Wake Forest Law Review
29Oct

Former Governor Bob McDonnell’s Conviction Affirmed for Role in Bribery Scheme

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By Daniel Stratton

On July 10, 2015, the Fourth Circuit affirmed the conviction of former Virginia Governor Robert McDonnell on eleven corruption charges stemming from bribes he and his wife, Maureen McDonnell, had accepted from Jonnie Williams, CEO of Star Scientific Inc. The Fourth Circuit provided an explanation for affirming the conviction in a published opinion in the criminal case U.S. v. McDonnell. The appellant, Gov. McDonnell, alleged several errors in the district court. Primarily, Gov. McDonnell challenged the district court’s jury instructions and the sufficiency of the evidence presented at trial. He also argued that the district court erred by refusing to sever his trial from his wife’s, by violating his Sixth Amendment rights in the voir dire process, and by making several erroneous evidentiary rulings. The Fourth Circuit, after reviewing each of Gov. McDonnell’s claims, affirmed his conviction.

Gov. McDonnell and Jonnie Williams Begin a Mutual Quid Pro Quo Relationship

Prior to his election as governor of Virginia in November 2009, Gov. McDonnell had suffered financial setbacks as a result of the economic downtown. Gov. McDonnell and his sister owned and operated Mobo Real Estate Partners LLC, a business that was losing money on a pair of beachfront rental properties. At the time of the 2009 election, Mobo was losing more than $40,000 each year. The Governor and his wife were also accumulating large amounts of credit card debt, which had reached more than $74,000 at the time of his inauguration in January 2010.

Mr. Williams was the founder and CEO of Star Scientific. At the time of Gov. McDonnell’s election, the company was preparing to launch a new dietary supplement called Anatabloc. Star Scientific was in the process of getting Anatabloc classified as a pharmaceutical by the U.S. Food and Drug Administration. To receive a pharmaceutical classification Anatabloc would need to undergo extensive testing and studies, which required funding beyond what Star Scientific means. As a result, the company was looking for outside research and funding.

Gov. McDonnell first met Mr. Williams in December 2009. Mr. Williams had allowed Gov. McDonnell to use his plane throughout his campaign for governor, but the two did not officially met until December, when the Governor-elect had dinner with Mr. Williams to thank him for his support.

In October 2010, the two met again on Mr. Williams’ personal plane during a trip from California back to Virginia. On this flight, Mr. Williams “extolled the virtues of Anatabloc” to Gov. McDonnell and explained that he needed the Governor to help Star Scientific find a place for testing of the product in Virginia. The Governor agreed to introduce Mr. Williams to Virginia’s secretary of health and human resources.

In April 2011, Mr. Williams took Mrs. McDonnell on a shopping spree, which totaled approximately $20,000, while she and the Governor were attending a political rally in New York. Over the next month, Gov. McDonnell and his wife met and communicated with Mr. Williams about Anatabloc. During this time, the Governor reached out to his sister for information on Mobo’s finances and to his daughter to find out how much money the family still owed for her forthcoming wedding.

On May 2, 2011, Mrs. McDonnell met with Mr. Williams and explained her family’s financial troubles. At this meeting, Mrs. McDonnell told Mr. Williams that she had the Governor’s blessing, and that she could help Mr. Williams with securing research for Anatabloc, provided that he helped her with the family’s financial situation. At this meeting, Mr. Williams agreed to loan the McDonnells $50,000 and to provide the remaining $15,000 for their daughter’s wedding. After the meeting, Mr. Williams called Gov. McDonnell to say that he was willing to help with their financial problems and to confirm that the Governor was on board with the plan. Gov. McDonnell replied “Thank you.”

Over the next year, Mr. Williams provided the McDonnell family with expensive vacations, gifts, and additional loans. Mrs. McDonnell twice bought stock in Star Scientific, and unloaded the stocks before they would have to reported on a required financial disclosure form, known as a Statement of Economic Interest.

Throughout this time, Gov. McDonnell and his wife held the Anatabloc launch at the Governor’s Mansion, contacted the state secretary of health and human services about conducting Anatabloc studies at the Medical College of Virginia and the University of Virginia School of Medicine, reached out to the schools when Mr. Williams believed the studies were proceeding too slowly through the school administration, and attempted to persuade the state’s secretary of administration to include Anatabloc in the state employee health plans.

On January 21, 2014, the McDonnells were indicted by a federal grand jury sitting in the Eastern District of Virginia on a fourteen-count indictment. On September 4, 2014, a jury convicted Gov. McDonnell on eleven counts of corruption. Gov. McDonnell was sentenced to two years in prison, followed by two years of supervised release. Gov. McDonnell appealed to the Fourth Circuit, citing a multitude of alleged errors.

