Emerging Issues in Fourth Circuit Criminal Law

Emerging Issues in Fourth Circuit Criminal Law

FOURTH CIRCUIT CRIMINAL LAW UPDATE April 27, 2018 Josh Carpenter & Ann Hester Federal Public Defender Western District of North Carolina Materials Fourth Circuit Decisions Outline, April 2017-March 2018 (Fran Pratt) North Carolina Crime-of-Violence Update (Josh Carpenter)

Online Resources Fourth Circuit Case Summaries and Analysis from FD Offices: http://circuit4.blogspot.com/ UNC School of Government Fourth Circuit Criminal Case Summaries: https:// www.sog.unc.edu/resources/legal-summary-collections/ fourth-circuit-case-summaries Wake Forest Law Reviews Fourth Circuit Blog: http://wakeforestlawreview.com/category/fourth-cir-blog /

Vacancies on the Fourth Circuit: Two Judges Take Senior Status Judge Dennis Shedd (nominee of President G.W. Bush) assumed senior status on January 30, 2018 Judge William B. Traxler, Jr., (nominee of President Clinton) will assume senior status on August 31, 2018

Fourth Circuit Statistics Pretrial and Trial Issues Attorney-Client Relationship: Asset Forfeiture General rule: If the defendant owns the property, he is entitled to use it for his defense. United States v. Chamberlain, 868 F.3d 290 (4th Cir. 2017) (en banc) Federal forfeiture statute, 21 U.S.C. 853, does not authorize pretrial restraint of substitute assets. Overrules circuit precedent construing

853 and other identically-phrased restraint provisions to allow pretrial restraint of substitute assets. United States v. Marshall, 872 F.3d 213 (4th Cir. 2017) Defendant does not have Sixth Amendment right, postconviction, to have untainted substitute assets already forfeited under 21 U.S.C. 853 released in order to pay for appellate counsel of his choice. Fourth Amendment United States v. Bowman, 884 F.2d 200 (4th Cir. 2018) Walled-off traffic stop Officer prolonged the stop once traffic stop was complete.

Rodriguez v. United States, 135 S. Ct. 1609 (2015) No consent: encounter became a seizure when officer told Bowman he was going to question passenger and said, Just hang tight, okay? as he exited the patrol car. No reasonable suspicion: o Rejecting nervousness, esp. carotid artery & no eye contact o Repeatedly rejecting factors when government failed to articulate why they were suspicious and made unsubstantiated assumptions. Practice tips: When arguing a traffic or Terry stop, argue that the seizure occurred as early as possible in the encounter. If it looks like a walled-off stop, specifically ask for

discovery about tips. When the government isnt disclosing its informant, hold them to that: make them either litigate their informants reliability or disclaim reliance on it. Fourth Amendment United States v. McLamb, 880 F.3d 685 (4th Cir. 2018) Playpen dark web CP case FBI obtained a warrant in EDVa permitting 30-day deployment of Network Investigative Technique (NIT) to locate web site users. NIT identified defendant as a Playpen user, then

government seized his hard drive and charged him with receipt and possession of CP. Held: Even if the warrant is unconstitutional, Leon good faith exception applies. o 1st, 3rd, 8th, and 10th Circuits have reached the same conclusion. Fourth Amendment United States v. Bullette, 854 F.3d 261 (4th Cir. 2017) Warrantless vehicle search conducted by DEA at an open field that they had declared a

crime scene for production of PCP. Court affirmed based on inevitable-discovery doctrine. Relying on DEA agents testimony that DEA standard practice called for impoundment of the vehicle as well as safety concerns about explosive compounds that added to the reasonableness of impoundment. Fifth Amendment: Double Jeopardy United States v. Jones, 858 F.3d 685 (4th Cir.

2018) Facts: convicted of 2-month conspiracy in ED VA, then indicted for 12-year conspiracy in WD VA Fifth Amendment violation: The government cannot avoid double jeopardy by splitting one large conspiracy into two. Five-factor test: time period, offense(s), location, coconspirator(s), nature & scope of activities Fifth Amendment: Self-Incrimination United States v. Giddins, 858 F.3d 870 (2017) Basic facts: after coming to police station to pick up his car, defendant signs Miranda waiver and makes inculpatory statements, including lying about his whereabouts on the date of the robbery

Statements and Waiver were involuntary Factor one: unduly coercive to threaten economic harm Factor two: affirmatively lied by telling him he was not in Sixth Amendment: Ineffective Assistance of Counsel Ineffective Assistance of Counsel United States v. Swaby,

855 F.3d 233 (4th Cir. 2017) Its not enough to consult with immigration counsel. Defense counsel must give immigration counsel correct information about the statute of conviction and read the statute to verify immigration counsels advice. United States v. Carthorne, 878 F.3d 458 (4th Cir. 2017) Defense counsel didnt object to use of Va. ABPO as predicate. On direct appeal, 4th Cir. held that designation as career offender wasnt plain error because existing precedent didnt require that conclusion, and there was a circuit split. On collateral review, Court holds that counsels failure to object

amounts to ineffective assistance of counsel: ineffective assistance standard may require that counsel raise material issues even in the absence of decisive precedent. Counsel should have known that the above-stated precedent raised serious questions whether ABPO qualified as a crime of violence under the Guidelines, and that he had a duty to object to Carthorne's designation as a career offender on those grounds. Rules of Evidence: Rules 801 & 404(b) United States v. Recio, 884 F.3d 230 (4th Cir. 2018) 8 months after alleged 922(g) offense, Recio posted rap

lyrics on Facebook: Its Always Tucked, Kuz Ill B Damn If My Life Get Took!! Adoptive admission not hearsay because No quotation marks Didnt attribute to artist No other signal that someone else was the author No other explanation to refute adoption

Not evidence of other acts under 404(b) because he said its always tucked. Thats evidence of this offense. Rules of Evidence: Rule 404(b) United States v. Hall, 858 F.3d 254 (4th Cir. 2017) Defendants conviction for drug and gun charges was based on contraband found in a locked bedroom in a home he shared with three other people. The governments case for constructive possession was weak; no evidence linked defendant to the contraband or the bedroom. Government successfully sought admission of the bare fact of Defendants prior marijuana possession and PWID convictions to prove that he knew the house contained marijuana and had

specific intent to distribute it. Court abused its discretion in admitting evidence of prior convictions. o While prior convictions were relevant to show defendant knew smell of marijuana, they were inadmissible because their probative value was substantially outweighed by unfair prejudice. o Knowledge of marijuana in the house didnt matter much, because there was no evidence that the defendant had access to it. o Nor did the government connect prior convictions to current offense by showing similarity or temporal proximity. Rules of Evidence: Judicial Overreach United States v. Lefsih, 867 F.3d 459 (4th Cir.

2017) Defendant immigrated through the Diversity Immigrant Visa Program At trial, the judge asked a series of questions that conveyed a negative impression of the Visa Program and the people who immigrate through it.

Court reversed conviction, even under plain error review Prize Interlude Name the movie: Your honor, with all due respect: if youre going to try my case for me, I wish you wouldnt lose it. Sentencing Issues

Its a crime-of-violence party! Crime-of-Violence Overview Pay attention to which crime-of-violence definition applies. Do not rely on common sense or intuition. o [W]e may not simply rest our decision on some concept of common sense. Instead, we are obliged to apply the categorical approach . . . .

Mena v. Lynch, 820 F.3d 114, 119 (4th Cir. 2016) (Shedd, J.) Be careful when doing case law research. North Carolina Assaults United States v. Thompson, 874 F.3d 412 (4th Cir. 2017) Assault inflicting serious injury = COV under the residual clause of the old COV guideline (pre-August 2016) BUT this decision is no longer relevant because the new COV guideline does not have a residual clause United States v. Townsend, 886 F.3d 441 (2018)

Intent-to-kill element satisfies force clause (ACCA) What about ADWISI, AISI, etc. under the ACCA and the new COV guideline? Helpful district court cases. See Moore v. United States, 2018 WL 1368362 (W.D. N.C. 2018) (Reidinger, J.); United States v. Geddie, Robbery United States v. Burns-Johnson, 864 F.3d 313 (4th Cir. 2017) RWDW (14-87) satisfies force clause (ACCA) United States v. Gattis, 877 F.3d 150 (2017) Reminder: NC common law robbery is not an ACCA violent felony under

Gardner (2016) BUT: it does qualify as generic robbery under the new COV guideline Other Robbery Offenses United States v. Jackson, 713 F. Appx 172 (2017) (unpublished): Georgia robbery does not count as generic robbery under the COV guideline because it encompasses a sudden snatching offense United States v. Salmons, 873 F.3d 446 (2017): West Virginia aggravated robbery satisfies the force clause Hobbs Act Robbery NOTE: This might be the most confusing slide in the presentation Hobbs Act robbery SHOULD NOT count as

generic robbery Why? Because it extends to force or threats of force against property, not against a person. See United States v. OConnor, 874 F.3d 1147 (10th Cir. 2017) United States v. Hunt, 701 F. Appx 288 (2017): Judge Niemeyers comments at oral argument Reminder: this also means it cannot be the instant offense BUT a substantive Hobbs Act robbery might still count as a crime of violence under 18 U.S.C. 924(c) to support a consecutive sentence

Conspiracy United States v. McCollum, 885 F.3d 300 (2018) RICO conspiracy to commit murder, 18 U.S.C. 1959(a)(5), is not a crime of violence under the new COV guideline Generic conspiracy under the guideline requires an overt act Implications: NC conspiracy offenses, including RWDW conspiracy and drugtrafficking conspiracy Federal drug trafficking under 846 Hobbs Act conspiracy Manslaughter

United States v. Smith, 882 F.3d 460 (2018) North Carolina voluntary manslaughter satisfies ACCAs force clause Note: involuntary manslaughter does not. See United States v. Peterson, 629 F.3d 432 (4th Cir. 2011) United States v. Middleton, 883 F.3d 485 (2018) SC involuntary manslaughter which includes selling alcohol to a minor that results in death does not qualify under ACCA Burglary

Castendet-Lewis v. Sessions, 855 F.3d 253 (2017) Virginia burglary is not generic, both because it proscribes entry without breaking and because it extends to burglary of vehicles United States v. Mack, 855 F.3d 581 (2017) Conspiracy to commit North Carolina first-degree burglary qualifies under the residual clause of the old COV guideline Note: burglary no longer in COV guideline Cert Grant in Stitt and Sims Prize Interlude Q: In My Cousin Vinny, what crime did Billy

Gambini and Stan Rothenstein actually commit? Other Sentencing Issues: Substantial Assistance USSG 5K1.1 United States v. Concha, 861 F.3d 116 (4th Cir. 2017) District court may not consider factors unrelated to assistance when determining sentence after grant of departure motion under USSG 5K1.1 and 18 U.S.C. 3553(e). United States v. Spinks, 770 F.3d 285, 287 (4th Cir. 2014); United States v. Hood, 556 F.3d 226, 234 n.2 (4th Cir. 2009). Other factors may only be considered in determining pre-departure sentence.

Court of Appeals has jurisdiction to review extent of departure if it resulted from an incorrect application of the Guidelines. Note: Rule 35 permits court to take other factors into account when determining extent of departure based on post-sentencing assistance. Other Sentencing Issues: Gun Enhancement in Drug Cases United States v. Bolton, 858 F.3d 905 (4th Cir. 2017) USSG 2D1.1(b)(1): allows 2-level enhancement if firearm was possessed in connection with a drug trafficking offense unless defendant shows connection

between firearm and drug offense was clearly improbable In a drug conspiracy case, evidence is sufficient if it shows a weapon found in a place where the conspiracy was carried out or furthered. Discovery of rifle and shotgun in defendants bedroom two years after the end of charged marijuana conspiracy was sufficient for application of the enhancement when $912 in cash and 400 grams of marijuana were found alongside them. The cash and drugs made this part of the same course of conduct or common scheme as offense of conviction. It also made link between firearms and offense not clearly improbable.

Important: weapons enhancement doesnt necessarily foreclose safety-valve reduction. Other Sentencing Issues: Gun Enhancement in Drug Cases United States v. Mondragon, 860 F.3d 227 (4th Cir. 2017) Enhancement applied based on statements from two co-conspirators that they saw defendant with handguns. Defendants closest co-conspirator said defendant broke down a gun at co-conspirators house. Held: possession and display of gun at home of

closest drug-trafficking associate linked firearm temporally and spatially to the conspiracy. Other Sentencing Issues Obstruction Under USSG 3C1.1 United States v. Savage, 885 F.3d 212 (4th Cir. 2018) Applies when defendant provides materially false information to a probation officer in respect to a presentence or other court investigation. Defendant made false statements during pretrial interview, and those statements

were introduced in detention hearing. Tip: Its a bad idea to use your fake I.D. in your pretrial services interview. Other Sentencing Issues: Minor Role United States v. Carbajal, 2018 WL 636724 (2018) (unpublished) OLD RULE: critical inquiry is whether defendants actions were material or essential to committing the offense United States v. Powell,

680 F.3d 350 (4th Cir. 2012) (quoting United States v. Pratt, 239 F.3d 640 (4th Cir. 2001)). NEW RULE: five factor test under Amendment 794, effective Nov. 1, 2015. o Amendment 794 abrogates our prior holding in Powell. Carbajal, 2018 WL 636724, at *5. o The criticial inquiry under 794 is whether the defendant

was substantially less culpable than the average participant in the broader criminal activity for which he was convicted. Id. at *6. Other Sentencing Issues: Court Must Address Mitigating Arguments United States v. Blue, 877 F.3d 513 (4th Cir. 2017) Defendant asked for a belowGL sentence and made 8 arguments in support of that sentence. Court sentenced at low end, addressing only 2 of

defendants 8 arguments. Held: sentence is procedurally unreasonable. Court must address parties nonfrivolous arguments in favor of a particular sentence and explain whether and why it The End.

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