Face to Face "Man With Gun" Tip = Reasonable Suspicion

US v. Griffin: Griffin pleaded guilty to being a felon in possession of a firearm. The gun at issue was recovered from Griffin's car following a traffic stop. Since the relevant facts are few, I'll just reprint them here from the court's opinion:

The evidence presented during the suppression hearing establishes that the Value-Lodge Motel in Charlotte, North Carolina, was well known to officers of the Charlotte-Mecklenburg Police Department as a location for violent crime and drug trafficking. On the evening of September 28,2005, someone called 911 from a second floor room of the Value-Lodge reporting a man in possession of a gun. The 911 call center relayed this information, including the caller’s room number, to Officer Crystal Lee Clifton, and she responded to the call. Upon arriving at the Value-Lodge, Officer Clifton proceeded to the second floor room from which the call was made and talked with one of the room’s occupants (the "informant") who was aware that the call had been placed. Shortly thereafter, Officer Brian Carey, who was also responding to the 911 call, arrived at the Value-Lodge.1 While Officer Clifton was talking to the informant, a white Cadillac drove past in the parking lot below, and the informant immediately pointed to the vehicle and identified the driver as the man with the gun. Officer Carey returned to his patrol car and pursued the Cadillac which was exiting the Value-Lodge parking lot. He proceeded approximately 50 feet and then entered a nearby parking lot where the Cadillac was turning around. Officer Clifton remained with the informant.

Officer Carey then initiated a traffic stop of the vehicle and its sole occupant, Antonio Griffin. When Griffin exited the vehicle, he "started looking around" and "kept turning around like he was going to take off running." J.A. 27, 43. Officer Carey conducted a Terry frisk of Griffin and, out of concern for his safety, handcuffed Griffin and placed him in the backseat of the patrol car. While Officer Carey was speaking with Griffin, Officer Clifton and another officer arrived on the scene. At this time, an individual approached the officers claiming to know Griffin, and onlookers from the motel gathered at the scene. Officer Clifton thereafter performed a search of the passenger compartment of Griffin’s car, finding a pistol on the driver’s side floorboard. Officer Clifton seized the weapon, and Officer Carey placed Griffin under arrest for carrying a concealed weapon.

Griffin unsuccessfully moved to suppress the gun, the district court concluding that there was reasonable suspicion to make the traffic stop and that the search of the car was justified.

On appeal, the Fourth Circuit affirmed, 2-1. First, the court concluded that there was reasonable suspicion to support the traffic stop. The court noted that, even if the original 911 call was anonymous, the first officer subsequently had a face to face meeting with an informant, which enhanced the credibility of the information provided. Second, the court concluded that the totality of the circumstances showed that Griffin was dangerous and there was a possibility that be might access a weapon if a protective sweep was not done.

Judge Gregory dissented, arguing that the "majority opinion brings the Fourth Amendment two steps closer to a death by a thousand cuts." He went on to argue that neither the Fourth Circuit (until now) nor the Supreme Court has adopted a per se rule that a face to face encounter with an informant is inherently reliable. In this case, "none of the indicia of reliability that normally inhere in such circumstances" were present. He would also hold that, even if the traffic stop was justified, the search of Griffin's car was not.

Court Rejects "Reverse 404(b)" Testimony; Affirms "de facto" Career Offender Sentence

US v. Myers: Myers was convicted of several drug charges after trial and sentenced to 360 months in prison. At trial, Count Five involved an alleged sale of cocaine to a confidential informant who was "working off" an earlier charge for selling cocaine. When cross examined about that charge, the CI admitted to it, but took issue with several details about his behavior in the criminal complaint. The CI's testimony was the only evidence that the transaction took place (no video, I guess). Pursuant to a Government objection, Myers was precluded from calling several police officers to impeach the CI's testimony about those details. At sentencing, Myers was subject to a mandatory minimum of 120 months, but a Guideline maximum of only 121 months. However, the district court agreed with the Government that Myers was a "de facto career offender," departed upward, and imposed a sentence of 360 months.

On appeal, Myers challenged both his conviction on Count Five as well as his sentence. The Fourth Circuit upheld both. As to the conviction, the court rejected Myers's argument that the evidence he sought to introduce about the CI was "reverse 404(b)" evidence about the CI's other crimes or acts. The court held that the evidence had already been presented to the jury during cross examination and the district court did not abuse its discretion in concluding it was of limited probative value. As to the sentence, the court concluded that it was both procedurally and substantively reasonable, holding that the district court's reliance on Myers's criminal history was "thoroughly articulated" and was not an abuse of discretion.