The Fourth Circuit Quickly Dispenses with Severance, Voir Dire, and Evidentiary Arguments

While Gov. McDonnell offered a long list of alleged errors at the district court level, the Fourth Circuit quickly disposed of several of the Governor’s allegations before turning to his more substantive challenges. Gov. McDonnell first challenged the district court’s refusal to sever his trial from his wife’s trial. Generally, if multiple defendants are indicted together, courts have held that they should be tried together. In order to have a motion for severance granted, a defendant must show that he has a bona fide need for a co-defendant’s testimony and that co-defendant would waive Fifth Amendment privilege and testify. He must also demonstrate to the court the substance of the testimony and how that testimony would exculpate him.

The Fourth Circuit found this argument to be unpersuasive because Gov. McDonnell offered “only vague and conclusory statements regarding the substance of Mrs. McDonnell’s testimony.” While Gov. McDonnell did offer to share a more detailed description of Mrs. McDonnell’s testimony, it was conditioned on the review of the evidence being ex parte. The lower court found this would violate the concept of due process, because such a review would have prevented the Government from challenging the evidence. The Fourth Circuit found the trial court did not err in that conclusion.

Gov. McDonnell also argued that the district court violated his Sixth Amendment right to an impartial jury because the court polled the potential jurors as a group instead of questioning them individually on whether they could put aside any information they had heard about the case prior to trial. Jury selection remains largely at the discretion of the trial judge and courts generally cannot apply a hard and fast rule for voir dire.

Here, the Fourth Circuit determined that the trial court had correctly proceeded with voir dire. The jury questionnaire used by the court was largely based off of one the parties had jointly submitted. Gov. McDonnell argued that the question asked of the jurors—if they had “expressed” an opinion, instead of formed an opinion—was problematic. However the Fourth Circuit also found that McDonnell bore most of the responsibility for that question, as the version originally proposed by his attorneys invited the potential jurors “to deliberate on [McDonnell’s] guilt or innocence before the case had even started. Additionally, the Fourth Circuit noted that there had been no contention that any actual juror bias had occurred.

As for Gov. McDonnell’s arguments that the district court made multiple erroneous evidentiary errors, the Fourth Circuit found that none of those findings were clearly erroneous. Evidentiary rulings are reviewed for an abuse of discretion, and the circuit court gives significant deference to the district court’s decisions. A district court abuses its discretion “if its conclusion is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” Because none of the evidentiary issues raised by Gov. McDonnell demonstrated an erroneous decision by the trial court, the Fourth Circuit concluded that none of the district court’s evidentiary rulings should be overturned.

Jury Instructions and Sufficiency of Evidence in the Fourth Circuit 

Gov. McDonnell’s most substantive arguments on appeal concerned the jury instructions given by the trial court and the sufficiency of the evidence used to support his conviction. Gov. McDonnell argued that the jury instructions defined bribery far too expansively. When reviewing jury instructions, the appellate court looks at the instructions as a whole and decides whether the instructions accurately state the controlling law. Even if the instructions do not correctly state the law, a circuit court can still find the error to be harmless.

The relevant definition of bribery is “corruptly demanding, seeking, or receiving anything of value in return for being influenced in the performance of any official act.” In the context of bribery, an official act is defined as “any decision or action on any [matter] . . . which may at any time be pending . . . before any public official.” The Fourth Circuit has found that the term “official act” however, does not encompass every action taken by a public official in an official capacity.

An “official act” is not required to be an act explicitly conferred upon an official by a statute. In U.S. v. Birdsall, the Supreme Court explained that an action may be classified as “official” even if it is not explicitly prescribed by statute or a written rule so long as it is found in the “established common usage” of the position. While an official act may be an action that a public official customarily performs, this does not mean that every act an official performs “as a matter of custom” is an official act. Job functions of a public official which are completely ceremonial or educational will usually not fall within the definition of an “official act” in the context of the bribery statute.

Gov. McDonnell also argued that the Government’s evidence was insufficient to support his conviction. On appeal, the Fourth Circuit reviews evidence in the light most favorable to the Government, and if there is substantial evidence supporting a jury conviction, it will be affirmed. In order to prove a quid pro quo arrangement, the government must provide evidence that shows a “specific intent to exchange money (or gifts) for specific official action.”

The Fourth Circuit Finds Jury Instructions were Appropriate and that There was Sufficient Evidence to Convict the Governor

The Fourth Circuit found Gov. McDonnell’s arguments unpersuasive. Gov. McDonnell argued that the jury instructions were too broad because of how they defined an official act. The Governor argued that under this definition, almost anything done by a public official could be construed as an official act, including routine functions such as attending a luncheon or organizing a meeting. Gov. McDonnell claimed that such activities can never constitute an official act and thus the district court incorrectly defined that term in its jury instructions.

