty, the prosecutor would file a prior felony information.  Braxton nevertheless insisted that he desired to go to trial, where he planned to test the validity of the weight of the drugs.  On November 19, 2012, the government elected to file a prior felony information and establish a minimum twenty-year sentence if Braxton was found guilty at trial.  Prior to trial, the government formally offered Braxton a plea agreement wherein he would face a minimum of ten years and a maximum of fifteen.  The morning the trial began, the court dutifully memorialized for the record that Braxton had received and rejected the plea agreement, and wished to proceed to trial.  The district court went on to admonish Braxton repeatedly for electing to forgo the plea agreement, saying “I am not favorably inclined towards having you go to trial and trigger a mandatory minimum of 20 years, as opposed to a plea offer that’s down in the 10 to 15 year range in terms of years of your life” and compared going to trial to “put[ting] [your] head in a buzz saw that makes absolutely no sense.”  The district court then ordered a ten-minute recess, advising Braxton to “talk to your lawyer.”  After that recess, the district court again admonished Braxton that a “defendant shouldn’t put his head in a vice [sic] and face a catastrophic result just over a dispute over drug quantity. That’s the point.”  The court then dismissed for lunch.  During that lunch, Braxton changed his mind and elected to plead guilty.  Braxton later attempted to withdraw his guilty plea, arguing it had been involuntary.  Nevertheless, Braxton was sentenced to eleven and one-half years, and this appeal followed.

Federal Rule of Criminal Procedure 11(c)(1)

Under Fed. R. Crim. P. 11(c)(1), an “attorney for the government and the defendant’s attorney…may discuss and reach a plea agreement.  The court must not participate in these discussions.”  As the Fourth Circuit explained, this prohibition serves three primary goals.  First, it diminishes the possibility of judicial coercion of a guilty plea.  Second, it protects against unfairness and partiality in the judicial process.  Third, it eliminates the impression that the judge is an advocate for the agreement and not a neutral arbiter.  Although well-intentioned, the district court repeatedly suggested that the plea agreement was in Braxton’s best interests, which is in direct conflict with this rule.  Furthermore, the Fourth Circuit explained that the close proximity in time between when the comments were made and when the plea was accepted heightened the probability that Braxton was unduly influenced by the district court.

Braxton’s Statement That the Plea Was Given Voluntarily Was Insufficient

The Fourth Circuit was unconvinced by the government’s argument that Braxton’s guilty plea was voluntary.  Although the district court asked if Braxton felt “forced or threatened or pushed” to accept the plea agreement and Braxton replied “No, sir,” the Fourth Circuit held that his response was inconclusive.  The district court created “an unacceptable risk” that Braxton involuntarily entered his guilty plea in order to avoid offending the court, and thus his flat statement that he was not coerced was ineffective.

The District Court Cannot Remark Upon the Advantages of a Plea Agreement

The government also argued that, under Missouri v. Frye, the court must remark upon the advantages of the plea agreement and the disadvantages of trial in order to ascertain whether the defendant’s understanding of the decision is sufficient.  As the Fourth Circuit explained, however, the district court’s duties under Frye extend only to memorializing the terms of the plea agreement, and ensuring that the defendant understands them.  Thus, it was improper for the district court to advocate for the plea agreement at all, and the requirements of Frye do not make the comments of the district court in this case permissible.

Conclusion

The Fourth Circuit held that, although it did not appear that the district court intended to coerce Braxton, there was nevertheless a reasonable risk that Braxton had been influenced by the court.  Thus, because the district court’s plain error affected Braxton’s substantial rights, the Fourth Circuit vacated Braxton’s sentence and guilty plea, and remanded for further proceedings in front of a different judge.

Tags:
15Sep

Subsequent Nullification of Career Offender Status Does Not Result in Claim for Collateral Relief

Categories: 4th Cir. Blog
Comments Off on Subsequent Nullification of Career Offender Status Does Not Result in Claim for Collateral Relief

By Elizabeth DeFrance

Is a Claim for Collateral Relief Pursuant to 28 U.S.C. § 2255 Cognizable When the Petitioner’s Career Offender Designation Was Later Nullified?

On April 27, 2015, in the criminal case U.S. v. Foote, the Fourth Circuit affirmed in a published opinion the district court’s denial of a defendant’s petition for collateral relief under 28 U.S.C. § 2255. The Court held that a Sentencing Guidelines error resulting from a change in the defendant’s career offender status did not rise to the level of fundamental defect when the sentence did not exceed the statutory maximum and the Sentencing Guidelines were advisory.

