Wake Forest Law Review
12Apr

Fourth Circuit Vacates Federal Carjacking Conviction

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By George Kennedy

On April 12, 2016, the Fourth Circuit issued its published opinion in the case of United States v. Bailey. The Fourth Circuit vacated a conviction for carjacking in violation of 18 U.S.C. § 2119, finding there was insufficient evidence to establish that Defendant had the specific intent necessary to sustain a federal carjacking conviction.

High-Speed Police Pursuit and Subsequent Carjacking 

On the night of April 17, 2014 in Durham, North Carolina, a police officer observed Defendant Kenneth Lee Bailey, Jr., operating a vehicle with its tag lights out. The officer decided to make a traffic stop, and accordingly maneuvered behind Defendant’s car and turned on the lights of her patrol car. At this point, Defendant sped up and darted down a one-way street in excess of 25 miles per hour above the posted speed limit. The police officer did not follow Defendant down the one-way street, out of a concern for the safety of other motorists, but instead followed Defendant from a parallel street.

Moments later, the officer came upon Defendant’s car which had crashed head-on into a stone wall. The police officer approached the scene of the accident and heard the cries of a child. While the officer went to check on the other passengers in Defendant’s car, Defendant fled the scene on foot to a nearby McDonald’s. After verifying that all passengers were unharmed, the officer continued her pursuit of Defendant. The officer reached the McDonald’s, where the officer discovered a man inside frantically screaming that his truck had been stolen.

At trial, an eyewitness testified that Defendant had stolen his truck in the parking lot of the McDonald’s. According to the testimony, Defendant approached the witness’s car and asked the witness for a ride, promising payment. When the witness refused, Defendant forced his way in, told the witness to “drive, drive, drive” and placed something “hard and cold” to the back of the witness’s neck. Fearing for his life, the witness leaped from the truck, and Defendant then went to the driver’s seat and drove witness’s truck away from the McDonald’s. After another high-speed pursuit, police officers finally caught up with Defendant and arrested him.

Trial at the District Court and Assignments of Error

At trial, the jury found Defendant guilty of carjacking in violation of 18 U.S.C. § 2119 and the district court sentenced Defendant to 106 months in prison. During the trial, however, no witness testified that they had seen Defendant with a weapon. Defendant appealed, arguing that there was insufficient evidence to support the jury’s verdict that he was guilty of carjacking as defined under 18 U.S.C. § 2119. Specifically, Defendant asserted that evidence was lacking to establish that Defendant possessed the specific intent required to sustain a carjacking conviction under the federal carjacking statute.

Fourth Circuit Vacates the Judgment on Sufficiency of Evidence Grounds

The Fourth Circuit held that the government failed to proffer sufficient evidence to sustain a federal carjacking conviction against Defendant, specifically in regards to the intent element. Under 18 U.S.C. § 2119, a person commits the crime of carjacking if he, “with the intent to cause death or serious bodily harm[,] takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so.” To satisfy the specific intent element of the crime, the government must show that the defendant “was conditionally prepared to” kill or seriously harm the driver if the driver “failed to relinquish the vehicle.”

To explain why Defendant lacked the requisite intent to sustain a federal carjacking conviction, the Fourth Circuit first looked to precedent. The Court cited to ten different cases in which federal carjacking convictions were upheld and found that in each case, the Defendant threatened his or her victim with a real weapon and/or physically assaulted his or her victim. Therefore, the Fourth Circuit found reason to distinguish the case at bar from precedent since the Defendant in this case did not physically assault his victims nor was there evidence that Defendant had ever used a real weapon to threaten his victims. Instead, there was only evidence that Defendant had placed something “hard and cold” to a victim’s neck. From this evidence, the Fourth Circuit concluded that while Defendant clearly meant to scare his victim there was no evidence to support a finding that Defendant was prepared to kill or seriously harm his victim, as required under 18 U.S.C. § 2119.

As additional support, the Fourth Circuit looked to the U.S. Supreme Court case of United States v. Holloway. There, the Supreme Court held that “an empty threat, or intimidating bluff,. . . standing on its own is not enough to satisfy § 2119’s specific intent element.” The Fourth Circuit found that the language from Holloway was controlling here. Since there was no evidence presented that Defendant was in possession of a gun or any other weapon during the carjacking, there was no evidence to suggest that Defendant made anything but an empty threat when he pressed the “hard and cold” object to his victim’s neck. The Fourth Circuit characterized Defendant’s threats as a mere “bluff,” providing insufficient support for a reasonable jury to conclude that Defendant possessed the intent to kill or seriously harm his victim, as required by the federal carjacking statute.

Vacated and Remanded

Accordingly, the Fourth Circuit vacated Defendant’s conviction and remanded the case to the district court for a judgment of acquittal.

 

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17Nov

Fourth Circuit Affirms Conspiracy and Laundering Convictions

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By Cate Berenato

In the published, criminal case United States v. Qazah, the Fourth Circuit affirmed the United States District Court for the Western District of North Carolina’s decision to convict Kamal Zaki Qazah and his uncle, Nazzer Kamal Aquza, of conspiracy and money laundering. The Fourth Circuit remanded the district court’s sentencing decisions.

During 2010 and 2011, Qazah conspired to purchase thousands of allegedly stolen Marlboro cigarettes from undercover agents. The agents said the cigarettes had been stolen from Philip Morris trucks in Virginia and Tennessee before being sold to convenience store operators and coconspirators in North and South Carolina. Alquza entered the conspiracy to launder the proceeds.

Law enforcement agents eventually arrested Qazah and Alquza and executed search warrants in their homes. Officers mistakenly attached a list of items to be seized from Qazah’s house to the warrant for Alquza’s house, despite having prepared two separate lists specific to each defendant’s home. The two lists included similar items but one specified Qazah home and the other specified Alquza home. The magistrate judge who approved the warrants reviewed via email the lists respective of each defendant, however she signed the hard copy of Alquza’s warrant to which the list for Qazah was mistakenly attached. Additionally, the officer who conducted the search of Alquza’s home based her search on a summary of the appropriate list. Prior to trial, Alquza moved to suppress the evidence based on the warrant with the mistaken attachment, but the district court denied the motion because the mistake was a clerical error and the officers behaved in good faith.

Additionally, Qazah stated at trial that he believed the cigarettes were counterfeit instead of stolen, causing the district court to charge him with perjury. A jury found Qazah and Alquza guilty of conspiring to transport stolen cigarettes across state lines, conspiring to commit money laundering, and money laundering. Qazah was also convicted of receiving cigarettes allegedly stolen in interstate commerce. The district court sentenced Qazah to 216 and Alquza to 108 months in prison. Both defendants objected to the sentencing because it was based on the retail value rather than the wholesale value of the cigarettes, but the district court rejected the argument.

Alquza challenged the district court’s denial of his motion to suppress and the evidentiary rulings made at trial. Qazah challenged the court’s denial of his motion to sever his trial from Alquza’s. Both defendants challenged their sentences.

The District Court’s Did Not Err in Denying Alquza’s Motion to Suppress

Alquza claimed that the search warrant for his home was not particular. He also claimed that the good faith exception should not apply to the erroneous attachment of the list that related to Qazah’s home because the magistrate was not neutral and the warrant was facially deficient. The Fourth Amendment requires that searches be based on warrants that particularly describe the place to be searched and persons or things to be seized. Evidence can be excluded if a magistrate abandoned her role or if the warrant is facially deficient. The exclusionary rule is meant to deter improper police conduct and does not apply if the officers acted in good faith. Here, the Fourth Circuit stated that the officers committed a technical error and the magistrate judge decided to sign the warrant based on an email containing the appropriate attachment. The warrant was not facially deficient because it correctly identified the place to be searched and included a list of many of the items to be seized. Additionally, the officer who conducted the search based the search on a summary of the correct version of the warrant. Excluding the evidence in this case would not deter the police because their mistake was based on simple negligence rather than willful wrongdoing.

The District Court Must Reconsider the Sentencing

 Defendants stated that the district court should have based the sentences on the wholesale value of the allegedly stolen cigarettes rather than their retail value. The district court relied on U.S.S.G. § 2B1.1(b)(1) and Application Note 3(A) to determine that the sentences should be based on retail value. The offense level should have been determined based on the actual loss or intended loss, according to U.S.S.G. § 2B1.1(b)(1). Loss is determined by the loss to the victim or intended victim of the offense. Here, the victim was likely Philip Morris, the cigarette manufacturer. The state and the legitimate retailers of cigarettes could also have been victims. The Fourth Circuit vacated and remanded the sentencing decision to the district court to determine the victims and their losses.