The Fourth Circuit did not buy this argument, because the meaning of “official act” as used in the definition of bribery is connected to decisions or actions on matters that may come before the government, not simply any customary act. The court pointed out that the bribery statute criminalizes “corruptly demanding, seeking, or receiving anything of value in return for being influenced in the performance of any official act.” By this definition, the crime is completed when the bribe is either solicited or accepted, regardless of whether or not the “official act” is ever completed (or even started). Further, the court observed, the official act can be an act outside of the bribe recipient’s control, thus it does not matter if the bribe recipient has actual authority over the end result being sought. In his role as Governor, McDonnell had power to influence other public officials and obtain the results Mr. Williams was seeking.

The Fourth Circuit also found that the trial court did not err by denying Gov. McDonnell’s proposed jury instructions, which stated that “merely arranging a meeting, attending an event, hosting a reception, or making a speech” could never constitute an official act. The court found that such a broad statement was unsupported by case law and precedent.

Turning to the strength of the Government’s evidence, the Fourth Circuit dismissed Gov. McDonnell’s claims of insufficiency. The Government presented evidence on three specific matters within the Governor’s sphere of influence: (1) whether researchers at Virginia’s universities would initiate a study on Anatabloc; (2) whether the state Tobacco Commission would provide grant money for studying the active ingredients in Anatabloc; and (3) whether the state health insurance plan would include Anatabloc as a covered drug. The Government did not need to show that Gov. McDonnell actually took official action, but only that there was a corrupt agreement with an expectation that some type of official action would be taken. The Fourth Circuit found that the Government exceeded its burden by showing that the Governor actually used his power to influence government decisions.

The Government also succeeded in showing a quid pro quo relationship by demonstrating a close temporal relationship between Mr. Williams’ gifts and Gov. McDonnell’s actions supporting Anatabloc. The Fourth Circuit noted that Williams’ gifts were not gifts from one friend to another by pointing out that Mr. Williams and Gov. McDonnell did not even know each other until after Gov. McDonnell had been elected. The court concluded that the evidence was such that a jury could readily infer that there were multiple quid pro quo payments and that Gov. McDonnell was acting with corrupt intent.

Fourth Circuit Affirms Gov. McDonnell’s Conviction 

The Fourth Circuit affirmed Gov. McDonnell’s conviction on appeal because a review of the record demonstrated that the Governor received a fair trial and was duly convicted by a jury.

 

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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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16Oct

Fourth Circuit Finds Government Failed to Disclose Impeachable Evidence in Gambling Case

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By Paige Topper

On June 25, 2015, in the criminal case of United States v. Parker, a published opinion, the Fourth Circuit vacated the defendants’ convictions of illegal gambling. The Fourth Circuit found that the government failed to disclose material impeachment information relating to a government witness who testified about a fifth participant in the gambling operation.

Fifth Participant Requirement Under 18 U.S.C. § 1955

Jack Parker and Douglas Taylor (“Defendants”) were convicted for conducting an illegal gambling business under 18 U.S.C. § 1955. Section 1955 defines an illegal gambling business in part as a business that involves five or more persons who partake in all or part of the business (“five-participant requirement”). At the trial court level the Defendants stipulated that they operated a sports gambling business together. The government claimed that Defendants were linked to another two-person gambling operation conducted by Brett Parker and Bryan Capnerhurst. The government further argued that because Defendants and the other gambling business shared both clients and the proceeds or losses from those clients, Brett, Bryan, Jack, and Douglas all participated in the same gambling business.

In order to meet the five-participant requirement, the government presented several theories. One of the theories was that Brett’s wife, Tammy Parker, participated in the business by using the gambling income for family expenses and maintaining the financial records. In support of this theory, the government provided testimony from its witness, Ben Staples, who claimed that he assisted Tammy in preparing federal tax returns in which she disclosed the income from the gambling business. The government also presented evidence that Tammy would occasionally accept payments for bets when Brett was not home.

Prior to Defendants’ trial, the government received notice that the Securities and Exchange Commission was investigating Ben Staples for fraud. However, the government did not disclose this information to Defendants’ attorneys. It was only after Defendants were found guilty of illegal gambling that their defense counsel learned of the SEC complaint. Defendants requested a new trial based on the government’s failure to disclose impeachment evidence as required by Brady v. Maryland. The trial court concluded that the government did not violate Brady because the SEC investigation was not material evidence.