Restitution Not Appropriate for Accessories After the Fact Without Proximate Cause

US v. Squirrel: Squirrel and Slee pleaded guilty to being accessories after the fact to murder. At sentencing, the district court ordered the two (along with another codefendant) to pay more than $5000 restitution for funeral expenses incurred by the victim's family, but indicated it would also order the defendants to pay restitution "for the use and benefit" of the victim's daughter. After a further hearing, the district court ordered the defendants to pay nearly $1.5 million in restitution for that purposes.

Squirrel and Slee appealed the second restitution award on several grounds, only two of which survived after the Fourth Circuit partially granted a Government motion to dismissed based on a waiver of appellate rights in the plea agreements. The two surviving issues where whether Squirrel and Slee could be ordered to pay restitution as accessories after the fact and whether the order of restitution was permitted under their plea agreements.

On the first issue, the court concluded that there is no per se rule prohibiting accessories after the fact from being liable for restitution, but that (as in any case) the victim's loss must be proximately caused by the specific conduct for which the defendants were convicted. In this case, there was not sufficient evidence to conclude that the victim's estate suffered any greater loss due to Squirrel and Slee's conduct (as the Government cogently put it, they did not cause "her to be 'more dead' than she already was"). On the second issue, the court concluded that the plea agreements did not provide a basis for imposing the second restitution award. Therefore, the Fourth Circuit vacated and remanded with instructions to delete the second restitution award.

Congrats to defender office in the WDNC on the win!

Plain View Provides for Seizure of Pistol in Car

US v. Rumley: Rumley was driving a truck that was stopped because its taillights were not working. Once the officer discovered that Rumley was driving on a suspended license, he arrested him and placed him in the back of his patrol car. The officer then went back to the truck to ask the passenger to get out. When he did so, the officer noticed a silver pistol lying on the floor in front of the passenger seat. The passenger was also secured in the back of the patrol car, after which the officer retrieved the gun. Rumley was charged with being a felon in possession of a firearm. He moved to have the gun suppressed, but the district court denied that request.

On appeal, the Fourth Circuit affirmed the district court's decision. It rejected Rumley's argument that the seizure of the gun violated the Supreme Court's recent Gant decision because he was safely secure in the patrol car before the gun was discovered and that the officer had taken the first step towards an illegal search. The court disagreed, holding that the gun came into plain view before the search began and therefore Gant was not applicable.

Broad Consent to Search Allows Seizure of Gun Stuffed Under Mattress at Crime Scene

US v. Coleman: Coleman lived with his girlfriend. One night, as he came home, he asked her to open the garage door for him. Unbeknownst to either, two men had earlier broken into the house and hid away in the garage. When Coleman's girlfriend went to open the garage door, she was attacked. In the struggle that ensued, Coleman was shot. After his girlfriend returned from next door (where she had called 911), Coleman retrieved a pistol from their bedroom and checked to make sure the attackers, who had fled, were out of the house. Coleman gave the gun to his girlfriend, telling her to "put it up" and had his brother take him to the hospital. The girlfriend stashed the gun under the mattress in their bedroom. When police arrived (after Coleman was taken to hospital), the obtained a consent to search the "anywhere in the house" from the girlfriend. Officers followed a trail of blood to the bedroom, searched under the mattress, and recovered the gun.

Coleman was charged with being a felon in possession of a firearm. He filed a motion to suppress the firearm, which the district court granted. The district court concluded that the search under the mattress exceeded the scope of the girlfriend's consent and emphasized that the gun, after investigation, turned out not to have been used by the attackers. On appeal, the Fourth Circuit unanimously reversed. Noting that there was no suggesting that the consent to search was given involuntarily, the court concluded that the search did not exceed the scope of that consent. The consent to search was exceptionally broad and had not been limited verbally by the girlfriend, who told police they could search "anywhere in the house." Furthermore, when officers found the blood trial that led to the bedroom and the discovery of the gun they could not know it was unrelated to the break in they were called to investigate.

Government Breach of Plea Agreement is Plain Error Requiring Reversal

US v. Dawson: Dawson was charged with conspiracy to distribute crack and powder cocaine. He entered into a plea agreement in which the Government agreed to recommend that Dawson receive a two-level offense level reduction for his minor role in the conspiracy. The parties agreed that the final determination of the issue was left to the district court and that the terms of the plea agreement did not bind the court at sentencing. The PSR did not include the reduction and neither party objected to its absence. At sentencing, Dawson did not argue for a reduction, but did argue for a sentence reflecting the fact that he was not a leader or organizer of the conspiracy. The Government countered that he was "critical" to the conspiracy. The district court sentenced Dawson to 70 months in prison, the bottom of the Guideline range calculated without a minor role reduction. In doing so, it noted that Dawson was a "key player" in the conspiracy.