 The District Court Did Not Err In Making Other Trial and Sentencing Rulings

Alquza contended that the district court abused its discretion when it allowed the government to present evidence of statements he made to undercover officers and evidence of false identification documents found in his home. Federal Rule of Evidence 404(b)(1) states that evidence about a defendant’s character may be admissible to prove “motive, opportunity, intent,” etc. Thus, the district court acted within its discretion.

Alquza claimed that the district court abused its discretion when it allowed the government to present evidence that Alquza sent money overseas. He claimed this was highly prejudicial and irrelevant evidence. However, Alquza’s own attorney brought this evidence in when he asked an undercover officer about it.

Qazah claimed that the district court abused its discretion when it denied his motion to sever his trial from Alquza’s. Qazah said that evidence about Alquza cast Qazah in a bad light. Federal Rule of Criminal Procedure 14 states that courts should grant severance only if there is a risk that a joint trial would compromise a trial right of a defendant or if the jury would not be able to make a reliable judgment. The Fourth Circuit stated that Qazah proved neither of those requirements.

Qazah also claimed that the district court erred during sentencing when it enhanced his sentence because he committed perjury. To apply the enhancement, the district court needed to find facts that Qazah gave false testimony concerning a material matter with intent to deceive. Here, the district court did find that Qazah knew that the cigarettes were stolen. The central issue for the jurors was whether Qazah thought he was handling counterfeit or stolen cigarettes. Qazah also “categorically denied” knowing that the cigarettes were stolen.

Finally, both defendants claimed that the sentences were unreasonable. However, based on various factors, the district court reasonably selected sentences.

 Disposition

The Fourth Circuit affirmed the defendants’ convictions but vacated their sentences. The Court remanded to the district court to reevaluate sentencing.

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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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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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27Oct

Fourth Circuit – “§ 1983 Claim Cannot Co-Exist with Valid Conviction”

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By Eric Benedict

On October 27th, 2015, the Fourth Circuit issued its published opinion in the civil case, Griffin v. Baltimore Police Dept. In Griffin, the Fourth Circuit affirmed the District Court’s determination that Griffin’s § 1983 claim (42 U.S. Code § 1983) was barred by the standards set forth in Heck v. Humphrey. The Heck rule prohibits § 1983 claims that would “necessarily imply[y] the invalidity of a prior conviction.” The Court explained that because, if successful, Griffin’s “Brady Claim” would imply that his conviction was invalid, and was therefore barred by Heck.

Griffin’s Conviction and Pursuit of Post-Conviction Relief

In 1982, a Baltimore jury convicted Wendell Griffin of murder and a related weapons charge. Griffin was then sentenced to life in prison. The state appellate court affirmed the conviction and Maryland’s highest state court declined to hear his appeal. Fifteen years after his conviction, Griffin fined a petition for habeas corpus in the United States District Court for the District of Maryland. That petition was ultimately denied and the Fourth Circuit declined to issue a certificate of appealability. Finally, Griffin filed a petition seeking DNA testing on pieces of evidence from the police case file. As part of the proceedings that followed, Griffin apparently discovered information that suggested the police failed to hand over exculpatory evidence to the defense during trial. Griffin was ultimately successful in reducing his sentence from a life sentence to time served.

Griffin Files Suit Against the Baltimore City Police Department

After his release, Griffin filed a § 1983 claim against the Police Department. A § 1983 claim allows a plaintiff to seek damages against an actor who violates the plaintiff’s federal rights while acting under color of state law. Griffin claimed that the Baltimore Police Department withheld evidence that would have exculpated him at trial (a “Brady Claim”).

Heck’s Judgment Consistency Precludes Griffin’s Claim

The Fourth Circuit relied heavily on precedent to prevent Griffin’s claim from moving forward. Specifically, the Court cited the consistency standards set for in Heck v. Humphrey. In Heck, a 1994 United States Supreme Court case, the Supreme Court explained that allowing a plaintiff to proceed on a § 1983 claim that would imply the wrongfulness of a still-valid conviction would lead to inconsistent results. On one hand, there would be a standing conviction, not overturned at the state or federal level, while on the other there would be a civil judgment calling that conviction into question. The Fourth Circuit reasoned that any successful “Brady Claim” would undermine Griffin’s prior conviction because it would call into question the validity of the verdict.