Foote’s Prior Convictions and Procedural History

On July 13, 2006 Wesley Devon Foote pled guilty to three counts of distribution of crack cocaine, a felony drug offense. Pursuant to the United States Sentencing Guidelines (“Guidelines”), the district court found Foote to be a “career offender” and sentenced him to 262 months in prison. As a result of his career offender designation, Foote’s advisory Guideline range rose from 151–188 months to 262–327 months.

Under the Guidelines, a defendant is considered a career offender if his instant conviction is a felony controlled substance offense and he has at least two prior felony controlled substance offenses. To meet these requirements, the felony controlled substance offenses must be punishable by imprisonment exceeding one year.

In 1995 and again in 2002, Foote was convicted of possession with intent to sell cocaine. He was sentenced to ten to twelve months for the first conviction and thirteen to sixteen months for the second. Although Foote’s 1995 sentence did not exceed one year, at the time of his sentencing, the court determined whether a conviction met the career offender requirements by considering whether the maximum aggravated sentence that could be imposed for that crime exceeded one year. Thus, because the maximum aggravated sentence for his 1995 conviction was well over one year, it was inconsequential that his actual sentence was below the required length.

Foote appealed his career offender designation. The Fourth Circuit affirmed, but he United States Supreme Court        vacated and remanded based on the decision in Kimbrough v. United States allowing sentences for crack cocaine offenses to deviate from the sentencing Guidelines. The district court entered an amended judgement for 262 months, declining to reduce Foote’s sentence below the Guidelines.

Foote appealed again and after the Fourth Circuit affirmed, he filed a petition for collateral relief under 28 U.S.C. § 2255. While the petition was pending, the Fourth Circuit held in United States v. Simmons that the determination of whether a conviction meets the career offender sentence length requirement should be based on the conviction itself instead of the sentence the defendant could have received. Accordingly, a certificate of appealability based on Simmons was issued allowing Foote to appeal.

Avenues for Relief Under § 2255

 Under § 2255, the only sentencing errors subject to collateral review are those that are (1) a violation of the Constitution, (2) imposed by a court without jurisdiction, (3) excessive of the statutory maximum, or (4) otherwise subject to collateral attack. Where the error does not violate the constitution and the court had jurisdiction, the error is only reviewable if it “amounts to a fundamental defect which inherently results in a complete miscarriage of justice.”

Because the Guidelines Foote Was Sentenced Under Were Advisory Rather Than Mandatory, the Sentencing Error was Not Fundamental

The Court looked to decisions from other circuits on this issue and found that, although the courts were internally divided, the outcomes all indicated that a change in career offender status is not cognizable on collateral review. The Court also noted that Supreme Court cases where the “miscarriage of justice” standard has been met are rare and rely on the actual innocence of the petitioner. However, in this case, none of Foote’s convictions had been invalidated or vacated.

The reasoning the Court most relied on was that the Guidelines Foote was sentenced under originally, and would be sentenced under again if his appeal was successful, are advisory rather than mandatory. Thus, because Foote’s sentence did not exceed the statutory maximum, the Court reasoned that it was not a miscarriage of justice because it was entirely possible for Foote to receive the exact same sentence even if he won the appeal.

Foote’s Sentence Upheld

Although the change in career offender status may have affected the length of Foote’s sentence, it was, and still is, within the statutory limits. Because the sentencing error did not rise to the level of a fundamental defect resulting in the miscarriage of justice, the judgement of the district court was affirmed.

Tags:
11Sep

Fourth Circuit Vacates Habeas Relief for Ineffective-Assistance Claim

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Vacates Habeas Relief for Ineffective-Assistance Claim

detective-152085_1280

By Paige Topper

Issue Raised by the Petitioner 

On April 22, 2015, in the civil case of Jones v. Clark, the Fourth Circuit addressed whether the District Court for the Eastern District of Virginia erred in granting Rashaad Jones’ habeus petition. The Fourth Circuit found that the District Court erred in granting the habeus petition and thus vacated the portion of the habeas order granting relief.

Jones’ Conviction and Habeas Corpus Proceedings

In January 2010, Jereme Joseph reported that someone broke a window in the back of his house and stole a television and other items from his bedroom. One month prior to the theft, Jones had visited Joseph’s house with a mutual friend, at which time he entered through the front door and stayed in the family room. A fingerprint analysis certification indicated that one of the fingerprints on the window belonged to Jones. Jones’ trial counsel did not object to the admission of this certificate. Joseph also testified that following the theft Joseph confronted Jones at the jail about why he committed the crime. Jones responded, “he made a mistake.” This trial judge interpreted Jones’ statement as an admission of guilt.