On appeal, Dawson sought resentencing based on the Government's breach of its promise in the plea agreement to recommend a minor role reduction. Applying plain error review (because Dawson did not object to the Government's breach at sentencing), the Fourth Circuit vacated Dawson's sentence and remanded for resentencing. The Government's concession that it breached established that there was error and that it was plain. The court went on to conclude that Dawson's substantial rights were affected because the error affected the sentence imposed by the district court, done as it was based on a Guideline range without the minor role reduction and based, at least partly, on the Government's breaching argument about Dawson's role in the conspiracy. Finally, the court decided to notice the error as the kind that affects the integrity of the judicial system, rejecting the Government's argument that the failure of Dawson and the Government to mention to agreement at sentencing operated as some sort of de facto modification to the plea agreement (which, itself, required all modifications to be in writing).

Court Affirms Drug Conspiracy Conivctions

US v. Johnson: Johnson and her codefendants, Martin and Scott, were convicted of conspiracy and other offenses related to a drug distribution scheme that operated across several states. They raised several issues on appeal, but jointly and severally, seeking the reversal of their convictions. Martin also appealed his sentence. The Fourth Circuit rejected all those argument and affirmed.

First, all three defendants argued that the district court erred by not granting a mistrial when a Government witness took the stand and refused to testify. The Government did so, they argued, knowing the witness would refuse to testify and leave the jury with the impression that she had incriminating evidence to offer against them. The court disagreed, concluding that there was no evidence of Government malfeasance nor any evidence of prejudice resulting from the episode. Second, all three defendants argued that the Government improperly vouched for the credibility of its witnesses during closing argument. The court concluded that the prosecutor's use of phrases like "I think" and "I'm convinced" are not vouching.

Johnson argued that the evidence was not sufficient to convict her, an argument the court turned away with a short paragraph of analysis.

Martin raised four issues. First, he argued that the testimony of two expert witnesses violated his Sixth Amendment confrontation right because they testified based on statements from unidentified witnesses. Crawford, the court held, prohibits the use of testimony hearsay as evidence, but not the use of opinions based on such hearsay. The experts in this case presented their own opinions of the language at issue (from phone calls) and were not mere conduits for the presentation of that language to the jury. Second, Martin argued that a 1980 conviction for armed robbery should not have been admitted for impeachment purposes. The court disagreed, finding that if error was committed (which seems likely), it was not prejudicial. Third, Martin argued that had the Supreme Court's decision in Gall been decided prior to his sentencing hearing the district court would have varied from the 360-month sentence advised by the Guidelines. The court disagreed, holding that it can review only the sentence imposed, without consideration of what the district court might have done in different circumstances. Finally, the court rejected Martin's argument to retroactively impose the amended crack guidelines to his case.

Begay Has No Impact on ACCA Listed Offenses

US v. Thompson: Thompson pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government argued that his six prior North Carolina convictions for "breaking or entering" were crimes of violence and thus Thompson should be sentenced as an Armed Career Criminal. The district court disagreed, concluding that under the Supreme Court's decision in Begay "violent felonies" under the ACCA must have "an element that demonstrates the likelihood that an assailant would come in contact with another person" and that Thompson's prior convictions did not meet that test. The district court sentenced Thompson to 92 months in prison.

The Government appealed and the Fourth Circuit unanimously reversed. The court noted that in pre-Begay cases (Bowden and Thompson) it had held that North Carolina "breaking or entering" convictions were violent felonies under the ACCA. The court concluded that Begay did not upset its prior holdings because its analysis is concerned with crimes other than the ones specifically listed as being violent felonies. Thompson's convictions, which meet the generic definition of "burglary", a specifically listed offense, therefore qualify as violent felonies.

Items Not Specifically Mentioned in Search Warrant Still Within Its Scope

US v. Phillips: Phillips was charged with and convicted of numerous fraud counts related to the fraudulent use of credit cards and businesses called Phydea (and it's associated website, Phydea.com) and Phydea Equity Fund. After an investigation, postal inspectors executed a search warrant at Phillips's home, which specifically authorized the seizure of documents related to Phydea.com and generally items "relating to fraudulent conduct and financial crimes." Among the items seized, after consultation with the US Attorney's office, were documents related to the Phydea Equity Fund. Prior to trial, Phillips moved to suppress the evidence seized because the material exceeded the scope of the seizure authorized by the search warrant. The district court denied the motion, Phillips was convicted at trial, and sentenced to a 121-month term of imprisonment.

Phillips appealed on the issue of the scope of the search and seizure, but the Fourth Circuit affirmed the district court's decision and Phillips's convictions. The court concluded that the items seized fell "comfortably within the warrant's scope," which the court described as "broad and permissive." The court rejected Phillips's reading that would "require us to hold that an item reasonably encompassed by the terms of the warrant somehow falls outside its scope because the item is probative of charges other than those initial charges set forth by the warrant." Given the intermingling of Phillips's frauds and the links between him, Phydea, and Phydea Equity Fund, the officers executing the search warrant were reasonable in seizing items related to all of them.

Court Can't Consult Statement from Related Case to Determine ACCA Applicability

US v. Harcum: Harcum pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was whether Harcum was an Armed Career Criminal, with particular focus on a prior Maryland conviction for second degree assault and whether it was a "crime of violence" under the ACCA.

Harcum was originally charged with assault in the District Court of Maryland in Baltimore City with a supporting Statement of Charges that alleged Harcum punched the victim in the face (sending said victim through a glass window). However, he was not convicted on that charge in that court. Instead, an information was filed in the Circuit Court for Baltimore City, alleging the same offense, on the same day, against the same victim as the District Court charge. However, unlike the District Court charge, the Circuit Court charge did not have an equivalent to the Statement of Charges laying out the offense conduct. Harcum pleaded guilty to second-degree assault based on the information in the Circuit Court.

The issue, both in the district court and in the Fourth Circuit, was whether the district court could look to the Statement of Charges filed in the District Court to determine whether the conviction sustained in the Circuit Court was a crime of violence (the Fourth has previously held that a conviction under the Maryland statute is not per se a crime of violence). The district court concluded that it could and, based on what it found there, concluded that Harcum's conviction was for a crime of violence and sentenced him as an Armed Career Criminal.

The Fourth Circuit disagreed and vacated Harcum's sentence, holding that nothing in the Circuit Court information incorporated the District Court Statement of Charges, either directly or implicitly.

Congrats to the defender office in Maryland on the win!

16-Level Enhancement Requires Actual Trafficking in Prior Offense

US v. Maroquin-Bran: Maroquin-Bran was deported following a 1989 conviction in California for "the crime of SALE OR TRANSPORTATION OF MARIJUANA" (yelling in original statute). He reentered the country illegally in 2002 and was charged with illegal reentry in 2007. After pleading guilty, the main issue at sentencing was whether Maroquin-Bran's prior conviction was a "drug trafficking conviction" that triggered the 16-level enhancement under USSG 2K1.2(b)(1)(A). The district court concluded that it was and sentenced to Maroquin-Bran to 57 months in prison, the bottom of the resulting Guideline range.

On appeal, the Fourth Circuit reversed and vacated for further proceedings. Following in the footsteps of every other circuit to resolve the issue, the court held that in order for the enhancement to apply, the specific offense that the defendant was convicted of committing must be a "drug trafficking offense." It is not enough that the statute under which the conviction was obtained includes both trafficking and non-trafficking offenses. In other words, if the same statute addresses possession and distribution, the enhancement only applies if the prior conviction was actually for distribution, not possession. Because the district court was without that guidance initially, the court remanded the case for a determination of whether Maroquin-Bran's actual conviction was a drug trafficking conviction.

Congrats to the EDNC defender office on the win!

Consideration of Uncharged Conduct at Sentecing OK

US v. Grubbs: Grubbs pleaded guilty to six counts of transporting a minor with intent to engage in sexual activity and six counts of travelling interstate to engage in sexual activity with a minor. Those charges involved two victims. In the PSR, the probation officer set forth allegations from nine other victims of similar conduct by Grubbs in the past.

At sentencing, the district court "expressed its concern" that the Guideline range of 151-188 months was not sufficient to fully account for Grubbs's conduct, as it was based only on the counts in the indictment and did not take into account the additional allegations in the PSR. Over Grubbs's objection, the district court concluded that the uncharged conduct was reliable enough to be used at sentencing and departed upwards both as to offense level and criminal history category, raising the Guideline range to 210-262 months. Grubbs received a 240-month sentence.

On appeal, the Fourth Circuit affirmed Grubbs's sentence. Grubbs's primary arguments on appeal related to the use of uncharged conduct to enhance his sentence.