The Heck Court expressly allowed claims like Griffin’s to move forward only when the conviction had already been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal…or called into question by a federal court’s issuance of a writ of habeas corpus.” Griffin argued that because he was no longer incarcerated, the habeas corpus path was no longer accessible to him, and therefore, he should be allowed to proceed. The Fourth Circuit explained that such an exception should only be available where a plaintiff cannot seek habeas relief as a practical matter (i.e. a short sentence). The Court noted that Griffin had ample time to seek habeas relief, and indeed did at one point, although his petition was denied. Additionally, Griffin had at least sixteen months after learning about the alleged Brady claim to seek habeas relief, but did not. In sum, the Court concluded that the suit was barred by the limits of Heck, and that Griffin did not fall into any exception to the rule.

The Court Recognizes Federalism Concerns in Post-Conviction Relief

Citing the unique relationship between state and federal courts, the Fourth Circuit acknowledged the delicate balance between a state court’s interest in a given conviction and a federal court’s use of habeas corpus. The Fourth Circuit reasoned that limitations on habeas relief are especially warranted when a state provides pathways for post-conviction relief. In Maryland, the Fourth Circuit identified four: a petition for error coram nobis, a petition for writ of actual innocence on the basis of newly discovered evidence, a pardon from the Governor, and Maryland’s standard direct and collateral review procedures. The Court explained that should Griffin’s petition be invalidated through a method still available to him, the Heck rule would no longer apply, and Griffin could pursue a § 1983 claim.

The Fourth Circuit Affirms

The Fourth Circuit affirmed the District Court’s dismissal of Griffin’s claim. Both the majority opinion and the lone concurrence were careful to articulate that their ruling only discusses the procedural aspects of the claim and not the merits. Should Griffin’s conviction become invalidated, he may be able to pursue his claim.

 

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23Oct

Fourth Circuit Affirms Motion to Suppress After Warrantless Search

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By Sarah Saint

On October 23, 2015, in the criminal case of United States v. Dmytro Patiutka, the Fourth Circuit issued a published opinion affirming the district court’s grant of Defendant Dmytro Patiutka’s motion to suppress evidence. In this case, the Fourth Circuit answered the United States of America’s interlocutory appeal to the district court’s ruling arguing in the alternative that the search was either incident to an arrest or fell within the Fourth Amendment’s warrant requirement automobile exception.

State Troopers Searched Patiutka’s Car Without Warrant

A patrol car camera recorded the following stop. Virginia State Trooper G.S. Cox pulled over an SUV with tinted windows and tinted license plate cover when the driver failed to maintain lane on April 27, 2013. Patiutka gave the trooper a license with the name “Roman Pak.” When the trooper asked Patiutka for his birth date, Patiutka told him a date eight years from the date on the license. The trooper testified he thought Patiutka was lying in violation of Virginia law, but the trooper asked Patiutka no more questions about this. The trooper ran the supplied information through police databases, received no results, and told Patiutka he was “free to go.”

Once Patiutka began to walk to his car, the trooper asked if he could search Patiutka’s car, which the trooper believes he received consent for, and signaled to other troopers to begin searching the car. One trooper found a bag containing a credit card reader and a suitcase containing four unopened iPads. Patiutka asked the trooper who had stopped him why his car was being searched. The trooper responded that Patiutka consented. Patiutka asked for them to stop. Then, when another trooper announce Patiutka was under investigative detention, the first trooper put handcuffs on Patiutka and took him back to the patrol car. The troopers then found a credit card embosser, credit card re-encoder, and blank credit cards. At the end of the search, a trooper transported Patiutka to the state police station and read him his Miranda rights. He was questioned at the station and made incriminating statements.

On January 13, 2014, the Government filed a criminal complaint against Patiutka, charging him with access device fraud and aggravated identity theft. On March 20, 2014, a grand jury indicted Patiutka.

Patiutka Moved to Suppress Evidence from Warrantless Search

Patiutka moved to suppress the physical evidence found in his car as well as all statements and evidence that flowed from the warrantless search. The Government claimed that the statements and evidence were admissible under the vehicle exceptions to the Fourth Amendment’s warrant requirement. The district court wholly rejected the Government’s assertions. The Government then filed an interlocutory appeal.

Standard of Review

The Fourth Circuit reviewed the district court’s legal determinations underlying the grant of the motion to suppress evidence de novo and the factual findings for clear error.

Fourth Amendment Prohibits Warrantless Searches Save For Small Exceptions

The Fourth Amendment protects people from unreasonable searches and seizures. Warrantless searchers are presumed unreasonable except in a limited number of cases. The Government argued that the warrantless search was reasonable for two reasons in the alterative: either the search was incident to Patiutka’s arrest or the search fell within the automobile exception.

Incident to Arrest Exception Does Not Apply Here

Officers may search a vehicle if the arrestee is near the car or it is reasonable to believe there is evidence incident to the arrest near the car. If the search begins before arrest, officers must have probable cause to arrest prior to the search. The Government contends that the officers had probable cause because Patiutka gave false identity information, but the Fourth Circuit did not find this persuasive because the district court found the officer did not have cause to arrest Patiutka before the search based on the evidence provided. Because the officers did not have cause to arrest Patiutka for any reason when they continued the search without Patiutka’s consent, the incident to arrest exception cannot apply and the search violated the Fourth Amendment.

Automobile Exception Does Not Apply Here

Officers may search a vehicle if they have probable cause it contains evidence of any criminal activity. The district court found that when the officers only found a credit card reader and suitcase with new iPads, this was not enough to provide a basis for probable cause after Patiutka withdrew consent. The officers should have questioned Patiutka about the contents found during the consensual search. Because the officers had no probable cause to search, the automobile exception cannot apply and the search violated the Fourth Amendment.

Government Tried to Apply the Collective-Knowledge Doctrine

The Government argued that the collective-knowledge doctrine gave the searching officers probable cause to search the car. The collective-knowledge doctrine allows a court to substitute the knowledge of the instructing officer to the acting officer. However, the officers did not communicate with each other, so the doctrine cannot save the search, and no officer had sufficient knowledge to justify a warrantless search.

Fourth Circuit Affirmed the District Court’s Judgment

The Fourth Circuit found neither of the Government’s contentions that a Fourth Amendment exception applied here persuasive. Thus, the Fourth Circuit affirmed the district court’s judgment to grant Patiutka’s motion to suppress evidence.

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26Sep

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

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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.

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16Sep

Fourth Circuit Vacates Guilty Plea Due to District Court Coercion

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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.

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9Apr

Fourth Circuit Affirms Drug Conviction & Sentence

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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.

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6Apr

Defendant Stuck With Guilty Plea After Ineffective Assistance of Counsel Claim Fails on Appeal

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By Marcus Fields

Today, in U.S. v. Solares, an unpublished opinion, the Fourth Circuit affirmed the District Court for the Western District of North Carolina’s judgment against Adrian Solares imposing a 93-month sentence after Solares pled guilty to multiple firearm offenses. In doing so, the Fourth Circuit denied Solares’s ineffective assistance of counsel claim and found that the district court did not abuse its discretion when it denied Solares’s petition to withdraw his guilty plea.

 Ineffective Assistance of Counsel Claim Not Supported by the Record

Solares claims that his attorney failed to provide effective assistance when “counsel allegedly advised Solares that he could not plead guilty to some of the counts against him and proceed to trial on the remaining counts.” The Fourth Circuit rejected this claim. It began by stating that a defendant may only raise a claim of ineffective assistance of counsel for the first time on appeal if “it conclusively appears from the record that counsel did not provide effective assistance.” The defendant must show that: “(1) counsel’s performance was objectively unreasonable; and (2) defendant was prejudiced by counsel’s performance.

To satisfy the prejudice prong in the context of a guilty plea, a defendant must demonstrate “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” A defendant must make such a demonstration by convincing “the court that such a decision would have been rational under the circumstances.” The Fourth Circuit determined that the record below did not support such an assertion and thus rejected Solares’s ineffective assistance of counsel claim.

The Magistrate Judge did not Abuse Discretion By Refusing to Allow Solares to Withdraw Plea

The Fourth Circuit held that Solares had waived his right of appellate review because he failed to appeal the magistrate judge’s ruling to the district court. The Fourth Circuit cited language in another case stating that a defendant could not “ignore his right to file objections with the district court without imperiling his right to raise the objections in the circuit court of appeals.” Furthermore, the Fourth Circuit found that the magistrate judge did not err in deciding to deny Solares’s motion to withdraw.

Because the Fourth Circuit rejected both of the claims raised by Solares on appeal, it affirmed the district court’s judgment.

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26Mar

Fourth Circuit Affirms Sentencing Enhancement for Drugs & Firearms

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By Michael Mitchell

Today, in the criminal case of United States v. Pina, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the Western District of North Carolina, upholding the defendant’s conviction and enhanced sentence for drug charges and firearm possession.

Defendant Challenges Two-Level Sentencing Enhancement

The Fourth Circuit considered whether the district court properly applied a two-level enhancement to the defendant’s sentence for drug-related conspiracy and possession of a firearm.  The defendant also alleged that his guilty plea was coerced and his sentence was “substantively unreasonable.”

Defendant Convicted for Drug & Firearm Charges

The district court sentenced the defendant Jose Francisco Jiminez Pina to 180 months in prison after he pled guilty to conspiracy to distribute and possess with intent to distribute at least 500 grams of a mixture and substance containing a detectable amount of methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime.  The district court sentenced the defendant to the mandatory-minimum 120 months for the drug conspiracy and 60 consecutive months for the firearm conviction.  Acknowledging that there were no meritorious issues on appeal under the framework of Anders v. California, the defendant challenged whether the two-level enhancement was properly applied and whether his case should be remanded to the district court for application of the Sentencing Guidelines.

Fourth Circuit Applies “Plain Error” Standard of Review

To evaluate whether the two-level enhancement was appropriate, the Fourth Circuit considered reasonableness “under a deferential abuse-of-discretion standard,” according to Gall v. United States.  The court found no “‘significant procedural error,” such as improper calculation of the sentencing range under the Guidelines or inadequate explanation of the sentence to the defendant.  Therefore, the Fourth Circuit instead reviewed the case for “plain error only.”

Mandatory Minimum Sentence Satisfies Sentencing Guidelines

The Fourth Circuit considered the defendant’s claim by evaluating the Sentencing Guidelines, finding that the defendant had been convicted of a crime wherein methamphetamine production or distribute was a principal purpose of the premises.  The district court applied the mandatory minimum sentence of 120 months for the defendant’s drug conviction, “the lowest sentence it could impose.”  Thus, the Fourth Circuit determined that there was “no plain error” in the calculation of the defendant’s sentence according to the Sentencing Guidelines.  The Fourth Circuit also found the sentence “substantively reasonable” based on a “totality of the circumstances.”  The defendant was also unable to overcome the rebuttable presumption in favor of the district court’s judgment with regard to his plea agreement allegations.

Fourth Circuit Affirms District Court’s Enhanced Sentence

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction for conspiracy to distribute methamphetamine and firearm possession as well as the two-level sentencing enhancement for a total of 180 months in prison.

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23Mar

No Merit in Appeal of District Court Sentence

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By Marcus Fields

Today, in United States v. Montgomery, an unpublished decision, the Fourth Circuit affirmed the district court’s revocation of Montgomery’s supervised release and sentence of 22 months.

Brief Filed by Montgomery’s Counsel

Although Montgomery’s counsel did not believe there were any meritorious grounds for appeal, he filed a brief with the court raising four potential challenges to the district court’s decision.  This brief was filed in accordance with Anders v. California, a Supreme Court case outlining the responsibilities of court-appointed counsel to defendants on appeals of right when the counsel does not believe the appeal to be meritorious. The four grounds raised by Montgomery’s counsel were (1) the sentence was unreasonable, (2) Montgomery was denied chance to be heard at sentencing, (3) ineffective assistance of counsel, and (4) prosecutorial misconduct.  Montgomery was notified of his right to file a supplemental pro-se brief but declined to do so.

No Meritorious Grounds for Appeal

Anders requires the reviewing court to examine the entire record below for any meritorious grounds for appeal. Doing so, the Fourth Circuit found each of the potential grounds raised by Montgomery’s counsel to be without merit.  It noted that “a district court has broad discretion when imposing a sentence upon revocation of supervised release,” and because Montgomery did not challenge the reasonableness at trial, the Fourth Circuit reviewed the sentence for plain error.  Because Montgomery’s sentence was within the statutory maximum and not plainly unreasonable the Fourth Circuit affirmed the district court’s sentence.  The Fourth Circuit also found that Montgomery was given the chance to be heard and that there was no evidence of prosecutorial misconduct.  It declined to consider the ineffective assistance of counsel claim on direct appeal because such appeals are only allowed “where the record conclusively establishes ineffective assistance.” See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

Counsel’s Ability to Withdraw From Representation

After affirming the district court’s judgment, the Fourth Circuit instructed Montgomery’s counsel to inform Montgomery of his right to petition the Supreme Court for review.  If Montgomery’s counsel believed such a petition to be frivolous, he would be allowed to move for leave to withdraw from representation.

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