The trial judge convicted Jones of breaking and entering and grand larceny with a 10-year prison sentence. The Virginia appellate court denied Jones’ direct appeal, and the state supreme court denied his state habeas petition. In response, Jones filed a federal habeas petition. This petition proceeds as a civil action against the state agent, here Harold Clarke, the Director of the Virginia Department of Corrections, who holds the defendant in custody. The district court granted habeas relief on Jones’ ineffective assistance claim. Accordingly, the district court vacated Jones’ convictions and sentence.

The Ineffective-Assistance Claim

An ineffective-assistance claim argues that counsel’s unprofessional errors were so serious as to deprive the defendant of a fair trial. The Supreme Court of Virginia, in Strickland v. Washington, established two necessary components of an ineffective-assistance claim. First, the defendant must show that counsel’s performance was deficient. This component must show that counsel’s errors were so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This component establishes that there is a reasonable probability that, but for counsel’s errors, the result of the case would be different.

Jones argued that his counsel should have objected to the admission of the fingerprint evidence. Specifically, Jones claimed that his counsel’s failure to object prejudiced Jones as the fingerprint was essential to the guilty verdict and without that evidence there was a reasonable probability that he would have been acquitted.

Exclusion of Fingerprint Evidence not Reasonably Likely to Produce a Different Result

The Fourth Circuit acknowledged that the fingerprint evidence constituted strong evidence establishing Jones’ guilt. However, the Firth Circuit found that there was not a reasonable probability that the trial judge would have had reasonable doubt regarding Jones’ guilty if the fingerprint evidence had been excluded. Specifically, the Fourth Circuit determined that even if the fingerprint evidence was removed from the equation, the admission of guilt to Joseph in the jail and the evidence that Jones had recently visited Joseph’s house are sufficient to establish Jones’ guilt of the charged crimes beyond a reasonable doubt.

Portion of the Habeas Order Granting Relief Vacated

The Fourth Circuit held that the state supreme court did not unreasonably conclude that Jones failed to establish the Strickland prejudice for an ineffective-assistance claim. Thus, the district court erred in granting the habeas petition. The Fourth Circuit vacated the portion of the habeas order granting relief and remanded for the district court to dismiss the habeas petition.

The dissent argues that because the trial judge reasoned “when you take the fingerprint and combine it with the recent visit and you combine it with the statement,” there was a reasonable probability that if the fingerprint evidence was excluded, Jones would have been acquitted (emphasis added in dissent).

 

Tags:
10Apr

Odor of Marijuana Gives Probable Cause to Search Car Trunk

Categories: 4th Cir. Blog
Comments Off on Odor of Marijuana Gives Probable Cause to Search Car Trunk

By Lauren D. Emery

On April 10, 2015, in United States v. Anthony Champion, an unpublished criminal opinion, the Fourth Circuit affirmed the ruling of the district court.

Traffic Stop Results in Discovery of Stolen Weapons

On January 13, 2013, a Virginia State Trooper pulled over Anthony Champion after witnessing him speeding and violating a Virginia law against having dangling objects which obstruct a driver’s view of the roadway. Rather than immediately pull over, Champion drove erratically and, after finally pulling over, exited the vehicle and one of his passengers moved into the driver’s seat.  When the trooper approached the car, Champion admitted he did not have a license and the trooper smelled a “‘fairly strong’ odor of marijuana.”  At this point the trooper requested additional backup and then conducted a search of the vehicle, including the trunk.  During the search of the trunk, the troopers found nine stolen weapons in a gym bag.

Does Marijuana Odor Give Probable Cause to Search a Car’s Trunk?

Champion appealed his conviction for transporting stolen firearms which were found in the  trunk of the car he was driving.  Specifically, he argued that the evidence of the weapons in the trunk should have been suppressed at trial because “the mere odor of burnt marijuana in the passenger compartment is insufficient to establish probable cause to search the trunk of a car.”

Totality of the Circumstances Suggests Trooper had Probable Cause to Search Trunk

In its opinion, the Fourth Circuit declined to decide whether the smell of marijuana in the passenger compartment of a car is ever sufficient on its own to give probable cause to search a vehicle’s trunk–an issue on which the circuit courts appear to be split.  Instead, the Fourth Circuit concluded that the district court considered a totality of the circumstances rather than relying solely upon the odor of marijuana.  The factors suggesting the troopers had probable cause included: the strong odor of marijuana; the fact that when questioned about whether there was contraband in the car, Champion replied “none that I know of”; his passengers’ confessions that they had been smoking marijuana while in the vehicle; and the fact that the occupants gave inconsistent statements regarding their destination.   All of these factors suggested the occupants of the vehicle were involved in some criminal activity and as such there was probable cause to search the trunk.

Fourth Circuit Affirms District Court Judgment

The Fourth Circuit affirmed the district court’s denial of Champion’s motion to suppress the firearms discovered in the trunk because they were found as a result of a lawful search of the vehicle.