First, he argued that the sentence violated his Sixth Amendment rights under Booker because the 240-month sentence is unreasonable if based only on the offenses of conviction. In other words, only by using uncharged conduct could the sentence be reasonable (this is essentially the argument from Scalia's dissent in Rita). The court rejected that argument as "nullified by clear Supreme Court and Fourth Circuit precedent" allowing the use of uncharged and acquitted conduct at sentencing. Booker, the court held, did not change that precedent.

Second, Grubbs argued that the sentence violated his Fifth Amendment due process rights because it was based on conduct not proven by clear and convincing evidence. Applying plain error (Grubbs did not specifically object to the use of a preponderance standard), the court concluded there was no error, "plain or otherwise," In doing so, the court concluded that whatever viability the potential exception to the general preponderance standard at sentencing suggested in McMillan v. Pennsylvania - where the enhancement is the "tail that wags the dog of the substantive offense" - has been "nullified" in light of Booker. Adopting a Sixth Circuit formulation, the court explains that challenges to large sentencing enhancements are properly dealt with in terms of Booker reasonableness review, not due process.

The court also rejected Grubbs's argument that the Guidelines had been improperly calculated.

Forced Medication Requries Clear and Convincing Evidence

US v. Bush: Barbara Bush (no, not that one) was charged with two counts of threatening a federal judge. She suffers from "Delusional Disorder, Persecutory Type," which manifests itself in "extreme litigiousness" - she filed more than 100 civil suits since 1995, one of which exploded into this case. As part of that litigation, she wrote a letter to several federal judges whom she believed had wronged her, outlining a theory of self defense (taken from a 1907 treatise) that she concluded would allow her to "slay any of such persons or all of them" (or attempt to "if she misses") who might do her continued harm. A second letter followed shortly thereafter.

After being arrested on the threat charges, Bush was sent to FMC Carswell for an evaluation where she was diagnosed. The evaluation concluded that Bush was incompetent to stand trial but that medication could restore her competency. Bush refused to take the medication, so the Government moved for an order to forcibly medicate her. At one of several hearings, Bush's personal physician agreed with the diagnosis from FMC Carswell, but disagreed that medication would help. One of the FMC Carswell docs testified that despite the "common wisdom" that conditions like Bush's would not respond to medication, he disagreed, partly based a fresh study (done after Bush's evaluation) from FMC Butner. The district court ordered Bush medicated, applying the analysis from Sell v. US.

Bush sought an interlocutory appeal and the district court's order was stayed. On appeal, the Fourth Circuit unanimously reversed the district court and remanded for further proceedings. First, the court held that in order to obtain an order to forcibly medicate a defendant the Government must satisfy all four prongs of the Sell analysis by clear and convincing evidence, rather than a mere preponderance. Applying that standard of proof, the court found the record lacking on the second Sell prong - whether medication will "significantly further" the government's interest in prosecution - and remanded to the district court for further proceedings on that issue. The court also remanded because the district court failed to address whether forced medication was medically appropriate and would serve Bush's best medical interests.

Sex-Related SR Conditions Vacated in Threats Case

US v. Armel: Armel called a local FBI office in Virginia, claiming that the Bureau tried to kill him and owed him money. He called back shortly thereafter and claimed that if he didn't get "paid" the people in the office were "gonna' lose you're [sic] genitalia," that "God promised me he would curse you," and that if "[y]ou come and try to pull on me . . . [y]ou will die." He punctuated the final phone call (of three total) with a warning to "[g]et it straight or fucking die!" Armel was arrested and charged with threatening federal officials under 18 USC 115(a)(1)(B). After being convicted at a bench trial, Armel was sentenced to prison and a term of supervised release term that included special conditions involving pornography, contact with children, and mandated sex offender testing.

Armel appealed both his conviction and his sentence to the Fourth Circuit, which affirmed the conviction but vacated the special conditions of supervised release (Armel's term of imprisonment had ended by the time the case was decided).

On the conviction, the court concluded that there was sufficient evidence to support Armel's conviction, both because the statements at issue were true threats and they were directed to a small group of specific people (the employees in one particular FBI office) even if they were not directed at specific named individuals.

With regards to the supervised release conditions, the court found that, while the district court noted that they were "very rigid," it did not provide any basis for why such conditions were necessary in this case, in light of 3553(a). The conditions were not asked for by the Government, which did not argue that they were appropriate on appeal. Lacking any support in the record, the conditions were vacated and the case remanded for resentencing.

Congrats to the Defender office in the Eastern District of Virginia on the win!