Establishing a Brady Violation

The Supreme Court in Brady held that suppression of evidence that favors the defendant violates due process when the evidence is material to guilt or punishment. To establish a Brady violation, a defendant must show (1) that the undisclosed information was favorable, either because it was exculpatory or impeaching, (2) the information was material, and (3) the prosecution knew about the evidence and failed to disclose it.

Defendants Proved All Three Prongs of Brady Violation

First, the Fourth Circuit concluded that the SEC investigation of Ben Staples was favorable because it was impeaching. The Fourth Circuit reasoned that the evidence of the investigation would have demonstrated Staples’ potential desire to receive favorable treatment in his fraud case by testifying as a government witness in this case. Furthermore, the evidence would show Staples’ untruthful character.

Second, the Fourth Circuit found that the SEC investigation was material. At trial the jurors were not asked to specify the identity of the fifth participant in the gambling business and thus the Fourth Circuit could not know whether any juror relied on Tammy’s involvement to satisfy the five-participant requirement. However, the Fourth Circuit determined that, based on the relative strengths of the government’s theories for the five-participant requirement, there was a reasonable probability that at least one juror viewed Tammy as the fifth participant. Thus, the Fourth Circuit looked to whether impeaching Staples’ testimony would have had a reasonable probability to change a single juror’s view of Tammy’s involvement in the gambling business. The Fourth Circuit found that Staples’ testimony is the only evidence that firmly established Tammy’s active management of the gambling proceeds and thus the testimony provided critical evidence to support the government’s theory that Tammy was the fifth participant.

The Fourth Circuit did not explicitly address the third prong of the Brady test, but held that the government violated its obligation under Brady by failing to disclose the evidence of the SEC investigation to defense counsel. The Fourth Circuit was not persuaded by the government’s argument that a Brady violation had not occurred because Defendants were aware of the SEC investigation. While Jack and Brett might have been aware that Ben Staples was involved in a scam, the Fourth Circuit concluded this evidence was not enough to relieve the government from its disclosure obligations under Brady.

Fourth Circuit Vacated Defendants’ Convictions and Remanded

The Fourth Circuit held that the government violated its disclosure obligations under Brady by failing to disclose impeachable evidence relating to Ben Staples, a government witness. In particular, the Fourth Circuit concluded that the SEC investigation was material to the outcome of the case. Therefore, the Fourth Circuit vacated the convictions and remanded. The Fourth Circuit noted that it did not enter judgments of acquittal because, while the evidence is not overwhelming, the government formed a sufficient basis for defendants’ convictions for illegal gambling under § 1955.

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14Oct

Fourth Amendment Protections Weakened in Deportation Proceedings

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By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.

 

The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.

 

The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.

 

The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”

 

The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.

 

Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.

 

The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.

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5Oct

Limited Evidence Sources and Preponderant Evidence Standard Are Required For Enhanced Sentencing Under Armed Career Criminal Act

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By Taylor Ey

On June 8, 2015, the Fourth Circuit issued its published opinion in the criminal case United States v. Span.  The United States prosecuted Defendant Gary Span in the United States District Court for the Western District of North Carolina, and Span was sentenced to a mandatory minimum sentence of fifteen years in prison pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”).  Span appealed the decision, and the Fourth Circuit vacated and remanded for resentencing.

Facts of the Felony Charge and the Sentencing Hearing

Span was indicted and charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).  He pleaded guilty.  At the sentencing hearing, the government argued for enhanced sentencing for this conviction under the ACCA.  According to the government, Span’s criminal record included several previous convictions, all violent felonies committed on separate occasions, and thus enhanced sentencing was warranted.  Span challenged the government’s argument that he was an armed career criminal, stating that the documents upon which the government was relying to show his previous convictions were ambiguous, the ambiguity was to be construed in his favor, and the sentencing enhancement should not be applied.  The district court sided with the government, finding that three of Span’s previous robbery convictions supported the enhancement.  Even though two of the robberies occurred at the same location and involved the same corporate victim, each offense involved a different individual victim who was in danger according to the district court.

Enhanced Sentencing Under the ACCA Requires Three Previous Convictions “Committed on Occasions Different from One Another”

The government must show by preponderant evidence that the defendant committed three previous violent felonies or serious drug offenses on separate occasions for enhanced sentencing of the defendant under the ACCA.

Mixed Question of Law and Fact

The Court reviewed the district court’s legal conclusions de novo and its factual findings for clear error.  The legal conclusions, according to the Court, were whether Span’s qualifying convictions were committed on occasions separate from one another.  The Court looked to the district court’s factual findings that supported its legal conclusions and found that they were in clear error, and thus could not hold, as a matter of law, that the robbery offenses were “committed on occasions different from one another.”

The Judicial Factfinding at Sentencing Was Not Properly Limited in the Sources of Evidence and  Was Clear Error

A sentencing judge may examine a limited number of resources in cases involving prior guilty pleas, including the charging document, plea agreement, and the plea transcript between judge and defendant or comparable document.  In this case, there was a question of when Span’s three previous robberies occurred, and the sentencing judge was limited to the approved documents.  According to the Fourth Circuit, the sentencing judge clearly erred in finding that the documents proved by preponderant evidence that the three offenses were committed on separate dates.

The Previous Crimes Did Not Arise Out of Separate and Distinct Criminal Episodes

The Court looked to the same limited resources for facts applicable to a multi-factor test to determine whether the previous crimes arose out of separate and distinct criminal episodes.  The factors examined by the Court were “(1) whether the offenses arose in different geographic locations; (2) whether the nature of each offense was substantively different; (3) whether each offense involved different victims; (4) whether each offense involved different criminal objectives; and (5) whether the defendant had the opportunity after committing the first-in-time offense to make a conscious and knowing decision to engage in the next-in-time offense.”  Because the weight of the factors did not demonstrate that Span’s previous robbery convictions were separate and distinct criminal episodes, the district court erred in applying the ACCA enhancement to Span’s sentence.

The Fourth Circuit Vacated and Remanded for Resentencing

Because the United States government failed to prove by preponderant evidence that Span’s prior felonies were separate and distinct episodes for purposes of evoking the mandatory sentencing under the ACCA, the Fourth Circuit vacated the district court decision and remanded the case.

One Judge Dissenting

In this case, the dissenting judge disagreed with the majority, noting that the district court properly found sufficient facts in the evidence presented to it by the United States government.  The district court’s factual findings are afforded great deference under the applicable standard of review, and therefore, according to the dissenter, the district court’s findings must be upheld because they were plainly permissible. While the district court’s findings may admittedly appear unjust, the district court applied the proper standard according to precedent: a preponderance of the evidence. Because the district court was not in clear error when it found that the three prior incidents occurred on separate dates by a preponderance of the evidence, the dissenter could not agree with the majority’s decision.

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22Sep

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

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By Anthony Biraglia

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

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

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

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

Abuse of Discretion

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

Granting the Pre-Trail Motions Was Too Restrictive

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

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

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

Reversed and Remanded

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

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7Apr

Fourth Circuit Affirms Sentencing Judgment

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By Katharine Yale

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

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

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

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

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

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

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

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

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

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

The Fourth Circuit Affirmed the District Court’s Judgment

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11Feb

Prior Bad Acts Held Admissible to “Complete the Story”

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By Joshua P. Bussen

Yesterday, February 10, 2015, in the criminal case of United States v. McGee, in an unpublished opinion, the Fourth Circuit affirmed the decision of the District Court for the Northern District of West Virginia convicting the defendant, Michael McGee, of conspiracy to possess cocaine with intent to distribute.

 Defendant Cries Foul on Multiple Issues

McGee was convicted by a jury of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012). On appeal he claimed that: (1) the district court erred in admitting evidence pursuant to Federal Rule of Evidence 404(b); (2) there was insufficient evidence to convict him; (3) the district court violated McGee’s constitutional right to be present during discussion and formulation of a response to a jury question during deliberations; (4) the district court erred in designating McGee a career offender; and (5) the district court erred in applying a two-level enhancement to his sentence for obstruction of justice.

 Prior Bad Acts are Admissible to Complete the Story of McGee’s Conspiracy

McGee claimed that the district court violated Federal Rule of Evidence 404(b) by allowing presentation of evidence to the jury of five controlled buys in November 2012 by a government informant. He claimed the prosecution was using these previous bad acts to “pollute the waters” of his conspiracy charge, because the acts were too remote in time and geography to be relevant.

The Fourth Circuit first held that the prior bad act evidence was relevant because it tended to prove that McGee was in fact a part of an illegal conspiracy.  Fed. R. Evid. 401.  It then determined that the evidence was not barred by 404(b). Rule 404(b) prohibits the admission of “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accord with the character.” The rationale for this rule is that the cards are already stacked against the defendant and juries are apt to punish defendants for their previous crimes. However, evidence of other bad acts may be introduced for another purpose, including if it concerns “acts intrinsic to the alleged crime.” Here, the Fourth Circuit held that the prior buys were necessary to complete the story and were necessary to prove the defendant was involved in a conspiracy, and thus did not run afoul Rule 404(b).  Finally, the court found that the probative value of this evidence was not “substantially outweighed by a danger of . . . unfair prejudice,” and was thus admissible.  Fed. R. Evid. 403.

There Was Sufficient Evidence to Convict McGee

McGee next claimed that the jury had insufficient evidence to convict him. Generally, “[t]he jury verdict must be sustained when there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction.” The Fourth Circuit dismissed this argument easily, finding that the record held ample evidence of the defendant’s, and his coconspirator’s, cocaine trade.

 McGee’s Absence During a Jury Question did not Constitute Reversible Error

The defendant next claimed that the district court violated his constitutional right to be present during discussion and formulation of a response to a jury question during deliberations. Federal Rule of Criminal Procedure 43 provides that a defendant has the right to be present at every stage of trial, including when the judge communicates with the jury. However, in this case, the Fourth Circuit found that although the defendant was absent during a portion of a discussion regarding a jury question, that he was not gone for long, that the court had the record read back to him and then continued with the bulk of the conversation in his presence, and that the defendant only raised the issue on appeal. Therefore there was no reversible error.

 McGee Was Properly Considered to be a “Career Offender,” Which Made the Two-Level Enhancement Irrelevant

Finally, McGee claimed that the district court committed reversible error in designating McGee as a career offender and also for applying a two-level sentencing enhancement for obstruction of justice. The Fourth Circuit found that the career offender designation warranted a higher punishment than the two-level enhancement, rendering the enhancement moot.

As to the career offender issue, the record showed that McGee had been arrested for aggravated robbery in 1989, and for drug trafficking in 2004 and 2009. The federal sentencing guidelines hold that “a defendant is a career offender if he was at least eighteen years old at the time of the instant offense, the instant offense is a drug felony or crime of violence, and the defendant has at least two prior felony convictions for drug offenses or crimes of violence.” McGee was older than eighteen at the time of this offense and each of his three prior convictions qualified for the higher sentencing guideline; therefore, the Fourth Circuit dismissed this claim as well.

Because the Fourth Circuit found no reversible error, the conviction of Michael McGee was affirmed.

 

 

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6Feb

Showing Pornographic Videos Found on Defendant’s Computer Does Not Violate Rule 403

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By Lauren D. Emery

In U.S. v. Warrick, an unpublished criminal opinion released February 6, 2015 the Fourth Circuit affirmed the district court’s ruling regarding the admissibility of evidence under Rule 403.

Defendant Alleges Prejudice After Judge Admits Pornographic Video Clips

Marcus Warrick was sentenced to 180 months in prison followed by supervised release for life after being convicted of six counts of receiving child pornography.  Warrick argues that the district court abused its discretion by allowing the State to show clips from seven different pornographic videos found on his home computer, despite his offer to “stipulate that the videos met the definition of child pornography.”

Highly Deferential Review for District Court’s Decisions on Evidence Admissibility

Federal Rule of Evidence 403 states that relevant evidence should be excluded only when “substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”  In the context of Rule 403, prejudice refers to evidence which would tend to cause a trier of fact to make its decision based on an improper basis.  The Fourth Circuit confirmed that it applies a “highly deferential standard of review” in such matters and that “a trial court’s decision to admit evidence over a Rule 403 objection will not be overturned except under the most extraordinary circumstances, where that discretion has been plainly abused.”

Showing Clips of Pornography Found on Defendant’s Computer Does Not Violate Rule 403

In its review of the record, the Fourth Circuit held that the district court did not abuse its discretion in admitting the video tapes found on Mr. Warrick’s computer.

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29Jan

Fourth Circuit Determines Miranda Warning Was Not Required

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By Evelyn Norton

Today, in an unpublished per curiam opinion, United States v. Hartsoe, the Fourth Circuit affirmed the decision of the U.S. District Court for the District of South Carolina convicting Jerry Elmo Hartsoe of mail fraud and making false statements.

Hartsoe Argued His Statements Were Improperly Admitted into Evidence

In the District Court, the jury convicted Hartsoe of eight counts of mail fraud and one count of making false statements.

On appeal, Hartsoe argued that the Fourth Circuit should vacate the District Court’s decision.  Hartsoe alleged that the District Court improperly allowed into evidence statements Hartsoe made before law enforcement read Hartsoe his Miranda Rights.

Miranda Warnings are Not Required if the Suspect is Not in Custody

Citing Miranda v. Arizona, the Fourth Circuit stated that Miranda warnings are indisputably required when a suspect is interrogated while in custody.  For Miranda purposes, a suspect is “in custody” when the suspect’s freedom of action is curtailed to a degree associated with formal arrest.  Thus, a reasonable person in the suspect’s position would believe he was “in custody.”

Hartsoe Was Not In Custody

Here, however, the Fourth Circuit determined that Hartsoe’s presence was voluntary.  When Hartsoe first arrived to the scene, law enforcement asked Hartsoe to leave.  Hartsoe’s testimony indicated he was not intimidated, but was aggressive and demanding at the scene.  Later, law enforcement told Hartsoe that he was not under arrest and was free to leave.  As a result, the Fourth Circuit found it unlikely that a reasonable person in Hartsoe’s position would have believed himself to be in custody.  Thus, no Miranda warnings were required and Hartsoe’s statements were properly admitted into evidence.

Court of Appeals for the Fourth Circuit Affirmed

The Fourth Circuit Affirmed Hartsoe’s convictions, finding the District Court did not err in allowing Hartsoe’s statements into evidence.

 

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12Nov

Defendant Denied on Appeal of Two Motions and an Admission

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By: Carson Smith

Today, in United States v. Mormon, an unpublished opinion, the Fourth Circuit affirmed the district court’s conviction of defendant, Kevin Mormon. The District of Maryland convicted the defendant of “conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. § 846.” On appeal, Mormon challenged the district court’s denial of his motion to suppress, admission of statements made by a co-conspirator, and failure to grant his motion for mistrial based on improper remarks made by the Government during closing arguments.

The District Court’s Denial of Mormon’s Motion to Suppress Was Proper Because His Statements Were Voluntary.

Mormon argued that the district court erred by refusing to suppress statements made by Mormon to law enforcement officers. In assessing a motion to suppress, appellate courts review legal conclusions de novo and factual findings for clear error.

The Fourth Circuit concluded that the statements made by Mormon to the officers were voluntary. Under Miranda v. Arizona, any statement extracted from a defendant through threats of violence, direct or implied promises, or improper influence is involuntary and thus inadmissible in court. Essentially, “the proper inquiry is whether the defendant’s will has been overborne or his capacity for self-determination critically impaired.” While Mormon claimed that the statements were only made after the officers promised to release him in exchange for his cooperation, the Fourth Circuit determined that the officers did not explicitly promise him anything in exchange for his cooperation. Furthermore, the Fourth Circuit found it persuasive that Mormon had refused to reveal his cocaine distributor until an attorney was present. This illustrated his ability to understand his rights and maintain willpower during the incident. Accordingly, the Fourth Circuit affirmed the district court’s denial of the motion to suppress.

The District Court Did Not Abuse Its Discretion by Admitting Statements of Co-Conspirator.

Mormon claimed that the district court incorrectly admitted statements made by a co-conspirator on a video recording. Mormon argued that the recording was not properly authenticated and the statements violated the hearsay rule and Confrontation Clause. Appellate courts review the admissibility of evidence for abuse of discretion.

The Fourth Circuit concluded that the video recording was properly authenticated and the statements properly admitted. In order to properly authenticate a piece of evidence, the government must only show on its face, prima facie, that the evidence is authentic. The Fourth Circuit determined that the Government “provided an adequate foundation to show that the recording was what the Government said it was” and thus satisfied their burden. In addition, the statements made by the co-conspirator were admissible under the co-conspirator exception to the hearsay rule. Finally, the statements did not violate the Confrontation Clause because they were not testimonial. Therefore, the court affirmed the district court’s admission of the co-conspirator statements.

Improper Statements by the Government During Closing Argument Did Not Deprive Mormon of a Fair Trial.

Mormon claimed that the district court should have granted his motion for a mistrial because of improper remarks made by the Government during closing argument.  A motion for mistrial is reviewed for abuse of discretion.

The Fourth Circuit concluded that the remarks made by the Government did not warrant a mistrial. In order for a court to grant a mistrial, the defendant must prove that the Government made improper remarks during the closing argument which “prejudicially affected [the defendant’s] substantial rights so as to deprive him of a fair trial.” Even though the Government conceded that the remarks were improper, the Fourth Circuit determined that they did not rise to the level of prejudicial. Not only were the remarks “a brief, isolated episode,” but the Government’s case was persuasive even without the remarks. Accordingly, the Fourth Circuit affirmed the district court’s denial of Mormon’s motion for a mistrial.

District Court Judgment Affirmed.

The Fourth Circuit affirmed the district court’s ruling on each of the three issues raised by Mormon on appeal.

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11Nov

Fourth Circuit Affirms Carjacking Conviction

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By: Kelsey Kolb

Today, in United States v. Davis, the Fourth Circuit affirmed by unpublished per curiam opinion the District Court for the Middle District of North Carolina’s admission of portions of one witness’ testimony and its entering of the jury’s guilty verdict.

Davis was convicted of carjacking and of carrying and using by brandishing a firearm during and in relation to a crime of violence,in violation of 18 U.S.C. §§ 2119(1), 2 (2012) and 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (2012), respectively. Davis appealed first, on the grounds that there was insufficient evidence for the former conviction, carjacking. Second, Davis contended that the lower court erred in admitting portions of one witness’ testimony.

There was Sufficient Evidence from which the Jury Could Convict Davis for Carjacking.

The Fourth Circuit, in reviewing the challenge to the sufficiency of the evidence de novo, found that there was sufficient evidence presented to the jury by which it could find that Davis had (1) with intent to cause death or serious bodily harm (2) taken a motor vehicle (3) that had been transported, shipped, or received in interstate commerce (4) from the person or presence of another (5) by force and violence or intimidation.

In viewing the evidence and reasonable inferences in the light most favorable to the government, as is required for reviews of convictions, the court found substantial evidence in the record to support a conclusion of Davis’ guilt beyond a reasonable doubt. The testimony of four witnesses that the jury deemed credible was “ample evidence.” The victim of the carjacking, Woods, testified that he and witness Neese were in a home when Davis and a co-defendant entered. Woods stated that the co-defendant held a pistol, demanded Woods’ car keys, and hit Woods in the head with the pistol when he did not comply. This caused Woods to surrender his car keys. Davis then reached into Woods’ pocket and took his wallet. Davis and the co-defendant exited the home and left in Woods’ car. Woods testified that Davis willingly participated in the offense. The second piece of testimony came from witness Neese. Although unable to identify Davis, Neese corroborated Woods’ testimony. Third, Davis’ cellblock mate further corroborated Woods’ testimony of the events and testified that Davis admitted to him his plan to steal Woods’ car, which included the use of his co-defendants pistol. Finally, Honda employee Brynes testified that the car was made in Ohio.

Regardless of the theories that Davis advanced in trial, the jury was free to take the evidence presented before it, weigh the credibility of each, and return a verdict based on the interpretation it believed. Davis’ argument that he merely borrowed Woods’ car was outweighed by contradictory evidence. His argument that he planned on returning the car was immaterial, given that “intent to permanently deprive” was not an element of carjacking. Finally, his argument that he was coerced by his co-defendant was outweighed by circumstantial evidence that suggested otherwise. Thus, Davis did not meet his burden of proving that the testimonial evidence presented against him was insufficient to support a conclusion of his guilt in the carjacking offense beyond a reasonable doubt.

The court further found that Davis’ argument as to the failure of the prosecution to prove the fourth element, “from the person or presence of another,” was untenable. Even though Woods was not “in or immediately next to his vehicle” when it was taken, the court reasoned that is well established that “presence” does not require this narrow reading. As quoted in United States v. Soler, presence is found when the vehicle is within the victim’s “reach, inspection, observation, or control, “such that he could, “if not overcome by violence or prevented by fear, retain possession of it.” The court found that “presence” was more than satisfied in this case.

Therefore, the Fourth Circuit held that the jury was provided with sufficient evidence from which it could find each element of the carjacking offense to be satisfied, implicating Davis beyond a reasonable doubt.

The District Court did not Err in Admitting Two Portions of Testimony.

Davis’ first preserved challenge, on the grounds of F.R.E. 404b and 403, was to testimony that he planned to bribe Woods with drugs if Woods would drop the charges. The court found that the lower court did not abuse its discretion in admitting this evidence under 404b because the testimony of his plan to intimidate or influence Woods, a witness for the government, was not being offered to prove the defendant’s bad character, but rather to prove his consciousness of guilt and that he knew his case was weak. The testimony was also offered to contradict one of Davis’ theories, that he merely borrowed Woods’ car. This testimony met 404b’s requirement of reliability because it was given by his cellblock mate, an acquaintance for several years, and included specific details of the offense. The testimony also met 403’s requirement that the probative value of the evidence not be outweighed by unfair prejudice. The court held that the extreme probative value of this evidence was not outweighed by its “undoubtedly,” yet not unfairly, prejudicial nature.

Davis’ second preserved challenge, on the grounds of F.R.E. 403, was to testimony that he planned to gain juror sympathy during the trail by crying on the witness stand. The court found that the lower court did not abuse its discretion in admitting this evidence as relevant under 403 because this plan tended to make a fact—his consciousness or guilt—more probable than it would have been without the evidence. Davis, for the first time on appeal, contended that this evidence was also inadmissible on the grounds of 404b. Because Davis failed to preserve this ground for objection, the court reviewed the lower court’s admission for plain error and found none, given the weight of the additional evidence admitted at trial.

Because There was Sufficient Evidence from which the Jury Could Find Davis’ Guilt of Carjacking Beyond a Reasonable Doubt and Because Neither Piece of Challenged Testimony was Inadmissible Under Either 404b or 403, the Fourth Circuit Affirmed Davis’ Conviction.

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