Tags:
9Apr

Fourth Circuit Affirms Drug Conviction & Sentence

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Affirms Drug Conviction & Sentence

By Michael Mitchell

Today, in the criminal case of United States v. Jenkins, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the District of South Carolina, upholding the defendant’s drug conviction and 170-month sentence.

Defendant Challenges Plea Bargain and Sentence

The Fourth Circuit considered the adequacy of the defendant’s plea hearing and the reasonableness of his sentence with regard to his immigration status.

Defendant Pled Guilty to Multiple Drug Charges

The defendant Raynard Allen Jenkins pled guilty to conspiracy to possess 280 grams of cocaine base and 500 grams of cocaine with the intent to distribute as well as possession of marijuana.  He was sentenced to 170 months in prison in accord with the Sentencing Guidelines, which provide for an enhanced sentence in certain drug-related convictions.

No Meritorious Grounds for Appeal

In accord with Anders v. California, the Court reviewed the entire record for any meritorious grounds for appeal and found none.  Thus, the court considered whether the defendant’s plea hearing and sentence were reasonable.

No Plain Error in Plea Bargain or Sentencing

The Fourth Circuit considered the adequacy of the defendant’s plea hearing by reviewing the record for plain error, holding that the district court substantially complied with Federal Rule of Criminal Procedure 11.  The court’s failure to alert the defendant of the potential issues with his immigration status as a result of his plea agreement did not affect his rights.  The Fourth Circuit also held that the defendant’s 170-month sentence was procedurally and substantively reasonable.

Fourth Circuit Affirms Conviction & Sentence

The Fourth Circuit affirmed the district’s court’s judgment upholding the defendant’s conviction for conspiracy to distribute cocaine and marijuana possession as well as his 170-month prison sentence.

Tags:
7Apr

Fourth Circuit Affirms Sentencing Judgment

Categories: 4th Cir. Blog
Comments Off on Fourth Circuit Affirms Sentencing Judgment

By Katharine Yale

Yesterday, in the unpublished criminal case United States v. Hamilton, the Fourth Circuit reviewed the sentences of the defendant, Thomas Hamilton, and affirmed the district court’s judgment. A jury found Hamilton guilty of manufacturing marijuana and of possessing firearms and ammunition after having been convicted of a felony. The court sentenced him accordingly. On review, Hamilton argued that the court below erred in allowing the testimony of a state trooper and by applying the four-level enhancement under the United States Sentencing Guidelines (the “Guidelines”).

The Court Uses an Abuse of Discretion Standard in Reviewing a District Court’s Decision to Admit Evidence

In reviewing a district court’s decision to admit evidence, the Fourth Circuit uses an abuse of discretion standard. Evidence of prior bad acts, under Rule 404(b), “may be admitted as proof of ‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. . . ’” However, such evidence cannot be admitted to prove a person’s character. Further, to be admissible under Rule 404(b), the evidence must be relevant to an issue other than character, necessary, and reliable. If the probative value of the evidence is “substantially outweighed by its unfair prejudice to the defendant,” the evidence should be excluded.

The District Court Did Not Err in Admitting Trooper Richardson’s Testimony

Here, Trooper Richardson testified that in 2005 he had seen Hamilton in possession of a handgun. The Fourth Circuit found that the testimony met all of the criteria for admissibility, that the district court was careful in its ruling, and the use of limiting jury instructions eliminated the risk of unfair prejudice.

The Court Uses a Clear Error Standard in Reviewing Guidelines Calculations and Reviews the Court’s Legal Conclusions De Novo

The Fourth Circuit reviews the district court’s Guidelines calculations using a clear error standard for findings of fact and reviews its legal conclusions de novo. Section 2k2.1(b)(6)(B) of the Guidelines allows for a four-level enhancement to the sentence if a defendant “used or possessed any firearm or ammunition in connection with another felony or offense.” In general, a firearm or ammunition is possessed “in connection with” another felony offense “if the firearm or ammunition facilitated, or has the potential of facilitating, another felony offense.”

Under the Guidelines, there is a presumption for drug trafficking offenses. A firearm is presumed to have the potential of facilitating another felony offense if it “is found in close proximity to drugs, drug-manufacturing materials, or drug-paraphernalia.”

The District Court Did Not Err in Applying the Four-Level Enhancement to Hamilton’s Sentence

Here, at least one of the firearms was found in close proximity to drug paraphernalia. Additionally, the presence of the firearms was not an accident. The firearms were “‘present for protection [and] to embolden’ Hamilton.” Thus, the district court did not err in applying the four-level enhancement.

The Fourth Circuit Affirmed the District Court’s Judgment

Tags: